R. v. Ny and Phan, 2016 ONSC 8031

CITATION: R. v. Ny and Phan, 2016 ONSC 8031

COURT FILE NO.: CRIMJ(F)452/14

DATE: 2016 12 22

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— and —

PEUV NY and ANDREW PHAN

COUNSEL:

V. Rivers, for the Crown

M. Quigley, Counsel for Peuv Ny

D. Trombly, Counsel for Andrew Phan

HEARD: November 22, 23, 2016

REASONS ON APPLICATION FOR STAY OF PROCEEDINGS

FAIRBURN J

(I) Overview

1Peuv Ny and Thu Phan are indicted on possession of marijuana for the purpose of trafficking and production of marijuana. The applicants were charged on March 26, 2013. Their trial is anticipated to conclude around April 7, 2017, 48 months and two weeks following the charges having been laid. This is a long time to wait for justice and a long time for justice to wait.

2The applicants ask for a stay of proceedings on the basis that their s. 11(b) Charter rights have been infringed. I agree that there has been unreasonable delay in this case and that the proceedings against the applicants must be stayed.

(II) The General Factual Backdrop for this Application

3On March 26, 2013, the Peel Regional Police executed a search warrant at a Mississauga home. A large-scale marijuana grow operation was discovered. A hydro bypass was found in the basement and just fewer than 1000 plants were seized.

4The applicants were in the grow room when the warrant was executed. Dung Le and Tuan Nguyen were also present. All four men were arrested and later released on promises to appear. The Crown proceeded against the four of them as a group. The applicants were only severed from Le and Nguyen on September 30, 2016, 3.5 years after the charges were laid.

5While the case moved through the Ontario Court of Justice with relative ease, taking about 16 months to achieve committal to trial, it quickly became bogged down in this court. As will become clear later in these reasons, in contrast to the applicants, their co-accused demonstrated no appetite for moving the matter forward to conclusion. Much of the delay is a direct result of the lacklustre efforts made by their then co-accused to advance the case in any meaningful way.

(III) The Positions of Counsel

(a) Crown Position

6The Crown says that despite the fact that R. v. Jordan, 2016 SCC 27 was released on July 8, 2016, providing a new framework under which s. 11(b) Charter issues must be assessed, the new rules do not govern this application. Rather, it is said that the scheme set out in R v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771 should apply because this is a "transitional case" and one where the parties would have relied upon the law as it existed prior to Jordan.

7The Crown argues that regardless of whether the Morin or Jordan framework is applied, well over 30 months of delay is attributable to the defence. This is because, it is said, the delay of one accused is the delay of all accused. When the analysis is properly done, the Crown argues that only 10.8 months of delay is attributable to Crown and institutional delay, "well within the guideline" suggested in Morin.

8The Crown argues that, even under the Jordan framework, the delay comes in well under the ceiling afforded to superior court trials. Indeed, it is said that when the defence delay is properly subtracted from the total time period, there are only 19.38 months of delay, resting below the 30 months granted to a case proceeding to trial in the Superior Court of Justice.

9In the end, the Crown says that whether the court applies the Morin or Jordan framework, or some combination of the two, there is no unreasonable delay.

(b) Defence Position

10The defence position is that Jordan governs and, on any calculation, the delay is well in excess of the 30-month ceiling.

11Assuming Jordan applies, the primary point of departure between the positions of the Crown and defence relates to the issue of delay caused by the co-accused. While the Crown says that the delay of one accused is the delay of all accused, the applicants maintain that the delay caused by an individual accused can only be assigned to that accused. Mr. Ny and Mr. Phan argue that they are responsible for virtually no delay in this case. Indeed, they take the position that they have made every effort to move the matter along as expeditiously as possible. They should not be punished for the tardy nature in which their co-accused approached the case.

12Even if Morin applies, the applicants argue that the total amount of delay is 28 months, well exceeding even the Morin guidelines.

13On any calculation, the applicants argue that there has been unreasonable delay and a stay of proceedings should be entered.

(IV) The Analytical Framework

(a) The Foundation Upon Which the Jordan Framework Rests

14Jordan recognizes that delays in the justice system can shake the public’s confidence in the administration of justice. Section 11(b) of the Charter is designed to protect against such delays. Among others, the provision is intended to protect the right of accused individuals, victims, and the public to timely trials: Jordan, at para. 19.

15Jordan reminds us that timely justice is a right of all and it is the responsibility of each justice participant to move cases forward in an efficient and timely way. No party is free of this obligation, not the Crown, the police, the court staff, the accused, their counsel, or judges. All criminal justice participants are encouraged to “cooperate in achieving reasonably prompt justice, with a view to fulfilling s. 11(b)’s important objectives”: Jordan, at paras. 5, 45, 50. This requires all justice participants to “work in concert to achieve speedier trials”: Jordan, at para. 116. When this happens, everyone benefits.

16Jordan identifies “doctrinal and practical problems” arising from Morin, making the former s. 11(b) approach unduly complex, highly unpredictable, and confusing: Jordan, at paras. 29, 32, 37-38, 41. A new framework has been provided in the hope of changing the “culture of delay” that is perceived to have taken root, and facilitating a more efficient criminal justice system. At the centre of the new approach is a ceiling beyond which unreasonable delay will be presumed.

(b) The Ceiling

17Under the Jordan framework, a ceiling of 18 months is imposed for matters proceeding to trial in provincial court and 30 months for matters proceeding to trial in the superior court. These are not “aspirational targets”. While justice participants should aim to conclude cases well within this time, the ceilings reflect the outer limits beyond which unreasonable delay will be presumed unless the Crown succeeds in rebutting the presumption: Jordan, at para. 56.

18The period of time is calculated from charge to the end or anticipated end of trial, minus any defence delay. If after applying this formula, the “net delay”¹ exceeds the ceiling, then the onus falls on the Crown to demonstrate exceptional circumstances that either result in the delay falling back below the ceiling or justifying the delay above the ceiling as reasonable. If the Crown fails to show adequate exceptional circumstances, then the delay is unreasonable and a stay will follow.

19If the delay falls below the ceiling, then the defence will bear the onus of demonstrating why the delay is nonetheless unreasonable. As this case does not fall below the ceiling, there is no need to discuss this scenario further.

20Importantly, prejudice is no longer an active feature of the s. 11(b) analysis. While presumed prejudice informs the point at which the ceilings have been set, in the sense that a person is presumed to have suffered prejudice once the ceiling is exceeded, unreasonable delay is not rebuttable on the basis of an absence of proven prejudice or on the basis of a proven absence of prejudice.

(c) Defence Delay

(i) Overview

21The court has reinforced in Jordan that s. 11(b) is not to be used as a sword. The majority judgment falls back on Morin, at p. 802: “The purpose of s. 11(b) is to expedite trials and minimize prejudice and not to avoid trials on the merits.” As such, an accused cannot be permitted to benefit from his or her own “delay-causing conduct”: Jordan, at para. 60.

22There are two types of defence delay that will be subtracted from the total period of time: (1) waiver; and (2) delay caused solely by the conduct of the defence.

(ii) Waiver

23As for waiver, it can be either implicit or explicit. Either way, the waiver must be clear and unequivocal. The accused must waive his or her s. 11(b) rights with full knowledge of the right being waived and the effect that waiver will have on those rights. As there is no waiver in this case, there is no further need to discuss the concept.

(iii) Delay Caused Solely by the Defence

24As for conduct that causes delay, this concept has been narrowly circumscribed in Jordan. It must be conduct that directly causes the delay or conduct that constitutes a “deliberate and calculated tactic” specifically employed to delay the trial: Jordan, at para. 63; R. v. Askov, 1990 45 (SCC), [1990] 2 S.C.R. 1199, at pp. 1227-28. Among other things, frivolous defence motions and requests constitute examples of this type of defence delay. In addition, where the Crown and court are ready to proceed, but the defence is not, delay resulting from defence unavailability may be attributed to the defence.

25It is important to recall what does not constitute defence delay. Actions that are legitimately undertaken by the defence to respond to the charges cannot be characterized as defence delay. Even if the Crown and court are ready to proceed, the defence needs time to prepare a case. Bona fides defence applications and requests are not to be counted as defence delay. The time spent on these matters is already accounted for in the normal procedural requirements of a case and reflected in the ceilings that have been set: Jordan, at paras. 65-66.

(d) Above the Ceiling: Exceptional Circumstances

(i) Overview

26If after deducting defence delay, the net delay is more than 30 months for a superior court trial, then the Crown bears the onus of rebutting a presumption of unreasonable delay. This can only be done by demonstrating the existence of “exceptional circumstances”. The central defining feature of exceptional circumstances is that they lie outside of the Crown’s control. Neither a lack of prejudice nor the gravity of the offence can be construed as an exceptional circumstance: Jordan, at para. 81.

27While there is no closed list of exceptional circumstances, they will typically fall into two categories: (a) discrete events; and (b) particularly complex cases: Jordan, at para. 71.

(ii) Discrete Events

28The legal process is a human one and, as with all human processes, things happen that are sometimes beyond the control of people. Examples of discrete events include things like medical or family emergencies resulting in delay. Discrete events may also arise during the course of a trial. For instance, where a trial itself goes longer than is reasonably expected, it is “likely the delay was unavoidable and may therefore amount to an exceptional circumstance”: Jordan, at para. 73.

29What is key is that the circumstances are beyond the Crown’s control. Two elements must be established for a discrete event to be found: (a) the circumstances are reasonably unforeseen or reasonably unavoidable; and (b) the delay that ensues could not be reasonably remedied once the circumstances arose: Jordan at para. 69. In other words, the Crown must demonstrate that “it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling [emphasis in original]”: Jordan, at para. 70.

30Discrete events that cause delay and that cannot be mitigated by the Crown or justice system, should be subtracted from the net delay to determine if the ceiling has been breached: Jordan, at paras. 75, 105.² Any part of the delay that could have been mitigated will not be subtracted from the total delay: Jordan, at para. 75. Resort to case management, streamlining pre-trial applications, and other procedural measures are some examples of steps that can be taken to minimize delay arising from unforeseen or unavoidable circumstances.

(iii) Complex Cases

31An exceptional circumstance may also arise from the complexity of a case. While complexity will typically rest on the nature of the evidence or issues involved, such that they “require an inordinate amount of trial or preparation time”, complexity may also arise from proceedings that involve more than one accused: R. v. Manasseri, 2016 ONCA 703, at para. 311.

32The trial judge must take into account prosecutorial decisions that impact on the complexity of the case. Having commenced a complex prosecution, to the extent possible, the Crown should develop “concrete” plans to minimize delay arising from the complexity: Jordan, at para. 79. As circumstances that are within the Crown’s control cannot qualify as exceptional, a failure by the Crown to develop plans to minimize delay in a complex case may lead to a finding of unreasonable delay: Manasseri, at para. 314.

33Delays arising from complexity may justify an otherwise unreasonable delay that exceeds the ceiling: Coulter, at paras. 50-52; Jordan, at paras. 81, 105. The core question is whether the amount of time above the ceiling is reasonable in light of the complexities involved.

(e) The Multiple Accused Trial

34Given the nature of the arguments in this case, and the actions and inaction of the applicants’ co-accused, a general comment about the legal effect of delay caused by co-accused is in order.

35The Crown takes the position that when one accused causes delay, the corresponding period of time is attributable to each of the accused as defence delay. Respectfully, Jordan does not support this proposition. Indeed, the reasoning in Jordan points away from any such approach. Neither of the two underpinnings advanced in the judgment for determining defence delay are conducive to treating the co-accused as a collective.

36First, the concept of “waiver” of a s. 11(b) right is antithetical to a group approach. One cannot waive another’s right to trial within a reasonable time because waiver is a legal concept that requires an assessment of what an individual accused knew when he or she waived the s. 11(b) right. A waiver of a s. 11(b) right is a voluntary forfeiting of the s. 11(b) right that requires knowledge of what is being waived and knowledge of the effect of the waiver on the individual’s rights. It is not for one accused to give up the right of another accused to a trial within a reasonable time.

37As for the second component of defence delay, it requires an assessment of the “accused’s acts” and whether his or her acts directly caused the delay: Jordan, at para. 63. It also requires an assessment of whether “the acts of the accused” can be shown to be a “deliberate and calculated tactic employed to delay the trial”. Like waiver, these are concepts attaching to a specific individual and his or her decisions to act in a certain way.

38The inquiry into whether a party is the sole cause of delay is not conducive to then turning around and cloaking others with that delay. A decision by an accused to waive the right to a timely trial, or to behave indifferently toward the right through the actions he takes, is an individual choice. It is a choice that cannot be directly visited on a co-accused in the sense that the net delay faced by the co-accused will change.

39The application of the law to the facts in Jordan supports this individualized approach to defence delay. The total delay in Jordan was 49.5 months, only one month more than this case. Mr. Jordan waived 4 months and was solely responsible for another 1.5 months of the delay. This left a net delay of 44 months. Mr. Jordan was initially proceeded against with nine other accused at his side. By the time of trial, one co-accused remained. Notably, the delay generated by the others was not considered in the calculation of net delay of 44 months.

40Jordan does not support the Crown’s argument that the delay of one accused is the delay of all accused.

41This does not mean, though, that delays generated by co-accused in the context of a joint trial are irrelevant to the s. 11(b) inquiry, even where the delay exceeds the ceiling. Quite to the contrary. As noted above, joint trials are sometimes complex trials. Delay associated with this complexity can be considered an exceptional circumstance that justifies a delay exceeding the ceiling.

42The jurisprudence is replete with sound policy reasons for conducting joint trials. It is a well-recognized principle of law that the interests of justice are most often best served by having people who are alleged to have committed crimes together, tried together and their guilt or innocence determined together. As Laskin J.A. held in R. v. Whylie (2006), 2006 9037 (ON CA), 207 C.C.C. (3d) 97 (Ont. C.A.), at para. 24: “A single trial for two or more accuseds generally conserves judicial resources, avoids inconsistent verdicts, and avoids witnesses having to testify more than once.” See also: R. v. L.G., 2007 ONCA 654, at paras. 62-62.

43The presumption of a joint trial, particularly where individuals are said to have worked in concert, will only be displaced where the interests of justice require separation, as per s. 591(3) of the Criminal Code. See also: R. v. Savoury (2005), 2005 25884 (ON CA), 200 C.C.C. (3d) 94 (Ont. C.A.), at para. 22; R. v. Last, 2009 SCC 45, at paras. 16-18; R. v. Crawford, 1995 138 (SCC), [1995] 1 S.C.R. 858, at paras. 19, 31; R. v. Chow, 2005 SCC 24, at para. 47. As Doherty J.A. held in Savoury, at para. 22: “The interests of justice encompass those of the accused, the co-accused, and the community as represented by the prosecution.”

44The new s. 11(b) framework accounts for joint trials and absorbs the policy rationale embedded in the jurisprudence pertaining to them, specifically as it relates to the interests of justice being served. As noted by the majority in Jordan, “[p]roceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case [emphasis added]”: Jordan, at para. 77. See also: Manasseri, at para. 311.

45The important policy rationales for keeping joint trials intact must not be lost in the increasing shadow of an approaching ceiling. As the British Columbia Court of Appeal recently held, severance is not a “panacea” when delay arises in a multiple accused trial: R. v. Singh, 2016 BCCA 427, at para. 83.

46The implications of proceeding too quickly to sever accused, simply because the ceiling is approaching, are obvious and striking. This is particularly true in jurisdictions like Brampton, where judicial and courthouse resources are long stretched to beyond their limits. The implications of conducting virtually the same trial more than once would be profound and potentially add to delay in the system: R. v. Koruz, 1992 ABCA 144, at para. 83, aff’d R. v. Schiewe, [1992] S.C.C.A. No. 299.

47We are reminded in R. v. Vassell, 2016 SCC 26, at para. 6, that “delay caused by proceeding against multiple co-accused must be accepted as a fact of life and must be considered in deciding what constitutes a reasonable time for trial”. In other words, the concept of “reasonable time” within s. 11(b) may fluctuate depending on whether accused are standing alone or together. Provided it is in the interests of justice to proceed jointly, delay above the ceiling may reflect the realities of life in a joint trial and transform an otherwise unreasonable delay into a reasonable one.

48There may come points, though, where the interests of justice may no longer be served by proceeding jointly. Among other things, s. 11(b) rights will inform this assessment. The Crown has an obligation to continually assess whether the decision to proceed jointly remains in the interests of justice. While an accused who is being proceeded against jointly is not necessarily entitled to a trial in the same time as an accused proceeded against on his own, an accused cannot be held “hostage” by his or her co-accused’s actions and inactions: Vassell, at para. 7; Manasseri, at para. 323.

49The Crown must stay vigilant about assessing the interests of justice and whether they continue to be served by a joint approach. Of course, in cases where some accused are pushing forward and others doing the opposite, remedies short of severance may be explored. Each case is unique. While there are different mechanisms that can be resorted to when dealing with a co-accused for whom “trial within a reasonable time seems anathema”,³ including the potential of forcing him or her on to trial with or without counsel or without counsel of choice, severance is one mechanism that lies within the Crown’s control.

(f) Transitional Cases

50All cases currently in the system are clearly governed by the principles set out in Jordan: see para. 94. This case is in the system.

51Where delay exceeds the ceiling, a transitional exceptional circumstance may arise. It will only apply where the Crown is able to establish that the delay is justified because of the parties’ reasonable reliance on the law as it existed at the time. A contextual assessment is required, having regard to how the framework was previously applied and “the fact that the parties’ behavior cannot be judged strictly, against a standard of which they had no notice”: Jordan, at para. 96.

52Moreover, the Jordan majority observes that an existing case of “moderate complexity” may exceed the ceiling “in a jurisdiction with significant institutional delay problems”: Jordan, at para. 97; Coulter, at para. 56. This reality should be taken into account “as Crown counsel’s behavior is constrained by systemic delay issues”: Jordan, at para. 97. Change takes time and, as Moldaver J. emphasized in Jordan, the transitional exceptional circumstance is designed to ensure that there is no repeat of the sea of stays that occurred in the wake of Askov. It recognizes that “institutional delay – even if significant – will not automatically result in a stay of proceedings”: Jordan, at paras. 97, 102-103; Manasseri, at para. 320.

(V) Application of the Law to the Facts

(a) Time Between the Charge and the Anticipated End of Trial

53The applicants were charged on March 26, 2013. Their trial is set to commence on March 20, 2017. It is scheduled to run for three weeks, with the anticipated end being April 7, 2017. This is a total of 4 years and two weeks between the charge and the anticipated end of trial.

(b) Defence Delay

(i) Overview

54The Crown claims that 32.4 months of delay are attributable to the former co-accused and that this should be characterized as defence delay. I disagree. For the reasons given above, when determining how much time is attributable to defence delay, an accused bears only his or her own delay.

55This requires an assessment of Mr. Ny and Mr. Phan’s own conduct and whether they waived or caused any delay. In the end, I conclude that they are individually responsible for very little delay in this case.

(ii) No Defence Delay in the Ontario Court of Justice

56This case moved efficiently at the beginning. Mr. Ny retained counsel almost right away. On the third appearance in the Ontario Court of Justice, the very day that the bulk of disclosure was provided, counsel appeared with Mr. Ny. During the next 25 appearances at both levels of court, not counting the days spent in the preliminary inquiry, Mr. Ny was almost never without counsel appearing on his behalf.

57The disclosure constituted a 13 tab brief and some DVD’s. Counsel for Mr. Ny asked for a brief adjournment to review disclosure. This was a legitimate request, an action properly taken to respond to the charges. It cannot be characterized as defence delay.

58On the very next appearance, not six weeks later, Mr. Ny’s counsel asked to set dates for the preliminary inquiry. A judicial pre-trial was scheduled for less than a month later, at which time a four day preliminary inquiry was scheduled for 10.5 months away. The time estimate proved to be an accurate one and, following a contested preliminary inquiry, all accused were committed to trial on July 24, 2014. This was almost 16 months after they had been charged. There was no defence delay on anyone’s part in the Ontario Court of Justice.

(iii) Defence Delay in the Superior Court of Justice

Getting Started: August 8 – September 26, 2014

59All four accused appeared for the first time in the Superior Court of Justice on August 8, 2014. As it turned out, this was the first of 20 appearances in this court before the applicants were severed from their co-accused.

60Counsel for Legal Aid Ontario [LAO] is present in assignment court in Brampton to assist accused with applying for legal aid and the court with obtaining accurate information about the status of applications.

61Counsel from LAO informed the court on August 8, 2014, that Mr. Phan and Mr. Le were applying for legal aid. Counsel said that their applications could be taken over the phone that day. A Vietnamese interpreter would be provided for this purpose.

62No defence delay should be attributed to Mr. Phan because of his application for funding. While there may be situations where applications for funding could be characterized as “frivolous”, counting toward defence delay, Mr. Phan’s application cannot be characterized this way. After all, in the end, he received a certificate to fund his defence.

63Nor did Mr. Phan engage in any “foot dragging” when it came to applying for funding. In fact, he received his certificate between his first and second appearance in this court. While Justice Doherty’s comments in R. v. Boetang, 2015 ONCA 857, at para. 32, still resonate in the post-Jordan world, that “‘foot dragging’ during the Legal Aid process would count against the defence”, Mr. Phan moved swiftly on this front. No delay arising from his application should be attributed to him.

64As for Mr. Ny, when the accused had to be remanded to another assignment court to permit time for legal aid to be pursued, his counsel was not available on the suggested return date. He had earlier and later dates available. The court ultimately offered a return date of September 26, 2014, two weeks following what was originally suggested.

65In these circumstances Mr. Ny should not bear the whole two week delay simply because his counsel was not available on September 12, 2014. Mr. Phan needed the adjournment to obtain funding. While the court and Crown were available to return on September 12th, and counsel to Mr. Ny was not, he was available before that. In the circumstances, Mr. Ny should only be responsible for one week of the two week delay.

Second Appearance: September 26 – October 31, 2014

66Not only was Mr. Phan successful in obtaining a LAO certificate, but he located and retained counsel as soon as he had one.⁴ On September 26, 2014, counsel appeared on behalf of Mr. Phan.

67The other accused were still fiddling around with LAO and funding. The matter had to go over again. While counsel to Mr. Phan (also appearing for Mr. Ny) was offered October 17 or 31, 2014 as the return date, she chose October 31 to return. She did so on the basis that it would “ensure that everything has been processed for the other two gentlemen”. She expressed how “anxious” they were to move Mr. Phan and Mr. Ny’s matters along and “so hopefully the other two will have Legal Aid funding sorted out by then”.

68This is not a situation where the defence were not ready to proceed when the court and Crown were. It was a realistic assessment by counsel as to how much time was required so that the co-accused could have their funding situation determined. No delay is attributable to the defence in these circumstances.

Setting of the Judicial Pre-Trial

69Funding issues continued with the applicants’ co-accused.

70On December 12, 2014, the sixth appearance before this court, the court decided to set a judicial pre-trial [JPT] for the next appearance. The JPT was set despite the continuing funding saga for the co-accused.

71Counsel for Mr. Ny was not available on the dates offered, but was available earlier than those dates. Ultimately, a date that was two weeks after the earliest date offered by the court was set for the pre-trial. The transcript does not reveal whether the Crown was available on the earlier dates. In these circumstances, no delay is attributable to the defence.

Mr. Phan’s Counsel Does Not File a Pre-Trial Conference Report

72On February 5, 2015, the date set for the JPT, it was discovered that counsel to Mr. Phan had failed to file the required Pre-Trial Conference Report. She explained that this was because she had not received the Crown’s pre-trial Report until that morning. Crown counsel confirmed that only counsel to Mr. Ny had been provided with the Report in advance of that day. Like Mr. Phan’s counsel, the self-represented accused only received the Crown’s Pre-Trial Conference Report that morning.

73Counsel to Mr. Phan asked the matter go over to February 27, 2015 so that she could file her Report. The adjournment request was granted and a three week delay was triggered.

74I note that under Rule 28.04(8) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7, an accused must file the Pre-Trial Conference Report five days in advance of the JPT, even where the prosecution has failed to comply with the rules. Mr. Phan should have filed his Report notwithstanding the fact that he was not provided with Crown Counsel’s Report. Even so, having regard to the Crown’s failure to serve its Report on Mr. Phan, only two weeks of the ensuing three will be assigned to Mr. Phan as his delay.

Mr. Ny’s Lawyer is Caught in a Jury Trial

75The JPT could not go ahead on February 27, 2015 for a few different reasons. First, the applicants’ co-accused expressed interest in bringing a Rowbotham application.⁵ A lawyer wrote to the court saying that he would be assisting Mr. Le in this regard, but that the lawyer’s mother was in grave health and he needed a 3 week adjournment.

76In addition, counsel to Mr. Ny was involved in a jury trial in Toronto that had gone past its expected end date. Counsel to Mr. Ny wanted to be present for the JPT and asked for an adjournment. The matter was put over to March 20, 2015 to set dates for the Rowbotham application and the JPT.

77Mr. Ny accepts that the three week period triggered by his counsel’s unavailability is his delay. This is despite the fact that there were other reasons that the matter required adjournment. Three weeks delay will be assigned to Mr. Ny.

The Adjournment of the Trial Date

78On June 24, 2015, which constituted the twelfth time this matter was before this court, the JPT had still not been set. This was largely owing to the actions and inactions of the applicants’ co-accused.

79Despite a JPT not having been conducted, and responding to the increased anxiety being expressed by the applicants’ counsel about the passage of time, the court decided to set the trial date. The earliest date that counsel for the applicants’ co-accused could appear for a three week trial was starting in September, 2016. The trial was scheduled to commence on September 12, 2016. This was over 14 months and two weeks later.

80After setting the trial date, the court continued to make every effort to manage the case, including making efforts to get the applicants’ co-accused to bring their Rowbotham applications.

81On July 24, 2015, a month after the trial date had been set, counsel to the applicants’ co-accused raised with the court that he had learned of a conflict with the trial date. He was scheduled to do another trial during this time. He wanted an adjournment of the trial to a later date.

82The court was not prepared to adjourn the trial date since there was a possibility that counsel would not be retained if the Rowbotham application was dismissed. Despite the court’s best efforts to push the co-accused forward and get the Rowbotham applications heard, the court was repeatedly met with reasons as to why more time was needed.

83Remarkably, on October 2, 2015, counsel to the applicants’ co-accused appeared and announced that his clients were abandoning their Rowbotham application. They were no longer seeking public funds for their defence. Instead, they privately retained counsel for trial. This announcement came 13.5 months after the case was first before this court.

84Now that he was retained for trial, counsel again raised the conflict issue and said that he needed an adjournment of the September 12, 2016 trial date. The presiding judge told him that if he wished to pursue the application, he needed to bring an application to adjourn so that the request could be considered on its merits. Counsel failed to bring the application for another 5.5 months.

85On March 23, 2016, with the three week trial less than six months away, counsel finally brought his application to adjourn the trial date. He explained that the application was delayed because of health issues he had experienced. This explanation was accepted by the court.

86The applicants’ counsel strongly opposed the adjournment application, expressing the view that they did not “wish to have any further prejudice or delay caused to their clients”. In contrast to the applicants’ position, Crown counsel was “not opposed” to the application. While Crown counsel said that they would be “seeking to have quick trial dates so that other individuals who are looking to go forward, at the earliest opportunity have that chance”, there was no Crown opposition to the adjournment of the September 12, 2016 trial date.

87The application to adjourn the trial date was granted. The court canvassed the only available options, one of which was to hold two, three week jury trials. The court specifically noted that no one had “mentioned severance”. Moreover, to refuse the adjournment request, Mr. Nguyen and Mr. Le would again have to start their search to retain counsel, a search that had gone on for months already. The “problematic” nature of trying to find counsel that late in the day for a pending three week trial was commented upon.

88The only other alternative was to grant the adjournment. In doing so, the court accepted that counsel to the applicants’ co-accused had been sick and was unable to bring the application to adjourn any earlier. The court also commented that it was not the applicants’ role to bring the adjournment application that they were opposing.

89Given the lateness of the adjournment application, Mr. Ny’s counsel did not have available dates until March 2017. The Crown expressed the view that the fall was a busy time for federal matters. The trial was ultimately rescheduled to commence March 20, 2017.

90While the Crown takes the position that the time between the date of the adjournment and the new trial date (almost exactly a year) is defence or “neutral” delay, I disagree. The applicants were ready to go to trial on their scheduled trial date. They did not ask for or want an adjournment. Indeed, they specifically opposed the adjournment. The applicants’ co-accused wanted the adjournment and the Crown seemed somewhat indifferent to that request. In these circumstances, while the delay is attributable to the applicants’ co-accused, neither Mr. Ny nor Mr. Phan should have the delay attributed to them.

(iv) Conclusion on Defence Delay

91In the end, I find that Mr. Phan is responsible for two weeks of delay. This leaves a net delay of 48 months for Mr. Phan.

92As for Mr. Ny, he is responsible for four weeks of delay. This leaves a net delay of 47 months and two weeks for Mr. Ny.

(c) Exceptional Circumstances

(i) Overview

93As noted above, when the delay falls above the ceiling, which it clearly does in this case, the court must consider whether any exceptional circumstances justify the delay. Discrete events and complexity are considered under exceptional circumstances.

(ii) Discrete Events

94The matter was set to be spoken to on October 31, 2014. An agent was to appear for Mr. Ny on that day, but an emergency arose that kept counsel from attending court. As a result, the matter was put over to assignment court on November 14, 2014 to be spoken to.

95The six weeks lost were owing to a reasonably unforeseen and unavoidable event that was beyond the Crown’s control. These six weeks should be subtracted from the total, leaving Mr. Ny with a 46 month delay.

(iii) Complex Cases

Overview

96This is where the bulk of the analysis takes place in this case. The core question is whether the delay generated by the applicants’ co-accused should render the delay above the ceiling reasonable because it arises from complexity.

Factual Review of the Applicants’ Co-accused’s Actions and Inactions

97I will start with a factual review of the applicants’ co-accused’s actions and inactions in the Superior Court of Justice. While they were unrepresented in the Ontario Court of Justice, there is no evidence that anything that they did or did not do slowed the pace of the case. Once in the Superior Court of Justice, things changed dramatically.

98On August 8, 2014, the accused had their first appearance in this court. At that point, Mr. Nguyen said he was not applying for legal aid. Mr. Le and Mr. Phan said that they were. Mr. Nguyen was encouraged to get a lawyer. The others were encouraged to get their applications into LAO.

99On the next appearance, Mr. Phan had been granted a LAO certificate. The court was informed that Mr. Le’s application was refused and his appeal period had expired. Various options were discussed, including an appeal. As for Mr. Nguyen, he had experienced a change of heart and decided to pursue funding, but had not provided all of the information required by LAO. He said that he would do so by the following week.

100When the matter returned on October 31, 2014, it was discovered that Mr. Le had done nothing to appeal his LAO matter. As for Mr. Nguyen, he needed to appeal.

101On November 14, 2014, it was discovered that Mr. Le still had not provided LAO with all of the documents that had been requested. Mr. Le agreed that he would provide the information by the following week. Mr. Nguyen’s matter was still said to be before the Legal Aid Area Committee for consideration. Two weeks later, on the fifth appearance before the court, it was learned that Mr. Nguyen had failed to meet certain LAO timelines and was at the “end of the road” with LAO. Mr. Le still had had not provided LAO with required documents and a decision could not be made without the documents. The court directed Mr. Le to get the documents to LAO within a week.

102On the sixth appearance in this court, Mr. Le said that he wanted to abandon his LAO efforts and to retain private counsel, but that he had not yet spoken to a lawyer. Mr. Nguyen said that he wanted to bring a Rowbotham application and had asked lawyers to do this for him. So far, no one had agreed.

103The matter was put over to February 5, 2015 for a judicial pre-trial which, for the reasons set out above, did not go ahead. The court provided Mr. Le and Mr. Nguyen with a clear explanation as to what a Rowbotham application is and instructed them to contact a lawyer to determine if someone would bring an application on their behalf.

104On the eighth occasion this matter was before this court, February 27, 2015, it looked like Mr. Le had finally obtained a lawyer to bring his Rowbotham application. Counsel sent a letter saying that he would was retained for this purpose and that he would also be helping Mr. Nguyen to get a lawyer. Counsel asked for a three week adjournment.

105When the matter returned for its ninth appearance, the lawyer for Mr. Le appeared again through correspondence. A letter was sent asking for the matter to be adjourned again, this time for one month. Counsel reinforced that a Rowbotham application would be brought. The matter was now seven months in this court and had gone nowhere. A JPT still had not been held, now because of the pending Rowbotham application.

106On the tenth time the case was before this court, counsel finally appeared for Mr. Le. He said that he was also assisting Mr. Nguyen. He now said that he “may need to bring a Rowbotham” application. Counsel asked for another month so that he could obtain materials necessary for the application. Counsel to Mr. Phan and Mr. Ny commented that they had been ready to conduct a judicial pre-trial “for quite some time now”. Both the court and Crown joined in this readiness position.

107On the next date, counsel now said that he was representing Mr. Nguyen and that another lawyer was contemplating coming on the record for Mr. Le, at least for purposes of the Rowbotham application. I note that the potential lawyer for Mr. Le never materialized in this case. Counsel for Mr. Nguyen said that he had just received Mr. Nguyen’s LAO materials, necessary to bring the Rowbotham application. He asked for another six week adjournment to obtain “proper instructions”.

108On June 24, 2015, counsel was ready to schedule the Rowbotham application, but only in September 2015. As had become somewhat of a constant refrain, the applicants’ counsel expressed concern about the length of time that the matter was taking. She said that they were not waiving their s. 11(b) rights.

109Notwithstanding that no JPT had been held, and the Rowbotham application still had not been brought, the court set the trial date. As above, counsel to the applicants’ co-accused was not available for trial until September of 2016. The trial got set for September 12, 2016, with or without counsel for Mr. Le and Mr. Nguyen. The Rowbotham application was set for September 2015.

110Counsel failed to file any materials on the return date for the Rowbotham application, explaining that he had simply been too busy with another matter. This case was put to another assignment court on October 2, 2015, at which time counsel made the announcement that Mr. Nguyen and Mr. Le had now privately retained him. As above, on March 23, 2016, the September 12th trial date was adjourned at the request of the applicants’ co-accused. The new trial date of March 20, 2017 was set.

111While it does not impact the applicants’ s. 11(b) rights, it is worthy of note that Mr. Le and Mr. Nguyen brought yet another adjournment application on September 30, 2016. On consent of the Crown, they were severed from the applicants and their trial date was adjourned to commence on July 31, 2017.

Is the Delay Above the Ceiling Justified?

112As discussed above, there are sound and strong policy reasons to keep people charged with the same offence on the same indictment. As noted in Vassell, at para. 6, delays caused when proceeding against multiple co-accused “must be accepted as a fact of life”.

113Given the inherent complexities involved, it would not be surprising if a three week trial of four accused individuals in a busy jurisdiction took somewhat longer than 30 months to complete. Just the simple coordination of counsels’ and the court’s calendars can create significant challenges for scheduling. The more calendars, the more complications. At the same time, there comes a point when delay is too much delay. In this regard, an accused cannot be held “hostage” in a joint trial simply because his co-accused have demonstrated no desire to have a trial.

114There is no doubt that the interests of justice point strongly in the direction of a single trial where the public’s purse will be protected, inconsistent verdicts will be guarded against, only 12 members of the community (as opposed to 24) will be inconvenienced, and witnesses will only have to testify once. The interests of justice partially inform what a reasonable delay is in a complex case involving multiple accused.

115Despite the many downsides to severing accused, there will be cases where the delays generated by a joint trial will become unreasonable. Delay that is “caused by a co-accused cannot be ignored in assessing whether an individual accused’s right to be tried within a reasonable time has been reached”: Manasseri, at para. 323.

116This is particularly true where the individual accused has done what he or she can to vindicate his or her rights. Considered in the entire context of a joint trial, where an individual accused’s right to be tried within a reasonable time is at risk, remedies need to be fashioned before that accused’s rights are entirely sacrificed. As Moldaver J. noted in Vassell, at para. 7, the Crown must take a “proactive stance”. The Crown bears the obligation of bringing “all accused to trial within a reasonable time” and “cannot close its eyes to the circumstances of an accused who has done everything possible to move the matter along, only to be held hostage by his or her co-accused and the inability of the system to provide earlier dates”: Vassell, at para. 7. See also: Manasseri, at para. 323.

117Mr. Ny retained counsel almost immediately in the Ontario Court of Justice. Mr. Phan had counsel by his second appearance in this court. Other than one appearance where counsel had an emergency, they were represented by counsel who were pushing the matter forward. The record is replete with counsels’ comments about wanting to move the matter forward. What follows is a sampling of these comments:

• September 26, 2014: “[counsel] and I are very anxious to move Mr. Phan and Mr. Ny’s matters along”.
• November 14, 2014: “we’ll agree to bring this matter back in two weeks, but we are expecting to set a JPT on that next date”.
• November 28, 2014: “I had expected we would be setting a judicial pre-trial on today’s date, so I’m kind of hoping that on the next date this matter will be – we can move forward”.
• March 20, 2015: counsel notes her preparedness to have the matter go over, but that she was “prepared to set JPT dates on today’s date”.
• April 17, 2015: “[counsel] and myself have been ready to conduct a judicial pre-trial for quite some time now”. This comment was repeated on May 11, 2015.
• June 24, 2015: “[counsel] and myself have been prepared to conduct a judicial pre-trial in this matter since January of this year. I mean, I would be agreeable to that, but I’m not waiving 11B.”
• October 2, 2015: “[counsel] and myself are both available for trial dates as early as December of 2015. … I mean, it’s a pretty long delay from now until September 2016, and this matter has been going on for some time now”.
• January 8, 2016: “[counsel] and myself are available to go forward on these September trial dates and we had dates available as early as January of 2015”.
• March 23, 2016: “[counsel] and myself have had trial dates available as early as January 2015. And while I’m sympathetic to [counsel’s] medical issues, obviously we don’t wish to have any further prejudice or delay to our client. So [counsel] and myself are opposed to this adjournment.”

118While there are fleeting comments by the Crown regarding its desire to move the matter along, they pale in comparison to counsel for the applicants. In addition, the Crown consented to the late-in-the-day adjournment application that delayed the start of the trial another six plus months.

119While the Crown eventually consented to severing the applicants from their co-accused, it was only after having consented to the initial application to adjourn the trial to March 20, 2017. While some period of delay above the ceiling would have been perfectly reasonable in this case, even a number of months, a year-and-a-half above the ceiling for Mr. Phan, and almost that for Mr. Ny, simply cannot be justified as reasonable.

120Other than the multiple accused nature of the case, this was not a complex one. The accused were all present in the grow operation when the police entered with a warrant. The Crown’s witness list will be largely comprised of police officers who attended at the search.

121The Crown has not led evidence to suggest legal complexity in the case. While there may be an application to challenge the search warrant, and I am informed that it rests at least partially on confidential informant information, these are far from novel or new issues. I have been shown nothing to suggest legal complexity that would justify any delay above the ceiling.

122Delay that arises from complexity is to be assessed for its reasonableness in all of the circumstances. The complexity here arises from the multiple-accused nature of the prosecution. In this case, the amount of delay exceeds what is reasonable. While the applicants could have done more to vindicate their s. 11(b) rights – they could have asked for severance – their failure to make this request does not transform an unreasonable delay into a reasonable one.

123They repeatedly asserted their desire to move forward and get on with the case. More than once they placed the Crown squarely on notice that s. 11(b) was not being waived. One of these occasions was in the context of the late-in-the-day adjournment application, which the Crown consented to over the applicants’ objections. At a minimum, this was the time to take a stand. The Crown had responsibility over this joint trial. It could have opposed the adjournment request. It could have severed the accused. The Crown did neither.

124The adjournment triggered another half-year delay. These six months alone tip the balance to unreasonableness in this case.

125In the end, the delay above the ceiling is not reasonable in a Jordan world. This leaves the transitional nature of the case to be considered.

(d) Transitional Cases

126Transitional exceptional circumstances may justify delay above the ceiling if the Crown shows that the delay is justified because of a reasonable reliance on the law as it existed at the time that the delay was accumulating. As well, cases of moderate complexity may exceed the ceiling in jurisdictions with institutional delay issues. Brampton qualifies as such a jurisdiction.

127Crown counsel rightly points out that the rule of thumb prior to Jordan was that co-accused delay was considered neutral delay in the s. 11(b) calculus. As Simmons J.A. held in L.E., at para. 62, “ordinarily”, delay caused by a co-accused is considered neutral in the s. 11(b) analysis. See also: Whylie, at para. 24; R. v. Sapara, 2001 ABCA 59, at paras. 57-58, leave to appeal ref’d [2001] S.C.C.A. No. 237. Crown counsel argues that the Crown was operating on this understanding of the law and it is unfair to change the rules this late in the day.

128While I agree with the general proposition that co-accused delay was “ordinarily” treated as neutral delay under Morin, it was never an iron-clad rule. It was the presumptive rule. Jordan and Vassell were not the first cases to introduce the idea that Crown counsel has a responsibility to continuously monitor its decisions that might lead to unreasonable delay. As noted in R. v. Schertzer, 2009 ONCA 742, at para. 146: “We accept that courts should be hesitant to second guess or monitor the tactical or strategic decisions of Crown counsel in deciding the order in which cases are tried. But where that decision leads to an unreasonable and unnecessary delay, the courts must protect the accused.”

129Even prior to Jordan, this case deserved more attention, on the record, long before the time that the severance took place. The amount of delay caused by the co-accused, between the gyrations around getting funding, just to be abandoned in the end, and the setting of the trial date, and then adjournment of the trial date, led to significant delay. Even under the old law, there was an obligation to better protect the applicants who were asserting their desire to move forward.

130As for institutional delay, there is a clear 10.5 months in the Ontario Court of Justice. It is unclear how much institutional delay is actually present in this court because the initial trial date was set according to the schedule of counsel for the applicants’ co-accused. Because he was not available for almost 15 months when the date was set, his first available date was simply accommodated.

131While Moldaver J.’s comments in Jordan about not allowing a repeat of Askov are critically important and to be heeded, there is simply too much delay in this case. I find that it would have been unreasonable under Morin and it is surely unreasonable under Jordan.

(VI) Conclusion

132The proceedings against Mr. Phan and Mr. Ny are stayed.

Footnotes

1. 1The term “net delay” is used by Gillese J.A. in R. v. Coulter, 2016 ONCA 704, at para. 35, to describe the gross period of time between the charge and the end or anticipated end of trial, minus any defence delay.
2. 2While at para. 81, Jordan refers to the fact that discrete events may also justify a delay exceeding the ceiling, paras. 75 and 105 clearly state that delay resulting from discrete events should be subtracted from the net delay.
3. 3Manasseri, at para. 323.
4. 4While counsel to Mr. Phan did not become the official counsel of record until December 12, 2014, as of September 26, 2014, she consistently appeared on his behalf. Counsel to Mr. Phan also appeared on behalf of Mr. Ny from time to time.
5. 5R. v. Rowbotham (1988), 1988 147 (ON CA), 41 C.C.C. (3d) 1 (Ont. C.A.).