Court File and Parties

COURT FILE NO.: CRIMJ (P) 884/15 DATE: 20170109

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN D. Allison, for the Crown

- and -

DION BACCHUS and STEPHEN MOTOO E. Brown, for Dion Bacchus D. Bygrave, for Stephen Motoo

HEARD: December 12, 2016, at Brampton

RULING s. 11(b) CHARTER APPLICATION

André J.

1Mr. Dion Bacchus and Mr. Stephen Motoo bring an application for an order staying the charges laid against them on September 4, 2013, on the ground that the approximately 41 months that have elapsed between the date they were charged and the impending trial date, violate their s. 11(b) Charter rights. The Crown insists that the Charter rights of the applicants have not been infringed.

Chronology of Proceedings

2Mr. Bacchus was charged on September 4, 2013, with robbery, wearing a disguise with intent and use of an imitation firearm. Mr. Motoo was similarly charged two days later.

3On September 23, 2013, counsel for Mr. Bacchus and Mr. Motoo adjourned the matter to November 25, 2013, on the expectation of receiving the Crown’s complex brief.

4On November 25, 2013, the Crown advised defence counsel that disclosure was available. The matter was adjourned to January 6, 2014, to set a Judicial Pretrial (“JPT”).

5On January 6, 2014, the Crown provided additional disclosure to the applicants’ counsel who then adjourned the matter to January 28, 2014.

6On January 28, 2014, the Crown swore a new information with two other co-accused, one of which was Dianand Solomon. The matter was adjourned to February 6, 2014, for a JPT.

7On February 6, 2014, the JPT proceeded despite the fact that Mr. Motoo had not retained counsel. The matter was then adjourned to April 2, 2014, to set a date for a preliminary hearing.

8On April 2, 2014, the applicants set preliminary hearing dates for February 5, 6 and 11, 2015, with a confirmation date of December 22, 2014.

9On December 22, 2014, the Crown was unable to confirm the preliminary hearing dates. The matter was adjourned to January 12, 2015.

10On January 12, 2015, the Crown confirmed the dates set for the preliminary hearing. Counsel for Mr. Bacchus and Mr. Motoo adjourned the matter to January 20, 2015, to be spoken to. Counsel for Mr. Bacchus and Mr. Motoo sought to remand his clients directly to the first date of the scheduled preliminary hearing.

11The preliminary hearing proceeded as scheduled. The preliminary hearing judge adjourned the matter to March 19, 2015, for her decision.

12On March 19, 2015, Mr. Bacchus and Mr. Motoo were committed to stand trial. The case was adjourned to April 10, 2015, in the Superior Court.

13On April 10, 2015, Justice Durno adjourned the matter to May 15, 2015, at the request of counsel for Mr. Bacchus and Mr. Motoo.

14On May 15, 2015, Mr. Bacchus and Mr. Motoo’s counsel scheduled a JPT for July 20, 2015. The court offered them the date of June 9, 2015. The Crown did not indicate whether or not that date was accepted.

15On July 20, 2015, the JPT was adjourned to August 12, 2015, because Mr. Bacchus had not fully retained counsel. A trial date of April 11, 2016, was selected. The matter against Mr. Bacchus was set to proceed with or without counsel. The Crown advised the court that she had told Mr. Solomon’s lawyer that she had “given thought to severing Mr. Solomon off and having his trial separate from the other two”.

16On August 11, 2015, Mr. Motoo was remanded directly to the trial date, while Mr. Bacchus was remanded to the September 18, 2015, assignment court. On that date, Mr. Bacchus was remanded to October 2, 2015, to provide an update regarding his retention of counsel.

17On October 2, 2015, Mr. Motoo applied to vary his bail. The Crown consented to the proposed variation.

18On February 5, 2016, Justice Durno advised counsel that if as a result of previous proceedings, or the dates being set, there are potential s. 11(B) issues, counsel had a responsibility to advise him, so he could address the issue by obtaining an early date for the application. Defence counsel did not raise any s. 11(b) issues at this juncture.

19On February 19, 2016, the court vacated the April 2016 trial date at the request of Mr. Bacchus’ new counsel. The trial was adjourned to October 17, 2016. The presiding justice invited all counsel to advise him of any pending s. 11(b) issues so that he could obtain an early date for the application. No such issue was raised by the applicants’ counsel. The Crown also reiterated that she had advised Mr. Solomon’s counsel about the possibility of severing Mr. Solomon from the indictment. She also indicated that both counsel for the applicants were prepared to adjourn the April 2016 trial dates. The Crown also consented to varying Mr. Motoo’s recognizance by removal of a curfew.

20The October 17, 2016, trial date was adjourned by the Crown in September 2016, because DNA evidence collected by the police authorities in 2012 and a male profile received in May 2013, had not been sent to the Centre for Forensic Science (“CFS”) for testing until August 2016. The results of this testing was only made known to the applicants’ counsel in September 2016.

Analysis

21In R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada established a new analytical framework to determine whether an accused’s right to a trial within a reasonable period has been infringed. The court stipulated at para. 46 that the presumptive ceiling for cases going to trial in the provincial court is 18 months and 30 months for those in the Superior Court or cases going to trial in the provincial court following a preliminary inquiry. The Court of Appeal in R. v. Coulter, 2016 ONCA 704 noted at paras. 34 to 55 the following analytical framework determining whether s. 11(b) of the Charter has been infringed.

Analytical Framework

(1) Calculate the total delay from the date the accused is charged to the actual or anticipated end of the trial (Jordan, at para. 47).

(2) Subtract defence delay from the total delay, which is 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).

(1) Defence Delay

(9) Defence delay has two components: (1) that arising from defence waiver; and (2) delay caused solely by the conduct of the defence (“defence-caused delay”) (Jordan, paras. 61 and 63).

(10) Waiver can be explicit or implicit but, in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights (Jordan, para. 61).

(11) Defence-caused delay is comprised of situations where the acts of the defence either directly caused the delay or are shown to be a deliberate and calculated tactic employed to delay the trial. Frivolous applications and requests are the most straightforward examples of defence delay (Jordan, para. 63). Where the court and the Crown are ready to proceed but the defence is not, the defence will have directly caused the delay (Jordan, para. 64).

(2) Exceptional Circumstances

(12) If the Net Delay exceeds the presumptive ceiling, the onus is on the Crown to rebut the presumption of unreasonableness based on the presence of exceptional circumstances.

(13) Exceptional circumstances lie outside the Crown’s control in that: (1) they are reasonably unforeseen or reasonably unavoidable; and (2) Crown counsel cannot reasonably remedy the delays emanating from the circumstances once they arise. Such circumstances need not be rare or entirely uncommon (Jordan, para. 69).

(14) An exceptional circumstance is the only basis upon which the Crown can discharge its burden to justify a Net Delay that exceeds the ceiling. The seriousness or gravity of the offence cannot be relied on. Nor can chronic institutional delay or the absence of prejudice to the accused (Jordan, para. 81).

(15) The list of exceptional circumstances is not closed but, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

(a) Discrete Events

(16) An illustration of a discrete event that will generally qualify is a medical or family emergency on the part of the accused, important witnesses, counsel or the trial judge (Jordan, para. 72).

(17) The period of delay caused by any discrete event must be subtracted from the Net Delay for the purpose of determining whether the presumptive ceiling has been reached. However, any portion of the delay caused by a discrete event that the Crown or system could reasonably have mitigated may not be subtracted (Jordan, para. 75).

(b) Particularly Complex Cases

(18) Particularly complex cases are cases that, because of the nature of the evidence or issues (or both), require an inordinate amount of trial or preparation time such that the delay is justified (Jordan, para. 77). The seriousness or gravity of the offence cannot be relied on to establish that the case is particularly complex (Jordan, para. 81).

(19) Where the trial judge finds that the case was particularly complex such that the time the case has taken is justified, the delay is reasonable and no stay will issue. No further analysis is required (Jordan, para. 80).

(3) Remaining Delay is Below the Presumptive Ceiling

(20) 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). To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings (“defence initiative”); and (2) the case took markedly longer than it reasonably should have. Absent both of these two factors, the s. 11(b) application must fail (Jordan, para. 82).

(21) Stays beneath the presumptive ceiling should be granted only in clear cases (Jordan, para. 83).

22The court in Jordan indicated that this analytical framework applies to cases within the system. However, the analysis of these cases will differ depending upon whether the Remaining Delay exceeds or falls below the presumptive ceiling (Coulter, para. 55).

23Where the Remaining Delay exceeds the presumptive ceiling, an exceptional circumstance may apply when the Crown justifies the delay in the case by reasonable reliance on the law as it existed prior to July 8, 2016, when the Supreme Court released Jordan. This involves a contextual analysis of factors that were hitherto relevant to a s. 11(b) Charter analysis such as prejudice suffered by the accused, the seriousness of the offence and the moderate complexity of the case in a jurisdiction plagued by lengthy, persistent and notorious institutional delay (Jordan, para. 97).

24Where the Remaining Delay falls below the ceiling, the applicant must establish its initiatives to move the matter along and whether the time the case took markedly exceeds what was reasonably required. Similarly, this must be applied contextually, sensitive to the parties’ reliance on the previous state of the law (Jordan, para. 99; Coulter, para. 58). Finally, institutional delay that was reasonably acceptable in the relevant jurisdiction under the R. v. Morin, [1992] 1 S.C.R. 771, framework will be a component of the reasonable time requirements.

Total Delay

25It is conceded that the total delay in this case is 41 months and 20 days.

Defence Delay

26There are two basic kinds of defence delay namely deliberate and calculated tactics specifically designed to delay the trial and delay caused by the defence lack of readiness to proceed when the court and the Crown are in a position to do so. However, periods of time during which the court and the Crown are unavailable, even if the defence is unavailable, will not constitute defence delay (Jordan, at paras. 63-66).

27The adjournments of the matter on September 23, 2013, November 25, 2013 and on January 6, 2014, cannot be blamed on the defence even though they requested the adjournments. This is because of the need to receive and review the Crown’s disclosure.

28Furthermore, there is no evidence to support a conclusion that the applicants were content with the pace of the proceedings and did nothing to move the matter along. On the contrary, the applicants’ legal representative set a JPT date and preliminary hearing dates without being retained.

29That said, the delay period between April 10, 2015, and May 15, 2015, is defence delay given that the applicants’ counsel requested the adjournment for unknown reasons.

30Furthermore, the JPT in the Superior Court scheduled for July 20, 2015, was adjourned to August 12, 2015, because Mr. Bacchus had not fully retained counsel. That delay must therefore be attributable to Mr. Bacchus.

31The delay between April 11, 2016 and October 17, 2016, is attributable to the defence in that the trial was adjourned at the request of Mr. Bacchus’ new counsel. Furthermore, Mr. Motoo’s counsel consented to the adjournment rather than insisting on proceeding with a trial on that date.

[32] What is the defence delay in this case? The Crown suggests that the defence delay periods include the following: (1) Mr. Bacchus adjourned his first Superior Court trial date from April 11, 2016 to October 17, 2016, a period of 6 months and 5 days. Mr. Motoo did not waive this delay period. However, he did not request to sever his trial from that of Mr. Bacchus. (2) In September 2016, the Crown adjourned the trial from October 17, 2016 to the present date of February 4, 2017. Mr. Bacchus and Mr. Motoo refused a Crown’s request to sever their trial and proceed without Mr. Solomon to whom the DNA evidence applied. This raises the question whether the two were content with the pace of the proceedings or whether they were merely consenting to the inevitable.

33It would be unfair, in my view, to count the delay period between October 17, 2016 and February 4, 2017, as neutral or defence delay. The adjournment was caused by the Crown which had received a male DNA profile as early as May 2013. The Crown only submitted the profile, along with that of one of the accused, in August 2016, and received the results in September 2016, approximately four weeks prior to trial.

34In my view, the defence required time to properly analyze this evidence before immediately consenting to severance at the request of the Crown. Indeed, the Crown could have allowed the trial to proceed by foregoing the new evidence. Its failure to do so and the ensuing delay of trial cannot, in these circumstances, be laid at the feet of the defence.

[35] In my view the following delay periods are attributable to Mr. Bacchus: (1) April 10, 2015 to May 15, 2015, or 1 month 4 days (2) July 20, 2015 to August 12, 2015, or 23 days (3) April 11, 2016 to October 17, 2016, or 6 months 5 days

36Total period of defence delay attributable to Mr. Bacchus is therefore 8 months and 2 days.

[37] The delay periods attributed to Mr. Motoo are as follows: (1) February 6, 2014 to April 2, 2014, or 1 month 27 days (2) April 10, 2015 to May 15, 2015, or 1 month 5 days (3) April 11, 2016 to October 17, 2016, or 6 months 5 days

38Total amount of defence delay attributable to Mr. Motoo is 9 months 3 days.

39The Net Defence Delay for Mr. Bacchus is therefore approximately 33 months.

40The Net Defence Delay for Mr. Motoo is therefore approximately 32 months.

Exceptional Circumstances

41There are no discrete events that warrant a reduction of the Net Delay for either Mr. Bacchus or Mr. Motoo.

42This is not a particularly complex case. The fact that there were four co-defendants does not take it into the realm of a complex case. The delay in bringing the matter to trial was not on account of any inherent complexity. Rather, it was on account of Mr. Bacchus’ retaining new counsel and secondly, the Crown’s inexplicable and inexcusable delay in obtaining DNA evidence and disclosing the evidence to counsel for the applicants.

43Does an exceptional circumstance exist on account of the Crown’s reasonable reliance on the pre-Jordan jurisprudence? The Crown indicates that four factors should weigh against a stay of the charges.

44First, neither applicant has suffered any discernible prejudice. On October 16, 2015, the Crown consented to Mr. Motoo’s application to vary his restrictive bail. Second, on July 20, 2015 and again on February 19, 2016, the Crown also raised the possibility of severing Mr. Solomon from the indictment. However, both Mr. Bacchus and Mr. Motoo opted to adjourn their trial dates. Additionally, on February 5, 2016 and again on February 19, 2016, Justice Durno specifically invited all counsel to advise him of any pending s. 11(b) issues so that he could obtain an early date for such application. No such issue was raised by counsel for Mr. Bacchus and Mr. Motoo.

45Both Mr. Motoo and Mr. Bacchus sought to mitigate the prejudice they suffered on account of their onerous bail conditions that included house arrest, a fact which cannot now be used against them. Mr. Motoo had to comply with the conditions of his bail for approximately two years.

46More important is the fact that on two separate occasions the court advised counsel for Mr. Bacchus and Mr. Motoo of their obligations to alert the court about any s. 11(B) issues and yet no such issue was raised.

47Similarly, on two separate occasions, the Crown raised the issue of severance of the accused and yet neither applicant expressed any desire to do so. In my view, the applicants’ failure to express any s. 11(B) concerns when given an opportunity to do so and to accept the Crown’s offer to sever, raises a reasonable reference that they were quite content with the pace of proceedings and were not overly concerned about their s. 11(B) Charter rights.

48At worst however, this acquiescence by the applicants only applies to the period from April 2016 to September 2016. To that extent, that delay period must be counted as defence delay. Any delay after October 17, 2016 cannot be laid at the feet of the applicants given that but for the late disclosure, they were ready to proceed to trial on October 17, 2016.

49The Crown cannot take shelter under a canopy of persistent institutional delay in Peel Region to excuse this latter delay period. On the contrary, knowledge of institutional delay in this region should have prompted the Crown to send the DNA profile in its possession since May 2013 to the CFS for testing at least three years before it did so in August 2016.

50Furthermore, the Crown sought the adjournment of the trial in September 2016, more than two months after the release of the Jordan decision. The assignment judge indicated on record on September 2016 that following the Jordan decision, all files in the jurisdiction “are marked with the arrest date and with the Jordan date, which is 30 months from the arrest date”. The Crown was therefore well aware of the possible implications of adjourning the trial on account of late disclosure.

51The Crown’s failure to act in a timely manner with respect to this evidence cannot be a factor that can be considered an exceptional circumstance which justifies delay in the transitional period envisioned by Jordan.

CONCLUSION

52For the above reasons, I find that Mr. Motoo and Mr. Bacchus’ s. 11(b) rights have been infringed. Accordingly, the charges against them are stayed.

André J.