Court Information
Ontario Court of Justice
Date: April 29, 2019
Between: Her Majesty the Queen
— And —
Thanh Nguyen, Kevin Tran and Catherine Vu
Before: Justice Louise A. Botham
**Ruling on 11(b) Application
Counsel
For the Public Prosecution Service of Canada: Christopher Greene & Ildiko Erdei
Counsel for the defendant Nguyen: Christopher Tarach
Counsel for the defendant Vu: Angela Ruffo
Counsel for the defendant Tran: Gregory Lafontaine
Decision
BOTHAM J.:
Application for Stay of Proceedings
[1] All three Applicants have applied for an order staying these proceedings on the grounds that their right to be tried within a constitutionally tolerable time has been breached. There is a ceiling of 18 months for cases tried in the Ontario Court of Justice beyond which delay to trial becomes presumptively unreasonable.
[2] On October 23, 2017, search warrants were executed at two residences which resulted in the seizure of narcotics and a handgun. A 5 day trial is scheduled to begin on April 29, 2019 and conclude on May 3, 2019. Pre-trial motions were heard from February 26, 2019 to March 1, 2019.
[3] All three Applicants were initially released on bail, with strict conditions. Ms. Vu's term of house arrest was only removed on December 10, 2018. Applicants Tran and Nguyen were subsequently detained when the Crown brought a bail review on January 23, 2018. They were ultimately released on surety bails on July 20, 2018, again on strict conditions.
[4] On March 26, 2018, pre-trial motions were scheduled for November 29 and 30, 2018 and a 5 day trial was scheduled for January 7 through 11, 2019.
[5] In the summer of 2018, both Mr. Nguyen and Ms. Vu retained new counsel. The matter was rescheduled and is now estimated to complete on May 3, 2019. Total time to trial will be 18 months and 9 days.
[6] The Crown submits that when the periods of defence delay are subtracted, the total delay in bringing this matter to trial does not exceed the 18 month presumptive ceiling.
Email Correspondence and Scheduling Issues
[7] A string of emails between all three counsel and the federal Crown form part of the record in this application. On September 25, 2018, Mr. Greene, for the federal Crown emailed Ms. Ruffo advising her of the November Garofoli dates stating, "I realize that that is very short notice for you to prepare, even if you are available. New counsel for Nguyen is in a similar position and has advised he may need to adjourn. Under the circumstances I wouldn't oppose of course. As well, now that the two co-accused are out of custody, it may be that someone wants to re-elect". Ms. Ruffo replied, "I do think that timeline for the Garofoli is going to be too tight for me, as I have not even seen the disclosure yet"… on October 2nd she was advised disclosure was available and by way of a later email on the same day, Mr. Greene advised, "I'm going to send out an email to all counsel to see where we stand with respect to the dates, as I'd like to vacate them asap if that's what's going to happen". On the same day counsel for Mr. Nguyen emailed Mr. Greene asking, "would you like to rally everyone together so we can address the issue of the upcoming dates".
[8] On October 3, 2018 an email was sent to all 3 counsel, asking if it was realistic that the matter would be able to proceed as scheduled and suggesting in any event that another JPT be held. Counsel for Mr. Nguyen replied, "Although I am available for the dates currently set, I am struggling to fit in the preparation required. I should know in short time whether I will have a block of time opening up. That said, I encourage the thoughts and preferences of others." Counsel for Ms. Vu replied, "I am in the same position as Mr. Tarach. I will probably have a better sense of things in a few weeks but I don't think that timeline is going to work for me so it makes sense to vacate the current dates sooner rather than later". This sparked a response on October 5, 2018 from Mr. Greene, "shall we bring this forward next week to vacate the dates and set a new JPT?"
[9] It was at this point that Mr. Tran's counsel joined the email trail. Mr. Lafontaine's response to the last email reads, "I'll be opposed on basis of assertion of 11(b) rights. Next week is fine."
[10] Ultimately Wednesday was suggested as the bring forward date, to which Mr. Lafontaine responded, "consistent with my client's clear assertion of his section 11(b) rights, I'll have someone from my office available pretty much anytime for a further JPT."
October 10, 2018 Court Appearance
[11] On October 10, 2018, the matter was before Justice Mulligan. Mr. Greene was present as were Ms. Ruffo and Mr. Tarach. Mr. Lafontaine was represented by his articling student, Mr. Moseh-Steinberg. Mr. Greene advised Her Honour that Garofoli and trial dates had been set but with two new counsel on board, another JPT had been scheduled and "we'll be asking to vacate the dates". Mr. Tarach then suggested that perhaps the January dates could be used for the Garofoli dates. Justice Mulligan then asked whether new counsel could confirm that there still would be a Garofoli application and Ms. Ruffo replied that she was not in a position to confirm that. It was determined that the November dates would be vacated and the January dates would remain for the time being. In the course of this discussion, Mr. Lafontaine's agent intervened and said, "Oh, sorry. I apologize, Your Honour. Just for 11(b) purposes, we are opposing the setting of the new dates. But I understand that, obviously just … (indiscernible)." Justice Mulligan then asked "you're opposing what?" Mr. Moseh-Steinberg replied, "we're opposing the setting of the new dates just principally and for 11(b) purposes but we understand that it's just…." and Her Honour responded "but we're not setting dates, we're cancelling okay, so cause you're all in agreement that those November dates are not going to be used. Okay. So I don't mind and so everyone is nodding yes."
[12] When counsel returned from the Trial Coordinator's Office, the court was advised that after further agreement, the decision had been made to vacate the January dates as well. Counsel for the federal Crown, Mr. Greene stated that there had been further discussion outside of court and "from the Crown's perspective for trial the January dates would have been fine but for a Garofoli there's some real difficulties". The matter was then adjourned to October 22, 2018 for a further judicial pre-trial, given that there were two new trial counsel. On that date, Mr. Golec appeared as counsel for Mr. Tran and agent for Mr. Lafontaine.
Available Trial Dates
[13] In addition to the dates which were ultimately scheduled, the trial coordinator had offered January 16 to 18, February 4 to 15, March 1 to 5, March 11 to 15 and March 25 to 29 and April 11 to 17, 2019 for this matter. The federal Crown was available for all dates offered. Counsel for Mr. Tran was not available for any of them and counsel for Mr. Thanh Nguyen was not available for April 11 to 17.
[14] The pre-trial motions were scheduled for February 27 to March 1, 2019 and the trial was scheduled to commence on April 29 through to May 3, 2019. Before the matter adjourned, Mr. Golec stated, "and I can indicate for Mr. Lafontaine on behalf of Mr. Tran, your Honour, that it may have already indicated when those dates were vacated, if they were. But Mr. Lafontaine continues to be available on those dates. And that's our early (indiscernible)."
Analysis of Defence Delay
[15] The Applicants, Vu and Nguyen had trial dates scheduled. They made the decision to change counsel after those dates were set. They instructed their respective counsel to reschedule the November pre-trial motions. It would have been clear that the rescheduling of the motions would likely extend the time to trial to some degree.
[16] In Jordan, the majority at para. 66 writes:
"Defence delay comprises delays waived by the defence, and delays caused solely or directly by the defence's conduct. Defence actions legitimately taken to respond to the charges do not constitute defence delay."
[17] I'm not sure how the adjournment of the first trial date can be characterized except as delay occasioned by the conduct of the defence. This is not a criticism of that conduct, simply an acknowledgement that if counsel had been prepared to proceed on the scheduled dates, the matter would presumably be over by now.
[18] The Applicants submit that none of the delay occasioned by the decision to change counsel should be characterized as 'defence delay'. They point to the fact that, although the matter had been scheduled to proceed to trial during early January, disclosure was still being made throughout January 2019 and into February 2019. They submit that had the matter been scheduled to proceed on January 7, 2019, the matter would have been adjourned to remedy the outstanding disclosure issues.
[19] The difficulty with that position is that there is no way of knowing when the remaining disclosure would have been provided had the motions and trial dates remained unchanged. Clearly as of the fall of 2018 there were still outstanding disclosure issues that needed to be resolved but as of the middle of October, the trial had been adjourned. The Crown had a longer period of time to satisfy those requests and did so by the commencement of the pre-trial motions in February. It may well be that the same diligence would have been applied to fulfilling those requests in accordance with the previous trial schedule. I am not persuaded on this record that the original dates would necessarily have been adjourned to complete disclosure.
Calculation of Delay for Vu and Nguyen
[20] The trial should have completed as of January 11, 2019, it is now expected to complete on May 3, 2019, which I calculate is 3 months and 22 days later. I would therefore deduct that period of time, making the total period of delay 14 months and 17 days as it relates to Applicants' Vu and Nguyen.
Analysis of Tran's Situation
[21] Mr. Tran's situation is factually different. He was prepared to proceed to trial on the original dates. I think it unfortunate that the matter proceeded as informally as it did. Neither counsel who were seeking the adjournment brought a formal application. I understand why that happened in the sense that Crown counsel could appreciate that they needed time to prepare and therefore was not opposed. However counsel for Tran did assert through his email correspondence that he was opposed to the matter being rescheduled. That somehow was subsumed in the assumption that as the matters needed to be rescheduled to accommodate new counsel that was what was going to happen. This led to Justice Mulligan being told that the matters were being vacated on consent of all parties and I'm not sure that was the case. That being said, at no time did either agent for Mr. Lafontaine request an opportunity to make submissions as to why the matter should not be rescheduled. Rather there was simply an assertion of 11(b). However, I think it quite clear that Mr. Tran at no time waived that right.
[22] The reality is, even if Mr. Tran had vociferously opposed the adjournment sought by co-counsel, I cannot imagine that it would not have been granted. Defendants are entitled to change counsel and the decision to do so was not at the last minute and steps were being taken to reschedule the matter as expeditiously as possible. It appears on the record before me that he was simply accepting the inevitable which was that the matter would be rescheduled as a result of the change of counsel.
[23] No request was made by Mr. Tran for severance so that his matter could proceed as scheduled. However having reviewed the record for this application and considering the evidence led in the course of the other pre-trial motions that I have heard, I certainly would have been reluctant to order severance, given the complexities occasioned by having separate trials where the same evidence would have to be called twice, especially given that the matter was able to be rescheduled in a reasonably prompt time, albeit 9 days beyond the Jordan 18 month timeframe.
[24] It is clear on the record that the delay in rescheduling the matter was caused by the unavailability of counsel for Mr. Tran. It seems to me however unfair to attribute that delay to actions by Mr. Tran, when he did not seek the adjournment.
Exceptional Circumstances and Jordan Analysis
[25] I am therefore satisfied that Mr. Tran's matter has exceeded the Jordan guidelines. As such the prosecution bears the onus of rebutting the presumption that the delay has been unreasonable. That presumption is rebuttable where the Crown can establish the existence of exceptional circumstances which are defined as events reasonably unforeseen or unavoidable and not capable of remediation. Where the exceptional circumstance has caused a discrete event leading to delay, then that period of delay should be subtracted from the equation, where the Crown can demonstrate that the delay was as a result of a case's complexity, then the excessive delay will be found to be reasonable.
[26] I believe that the decision of Mr. Tran's co-accused to change counsel in the fall of 2018 constitutes an 'exceptional circumstances' as defined in Jordan. That change of counsel necessitated a delay in the Garofoli application and correspondingly the trial itself. As of October 2nd it was clear that the matter might need to be rescheduled. The Crown arranged, with the cooperation of counsel, to bring the matter forward and canvass new dates. That was done expeditiously before the end of October. Although I have explained why I do not believe it appropriate to attribute any delay in the rescheduling to Mr. Tran, the reality is there were earlier dates available to all counsel and had it not been for the trial schedule of Mr. Lafontaine, the matter might well have concluded within the Jordan guidelines. It is also a reality of the system that multi-accused matters can complicate scheduling when there is a need to accommodate more than one counsel's availability.
Conclusion
[27] I am satisfied that the Crown has met its onus and rebutted the presumption that the delay to trial for Mr. Tran has been unreasonable, notwithstanding that it has exceeded the Jordan guidelines. The time to trial for the other two Applicants did not exceed the Jordan guidelines. All three applications fail.
Justice Louise A. Botham
Footnotes
[2] R. v. Jordan, 2016 SCC 27, para. 105