Court File and Parties

Date: May 7, 2018

Information No.: 2811-998-16-22167-00

Ontario Court of Justice

Her Majesty the Queen

v.

M.P.

Proceedings

Oral Ruling on Section 11(b) Application

Before the Honourable Mr. Justice P.C. West

on May 7, 2018 at Oshawa, Ontario

Publication Ban

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE OF CANADA PURSUANT TO AN ORDER OF JUSTICE OF THE PEACE MECOY, ONTARIO COURT OF JUSTICE, DATED NOVEMBER 14, 2016

Appearances

N. Trbojevic – Counsel for the Crown

C. Da Cruz – Counsel for M.P.

Ruling

WEST, J.: (Orally)

Factual Background

The facts of this matter are relatively simple as it relates to the delay issue. I believe the charges were first laid on October 30th, 2016 as the date that the information is sworn. Mr. M.P. was in court on that date where he appeared with the assistance of Duty Counsel and was released on a surety bail.

I am not going to go through all of the adjournments. I do not believe it is necessary. The matter proceeded through the courts. The disclosure requests were made. There was evidence in my view both from the Crown's conduct and the defence conduct in this matter that there was a desire on everyone's part to have this matter dealt with as expeditiously as possible.

The defence was prepared to set time for a trial in this matter without having received all of the text messages or the audio recordings that ultimately were provided by way of disclosure that were taken from Mr. M.P.'s cell phone as a result of a search warrant and examination by a police technician. Those were ultimately provided in a timely fashion to the defence prior to the trial dates that were set for the 29th, 30th and 31st of January 2018.

Originally there had been a sexual assault charge and ultimately the Crown decided, because it was outside the six month limitation period to proceed summarily, that that charge would be withdrawn. It was. There originally was a Section 276 application that was scheduled to be heard on the 2nd of November 2017, which ultimately was abandoned by the defence.

The salmon coloured pre-trial form that was filled out by the pre-trial judge Justice De Filippis indicates the three days that were set would be broken down to one and a half to two days for what was anticipated to be two witnesses for the Crown. The defence indicated they had zero to one witness to call and the defence evidence would take about a day.

There was some mention in the submissions and the materials that were provided that there may have been statements that were made by Mr. M.P. that the Crown ultimately decided not to lead, which also in my view indicates the desire of the Crown to proceed expeditiously with this matter.

As I have indicated all parties proceeded with this matter in a fashion that indicated the desire to deal with the matter within the 18 month time period that has now been set by R. v. Jordan in the Supreme Court of Canada 2016 SCC 27.

Trial Proceedings and Adjournment

The matter did not complete on January 31st, 2018 which was the third day set aside for trial. The defence advised on that date that they had a second witness that they intended to call. Defence indicated the witness would be short, but we were not going to get to oral submissions with respect to the evidence that had been heard over three days and on that basis a new date was going to have to be sought and it was suggested by the defence that perhaps the witness, although short, would be best to call that witness on whatever the new date was.

There was no discussion when counsel came back having set the date of May 7th, 2018 as the continuation date for this trial. It would have been the fourth day, a full day was set aside. Just as a side note the evidence of the witness R.P. (Mr. M.P.'s father), was completed within about 45 minutes to an hour this morning and then oral submissions by both counsel were completed I think sometime around a quarter to twelve a.m. and the matter came back shortly after 12:15 for the argument of the 11(b) application which was brought by the defence on March 22nd, 2018.

As I indicate there was a date that was offered to both counsel by the trial coordinator of February 5th, 2018 for continuation. Mr. Da Cruz was not available. The Crown was available as was the Court. No other dates were offered by the Court, but no other date was suggested by either Mr. Trbojevic or Mr. Da Cruz as to earlier dates when this matter could continue and nothing was said when counsel came back to court with respect to the date of May 7th that in fact it was eight days past the 18 month limitation imposed by the Supreme Court of Canada as a presumptive ceiling in Jordan.

I was not aware of a problem with 11(b) until I received the application by the defence on March 22nd, 2018. At which point I instructed the trial coordinator to see if there were earlier dates that might be available to have this matter proceed within the presumptive ceiling of 18 months. Three dates were provided to counsel. I do not know if Mr. Da Cruz was available on April the 9th because Mr. Trbojevic who was in touch with the trial coordinator through emails indicated that was the first day of a first degree murder prelim that he was involved in and he would not be available. The other two dates of the 5th and 6th of April, he could make himself available despite the fact that those were prep days for his murder prelim.

Mr. Da Cruz had a problem with his email apparently that is indicated in the emails between the trial coordinator and the Crown indicating they had not received responses from Mr. Da Cruz. He was contacted by phone and he advised he was not available on the 5th or 6th of April to continue the trial and May 7th, today's date, remained as the date for the continuation.

Jordan Framework

The Supreme Court of Canada in Jordan laid down a new framework involving as I have indicated a presumptive ceiling beyond which delay is presumed to be unreasonable and for trials in the provincial court that presumptive ceiling is 18 months from the laying of the charge to the actual or anticipated end of the trial. I will not deal with the presumptive ceiling for the Superior Court.

In a recent judgment of R. v. Grewal, a decision of Justice P.F. Monahan in the OCJ [2018] O.J. No. 887, he summarizes the framework set out in Jordan as follows. This is I think one of the best summaries that I have read and I adopt what he says.

Summary of Jordan Framework

1. A trial Court hearing an 11(b) application should calculate the total delay from the charge to the anticipated end of the trial (Jordan at para. 47).

2. The total delay. From the total delay, the Court should deduct defence delay (Jordan para. 66). And the delay associated with discrete exceptional circumstances (Jordan at para. 75 and 82).

3. Defence delay has two components. The first is delay waived by the defence. The other is delay caused "solely or directly" by defence conduct including circumstances where the defence uses a deliberate tactic to delay the trial. A further example of defence delay will occur where the Court and the Crown are ready to proceed and the defence is not. (Jordan para. 60 to 64, see also R. v. Cody 2017 SCC 31, paras. 28-35).

4. If the delay is above the presumptive ceiling then it is presumptively unreasonable. The Crown can rebut this presumption by showing that the delay is reasonable on the basis of exceptional circumstances. (Jordan at para. 68). This is the only basis upon which the Crown can justify delay above the ceiling and avoid a stay. The absence of prejudice and cases above the ceiling irrelevant (Jordan para. 81).

5. As indicated above delay caused by discrete exceptional circumstances is to be deducted from the total delay to determine if the ceiling has been reached. The Crown and the justice system should attempt to mitigate if possible any delay resulting from a discrete exceptional circumstance. The Crown and the justice system need to prioritize cases delayed by unforeseen events. If that does not occur when it reasonably could have, then the entire period of delay occasioned by the discrete exceptional event may not be deducted from the total delay (Jordan para. 75).

6. Discrete exceptional circumstances may be an illness, an extradition proceeding or an unexpected event in the trial. An unexpected event at trial might include a recanting witness which causes the Crown to need to change course. Further, if a trial goes longer than expected despite good faith efforts on both sides to estimate the time required, this too may amount to an exceptional circumstance resulting from an unavoidable delay. Categories of exceptional circumstances are not closed. Trial judges are to be alive to the practical realities of trials and are to use their good sense and experience in determining what will constitute a discrete exceptional circumstance (Jordan para. 69, 71-74 and 81).

7. Exceptional circumstances cover a second category other than discrete events. Namely cases that are particularly complex. These are cases that due to the nature of the evidence or the issues require an inordinate amount of trial or preparation time such that the delay is justified (Jordan para. 77).

8. Below the presumptive ceiling a stay may still issue if the defence can establish 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. In the absence of these two factors, the stay application will fail (Jordan para. 82).

9. As concerns defence initiative constituting meaningful and sustained steps, the Court should consider what the defence could have done and what it did. It is a matter of substance rather than form. It is not enough to put on the record that the defence wanted an early trial date. Having said that, the defence must act reasonably and not perfectly (Jordan paras. 84-85).

10. As to whether the time took markedly longer than it should have this will require consideration of the reasonable time requirements of a case which derived from a variety of factors including the complexity of the case, local considerations and whether the Crown took steps to expedite the proceedings and other factors (Jordan para. 87).

11. The Supreme Court observed that they expected stays below the ceiling would be "rare" and should be limited to only in clear cases. In setting the ceiling, the Supreme Court factored intolerance for reasonable institutional delay (Jordan paras. 48 and 83).

Application of Jordan Framework

This is not a transitional case. This case arose after Jordan was decided in the Supreme Court of Canada and so the Jordan principles apply.

One of the issues before Justice Monahan had to do with defence delay where defence was not available when the Crown and the Court were available. Starting with paragraph 14 and I am just going to quote some things from his decision. It says this:

I note that both the Supreme Court and the Ontario Court of Appeal have found defence delay where the Court and Crown are available and the defence is not: Jordan paras. 60-64; R. v. Williamson, [2016] 1 S.C.R. 741 at paras. 21-22; and R. v. Cody, 2017 SCC 31, paras. 28-35. See also the decisions of the Ontario Court of Appeal in R. v. Coulter (2016), 340 C.C.C. (3d) 429 (OCA) at paras. 73 and 76.

And a precursor I think to the Mallozzi decision that I have been referring to and I have as an unreported decision recorded at 2018 ONCA 312, decision released on 2018 March 27.

There was a precursor to that case, I think with a panel of Justice Feldman, Justice Pardu (who was also on the second Mallozzi) and Justice Bonotto in a decision at 2017 ONCA 644, [2017] O.J. No. 4303. In that case at paragraphs 42 and 44.

There has been no discussion in those cases that I have just indicated of the old law under R. v. Godin, 2009 SCC 26, that the defence delay did not run from the first date offered.

Justice Monahan goes on to say:

Having said that in addressing the issue of defence delay there is a complete absence in these cases of any analysis or consideration of a question of how many dates defence counsel were offered which of Godin survived one might reasonably expect to see.

It goes on at paragraph 15. He cites a case of R. v. Albinowski, 2017 ONSC 2260, which the Superior Court suggested that Godin survived under Jordan, but Justice Monahan indicates that the case was distinguishable from the one that was before him as it involved multiple defence counsel, which raises different issues when one counsel is available and the other is not.

Albinowski was not a summary conviction appeal, which would have been binding on the Ontario Court of Justice and Justice Monahan quoted from an Ontario Court of Appeal decision in R. v. Gopie, 2017 ONCA 728, [2017] O.J. 4963 (CA), which was decided after Albinowski dealt with the issue of defence delay caused by a co-accused and arguably took a different approach.

Justice Monahan then noted that there were other Superior Court judges who appear to have taken the approach that when the Crown and the Court are available and the defence is not, defence delay arises. He quotes the following cases: R. v. Ghandi, 2016 ONSC 5612, [2016] O.J. No 4638 SCJ, a decision of Justice Code at paras. 40-41; R. v. Frail, [2017] O.J. No. 5234 SCJ, decision of Justice Schreck at para. 36. Those cases do not discuss Godin. But it is his view and I agree that for non-transitional cases the Supreme Court in Jordan, Williamson (that I have cited) and Cody and followed by the Ontario Court of Appeal in Coulter, the first Mallozzi and the second Mallozzi have implicitly overruled Godin. The direction from the Supreme Court is that if the Crown and the Court are available and the defence is not, then that amounts to defence delay regardless of the number of dates offered or whether the defence was available earlier, but the Court was not. It goes from the date it was offered.

That is the first issue it seems to me which may be dispositive of this case in terms of the 11(b) application, but I do want to address some of the other things that are raised in Jordan and I would say this with respect to Godin and I do not have the cases before me, but I do know that even under the old regime of Morin and the decision in Godin, there was always an apportioning of the time when the defence was not available until the trial date was set in assessing whether or not it was outside the limit imposed by the Morin Court. Even in this case there were three dates ultimately offered to Mr. Da Cruz, none of which he was available - February 5th, 2018 and April 5th and 6th, 2018. And quite frankly, even if because we are only dealing with eight days past the 18 month presumptive ceiling imposed by Jordan, certainly some greater portion than those eight days. Even under the Godin regime this would have been attributed to defence delay. None of those cases which I am aware of were provided to me by Mr. Da Cruz.

I also find persuasive the comments made by Justice Lee Ann Martin in the Provincial Court in Manitoba in a case that was provided to me by Mr. Da Cruz reported at 2018 MBPC 14. Where Justice Martin disagreed in effect with the argument put forward by Mr. Da Cruz and she cites Williamson. Mr. Da Cruz did not give me Williamson. She also cites a decision of the Manitoba Court of Appeal because it is her view that the conclusions argued by Mr. Da Cruz not only are they inconsistent with the pronouncements in Jordan and Williamson and a decision of the Manitoba Court of Appeal in Schenkels, it is completely inconsistent with the new Jordan framework for assessing unreasonable delay. She goes on to say at paragraph 37:

The 18 month presumptive ceiling for matters in Provincial Court takes into consideration institutional delay and other factors which are necessary to bring a matter to hearing. While in some cases the first day available for hearing may not be reasonable in the particular circumstances of a given case due to the procedural requirements of that case, when a matter is ready for trial and the Court and Crown are available to proceed, the unavailability of defence counsel should count towards defence delay. This is by no means a penalty against defence counsel, it is simply a matter of apply the Jordan principle that a matter should take a maximum of 18 months.

I agree with those comments. But I also focus on what has been identified by Justice Monahan in Grewal under number six where he indicates and this is reflected in Jordan at para. 69, 71-74 and 81. "That if a trial goes longer than expected despite good faith efforts on both sides to estimate the time required, this too may amount to an exceptional circumstance resulting from an unavoidable delay".

Exceptional Circumstances Finding

It is my view having regard to the manner in which this matter was pre-tried on a number of occasions, both counsel exercised the appropriate traditions of counsel and frankly the roles that have been imposed by Jordan and Cody upon Crown counsel and defence counsel in setting dates expeditiously and everyone having to take responsibility for setting those dates. This is one of those cases where through no fault of anyone because I do not agree with Mr. Da Cruz this further delay was not caused by the Crown's cross-examination of Mr. M.P.. It was not caused by Mr. Da Cruz's cross-examination of Ms. C.C. Both cross-examinations, both examinations in-chief of those two key witnesses in this trial were necessary and helpful, to be frank, to me as the trier of the fact and given the good faith efforts that I have found with respect to both sides in an attempt to estimate the appropriate time, unfortunately very experienced trial judge who was the case management judge and pre-trial judge in this matter and two counsel who have a considerable amount of experience in this courthouse underestimated the amount of time and I find that that is an exceptional circumstance which results from unavoidable delay.

Decision

So as a result, it is my view that the delay frankly from the 31st of January until today's date is neutral time, which is an exceptional circumstance, or if I would find from February 5th a portion of that time to May the 7th, which is a three month period, even taking a month and a half and splitting that time in half, we are still well under the 18 month presumptive ceiling.

On that basis this application is dismissed.

Final Comment

One final comment that I will make is that had this matter been raised when the new date was set, I can indicate that I would not have allowed a date to be set that was eight days after the presumptive ceiling of 18 months unless there was an agreement by all parties that there were no 11(b) issues being raised and if there were 11(b) issues being raised then I would have instructed counsel to go back to the trial coordinator and find an earlier date. That did not occur.