ONTARIO COURT OF JUSTICE

CITATION: R. v. Côté, 2019 ONCJ 87

DATE: 2019 02 16

COURT FILE No.: Brampton 16-14728

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

ERROL CÔTÉ

Before Justice Patrice F. Band

Ruling on s. 11(b) Charter Application, released on February 16, 2019

Mr. S. Marinier........................................................................................ counsel for the PPSC

Mr. P.J. Craniotis........................................................ counsel for the Applicant, Mr. Côté

BAND J.:

I. Introduction & Issues

[1] This is a s. 11(b) application in a proceeding that was initiated after the Supreme Court of Canada’s decision in R. v. Jordan.[^1] The total delay in this case – 28 months – is largely the result of a combination of defence delay and discrete events.

[2] Mr. Côté (“the Applicant”) was arrested for the offence of importing almost three kilograms of heroin into Canada at the end of November 2016.[^2] The trial is scheduled for five days ending March 29, 2019. This will be Trial Date #5.

[3] Regardless of whose defence delay calculations I adopt, the net delay is above the presumptive ceiling. The two central questions in this matter are whether the discrete events bring that delay below the ceiling and, if so, whether the remaining delay is unreasonable.

[4] A number of wise concessions that the Applicant’s counsel made on the day of the hearing assisted in narrowing the issues in this case. The parties agree that three periods of defence delay and four discrete events contributed to this matter’s time to trial. Their disagreement lies in the computation of those periods and what flows from them.

[5] Two issues that were not clearly addressed or contemplated in Jordan and subsequent cases were the subject of controversy in this Application:

• Who bears the burden of presenting evidence concerning defence delay?
• Does a discrete event that intervenes during a period of defence delay operate to reduce that defence delay?

II. Facts

[6] There have been four prior trial dates in this matter:

• January 22-26, 2018 (“Trial Date #1”)
• April 9-13, 2018 (“Trial Date #2”)
• June 25-19, 2018 (“Trial Date #3”), and
• November 5-9, 2018 (“Trial Date #4”).

[7] The Applicant, a francophone, exercised his right to have his trial heard in French pursuant to s. 530 of the Criminal Code.[^3] At the time, he was represented by Ms. Kathy Jalali. Mr. Craniotis was retained in October 2018.

[8] When Trial Date #1 was set, there were two bilingual judges in Brampton: Madam Justice Copeland and me. Copeland J. was originally scheduled to preside over Trial Date #1. In December 2017, Copeland J. was appointed to the Superior Court of Justice. Within a month of the trial, the Trial Coordinator was able to arrange for me to take her place.

[9] Copeland J.’s appointment did not cause any delays. However, a medical issue I suffered the weekend prior to Trial Date #1 required that the matter be adjourned.[^4] This was the first discrete event.

[10] Trial Date #2 was adjourned because the son of one of the Crown’s principal witnesses was gravely ill. This was the second discrete event.

[11] A few weeks prior to Trial date #3, the little boy succumbed to his illness. This was the third discrete event.

[12] Trial Date #4 was adjourned because Ms. Jalali was appointed to the Ontario Court of Justice a short time prior. This was the fourth discrete event.

[13] Trial Date #5 (March 25-29, 2019) is set to take place before me, as a “visiting judge” from the Toronto Region.

[14] The delay between Trial Dates #1 and 2 is just over two-and-a-half months.[^5]

[15] The delay between Trial Dates #2 and 3 is just under three months.[^6]

[16] The delay between Trial Dates #3 and 4 is just under three months.[^7]

[17] The delay between Trial Dates #4 and 5 is just under five months.[^8]

[18] There is now only one bilingual judge in this region. While this is a serious concern, no evidence was presented to show that it was a factor in this particular case.

III. Defence Delays

(a) The Burden of Proof

[19] The computation of defence delays can have a dramatic impact on the outcome of a s. 11(b) Application because it determines where the delay lies relative to the presumptive ceiling. This is why it is important to identify the party who bears the burden of proving defence delays.

[20] In this case, because the parties agree that the net delay exceeds the presumptive ceiling, the question is less concerning. Nonetheless, it should be answered because they disagree about the period of delay surrounding the first Judicial Pre-Trial Conference (“the first JPT”).

[21] In my view, the defence bears an evidentiary burden to prove the quantum of defence delay because, while the burdens shift according to the net delay, a s. 11(b) application is a defence application. The Applicant’s argument that others, including the Crown, the courts and the public have an interest in speedy trials is correct, but it does not change this basic fact.

[22] This conclusion is also consistent with the pre-existing state of the law regarding the right to trial within a reasonable time and other more general principles under the Charter. Burdens also shift in s. 8 jurisprudence, depending on the existence or not of a warrant. Yet, as the Supreme Court of Canada explained in R. v. Collins, [1987] 1 S.C.R. 265 at para. 21,

The [accused] … bears the burden of persuading the court that her Charter rights or freedoms have been infringed or denied. That appears from the wording of s. 24(1) and (2), and most courts which have considered the issue have come to that conclusion … The appellant also bears the initial burden of presenting evidence. The standard of persuasion required is only the civil standard of the balance of probabilities and, because of this, the allocation of the burden of persuasion means only that, in a case where the evidence does not establish whether or not the appellant's rights were infringed, the court must conclude that they were not. [Emphasis mine.]

[23] I find that this approach is also implicit in Jordan itself. At paras. 58 and 105, the majority wrote that once the ceiling is exceeded, the delay “becomes presumptively unreasonable” and the burden “shifts from the defence” to the Crown. [Emphasis mine.]

(b) Periods of Defence Delay

[24] On February 17, 2017, the first JPT was scheduled to take place on May 19, 2017. In response to Crown counsel’s question whether that was the first date offered by the Trial Coordinator’s office, Defence counsel responded:

No, there were two dates offered in March, for which I’m not available. I have other available dates. And then I’m not available the whole month of April, as I’m in a five-week prelim.[^9]

[25] The Applicant argues that it would be unfair to ascribe the entire month of March to defence delay in the absence of evidence as to the dates that were offered in March. He also argues that it is unfair to assess the period from May 1 to 19 as defence delay in the absence of evidence that a JPT slot was available earlier in May.

[26] To simplify matters, the Crown suggests that the defence delay begins in mid-March. He also argues that the period in May is defence delay because, at less than three weeks, it is a reasonable period after Defence counsel’s stated unavailability during the entire month of April. It is unreasonable to expect that a date can be offered as soon as the Defence is available.

[27] But for two factors, I would find that the entire period of March to May 19 is defence delay. The Applicant bears the evidentiary burden and Defence counsel was best suited to know her availability and to state it on the record. The Jordan majority indicated at para. 111 that, while the new framework reduces “micro-counting”, it does not eliminate it. True, an inquiry into Defence availability is not required when the Court or Crown are unavailable: see para. 64. However, when Defence unavailability is at issue, a proper evidentiary foundation may call for such an inquiry.

[28] The first factor is that, for the sake of simplicity, the Crown concedes that the first half of March ought not to count against the Applicant. The second factor is that, as I have learned, the Trial Coordinator’s office in Brampton did not record the dates offered or the parties’ (un)availability at the time. That has since changed. In these circumstances, the Crown’s suggested approach is reasonable.

[29] I would, however, ascribe the first two weeks in May to defence delay. First, that period was caused directly by Defence counsel’s unavailability: see Jordan, at para. 64. Second, such a brief period following Defence counsel’s unavailability is reasonable. Third, it is fair to infer from Defence counsel’s statement on the record – …I’m not available the whole month of April, as I’m in a five-week prelim – that she was unavailable until after the first week of May. Fourth, quibbling of this kind, which harkens back to the Morin framework, is the kind of “minute accounting” that the Jordan majority sought to eliminate; not only is it “the bane of every trial judge’s existence,” but “this micro-counting is inefficient, relies on judicial ‘guesstimations’, and has been applied in a way that allows for tolerance of ever-increasing delay” (see para. 37).

[30] For these reasons, I find that the defence delay relating to the first JPT is approximately two months.

[31] When Trial Date #3 was adjourned, the Court and Crown were available for trial on September 17-21 and September 24-28, 2018. The Defence was not. November 5-9, the next dates offered, were available to all. The total delay from June 25 to November 5 was approximately four and a half months.[^10]

[32] The parties agree that the cause of the adjournment – the death of the witness’s son – is a discrete event. They also agree that the ensuing delay includes a period of defence delay beginning on September 17. The parties also agree that the appointment of Ms. Jalali to the Ontario Court of Justice sometime in October is a discrete event.

[33] However, the parties disagree as to the effect of Ms. Jalali’s appointment on the period in question. The Applicant argues that it is an intervening discrete event which acts to reduce the length of the defence delay during this period. Presumably, this argument is founded on the fact that, at para. 66 of Jordan, the majority wrote that defence delays are those that are caused “solely or directly by the defence’s conduct.” (Emphasis mine.)

[34] The Crown argues that the facts as they were understood at the time of the adjournment – simply that the Defence was unavailable – should dictate the result.

[35] In my view, a subsequent intervening discrete event should have no effect on the attribution of delay unless and until it intersects with the case in a tangible way. I say this for a number of reasons.

[36] First, the language in Jordan is concrete and categorical: the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not: see para. 66. In this instance, the Defence’s unavailability was the direct and sole cause of the period of delay at issue at the time the adjournment was granted. Even if a subsequent event intervened and became an additional reason why (in retrospect) the trial could not have taken place during the period in question, the Defence’s original unavailability remains the direct cause of the delay.

[37] Second, one of the main goals of the Jordan decision was to create a seismic shift away from the retrospective nature of the previous framework: see paras. 35-36. To allow this sort of inquiry would frustrate those ends. As the majority wrote at para. 36, “[c]ompeting after-the-fact explanations allow for potentially limitless variations in permissible delay.” This quibble illustrates the point.

[38] Third, such an inquiry is impractical and inefficient in the extreme. If allowed, it would incentivize the parties (and the system) to consume significant resources in myriad attempts to discover past intervening events. If a witness, defence counsel, the assigned Crown Attorney or trial judge is unexpectedly side-lined for a limited time within a defence-caused delay, does that period suddenly become constitutionally relevant? Must it be accounted for? How? Does the sudden, unforeseen availability of the Defence that arises during a period of erstwhile defence delay convert a portion of that delay into something else? If so, what kind of evidence is required? Does the first day of trial become a post hoc inquiry into everyone’s past (un)availability? Investigations like these must be avoided if the Jordan framework is to maintain any integrity.

[39] The only sensible approach is to assess the effect of discrete events when they have a real, not virtual, impact on the proceedings.

[40] Regarding this period, I would ascribe just under three months[^11] to the discrete event and just under two months to defence delay.[^12]

[41] The last period of defence delay – one week – is not controversial. The Defence was unavailable from January 15-19, 2018 so Trial Date #1 was set for January 22-26.

[42] As a result, the total defence delay in this matter is approximately four months.

IV. Net Delay

[43] The net delay of approximately 24 months is presumptively unreasonable. The burden therefore shifts to the Crown to establish that the discrete events in this case bring the remaining delay beneath the ceiling.

[44] The fact that the Applicant wishes to have his trial in French, and the corresponding need for the assistance of interpreters, do not make this a particularly complex case.

V. Discrete Events

[45] Trial Dates #1 to 4 were adjourned because of discrete events. The delays that flowed from these events were consistent: just short of three months each. The delay between Trial Dates #4 and 5 is approximately five months.

[46] The Applicant argued that the delays between Trial Dates #1 and 4 should have been no longer than one and a half months and that the delay between Trial Dates #4 and 5 should have been no longer than one month. While I agree with the Applicant that the last delay should be treated differently from the others, I do not adopt his recommended time-frames which, as he acknowledges, are arbitrary.

[47] Peel Region is one of the busiest jurisdictions (if not the busiest) in the country: see R. v. Brar, 2019 ONCJ 71 at para. 19 and cases cited therein by Kastner J. In my recent experience as a judge in that region for almost five years, a turnaround time of less than three months for a five-day trial is reasonable.

[48] I take a different view of the approximately five-month delay between Trial Dates #4 and 5. As the majority in Jordan explained at para. 75, the delays flowing from discrete events are not necessarily reasonable in their entirety; the Crown and the system must react to mitigate them within reason. In particular, “the justice system should be capable of prioritizing cases that have faltered due to unforeseen events.”

[49] First, it is telling that this period stands out in comparison to the previous delays in this very proceeding. Second, at almost five months, it strikes me as unreasonable in the context of a matter that had already been hampered by three discrete events and non-trivial defence delays. In these circumstances, I find that the system failed to adjust to the realities of this case. Efforts to mitigate this period of delay ought to have been made.

[50] For these reasons, I would ascribe only three months to the last discrete event.

VI. Remaining Delay

[51] The delays occasioned by discrete events in this matter total 12 months. The remaining delay is 12 months. The burden shifts back to the Applicant to demonstrate that this delay is unreasonable.

VII. Cases Below the Presumptive Ceiling

[52] To demonstrate that the remaining delay is unreasonable, the Defence must show both that (a) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings ("defence initiative") and (b) the case took markedly longer than it reasonably should have (“assessment of remaining delay”). Stays beneath the ceiling are rare and limited to clear cases. See Jordan, at para. 48.

(a) Defence Initiative

[53] Generally, the Defence showed diligence. The Applicant did not delay in retaining either counsel and was cooperative at various stages of the proceedings, including the first JPT and subsequent ones. The Defence was also responsive to the Crown and Court when concerns arose such as my medical issue and Ms. Jalali’s appointment. Ms. Jalali also expressed concerns about delay in a timely fashion and reached out to the Crown before Trial Date #3 to find out if it would go ahead.

[54] However, it cannot be said that the Defence attempted to set the earliest possible trial dates in this matter. The Defence were unavailable for almost two months between Trial Dates #3 and 4 and did not take or suggest any steps to accelerate the pace between Trial Dates #4 and 5. In regard to the latter, the transcript indicates that a s. 11(b) Application was being contemplated by the Defence. In those circumstances, their silence and inaction concerning the anticipated five-month delay tells against them. At the hearing of this Application, the Applicant submitted that a case management judge or change of jurisdiction should have been sought by the Crown in light of the case’s history. Uttered only now and from a perspective of hindsight, this suggestion is nothing more than a throw-back to the prior framework.

[55] The Applicant has not discharged his burden in this respect.

(b) Assessment of Remaining Delay

[56] To assess the reasonable time requirements of a case, I must consider a variety of factors including complexity, local considerations and whether the Crown took reasonable steps to expedite proceedings. This is not an exact science; rather, it calls upon me to take a “bird’s eye view of the case.” Where the Crown has done its part to expedite and streamline matters, it is unlikely that the reasonable time to trial will have been markedly exceeded. See Jordan at paras. 88-91.

[57] With the exception of the delay between Trial Dates #4 and 5, the Crown has done its part in this case. This matter has been the subject of a number of unforeseeable events. The Crown responded to each of these with dispatch by contacting the Trial Coordinators or the Defence to have the matter brought forward or addressed.

[58] The Applicant did not present any post-Jordan authorities from this jurisdiction in which a remaining delay of 12 months was held to have markedly exceeded the reasonable time to trial for a matter of this nature. I am not aware of any.

[59] I remind myself that this is not a complex case, that 12 months is a considerable period and that the Jordan ceiling is not aspirational. Yet, when I apply my knowledge of Peel Region, I am unable to find that this case took markedly longer than it should have.

[60] The Applicant has failed to discharge his burden in this respect as well.

VIII. Conclusion

[61] The Applicant has failed to demonstrate that the remaining delay of 12 months in this case is unreasonable. This is not a clear case for a stay. The Application is therefore dismissed.

Released: February 16, 2019

Justice Patrice F. Band

[^1]: 2016 SCC 27 (“Jordan”). [^2]: The information was sworn on November 17, 2016. [^3]: The Applicant’s materials were drafted in English. The Respondent responded in kind. The Parties both expected to make oral argument in English and invited me to provide written Reasons in English. [^4]: The parties agreed that this constituted a discrete event and that they were not entitled to know the specifics of the issue. R. v. Brooks, 2017 ONSC 1063 was cited: see paras. 20-25. [^5]: Two months and 18 days. [^6]: Two months and 26 days. [^7]: Two months and 23 days. [^8]: Four months and 20 days. [^9]: Transcript of Proceedings, February 17, 2017, at p. 1. [^10]: Four months and 12 days. [^11]: Two months and 23 days. [^12]: One month and 19 days.