ONTARIO COURT OF JUSTICE

CITATION: R. v. Francis, 2019 ONCJ 173

DATE: 2019 03 28

COURT FILE No.: Brampton 17-10049

BETWEEN:

HER MAJESTY THE QUEEN Respondent

— and —

MARTELLE FRANCIS Applicant

Before Justice M.M. Rahman

Section 11(b) application heard March 1, 2019

Reasons for Ruling released on March 28, 2019

Patrick Quilty.................................................... counsel for the Crown, respondent

Alonzo Abbey.......................................................................... counsel for the applicant

RAHMAN J.:

1. Overview

[1] The applicant is charged with two counts of assault and one count of uttering threats. He applies for a stay of proceedings based on a breach of his right to be tried within a reasonable time.

[2] The applicant argues that his trial has been unreasonably delayed because the complainant did not attend the first trial date and the Crown did not move to set this new trial date until the applicant attended in person to answer to new charges relating to the same complainant.

[3] The respondent, in resisting the application, argues that the complainant’s failure to attend the first trial is a discrete event which shortens the amount of delay in this matter below the 18-month Jordan ceiling. The respondent says that even if it is responsible for some delay in setting the new trial date, the delay is not unreasonable.

[4] These reasons explain why I have found that the applicant’s s. 11(b) rights were not violated and am dismissing the application for a stay of proceedings.

2. The Jordan Analysis

2.1. Total Delay

[5] The total delay from September 11, 2017 to the anticipated end of trial on July 4, 2019 is 661 days or 21 months and 23 days.

2.2. Defence Delay

[6] Defence delay must be subtracted from the total delay to determine the net delay. If the net delay exceeds the 18-month Jordan ceiling, the delay is presumptively unreasonable.

[7] In Jordan, the Supreme Court held that “the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not.”[^1] This means that the so-called Jordan clock stops on the day the Crown and the court are available.[^2]

[8] There are five periods of defence delay. Three of them are not contentious. The applicant acknowledges being responsible for about one month of delay between November 22 and December 21, 2017.[^3] The applicant is also responsible for the one month and one week delay between May 9-10, 2018 (the first date the Crown and the court were available) and June 18, 2018 (the actual first trial date).[^4] Finally, the defence is responsible for a month of delay between June 4, 2019 and July 4, 2019. This is a total of three months of defence delay.

[9] This leaves two periods of defence delay in issue. The first is the four-week period (October 26 to November 22, 2017) after the Crown pre-trial was held. The respondent argues that the applicant should have set a date on October 26, 2017. The second is the period between June 27, 2018, the first appearance after the complainant had been located, and September 25, 2018, the appearance when a date was finally set. The respondent argues that the applicant not turning himself in led to a delay in setting a new trial date for these charges.

2.2.1. Defence not setting a date on October 26, 2017

[10] The respondent argues that the Crown was ready to set a date on October 26, 2017. The transcript of that appearance reveals that a Crown pre-trial had been held and that the applicant was ready to set a date, but that the trial estimate form and the brief were not in court. Counsel for the respondent, Mr. Quilty, asked the court to take judicial notice of the practice in set-date court that requires defence counsel to obtain the trial estimate sheet.

[11] I cannot accept the respondent’s argument, nor am I prepared to take judicial notice of how matters were scheduled in set-date court in October 2017. Further, the record does not assist the respondent’s position here. At the October 26 court appearance, Crown counsel (not Mr. Quilty) did not press to have a trial date set, nor did he direct defence counsel to go and obtain the trial estimate form. Instead, he simply remarked that there was no brief in court. The defence cannot be faulted for not setting a date on October 26 when the Crown itself did not press for it and accepted that the matter had to be adjourned.

2.2.2. Delay setting date because the applicant did not appear

2.2.2.1. Factual Background

[12] When the complainant did not appear for trial on June 18, 2018, Ready J. issued a material witness warrant for her. The matter was adjourned to June 27.

[13] The complainant called the police the same night and alleged that the applicant assaulted her. A warrant was issued for the applicant’s arrest for this new charge on June 20, 2018.

[14] At the June 27 appearance, Mr. Abbey appeared for the applicant. He explained that assigned Crown counsel (not Mr. Quilty)[^5] had contacted him and told him the complainant had been located. Mr. Abbey also explained that he had been told that his client might be facing new charges. He agreed to adjourn the matter for two weeks to July 12.

[15] On July 12, the applicant appeared by agent (Mr. Abbey’s articling student). The complainant also appeared pursuant to the material witness warrant. Crown counsel explained that a warrant had been issued for the applicant on the new charge. The Crown took the position that a new trial date could not be set on these charges until the applicant surrendered himself on the new charge. The presiding justice of the peace did not want to set a trial date and adjourned the matter for two weeks.

[16] On the next appearance, July 26, the Crown again took the position that the applicant had to surrender himself before a trial date could be set. Mr. Abbey appeared and repeated his position that he had been insisting on setting a trial date. The matter was adjourned again to August 9.

[17] On August 9, Mr. Abbey’s articling student appeared again. The student once again repeated that he wanted a date to be set on the 2017 charges. Some confusion then arose because of a completely different set of charges, involving a different complainant, were in court on the same day. The matter was adjourned to August 21.

[18] On August 21, Mr. Abbey appeared and explained that he wanted to set a date on these charges but had set a judicial pre-trial with an eye to addressing this scheduling issue. The matter was adjourned to September 25 to hold that judicial pre-trial.

[19] On September 25, 2018 the trial dates were finally set, as was a day for the hearing of this application. Although the Crown was opposed to setting a trial date because of the applicant’s non-appearance, the judicial pre-trial judge authorized the setting of the dates.

2.2.2.2. Parties’ Positions

[20] The respondent argues that the defence is responsible for most, if not all, of the delay between July 12, 2018 and September 25, 2018. A warrant had been issued for the applicant’s arrest on new charges against the same complainant. The Crown insisted that the applicant turn himself in before setting a new trial date because the Crown wanted the new charge tried with the old charges.

[21] The applicant argues that none of the delay after the complainant turned herself in on the material witness warrant should count as defence delay. He maintains that he wanted to set a trial date and that he was not legally obliged to turn himself in on the new charges. He was appearing through counsel on the current charges and there was no impediment to setting a date.

2.2.2.3. Analysis

[22] I cannot accept that any of the period after the adjournment of the trial (with one small exception) was defence delay. I agree with the applicant that he was not required to turn himself in on the new charges and the laying of new charges ought not to have delayed setting a trial date on these charges.

[23] The applicant appeared several times through his counsel asking to set a date on these charges. He then explained on the record that the Crown wanted to join the new charges with these charges. The actions of the Crown, not the defence, delayed setting a trial date here. The Crown wanted to wait for the applicant to turn himself in. The applicant chose not to. There was no legal impediment to setting a date on these charges. The court had no jurisdiction over the applicant on the new charges. Since the Crown wanted to wait, the delay was not caused solely by the actions of the defence.

[24] Two things are also worth mentioning about the Crown’s desire to join these charges with the new ones. First, the Crown could have asked a judge to require the applicant to attend personally, rather than through counsel. Had the applicant not appeared, a warrant could have been issued on these charges for his arrest. His failure to appear would then have stopped the 11(b) clock, since it would have been his actions that delayed setting the trial. Second, I also observe that the new charges were not ultimately joined with these charges. When the applicant appeared on these charges before the court, Crown counsel did not ask for him to be arraigned on the newer charges, which it earlier wanted to join with these charges. I am not suggesting there is anything improper about the Crown’s subsequent decision not to try the charges together. However, the fact that the charges were not ultimately joined does not help the Crown advance the argument that the applicant ought to have turned himself in on the new charges before setting a date.

2.3. Conclusion on Defence Delay

[25] The defence delay in this case totals three months.

2.4. Net Delay

[26] The net delay is 18 months and 23 days. Because that delay is over the 18-month ceiling, the delay is presumptively unreasonable. The burden shifts to the respondent to justify that the delay is reasonable. In this case, the respondent sought to justify the delay by relying on a discrete event.

2.5. Discrete Event

[27] Mr. Quilty argues that the complainant’s failure to appear on the first trial date is a discrete event. He says that any of the delay occurring after that is the result of this discrete event. Mr. Quilty also quite fairly qualified his submission by saying that the 8 ¾ months it took to set this second trial date was not reasonable, since a second trial date should have been made available much sooner. He suggested that three to four months would have been a more reasonable period of time for a new date to be set. Therefore, he suggests that the discrete event deducts three to four months from the net delay. Subtracting that period of time brings the remaining delay below the 18-month presumptive ceiling.

[28] Mr. Abbey argues that the complainant’s non-attendance at the first trial date is not a discrete event because it was not an unforeseen event. In any case, he argues that such a discrete event should only result in a deduction of the one-week period between the first trial date and the date the complainant finally did attend court. Mr. Abbey argues that the discrete event cannot result in a deduction of all time after the witness finally appeared.

[29] I cannot accept Mr. Abbey’s position. The law is clear that an event such as a witness being unavailable is a discrete event. Further, the law is also clear that any delay that follows the discrete event is usually deducted from the net delay. As I will explain, in this case I do not agree that the entire period after the first trial date should be deducted as a discrete event. However, I am satisfied that a four-month period should be deducted since that would have been the amount of time it would reasonably take to set a new, second trial date.

[30] As I have explained above in discussing defence delay, I cannot accept the respondent’s position that the new charges, and the applicant’s failure to surrender himself on those charges is defence delay. I also cannot agree that these circumstances fall under the heading of a discrete event. As I said above, the Crown should have set a date shortly after the complainant turned herself in. It was reasonable for the Crown to have asked for a short adjournment in light of the new charge that had been laid, and because it wanted to join that charge with these charges. However, that should not have required more than one or two short adjournments. In this case, a new date ought to have been set on the July 12, 2018 appearance, when the applicant was insisting that a date be set. I say that, in part, because the applicant did not press the issue of setting a new trial date at the June 27, 2018 appearance.

[31] Consequently, I find that a total of five months should be subtracted as a result of the discrete event. One month (June 14 to July 12) for the parties to re-group in light of the new charges and the complainant appearing, and four months, which would have been a reasonable time for setting a new trial date.

2.6. Remaining Delay

[32] The remaining delay is 13 months and 23 days.

2.7. Has the applicant demonstrated that the case should be stayed?

[33] 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 markedly exceeded its reasonable time requirements.

2.7.1. Defence Initiative

[34] To show defence initiative, the defence must show that it took meaningful and sustained steps to be tried quickly. The defence must show that it attempted to set the earliest possible hearing dates and that it was “cooperative with and responsive to the Crown and the court.” The defence must also have “put the Crown on timely notice when delay was becoming a problem.”[^6]

[35] I am not satisfied, on this record, that the applicant has demonstrated taking meaningful and sustained steps to have the matter tried quickly. That is not to say that the applicant was attempting to delay the matter or even that the applicant was not acting diligently. However there are a few events that weigh against finding the kind of defence initiative required by Jordan.

[36] First, nobody showed up for two of the applicant’s appearances in November 2017. Further, the matter was unnecessarily adjourned for three weeks on November 30, 2017, because counsel believed he did not have disclosure that had in fact already been disclosed.

[37] Second, the applicant did not suggest judicial intervention to deal with the scheduling dispute with the Crown until August 2018. He also did not cooperate with the Crown in trying to resolve that dispute earlier.

[38] Again, I do not mention any of the foregoing to be critical of counsel’s conduct in this case. I do not wish to be taken as suggesting counsel acted improperly or that he did not act diligently. For example, in refusing to set a date, or turn himself in, he was simply asserting his legal rights. But this stage of Jordan requires more than the defence simply doing its job. Instead, to demonstrate that delay is unreasonable, Jordan requires meaningful and sustained steps. It requires the defence to be cooperative with the Crown and the court. That did not happen here.

[39] The applicant’s failure to take meaningful and sustained steps means he has not demonstrated that the delay is unreasonable. Because of my conclusion, I need not consider the second factor about whether the case markedly exceeded its reasonable time requirements.

3. Conclusion

[40] The applicant has failed to establish that the delay in this case was unreasonable.

[41] The application for a stay of proceedings is dismissed.

Released: March 28, 2019

Justice M.M. Rahman

[^1]: R. v. Jordan, 2016 SCC 27 at para. 64. [^2]: R. v. Mallozzi, 2018 ONCA 312 at paras. 5-6. [^3]: At two appearances, nobody appeared (November 22 and November 29). On a third date (November 30) defence counsel mistakenly thought he was missing disclosure which had been provided earlier. [^4]: At the argument of this application, the respondent said that the defence delay here was only between May 9-10 and May 30-31. The latter dates are the dates that the court and defence were available, but the Crown was not. However, that approach is inconsistent with the Court of Appeal’s approach in Mallozzi, supra. In Mallozzi, the court clearly held that any delay after the first date available to the Crown and the court is defence delay (see paras. 5-6). This approach is consistent with the Supreme Court’s desire to simplify delay applications by not requiring counsel to rhyme off every date that they would otherwise have been available. [^5]: The record does not show that Mr. Quilty had any involvement in this case until the hearing of this application. [^6]: Jordan, supra, at para. 85