Court File and Parties

Ontario Court of Justice

Date: 2018-10-24

Court File No.: Brampton 15-12704

Between:

Her Majesty the Queen Respondent

— and —

Sebastian Camargo Applicant

Before: Justice M.M. Rahman

Application heard: September 17, 2018

Reasons for Judgment released: October 24, 2018

Counsel:

• Ikdeep Singh, counsel for the respondent
• Martin Montes, counsel for the applicant

Reasons for Judgment

RAHMAN, J.:

1. Overview

[1] On April 19, 2018, I found the applicant, Sebastian Camargo, guilty of impaired driving and not guilty of driving with excess blood alcohol (over 80). The applicant asked for an adjournment to pursue an application to stay the proceedings because of unreasonable delay. The matter was adjourned to allow applicant's counsel to perfect his application and get instructions from his client. The application was ultimately heard on September 17, 2018.

[2] The applicant argued that the amount of time it took to complete his trial – which continued over six different days over nine months – takes the net delay in his case over the 18-month ceiling set out in R. v. Jordan. The applicant said that the net delay in his case is over 22 months.

[3] The respondent argued that the net delay in this case falls under the 18-month presumptive ceiling. The respondent said the net delay in this case is below the presumptive ceiling once defence delay and the court's deliberation time are subtracted. Alternatively, the respondent argued that the lengthy adjournments between continuing trial dates are discrete events and should be subtracted from the net delay.

[4] These reasons explain why I have found that the applicant's rights under s. 11(b) were not violated and why his application for a stay of proceedings must be dismissed.

2. Procedural History

[5] I will be discussing the contentious points arising from the procedural history in greater detail in the analysis section. What follows is a relatively broad outline of the major events in the life of this case.

[6] The applicant was arrested and released on a promise to appear on September 27, 2015. He was charged on October 5, 2015 and made his first appearance on October 14, 2015. At that first appearance, the applicant was provided with initial disclosure. The same day, the applicant's lawyer sent a written request asking the Crown for additional disclosure.

[7] The applicant's lawyer had a Crown pre-trial on January 19, 2016. He appeared in court the next day and set a judicial pre-trial for April 1, 2016.

[8] The applicant had his judicial pre-trial as scheduled on April 1. The parties estimated between 8-10 hours for the trial. That day November 7, 8 and 9, 2016 were reserved for trial.

[9] Applicant's counsel ended up with a scheduling conflict for the November 2016 trial dates. The applicant successfully applied to adjourn his trial on November 4, 2016. Consequently, three new trial dates were set, to begin on July 10, 2017.

[10] On July 10, 2017, the matter appeared before Martins J. As is common in this court house, there was more than one matter set to proceed. The Crown gave priority to a different matter. The applicant's trial was adjourned to the next day, July 11, to see if a court would come available.

[11] On July 11, the parties appeared before me and started the trial. Crown counsel called two civilian witnesses and completed about half of his examination in-chief of the arresting officer.

[12] On July 12, the third day set aside for trial (but the second actual day of the trial), the Crown completed its examination of the arresting officer and Mr. Montes got about half way through his cross-examination of that officer. Because the Crown's case had not finished, the matter was adjourned to November 6, 2017 to continue. Before adjourning the matter, I confirmed with the parties that Mr. Montes would complete his cross-examination, and would then call two defence witnesses. Neither party took issue that the remaining evidence and submissions would take more than one day.

[13] On November 6, 2017, the trial continued. Mr. Montes completed his cross-examination of Cst. Strain and finished his examination in-chief of his client before the lunch break. Crown counsel (not Mr. Singh), started his cross-examination of the applicant after lunch. Unfortunately, the cross-examination did not finish, and another day had to be set aside to complete the trial. The trial was adjourned to February 7, 2018.

[14] The trial almost finished on February 7. Crown counsel completed his cross-examination of the applicant and Mr. Montes finished his submissions. Because Crown counsel was not feeling well, the matter did not finish on February 7. I heard Crown counsel's submissions, and the applicant's submissions on February 12 and 13, both days before the usual 10:00 am starting time for trial court. The matter was adjourned to March 23, 2018 for judgment.

[15] Because I was not prepared to render my decision on March 23, the applicant's matter was adjourned to April 19, 2018. As mentioned above, I found the applicant guilty on that date. The applicant sought an adjournment to allow him to pursue this application. I adjourned the matter to July 10, 2018 for argument of the application.

[16] On July 10, Mr. Montes appeared and explained that he had lost touch with his client until that very morning, and was not ready to proceed with the application. I adjourned the application to September 17, 2018. It was ultimately argued on that date.

3. The Jordan Analysis

3.1. Total Delay

[17] The parties agree that the total delay in this case is 924 days or 30 months and 11 days. That delay has been calculated between October 5, 2015 when the applicant was charged to April 19, 2018, when the applicant was found guilty. The applicant takes responsibility for all of the delay after April 19.

3.2. Defence Delay

[18] The applicant acknowledged that the period between the adjournment of the first trial date (November 4, 2016) to the new trial date (July 10, 2017) is defence delay. That period comprises 248 days, or 8 months and 6 days. The applicant does not take responsibility for any more delay, except that which occurred post-verdict.

[19] The respondent argued that, in addition to the delay that the applicant conceded, there are three other periods of pre-trial delay that should be counted as defence delay. Specifically, the respondent said that the following periods of time are defence delay and should be subtracted to calculate net delay:

(1) The 21-day period between December 2 and 23, 2015: the respondent argued that the applicant could have set a Crown pre-trial, and a judicial pre-trial, while waiting for the additional disclosure.

(2) The 28-day period between December 23, 2015 and January 20, 2016: the respondent argued that, having received the additional disclosure at the December 23 appearance, the applicant could have set a judicial pre-trial date.

(3) The 52-day period between January 20, and April 1, 2016: the respondent argued that a judicial pre-trial date could have been set earlier and, though the record is silent about how much earlier than April 1 a judicial pre-trial could have been set, only 30 days of this period should count against the Crown and the remaining 42 days should be considered defence delay.

[20] I do not agree with the Crown that the first two periods of delay should count as defence delay. The outstanding disclosure comprised videos that were essential to both the Crown and defence case. The Crown did not say when the disclosure would be available. I agree with the applicant that it was reasonable for the him to wait to receive that disclosure before setting a Crown pre-trial or judicial pre-trial. Moreover, the applicant did ultimately have a Crown pre-trial on January 19, 2016. Applicant's counsel was entitled to have some time to review the important disclosure he received on December 23 before conducting the Crown pre-trial. For pre-trials to be meaningful, the defence must have adequate disclosure to be able to make informed choices about what the issues will be at trial, and how long the trial will take. While that does not mean the defence is entitled to have every last piece of disclosure before having a pre-trial, it does mean that they should have disclosure that is central to the case. The videos here were such disclosure.

[21] I also cannot agree with the Crown that the third period is defence delay. As Mr. Montes observed in his submissions, Jordan defines defence delay as delay caused solely by the defence. There is nothing in the record that suggests a judicial pre-trial date was available much earlier than April 1. More importantly, Jordan does not require the court to engage in the same mathematical attribution of fault and delay that occurred under the Morin approach. The Supreme Court established a new test, in part, to move away from that old methodology. It seems inconsistent with this new approach that the defence be faulted for delay simply because counsel was not available for the first judicial pre-trial available. While the 52 days within this period may have been beyond the first available judicial pre-trial time slot, I am not prepared to count this delay as defence delay, absent some indication in the record that it was.

3.2.1. Deliberation Time

[22] The respondent also argued that the time the matter was under reserve (February 12 to April 19, 2018) should also be subtracted from the total delay. Mr. Singh argued that including this judicial delay in the amount of total delay would put judges in the difficult position of having to rush their decisions in order to keep cases under the ceiling.

[23] Mr. Montes suggested a middle-ground approach be taken to judicial delay. He suggested that, rather than including the entire period of delay in this case, the court should simply estimate a reasonable amount of deliberation time and that anything exceeding that should be considered in deciding whether a case exceeds the presumptive ceiling.

[24] Unfortunately, the Supreme Court in Jordan was silent on the issue of whether a judge's deliberation time should count within the presumptive ceiling. The Court of Appeal recently mentioned, but did not decide, the issue in R. v. MacIssac. Huscroft J.A. commented that the Supreme Court did not address whether judicial deliberation time is part of total delay.

[34] The appellant argued that the period during which a decision is under reserve should be counted in calculating total delay, while the Crown argued that it should not.

[35] Prior to Jordan, the time a judgment was under reserve was typically considered to be part of the inherent time requirements of a case: R. v. Schertzer, 2009 ONCA 742, 255 O.A.C. 45, at para. 114, leave to appeal refused [2010] S.C.C.A. No. 3; e.g. R. v. Lamacchia, 2012 ONSC 2583, at para. 7; R. v. Ferguson (2005), 24 M.V.R. (5th) 47 (Ont. S.C.), at para. 213, leave to appeal refused 2008 ONCA 764, 69 M.V.R. (5th) 18. However, some judicial delays in rendering a decision were considered unreasonable and warranted a stay. Most notably, in R. v. Rahey, [1987] 1 S.C.R. 588, the Supreme Court was unanimous that an 11-month delay to issue a decision on a motion for a directed verdict constituted an infringement of s. 11(b). See also R. v. Milani, 2014 ONCA 536, 120 O.R. (3d) 641, at para. 28, leave to appeal refused [2014] S.C.C.A. No. 426.

[36] The appellant's stay application was heard prior to commencement of the re-trial, and the trial judge used the final day scheduled for the re-trial – February 17, 2017 – as the end date for calculating total delay. As it happened, the trial ended one day earlier than expected and the appellant was not convicted until over two months later – April 18, 2017 – when the judgment was delivered.

[37] Jordan did not address whether the time a judgment is under reserve in included in the calculation of total delay and appears to have left the matter open. On the view I take it is not necessary to resolve the issue of reserve time for purposes of this case, and I would leave the issue for resolution in a future case, with a fuller evidentiary record and argument.

[25] Later in the decision, Huscroft J.A. held that the judge's deliberation time did not constitute a discrete event.

[46] The Crown submits that time the decision was under reserve was a discrete exceptional event because "[t]he extraordinary length and scope of the trial judge's reasons evidence that a reserve was unavoidable in this case."

[47] I would reject this submission.

[48] This was a vigorously contested, multi-day and witness trial. That time is required to provide the parties with reasonably intelligible reasons the trial judge considers sufficient to provide a basis for meaningful appellate review is to be expected. It is not, in itself, a discrete exceptional event, nor does it become such an event in this case by virtue of the length of the reasons provided or the issues involved.

[26] Other decisions have held that the time a decision is under reserve will not be included in deciding whether the delay falls within or outside the presumptive ceiling. In R. v. K.G.K. the court rejected including judicial delay within the presumptive ceiling. The court expressed concern that the principle of judicial independence, including judges' discretion about how to prioritize their workloads, would clash with the protection of an accused's constitutional rights. On a practical level, the court observed the untenable position that judges would be placed in to rush their decisions. As Joyal C.J.Q.B. noted:

As a practical matter, were judges subject to the categorical and unconditional obligation to come to determinations within the presumptive ceilings, the manner in which the case was conducted or unfolded would determine the manner in which a judge approaches and perhaps makes his own or her own decision. In other words, in some cases which might conclude well below the ceiling, a judge would have many months to render well-crafted written reasons. In other cases which conclude very close to the ceiling, the judge might be left with mere days.

[27] The Superior Court came to a similar conclusion in R. v. Basha. In that case, Maranger J. concluded that the time a case is under reserve after the parties have made their submissions should be deducted from the presumptive ceiling analysis.

137 Logically, given the shortness of time, it is doubtful the Supreme Court in creating this 30 month Jordan presumptive ceiling intended to include the following time periods therein:

a) Judicial deliberation after closing argument at trial;

b) Periods after the trial to sentencing; or

c) Periods of appeal and to the decision thereof;

as each of those:

d) Are beyond the control of the Crown which has the onus to justify time in excess of 30 months;

e) To include those additional time periods materially reduces the time available to the parties to "the end of trial"; and

f) Were not matters or time periods addressed in Jordan.

138 Based upon the above authorities, since Jordan, the court concludes that the period for judicial deliberation and to prepare its decision between May 19 and September 14, 2017:

a) is to be excluded from the Jordan 30 month presumptive ceiling analysis as to whether Mr. Basha's s. 11(b) right to be tried within a reasonable time was denied;

b) in the alternative, is not a shocking, inordinate or unconscionable period of deliberation pursuant to Rahey, given there were two co-accused with 11 joint charges, two other undivided charges, the number of witnesses, the length of trial, the circumstantial nature of the case presented and the level of complexity; and

c) in the further alternative, is a discrete unexpected event and exceptional circumstance pursuant to Jordan which the Crown could not control, rectify or now justify and is to be excluded from the period of delay to be considered on this application; and

d) in the final alternative, is inherent delay pursuant to Morin.

[28] Similarly, in R. v. Lavoie, the court concluded that the delay occasioned by judges reserving decisions is a discrete event and therefore excluded from the presumptive ceiling calculation.

37 As noted, exceptional circumstances as defined in Jordan lie outside the Crown's control in that they are reasonably unforeseen and unavoidable and cannot be corrected by the Crown.

38 In my view, delays occasioned by judges reserving decisions are discrete events which constitute exceptional circumstances. The decision by presiding judges to reserve decisions are both unforeseen and unavoidable.

[29] I agree with the respondent that judicial delay should not be included in the presumptive ceiling analysis. Like defence delay, judicial delay should be subtracted from the total delay and should not factor in to deciding that a case has exceeded the presumptive ceiling. I say that for the following reasons.

[30] First, I agree with the comments of Joyal C.J.Q.B. that factoring deliberation time into the presumptive ceiling analysis puts a judge in a difficult position in deciding whether to reserve judgment and for how long. There are many factors that a judge must consider in deciding how long to reserve. While the age of a case is a relevant factor, it should not be the driving factor in determining how long to deliberate. The following hypothetical illustrates this difficulty. The accused brings a delay application prior to trial. The delay is under the presumptive ceiling. The judge dismisses the application and goes on to hear the trial. The end of the trial is only a week shy of the ceiling. By reserving more than one week, the trial judge will be sending the case above the presumptive ceiling, thereby requiring a new, post-verdict application to be heard if the accused is found guilty. A trial judge should not be forced to decide between taking adequate time to decide a case, and keeping the Jordan clock from running above the presumptive ceiling.

[31] Second, and in the same vein, because most jurisdictions require s. 11(b) applications to be heard in advance of the scheduled trial dates, it will often be impossible to estimate the anticipated end of the trial. How is a judge to guess how long he or she will have to deliberate for after the final day of trial? Should judges build in a certain amount of deliberation time when hearing the pre-trial application? What about cases where a case-management judge hears the application and must estimate the deliberation time of a colleague who will be hearing the trial?

[32] Both of the two foregoing concerns were identified in R. v. Ashraf. In Ashraf, Band J. described the difficulty of determining the estimated completion of the trial in jurisdictions where delay applications must be argued in advance of the trial. He also commented on the uncomfortable position of the judge who is faced with a mid-trial delay application:

[74] It would seem, then, that the time a judge takes to render a decision must be included in the calculation of "total delay." This raises a number of problems. First, when a s. 11(b) application is brought prior to trial, as required by the Rules, one wonders how the judge will be able to determine the period he or she will require to deliberate without knowing (a) how the trial will unfold and (b) what other demands will be placed on his or her time surrounding the "anticipated end of trial". Second, in a case like this one, where counsel brought the application on a date that was initially set for trial continuation, some concerns may arise as to the optics and incentives at play. Should a judge inquire as to whether the defence is willing to waive the judge's deliberation time? In a case where the 18 month mark might be reached during the judge's period of deliberation, thereby shifting the onus, will the judge's "turnaround time" cause one party or the other to feel aggrieved or, worse, to question the judge's impartiality?

[33] None of the foregoing is to say that judicial delay is not relevant at all for the purposes of 11(b). It is. The right protects an accused person until the end of trial. Nothing in Jordan overruled R. v. MacDougall. And the decision in R. v. Rahey, where a case was stayed because of a trial judge's inordinate delay in deciding the case, demonstrates that there are cases where a judge's deliberation time can render the delay unreasonable. However, it makes more sense for an appeal court to make that determination (as happened in Rahey) rather than have trial judges assess the reasonableness of their own delay.

[34] Consequently, I agree with the applicant that the net delay in this case, after subtracting defence delay, is 22 months and 5 days. Further, I would subtract the two months and one week of deliberation time. The net delay in this case is just under 20 months. Because this delay is over the 18-month presumptive ceiling, the burden shifts to the Crown to establish that there were exceptional circumstances in this case.

3.3. Exceptional Circumstances

[35] The trial did not finish during the first three days that had been set aside. The evidence had to continue on two subsequent days. In total, the trial took about four and a half days to complete.

[36] Mr. Singh argued that the time periods between July 11, when the trial was adjourned, and February 7, the last day of evidence, should be considered a discrete event. That period comprises just under seven months. Mr. Singh relied on the following passages from Jordan to support his position:

[73] Discrete, exceptional events that arise at trial may also qualify and require some elaboration. Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. For example, a complainant might unexpectedly recant while testifying, requiring the Crown to change its case. In addition, if the trial goes longer than reasonably expected — even where the parties have made a good faith effort to establish realistic time estimates — then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance.

[74] Trial judges should be alive to the practical realities of trials, especially when the trial was scheduled to conclude below the ceiling but, in the end, exceeded it. In such cases, the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling. Trial judges should also bear in mind that when an issue arises at trial close to the ceiling, it will be more difficult for the Crown and the court to respond with a timely solution. For this reason, it is likely that unforeseeable or unavoidable delays occurring during trials that are scheduled to wrap up close to the ceiling will qualify as presenting exceptional circumstances.

[37] Mr. Montes countered that the trial would have finished in three days had it started on July 10, 2017. He noted that the only reason it could not begin on that date was that the Crown prioritized another matter. Mr. Montes also argued that Jordan requires that the Crown make reasonable efforts to conclude the trial under the ceiling. He said the record shows no such efforts in this case.

[38] I agree with Mr. Singh that the continuation in this case should be considered a discrete event. The initial trial estimate in this case ended up being wrong. Both parties had agreed with the initial estimate. The trial ultimately took over four days to complete. It would not have finished in three days even if it had started on July 10, the first day allotted for trial. More importantly, on July 12, when the parties picked a continuation date of November 5, they agreed that the matter would finish in a day (including submissions). Again, this estimate proved to be wrong. I do not say this to lay blame, but simply to highlight that the delay was unavoidable. In my view, it is appropriate to subtract the seven-month period from July 12 to February 13, 2018 as a discrete event.

[39] As for Mr. Montes' submission that the Crown should have made reasonable efforts to conclude the trial under the ceiling, it is unclear what more the Crown could have done in this case. The Crown was available on the earliest continuation dates offered by the court. I do note that Crown counsel made himself available to make closing submissions on February 12 and 13, 2018 so that the matter would not need to continue much beyond the final day of evidence on February 7. As the court noted in Jordan, the closer a trial is to the ceiling, the more difficult it will be for the court and the Crown to respond.

[40] The most the Crown could have done in this case was to have prioritized the matter to proceed on July 10, rather than lose a day of court time. Even then, the trial would have required at least one day to continue. That continuation date would still have taken the case to the November 6, 2017 date. Therefore, it is arguable that the time period to the first continuation date should be considered a discrete event, but not the time to the second date. That would mean the Crown could subtract 3 ½ months from the 20 months of net delay.

[41] Either calculation would bring the remaining delay under the 18 month presumptive ceiling. Because the remaining delay is below the presumptive ceiling, the burden shifts to the applicant to show that the delay was unreasonable.

3.4. Defence Initiative

[42] Where the remaining delay is below the presumptive ceiling, the defence can succeed in showing unreasonable delay if it can establish both of the following two conditions:

(1) The defence took meaningful steps that demonstrate a sustained effort to expedite the proceedings (defence initiative).

(2) The case took markedly longer than it reasonably should have.

[43] Because Mr. Montes did not make oral or written submissions on either issue, I will address this area briefly.

[44] The record does not support any defence initiative in this case after July 6, 2016. While the defence did not do anything to prolong the matter, the defence did not make any sustained efforts to expedite the proceedings. For example, when the original trial date had to be re-scheduled because of Mr. Montes' scheduling conflict, there is nothing to suggest that the defence gave the matter priority, or made it known that delay was a concern. I do not say that to be critical of Mr. Montes. It is simply to point out that there is nothing showing the defence has met its onus on the first branch of the test.

[45] Because the defence has not met its onus in demonstrating that the delay was unreasonable, there is no need for me to consider any of the transitional circumstances raised by the Crown.

4. Conclusion

[46] The applicant has failed to establish a breach of his right to be tried within a reasonable time. The application to stay proceedings is dismissed.

Released: October 24, 2018

Justice M.M. Rahman

Footnotes

[1] Mr. Singh was not Crown counsel at trial. His only involvement in this matter was responding to this application.

[2] R. v. Jordan, 2016 SCC 27.

[3] The scheduling protocol in Brampton's Ontario Court of Justice requires that three days be set aside for trials estimated to take between 8 and 11 hours.

[4] Just as the defence is not entitled to have every last piece of disclosure before taking the more significant step of setting a trial date: R. v. Kovacs-Tatar (2004), 73 O.R. (3d) 161 (C.A.).

[5] This approach was taken in R. v. Bolan, 2017 ONCJ 111 at paras. 115-118.

[6] R. v. MacIssac, 2018 ONCA 650.

[7] R. v. K.G.K., 2017 MBQB 96.

[8] R. v. Basha, 2017 ONSC 5897.

[9] R. v. Lavoie, 2017 ABQB 66.

[10] Those factors include the age and seriousness of the case; how many outstanding reserved judgments the judge has; the nature of those cases and whether they involve accused persons in custody; and what the judge's schedule looks like in the near future.

[11] I refer here to the case-management judges as defined by s. 551.1 of the Criminal Code. In the Superior Court of Justice, it is not uncommon that the delay application is heard before a judge other than the trial judge.

[12] R. v. Ashraf, 2016 ONCJ 584.

[13] Ashraf, supra, at para. 74.

[14] R. v. MacDougall, [1998] 3 S.C.R. 45.

[15] R. v. Rahey, [1987] 1 S.C.R. 588.

[16] The defence need not establish that it took initiative prior to the release of R. v. Jordan.

[17] This is likely because, at that point, it was not a concern because of the applicant's waiver.