R. v Richards, 2016 ONSC 6372

OSHAWA COURT FILE NO.: 13881/15 DATE: 2016-10-12

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN :

HER MAJESTY THE QUEEN Respondent

— and —

BRETT RICHARDS Applicant

COUNSEL: P. Fry, for the Applicant P. Greenway, for the Respondent

Salmers J.

RULING

Introduction and Background Facts

1On October 4, 2013, Mr. Richards was charged with 3 drug offences. Presently, only one charge remains before the court, namely possession of oxycodone for the purpose of trafficking. It is anticipated that his jury trial in the Superior Court will be completed on February 10, 2017 which is 40 months and one week after the day that he was charged. Mr. Richards has applied for a stay of proceedings. His position is that the 40 months and one week delay breaches his section 11(b) Charter rights to have a trial without unreasonable delay.

2The facts giving rise to the charge were well and accurately set out by Bird J. in paragraphs 2 – 11 of her December 30, 2015 ruling on certiorari application 2015 ONSC 8089. Those facts are consistent with the evidence in this application. Accordingly, I adopt those facts for the purpose of this ruling. I have augmented those facts where necessary.

The Applicable Law on Section 11(b) Charter Applications

3In R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada set out the governing framework for 11(b) applications. The present case is a transitional case, namely a case that was commenced prior to Jordan. Transitional cases have already been dealt with post Jordan (Including, R. v. Williamson, 2016 SCC 28; R. v. Manasseri, 2016 ONCA 703).

Application of the Governing Principles

The Period of Delay

4The period of delay must first be calculated. The total delay from charge to anticipated end of trial is 40 months and one week. Delay attributable to the defence must be deducted to calculate the delay for Jordan analysis purposes.

Defence Delay

5The applicant concedes that two weeks must be deducted because the Superior Court pre-trial date in June 2015 had to be adjourned for two weeks to allow for defence counsel’s vacation. Defence counsel did not concede any other delay that should be attributable to the defence.

6Apart from those two weeks, there is no evidence of either implicit or explicit waiver by the defence. The Crown concedes that there is no evidence of explicit waiver by the defence.

7However, the Crown submitted that two other time periods should be considered as defence delay.

8Firstly, the Crown submitted that 2 ½ months should be attributed as defence delay because of prolix cross-examination during the preliminary inquiry. The Crown submitted that because of the prolix defence cross-examination, the preliminary inquiry took longer than the three days which had been estimated by both Crown and defence counsel.

9I agree that the defence cross-examinations were sometimes unnecessarily long. However, there were other factors that contributed to the longer than anticipated preliminary inquiry. As some examples: on some dates scheduled for the preliminary inquiry, other matters were also scheduled that resulted in less court time being available for the preliminary inquiry; Crown witness lists were not provided to defence counsel prior to scheduling dates in April 2014, making it difficult to meaningfully estimate time required; the Crown was uncertain about calling an expert and that also made time estimates difficult; and, for other reasons, sometimes technical difficulties, the court was sometimes unable to devote a full court day to the preliminary inquiry.

10Additionally, due to the nature of the police investigation and some of the Crown refusals of defence disclosure requests, I cannot say that all defence cross-examinations were prolix. The police investigation commenced solely on the basis of a single tip from a single confidential informant. The accused was arrested in his car. The accused’s car was then moved to a parking lot. There is no evidence as to which police officer moved the car. There is a lack of evidence of observations of the car from the time of the arrest until an officer arrived with a warrant and searched the car in the parking lot and then found the drugs in question. The Crown and police refuse to disclose uniformed officers’ notes that might indicate who moved the car. Initially, two other charges were also laid against Mr. Richards and there was a co-accused. Those other charges have been withdrawn and charges against the co-accused have been withdrawn. Based on those circumstances, many of which could have been rectified by the Crown or police prior to the preliminary inquiry, it was not unreasonable for the defence cross-examinations to have taken longer than anticipated.

11For those and other reasons, I am not satisfied that the longer than anticipated preliminary inquiry was due solely to prolix cross-examination by defence counsel. Accordingly, I am not satisfied that any delay should be attributed to the defence because the preliminary inquiry took longer than had been anticipated.

12The Crown also submitted that eight months delay should be attributed to the defence because of the time taken with respect to the unsuccessful defence certiorari application. For the following reasons, I disagree.

13As stated in Jordan, “…defence applications and requests that are not frivolous will also generally not count against the defence.”

14Simply because the defence application was unsuccessful does not mean that it was frivolous. In the certiorari ruling (2015 ONSC 8089), the application judge referred to “gaps in evidence” in her analysis with respect to the security of the accused’s car prior to the drugs being found. When referring to evidence about other counts that are now withdrawn, the application judge stated, “The evidence in relation to the house keys suffers from similar weaknesses due to the lack of evidence about their origin.” And in her conclusion, the application judge stated “…there were significant weaknesses and gaps in the evidence called by the Crown at the preliminary hearing.” Also, probably at least in part due to those weaknesses, it was after the preliminary inquiry that the Crown withdrew charges against the co-accused and withdrew all but one charge against Mr. Richards.

15Considering the comments of the application judge and all of the evidence before me, I am not satisfied that the defence certiorari application was frivolous. I am satisfied that the defence certiorari application was legitimately undertaken to respond to the charges as part of the accused’s right to make full answer and defence. Accordingly, time required for the certiorari application does not constitute defence delay.

Summary on Delay

16Based on those reasons, there has been only 2 weeks of defence delay. Accordingly, the total period of delay is reduced to 39 months and 3 weeks. That period of delay exceeds Jordan’s presumptive ceiling of 30 months. Accordingly, the delay is presumptively unreasonable. The Crown may rebut the presumption by showing that the delay is reasonable because of the presence of exceptional circumstances.

Are There Exceptional Circumstances?

17This is a transitional case. Therefore, I must consider if the Crown has established a transitional exceptional circumstance (as summarized in Manasseri, paras 318 – 323).

18There is no evidence that the parties relied on the delay guidelines set by R. v. Morin, [1992] 1 S.C.R. 771. In any event, such reliance would not have assisted the Crown. In the Morin 11(b) analysis, the court must consider the total time from swearing of the information until the accused’s trial. In this case, after conducting the Morin analysis, time spent in the provincial court far exceeded that provided in the Morin guidelines. After conducting the Morin analysis, the time in the superior court is within the Morin guidelines. If the overall Morin analysis were done, a breach of the accused’s s. 11(b) rights would be found. The delay would be found to significantly exceed the Morin guidelines.

19This is a very simple case. There remains only a single count of possession of oxycodone for the purpose of trafficking. The count refers to finding a small amount of oxycodone tablets in a car on a single occasion. A relatively small number of officers are involved.

20There is evidence of multiple correspondence by defence counsel requesting disclosure. Some of those disclosure requests may have been excessive and unwarranted. However, considering the nature of the police investigation as discussed earlier, many requests were relevant. Often, it took many months for the police and Crown to fulfil reasonable relevant disclosure requests. Some reasonable relevant requests remain unfulfilled. There is no evidence of defence conduct that directly caused delay or were a deliberate and calculated tactic employed to delay the trial. Apart from the one incident discussed above that admittedly caused two weeks of delay, defence counsel was always available on the earliest date offered.

21During court appearances, the Crown usually was able to accept and proceed on the first subsequent court date that was offered. However, there were some occurrences when adjournments were required due to disclosure difficulties.

22Due to bail conditions, Mr. Richards has been unable to live a normal family life since these charges were laid over 3 years ago. That is very significant prejudice.

23Considering all of these factors, the Crown has not satisfied me that there is a transitional exceptional circumstance that justifies a delay above the presumptive ceiling.

24The Crown acknowledged that this was not a complex case and the Crown did not allege that there were exceptional circumstances due to complexity of the case.

25However, the Crown argued that two discrete events should be considered as exceptional circumstances: 1) the time required due to prolix defence cross-examination at the preliminary inquiry; and 2) time required due to the defence certiorari application. For the reasons that follow, I disagree.

26As stated in Jordan, to effect the necessary changes in the criminal justice system, it will require the efforts and coordination of all participants in the system. This includes both Crown and defence counsel. The changes referred to are with respect to efforts to attempt to ensure that accused persons have their trials within a reasonable time.

27In this case, the Crown has known the weaknesses in its case since prior to the preliminary inquiry. There have been some unreasonable, irrelevant, and excessive or unnecessary disclosure requests. However, disclosure of reasonable, relevant items has remained an issue throughout this case. It remains an issue today.

28Also, I have discussed above the reasons why neither the lengthy cross-examinations nor the certiorari application did not constitute defence delay. Those reasons also apply to whether either of those items should be considered as an exceptional circumstance.

29For those reasons and in all of the circumstances of this case, the Crown has not satisfied me that either the lengthy cross-examinations or the certiorari application could not have been reasonably foreseen. Reasonably prompt and regular evaluation of charges and reasonably prompt satisfaction of reasonable, relevant disclosure requests could have shortened the proceedings, possibly avoiding the need for lengthy cross-examination and the certiorari application. Evaluation of charges and disclosure are circumstances that are within the Crown’s control.

30For all of these reasons, the Crown has not satisfied me that there are exceptional circumstances that rebut the presumption of unreasonable delay.

Conclusion

31This is a very simple case. The charges were laid on October 4, 2013 and the trial is anticipated to end on February 10, 2017. Only two weeks of that delay are attributable to the accused. For all of the reasons that I have discussed, the delay in bringing Mr. Richards to trial is unreasonable and has breached his right under s. 11(b) of the Charter to a trial within a reasonable time. Accordingly, the application is granted and the proceedings are stayed against him pursuant to s. 24(1) of the Charter.