Court File and Parties
Ontario Court of Justice
Date: 2018-10-17
Court File No.: Newmarket 16 06640 & 16 06638
Between:
Her Majesty the Queen
— and —
Neil Davis
Before: Justice David S. Rose
Heard on: October 16, 2018
Reasons for Judgment released on: October 17, 2018
Counsel
A. Ghosh — counsel for the Crown
M. Moon — counsel for the accused Neil Davis
Judgment
Rose J.:
[1] This is a second ruling on trial scheduling. Mr. Davis 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 Mr. Davis appeared before Justice Kenkel and elected trial in the Ontario Court of Justice. The Informations were laid in September of 2016 – some 2 years ago.
[2] The Accused moved for prohibition after arraignment but before any evidence could be heard. On July 31, 2018 Di Luca J. ordered that the trial continue before me; see R. v. Davis 2018 ONSC 4630 at par. 32. On September 7 counsel for both the Defence and Crown appeared before me for trial scheduling submissions. On September 9 I ruled that the Defence pre-trial motions should be filed, along with supporting materials no later than September 28. In that ruling I said,
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.
See R. v. Davis 2018 ONCJ 604.
[3] Mr. Davis has appealed Justice Di Luca's ruling and that Appeal is currently scheduled to be heard in the Court of Appeal on November 9. I was given an endorsement of Doherty JA dated October 12, 2018 which set deadlines for the Appeal and explicitly refrained from speaking to the trial court's trial management function in the interim.
[4] Mr. Davis filed a Notice of Application on October 4, 2018. No supporting materials were attached. That Application lists the following Pre-trial Motions:
A ruling that I am not the trial judge and the case should be heard by another judge;
A Motion for me to recuse myself;
An order staying the proceedings because of a violation of the Accused's rights under s. 11(b) of the Charter;
A Motion for Change of Venue;
A Motion to recuse Mr. Arvisu;
A Motion to stay the proceedings because of Crown conduct.
[5] At the outset of the appearance on October 16, 2018 Mr. Moon asked to adjourn the trial date of November 13, 2018 and turn it instead into a "to be spoken to" date. On that basis Mr. Davis would waive his rights flowing from the delay under s. 11(b) of the Charter, and abandon all but Motion # 4 above, namely a Motion for Change of Venue. Mr. Ghosh opposed the Motion and I dismissed Mr. Davis' Motion for an adjournment for oral reasons.
[6] The issue now is scheduling the Motions which remain alive, other than the s. 8 Charter Motion which is to be heard during the course of the trial on the merits. Mr. Moon is not available to argue any of the Motions until the first day of trial, namely November 13. He resisted my suggestion that we hear argument on October 16, and expressed surprise that I had wanted the various motions to be heard prior to November 13, notwithstanding my ruling of September 9. I offered the defence days next week to hear the arguments. The Crown advised that it would accommodate whatever time was necessary before November 13. As a result there is no other option other than to turn the first day of the trial, November 13, into a Motions day. It is regrettable that the pre-trial motions could not be scheduled in advance.
[7] Mr. Moon in submissions abandoned Motions #5 and 6.
[8] There are therefore three Motions which require rulings before the trial can continue. They are:
i) A Ruling on whether I am the trial judge;
ii) A Recusal Motion. Mr. Moon says that he will be filing transcripts in support of this. Mr. Ghosh will be arguing for a summary dismissal of this argument.
iii) Change of Venue. Mr. Moon advised that he does not expect to file any evidence. The Defence says it will provide a case brief.
Ruling on Trial Judge Status
[9] As regards #1 Mr. Moon's argues that I am not the trial judge, and asks for a ruling on the issue without any further argument or materials. I would reject that argument. Mr. Davis appeared before me on April 9, 2018 and entered a plea of not guilty to all charges. The case was marked for trial. On July 31, 2018 Di Luca J. ruled that "The matter is returned to Justice Rose to continue the trial". His Honour gave that ruling in the capacity of a supervisory court. On April 9, 2018 Mr. Davis was content to commence his trial in front of me, subject to the jurisdictional issue. No reason has been given for a change of position. For these reasons I will continue the trial.
Trial Location and Judicial Discretion
[10] I was also asked, with some vigour, if I was going to be taking steps myself to have this case transferred out of Newmarket. At par. 31 k. of his ruling, Di Luca J. said that,
…it would be open to a trial judge when confronted with an information alleging an offence committed in another region, to refer the matter to the Chief Justice or Regional Senior Justice for a transfer under the provision of the Courts of Justice Act, see R. v. Garbera, supra, at para. 32.
[11] Mr. Moon argues that I should now do just that. I disagree for the following reasons. First, Mr. Davis has given the Court no evidence of prejudice flowing from the trial in Newmarket. Indeed, on April 9, 2018 Mr. Moon could provide no submissions about prejudice from the location of the trial. Second, an appeal will be heard in the Court of Appeal on this very issue in three weeks. Mr. Davis wants a ruling from the most senior court in the province on his trial location issue. He is entitled to it without further commentary from me. Lastly, I can imagine cases where the trial judge might want to move the issue of trial location on his or her own motion. That might include a situation where the accused is unrepresented and complains about prejudice flowing from the trial location. In such cases the trial judge has a different obligation to ensure trial fairness, including some element of pro-activity. But here Mr. Davis is ably represented by counsel who is arguing for a change of venue. Were I to force the issue on my own motion I would be impermissibly entering the fray.
Charter Delay Motion
[12] Mr. Davis will also be bringing a Motion to stay the proceedings for delay under s. 11(b) of the Charter. No transcripts have been filed, nor has a factum been filed. That Motion will be scheduled once it has been perfected. No time will be assigned to that argument at this time.
Scheduling of Remaining Motions
[13] Depending on the outcome of the recusal Application, the Change of Venue Motion will be argued on November 13, 2018. Mr. Moon will have 1 hour to make that argument. The Crown will have 10 minutes to request a summary dismissal.
[14] The Change of Venue Motion will also be argued on November 13, 2018. Mr. Moon will have 90 minutes to make the argument. The Crown will have 1 hour to reply. Case briefs should be filed not later than November 8. Brief written submissions from both Applicant and Respondent would be helpful.
Concerns Regarding Successive Applications for Prerogative Relief
[15] I was told in submissions today by the defence that if I do not recuse myself on November 13, 2018 a Motion for Prohibition will be brought forthwith. Mr. Moon also said that if I rule that the defence bears the burden of proof on the change of venue application then there will be a similar review in the Superior Court on that issue too. As the Crown conceded in Court, Rule 43 of the Superior Court Rules of Practice will therefore preclude the trial continuing – in the event that the defence does not prevail on these issues. Rule 43 of the Superior Court Rules reads:
Rule 43 Extraordinary Remedies
Application of the Rule
43.01 This rule applies to applications in criminal matters by way of certiorari, habeas corpus, mandamus, procedendo and prohibition, including applications to quash a subpoena, warrant, conviction, inquisition or other order or determination and applications for discharge of a person in custody.
43.03
(2) Where an applicant seeks to quash a warrant, conviction, order or determination, other than a subpoena or warrant to compel the attendance of a witness, there shall be endorsed upon the notice of application a notice in the following form addressed to the Court Services Manager or coroner or as the case may be:
(5) Subject to subrule (6), service of a notice of application to quash under subrule (2) upon a provincial court judge, justice or justices, coroner, or as the case may be, suspends the proceedings which are the subject of the application.
[16] Only a Judge of the Superior Court may then order continuation of the trial, see Rule 43.03(6). It is not for me to pass comment on the merits of any such appeal, particularly where there is no present argument or motion. But I would not leave the submission without commenting that where, as here, there has already been one application for prerogative relief, further multiple successive procedures raises the spectre of the trial being again delayed by virtue of Rule 43.03(5). The defence position amounts to a casual resort to Rule 43 which is not contemplated in the jurisprudence, see Re: Madden and the Queen (1977), 35 C.C.C. (2d) 381 (Ont. H.C.) at 384. If relied on in perpetuity Rule 43 may well preclude a trial in the Ontario Court ever being heard on its merits. Surely that is antithetic to the best interests of the administration of justice.
Released: October 17, 2018
Signed: Justice David Rose