Court File and Parties

Court File No.: 16-0008 Date: 2017-02-17 Ontario Superior Court of Justice

Between: Her Majesty The Queen – and – Brandon Dean Brooks and Bryan Frederick Styles, Applicants

Counsel: J. Chapman, for the Respondent J. Fisher, for the Applicant Bryan Frederick Styles George Fournier, for the Applicant Brandon Dean Brooks

Heard in Gore Bay: February 9, 2017

Ruling on Application

DEL FRATE, J.

[1] The applicants and two others were charged with a number of drug related offences, possession of monies obtained by the commission of an offence, and obstruction of justice. The charges against the two other accuseds have been disposed.

[2] These charges arise from an incident on April 29, 2014, in the Village of M’Chigeeng on Manitoulin Island. A trial has been scheduled. Jury selection is to take place on April 10, 2017, and the estimated completion date is April 18, 2017.

[3] Both applicants seek a stay of proceedings. They allege that their rights pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms have been infringed due to the delay in proceeding to trial within a reasonable period of time considering that close to 36 months would have elapsed from the laying of the charges to the anticipated completion of the trial.

[4] Such a delay exceeds the reasonable expectations either under *R. v. Morin*, [1992] 1 S.C.R. 771, or more recently under *R. v. Jordan*, 2016 SCC 27, 398 D.L.R. (4th) 381.

[5] A summary of the events and relevant periods is as follows:

• April 29, 2014 – August 27, 2014: Date of arrest to 1st appearance and setting a judicial pre-trial date at the Ontario Court level
• August 27, 2014 – October 20, 2014: Date from OCJ JPT until Crown disclosure to Bryan Styles new counsel
• October 20, 2014 – December 15, 2014: Assignment Court for an OCJ pre-trial
• December 15, 2014 – April 30, 2015: Assignment Court and setting of a date for preliminary hearing
• April 30, 2015 – May 25, 2015: Adjournment of the preliminary hearing due to the preliminary court judge being ill
• May 25, 2015 – November 26, 2015: Adjournment of the preliminary hearing since the applicant Brooks failed to appear
• November 26, 2016 – February 1, 2016: Commencement of the preliminary hearing
• February 1, 2016 – March 14, 2016: Completion of the preliminary inquiry
• March 14, 2016 – June 21, 2016: Committal for trial and JPT conducted
• June 21, 2016 – August 16, 2016: JPT completed and attendance at assignment court for setting a trial date
• August 16, 2016 – April 10-18, 2017: Trial date set and anticipated completion of trial

Position of the Applicants

Mr. Styles

[6] The applicant Styles submits that, under either the Jordan or Morin guidelines, there has been unreasonable delay in getting this matter to trial. At all times, Styles was prepared to proceed to any of the proceedings and in fact did so even without full disclosure by the Crown.

[7] If an earlier date could not have been obtained, it was not because Styles had caused any of the delay. The fact that the co-accused may have caused a delay should not impact on Styles to have a trial within a reasonable time. In particular, the periods of November 26, 2015, to February 1, 2016, when the co-accused Brooks failed to appear for the preliminary hearing, and the period between April 30, 2015, to November 26, 2015, arising from the judge’s inability to attend due to illness should not impact on him as well.

[8] The applicant Styles also submits that the Crown has failed to meet its onus in providing sufficient evidence to establish the judge’s unavailability on the date of the commencement of the preliminary hearing. That period of delay amounted to over six months.

Mr. Brooks

[9] The applicant Brooks adopts the same position as Styles, save and except that he accepts the period of November 26, 2015, to February 1, 2016, as his delay considering that he failed to appear at the scheduled date for the preliminary hearing.

Position of the Crown

[10] The Crown submits that under either Morin or Jordan the delay is not unreasonable if one calculates the reasons for such a delay.

[11] Although the anticipated completion date of the trial is close to 36 months and therefore presumptively over the 30 months enunciated in Jordan, the Crown submits that it has met the onus of establishing an exceptional discrete event, namely the inability of the trial judge to attend on May 25, 2015. Further, it submits that approximately 2 months of delay are attributable to the applicant Brooks, due to his failure to attend on November 26, 2015.

Law and Discussion

[12] It is clear from the comments in Jordan and more recently in *R. v. Coulter*, 2016 ONCA 704, 340 C.C.C. (3d) 429, that all parties in the administration of justice must work in concert to achieve speedier trials. All parties therefore have an obligation to achieve that purpose.

[13] To achieve this, 18 months have been designated as a reasonable time for the completion of a trial in the Provincial courts and 30 months for the completion of a trial in the Superior courts.

The New Framework Summarized

[14] In Coulter, Gillesse J. describes the formula to be followed in calculating these timelines at paras. 34-40. I have reproduced it below for reference:

1. Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (*Jordan*, at para. 47).
2. Subtract defence delay from the total delay, which results in the “Net Delay” (*Jordan*, at para. 66).
3. Compare the Net Delay to the presumptive ceiling (*Jordan*, at para. 66).
4. If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (*Jordan*, para. 47). If it cannot rebut the presumption, a stay will follow (*Jordan*, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (*Jordan*, para. 71).
5. Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached (*Jordan*, para. 75).
6. If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (*Jordan*, at para. 80).
7. If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (*Jordan*, para. 48).
8. The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the “Transitional Cases”) (*Jordan*, para. 96).

[15] In summary, one looks at the date the charges were laid to the anticipated completion of the trial and applies either the 18 months or 30 months suggested as guidelines. Should the total delay exceed those guidelines, then the Crown must establish “exceptional circumstances”. These circumstances would consist of “discrete events” and “particularly complex cases”. Should the Crown succeed in establishing exceptional circumstances, then the period of time would be deducted from the total delay.

[16] Further, defence delay which would arise from a defence waiver or “defence cause delay” would be deducted as well to arrive at the Net Delay.

[17] Finally, Jordan provides guidance as to how to deal with “exceptional” circumstances and in particular discrete events:

71 It is obviously impossible to identify in advance all circumstances that may qualify as “exceptional” for the purposes of adjudicating a s. 11 (b) application. Ultimately, the determination of whether circumstances are “exceptional” will depend on the trial judge’s good sense and experience. The list is not closed. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.

72 Commencing with the former, by way of illustration, it is to be expected that medical or family emergencies (whether on the part of the accused, important witnesses, counsel or the trial judge) would generally qualify. Cases with an international dimension, such as cases requiring the extradition of an accused from a foreign jurisdiction, may also meet the definition.

Application to the Facts

[18] In this case, the Crown submits that this was “a particularly complex matter” because it was dealing with the four accused and the numerous lawyers involved as a result of the change of counsel. Further, the Crown points to the discrete events as something that it could not control. In particular, the unexpected illness of the preliminary court judge on April 30, 2015.

[19] I do not accept that the four accused and the six or seven different lawyers would render this case “complex”. Although the logistics of dealing with the various counsel may have made the case more challenging, it should not have rendered the case more complex. The facts are not that unusual considering that most of the evidence was collected at the time of the arrest.

[20] The “discrete event” of the judge falling ill on the morning of the commencement of the preliminary hearing must be considered.

[21] The applicants submit that ordinarily some type of evidence is required to substantiate the discrete event. All that is available in this case is the transcript of the events of April 30, 2015, at which point the clerk of the court made this statement:

“This Ontario Court of Justice is in session. Unfortunately, our presiding judicial official is unable to attend court at this time, so we are simply going to adjourn the matters. I have been authorized by the Regional Senior Justice under ss. 474(2) of the Criminal Code to adjourn matters on todays’ docket to another sitting of the Ontario Court of Justice in Gore Bay. I’ll run the list in order.”

[22] All parties were represented by counsel and no objections were raised by any of the counsel. The matter was then adjourned to May 4, 2015, so that dates could be canvassed. It was then adjourned to May 25, 2015, at which time a new date was set for November 26, 2015.

[23] On November 26, 2015, the preliminary hearing was adjourned since the applicant Brooks did not attend. It subsequently commenced on February 1, 2016, and was completed on March 14, 2016.

[24] Although it would appear from Jordan that “illness” is “a discrete event”, the applicants submit that further evidence should have been led by the Crown. They were not specific as to what that evidence should be.

[25] This requirement for substantiating evidence could lead to all kinds of unexpected and unreasonable requests which may prolong the proceedings. From a practical perspective, the administration of justice deals with the presumption that judges attend at the scheduled time and place and would have a bona fide reason for not being present. Any other presumption may affect the integrity of the administration of justice.

[26] It is interesting to note that the affidavit of Jennifer Clegg dated January 13, 2017, filed on behalf of the applicant Brooks, states the following:

That I am advised by Mr. Sandberg and do verily believe that the preliminary inquiry was not heard on that day because no judge attended in the Ontario Court of Justice. Counsel was later advised that the assigned judge was ill on that day.

[27] Although no reason for the judge’s unavailability was placed on the record, it would appear that all were satisfied that the matter could not proceed due to the non-attendance of the judge. Obviously, the issue of illness was raised at some point since it is reflected in Ms. Clegg’s affidavit.

[28] In my view, the judge’s non-attendance on that day would be considered a “discrete event”.

[29] The additional applicants’ submission that the six month delay in resuming the preliminary hearing is unreasonable is not a valid consideration. One must keep in mind the geography and the scheduling of cases on Manitoulin Island.

[30] There are two court sites on Manitoulin. One in Gore Bay where both Superior Court matters and Ontario Court matters are heard, and the other in Wikwemikong where only Ontario Court matters are heard. These two sites serve a population of approximately 12,500 people. Both jurisdictions have a particular judge assigned with others judges assisting when necessary.

[31] The Ontario Court sits on Tuesdays in Gore Bay and on Wednesday in Wikwemikong. Additional days are scheduled when necessary and requested.

[32] The Superior Court sits one week monthly plus has three jury sittings of two to three weeks yearly depending on the demand. Additionally, pre-trials and motions are heard on one day per month.

[33] When the assigned judges are not sitting on Manitoulin Island, those judges are assigned to other court venues in the northeast. By and large, although not perfect, the system can reasonably accommodate all requests in Superior Court. However, in Ontario Court there are some challenges and the government has recognized this by appointing a resident judge to handle Manitoulin Island. This appointment is scheduled for some time in 2017.

Transitional Circumstances

[34] I must also consider that this is a transitional case. Accordingly, what were the expectations of the parties prior to Jordan? Although the applicant Styles submits that he was prepared to accept any of the dates that were offered by the courts one has to consider the reasonableness of how this case proceeded in tandem with three other accuseds.

[35] The charges initially were against all four accused on the same information and indictment. Accordingly, the logistics were somewhat more challenging. Although a severance was considered by the applicant Styles, it would not have been available to him until such time as the proceedings reached the Superior Court. Such application was never brought and under the circumstances, it may have been a reasonable decision, since it may not have been successful and further delay may have resulted.

Multiple Accuseds

[36] Whether defence delay in a case with multiple accused should be attributed to the individual accused who caused it or the case as a whole was considered in both *R. v. Ny*, 2016 ONSC 8031 and subsequently in *R. v. Brissett*, 2017 ONSC 401. In Ny, the total delay was over 48 months, with significant delay caused by two of four co-accused. Those two accused were eventually severed. Fairburn J. concluded that the significant defence delay caused by two co-accused should not apply to the other two co-accused who were responsible for very little delay; that Jordan supported an individualized approach to defence delay: see paras. 39-40, and 54.

[37] Unlike Ny, the suggested defence delay in the matter before me is very short. Severance was unlikely. In Brissett, Code J. determined that where severance is not a realistic or necessary remedy, short period of defence delay should be attributed to the case as a whole: see para. 48. I agree. Therefore, while two months delay is attributable to the applicant Brooks, it applies to both accused.

The Morin Principles

[38] The applicants also asked me to consider that the Morin guidelines have been breached and thus I should grant the relief requested. In my view, no such breaches have been proven. Even though there were some delays with the disclosure, such delays did not prejudice the applicants. Although both had been in custody early on in the proceedings, and even though the applicant Brooks is still in custody, it appears that there were other factors that prevented their release.

[39] In regards to the applicant Styles, after the discrete event in May 2015, considerable concessions were made by the Crown on his recognizance and it appears that he has been out of custody for this particular matter. And, as mentioned, the applicant Brooks is still in custody for numerous other matters.

Conclusion

[40] As mentioned previously, in calculating the “net delay” both discrete events and defence delay must be deducted.

[41] In this case, the total delay from the laying of the charges to the anticipated completion of the trial is just under 36 months.

[42] The discrete event delay, being May 25, 2015, to November 26, 2015, some six months, must be deducted.

[43] The defence delay, being November 26, 2015, to February 1, 2016, some two months, must also be deducted.

[44] Therefore, a total of eight months must be deducted from the total delay of 36 months. The result is a delay of 28 months, and the presumptive ceiling has not been exceeded. Accordingly, a stay pursuant to Jordan is not granted.

[45] Even if I am incorrect, and an individualized approach to defence delay is applied, the total delay experienced by the applicant Styles after deducting the discrete event is just under 30 months, and the presumptive ceiling still has not been exceeded.

[46] Furthermore, to succeed under the Morin principles, a degree of prejudice must be proven. I am not satisfied that the applicants have succeeded in proving prejudice.

[47] Accordingly, the application fails on both the Jordan and Morin principles, and it is dismissed.

The Honourable Mr. Justice Robert G.S. Del Frate

Released: February 17, 2017