COURT FILE NO.: CR-17-90000041-0000 DATE: 20170120 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – EVERALD BRISSETT, COURTNEY BENJAMIN and GARY MORRIS
Eric Gilman and Kiran Gill, counsel for the Crown Respondent Chris Morris, counsel for the Applicant Brissett Susan Pennypacker, counsel for the Applicant Benjamin Reid Rusonik, counsel for the co-accused Morris
HEARD: January 10, 2017
M.A. CODE J.
REASONS FOR JUDGMENT:
SECTION 11(B) CHARTER APPLICATION
A. INTRODUCTION
[1] The three accused, Everald Brissett, Courtney Benjamin and Gary Morris (hereinafter, Brissett, Benjamin and Morris), are charged in a five count Indictment with possession of cocaine for the purpose of trafficking and possession of proceeds of crime. They elected trial by judge alone and the trial is presently proceeding before me.
[2] At the beginning of the trial, on January 9, 2017, two of the accused (Brissett and Benjamin) brought an Application alleging a violation of s. 11(b) of the Charter of Rights. That provision guarantees the right to trial within a reasonable time. The third accused (Morris) did not join in the Application. I heard the s. 11(b) Application on the next day, January 10, 2017, on short notice. A substantial documentary Application Record was filed by the parties. There was no viva voce evidence. At the end of a full day of submissions, I dismissed the Application with Reasons to follow. These are my Reasons.
B. OVERVIEW AND HISTORY OF THE PROCEEDINGS
[3] In my brief oral Reasons for dismissing the Application, I held that the total delay in the case was 36 months. The Information charging the accused was laid on January 25, 2014 and it is anticipated that the trial will conclude by no later than January 27, 2017. Accordingly, the presumptive 30 month ceiling for s. 11(b) delay, recently established in R. v. Jordan (2016), 2016 SCC 27, 335 C.C.C. (3d) 403 (S.C.C.), will have been exceeded.
[4] I also held that there was a certain amount of “defence delay,” as that term is defined in Jordan, which would reduce the relevant period of delay to something close to the 30 month ceiling. In addition, I held that there was a further period of delay that could be characterized as an “exceptional” discrete event, in the Jordan sense. This would further reduce the relevant period of delay to something below the 30 month ceiling. Finally, I held that the case would not have been in s. 11(b) Charter jeopardy under the pre-existing framework for analysis, set out in R. v. Morin (1992), 71 C.C.C. (3d) 1 (S.C.C.). As this is a transitional case, where most of the delay occurred prior to the release of Jordan on July 8, 2016, I held that the “transitional exceptional circumstance” discussed in Jordan, was also applicable. For all these reasons, I dismissed the s. 11(b) Application.
[5] It can be seen that the issues on the present Application require some analysis of the history of the proceedings, in order to determine whether there were any periods of “defence delay,” whether there were any discrete events that amount to “exceptional circumstances,” and whether there was “reasonable reliance on the law as it previously existed” and, therefore, the “transitional exceptional circumstance” applies. All of these terms are explained in Jordan.
[6] I will briefly set out the history of the proceedings in summary form and address the less contentious periods of delay. The more contentious periods of delay will then be analyzed in greater detail under three subject headings: “defence delay”; discrete events that amount to “exceptional circumstances”; and the “transitional exceptional circumstance.”
[7] The history of the proceedings can be condensed into six major blocks of time. The broader context for these six time periods is the factual circumstances in this case that the Crown seeks to prove, which are serious and involve some complexity. The police seized a total of about 24 kilograms of cocaine, at three different but connected locations. The cocaine was packaged in large amounts, generally in one kilo packages, and it was associated with suitcases and with industrial buckets of cutting agent. In other words, the accused are alleged to be high-level cocaine traffickers, situated close to the importers. The police investigation, including arrests and search warrants, depended on a confidential informant, on physical surveillance evidence, and on an oral statement allegedly made by one accused at the time of arrest. There were a number of co-accused, as five persons were initially arrested and charged. In other words, the case is serious, it raised some potentially complex s. 8, s. 9, and s. 10 Charter issues that had to be explored, and it required considerable case management skills to find relatively large blocks of court time and to schedule them into the calendars of six lawyers for the Crown and the defence.
[8] The six periods of delay in the proceedings are as follows:
January 25, 2014 to May 2, 2014. This initial period, from the laying of the charges until the judicial pre-trial in the Ontario Court of Justice, was three months and one week. The parties agree that under the old Morin framework, it would have been called “the intake period” and it would have carried neutral weight in the s. 11(b) balancing as “inherent delay.” It is apparent to me that all parties worked efficiently and effectively during this period and they expedited the case. Bail hearings were held for the five accused, they were all released on bail, counsel were retained to some degree for all accused, disclosure was expedited by the Crown and was completed, the need for a Crown pre-trial was waived, and the judicial pre-trial was scheduled into the busy calendars of six lawyers. In short, this period was a model of fast and effective lawyering on all sides.
May 2, 2014 to March 9, 2015. This period of ten months and one week was the time between the judicial pre-trial and the first of three consecutive days scheduled for the preliminary inquiry. The earliest dates available to the Court for a three day preliminary inquiry were about two weeks prior to the scheduled dates and the hearing was delayed for this short period because of one lawyer’s calendar. The five defence lawyers had earlier dates available in July 2014, which the Court could not accommodate. Finally, one lawyer was not yet fully retained but agreed to set a date “with or without counsel.” In all these circumstances, the parties agree that there were almost two weeks of “defence delay,” under the new Jordan framework, because of counsel’s brief unavailability. Under the old Morin framework, there were at least two months of inherent delay, to allow counsel time in May and June of 2014 to clear their calendars and prepare, and there were the previously noted two weeks of defence delay. Accordingly, there were just under eight months of systemic delay, which is below the bottom end of the Morin guideline for systemic delay. See: R. v. Morin, supra at pp. 16-21 and 26-7; R. v. Tran (2012), 2012 ONCA 18, 288 C.C.C. (3d) 177 at para. 32 (Ont. C.A.); R. v. Lahiry (2011), 2011 ONSC 6780, 283 C.C.C. (3d) 525 at paras. 25-37 (Ont. S.C.J.).
March 11, 2015 to September 18, 2015. This is one of the more contentious periods of delay and the parties do not agree as to how it should be characterized, either under Jordan or Morin. I will discuss it in greater detail below, under the heading “exceptional circumstances.” In brief summary, this period of six months and one week is the time that it took to complete the evidence at the preliminary inquiry. The parties had agreed, at the judicial pre-trial, that the preliminary inquiry could be completed in three days, and so three consecutive days in early March 2015 were scheduled. In my view, this was an accurate estimate of the time required for the contemplated hearing. For a variety of reasons, explained below, the preliminary inquiry expanded and three more days were required to complete the evidence (July 13 and 22 and September 18, 2015 became the three added dates). At most, the Applicants concede that there were about two weeks of “defence delay” in this period, because of counsel’s unavailability. The Crown alleges a lengthier period of “defence delay.” In my view, there were a number of contributing reasons for this period of delay, making it somewhat more difficult to characterize, as will be explained below.
September 18, 2015 to October 6, 2015. This three week period is not contentious. It was the time needed to schedule closing submissions and the time needed by the preliminary inquiry judge to draft his Reasons, committing the final two accused for trial. The Crown had previously stayed the charges against one accused and the defence had previously conceded committal in the case of two other accused. The Court and the parties moved expeditiously to complete these final steps in the Ontario Court of Justice. It is agreed that this period would have been regarded as neutral or inherent delay under the old Morin framework.
October 6, 2015 to December 9, 2015. This two month period is not contentious. It is the time between committal in the Ontario Court of Justice and the judicial pre-trial (JPT) in the Superior Court of Justice. The Crown drafted the Indictment quickly, the parties appeared in Assignment Court within three weeks of committal on October 28, 2015, and a JPT was scheduled into the calendars of five busy lawyers within five weeks. The parties agree that this time would have been characterized as neutral or inherent delay under the old Morin framework. See: R. v. Khan (2011), 2011 ONCA 173, 270 C.C.C. (3d) 1 at paras. 44-55 (Ont. C.A.); R. v. Nguyen (2013), 2013 ONCA 169, 2 C.R. (7th) 70 at paras. 53-60 (Ont. C.A.).
December 9, 2015 to January 9, 2017. This final period of delay is contentious. It is the time from the JPT to the start of the trial. I will analyze these 13 months of delay below in greater detail, under the headings “defence delay” and “transitional exceptional circumstance.” In brief summary, the parties attended at the Trial Coordinator’s Office after the JPT and were advised that the earliest available date for a 17 day judge and jury trial, which is what was anticipated, would be in January 2017. Faced with this significant delay, the Crown proactively and responsibly asked the Trial Coordinator to free up earlier “in custody” trial dates, given the seriousness of the present case, even though all of the accused were out on bail. The Trial Coordinator then offered earlier “in custody” trial dates, in September 2016. All counsel were available on these earlier dates except for Mr. Rusonik, counsel for the accused Morris, who was apparently not available until January 2017. As a result, Clark J., who was presiding in Practice Court, set January 9, 2017 for trial. The Crown submits that this final four months of delay, from September 2016 to January 2017, is “defence delay” within the Jordan framework. He also notes that there was no mention of s. 11(b) of the Charter, either in Practice Court or at the JPT. In fact, the Crown expressly stated on the record in Practice Court that “no 11(b) issues were raised at the judicial pre-trial.” In addition, there was no suggestion that the three co-accused who were available on the earlier trial dates would seek severance from Morris, whose counsel was unavailable. What further complicates this final 13 month period of delay is that only Mr. Rusonik was properly retained and on the record. The other three accused wanted to retain their former counsel, who had acted at the preliminary inquiry, and these counsel all attended at the JPT and in Practice Court and provided their earliest available dates to the Court. However, counsel were not willing to go on the record and the trial date was set “with or without counsel.” After the trial date was set on this basis, the Crown asked that the case be remanded until September 12, 2016 “for the purpose of confirming retainers.” On that date, and on a further remand to October 12, 2016, these three accused (who included the two Applicants Brissett and Benjamin) advised the Court that they still “have not completed [a] retainer yet” and that their counsel were still “not prepared to go on the record yet.” It appears that the retainers for the two Applicants were not completed until late October or early November 2016, that is, about two months before the trial date. At this point, their now retained counsel began preparing and filing Charter Applications, including the present s. 11(b) Application. These Applications were all filed late, in non-compliance with the relevant Criminal Proceedings Rules and Practice Direction. The Crown stayed the proceedings against the one other accused who had not yet retained counsel at some point in this history. As a result of these developments, the three accused presently on trial all had counsel on the record by early November 2016. One final point to note about this last 13 month period of delay is that the lawyers who had not yet been retained and who had not gone on the record, but who appeared in Practice Court on December 9, 2015, stated that their earliest available dates for trial were in April 2016. If this assertion is taken into consideration under the old Morin framework, it would mean that there were four months of neutral or inherent delay, to allow counsel time to prepare and make their calendars available. Thereafter, the only period of systemic delay would have been the five months from April until September 2016 when the Court offered its first available trial dates. This period of delay is below the six to eight month guideline for systemic delay set out in R. v. Askov (1990), 59 C.C.C. (3d) 449 at 490 (S.C.C.) and affirmed in R. v. Morin, supra at pp. 19-21.
C. ANALYSIS
[9] As explained above, I ruled that the total delay of 36 months in this case was reduced by a period of “defence delay” and by an “exceptional” discrete event. I also held that the “transitional exceptional circumstance” in Jordan applied in this case. I will analyze these three issues in the next sections of these Reasons.
(i) “Delay attributable to the defence”
[10] The new Jordan framework for analysis of s. 11(b) delay requires that “delay attributable to the defence must be subtracted,” in order to ensure that the defence does not “benefit from its own delay-causing conduct.” See: R. v. Jordan, supra at paras. 60-66; R. v. Gandhi (2016), 2016 ONSC 5612, 133 W.C.B. (2d) 29 at paras. 17-24 (Ont. S.C.J.).
[11] One form of “defence delay” that has consistently been recognized, both under the new Jordan framework and under the old Morin framework, is where counsel is unavailable on earlier dates offered by the court. As the majority put it in R. v. Jordan, supra at para. 64, “The period of delay resulting from that unavailability will be attributed to the defence.” Also see: R. v. Williamson (2016), 2016 SCC 28, 336 C.C.C. (3d) 1 at paras. 21-2 (S.C.C.); R. v. Gandhi, supra at paras. 23 and 40-1.
[12] The Applicants concede that one or more defence counsel was unavailable, when earlier dates were offered for various proceedings in the Ontario Court of Justice, on three separate occasions. These periods of delay were all relatively minor and they total just under one month.
[13] The more significant period of delay, where one of the defence counsel was unavailable, was the four months from September 2016 to January 2017, when the present trial date was being set in this Court. As summarized above, this appearance took place on December 9, 2015 and the Court offered “in custody” dates in September 2016, in order to expedite the trial, but counsel for the accused Morris was not available on these earlier dates. The Applicants made some argument before me concerning the adequacy of the factual record on this point, and concerning the adequacy of the Crown’s and the Court’s efforts to find earlier trial dates. For example, it was suggested that some other counsel from Mr. Rusonik’s firm may have been available on the earlier dates and inquiries to this effect should have been made. However, the transcript of the December 9, 2015 appearance in Practice Court before Clark J. is clear, that Mr. Rusonik was not available on the earlier September 2016 dates. The trial verification form that was handed to Clark J. in Practice Court is also clear that Mr. Rusonik’s “first available date” was “Jan. 2017.” Mr. Rusonik had an agent appear for him in Practice Court, and an associate from his law firm was also present in Practice Court. Nothing was said to contradict or qualify these facts. Indeed, the Applicants’ factum appears to concede (at paras. 58 and 68) that this “additional four months of delay were caused by the unavailability of counsel.” Finally, no evidence has been filed on the s. 11(b) Application, suggesting that the accused Morris could have retained or wished to retain some counsel other than Mr. Rusonik who would have been available on the earlier trial dates. As previously noted, Mr. Rusonik continues to act for Morris at the present trial and he has not joined in the s. 11(b) Application.
[14] For all these reasons, I am satisfied that there were four months of “defence delay” in the Jordan sense of that term, from September 2016 to January 2017. When added to the approximately one month of “defence delay” in the Ontario Court of Justice that is conceded by the Applicants, there was total “defence delay” of five months. This reduces the period of relevant delay from 36 months to 31 months, which remains above the 30 month presumptive ceiling in Jordan.
[15] Before leaving this topic, I should note that the Crown submitted that there was a further period of “defence delay,” when the preliminary inquiry expanded from three days to six days. I will address this period of delay in the next section of these Reasons, under the heading “exceptional circumstances.”
(ii) Discrete events that amount to “exceptional circumstances”
[16] In addition to “defence delay,” the new Jordan framework for s. 11(b) analysis provides that a second category of delay should also be deducted from the total delay. This second category is referred to as a “discrete event” that amounts to an “exceptional circumstance.”
[17] There has been little analysis to date, in the post-Jordan jurisprudence, about this second category of deductible delay. However, in Jordan itself, there is a relatively thorough discussion of the topic, as follows (R. v. Jordan, supra at paras. 69-75):
Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.
It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful — rather, just that it took reasonable steps in an attempt to avoid the delay.
It is obviously impossible to identify in advance all circumstances that may qualify as “exceptional” for the purposes of adjudicating a s. 11 (b) application. Ultimately, the determination of whether circumstances are “exceptional” will depend on the trial judge’s good sense and experience. The list is not closed. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.
Commencing with the former, by way of illustration, it is to be expected that medical or family emergencies (whether on the part of the accused, important witnesses, counsel or the trial judge) would generally qualify. Cases with an international dimension, such as cases requiring the extradition of an accused from a foreign jurisdiction, may also meet the definition.
Discrete, exceptional events that arise at trial may also qualify and require some elaboration. Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. For example, a complainant might unexpectedly recant while testifying, requiring the Crown to change its case. In addition, if the trial goes longer than reasonably expected — even where the parties have made a good faith effort to establish realistic time estimates — then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance.
Trial judges should be alive to the practical realities of trials, especially when the trial was scheduled to conclude below the ceiling but, in the end, exceeded it. In such cases, the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling. Trial judges should also bear in mind that when an issue arises at trial close to the ceiling, it will be more difficult for the Crown and the court to respond with a timely solution. For this reason, it is likely that unforeseeable or unavoidable delays occurring during trials that are scheduled to wrap up close to the ceiling will qualify as presenting exceptional circumstances.
The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events (see R. v. Vassell, 2016 SCC 26). Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e., it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events). [Italics in the original; underlining added.]
[18] In my view, at least part of the six month and one week period of delay that occurred in the Ontario Court of Justice, when the evidence to be called at the preliminary inquiry expanded from three days to six days, satisfies the above definition of “exceptional circumstances.” As noted previously, this period of delay is complex because there were a number of contributing factors. However, I am satisfied that at least some part of the delay was caused by an unforeseen event and that the Crown and the Court could not remedy that part of the delay. In other words, it was inevitable that some delay would flow from the unforeseen event.
[19] There are two important factual circumstances that lead me to the above conclusion. First, it is clear from the record that the three day preliminary inquiry, from March 9 to 11, 2015, was scheduled on the basis that the Crown needed to call seven police witnesses in order to support committals, and that the defence wished to hear from one further police witness for discovery purposes. At some point during the preliminary inquiry, the defence abandoned its need to discover the one witness. As a result, it became a seven witness preliminary inquiry where all seven witnesses were required by the Crown to support committals. I am satisfied that this seven witness preliminary inquiry could have been completed in the three days scheduled.
[20] The second important fact is that counsel for the Applicant Brissett first advised the Crown and the Court at the beginning of the preliminary inquiry (on March 9, 2015) that he was considering having two more police witnesses produced for discovery purposes. He stated, “I’m still reviewing my position on those two.” He did not finalize his position, and insist that the two additional discovery witnesses be produced, until after the seven Crown witnesses had testified and after the three scheduled days had already been completed (on July 13, 2015).
[21] Based on these two circumstances alone, some further delay was inevitable. The request to call the two additional police witnesses for discovery purposes was unforeseen, and the fact that the request did not crystallize until after completion of the three scheduled days, meant that the Crown and the Court could not remedy the problem until after some further delay had already occurred.
[22] What complicates the analysis of this period of delay is that the anticipated seven witness preliminary inquiry was not completed in the three scheduled days, from March 9 to 11, 2015. Five police witnesses testified but the two final police witnesses, who were both brief, did not testify during these three scheduled days. The Applicants are critical of the way in which the preliminary inquiry was conducted, submitting that recesses were lengthy, that court sometimes started late, and that court sometimes adjourned early. There appears to be some basis for this criticism. In particular, the second and third days of the preliminary inquiry (on March 10 and 11, 2015) appeared to be short days where the court started at 11:00 a.m. on one day and adjourned early at 4:00 p.m. on both days. The two remaining Crown witnesses were both brief and they could have been accommodated, if the Court sat full days. Both witnesses were present at court and all counsel were ready to proceed.
[23] In spite of this unfortunate contributing factor, I am of the view that some portion of the further delay would not have been remedied by a more appropriate sitting schedule during the first three days of the preliminary inquiry. As noted above, counsel for the Applicant Brissett had not yet committed to whether he, in fact, needed to hear from the two additional discovery witnesses. Furthermore, sitting three full court days from March 9 to 11, 2015 would simply have meant that the seven witness preliminary inquiry that was contemplated would have been completed. There would not have been time for the two additional discovery witnesses and so additional court time was still required.
[24] A further complicating factor is that once it became apparent that more time was required to complete the preliminary inquiry, the availability of the two additional discovery witnesses, the availability of the five lawyers, and the availability of court time all became contributing factors. The last of these three contributing factors played only a minor role as the record shows that the Trial Coordinator offered continuation dates that were timely. For example, three consecutive days at the end of April 2015 were offered but two defence counsel and Crown counsel were all unavailable. Had the preliminary inquiry resumed on these April dates, it would have been completed with only six weeks of delay caused by the need to schedule additional dates. Three consecutive days were also offered in early June 2015 but one defence counsel was not available. As a result of these scheduling issues, the first dates offered for continuation of the preliminary inquiry, where all counsel were available, were July 13, 14 and 22, 2015.
[25] On July 13, 2015, which was now the fourth day of the preliminary inquiry, the Crown called the last two of the seven scheduled Crown witnesses. They were both brief, occupying only seventeen pages and nine pages of transcript. It was at this point that counsel for the Applicant Benjamin consented to committal. Counsel for the co-accused Morris had previously consented to committal. Counsel for the Applicant Brissett advised the Court he had now decided that he did need to hear from the two additional discovery witnesses. These two officers were the most senior officers in the case and, by this point in the year, their schedules had been heavily booked with relatively senior Pan Am Games responsibilities. As counsel for the Applicant Brissett put it:
I appreciate Your Honour, as an officer of the court, that police officers may have other important duties than this particular case, particularly at this time with the events that are on point in the City of Toronto, but I do really need to hear from these two officers … It’s not crucial for the Crown’s case but there are a couple of important points that I’d like to explore.
[26] The intervention of the Pan Am Games in Toronto, in the summer of 2015, became another contributing cause of delay. On the next day scheduled for the preliminary inquiry, July 14, 2015, one of these two officers needed for discovery was testifying in another court and the other officer was assigned to Pan Am Games duties. As a result, this next date was cancelled. The parties agreed that both officers would not be lengthy witnesses and that they could both testify on the afternoon of the next scheduled date, July 22, 2015. This became the fifth day of the preliminary inquiry. One of the two officers completed his testimony on this date. The other officer was present at court but was unable to testify because the Court had become engaged in another preliminary inquiry on that same day and had little time left for the continuation of this case. Finding yet another date proved difficult. The Crown advised that the officers have “been working double shifts, 16 hour days, for the Pan Am Games, and they’ve been forced to put all their leave over to August.” The one officer who had still not testified had two weeks in August when he was available to attend court but counsel for the Applicant Brissett was now involved in a murder preliminary inquiry and had only two days available in his calendar in August.
[27] In the result, September 18, 2015 was scheduled and it became the sixth day of the preliminary inquiry. The last officer’s testimony was taken on this date, bringing the evidence on the preliminary inquiry to a conclusion.
[28] It should be noted that at one point, as these delays started to mount, counsel for the Applicant Brissett stated that one “option might be for me to examine those officers by way of discovery.” This was a sensible suggestion and, unfortunately, it was not pursued by anyone. Once the Crown’s committal evidence was complete, and the only remaining witnesses were defence discoveries in relation to Charter issues, there was no need to schedule court time. The witnesses could have been discovered out of court. However, I was told by counsel that there are still some institutional problems in setting up witness discoveries out of court in Toronto.
[29] The above history of this six month and one week period of delay brings to mind what Doherty J.A. stated, over 20 years ago, in R. v. Allen (1996), 110 C.C.C. (3d) 331 at 348 (Ont. C.A.):
No case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around any one case, but must try to accommodate the needs of all cases. When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources.
Also see: R. v. Lahiry, supra at paras. 62-70.
[30] In my view, there were two dominant or fundamental causes of this six month and one week period of delay. The other contributing causes were minor and made no significant difference. I would apportion these two main causes of delay as follows, bearing in mind the admonition in R. v. Jordan, supra at para. 75, that the Crown and the Court must “mitigate” the effects of a “discrete exceptional circumstance” and that “it may not be appropriate to deduct the entire period of delay occasioned by discrete exceptional events”:
The four month period of delay, from March 11 to July 13, 2015, should be attributed to an “exceptional circumstance,” namely, the unanticipated need to find additional court dates to accommodate the Applicant Brissett’s discovery of two additional police witnesses. The majority in R. v. Jordan, supra at para. 73, anticipated this kind of “unavoidable” delay and held that it could “amount to an exceptional circumstance.” I have already explained above (at paras. 17-21) why it meets the Jordan definition for an “exceptional circumstance,” on the facts of this particular case. To similar effect, see: R. v. Live Nation Canada Inc. et al., 2016 ONCJ 735 at paras. 18-27 per Nakatsuru J.; R. v. Dos Santos, 2016 ONSC 7700 at paras. 14 and 27 per Greene J.;
The remainder of the delay, from July 13 to September 18, 2015, should be attributed to the Court. This two month period of delay would have been completely unnecessary if the Court had adopted a more appropriate sitting schedule. The seven anticipated witnesses could all have testified on the three scheduled days, from March 9 to 11, 2015, and the two additional discovery witnesses could both have testified on the next scheduled date, July 13, 2015. In my view, it is not acceptable to adjourn court at 4:00 p.m. on two consecutive days when brief witnesses have been waiting out in the court hallways and are available to testify. The approach taken by the Court during this period of delay is emblematic of the “culture of complacency” described in R. v. Jordan, supra. It is also inconsistent with the recommendations made some 30 years ago by a highly regarded judge, to the effect that the normal court sitting day should be five hours. See: The Honourable T.G. Zuber, Report of the Ontario Courts Inquiry, Queen’s Printer for Ontario, 1987, at pp. 169-173.
[31] As I have found that four months of delay were due to an “exceptional circumstance,” the new Jordan framework requires that it be deducted from the 31 month period of relevant delay. As a result, the total delay in this case is 27 months. The two months of delay caused by the Court should obviously not be deducted and it remains part of the 27 month period of relevant delay.
[32] Before leaving this issue, I should briefly address the Crown’s submission that some part of this period of preliminary inquiry delay should be treated as “defence delay” under the new Jordan framework, because it was caused by the unanticipated and untimely defence request to discover two additional witnesses. The majority in R. v. Jordan, supra at paras. 65-6, made it clear that “defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay … defence applications and requests that are not frivolous will also generally not count against the defence … Defence actions legitimately taken to respond to the charges do not constitute defence delay.”
[33] I am satisfied that the Applicant Brissett’s request to discover two additional police officers was entirely legitimate. The case raised a number of Charter issues that counsel was entitled to explore at a preliminary inquiry. See: R. v. Cover (1988), 44 C.C.C. (3d) 34 (Ont. H.C.J.); R. v. Dawson (1988), 123 C.C.C. (3d) 385 (Ont. C.A.). It would have been better if counsel had raised the issue in a more timely way and if he had pursued his proposal to discover the two witnesses out of court. However, there is no basis for any suggestion that the defence request to discover the two witnesses was other than bona fide. The record is clear that Mr. Morris, counsel for the Applicant Brissett, is a serious and responsible lawyer who has tried to expedite the case. In my view, he was simply doing his duty to his client when he requested two further discoveries.
[34] For all these reasons, none of the delay at the preliminary inquiry should be characterized as “defence delay” except for the approximately one month conceded by the Applicants, due to counsel’s brief unavailability on three occasions.
(iii) The “transitional exceptional circumstance”
[35] For the reasons set out above, the relevant delay in this case is 27 months, which is below the 30 month presumptive ceiling. The majority in R. v. Jordan, supra at paras. 48 and 82-83 held that, in these circumstances, s. 11(b) violations should be “rare, and limited to clear cases.” In particular, the burden is on the defence to show that the case “took markedly longer than it reasonably should have.” I will return to this issue at the end of these Reasons where I conclude that the defence cannot satisfy this burden on the facts of this case.
[36] However, the premise for this final shift in the burden is that the relevant period of delay is below 30 months. I wish to make it clear that, if the above analysis in the two previous sections of these Reasons is in error, and if the total period of relevant delay somehow remains above the 30 month presumptive ceiling, I am satisfied that the “transitional exceptional circumstance” described in R. v. Jordan, supra at paras. 92-104, applies in this case.
[37] Once again, there is little post-Jordan jurisprudence to date analyzing the “transitional exceptional circumstance.” The majority in R. v. Jordan, supra at paras. 96-7 and 103, described it as follows:
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.
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.
We echo Lamer J.’s remarks. For cases already in the system, the presumptive ceiling still applies; however, “the behaviour of the accused and the authorities” — which is an important consideration in the new framework — “must be evaluated in its proper context” (Mills, at p. 948). The reasonableness of a period of time to prosecute a case takes its colour from the surrounding circumstances. Reliance on the law as it then stood is one such circumstance. [Italics in the original; underlining added.]
Also see: R. v. Williamson, supra at paras. 24-30; R. v. Coulter, 2016 ONCA 704 at paras. 88-9 and 105-7; R. v. Manasseri and Kenny, 2016 ONCA 703 at paras. 318-323 and 361-5.
[38] For the following reasons, I am satisfied that the above description of the “transitional exceptional circumstance” applies to this case:
First, and most importantly, this case was not in jeopardy of violating s. 11(b) under the old Morin framework. As explained above, in Section B of these Reasons, there was a total delay of just over 20 months in the Ontario Court of Justice (from January 25, 2014 to October 6, 2015). The Applicants concede that approximately six months of this period would have been characterized as “inherent delay” under the old Morin framework. In addition, the four months of delay caused by the unanticipated need to schedule additional dates for the preliminary inquiry (which I have characterized as an “exceptional circumstance” under the new Jordan framework) would have been treated as “inherent delay” under the Morin framework because the Court offered timely continuation dates and counsel were simply not available. See: R. v. Allen, supra at pp. 347-351; R. v. Lahiry, supra at paras. 62-70. In the result, the only periods of unjustified delay in the Ontario Court of Justice were just under eight months of systemic delay as well as two months of delay caused by the Court adopting an inappropriate sitting schedule. This total period of unjustified delay (just under 10 months) was within the eight to ten month Morin guideline for systemic delay in the Ontario Court of Justice;
Second, and to similar effect, the total delay in the Superior Court of Justice was 15 months (from October 6, 2015 to January 9, 2017). The Applicants concede that six months of this period would have been characterized as “inherent delay” under the old Morin framework. In addition, the four months of delay caused by counsel for Morris being unavailable on earlier dates offered by the Court would have been treated as “inherent delay,” given that systemic delay does not run until “the parties are ready for trial.” See: R. v. Morin, supra at pp. 16-21 and 26-7; R. v. Tran, supra at para. 32; R. v. Lahiry, supra at paras. 25-37. On the most generous reading of the prior law, there were five months of systemic delay in the Superior Court of Justice, which is under the six to eight month Askov guideline for Superior Court systemic delay;
Third, I am of the view that the above analysis is overly generous and that, in fact, none of the delay in this Court would have been characterized as systemic delay under the old Morin framework. The relevant facts, in this regard, are as follows: the two Applicants had not retained counsel when the trial date was set in this Court; they clearly wished to retain counsel and they proceeded to make efforts to perfect counsel’s retainers; finally, they needed the approximately eleven months from early December 2015 to early November 2016 in order to complete counsel’s retainers and get counsel in a position to begin trial preparation. In these circumstances, all of this delay would have been characterized as necessary, beneficial, and inherent delay, as the Applicants were not “ready for trial.” See: R. v. Lahiry, supra at paras. 46 and 60; R. v. Faulkner, 2013 ONSC 2373 at paras. 13-19; R. v. Khan and Muellenbach, 2014 ONSC 5664 at paras. 58-61. Furthermore, once counsel were retained and on the record, they began preparing for trial by drafting and filing their Charter Applications. In late December 2016, they were still preparing and filing supporting materials on the s. 11(b) Application, as well as a s. 8, s. 9 and s. 10 Charter Application. These steps were all out of time and they left the Crown with little or no time to respond to the Charter Applications. In other words, the Applicants and the Crown needed all of the time in November and December of 2016 to prepare for trial. I infer that no one was ready for trial until January 9, 2017, which is when the trial was scheduled to commence. Under the Morin framework, this would all have been characterized as “inherent delay” and there would have been no systemic delay. See: R. v. Lahiry, supra at para. 36; R. v. Emanuel, 2012 ONSC 1132 at paras. 22-4;
Fourth, the only evidence of actual s. 11(b) prejudice in this case is the fact that one of the Applicants was on relatively strict “house arrest” terms of bail for just over a year, until the Crown consented to removal of this condition on a bail variation in April 2015. There would have been little or no inferred prejudice, given that the Applicants needed much of the delay to retain counsel and to prepare for trial, given that there were no periods of unjustified delay in the Superior Court, and given that the approximately ten month period of unjustified delay in the Ontario Court of Justice was within the Morin guidelines. See: R. v. Boateng (2015), 2015 ONCA 857, 329 C.C.C. (3d) 1 at para. 41 (Ont. C.A.); R. v. Gandhi, supra at para. 52; R. v. Lahiry, supra at para. 8;
Fifth, the charges in this case are particularly serious. Kilo level cocaine trafficking is a grave offence that results in substantial penitentiary sentences. Under the old Morin framework, and as noted in Jordan, the final balancing of interests included a consideration of the gravity of the offence and society’s interest in a trial on the merits in serious cases. Particularly where the unjustified periods of delay were not lengthy and where prejudice to s. 11(b) interests was not great, as in this case, the final balancing of societal interests became important. See: R. v. Morin, supra at pp. 12-13; R. v. Seegmiller (2004), 191 C.C.C. (3d) 347 at paras. 21-5 (Ont. C.A.); R. v. Qureshi (2004), 190 C.C.C. (3d) 453 at para. 41 (Ont. C.A.); R. v. Lahiry, supra at paras. 86-9;
In all the above circumstances, a rational and informed participant in the criminal justice system would not have regarded the present case as one that was at risk of violating s. 11(b) of the Charter, prior to the release of Jordan on July 8, 2016. Consistent with this view, none of the experienced and capable lawyers in this case mentioned a possible s. 11(b) Application at the JPT or in Practice Court on December 9, 2015. Had such an Application been contemplated, it was counsel’s duty to raise it. Indeed, the Criminal Proceedings Rules require that it be raised at the JPT. Arguably the best evidence of counsel’s reliance on the prior state of the law is Crown counsel’s statement in Practice Court, when the trial date was being set, to the effect that “no 11(b) issues were raised at the judicial pre-trial.” None of the counsel present in court disagreed with or qualified this statement, even once the January 2017 trial date was known. After Jordan was released, this Court quickly issued a new Practice Direction on August 29, 2016. The Applicants did not comply with two important provisions in the Practice Direction, as follows (presumably because they had not yet perfected counsel’s retainers and they needed additional delay):
Where the defence (i.e. an accused person or his/her counsel) intends to bring a s. 11(b) application but did not indicate this at the pre-trial conference, the defence must provide written notice of this change in position to the Crown, any other accused and the Superior Court trial coordinator, and arrange for a further pre-trial conference as soon as practicable, as required under rule 28.04(11).
Unless otherwise directed by a judge, all s. 11(b) applications must be scheduled to be heard at least 60 days before the first scheduled day of trial or, where pre-trial applications are scheduled to be heard separately in advance of the trial, at least 60 days before the first scheduled day of pre-trial applications.
[39] Given the above six circumstances, I am satisfied that the parties were proceeding in “reasonable reliance on the law as it previously existed.” Accordingly, even if the relevant total delay in this case had exceeded the 30 month presumptive ceiling, contrary to my previous analysis, that departure from the new law was justified by reasonable reliance on the old law. To similar effect, see: R. v. Cristoferi-Paolucci, 2016 ONSC 6923 at paras. 28-41 per Goldstein J.: R. v. Live Nation Canada Inc. et al., supra at paras. 47 and 73-87 per Nakatsuru J.
[40] In conclusion on this issue, I note that the majority in R. v. Jordan, supra at para. 98, warned that some departures from the new presumptive ceiling will not be justified, even where there has been reliance on the prior law, because of the extent of the departure and any repeated failures by the Crown to mitigate and prevent the delays. In this regard, the Court stated:
On the other hand, the s. 11 (b) rights of all accused persons cannot be held in abeyance while the system works to respond to this new framework. Section 11 (b) breaches will still be found and stays of proceedings will still be entered for cases currently in the system. For example, if the delay in a simple case vastly exceeds the ceiling because of repeated mistakes or missteps by the Crown, the delay might be unreasonable even though the parties were operating under the previous framework. The analysis must always be contextual. We rely on the good sense of trial judges to determine the reasonableness of the delay in the circumstances of each case. [Emphasis added.]
[41] The present case does not “vastly exceed the ceiling” and there were no “repeated mistakes or missteps by the Crown.” At most, the delay in this case modestly exceeds the presumptive ceiling, if my previous analysis is somehow in error. Furthermore, Mr. Gilman’s conduct throughout, as Crown counsel, has been exemplary. He edited the search warrant Informations and completed Crown disclosure in less than three months and prior to the JPT, he waived the need for a Crown pre-trial, he drafted the Indictment and filed it in this Court immediately after committal, he stayed charges against two co-accused where his case was weaker (even though he had secured a committal against one), he negotiated a large number of sensible admissions with defence counsel that shortened proceedings, and most importantly, when the Trial Coordinator in this Court offered trial dates that were 13 months away, he proactively secured earlier dates that had been reserved for “in custody” cases.
[42] For all these reasons, I am satisfied that the “transitional exceptional circumstance” discussed in Jordan applies in this case.
(iv) Delay caused by one co-accused and whether it applies only to that accused
[43] There is one final issue that I should address, and that is whether “defence delay” in cases with multiple accused is personal to the individual co-accused who causes it or whether it is attributed to the case as a whole. This issue was not raised in argument before me. However, after dismissing the s. 11(b) Application on January 10, 2017, in brief oral Reasons, I subsequently became aware of my colleague Fairburn J.’s judgment in R. v. Ny and Phan, 2016 ONSC 8031, which had just been released on December 22, 2016.
[44] In that judgment, Fairburn J. allowed a s. 11(b) Application brought by two co-accused who had been severed by the Crown from two other co-accused. The total delay in the two Applicants’ case was just over 48 months. Very little delay had been caused by the two accused who brought the s. 11(b) Application. Fairburn J. found that they were individually responsible for only two weeks and four weeks of the total delay and that they had been actively asserting their s. 11(b) rights. On the other hand, the other two co-accused who were eventually severed by the Crown, had caused a great deal of delay. Furthermore, it was only after 42 months of total delay had already occurred, with little or no contribution from the two Applicants, that the Crown finally severed the two accused who were causing the delays and who were now seeking a further adjournment that would cause even more delay. The severance allowed the Crown to preserve the existing trial date, set at the 48 month point, for the two non-delaying accused.
[45] On these facts, Fairburn J. held that the delay caused by the two severed accused should not be attributed to the two Applicants as “defence delay,” pursuant to the new Jordan framework. However, she held that delays caused by co-accused can make the case more complex and can amount to an “exceptional circumstance” within the Jordan framework. For these reasons, she held that “some period of delay above the ceiling would have been perfectly reasonable in this case, even a number of months.” The delay of 18 months above the ceiling, however, was not reasonable as the Crown had “an obligation to better protect the applicants who were asserting their desire to move forward.” Fairburn J. held that 48 months of delay for these two Applicants “would have been unreasonable under Morin and it is surely unreasonable under Jordan.” See: R. v. Ny and Phan, supra at paras. 34-49, 91-2, 112-131.
[46] It can be seen that Ny and Phan is a very different case from the present case. In this case, the total delay was 36 months, there were no lengthy periods of delay caused by some co-accused while the other co-accused vigourously asserted s. 11(b) rights, and there was no point reached where severance was requested or was required in order to mitigate delays being caused by one or more co-accused to the prejudice of other co-accused.
[47] Nevertheless, I should refer to Ny and Phan because I have not adopted the approach in that case of treating “defence delay” as personal and applicable only to the individual co-accused who causes it. I agree that the approach taken by Fairburn J. is the appropriate one in a case like Ny and Phan, where a point had been reached requiring severance. On any set of facts where severance of delaying co-accused is required, there are in reality two separate cases and so it is appropriate to conduct two separate s. 11(b) analyses for the two separate groups of accused. To similar effect, see: R. v. Manasseri and Kenny, supra at paras. 327-332, 341 and 379; R. v. Schertzer et al. (2009), 2009 ONCA 742, 248 C.C.C. (3d) 270 at paras. 7 and 145-7 (Ont. C.A.).
[48] However, in a case like the present one, where the Applicants never suggested that severance was a realistic or necessary remedy (a position that I agree with), the short periods of “defence delay” should be attributed to the case as a whole. In R. v. Ny and Phan, supra at paras. 127-8, Fairburn J. reviewed the pre-Jordan s. 11(b) jurisprudence and noted that delay caused by a co-accused was generally treated as “inherent delay” because of the necessities involved in managing a number of accused at joint trial proceedings. It carried “neutral” weight until the point was reached where delays caused by one co-accused became excessive and severance was required in order to protect the rights of the other co-accused. See: R. v. Koruz and Schiewe (1992), 1992 ABCA 144, 72 C.C.C. (3d) 353 at 417-421 (Alta. C.A.), aff’d (1993), 79 C.C.C. (3d) 574 (S.C.C.); R. v. Whylie (2006), 207 C.C.C. (3d) 97 at paras. 24-5 (Ont. C.A.); R. v. L.G., 2007 ONCA 654 at paras. 62-5 (Ont. C.A.); R. v. Heaslip et al. (1983), 9 C.C.C. (3d) 480 at 496-7 (Ont. C.A.); R. v. Sapara (2001), 2001 ABCA 254.
[49] I am concerned that, post-Jordan, treating delay caused by one co-accused as personal to that accused in cases where a joint trial remains reasonable and justified, will lead to arbitrary results. If this approach is adopted, there will be cases where one co-accused will end up below the 30 month ceiling and another co-accused will be above the 30 month ceiling, even though there may be no real distinction between their overall conduct, their rights, and the interests of justice. This would seem to lose the forest for the trees. It also rewards one co-accused with a windfall that flows solely from the calendar and availability of another accused’s counsel. Finally, it complicates s. 11(b) analysis by placing the burden on the Crown in relation to one co-accused and on the defence in relation to another co-accused.
[50] On the facts of the present case, there was approximately one month of “defence delay” in the Ontario Court of Justice, when various counsel were not available on three different occasions. There was no attempt to parse these three individual periods of delay and attribute them to one accused or another, by comparing and contrasting the available dates in four lawyers’ calendars. This would be contrary to the spirit of Jordan, which seeks to simplify s. 11(b) Applications. The Applicants realistically and correctly conceded that this total period of delay was “attributable to the defence” (at para. 53 of the Applicants’ Factum).
[51] The only other period of “defence delay” was the four months in this Court, from September 2016 to January 2017, when Mr. Rusonik was not available for trial. Once again, I did not attribute this period of delay personally to Mr. Rusonik’s client Morris. I attributed it to the case as a whole, as “defence delay” under the Jordan framework. Mr. Rusonik and his client have acted responsibly throughout, asking to hear from only two witnesses at the preliminary inquiry, making numerous realistic admissions, and consenting to committal in a timely way. They then waited patiently in this Court until the other accused arrived after their somewhat slower committals. Furthermore, Mr. Rusonik was the only counsel who was retained and on the record from the beginning in this Court. When he needed four months of delay in this Court, in order to clear his calendar, the other accused acquiesced in this delay and did not raise s. 11(b) concerns, presumably because they needed the further delay in order to complete their own retainers and prepare for trial. In all these circumstances, it would have been inappropriate to treat this four months of “defence delay” as applying narrowly to the accused Morris, as opposed to the case as a whole.
[52] In the alternative, had I followed Fairburn J.’s approach in Ny and Phan, I would have held that the five months of “defence delay” in this case was an “exceptional circumstance” under the Jordan framework, due to the added complexity of having to accommodate the calendars of four busy defence counsel in a case where a single joint trial was in the interests of justice and where the period of “defence delay” had not yet become excessive. In other words, there would have been no difference in the result because the relevant period of delay was either below 30 months because of “defence delay” or was above 30 months but justified due to an “exceptional circumstance.” See: R. v. Jordan, supra at paras. 77-80.
D. CONCLUSION
[53] Having found that the total period of relevant delay in this case is 27 months and, therefore, below the 30 month presumptive ceiling in Jordan, it would be a “rare” case where a s. 11(b) violation could still be found. The present case is not that “rare” case, given that the only periods of unjustified delay were relatively short, as explained above. In these circumstances, the case did not take “markedly longer than it reasonably should have.”
[54] In the alternative, if my analysis is somehow in error and the relevant period of delay exceeded the 30 month presumptive ceiling, then the “transitional exceptional circumstance” applies as this case was proceeding in “reasonable reliance on the law as it previously existed.”
[55] For both of these reasons, I dismissed the s. 11(b) Application. I would like to thank all counsel for their thorough materials and their effective advocacy in this developing and somewhat uncertain area of the law.
M.A. Code J.
Released: January 20, 2017
COURT FILE NO.: CR-17-90000041-0000 DATE: 20170120 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – EVERALD BRISSETT, COURTNEY BENJAMIN and GARY MORRIS REASONS FOR JUDGMENT M.A. Code J. Released: January 20, 2017