Court File and Parties
Ontario Court of Justice
Date: September 7, 2018
Court File No.: Newmarket 16 06640 & 16 06638
Between:
Her Majesty the Queen
— and —
Neil Davis
Before: Justice David S. Rose
Heard on: September 5, 2018
Reasons for Judgment released on: September 7, 2018
Counsel
J. Arvizu — counsel for the Crown
M. Moon — counsel for the accused Neil Davis
Reasons for Judgment
Rose J.:
Introduction
[1] This is a ruling on trial scheduling. The accused is charged with Trafficking Cocaine, Possession of Cocaine for the purpose of Trafficking and Possession of Property in the form of money Obtained by Crime over $5,000.00. On July 5, 2017 the accused appeared before Justice Kenkel and elected trial in the Ontario Court of Justice. The Informations were laid in September of 2016 – 2 years ago.
Background
[2] On April 9, 2018 the case came before me for the scheduled 3 day trial but the accused did not attend when Court convened. A Bench Warrant issued. In the accused's absence counsel for the defence said that this case was on the cusp of being outside of the timeline for delay under s. 11(b) of the Charter outlined by the Supreme Court in R. v. Jordan. The accused did ultimately attend at the Courthouse, and at 11:30 am the Bench Warrant was rescinded. At that point counsel for the defence argued that I had no jurisdiction to hear the case. I dismissed that argument and received the accused's not guilty pleas. Counsel for the defence then brought an Application for Prohibition before the Superior Court. I declined to hear anything more on the case while it was in the Superior Court.
[3] On July 31 the Superior Court found that I had jurisdiction to hear the case, and ordered that the matter be returned to me to continue the trial, see R. v. Davis 2018 ONSC 4630 at par. 32. Justice Di Luca also ordered the accused to appear in the Ontario Court of Justice on August 15, 2018 to set a date to continue the trial. I am advised that the accused did not come to Court then, but trial dates of November 13 – 15 were set in his absence. I was not presiding that day so, when I learned that 3 days of trial were set, I asked the trial coordinator to have the Information brought forward before me so that the lawyers could confirm the accuracy of the trial time allotted. I asked that the accused attend with counsel for the defence.
[4] I have been advised by counsel for the defence that the accused has commenced the process to appeal Justice Di Luca's decision, by filing a Notice of Appeal in the Court of Appeal.
Trial Scheduling
[5] On September 5 counsel for the defence and counsel for the Crown appeared before me, but the accused did not. Counsel for the defence advised that he was not successful in reaching the accused. For that reason the conversation in Court was limited to confirming trial time estimates. I restricted the lawyers' submissions to those issues so as to avoid submissions regarding the merits or substance of any aspect of the case.
[6] The Crown says that the three days allotted is adequate to put its case in. I asked counsel for the defence if he agreed. He said that, notwithstanding his signature on the trial confirmation form, the 3 days allotted is inadequate. Counsel for the defence further argued that he only signed the trial estimate under protest because the accused had an intention to appeal Justice Di Luca's ruling to the Court of Appeal.
[7] Counsel for the defence says that there are now 6 additional Motions or Applications. They are:
An Application to recuse me as trial judge. If that fails then there will be;
An Application for Prohibition to the Superior Court;
Aside from #1 and #2, an Application for Administrative transfer of the Charge;
Aside from #1 and #2, Change of Venue Motion;
Aside from #1 and #2, an Application alleging Abuse of Process which seeks to have counsel for the Crown removed as the prosecutor;
Aside from #1 and #2, a Motion under s. 11(b) of the Charter alleging unreasonable delay.
[8] Counsel for the defence argues that the case cannot proceed while he has a live appeal from Di Luca J's order in the Court of Appeal. The Notice of Appeal, he argues, leads to an automatic stay of proceedings. I disagree. There is no automatic stay of proceedings in the circumstances, see R. v. Boutin 1990 CarswellQue 1905 (C.A.). I asked counsel for the defence if he had any better authority than Boutin, and he could not provide any. The trial will therefore proceed as outlined above unless there is an Order which supersedes or otherwise displaces Justice Di Luca's. Any such Order should be brought to my attention immediately so that trial time may be given to other cases.
Order
[9] Under the circumstances, and given the age of this case, the Notices of Application and supporting materials for the arguments outlined in #1– #6 must be filed no later than September 28, 2018. At that time the trial coordinator will have the case brought before me to fix argument time well in advance of November 13, 2018. Any other Pre-Trial Motions brought after then will only be heard with leave.
[10] Counsel for the defence advises that the accused is not aware of the November trial dates. Under the circumstances a Bench Summons will issue ordering him to appear on November 13, 2018 for trial.
Released: September 7, 2018
Signed: Justice David Rose