Court File and Parties

Date: March 8, 2018 Information No.: 16-1534 Ontario Court of Justice

Her Majesty the Queen v. James Ridout

Ruling on Section 11(b) Application

Delivered by: The Honourable S.M. Latimer Location: Kitchener, Ontario Date: March 8, 2018

Appearances

• A. McMaster – Counsel for the Provincial Crown
• D. McCarthy – Counsel for James Ridout

Ruling

LATIMER J. (orally)

Introduction

James Ridout was charged with robbery on March 13, 2016. His trial dates are currently scheduled to end tomorrow, March 9, 2018. He has brought an application under section 11(b) for a stay of proceedings based on alleged unreasonable period of time to trial. These are my Reasons for Decision on the application.

In July 2016 the Supreme Court of Canada leveled the section 11(b) cityscape and rebuilt anew. In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, 335 C.C.C. (3d) 403, the majority of the court eschewed the old reasonableness model for an approach premised on presumptive ceilings of delay. For trials in the Ontario Court of Justice, an 18 month ceiling was constructed. The relevant total time for consideration is total delay minus defence delay. This creates what is referred to as net delay. If net delay is below 18 months, the time to trial is presumptively reasonable and it is for an applicant to otherwise convince a court that it is nevertheless unreasonable. If the net delay exceeds 18 months, a stay of proceedings will follow unless the Crown can convince a court that the delay is reasonable within the confines of the post Jordan jurisprudence.

I note that in this case, while technically a transitional case because it started in the system before July, 2016, the fact that most, if not almost all of the relevant decisions and actions occurring post July, 2016, suggest to me that this factor would have little, if any, significance in the analysis. Both counsel concur and agree with that conclusion.

The proceedings were uneventful until December, 2016, when original counsel brought an application to be removed from the record. A significant issue on this application, in my view, is the characterization of that event, and the delay that resulted from that event. The time from charge to counsel removal in December 2016, was approximately nine months, and there were approximately ten months from the charge to the anticipated first day of trial. That ten month time period clearly counts towards net delay.

Mr. McCarthy's submission is that, with the exception of approximately two months in the summer of 2017 when the evidentiary record reveals a loss of contact between the applicant and his current counsel's office and a potential application to be removed from the record, which was ultimately abandoned when contact was re-established, the entire time period between December 2016, and March 9, 2018 is something other than defence delay such that it would count towards net delay. This would put net delay, in his submission, in excess of 22 months. In the event of such conclusion, the Crown would have little to say that would rebut the presumptive stay of proceedings.

In my mind, the key issues in dispute on this application are:

1. How do I characterize the time following original counsel's removal and relatedly, does delay in 2017 attributable to either Legal Aid Ontario, the Crown Attorney, or the court by virtue of the subsequent 2017 case management/intake phase – assuming there is any delay in any of these three categories – does that amount to defence delay or something other in the context of this case such that it would count towards net delay?

Analysis

Again, the principal determination, in my view, is to characterize by the impact that removal of counsel had in December, 2016. Is it defence delay? For the below reasons I believe at least some of the resulting delay is defence delay, such that the total net delay falls appreciably under 18 months and the applicant cannot succeed on this application.

In R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, 349 C.C.C. (3d) 488, the subsequent companion case to Jordan, a unanimous court spent considerable time discussing what defence delay means. I note in particular at paragraphs 28 through 35, to which both counsel have directed me to, and the specific language in some of these passages.

I have reviewed that decision and Jordan in coming to my result in this matter. It is clear to me, having reviewed the entirety of these Judgments, that the Supreme Court defined defence conduct as inclusive of defence counsel conduct. More recently on February 23, 2018, the Court of Appeal released a case called R. v. Faulkner, 2018 ONCA 174, and at paragraph 134 and 135 Justice Watt writing for the court summarized the post Jordan definition of defence delay as follows:

"Defence delay has two components. First is delay waived by the defence. The waiver can explicit or implicit, but it must always be clear and unequivocal. This requires that the accused have not only full knowledge of his/her rights but also of the effect the waiver will have on those rights. The waiver is not of the 11(b) right itself, rather only the inclusion of specific periods in the overall assessment of reasonableness. (Jordan at 61)

The second component of defence delay is delay caused solely by the conduct of the defence. This takes in situations in which an accused acts, either directly to cause delay or not legitimately taken to respond to the charges, but rather are shown to be a deliberate and calculated tactic to delay the trial. (Jordan at 63)

Frivolous applications and requests as well as the failure of the defence to be ready when the Crown and court are prepared to proceed, falls into this category. (Jordan at 63 and 64)"

I note as well at paragraph 64 of Jordan, where the majority of the court said:

As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed and the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. 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. This should discourage unnecessary inquiries into defence counsel's availability at each appearance. Beyond defence unavailability, it will of course be open to trial judges to find that other defence actions or conduct have caused delay.

The paragraph ends with the court citing the Elliott decision from the Ontario Court of Appeal. I know the case's facts include where defence counsel's conduct essentially ran amok during the trial proceedings creating some rather significant lengthy delays.

Returning to the present case – this case does not include waiver. It is the second component of defence delay that is presently relevant. The relevant facts are as follows:

Original counsel, proximate to the December 22, 2016 eventual date for the removal application, ascertained that he was in a conflict of interest. The applicant, for what it is worth, apparently agreed. The Crown did as well. The application proceeded on consent. I note on January 18, 2017, when the matter was in Justice Lynch's court and a description of the events were provided, Justice Lynch said, while the Crown Attorney was indicating that what occurred is not the fault of the Crown, and Justice Lynch said:

"No, clearly it's the defence ... "

There were subsequent dates following January, 2017, that were filled with Legal Aid issues involving a number of aspects, one of which is that the applicant had not been contributing, but had completed the contribution as required on his agreement by the end of February, 2017. There were changes in his personal circumstances that, while it is not clear to me how they were relevant to Legal Aid, were being requested and there was some deficiency on Mr. Johnson's part in providing information that Legal Aid required. Eventually, the Certificate was transferred and Mr. McCarthy, whose office was consistently, even without a formal retainer, attempting to move this matter forward, was in a position where a Crown pre-trial was held, a judicial pre-trial and ultimately a trial date was set.

In the summer the transcripts revealed that Mr. McCarthy, at a certain point, lost contact with the applicant. The applicant also fell off the radar from Legal Aid Ontario, I believe, causing the Certificate to be canceled at a certain point. That was remedied and on August 18, 2017, a trial date was set for six months later, which are the trial dates that I am presently engaged in.

Is counsel's application to be removed defence delay? Again, I see this as the key issue. I am assisted by the Court of Appeal's decision in R. v. Baron, 2017 ONCA 772 in coming to the conclusion that it is. The facts in Baron as discussed with counsel involve a fraud prosecution with multiple accused and one lawyer representing the three parties up until a point prior to the first preliminary inquiry dates. I believe it was approximately for 15 months where he was removed from the record for a potential conflict. Justice Trotter, writing for the court, says at paragraph 48, which is relevant to the present proceeding:

"I would allocate the entire time between the date set for the start of the first preliminary inquiry, August 2, 2011, and the date set for the commencement of the second preliminary inquiry, February 13, 2012, that is 6-1/2 months, as defence delay. This delay was caused by the removal of counsel from the record and was the responsibility of all three accused. On appeal, counsel for the Crown submits that the entire period of time from counsel's removal, April 13, 2011, until the second preliminary inquiry, February 13, 2012, namely 10 months, should be deducted. While this position is not unreasonable, I would apply only 6-1/2 months because the possibility of proceeding on the original dates might also be said to have been frustrated by other factors."

Each case is fact specific. I note, however, that in Baron it seemingly was counsel's decision to remove himself and not Mr. Baron himself, yet the Court of Appeal had no difficulty in coming to the conclusion that this was defence delay. In my mind it fits comfortably with the definition of that term that comes from Jordan and Cody: "Delay caused solely by the defence". It certainly was not Crown or institutional delay. It came exclusively from the defence side of the ledger.

I am also assisted in coming to this conclusion by R. v. Richard, 2017 NBQB 11, para 38; R. v. Dugong, 2017 ONSC 7277, para 132; R. v. Ladouceur, 2016 O.J. 6816, para 15.

I note as well that the Jordan majority accepted the original application judge's decision to attribute four months to the defence because Mr. Jordan changed counsel shortly before a trial date necessitating an adjournment. (See Jordan at paragraph 120) In the circumstances of this case, I do not see a great deal of factual difference between what happened in Jordan and what occurred here. The timing of the conflict in the circumstances of this specific conflict seems to fall at the feet of the applicant. I see no basis in law or fact to separate the actions of the applicant with those of his counsel for the purpose of this application.

I do not accept that I can distinguish the evolution of the conflict in Baron with the one that arose presently. Suffice it to say, everyone agreed in the present case there was a conflict. The applicant did not have a trial in January 2017, because he no longer had a lawyer because of the conflict. That amounts to defence delay pursuant to the authorities.

Returning to the finding in Baron, I intend to follow Justice Trotter's conclusion on behalf of the court for a number of reasons, not the least of which is that it makes sense to me. I note as well Justice Trotter subtracted the entire period between the two preliminary inquiry dates. Applying such an approach to the present case would mean that net delay ended on January 9, 2017, approximately ten months. It ended on the first trial dates. Such a finding would, of course, end this application. However, the applicant makes a related argument that these proceedings were extended beyond a reasonable period in 2017 because of Legal Aid Ontario inaction and the Crown and court action.

I note that each set of facts warrant its own conclusion, and I am not satisfied that Justice Trotter meant to say that in all cases where counsel removes after a trial date that the entire resulting time period amounts to defence delay. That would ignore the factual distinctions that occur in different 11(b) applications. Different cases take different roads to trial. These differences matter and may lead to differing results.

In the present case, however, I do not believe that a different result follows an assessment of what occurred in 2017, following the adjournment of the January trial dates. The defence delay resulting from the loss of the first trial dates, at minimum, created six months of delay (the approximate period of time required to set and conduct the new trial) which would take the net delay below 18 months. Specifically, the time from August 18, 2017 to March 9, 2018, when the parties were next in a position to set a trial date and the current dates that were in fact set up until March 9, is six months, 20 days.

Totalling the relevant delay from that time period and the earlier 2016 period notes, which was approximately ten months, is in the range of 16 months 20 days, which would put the onus on the defence to establish that the delay was nevertheless unreasonable.

Review of the 2017 time periods, that is the time after the first trial date was vacated, reveals to me the following:

1. The necessity for obtaining new trial dates is properly characterized as defence delay because the loss of the first date was because of counsel's removal.

2. Because of the applicant's stumbles with regard to his Contribution Agreement, some of the Legal Aid Ontario delay that followed is his responsibility. Some of it relates to the inner workings of the Legal Aid system, for which I am ill-equipped to criticize. I am prepared to accept that the time period required to get the Certificate transferred was not unreasonable and still part of defence delay in the circumstances.

3. What follows I have more difficulty with. There is delay in getting Mr. McCarthy a copy of the disclosure. For reasons that came across during my dialogue with him, I accept that the Crown's disclosure obligation is fact specific and context dependent. I do not accept that it was reasonable, or at least entirely reasonable, for the Crown to simply point Mr. McCarthy to the contents of another lawyer's file and tell him to get a copy of the disclosure. Given the months this case waited for Legal Aid Ontario to be sorted out and the Crown Attorney's consistent, on the record comments about concerns regarding delay, surely someone in the Crown's office could have made a second copy of disclosure pending Mr. McCarthy's retainer which seemed imminent. It appears to me, from my vantage point on this dais, that the disclosure was not voluminous in this case.

4. Requiring counsel to go through a Crown pre-trial and a second judicial pre-trial, as I understood occurred, may make sense from a trial management perspective, indeed I think it does, but I am not satisfied or convinced in this case that that time should be counted as defence delay. I would count it as delay that contributes to net delay.

5. The time conceded to be defence delay over the summer of 2017, which is two months, when the applicant fell off the radar from Legal Aid Ontario and his lawyer, is properly conceded to be defence delay.

Conclusions on Time Periods and Total Net Delay

There is ten months' delay in 2016. There is approximately three months, March 24 to June 23, 2017, of further delay in 2017. The remainder is, in my characterization, defence delay, that is June 23, 2017 to August 18, 2017 as conceded by the applicant and August 18, 2017 to March 9, 2018. That time period is defence delay arising out of the first trial dates adjournment and the circumstances attached.

I should say I am characterizing the time periods in the best possible light for the applicant in coming to the conclusion that there are 13 months of net delay. Mr. McMaster's argument that Baron necessitates the conclusion that the entire time period after the first dates were vacated is defence delay is not without merit. There is part of me inclined to that conclusion. I do not believe there is any meaningful difference between the nature of the conflict in Baron and the one in this case.

For reasons as I have attempted to canvass in this oral judgment, that even on a more generous interpretation of defence delay, the net delay would still be below 18 months. Relying on my ultimate finding of 13 months net delay, I would not be convinced a stay is nevertheless established. This is not such a clear case. I note that in that regard that while Mr. McCarthy and his office were certainly diligent while involved in this case, the applicant throughout these proceedings was not similarly so.

I accept there was delay caused in early 2017 because of his failure to keep up with his Legal Aid Contribution Agreements. I note as well that he essentially dropped off the map in mid-2017 causing the Certificates to be canceled and Mr. McCarthy to begin a process to be removed from the record. Viewed in its entirety, I am not satisfied that the applicant consistently attempted to move his case along. While Mr. McCarthy's office and staff certainly moved with dispatch, the applicant did not.

Disposition

The 11(b) application is dismissed. I am appreciative of counsel's submissions and assistance with some of the thornier issues on this application. Thank you.