COURT FILE NO.: CR-16-0043 DATE: 2017-06-23 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Kevin Matthews, for the Public Prosecution Service of Canada Respondent
- and -
BRENT WABOOSE Michael Hargadon, PM Law Offices Professional Corporation, for the Applicant Applicant
HEARD: May 23, 2017 and June 21, 2017 at Thunder Bay, ON
Madam Justice B. R. Warkentin, R.S.J.
Reasons for Decision on s. 11(b) Application
[1] The Applicant, Brent Waboose, seeks a stay of proceedings pursuant to s. 24(1) of the Charter as a result of alleged violations of his s. 11(b) right to a trial within a reasonable time.
[2] On December 9, 2013, the Applicant travelled by air to the First Nations community of Fort Hope, Ontario. Upon arrival and pursuant to a Band Council resolution and by-law, the Applicant was searched and was found to be in possession of drugs. He was charged with possession of a schedule I substance for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act.
[3] The charge is straightforward and not complex. However, as early as August 20, 2015 the Applicant, through his counsel, informed the court and Crown counsel that he was electing to proceed by way of indictment in the Superior Court of Justice because he intended to challenge the constitutionality of the Band Council resolution that authorized the search. The matter remained in the Ontario Court of Justice until September 15, 2016 when the indictment was issued.
[4] The trial in the Superior Court was scheduled to proceed on June 23, 2017, nine months after the indictment was issued. This charge will therefore have been before the courts for approximately 42 months by the time of the scheduled trial.
[5] In the February 27, 2017 Superior Court, Criminal Assignment Court, defence counsel indicated he would be bringing a s. 11(b) application because of undue delay. The date of May 27, 2017 was scheduled for the s. 11(b) hearing and counsel were instructed to confer with each other and the court to obtain a trial date without further delay. As a result, on March 27, 2017 the trial date of June 23, 2017 was provided. Counsel agreed that if the s. 11(b) application was denied, the June 23, 2017 date would be utilized to argue the constitutional question.
[6] Using the framework set out in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the Applicant alleges a net delay, after subtracting 3 months that he has attributed to defence, of 39 months from the date of the charge to the completion of the trial.
[7] The Applicant argued that a delay of 39 months is presumptively unreasonable and that there were no exceptional circumstances capable of rebutting this presumption. The Applicant therefore seeks a stay of proceedings.
[8] The Crown did not dispute that the total delay exceeded the 30 month ceiling established under Jordan, and agreed that the time from the charge to trial on June 23, 2017 totals 42 months.
[9] The Crown disagreed with the Applicant’s attribution of delay. It was the Crown’s position that there were 12 months of delay attributable to the Applicant. The Crown also contended there were exceptional circumstances in the form of a discrete event that resulted in an additional delay of one month and three weeks. The Crown’s position was that the trial would be concluded in just over 28 months, and thus below the presumptive 30 month ceiling.
[10] In his factum, counsel for the Applicant set out a chart summarizing the various events in this proceeding with corresponding time periods. The Crown agreed with the time periods in that chart and thus I have reproduced those parts of the chart that describe the events and the time spent on or between events below.
| Date | Adj. To | Reason | Quant. |
|---|---|---|---|
| 23 Dec 13 | 29 May 14 | Information sworn 15 Jan, 2014 Fort Hope First Appearance on 29 May due to how frequently this court sits | 156d. |
| 29 May 14 | 25 Sep 14 | First appearance. Applicant is present. He does not have counsel. A charge screening form is provided, which is necessary for a Legal Aid application. Disclosure is not provided. Fort Hope court sits every few months, on average. | 119d. |
| 25 Sep 14 | 29 Jan 15 | Second appearance. Applicant is present. He does not have counsel. Duty Counsel indicates that he has just given the Applicant a charge screening form. Disclosure has not been provided. | 126d. |
| 29 Jan 15 | 27 Feb 15 | Mr. Hargadon first appears as counsel for the accused. Disclosure has been received and reviewed. Issues in the case have been identified. At the request of the defence, a judicial pre-trial is conducted to manage the case. Items of additional disclosure have been requested and are still outstanding. The matter is returned to Thunder Bay to be managed there. | 29d. |
| 27 Feb 15 | 13 Mar 15 | An agent from Mr. Hargadon’s firm appears. A continuation of the judicial pre-trial is scheduled for March 13, 2015. | 14d. |
| 13 Mar 15 | 10 Apr 15 | The judicial pre-trial does not proceed as the assigned judge is not available. A new date is selected. | 28d. |
| 10 Apr 15 | 24 Apr 15 | The judicial pre-trial continuation does not proceed. The Crown requires an opinion to determine whether it will prosecute the offence. Counsel have discussed the logistics of an anticipated preliminary inquiry, with witnesses to be heard in Thunder Bay and Fort Hope. A judicial pre-trial continuation is requested to deal with logistics. | 14d. |
| 24 Apr 15 | 1 May 15 | The Applicant files a Statement of Issues and Witnesses and requests a preliminary inquiry. The Crown and the defence agree that portions of the hearing should be held in Thunder Bay and other parts in Fort Hope. A week is requested to arrange this. | 7d. |
| 1 May 15 | 8 May 15 | All parties are ready to set a date for a preliminary inquiry, but the trial coordinator requires a week to arrange for Fort Hope dates. A special court date must be arranged. | 7d. |
| 8 May 15 | 20 Aug 15 | The preliminary hearing is set on a specially-allocated date in Fort Hope. | 104d. |
| 30 Jun 15 | 20 Aug 15 | The matter is brought forward. The Crown has filed an application to move the preliminary inquiry to Thunder Bay. All witnesses were originally scheduled to be heard on 20 August in Fort Hope. The Crown Application indicates that it wishes the preliminary inquiry moved to save costs and that moving it should not produce significant additional delays. | n/a |
| 20 Aug 15 | 28 Jan 16 | The preliminary inquiry opens. Three police witnesses are examined. The remaining witnesses are ordinarily resident in Fort Hope. The next available date is November 24, 2016; counsel for Mr. Waboose is unavailable on that date. The matter instead goes to the next available Fort Hope date, January 28, 2016. | 161d. |
| 28 Jan 16 | 19 May 16 | The preliminary hearing continuation does not proceed. The Crown has not placed the requested witnesses under subpoena. | 112d. |
| 19 May 16 | 7 Jul 16 | The preliminary hearing continues. All three remaining witnesses have been subpoenaed. Two do not attend. The witness in attendance is examined. A continuation date is set to hear from the remaining two Fort Hope witnesses. | 49d. |
| 7 Jul 16 | 8 Jul 16 | The parties attempt to continue the preliminary inquiry in Fort Hope but the court recording system fails. The matter is returned to Thunder Bay to set new dates. | 1d |
| 8 Jul 16 | 29 Aug 16 | The parties appear in Thunder Bay and fix a continuation date. The remaining witnesses will either travel to Thunder Bay to give evidence or will appear via teleconference. | 52d. |
| 29 Aug 16 | 26 Sep 16 | The remaining witnesses give evidence. The accused is committed to his trial in the Superior Court on consent. | 28d. |
| 26 Sep 16 | 3 Jan 17 | First appearance in Superior Court. A mandatory pre-trial conference is scheduled for January 3, 2017. An earlier date of December 19, 2016 is not available to the defence. | 99d. |
| 3 Jan 17 | 6 Feb 17 | Pre-trial conference. Neither the Crown nor the defence filed their pre-trial conference briefs. A new date is selected. | 34d. |
| 6 Feb 17 | 27 Feb 17 | Pre-trial conference conducted. Matter is returned to assignment court to set dates for trial. | 21d |
| 27 Feb 17 | 23 May 17 | Defence requests two hours’ court time to argue this Application. Matter is returned to another assignment court date to secure trial dates. | 85d |
| 23 May 17 | 23 June 17 | Period from Jordan application to trial date. | 31d |
[11] The Applicant calculated the defence delay as follows: a) Total Delay: 1282 days (42 months, 4 days) b) Defence Delay: 3 months * Failure to retain counsel in a timely fashion: The Applicant acknowledged that some delay should be attributed to him because he did not retain a lawyer in a timely fashion. It was his position that two months (half of the time between the First and Second Appearances between May 29, 2014 and September 25, 2014) were defence delay. * Failure to prepare and file pre-trial conference briefs: Neither the Crown nor the Applicant prepared or filed pre-trial conference briefs in advance of the Superior Court pre-trial as required. This resulted in the first pre-trial in the SCJ being adjourned from January 3, 2017 until February 6, 2017. The Applicant accepted this one month period as defence delay. c) Exceptional Delay re: Discrete Event: None d) Net Delay: 1188 days (approximately 39 months)
[12] The Crown calculated the delay as follows: a) Total Delay: 1282 days (42 months, 4 days) b) Defence Delay: 12 months * Failure to retain counsel in a timely fashion: The Crown submitted that the entire period of May 29, 2014 through January 2015 (a period of approximately 8 months) should be attributed to defence delay on the basis that the matter was remanded at the request of the Applicant on both the First and Second Appearances because the Applicant had not retained counsel. The Crown noted that earlier return dates were available had the Applicant sought an earlier date. It is not clear from the record if the Applicant was offered earlier dates. * Defence Counsel not available: The Crown argued that the two month period of November 19, 2015 through January 28, 2016 should be attributed to defence delay. The preliminary inquiry was originally scheduled to begin on August 20, 2015 on a special date in Fort Hope however; the Crown brought an application to change the venue from Fort Hope to Thunder Bay in June 2015. The preliminary inquiry started but was not completed on August 20, 2015 and was adjourned to be completed in Fort Hope. Counsel for the Applicant was unavailable on November 19, 2015; the first available return date in Fort Hope for the continuation of the preliminary inquiry. The next available date was January 28, 2016. * On January 28, 2016 the preliminary inquiry was not completed due to the failure of the Crown to serve subpoenas upon certain witnesses. The next available date in Fort Hope was April 28, 2016; however, defence counsel was not available on that date. The Crown seeks to attribute the three week period of April 28, 2016 through May 19, 2016 when the preliminary inquiry reconvened to defence delay. * The preliminary hearing did not conclude on May 19, 2016 due to non-attendance of witnesses (subpoenaed). The continuation of the preliminary hearing was scheduled on July 7, 2016. The Crown contends an earlier date of June 16, 2016 could have been available and attributes the three weeks between June 16 and July 7, 2016 to defence delay. It is unclear from the record if the earlier date was sought by either the Crown or defence; or if they were even made aware that an earlier date was potentially available. * A pre-trial date of December 19, 2016 in the Superior Court was offered to the parties however defence counsel was unavailable on that date. The date of January 3, 2017 was secured. The Crown attributes the two week period between December 19, 2016 and January 3, 2017 to defence delay. * Failure to prepare and file pre-trial conference briefs: The Crown did not attribute the period between January 3, 2017 and February 6, 2017 as defence delay when neither party had filed pre-trial conference briefs in advance of the Superior Court pre-trial as required. c) Exceptional Delay - Discrete Event: 1 month and 3 weeks * On July 7, 2016 the court reporter experienced technical problems with the court’s recording system and the alternative back-up system was not satisfactory. The preliminary hearing was adjourned to August 29, 2016, a period of one month and three weeks. Defence council confirmed that a short continuation would not cause significant prejudice to the accused. d) Net Delay: 28 months, 1 week, made up as follows: * Defence delay: 12 months * Exceptional Delay re: Discrete Event: 1 month, 3 weeks
42 months - 13 months, 3 weeks = 28 months, 1 week
Discussion regarding the time from arrest to trial
[13] On July 8, 2016 the Supreme Court of Canada released its decision in Jordan where the presumptive 30 month ceiling was established for matters that proceed in the Superior Court.
[14] On July 8, 2016, this matter had already been in the Ontario Court of Justice for a period of approximately 30 months with the preliminary inquiry still underway.
[15] Initial Crown disclosure was not produced until January 2015; more than a year after the charge was laid. Crown counsel submitted that it was their practice to only provide disclosure when counsel had been retained. Because of the Applicant’s failure to retain counsel in a timely fashion, the Crown argued that disclosure was not delayed unreasonably.
[16] The transcripts from the various court appearances demonstrate that both Crown and defence counsel proceeded with the matter on the basis of the dates offered to them by the court. Neither party sought earlier dates than those offered by the court at any proceeding in the Ontario Court of Justice, except as outlined in the chart above.
[17] The two periods of significant delay were the one year period between arrest and the first appearance by defence counsel as set out in paragraph 15 above and the time required for completion of the preliminary inquiry. The preliminary inquiry was first scheduled to commence on August 20, 2015 in Fort Hope, Ontario but then proceeded instead in Thunder Bay on the motion of the Crown with consent of defence counsel. The preliminary inquiry was eventually completed on August 29, 2016 a period of approximately 12 months.
[18] At the conclusion of the preliminary inquiry, the Applicant was committed to stand trial in the Superior Court, on the consent of the parties, as per the Applicant’s election in August 2015.
[19] There was no suggestion by the Crown that the Applicant was deliberately attempting to delay the proceedings, however, Crown counsel argued that the Applicant did nothing to either expedite the proceedings or attempt to seek earlier dates. To that end, the Crown provided evidence of the Court’s availability for hearing dates in Fort Hope, Ontario to demonstrate that there were more dates available in Fort Hope that could have been utilized to move this matter forward more quickly.
Application of Jordan and Cody principles
[20] This case is not complex. The Applicant was arrested and charged with one count of possession of a schedule I substance for the purpose of trafficking, contrary to section 5(2) of the Controlled Drugs and Substances Act. He was released on his own recognizance with virtually no conditions. Other than this s. 11(b) application, there was only one pre-trial motion in June 2015 by the Crown to change the venue of the preliminary inquiry from Fort Hope to Thunder Bay.
[21] As previously noted, approximately 30 months after the Applicant was charged, the Supreme Court of Canada released its decision in Jordan. On June 16, 2017, one week prior to the scheduled trial, the Supreme Court of Canada released its decision in the case of R. v. Cody, 2017 SCC 31, affirming the Jordan framework, including the transitional period of time for the criminal justice system to adapt (para. 3 of Cody).
[22] As a result of the Cody decision, I invited further submissions from counsel that were heard on June 21, 2017. The court was then informed that the June 23, 2017 trial date would have to be adjourned because the Applicant had not served his factum regarding the constitutional question within the time period required. The Applicant agreed that the delay of the trial from June 23, 2017 should be attributed to defence delay. Thus, the 42 month period is still the applicable time frame for the purposes of this s. 11(b) application.
[23] The first step in the Jordan framework is to calculate the total delay from the charge to the end of trial, which for the purposes of this application has been agreed as being 42 months. From this, the “delay attributable to the defence must be subtracted” (Jordan, at para. 60). Once defence delay is subtracted from the total delay, the next step “depends upon whether the remaining delay - that is, the delay which was not caused by the defence - is above or below the presumptive ceiling” (Jordan, at para. 67).
[24] After considering the Applicant’s and Crown’s positions on the attribution of delay I attribute a total of 4 months and 2 weeks to defence delay. As such the net delay exceeds the ceiling of 30 months by 7 months and 2 weeks (using 4 weeks in a month).
[25] In reaching the total defence delay of 4 months and 2 weeks, I drew the following conclusions: a) I find that 4 months of the 8 month period between the First Appearance and when the Applicant retained counsel is attributable to defence delay. The period between arrest and retaining of counsel should not be considered defence delay, unless, like here, an accused fails to retain counsel in a timely fashion. Cody specifically noted that an “accused person’s right to make full answer and defence requires that the defence be permitted time to prepare and present its case. … “For this reason, “defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay” and should not be deducted” (Jordan at para. 65 and Cody at para. 29). Thus, the only defence delay that I attribute to this period is the 4 months between the first and second appearance, when the Applicant failed to retain counsel in a timely fashion. b) I do not attribute any delay to the Applicant due to the possibility that earlier first appearance dates might have been made available should the Applicant have sought earlier dates during this period. The Applicant did not have counsel during this period and the Crown did not seek to proceed on earlier dates. The same reasoning as in subparagraph (a) above applies to this part of my conclusions. c) I do not attribute any of the delay from August 20, 2015, the first date scheduled for the preliminary inquiry, to its conclusion on August 29, 2016 to defence delay. The Crown sought to move the preliminary inquiry from Fort Hope, where special dates had already been secured for August 20, 2015, to Thunder Bay on the same date in order to reduce expenses, citing it was less expensive to have witnesses attend in Thunder Bay from Fort Hope than to move the court and staff to Fort Hope for the hearing. * The Crown intended to ensure that all witnesses were present in Thunder Bay on August 20, 2015 and if not, a different special date in Fort Hope was to be secured for those civilian witnesses who resided in Fort Hope. On August 20, 2015, only the police witnesses were present in Thunder Bay. Their evidence was concluded within a couple of hours. The three civilian witnesses had not been brought to Thunder Bay from Fort Hope. A total of three hours was required to complete their evidence. * The next available regular court date in Fort Hope was not until November 2015, on a date that defence counsel was unavailable. The matter was then scheduled to continue on January 28, 2016 in Fort Hope, the next available date. On that date, the preliminary inquiry could not proceed because Crown counsel had failed to serve the subpoenas on the witnesses. * In total, the preliminary inquiry that required no more than 2 days of evidence was spread over 12 months. I attribute all of this delay to either the Crown or to the failure by the court to provide dates in a timely fashion. I do note that the defence was collaborating with Crown counsel to a certain extent with respect to the available dates and did not raise an issue on the record as to the time the preliminary inquiry was taking. Nonetheless, had the matter proceeded in Fort Hope on August 20, 2015 as originally scheduled or continued on January 28, 2016 had the Crown subpoenaed the witnesses, this matter very likely would not have surpassed the 30 month ceiling. * I also must comment that the time taken to complete the preliminary inquiry in this matter vastly exceeds any reasonable timeframe for a case of this nature. Even in a pre-Jordan and Cody environment, this length of delay is not an acceptable delay. I will comment further on this in my analysis of the transitional exceptional circumstances later in my reasons. d) While there was a 2 week delay when defence counsel was unavailable for an earlier pre-trial hearing that period occurred during the Christmas/New Year period in 2016/17. It is not reasonable to assign a short period of this nature to defence delay when the delay involved was so meagre and particularly when it happened during a holiday period. e) Both Crown and defence were jointly responsible for the additional delay when the pre-trial hearing originally scheduled in January 2017 did not proceed due to the failure of the Crown and defence to file pre-trial conference briefs. I therefore split this period of delay between the Crown and the defence. The net result is two weeks of additional delay attributable to the defence.
[26] Because the net delay after subtracting delay attributed to the defence of 4 months and 2 weeks (a net delay of 37 months and 2 weeks), exceeds the ceiling of 30 months as set out in Jordan, the delay is presumptively unreasonable. It is up to the Crown to rebut this presumption by establishing the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow. (Jordan at para. 47).
[27] I accept the Crown’s position that there was an exceptional circumstance in the form of a discrete event that occasioned a delay of one month and three weeks when the recording system failed. I also find that the Applicant had waived the delay that occurred due to this recording system failure. Therefore a further deduction of 1 month and 3 weeks should be subtracted from the total delay.
[28] Based upon my calculation of the delay, I have attributed 4 months and 2 weeks to defence delay and 1 month and 3 weeks to a discrete event, totaling 6 months and 1 week of delay that should be subtracted from the overall time from arrest to trial. By my calculations the net delay is as follows:
42 months from arrest to the end of trial - 6 months and 1 week = 35 months, 3 weeks
[29] A delay of 35 months and 3 weeks is presumptively unreasonable. It is up to the Crown to demonstrate that the transitional exceptional circumstance justifies the delay (Jordan, at paras. 95-96 and Cody at para. 25).
Is there a Transitional Exceptional Circumstance?
[30] The final step in the analysis when the charges were brought prior to the release of Jordan and when there has been an unreasonable delay is to assess whether there are transitional exceptional circumstances that apply. This exercise “involves a qualitative exercise. It recognizes “the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice” and that “change takes time” ” (Jordan at paras. 96-97 and Cody at paras. 67-68).
[31] In this analysis, “the Crown may show that it cannot be faulted for failing to take further steps, because it would have understood the delay to be reasonable given its expectations prior to Jordan and the way delay and the other factors such as the seriousness of the offence and prejudice would have been assessed under Morin.” (Cody at para. 68).
[32] Both Crown and defence noted the unique difficulties associated with matters in Northwestern Ontario, particularly when parts of proceedings are conducted in more remote communities such as in the Fort Hope First Nation with the limitations that may present in terms of obtaining court dates.
[33] I acknowledge that there are certain challenges to proceeding in the “satellite courts” of the Ontario Court of Justice in Northwestern Ontario; however, as noted by the Crown, if required, earlier dates throughout the proceeding in the Ontario Court may have been available to the parties had they been requested.
[34] As already noted, this case was not complex. The offence of possession for the purposes of trafficking, while serious, would have probably been tried in the Ontario Court of Justice but for the constitutional question being advanced by the Applicant. Thus, the seriousness of the offence under the Morin framework in the context of these facts is not something that affected the time the case required to reach a trial.
[35] Continuing with the Morin factors, the issue then rests on the prejudice to the Applicant when considering whether the delay was unreasonable. The Crown and defence agreed that the prejudice to the Applicant was the inherent prejudice caused by the 35 month, 3 week period in reaching trial within a reasonable time. The Applicant has faced the prospect of a trial and the fact that these charges were pending for more than three years. While the prejudice is modest, a delay of this nature for this offence on these facts is a factor to be considered.
[36] The argument that the unique difficulties of scheduling cases in the northern satellite courts does not assist the Crown in justifying the delay in this proceeding under the transitional exceptional circumstances given the Crown’s submission that earlier dates could have been available if they had been sought.
[37] I find that there was a general lack of diligence in moving this case forward that cannot be justified as a transitional exceptional circumstance. I return to the fact that Crown disclosure was not made for more than a year and that a two day preliminary inquiry required more than 12 months to complete. Therefore even though there was only modest prejudice to the Applicant, the delay exceeding the ceiling of 30 months cannot be justified.
[38] I therefore find that the Applicant’s right to be tried within a reasonable time under s. 11(b) has been violated and a stay of proceedings under section 24(1) of the Canadian Charter of Rights and Freedoms is granted.
_________ “original signed by” ___________
Madam Justice B. R. Warkentin, R.S.J.
Released: June 23, 2017