Ontario Court of Justice

Date: 2019-04-16 Court File No.: Brampton 17-5856

Between:

Her Majesty the Queen

— AND —

Rori Franklin

Before: Justice Sandra Caponecchia

Section 11(b) Application Heard on: March 1, 2019 Decided: March 12, 2019 Reasons Released: April 16, 2019

Counsel

J. Kingdon — counsel for the Crown

A. Oyegunle — counsel for the accused Rori Franklin

CAPONECCHIA J.:

Introduction

[1] Mr. Franklin was charged on May 6, 2017 with assault.

[2] On October 19, 2017 a judicial pre-trial was conducted.

[3] The first trial date was set on November 16, 2017 for May 29, 30, 2018.

[4] The trial was not reached on May 29, 2018 due to insufficient court resources. A second trial date was set for January 7, and 8, 2019.

[5] On the second trial date the Crown called the complainant and two police officers. The accused testified in his own defence. The case was completed at 3:30 p.m. on January 8, 2019. The case adjourned for a decision to February 1, 2019 after I offered to return to do so on January 21, 2019. The defence was not available on January 21, the Crown was.

[6] On January 28, 2019 the defence filed an incomplete s. 11(b) application. The application did not include transcripts. On February 1, 2019 the defence explicitly waived their s. 11(b) rights in order to perfect the application and the trial decision was adjourned pending the outcome of the 11(b) application. Both parties were given deadlines for filing submissions and a time limit for oral submission. The application was heard on March 1, 2019 and dismissed on March 12, 2019. Mr. Franklin was found guilty. These are my reasons on the 11(b) application.

RESULT:

[7] The s. 11(b) application was dismissed for two reasons:

(1) I have calculated the net delay in this case below the 18 month presumptive ceiling.

(2) I am not persuaded that defence took meaningful steps which demonstrate a sustained effort to expedite the proceedings. The late filing of the 11(b) application in contravention of the Rules of the Ontario Court of Justice is clear evidence to the contrary.

ANALYSIS:

[8] To decide this issue I must follow the framework set out in R v. Jordan, 2016 SCC 27.

A. Calculate the Total Delay

[9] A judge is to calculate the total delay from the date of the charge to the end of the trial.

[10] Both parties agree that the total delay in this case should be calculated between May 6, 2017 and March 12, 2019. This amounts to a total delay of 22 months and 7 days.

B. Subtract Defence Delay

[11] Defence delay is subtracted from the total delay. The resulting number is called the net delay. Defence delay is comprised of two components. The first component is delay that is a clear and unequivocal waiver of the accused's s. 11(b) rights.

[12] In this case the defence explicitly waived the delay caused by his late filing of this s. 11(b) application between February 1 and March 12, 2019: 1 month and 12 days. This reduces the delay to 20 months and 27 days.

[13] The second component is delay caused solely by the conduct of the defence. The calculation of delay is reduced to reflect delay occasioned on account of defence unavailability. This includes when the court and the Crown are ready to proceed and the defence is not.

[14] In this case, the defence does not take responsibility for any delay due to their unavailability.

[15] The Crown's position is that the defence is responsible for three additional periods of delay.

(1) 28 days

October 19, 2017 to November 16, 2017

[16] On October 19, 2017 a judicial pre-trial was conducted. The defence asked for an adjournment and did not set a trial date until the next court date, November 16, 2017.

[17] The Crown was ready to set a date for trial on October 19, 2017. The transcript reveals defence counsel requested an adjournment to consult with his client and obtain instructions as to whether to set the matter for trial. The defence argues that this was a legitimate defence request that should not be subtracted from the total delay in this case. In oral submissions, the defence made an alternative argument. Namely that an adjournment for two weeks to seek instruction was reasonable and therefore only half of this time period should be categorized as defence delay.

(2) 3 months and 12 days (or 104 days)

August 7, 2018 to November 19, 2018

[18] On the first trial date the case was not reached due to inadequate resources. The Trial Co-Ordinator's sheet from the same day, May 29, 2018, was made an exhibit on this application. It illustrates the court and Crown were next ready to conduct a trial on August 7 and 8, 2018. The defence was not available. The next available date offered was November 19 and 20, 2018. The court and defence were available, the Crown was not.

[19] The Crown's position is the delay due to defence counsel's unavailability between August 7 and November 19, 2018 warrants a further reduction in the net delay calculation because the Crown and court were available in August and the defence was not.

[20] The defence submitted that notwithstanding what the Trial Co-Ordinator's sheet indicates, the defence was in fact available on one of the two dates in August. According to the defence the Trial co-ordinator insisted on setting two consecutive days in a row. The defence submits they should not be held responsible for the delay after August 7, 2018 because they were available on one of the two days offered in August.

(3) 24 days

January 8, 2019 to February 1, 2019

[21] The Crown takes the position that the time this court took to render a decision should not be attributed to the Crown. It should either be considered defence delay or exceptional circumstances. The Crown points out the court offered to render a decision earlier, on January 21, 2019, but the defence was not available. The Crown also contends that it was incumbent on the defence to raise 11(b) concerns when the return date for a decision was being chosen.

FINDINGS – Defence Delay

[22] After subtracting the period which the defence concedes was explicitly waived, February 1, 2019 to March 12, 2019, the resulting delay is 20 months and 27 days.

[23] I find as follows with respect to the three additional time periods raised by the Crown:

(1) The 3 months and 12 days (or 104 days) delay between August 7, 2018 to November 19, 2018 is attributable to the defence.

When the trial was not reached on May 29, 2018, the court and Crown were both prepared to proceed on August 9 and 10, 2018. The defence was not. On November 19 and 20, 2018 the defence and the Court were available to conduct the trial, the Crown was not.

In Jordan, a deduction from the total delay was applied for the period between when the Crown and court were available to continue, the defence was not, and the next mutually agreeable date: Jordan, paras. 123, and 124.

Deductions due to the unavailability of the defence have consistently been endorsed by the Ontario Court of Appeal where a case did not proceed sooner because the defence was not available: R v. Mallozzi, 2018 ONCA 312, paras. 3, 12-15, R v. Cody, 2017 SCC 31, para. 55, R v. Coulter, 2016 ONCA 704, paras. 73-77, and R v. Williamson, 2016 SCC 28, paras. 21-22.

In this case therefore I accept the Crown's characterization of the delay between August 7, 2018 and November 19, 2018 as defence delay. It is consistent with the framework instituted by the Supreme Court in Jordan. The resulting net delay is therefore reduced further from 20 month and 27 days to 17 months and 15 days.

In oral submissions the defence maintained they were available on either August 7 or 8 and therefore they should not be held responsible for the subsequent delay. The only evidence before this court is the Trial Co-ordinators trial sheet which indicates otherwise. Even accepting the defence position to be accurate, the defence was not available on both days in August and therefore the trial could not be completed in August due do defence counsel's unavailability.

(2) I also find that the actions of the defence caused an additional delay between October 16, 2018 and November 16, 2017.

The Crown was ready to set a trial date following the judicial pre-trial on October 16, 2018, the defence was not. This was a straight forward case involving 3 Crown witnesses and one potential defence witness. There was no outstanding disclosure. No Charter application or expert evidence was anticipated.

On the facts of this case I find that the defence adjournment for a month to obtain final instruction was excessive. Final instruction could reasonably have been obtained much sooner.

Therefore, a further deduction in the net delay of 17 months and 15 days due to the actions of the defence is warranted. I need not decide exactly how long an adjournment to obtain instructions was reasonable because any amount would further reduce the net delay, which I have already calculated to be below 18 months.

(3) Given my above findings I also need not decide the issue of how to attribute this court's deliberation time between January 8, 2019 and February 1, 2019.

I would simply point out two things. One, the court offered to return with a decision earlier, on January 21. Second, there does not appear to be judicial consensus on how to treat judicial deliberation time. The Ontario Court of Appeal specifically declined to decide the issue in the case of R v. Jurkus, 2018 ONCA 489, and the law in this area was most recently reviewed by Justice Kastner in R v. Brar, [2019] O.J. No. 695.

C. Compare Net Delay to Presumptive Ceiling

[24] The net delay in this case is below the presumptive ceiling of 18 months for cases tried in the Ontario Court of Justice. Consequently, I need not consider whether the Crown has established any delay attributable to exceptional circumstances or if the case was complex. I did not understand the Crown to be asserting either in Mr. Franklin's case.

D. Remaining Delay Below the Presumptive Ceiling

[25] Where the remaining delay is less than 18 months, the defence may demonstrate that it was nonetheless unreasonable. The defence must establish two things. One, they took meaningful steps that demonstrate a sustained effort to expedite the proceedings. And second, the case took markedly longer than it reasonably should have. The granting of stays for cases that fall below the presumptive ceilings should only be done in the clearest of cases. This is not one.

[26] The defence has not satisfied me that they took meaningful steps which demonstrate a sustained effort to expedite the proceedings.

[27] The defence decision to delay setting a trial date for a month after the judicial pre-trial is not consistent with taking sustained efforts to expedite the proceedings.

[28] I also find the decision to delay filing an 11(b) application until three days before this court was prepared to deliver a decision on February 1, 2019 is inconsistent with taking meaningful steps which demonstrate an effort to expedite the proceedings. It demonstrates the opposite in this court's view. When the second trial date was set on May 29, 2018 the defence was aware that the next trial was set outside the 18-month Jordan ceiling. If the defence wished to advance an 11(b) application it was incumbent upon them to do so before the second trial date, not after. The defence was obliged to comply with the Rules of the Ontario Court of Justice and file the 11(b) before the trial. They did not.

[29] Meaningful steps which demonstrate a sustained effort to expedite the proceedings by the defence were described in Jordan to include putting the Crown on timely notice when delay was becoming a problem and conducting all applications (including the s. 11(b) application) reasonably and expeditiously: R v. Jordan, 2016 SCC 27, para. 85. In this case the defence did neither.

[30] The failure to observe the Rules of this court cannot be countenanced for two sound reasons. For one, had the case been completed and ended in a conviction on the second day of trial (January 8, 2019) the defendant could potentially have been deprived of a Charter remedy because an application had not been filed yet.

[31] Second, the decision to file an 11(b) motion after two days of evidence and on the eve of a decision does not promote an efficient use of judicial resources. Promoting an efficient criminal justice system is of utmost importance: R v. Jordan, 2016 SCC 27, para. 3. Since Jordan, the defence bears a responsibility for being part of a solution that will have positive ramifications not only for individual cases, but for the entire justice system, thereby enhancing – rather than diminishing – timely justice: R v. Jordan, para. 86. Had this application been granted after all the evidence was called, two days of valuable court time would have been unnecessarily expended on this case. Time which could have been allocated for another trial.

CONCLUSION

[32] The 11(b) application is dismissed for the reasons indicated.

Released: April 16, 2019

Justice Sandra Caponecchia