Ontario Court of Justice

Date: November 9, 2020

Court File No.: Niagara Region 998 18 N0622

Between:

HER MAJESTY THE QUEEN

— AND —

Dixie Neumann and Richard Mallory

Before: Justice De Filippis

Heard on: November 6, 2020

Reasons for Ruling released on: November 9, 2020

Counsel

Ms. A. Woolf — counsel for the Crown

Mr. S. Buchanan — counsel for the accused Dixie Neumann

Mr. D. Protomanni — counsel for the accused Richard Mallory

DE FILIPPIS, J.:

Introduction

[1] In R. v. Jordan, 2016 SCC 27 and R. v. Cody, 2017 SCC 31, the Supreme Court of Canada adopted a new approach to section 11(b) of the Charter of Rights and Freedoms. In so doing, the Court insisted that all participants in the justice system must strive to avoid delay. The Court directed that judges do their part in preventing delay, rather than reacting to delay.

[2] This ruling reflects my appreciation of the important duties imposed upon me by the highest court in the country. My decision may mean the Applicant cannot pursue a Charter remedy. In my opinion, this is a necessary result of responding seriously to the call to action with respect to delay in the criminal justice system.

The Application

[3] This Applicant, Richard Mallory, seeks to delay setting trial dates currently targeted for December 2020. The basis for this request is that these recently scheduled dates do not permit sufficient time to prepare for a motion to stay proceedings because of unreasonable delay, as guaranteed by section 11(b) of the Charter. That preparation includes obtaining funding so that transcripts can be ordered and reviewed and a factum prepared. On the day this matter was argued, Mr. Protomanni, counsel for the Applicant advised he had just received approval from Legal Aid Ontario to pursue the motion to stay proceedings.

[4] The total period of delay in this case (i.e. without accounting for any Defence delay and discrete circumstances) is 34 months and 10 days. The procedural history is set out below. The parties do not dispute the essential facts. The delay in this case may or may not run afoul of the Charter. I have not undertaken that analysis and cannot comment on the merits of a section 11(b) motion. What is before me is a request to delay setting trial dates so that such a motion can be perfected and argued.

[5] At the conclusion of oral argument, I dismissed the application to delay setting the trial dates. These are the reasons I undertook to provide. In coming to this conclusion, in addition to the submissions of counsel, I considered the following evidence:

• Exhibit 1 – Affidavit of Emma Fritchley
• Exhibit 2 – Email dated April 17, 2020
• Exhibit 3 – Email dated October 19, 2020
• Exhibit 3 – Email exchange dated November 4, 2020

[6] In related proceedings, I also ordered an assessment with respect to the fitness of the co-defendant, Dixie Neumann and directed that the court arrange for her to participate in the trial remotely, if she is found fit to stand trial. I ordered the assessment at the request of Mr. Buchanan who reported that he has recently had difficulty obtaining instructions from his client.

[7] The trial dates recently scheduled for December 8, 10, 11, and 21, 2020 are confirmed. This may be with or without the participation of Ms. Neumann, depending on a finding of fitness and any consequent decision by the Crown to sever the accused.

[8] This matter will return before me for case management purposes on November 30, 2020.

Procedural History

[9] The Applicant is charged with theft over $5000 contrary to section 334(a) of the Criminal Code of Canada. His co-accused and spouse, Dixie Neumann, is also charged with theft over $5000 as well as using a forged document contrary to section 368(1.1) of the Code. The allegations that inform these charges are these: The complainant is now in his 80s. I understand he is in poor health and nearly blind. At the age of 78 he was in a long-term senior care facility. He appointed his friend, the defendant, Ms. Neumann, with a Power of Attorney, to manage his financial and personal care. The Crown claims that she improperly diverted over $28,000 from the complainant's bank account to purchase a truck for her husband, the Applicant, Mr. Mallory.

[10] On February 15, 2018, the defendants were arrested and made their first appearance on March 28, 2018. Both appeared without counsel several times. On June 27, 2018, Mr. Protomanni appeared on behalf of the Applicant as counsel of record. Ms. Neumann remained unrepresented. Duty Counsel informed the Court that her health issues made it difficult for her to travel to St. Catharines from Ottawa. Ms. Neumann has never attended court in person since her first appearance.

[11] This case was remanded several times until August 7, 2028 for the purposes of a "Crown pre-trial". The matter was subsequently adjourned several more times because Ms. Neumann had retained counsel.

[12] On January 23, 2019, a judicial pre-trial was scheduled before me with the assistance of Duty Counsel, on behalf of Ms. Neumann. I was told that the Applicant wished to have a preliminary inquiry in the Ontario Court of Justice. Another judicial pre-trial was scheduled for March 21, 2019 to give Ms. Neumann an opportunity to retain counsel. On this date, Mr. Beach appeared on her behalf and a one-day preliminary inquiry was set for October 10, 2019.

[13] On September 17, 2019, Mr. Beach passed away and the matter was brought forward to October 3, 2019 to vacate the date set for the preliminary inquiry. Soon after, Ms. Neumann retained Mr. Singh. Another judicial pretrial was scheduled for October 22, 2019 before me to allow new counsel to participate. On this date, Mr. Singh's associate, Mr. Buchanan, expressed concern about Ms. Neumann's health. The parties re-elected trial in the Ontario Court of Justice. I set trial dates for June 24, 25, 26, and July 6, 2020.

[14] On March 15, 2020, normal court operations were suspended due to the COVID-19 pandemic. On April 30, 2020, the trial dates could not be confirmed as court operations remained suspended. The case was adjourned several times because of the scheduling uncertainty caused by the pandemic. During this time, the state of Ms. Neumann's health remained an issue.

[15] By email dated April 7, in preparation for another judicial pretrial to be held on May 20, I directed the parties as follows:

Mr. Singh: Please provide medical evidence to the Crown and co-accused [about Ms. Neumann's condition]

Crown: Assuming medical evidence justifies [the] non-attendance of Ms. Neumann, please be prepared to state whether you seek severance or delaying the joint trial.

Mr. Protomanni: In the event, the Crown wants to delay the joint trial, please be prepared to tell me your position with respect to 11(b).

[16] On May 20, I held another judicial pre-trial (now all by teleconference). Mr. Buchanan advised that Ms. Neumann continued to be unable to travel as she was in a "palliative state". Crown counsel stated she would not consent to severance of the accused with this limited information.

[17] On July 16, the Ontario Court of Justice in St. Catharines, began to reschedule trial dates again. From June 1, 2020 to September 23, 2020, this case was put over on a number of occasions for Mr. Buchanan to provide medical documentation about Ms. Neumann's health and also because of certain COVID protocols from the Chief Justice, as posted on the Court website.

[18] Another judicial pretrial was held on October 19, 2020. The Crown told me she attempted to contact Ms. Neumann's doctor. The doctor did not respond to Mr. Buchanan or the Crown. In response to my questions, Crown counsel stated she remained opposed to severance of the accused. The matter was put over to October 28, 2020 to set trial dates.

[19] Immediately following the judicial pretrial on October 19, I sent the following email to the parties:

This email will be attached to, and form part of the Case Management Form.

This case is now 32 months old [actually, almost 34 months]. Part of this delay is due to COVID (previous trial dates vacated) and part of it is due to the fact that Ms. Neumann is said to be gravely ill. I make no further comment about the delay and any other relevant factors. This case involves allegations of fraudulent activity against an elderly complainant.

This case must be set for trial on the return date (October 28, courtroom 3). We estimate four days are needed.

The case will return before me on November 4, by way of teleconference at 9:30 am, and to be spoken to at 10 am in courtroom no. 1. The purpose of this teleconference and appearance is to:

• Confirm that Ms. Neumann has given her doctor the consent needed so that s/he can provide medical information to Defence counsel
• Arrange for a subpoena to issue against the doctor if this consent is given and s/he does not respond to counsel (as it is reported he/she has not been diligent in this regard)
• Determine if Ms. Neumann will waive an in-person appearance at trial and appear by audio or video (see ss. 650(2)(b), 715.22 & 715.23, if she is too ill to commute from Ottawa
• Determine if the Crown will proceed only against Mr. Mallory if it is no longer in the public interest to proceed against Ms. Mallory.

Please contact the trial coordinator, in accordance with the COVID procedures, so she can advise you of the trial dates.

[20] On October 28, 2020, a four-day trial was scheduled for June 14, 15, 16, and 17, 2021 and a continuing judicial pre-trial was scheduled for November 4, 2020 to monitor the status of Ms. Neumann's health. At this pretrial, Crown counsel advised that she had spoken with Ms. Neumann's doctor. The doctor reported that he had never said Ms. Neumann was in a palliative state or terminally ill. He advised that her health was stable but that she should not travel. On learning this, I expressed my concern about the inaccurate information previously conveyed to the court about Ms. Neumann's medical condition. I also told the parties that I would ask Regional Senior Justice Currie to provide an additional judge to facilitate setting earlier trial dates. I directed the trial coordinator to proceed accordingly.

[21] Immediately following the November 4 judicial pretrial, these three email messages were exchanged between me and the parties:

From Me to the parties:

This will confirm our teleconference just held.

The Crown has spoken to Ms. Neumann's doctor. He reports she is not gravely ill but cannot travel. She can participate in a trial remotely, provided her condition does not flare up at the time (as it occasionally does).

The Crown proposes that the trial proceed in person with Mr. Mallory and remotely with Ms. Neumann. Mr. Mallory will be bringing an 11(b) motion. Mr. Buchanan is concerned that his client is unfit now and wants an assessment.

The trial coordinator has provided me with these available trial dates: December 8, 10, 11, 21, 2020 and February 11, 16, 17, 18, and 19, 2021

From Mr. Protomanni to me and the parties:

Your Honour,

My office is available in theory for all the dates listed above. My issue is that I am awaiting approval on transcripts from Legal Aid, and if I were to accept the December dates, it leaves little to no time to review transcripts, draft a factum, all while abiding by the rules. Although I can make my office available on the December dates, I much prefer the February dates in order to properly file and draft my 11(b) materials.

From Me to the parties:

Mr. Protomanni,

I have directed the trial coordinator to set the earliest dates available to all counsel. If that means you need to bring an adjournment motion to delay the trial so that you can bring a delay motion, that is for you to decide and for the assigned trial judge to deal with.

This can be addressed on the record on Friday.

[22] Following the judicial pre-trial on November 4, all parties confirmed they would be available for trial on December 8, 10, 11, and 21 (the February 2021 dates were not available to counsel for Ms. Neumann; moreover, all parties were also available for trial on four days in March 2021). The present application responds to these events.

[23] The Applicant does not want to proceed to trial in December as it will not allow him to pursue a motion to stay proceedings based on unreasonable delay. This application is before me because the additional judge to be provided by the Regional Senior Justice has yet to be identified.

Submissions

[24] The Applicant asserts that much of the delay in this case is due to the co-accused, and the Crown's refusal to sever the Applicant from the proceedings. Mr. Protomanni concedes that there are exceptional circumstances, including the death of Ms. Neumann's previous counsel, and the ongoing COVID-19 pandemic that must also be accounted for. Notwithstanding this, submits that there is merit to hearing the Charter application prior to trial. The Applicant sought funding for an 11(b) motion on October 27, 2020. Legal Aid has now approved the request. Mr. Protomanni explained that he did not seek such funding and bring an 11(b) motion before now because he was awaiting news about Ms. Neumann's condition as her palliative state might be considered a discrete event for the purposes of the Jordan analysis. He added that the "turning point" was the recent information that she is not in a palliative state.

[25] Mr. Buchanan advised that his client instructed him not to oppose this application. This is inconsistent with the report that she may be unfit to stand trial. Moreover, this follows inaccurate information provided to the court about her medical condition. It has been suggested that this confusion may have been caused by what Ms. Neumann told her lawyer. As such, I must be cautious about the recent revelation that she cannot instruct counsel. However, I accept the sincerity of Mr. Buchanan's concern about his client's fitness and, at his request, I ordered an assessment.

[26] The Crown questions why Ms. Neumann's participation in the trial should have been considered the "turning point" in deciding whether to launch an 11(b) motion. Counsel added that such a motion should have been brought before now. As I will explain, I agree with these submissions.

Conclusions

[27] In R v Cody, supra, the Supreme Court of Canada said that:

... All justice system participants — defence counsel included — must now accept that many practices which were formerly commonplace or merely tolerated are no longer compatible with the right guaranteed by s. 11(b) of the Charter.

We reiterate the important role trial judges play in curtailing unnecessary delay and "changing courtroom culture" (Jordan, at para. 114). As this Court observed in Jordan, the role of the courts in effecting real change involves:

implementing more efficient procedures, including scheduling practices. Trial courts may wish to review their case management regimes to ensure that they provide the tools for parties to collaborate and conduct cases efficiently. Trial judges should make reasonable efforts to control and manage the conduct of trials. Appellate courts must support these efforts by affording deference to case management choices made by courts below. All courts, including this Court, must be mindful of the impact of their decisions on the conduct of trials. [para. 139]

[28] Jordan imposed new requirements on governments, the judiciary and the Bar to solve the problem of delay. Cody reaffirmed this. Cody directs trial courts focus on solving delay, rather than simply accounting for it, after the fact. Applied to the present case, the Supreme Court of Canada instructs me to consider not only the nature of the proposed Charter motion, but also its timing. As already noted, I am not deciding the merits of an 11(b) motion. My ruling deals with the request by the Applicant to delay setting trial dates to allow him to bring such a motion.

[29] Ms. Neumann has not appeared in court since her first appearance because of concerns about her medical condition. Thus far, the Crown has refused to consent to severance of the accused. These are contentious issues that I need not resolve. However, they are of significance to the present application because they point to the elephant in the room. Ms. Neumann's medical difficulties and the Crown's desire to pursue a joint trial is neither surprising nor recent; this dynamic has been known for many months. In this regard, I do not understand the Applicant's assertion that the gravity of Ms. Neumann's health was the turning point in the decision to pursue an 11(b) motion. Leaving aside the fact that the defendants are spouses and, in the normal course, it would be reasonable to expect one spouse to know if the other was sick, rather than dying, her condition was said to be palliative and, in addition to other factors, including the pandemic, contributed to delay. This is not news.

[30] On the record before me, there can be no doubt that delay has been a persistent issue in this case from an early stage in the proceedings. Indeed, on April 7, 2020 I specifically asked counsel for the Applicant for his position with respect to section 11(b). Six months later, on October 19, I again raised the issue of delay with the parties. These facts highlight the Applicant's failure to do his part to prevent delay in his trial by bringing a severance motion or react to delay by bringing an 11(b) motion. These steps could have been taken months ago. Such motions could have been heard remotely before July 6, 2020, or in person, thereafter.

[31] That the Applicant chose to wait and do nothing until the eve of the targeted trial dates has consequences. In this regard, it does not matter that I intervened in the scheduling process by requesting an additional judge so that the June 2021 trial that the parties had just arranged with the local trial coordinator was advanced by six months. As I have noted, the Supreme Court of Canada has directed judicial officers to curtail unnecessary delay.

[32] Delay is presumptively bad for the criminal justice system. It is hard on an accused and could affect his/her ability to defend the case. It is inconsistent with society's pressing interest in the fair and efficient resolution of criminal proceedings. This includes the ongoing ability of the Crown to present its evidence; I repeat that the complainant in this matter is old and frail.

[33] The Applicant seeks to delay the setting of targeted trial dates, on the eve of that trial, so that he can prepare a motion to stay the charges, because of delay, in circumstances in which it is clear that the motion could have been brought earlier. To grant this request is to follow Alice down the rabbit hole and enter Wonderland.

Released: November 9, 2020

Signed: Justice J. De Filippis