R. v. Paauw, 2016 ONSC 7394

Court File and Parties

CITATION: R. v. Paauw, 2016 ONSC 7394

COURT FILE NO.: 15-19

DATE: 2016/11/28

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent

– and –

DAVID PAAUW Applicant

Jason Pilon, counsel for the Crown

Ian Paul, counsel for the Applicant

HEARD: November 16, 2016

RULING ON SECTION 11(B) CHARTER APPLICATION

lALIBERTE, j.

Introduction

1The Applicant, David Paauw, has brought an Application under section 24(1) of the Canadian Charter of Rights and Freedoms. He is seeking a stay of proceedings on the basis of an infringement of his section 11(b) right to be tried within a reasonable time.

2He is charged with fraud, using forged documents and falsifying employment records. The events would have occurred between the 17^th day of April 2012 and 11^th day of August 2012. These crimes of dishonesty are said to involve the sum of $10,712.68.

3The original informations were sworn on April 9, 2013. The matter is set for a five day judge alone trial on January 23, 2017 in the Superior Court of Justice.

4The Respondent Crown opposes the Application. It is argued that while the delay is significant, it is not unreasonable.

5So that the issue for the Court is whether the charges against the Applicant should be stayed on the basis of unreasonable delay.

The Facts

6The Applicant is charged under sections 380 (fraud), 368 (uttering forged documents) and 398 (falsifying employment record) of the Criminal Code.

7The allegations are that he would have claimed work hours from his employer which he had not actually performed. He would do so through forged time slips given to the employer. A total of 55 slips were allegedly remitted to the alleged victim for a total of 490 hours of work totalling $10,712.68. These events are said to have occurred in the City of Cornwall between the 17^th day of April 2012 and 11^th day of August 2012.

8He was arrested on March 15, 2013 and released by way of a promise to appear coupled with an undertaking on the same date.

9The police had initially sworn three separate informations on April 9, 2013 each of which contained a separate count. These were replaced by a single three count information sworn on April 25, 2013.

10There were a total of 21 court appearances at the Provincial Court level, some of which will be reviewed in this ruling.

11The first appearance was on April 25, 2013. He was committed to stand trial on March 5, 2015. This was on consent and followed discoveries held on February 27, 2015.

12He first appeared at the Assignment Court in Superior Court on April 16, 2015. There were a total of 5 appearances. On October 16, 2015 a 5 day trial was ultimately set for January 23, 2017.

Position of the Parties

Applicant

13The Applicant seeks a stay of proceedings pursuant to section 11(b) and 24(1) of the Charter. He submits that he will not be tried within a reasonable time.

14He argues that the delay in this matter exceeds the presumptive ceiling of 30 months set out by the Supreme Court of Canada in R. v. Jordan.

15In support of his position, he raises the following considerations:

− The total delay, from date of charge to trial, will be 46 months;

− The delay, after subtracting two periods of 11(b) waiver, will be 43 months;

− There were no discrete events; the lack of a translator was not unexpected or unforeseeable;

− The seeking of disclosure and the providing of names of witnesses to the prosecution for further investigation was reasonable and agreed to by the Crown; this does not amount to defence waiver;

− The change of lawyer is conceded as being either defence delay or a discrete event, a period of 4 months should be subtracted;

− The end result is that the net delay is 39 months which is over the 30 months presumptive ceiling;

− The transitional rules do not assist the prosecution;

• This is not a complex case;

• Defence is not required to take extra steps to push the case along;

• Defence did agree to discoveries in lieu of a preliminary inquiry;

• It was the duty of the police to pursue the investigation in a timely manner;

• Defence acted reasonably in pursuing the additional disclosure.

Respondent

16The Respondent submits that the Application should be dismissed on both a Jordan or Morin analysis.

17His view is that the Jordan framework leads to a 30.5 months delay and as such is not unreasonable.

18He notes the following:

− The total delay is 45 months and runs from April 25, 2013 to January 27, 2017;

− There are two separate explicit 11(b) waivers which equate to a 5.5 months deduction;

− The need to retain new counsel is defence-caused delay and translates to a further 2.75 months;

− The absence of an interpreter and the witness bringing documentary evidence are discreet events as they were reasonably unforeseen and unavoidable;

− This is a particularly complex case as evidenced by the volume of disclosure;

− Consideration should be given to the fact that the Crown twice stated on record that it was ready to set a trial date; it also raised concerns with the delay.

19The Respondent also relies on the concept of “transitional exceptional circumstance” as articulated in Jordan. It is argued that the parties reasonably relied on the law as it stood prior to July 8, 2016 and that a Morin analysis leads to a finding that the delay in this matter is not unreasonable. He relies on the following:

− The explicit waivers;

− The inherent time requirements;

− The change in counsel;

− The Crown offered to proceed by way of discoveries to offset the 2 unforeseen events (no interpreter/witness bringing documentary evidence);

− A constitutionally tolerable delay in the Superior Court should be in the range of 18 to 20 months for an uncomplicated case;

− This matter repeatedly grew in complexity by reason of the disclosure;

− Defence never explicitly raise any concerns with delay throughout the proceedings;

− There is no evidence of actual prejudice to the Applicant;

− There is a compelling societal interest in a trial on the merits;

• Crimes of dishonesty;

• Breach of trust.

The Law

20In deciding this matter, the Court is guided by the new analytical framework articulated by the Supreme Court of Canada in R. v. Jordan 2016 SCC 27, [2016] S.C.J. No. 27 which can be summarized as follows: (see R. v. Coulter 2016 ONCA 704, [2016] O.J. No. 5005).

1. Calculate the total delay:

• The period from the swearing of the information to the actual or anticipated end of the trial.

2. Calculate the net delay by subtracting defence delay from the total delay:

• Defence delay has 2 components, defence waiver and defence-caused delay;

• Defence waiver:

• Can be explicit or implicit but must be clear and unequivocal;

• Accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights.

• Defence-caused delay:

• Comprised of situations where the acts of the defence either directly caused the delay or are shown to be a deliberate and calculated tactic employed to delay the trial;

• Frivolous applications and requests are the most straightforward examples of defence delay;

• Where the Court and the Crown are ready to proceed but the defence is not, the defence will have directly caused the delay.

3. Compare the net delay to the presumptive ceiling identified by the Supreme Court in Jordan beyond which delay is presumptively unreasonable:

• Provincial Court: 18 months;

• Superior Court: 30 months.

4. If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable;

5. The Crown may rebut the presumption by establishing the presence of exceptional circumstances:

• These must lie outside of the Crown’s control in that (1) they are reasonably unforeseen or reasonably unavoidable and (2) Crown cannot reasonably remedy the delays emanating from the circumstances once they arise;

• An exceptional circumstance is the only basis upon which the Crown can discharge its burden;

• Generally, exceptional circumstances fall under 2 categories, discrete events and particularly complex cases;

• Discrete events include a medical or family emergency on the part of accused, important witnesses, counsel, trial judge; any portion of the delay caused by a discrete event that the Crown or system could reasonably have mitigated may not be subtracted;

• Particularly complex cases are cases that, because of the nature of the evidence and/or issues, require an inordinate amount of trial or preparation time such that the delay is justified.

6. If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is reasonable and must do so by establishing two things:

• It took meaningful steps that demonstrate a sustained effort to expedite the proceedings;

• The case took markedly longer than it reasonably should have.

7. If the remaining delay exceeds the presumptive ceiling, the delay is unreasonable and a stay should be granted.

8. The following transitional guidelines apply to cases which were already in the system when Jordan was released on July 8, 2016:

• The new framework applies to such cases;

• Where the remaining delay exceeds the presumptive ceiling, a transitional exceptional circumstance will apply when:

• The Crown establishes 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;

• Account should be taken of cases of moderate complexity in a jurisdiction with significant institutional delay problems.

• Where the remaining delay falls below the presumptive ceiling, the two things that the defence must establish (i.e. defence initiative and whether the time the case took markedly exceeds what was reasonably required) must also be applied contextually, sensitive to the parties’ reliance on the previous state of the law;

• Institutional delay that was reasonably acceptable in the relevant jurisdiction under the Morin framework will be a component of the reasonable time requirements;

• The relevant circumstances to consider in a contextual analysis in transitional cases include:

• The complexity of the case;

• The period of delay in excess of the Morin guidelines;

• The Crown’s response, if any, to any institutional delay.

Discussion

21Having considered the relevant principles and circumstances in this matter, the Court finds that the Applicant’s right to be tried within a reasonable time has been breached and the relief sought is therefore granted. There will be a stay of proceedings.

22Applying the analytical framework set out in Jordan, the Court provides the following analysis:

1. Total Delay

23A review of the Court documents shows that the initial informations against the Applicant in this matter were sworn on April 9, 2013. These three informations were subsequently replaced by one information containing 3 counts sworn on April 25, 2013. So that the delay starts as of April 9, 2013.

24The anticipated end of the trial is January 27, 2017.

25The total delay is therefore 45.5 months.

2. Net Delay

26The Applicant concedes that there is defence delay in this matter which must be accounted for and subtracted from the total delay. This defence delay is grounded on both components, namely defence waiver and defence-caused delay.

27The evidentiary record reveals that the Applicant explicitly waived his 11(b) right on two separate occasions, namely on May 21, 2013 in Provincial Court and June 24, 2015 in Superior Court.

28The Applicant does not raise any issue in regards to the scope or reach of the Superior Court June 24, 2015 waiver. He agrees that the delay between June 24, 2015 to September 10, 2015 is to be deducted from the total delay. This translates to a 2.6 months reduction to the total delay.

29The parties disagree in regards to the scope or reach of the Provincial Court waiver of May 21, 2013.

30The Court is of the view that the May 21, 2013 waiver does not extend to August 27, 2013 as argued by the Respondent Crown.

31To be effective, a waiver must be clear and unequivocal. The words used by counsel on behalf of the Applicant suggest that the waiver was up to June 11, 2013 since he states:

“I’m going to suggest that Mr. Paauw return one last time on June 11^th. It’ll be to set a trial date at that time unless the matter has been resolved in some other fashion.”

32These words do not support the proposition that the Applicant intended to extend his waiver beyond June 11, 2013 as this would be a last adjournment and a trial date would then be set if not resolved.

33On June 11, 2013, both Crown and defence had agreed to one final adjournment to July 16, 2013. There had been several pre-trials. The matter is once again adjourned on July 16, 2013 and the record suggests that the reason for this now rests on the Crown. The Justice states that the “ball is now” with the Crown. Crown counsel confirms this by stating “Yes, I’m looking at the file. It indicates that it was adjourned to July 16^th for an investigation to be conducted.”

34In the end, the Court finds that the period between May 21, 2013 and June 11, 2013 is to be deducted from the total delay as waiver by defence. This amounts to .6 month.

35Therefore, the total amount deducted as defence waiver is 3.2 months.

36The Court agrees that the action of the defence in relation to the retaining of counsel is such that it caused a portion of the delay. This amounts to defence-caused delay which is to be subtracted from the total delay.

37Specifically, the Court notes that the Applicant, through duty counsel, stated on June 11, 2013 that he would represent himself if the matter went to trial. On August 27, 2013, duty counsel indicates that he would likely not qualify for legal aid. On September 3, 2013, the record shows that he applied for legal aid on that date and was in fact granted coverage. The matter was adjourned to retain counsel.

38It would appear that up to September 3, 2013, duty counsel had acted on behalf of the Applicant by requesting a further investigation and participating in a number of counsel pre-trials with Crown counsel.

39There is no explanation on record of why the Applicant did not apply for legal aid prior to September 3, 2013. The more difficult question is how this impacted on delay.

40Ultimately, the question of counsel was settled on January 13, 2014. The first counsel appointed through legal aid was removed by reason of conflicts with some of the witnesses.

41The end result is that the delay between September 3, 2013 to January 13, 2014 is seen by the Court as having been caused by the Applicant’s failure to seek legal aid prior to September 3, 2013. It was understood by all that he was self-represented until then. There is no explanation why this changed some 4 months after the first appearance on April 25, 2013.

42Therefore, the delay between September 3, 2013 and January 13, 2014 is seen as having been caused by the Applicant and will be deducted from the total delay. This delay equates to 4.3 months.

43The Respondent Crown does not raise any other defence action which would amount to “defence-caused delay”.

44The total defence delay is set at 7.5 months.

45The net delay is therefore 38 months. As it exceeds the 30 months ceiling, the delay is presumptively unreasonable. The question becomes whether the Respondent has proven the presence of exceptional circumstances.

3. Exceptional Circumstances

46The Court finds that the Respondent Crown has not established the presence of exceptional circumstances.

47The failure of an interpreter to attend and the bringing of documentary evidence by a witness are not seen as discrete events which were reasonably unforeseen or unavoidable.

48Rooted in this finding is the notion that Crown counsel cannot be disassociated from the “system” and the police in the context of delay analysis.

49Dealing first with the absence of an interpreter, there is no explanation on record to explain this. Crown counsel stated the following on September 24, 2014 which was the date set for the preliminary inquiry:

“There have been some developments on the Paauw matter, not the least of which is that an interpreter was requested and is not available. I am told that they’re in a similar situation in the Bail Court where they need a French Interpreter and that the earliest they can get one is by 1:30, two o’clock potentially.”

50As stated in R. v. Askov, [1990] 2 S.C.R. 1199:

“57. It must be remembered that it is the duty of the Crown to bring the accused to trial. It is the Crown which is responsible for the provision of facilities and staff to see that accused persons are tried within a reasonable time.”

51It is somewhat difficult to comprehend why a French/English interpreter would not be readily available in a jurisdiction housing a significant number of French speaking individuals. The need for such an interpreter cannot be said to be reasonably unforeseen or unavoidable.

52Nor is the Crown witness showing up with a book of scheduling records that had not been provided to the police seen as a discrete event amounting to an exceptional circumstance.

53These records are described by Crown counsel on September 24, 2014 as significant. He states:

“…some information came to light today from one of the witnesses that I understand the police were unaware of and there were certain documents that were turned over. They need to be reviewed by the police and then provided to the Crown for disclosure and then I need to turn them over to Mr. Paul. These could potentially have a very serious impact on the proceedings one way or the other.”

54In the context of an “exceptional circumstance” analysis, the burden of proof rests on the Crown. The evidentiary record does not provide an explanation as to why such significant records did not come to light before the date set for the preliminary inquiry, some 17 months after the first appearance. There is no indication in regards to the steps taken, if any, by the police to obtain these documents.

55The Court is also of the view that the delay cannot be justified on the basis of complexity. The allegations against the Applicant are not factually and legally complicated. This is confirmed by a review of the discoveries which were completed in one day. The evidence is straightforward. The legal issues under sections 380, 368 and 398 of the Criminal Code are not complicated in the context of these proceedings. This prosecution does not require any inordinate amount of trial and preparation time.

56Therefore, the Court finds that the Respondent Crown has not established exceptional circumstances on either of the components identified by the Supreme Court in Jordan.

57The net delay remains at 38 months and therefore exceeds the 30 months ceiling.

58The last step in the analysis is whether the Crown has established that the delay is justified under the concept of “transitional exceptional circumstance”.

4. Transitional Exceptional Circumstance

59In R. v. Williamson, 2016 SCC 28, the Supreme Court identified the following relevant circumstances to be considered in a contextual analysis:

− The complexity of the case;

− The period of delay in excess of the Morin guidelines;

− The Crown’s response, if any, to any institutional delay;

− Defence efforts, if any, to move the case along;

− Prejudice to the accused.

60Assuming that the evidence establishes that the parties “reasonably relied” on the law as it stood before July 8, 2016, the Court’s conclusion is that the delay remains unreasonable.

61This finding is based on the following considerations:

• As already stated, this is not a factually and legally complicated case;

• It appears that a significant portion of the delay is connected to issues of disclosure; there is no evidence to support the proposition that the disclosure issues stem from frivolous requests made by defence; throughout the proceedings, the Crown acted on these requests and acknowledged the significance of this disclosure; the Court notes the following examples of statements made by Crown counsel:

• “…it was adjourned to July 16^th for an investigation to be conducted…” (July 16, 2013);

• “I have a task summary report that says that the Crown is seeking a follow up with respect to certain witnesses…” (July 16, 2013);

• “I conducted the Judicial Pre-Trial…and basically both sides have homework to do…” (October 29, 2013);

• “…rather than setting a specific date for discovery, I think my friend and I want to have all the materials…” (September 24, 2014);

• “…Yeah the disclosure has come in but it hasn’t been reviewed yet. It needs to be reviewed by him by today. We can put it over and then the disclosure can be made available between now and the next date…” (November 13, 2014);

• Defence counsel states: “…I received a new disclosure package of this volume of materials, a large volume of materials to review. I received it a couple of days ago….” (November 27, 2014);

• Defence counsel states: “….I received new disclosure from the Crown’s office this week. A number of business records…”;

• Crown counsel states: “…I wonder, Mr. Pilon is the assigned Crown and he anticipated this in light of the - in light of the disclosure…” (September 10, 2105).

• As fairly conceded by Crown counsel in his submissions, the delay from date setting to the trial date in Superior Court significantly exceeds the parameter set in R. v. Morin, [1992] 1 S.C.R. 771 of 6 to 8 months (or even 8 to 10 months as suggested by Crown counsel); the delay between October 16, 2015 (when the trial was set) to January 27, 2017 (expected end of trial), is 15.5 months;

• As already discussed, the Applicant is found to have expressly waived his 11(b) right on two separate occasions throughout the proceedings; however, the Court notes the following comments, on record, which would suggest that the Applicant was concerned with delay:

• “…I know Mr. Paauw is eager to deal with this matter…” (July 16, 2013);

• “…I know he’s come back to court on a number of occasions. He’s quite frustrated.” (August 27, 2013).

• The Court is mindful that the Crown raised the issue of delay in the proceedings:

• “I’m going to ask that it be marked for final adjournment. This matter is very long in the tooth.” (October 8, 2013).

• Both defence and Crown agreed to proceed by way of discoveries as a means to address delay;

• The Court is of the view that the delay is sufficiently long so as to allow for the inference of some degree of prejudice to the Applicant; this is supported by his October 17, 2016 affidavit wherein he states:

“I have found it difficult waiting for the court proceedings. I have found it difficult to sleep at times and I have lost weight from eating less. I have suffered stress and anxiety while waiting for the court proceedings.”

Conclusion

62The Court finds that the Applicant’s right to be tried within a reasonable time has been breached.

63A stay of proceedings will be entered accordingly.