CITATION: R. v. James, 2015 ONSC 3295
COURT FILE NO.: 40000621-14
DATE: 20150525
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
COSMO JAMES
Frank Schembri, for the Crown, Respondent
Shane Martinez, for Cosmo James
HEARD: March 19, 2015
r.f. goldstein j.
REASONS FOR JUDGMENT
[1] Mr. James faces charges in relation to a robbery. His trial is set for June 8, 2015 for three weeks. He was arrested on March 19, 2013. He has been in custody ever since. It will be just over 26 months from arrest to trial. He says that there has been some 14.3 months of institutional and Crown delay. He says that the main reason for the institutional delay was the result of a failure of disclosure by the Crown. He says that but for the actions of the Crown the institutional and Crown delay would have been only 12.7 months. He says that 14.3 months exceeds the Morin guidelines. That, combined with the severe prejudice suffered, has resulted in a violation of Mr. James’s s. 11(b) Charter rights. He says that charges should be stayed.
[2] While it is true that the Crown did not handle disclosure well and Mr. James has suffered real prejudice, I disagree. When a proper analysis is conducted the institutional and Crown delay did not, in fact, exceed the Morin guidelines. The Applicant himself, in his revised chart, admits that the total period of institutional and Crown delay is 429 days in both this Court and the Ontario Court of Justice, which is 14.3. The total institutional and Crown delay for both Courts is actually less than 10 months – well within the Morin guidelines. The application is dismissed.
ANALYSIS
[3] A court undertaking an analysis under s. 11(b) must consider:
• The length of the delay;
• Waiver of time periods;
• The reasons for the delay, including the inherent time requirements of the case; the actions of the accused; the actions of the Crown; limits on institutional resources; and,
• Prejudice to the accused.
[4] See: R. v. Morin, [1992] 1 S.C.R. 771. In Morin the Supreme Court of Canada suggested that the appropriate amount of delay in the Ontario Court of Justice is 8-10 months and in the Superior Court of Justice 6-8 months. Those guidelines do not constitute judicially imposed limitation periods: R. v. Kovacs-Tartar (2004), 2004 CanLII 42923 (ON CA), 73 O.R. (3d) 161, [2004] O.J. No. 4756 (C.A.). The guidelines also refer to the acceptable amount institutional delay, not the total amount of delay. Other factors, such as the complexity of the case, play a role in determining the inherent time requirements of the case. Most importantly, the Court must consider the overall reasonableness of the delay. The societal and individual interest in a trial within a reasonable time must be balanced with the societal interest in a trial on the merits.
[5] For the purposes of this analysis, I divide up the time periods as follows:
• March 19 to July 30, 2013: Arrest to setting of preliminary inquiry date (133 days);
• July 30, 2013 to January 8, 2014: set date for preliminary inquiry to commencement of preliminary inquiry (157 days);
• January 8, 2014 to May 1, 2014: Commencement of preliminary inquiry to the end of the evidence (113 days);
• May 1, 2014 to September 11, 2014: End of the evidence to submissions and then to committal for trial (133 days);
• September 11, 2014 to November 24, 2014: Committal for trial to setting of trial date (73 days);
• November 24, 2014 to June 8, 2015: Setting of trial date to trial date (190 days).
[6] The procedural history along with my allocation of time is set out in the chart appended to the end of these reasons.
(a) March 19 to July 30, 2013: Arrest to setting of preliminary inquiry date
[7] This period of 133 days (or 4 months and 11 days) consisted of intake, judicial pre-trials, and disclosure. The defence position is that all of this time is attributable to either intake or the inherent time requirements of the case except for 37 days: 12 days attributed to the delay of a co-accused and 25 days due to the Crown. Crown counsel argues that this entire period should be considered as intake or part of the inherent time requirements of the case, except for a 7-day period attributable to a defence adjournment request.
[8] Mr. James was arrested on March 19, 2013. He has been in custody since his arrest. He has not had a bail hearing. Given his criminal record, and the fact that he faces outstanding charges, it seems unlikely that he would have been granted bail. He had two other co-accused. Both pleaded guilty during the course of this intake period.
[9] On May 6, 2013, Mr. Martinez was retained as counsel. He attended court on May 9, 2013 and noted on the record that there was still no disclosure. On May 16, 2013 there was a further attendance and Crown counsel indicated that initial disclosure was available. It took some time for all counsel to be available for a judicial pre-trial but one was scheduled for July 5, 2013. The pre-trial could have been scheduled earlier but for the fact that counsel for the co-accused were not available. The first judicial pre-trial was held before Bacchus J. (who essentially case-managed the process) on July 5, 2013. It was fairly clear that there were outstanding disclosure issues. A further judicial pre-trial was held on July 30, 2013. Defence counsel noted that there continued to be disclosure issues, as did Bacchus J., but Her Honour was satisfied that there was sufficient disclosure for a preliminary inquiry date to be set. The Crown is not obliged to disclose every last bit of evidence before a trial date is set, or an election is made: Kovacs-Tartar at para. 47.
[10] Complexity played a role throughout the process, commencing with the intake period. The Crown correctly argues that this was not a theft under or a simple drug possession. There were multiple accused and multiple charges involving at first one, and then seven alleged robberies. Although certainly not the most complex case, there was complexity to it. Counsel originally estimated that it would take three weeks for a preliminary inquiry, although that estimate was shortened as people pleaded guilty. While a three-month intake period is suitable for most cases, the extra complexity of this case generated a need for a slightly longer period for disclosure to be made: R. v. Allen (1996), 1996 CanLII 4011 (ON CA), 110 C.C.C. (3d) 331, [1996] O.J. No. 3175 (C.A.).
[11] There is some merit to the argument that the period between July 5 and July 30, 2013 should be considered Crown delay. There is no doubt that disclosure was not properly organized but ultimately I reject the defence position that an extra 25 days should be attributed to the Crown. The three-month intake period referred to in Morin is for routine cases. Furthermore, this period was taken up by setting dates for judicial pre-trials and judicial pre-trials themselves. A judicial pre-trial is an important part of the process and is considered part of the inherent time requirements of any case: R. v. Tran, 2012 ONCA 18; 288 C.C.C. (3d) 177 at paras. 33-34. Although it is true that the extra judicial pre-trial during this phase was necessary due to issues attributable to the Crown, multiple pre-trials are common, especially with cases involving multiple accused and more than average complexity. I respectfully adopt the observation of my colleague K. Campbell J. R. v. Ignani, 2013 ONSC 5030, 49 M.V.R. (6th) 19 that what s. 11(b) of the Charter requires is not perfect efficiency but reasonable prompt and forward process in all necessary intake functions.
[12] That said, while the disclosure issues can be explained away as part of the initial intake period, it is clear that disclosure was not well organized, was made haphazardly, and was certain to generate problems in the future unless firmly dealt with. Regrettably, that did happen. Defense counsel quickly pointed out disclosure deficiencies on the record. At the same time, as Crown counsel has note, there was not a single letter from Mr. James’s counsel actually requesting disclosure, or indeed even indicating that disclosure had been reviewed.
[13] In my view the 12 days required so that counsel of a co-accused could be ready is part of the inherent time requirements of the case. It is part of the complexity that is certain to occur when dealing with multiple accused: Allen.
[14] I also agree with the Crown that 7 days is attributable to the defence. On May 30, 2013 defence counsel asked for an adjournment. Counsel did not send dates so that a judicial pre-trial could be set, and the matter had to be adjourned for that purpose.
[15] Overall, this period of 133 days should all be allocated as intake except for 7 days attributable to the defence, and 37 days attributable to the inherent time requirements of the case. The intake period was 89 days, or just under three months. An intake period of just under three months for disclosure, judicial pre-trials, and the retention of counsel where multiple accused are involved is hardly unreasonable.
(b) July 30, 2013 to January 8, 2014: set date for preliminary inquiry to commencement of preliminary inquiry
[16] This period of 157 days is simply the earliest date that was available to all parties and to the Court. The defence attributes this entire period to institutional delay. Respectfully, that is an error. Institutional delay begins to run when the parties are ready for trial (or in this case, preliminary inquiry): Morin, at para. 47; R. v. Lahiry, 2011 ONSC 6780, 109 O.R. (3d) 187 at paras. 2, 27-29; Tran at para. 42. The Crown suggests that one month is appropriate for the parties to prepare for the preliminary inquiry. I agree. As Code J. pointed out in Lahiry, that is the usual allocation. I attribute 127 days to institutional delay and 30 days to the inherent time requirements of the case.
[17] During this period there were five more judicial pre-trials held with Bacchus J. Numerous issues were discussed, including disclosure. In fact, on the day that the preliminary inquiry was set Mr. Martinez noted that there were continuing disclosure problems, but he was content to set the date after discussion on the record before the pre-trial judge. Another judicial pre-trial was held on September 6, 2013. Again, defence counsel pointed out various problems with disclosure. Further pre-trials were held on September 20, October 15, October 29, and November 15, 2013. Although resolution was discussed during these latter pre-trials, there was no further discussion of disclosure.
[18] The co-accused were also dealt with during this period of time. As a result, the Crown concluded that dates could safely be vacated. On October 29, 2013 Crown counsel indicated on the record before Bacchus J. that not more than five days would be required for the preliminary inquiry. Four days were vacated.
[19] On October 29, 2013 Bacchus J. made the following comment:
… the important thing to do is there’s 15 days set aside. Two of the accused have now resolved their matter. I cannot see how those 15 days would be required anymore and so what I would like to do is vacate at least ten of the days and perhaps Mr. Holder can confirm which five days he’s available for…
[20] On November 15, 2013, two more preliminary inquiry days were vacated.
(c) January 8, 2014 to May 1, 2014: Commencement of preliminary inquiry to the end of the evidence
[21] The preliminary inquiry was supposed to commence on January 8, 2014. Justice McArthur delivered her judgment on September 11, 2014. Thus, from the first day that evidence was supposed to be heard to Justice McArthur’s judgment was 191 days, or about 6 months and one week. The final day of evidence was May 1, 2014. The evidence portion of the preliminary inquiry took 113 days, or about three months and three weeks.
[22] On January 8, 2014, the first day of the preliminary inquiry, Mr. Holder was provided with several CD’s of disclosure. He asked for a day so that he could review the material. Crown counsel indicated that she only received the CD’s that day as well. She noted that there were several different robberies to be dealt with, as well as a Crown similar fact application. The case was adjourned to the next day so that Mr. Holder could review the material. On the next day he received a further 7 CD’s of material. Mr. Holder put on the record what the first day’s disclosure consisted of: cell phone records, over 100 images, and 341 text messages, a further witness will-say, and material related to expert testimony regarding cell phone towers.
[23] Crown counsel indicated on the record at the time that the material had been disclosed and that defence counsel simply did not have the right player on his computer to play it. Mr. Shembri, for the Crown, argued that what had happened was that the defence obviously had this material earlier. Respectfully, I cannot agree. Based on the comments on the record of both Crown and defence counsel, I find that Mr. Holder was referring to CD’s that were provided on January 8, 2014.
[24] A further adjournment was granted on January 9, 2014. On January 21, 2014 the preliminary inquiry commenced. Mr. Holder again asked for an adjournment based on late disclosure. The disclosure included images and data on the cell phones of the co-accused. When the Court asked whether defence counsel had made a request for this material, the following exchange took place:
THE COURT: You read the officer’s notes…
MR. HOLDER: That’s correct.
THE COURT: … no doubt it would’ve indicated what was on them when they were arrested.
Mr. HOLDER: That is correct.
THE COURT: So it would’ve been clear that there was either a phone or electronic device on them.
MR. HOLDER: That is also correct.
THE COURT: And yet no letter was sent from defence counsel saying we would like the contents of the co-accused, cell phones, images and data...
MR. HOLDER: Your Honour –
THE COURT: … is that right?
MR. HOLDER: That is correct however –
THE COURT: All right, well, you know what, I’m going to go back to my officer right now, well, just in a moment, because I’m going to invite counsel to speak a little bit more. Mr. Holder I’m quite disinclined to grant an adjournment of the proceedings…
MR. HOLDER: That’s correct.
THE COURT… based on this which means, for a number of reasons; one, the fact that no request was made from defence counsel; second, I’m having some difficulty in seeing how this could impact on your cross-examination of civilian witnesses… I’m not quite sure how that would play out given that it would be conversations presumably between the co-accused which I can see as being relevant given that there is a conspiracy count before the court. So, certainly I can understand why defence counsel wants this material. I fail to understand why defence counsel didn’t follow up on this material given that there is a conspiracy count…
[25] Ultimately, Justice McArthur did not grant the adjournment. Defence counsel was indeed able to commence his cross-examination. In my view, therefore, the period from January 8 to January 21 is properly characterized as Crown delay. It is clear that the police were responsible for the late disclosure. Although the police provided the material to both Crown and defence counsel at the same time, it is clear that much, if not all the new material had been in the hands of the police for months. It is true that it took some time to analyze the material, and that there was a great deal of it – primarily text messages and photographs. That said, no one on the Crown’s side provided a proper explanation as to why it took such a long time to provide this material.
[26] From January 21 to January 30 the evidence portion of the preliminary inquiry continued. This was clearly part of the inherent time requirements of the case. There are three important points about this time period, however: the first is that some time was lost due to a snowstorm and some time was lost due to defence counsel having to attend a family funeral. These unforeseen events are clearly not attributed to any party. The litigation process is often subjected to forces beyond the control of any party or person.
[27] The second point, of course, is that by losing time this way there are cascading effects down the line. Those effects, however do not mean that the court must instantly accommodate the parties. As the Court of Appeal pointed out in Allen, no case is an island with a better demand on resources than any other case.
[28] The third point is this: the decision to vacate 9 of the 15 preliminary inquiry dates was a mistake. Counsel simply under-estimated the time required for the preliminary inquiry. Furthermore, the disclosure problems created delay. Everyone, including Bacchus J., had agreed that the dates were no longer needed. In light of subsequent events that assessment was not correct. Ordinarily, where counsel under-estmate the time required for trial the ensuing dely is considered part of the inherent time requirements of the case, and therefore neutral: R. v. Qureshi (2004), 2004 CanLII 40657 (ON CA), 190 C.C.C. (3d) 453, [2004] O.J. No. 4711 at para. 27 (C.A.); Allen at para. 27 (C.A.).
[29] In my respectful view, this period of time therefore is part of the inherent time requirements of the case with the exception of 30 days attributable to the Crown. I agree with the defence that this overhang from the disclosure problems cannot be properly attributed to any other factor. That said, while it is true that late disclosure caused time to be lost, I cannot agree that it therefore meant that every subsequent adjournment became the responsibility of the Crown. The underestimation – by everyone, including Bacchus J., who conducted numerous judicial pre-trials and was in a position to know – was also a critical factor.
[30] The preliminary inquiry continued with evidence on March 3 and March 4, and April 17 up until submissions were made on May 1, 2014. It is true that defence had earlier dates, and it is possible that submissions might have been made earlier. That, however, ignores the reality of the courtroom. Late starts and early finishes are sometimes not captured on a transcript but those things eat court time like a whale ingests kelp: small nibbles eventually amount to tons, with nobody really noticing. Something like that occurred in this case. Justice McArthur noted on March 4, 2014 that:
We have lost a significant amount of time due to Mr. Holder’s lateness almost every morning in this prelim.
[31] This aspect of the case is an excellent illustration for the proposition that the consideration of delay cannot be reduced to a mathematical formula. Thus, while there is certainly something of a case to be made that cascading delays should be laid at the feet of the Crown, Mr. Holder’s lateness cannot be ignored either. Given the complicated factual mix – Crown disclosure issues, defence lateness, the vacating of trial dates – in balancing the various factors I characterize the period of the evidence from January 30, 2014 to May 1, 2014 (a period of 91 days) to the inherent time requirements of the case and therefore neutral.
(d) May 1, 2014 to September 11, 2014: End of the evidence to committal for trial
[32] Mr. Martinez, for the defence, argues that the 104-day period from May 1, 2014 to August 12, 2014 should be divided into 37 days of inherent time requirements, 36 days of Crown delay, and 31 days of institutional delay. I agree.
[33] On April 17, 2014 one day for submissions was set aside. That day was August 12, 2104. The Crown’s factum was due on May 16 and the defence factum was due on June 6. Thus, according to the defence, argument could have been made any time after June 6 and any delay is either Crown or institutional delay.
[34] The Crown’s position is that the period from April 18 to May 17, 2014 (30 days) is half attributable to the accused and half attributable to the Crown. The Crown also concedes that the period from May 18 to June 30, 2014 is attributable to the Crown.
[35] At the May 1 appearance Mr. Holder asked if the Crown was available to argue the matter earlier, but Crown counsel was tied up in a Superior Court trial until June 27. Defence counsel argues that the extra month is therefore Crown delay. In fact, Crown counsel was available on July 30 but the preliminary inquiry judge was not. It is unrealistic to expect the Court to have dates instantly available to accommodate argument the moment that facta are due. In any event, the August 12 date for submissions had been set in April, based on the best information available.
[36] It is true that the preliminary inquiry judge was not available for a significant part of that time. The unavailability of a witness or a judge is usually a neutral factor. That said, it is also true that had there not been disclosure difficulties the preliminary inquiry it may well have been completed prior to the summer, where the preliminary inquiry judge had scheduling difficulties. That, however, is unknowable.
[37] On September 11, 2014 Justice McArthur delivered her reasons for judgment on the preliminary inquiry. She discharged Mr. James on counts related to six robberies. Mr. James conceded committal on one count. Justice McArthur’s very detailed and thorough reasons reveal that the evidence was not straightforward. She was required to deal with a Crown similar fact application. She had important identification evidence that had to be evaluated to determine whether it constituted some evidence upon which a properly instructed jury could convict. She had numerous exhibits to review. There was testimony from multiple civilian witnesses and police officers. It was not a straightforward matter, as demonstrated by the result. It would have been unrealistic to suppose that any judge could simply come up with a decision quickly. Indeed, under the circumstances the decision was written relatively quickly. I disagree with Mr. Martinez that this period should be attributed half to institutional delay and half to the inherent time requirements of the case. I have little difficulty finding that the period from August 12 to September 11, 2014, a period of 30 days, is part of the inherent time requirements of the case.
[38] Thus, of the 134-day period I would attribute 66 days to the inherent time requirements of the case, and 36 days to Crown delay, and 31 days to institutional delay.
(e) September 11, 2014 to November 24, 2014: Committal for trial to setting of trial date
[39] All parties agree that this period of 73 days is clearly intake.
(f) November 24, 2014 to June 8, 2015: Setting of trial date to trial date
[40] Crown and defence counsel are very close to agreement on the characterization of this time period. Of the 189 days defence counsel agrees that one day is intake, 51 days institutional delay, and the remainder part of the inherent time requirements of the case. Crown counsel agrees that 51 days in institutional delay, and the remainder attributable to defence counsel.
[41] Defence counsel was not available for trial until April 1, 2015. Mr. James was tied up with other matters in this Court until after April 27, 2015. I do not entirely agree with the Crown that this means the defence was responsible for the delay. It was clearly a mixture of both. Given Mr. James’s outstanding matters, and counsel’s obligation to his client, I would prefer to characterize this time period as part of the inherent time requirements of the case.
[42] Thus, of this 189 days 51 is attributable to institutional delay and 138 part of the inherent time requirements of the case.
(g) Attribution of the delay
[43] The overall length of the delay in this case from arrest until the anticipated completion of trial is 821 days (to the projected end of the trial) or just under two years and two months. That requires an explanation.
Waiver of time periods
[44] The defence did not waive any time periods, other than one day for counsel to attend a funeral. I would consider that neutral and part of the inherent time requirements of the case, much like the illness of a witness: R. v. A.J.W., 2009 ONCA 661, 257 O.A.C. 11 at para. 35
The reasons for the delay
[45] Inherent time requirements: The inherent time requirements of this case were not insignificant. Although by the time the case concluded there was only one accused, the amount of disclosure was noteworthy. Mr. James was charged with a series of robberies and there were real issues on committal. The fact that Mr. James was discharged on all counts save those associated with a single robbery indicates that there were, indeed, real issues. Thus, when calculated properly the inherent time requirement of the case is 393 days. The intake period is calculated at 163 days. The total neutral period, therefore, amounts to 525 days.
[46] Actions of the accused: While no particular time period can be attributed to the actions of the accused (other than a 7 day remand request early in the process), some actions of the accused are worth mentioning. On the first day of the preliminary inquiry Mr. Holder asked that the entire matter be adjourned. It is true that he received disclosure on that day. After he had an opportunity to review the material he asked for a further adjournment of the whole matter to new dates. He said that the late disclosure was needed for him to make full answer and defence. Given that he was able to obtain a discharge for his client on all but one robbery, he obviously was able to make full answer and defence after all. These requests were not consistent with a desire for the earliest possible date, especially given that Mr. James was in custody.
[47] There are two other important actions of the accused (or defence counsel) that need to be addressed. The first is not quantifiable. On March 4, 2014 an obviously frustrated Justice McArthur noted that: “We have lost a significant amount of time due to Mr. Holder’s lateness almost every morning in this prelim.” The other action taken by the accused is that of Mr. James himself. On at least one occasion he refused to leave his cell. It appears, however, that business was done in court without him and it did not seriously impact on the case.
[48] Actions of the Crown: The actions of the Crown in this case occurred due to problems with disclosure and the unavailability of Crown counsel, as I have mentioned. The total amount of time attributable to the Crown is 80 days.
[49] Limits on institutional resources: As I will relate below when I discuss balancing the various factors, the institutional delay in this case simply did not exceed the Morin guidelines in either the Ontario Court of Justice or the Superior Court of Justice.
Prejudice
[50] There is no doubt that Mr. James suffered prejudice merely by being in custody. He mentions that he has been held in administrative detention and in segregation. There is also no doubt that being held in segregation and/or administrative detention is greatly prejudicial, but balanced against that is the fact that Mr. James has accumulated many misconducts, as he calls them, while in custody. He pleaded guilty to some, and not to others. Mr. James also suggests that he was placed in segregation when he first arrived at Toronto South without any misconducts at that point. I accept this evidence.
[51] It is also of note that Mr. James has not had a bail hearing in this matter. Knowing something about him at this point, I do not find that surprising. I suspect that it would have been difficult for him to obtain bail. Whether or not he could have obtained bail does not make the delay more or less reasonable. Obviously, the longer he is in custody without a trial the more detrimental to his physical and mental well-being.
[52] Perhaps most importantly, there is no evidence that the ability of Mr. James to receive a fair trial has been jeopardized.
(h) Balancing the factors
[53] In my view the balance favours proceeding to a trial on the merits. The main reason is simply this: the actions of the Crown and institutional delay when combined and calculated do not approach exceeding the Morin guidelines. The total amount of Crown and institutional delay in both courts was 289 days or about 9.6 months. The Morin guidelines call for a total of 14 to 18 months in both courts.
[54] Specifically, the Morin guidelines for the Ontario Court of Justice are 8-10 months. The institutional and Crown delay in this case was 238 days or about 7.6 months – very much in line with the Morin guidelines. The Morin guidelines for the Superior Court of Justice are 6-8 months. Crown and defence counsel agree that the institutional delay (there was no Crown delay) in this Court was 51 days or an astonishing 1.7 months, substantially below the Morin guidelines.
[55] The determination of whether a trial has been held in a reasonable time is not reduced to a mathematical formula, although that is what everyone, including the courts, seems to engage in. The most important part of the process, however, is determining the reasonableness of the overall delay. A judge must balance the societal interest in a trial on the merits against the societal and individual interest in having trials within a reasonable time: Morin, para 30; Lahiry, para. 89.
[56] In my respectful view, when all the factors are balanced and the entirety of the delay is considered (including the fact that the Morin guidelines were not exceeded) the interests very clearly favour a trial on the merits. This is a very serious charge, involving violence and weapons. As well, to a limited degree the actions of defence counsel were not especially consistent with a desire for a speedy trial. Mr. James’s counsel did not seem all that anxious to proceed at certain points. Mr. Holder asked for an adjournment on January 21, and it is clear from the subsequent cross-examination – and from the subsequent discharges – that he was able to very effectively mount a defence at the preliminary inquiry. I also note that Justice McArthur commented that much time was lost due to lateness, although that is obviously difficult to quantify.
DISPOSITION
[57] The application is dismissed.
R.F. Goldstein J.
Released: May 25, 2015
APPENDIX “A”
CHART OF APPEARANCES
DATE
EVENT
TIME
DELAY
March 19-20, 2013
James arrested.
1 day
Intake: 73 days
March 20-22, 2013
Information sworn alleging 29 counts, 16 against James relating to 7 robberies
2 days
March 22-Apr 10, 2013
First appearance in bail court
19 days
April 10-24, 2013
James applying for Legal Aid and considering whether to seek bail.
14 days
April 24-25, 2013
Bail court appearance; James’s counsel waiting for disclosure.
1 day
April 25-May 9, 2013
Video appearance. Mr. Martinez sends message he expects to receive Legal Aid certificate soon and asking about disclosure. It is noted that Mr. James has several other charges outstanding.
14 days
May 9-14, 2013
Mr. Martinez appears for Mr. James and indicates concerns with disclosure. Crown responds that it is being prepared.
5 days
May 14-16, 2013
Defense counsel note that there has been no disclosure made. Crown comments that the police are in the process of vetting a large amount of disclosure.
2 days
May 16-30, 2013
Video appearance. Crown pre-trial to be scheduled prior to next appearance. Crown indicates disclosure available.
14 days
May 30-June 6, 2013
Defense counsel asks for a return of June 6 by video. A judicial pre-trial was to have been set but counsel did not send dates.
7 days
Defence
June 6-July 5, 2013
Video appearance. Judicial pre-trial scheduled for July 5, 2013. Court had earlier dates but July 5 was the first date available to co-accused
29 days
Intake: 17 days
Inherent: 12 days
July 5-July 19, 2013
First judicial pre-trial before Bacchus J. Officer-in-charge does not appear. Further disclosure is outstanding. Further judicial pre-trial scheduled for July 19. Mr. Schembri, Crown counsel was not in court to respond.
14 days
Inherent
July 19-July 30, 2013
Second judicial pre-trial before Bacchus J. Crown counsel indicates that they are trying to sort out some disclosure issues so that there can be a meaningful pre-trial. Further judicial pre-trial scheduled for July 30.
11 days
July 30, 2013-Jan. 8, 2014
Third judicial pre-trial before Bacchus J. Her Honour indicates that there are significant disclosure issues but a target preliminary inquiry date can be set. Mr. Martinez indicates on the record that there are continuing problems with disclosure. Target dates set commencing January 8, 2014 with 15 days set aside. Further judicial pre-trial set for September 6.
157 days
Institutional: 127 days
Inherent: 30 days
Sept. 6, 2013
Fourth judicial pre-trial before Bacchus J. Defense counsel indicate that there continue to be disclosure issues.
Sept. 20, 2013
Fifth judicial pre-trial before Bacchus J. Mention of possible resolution but no discussion of disclosure issues.
Oct. 15, 2013
Sixth judicial pre-trial before Bacchus J. Further mention of possible resolution but no discussion of disclosure issues.
Oct. 29, 2013
Appearance before Bacchus J. by Crown and Mr. James. Defense counsel did not appear. Crown counsel estimates that not more than five days now required for prelim. Four days vacated with agreement of Bacchus J.
Nov. 15, 2013
Seventh judicial pre-trial before Bacchus J. A further two days for the prelim are vacated so that nine remain. There is no mention of disclosure.
Nov. 28, 2013
Defense counsel files a statement of issues. There is no mention of disclosure.
Jan. 8-9, 2014
First day of prelim. Defense counsel indicates he had received some CD’s of disclosure that day and needed time to review them. Crown counsel also indicates that she only just received the material that day.
1 day
Crown
Jan. 9-21, 2014
Second day of prelim. Defense counsel indicates that he has received some additional disclosure that day.
Discussion of disclosure issues. Prelim adjourned to January 21, 2014.
12 days
Crown
Jan. 21-22, 2104
Preliminary inquiry. Mr. Holder asks for a further adjournment based on receipt of new material but McArthur J., the prelim judge, orders that the matter commence.
1 day
Inherent
Jan. 22-27, 2014
Preliminary inquiry.
5 days
Jan. 27-28, 2014
Snowstorm prevents calling of evidence.
1 day
Jan. 28-29, 2014
Preliminary inquiry.
1 day
Jan. 29-30, 2014
Defence counsel required to attend a family funeral.
1 day
Jan. 30-March 3, 2014
Preliminary inquiry. New dates set commencing: March 3, 2014. Defense counsel comments that preliminary inquiry will not conclude and must go to August; he had dates available
32 days
Inherent: 1 day
Crown: 31 days
March 3-4, 2014
Preliminary Inquiry. Crown indicates that April 14 and 15 now available but defence counsel is not. Defense counsel acknowledges that but indicates that he was available for those dates when they were originally set but is not. McArthur J. was not available for the month of July and the earliest the court could otherwise accommodate is August.
1 day
Inherent
March 4-April 17, 2014
Preliminary inquiry. Trial judge notes that “We have lost a significant amount of time due to Mr. Holder’s lateness almost every morning in this prelim.”
44 days
Inherent
April 17-May 1, 2014
Preliminary inquiry.
14 days
Inherent
May 1-Aug. 12, 2014
Preliminary inquiry adjourned for final submissions on committal for trial.
104 days
Inherent: 37 days
Institutional: 31 days
Crown: 36 days
Aug. 12-Sept. 11, 2014
Submissions on committal for trial on Aug. 12, 2014; adjourned to Sept. 11, 2014 for judgment.
30 days
Inherent
Sept. 11-Oct. 30, 2014
Reasons for judgment on preliminary inquiry. Mr. James is discharged in relation to six robberies and committed for trial on one robbery.
48 days
Intake
Oct. 30-Nov. 24, 2014
First appearance in Superior Court. Mr. James refuses to leave the detention centre. Date set for judicial pre-trial.
25 days
Nov. 24-June 8, 2014
Judicial pre-trial held. Trial date of June 8 2014 set. The earliest date that defence counsel was available was April 27, 2014. After that the first date available to the Court was June 8, 2014.
189 days
Institutional: 51 days
Inherent: 138 days
June 8, 2014
Trial date.
21 days
Inherent
June 26, 2014
Anticipation completion of trial.
TOTAL TIME TO TRIAL DATE:
821
Intake:
163
525
Inherent:
362
Defense:
7
Crown:
80
Instiitutional:
209
Ontario Court of Justice – Institutional
158
238 (7.6
months
Ontario Court of Justice – Crown
80
Superior Court of Justice – Institutional
51
51 (1.7 months)
Superior Court of Justice – Crown
0
CITATION: R. v. James, 2015 ONSC 3295
COURT FILE NO.: 40000621-14
DATE: 20150525
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
COSMO JAMES
REASONS FOR JUDGMENT
R.F. Goldstein J.