CITATION: R. v. THOMAS FAST, 2016 ONSC 6426
COURT FILE NO.: 11167
DATE: 2016/10/14
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
C. Heron for the Crown
- and -
THOMAS FAST
C. DeMelo, for the accused
HEARD: October 11-12, 2016
LEACH J. (ORALLY)
[1] The full context underlying this oral mid-trial ruling will be apparent from the record, and I will not attempt to outline that complete context here.
[2] In particular, I will not reiterate now, in detail, the developments set forth in my endorsement of December 15, 2015; developments which revealed belatedly, and after I had become seized of this matter, that this trial would require three months of court time, and not simply the three weeks of court time indicated in the trial duration estimate provided to the court up to and including commencement of trial.
[3] As noted in my earlier endorsement, that gross underestimation of trial duration created extraordinary complications and challenges for the court and its resources which could have been entirely avoided, had the court been provided with more accurate and timely information.
[4] As it was, extraordinary steps were taken to reserve and schedule, in addition to the five weeks of trial this matter consumed in late 2015, approximately seven more weeks of trial as soon as possible, but necessarily not on a consecutive basis, during the course of 2016. The specific trial continuation dates were set forth in my earlier endorsement, but included further weeks of trial in January, June, October and November of this year.
[5] All of those arrangements were made in accordance with the most recent revised trial duration estimate provided by counsel on December 9, 2015.
[6] Continuation of the trial has proceeded according to that schedule, and resumed earlier this week.
[7] So – as we sit here today, by my count approximately 9-10 weeks of trial time has been devoted to this matter, with two more weeks scheduled and reserved for its completion by November 11th of this year, in accordance with the most recent revised trial duration estimate provided by counsel on December 9, 2015.
[8] Defence counsel now has brought an application to stay these criminal proceedings, on the basis that there has and/or will be a breach of the accused’s rights under s.11(b) of the Canadian Charter of Rights and Freedoms, which provides that “Any person charged with an offence has the right … to be tried within a reasonable time”.
[9] The application material apparently was served on Crown counsel just before 5pm on September 23, 2016.
[10] Defence counsel then made requests for a hearing to discuss scheduling of the application’s hearing prior to scheduled continuation of the trial. However, that was not possible, having regard to the existing court schedule.
[11] Counsel instead were asked to attend on the morning of October 11, 2016, (this past Tuesday), when the matter already was scheduled to be back before me for trial continuation. In particular, counsel were asked to attend prepared to speak to scheduling of the application’s hearing, but also prepared to continue with the trial later that day if and as necessary.
[12] As anticipated, I received submissions from counsel this past Tuesday morning regarding scheduling of the s.11(b) application’s hearing. I also received supplementary scheduling submissions the following day.
[13] In essence, defence counsel requested that hearing of the s.11(b) application take place on October 21, 2016, (i.e., a week from today). In that regard, points raised by defence counsel included the following:
Defence counsel acknowledged that this would result in the application being heard shortly before the ordinarily required period of notice had expired, but submitted that could be addressed through a requested order abridging the time for service accordingly.
Defence counsel also was confident that hearing of the application would take only one day, and that she would facilitate that relatively expeditious hearing by relying primarily on her written application material, albeit while reserving a right to make oral submissions in reply.
It was the hope of defence counsel that I then would prepare and deliver my decision on the s.11(b) application in advance of the trial’s subsequent scheduled continuation on November 7th, and grant the application, staying the proceeding.
Defence counsel emphasized that, in her view, proceeding in that manner would be the most expeditious, appropriate and efficient way of addressing the alleged breach of the accused’s rights under s.11(b) of the Charter. In particular, it was emphasized that the ongoing trial is causing Mr Fast considerable physical, emotional and financial duress, and that proceeding in the manner suggested would benefit all concerned – particularly insofar as it would forego the need to devote more time and resources to completion of the trial. In that regard, defence counsel emphasized her view that completion of the trial now would require not only the remaining scheduled week of November 7th, but yet more time. In particular, although the Crown had not yet completed its case, and the accused accordingly had not yet been put to his election, it was emphasized that defence evidence was anticipated. Defence counsel felt that presentation of the defence case and final legal argument would require more than the reserved and scheduled time remaining after completion of the Crown’s case – thereby raising the definite spectre of this matter continuing into 2017.
[14] Crown counsel opposed the scheduling proposal of defence counsel, and submitted that I should instead allow the trial to continue to its completion, including my decision, before then hearing the s.11(b) application if and as necessary. In that regard, submissions made by Crown counsel included the following:
Crown counsel echoed concerns I had raised independently, during defence counsel’s submissions, such as:
concerns about foregoing use of the time already reserved for completion of the trial, (after considerable effort and difficulty);
concerns about fragmenting the proceedings, (which might result in further avoidable delay and/or wasted effort and resources, depending on the outcome of the application and any associated appeal proceedings); and
concern about the possible desirability of allowing the trial to run its course, before argument of the s.11(b) issues, so that all concerned then would be able to focus on a more static and complete picture of the alleged delay associated with this matter.
Crown counsel then emphasized that the application record was not yet complete and ready for hearing, insofar as the defence had not filed complete transcripts of the proceedings to date, but only transcripts of the hearings relating to scheduling. That was said to be inherently problematic, insofar as the application made it clear the accused was relying not only on scheduling delays but also on the manner in which the Crown had advanced its case at trial.
Crown counsel also noted that there had not yet been any further judicial pre-trial to fully address s.11(b) preparation matters, in accordance with the Provincial Practice Direction regarding such applications, recently released in the wake of the Supreme Court of Canada’s decision in R. v. Jordan, 2016 SCC 27.
Crown counsel also emphasized that, when due regard was paid to the surrounding circumstances, hearing of the application on October 21st, as proposed, effectively would deprive the Crown of any meaningful and fair opportunity to address and respond to the application – particularly having regard to the nature, volume and complexity of the material and issues raised by the defence application material. In that regard, Crown counsel emphasized that, since service of the application material, he effectively had been obliged to continue preparations for trial continuation on October 11th, and obviously now was and would be fully engaged in the ongoing trial up to the suggested hearing date of October 21st. The suggested unfairness of forcing the Crown to deal with the application on October 21st, in such circumstances, was said to be underscored by the reality that defence counsel could have chosen to bring a s.11(b) application earlier, but failed to do so. (In reply, defence counsel emphasized that the timing was a function of the release of the aforesaid Jordan decision, and the time then required to obtain instructions and secure the financing necessary to pursue the application, including the ordering of transcripts.)
Crown counsel also submitted that hearing of the s.11(b) application almost certainly take more than one day – and likely as much as 2-4 days, all of which would consume much of the time long ago reserved for continuation and completion of this trial. In that regard, Crown counsel emphasized his continued hope that the trial could still be completed within the time currently allotted, particularly insofar as he had informed defence counsel of the matters on which he intended to focus during cross-examination of any defence witnesses. (In reply, defence counsel questioned how Crown counsel realistically could know the duration of the anticipated defence better than defence counsel.)
[15] As noted by our Court of Appeal in Ontario (Ministry of Labour) v. Pioneer Construction Inc., 2006 CanLII 15621 (ON CA), [2006] O.J. No. 1874 (C.A.), at paragraph 27, absent unusual circumstances, a motion to stay proceedings for a s.11(b) breach is ordinarily brought and argued before trial.
[16] That reality is reflected, I think, in the recently released Provincial Practice Direction referred to by Crown counsel. For example:
The practice direction speaks to all s.11(b) applications having to be scheduled for hearing at least 60 days before the first scheduled day of trial, barring a judicial direction to the contrary. The express justifications for that include hope of sparing parties the time and expense of further pre-trial applications and/or a trial if a stay is granted, and another being a hope that matters then will be ready for trial if a stay is refused. Such justifications obviously do not sit well with s.11(b) applications brought some 10 weeks into a trial currently scheduled to last 12 weeks.
Similarly, in relation to transcripts required for a s.11(b) hearing, the practice direction contemplates parties filing only the portions of transcripts reflecting discussions about adjournments, scheduling and selection of the next trial date. That restriction also does not sit well with a s.11(b) mid-trial application that relies, in part, on the manner in which Crown counsel is said to have conducted the trial
Where notice of a s.11(b) application is given after an initial judicial pre-trial, the practice direction also mandates the holding of a further judicial pretrial to discuss matters that “may promote a fair and expeditious hearing” of the application. Specifically, such discussions are to include not only scheduling of a hearing and the materials which need to be filed in support of the application, but also a concerted effort to clarify party positions, (and presumably promote agreement if possible), as to the cause of any particular periods of delay in the case. Again, all of that does not sit well with a s.11(b) application brought mid-trial, when there has been no opportunity for such a judicial pretrial before another judge. In this case, it apparently is common ground that there has been no such further pretrial, as yet, focused on the s.11(b) application.
[17] In the context of s.11(b) applications brought mid-trial, special measures accordingly may be required to achieve, to the extent possible, planning and efficiency goals reflected in the provincial practice direction.
[18] However, authorities have emphasized that the bringing of a s.11(b) application mid-trial raises additional considerations and concerns in any event.
[19] In that regard, I have considered authorities such as the following: R. v. DeSousa, 1992 CanLII 80 (SCC), [1992] 2 S.C.R. 944, at pages 953-954; R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680, at paragraph 27; R. v. Salisbury (2012), 2012 SKCA 32, 385 Sask.R. 322 (C.A.) at paragraph 14; R. v. Wilson (2013), 2013 SKCA 128, 427 Sask.R. 63 (C.A.), at paragraphs 18-22; and Mississauga (City) v. Ciocan, [2015] O.J. No. 2871 (C.A.), at paragraphs 96-97, (where our Court of Appeal approved and followed the Saskatchewan Court of Appeal decisions in the Salisbury and Wilson decisions). In my view, those authorities confirm general principles which include the following:
There is no set or single procedure for the determination of Charter violations and relevant remedies. The appropriate procedure and process will depend on the particular circumstances of the case, taking into account all of the relevant factors. There will be situations where a Charter breach needs to be dealt with immediately, and in other situations redress can wait until matters are adjudicated at trial. There are no hard and fast rules, nor would it be possible to set such rules.
Where an application is brought during the course of a trial, the determination of the appropriate procedure is within the discretion of the trial judge, who generally has a great deal of discretion in the conduct of any trial, including the timing of the hearing and disposition of any motions. In particular, a trial judge must be able to control the trial proceedings so as to ensure fairness to all concerned, and to preserve the integrity of the trial process. He or she therefore has the discretion to hear and decide an application for a stay immediately, or to hold the matter in abeyance until the conclusion of the trial on the merits.
Having said that, such discretionary decisions generally should be exercised having regard to two policy decisions. The first is that criminal proceedings should not be fragmented by interlocutory proceedings which take on a life of their own, (which is the basis of the rule against interlocutory appeals in criminal matters). The second discourages adjudication of constitutional issues without a factual foundation. Both policies favour disposition of applications at the end of the case, and in exercising his or her discretion, a trial judge generally should not depart from those policies unless there is a strong reason for doing so - - for example, where the court itself is implicated in a constitutional violation, where substantial ongoing constitutional violations require immediate attention, and/or where substantial time will be saved by deciding constitutional questions before proceeding to trial on the evidence.
[20] Having regard to all the circumstances in the case before me, I intend to exercise my discretion so as to delay hearing of the accused’s s.11(b) application until the conclusion of trial and my decision on the merits, subject to any s.11(b) concerns.
[21] In that regard, my considerations include the following:
First, I agree with Crown counsel that the s.11(b) application currently is not yet ready for hearing, and that it likely can and will not be ready for hearing on October 21, 2016; i.e., a week from today. In that regard, I agree with Crown counsel that, since defence counsel admittedly intends to rely in part on Crown counsel’s conduct of the trial, transcripts of the trial also must be made available for review and reference if and as necessary. I think it impracticable, and potentially unfair, to make such matters depend on a review of almost three months of audio recordings and/or my trial notes in that regard, in relation to events which may have taken place as much as a year ago. While I personally have ordered transcripts of the entire trial, those transcripts have not yet been prepared or reviewed, and they almost certainly will not be ready within the time frame contemplated by defence counsel. Moreover, the application also is not ready for hearing in the sense that there apparently have been no efforts to date, similar to the additional pretrial procedures contemplated by the Provincial Practice Direction regarding s.11(b) applications, to discuss and hopefully narrow areas of disagreements concerning the cause for various periods of delay.
Second, I also agree with Crown counsel that considerations of fairness require meaningful notice, in the sense of providing notice of a s.11(b) application measured not only in days, but also with due regard to what practically may be transpiring during the ostensible notice period. In this case, counsel were obliged to act in accordance with court directions requiring continuation of trial on October 11, 2016, and that no doubt required certain preparations in advance of that date. Moreover, it seems self-evident to me that counsel realistically cannot prepare for an application in this matter during working hours when counsel is required to be in court trying this case. Forcing Crown counsel to prepare responding material and argument for a hearing of the s.11(b) application on October 21st would, I think, necessarily compromise proper preparation for trial, proper preparation for the application, or both.
Third, having reviewed the volume and complexity of the defence application material, I too very much doubt that the application realistically could be argued in a single day, as suggested by defence counsel. My doubts in that regard frankly are underscored by the repeatedly demonstrated tendency of this matter to exceed even mutually agreed time estimates. In my view, a minimum 2-3 day hearing will be required.
Fourth, a corresponding reality, I think, is that I would be unlikely to complete and deliver a proper decision in relation to the s.11(b) application within the relatively short and compressed time frame suggested by defence counsel, so as to preclude the need for trial continuation the week of November 7th if the application is successful.
Fifth, this is not a case, in my view, falling within the situations contemplated by the Supreme Court of Canada, in R. v. DeDousa, supra, where the court is implicated in a constitutional violation, (as defence counsel indicated as much during the course of submissions), and/or where there are ongoing constitutional violations requiring immediate attention.
Sixth, while hearing and success of the application arguably might result in a savings of further time necessary to complete the trial on its merits, there are off-setting considerations. In particular, this is not a case where there is a possibility of entirely avoiding the time and expense of a trial. To the contrary, all concerned now have invested a very substantial amount of time, effort and expense in trial of this matter. On any view, I think, (and one reinforced by the most recent mutually agreed trial duration estimate), we now are well beyond past the half-way point of this trial, and actually nearing its completion. Although defence counsel suggests more time may be required, owing to “slippage” for holidays and other complications, further questions and discussion suggested that no more than a further week might be required – and the possibility of arranging that certainly pales in comparison with the difficulties involved in arriving at the current arrangements. In short, this is not a situation where a s.11(b) application might spare all concerned the time and expense of further pre-trial procedures and/or a trial. For the most part, those considerable resources already have been expended, and allowing the s.11(b) application to interrupt the process at this late stage creates, in my view, an obvious risk that such resources may be wasted and/or of significant further delay. In that regard, perhaps it goes without saying, but the outcome of the application obviously cannot be presupposed. In particular, while the defence clearly takes the position that responsibility for all but a relatively small portion of the delays to date in trial completion rest with the Crown or institutional delay, it seems clear that the Crown intends to contest that assertion; for example, by argument that the defence bears responsibility for a much larger share of the delays to date. Moreover, I am very mindful of the reality that the remaining currently reserved hearing dates were set long ago, after very considerable effort by the court to make them available, and in circumstances where the corresponding directions and advance notice to counsel have ensured that all concerned would be prepared to proceed during those dates. To the extent possible, I am inclined to let that process run its carefully laid course, as contemplated. In particular, if the s.11(b) application is allowed to proceed immediately and is successful, bringing an end to the trial, but there is then a successful appeal by the Crown of my decision on the application, that would leave the appellate court with no indication of what the outcome of trial on the merits would have been, and therefore possibly necessitate a complete retrial of the matter on its merits somewhere further down the road. Preventing the trial from continuing to its completion at this point would give rise to the sort of risks underlying the policy of not allowing interlocutory applications to fragment criminal proceedings.
Seventh, it seems to me that the s.11(b) application currently is aimed at a moving target; i.e., the time it will take for Mr Fast to have the accusations against him determined by trial. I appreciate that the defence takes the position that this proceeding is already past the point of Charter violation. Again, however, the outcome of the application cannot be presupposed, particular insofar as the portion of delay attributable to the defence may be in dispute. It seems to me that, in situations where the defence relies in part on suggested delay associated with the duration of a trial, the most appropriate time for argument and consideration of the s.11(b) application is when the underlying factual record required for consideration of the application is as complete as possible; i.e., when trial on the merits has been completed.
[22] For such reasons, and as I indicated at the outset, I therefore decline to hear and decide the s.11(b) application on October 21st, as proposed by defence counsel. I instead think it appropriate to exercise my discretion so as to direct hearing of the s.11(b) application after completion of the trial.
[23] That should address a number of the concerns I have mentioned, including the provision of additional time to secure the further transcripts required for the hearing, and more than sufficient time for preparation of the Crown’s responding material and argument.
[24] Moreover, I also hereby direct a further mid-trial hearing, before another judge, to address the s.11(b) planning matters referenced by the provincial practice direction, (regarding a further judicial pretrial to deal with such applications), apart from scheduling of the application’s hearing, (the particulars of which shall remain within my purview). In other words, the further mid-trial hearing before the other judge is to focus on:
a. the parties’ positions as to the cause of any particular periods of delay in the case, including whether the delay is attributable to the defence or to “extraordinary circumstances”, as defined in R. v. Jordan; and
b. the materials required to be filed in support of the application.
[25] As for particular scheduling arrangements for hearing of the s.11(b) application, after completion of the trial, I will hear further from counsel once the trial has been completed.
“Justice I. F. Leach”
Justice I. F. Leach
Date: October 14, 2016