Court Information

Date: December 18, 2018

Information No.: 17-6637

Court: Ontario Court of Justice

Location: Ottawa, Ontario

Parties

Her Majesty the Queen

v.

Zeynel A. Kilicaslan

Proceedings

S.11(b) Application

Appearances

J. Fuller – Counsel for the Crown

M. Ertel – Counsel for Mr. Kilicaslan

Ruling

Given Orally by the Honourable Justice J. Loignon

Background

The accused was arrested and charged with two counts of assault, one count of assault causing bodily harm, and one count of assault with a weapon on June 1st, 2017. He now applies for a stay of proceedings because of an alleged violation of his S.11(b) Charter right.

On June 5th, 2017, an information was sworn against the applicant. His first appearance was on June 16th, 2017, whereupon he received a first appearance package and the matter was adjourned to July 7th for him to retain counsel. On July 7th, 2017, disclosure was provided and the matter was adjourned to July 28th, 2017, so that disclosure could be received and reviewed, and a counsel pre-trial could take place. By this time, the applicant had retained counsel.

On July 28th, 2017 an adjournment was sought for a further two weeks for a counsel pre-trial. On August 4th, 2017, a judicial pre-trial was set for August 16th, with a return date of August 18th. A judicial pre-trial one week earlier was refused by defence. On August 18th, 2017, trial dates were set for the first two dates offered by the Court, namely December 17th and 18th, 2018.

The total delay from the swearing of the information to the date of trial is 18 months and two weeks.

Crown's Offer of Earlier Dates

On January 24th, 2018, the Crown attorney's office wrote to counsel for the applicant, offering the possibility of earlier dates for trial. The Crown wrote:

"If your client is interested in earlier dates that would bring this matter under the 18-month ceiling to get to trial. The Crown can bring this matter forward to a date in early February, 2018 and make that happen. Please let me know either way at your earliest convenience."

No response was ever received from counsel for the applicant. The applicant's file was one among others that were being proactively identified by the Crown's office to determine whether earlier trial dates could be set so as to avoid R. v. Jordan jeopardy.

Those counsel who replied and informed the Crown that their clients were interested in earlier dates had their matters brought forward. Earlier dates were canvassed in C.O.R. court. In some cases, earlier dates were accepted. In others, they were declined. In some cases, scheduling conflicts could not accommodate new dates.

Procedural Issues

This application was filed 30 days prior to the date of trial, on November 17th, 2018. The rules of practice in the Ontario Court of Justice require that a pre-trial application of this nature be filed 60 days in advance of trial. The Crown did not take issue in submissions with the late filing.

Legal Framework

The Jordan Analysis

Under the Jordan framework, the Court's first task is to assess the total delay, bearing in mind a presumptive ceiling of 18 months for matters before the Ontario Court of Justice. Calculation of the delay begins from the laying of the information, and ends with the conclusion of the trial.

The second step in the analysis requires that the Court deduct defence delay from the total delay. Defence delay includes any time where the Court and the Crown are ready to proceed, but the defence is not, actions that are illegitimate, designed to delay, exhibit marked inefficiency or marked indifference to delay. Also included in defence delay is any period that has been specifically waived by the defence.

As noted in Jordan, citing R. v. Morin:

"The purpose of 11(b) is to expedite trials and minimize prejudice, and not to avoid trials on the merits." (paragraph 60)

To be clear, however, actions taken by defence which legitimately respond to the charges fall outside of defence delay. This will include preparation time and defence applications or requests that are not frivolous.

Presumptively Unreasonable Delay

Once defence delay is subtracted, any remaining delay, or the net delay that exceeds the ceiling, is presumptively unreasonable. The Crown, however, may rebut this presumption by showing that the delay is reasonable because of the presence of exceptional circumstances.

Exceptional circumstances are ones that lie outside the Crown's control in the sense that they are reasonably unforeseen or reasonably unavoidable, and Crown counsel cannot reasonably remedy the delays emanating from the circumstances once they arise. Crown cannot simply point to past issues once the ceiling is reached. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. Examples of how to do this were such as resorting to case management processes or seeking to streamline trial issues and evidence (see paragraph 70). Determining whether the circumstances are indeed exceptional falls to the trial judge. Examples provided in Jordan included medical and family emergencies on the part of the accused, important witnesses, counsel or the trial judge (para 12). Exceptional circumstances may also arise through complexity. The period of delay caused by any exceptional event is subtracted from the net period of delay for the purposes of determining whether this ceiling has been exceeded.

Delay Below the Ceiling

The delay may be unreasonable even if it falls below the presumptive ceiling. To discharge its onus in such a case, the defence must demonstrate that it took:

"....meaningful sustained steps to expedite the proceedings. Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the court must consider." (see paragraph 84)

It bears mentioning that this application concerns Crown action in remedying the anticipated delay beyond the presumptive ceiling, not a consideration of the steps taken by defence when it bears the onus for delay below the ceiling.

System Accountability

The new framework recognizes that all participants in the justice system must work together to achieve speedier trials. In this regard, the Courts also have a role to play. As noted at paragraph 114:

"The new framework makes courts more accountable, too. Absent exceptional circumstances, the ceiling limits the extent to which judges can tolerate delays before a stay must be imposed. Indeed, courts are important players in changing courtroom culture."

Application to This Case

It is uncontroversial between the parties that the total time to trial exceeds the 18-month presumptive ceiling by two weeks. It is also uncontroversial that there is no defence waiver and no defence delay. It falls, therefore, to the Crown to demonstrate whether there are exceptional circumstances to justify the delay. Defence argues that there are none, while the Crown points out the offer to bring this matter forward for an earlier date and defence inaction. The Crown argues that defence cannot sit in the weeds and do nothing in the face of the Crown's offer.

Defence, on the other hand, argues that this email was a weak attempt to address delay, and that it cannot rise to the level of reasonable steps as required in Jordan.

Defence Conduct

As noted by the parties, when the trial dates were set the presumptive ceiling was breached. There is no defence waiver to subtract, and no objectionable conduct that would suggest attempts to delay or illegitimate tactics. Indeed, defence moved this matter along in the early stages as quickly as possible. There was perhaps one week where defence was not available for a judicial pre-trial. However, the overall conduct is not indicative of the conduct the Court was warning against in both Jordan and R. v. Cody. In this case, the earliest dates offered were accepted by defence counsel. There is no delay caused by defence conduct, and there is no inaction in the nature of repeated, unfruitful, and unnecessary adjournments. To the contrary, in this case, defence moved to trial with all haste.

Crown's Efforts

Once the Crown identified that this case was in Jordan jeopardy, were the efforts made reasonable? Did the Crown take "reasonable available steps to avoid and address the problem"? Certainly the email to counsel in January, 2018 was an appropriate step to begin to address the delay. However, taking no further action subsequent to this is what becomes problematic. There were, indeed, several further and more meaningful steps that could have been taken, including follow-up emails, but especially, Crown could have brought an application to bring forward, in the Certificate of Readiness court, to have the Court canvass earlier dates with the defence. This would have been a meaningful and reasonable step to remedy the delay. Indeed, this court routinely offers earlier trial dates where the Jordan ceiling has become concerning. This process is not one dependent upon defence counsel consent or response, but rather such an application can be brought at any time and compels a response from defence. Another advantage to proceeding in such a manner is the creation of a record of dates offered and refused, options considered and discarded. In this case, there were some ten months to take such action, but nothing was done.

Cooperation and Crown Obligation

Though both Jordan and Cody exhort all system participants to work cooperatively in achieving compliance with S.11(b) Charter rights, this comment does not, in my view, allow a preliminary step on the part of the Crown to reach the threshold identified of taking reasonable available steps. Though no response was provided to the email by defence, this alone cannot take an initial step and transform it into more. Indeed, it remains a preliminary step which cannot absolve the Crown of its obligation to reasonably remedy the delay identified by the anticipated trial date. For the Crown to rely on inaction in the manner contemplated, more would have had to have been done on their part to suggest defence was not interested in addressing the issue of delay.

Conclusion

The burden being on the Crown at this stage to demonstrate that the delay beyond the presumptive ceiling falls into exceptional circumstances, I find that in this case there are no such exceptional circumstances justifying the delay, as nothing more than overtures were made to remedy the delay.

In accordance with Jordan and Cody, the charges are stayed.

Court Adjourned