Court File and Parties

COURT FILE NO.: CR-15-50000659-0000 DATE: 20170302 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – THANH TUNG PHAN Applicant

Counsel: Jay Spare, for the Crown Richard Posner, for the Applicant

HEARD: January 16 and 18, 2017

RULING ON STAY APPLICATION PURSUANT TO s. 11(b) OF THE CHARTER

B. P. O’Marra J.

Overview

[1] The applicant was charged with first degree murder. He has been in custody since his arrest on April 10, 2014. He was committed for trial on November 5, 2015. At a judicial pretrial on February 24, 2016, pretrial motions were scheduled to commence on November 7, 2016 and a trial date was set for January 16, 2017.

[2] The evidence and submissions on the pretrial motions proceeded on November 7-10 and 16, 2016 inclusive. I advised counsel that I would have rulings on all pretrial matters by January 4, 2017 with reasons to be released at a later date. This schedule would allow the jury trial to proceed on January 16, 2017.

[3] There was no mention of an application to stay proceedings based on delay either at the judicial pretrial on February 24, 2016 or during the five days of pretrial motions in November of 2016. The Supreme Court of Canada decision in R. v. Jordan, 2016 SCC 27 had been released on July 8, 2016. The Chief Justice of the Superior Court of Ontario released a Practice Direction for such applications effective September 1, 2016. The practice direction related to both transitional cases and charges laid after July 8, 2016.

[4] On December 30, 2016, I received a three-page Notice of Application for a stay pursuant to sections 11(b) and 24(1) of the Charter. It was dated December 16, 2016 but had not been received by the trial office until December 29, 2016. The timing of this application was both unfortunate and unsatisfactory. However, the Crown submitted that they could file responding materials and be in position to make submissions on the motion by January 16, 2017. I was advised by the trial office that the jury panel for this case would not be available until January 19, 2017 in any event. The timing of this application is a significant factor in the Jordan analysis.

[5] Submissions on the motion were completed on January 16, 2017. On January 18, 2017 I dismissed the application with reasons to follow. These are my reasons.

The Jordan Framework

[6] In R. v. Coulter, 2016 ONCA 704, the Court summarized the new framework as follows at paras. 34-41:

34 Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).

35 Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).

36 Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).

37 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).

38 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).

39 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).

40 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).

41 The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the “Transitional Cases”) (Jordan, para. 96).

Delay Caused by the Conduct of the Defence

[7] In R. v. Gandhi, 2016 ONSC 5612, Justice Code referred to the following general propositions at para. 23:

23 The exact impact of Jordan on the above lines of authority, concerning delay caused by pre-trial motions and pre-trial proceedings initiated by the defence, is not entirely clear and it will inevitably emerge slowly and incrementally from the post-Jordan jurisprudence. However, a number of general propositions can be stated, based on the new Jordan framework:

• “Legitimate” defence actions, such as pre-trial motions with arguable merit, are “generally” included in the 30-month “ceiling.” Accordingly, they are no longer excluded as defence delay, nor are they regarded as merely inherent or neutral delay. This is a change from the earlier jurisprudence;
• On the other hand, defence actions that are not “legitimate,” such as “frivolous” pre-trial motions, will continue to be treated as defence delay. In this regard, the Jordan majority appears to have followed this aspect of Schertzer;
• Defence unwillingness to proceed or defence unavailability or “other defence actions or conduct” may also directly cause delay, provided “the court and the Crown are ready to proceed.” For example, on the facts of R. v. Jordan, supra, at paras. 14 and 120-124, the accused “changed counsel and requested an adjournment” shortly before trial. In addition, counsel was unavailable on the “last day scheduled for the preliminary inquiry,” which resulted in the need to set a “continuation date.” These two events caused delays of four months and one and a half months, which were both attributed to the defence. In the companion case, R. v. Williamson, 2016 SCC 28 at paras. 21-2, the Court attributed one and a half months’ delay to the defence because the accused was not available until the last of four dates offered by the Court for his first appearance after committal. There appears to be no change to the s. 11(b) law, in these circumstances;
• Complex pre-trial proceedings that are particularly associated with substantial delays, such as an “extradition” hearing (and perhaps Third Party Records Motions and proceedings in the nature of certiorari), or a “large number of … pre-trial applications,” or proceedings involving “novel or complicated legal issues” are not “delay attributable to the defence,” assuming they are “legitimate” and not “frivolous.” However, they may amount to “exceptional circumstances” that justify lengthening the 30-month “ceiling.” See: R. v. Jordan, supra at paras. 72, 77 and 81. At the very least, this is a formal or nominal change from the earlier jurisprudence in how this kind of delay is treated. It remains to be seen whether this change will also make a practical difference, in this kind of case, to s. 11(b) outcomes.

Reliance on Pre-Jordan Principles

[8] Where delay exceeds the thirty-month ceiling, a transitional circumstance may arise. It will only apply where the Crown establishes 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 since the parties’ behaviour “cannot be judged strictly against a standard of which they had no notice.” Jordan, at para. 96. In the case before me, very experienced and able counsel for the applicant did not mention, let alone file, a delay application until 5.75 months after Jordan was released and 1.5 months after five days of pretrial motions. This is a firm basis to find that the parties reasonably relied on the pre-Jordan principles until shortly before a jury was to be selected.

Total Delay

[9] The parties agreed that the total delay from the charge to the anticipated end of trial was 34.5 months. The Crown submits that the defence delay is over five months.

Critical Events

[10] In Jordan at para. 37, the Court referred to the “unduly complex…minute accounting… (and) micro-counting” process under the Morin framework. With that in mind I do not propose to refer specifically to each and every step in this chronology. Rather, I will refer to the salient dates and events.

Ontario Court of Justice

[11] Between the first appearance on April 10, 2014 and August 1, 2014, counsel appeared on behalf of the applicant on a “limited” retainer basis. By the latter date a substantial amount of disclosure had been made but there were still outstanding matters. On August 29, 2014 a judicial pretrial was set on consent for October 28, 2014.

[12] Counsel appeared on behalf of the applicant at the judicial pretrial on October 28, 2014 but was not yet retained for the preliminary hearing. The court urged the applicant to complete the retainer issues and the matter was adjourned on consent to November 27, 2014 for that purpose as well as for further disclosure.

[13] In court on November 27, 2014 there was a discussion of ongoing disclosure issues and also that counsel had yet to be retained for the preliminary hearing. On consent the matter was adjourned to December 12, 2014. By an email to the Crown dated December 2, 2014 counsel for the applicant advised that he was not yet retained to conduct the preliminary hearing but expected he would be. He also advised that he had instructions from the applicant to make certain admissions. On that basis he advised that dates for a preliminary hearing could be set.

[14] On December 12, 2014 preliminary hearing dates were set for October 13 through November 15, 2015. The agent for counsel advised that counsel had “availability” in March of 2015 but did not dispute the Crown’s statement that the parties were realistically available to start the preliminary hearing in September of 2015.

[15] In the Superior Court on February 3, 2016 the setting of pretrial and trial dates was adjourned to February 24, 2016 at the request of the applicant so he could finalize the retainer of counsel.

Defence Delay and Net Delay

[16] A finding that delay was caused solely or directly by the conduct of the defence is not a finding of fault: R. v. Gandhi, 2016 ONSC 5612 at para. 44. Section 11(b) of the Charter is “not concerned with assigning blame, but only in the cause of delay.” R. v. Philips (1993), 80 CCC (3d) 167 (Ont. C.A.) at p. 173.

[17] In the Ontario Court of Justice I find that there were two periods of defence delay:

• By August 1, 2014 substantial disclosure had been made. The agent for counsel advised the court that “there is a limited retainer in place at the moment” and requested that the applicant return by video link on August 29, 2014. This amounted to a one-month delay in setting a judicial pretrial date. Outstanding disclosure is not a basis for the defence to decline to set dates for a judicial pretrial: Gandhi, at para. 35.
• A judicial pretrial was conducted on October 28, 2014 but counsel for the applicant was not prepared to set dates for the preliminary hearing until December 12, 2014. This amounted to a delay of 45 days.

[18] In the Superior Court the applicant concedes that the delay between February 3 and February 24, 2014 (21 days) before pretrial and trial dates could be set related to retainer issues.

[19] The total defence delay was 3.25 months. That would make the net delay 31.25 months. This exceeds the presumptive ceiling (barely) and is presumptively unreasonable.

Transitional Exceptional Circumstances

[20] In this transitional case the best evidence that counsel relied on the prior state of the law is the very late-arriving application for a stay. Similar to R. v. Brissett, 2017 ONSC 401 at para. 38, it is significant that the issue was not raised or referred to at the judicial pretrial or during the several days of pretrial motions in November of 2016. I am satisfied that the transitional exceptional circumstance referred to in Jordan applies in this case. The delay in this case modestly exceeds the presumptive ceiling. The Crown did not create any unnecessary delay. The application does not succeed based on the Jordan principles.

Morin Analysis

[21] The factors to be considered and the onus of proof on pre-Jordan applications under s.11(b) of the Charter were set out in R. v. Morin, [1992] 1 S.C.R. 771 at paras. 31-33:

The Approach to Unreasonable Delay – The Factors

31 The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith, supra, "[i]t is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable?" (p. 1131). While the Court has at times indicated otherwise, it is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows:

1. the length of delay;
2. waiver of time periods;
3. the reasons for the delay, including (a) inherent time requirements of the case, (b) actions of the accused, (c) actions of the Crown, (d) limits on institutional resources, and (e) other reasons for delay; and
4. prejudice to the accused.

These factors are substantially the same as those discussed by this Court in Smith, supra, at p. 1131, and in Askov, supra, at pp. 1231-32.

32 The judicial process referred to as "balancing" requires an examination of the length of the delay and its evaluation in light of the other factors. A judicial determination is then made as to whether the period of delay is unreasonable. In coming to this conclusion, account must be taken of the interests which s. 11(b) is designed to protect. Leaving aside the question of delay on appeal, the period to be scrutinized is the time elapsed from the date of the charge to the end of the trial. See R. v. Kalanj, [1989] 1 S.C.R. 1594. The length of this period may be shortened by subtracting periods of delay that have been waived. It must then be determined whether this period is unreasonable having regard to the interests s. 11(b) seeks to protect, the explanation for the delay and the prejudice to the accused.

33 The role of the burden of proof in this balancing process was set out in the unanimous judgment of this Court in Smith, supra, at pp. 1132-33, as follows: I accept that the accused has the ultimate or legal burden of proof throughout. A case will only be decided by reference to the burden of proof if the court cannot come to a determinate conclusion on the facts presented to it. Although the accused may have the ultimate or legal burden, a secondary or evidentiary burden of putting forth evidence or argument may shift depending on the circumstances of each case. For example, a long period of delay occasioned by a request of the Crown for an adjournment would ordinarily call for an explanation from the Crown as to the necessity for the adjournment. In the absence of such an explanation, the court would be entitled to infer that the delay is unjustified. It would be appropriate to speak of the Crown having a secondary or evidentiary burden under these circumstances. In all cases, the court should be mindful that it is seldom necessary or desirable to decide this question on the basis of burden of proof and that it is preferable to evaluate the reasonableness of the overall lapse of time having regard to the factors referred to above. I do not read the Askov decision as having departed from this statement although portions of the reasons of Cory J. emphasized certain aspects of the evidentiary burden on the Crown.

Time in the Ontario Court of Justice

[22] The applicant was arrested on April 10, 2014. As of August 1, 2014 substantial disclosure had been provided. Counsel had not yet been retained to set dates for a judicial pretrial. This period of less than four months on a murder charge is a reasonable intake period and should be classified as neutral.

[23] The time between August 1 and August 29, 2014 is attributed to the defence. A judicial pretrial could have been set by August 1, 2014. It was not until August 29, 2014 that it was set for October 28, 2014. The approximately sixty days between August 29, 2014 and October 28, 2014 was reasonable and necessary for a judicial pretrial on this charge and the need to schedule a month-long preliminary hearing. This is properly classified as inherent time: R. v. Nguyen, 2013 ONCA 169 at para. 54.

[24] On October 28, 2014 the judicial pretrial was held but dates for the preliminary hearing could not be set due to the “limited retainer” of counsel. The time between October 28, 2014 and December 12, 2014 is attributed to the defence.

[25] On December 12, 2014 dates for the preliminary hearing were set for October 13, 2015 – November 15, 2015. Agent for counsel indicated that Mr. Lockyer had “availability” in March of 2015, with no further specifics. The earliest dates available to the Court started on August 12, 2015. There was no evidence that counsel were available to conduct a four-week preliminary hearing in March of 2015.

[26] For the eight months between December 12, 2015 and August 12, 2015 it is reasonable to apportion four months to neutral/inherent delay (for counsel to clear their schedules) and four months to institutional delay. For the six-month period preceding October 13, 2015, a period of two months should be allocated to preparation for the preliminary hearing. Thus, for the period of December 12, 2014 – October 13, 2015, there is a total institutional delay of eight months.

[27] The preliminary hearing commenced as scheduled on October 13, 2014. The committal for trial was on November 5, 2014. The time to complete the hearing is inherent/neutral.

Time in the Superior Court

[28] The first appearance was on December 16, 2014. The time from committal in the Ontario Court to this date was reasonable and should be classified as neutral. The matter was adjourned to February 3, 2016 and February 24, 2016 at the request of the applicant. This is defence delay.

[29] On February 24, 2016 pretrial motions were set for several days in November 2016 and trial was set for January 16, 2017. For that eleven-month span I would attribute sixty days to schedule and prepare for the pretrial motions and thirty days to prepare for the trial. That leaves eight months of institutional delay.

Total Institutional Delay

[30] Based on eight months in the Ontario Court and eight months in the Superior Court, there is a total institutional delay of sixteen months. That total is well within the guidelines (which are not time limits in any event): R. v. Morin, at p. 799, R. v. Khan, 2011 ONCA 173, at para. 22.

Waiver and Prejudice

[31] The Crown does not allege there were any specific waivers but points to various periods of defence delay. The applicant does not allege any specific prejudice beyond being in custody since his arrest. I do not dismiss this aspect. However, bearing in mind the seriousness of the charge and the relatively expeditious journey to trial, it is not an overwhelming factor.

Societal Interest and Balancing Process

[32] The Crown alleged that the applicant was a party to first degree murder. There is a significant societal interest in an adjudication on the merits. In considering all the factors based on the findings I have made and the onus resting on the applicant, the application is dismissed.

B. P. O’Marra J.

Released: March 2, 2017