Court File and Parties
COURT FILE NO.: CRIMNJ(P) 586/14 DATE: 2017 06 07
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: HER MAJESTY THE QUEEN (Respondent) – and – AYMANN ELHAKIM (Applicant)
BEFORE: Hill J.
COUNSEL: J. Kingdon, for the Respondent M. Ellison, for the Applicant
HEARD: June 7, 2017
RULING (SUPPLEMENTARY)
[1] These reasons supplement this morning’s in-court endorsement granting the applicant an adjournment of his trial scheduled to commence at the June 12, 2017 sittings.
[2] In written reasons of April 28, 2017, the court dismissed a s. 11(b)/24(1) Charter application (2017 ONSC 2529). This prosecution, commenced in 2013, falls into the transitional population of cases moving through the courts for completion after the July 8, 2016 release of R. v. Jordan, 2016 SCC 27.
[3] Prior to the current application, there had been delays in this case on account of health issues relating to justice participants – defence counsel (Mr. M. Quigley) in 2015 and an essential police witness (Constable Lancaster) in 2016.
[4] Regrettably, and unforeseeably, Mr. Quigley has been injured in a motorcycle accident and is unable to return to practice before the last week of June 2017. In these circumstances, Mr. Kingdon quite properly consented to the court vacating the June 12 trial date.
[5] As discussed in its delay-to-trial ruling, the delay necessitated by this type of adjournment, a serious health issue, constitutes neutral time under the Morin analysis ([1992] 1 S.C.R. 771) and, under the Jordan framework, an exceptional circumstance respecting the Crown (i.e. prosecutor or Crown witness) or defence delay where a trial date is lost on account of the defence (i.e. defence counsel or accused or defence witness).
[6] In selecting the December 11, 2017 sittings as the new trial date, the court had regard to not only defence counsel’s professional schedule but also the reality of the Superior Court of Justice in Peel making extraordinary efforts to concurrently and expeditiously dispose of a transitional body of cases while accommodating new post-Jordan indictments within the new presumptive cap regime. Given that the December 11 sittings are already relatively fully booked, but less so that many weeks of the fall schedule, it may be that the Crown will be confronted during that sitting with having to assess the priority of its cases in the event that they cannot all be reached for trial that week.
[7] Without suggesting any criticism of the applicant and counsel whatsoever, a couple of practice points are worthy of note.
[8] First, the issue of the adjournment of the June 12 trial date was initially advanced at the June 2 Trial Readiness Court (TRC) appearance. This was helpful and the timing understandable in this case given the unfortunate injury to defence counsel. The application today was a Rule 26 application with a proper record (notice of application/affidavit). What is unacceptable, and has been occurring with increasing frequency, is the trend of Crown or defence counsel using the TRC Rule 28.04 (18)(a) appearance as a kind of poor man’s Rule 26 adjournment application, without written materials, to vacate a trial date. An attempt to eliminate a scheduled trial date, particularly in the Jordan era, should generally be processed as a Rule 26 application on a proper record, even if circumstances necessitate seeking leave for short service and relief from the Rule 26.03 service requirements.
[9] The second point relates to the requirement of Rule 26.04(2) which reads:
Affidavit by or on Behalf of the Applicant
(2) The affidavit by or on behalf of the applicant required by subrule (1) shall contain:
(a) particulars of the indictment in which is contained the charge upon which the order adjourning the date upon which trial proceedings are scheduled to commence is sought;
(b) particulars of any prior applications, whether on behalf of the accused or the prosecutor, to have the trial of the indictment adjourned from a date fixed for trial to a subsequent date, including, where available, transcripts of proceedings taken upon such applications;
(c) a full statement of all facts material to a determination of the application without disclosing any solicitor client communications in respect of which solicitor client privilege has not been waived; and,
(d) a statement of the date or dates to which it is proposed to adjourn the matter for trial.
[10] Having particular regard to paras. (b) to (d), compliance with these paragraphs requires certain key information given the Jordan decision and s. 9 of the SCJ Provincial Practice Direction Regarding Criminal Proceedings (effective May 1, 2017) which reads:
Part II: Appearances on Indictments
- On every appearance on an indictment in the Superior Court of Justice, Crown and defence counsel and any self-represented accused person must be prepared to advice the presiding judge whether any
a. previous time periods in the case in either the Superior Court of Justice or the Ontario Court of Justice; and
b. any adjournments or time periods to future scheduled events in the Superior Court of Justice
are attributable to defence delay or exceptional circumstances as described in R. v. Jordan, 2016 SCC 27. Counsel must also be prepared to identify the start and end dates for any such time periods.
(emphasis added)
[11] Accordingly, apart from the existing and well-known textual requirements of Rule 26.04(b) to (d), and subject to any agreed statement of facts as may be submitted by the parties orally or in writing, the court entertaining an adjournment application will generally expect an affidavit by or on behalf of the applicant detailing:
(1) the earliest date when counsel for the applicant, and his or her witnesses, will be available for a trial of the expected duration of the relevant prosecution
(2) alternative dates in chronological order should the earliest date be unavailable to the other party or to the court
(3) particulars of prior adjournment applications (including dates/ requesting party/ reason for adjournment/ other party’s position/ result of ruling etc.) with identified Morin and/or Jordan attribution as the case may be, respecting any such adjournment
(4) whether the history of the case includes any “exceptional circumstances” as described in the Jordan case
(5) a submitted characterization of the delay to any new trial date, as may be set by the court, should the adjournment application be granted.
[12] Ruling accordingly.