Ontario Court of Justice
Date: 2019-08-30
Court File No.: Toronto 4817 998 18-75002176
Between:
HER MAJESTY THE QUEEN
Respondent
— AND —
DARRYL JOHN HOLLOWELL
Applicant
Before: Justice William B. Horkins
Ruling on an Application for a Stay of Proceedings released August 30, 2019
Counsel:
- Mr. Craig Brannagan, counsel for the Crown
- Mr. Adam Little, counsel for the accused Darryl John Hollowell
W.B. HORKINS, J.:
[1] Darryl Hollowell was charged with Impaired Driving on May 8, 2019. He is scheduled to be tried before me on October 3rd and 4th, 2019. Earlier dates of September 26 and 27 were offered and declined by defence counsel. This application proceeds upon the assumption that this case will be approximately 17 months old when completed.
[2] On August 9th, 2019 the accused brought an application for a Stay of Proceedings pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms. He alleges a violation of his right to be tried within a reasonable period of time contrary to section 11(b).
The Framework of Analysis
[3] In Coulter, the Ontario Court of Appeal clearly articulated the appropriate framework of analysis in 11(b) applications following the Supreme Court's dramatic reorganization of the law in the Jordan decision.
A. The New Framework Summarized
Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).
Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, at para. 66).
Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).
If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).
Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached (Jordan, at para. 75).
If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).
If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, at para. 48).
B. Key Elements in the New Framework
Defence Delay
Defence delay has two components: (1) that arising from defence waiver; and (2) delay caused solely by the conduct of the defence ("defence-caused delay") (Jordan, paras. 61 and 63).
Defence-caused delay is comprised of situations where the acts of the defence either directly caused the delay or are shown to be a deliberate and calculated tactic employed to delay the trial. Frivolous applications and requests are the most straightforward examples of defence delay (Jordan, at para. 63). Where the court and the Crown are ready to proceed but the defence is not, the defence will have directly caused the delay (Jordan, at para. 64).
If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. We expect stays beneath the ceiling to be rare, and limited to clear cases.
[4] The total delay in this case is approximately 17 months, just under the presumptive 18 months ceiling. The onus is therefore on the applicant to establish that he has been diligent in moving the case forward and that the delay "markedly exceeds" the reasonable time requirements of the case.
ANALYSIS
[5] The standard intake process for a case such as this at the College Park Courthouse is to have a 4- to 6-week delay prior to the first appearance. This initial delay is designed to allow for the accused to retain counsel and to allow for the Crown to prepare the disclosure package.
[6] On the first appearance the initial disclosure package in this case seems to have been incomplete, at least from the accused's perspective. This is not at all unusual.
[7] In these "garden variety" impaired driving cases the investigative materials are invariably complete before the accused even leaves the station. Apart from limited resources, there is no reason at all why complete disclosure could not be provided within a few hours, let alone within a few weeks. However, there are chronically limited resources devoted to this process and there are often ancillary disclosure requests for materials that the prosecution understandably considers outside of the materials relevant to the Crown's case.
[8] Prior to moving on to the next intake step in this case – the mandatory Crown and Judicial Pre-trial conferences, which are required in advance of setting a trial date – defence counsel instead elected to pursue further disclosure materials.
[9] The pivotal issue between Crown and defence in this case is whether the defence refusal to move the case forward was necessary or not. The views of both sides probably have some merit; the Crown produces all that it feels is part of the case; on the other hand, the accused may have instructions or legal issues that require the production of otherwise apparently peripheral investigative materials.
[10] Sometimes pre-trial conferences cannot be constructively undertaken without a meaningful amount of the disclosure materials. It is difficult to second guess whether that was necessarily the situation here. Some of the additional officer notes requested are not what I would consider to be core disclosure material necessary for moving the case forward. The in-car or booking video will invariably be part of the Crown's case at trial and ideally, it should have been produced with the initial package. But again, I am not persuaded that this material was required in a case like this prior to moving forward to a Crown or Judicial pre-trial.
[11] Limited resources, not any lack of intent or integrity, delay the full production of disclosure in many of these cases. Six months is entirely too long to produce the materials requested in this case. However disappointing that is, I am not persuaded by the record before me that it was necessary for the case to simply tread water for six months prior to setting the trial date. The Crown was prepared to move forward. Half to a third of that delay ought to be considered defence delay.
[12] Once the parties asked for a trial date, the first available space for a two-day trial was 11 months away. Again, as disappointing as that is, it still brings the case to trial below the presumptive 18-month limit.
[13] If one or two months is netted out for defence delay, then the case is well below the Jordan limit. Even if no defence delay is netted out, it is still below the Jordan limit and the onus rests with the accused to persuade the Court that this delay "markedly exceeds" what is reasonable.
[14] In Jordan, the Supreme Court elaborated a new analytical framework for s. 11(b) claims, jettisoning the framework it had previously provided in Morin as being too unpredictable, confusing and complex. The presumptive ceiling of 18 months was established.
[15] Ironically, in this jurisdiction the normal time from the setting of a trial date to the selected trial date has been around nine months for many years. Prior to Jordan, cases in the range of 13 to 15 months old were regularly stayed. The usual cause of Charter-infringing delay in this jurisdiction has always been deficiencies and delays in the disclosure process. In this jurisdiction the Jordan presumptive ceiling of 18 months effectively gave the Crown a more generous licence in moving cases through to their conclusion. Cases are not moving forward any faster than they did before Jordan, however stays granted for 11(b) violations in this courthouse have become remarkably scarce.
[16] Counsel provided me with a Newmarket case to consider, R v. Desouza, which was decided by my colleague Justice Kenkel. In that case, a Stay was ordered for a 15-month net delay. Not surprisingly, I agree with Justice Kenkel's analysis and his conclusion in that case. However, I find that the circumstances of that case are clearly distinguishable. Due to the somewhat unique intake system in Newmarket, that trial was coming up for a third trial date not having been reached twice before. That factor was clearly significant in the conclusion reached by Justice Kenkel that a Stay was necessary.
[17] Applying the Jordan framework of analysis to the situation in this case and bearing in mind the direction from our Court of Appeal that: "We expect stays beneath the ceiling to be rare, and limited to clear cases." – I conclude that, although the delay here is concerning and disappointing, it is not constitutionally intolerable.
[18] The application for a Stay is dismissed.
Released: August 30, 2019
Signed: "Justice W. B. Horkins"