R. v. David, 2015 ONSC 2809
COURT FILE NO.: 11719/14
DATE: 20150505
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Regina v. Jordan David
BEFORE: E.M. Morgan J.
COUNSEL: David Mitchell, for the Crown/Respondent
Adele Monaco and M. Hristovski, for the Defendant/Applicant
HEARD: April 15, 2015
Reasons for DECISION – S. 11(b) application
I. Overview of the application
[1] The Applicant faces charges relating to a shooting incident in downtown Toronto that occurred on August 6, 2012. After a preliminary inquiry, he has been committed to trial on 9 counts in total, including two counts of aggravated assault, two counts of pointing a firearm, two counts of discharging a firearm and endangering life, possession of a firearm without a license, possession of a loaded prohibited firearm, and possession of a firearm knowing he was unlicensed.
[2] The Applicant is to be tried together with a co-accused. The information for these charges was sworn on August 7, 2012, and an estimated three week jury trial is scheduled to begin on June 8, 2015.
[3] The Applicant seeks to have the prosecution stayed pursuant to s. 24(1) of the Charter on the basis that his right to be tried within a reasonable time as guaranteed by s. 11(b) of the Charter has been violated. The overall length of delay in this case is 1,035 days [34½ months].
[4] Counsel for the Applicant contends that the delay in this case is unreasonable, and that the reasons for it are primarily attributable to the Crown or to institutional delay in the justice system. She submits that the Applicant has suffered prejudice as a result of this unreasonable delay.
[5] Counsel for the Crown concedes that the lapse of time since the Applicant’s arrest and commencement of the proceedings is lengthy, but submits that the reasons for it are not attributable to the Crown. The Crown does concede that a certain amount of the delay here has been institutional, specifically on the part of the Ontario Court of Justice and its limited resources in expediting pre-trial hearings, but submits that the institutional delay is not unreasonable under the circumstances.
[6] In addition, Crown counsel contends that a number of significant delays have been attributable to the co-accused, and that the Crown cannot be held responsible for delays caused by a co-accused or his counsel. Further, the Crown submits that any prejudice suffered by the Applicant is a result of the charges themselves, and not the delay in reaching trial.
II. Chronology of events
[7] As indicated above, counsel for the Crown and counsel for the Applicant disagree on the cause or the attribution of fault for the various stages of delay in these proceedings. However, they generally agree on what steps have transpired from the Applicant’s arrest to date.
[8] The following is a step-by-step chronology of this case, from inception:
DATE
ACTIVITY
DELAY
06 Aug/12
Offence date.
07Aug/12
Information sworn. Bail hearing not commenced.
10 Aug/12
Bail hearing not commenced.
3 days
27 Aug/12
Agent appears for Applicant’s counsel, John Struthers. No disclosure available. Adjourns to Sept. 19, 2012.
17 days
10 Sept/12
Initial disclosure provided. Adjourned to Oct. 1, 2012.
14 days
01 Oct/12
Mr. Struthers requests adjournment to Oct. 22, 2012 to meet with his client and waives s. 11(b) for this period.
21 days
22 Oct/12
Further disclosure available. Court advised that the Applicant is changing his lawyer to Adele Monaco. Remanded to Oct. 29, 2012.
21 days
29 Oct/12
Ms. Monaco advises that she is not yet retained. Crown advises that disclosure is available. The matter adjourns to Nov. 13, 2012.
7 days
13 Nov/12
Additional disclosure available. No instructions from counsel for the Applicant. Adjourns to Nov. 27, 2012.
15 days
27 Nov/12
Disclosure picked up by agent for Applicant’s counsel. Co-accused has contacted but not fully retained counsel. Remanded to Dec. 11, 2012
14 days
11 Dec/12
Counsel for co-accused expecting to be retained “within the next couple of weeks.” Applicant’s counsel advises that she is seeking additional disclosure. Applicant remanded to Dec. 21, 2012 for show cause.
14 days
21 Dec/12
Bail hearing not commenced.
10 days
28 Dec/12
Applicant released on bail. Remanded to Jan. 8, 2013.
7 days
08 Jan/13
Applicant’s counsel advises that she is beginning a homicide trial the next day and requests additional disclosure. Applicant’s counsel agrees to contact assigned Crown counsel directly and to attempt to have a pre-trial in the interim. Remanded to Feb. 11, 2013.
11 days
11 Feb/13
Additional disclosure provided. Crown pre-trial held. Counsel for co-accused advises that legal aid was refused and he will not be acting for the co-accused. Counsel for co-accused asks for adjournment for final decision from legal aid to March 11, 2013. The earliest date agreeable to the parties was March 5, 2013 to set a Judicial Pre-Trial.
34 days
05 Mar/13
Additional disclosure provided. Ms. Monaco files designation for the Applicant. Mr. Yasskin files designation for the co-accused. The first available date for the parties for the JPT is April 8, 2013.
22 days
08 Apr/13
JPT held. 3 days scheduled for preliminary inquiry. Additional disclosure provided (medical records). Co-accused asks for an adjournment to ensure counsel is available. Remanded to Apr. 12, 2013.
34 days
12 Apr/13
Replacement information is filed. Additional disclosure is provided. Preliminary Inquiry scheduled for 3 days beginning Feb. 10, 2014, to proceed with or without counsel for co-accused. A confirmation date is scheduled for Aug. 12, 2013.
4 days
12 Aug/13
Additional disclosure provided to co-accused. Matter adjourned to Sept. 16, for filing of statement of issues.
122 days
16 Sept/13
Statement of issues filed for Applicant and co-accused. Counsel for Applicant requests outstanding disclosure. Remanded to Dec. 10, 2013.
35 days
10 Dec/13
Outstanding disclosure issues are resolved. Ms. Monaco advises that she is not yet retained and has filed a Rowbotham application for May 20, 2014. Matter remanded to Jan. 13, 2014.
85 days
13 Jan/14
Ms. Monaco is still not retained but prepared to proceed in any case with next steps. She is in discussion with Crown Law Civil to have the Rowbotham heard earlier. Matter adjourned to Jan 16, 2014.
34 days
16 Jan/14
Rowbotham application date set, for Jan. 20, 2014. Ms. Monaco asks to remand the matter to Jan 24, 2014 to advise if Applicant will be proceeding with or without counsel.
3 days
24 Jan/14
Ms. Monaco advises that she will be representing the Applicant for the preliminary inquiry. The matter is remanded to Feb. 10, 2014.
8 days
10 Feb/14
Preliminary inquiry begins.
17 days
12 Feb/14
Preliminary inquiry ends. Both accused committed to stand trial. Adjourned to Assignment Court on Mar. 26, 2014.
3 days
26 Mar/14
First appearance at SCJ. JPT is scheduled for June 2, 2014.
42 days
02 June/14
JPT held with Crown and Applicant’s counsel only. Mr. Yasskin advised that he did not participate because he was not yet retained by co-accused. A further JPT was scheduled for July 16.
68 days
16 July/14
JPT was inadvertently scheduled in Federal time slot. Re-scheduled to July 17, 2014.
44 days
17 July/14
JPT adjourned as Mr. Yasskin indicated he was just recently retained by co-accused. Another JPT was set for Sept. 19, 2014. Applicant’s counsel advised that they have been ready to go since June. Bail variation completed for the co-accused.
1
19 Sept/14
JPT adjourned again to Sept. 29, 2014. Counsel for the co-accused is out of town for a funeral and had not filed the JPT forms. Counsel for Applicant expresses her concerns regarding delay.
64 days
29 Sept/14
Another JPT was scheduled for Nov. 17, 2014. Counsel for Applicant again expresses concerns regarding delay.
10 days
17 Nov/14
JPT held. A 3 week judge and jury trial scheduled to commence June 8, 2015. A s. 11(b) motion scheduled for April 2, 2015.
49 days
08 June/15
Trial commencement date.
203 days
TOTAL
1,035 days
III. The Applicant
[9] The Applicant testified at the hearing of the application regarding the prejudice he contends that he has suffered. He indicated that he has had a difficult time finding a job as he is under strict bail conditions and needs to be driven everywhere by his mother, who is his surety. He also testified that he has not been able to proceed with furthering his education. In addition, the Applicant testified that the pressure of the pending charges and his restrictive bail conditions have interfered with his family life and his relationship with his girlfriend.
[10] In terms of his job search, the Applicant stated that he has been to a handful of stores looking for work but has not found anything. In addition, he testified that he previously held a manual labour job laying interlocking brick, but that he has not thought of looking for any similar manual labour. He never finished his schooling, and is of the view that his lack of education is holding back his employment prospects.
[11] Counsel for the Crown points out that the Applicant has not tried particularly hard to find work. In 2013-14 he made two applications for jobs that he saw online, one in a warehouse and one at Walmart, but has not pursued any further applications since that time. The Crown also points out that the Applicant’s educational issues are not a result of any delay in the proceedings, and that they pre-date the present charges. Moreover, Crown counsel notes that if being accompanied by his mother or other terms of his release on bail were interfering with his job search, he could have applied for a variation of those terms but has never done so.
[12] Finally, Crown counsel observes that the Applicant’s evidence is that he has only had a girlfriend for the past 18 months, and that before meeting his girlfriend he didn’t want his trial to commence because he wanted to spend time with mother. Once he had a girlfriend and she became pregnant, he again did not want his trial to commence because he wanted to wait until the baby was born. The Applicant’s son was born in August 2014, and by his own admission it is only since then that he has wanted to proceed to trial.
IV. The right to a speedy trial
[13] The Supreme Court of Canada indicated in R v Morin, 1992 CanLII 89 (SCC), [1992] 1 SCR 771, at para 27, that, “The individual rights which [section 11(b) of the Charter] seeks to protect are: (1) the right to security of the person, (2) the right to liberty, and (3) the right to a fair trial.”
[14] A secondary purpose of s. 11(b) is a societal interest. As Sopinka J. put it in Morin, at para 29, “Society as a whole has an interest in seeing that the least fortunate of its citizens who are accused of crimes are treated humanely and fairly. In this respect trials held promptly enjoy the confidence of the public.” Accordingly, while it is certainly in society’s interest to ensure that those charged with serious offenses are ultimately brought to trial, the fact that an accused person is charged with a serious offense does not act as a bar to a constitutional remedy if there is unreasonable delay: Morin, at para 30; R v Kporwodu 2005 CanLII 11389 (ON CA), [2005] O.J. No. 1405 (Ont CA).
[15] In R v Godin, 2009 SCC 26, [2009] 2 SCR 3, at para 18, the Supreme Court of Canada provided a synopsis of the factors to be examined in an application under s. 11(b): “Whether delay has been unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by the defense, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that s. 11(b) seeks to protect.” This, of course, leads to the need for an analysis of the stage-by-stage chronology set out in Part II above.
[16] That said, the Supreme Court has admonished that, “It is important…not to lose sight of the forest for the trees while engaging in this detailed analysis”: Ibid. The proper approach is one of “balancing the interests which [s. 11(b)] is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay”: Ibid., quoting Morin, at para 26.
(a) Prejudice to the Applicant
[17] It is important that the prejudice asserted by the Applicant be the kind that is capable of supporting a s. 11(b) claim. All criminal charges are prejudicial in the most generalized sense of the term. However, “The focus of prejudice under s. 11(b) is the prejudice flowing from a situation ‘prolonged’ by delay rather than the mere fact of being charged with a criminal offence”: R v Kovacs-Tatar (2004), 2004 CanLII 42923 (ON CA), 73 OR (3d) 161, at para 33 (Ont CA).
[18] The Defendant has been out of custody on bail since December 2012, and so his liberty interest has not been severely impaired. As indicated, he complains that his bail conditions have hampered his mobility and job search, but it is clear from his testimony that his employability was already limited before he faced any charges; and, moreover, his activities since being released on bail suggest that his interest in actually obtaining employment has been minimal. In addition, he has never moved to vary his bail conditions or indicated in any way that his job prospects would improve with a change in the terms of his interim release.
[19] Counsel for the defense has argued that the Applicant’s security of the person has been undermined due to the stress of the pending charges. The Applicant himself testified that his inability to earn a living or to even take his infant son outdoors for a walk has caused him psychological stress. These factors, however, seem to come from the very fact that he faces charges; they have not changed over time or become more pronounced with the lapse of time since his arrest and charges.
[20] To say this is not to express a lack of sympathy for the stressful situation in which the Applicant doubtless finds himself. As observed by Cory J. in Regina v Askov, 1990 CanLII 45 (SCC), [1990] 2 SCR 1199, at para 75, “The time awaiting trial must be exquisite agony for accused persons and their immediate family.”
[21] The Applicant, like any accused person, is presumed innocent and has a right to a fair and expeditious trial. He should not have to wait interminably for the pre-trial and trial process to take its course. This, indeed, is an integral part of the societal or community interest embedded in the s. 11(b) right. As Cory J. put it, at para 76 of Askov, “That community interest has a dual dimension. First, there is a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law. Second, those individuals on trial must be treated fairly and justly.
[22] Counsel for the Applicant contends that, in effect, the Applicant’s right to make full answer and defense is prejudiced by the unduly lengthy delay in reaching trial. There is no evidence that any witness has disappeared or that any evidence has been lost over time. However, counsel submits, relying on Morin, at para 33, that there is an inference that excessively lengthy and unexplained periods of delay are in and of themselves prejudicial. To put the point another way, “The longer the delay, the more difficult it should be for a court to excuse it”: Askov, at para 103.
[23] This is the most salient of the Applicant’s claims. The total delay of 1,035 days, or just over 34 months – less a 21 day period in October 2012 in which the delay was waived by the Applicant’s then counsel – does warrant examination by the Court.
[24] The question, accordingly, turns on an analysis of the reasons for the various periods of delay. Could they or could they not have reasonably been prevented, and are they attributable to the Crown and/or the court as an institution or are they attributable to the Applicant himself and/or to steps inherent to the legal process?
(b) Reasons for delay
[25] In the case at bar, there has been a substantial amount of Crown disclosure leading to a scheduled three week trial. The time inherently needed for all of the pre-trial procedures in a case of this relative complexity is significant. The Court of Appeal has explained, “When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources”: R v Allen, 1996 CanLII 4011 (ON CA), [1996] OJ No 3175, at para 27, leave to appeal denied 1997 CanLII 331 (SCC), [1997] SCJ No 91.
[26] Crown counsel submits that the 105 days (126 days less the 21 days waived) from the laying of the information on August 7, 2012 until the bail hearing on December 21, 2012, constitutes a reasonable intake period for this case. He further argues that the 34 days to arrange for a judicial pre-trial (“JPT”) – from March 5, 2013 to April 8, 2013 – and the 3 days for the preliminary inquiry – from February 10-12, 2014 – should be considered inherent to the case and factored out of any delay calculation. “Pre-hearing…conferences are justified and necessary tools in busy judicial centres designed to ensure effective and efficient use of available court resources”: R v Nguyen, 2013 ONCA 169, at para 59.
[27] Likewise, the 42 days from committal to the first appearance in court – from February 12, 2014 to March 26, 2014 – and the March 26, 2014 court date for scheduling another JPT, are inherent to the case as part of the intake requirements. This passage of time is a necessary by-product of the court’s need to schedule its proceedings in an orderly manner.
[28] A substantial amount of delay occurred between June 2, 2014, the date on which a JPT in which only the Crown and counsel for the Applicant participated, was first scheduled, to the final JPT, held on November 17, 2014, in which counsel for the co-accused also participated. Both parties are in agreement that this 5 month period of delay was caused by a series of requests for adjournment by counsel for the co-accused.
[29] To this must be added a number of adjournments that had been sought by counsel for the co-accused in order to confirm his retainer and legal aid coverage. These requests caused a 22-day delay from February 11, 2013 until he obtained a final decision from legal aid, and another 4 days, from April 8-12, 2013, to deal with his own scheduling issues.
[30] The Applicant submits that the Crown is responsible for pushing the matter ahead and is therefore responsible for the delays caused by its passivity in the face of the co-accused’s maneuverings. In response, the Crown submits that it cannot be faulted for needing to schedule a JPT with both accused parties and for having no choice but to work with the difficult schedule of co-accused’s counsel. The Crown relies on the Court of Appeal’s decision in R v Whylie (2006), 2006 CanLII 9037 (ON CA), 207 CCC (3d) 97, at para 24, for the proposition that, “ordinarily delay caused by the actions of a co-accused is considered neutral in the s. 11(b) analysis.”
[31] It is certainly the case that, “the Crown must be vigilant in bringing accused persons to trial within a reasonable time...” and that it “must take all reasonable steps to ensure compliance with s. 11(b)”: Kporwodu, supra, at para 4. That said, there is little the Crown can do in such matters as scheduling a JPT if counsel for one of the two accuseds is not available.
[32] This is not a case such as R v Topol, 2008 ONCA 113, where the Court of Appeal, in a short endorsement, placed the fault for a 9 year delay (4 years of pre-charge investigation plus 5 years of post-charge proceedings) with the Crown. In Topol, the Crown had consistently consented to an inordinate series of adjournments by two of the applicant’s co-accuseds. Here, by contrast, the Crown did attempt to push ahead and to have a JPT held with counsel for the Applicant alone, but that only resulted in the need for a further JPT with both counsel present.
[33] In considering the Applicant’s reliance on the very unique fact situation addressed in Topol, it is apt to note that the Court of Appeal itself has advised not to read “unwarranted jurisprudential principles into [a brief] endorsement”: R v Singh, 2014 ONCA 293, at para 10. Topol appears to have been so sui generis that the Court intentionally confined itself to a short, fact-based endorsement. It does not stand for the principle that the Crown in the ordinary course is responsible for delays caused by one of two co-accuseds; indeed, if anything it stands for the opposite.
[34] As a statement of principle, “…delay caused by the actions, or inactions of co-accused, including delay as a result of an accused attempt to locate and retain counsel, as a general rule is considered neutral and is not factored into the assessment of reasonable time”: R v Shi, 2014 ONSC 6653, at para 25. I do not accept the argument put forward by counsel for the Applicant that those periods of delay resulting from adjournments sought by the co-accused are attributable to the Crown.
[35] Counsel for the Applicant contends that the Crown could have, and should have, severed the two trials. Counsel for the Crown points out that had the Applicant wanted a severance his lawyer could have moved for it, but she did not. In any event, the Crown submits that it is not the law that the Crown is obliged to sever a trial of two co-accuseds for the sake of expediting matters for one of them. The courts have been quite firm in the view that, “The prosecution…has an absolute discretion to proceed jointly against multiple accused, when it is alleged that those accused are involved in a common enterprise”: R v Dieckmann, 2012 ONSC 1813, at para 59.
[36] Turning to the issue of Crown disclosure, there is no merit to the Applicant’s argument that substantial delay was caused by the fact that the Crown disclosure came in stages rather than all at once. While counsel for the Applicant did request further disclosure on several occasions, there is little evidence that any particular stage in the proceedings was delayed for this reason.
[37] Counsel for the Applicant suggested that at one stage the setting of a pre-trial was delayed for over 30 days due to a lack of disclosure from the Crown; however, counsel for the Crown points out that one of the very purposes of a pre-trial is to discuss disclosure and so it makes no sense to use disclosure, or the shortfalls thereof, as a reason to delay a pre-trial. As the Court of Appeal pointed out in Kovacs-Tartar, supra, at para 47, “because the obligation of the Crown to make disclosure is a continuing one, the Crown is not obliged to disclose every last bit of evidence before a trial date is set.”
[38] There are, of course, certain delays here that are attributable to the Crown. That is inevitable since Crown counsel also have scheduling issues with other cases that they are obliged to accommodate. Here, when the trial date was set counsel for the Applicant was available after March 16, 2015, and counsel for the co-accused was available after April 7, 2015. Counsel for the Crown was not available until May 19, 2015. Accordingly, the 42 days between April 7 and May 19, 2015 is attributable to the Crown.
[39] The balance of the delay in this case appears to be the result of limitations on institutional resources in the court system. There was a substantial period of institutional delay between April 12, 2013, the day the preliminary inquiry was scheduled, and February 10, 2014, the day it began. However, as Code J. explained in R v Lahiry, 2011 ONSC 6780, [2011] OJ No 5071, at para 2, “The Court cannot find that a particular period of delay has been caused by systemic congestion until it is first established when counsel were ready to try the case.”
[40] There is no indication of when counsel was ready for the preliminary inquiry, but as the Crown points out in its factum it stands to reason that all counsel had some scheduling parameters that needed to be worked around. Counsel for the Crown proposes that 30 days be assumed as a rough estimate to account for counsels’ scheduling and preparation needs, which would leave a period of delay of 274 days, or just over 9 months, attributable to the court as an institution. Likewise, the 20 days from the Crown’s first availability for trial, May 19, 2015, until the trial date, June 8, 2015, are attributable to the institution as opposed to any of the parties.
[41] This total of approximately 10 months of institutional delay, while not attributable to the Crown and its counsel, does factor into the Morin calculus of unreasonable delay. This is not a period of inherent delay for preparation time or for a short accommodation of the court’s own scheduling process; it is a lengthy waiting period which the Applicant and his counsel were powerless to shorten.
[42] When combined with the delays attributable to the Crown – but not those attributable to the Applicant or his co-accused, or to delays inherent to the system, or to the 21 days waived by the Applicant’s counsel early in the process – the unjustified delay here amounts to approximately one year.
V. Reasonable and unreasonable delay
[43] As a general approach, a determination as to whether the right to be tried within a reasonable time has been infringed does not flow from a mathematical or administrative formula. Rather, such determination entails a judicial ‘balancing’ of the interests that the section was designed to protect against the factors causing the delay: Morin, at para 32.
[44] The point of the exercise is to protect an accused person’s right under s. 11(b) of the Charter, and not to stay trials for any and all delay. A speedy trial is part and parcel of a fair trial, the question being whether the period of delay that has ensued is “excessive and unreasonable” in view of the purpose of the Charter right: Askov, at para 113.
[45] There are a number of factors that have made this case somewhat unusual and that have added to the protracted pre-trial proceedings. These include retainer issues pertaining to all defense counsel, the need for a Rowbotham application to be scheduled and heard, and the extended scheduling difficulties of counsel for the co-accused. None of these are put forward as an excuse for a year’s worth of institutional and Crown delay, but they do go a long way toward explaining the nearly 35 months that have elapsed since the date the charge was first brought against the Applicant.
[46] As already indicated, the prejudice arising from this period of delay, as opposed to the prejudice arising from the charges themselves, is minimal. Furthermore, the charges faced by the Applicant are very serious, involving the shooting of two people on a crowded Toronto street. It is certainly the case that society has an interest in having such charges tried on their merits.
[47] The Supreme Court has observed that the justice system is increasingly concerned about the incidence of gun crimes in Canada: R v Clayton, 2007 SCC 32, [2007] 2 SCR 725, at para 110. Along the same lines, the Court of Appeal has stated explicitly that, “The possession and use of illegal handguns in the Greater Toronto Area is a cause for major concern in the community and must be addressed”: R v Danvers (2005) 2005 CanLII 30044 (ON CA), 199 CCC (3d) 490, at para 78. In the circumstances here, the societal interest in trying the case outweighs such relatively minimal prejudice as may exist: R v Campbell, 2012 ONCA 394, [2012] OJ No 2602, at para 18 (Ont CA).
[48] The roughly 12 months of delay in the present case, while in need of comment and improvement for the sake of accused persons and society at large, is within the Morin guidelines for a Superior Court of Justice trial following a preliminary inquiry. In any case, “Where the accused suffers little or no prejudice, it is clear that the consistently important interest of bringing those charged with criminal offences to trial outweighs the accused’s and society’s interest in obtaining a stay of proceedings on account of delay…” Morin, at para 87.
VI. Disposition
[49] The application for a stay of proceedings is accordingly dismissed.
Morgan J.
Date: May 5, 2015