Court File and Parties
Court File No.: CR-15-30000550-0000 Date: 2017-03-15 Ontario Superior Court of Justice
Between: Her Majesty the Queen, Respondent Counsel: Rosemarie Juginovic, for the Crown Respondent
- and -
Irina Gordon, Applicant Counsel: Barry Fox, for the Applicant Defendant
Heard: December 2, 2016
Before: T. Ducharme J.
Reasons for Judgment
Section 11(b) Charter Application
[1] This is a s. 11(b) Charter of Rights application brought by the Applicant, Irina Gordon, alleging violation of her right to be tried within a reasonable time. She is charged in a nine count indictment with fraud, forged documents and fail to comply with a bail. The delay application was argued before me on December 2, 2016 and the trial is scheduled to start on January 9, 2017 and it is estimated that the trial will take four to six weeks and will finish by February 17, 2017. On January 3, 2017, I indicated that my ruling was that her rights under s. 11 (b) were not violated and I dismissed the s. 11 (b) application. These are my reasons for judgment on the Charter application.
[2] The applicant, Ms. Gordon, was arrested on May 15, 2014. In its recent decision in R. v. Jordan, the majority of the Court repeatedly stated that the relevant time period runs from "the charge to the actual or anticipated end of trial." [1] Thus, the delay for Ms. Gordon to February 17, 2017 is 33 months and 3 days. This time exceeds the ceiling set in Jordan of "30 months from the charge to the actual or anticipated end of trial." However, the majority went on to hold that "delay attributable to the defence must be subtracted" and that this subtracted period includes both "delay waived by the defence" and "delays caused solely or directly by the defence's conduct." It is only then that it can be determined whether the case conforms to the guidelines set down in Jordan.
[3] When one looks at the total delay in this case, several things become clear: first, it took too long for the preliminary inquiry to commence. The preliminary inquiry did not start until September 24, 2015, almost seventeen months after the arrest of Ms. Gordon; second, the time required for the preliminary inquiry was dramatically overestimated by the defence. The preliminary inquiry was initially set for 5 days and Mr. Fox conceded committal on the second day, September 29, 2015.
[4] I shall first outline the delay analyzed under the Askov/Morin principles. I will then outline the delay under the Jordan principles. Finally, I shall analyze what result should be rendered in this transitional case.
The Delay under the Askov/Morin Principles
[5] Under the approach in Askov and Morin, the factors to be considered in analyzing whether a delay is unreasonable are: (A) the length of the delay; (B) waiver of time periods; (C) the reasons for the delay, including (1) inherent time requirements of the case, (2) actions of the accused, (3) actions of the Crown, (4) limits on institutional resources, and (5) other reasons for delay; and (D) prejudice to the accused.
(A) The Length of the Delay
[6] In considering the total length of delay, one should consider the administrative guidelines set out in R. v. Morin, supra, of 8 to 10 months following the intake period to the completion of the preliminary inquiry and another 6 to 8 months from committal to trial. In so doing, it must be kept in mind that these guidelines are not to be applied as if they were judicially developed limitation periods.
[7] For the purposes of the s. 11 (b) analysis, the concern is the delay attributable to actions of the Crown or institutional delay ("actionable delay"). This obviously does not include the delay that is deemed to be neutral, such as intake periods, or the delay caused by or waived by the applicants.
(B) Waiver of Time Periods
[8] An accused person may waive his or her rights under s. 11 (b) either in their entirety or, more commonly, by agreeing that specific time periods need not be considered in the overall assessment of reasonableness. A waiver must be clear and unequivocal with full knowledge of the rights guaranteed by s. 11(b) and of the effect waiver will have on those rights. Where no real choice or option exists, there can be no waiver. A waiver may be explicit or implicit. An explicit waiver ordinarily involves express advertence to the delay issue. An implicit waiver arises when it is appropriate to infer from the conduct of the defence that a particular period of delay is acceptable. For example, agreement to a future date for an appearance may be sufficient to constitute waiver:
Agreement by an accused to a future date will in most circumstances give rise to an inference that the accused waives his right to subsequently allege that an unreasonable delay has occurred. While silence cannot constitute waiver, agreeing to a future date for a trial or a preliminary inquiry would generally be characterized as more than silence. Therefore, absent other factors, waiver of the appellant's s. 11 (b) rights might be inferred based on the foregoing circumstances. R. v. Smith (1989), 52 C.C.C. (3d) 97 per Sopinka J. at 109 (SCC) [Emphasis added.]
But an important qualification to this is that the notion of waiver contemplates that a choice has been made between available options. Agreement to the inevitable, or the only option, does not constitute waiver. The onus is upon the Crown to prove or establish waiver.
(C) Reasons for the Delay
(1) The Inherent Time Requirements of the Case
[9] As Sopinka J. explained in R. v. Morin, [1992] S.C.J. No. 25 at para 41:
All offences have certain inherent time requirements which inevitably lead to delay. Just as the fire truck must get to the fire, so must a case be prepared. The complexity of the trial is one requirement which has often been mentioned. All other factors being equal, the more complicated a case, the longer it will take counsel to prepare for trial and for the trial to be conducted once it begins. For example, a fraud case may involve the analysis of many documents, some conspiracies may involve a large number of witnesses and other cases may involve numerous intercepted communications which all must be transcribed and analyzed. The inherent requirements of such cases will serve to excuse longer periods of delay than for cases which are less complex. Each case will bring its own set of facts which must be evaluate.
[Emphasis added.]
[10] In R. v. MacDougall, [1998] 3 S.C.R. 45 at para. 44, McLachlin J. stated that the inherent time requirements of a case consist of "the period of time that would normally be required to process a case, assuming the availability of adequate institutional resources." Importantly, the period of time attributable to the inherent time requirements of a case is neutral in terms of the s. 11 (b) analysis.
[11] The first part of the inherent time requirements of a case has been described as the intake requirements of a case. These include preliminary matters, such as applications for bail; applications for legal aid; retention of counsel by the accused; and disclosure by the Crown. As for delay involved in the holding of judicial pre-trials, the more recent case law from our Court of Appeal indicates that this should properly be considered part of the inherent time requirements of a case and the resulting delay is therefore neutral.
[12] Another important part of the inherent time requirements of a case is the time required for counsel to prepare for a case. As made clear in the above passage from Morin, the more complex the case, the longer the period required to properly prepare for it. The need for preparation can change the calculation of institutional delay between a set date and a preliminary inquiry or a set date and a trial date. This is recognized in R. v. N.N.M. (2006), 209 C.C.C. (3d) 436 (Ont. C.A.). Justice Juriansz made it clear that the time required for preparation is part of the inherent time requirements of the case and that this could affect the calculation of institutional delay. When discussing an "extraordinary delay" of almost a year between a set date and the preliminary inquiry, Juriansz J.A. stated at paras. 28 and 29:
In this case counsel did not even put their own availability on the record. Counsel merely stated that November 24, 2003, was the earliest date the court could provide. It is extremely doubtful counsel were available for the preliminary inquiry immediately. Counsel's availability is useful context for assessing the reasonableness of the total delay in the concluding balancing analysis. It is also worth noting that neither party allotted any time for counsel to prepare for the preliminary hearing. Counsel's preparation time would be part of the inherent time required in this case.
[Emphasis added.]
[13] As well, when discussing the assessment of the reasonableness of the total delay, Justice Juriansz at para. 70 observed:
Moreover, neither party in this case took into account the preparation time required by counsel. As noted above, Sopinka J. in Morin made clear that the time counsel require to prepare for trial and the other steps in the proceeding is inherently required.
[14] In Schertzer, 2009 ONCA 742, [2009] O.J. No. 4425, while the Ontario Court of Appeal did not mention N.N.M., the Court did say of the six-month period between the set-date appearance in this court and the trial date, "Ordinarily, this would be considered institutional delay, assuming the parties are otherwise ready to proceed." (Emphasis added.) I do not take this passage to mean that both parties must be ready to proceed the next day when setting a trial date or that institutional delay only commences when both parties are entirely ready to proceed. But I do take this passage from Schertzer, like the preceding passages from N.N.M., to be a clear recognition that when preparation is required for a preliminary inquiry or a trial, it is unreasonable to consider that the entirety of the delay from the set date should count as institutional delay against the Crown. Rather, the period of institutional delay should be reduced by the amount of time that would have been required for counsel to prepare. In making this calculation, a judge also should heed the comments of Sopinka J. in Morin, at para 42: "Account must also be taken of the fact that counsel for the prosecution and the defence cannot be expected to devote their time exclusively to one case. The amount of time that should be allowed counsel is well within the field of expertise of trial judges."
(2) Actions of the Accused
[15] In R. v. Morin, supra, Sopinka J. at p. 793 made it clear that the actions of the accused, though short of waiver, should nonetheless be taken into account:
This aspect of the reasons for the delay should not be read as putting the "blame" on the accused for certain portions of delay. There is no necessity to impute improper motives to the accused in considering this factor. Included under this heading are all actions taken by the accused which may have caused delay. In this section I am concerned with actions of the accused which are voluntarily undertaken. Actions which could be included in this category include change of venue motions, attacks on wiretap packets, adjournments which do not amount to waiver, attacks on search warrants, etc.
[Emphasis added.]
[16] Justice Sopinka concluded that such actions "must therefore be taken into consideration in determining whether the overall delay suffered by the accused was reasonable." This does not mean that the pursuit of such legitimate issues by the defence is to be discouraged. Rather, it is simply recognition that the defence raising such further issues will increase the complexity of the matter, requiring more time for the matter to be litigated.
(3) Actions of the Crown
[17] In R. v. Morin, supra, Sopinka J. at p. 793 made it clear that a similar approach must be taken when dealing with delay caused by actions of the Crown:
As with the conduct of the accused, this factor does not serve to assign blame. This factor simply serves as a means whereby actions of the Crown which delay the trial may be investigated. Such actions include adjournments requested by the Crown, failure or delay in disclosure, change of venue motions, etc. An example of action of this type is provided in Smith, supra, where adjournments were sought due to the wish of the Crown to have a particular investigating officer attend the trial. As I stated in that case, there is nothing wrong with the Crown seeking such adjournments but such delays cannot be relied upon by the Crown to explain away delay that is otherwise unreasonable.
(4) Limits on Institutional Resources
[18] In R. v. Morin, at para. 47, Sopinka J. defined institutional delay as "the period that starts to run when the parties are ready for trial but the system cannot accommodate them." In most cases, the most significant period of time attributable to limits on institutional resources will be the time periods between a set date and a preliminary inquiry or trial. However, as noted above, the amount of time attributable to institutional delay may be reduced when significant preparation is required for the preliminary inquiry or trial. This is likely only to be a consideration in complex cases.
(5) Other Reasons for Delay
[19] The Court left open the possibility of other reasons for delay. In this case, the parties raised no other reasons for delay during the relevant period of time.
(D) Prejudice to the Accused
[20] Prejudice to the accused can be inferred from prolonged delay and the right protected by s. 11(b) of the Charter is not restricted to those who assert the right throughout the proceedings. The longer the delay, the more likely that such an inference will be drawn. Conduct of the accused falling short of waiver may be relied upon to negative prejudice. Both the defence and the Crown can lead evidence to demonstrate particular evidence in a specific case or to dispel such a finding. Importantly, any prejudice must result from the delay, not merely from the fact of being charged with a criminal offence. In this case Ms. Gordon is not alleging any prejudice beyond that which can be inferred from the length of the delay.
[21] The following are the dates analyzed under the Askov/Morin principles.
DATE(S) ACTION Time Period Waived, or Attributable to Actions of the Accused Neutral Time Period [Intake or inherent time] Time Period Attributable to Actions of the Crown or to Institutional Delay
May 14, 2014 Ms. Gordon is arrested 1 day [intake]
May 15, 2014 Crown says it would agree to a release to a reliable $50,000 surety. 1 day [intake]
May 16, 2014 Crown requests adjournment as sureties present are not suitable. Ms. Gordon herself also requests an adjournment as she wants to wait for Mr. Barry Fox’s availability. She has yet to retain him but is hopeful she will for the following date. Matter adjourned to May 20th. 4 days [intake]
May 20, 2015 Ms. Gordon is released on a surety bail. The Justice of the Peace suggests a five week remand “given the [police] investigation” (likely inferring that the breadth of the police investigation requires time for production of disclosure). The case is adjourned to July 2, 2014. 5 weeks [intake]
July 2, 2014 Mr. Fox is still not retained. Disclosure provided to Ms. Gordon. Ms. Gordon requests August 8, 2014 as the next appearance. 5 weeks
July 8, 2014 Ms. Gordon is arrested for breach of her recognizance because she began to work at the Bank of Montreal (BMO) when she was prohibited from having any contact with that bank. Ms. Gordon is brought to bail court in Scarborough and the Crown advises that they are seeking her detention. Agent for Mr. Fox advises they have not yet been retained. Ms. Gordon requests the matter be adjourned to July 21, 2014.
July 21, 2014 The Crown consents to Ms. Gordon’s release. Agent for Mr. Fox advises they have not yet been retained by Ms. Gordon.
July 22, 2014 Ms. Gordon requests that the matter be adjourned to July 25, 2012, as the sureties were not available before that time.
July 25, 2014 Ms. Gordon is released on consent. The Crown requested a remand date of September 12, 2014 for the fail to comply charge. Agent for Mr. Fox did not suggest that the substantive charges should be adjourned to August 8, 2014, which was the next court appearance scheduled for those charges. It appears then that all charges (the fraud related charges and the fail to comply with recognizance), were remanded to September 12, 2014 without objection or clarification by counsel for Ms. Gordon. 5 weeks, 4 days
September 12, 2014 Agent for Mr. Fox appears and files a designation on behalf of Ms. Gordon. Although Ms. Gordon was provided with substantial disclosure on July 2, 2014, counsel advises she is awaiting disclosure on the fail to comply with recognizance charge and asks, for the first time, if the 27 witness statements provided to counsel for the fraud related charges would be transcribed. The Crown suggests that counsel should have a pre-trial and then a judicial pre-trial in order to canvass that request and move things along. Counsel for Ms. Gordon requests that the matter be put over to September 30, 2014. 18 days
September 30, 2014 Agent for Mr. Fox appeared advising that counsel needs time to review the DVDs of 27 witnesses and was also asking for disclosure of the fail to comply charge. Counsel on behalf of Mr. Fox requested that the matter be adjourned to October 21, 2014. 3 weeks
October 21, 2014 Agent for Mr. Fox advised the Court that there had been a pre-trial scheduled with the Crown for October 14th, however, “Mr. Fox spoke with the Crown. Apparently there was no brief and there was no available time for the pre-trial before today. So Mr. Fox is asking the matter to come back November the 14th in order to schedule a further pre-trial.” 3 weeks [why not schedule a JPT]
November 14, 2014 A judicial pre-trial for December 18, 2014 is scheduled. 1 month, 4days
December 18, 2014 A judicial pre-trial is held. Agent for Mr. Fox requests that the matter be adjourned to January 6, 2015. Adjournment was for counsel to obtain instructions from his client, as to, whether to have a preliminary hearing, a trial in the provincial court or for a guilty plea. Both parties agreed to a five day preliminary hearing. 2 weeks, 5 days
January 6, 2015 A five day preliminary hearing is scheduled for September 24, 2015 to October 1, 2015 with or without counsel. 8 months, 3 weeks
September 24, 2014 Preliminary inquiry commences and the Crown calls its first witness who testifies for the entire day in examination-in-chief. Before the examination of the first witness was completed, Mr. Fox advised the Court that he had a scheduling issue and he was no longer available for the next date scheduled for the preliminary hearing. He also advised that counsel had overestimated the time for the preliminary hearing.
September 29, 2015 The second day of the preliminary hearing, the Crown continued with its witness in examination-in-chief. Mr. Fox did not cross-examine the witness and immediately thereafter conceded committal. The matter was committed to trial and remanded to the “long trial list” court for first appearance for October 21, 2015. 3 weeks
October 21, 2015 Ms. Gordon appears and the Crown, speaking on behalf of counsel for Ms. Gordon, advises that a judicial pre-trial had been scheduled for December 8, 2015. 6 weeks
December 8, 2015 A judicial pre-trial was held. The only pre-trial motion contemplated was related to the accused’s statements. No motion for unreasonable delay was contemplated. Crown and defence agree the trial will take four to six weeks. In court, Justice McMahon advised that he could offer the parties a date in November 2016 or a date in January 2017 after which the following exchange took place: Ms. Earle: My friend and I discussed, and he certainly can correct me if I’m wrong and Your Honour, the Crown would prefer if we could do it January of 2017 starting January 9 if that works for the Court and my friend. Mr. Fox: I indicated to my friend that January is a month where I am completely open. I do have dates in November, but I can understand the rationale behind January, so I have no problem with that. The trial date of January 9, 2017 was scheduled for 4 to 6 weeks. 2 months 11months
TOTAL 6 months, 2 days 6 months, 1 week 19 months, 3 weeks
[22] The significance of the foregoing analysis is straightforward. In this case, the actionable delay of 19 months, 3 weeks for Ms. Gordon is more than the 18 months Morin. However, this figure does not account for preparation time. Conservatively speaking, I would attribute two months of preparation time to both the Crown and defence and this would bring the total delay just under the Morin guidelines and this would not have resulted in a stay.
The Delay under the Jordan Principles
[23] In Jordan the majority stated that “in our view, developments since Morin demonstrate that the system has lost its way. The framework set out in Morin has given rise to both doctrinal and practical problems, contributing to a culture of delay and complacency towards it.” [2] Consequently they introduced a new approach to s. 11 (b). It is a simplified analysis and it focusses on “a presumptive ceiling on the time it should take to bring an accused person to trial: 18 months for cases going to trial in the provincial court, and 30 months for cases going to trial in the superior court.” [3] The Crown bears the onus of justifying delays that exceed this ceiling.
[24] Defence delay can be deducted from the total delay and it consists of clear and unequivocal waiver or delay caused solely by the conduct of the defence. In my view, the Court’s insistence on a clear and unequivocal waiver suggests that the observation in Smith that agreeing to a future date may constitute a waiver of that time period may no longer be good law. Nonetheless under the Jordan approach I found waiver for Ms. Gordon on July 2, 2014, September 12, 2014, September 30, 2014, October 21, 2014, December 18, 2014 and December 8, 2015, for a total waiver of 6 months, 2 days. When this is deducted from the foregoing totals, the delay for Ms. Gordon is under the Jordan presumptive ceiling: 33 months, 3 days – 6 months, 2 days = 27 months, 1 day.
[25] In Jordan the majority stated that where the total delay is below the presumptive ceiling the defence bears the onus to show that the delay is unreasonable. [4] According to the majority, this requires that:
the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. Absent these two factors, the s. 11 (b) application must fail.
The majority also made it clear that this standard will be applied strictly saying that, “We expect stays beneath the ceiling to be granted only in clear cases.” This is even more true for transitional cases: “a stay of proceedings below the ceiling will be even more difficult to obtain for cases currently in the system.” [5]
[26] In the case of Ms. Gordon, the defence cannot meet this strict test. Mr. Fox cannot demonstrate that he took “meaningful steps that demonstrate a sustained effort to expedite the proceedings.” The majority stated that to do so:
it falls to the defence to show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications (including the s. 11 (b) application) reasonably and expeditiously.
On this basis I would dismiss Ms. Gordon’s application.
[27] Even if Ms. Gordon’s delay exceeded the presumptive ceiling in Jordan, I would not stay the charges. This is a transitional case as both the charges were laid and the trial date was set well before Jordan. The majority in Jordan rejected the idea that their new approach should lead to the staying of tens of thousands of charges as had the decision in Askov. The majority also recognized that, “it is not fair to strictly judge participants in the criminal justice system against standards of which they had no notice.” [6] Therefore, the majority recognized a transitional exceptional circumstance that will apply, “when the Crown satisfies the court that the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed.” [7]
[28] In this case, the actionable delay of 17 months, 3 weeks for Ms. Gordon is less than the 18 months Morin guideline and would not have resulted in a stay under that law as it stood pre-Jordan. I am conscious of the criticisms levelled by the Jordan majority against the Morin approach to s. 11 (b). The Crown has satisfied me that the time taken to try Ms. Gordon’s charges were based on the parties' reasonable reliance on the law as it previously existed. On this basis I would reject her 11(b) application.
T. DUCHARME J.
Released: March 15, 2017
Citations
[1] R. v. Jordan, 2016 SCC 27 at paras. 47-49 [2] Jordan at para 29. [3] Jordan at para 5. [4] Jordan at para 82 [5] Jordan at para 101 [6] Jordan at para 94 [7] Jordan at para 96