Her Majesty The Queen v. Etienne Robert, 2022 ONCJ 398

ONTARIO COURT OF JUSTICE DATE: 2022 09 02 COURT FILE No.: Windsor 20-1415

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

ETIENNE ROBERT

Before: Justice S. G. Pratt

Heard on: 25 August 2022 Reasons for Judgment released on: 2 September 2022

Counsel: Shelby Odom...................................................................................... Counsel for the Crown Frank Miller................................................................................ Counsel for the Defendant

RULING ON S. 11(B) APPLICATION

Pratt J.:

[1] Etienne Robert, hereinafter the Defendant, is charged with several offences related to various firearms, as well as two driving offences. The offence dates range from 2017 to 2019. The information currently before the court, 20-1415, contains 19 counts. It was sworn on 31 July 2020. The Defendant says his right to be tried within a reasonable time has been infringed and that the charges should be stayed as a result. The Crown disputes this contention and says that if I deduct the delay for which the Defendant is solely responsible and the delay that was beyond everyone’s control, I will find that the trial has not been unreasonably delayed. For the reasons that follow, I agree with the Defendant. The charges against him will be stayed.

Background

[2] The charges the Defendant faces went through several iterations over the first two years this case was before the court. In total there have been five different informations on which the Crown has proceeded. They are:

1. 18-851 – This information contained 9 counts: two driving offences and seven charges of possession of firearms in an unauthorized place under s. 93(1)(b). It was sworn on 18 April 2018.
2. 18-1094 – This information was sworn on 22 May 2018. In addition to the original counts, it added seven new firearms counts under s. 100(1), possession of firearms for the purpose of transfer.
3. 18-1402 – This information was sworn on 28 June 2018. To the counts in 18-1094 it added one count of illegal transfer of a firearm under s. 99(1)(a).
4. 19-3083 – This information was sworn on 18 December 2019. To the 17 counts in 18-1402, it added one additional count under s. 99(1)(a).
5. 20-1415 – The current information was sworn on 31 July 2020. It added an additional count under s. 99(1)(a).

[3] Crown counsel advised that the investigation began when the Defendant turned himself in on the driving offences on 17 April 2018. When police went to his residence to seize his firearms, presumably pursuant to his release conditions, they discovered they were not there. The firearms charges in the first information are all under s. 93(1)(b), which prohibits possession of a firearm in an unauthorized place.

[4] One gun was found in June 2018. Another was found a year later. In May 2020 Toronto police recovered a gun during an unrelated arrest and that gun was traced back to the Defendant.

[5] These discoveries led to seven charges of possessing firearms for the purpose of trafficking, and three charges of actual trafficking.

[6] Seven days of trial are set in this matter: 2, 6, 9, 12, 13 September and 6 and 7 October. The transcripts suggest more dates will need to be set as seven days will not be sufficient.

[7] For the purpose of a delay analysis, each new iteration of charges has its own start date. With one change, I adopt the calculations in the Factum of the Defendant that sets out the following total delay for each information. The change is that the Factum states the last scheduled day for trial is 13 September. I have altered the total delay for each information to reflect the last day scheduled being 7 October (I recognize more days may be needed, but they have not been scheduled. I cannot speculate on when those future dates may be):

(1) 18-1851 – 1,632 days; (2) 18-1094 – 1,598 days; (3) 18-1402 – 1,562 days; (4) 19-3083 – 1,022 days; (5) 20-1415 – 797 days.

[8] I note that 18 months, the ceiling set by the Supreme Court of Canada for matters tried in the provincial court in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 (hereinafter “Jordan”), equates to 547.5 days (365 days x 1.5).

Analysis

Total Delay

[9] The total delay in this case ranges from a low of 797 days to a high of 1,632 days. At 30 days per month, that range is 26.6 to 54.4 months. Even the low end of the range, applicable only to the final count in Information 20-1415, is well above the Jordan ceiling for matters tried in the provincial courts. It is presumptively unreasonable but subject to reduction for delay caused by the defence.

Defence Delay

[10] As stated by the majority at paragraph 60 of Jordan, “The defence should not be allowed to benefit from its own delay-causing conduct.” Any delay attributable to the defence should be deducted from the total delay in the case. That can include periods of time where delay is waived by the defence and periods of time where the defence has caused the delay. It would be unjust to allow the defence to slow proceedings significantly and then complain about how long they have taken. As has been noted elsewhere, the right guaranteed by s. 11(b) is a shield, not a sword.

[11] As to waiver, I have reviewed the transcripts and the very helpful chronology set out in the Crown’s materials. I see no periods where delay was waived by the defence.

[12] The calculation of delay caused by the defence is a more complicated matter.

[13] Jordan absolves the defence of responsibility for delay caused by legitimate steps taken in defence of the charges. Meetings with the Crown, meetings with the client to obtain instructions, or reasonable adjournments to review disclosure will not be counted as defence delay. This might be equated to the former “inherent time requirements of the case” heading from the Askov/Morin regime.

[14] That is not to say, however, that only obvious delay tactics undertaken by the defence will count against them. Deliberate and calculated steps taken to delay proceedings, like frivolous applications or requests, will certainly count as defence delay. But that is not the only conduct that will lie at the feet of defence. Jordan gave the example of defence unavailability when both the Crown and Court were prepared to proceed as another situation where defence will be said to have caused the delay.

[15] While responsibility for bringing an accused person to trial rests solely with the Crown, a defendant must nonetheless be diligent in his or her conduct. Delay may often accrue to the benefit of a defendant as memories fade and the motivation to pursue charges wanes over time, but counsel have a duty as officers of the Court to be active participants in moving cases forward. Remaining a mere spectator to the proceedings fosters the culture of complacency so disparaged in Jordan.

[16] The Supreme Court considered defence delay in the case of R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659. The unanimous Court confirmed that deductible defence delay is that which is caused solely or directly by the accused person or that is the result of illegitimate defence conduct.

[17] On the issue of illegitimacy, the Court said the following at paragraph 35:

We stress that illegitimacy in this context does not necessarily amount to professional or ethical misconduct on the part of defence counsel. A finding of illegitimate defence conduct need not be tantamount to a finding of professional misconduct. Instead, legitimacy takes its meaning from the culture change demanded in Jordan. 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.

[18] A lack of diligence can also be considered “illegitimate conduct”. It is this expanded definition that comes into play in the present case.

[19] In the early stages of this case, the Defendant through his counsel showed a clear desire to resolve the charges. On 13 September 2018, counsel advised that the Crown had made a proposal “which I think is acceptable”. The matter was put over for instructions from the Defendant. On 4 and 18 October 2018 it was adjourned to confirm the Defendant’s instructions. On 1 and 22 November it was adjourned to set a disposition date and to meet with the Crown. It was further adjourned through December and January until 8 January 2019. On that date the disposition did not proceed as counsel thought there was a new information to be laid. It was adjourned to various dates in January and February until 21 February 2019. On that date, counsel asked that the matter be adjourned to set a trial date. He elected trial in the Ontario Court of Justice. Any suggestion of resolving these matters never arose again.

[20] Counsel for the Defendant acknowledges responsibility for a portion of this delay under his heading, “The aborted disposition”. He admits the 114 days from 1 November 2018 to 21 February 2019 is defence delay. I would expand that timeframe. This matter was on a resolution track as early as 13 September 2018 when the Crown made an apparently acceptable offer. From that point until February, the case was clearly moving towards conclusion. I would identify the period from 13 September 2018 to 21 February 2019, a total of 161 days, as defence delay.

[21] The matter was ultimately set for trial on 4 July 2019. Going by the transcripts, it could have been set on 27 June, but counsel did not attend. On 4 July, the Court offered 21 February, 3 March, and 2 April 2020. The Crown was available on all those dates. Counsel for the Defendant was not. Instead, the matter was set for 3 April 2020. Counsel concedes that the 41 days between the first offered date and the accepted date is defence delay. I agree but would also hold the defence responsible for the 8 days between 27 June and 4 July. The only reason the matter wasn’t set on 27 June was the absence of counsel.

[22] The step of setting the matter for trial leads to another significant problem with the progress of this case. On 21 February 2019, the Defendant elected trial in the Ontario Court of Justice. At the judicial pre-trial held on 20 June 2019, however, it was clear that all parties discussed the setting of a preliminary hearing date. The Crown advised it had six witnesses, and one day was agreed to be an accurate time estimate. The notes of the presiding Justice refer to the use of s. 540 for certain pieces of evidence. The Crown’s notes, contained within the chronology filed, confirm that it was a preliminary hearing that was discussed, not a trial. After the pre-trial the matter returned to the date-setting docket. On the 20 June 2019 court appearance, Defendant’s counsel was asked by the Court if he wanted to set a preliminary hearing, and he said yes. He adjourned it one week to 27 June.

[23] Defendant’s counsel did not attend court on that day, so the matter was further adjourned.

[24] On 4 July 2019 all parties set a trial date, either disregarding or not knowing what had happened at the judicial pre-trial two weeks earlier. The Crown mentions setting a trial date, and the Court Clerk confirms the Defendant’s election to be tried in the Ontario Court of Justice. A one-day trial was set for 3 April 2020. At no point did anyone suggest it should have been a preliminary hearing, or that one day would not be sufficient time for the matter to be heard as a trial.

[25] On 29 January 2020 the matter returned to court for a confirmation hearing (that is, for a step required prior to a trial date to ensure all parties are prepared to proceed). Counsel for the Defendant advised the Court that he thought it was there for a focusing hearing (a step required prior to a preliminary hearing). The Crown stated that as the assigned prosecutor had just returned to work the proper form had not been completed. The Court and Crown both referred to a focus hearing being scheduled for that day.

[26] Later in that same appearance, the assigned prosecutor attended. At that point, both counsel said the matter should be up for a confirmation hearing, not a focus hearing. Crown counsel stated that she didn’t know how the matter had been set for trial as it was meant to be a preliminary hearing. The Crown suggested it would be a four-day trial. The matter was adjourned to allow counsel to discuss the new charge and disclosure issues.

[27] On 31 January 2020, counsel for the Defendant stated it would be a five-day trial. The matter was adjourned to allow the Trial Co-ordinator to find acceptable dates.

[28] On 7 February 2020, the only thing that seems clear is the number of puzzled looks exchanged by counsel and the Court as they tried to understand what had been going on. Justice of the Peace Renaud reviewed the history of the case as it oscillated from preliminary hearing to trial. Neither Her Worship, nor the Crown, nor Duty Counsel on behalf of Defendant’s counsel could clarify why the matter proceeded as it did. Eventually it was adjourned to set a new judicial pre-trial that would address trial issues.

[29] From that point on, it was apparent to all involved that this would be a multi-day trial in the Ontario Court of Justice. The June 2019 judicial pre-trial and the setting of this matter for a one-day trial in April 2020 were needless exercises. The time from 20 June 2019 to 7 February 2020 passed because no one was paying particular attention. That is 7 ½ months, or 232 days, of inaction.

[30] But where should responsibility for that inaction lie? Certainly, a portion of it lies with the defence. Why hold a judicial pre-trial where preliminary hearing issues are discussed after making an election that didn’t involve a preliminary hearing? Why set what you say is a focus hearing when there was a trial election? As late as 24 September 2021, Defendant’s counsel advised the Court this was initially thought to be a five-day preliminary hearing. Nowhere in the record does the notion of a five-day preliminary hearing ever arise, from any party. Respectfully, it is clear to me that the diligence needed to keep this matter moving forward in a productive way was sorely lacking.

[31] Had this indifference been restricted to the defence I would have had no hesitation in finding that 7 ½ months to be defence delay. A review of the record, however, shows the Crown shared that indifference and confusion. The Crown was at the June 2019 judicial pre-trial where a preliminary hearing was discussed. But it was the Crown on 4 July who said the matter was up to set a trial. When the Court Clerk confirmed the Defendant’s election of provincial court trial no one raised any issue. At the subsequent appearance on 29 January 2020, the Crown expressed bewilderment at the matter having been set for trial in the first place.

[32] In the result, I am unable to say that 7 ½ months is delay caused solely by the conduct of the defence. Both parties fell short of their obligations to move this matter forward in a productive way. I do not deduct this entire period from the total delay. Instead, following the Supreme Court of Canada’s recent decision in R. v. Boulanger, 2022 SCC 2, [2022] S.C.J. No. 2 and the earlier decision of R. v. K.J.M., 2019 SCC 55, [2019] S.C.J. No. 55 I will apportion it between the parties.

[33] How a defendant elects in an indictable matter is entirely within his discretion (setting aside the limitations on that discretion to later re-elect). No one, and certainly not the Crown, can make a defendant’s election for him. On any indictable offence that is not enumerated in either s. 553 or s. 469, he can elect his mode of trial. Once he makes that decision, he’s expected to see it through unless he gives notice of his desire to change his election. No such notice was ever given in this case. The Defendant elected trial in the provincial court and that never changed. Yet counsel participated in a judicial pre-trial to discuss preliminary hearing issues. He attended what he thought was a focus hearing. He advised the Court in September 2021 that the matter was initially going to be a preliminary hearing. I would not fault busy defence counsel for one misstatement made in a remand court, but that is not what happened here. When the Crown emailed counsel about the confusion, as noted in the chronology, counsel responded that he believed it was a provincial court trial (I do not hold counsel to that response as it was given shortly after a fire in his office building made all his files inaccessible; he was going from memory). Confusion and inattention continued to reign until February 2020.

[34] In the result, I apportion responsibility for the 232 days as follows: 139 days, or 60%, is attributed to the defence, and 93 days, or 40%, is attributed to the Crown.

[35] In the aftermath of the preliminary hearing vs. trial debacle, the parties needed to set a judicial pre-trial to discuss trial issues. An administrative pre-trial was held on 25 March 2020. The Crown’s chronology states that another was held on 7 May 2021 wherein Defendant’s counsel said he wanted a preliminary hearing. While that may have been discussed at the pre-trial, it was never pursued on the record and did not impact the setting of the current trial dates. It is, however, further evidence of, at best, confusion.

[36] Following two presumptive adjournments at the start of the Covid-19 pandemic, the matter was adjourned twice by duty counsel when Defendant’s counsel did not attend. The first was on 21 October 2020 when the case was adjourned to 5 November 2020. The second was from 5 November to 3 December. In my view, there was no reason the case could not have been moved forward by defence in that time period. The period from 21 October to 3 December 2020, a total of 44 days, will be found to be defence delay.

[37] According to the Crown’s chronology, an electronic brief of documents containing the items on which the Crown intended to rely was sent to Defendant’s counsel in April 2020. At a judicial pre-trial on 16 June 2021, he said he wanted a paper copy of that brief. It is not clear to me what benefit a printed copy of documents would have over an electronic copy of the same documents. On its face, this seems to be an entirely unnecessary step that counsel could have achieved himself by simply printing out the electronic brief he’d been sent. Without that brief and any corresponding admissions, the time estimate for this trial ballooned to 15 days. It seems the plan was to hold the first five days of trial, after which counsel would consider what admissions could be made going forward in an attempt to reduce the additional amount of trial time needed.

[38] On 27 August 2021 a judicial pre-trial was set for 1 September. On the day of the pre-trial, according to the Crown chronology, the Crown contacted Defendant’s counsel in advance to discuss the case. Counsel advised he had not been informed of this pre-trial by his office and was not prepared to conduct it. It appears the pre-trial was re-set for 24 September 2021. As counsel was not prepared for the pre-trial on the day scheduled, I find that the delay from 27 August to 24 September 2021, 29 days, is delay occasioned solely by the defence.

[39] The Crown has argued that additional time should be attributed to the Defendant. When I pointed out that the multiple replacement informations likely added to the delay in this case, it was argued that had the Defendant set a trial before March 2020, the replacement informations would not have been laid. It was his delay in setting the date that allowed the Crown to lay the additional informations.

[40] The difficulty with this argument is that the Defendant did set a date before March 2020. On 4 July 2019 he set the third information, 18-1402, for a one-day trial. I have already commented on the stumbles associated with that date setting, but it doesn’t change the fact that the Defendant did set a trial date on that information. Taking that step did not stop the police from laying the fourth and fifth informations. One could argue that the fifth information was laid after the April trial date had been cancelled, but the same could not be said for the fourth information; it was laid in December 2019, when the April trial date was alive and well. The setting of a trial date did not stop the replacement informations from coming.

[41] The Crown argues that as of the third information, the Defendant knew firearms trafficking was a charge he was facing. The subsequent informations, which each added an additional count of firearms trafficking, did not hinder his ability to set a trial date. Knowing trafficking was “in play” was sufficient for him to set a trial date. The addition of further trafficking counts didn’t significantly change his position.

[42] I have trouble accepting this argument. The fourth and fifth information, while only adding one count each, markedly changed the Defendant’s jeopardy. Each added another indictable offence for which he faced a possible 10-year prison sentence. The fifth information arose from an investigation by Toronto Police. Surely, adding these counts would at least greatly increase the time estimate. The additional charges required their own review and preparation by counsel, and at least the last trafficking charge would require out-of-town witnesses. I cannot say that simply because the Defendant was charged with one trafficking offence, he was ready to go to trial on three.

[43] The Crown would also attribute the period from 22 September 2021 to 28 June 2022 to the defence. It argues that inaction by counsel led to no dates being confirmed and a case management hearing being scheduled on 28 June 2022. Respectfully, the email chains provided do not appear to bear out a claim of inaction. The emails at Tab J of the Crown’s materials show regular communication with counsel’s assistant as well as the general difficulty in scheduling lengthy matters with busy counsel and a busy Court. I cannot say that this time period is a result of illegitimate defence conduct.

[44] In total, I find that 378 days of delay are attributable to the defence. Not all those days should be subtracted from each information. Defence delay occasioned before an information exists cannot be deducted from that information. As a result, I have only deducted the defence delay that accrued after the swearing date of each information. I subtract that from the total delays noted above for each information and arrive at the following net delays:

(1) 18-1851 – 1,210 days; (2) 18-1094 – 1,176 days; (3) 18-1402 – 1,140 days; (4) 19-3083 – 877 days (deducting defence delay post-18 December 2019); (5) 20-1415 – 724 days (deducting defence delay post-31 July 2020).

[45] For each information the net delay exceeds the Jordan ceiling and remains presumptively unreasonable.

Exceptional Circumstances

[46] There can be no question that the onset of the Covid-19 pandemic is a discrete exceptional circumstance. In March 2020, Court operations throughout the province were brought to a near-standstill. All trials and hearings, save for those of an urgent nature, were summarily adjourned. Courthouses were closed. Cases were heard first by telephone and then by video conference as the justice system worked to accommodate the new reality.

[47] All matters, whether trials or remands, were presumptively adjourned ten weeks at a time (see Tab M of the Crown’s materials). These adjournments were effectively automatic. Counsel typically did not attend these presumptive remands. Duty counsel played a crucial role in keeping the system afloat by managing the adjournments.

[48] In the present case, while a judicial pre-trial was held on 25 March 2020, counsel did not attend the court appearance on that date. It was presumptively adjourned to 3 June 2020 to set a trial date. I note that at that point, the Court was not setting trial dates. From 3 June the matter was again presumptively adjourned to 12 August, and then again to 21 October.

[49] Given the province’s response to the pandemic through much of 2020, it is clear that very little could have happened in the time of the presumptive adjournments. Dates could not be set. I am unable to fault the defence for how the matter was addressed during this period. In my view, the time period from 25 March to 21 October, a total of 211 days, was lost to the Covid-19 pandemic.

[50] This is the only exceptional circumstance offered by the Crown. Deducting 211 days (pro-rated to the swearing date for the most recent information) leaves the following delays:

(1) 18-1851 – 999 days; (2) 18-1094 – 965 days; (3) 18-1402 – 929 days; (4) 19-3083 – 666 days; (5) 20-1415 – 642 days.

[51] Even accounting for exceptional circumstances, all informations remain above the presumptive ceiling.

Complexity

[52] In the case of R. v. Zahor, 2022 ONCA 449, [2022] O.J. No. 2628 (C.A.), Justice Coroza noted the following at paragraph 73:

The remaining delay may be justified by the Crown where the case is "particularly complex": Jordan, at para. 77. It is worth stressing that the presumptive ceiling already accounts for the fact that criminal proceedings have become more complex over time. Therefore, in order to discharge its burden under this exceptional circumstance, the Crown must demonstrate that the case is particularly complex: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 63, referring to Jordan, at paras. 42, 53.

[53] And, at paragraph 105:

A case may be particularly complex where it requires a great deal of trial time or preparation time "because of the nature of the evidence or the nature of the issues": Jordan, at para. 77 (emphasis in original). Voluminous disclosure, a large number of witnesses, significant expert evidence, charges extending over a prolonged period of time, multiple charges, several pre-trial applications, novel or complicated legal issues, numerous significant issues in dispute, multiple co-accused tried together, and an international dimension to the case are all examples of particular complexity: Jordan, at para. 77; R. v. Bulhosen, 2019 ONCA 600, 377 C.C.C. (3d) 309, at para. 79, leave to appeal refused, [2019] S.C.C.A. No. 423 (Bulhosen), and [2019] S.C.C.A. No. 370 (Kompon).

[54] Unlike the other factors, case complexity is a qualitative consideration. A judge should not deduct a specific number of days for case complexity but should look at the case as a whole to determine if the delay is reasonable overall. Further, it is not the complexity of one isolated aspect of a case that should be examined. It is the overall nature of the case that can make otherwise unreasonable delay constitutionally permissible. I would liken the difference between, for example, defence delay and case complexity to the difference between credit for pre-sentence custody and the mitigation of a guilty plea. Both serve to reduce the appropriate sentence in a given case, but only pre-sentence custody lends itself to a quantitative value. The mitigation of a guilty plea is no less valuable but at the same time less readily defined. Case complexity is the same sort of consideration.

[55] In the present case, I have been told that the firearms charges relate to the Defendant’s possession of various handguns. They were not where they were supposed to be when police attended his residence. As time went on, police were able to recover some of the firearms. The Defendant was charged with possession of all the firearms for the purpose of transferring them, and with actually transferring the three that were located.

[56] On its face the case does not seem particularly complex. There would likely be a large number of witnesses, especially related to the counts under ss. 99 and 100. But proving the Defendant’s guilt on those charges does not seem complicated. Presumably, witnesses to the transfers would testify, as would others with evidence relevant to his intention to transfer the remaining firearms. Certainly the driving offences do not seem particularly complex. I have been provided with no further evidence or argument to suggest the case as a whole is of a sufficient complexity that the delay on any of the informations is reasonable despite being above the Jordan ceiling. I do not excuse any of the delay in this case because of its particular complexity.

[57] One factor that did add to the delay occasioned in this case is the Crown’s tactical decision to lay multiple replacement informations. A total of five informations were laid over the course of 27 months. Rather than lay new, freestanding informations as the firearms were allegedly recovered, the Crown chose to add to the existing prosecution. Certainly, this would maximize trial efficiency in avoiding the same witnesses testifying in multiple proceedings. Such efficiencies should be encouraged. There can, however, be a downside to decisions like this. At the time the fourth information was sworn in December 2019, the original charges had been before the Court for 20 months. Those counts were already in Jordan jeopardy when the fourth information was sworn. By the time of the fifth, all but the last two counts were over two years old. Efficiency is a good thing, but not at all costs. The Crown has a responsibility to bring a defendant to trial in a reasonable time. When it makes decisions that impact that responsibility, it must bear the consequences.

Conclusion

[58] With the utmost of respect, this case was not well-managed by either party. Delays abounded, with responsibility shared by the Crown and defence. Each took steps that slowed the pace of the litigation. The public is left with an array of very serious charges still outstanding nearly 4 ½ years later.

[59] There is an opportunity here for both sides to improve. Beyond the duty to prosecute or defend any one individual, all members of the bar owe a responsibility to the justice system and the people of Ontario. My hope is that this ruling will spur changes in how both sides of the bar manage serious cases.

[60] Even taking into account defence delay and exceptional circumstances, the delay on each charge remains above the Jordan ceiling. The Defendant’s rights under s. 11(b) have been violated. The charges against him will be stayed.

Released: 2 September 2022 Signed: Justice S. G. Pratt