Court File and Parties

Court: Ontario Court of Justice

Date: 2018-01-23

Court File No.: Brampton 16-415-00

Between:

Her Majesty the Queen

— and —

Eric Bardsley

Before: Justice A.R. Mackay

Heard on: September 20, 2017 and October 31, 2017

Reasons for Judgment released on: January 23, 2018

Counsel

Tony Sferruzzi — counsel for the Crown

Paul Burstein — counsel for Eric Bardsley

Contents

• Introduction
• Background
• Chronology of Proceedings
• Analysis
  • I. The New Framework
  • II. Defence Delay
  • III. Exceptional Circumstances
  • IV. Below the Presumptive Ceiling
• Conclusion

Introduction

[1] The defendant is charged with driving in excess of 80 milligrams. The information was sworn on January 11, 2016. Mr. Bardsley's trial was scheduled before me for two days, commencing November 2, 2017. An 11(b) Charter application was brought in advance of the trial along with an application to stay for abuse of process. However, the submissions for both applications completed on October 31, 2017. On November 2, 2017, I stayed the charge after finding the defendant's right to a trial within a reasonable time was breached.

[2] The following are my reasons for the stay of proceedings.

Background

[3] The applicant's trial began in front of Justice Cowan. Prior to its completion His Honour declared a mistrial as a result of a request made by defence counsel. The matter had already been scheduled for trial on an earlier date but the trial was not reached. November 2nd would have been the third time the matter was set for trial.

[4] The defendant was arrested on January 5, 2016. The information was sworn on January 11, 2016. The trial was scheduled to begin November 2, 2017 for two days. The time period in question is 22 months, 4 months over the presumptive ceiling. Mr. Bardsley was charged 7 months prior to the July 8, 2016 release of the R. v. Jordan, 2016 SCC 27. This is a transition case. The new framework is to be applied "contextually and flexibly" for cases in the system (Jordan, para. 94).

[5] I will therefore first review the chronology of this case as I would under the Morin framework and then apply the Jordan framework.

Chronology of Proceedings

[6] Prior to the first appearance, the applicant had retained counsel. On January 25, 2016 agent for counsel attended and advised that they were waiting for disclosure.

[7] On February 22, 2016 counsel's agent made a request for a second photocopy of officer's notes as the first copy was not readable. The Crown offered to copy the notes on the morning recess, but the agent had to attend another court and could not wait. The matter was adjourned for approximately 2 weeks.

[8] On March 7, 2016 counsel's agent advised they just received disclosure and requested the matter be adjourned for a further 2 weeks.

[9] On March 21, 2016 a judicial pre-trial (JPT) was set for April 7, 2016. On the same day as the JPT, 16 days later, trial dates were set for November 23 and 24, 2016. Defence counsel had earlier available dates which included two dates in April, four in May, and one in June.

[10] On the first trial date of November 23, 2016, the case was not reached. Counsel set a new date for trial on July 5 and 6, 2017. The Crown recognized the trial date was too far off and advised counsel that he will make efforts to bring the matter forward to set an earlier date. Approximately three weeks later, on December 12, 2016 the matter was brought forward and a new trial date was set for April 25 and 26, 2017.

[11] On April 25, 2017 at the end of the first day of the trial, after court had recessed, an unfortunate exchange occurred between defence counsel, Mr. Rosenthal, and a police witness. Very briefly, the officer accused Mr. Rosenthal of staring at him and shortly thereafter told Mr. Rosenthal to "have a safe drive home". Counsel perceived what the officer said to him as being a veiled threat. On the following day, counsel cross examined the officer regarding their exchange. Although the officer acknowledged he told counsel to have a safe drive home, he disagreed that he had done so to intimidate counsel. He maintained he uttered the parting words to "break the ice".

[12] A mistrial was declared after counsel advised Justice Cowan that he may have to be called as a witness as he believed that the officer was not being truthful with the court regarding their exchange.

[13] On May 10, 2017, the next court date, two weeks later, agent for counsel advised that Mr. Rosenthal had attempted to resolve the matter but the Crown's office wanted to proceed with the charge as laid. Court was advised that Mr. Burstein will be retained and the matter was adjourned for one week.

[14] On May 17, 2017 a JPT was set for June 29, on the day following the pre-trial the matter was set down for two Charter applications to be argued on September 20 and trial dates were set for November 2 and 3, 2017.

[15] The Charter application ultimately required two days to argue. The parties and the court were able to schedule the second day of the Charter applications, two days before the trial was to take place.

[16] The total delay from the laying of the information to the trial date is approximately 22 months.

Analysis

[17] Given that this is a transitional case, I must apply the Jordan framework, "contextually and flexibly" with due sensitivity to the parties' reliance on the previous state of the law (Jordan, para. 94).

[18] Under the Morin framework, I would determine the institutional delay by deducting the following from the total delay: two months for the intake period; two weeks for the judicial pre-trial; one month for counsel to prepare his case; an additional week for the second JPT, and two weeks to retain counsel. I would not deduct the time from the mistrial to the third trial date except for the two week period prior for the judicial pre-trial.

[19] The total institutional delay would be approximately 17 months. Morin established a general acceptable period of institutional delay as being between 8 to 10 months. In Brampton, the amount of tolerable institutional delay was modified to be approximately 8 months with such delay generally not exceeding about 9 months (see R. v. Misener, [2003] O.J. No. 1948). Clearly 17 months is well in excess of what was acceptable institutional delay.

I. The New Framework

[20] Turning now to apply the new framework as set out in Jordan:

[21] A period of 18 months for cases tried in the provincial court is the ceiling set beyond which delay becomes presumptively unreasonable. A breach of s. 11(b) will be found unless the Crown can show that the delay was reasonable according to principles established in R v. Jordan. If the delay is less than the "presumptive ceiling" the delay is presumed to be reasonable. However, a breach will be found if defence counsel can show that the presumptively reasonable delay has in fact been unreasonable.

[22] The first stage is the initial step in calculating the delay for comparison to the presumptive ceiling. I must begin by quantifying the "total delay, which is the period from the charge to the actual or anticipated end of the trial" and then "subtract[ing] defence delay from the total delay, which results in the net delay" (R. v. Coulter, 2016 ONCA 704, at para 34-36).

[23] This approach is in keeping with the basic constitutional principle that the Charter protects against improper state action. If delay is "defence delay" it cannot form the basis of an 11(b) breach.

[24] The second stage involves calculating the remaining delay. As the Jordan majority explained, if delay occurs as a result of "exceptional circumstances" it is to be subtracted from the "net delay", subject to some qualification.

[25] The third stage of analysis involves determining whether the "remaining delay" that is ultimately identified is reasonable. As indicated, the principles to be applied depend upon whether the remaining delay exceeds the appropriate presumptive delay (R. v. Coulter, at paras 37-59).

II. Defence Delay

[26] Defence delay must be deducted from the total delay of 22 months. Defence delay is divided into two categories: 1) delay waived by the defence and 2) delay that is caused solely by the defence (R. v. Cody, 2017 SCC 31, para 26). In this case, only the second category is in issue.

[27] Defence delay encompasses "those situations where the defendant acts directly caused the delay or are shown to be a deliberate and calculated tactic to delay". It would also encompass frivolous applications (Jordan, para 60, Coulter, para 42-44).

[28] However, defence delay does not include "actions legitimately taken", such as time for preparation and non-frivolous requests. Defence must be allowed preparation time, even where the court and the Crown are ready to proceed.

[29] Defence delay will also result where the court and the Crown are ready to proceed but the defence is not. The period of delay resulting from counsel's unavailability will be deducted from the net delay. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. The Supreme Court of Canada wanted to discourage unnecessary inquiries into defence counsel's availability at each appearance (Jordan, para. 64).

A. Disclosure Period

[30] The Crown argued that counsel's agent should have waited for the disclosure on the set date. It was not necessary to adjourn the matter two weeks to come back to get disclosure. Using a "flexible" approach, I would not deduct two weeks for defence counsel's agent's unwillingness to wait a few hours for disclosure. The applicant retained counsel prior to his first set date. This time period was typically referred to as the "intake period" and considered neutral.

B. Mistrial Request

[31] The analysis of whether the mistrial was defence delay is pivotal to the application.

[32] The Crown submits that the defence is responsible for the trial going over and had other options he could have pursued. While there were other options that could have been explored to salvage the trial neither defence nor the Crown seemed to consider those options or raised them with the court on April 26.

[33] Mr. Rosenthal testified on the application and advised that he could not continue to represent his client to the best of his ability as a result of what had occurred. In addition, he believed that the officer's credibility was in issue and that it was likely necessary that he be a witness in that regard at his client's trial. Mr. Sferruzzi initially raised with the court that a mistrial may be required if counsel wanted to testify. However, his position was that what happened with counsel and the officer after court was not relevant to the proceedings. It was a collateral issue. Justice Cowan declared a mistrial given that counsel maintained he would need to be a witness.

[34] The request for a mistrial and adjournment of the trial was not a frivolous application. However, there were other options that could have been explored. Mr. Burstein argued that the Crown could have offered to abandon reliance on the officer's evidence of the applicant's utterances made in the ambulance and at the hospital. Prior to the issue arising, Justice Cowan had pointed out to the Crown that he would have difficulty having these utterances introduced as admissible evidence.

[35] Mr. Sferruzzi countered that he did not know what the defence's arguments were and that had he been approached about coming to an agreement with respect to the officer's evidence he may have considered it. It is unfair at this stage to play the Monday morning quarter back as to what should or ought to have been done.

[36] In the end, I find that the mistrial application was not a frivolous application nor was it a delay tactic. It may not have been the best course of action. However, it was a response to an unexpected incident where defence counsel believed that he was being intimidated by a police witness prior to his cross examination being completed. A quick but earnest decision was made when counsel was unnerved following his cross of the officer with respect to their exchange.

[37] The Crown submitted that the defence ought to have set a trial date on the same day as the mistrial. Given that a new lawyer would have to be retained this would only lead to an adjournment in the future to accommodate new counsel's schedule.

C. Date Following Mistrial to Set Date

[38] The matter was adjourned for two weeks initially to see if it could be resolved. However at the same time the defence advised that Mr. Burstein would be retained. Likely new counsel could have been retained sooner but not by much. I would deduct a week as defence delay for this time period.

D. Judicial Pre-Trial Period

[39] The Crown was of the view that the time from set date to the judicial pre-trial should be deducted. However, I disagree given a JPT would be necessary and required in our jurisdiction prior to setting the third trial date, particularly so given two Charter applications were argued.

E. Set Date to Third Trial Date

[40] Trial dates were set the day after the JPT. The trial sheet reveals that the defence did not have any availability for four months. The Crown was not available for the first month but had two dates in August and three in September. The courts have recognized that counsel cannot be expected to devote all their time to one case (Morin, page 792). Or, as Justice Cromwell put it in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, s. 11(b) does not require counsel to "hold themselves in a state of perpetual availability": para. 23 (Jordan, para 179).

[41] While keeping in mind that recently retained counsel cannot be expected to be available immediately for trial, three months should, in most circumstances, be a reasonable time to have a date available to conduct a trial. I would deduct one month from the set date to the third trial date as defence delay, given the Crown and the court had dates to commence the trial and the defence did not have any for four months.

[42] The net delay after deducting defence delay is 19 months which is still over the presumptive ceiling. However, the Crown can rebut the presumption that the delay is unreasonable because of the presence of exceptional circumstances (Jordan, para. 68).

[43] I now turn to consider whether the exchange between the defence counsel and the police officer was an exceptional circumstance.

III. Exceptional Circumstances

[44] Exceptional circumstances are those that 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 which arise from those circumstances once they arise. They need not also be rare or entirely uncommon (Jordan, para 69). Exceptional circumstances also cover cases that are particularly complex. This is not a complex case.

[45] The incident with defence counsel and the arresting officer was certainly unforeseen and unavoidable from the Crown's perspective. Mr. Sferruzzi had no control over how the parties would interact after court had finished for the day.

[46] In order for the Crown to rely on the exceptional circumstance to rebut the presumption, it must show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling (Jordan, paras 69-71).

[47] Jordan provided examples of how the Crown could address the delay. These included resorting to a further judicial pre-trial or requesting a further meeting with defence to streamline issues for the trial. The Crown is not required to show that the steps it took were ultimately successful but rather that it took reasonable steps in an attempt to avoid the delay (Jordan, para. 70).

[48] In this particular situation, neither the defence nor the Crown took reasonable steps to avoid a mistrial. Still the situation was a very unusual one and neither party was obviously prepared for such an event to take place. The delay in this case may have been avoided if the Crown suggested that the matter be pre-tried with another judge or that a meeting be had between defence and Crown to see what other steps could be taken short of a mistrial. While such a step ultimately may not have avoided a third trial date, it would have allowed the Crown to rebut the presumption of unreasonable delay. This was even more important given the event occurred on a second trial date.

[49] The Crown could have considered whether it needed to have the officer continue with his evidence and defence counsel should have considered approaching the Crown about the possibility of finishing the case without the officer's evidence. To be fair, prior to the mistrial being declared, the Crown did make efforts to ensure that the matter proceeded expeditiously. This was evident from the first set date when Mr. Sferruzzi volunteered to make a second copy of disclosure on his morning break and continued throughout which included bringing the matter forward to get an earlier trial date for the second trial date. However under the exceptional circumstances category, it is the Crown's obligation to take reasonable steps to prevent further delay (Jordan, paras 70, 75).

[50] Given the history of this case and that no attempt was made to mitigate the delay of the exceptional circumstance, I am not prepared to subtract the period of delay resulting from the mistrial. Stepping back from "the minutiae and adopting a bird's-eye view of the case" (Jordan, para. 91), I have found that the history of the matter simply took the case beyond what is constitutional tolerable delay.

IV. Below the Presumptive Ceiling

[51] If I am wrong and it is determined that more time should have been deducted from the total period of delay for the mistrial and the net delay was then brought below the presumptive 18 month ceiling, the onus would shift to the defence to establish the delay was unreasonable. In order to accomplish this, the relevant rule from the Jordan regime requires the defence to establish two things: "(1) [He] took meaningful steps to demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have" (Jordan, at para 82). Absent these two factors, the s.11(b) application must fail.

[52] This onus must also be applied contextually, sensitive to the parties' reliance on the previous state of the law. Specifically, the defence need not demonstrate having taken initiative to expedite matters for the period of delay preceding this decision (Jordan, para. 99).

Conclusion

[53] I would find in these circumstances that the defence established throughout the history of the case that it took meaningful steps to expedite proceedings; and has established that the case took "markedly longer" than it reasonable should have.

[54] A very compelling feature of this case is that as a result of what transpired between the officer and Mr. Rosenthal, the applicant through no fault of his own had his trial delayed a third time and had to retain new counsel. He no longer had counsel of his choice to represent him. Compelling case specific factors continue to be relevant to assessing reasonableness of periods of delay both below and above presumptive ceilings (Jordan, para. 149). Reasonableness cannot be captured by a number alone (Jordan, para. 51).

[55] I therefore find that the delay is unreasonable and there will be a stay of the charge before the court.

[56] As I ultimately decided on the 11(b) application first, I did not deem it necessary to deal with the abuse of process application.

Released: January 23, 2018

Justice Alison R. Mackay