Court Information

Ontario Court of Justice

Date: 2018-07-03

Court File No.: Ottawa 16-A12529

Parties

Between:

Her Majesty the Queen

— and —

Steven Bruce Conley

Counsel

Delivered by: Justice David A. Berg

Ruling on: Crown application for summary dismissal of a motion pursuant to s. 11(b) of the Charter

For the Crown: Mr. J. Ramsay

For the Defendant: Mr. D. Lamb and Mr. F. Mansour

Decision

BERG J.:

Procedural History

[1] On June 29, the Crown brought a motion for a summary dismissal of Mr. Conley's Jordan application. The Crown's position is predicated on the failure of the defence to respect the timelines established by the Criminal Rules of the Ontario Court of Justice. A cursory summary of the procedural history of this matter is required here to understand the Crown's motion.

[2] On September 1, 2016, Mr. Conley was driving a large truck in downtown Ottawa. It is alleged that he was criminally negligent in the operation of that motor vehicle and thereby caused the death of a young woman, Nursat Jahal. He is also charged with a count of dangerous driving causing the death of Ms. Jahal arising out of that incident.

[3] Mr. Conley was investigated at the scene and was charged with the present offences on September 9, 2016. The first appearance in court was on October 3, 2016 when Mr. Lamb either appeared for him or with him. There were subsequent court appearances culminating on March 13, 2017 with the setting of the present 15-day trial; it was set to commence on June 25, 2018.

[4] On December 15, 2017, Mr. Lamb appeared in Certificate of Readiness Court before the Local Administrative Judge. The Crown advised Brunet J. that the anticipated date for the trial (i.e., June 25, 2018) seemingly engaged s. 11(b) Charter concerns and that the parties wished to explore the possibility of earlier trial dates. It seems that the impetus to seek earlier trial dates had come from the defence. My point here is that if the Jordan issue was not recognized by Mr. Lamb on March 13, 2017, he was well aware of it by December 15, 2017.

[5] The materials with which the Crown has provided me on this application provide some further insight as to what was going on between March 13 and December 15, 2017. Mr. Ramsey sent a letter to Mr. Lamb on May 10, 2017 discussing the possibility of shortening the length of the trial and getting earlier trial dates. Mr. Lamb did not respond to that letter.

[6] On July 14, 2017, Mr. Ramsey sent another letter to Mr. Lamb suggesting the possibility of earlier dates for the trial. Mr. Lamb did not respond to that letter either.

[7] On November 20, November 22, November 29, December 1, and December 6, 2017, there was e-mail correspondence between Mr. Lamb and Mr. Ramsey. Mr. Ramsey initiated the e-mail chain. The subject matter was explicitly concerned with s. 11(b) Charter.

[8] In summary, then by December 15, 2017, the Crown would have been aware from the e-mail correspondence that Mr. Conley would probably be bringing a Jordan application. However, the Crown would not have been privy to the details to which they would have to respond. Likewise, by December 15, 2017, the defence would have been aware that if they were going to bring a s. 11(b) motion, they would have to respect the timelines established by the Criminal Rules of the Ontario Court of Justice.

[9] Unfortunately, what follows is over five months of what amounts to defence silence in regards to the Jordan motion. On March 13, 2018, Mr. Ramsay e-mailed Mr. Lamb and asked if the defence had decided whether they were going to be bringing the motion or not. On March 22, Mr. Lamb responded that "we are considering an 11b so I think we should get a date out of an abundance of caution" and indicated that a final decision would be made within two weeks.

[10] From the Court's perspective, the first formal indication that Mr. Conley actually would be exercising his s. 11(b) Charter right was the filing and serving of a notice of application on May 25, 2018.

[11] From the record before me, it seems that what happens next is that on June 7, 2018, Mr. Lamb sends an e-mail to Mr. Ramsey querying whether a judicial pre-trial should be held to discuss the Jordan application. I have been advised by counsel that one was indeed held before Brunet J. on June 14. If I have understood correctly, the outcome of that meeting was that the defence would perfect their application as soon as possible and that the motion would be heard after both the Crown and the defence had called their cases on the trial proper. The Crown did not waive thereby the requirement for timely service according to the Rules.

[12] The defence application record was perfected on June 18, albeit another transcript was added to the record on June 20. I note that the eight transcripts filed by the defence as part of their motion were certified on May 30, June 12, and June 18, 2018. There is no evidence before me that the defence had any difficulty obtaining these transcripts. These dates clearly reflect that the defence was extremely tardy in ordering the required transcripts. During the course of his submissions, Mr. Lamb advised me that the lateness in the filing and serving of the documents required for the s. 11(b) application was due to his error. I did not ask for any more details.

[13] The trial commenced on June 25. Due to other issues that have arisen, the evidentiary portion of the trial has had to stop for a while. It was agreed that we would use some of the scheduled time to deal with the s. 11(b) motion. It was at that point that the Crown advised me of this motion for a summary dismissal.

Applicable Rules

[14] Mr. Ramsay, for the Crown, encourages me to dismiss summarily the defence motion on the basis of this clear non-compliance with the Criminal Rules of the Ontario Court of Justice, the relevant portions of which read:

Rule 2.1

(1) An application shall be commenced by serving an application in Form 1 on the opposing parties and any other affected parties and filing it with proof of service.

(3) If determination of the application is likely to require a transcript, the applicant shall serve and file it with the application in Form 1.

Rule 2.2

(a) A party responding to an application shall serve a response in Form 2 on the applicant and any other affected parties and file it with proof of service.

Rule 2.4

(1) A pre-trial application shall be heard at least 60 days before trial, unless the Court orders otherwise.

(2) For the purposes of subrule (1), pre-trial applications include

(e) applications for a stay of proceedings for unreasonable delay under paragraph 11(b) of the Charter.

Rule 3.1

(1) An application in Form 1 shall be served and filed with proof of service at least 30 days before the date of the hearing of the application.

(2) A response in Form 2 shall be served and filed with proof of service at least 15 days before the date of the hearing of the application.

Rule 5.3

The Court may excuse non-compliance with any rule at any time to the extent necessary to ensure that the fundamental objective set out in Rule 1.1 is met.

[15] I provide here the relevant portions of Rule 1.1:

Rule 1.1

(1) The fundamental objective of these rules is to ensure that proceedings in the Ontario Court of Justice are dealt with justly and efficiently.

(2) Dealing with proceedings justly and efficiently includes

(a) dealing with the prosecution and the defence fairly;

(b) recognizing the rights of the accused;

(c) recognizing the interests of witnesses; and

(d) scheduling court time and deciding other matters in ways that take into account

(i) the gravity of the alleged offence,

(ii) the complexity of what is in issue,

(iii) the severity of the consequences for the accused and others affected, and

(iv) the requirements of other proceedings.

[16] If these rules had been respected, the application would have had to have been heard by April 26. Thus, the defence materials in the case at bar would have been filed and served by March 28 and the Crown response would have been due on April 11. The defence is obviously in clear violation of the Rules.

Analysis of Crown's Position

[17] Mr. Ramsay refers me to two cases in support of the Crown position. The first, R. v. Hobeika, 2018 ONSC 85, can easily be distinguished from the situation facing me in the present matter. Mr. Hobeika and his co-accused brought a s. 11(b) Charter motion after they had been convicted but before sentencing. Dunphy J. summarized at paras. 2-3:

[2] Under the applicable rules of court, the proposed 11(b) applications were required to have been brought at least 60 days prior to trial unless otherwise ordered. Leave is not granted as of right. At this late stage, such an application must at the very least be treated as exceptional, requiring the applicants to demonstrate cogent reasons why it would be in the interests of justice to grant an order permitting the application to be brought. They have failed to do so.

[3] I cannot conclude that the interests of justice favour granting leave to bring the proposed applications when neither applicant has provided me with any cogent, articulated basis to believe that their intended application has a reasonable chance of success nor provided me with a satisfactory explanation for having failed to act to assert their rights sooner. There has been no material change in the legal or factual landscape in relation to the s. 11(b) Charter rights of either of the now-convicted applicants since the matter was set down for trial on May 11, 2016 and the fact that the trial was expected to be completed 49 months following the arrest of both individuals on September 15, 2013 was plain and obvious from the date the trial was set. [emphasis added]

[18] A significant portion of Dunphy J.'s ruling dealt with a summary analysis of the strength of the defence motion. As indicated above, it was found to be wanting. The centrality of the existence of a reasonable chance of success for the motion is stressed at para. 53:

[53] No satisfactory basis for me to apply my discretion under the Practice Direction to waive compliance with the time limits prescribed has been laid before me and I decline to do so. In my view, it is consistent with the interest of justice to impose a reasonable threshold viability condition to the exercise of judicial discretion for applications under s. 11(b) that are brought in such complete disregard of the spirit and letter of the Rules and Practice Direction.

[19] In regards to Mr. Conley's application, Mr. Ramsey has quite fairly conceded that the defence application meets that threshold. I do not take the decision in Hobeika to stand for the proposition that having met the viability threshold, an application should still be dismissed summarily due to non-compliance with the Rules; there is no such language in the ruling. Moreover, Dunphy J. referred explicitly (at para. 13) to the Ontario Court of Appeal's decision in R. v. Blom, where there is clear language therein that militates against such a view.

The Blom Principle

[20] The question in Blom was, "Did the summary conviction appeal judge err by upholding the trial judge's refusal to consider the appellant's Charter application on the ground of inadequate notice?":

[21] Rule 30, requiring notice of Charter applications to exclude evidence, is a procedural rule. Its purpose is to facilitate the fair and expeditious determination of Charter issues by ensuring that neither party is taken by surprise at trial and that both parties have adequate notice of the factual and legal basis for the Charter application. As has been frequently observed, procedural rules are servants not masters. They are servants to the cause of the just and expeditious resolution of disputes. Procedural rules are important, but they are not to be rigidly applied without regard to their underlying purpose. This is made clear by the Rules themselves. Rule 1.04 requires that Rule 30 "be liberally construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay". Rule 2.01 provides that failure to comply with Rule 30 is a mere "irregularity" and that even where a rule has not been followed, to the extent possible, steps should be taken "to secure the just determination of the real matters in dispute".

[22] These provisions establish that where a procedural rule such as Rule 30 is invoked to foreclose consideration of a Charter issue, non-compliance with the rule is not necessarily fatal to the Charter application. Rather, the trial judge is required to consider and weigh a variety of factors to determine what course of action is required by the purpose of the rule. See R. v. Loveman; R. v. Lavallata (1999), 47 M.V.R. (3d) 236 (Ont. C.J.).

[23] Where a party complains of inadequate notice, it is crucial for the trial judge to consider the issue of prejudice: does the failure to provide adequate notice put the opposite party at some unfair disadvantage in meeting the case that is being presented? If there is no real prejudice, inadequate notice should not prevent consideration of the Charter application. If the inadequate notice does put the opposing party at a disadvantage, the court must consider whether something less drastic than refusing to consider the Charter argument, but still consistent with the goal of achieving "fairness in administration and the elimination of unjustifiable expense and delay", can be done to alleviate that prejudice. If so, that course should be followed in preference to an order refusing to entertain the Charter application.

The Crown in the case before me has not claimed to have been put at an unfair disadvantage by the late notice. Even if some prejudice was apparent, it could easily be cured here by only entertaining the Jordan motion towards the end of these proceedings. Ultimately, I do not see that the Crown position is supported by the holding in Hobeika.

Other Authorities

With respect to the other case cited by Mr. Ramsey, R. v. Kazman, 2018 ONSC 2196, it is my opinion that it too does not support the present request for a summary dismissal of Mr. Conley's application. Spies J.'s judgment is clearly informed by that in Hobeika. Spies J. does seem to put more emphasis (at para. 77) on the lack of "a satisfactory explanation for having failed to ask to assert [the accused's] rights sooner", however, that is due to the complicated even convoluted procedural history in Kazman. The decision in Kazman is clearly still informed to a high degree by the clear absence of a reasonable expectation of success for the motion in question.

Mr. Lamb has referred me to the decision of Melvyn Green J. of the Ontario Court of Justice in R. v. Keyes, 2017 ONCJ 5. In that case, the Crown sought the summary dismissal of the s. 11(b) motion on the basis that no mention had been made of that motion at the time of the setting down of the trial dates. Furthermore, while the defendant did respect the relevant filing date, the defence materials did not include "[a] chart or other breakdown of the relevant time periods with an apportionment of each to inherent time requirements, other neutral periods, Crown delay, defence delay/waiver and institutional delay" as required by the relevant local Practice Directive of the Ontario Court of Justice. The Court dismissed the Crown application finding that there was no requirement that the Crown be put on notice at the time a trial date is set of an impending or possible s. 11(b) motion and characterizing the lack of chart as having been a "modest non-compliance" with the Rules that did not cause any prejudice to the Crown's case. Mr. Conley's situation is somewhat different in that if Mr. Lamb had filed the materials by March 28, there would not have been a Crown motion to dismiss the defence application in a summary fashion. However, it is similar in that there has not been any prejudice to the Crown's case caused by his non-compliance with the Rules.

Conclusion

[24] In conclusion, it has been conceded by the Crown that the present defence motion meets the threshold viability test: it has a reasonable chance of success. Furthermore, I am not aware of any prejudice that has been caused to the Crown's case by the failure of the defence to respect the Criminal Rules of the Ontario Court of Justice. Finally, I note that a constitutional right will not easily be displaced by a failure to adhere to a rule or practice directive. Therefore, I will not grant the Crown request for the summary dismissal of Mr. Conley's application pursuant to s. 11(b) Charter.

Released: July 3, 2018

Signed: Justice David Allan Berg