Ontario Court of Justice

Date: 2020-05-12

Court File No.: Brampton 18-9994

Between:

HER MAJESTY THE QUEEN

Respondent

— and —

JOHNNY MORRISH

Applicant

Before: Justice M.M. Rahman

Reasons for ruling on application to stay proceedings based on unreasonable delay released on April 30, 2020. Amended reasons released on May 12, 2020.

Counsel:

• Angela MacArthur, counsel for the Crown, respondent
• Elliott Willschick, counsel for the accused, applicant

RAHMAN J.:

1. Introduction

[1] The applicant is charged in a 20-count information with various offences including dangerous driving, drug-impaired driving, using a firearm while committing an indictable offence, and assault with a weapon. He applies for a stay of proceedings on the grounds that his right to a trial within a reasonable time has been infringed.

[2] The 20-count information on which the applicant is being tried is a consolidation of two sets of charges. The first set of charges was laid in July 2017. Those charges relate to an incident on July 15, 2017 when the applicant allegedly drove at the complainant, ramming her car, while he was in a drug-impaired state. The second set of charges were laid in March 2018 while the applicant was on release. The second set of charges relate to historic offences dating back to 2016, which the complainant reported to police while the applicant was on release for the first set of charges.

[3] The applicant's trial on the consolidated information started on July 15, 2019. It did not finish within the four days originally set aside. The trial continued on October 1 and 2, 2019. This application was argued at the end of trial after all the evidence had been heard.

[4] The applicant argues that his trial has been unreasonably delayed principally because the Crown did not meet its disclosure obligations on time, and because the court's institutional resources failed to provide him with a timely trial. The applicant says that the net delay of 21.5 months exceeds the presumptive Jordan ceiling and there are no exceptional circumstances justifying it. The applicant also argues that all charges, including those laid in 2018, should be stayed because the Crown chose to consolidate the charges into one information and have them tried together.

[5] The respondent acknowledges that the delay for the first set of charges is above the presumptive ceiling. However, the respondent argues that the first and second set of charges should be treated separately. The respondent says that the remaining delay on the second set of charges is well under the presumptive ceiling and that those charges should not be stayed.

[6] These reasons explain why I have found that the applicant's s. 11(b) rights were violated and would order a stay of proceedings on only the first set of charges, but not the second set of charges. I address the disposition of the remaining charges, on the merits, in separate reasons.

2. Procedural History

[7] The applicant's matters have a complicated procedural history. They involve two sets of charges that were ultimately consolidated into the single information that the applicant was tried on.

2.1. The First Set of Charges

[8] The applicant was charged on July 16, 2017 with dangerous driving, drug-impaired driving, mischief and assault. The charges relate to the applicant allegedly trying to drive R.F.'s car off the road on July 15, 2017. The applicant appeared in bail court on July 16 and was released the next day. He appeared again on August 9 and September 6, 2017. At both appearances, the Crown said that disclosure was not available. The Crown did not make initial disclosure until the applicant's fourth court appearance, on October 4. The matter was adjourned to November 1 to permit the applicant to review disclosure and retain counsel. When the applicant appeared on November 1, he asked for more time to retain counsel and deal with some other matters in Bradford. His matter was adjourned to November 29. Mr. Willschick exchanged emails with the assigned Crown on November 28. He explained that he was not retained and asked whether it would be possible to "screen it for trial" and that a date could be set the next day on a with or without counsel basis. Crown counsel explained that she was unable to screen it because "there is a lot of outstanding disclosure."

[9] On November 29, the applicant appeared and received some additional disclosure. He said he was about to retain Mr. Willschick and his matter was adjourned until December 19. In the interim, the assigned Crown suggested to Mr. Willschick to set a judicial pre-trial (JPT) at the next appearance. At the December 19 appearance, an agent for Mr. Willschick said that he was now retained as counsel and that Mr. Willschick would need time to speak to the Crown to make a trial time estimate. The matter was adjourned to January 2, 2018. On January 2, Mr. Willschick appeared and said that he had set a JPT, for January 17. He asked for the matter to be adjourned to that day.

[10] On January 17, Mr. Willschick appeared and said that the Crown had informed him that substantial disclosure was missing. Mr. Willschick said that he was ready to set a trial date but that the Crown was not in a position to do so. As a result, a second JPT was scheduled for February 5. Unfortunately, Mr. Willschick missed the February 5 JPT and it had to be re-scheduled for February 21.

[11] On February 21, Mr. Willschick's agent, Mr. Tarach, appeared and said that substantial disclosure remained outstanding. That outstanding disclosure included the applicant's statement to police. Mr. Tarach said that the JPT judge would not permit trial dates to be set. The matter was adjourned to March 9 to await the outstanding disclosure.

[12] On March 9, Mr. Willschick's agent appeared to explain that another JPT had been set for March 20. Nobody appeared to address the matter on March 20, so the matter was adjourned to the next week. When the matter was addressed on March 26, the applicant appeared in custody. A three-day trial starting on August 15, 2018 was set for the first set of charges. The applicant was adjourned to the next day by video to make a decision about bail.

2.2. The Second Set of Charges

[13] The second set of charges were laid on April 13, 2018. The applicant made a number of uneventful appearances on those charges. It appears that the information for the first set of charges, as well as unrelated charges, were also in court during these appearances.

[14] The parties scheduled a JPT for April 30 to discuss joining charges but it was not held.

[15] On May 15, 2018, the applicant appeared by video. Duty counsel addressed the matter for Mr. Willschick and said that disclosure was still outstanding on the new charges. Between May 15, and August 15, 2018, the applicant appeared a number of times in set-date court. Mr. Willschick did not attend any of these appearances personally and simply sent messages to duty counsel to adjourn his client week to week to appear by video.

2.3. The First Trial Date

[16] The first set of charges came up for trial on August 15, 2018. The applicant was in custody. The court in which the applicant's trial was scheduled to proceed was unable to start the trial on August 15 because the judge was occupied with another matter. It did not appear that matter would finish before the end of the day. The parties estimated that the matter might finish in two days, although they were not certain that it would. The matter was held down until the afternoon to see if any other courts would become available.

[17] When the parties re-addressed the matter in the afternoon, they explained that no other court was available. Crown counsel said that she would be satisfied to wait to see if the matter could start later in the day, or even the next day. She said it was likely that, even if the matter started the next day, it would finish in two days. Applicant's counsel took no position and left it up to the court.

[18] The presiding judge expressed concern that, based on his schedule, if the trial did not finish, it might be difficult to set an early continuation date. Nonetheless, the judge agreed to begin the trial the next day, although he noted he had two seized sentencing matters on each day that would also have to proceed. After this discussion, the court took a break. When the parties returned from the break, they informed the court that they were no longer confident the matter would finish in two days, given the judge's other seized matters. Applicant's counsel also said that he wanted to try to get his client out on bail, and that if his client did get bail, both the first and second set of charges could be joined to do one trial. Both Crown and defence counsel agreed that it was preferable to conduct one trial, because the complainant would have to testify at both.

[19] The trial was adjourned to the following week to allow the applicant to make a decision about applying for bail, and for the parties to discuss a new time estimate for a joint trial.

2.4. Both Sets of Charges are Joined

[20] On August 22, 2018, the parties held a JPT to arrive a new trial time estimate for a trial combining both sets of charges. The parties agreed that the trial on a newly-laid, combined information would take four days. The JPT judge approved the estimate and a trial time estimate form was completed. The applicant did not set the trial date that day, even though the court and Crown were ready to set a date. The applicant finally agreed to set a trial date on October 18, 2018. The matter was set for trial beginning on July 15, 2019.

2.5. The Trial

[21] The applicant appeared for trial on July 15, 2019. Because of a seized sentencing hearing scheduled for the morning, the court did not start hearing evidence until the afternoon. The Crown called evidence from police witnesses relating to the first set of charges on July 15 and 16. The complainant started testifying on July 17. The trial did not finish on July 18, the final day of the four days that had been set for trial. The parties ended up setting two further days to finish the trial. They estimated that the cross-examination would take about a day, leaving one day for submissions. The parties also alerted the court to the fact that this application might be argued, and that had also factored into their estimate. October 1 and 2, 2019 were set as the trial continuation dates.

[22] The trial continued on October 1, 2019, although only the afternoon ended up being used to hear the trial. The complainant did not arrive on time for court. When court convened to address the matter, Crown counsel explained that the complainant did not want to come into court, and that the Crown would apply to have the witness testify by closed-circuit television. Because the courtroom being used was not equipped to allow the complainant to testify remotely on the voir dire, arrangements had to be made to move the trial to a different courtroom. That did not happen until after the lunch break.

[23] After the lunch break, the court heard evidence and submissions on the s. 486.1 application. The application was allowed, and the complainant's cross-examination continued. The cross-examination did not finish by the end of the day on October 1 and continued for part of the day on October 2. At the end of the Crown's case, applicant's counsel said that he would not be calling any evidence. The Crown asked for leave to withdraw, and withdrew, counts 11, 12, 14, and 19. The parties then completed their submissions on the trial proper, the mid-trial Charter application, and this application. The entire day of court time was used on October 2 to finish the trial.

[24] I reserved my decision on all matters until December 5, 2019.

3. The Jordan Analysis

3.1. Total Delay

[25] The total delay from the date the applicant was charged with the first set of charges (July 15, 2017) to the end of trial (October 2, 2019) is 809 days or 26 months and 17 days.

[26] The total delay from the date the applicant was charged with the first set of charges (April 13, 2018) to the end of trial (October 2, 2019) is 567 days or 18 months and 18 days.

3.2. Defence Delay

[27] Defence delay must be subtracted from the total delay to determine the net delay. If the net delay exceeds the 18-month Jordan ceiling, the delay is presumptively unreasonable.

[28] In Jordan, the Supreme Court held that "the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not." In determining defence delay, it is important to bear in mind that "periods of time during which the Crown and the court are unavailable will not constitute defence delay, even if defence counsel is also unavailable."

[29] The applicant concedes that he is responsible for a total of 79 days of delay for the first set of charges because of the following: defence counsel missed the first JPT date on February 5, 2018 (16 days); and because nobody appeared to speak to the matter on March 20, 2018 (6 days); and once a JPT was held and a time estimate made for both sets of charges to be tried together, the defence did not set the dates but asked for an adjournment to address bail (57 days). The applicant concedes that the last portion of delay (57 days) also applies to the second set of charges.

[30] The respondent argues that the defence is also responsible for further 63-day period of delay from November 1 to January 2, 2019. The respondent observes that the applicant had been given disclosure by November 1 and asked for time to review it and retain counsel. The respondent also says that the applicant ought to have set a JPT on December 19, 2017 rather than waiting until January 2, 2018, resulting in a further 14 days of delay. On December 19, the assigned Crown asked applicant's counsel to set a JPT. Applicant's counsel's agent, who appeared on December 19 did not do that.

[31] I cannot agree with the respondent that the entire period of delay from November 1 to January 2 constitutes defence delay. I say that because even the Crown acknowledged that the matter could not move forward to setting a trial date on November 29 because there was a lot of outstanding disclosure. Indeed, the applicant received additional disclosure at the November 29 appearance. Counsel were not prepared to do a trial estimate until December 5. Consequently, I would only find that the delay from December 19, 2017 to January 2, 2018 is defence delay, because the parties were in a position to move the matter forward but did not because Mr. Willschick's agent was not properly instructed.

[32] I attribute 93 days as defence delay on the first set of charges (the 79 days conceded by the applicant, plus the addition 14 days suggested by the respondent).

3.3. Net Delay

[33] The net delay in this case for the first set of charges is 716 days (total delay of 809 days minus 93 days of defence delay) or 23.5 months.

[34] The net delay on the second set of charges is 481 days (total delay of 538 days minus 57 days of defence delay) or 15.8 months.

3.4. Exceptional Circumstances

[35] The respondent relied on two exceptional circumstances to reduce the net delay. First, the respondent says that the 19-day period between January 17 to February 5, 2018 should be considered exceptional because the assigned Crown had unexpectedly gone on leave earlier than expected and the newly assigned Crown was unable to conduct the JPT on February 5. That delay, if accepted, would apply only to the first set of charges. Second, the Crown says that the 77-day period between July 18, 2019 and October 2, 2019 is a discrete event because it is a trial continuation necessitated by the trial not finishing within the original time estimate. That delay, if accepted, would reduce the delay attributable to both sets of charges.

[36] I accept the respondent's submission that the delay should be reduced to account for the exceptional circumstances. Although this was not a complex case, it was also not a routine case. Crown counsel had been assigned in advance and was managing it. When Crown counsel had to unexpectedly go on leave earlier than planned, it is not unreasonable that some delay might be caused by re-assigning the case. This is one of the busiest jurisdictions in the country. While Crown Attorney's offices must have systems in place to re-assign cases, no system is perfect. Allowing 19 days of delay to be reduced because a case has to be re-assigned does not seem unreasonable.

[37] I also accept the respondent's submission that the delay occasioned by continuing the trial should be subtracted as a discrete event. In accepting that submission, I am mindful that the trial did not start on time on July 15, 2019 because another matter was occupying the court. Normally, I would consider that delay an institutional issue, and would not reduce the delay. However, in this case it is apparent that, even if that half day had been available, the trial would not have finished in four days. As it happened, the trial took an additional day and a half. That means at least one further day would have been required to complete the trial. In other words, this trial took five actual days of court time, not four days as the parties had estimated.

[38] I would subtract 96 days of delay from the first set of charges and 77 days of delay from the second set of charges. The remaining delay for the first set of charges is 620 days (net delay of 716 days minus 96 days for exceptional circumstances) or 20.4 months. The remaining delay for the second set of charges is 404 days (net delay of 481 days minus 77 days for exceptional circumstances) or 13.3 months.

[39] The delay on the first set of charges exceeds the presumptive ceiling in Jordan by almost 2 ½ months. The applicant is clearly entitled to a stay of proceedings on those charges. However, the respondent argues that the second set of charges ought to be treated separately and that, because the delay on those charges is well below the presumptive ceiling, they ought not to be stayed.

3.5. Should the Second Set of Charges be Treated Separately?

[40] The respondent says that even though all of the charges were joined in one information, the court should treat them separately for the purposes of deciding which charges to stay. The respondent argues that despite the joint information and trial, the applicant only faced legal jeopardy for the second set of charges as of April 2018. Moreover, both the Crown and defence agreed that a joint trial was preferable to two separate trials. A joint trial was not simply imposed on the applicant. He wanted one too. Consequently, the applicant should not benefit simply because some charges on the information commenced earlier than the later charges.

[41] The applicant argues that because the Crown chose to join the charges and because a joint trial was conducted, the delay that should count for all charges is the delay arising out of the first set of charges. The applicant says that both sets of charges involved the same complainant and, even though they cover different time periods, the complainant gave evidence about all offences in her evidence. It would be artificial to separate the sets of charges now that they have been joined in one information and one trial.

[42] I agree with the respondent that, in the circumstances of this case, the charges should be treated separately. I accept the respondent's argument that the shorter period during which the applicant has been in jeopardy on the new charges is important. The accused's interest in a timely trial has much to do with the "exquisite agony" that accused persons face while waiting for their trials to take place. That interest engages an accused person's right to security of the person because of "the stigmatization, loss of privacy, stress and anxiety of those awaiting trial." In this context, that means the anxiety or "exquisite agony" that the applicant faced for being convicted of the very serious counts in the more recently laid information. His jeopardy very much changed when that new information was laid, especially because those offences were more serious than those in the earlier information. Moreover, this is not a case where additional charges were added relating to the same transaction as outstanding charges. Nor is this a case where only the Crown benefitted from a joint trial. Rather, a joint trial was in both parties' interests.

[43] I agree with the respondent that the second set of charges should be treated separately for the purposes of s. 11(b). The delay on those charges is below the presumptive ceiling. It is therefore up to the applicant to demonstrate that the delay is unreasonable.

[44] The applicant did not argue either in written or oral submissions that he would be able to demonstrate that delay under the ceiling would be unreasonable. That is likely because he did very little to move the 2018 charges along after they had been laid. Indeed, as explained above, applicant's counsel did not appear personally on most occasions between the applicant's first appearance on the new charges and his first trial date in August 2018. Because of that, he would not be able to show that he took meaningful steps to expedite the proceedings.

[45] Consequently, the applicant has not established unreasonable delay regarding the second set of charges from 2018. He is not entitled to a stay of proceedings for those charges.

4. Remedy

[46] The respondent argued that, because this application has been argued after the court has heard all of the trial evidence, the court should render its verdicts and then enter a stay of proceedings on whichever counts it deems appropriate.

5. Conclusion

[47] The applicant has established a breach of his s. 11(b) rights on the charges laid in July 2017. As a result, counts 15, 16, 17, 18, and 20 are stayed. The applicant has not established a breach of his s. 11(b) rights on the charges laid in April 2018. Consequently, the stay application respecting counts 1 through 10, and count 13, is dismissed.

Released: May 12, 2020

Justice M.M. Rahman

Corrected decision: The text of the original judgment was corrected on May 12, 2020. Paragraphs 1-8 of the original judgment (and associated headings), which were included in error, have been replaced by the correct paragraphs and headings.

Footnotes

[1] The parties agreed that the end of the trial was the final day of evidence. The applicant did not argue that the final day of trial should be the day the court's verdict is rendered. Even though nobody raised this specific issue, the applicant appeared to accept (implicitly at least) that the time a case is under reserve is not part of the presumptive ceiling calculation.

[2] Jordan, supra, at para. 64.

[3] Ibid.

[4] I have used the formula set out by Paciocco J.A. in R. v. Shaikh, 2019 ONCA 895 at footnote 2, and arrived divided the number of days by 30.417 to arrive at the number of months.

[5] I also note that trials in this jurisdiction are scheduled to allow extra time for the very kinds of interruptions that happen in a provincial trial court. When this court sets aside four days for trial, it is understood that the trial may have to share those days with other matters that may interrupt the smooth progress of the trial. That is the reality of practice in a busy provincial court.

[6] Jordan, supra, at para. 154.