Court File and Parties
Court File No.: 14-G30171 Date: 2017/02/10 Ontario Superior Court of Justice
Between: Her Majesty the Queen, Respondent – and – Barney Shum, Applicant
Counsel: Narissa Somji, for the Federal Prosecution Service of Canada John Hale, Melissa MacDonald, for the Applicant
Heard: January 5 and 6, 2017
Reasons for Decision on S. 11(b) Application
Maranger J.
[1] This was an application for a stay of proceedings on the basis that the applicant’s right to be tried within a reasonable time as guaranteed by section 11(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act (UK), 1982, c. 11, has been infringed. On January 11, 2017 the application was denied with written reasons to follow. These are those reasons.
[2] The applicant stands charged on a 3 count indictment; count one alleges the following specified offence:
That the applicant stands charged that, between February 9, 2009 and July 29, 2009, at or near the cities of Ottawa in the East Region and Gatineau in the District of Hull, being a person acting in employment connected with the collection, management, or disbursement of public money, did make opportunity for Micro-Time Inc.; Linda Graham, Stephen Forgie, or John Cassandra to defraud her Majesty in relation to the supply of information technology services to Library and Archives Canada identified as solicitation number TBIPS tier 15Z011-10-0086, thereby committing an offence under section 80 (1) (b) of the Financial Administrations Act RSC 1985, c. F-11.
[3] Counts 2 and 3 allege the same offence and named parties, however the solicitation numbers and time frames are different.
[4] The applicant was charged on May 2, 2014 his trial is set to commence February 27, 2017 with an anticipated completion date of April 7, 2017. The total time frame is approximately 35 months.
Legal Principles
[5] On July 8, 2016 the Supreme Court of Canada released the decision of R v. Jordan, 2016 SCC 27, 398 D.L.R. (4th) 381. The decision dramatically changed the law in deciding whether an accused’s right to be tried within a reasonable time had been violated.
[6] The previous framework for analysing whether the right to be tried within a reasonable time came out of the case of R v. Morin, [1992] 1 S.C.R. 771. Morin required the court to balance four factors:
(1) The length of the delay; (2) defence waiver; (3) the reasons for the delay including the inherent needs of the case, defense delay, Crown delay, institutional delay, and other reasons for delay; and (4) Prejudice to the accused’s interests in liberty, security of the person and a fair trial prejudice can be actual or inferred from the length of the delay.
[7] The majority in Jordan described the Morin approach as “too unpredictable, too confusing, and too complex. It has itself become a burden on already overburdened trial courts” (paragraph 38). The Court went on to indicate that these doctrinal problems have contributed to problems in practice, which have led to a culture of complacency towards delay in our criminal justice system.
[8] I would summarize the essential governing principles or framework to be taken from the Jordan case in the following manner:
i. There is a 30 month presumptive ceiling for matters tried in the Superior Court of Justice. The clock runs from the date that the accused is charged and ends with the actual anticipated end of the trial. If that timeframe exceeds 30 months there is a presumption that the delay has become unreasonable. ii. There is a three-step analysis to be used: first calculate the delay; second deduct from the total any delay waived by defence or caused by the conduct of the defence; third, where the net total exceeds the presumptive ceiling, the onus shifts to the Crown to rebut the presumption of unreasonable delay by demonstrating that there are exceptional circumstances. If the Crown fails to do so, a stay must follow. iii. In cases that were in the system prior to July 8, 2016 there is a fourth step, where the delay exceeds the presumptive ceiling, the Crown can nonetheless invoke transitional, exceptional circumstances, the Crown has to demonstrate that the time was justified on the basis of relying on the previous state of the law. iv. Defence waiver can be explicit or implicit. It has to be clear and unequivocal, a complete understanding of the right and the effect of waiving the right must be demonstrated. v. Delay attributable to the Defence would include: conduct that causes or directly contributes to delay; calculated tactics designed to delay the matter, such as frivolous applications or requests; defence unavailability, so long as both the court and the Crown are ready to proceed. If they are not, the delay will not be found to be caused by the Defence. vi. Any conduct by the Defence undertaken to legitimately respond to the charge will fall outside of the definition of Defence delay. vii. Exceptional circumstances are those that are outside of the control of the Crown. They have to be reasonably unforeseen or unavoidable and the Crown must not have been able to reasonably remedy the delay caused in the circumstances. They come into two categories: discrete events and particularly complex cases. Importantly, when such a delay occurs, it is incumbent upon the Crown and the court to do what it can to mitigate the effect of the delay. The seriousness of the offence standing alone will not be considered an exceptional circumstance. viii. The court also established guidelines for dealing with transitional cases (cases currently in the system). While the new framework applies it has to be applied contextually and flexibly. For cases that exceed the presumptive ceiling, “a transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the party’s reasonable reliance on the law as it previously existed”. Thus, the factors that were relevant under the Morin framework can inform the analysis of cases in the system before Jordan. ix. In cases that fall below the presumptive 30 month ceiling, stays will be rare and limited to the clearest of cases. The reason being that the ceiling “factored in tolerance for reasonable institutional delay established in Morin, as well as the inherent needs and the increased complexity of most cases” (paragraph 83) Jordan further indicated that staying proceedings will be difficult to obtain for cases currently in the system that are beneath the presumptive ceiling, given the level of institutional delay tolerated under the previous approach. x. If the period of delay is under 30 months in the Superior Court of Justice, the burden shifts to the Defence to show that the delay is unreasonable. The Defence must show that it took meaningful, sustained steps to expedite the proceeding, and that the case took markedly longer to conclude that it should have.
[9] In R v. Williamson 2016 SCC 28, 398 D.L.R. (4th) 577, the Supreme Court of Canada provided the considerations applicable to transitional cases. Madam Justice Parfett, in R. v Picard 2016 ONSC 7061, nicely summarized the principles at paragraph 25 where she said:
[25] In R. v. Williamson, the Supreme Court fleshed out the considerations to apply in transitional cases. It suggested that relevant circumstances to consider in a contextual analysis include:
The complexity of the case; The period of delay in excess of the Morin guidelines; The Crown’s response, if any, to any institutional delay; Defence efforts, if any, to move the case along; and Prejudice to the accused.
Principles Applied
[10] I conclude that the application should be dismissed on the basis that when factoring in delay attributable to the defence the matter fell below the 30 month presumptive ceiling. Furthermore, there is nothing in the record before me to support the proposition that the case took markedly longer to conclude that it should have, or that it is a clear case where a stay should be ordered. I agree with the Federal Crown that the delay in this case relates to inherent time requirements of the case and institutional delays.
[11] In any event, if I am in error in my attribution of defence delay, the case at the best exceeds the 30 month presumptive ceiling by 5 months, and primarily on the basis of the complexity of the matter it is an exceptional transitional case that justifies it being heard on its merits despite exceeding the 30 month presumptive ceiling.
[12] The following relevant findings of fact and conclusions drawn from the material filed form the basis of my reasoning:
- The applicant is charged under section 80 of the Financial Administration Act (FAA). He was originally charged with six other accused, some of whom were charged under the FAA (Renaud and Beland) and others who were charged with offences under the Competition Act and the Criminal Code (Micro-time, Graham, Cassandra, and Forgie. The charges were laid in May 2014.
- I find as a fact that it was reasonable for the prosecution service to initially keep the various accused together; this on the basis of expediency, and to avoid multiple proceedings involving the same or similar evidence. The Superior Court of Justice has exclusive jurisdiction over cases under the Competition Act.
- Ultimately in the case of the applicant his charges were severed from the other accused. Primarily because of decisions made by the co-accused in this case.
- The current status of each co-accused is as follows: Stephen Forgie -pled guilty and was sentenced on May 21, 2015; Linda Graham-pled guilty and was sentenced on August 24, 2016; Sylvie Beland-has pled guilty and will be sentenced on December 2, 2017; Renaud-severed and his trial is scheduled for May 2018 in the Ontario Court of Justice; John Cassandra and Micro-Time were committed to stand trial following a preliminary inquiry; their trial is scheduled in the Superior Court of Justice tentatively for October 2017.
- The applicant’s matter is scheduled for trial in the Superior Court of Justice commencing February 27, 2017.
- The case against the accused/applicant dramatically changed in August 2016 when a co-accused Linda Graham provided a detailed statement that will ultimately be used as evidence against him.
- There are very few cases of prosecutions under the FAA, the trial will involve legal interpretation of a criminal statute with little jurisprudence.
- The principal argument put forward on behalf of the applicant, is that the defence took extraordinary steps to try to sever the charge and have it dealt with expeditiously, and the failure on the part of the Federal prosecution service to consent to the severance early on is the main factor in creating the extraordinary delay. I disagree with this analysis.
- I accept in part, the summary of the timeline provided by the Federal Prosecution Service, it is attached as Schedule “A” to this decision. I would attribute 7 months of delay to the defence in lieu of the suggested 11.7 months, thereby reducing the total delay from 35 months to 28 months. I find that the period of time from February 11, 2015 to September 9, 2015, should be attributable to the defence in that they set a date for an application to sever the charges and then abandoned the motion for severance because they discovered that it had to be heard by the judge assigned the trial. This error resulted in 7 months delay. I would categorize the timeframe from September 9 to January 20, 2016, as inherent time requirements and not defence delay.
- In the alternative, if the period February 11, 2015, to September 9, 2015 is considered inherent time requirements, then the particular circumstances of this case allow for a finding that it is an exceptional transitional case that warrants being tried on the merits. I come to this conclusion on the basis of the following: it began as a multi-accused complex Competition Act / Financial Administration Act prosecution involving years of investigation, the nature of the evidence requires several weeks of trial, in the beginning the administration of justice logically supported the proposition that the accused should be kept together, as the prosecution progressed various accused either pled guilty and were severed, and when the interest of justice allowed for it, the applicant was severed and his trial was set at the earliest convenient date to the parties.
- Finally, the prosecution service in this case did nothing overt to cause delay. In applying the previous Morin framework the delay is not outside the guidelines and while I am sympathetic to the applicant in terms of the level of stress he has suffered and the impact it has had on him financially, it is related for the most part to the nature of the offences he faces. A stay of proceedings is simply not justified in this case.
[13] Therefore, for all of the above reasons the application to stay the proceedings is dismissed.
Maranger J.
Released: February 10, 2017
APENDIX “A”
COURT FILE NO.: 14-G30171 DATE: 2017/02/10 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent – and – BARNEY SHUM Applicant REASONS FOR JUDGMENT Maranger J.