Court Information

Information No.: 0531-998-16-161237-00

Date: March 23, 2018

Ontario Court of Justice

Location: Timmins, Ontario

Parties

Her Majesty the Queen

v.

Clayton Carey

Before the Court

The Honourable Justice M. Lambert

on March 23, 2018, at Timmins, Ontario

Counsel

Z. Huywan – Counsel for the Crown

N. Cooper – Counsel for Clayton Carey

Ruling on Section 11(b) Application

RULING

LAMBERT, J. (ORALLY):

Clayton Carey faces charges of sexual assault, sexual interference and forcible confinement as a result of an incident alleged to have occurred on July 9th, 2016. Incidentally, this was the day after the Jordan decision was released by the Supreme Court of Canada.

The matter is now set for trial on May 9th and 18th in Timmins though the incident is alleged to have occurred in Moosonee. It is on consent that the matter is to be heard in Timmins.

Mr. Carey now brings a Jordan application to stay the charges against him alleging that his Section 11(b) Charter right to be tried within a reasonable time has been breached.

Chronology of Events

The facts are relatively simple, but as in many such cases, it is their interpretation which give rise to some difficulties. I will now go through the chronology of events which bring us to this application.

Mr. Carey was arrested on the day of the alleged incident and was released on a recognizance of bail, on consent, four days later, but on very strict terms which included a 7 p.m. to 7 a.m. curfew, and a condition that he not attend Moose Factory Island where he had been living since March of 2016.

At the time of his arrest, his clothing and that of the complainant was seized by the Nishnawbe-Aski Police Service for forensic purposes.

Nothing appears to have been done with that clothing by NAPS until it was sent to the Centre of Forensic Sciences for analysis on November 22nd of 2017, some four and one half months after the alleged incident. No attempt has been made by the Crown to explain that delay as there is no doubt no valid reason for that delay.

Ms. Cooper was retained on July 20th of 2016 and promptly requested disclosure on July 21st. The first appearance before a judge was on August 9th, 2016 in Moosonee. It is important to note that Moosonee is a fly-in community where the court sits once a month for three days. At that time, the matter was adjourned to September 6th to allow counsel to have a non-judicial pre-trial.

On September 6th, the matter was adjourned to October 4th, and I quote from the transcript as to what happened, "The Crown needs to determine whether or not there is going to be a DNA analysis of clothing that was seized at the scene."

On October 4th, 2016, Ms. Cooper indicated that she was still waiting to hear from the Crown with respect to the clothing seized, so it was adjourned to November 1st.

On November 1st, the Crown indicated that NAPS still had not responded to his emails about the seized clothing, so the matter was once again adjourned to December 6th to follow up.

On December 6th, it was learned that the clothing was finally received by the Centre of Forensic Sciences on November 22nd. Ms. Cooper requested that a trial date be set given that her client was required by his bail conditions to reside in North Bay. Both counsel agreed that the CFS results would be an important factor. The matter was therefore adjourned to April 5th, 2017 for a tentative trial date with a confirmation hearing date set for January 31st in Timmins.

On January 31st, interestingly, the court was advised that there were no disclosure issues outstanding. The Crown could not confirm that the subpoenas had been served on the four witnesses, so the confirmation hearing was adjourned to February 7th in Moosonee to confirm that.

On February 7th, 2017, the Crown confirmed that the witnesses had been served for April 5th, but he informed the court that results had been obtained from the Centre of Forensic Sciences which necessitated obtaining a DNA sample from the accused. The report from the Centre of Forensic Sciences was dated January 22nd. At the request of the Crown, the confirmation hearing was adjourned to the next date in Moosonee which was on March 7.

On that date, the following occurred:

"MS. COOPER: I'm counsel for Clayton Carey, Your Honour. A designation has been filed. This is a continuation of a confirmation hearing. At the last date, I understand that the Crown was going to be seeking a warrant with respect to my client's DNA and I don't know what the status is of that matter. The ball's in the Crown's court. I'm seeking to have the trial proceed in April.

THE COURT: That had been adjourned to February 7th. The original confirmation hearing was in Timmins on January 31st and adjourned to February 7th here to see if the witnesses had been served, and then the court was advised that some DNA results were still outstanding. Mr. Guèvremont?"

Mr. Guèvremont, for the Crown, added: "Yes, those DNA results are still outstanding. We followed-up on that. We are still awaiting those results. If my friend wishes to have the trial proceed on April 4th, we'll keep that date.

THE COURT: The trial date will be confirmed for April 5th at 9:30, one and a half days set aside, and given the position taken by the Crown, there will be - no application to adjourn will be entertained on that date for lack of disclosure."

On April 4th, 2017, Justice Carr was scheduled to preside in Moosonee but could not attend due to illness. The matter was, therefore, adjourned to August 2nd in Moosonee which was the next available trial date.

In the meantime, it was not until June 2nd of 2017 that the Nishnawbe-Aski Police Service executed a warrant to obtain a DNA sample from the accused, a full four and one half months after the original DNA report had been obtained. A supplementary report from the Centre of Forensic Sciences was received by Ms. Cooper on June 20th, 2017, a full five months after the original report was received, indicating the DNA from a male that was located on the complainant's clothing. Once again, no attempt has been made by the Crown to explain that delay as there is no doubt no valid reason why NAPS waited so long to obtain a DNA sample from Mr. Carey.

Following receipt of the supplementary report from the Centre of Forensic Sciences said to be incriminating, Ms. Cooper requested that a judicial pre-trial be set, and that was done by the trial coordinator with counsel being given the date of July 7th in Timmins.

By way of email on June 26, 2017, Ms. Cooper advised the trial coordinator that the matter would now be a plea of guilt and she requested the date of July 24th in Timmins for that purpose, which was a regular plea date. The trial coordinator advised her that the July 7th judicial pre-trial date and the trial date of August 2nd would therefore be vacated.

During the afternoon of July 7th, Ms. Cooper, by way of email, advised the Crown that her client had had a change of heart and that he would use the date of July 24th in Timmins to bring a motion to adjourn the August 2nd trial as he now wanted to retain his own DNA expert.

On July 24th, the August 2nd trial date was formally vacated at the request of the accused, the Crown taking no position. The matter remained on the August list in Moosonee to set a new date for trial.

On August 1st, Ms. Cooper advised the court that she had been in consultation with an expert from Calgary and that she had not yet been retained. She had yet to send a request to Legal Aid for authorization to pay for that expert. There was a discussion about setting a trial date in December, but in the end it was agreed to adjourn the matter to September 5th to see if authorization had been obtained from Legal Aid to retain the expert and if so, how much time would be required to produce a report.

On September 5th, Ms. Cooper confirmed that her expert had been retained, that she was requesting items from the Crown which her expert required for an opinion. She indicated that the Crown had not yet responded to that request which had been made on August 23rd. In any event, both sides were requesting that a trial date be set, which was done peremptorily on all parties. The matter was adjourned to November 7th, 2017 to confirm the tentative trial date of December 6th with one day set aside to have the matter heard.

At the confirmation hearing on November 7th, Ms. Cooper advised that her expert's report would not be available until at least the third week of November. So, it was agreed that the Crown's case would be heard on December 6th and the matter adjourned to a later date for the defence, if necessary.

On December 6th, court had to be cancelled in Moosonee as the lawyers could not fly in to Moosonee for the weather. I open a parenthesis here to point out again that Moosonee is a monthly three-day sitting. The court party flies up on the first day and stays in the community until the completion of the sittings, as does the Crown.

Legal Aid has a plane that flies back and forth to Timmins every day, and most counsel choose to return to Timmins for the night. December 6th was the second day of the sittings, and as I have said, the Legal Aid plane could not land in Moosonee.

To compound the problem, the river which separates Moosonee from Moose Factory Island was freezing up at that time which means that persons could not use water taxis nor the winter road to get from Moose Factory to Moosonee. During freeze-up and break-up of the river, the only way to get across from Moose Factory to Moosonee is by helicopter which is prohibitively expensive. In the case at bar, the Crown witnesses lived in Moose Factory and the accused was also in Moose Factory, while court is held in Moosonee. As a result of the weather, neither the Crown witnesses nor the accused could get to Moosonee as the helicopters were not flying as a result of the weather as well. Only the court party and the Crown were therefore physically present in Moosonee when the matter was addressed. Obviously, the trial could not proceed.

By that time, Ms. Cooper had returned to Timmins and she participated in the December 6th hearing by telephone. A suggestion was made by the Crown to have the matter heard in Timmins as a result of the delay with which Ms. Cooper agreed in theory but she needed to get instructions from her client. The matter was therefore adjourned to December 12th in Timmins for that purpose and to set a date for trial.

By later on December 6th, Mr. Carey had already agreed to have the matter heard in Timmins but no convenient date could be found on December 12th, so the matter was adjourned to December 19th to set a date for trial. On that date, the matter was set for a one-day trial in Timmins on March 15th, 2018 with a confirmation hearing date of February 13th.

At the confirmation hearing on February 13th, Ms. Cooper advised that her client now wished to bring an 11(b) application for delay, but I expressed concern with non-compliance with the Rules as the application had not yet been served and filed. It turns out that Ms. Cooper had ordered the necessary transcripts in December of 2017 and had advised the Crown of her intention to bring such an application, but February 13th was the first time that the court heard of this potential application. It was then agreed at the confirmation hearing that the March 15th trial date would be used to argue the Jordan application. Witnesses were cancelled so that they would not attend unnecessarily in the event that the stay of proceedings was granted or in the event that the Jordan application could not be completed that day. Section 11(b) was then waived for March 15th moving forward.

The application and the materials in support were indeed before the court on March 15th, and at Ms. Cooper's insistence, new trial dates were set before the application was argued. So, the matter is now scheduled to be heard on May 9th and 18th in Timmins, as I've indicated at the outset.

Legal Framework: R. v. Jordan

In R. v. Jordan, the Supreme Court of Canada dramatically changed the law as it relates to applications for delay under Section 11(b) of the Charter. Ceilings now provide a presumptive time period within which an accused must be tried: 18 months in the Provincial Court and 30 months in a Superior Court. In cases where the total time, less delays either waived or exclusively caused by the defence, exceeds the presumptive ceiling, the onus lies on the Crown to demonstrate that the delay was reasonable. Where the delay falls below the presumptive ceiling, the defence must demonstrate that the period to the end of the trial was unreasonable. Jordan held that a stay of proceedings for delays that fall below the ceiling will be rare and limited to clear cases.

The decision of the Ontario Court of Appeal in R. v. Coulter, 2016 ONCA 704 summarized how delays should be analyzed, and I quote:

"(1) Calculate the total time, which is the period from the charge to the actual or anticipated end of trial.

(2) Subtract defence delay from the total time, which results in the "Net Delay".

(3) Compare the Net Delay to the presumptive ceiling.

(4) If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If it cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.

(5) Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached.

(6) If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable.

(7) If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable; and

(8) The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the "Transitional Cases")."

Application of the Framework

It is now clear that the total time is calculated from the date the information is sworn to the anticipated completion of the trial. In the present case, the total time, therefore, runs from July 9th, 2016 to May 18th, 2018, which amounts to 22 months and 9 days.

The defence has explicitly waived the delay from March 15th to May 18th given the delay in bringing the Section 11(b) application. As I indicated earlier, the trial date of March 15th was vacated to argue the delay application. Taking that into consideration, the net delay, apart from other delay that may be attributed to the defence, amounts to 20 months and 6 days which is the period from July 9th, 2016 to March 15th, 2018.

The Crown argues that the remaining time after the Coulter calculation amounts to 12 months and 24 days and it calculates this as follows: (1) the total time from July 9th, 2016 to March 15th, 2018 amounts to 20 months and 6 days, less defence delay from August 2nd to December 6th, 2017 of 4 months and 4 days, less exceptional circumstances from December 6th to March 15th of 3 months and 9 days which is how the Crown comes to a remaining delay of 12 months and 24 days.

The Crown argues that it was ready to proceed to trial on August 2nd but that the defence was not, so that the period of August 2nd to December 6th, 2017 should be counted as defence delay. I disagree with that analysis. There were several reasons why the trial could not proceed on August 2nd, 2017 but the main one is delayed disclosure by the Crown of the CFS report dated June 20th, 2017. Obviously, the defence could not retain its own DNA expert before it had received the CFS report which was only obtained 11 and a half months after the charge was laid.

Having said that, there is still some delay that is to be attributed to the defence for the period of August 2nd, 2017 to December 6th, 2017 for the following reasons:

(1) Following receipt of the June 20th report, counsel requested a judicial pre-trial which was promptly set for July 7th;

(2) On June 26th defence counsel advised that the accused would be pleading guilty, so the judicial pre-trial and the August 2nd trial dates were vacated and the matter was put to July 24th in Timmins for plea of guilt;

(3) On July 7th defence counsel advised that her client had had a change of heart and would now be retaining his own DNA expert and would not be pleading guilty;

(4) On July 24th defence counsel brought a formal application to adjourn the trial, which was granted;

(5) On August 1st defence counsel still had not obtained Legal Aid authorization to retain an expert and thus was not in a position to set a trial which necessitated the matter going to September 5th;

(6) On September 5th, the matter was set for trial on December 6th and a confirmation hearing on November 7th. At the confirmation hearing on November 7th, defence counsel advised that her expert's report would not be available until the third week of November at the earliest, so only the Crown's case could be dealt with at the December sitting.

It is, therefore, obvious that even if the matter had started on December 6th, 2017, it would not have been completed given the lack of report from the defence expert. I understand that there had been some delay in getting that report as defence counsel had made further disclosure requests from the Crown for the expert to prepare her report, such as the Centre of Forensic Sciences' manuals.

Notwithstanding that, as I said, some of the delay from August to December should be attributed to the defence and I would hold that two months of that delay should be attributed to the defence effectively bringing down the net delay, as that term is used in Coulter, to slightly over 18 months or 18 months and 6 days. This exceeds the presumptive ceiling. So, Jordan and Coulter hold that the net delay is presumptively unreasonable and a remedy should be granted under Section 11(b) unless the Crown rebuts the presumption by proving exceptional circumstances.

Exceptional Circumstances Analysis

Exceptional circumstances have been defined as discrete events and/or cases of a particular complexity. I have already opined during the submissions that this is clearly not a complex case and I am still of that view. This is the type of case that judges in the OCJ hear on a daily basis across Ontario. The fact that there is some expert testimony on DNA does not make this a complex case. We are, therefore, left to decide whether the court cancellation on December 6th for the weather and the rescheduling of the trial to March 15th, 2018 in Timmins amounts to a discrete event.

The Supreme Court of Canada had this to say in Jordan about exceptional circumstances, starting at paragraph 69 of the decision, and I quote:

"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."

It goes on to say at paragraph 70, and I quote:

"It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful — rather, just that it took reasonable steps in an attempt to avoid the delay."

Paragraph 71:

"It is obviously impossible to identify in advance all circumstances that may qualify as "exceptional" for the purposes of adjudicating 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."

Paragraph 72:

"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."

Paragraph 75:

"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. Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events.... Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e. it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events)."

Paragraph 76:

"If the remaining delay falls below the ceiling, the accused may still demonstrate in clear cases that the delay is unreasonable as outlined below. If, however, the remaining delay exceeds the ceiling, the delay is unreasonable and a stay of proceedings must be entered."

Finally, the court goes on to say this at paragraph 81 of his decision, and I quote:

"To be clear, the presence of exceptional circumstances is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling. As discussed, an exceptional circumstance can arise from a discrete event (such as an illness, extradition proceeding, or unexpected event at trial) or from a case's complexity. The seriousness or gravity of the offence cannot be relied on, although the more complex cases will often be those involving serious charges, such as terrorism, organized crime, and gang-related activity. Nor can chronic institutional delay be relied upon. Perhaps most significantly, the absence of prejudice can in no circumstances be used to justify delays after the ceiling is breached. Once so much time has elapsed, only circumstances that are genuinely outside the Crown's control and ability to remedy may furnish a sufficient excuse for the prolonged delay."

In the case at bar, I have no difficulty in concluding that what happened from December 6th to March 15th amounted to a discrete event which led to exceptional circumstances being established so that that period of 3 months and 9 days must be deducted from the net delay of 18 months and 9 days as that term is defined in Jordan and Coulter, so that the remaining delay amounts to 14 months and 27 days.

We have been referring to the December 6th event as a court cancellation but, in fact, it was not really a court cancellation. It's important to underline that the judge and the court party were in Moosonee as was the Crown, and it was defence counsel who could not fly in from Timmins, and the accused and witnesses who could not make it over from Moose Factory to Moosonee as a result of the freeze-up condition of the river and the cancellation of the helicopters as a result of bad weather. Surely, this is the type of discrete event that the Supreme Court of Canada was contemplating at paragraph 72 of his judgment.

Ms. Cooper argued that the non-attendance of defence counsel and the accused was not unforeseen or reasonably unavoidable, to use the wording from Jordan, because cancellations are not unusual on the James Bay Coast. Though not in the form of an affidavit, she filed a document on consent which showed that from August 18th of 2016 to March 1st of 2018 court was cancelled for 13 days in the communities of Moosonee, Fort Albany, Kashechewan and Attawapiskat. Those are all what we refer to as fly-in courts. It should be pointed out that from August 1st, 2016 to March of 2018 court was only cancelled three days during that period of time in Moosonee, while there were 60 regularly scheduled days in addition to special sittings.

These cancellations can hardly then be qualified as reasonably foreseeable or avoidable.

Ms. Cooper suggests that in the fly-in communities two trial dates should be booked for each trial in the event that the first trial was cancelled due to a court cancellation. This would be impractical and would, in my view, engender further delay. Let us imagine a lawyer who wishes to set a one-day trial in Moosonee and he is told that he must be available for the April sittings and the May sittings as well in case court was cancelled in April. Imagine that the court is, in fact, cancelled in April and that all matters go to May, then none of the matters scheduled for May can be heard and everyone attends unnecessarily.

What she proposes is simply not practical when dealing with a small, busy defence bar such as the one that services the Moosonee area and other coastal communities. In my view, the court cancellation on December 6th clearly amounts to exceptional circumstances.

Following that cancellation, Crown counsel promptly contacted the trial coordinator in Timmins and sought the accused's consent to have the matter heard in Timmins, which consent was given. Defence counsel was not available for the early January date as well as the March 1st date. In any event, the matter was rescheduled within three months and nine days which was clearly reasonable in the circumstances.

Remaining Delay Analysis

As I've already held, the remaining delay is therefore one of 14 months and 27 days which falls below the presumptive ceiling of 18 months. In such cases the accused can still argue that the delay is unreasonable, but the onus is then on the accused to show that the delay is unreasonable.

To do so, the defence must show two things:

(1) That 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.

Absent these two factors, the application for a stay must fail.

On this issue, the Supreme Court of Canada said this at paragraph 83 of his judgment, and I quote:

"We expect stays beneath the ceiling to be granted only in clear cases. As we have said, in setting the ceiling, we factored in the tolerance for reasonable institutional delay established in Morin, as well as the inherent needs and the increased complexity of most cases."

In the case at bar, defence counsel did express concern about delay in receiving the Centre of Forensic Sciences report, and in light of that, the Crown indicated that it was ready to proceed to trial in April 2017 where trials in Moosonee could effectively not be reached due to the judge's illness. Having said that, I am of the view that overall the defence did not do anything to unduly delay this matter except for the delay in lining up its DNA expert once the CFS report had been received from the Crown in June of 2017.

I am not sure that, to use the language in Jordan, "it demonstrated that it took meaningful sustained steps to expedite the proceedings." For example, no effort was made by the defence to contact the trial coordinator to find earlier trial dates. It is true that on several occasions defence counsel alluded to the strict bail conditions on which the accused had been released. In the end, the most that can be said is that the defence did not employ any delay tactics.

Where the defence fails is on the second prong of the test in that it failed to show that the case took markedly longer than it reasonably should have. In that respect, the Supreme Court of Canada said this, starting at paragraph 87 of its judgment, and I quote:

"Next, the defence must show that the time the case has taken markedly exceeds the reasonable time requirements of the case. The reasonable time requirements of a case derive from a variety of factors, including the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite the proceedings."

It goes on to say at paragraph 89, and I quote:

"In considering the reasonable time requirements of the case, trial judges should also employ the knowledge they have of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances."

Fly-in courts are different beasts than regular courts. For example, in Moosonee, court only sits once a month and thus it is usually the case that an accused will show up on the first appearance not having retained counsel and not having applied for Legal Aid. The matter is then adjourned one month or two for that to happen. Matters are often adjourned several months for applications to be processed and for counsel to be retained. It is even worse in communities further north as the court can have sittings every three months only. Legal Aid workers are not necessarily in those communities regularly, nor do defence counsel reside in any of those communities, and the whole court party needs to fly up for court to occur. I point that out to show that things take longer in those communities because of "local considerations" to use the wording from paragraph 87 of Jordan. That is not to say that residents in those communities enjoy less constitutional safeguards than residents in communities further south. It is just a fact of life that matters cannot be dealt with as quickly because of the geography that separates all participants in the system. It is not unusual for defence counsel only to speak with their clients on the day of court due to communication problems between court days.

Having sat in those communities for close to 20 years as a judge, and having practiced in those communities for over 12 years before that, I can reasonably conclude that the time that it took this matter to get to trial does not markedly exceed the reasonable time requirements of the case. I believe that is what the Supreme Court of Canada was speaking of at paragraph 87 of its judgment.

Conclusion

The application for a stay of proceedings must, therefore, fail and the trial shall commence on May 9th.

I cannot leave this matter without commenting on the actions of NAPS in this matter. I have already set out the timelines in detail. Their delay in sending the clothing away for analysis and the delay in obtaining the DNA sample of the accused are unexplainable and inexcusable. It is hoped that this lackadaisical attitude or approach to investigating matters shall be addressed.

So, the matter is adjourned to May 9th for trial.

Released: March 23, 2018

Justice M. Lambert