REASONS FOR JUDGMENT ON 11(b) APPLICATION

[1] On July 30, 2013 the police arrested Mr. Trought based on information from an informant. He had a key fob in his pocket for what appeared to be his residence. The police were in the process of obtaining a search warrant for his residence when he was arrested. They used the key fob to obtain entrance when they executed it. They found about two kilograms of cocaine as well as about $400 in cash and drug paraphernalia. The police also found correspondence and identification in his name. They also found a fingerprint on a manila envelope with cocaine in it. The police charged him with possession of cocaine for the purpose of trafficking and one count of possession of the proceeds of crime.

[2] Mr. Trought’s trial began on October 24, 2016 and is projected to conclude on October 29, 2013. That is 39 months after his arrest. His counsel brings an application to stay the charges on the basis of a violation of unreasonable delay. For the reasons that follow, I respectfully disagree. The application is dismissed.

ANALYSIS

[3] The charges in this case were laid prior to the Supreme Court of Canada’s decision in R. v. Jordan, 2016 SCC 27. This is a “transitional” case.

[4] Jordan set a ceiling of 30 month for cases tried in the Superior Court. Delay beyond 30 months is presumptively unreasonable: Jordan, at para. 46. Mr. Trought was arrested on July 30, 2013. The projected end of the trial is October 29, 2016. The total delay therefore is just under 39 months. As the Crown concedes, the total delay breaches the presumptive ceiling. The framework requires a calculation of net delay. That in turn requires an analysis of the defence delay.

[5] The former analysis under R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771 involved a painstaking (and painful) evaluation of minute time periods, sometimes down to the day. It required trial judge to parse words on transcripts like Talmudic scholars obtaining divine meaning from the text. Sopinka J. commented in Morin that the analysis was not to be reduced to a mathematical calculation. Nonetheless, that is exactly how it evolved, with a dollop of subjectivity to tilt the result in the direction a trial judge ultimately thought just.

[6] Under the Morin framework, the court was required to consider:

(1) Length of the delay;

(2) Waiver of any time periods by the accused;

(3) Reasons for the delay, including:

(a) The inherent time requirements of the case;

(b) Conduct of the accused or delay attributable to the accused;

(d) Systemic or institutional delays;

(e) Any other reason for the delay; and,

(4) Prejudice to the accused.

[7] At the end of the exercise, if the guidelines were breached a court was required to balance society’s interest in a trial on the merits against the prejudice to the accused arising from the delay.

[8] In contrast, the approach to a delay motion under the Jordan framework can be described simply:

• Jordan establishes a ceiling: delay is presumptively unreasonable if a case in the Provincial Court goes longer than 18 months from charge to completion or 30 months in the Superior Court: Jordan at para. 46.

• Calculate the total delay. The total delay is the period from the laying of charges until the end or the anticipated end of the trial: Jordan at paras. 47, 105; R. v. Coulter, 2016 ONCA 704 at para. 34.

• Subtract the defence delay, which results in the net delay: Jordan at para. 60; Coulter, para. 35.

• If the net delay exceeds the ceiling, the Crown may only rebut the presumption of unreasonable delay by establishing exceptional circumstances: Jordan, para. 47; Coulter, para.

• If the net delay is below the ceiling, then the defence must rebut the presumption that the delay is reasonable: Jordan, para. 48; Coulter, para. 40.

[9] Jordan sets out a series of rules for determining the following:

• How to analyze defence delay;

• How the Crown may establish exceptional circumstances where the net delay exceeds the ceiling;

• How the defence may rebut the presumption of reasonableness where the net delay falls below the ceiling.

[10] Crown counsel concedes that the presumptive ceiling was breached by nine months. There are, therefore, only two issues here:

(a) How should the defence delay be characterized?

(b) Do transitional exceptional circumstances apply?

(a) How should the defence delay be characterized?

[11] Crown counsel, Mr. De Sa, argues that the defence is responsible for 8 ½ months of delay. This, he says, takes the total delay to just above the 30-month ceiling set by Jordan.

[12] I respectfully disagree. The defence is only responsible for five months of the delay.

[13] Mr. Trought was arrested on July 30, 2013. He was released on bail on August 1, 2013. At his first appearance out of custody on September 9, 2013 the disclosure was not ready. There were subsequent appearances in the Ontario Court of Justice on October 4, and November 5, 2013 where disclosure was not ready. On November 19, 2013 the Crown gave some disclosure to defence counsel. The critical piece of disclosure, the information to obtain the search warrant (which I will refer to as “the ITO”), was not ready. The Crown was in the process of vetting it for informant information. A Crown pre-trial was nonetheless set for December 12, 2016.

[14] A Crown pre-trial occurred that day. The ITO was still not ready. There were further appearances on January 17, 2014 and January 31, 2014. A judicial pre-trial was set for February 26, 2014. Defence counsel, Mr. Menzies, did not receive the vetted ITO until that day. A further judicial pre-trial was held on March 19, 2014. A preliminary inquiry date of November 27, 2014 was set. A Dawson application – an application to cross-examine the search warrant affiant – was set in advance of the preliminary inquiry for September 26, 2014.

[15] On May 22, 2014, one month after the preliminary inquiry date was set, Mr. Menzies requested an adjournment. He had personal reasons for doing so – he was booked on a trip. He waived the delay on behalf of his client. Assigned Crown counsel was not available that day to set a further preliminary inquiry, so the matter went to May 29, 2014. On May 29, 2014 Crown counsel and Mr. Menzie’s agent tried to set a new date but it was unclear what was to be done with the Dawson application. The matter went to June 9, 2014 so that the agent could obtain new instructions. New dates of February 26, 2015 and April 7, 2015 for the Dawson application and the preliminary inquiry itself were set.

[16] Thus, the adjournment ultimately set back the preliminary inquiry date by an extra 4 ½ months. Mr. Menzies did not anticipate that there would be a cascading effect from his adjournment. He brought the matter forward promptly when he became aware of the clash of dates and neither the Crown nor I are at all critical of his actions. But as he candidly conceded, that event set in motion a cascading effect. In my view, given the confusion over the Dawson application and the waiver of 11(b), the defence is ultimately responsible for the delay that followed.

[17] The matter then proceeded to preliminary inquiry but was not completed until July 17, 2015. Counsel are in agreement that this period of time would, under the old framework, have been considered neutral or part of the inherent time requirements of the case. Under the new framework, that simply means that the defence was not part of the delay.

[18] On August 26, 2015, Mr. Trought had his first appearance in the Superior Court. A judicial pre-trial was set for October 21, 2015. Dates of September 9 and 16 were offered but Mr. Menzies was not available. The Crown says that the period from September 9 to October 21 should be considered defence waiver.

[19] I disagree under the particular circumstance of this case. Under the Jordan framework defence delay may arise either from a clear and unequivocal waiver (either implicitly or explicitly); or from defence conduct. Defence delay occurs where there is a deliberate and calculated attempt to delay, such as with a frivolous motion or disclosure request: Jordan, paras. 61, 63, 64; Coulter, paras. 42-44. There was no such defence conduct that caused delay in this case.

[20] The period of time from September 9 to October 21 (just under six weeks) appears to have been the result of an implicit waiver. Mr. Menzies was simply unavailable on those dates. That said, context is important. Federal judicial pre-trials are only held on Wednesdays in the Superior Court in Toronto. That is a quirk of the system. It is unclear from the record whether Mr. Menzies might have been available at an earlier date if Federal judicial pre-trials were held on a different day. I am loathe to count this delay against him for that reason. No effort was made to accommodate him. Although this is not a complex case, it is not insignificant – it involves over two kilograms of cocaine.

[21] The appearance on October 21, 2015 provides more context. On that day there was no judge available to conduct Federal judicial pre-trials. Justice McMahon, who was presiding that day, noted that Federal judicial pre-trials are only scheduled on Wednesdays. He promised that there would be changes to the system. Mr. Menzies was offered any future Wednesday but was only available on November 25, 2015.

[22] Crown counsel argues that Mr. Menzies could have attended for a judicial pre-trial on October 28, 2015, one week later. He argues that the time from October 28 to November 28, 2015 should count as defence delay. I cannot agree with that submission either. It was no fault of Mr. Menzies (or his client) that the pre-trial did not go ahead on October 21. It is unreasonable to expect that a defence lawyer will suddenly be able to accommodate two things: a collapsed list and a Wednesdays-only scheduling quirk. I do not accept that any of that time is attributable to a defence waiver of delay.

[23] That reasoning does not apply to the appearance on November 25, 2015. Mr. Menzies was unable to attend that day, as it turned out. The judicial pre-trial was re-scheduled for December 7, 2015. He explicitly waived delay for that time period. The judicial pre-trial was held on December 7. The current trial date of October 24, 2016 was set. I agree that the defence was responsible for those two weeks.

The total defence delay therefore is 5 months.

(b) Do transitional exceptional circumstances apply?

[24] The net delay in this case is 34 months. That breaches the Jordan ceiling by 4 months. The delay is therefore presumptively unreasonable. In order to avoid a stay of proceedings, the Crown must establish the presence of transitional exceptional circumstances as this is a pre-Jordan case: Jordan, para. 47; Coulter, para. 45. Exceptional circumstances are those that are beyond the control of the Crown in the sense that they are reasonably unforeseen or reasonably unavoidable, and the Crown cannot reasonably remedy the delays: Jordan, para. 69; Coulter, para. 46. Particulary complex cases, or a discrete event (such as a medical emergency) are the two general circumstances: Jordan, paras. 71-72; Coulter, paras. 48-49. This is a transitional case.

[25] Mr. Menzies, for Mr. Trought, argues that transitional exceptional circumstances do not apply to this case. I respectfully disagree. The parties reasonably relied on the law as it existed at the time.

[26] In Coulter, Gillese J.A. described the approach to be taken in transitional cases at para. 56:

Where the Remaining Delay exceeds the presumptive ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to July 8, 2016, the date that Jordan was released. This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case took is justified based on the parties' reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and to the fact that the parties' behaviour cannot be judged strictly against a standard of which they had no notice. Considerations of prejudice and the seriousness of the offence can inform whether the parties' reliance on the previous state of the law was reasonable (Jordan, para. 96).

[27] Was it reasonable for the parties to rely on the law as it previously existed? In my view, it was. Does that mean it necessary to calculate delay under the old Morin framework as well as the new Jordan framework where net delay exceeds 30 months?

[28] In the short time since Jordan has been released, some courts have had examined this question. For example, in R. v. Isaacs, 2016 ONSC 6214, LeMay J. determined that due to the complexity of that particular case he was required to do a Jordan analysis as well as a detailed Morin analysis.

[29] Another example is the the approach of Code J. in R. v. Ghandi, 2016 ONSC 5612. In that case, Code J. conducted an extensive analysis of the meaning of “defence delay” under the new Jordan framework in a reasonably complex fraud case. He found that once defence delay was subtracted the net delay fell below the 30-month Jordan ceiling. He then applied the transitional approach. He carefully considered the periods of delay in detail, and then conducted a brief analysis under the Morin framework. He was satisfied that the case would not have resulted in a stay under that old approach. He was also satisfied that the parties had reasonably relied on the old framework.

[30] In R. v. Zammit, 2016 ONSC 1598 K. Wright J. dealt with a simple straightforward case where the Jordan ceiling of 30 months was breached by 6 months. She found that transitional exceptional circumstances did not apply because the delay was unreasonable under either the Jordan or the Morin framework. There was a significant amount of institutional delay. The primary source of delay (32 months in the Ontario Court of Justice) was institutional delay in that Court and the actions of a co-accused. Wright J. was aware that the actions of the co-accused would have been considered neutral under the Morin framework: R. v. Whylie (2005), 2006 CanLII 9037 (ON CA), 207 C.C.C. (3d) 97 (Ont.C.A.). She stayed the charges.

[31] To the same point, see: R. v. Manasseri, 2016 ONCA 703, where the Court of Appeal was dealing with a case of extreme delay.

[32] The Supreme Court itself in R. v. Williamson, 2016 SCC 28, the companion case to Jordan, stayed charges in a relatively straightforward case. The presumptive ceiling was breached. There was a great deal of institutional delay in the Ontario Court of Justice due to scheduling problems. There was also a great deal of institutional delay in the Superior Court of Ontario due to a lack of court space (only one jury courtroom in Kingston being available). The Crown took no steps to mitigate this problem, and Mr. Williamson’s counsel made efforts to expedite the case. The institutional delay in the case – 25 months – exceeded the upper end of the Morin guidelines by about 7 months. The Court stayed the charges.

[33] I conclude that reference to Morin is certainly necessary and will inform the analysis. That analysis will include determining whether the combined institutional and Crown delay breached the Morin guidelines. That is because the evil that Jordan is aimed at is the “culture of complacency” that gives rise to delay. That “culture of complacency” in turn is fed by the tolerance of large amounts of institutional delay. As the Court recognized, however, there is something of a tension between trying to stamp out a “culture of complacency” and yet placing importance on reasonable reliance by the parties on the law as it stood before Jordan. In my respectful view, institutional delay, and the attempts to either expedite or mitigate, is therefore a critical component in examining whether transitional exceptional circumstances exist. As Code J. recognized in Ghandi, whether a case would have survived a Morin analysis is also an important factor. None of these factors are determinative, of course. As the Supreme Court and the Court of Appeal have made clear, a contextual approach is required.

[34] I now turn to that analysis. The key Crown delay in this case was the six months it took to vet the ITO. It then took another month to get the ITO to Mr. Menzies. The Crown certainly made efforts to courier the vetted ITO to Mr. Menzies. It appears that Mr. Menzies was in the process of moving offices. There is an extra month of delay there that does not fall neatly into either Crown delay or defence delay.

[35] That said, it took the Crown six months to vet and disclose an short ITO to defence counsel. As Mr. De Sa candidly concedes, that is far too long. Mr. Menzies rightly points out that the validity of the search warrant, which in turn depends on the sufficiency of the ITO, is the only real issue in the case. Thus, the ITO was the one piece of disclosure that the defence could not proceed without. The Crown appears to have accepted that this was the case. Crown counsel did not press to set a judicial pre-trial (without which no preliminary inquiry date could have been set) until the ITO was vetted and disclosed. Crown counsel argues that three months was required to vet. I think that is probably on the high side considering that the ITO was relatively simple. That said, considering the reality of a very busy office, such as the Federal Crown’s office at Old City Hall, and a large and busy police service, such as the Toronto Police, three months is not unreasonable. Six months is. I would allocate three months to Crown delay.

[36] Defence counsel did not want to set a date until he had the ITO in hand. I think that was justified. Defence counsel is only justified in refusing to set a date where the disclosure is of “real significance” to critical defence decisions: R. v. Lahiry, 2011 ONSC 6780, 109 O.R. (3d) 187 at para. 114-114; R. v. Kovacs-Tartar, 2004 CanLII 42923, 73 O.R. (3d) 161 (C.A.) at para. 47.

[37] The preliminary inquiry date was initially set on March 19, 2014 for November 27, 2014. If the preliminary inquiry had been held on November 27, 2014 and committal for trial had occurred shortly after that then the total delay in the Ontario Court of Justice would have been slightly less than 16 months. I assume two months for defence preparation: Lahiry at paras. 34-35. Institutional delay (from two months after March 19, 2014) would have been about six months. Add another three months of Crown delay (the vetting of the search warrant) and the institutional plus Crown delay in the Ontario Court of Justice is 11 months, which overshoots the Morin guideline of 8-10 months by a month.

[38] In the Superior Court, delay ran from July 17, 2015 (the date of committal for trial) to October 24, 2016, a period of just under fourteen months. The defence was responsible for only two weeks of this delay. I have no difficulty characterizing the period up to the aborted judicial pre-trial on October 21, 2015 as intake or inherent time requirements (less the two weeks allocated to defence delay). The 12-month period from October 21, the day of the aborted judicial pre-trial, to the trial date, October 23, 2016, is clearly institutional delay, less the time that is allocated for defence preparation. I accept that three months should be allocated for this purpose. The institutional delay in the Superior Court is, therefore, 9 months. This period is about one month over the Morin guideline of 6-8 months in the Superior Court.

[39] Thus the Morin guidelines were breached by about a month in each of the two courts through which this case has passed.

[40] Ultimately, under the old approach a trial judge would be required to balance society’s interest in a trial on the merits against the prejudice to the accused arising from the delay. Having reviewed Mr. Trought’s affidavit, I am not satisfied that the prejudice he has suffered, while real, arose out of the delay rather than the fact of the charges. I also bear in mind that the Morin guidelines were not breached in a substantial way. I am satisfied that under the Morin framework this matter would not have resulted in a stay of proceedings.

[41] I am satisfied that the parties reasonably relied on the law as it was prior to Jordan. The institutional delay did not become sufficiently serious such that either the Crown or defence moved to expedite. In any event, the institutional delay under the old framework was only marginally exceeded.

DISPOSITION

[42] The application is dismissed.

R.F. Goldstein J.

Released: October 31, 2016

CITATION: R. v. Trought, 2016 ONSC 6726

COURT FILE NO.: CR-15-90000415-0000

DATE: 20161031

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

MICHAEL TROUGHT

Applicant

REASONS FOR JUDGMENT ON 11(b) APPLICATION

R.F. Goldstein J.

R. v. Trought, 2016 ONSC 6726

Case Summary

REASONS FOR JUDGMENT ON 11(b) APPLICATION

ANALYSIS

DISPOSITION

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 1

Legal Tests 2