Court File and Parties

COURT FILE NO.: CR-14-7873 DATE: 20170116

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent on Motion

– and –

DEVONTAY HACKETT Accused/Applicant on Motion

COUNSEL: M. Boyce and C. Lem, for the Crown J. Addelman and S. Robinson, for the Accused/Applicant on Motion

HEARD: January 6, 2017 (Ottawa)

REASONS FOR DECISION: S. 11(b) CHARTER APPLICATION

C.T. Hackland J.

Reasons for Decision

[1] The Accused brings this application under s. 11(b) of the Charter submitting that his right to a trial within a reasonable time has been infringed. He is charged with one count of second-degree murder. The charge was laid June 10, 2014 and a warrant of arrest was issued the same day. He remained a fugitive for one month and was arrested on July 22, 2014 and has remained in custody.

[2] The Accused’s trial commences today, January 16, 2017 and is expected to conclude in five weeks (February 19, 2017). The total delay is therefore 32.5 months, marginally in excess of the presumptive ceiling for reasonable delay identified by the Supreme Court in the recent case of R. v. Jordan, 2016 SCC 27, [2016] S.C.J. No. 27.

[3] The Notice of Application is dated December 1, 2016. The required transcripts subsequently became available and counsel argued this application on January 6, 2017. Due to the pending trial dates I gave counsel my decision, in which I dismissed this application, at the conclusion of argument, with my reasons to follow. These are the court’s reasons.

[4] I agree with both counsel and in particular with defence counsel who acknowledged at the opening of his submissions that there has been “good collaborative cooperation between counsel in moving this case along.” This is borne out by a review of the record. Counsel for the Crown ensured a timely disclosure in several installments, of the significant amount of evidence in this case and defence counsel appears to have sought to move the matter ahead in a consistent manner.

[5] In retrospect it can be seen that a delay problem arose at the Superior Court Judicial Pretrial which took place on October 23, 2015. That is when the current trial start date was set for today, January 16, 2017, for an expected five-week trial. Why was the trial set for a date nearly 15 months in the future? Counsel agree that this was the earliest trial start date available to all counsel. Counsel agreed to that date without any objections in reliance on the applicable Morin guidelines and the existing practice in Ottawa of setting criminal jury trial dates for trials of this length in the range of 12 to 14 months in the future.

[6] When the Jordan decision was released some nine months after the trial dates in this case were set, it became apparent that the trial dates were about two months over the presumptive ceiling in Jordan. Notwithstanding this, neither party sought to have the trial dates advanced and the defence did not notify the Crown of the present application until December 1, 2016. Both counsel agree that the chance of obtaining earlier trial dates from the court which they and the court could accommodate, as of early fall 2016, were not practicably possible.

[7] I will now apply the Jordan analytical framework to the delays in this case.

[8] The first step is to establish the overall delay which I find to be 32 months (from the June 10, 2014 charge date to February 19, 2017, the expected conclusion of trial).

[9] The second step is to deduct delay attributable to the defence. This generally refers to periods when the court and Crown are prepared to proceed and the defence is not.

[10] The accused remained a fugitive, knowing he was being sought by the police, for a one-month period until his arrest. This is a classic example of defence delay and I will count it as such.

[11] The one contentious issue concerning defence delay relates to a one-month delay in setting preliminary hearing dates in the Ontario Court of Justice. There were two judicial pretrials (“JPTs”) at the second of which the preliminary hearing dates were set. The Crown contends the dates could and should have been set at the first judicial pretrial, but this did not happen because defence counsel was not ready to do so. The Crown emphasizes that significant disclosure was made to defence counsel some five weeks before the first judicial pretrial and he should therefore have prepared and filed, or made available to the pretrial judge, his ‘defence statement of issues’, which informs the court of (1) the issues on which the defence wants evidence to be led at the preliminary inquiry; (2) the witnesses the defence wants to hear at the preliminary inquiry; and (3) whether or not committal is in issue.

[12] I am persuaded that the unavailability of the defence statement of issues document was a material reason for needing a second JPT. On the other hand, in reviewing the pretrial judge’s notes (Exhibit 2), I find that he has noted:

• no file (i.e. no judicial pretrial file available)
• no defence statement of issues
• told 50 witnesses — but Crown might call “5”
• ? DNA
• ? video — counsel to discuss for preliminary hearing
• we need to have another jpt to define issues
• we had no file

[13] I interpret the pretrial judge’s notes as essentially saying that the scope of the case was such that a second judicial pretrial would be helpful, which was entirely reasonable given the seriousness of this case, the apparent large number of witnesses, the existence of DNA evidence, and perhaps video evidence — all relevant to the length of time to be reserved for the preliminary inquiry. I think it would be unfair to call this one-month delay to accommodate a second judicial pretrial as ‘defence delay’, although the defence must accept some responsibility for not making available the defence statement of issues during the first JPT. It has to be recognized that in serious cases involving substantial evidence, a second JPT is often required.

[14] Returning to the October 23, 2015 judicial pretrial in the Superior Court — the issue is why the trial dates were not set for an earlier time than January 16, 2017. The transcript available to the court makes it clear the court was offering earlier dates than counsel chose but unfortunately I do not know what those dates were or who was unavailable on the earlier dates. The transcript discloses the pre-trial judge as saying: “[T]hat was the first available dates for all counsel. There are other dates that I’ve given to counsel, but I need not repeat them here.” All that can be said is that these dates were chosen by agreement of both counsel, without protest or expressions of concern, and without any subsequent attempt to have the dates advanced.

[15] I would also note that there had been a nine-month delay in the Ontario Court of Justice from the set date of the preliminary inquiry (October 30, 2014) to the start date (July 20, 2015), with agreement of counsel. The preliminary inquiry was completed in seven days —half the allotted time. I have no information as to what dates were originally offered or as to any defence concerns about delay.

[16] In summary then, the period of delay net of the one-month defence delay is about 31 months, narrowly above the Jordan presumptive ceiling. This means that the delay is presumptively unreasonable and the burden shifts to the Crown to justify the delay as having been due to ‘exceptional circumstances’.

[17] Exceptional circumstances are normally viewed as falling within one or more of the following categories: (1) discrete and exceptional events, (2) particularly complex cases, and (3) for cases such as this which were already in the system prior to the Jordan decision in July 2016, there are exceptional circumstances based on reasonable reliance on the pre-Jordan case law on constitutional delay or, in some jurisdictions, significant institutional delay.

[18] With respect to the one-month period during which the accused was a fugitive, this could be labelled as a discrete or exceptional event, but I think it is more clearly seen as defence delay. I would not characterize this case as a ‘particularly complex case’ even though it is a second degree murder charge involving a large number of witnesses and expert and scientific evidence. In fact it is a fairly average, moderately complex murder case that does not belong in the ‘particularly complex’ category discussed in Jordan.

[19] I agree with defence counsel that the key issue in this s. 11(b) application is whether the transitional exceptional circumstances apply, which essentially means that the Crown must demonstrate that there was reasonable reliance on the pre-Jordan constitutional delay case law. I do not think there can be any doubt on the facts of this case that counsel were in fact relying on the pre-Jordan regime. There is no indication in the record or to be deduced from the progress of matters in this case, that counsel, or indeed the court, were of the view that there was unconstitutional delay. The trial dates was set in the belief that they were reasonably timely and appropriate and within the scheduling timeframe in Ottawa. The Jordan decision with the new 30-month presumptive ceiling has caused all those involved in the court processes to re-evaluate their approach and their expectations with respect to the timely progress of criminal trials.

[20] As noted, under the transitional exception, where there is reasonable reliance on the pre-Jordan principles governing s. 11(b) resulting in delay beyond the 30 month presumptive ceiling, the delay will be justified. The rationale for this approach is explained by the Supreme Court at para. 94 of Jordan:

[94] Here, there are 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. However, in jurisdictions where prolonged delays are the norm, it will take time for these incentives to shift the culture. As well, the administration of justice cannot tolerate a recurrence of what transpired after the release of Askov, and this contextual application of the framework is intended to ensure that the post-Askov situation is not repeated.

[21] The Supreme Court noted the relevance of the seriousness of the offence in the prior jurisprudence and in the transitional exception at paras. 96 and 97 of Jordan:

[96] 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. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice. For example, prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework. For cases currently in the system, these considerations can therefore inform whether the parties’ reliance on the previous state of the law was reasonable. Of course, if the parties have had time following the release of this decision to correct their behaviour, and the system has had some time to adapt, the trial judge should take this into account.

[97] Moreover, the delay may exceed the ceiling because the case is of moderate complexity in a jurisdiction with significant institutional delay problems. Judges in jurisdictions plagued by lengthy, persistent, and notorious institutional delays should account for this reality, as crown counsel’s behaviour is constrained by systemic delay issues. Parliament, the legislatures, and Crown counsel need time to respond to this decision, and stays of proceedings cannot be granted en masse simply because problems with institutional delay currently exist. As we have said, the administration of justice cannot countenance a recurrence of Askov. This transitional exceptional circumstance recognizes that change takes time, and institutional delay—even if it is significant—will not automatically result in a stay of proceedings.

[22] I will review the delays in this case applying the pre-Jordan law, i.e. the Morin analysis. In the Morin analysis the court must consider the following:

(1) Length of the delay; (2) Waiver of any time periods by the accused; (3) Reasons for the delay, including: (a) The inherent time requirements of the case; (b) Conduct of the accused or delay attributable to the accused; (c) Conduct of the crown or delays attributable to the crown; (d) Systemic or institutional delays; and (e) Any other reason for the delay.

[23] Once this starting point is determined, the Court must analyze the delay to determine what periods are intake, inherent and defence delay, and what periods are Crown and/or institutional delay. For cases in the Superior Court of Justice, Morin sets a guideline of 14 to 18 months of institutional delay (plus court delay, if any). This period can be adjusted upwards or downwards, depending on a host of factors in the case, including prejudice to the accused, the seriousness of the charges and the like.

[24] The case law recognizes intake activities such as the period usually up to the judicial pretrial in both the Ontario Court of Justice and the Superior Court as neutral and not as institutional delay. In addition the actual time required to conduct motions, the preliminary inquiry and trial, are neutral. Further, the cases recognize that the delay between set date and preliminary inquiry and between set date and trial should ordinarily be reduced by a notional preparation component unless the accused can be seen as being prepared to proceed immediately. (See R. v. Lahiry, 2011 ONSC 6780 and R. v. Tran, 2012 ONCA 18.)

[25] As noted, for a case in the Superior Court the Morin guidelines set a limit for institutional delay (plus Crown delay, if any) of a total period of 14 to 18 months. In this case the institutional delay in the Ontario Court of Justice is the 8.75 months between the set date and the commencement of the preliminary inquiry. To that delay I would add the nearly 15 months in the Superior Court from the set date for the trial and commencement of trial. From these 23 months I would deduct one month in the Ontario Court and two months in the Superior Court for the ready to proceed considerations discussed by Code J. in Lahiry. I calculate the Morin institutional to be 20 months, slightly above the Morin guideline of 18 months.

[26] In Ottawa jurisdiction, the pre-Jordan norm for setting trial dates for long criminal jury trials was 12 to 13 months and this is reflective of available judicial resources and the avoidance of scheduling jury trials in July and August. This consideration, along with the general Morin guidelines and the moderate complexity and the seriousness of this murder charge serve, in my opinion, to invoke the transitional exception.

[27] It is important that at no time prior to bringing the present application in December 2015 did the defence raise concern about constitutional delay in this case and the inference to be drawn is that reasonable reliance was being placed on the Morin guidelines and the conventional scheduling practices in this jurisdiction. All scheduling steps preceded the Jordan decision and re-scheduling a trial of this length was not possible in practical terms.

[28] I respectfully agree with and adopt the Crown’s concise summary of why the delays in this case are reasonably justified under the transitional exceptional circumstances exception, as follows:

• Every significant step in the procedural history of this case that could have impacted on delay was undertaken relying on pre-Jordan principles;
• There were no realistic steps that the Crown could have taken to reduce the overall delay in response to the decision in Jordan which was released in July 2016 in light of this jurisdiction’s Superior Court of Justice trial schedule and counsel’s availability;
• There were no missteps or mistakes by the Crown or police that would undermine the reasonableness of the Crown’s reliance on pre-Jordan principles;
• The overall institutional delay in this case, while impossible to quantify precisely, is, even at its highest, not beyond the norm in this jurisdiction for a case of this complexity and may indeed even be within the guidelines set out in Morin when the two periods of institutional delay are combined.
• A stay of proceedings in a case with this period of overall delay would effectively mean that most transitional homicides in this jurisdiction that would not otherwise have attracted 11(b) scrutiny would now be stayed. This is exactly the situation that the Supreme Court in Jordan repeatedly warned against and it is precisely why the court provided for a transitional exceptional circumstance in the first place.

[29] Accordingly, in my view, to stay this murder charge when the Jordan ceiling is only moderately exceeded (i.e. 31 months assuming the trial will require the full five weeks allotted) and in circumstances where the court and counsel reasonably acted in reliance on the previous regime for the calculation of s. 11(b) delay, to not permit a trial of this serious charge on the merits, would bring the administration of justice into disrepute.

[30] The Accused’s s. 11(b) Charter application is dismissed.

Mr. Justice C.T. Hackland Released Orally: January 16, 2017