Citation and Court Information
CITATION: R. v. Bishop, 2016 ONSC 7734
COURT FILE NO.: 12-30456
DATE: 2016/12/09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
KEVIN PAUL BISHOP
Applicant
Counsel:
Matthew Geigen-Miller, for the Crown/Respondent
Jason Gilbert, for the Accused/Applicant
HEARD AT OTTAWA: December 8, 2016
REASONS FOR Decision – 11(b) Motion
PHILLIPS J.
[1] Today is December 9, 2016. This case started September 10, 2012. That was 51 months ago. The accused, Kevin Bishop, now applies for a stay of proceedings on the basis that his right to be tried within a reasonable time has been infringed.
[2] The Supreme Court of Canada has recently affirmed that “timely justice is one of the hallmarks of a free and democratic society”. In furtherance of that notion, a new ceiling has been established beyond which delay is presumptively unreasonable. For cases in the Superior Court of Justice, that ceiling is 30 months. The period starts when an accused is charged with an offense, and ends with the actual or anticipated end of the trial.
[3] I am indebted to my sister justice Parfett J. who comprehensively reviewed this area of the law in R. v. Picard, 2016 ONSC 7061. As she explains, in following the Supreme Court of Canada’s instructions in R. v. Jordan, 2016 SCC 27, this court must now engage in a four step analysis:
first, I must calculate the total delay;
second, I must deduct from the total any delay waived by the defense or caused by conduct of the defense;
third, where the net total exceeds the presumptive ceiling, the onus shifts to the Crown to rebut the presumption of unreasonable delay by demonstrating that there are exceptional circumstances. If the Crown fails to do so, a stay must follow;
fourth, for cases in the so-called transitional period (that is, those in the system as of July 8, 2016), where the delay exceeds the presumptive 30 month ceiling, the Crown can nonetheless invoke transitional, exceptional circumstances. Essentially, the Crown must show that the time the case has taken is justified on the basis of a reasonable reliance on the previous state of the law.
[4] It is not necessary to painstakingly analyze the first step. Counsel agree that the total amount of delay is 51 months.
[5] Moving to the second step, I have been persuaded that some of the periods of delay are attributable to either defense waiver or were caused by conduct of the defense. In that regard, I deduct the following time periods:
(a) the four month period from October 5, 2015 to February 5, 2016. Those four months are attributable to the unavailability of defense counsel.
(b) the four and a half months from May 14, 2014 to October 3, 2014. That period was required to facilitate defense interest in conducting discoveries. Those discoveries were not ultimately conducted and I lay those wasted months at the feet of the defense.
(c) similarly, the one month period from April 4, 2014 to May 1, 2014 was also wasted because defense counsel asserted an interest in conducting discoveries, an interest that was never followed through on.
[6] The Crown argues that I should deduct 12 months after November 19, 2012 as involving unnecessary adjournments requested by defense. I cannot entirely agree.
[7] In every criminal case, the Crown is the moving party. While defense counsel must be cooperative and never obstructive, it is the Crown who bears the onus to move the matter forward. Accordingly, it is the Crown’s obligation to accomplish the scheduling of whatever counsel pre-trials, judicial pre-trials or other proceedings required to advance the matter. I say this because my assessment of this record is that significant delay was caused during this time period by the Crown taking a very hands-off approach with respect to the maintenance of forward momentum. Each party seemed to be content to wait for the other to set the pre-trials and generally get the matter going. That approach resulted in delay which the Crown must now share.
[8] That said, I do agree that some of the delay occurring during the November 19, 2012 to March 10, 2014 period should be attributed to the defense. Some of the adjournments during that time were necessitated by a very slow pace in applying for legal aid, as well as some unreasonable confusion with respect to securing a “screening form” and whether there was a “white sheet” and if so who had it.
[9] In the final analysis, I assess that both sides should share in the consumption of the period in question. I assign six months of that time period to the defence side of the ledger.
[10] In sum, I have decided that 15.5 months of the overall delay ought to be deducted as either waived by defense or attributable to defense conduct.
[11] The remaining delay period, 35.5 months, is well past the 30 month ceiling set out in R. v. Jordan. Accordingly, I must determine whether the Crown can rebut the presumption of unreasonable delay by demonstrating that there are exceptional circumstances.
[12] The Crown argues that there are two areas of exceptional circumstances:
(a) that the two-month period from September 10, 2012 to November 19, 2012 ought to be deducted because it relates to exceptional circumstances said to exist because of the efforts required of the Crown to intervene in and assess the viability of the private prosecution that started this case;
(b) that the 10 month period from February 5, 2016 to the anticipated end of the trial on December 16, 2016 ought to be deducted because it came about as a result of the complainant moving to Nicaragua, an event that was outside the control of the Crown and constitutes an unforeseeable special circumstance like the sort of discrete event the Supreme Court was referring to at paragraph 81 of Jordan.
[13] It is true that given the nature of the charge, the Crown had no choice but to intervene and take this private prosecution over. It is also true that it would have been incumbent upon the Crown to assess whether prosecuting the matter was in the public interest and possessed of a reasonable prospect of conviction. This function is what is usually referred to as charge screening.
[14] I would put this case, complexity-wise, at the low end. In the beginning, it involved only two witnesses and very few documents. Originally, the Crown estimated that it would take less than a day to prove in court. While it is of course of utmost importance to the people directly involved, when assessed in the context of the regular diet of the criminal courts this is a relatively simple matter. I cannot accept that two months was reasonably required to perform the initial charge screening function.
[15] The complainant’s move to Nicaragua did indeed thwart the February 5, 2016 first trial date. I gather this is because the Crown found out about the move too late in the day to bring the complainant in from so far out of town.
[16] Life does not freeze the moment a criminal case commences. People continue to live their lives, including moving from one city to another and even abroad. A prosecution slow enough to take several years carries the risk that at trial time the witnesses may not be living where they were when the case was first assembled. Here, it appears that no one kept in touch with the complainant enough to know that she had left Canada by the time subpoenas for the February 2016 trial went out in late 2015, over three years from the start of things. In my view, periodic communication is required between the Crown and the witnesses if a case is going to be allowed to span several years. I decline to assess the ten-month delay from February 5, 2016 to December 16, 2016 as an exceptional circumstance. The Crown required an adjournment of the February 5, 2016 trial date because its witness had become unavailable. The ten-month long fallout from that fact is attributable to the lack of communication the Crown chose to have with its complainant over the preceding months.
[17] Is the time this case has taken justified on the basis of a reasonable reliance on the previous state of the law?
[18] The Crown is on the hook here for just under three years of delay. Even under the old Morin guidelines this case is way beyond what one could consider reasonable in these circumstances. Morin, of course, directed that cases should be dealt with in the provincial court in 8 to 10 months and in the Superior Court 6 to 8 months after that. Of course, any student of the criminal jurisprudence will know that many cases since Morin have been found to be exceptional and to otherwise warrant proceeding well past the time-span outlined in that case. It is fair to say that since Morin the tolerance level for delay has increased incrementally upward to a significant degree. Nonetheless, it is important to keep the old Morin timelines in mind when now assessing Crown conduct against the law as it stood pre-Jordan.
[19] In my view, the events occurring when the matter was in the provincial court from September 10, 2012 to April 4, 2014 show an unfortunate culture of tolerance for delay. As mentioned above, the Crown simply failed to discharge its obligation to actively move the matter forward. Many of the adjournments in the remand court were little more than spinning of wheels. Often, counsel appearing in court for either side was unaware about the state of affairs and could add nothing beyond suggesting more time for more discussions. In any event, by the time the matter left the OCJ in March, 2014 it was clearly in 11(b) jeopardy. I discern no meaningful effort on the part of the Crown to try to accelerate the pace thereafter.
[20] In fairness to the Crown, significant delay in the Superior Court occurred because of resource issues. Under the Morin regime that sort of under-resourcing could be termed institutional delay. In accordance with Jordan, the court must be careful not to draw too much from institutional delays given that the legislatures and bureaucracies have not yet had time to react to the post-Jordan reality. Nonetheless, the Crown, representing the state writ-large must bear responsibility for under-resourcing the courts. Certainly, delays caused by an under-resourced justice system are not the fault of the accused. In any event, the delay here, institutional or otherwise, is just too long.
[21] I cannot agree that the Crown’s conduct in this matter is explained by reasonable reliance on the law as it existed prior to Jordan. Even on a Morin analysis this case involves delay well past any tolerable level.
[22] In my view, the best thing to come from Jordan is the instruction that determining whether the time a case has taken markedly exceeds what was reasonably required is not a matter of precise calculation. Trial judges should not parse each day or month, as was the common practice under Morin, to determine whether each step was reasonably required. Instead, trial judges should step back from the minutiae and adopt a bird’s eye view of the case.
[23] In that spirit, I will close by observing that a justice system that results in a short, straightforward case being put to a jury 51 months from its inception is a justice system that has simply failed to stay within the bounds of the constitution. Inadequate heed has been paid to the accused’s right to be tried within a reasonable time as guaranteed by section 11(b) of the Charter.
[24] This proceeding is now unconstitutional. There will be a stay of proceedings.
Justice Kevin B. Phillips
Released: December 9, 2016
CITATION: R. v. Bishop, 2016 ONSC 7734
COURT FILE NO.: 12-30456
DATE: 2016/12/09
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
KEVIN PAUL BISHOP
Accused/Applicant
REASONS FOR JUDGMENT
Phillips J.
Released: December 9, 2016