CITATION: R. v. Green, 2017 ONSC 2628
COURT FILE NO.: CR-16-0007
DATE: 2017-04-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
T. Schuck, for the Crown (Respondent)
Respondent
- and -
Jonathon Green
R. Sinding, for the Accused (Applicant)
Accused (Applicant)
HEARD: April 10, 2017, at Fort Frances, Ontario
Mr. Justice W.D. Newton
Decision On Application
Overview
[1] On April 8, 2015, Jonathan Green was charged with sexual assault. His jury trial is set to begin July 10, 2017 and should conclude in 5–7 days, about 27 ½ months from the date he was charged.
[2] Jonathan Green seeks a stay of this charge arguing that the inordinate institutional and Crown delay weighs in favour of a stay under the principles set out in R. v. Jordan, 2016 SCC 27.
[3] For reasons that follow, Mr. Green’s application for a stay is dismissed.
Facts
[4] The delay that Mr. Green relies upon in support of his application consist of the following:
a) four months institutional delay when preliminary inquiry set for April 20, 2016 on December 14, 2015;
b) 1.5 months Crown delay when preliminary inquiry set for April 20, 2016 was adjourned to May 31, 2016, due to late disclosure from the Crown;
c) 1.5 months Crown delay because indictment not signed after committal until July 12, 2016;
d) two months Crown delay because the Crown did not place this matter on the assignment court list until September 14, 2016;
e) eight months institutional delay between date when trial date set and actual trial date.
[5] At the first judicial pre-trial conference on October 5, 2016, counsel for Mr. Green indicated that a Jordan application would only be brought if the trial could not be held within the thirty month ceiling. At assignment court on November 9, 2016, both the Crown and the Court were prepared to set trial dates during the weeks of March 20, April 3, April 10, May 8, May 15, May 22 and July 3, 2017, but defence counsel requested a later date solely for the purpose of bringing this Jordan application. Transcripts were required and the practice direction required the application to be heard at least 60 days prior to trial, unless otherwise directed by the trail judge. The trial date was set for July 10, 2017 at the November 9, 2016 assignment court.
[6] Dates for another pretrial (required by a change in the Crown’s position on the accused’s statement) and the dates for this application and a voir dire on Mr. Green’s statement were set at a later date.
Positions of the Parties
[7] The applicant (accused) argues that this is a straightforward case and that the institutional delay and Crown delay is not justifiable in the circumstances. The institutional delay consists of the four months to schedule the preliminary inquiry and eight months from November 9, 2016, until the trial was scheduled in July 2017. Mr. Green argues that this application is not frivolous and that because of the practice direction, he could not accept the earlier trial dates. Therefore, he argues that the delay attributable to this application cannot count against the defence.
[8] The Crown candidly acknowledges that some of the delay relates to the failure of the Province to appoint a permanent Crown attorney for the District of Rainy River.[^1] However, the Crown argues that the delay falls below the 30 month ceiling (either 27 months or 24 months depending upon whether the delay in bringing this application is considered defence delay) and that the accused is not able to meet his onus of demonstrating that the delay “markedly exceeds” the reasonable time requirements of the case.
The Law
[9] R. v. Jordan, 2016 SCC 27, creates a new framework for 11(b) applications. If the total delay from charge to actual or anticipated end of the trial (minus defence delay) exceeds 30 months, the delay is presumptively unreasonable and the onus is on the Crown to establish the presence of exceptional circumstances. If the Crown does not satisfy that onus then the delay is unreasonable and the action must be stayed. If, on the other hand, the total delay (minus defence delay or delay due to the exceptional circumstances) is less than 30 months, then the onus is on the defence to show that the delay is unreasonable. The defence must establish that it took meaningful steps to expedite the process and that the case took “markedly longer” than it reasonably should have. Stays beneath the ceiling are to “be rare, and limited to clear cases” (Jordan at para. 48 and 83).
[10] Transitional provisions were set for cases in the system as of July 2016. The Supreme Court noted that the two criteria for cases in which the total delay is less than 30 months are to be applied “contextually, sensitive to the parties reliance on the previous state of the law” (Jordan at para. 99). As Moldaver, J. stated at para. 101:
We note that given the level of institutional delay tolerated under the previous approach, a stay of proceedings below the ceiling will be even more difficult to obtain for cases currently in the system. We also emphasize that for cases in which the charge is brought shortly after the release of this decision, the reasonable time requirements of the case must reflect this high level of tolerance for institutional delay in particular localities. [Emphasis added.]
[11] Fundamental to determining delay is that delay attributable to the defence must be subtracted and that the defence “should not be allowed to benefit from its own delay causing conduct” (Jordan at para. 60). However, legitimate defence actions are not to be included in the calculation for defence delay. As the Supreme Court stated at para. 65:
… defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused’s right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions. [Emphasis added.]
Analysis and Disposition
[12] The total time between the laying of the charge and the anticipated end of the trial (overall delay) is 27 ½ months.
[13] In this case, I find no clear and unequivocal waiver by the defence, explicitly or implicitly.
[14] Does the delay caused solely by the bringing of the application count as defence delay? It is not disputed that the trial could have been held earlier, commencing as early as March 20, 2017, but for this application. While the practice direction regarding these applications specifies that transcripts are required, that the application be served 30 days in advance of the hearing and that the hearing be held at least 60 days prior to trial, scheduling is subject to the order of the trial judge. It seems incongruous that when an earlier trial date is available, the delay attributable to bringing the motion should be counted in determining overall delay. I do not say that this delay should necessarily count as defence delay, but, in these special circumstances, I conclude that this delay of approximately three months shall be deducted from the overall delay.
[15] Therefore, I conclude that the overall delay is 24 months.
[16] Regardless of whether the delay is 24 months or 27 ½ months the delay is below the ceiling. As such, the onus is on the defence to show that the delay is unreasonable. In the transition period the question really becomes whether the case took “markedly longer” than it reasonably should have. As stated in Jordan, stays in cases below the presumptive ceiling should be rare and only in clear cases. While there is some Crown delay, I am not satisfied that delay alone is sufficient to warrant the stay. While I have insufficient information before me to judge the delay in getting to the preliminary inquiry, I am satisfied that in these circumstances, the institutional delay in getting to trial is not unreasonable given the tolerance for delay as it existed in July 2016 and the delay inherent in bringing this application.
[17] Therefore, I find that the applicant (accused) has not met his onus of demonstrating that the delay is unreasonable. The application for a stay is dismissed.
“Original signed by”____
The Hon. Mr. Justice W.D. Newton
Released: April 27, 2017
CITATION: R. v. Green, 2017 ONSC 2628
COURT FILE NO.: CR-16-0007
DATE: 2017-04-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
Jonathon Green
Accused (Applicant)
DECISION ON APPLICATION
Newton J.
Released: April 27, 2017
/sab
[^1]: Recently, a permanent Crown Attorney has been appointed for the District of Rainy River.