Court File and Parties

Court File No.: CR-15-30000538-0000 Date: 2017-05-09 Ontario Superior Court of Justice

Between: Her Majesty The Queen And: M.B., Accused

Counsel: Eadit Rokach, for the Crown T. Edmund Chan, for the Accused

Heard: March 27, 2017

Before: B.A. Allen J.

Reasons for Decision

(Ruling on Charter 11(b) Unreasonable Delay)

Background

[1] This Application was heard on the first day of this judge-alone trial. The defendant, M.B. (“the Applicant”), is charged with two counts of sexual assault and two counts of sexual interference in relation to the Complainant, C.S. The Applicant was arrested and charged on June 2, 2014 with one sexual assault. He was subsequently charged with a further sexual assault, and owing to her young age, two counts of sexual interference.

[2] The allegations are that the Applicant committed the offences against the Complainant on two occasions, October 7 and October 21, 2014. The Applicant was age 20 on October 7, 2014 and turned 21 on October 21, 2014. The Complainant was age 15 at the time of the offences.

[3] The Applicant brings the Application under s. 11(b) seeking a stay of proceedings under s. 24(1) on the basis of unreasonable delay in commencing and completing trial.

[4] On July 8, 2016, the Supreme Court of Canada released a decision, R. v. Jordan, 2016 SCC 27, that changed the landscape of how to apply s. 11(b) and s. 24(1). The Jordan framework introduced significant changes to the former framework set down under R. v. Morin, (1992), 71 C.C.C. (3d) 1 (S.C.C.) as to how delay should be assessed and calculated. Jordan proposes a further transitional framework for those cases, like the one before this court, that were commenced before R. v. Jordan was decided.

[5] Jordan advocates a “flexible and contextual” application of the new framework to cases in the system before Jordan.

Here, there is a variety of reasons to apply the framework contextually and flexibly for cases currently in the system, one being that it is not fair to strictly judge participants in the criminal justice system against standards of which they had no notice. Further, this new framework creates incentives for both the Crown and the defence to expedite criminal cases.

[ R. v. Jordan, at para. 94]

[6] The focus of the Jordan framework is on “non-defence” delay; that is, delay not caused by or waived by the defence. The framework sets a presumptive ceiling of 30 months as a reasonable period of delay for cases tried at the Superior Court, the period being calculated from the date the accused is charged to the date the trial is anticipated to be or is actually completed.

[7] The Applicant submits based on the trial starting on March 27, 2017 and being set for 5 to 6 days that the total delay is 34 months and 1 day. The Respondent’s position, based on the trial being set for 5 days, is that the period of delay is 33 months and 29 days. For reasons that become clear later, I accept the Crown’s calculation of the total delay based on a reasonable anticipation of a 5-day trial.

[8] In any case, both parties’ calculations exceed the presumptive ceiling and result in presumptively unreasonable delay.

[9] It is agreed that the defence did not waive any delay. Further, there is no argument that the Crown caused any of the delay.

[10] The question is what part of the delay was caused by the defence. Depending on that determination, the issue is whether after deducting defence delay from total delay the result exceeds the presumptive ceiling of 30 months.

[11] The first trial date set was for October 24, 2016. There is no dispute that there was a delay of 3 months, 29 days as a result of the unavailability of a judge on October 24, 25 and 26, 2016. Three new dates were offered on October 26th, the effect of which I will deal with in more depth below.

[12] The Applicant concedes that some delay was caused by the defence. The Applicant submits that the total delay caused by the defence is 14 days. On the Applicant’s calculation, deducting defence delay from a total delay of 34 months and 1 day, the net delay is 33 months and 29 days.

[13] The Crown takes the position that the delay attributable to the defence is 6 months and 23 days which when deducted from 33 months and 29 days results in a net non-defence delay of 27 months and 6 days which is below the ceiling and presumptively reasonable.

[14] The divergence in the parties’ positions is based on differences in how they view the reason for delay at various appearances and stages in the pre-trial period.

Application of the Jordan Framework

General Principles

[15] Under Jordan, once the presumptive ceiling is exceeded the onus is on the Crown to rebut the presumption of unreasonableness. The Crown must do so by establishing the existence of exceptional circumstances. If the Crown fails to meet its burden a stay will be allowed. “Exceptional circumstances” lie outside the Crown’s control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied”: R. v. Jordan, at para. 48.

[16] R. v. Jordan provides two examples of circumstances of delay where it can be said delay was caused by the defence:

• situations where the accused’s conduct 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 which includes frivolous applications and requests; and
• where the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence.

[ R. v. Jordan, at paras. 63 and 64]

The Applicant’s Position

[17] The Applicant’s position is that no delay between June 2, 2014 and October 25, 2016 was solely caused by the defence. The Applicant submits, as noted earlier, that the defence’s only responsibility for delay occurs when the trial did not proceed on October 24, 2016 due to the unavailability of a judge. The court offered three dates earlier than March 27, 2017. These were November 28, 2016, December 16, 2016 and March 13, 2017. The Applicant takes responsibility for the period of delay resulting from his unavailability for the March 13th date when the Crown was available. The Applicant’s positions on the three dates the court offered is as follows:

• Regarding the November 28th date, the Applicant was involved in another trial at the end of November and would not be available to begin a trial on November 28th.
• Regarding the December 16th date, the Applicant submitted the court was only offering 5 days whereby the trial would have ended on Friday, December 23rd, which date the Applicant declined out of concern the trial would lapse over into the Christmas weekend.
• Regarding the March 13th date, the Applicant conceded the defence was solely responsible for the 14-day delay to March 27, 2017.

The Respondent’s Position

[18] Besides the 3-month, 29-day delay caused by the unavailability of a judge for the October 24th trial date, which is the first trial date scheduled, the Respondent points to three other periods of delay. The Respondent’s position is that the delay at those points in the pre-trial process is solely attributable to the acts of the defence. The Respondent points to the period commencing October 8, 2014 as a starting point for concerns about delay. The periods of delay in the Respondent’s view are the result of “frivolous applications and requests” by the Applicant or are periods where “the court and Crown are ready to proceed, but the defence is not.”

October 8, 2014 to November 21, 2014

• On October 1st, the first Crown pre-trial held involving Richard Aiken, the initial defence lawyer, and Crown Kelly Smith, the initial Crown counsel, determined a 4-hour preliminary inquiry would be set.
• On October 8, 2014, an agent for Mr. Aiken indicated Mr. Aiken was requesting an adjournment to October 29th because he was awaiting the ITO (“Information to Obtain”); Crown had no notice of the request for the ITO; agent was not aware a form had to be completed for a request for an ITO; adjournment granted to allow the defence to obtain the ITO.
• On October 29th, a second agent appeared for Mr. Aiken and requested an adjournment to November 19th to allow more time for a further Crown pre-trial; agent had no instructions about the ITO or the sexual assault charge; adjourned to October 31st so the agent could get instructions on the sexual assault charge and the ITO.
• October 31st, a second agent requested a further adjournment to November 7th for a further Crown pre-trial because since the first Crown pre-trial Mr. Aiken had not spoken to the accused about the first pre-trial which occurred 30 days earlier.
• November 7th, a second agent appeared as agent for the accused’s new lawyer, Edmund Chan. Second Crown pre-trial not held; agent requests further adjournment because Mr. Chan was on a two-week vacation; at this time Crown expressed concern about delay; adjourned to November 21st for resolution or preliminary inquiry; and
• November 21st, a third lawyer, Ms. Nadarajah, appeared as the accused’s counsel; counsel agreed to a 4-day preliminary inquiry; court required a judicial pre-trial be held before preliminary inquiry is scheduled; adjourned to December 19th for judicial pre-trial.

[19] I accept the Respondent’s position that this period was marked by unnecessary delay from the time of the Crown pre-trial on October 1st. That is when arrangements were originally made to schedule a preliminary inquiry and a judicial pre-trial. After that date a series of adjournments were requested by the Applicant which hampered holding the preliminary inquiry earlier. Regarding the further Crown pre-trial, the Applicant asked for adjournments to allow for this when, as will be seen, no further Crown pre-trial was ever held.

[20] Delays in moving ahead were also affected by the fact that three different lawyers appeared on behalf of the Applicant over the 1 month and 13 days of this period. Further, two agents appeared on behalf of counsel for the Applicant. Delays were required for failures by the Applicant’s representatives to obtain instructions or to communicate with the Applicant before the appearances and due to lack of knowledge of the status of the case.

[21] The first agent appeared on October 8th not aware of the procedure for obtaining an ITO, that a formal process was required. Although an adjournment was granted for that reason, no further reference to the ITO was made in any future appearances. This I find created an unnecessary delay. On October 31st the second agent requested a further adjournment because she had not yet spoken to the accused about the October 1st pre-trial. There was a 30-day period during which the agent should have spoken to the Appellant.

[22] There was further time-wasting on December 7th when the second agent asked for a further adjournment to conduct a further Crown pre-trial. She also advised that Mr. Chan had been retained but would not be available because he was on a two-week vacation.

[23] Ms. Nadarajah was on record on November 21st as the Applicant’s new counsel. The further Crown pre-trial was not held. The necessity for that further pre-trial is in question since it had already been confirmed in the first Crown pre-trial on October 1st that the only witness to be called for the preliminary inquiry would be the Complainant and that the proceeding would take four hours. The defence requested an adjournment to November 27th for the further Crown pre-trial to be held.

[24] There is no dispute that neither the Crown nor the court was responsible for any delay during this period. After two previous adjournments requested by the Applicant to allow the further Crown pre-trial, it was not held. The delay during this period was 1 month, 13 days and I find the sole cause for the delay was the Applicant.

December 1, 2015 to January 12, 2016

• December 19th, Mr. Chan appeared for the Applicant; judicial pre-trial held; request made for continuing judicial pre-trial which was scheduled for January 19, 2015.
• January 19th, further judicial pre-trial held; charges on the indictment increased from one sexual assault to a further sexual assault and two sexual interference charges; 1-day preliminary inquiry set for September 8th.
• September 8th, preliminary inquiry held; accused remanded to appear at Superior Court on October 29th.
• At first appearance at Superior Court on October 29th, neither the accused nor his lawyer appeared; December 1st set for judicial pre-trial.
• December 1st, judicial pre-trial not held; Mr. Chan and Applicant present; adjournment requested for Mr. Chan to be retained; no trial dates set; no target trial dates offered by the Applicant; judicial pre-trial adjourned to January 12th; and
• January 12th, judicial pre-trial returned; Mr. Chan not yet retained; Crown and court ready to proceed; 5 to 7 days set for trial to begin October 24, 2016, with or without counsel; 7 days required because Crown at that point planned to call the Complainant and as many as three other witnesses; no target dates offered by the Applicant; Crown requested return date of August 15th for the Applicant to retain counsel; Crown advised court that the Applicant requested adjournment until after October 3rd at which time he believed he could retain Mr. Chan.

[25] On the first appearance for a judicial pre-trial on December 1, 2015, the Applicant requested an adjournment to January 12, 2016 because he had not retained counsel. On January 12th, the Applicant again requested an adjournment because Mr. Chan was not retained. The court and Crown were ready to proceed. The Applicant set no target trial dates. Again, the Applicant was responsible for that delay because he again had not retained counsel.

[26] The Crown relied on the decision in R. v. Teng, 2017 ONSC 568, at paras. 69-70 (Ont. S.C. J.). I agree with the Crown’s submission that to allow the defence to let a trial languish while retainer issues are being resolved goes against the spirit of cooperativeness between the parties encouraged by Jordan in the interest of obtaining reasonable dates for trial.

[27] The delay during this period was 1 month, 11 days and I find it attributable solely to the Applicant.

December 2, 2016 to March 31, 2017

[28] As noted earlier, court responsibility for delay occurred during this period. No judge was available at the Superior Court on October 24th, 25th and 26th. The court offered three dates earlier than March 27, 2017. The Crown was available on all three dates. The defence did not accept any of the three dates.

[29] The three dates when the trial would have concluded were the trial to have proceeded on any of the three earlier dates are as follows: the November 28th date would have concluded on December 2nd; the December 19th date would have concluded on December 23rd; and the March 13th date would have concluded on March 17th.

[30] The Applicant accepted the 14-day delay from March 13th to March 27th is attributable to the defence. However, the Applicant takes a different position on the other two dates. The Applicant asserts that the delay resulting from the case not proceeding to trial on those dates is not defence delay. In excusing its role in the delay, the Applicant relied on cases decided under the Morin framework.

[31] The Applicant cited R. v. Godin, 2009 SCC 26, at paras. 21-23 (Ont. S.C.J.) and R. v. M.N.M. for the view that s. 11(b) does not require that defence counsel hold themselves in a state of perpetual availability and cannot be expected to devote their time exclusively to one case.

[32] As the Crown pointed out, the Applicant has relied on principles from a framework that has been supplanted by Jordan. As the Supreme Court observed in Jordan, the Morin framework was “too unpredictable, too confusing and too complex” and “itself became a burden on already over-burdened trial courts”. Jordan’s objective is to simplify the assessment and attribution of delay. One means proposed by the Jordan court to achieve this is to discourage the unnecessary inquiry into defence counsel availability: R. v. Jordan, at paras. 5, 29-37, 51 and 64.

[33] Under the Jordan framework, the period from the concluding date for the first date offered to the concluding date for the last date offered, if the Crown is available to proceed, is delay attributable to the defence: R. v. Jordan, at para. 64. Applied to the case at hand, there was a near four-month delay from December 2nd (the concluding date for the first date offered) to March 31, 2017 (the concluding date for the currently scheduled trial date). I agree with the Crown that this is the type of defence delay that is unacceptable under the simplified approach in the Jordan framework.

[34] The Applicant based its rejection of the earlier dates in part on the estimation that the trial would require 5 to 6 days. However, when the current Crown took carriage of the case on October 24th, she confirmed the number of witnesses for the Crown would only be the Complainant and that 5 days would be sufficient. Mr. Chan actually agreed on that date that the duration of the trial would be closer to 5 days. The 5 to 7 days estimation was based on the possibility of four or more witnesses for the Crown.

[35] The Applicant sought to rely on paragraph 65 of R. v. Jordan in his submission that some of the delay resulting from the acts of the defence was not unreasonable. This passage states:

To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions.

[ R. v. Jordan, at para. 65]

[36] The defence delay in the case at hand is not of the kind contemplated by paragraph 65 in Jordan.

[37] There were delays occasioned by changes in legal representatives on several appearances where the lawyers had not received instructions or communicated with the Applicant where there were opportunities to have done so. There were several delays because counsel had not been retained and because defence counsel was on vacation. There were several adjournment requests for a further Crown pre-trial, the reason for which was not clear, and that in any event never took place. There were also adjournment requests in relation to the ITO which was never mentioned again. Then there was the delay caused by defence counsel’s unavailability for the three trial dates offered on October 26, 2016.

[38] I am mindful of Jordan’s observation that discouraging the unnecessary inquiry into defence availability is one means to simplify the assessment of delay. I find that defence delay in the case before me was simply not the result of “defence delay legitimately taken to respond to the charges.”

[39] Looking at the 5-day estimate for trial, I find it to be reasonable for a typical “he-say-she-say” case such as this where the only witness for the Crown is the complainant. Normally, in this type of case the number of witnesses is very limited and the duration of the trial is short. I find the 5-day estimate was reasonable. Any rejection by the Applicant of earlier dates based on a longer period I find to be unacceptable as a reason to avoid earlier dates.

[40] The 3 months, 29 days’ delay during this period, I find is solely attributable to the Applicant.

Reasonable Delay

The Defence’s Burden

[41] I find that total delay is as the Crown asserts 33 months and 29 days. Defence delay is 6 months, 23 days. Therefore, total delay minus defence delay is 27 months, 6 days, a period less than the presumptive ceiling of 30 months. The delay is therefore presumptively reasonable.

[42] The burden falls to the defence to rebut the presumption of reasonable delay. The defence must establish that even though the non-defence delay falls below the 30-month ceiling that the delay is unreasonable.

[43] While the Applicant mentions the criteria under Jordan required to be met by the defence in cases where delay falls below the ceiling, I find he did not develop a coherent case that the defence succeeded in meeting the criteria.

[44] To justify a stay of proceedings where delay is below the ceiling, the defence has the burden to satisfy the following two criteria:

• that the defence took meaningful steps demonstrating a sustained effort to expedite the proceedings; and
• that the case took “markedly longer” than it reasonably should have.

[ R. v. Jordan, at para. 84]

[45] Action or non-action by the accused that is inconsistent with a desire for a timely trial must be considered by the court. The trial judge should consider what actions the defence could have taken and what actions it actually took to advance to trial as quickly as possible: Jordan, at para. 84.

Meaningful and Sustained Efforts by the Defence

[46] I find the record shows that the defence did not engage in meaningful and sustained efforts to advance the case to trial. I will not repeat the entirety of my conclusions from above but summarize them.

[47] From October 8, 2014 until trial, the Applicant requested numerous adjournments throughout the pre-trial period. Much of this resulted from appearances by agents on behalf of the Applicant’s lawyer and new lawyers where the agents and lawyers were not apprised of the circumstances that underlay the appearances or had not spoken to or received instructions from the Applicant. Needless to say, better preparation by counsel and agents before appearances would have avoided adjournments.

[48] With the request for adjournment of the first judicial pre-trial at the Superior Court, the Applicant failed to provide target dates for trial which resulted in delay attributable to the defence. Target dates would have helped move the matter to trial earlier. There were also adjournments requested for the Applicant to retain counsel and an occasion where new counsel had been retained and a delay resulted from the lawyer being on vacation. There were far too many of these types of requests for adjournment in the pre-trial period. The Applicant seemed to be dragging his feet in getting legal representation.

[49] The failure on October 26, 2016 to accept the earlier trial dates for what I found to be unacceptable reasons resulted in a four-month delay. As I pointed out above, accepting the earlier dates, especially the December 13, 2016 and the March 13, 2017 dates would have meant earlier conclusions for the trial.

[50] The actions of the Applicant go against the spirit of cooperation between the parties and the court encouraged by Jordan. There is no evidence of meaningful and sustained steps by the Applicant to quickly move the case along to trial.

Did the Case Take Markedly Longer Than Reasonable?

[51] A determination of whether this case took markedly longer than reasonable involves consideration of such factors as:

• case complexity and local considerations; and
• whether the Crown took reasonable steps to expedite the proceeding.

[52] Scientific precision is not required in applying these criteria. Trial judges should employ the knowledge of their own jurisdiction including the length of time a similar case typically takes to reach trial in view of relevant local and systemic circumstances: R. v. Jordan, at paras. 87-89, and 91.

[53] On the first criteria regard must be had to the particular circumstances in the Toronto Region of the Superior Court. I find a recent decision by Molloy, J. of our court captures the problems facing the court:

Toronto has always had a busy criminal list, with a higher percentage of complex and long trials than is the case for other jurisdictions in the province, and perhaps in the country. Over the past two decades, as the population has grown and both the length and complexity of criminal trials have increased dramatically, there has been no appreciable increase in the number of judges in this jurisdiction. It has therefore become increasingly difficult to manage the Toronto criminal list in a manner that ensures a trial is scheduled within a reasonable period of time. Trial scheduling in Toronto has always required scheduling more trials than can actually be accommodated, with the knowledge that many of those cases will resolve prior to or on the trial date, and that a number of them will have requested adjournments for circumstances beyond the control of the court and the parties. If we scheduled criminal trials in direct relation to the number of courtrooms and judges available, the waiting list would be years long, rather than months long as we have been able to maintain.

[ R. v. Divecha, 2017 ONSC 1770, at para. 32 (Ont. S. C.J.)]

[54] Molloy, J. went on to discuss the state of scheduling following the Jordan decision. She cited fewer resolutions of cases and continued judge shortage as impediments. Despite enlisting judges from other teams in the court to assist, many trial dates could not be met in the fall of 2017: R. v. Divecha, at para. 33.

[55] The acts of the Crown are also relevant. The Crown did not request any adjournments and in fact expressed concern about delay when the Applicant requested an adjournment because his newly retained lawyer was on vacation. The fact is no delay is attributable to the Crown. The current Crown took proactive steps to expedite the case by limiting the number of witnesses for trial to the Complainant and suggesting 5 days as the length of trial. The Crown accepted the three earlier dates proposed by the court and also suggested the shortest procedure for the challenge for cause to shorten the time for jury selection.

[56] Taking into account local considerations and the Crown’s and court’s efforts to expedite the case, I find this case did not take “markedly longer than reasonable to get to trial”. With cases below the presumptive ceiling, “in clear cases, the defence may show that the delay is unreasonable”: R. v. Jordan, at para. 105. I find this is not one of the “clear cases” of unreasonable delay.

Exceptional Circumstances

[57] I have found the non-defence delay did not exceed the ceiling. I need not consider exceptional circumstances to explain delay.

Transitional Circumstances

[58] A transitional exception may apply to any case already in the system on July 8, 2016 when R. v. Jordan was decided. The transitional exception is in place as an acknowledgement that the parties would have placed reasonable reliance on the earlier Morin framework and would have naturally been unaware of the Jordan framework before July 8, 2016. Jordan explains:

First, for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision. This transitional exceptional circumstance 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 [author’s italics].

[ R. v. Jordan, at para. 86]

I found that the non-defence delay is 27 months, 6 days which does not exceed the presumptive ceiling. The transitional provisions therefore do not apply.

Disposition

[59] I dismiss the application for a stay of proceedings under s. 11(b) and 24(1) of the Charter.

B.A. Allen J. Released: May 9, 2017