COURT FILE NO.: 14-R1985 DATE: 20170307
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – JOSE HUMBERTO HERRERA Applicant/Accused
Anne Fitzpatrick, for the Crown Mash Frouhar, for the Accused
HEARD: February 28, 2017
REASONS FOR DECISION
Beaudoin J.
[1] The Applicant is scheduled to be tried before a Superior Court Justice from March 20-28, 2017. He is charged that on or about May 31, 2014 he did:
a. possess a knife for a purpose dangerous to the public peace contrary to s.88(2) of the Criminal Code;
b. in committing an assault on Kenneth Kidd use a knife contrary to s.267 (a) of the Criminal Code; and
c. in committing an assault on Kenneth Kidd, wound, main, disfigure or endanger the life of Kenneth Kidd and thereby commit an aggravated assault, contrary to s.268 of the Criminal Code.
[2] The total delay between the date of charge and the scheduled end of the trial is approximately 34 months.
[3] The Applicant submits that his right to a trial within a reasonable time guaranteed by section 11(b) of the Charter has been infringed, and that the charges that have been laid against him ought to be stayed.
[4] The following is a chart to assist in understanding the progress of this case through the courts:
Date Event Notes May 31, 2014 Alleged offence date June 1, 2014 Applicant appears in Bail Court, Crown takes show cause position June 5, 2014 Applicant released on Recognizance of Bail with surety June 17, 2014 Remand Court appearance July 8, 2014 Remand Court appearance – Disclosure provided to counsel JPT scheduled for September 4, 2014 Crown expedites matter directly to Judicial Pretrial (JPT) Counsel unavailable for August JPT. September 4, 2014 JPT Crown position on PG and after-trial conveyed. Counsel to take instructions. September 16, 2014 Remand Court appearance Counsel indicates matter going to trial. Crown ready to set trial date. September 18, 2014 Further Disclosure provided to counsel [not a court date] September 23, 2014 Remand Court – to set trial dates Applicant’s counsel requests further JPT, Crown indicates JPT already held. Second JPT scheduled for October 23, 2014. Counsel rejects remand dates of October 28 and November 4, 2014. October 23, 2014 Second JPT Applicant’s counsel confirms matter will proceed to trial. November 18, 2014 Trial dates set for September 8-9, 2015 First offered trial dates available to both parties. July 24, 2015 Applicant brings application to cancel trial dates and re-elects to have a preliminary inquiry. Statement of issues requesting seven witnesses filed this date. Trial dates converted to preliminary inquiry dates, election is Judge and Jury. July 31, 2015 Court date to confirm preliminary hearing dates. Matter adjourned to August 21, 2015. August 21, 2015 Court date to confirm preliminary hearing dates. Case before the Court to canvass whether 2 days set for preliminary inquiry is sufficient given the number of witnesses. Counsel advises that committal is not likely to be an issue. August 28, 2015 Court date to confirm preliminary hearing dates. Counsel confirms two days for preliminary inquiry are sufficient. September 8, 2015 Preliminary Inquiry Crown ready to proceed. Complainant, Kenneth Kidd, advises Crown that Applicant’s counsel had previously represented him on a legal matter. Preliminary inquiry adjourned for this reason, matter adjourned to remand court September 29, 2015. September 18, 2015 Remand court - Applicant brings application for Ms. Frouhar to act as counsel. Counsel acknowledges that he was counsel for Kenneth Kidd in 2005. Application brought to have Ms. Frouhar represent Applicant. Crown requests one week to consider its position on this issue. September 25, 2015 Remand court date to address conflict issue Crown requests more time to consider its position on the conflict issue. Matter adjourned to date already set of September 29, 2015. September 29, 2015 Remand Court – Preliminary inquiry rescheduled for two days – June 15 & 16, 2016 New counsel Ms. Frouhar adopts existing statement of issues and indicates she has received disclosure, no issues. Preliminary inquiry dates set, two days required and confirmed by counsel. April 29, 2016 Preliminary inquiry dates confirmed June 15, 2016 Preliminary inquiry proceeds, Applicant committed on all counts. At the outset of the preliminary inquiry on June 15, 2016 committal conceded before any evidence is called by the Crown. Applicant’s counsel advises that she wishes only to hear the evidence of the victim, Kenneth Kidd. The preliminary inquiry commenced at 10:43 a.m. and concludes at 11:45 a.m. July 22, 2016 Assignment Court – Superior Court of Justice Superior Court PTC scheduled for August 23, 2016. August 23, 2016 Superior Court PTC Crown’s trial estimate is 5 days, Applicant’s counsel requests 7 days. Trial dates of January 23–31, 2017 offered – available to Crown, rejected by defence. Trial dates of March 13-21, 2017 offered – available to defence, rejected by Crown. Trial dates of March 20–28, 2017 – available to both parties. January 19, 2017 Application/Motion Date Sheet – Superior Court of Justice received by Crown The Applicant for the first time raises the issue of delay, after case surpasses 30 month presumptive ceiling. February 10, 2017 Notice of Application received by Crown February 21, 2017 Applicant’s 11(b) factum received by Crown – no transcripts February 24, 2015 Applicant’s 11(b) factum filed via email – no transcripts
The Law
[5] In R. v. Jordan[^1], the Supreme Court established a new framework to be applied where a breach of 11(b) of the Charter is alleged. Ceilings that provide for presumptive time periods within which an accused must be brought to trial (18 months for cases in provincial court, and 30 months for cases in Superior Court or in Ontario Court following a preliminary inquiry) are central to this framework. In cases where the total delay, less delays either waived or exclusively caused by defence, exceeds the presumptive cap, the onus shifts to the Crown to demonstrate that the delay was nevertheless reasonable. Where the delay falls below the ceiling, the defence must demonstrate that the period of time to the end of trial was nevertheless unreasonable. Stays of proceedings for delays that fall below the ceilings will be rare and limited to clear cases.
[6] The Jordan framework applies to any case “in the system” on the day the decision was released (July 8, 2016) subject to a “transitional exception” which acknowledges that the parties would have placed reasonable reliance on the legal framework provided in R. v. Morin, [1992] 1 S.C.R. 771 and subsequent case law, and could not have been aware of the Jordan framework prior to the release of this decision. Application of the transitional exception is intended to prevent a recurrence of the stay or withdrawal of tens of thousands of criminal charges in Ontario alone that resulted in the wake of the Supreme Court’s decision in R. v. Askov, [1990] 2 S.C.R. 1199. Jordan requires that the new framework be applied flexibly and contextually to cases already in the system. [^2]
[7] The Court of Appeal for Ontario, in R. v. Coulter, 2016 ONCA 704, summarized the new framework for the adjudication of s. 11(b) claims following Jordan at pp.33-41:
- Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial.
- Subtract defence delay from the total delay, which results in the “Net Delay”.
- Compare the Net Delay to the presumptive ceiling.
- 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. If it cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.
- 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.
- 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.
- If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.
- The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the “Transitional Cases”).
Transitional Cases
[8] The application of the new framework, including the presumptive ceilings, means that two qualifications operate for the “in the system” cases. [^3] These qualifications are as follows:
- A transitional exceptional circumstance will apply where the delay exceeds the presumptive ceiling, 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; and
- In cases where the net delay falls below the ceiling, the two criteria – defence initiative and whether the time the case has taken markedly exceeds the time reasonably required – will also be applied contextually, with sensitivity to the parties’ reliance on the previous state of the law.
[9] Where an Applicant brings a s. 11(b) motion where the delay falls below the ceiling, counsel must demonstrate that they took meaningful and sustained steps to expedite the proceedings as a prerequisite to a stay. [^4] The defence cannot benefit from its own delay causing action or inaction.
Waiver and Defence-caused Delay
[10] Accused persons are not entitled to remain passive in the face of delay in the hopes of avoiding prosecution. The conduct of the defence must be examined, and any delay attributable to that conduct is to be subtracted from the total delay. [^5]
[11] The delays to be subtracted at the outset consist of two components: (1) periods that are waived (which can be implicit or explicit, but must be clear and unequivocal); and (2) periods of defence-caused delay. Defence delay comprises “those situations where the accused’s acts either directly caused the delay … or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial.” Examples include frivolous applications and requests, and periods during which the Court and Crown are ready to proceed but the defence is not. However, these examples do not amount to an exhaustive list and it “…will of course be open to the trial judges to find that other defence actions or conduct have caused delay.” [^6]
[12] The Court in Jordan explained that “defence-caused delay” does not include “actions legitimately taken” to respond to the charges, such as time for preparation and non-frivolous applications or requests. Delay considered under the “actions of the accused” under the Morin framework can and should be treated as defence-caused under the Jordan framework, and deducted from the total delay period.
The Net Delay
[13] In this case, there are three distinct areas where I conclude there is defence-caused delay. In addition, I must also consider defence delay in bringing this application.
[14] The first period of delay occurred on July 8, 2014 when the Crown indicated that it was prepared to proceed directly to a judicial pre-trial. August 7, 2014 was available but defence was not available in August. The next available date was September 4, 2014. This resulted in a 4 week delay attributable to the defence.
[15] The second period of defence-caused delay occurred on September 23, 2014. At that time there was still some uncertainty as to the time required for trial or whether the matter would proceed to a preliminary inquiry. Defence counsel indicated that he wanted another judicial pre-trial; he could have someone else from his office attend that event but he personally wanted to be present to set a trial date but would not be available to set trial dates on the first available date of October 28, 2014 or November 4, 2014 until November 18, 2014. This results in a defence-caused delay of three weeks.
[16] On November 18, 2014, trial dates were set for September 8-9, 2015; the first offered trial dates available to both parties. On July 24, 2015, the Applicant re-elected to have a trial by judge and jury so that the matter would proceed to a preliminary inquiry. Defence filed a Statement of Issues requesting seven witnesses to be called. Preliminary hearing dates were confirmed on August 28, 2016.
[17] On September 8, 2016, the Crown was ready to proceed and all of its witnesses were called. The Crown’s witness, the complainant, Kenneth Kidd, advised that the Applicant’s counsel had previously represented him on a legal matter. Applicant’s counsel failed to recognize his previous client; there was no system in place to screen out any potential conflict. It was apparent from my review of the transcript that counsel acknowledged that he could not continue to act for the Applicant. There was a genuine issue as to whether or not another member of counsel’s firm could have been brought in to represent the Applicant and how the conflict issue should be dealt with. The matter was adjourned by the presiding judge to September 29, 2015, to be spoken to. By that date it was agreed that Ms. Frouhar could act as counsel for the Applicant. This three-week delay is a defence-caused delay.
[18] Ms. Frouhar argues that she might have been available to take over the preliminary hearing on September 9, 2015 but it was unknown at that point whether not another member of counsel’s firm could represent the Applicant. Moreover, the presiding judge had already adjourned the matter to September 29, 2015.
[19] On September 29, 2015, Ms. Frouhar adopted the existing statement of issues and indicated that she had received disclosure and that there were no issues. She further confirmed that two days were required for the preliminary hearing. As a result, two days were set aside commencing June 15, 2016. This is a delay of eight and one half months and I conclude that it is a defence-caused delay. If Applicant’s counsel had a proper system in place to screen out potential conflicts, this problem would not have occurred. The complainant’s name was known from the outset.
[20] On April 29, 2016, the preliminary inquiry dates were confirmed with two days required. On June 15, 2016, at the outset as preliminary inquiry, committal to trial was conceded before any evidence was called by the Crown and the Applicant’s counsel advised that she wished only to hear the evidence of the victim, Kenneth Kidd. The preliminary inquiry commenced at 10:43 a.m. and the Applicant was committed to stand trial on all counts at 11:45 a.m. The transcript from the preliminary inquiry reveals that the cross-examination was 5 pages in length.
[21] Since August 25, 2015, counsel for the Applicant had indicated the committal for trial would likely not be an issue but then waited until June 15, 2016 to concede that point. Moreover, counsel for the Applicant consistently maintained that two days and seven witnesses were required for the preliminary inquiry and this had an effect on the available dates.
[22] I am satisfied that a much earlier date could have been obtain for a one hour/one witness preliminary inquiry if Applicant’s counsel had made an assessment of the case earlier. There were no new developments in the case and no disclosure issues.
[23] Finally, there is one further period of delay that is attributable to the defence. On August 23, 2016, trial dates of January 23 – 31, 2017 were rejected by the defence. March 8 to March 13, 2017 were available, but rejected by the Crown. The delay from January 23, 31st 2017 to March 13 – 21, 2017, a further seven weeks is attributable to the defence.
[24] In total, defence-cased delay accounts for 13 months which must be subtracted from the total delay which brings this delay below the Jordan ceiling.
Where the Delay Falls Below the Ceiling
[25] The defence bears the onus of demonstrating that even though the total delay falls below the ceiling, the case is nevertheless a clear one of unreasonable delay. To establish this, the defence must satisfy both of the following:
(1) that the defence took meaningful steps demonstrating a sustained effort to expedite the proceedings; and (2) that the case took “markedly longer” than it reasonably should have.
[26] Where the presumptive ceilings have not been exceeded, a stay will be rare and granted “only in clear cases.” Where the defence has not established both requirements stated above, “the s. 11(b) application must fail.” [^7]
[27] The first criterion that the defence must establish requires a consideration of “action or non-action by the accused that is inconsistent with a desire for a timely trial.” “Token efforts,” such as placing a statement on the record that an earlier date was wanted, will not suffice. The defence must demonstrate that it tried to set the earliest trial date, cooperated with the Crown and the Court, put the Crown on timely notice when delay had become problematic, and conducted all applications (including the s. 11(b) application) reasonably and expeditiously. [^8]
[28] The second criterion involves consideration of such factors as case complexity, local considerations, and whether the Crown took reasonable steps to expedite the proceedings. Determining whether the time taken for a case markedly exceeds what was reasonably required is not a matter of precise calculation. Instead of parsing each day or month to determine whether each step was reasonably required, trial judges should step back from the minutiae and adopt a “bird’s eye” view of the case. In considering the case’s reasonable time requirements, trial judges should use the knowledge they have of their own jurisdiction, including how long a similar case typically takes to get to trial in light of relevant local and systemic circumstances. Neither Crown nor defence counsel are held to standards of perfection in reviewing their conduct. Where the Crown has done its part to ensure that the case proceeds expeditiously, it is unlikely that the reasonable time requirements of the case will have been markedly exceeded. [^9]
[29] In this case, there are no discrete events indicated in the record which may be deducted and it is agreed that this is not a particularly complex case. Disclosure in this matter was complete as of September 18, 2014.
[30] I am satisfied that the Applicant has not met the onus of establishing that this is a case of clear and unreasonable delay. Two months before the September 15-16, 2015 trial dates, the Applicant elected, as was his right, to proceed to a preliminary inquiry rather than a trial. Had the matter proceeded to trial on those earlier dates, this matter would have been concluded in under 16 months.
[31] The September 15, 2015 preliminary inquiry did not proceed because the victim/witness Kenneth Kidd advised the Crown that defence counsel represented him on a previous matter. This resulted in the preliminary inquiry being adjourned. With new counsel on the record, the preliminary inquiry dates were rescheduled for June 15-16, 2016. Defence counsel did not seek earlier dates for a shorter preliminary inquiry. Defence counsel did not file a subsequent statement of issues narrowing the witnesses required. Defence counsel did not waive preliminary inquiry even though there was a consent committal before any Crown witnesses were called and only one witness was necessary and he was examined for approximately five minutes.
[32] Although Jordan was decided in July 2016, the Applicant waited until January 19, 2017 to raise the issue of delay and did not serve the Notice of Application until February 10, 2017. Transcripts were delivered on the eve of the hearing along with an Amended Factum.
[33] The Applicant has not met his onus of establishing that the resultant delay was unreasonable – defence conduct contributed to the delay and the Applicant has failed to satisfy me that the defence took meaningful steps demonstrating a sustained effort to expedite the proceedings. The Applicant has not established that the time taken to trial, in this case, markedly exceeds what was reasonably required. The defence application for a Stay of Proceedings is dismissed.
Mr. Justice Robert N. Beaudoin
Released: 20170307
Footnotes
[^1]: R. v. Jordan, 2016 SCC 27 at paras. 5; 46-49; 60 [^2]: Jordan, at paras. 5; 21; 92-105 [^3]: Jordan, at paras. 92-96; 99 [^4]: Jordan at para. 113 [^5]: Jordan, 2016 SCC 27 at paras. 21; 49; 60 [^6]: Jordan, at paras. 60-66; R. v. Williamson, 2016 SCC 28 at paras. 21-22 [^7]: Jordan, at paras. 82-83 [^8]: Jordan, at paras. 48; 82-86 [^9]: Jordan, at paras. 87-89; 91