Court File and Parties

Date: November 19, 2019

Court File No.: 17-1223

Ontario Court of Justice

Between:

Her Majesty the Queen

-and-

Kyle Bancroft

Before: Justice Michael G. March

Heard on: October 21, 2019

Reasons for Decision on s. 11(b) Charter Application released on: November 19, 2019

Counsel:

Teresa James — Counsel for the Crown

Kyle Bancroft — Self-Represented Accused

Decision

March, M.G., J.:

Introduction

[1] The Applicant, Kyle Bancroft ("Bancroft") has brought an application under section 11(b) of the Canadian Charter of Rights and Freedoms (the "Charter") contending that his right to trial within a reasonable time has been infringed or denied.

[2] Consequently, he seeks a stay of the proceedings against him.

[3] Bancroft is a self-represented accused. Throughout the course of this trial, I have attempted to assist him as best I can to ensure he receives a fair trial. At present, we are embarking upon the 14th day of trial.

Position of Bancroft

[4] Bancroft points out that there has been a delay of almost 25 months since he was charged with numerous offences contained in a 23 count Information. All of these charges, of course, are being tried before me, although only 15 remain. The Crown has at the outset of trial withdrawn three of Bancroft's charges, and later invited me to dismiss five others.

[5] Given that over two years have elapsed since Bancroft was charged with the subject offences for which he is being tried, the delay in completing his trial exceeds the 18 month limit established for provincial courts in R. v. Jordan, 2016 SCC 27.

[6] Bancroft complains also that Crown disclosure has not been made in a timely fashion. To date, he states, it remains incomplete. He maintains that he received only partial disclosure for the first time in May 2019.

[7] Bancroft contends that he has been unduly prejudiced by the delay in having his charges tried.

[8] Accordingly, he asks that I stay his remaining charges in light of the breach of this section 11(b) Charter right – a stay, of course, being the minimum remedy in consequence of a violation of the right to trial within a reasonable time.

Position of the Crown

[9] The Crown, in response, argues that a significant portion of the delay encountered in completing Mr. Bancroft's trial, some 12 months according to its calculation, was caused by him or his previously retained counsel.

[10] Essentially, the Crown submits that Bancroft requested numerous adjournments over the course of this proceeding in order to:

a) retain counsel,

b) change counsel, and

c) bring a Rowbotham application.

[11] The Crown contends that all delays caused as a result of the above factors ought to be deducted from the overall delay, as they constitute "defence caused delay."

[12] The Crown concedes that there was no express waiver of delay by Bancroft.

[13] The Crown further argues that "exceptional circumstances" exist to explain and justify some of the delay encountered in trying the subject charges.

[14] Generally speaking, exceptional circumstances are comprised of two categories:

a) discrete events, and

b) particularly complex cases.

[15] The Crown points to two discrete events, which occurred in this case. Firstly, Bancroft chose to bring a Rowbotham application to have counsel appointed on his behalf and to be funded by the state.

[16] Secondly, while Bancroft was incarcerated awaiting trial, his Rowbotham application was denied leaving him no choice but to act for himself, and the correctional authorities then lost, for a period of time, the Crown disclosure, which was sent to him at the jail.

[17] The Crown does not argue that its case against Bancroft was particularly complex. However, one final factor, the inaccurate estimate of the amount of time required to complete Bancroft's trial, constitutes an exceptional circumstance in the Crown's view.

[18] In essence, the Crown asserts that a good faith time estimate for Bancroft's trial made with the assistance of counsel, who brought the Rowbotham application, was inadequate, when it came to pass that the application was denied in respect of these charges before the Court. Thereafter, the Crown, Bancroft, and the Court made no adjustment for the time required to try Bancroft's charges as a self-represented accused.

The Law

[19] In R. v. Gopie, 2017 ONCA 728, Gillese J.A. held:

[111] The Jordan framework is based on ceilings beyond which delay is presumptively unreasonable. . . The following steps determine whether the delay in this case exceeds that ceiling and, if it does, whether the delay is nonetheless reasonable.

[112] The first step is to calculate the total delay from the charge to the actual or anticipated end of trial.

[113] Next, defence delay must be subtracted from the total delay, leaving the "Net Delay". Defence delay has two components: that arising from defence waiver and, that caused solely by the conduct of the defence ("defence-caused delay"). The latter 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 straightforward examples of defence-caused delay (Jordan, at paras. 60-67).

[114] If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable (Jordan, at para. 68).

[115] To rebut the presumption of unreasonableness, the Crown must establish the presence of exceptional circumstances. Exceptional circumstances are those which lie outside the Crown's control, in that they are: (1) reasonably unforeseen or reasonably unavoidable; and (2) Crown counsel could not reasonably remedy the delay emanating from the circumstances once they arose. Such circumstances need not be rare or entirely uncommon (Jordan, at paras. 68-69).

[116] Generally, exceptional circumstances fall under two categories: (1) discrete events; and (2) particularly complex cases. An illustration of a discrete event is a medical or family emergency on the part of the accused, important witnesses, counsel or the trial judge (Jordan, at paras. 71-72).

[117] The period of delay caused by discrete events must be subtracted from the Net Delay – yielding the "Resulting Delay" – for the purposes of determining whether the presumptive ceiling has been reached. If the Resulting Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex, such that the time the case took was justified and the delay reasonable (Jordan, at paras. 75-80).

[118] If the Resulting Delay falls below the presumptive ceiling, the onus shifts to the appellants to show that the delay is unreasonable. Stays beneath the ceiling are expected to be rare and limited to clear cases (Jordan, at paras. 82-83).

[20] In my efforts as the trial judge to assist a self-represented accused, I drew Bancroft's attention to the above paragraphs of the Gopie case on several occasions. I instructed Bancroft to tailor his argument regarding what he submitted was the unreasonable delay resulting in a violation of his section 11(b) Charter right in accordance with the steps laid out by Gillese J.A. Unfortunately, Bancroft was either unwilling or unable to structure his argument in accordance with the very precise, helpful instructions provided in Gopie.

The Issues

[21] The application brought by Bancroft under section 11(b) of the Charter raises the following issues:

a) What is the total delay from the date charges were laid against Bancroft until the anticipated completion of trial?

b) What is the net delay (i.e. total delay minus waiver of delay and any defence caused delay)?

c) Am I satisfied, in considering (b) above, that the defence employed deliberate and calculated tactics to delay the trial?

d) Does the net delay exceed the presumptive Jordan ceiling – in this case – 18 months?

e) If the net delay exceeds the presumptive ceiling, can the Crown rebut the presumption by showing exceptional circumstances existed?

f) In considering exceptional circumstances, which fall into two main categories – discrete events and case complexity – am I satisfied that the Crown has demonstrated these factors existed and caused delays?

g) Is the resulting delay, after all deductions are made, below the presumptive ceiling (i.e. 18 months)?

h) If so, the onus shifts to the defence, and I must be mindful that the remedy of a stay of charges is rare and only to be granted in clear cases where the ceiling has not been exceeded. Is this such a case?

Analysis

Total Delay

[22] By my calculation, the total delay from the date upon which the Information setting out Bancroft's charges was sworn, September 26, 2017, to the anticipated date for the completion of his trial, November 19, 2019, comprises a span of two years and seven weeks. This, of course, exceeds the 18 month Jordan limit.

Net Delay

[23] Net delay is arrived at by subtracting defence caused delay and waiver of delay from the total delay.

[24] In my assessment, defence caused delay was the major contributing factor encountered in bringing Bancroft's charges to completion at trial. I have segmented and characterized the delay as follows:

a) September 26, 2017 to November 29, 2017 (2 months) – the period over which Bancroft retained counsel; counsel requested disclosure and reviewed it – NEUTRAL

b) November 29, 2017 to February 13, 2018 (2.5 months) – the period over which the defence sought adjournments, discussed possible resolution of Bancroft's charges and defence counsel remained uncertain about the scope of his retainer – DEFENCE CAUSED DELAY

c) February 13, 2018 to April 3, 2018 (1.6 months) – the period over which defence counsel was unable still to confirm his retainer to act for Bancroft on the subject charges and sought an adjournment to rectify a potential conflict for his firm (i.e. one of the daughters of a local judge was articling within defence counsel's firm; defence counsel and Bancroft knew or ought to have known of the potential conflict while considering whether a retainer agreement between them could be reached) – DEFENCE CAUSED DELAY

d) April 3, 2018 to July 10, 2018 (3.3 months) – the period over which the Crown and the court were ready to set trial dates on Bancroft's charges; defence counsel did not attend court, nor did he make an election; the matter was adjourned for a judicial pre-trial – DEFENCE CAUSED DELAY

e) July 10, 2018 to July 31, 2018 (0.7 months) – the period over which defence counsel applied to be removed as Bancroft's lawyer; the presiding judge remarked that the delay engendered thereby ". . . lies at Mr. Bancroft's feet" – DEFENCE CAUSED DELAY

f) July 31, 2018 to August 28, 2018 (0.9 months) – the period over which Bancroft sought an adjournment in his attempt to retain new counsel; the Crown and Court were ready to set trial dates, but Bancroft was not – DEFENCE CAUSED DELAY

g) August 28, 2018 to October 2, 2018 (1.2 months) – the period over which Bancroft sought to finalize his legal aid application; however, he needed more time to provide his financial documents; the presiding judge commented again: ". . .the delay is at Mr. Bancroft's feet" – DEFENCE CAUSED DELAY

h) October 2, 2018 to October 9, 2018 (7 days) – the period over which Bancroft, as an inmate, was not transported to court in error – CROWN CAUSED DELAY

i) October 9, 2018 to December 4, 2018 (1.9 months) – the period over which Bancroft sought an adjournment in order to proceed with a Rowbotham application; meanwhile the Crown and the Court were ready to set trial dates, but Bancroft's position was not unreasonable under the circumstances given the number of charges he was facing in various jurisdictions throughout Ontario – EXCEPTIONAL CIRCUMSTANCES

j) December 4, 2018 to January 31, 2019 (1.9 months) – the period over which possible new defence counsel for Bancroft sought to have trial dates set for him, but did not indicate a defence election as to mode trial; meanwhile the Crown and the Court were ready to set dates while the defence sought an adjournment for purposes of determining the defence election – DEFENCE CAUSED DELAY

k) January 31, 2019 to November 19, 2019 (9.6 months) – the period over which the defence was awaiting determination of its Rowbotham application, which application was ultimately denied, forcing Bancroft to act for himself; meanwhile disclosure now had to be made available for Bancroft to review in order to prepare for trial in a jail setting – SOME EXCEPTIONAL CIRCUMSTANCES

Deliberate and Calculated Defence Tactics

[25] On the evidence called at the hearing of this section 11(b) Charter application brought by Bancroft, I am not at all satisfied that his counsel or he employed deliberate and calculated tactics to delay the trial. It was clear on the record before me and my review of the transcripts that Bancroft faced three sets of charges, – one set in this jurisdiction (Renfrew County) and two other sets in Ottawa and Belleville. The global Rowbotham application brought on his behalf was warranted.

Does Net Delay Exceed the Presumptive Jordan Ceiling

[26] In tallying the defence caused delay, I arrive at 12.1 months. There was no waiver of delay by Bancroft. Consequently, the net delay equals total delay of two years and seven weeks (25.75 months) minus defence caused delay (12.1 months) or 13.65 months.

[27] 13.65 months, of course, does not exceed the 18 month presumptive ceiling established in Jordan.

Exceptional Circumstances

[28] Although I need not consider exceptional circumstances, having determined that the presumptive 18 month Jordan ceiling has not been exceeded, I do find that they existed very much so in this case. The decision made by the defence to proceed with the Rowbotham application on all outstanding charges for Bancroft throughout Ontario was reasonable. Indeed, it was partially successful. He has counsel for his Ottawa charges. Unfortunately for Bancroft, the application failed in respect of the charges for which he is on trial before me, as well as for his charges in Belleville. In respect of the non-Ottawa charges, the application judge found that the case against Bancroft was not sufficiently complex to warrant the appointment of state funded counsel to assist him.

Rowbotham Delay

[29] The delay engendered by the defence decision to bring a Rowbotham application was not reasonably foreseeable for the Crown. Nor was the delay caused by proceeding with it reasonably avoidable for the Crown.

[30] I find that the fact of the Rowbotham application having been brought was indeed a discrete event. Furthermore, the Crown provided Bancroft with some direction and assistance in how to proceed with a Rowbotham application.

[31] On October 22, 2018, the Crown wrote to Legal Aid Ontario ("LAO") seeking confirmation of Bancroft's status as either legally aided or self-represented. LAO confirmed that Bancroft was not legally aided, had exhausted his appeals in attempting to obtain legal aid, and was therefore left with the final option of contacting counsel to bring a Rowbotham application on his behalf.

[32] On October 29, 2018, the Crown wrote to Bancroft advising of a two-pronged procedure he could follow in bringing a Rowbotham application either in accordance with a pilot program established by the Ministry of the Attorney General, or in the regular course.

[33] Additionally, the Crown supplied Bancroft with the forms to be filled out by him if he wished to apply under the pilot program. These were exceptional circumstances.

[34] I take some comfort in concluding that a defence Rowbotham application should be considered under the rubric of exceptional circumstances, or defence caused delay, in light of the recent decision of the Supreme Court of Canada in R. v. K.J.M., 2019 SCC 55. In speaking for the five member majority of a full panel of the Court, Moldaver J. held at para. 89:

[89] In my view, any delay resulting from failed attempts at extrajudicial sanctions should be treated on a case-by-case basis. That said, without foreclosing the theoretical possibility that such delay might in some rare instances be included in the Jordan calculation, it can reasonably be expected that it will be deducted as defence delay. There are sound policy reasons for this. Removing this type of delay from the Jordan calculation minimizes the risk that authorities will refrain from using extrajudicial sanctions in the first place out of a fear that they may be increasing the likelihood of a stay in the event such measures fail. Removing disincentives against extrajudicial sanctions is an important policy objective given the central role played by such measures in the youth criminal justice system. Furthermore, this approach makes sense at a conceptual level. When an attempt at extrajudicial sanctions is made, that effectively removes the matter from the court system and places it on a different track. It therefore makes good sense to "stop the clock" and to restart that clock only if and when the matter is placed back into the court system.

[35] By analogy, the clock should stop and restart over the period of time when an accused brings a Rowbotham application until its final determination. There are sound policy reasons for permitting accused to bring Rowbotham applications where state funded counsel ought to be appointed in order to safeguard the accused's s. 11(d) Charter right to a fair trial. Expecting an indigent accused, who does not qualify for state funded legal aid, to be capable of acting on his or her own behalf in defending numerous or serious charges, when the case for the Crown against him or her is complex, and grave consequences could flow from conviction, could well lead to a violation of s. 11(d) of the Charter.

[36] If the delay engendered by an accused's efforts to obtain a Rowbotham Order counted against the Crown, there would be a disincentive on the part of the state to facilitate the appointment of counsel to assist accused in such jeopardy. This certainly would not be a salutary development of the law.

Late Disclosure/Correctional Facility Caused Delay

[37] I disagree that the loss of disclosure by the correctional authorities constitutes a discrete event. Correctional authorities are agents of the state. The Crown cannot point to their shortcomings to excuse delay caused by the loss of disclosure.

[38] Protocols must exist for allowing disclosure to be safeguarded and reviewed by inmates in correctional institutions. The tracking of inmate disclosure, including how it is to be accessed and to whom it is sent, wherever the inmate may be from time to time while incarcerated, is a state responsibility. The prosecutorial branch of government cannot exonerate itself by shifting blame to the branch responsible for confining inmates.

[39] While it is true that the Crown cannot control how disclosure is handled by correctional institutions, and how ultimately access to it is obtained by inmates, it would be wholly improper to allow the Crown to be absolved of any responsibility for the loss of disclosure in a jail setting. Months, if not years, of an inmate's constitutional rights could be compromised, should the Crown be permitted to 'pass the buck' in this fashion.

[40] On a principled approach to what I foresee will be ever increasing numbers of self-represented accused, some of whom may be incarcerated, appearing before Canadian criminal courts, I cannot fathom how a deduction can ever be granted from net delay in favour of the Crown as a result of the loss of disclosure by correctional authorities. The Crown and correctional authorities must work together to ensure that a self-represented inmate's access to Crown disclosure is reasonably accommodated to ensure his or her section 7 Charter right to full answer and defence, and to know the case advanced by the Crown against him or her, is duly respected.

[41] In any event, the lost disclosure in this case resulted in a relatively minimal delay in the grand scheme of things. It was missing from roughly April 17, 2019 to May 16, 2019. It resulted in little, if any, actual delay in having Bancroft's trial proceed as scheduled on its first day, that being June 11, 2019.

Resulting Delay

[42] On account of the decision taken by the defence to bring a Rowbotham application, I would apportion 5.75 months (i.e. from October 9, 2018 when Bancroft announced on the record his intention to proceed with the application to the date the decision denying a Rowbotham Order for his Renfrew County charges was released on March 28, 2019) of the 9.6 months characterized above in sub-paragraph 24(k) as SOME EXCEPTIONAL CIRCUMSTANCES to be deducted from net delay. The Crown assisted Bancroft in bringing his Rowbotham application. The Crown cannot be punished for its efforts in helping Bancroft's counsel and Bancroft himself in the pursuit of the application, and the time it took for the application to be litigated and finally decided.

[43] To summarize, total delay in this case equates to 25.75 months. I have found that 12.1 months of that total amount was defence caused delay. A further 5.75 months of delay arose due to exceptional circumstances (i.e. the Rowbotham discrete event). Subtracting defence caused delay and exceptional circumstances from the total delay (25.75 minus 12.1 minus 5.75) leaves a resulting delay of 7.9 months. Of course, 7.9 months falls well below the presumptive ceiling of 18 months.

Onus Shift to the Defence

[44] In light of my calculations regarding resulting delay above, Bancroft must bear the onus of demonstrating on a balance of probabilities that his right to a trial within a reasonable time, as guaranteed by section 11(b) of the Charter, has been infringed or denied.

[45] Bancroft chose not to testify on the hearing of the application. The only evidence put before me was that of a staff member of the Crown Attorney's Office for Renfrew County. In addition, of course, I ordered and closely reviewed all of the transcripts for Bancroft's appearances in respect of the charges before me as they made their way to trial.

[46] Essentially, almost every request for an adjournment was made by either Bancroft personally, or his counsel, whomever that may have been from time to time. The adjournments were necessary in order for Bancroft to retain counsel, change counsel, bring a Rowbotham application, bring various Charter applications or prepare his own defence as a self-represented accused. Consequently, very little of the delay engendered in bringing his charges to the completion of trial lays at the feet of the Crown.

[47] Bancroft's trial began on June 11, 2019. Like most self-represented accused trials, it has taken longer to complete as procedures and process had to be explained to the accused along the way. Lenience and latitude have been shown to Bancroft time and again over the course of his trial. Such delay caused as a result is neutral. No one is to blame.

[48] Upon a comprehensive assessment of the evidence and the transcripts, I find no violation of Bancroft's s. 11(b) Charter right has occurred.

Conclusion

[49] For the above reasons, Bancroft's application under section 11(b) of the Charter is dismissed.

Dated: November 19, 2019

March, M.G., J.