R. v. Riley, 2017 ONSC 4448

CITATION: R. v. Riley, 2017 ONSC 4448

COURT FILE NO.: 17/872

DATE: 20170721

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

Patrick Riley

Applicant

D. Bradley, for the Crown

T. Waltenbury, for the Applicant

HEARD: July 18, 2017

DECISION ON SECTION 11(b) APPLICATION

CORNELL J.

Introduction

Introduction

1This is an application by the accused asking that the charges against him be stayed on the basis that there was a violation of s.11(b) of the Charter of Rights and Freedoms. In accordance with the reasons that follow, the application for the stay is dismissed.

Issues

Issues

1. Will the accused’s trial be completed within 30 months from the date of his arrest after taking into consideration any delay attributable to the defence?

2. If the answer to question one is no, are there exceptional circumstances that need to be taken into consideration?

Background

Background

2Mr. Riley was arrested on January 14th, 2015. At that time, he was charged with possession of cocaine for the purpose of trafficking, possession of fentanyl for the purpose of trafficking, possession of cannabis for the purpose of trafficking, possession of proceeds of crime exceeding $5,000 and possession of a weapon for a purpose dangerous to the public peace.

3Mr. Riley’s trial is scheduled to take place on August 28th, 30th, 31st and September 1st, 2017. Assuming that the trial takes four days, the 30 month time period prescribed by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, will have been exceeded by some 49 days.

Agreement

Agreement

4A Superior Court judicial pre-trial was scheduled for February 21st, 2017. Mr. Gauthier did not attend on that day, nor was any reason for his absence provided.

5The judicial pre-trial was rescheduled and conducted on March 27th, 2017. It was conceded by counsel for the defence that this 35 day delay is attributable to the defence.

6When this period of time is deducted, the 30 month period of time in question is exceeded by approximately 14 days if the trial proceeds as scheduled.

Analysis

Preliminary Hearing

Analysis

7On June 3rd, 2015, dates were to be set for the preliminary hearing. The accused is represented by co-counsel consisting of Mr. Gauthier and Mr. Waltenbury.

8On June 3rd, 2015, preliminary hearing dates of November 19th and 20th, 2015 were offered. Mr. Gauthier was represented by an agent. When Mr. Waltenbury advised that he was not available for those dates, the preliminary hearing was scheduled for January 18th and 19th, 2016. No objection to these dates was taken by Mr. Gauthier’s agent at that time.

9As it turns out, Mr. Gauthier was unavailable for the January dates as he had scheduled a vacation. As a result, the defence brought an application on June 17th, 2015 to adjourn the preliminary hearing. This application was granted and the preliminary hearing was rescheduled for March 10th and 11th, 2016. This resulted in a delay of 52 days from January 18th to March 10th, 2016.

10Counsel for the accused argues that the issue of Mr. Gauthier’s unavailability in January of 2016 for the preliminary hearing should be characterized as a clerical error and any associated delay should not be attributed to the defence.

11I disagree with the position taken by defence counsel. Even pre-Jordan, it was imperative that when dates are being set, counsel properly advise as to availability. This obligation does not change as a result of the fact that counsel may be represented by an agent at the time that the matter is scheduled. If an agent is to be used, it is incumbent upon the agent to be fully aware of counsel’s schedule.

12In this case, Mr. Gauthier’s agent failed to discharge that responsibility. In view of this, I am of the opinion that 52 day delay occasioned by the rescheduling of the preliminary hearing is defence delay. Even if the entire 52 day period is not to be attributed to the defence, then the 14 day delay from June 3rd to June 17th, 2015 is clearly delay directly attributable to the defence. This 14 day period in and of itself is sufficient to permit the proceedings to be completed within 30 months after deducting defence delay.

Resolution Proposal

Resolution Proposal

13Day one of the preliminary hearing took place on March 11th, 2016. The matter was scheduled to continue on June 20th, 2016.

14On that day, all counsel agreed that the matter should be adjourned to permit the accused to consider a resolution proposal. The matter was adjourned to July 6th, 2017 to permit this to be done and, failing resolution, to set a new date for continuation of the preliminary hearing.

15On July 6th, 2016, counsel for the defence advised the court that he wanted additional time and a further adjournment to permit the resolution proposal to be considered. The matter was adjourned at defence counsel’s request to August 3rd, 2016.

16Defence counsel needs a reasonable amount of time to consider circumstances and take instructions. It is my view that the 16 days between June 20th and July 6th, 2016 were sufficient to permit a decision to be made about the proposal that had been put forward. It is further my view that the 29 day delay from July 6th to August 3rd, 2016, is properly characterized as defence delay as the record makes it clear that such delay was at the request of defence counsel.

Exceptional Events

Exceptional Events

17Jordan makes it clear that if the trial is not to be completed within 30 months of the date of arrest, consideration must be given to extending this period if exceptional circumstances exist. It was determined in Jordan that exceptional circumstances can consist of discrete events or the complexity of the case. It is acknowledged by the Crown that this case is not complex.

18If a finding were to be made that the various time periods that have been under consideration are not attributable to defence delay, the court must give consideration to whether or not exceptional circumstances exist. It is the position of the Crown that two discrete events occurred that properly constitute exceptional circumstances.

19The preliminary hearing began on March 10th, 2016. It was to continue the next day. This did not occur as a result of the fact that one of the police officers was unavailable due to some unforeseen personal circumstances.

20The matter was adjourned to June 20th, 2016 for continuation.

21The Crown asserts that the 102 day delay occasioned as a result of this adjournment is a discrete event over which the Crown had no control and could not be reasonably anticipated.

22I agree with the characterization that has been advanced by the Crown. In view of this, I find that the adjournment of the preliminary hearing due to the unavailability of a Crown witness was a discrete event. I further find that this discrete event occasioned a delay of 102 days that is properly characterized as an exceptional event.

23Justice Glaude presided over the first day of the preliminary hearing. It was to be continued before him on September 20th, 2016. Justice Glaude was not in attendance on that day.

24The matter was adjourned to September 28th, 2016 to set a new date. On that day, the matter was adjourned for continuation of the preliminary hearing on January 31st, 2017.

25Affidavit material filed by the Crown on this application indicates that Justice Glaude’s last working day in the Ontario Court of Justice was September 26th, 2016. When this became known at the time, counsel agreed that rather than start over, the preliminary hearing would continue as scheduled before another justice.

26The delay occasioned by Justice Glaude’s unavailability amounts to 120 days.

27I agree with the Crown’s characterization that this delay is also a discrete event that could not have been anticipated by the Crown. Defence counsel responds by saying that no information was put on the record at the time that it was determined that Justice Glaude was unavailable. In the absence of such an explanation on the record, defence counsel argues that Justice Glaude’s unavailability for continuation of the preliminary hearing might well have been as a result of institutional delay.

28To accede to the position suggested by defence counsel would require me to engage in speculation about the reasons for Justice Glaude’s non-attendance, something I am not prepared to do.

29In R. v. Brooks and Styles, 2017 ONSC 1063, Del Frate J. was called upon to address a discrete event that consisted of the judge falling ill on the morning of the commencement of the preliminary hearing. Defence counsel submitted that “illness” in and of itself was insufficient and that further evidence should have been led by the Crown. This point was addressed by Del Frate J. in the following manner:

25This requirement for substantiating evidence could lead to all kinds of unexpected and unreasonable requests which may prolong the proceedings. From a practical perspective, the administration of justice deals with the presumption that judges attend at the scheduled time and place and would have a bona fide reason for not being present. Any other presumption may affect the integrity of the administration of justice.

30In the absence of any evidence to the contrary, I accept that Justice Glaude’s non-attendance was for a “bona fide” reason. In view of this finding, I am of the opinion that the delay occasioned by Justice Glaude’s unavailability constitutes a discrete event that resulted in a delay of 120 days.

Conclusion

Conclusion

31It has been acknowledged that there was a 35 day delay as a result of defence counsel’s non-attendance at the pre-trial.

32I find that the 52 day delay occasioned by the error made as to defence counsel’s availability for the preliminary hearing is properly characterized as defence delay. At a minimum, the 14 day delay involved in bringing the matter back to court is defence delay.

33I find that defence counsel’s request for a further adjournment to consider resolution resulted in defence delay of 29 days.

34Any one of these time periods is sufficient to address the 14 day period of time in question. I am of the opinion that all of the periods of time in question constitute defence delay. Having made this determination, I find that the accused’s trial as currently scheduled will be completed within 30 months from the date of his arrest after appropriate deductions are made for delay attributable to the defence.

35I further find that the delay occasioned in the completion of the preliminary hearing due to the unavailability of a police witness and Justice Glaude’s non-attendance are discrete events that constitute exceptional circumstances as defined by Jordan.

36On either basis, I find that the Jordan time requirements have been met. In view of this finding, the accused’s application for a stay of proceedings based upon an alleged breach of his s.11(b) rights is dismissed.

The Honourable Mr. Justice R. Dan Cornell