CITATION: R. v. S.D., 2017 ONSC 4565

COURT FILE NO.: CR-16-0277-MO

DATE: 20170727

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

S.D.

Applicant

Bruce Lee-Shanok, for the Crown

Meara Conway, for the Accused/Applicant

HEARD at Kingston: 20 and 21 June 2017

An order restricting publication in this proceeding has been made pursuant to section 486.4(1) of the Criminal Code Of Canada.

mew j. (ORALLY)

REASONS FOR DECISION

(Application for stay for unreasonable delay under

sections 11(b) and 24(1) of the Charter of Rights and Freedoms)

OVERVIEW

[1] S.D. has been charged with a variety of domestic violence and related offences. One set of nine charges arise from allegations of assault and uttering of death threats dating back up to 35 years. The other set of allegations relate to a relationship that ended around the time of the applicant’s arrest, and include claims that he damaged the complainant’s mobile telephone during a dispute (mischief to property) and attempted to drive her off the road (criminal harassment).

[2] S.D. was arrested on 30 May 2014. He is scheduled to be tried on all charges by a judge, sitting without a jury, in what is projected to be a two to three week trial commencing on 16 October 2017.

[3] The total elapsed time between S.D.’s arrest and the anticipated completion of his trial will be 41.17 months (1253 days).

[4] The applicant asserts that his constitutional right to be tried within a reasonable time has been breached and that, as a result, a stay of proceedings should be entered: Canadian Charter of Rights and Freedoms, sections 11(b) and 24(1).

THE JORDAN FRAMEWORK

[5] The framework established by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 SCR 631 for analysing whether an accused person’s right to a trial within a reasonable time has been breached centres on a presumptive ceiling of 30 months for cases tried in superior courts: Jordan, at para. 46.

[6] As already indicated, from the time that S.D. was charged until the anticipated end of his trial, 41.17 months will have elapsed. This is the “total delay”, which is the first stage in applying the Jordan framework: R. v. Cody, 2017 SCC 31 at para. 21.

[7] From the total delay, “delay attributable to the defence must be subtracted”: Jordan, at para. 60. In Cody, the court set out the broad scope of scrutiny required to assess the substance of delay caused by the defence (at paras. 32-33):

Defence conduct encompasses both substance and procedure — the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.

As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extend to omissions as well as acts (see, for example in another context, R. v. Dixon, 1998 805 (SCC), [1998] 1 S.C.R. 244, at para. 37). Accused persons must bear in mind that a corollary of the s. 11 (b) right “to be tried within a reasonable time” is the responsibility to avoid causing unreasonable delay.

[8] After deducting defence delay, the result, or “net delay”, is then compared to the presumptive ceiling. If the net delay exceeds the ceiling, the delay is presumptively unreasonable and the Crown must, in order to rebut the presumption, establish the presence of exceptional circumstances. If it fails to do so, the delay remains unreasonable, and a stay should be ordered: Jordan, at para. 47.

[9] If the net delay falls below the ceiling, then the onus is on the defence to show that the delay is unreasonable by establishing that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have: Jordan, at para. 48.

[10] Where, as in the present case, the charges pre-date the handing down of the decision in Jordan, and the delay remains presumptively unreasonable after deducting defence delay and accounting for and considering exceptional circumstances, the Crown may nevertheless demonstrate that “the transitional exceptional circumstance” justifies a presumptively unreasonable delay.

[11] For the purposes of the present application, the issue is whether the net delay falls above the presumptive ceiling of 30 months and, if it does, whether the Crown is able to rebut the presumption of unreasonable delay.

[12] The Crown concedes that engaging the transitional exceptional circumstance assessment would not result in a different outcome in this case.

[13] At a judicial pretrial on 28 September 2016, the two sets of charges against S.D. were joined for the purposes of the trial, at the request of the Crown, and over the objection of S.D.. However, on 19 June 2017, S.D. withdrew an application to sever the charges.

[14] The preliminary inquiries on the two set of charges, set out in two separate informations, were held in June and July 2016 respectively.

[15] Aside and apart from his appearances at the preliminary inquiries, S.D. has appeared in court on approximately 40 occasions in connection with these charges.

[16] The core issue on this application is whether any of the delays that have occurred are attributable to defence delay. Defence delay is divided into two components, namely: (1) “delay waived by the defence”; and (2) “delay that is caused solely by the conduct of the defence”: Jordan, at paras. 61 and 63.

ANALYSIS

[17] The submissions of the parties focus on three discreet chapters in the history of this matter namely:

From the date of charges until the first scheduled preliminary hearing (the last day of which would have been 9 April 2015);
From the granting of an adjournment of the first scheduled preliminary hearings until what would have been the last day of the second set of scheduled preliminary hearings (6 November 2015); and
The period after the judicial pretrial on 28 September 2016 at which time S.D. is said to have waived the subsequent period of delay.

[18] Preliminary inquiry dates were initially set on behalf of S.D. by his former counsel for 31 March and 1 April 2015 (Information #14-6611) and 8 and 9 April 2015 (Information #14-6618).

[19] According to S.D., in November 2014, the Crown Attorney for Kingston, Ross Drummond, spoke with him about the possibility of vacating the preliminary inquiry dates because an out-of-town Crown prosecutor would need to be assigned to the case on account of it being a “conflict file”. S.D.’s personal connections with individuals in, or associated with, the Crown Attorney’s office in Kingston apparently made it inappropriate for a prosecutor from that office to be representing the Crown in this case.

[20] In December 2014, the then lawyer of record for S.D. brought an application to be removed from the record. That application was heard on 13 January 2015 by Justice Letourneau of the Ontario Court of Justice. The Crown did not oppose the application. Since then, S.D. has been representing himself. At the same attendance, the Crown advised the court that “[S.D.] is consenting to the vacation of the trial dates” (there was some indication that there would be an election by S.D. to be tried by a judge of the Ontario Court of Justice; there was subsequently an election for trial by a judge of the Superior Court, sitting without a jury, so the “trial” dates became preliminary hearing dates). S.D. advised the court that certain witnesses he was planning to call would not be available on the March and April dates.

[21] Although on 13 January attendance there was no reference to the “conflict”, when the matter was next spoken to, on 27 January 2015, to set dates, Mr. Drummond advised the court that out-of-town counsel, Lia Bramwell from Ottawa, was the assigned Crown.

[22] A judicial pre-trial took place on 6 February 2015 before Justice Beaman. An Assistant Crown Attorney from the Kingston office attended. She advised the court that there was a conflict and that the case would be prosecuted by Ms. Bramwell. Crown counsel explained that Ms. Bramwell was not in attendance because the Crown’s understanding was that the purpose of the hearing was to conduct a trial management judicial pretrial to confirm estimates for time. Surprisingly, Crown counsel did not have to hand information concerning Ms. Bramwell’s availabilities. The case was therefore put over to another set date court. However, Crown counsel did advise the judge that there might be an application to appoint counsel under section 486.3 of the Criminal Code to cross-examine the complainants.

[23] On 24 February 2015, dates were set for the preliminary inquiries to take place on 13, 14 and 16 October 2015 and 5-6 November 2015 respectively. Mr. Drummond advised the court that Ms. Bramwell was no longer the assigned Crown Attorney. Dates in September were offered by the court. However, Mr. Drummond advised that “his availability”, referring to the replacement, but as yet unnamed, assigned Crown, did not start until 28 September.

[24] On Information #14-6611 (with preliminary inquiry dates of 13, 14 and 16 October), S.D. was ordered to file his statement of issues by 7 May 2015. This he did, filing what was, by all accounts, a comprehensive binder setting out the substance of his defence. At a further attendance on that date, Mr. Drummond identified the assigned counsel as David Elhadad of Ottawa. However, Mr. Drummond was unable to set a judicial pretrial date on that attendance because he did not have information concerning Mr. Elhadad’s availabilities.

[25] At a further attendance on 19 May 2015 to set a date, there was still no word from Mr. Elhadad regarding his availabilities. The matter was put over once again.

[26] On 2 June 2015, a focus hearing date was set for 10 July 2015.

[27] On 4 June 2015, there was a further attendance, this time on the Information #14-6618 (with preliminary inquiry dates of 4 and 5 November 2015). S.D. had, in accordance with the order made on 24 February 2015, also filed his statement of issues with respect to those charges. The Crown requested a judicial pretrial for some time after the 10 July focus hearing on the other charges. Accordingly, the matter was put over until 30 July 2015.

[28] At the focus hearing on 10 July, a section 486.3 order was made in relation to Information #14-6611. However, it was not until 24 July 2015 that the order was sent to Legal Aid. On 27 July 2015, Legal Aid sent an intake form to Mr. Elhadad by email explaining that in order for Legal Aid to process the file, the intake form needed to be completed. The form was not returned until 19 August 2015, apparently due to absence on vacation.

[29] In the meantime, on 15 August, Legal Aid had sent out an all-points bulletin to local counsel, as a result of which, on 17 August, Linda Christie, a lawyer in Napanee, agreed to act as section 486.3 counsel.

[30] Ms. Christie wrote to S.D. advising him that she had been appointed as section 486.3 counsel. Her letter was dated 27 August 2015. It was received by S.D. on 3 September 2015. He then made an appointment to meet with Ms. Christie and they met at her office the same day (3 September).

[31] As a result of having spoken to people in the legal community prior to going to the meeting, S.D. already had some concerns about Ms. Christie’s suitability to represent him. He told her about these concerns when he met with her. Nevertheless, he claims that he still had an open mind about whether she should be engaged. After meeting and talking, S.D. says that Ms. Christie offered to recuse herself because of mutual connections they had within the community, the complexity of the case, as well as the reservations that S.D. had expressed about her.

[32] It took S.D. another two weeks to find a lawyer who would do the section 486.3 cross-examinations. Unlike Ms. Christie, who would have been available for the scheduled preliminary hearing dates, the lawyer who agreed to act for him, Meara Conway (who represents S.D. on the current section 11(b) application) was not.

[33] In the meantime, on 26 August 2015, the assigned Crown Attorney, David Elhadad, suffered a heart attack. He remained away from work until 11 January 2016. It does not appear that this most unfortunate event was the cause of any delay in the prosecution of the charges against S.D.. Had it been, I would have had no hesitation in ascribing such delay to “exceptional circumstances”.

[34] At an attendance on 8 September 2015, the court was advised that Ms. Christie was not going to be acting as section 486.3 counsel. It also became apparent that there was no section 486.3 order with respect to Information #14-6618. The local Crown counsel appearing was unaware of Mr. Elhadad’s indisposition (it was S.D., who had been in touch with the Ottawa Crown’s office, who informed the court).

[35] At an attendance on 28 September 2015, Justice O’Brien said that he was satisfied that progress had been made, that S.D. had made all of the efforts he could, and that he had been diligent in navigating through the Legal Aid system and contacting various counsel. The result was that Ms. Conway was on board, although it was clear that the October and November dates would need to be vacated.

[36] At a number of previous attendances, S.D. had signalled his intention to call 100 or more witnesses. However, by 8 October 2016, when the matter was spoken to set new dates for the preliminary inquiries, S.D. had apparently taken advice from Ms. Conway and informed the court that the defence would not be calling any witnesses at the preliminary inquiries. The local Crown in attendance was unable to say whether this reduced the anticipated length of the preliminary hearings – three days and two days respectively. On Information #14-6611, preliminary hearing dates of 27, 28 and 29 June 2016 were set. The preliminary hearing on Information #14-6618 was scheduled for 19 and 20 July.

[37] Both preliminary inquiries occurred, as scheduled. On Information #14-6611, S.D. pleaded guilty to one count. He was committed on the other two counts. On Information #14-6618, S.D. was committed on all counts.

[38] At the judicial pre-trial in this court on 28 September 2016, there was a discussion of trial logistics. Counsel for the Crown estimated that one week would be required to put in the Crown’s case. S.D. indicated that he had prepared a list of 102 defence witnesses.

[39] Because S.D. was representing himself, a record of the discussion at the judicial pre-trial is available. Counsel for the Crown asked whether, assuming S.D.’s witnesses were approved, he had an estimate as to how long the defence’s evidence would take. The following exchanges ensued:

S.D.: Three months.

THE COURT: Three months, okay.

MR. LEE-SHANOK: So assuming that dates were accepted, this would raise some 11(b) concerns, as well.

S.D.: Can you explain to me the 11(b) concerns?

MR. LEE-SHANOK: It's the delay, delay of your trial. We'd like to make sure that you have a right to a trial...

S.D.: I've already waived that. I've already stated to - and I have the records and the transcripts. I'm not interested in exercising any of those rights afforded me under the Constitution for a right to a fair, speedy trial. This is imperative that we deal with my children and my ex-wife, finally, once and for all. My greatest gift from the Crown is that I haven't had to shell out any more money for them since May 2014.

THE COURT: All right, so you try and have Ms. Conway here on October 21st at 10:00.

S.D.: In the event - I have to go and text her immediately, Your Honour, but what if that doesn't work? Am I compromising the court and myself?

THE COURT: Well, she will have to send her schedule in to an agent here so that person will have some information of when she is available.

[40] The pre-trial judge endorsed on the record the Crown’s estimate of one week and the defendant’s pronouncement of 100+ witnesses. There is no reference in the endorsement to waiver of section 11(b) rights.

[41] The parties attended in Assignment Court on 21 October 2016. One week of pre-trial motions were scheduled for the week of 19 June 2017. Three weeks were scheduled for trial, commencing 16 October 2017. The transcript of that attendance discloses no mention of section 11(b) issues.

Waiver

[42] If S.D. waived his section 11(b) rights on 26 September 2016, with the result that the ensuing thirteen and a half months between then and the anticipated end of his trial is subtracted from the total delay, the net delay would be a little under 28 months and, hence, below the presumptive ceiling of 30 months.

[43] The seminal case on the issue of waiver is Korponay v. Attorney General of Canada, 1982 12 (SCC), [1982] 1 S.C.R. 41 where, at page 49, the Supreme Court held that any waiver must be clear, unequivocal and informed:

… any waiver is dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process.

[44] The onus is upon the Crown to prove or establish waiver by the accused on a balance of probabilities: R. v. Askov, 1990 45 (SCC), [1990] 2 S.C.R. 1199 at 1228.

[45] In Clarkson v. The Queen, 1986 61 (SCC), [1986] 1 S.C.R. 383, an accused’s awareness of the consequences of waiving his or her rights under the Charter was considered in the context of the right to counsel under section 10(b) (at para. 20):

Whether or not one goes as far as requiring an accused to be tuned in to the legal intricacies of the case before accepting as valid a waiver of a right to counsel, it is clear that the waiver of the s. 10(b) right by an intoxicated accused must pass some form of “awareness of the consequences” test. Unlike the confession itself, there is no room for an argument that the court in assessing such a waiver should only be concerned with the probative value of the evidence so as to restrict the test to the accused’s mere comprehension of his/her own words. Rather, the purpose of the right, as indicated by each of the members of this Court writing in Therens [1985 29 (SCC), [1985] 1 S.C.R. 613] is to ensure that the accused is treated fairly in the criminal process. While this constitutional guarantee cannot be forced upon an unwilling accused, any voluntary waiver in order to be valid and effective must be premised on a true appreciation of the consequences of giving up the right.

[46] In R. v. Conway, 1989 66 (SCC), [1989] 1 S.C.R. 1659, the Supreme Court applied the same reasoning to section 11(b) (at p.1686):

In considering the issue of “waiver” in the context of s. 11(b), it must be remembered that it is not the right itself which is being waived, but merely the inclusion of specific periods in the overall assessment of reasonableness. Crucial to the exclusion of a time period is “the accused’s awareness of the consequences”… of his decisions causing delays to be incurred. Any waiver is “dependent upon it being clear and unequivocal that the person is waiving the procedural safeguard”.

[47] The Supreme Court further clarified the distinction between actions of an accused and waiver in R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771 at 790:

Waiver requires advertence to the act of release rather than mere inadvertence. If the mind of the accused or his/her counsel is not turned to the issue of waiver and is not aware of what his/her conduct signifies, then this conduct does not constitute waiver. Such conduct may be taken into account under the factor “actions of the accused” but it is not waiver. … consent to a trial date can give rise to an inference of waiver. This will not be so if consent to a date amounts to mere acquiescence in the inevitable.

[48] The Crown argues that S.D. waived his section 11(b) rights from 26 September 2016 going forward, arguing that his statement was a clear, unequivocal waiver of his right to a trial within a reasonable time “which effectively dooms his entire application”.

[49] I do not agree with this submission.

[50] The transcript of the exchange that took place at the September 2016 pre-trial conference shows S.D. inquiring as to what the Crown’s section 11(b) “concerns” are, to which the Crown starts to explain that S.D. has a right to a speedy trial. There is no mention of the consequences of a breach of this right. While S.D. then interrupts the Crown by saying “I am not interested in exercising any of those rights afforded to me under the Constitution for a right to a fair, speedy trial”, it is not clear that he understands that the consequences of a breach of his right to a speedy trial may entail a stay of proceeding as a remedy. Nor did the Crown seek to clarify this after S.D. expressed his desire to waive his rights.

[51] Given how quickly S.D. goes from inquiring about the Crown’s “section 11(b) concerns” to waiving his right, it is also not clear that his waiver was unequivocal.

[52] Furthermore, the cases suggest one can only waive certain time periods (as already noted, in R. v. Conway, the court noted that it is not the right itself which is being waived, but merely the inclusion of specific periods in the overall assessment of reasonableness). I find that the Crown’s contention that S.D. was effectively making a blanket waiver of his section 11(b) rights going forward is not legally possible. And even if I am wrong about that, such a waiver would surely have to be in the most explicit of terms.

[53] As to S.D.’s comprehension of his section 11(b) right(s) generally, his asking the court whether, if he was unable to reach section 486.3 counsel, he would be “compromising the court and myself?”, is indicative that S.D.’s appreciation of his rights is incomplete.

[54] I had the benefit of hearing S.D. and observing him while he was cross-examined on the affidavit which he swore in connection with his 11(b) application. He is both articulate and loquacious. He also is prone to making grand statements and gestures. It seems to me, respectfully, that he sometimes opens his mouth before fully engaging his brain. On a number of occasions, he made one pronouncement, quite confidently, only to reverse or contradict himself after a few more, pointed, questions. These traits underscore the need to be confident that the requirements for a binding waiver have been met.

[55] Furthermore, whereas when an accused represented by counsel has requested or consented to delay, waiver of such delay may be deemed to be “clear and unequivocal” with “full knowledge of the rights” and of the “effect the waiver will have on those rights”: (see McLeod Takach, Morton, Segal, The Canadian Charter of Rights, Prosecution and Defence of Criminal and other Statutory Offences (looseleaf, Carswell) at 2.58.4(1)(2)), such is not the case for an unrepresented accused. Waiver not only must be requested or consented to, but must also satisfy the requirements set out in Korponay. The court has a duty to ensure to its satisfaction that the waiver of time is clear, unequivocal and informed as regards to the right and effect the waiver will have on that right. The court in Korponay clearly lists the representation of the accused, or lack thereof, as a relevant factor (at pages 49-50).

The factors [a judge] will take into account, in determining whether the accused has clearly and unequivocally made an informed decision to waive his rights will vary depending on the nature of the procedural requirement being waived and the importance of the right it was enacted to protect. However, always relevant will be the fact that the accused is or is not represented by counsel, counsel’s experience, and, in my view of great importance in a country so varied as ours, the particular practice that has developed in the jurisdiction where the events are taking place.

[56] The discussion of S.D.’s section 11(b) rights, such as it was, occurred during the course of a judicial pretrial. A judge at an earlier pretrial conference (in the Ontario Court of Justice) had already explained to S.D. that:

… one of the principles here is that the matter discussed be kept confidential so that the media, for example, or some other internet universe does not become privy to the details of our discussions. There are meant to be informal. They are meant to be frank and open.

[57] While there is no prohibition against an admission being made, or a right being waived, at a judicial pretrial conference, given the context, it is essential that an endorsement or other formal record of the admission or waiver is made. The “Report to Trial Judge” form [Form No. 18-A1], in use since earlier this year, has a section in which the pretrial judge can record any section 11(b) issues. That form was not yet in use at the time of the judicial pretrial in this case. Rather, the pretrial judge made a handwritten endorsement of various issues arising from the pretrial conference. As already alluded to, there was no reference in the pretrial judge’s endorsement to any section 11(b) issues, let alone to a waiver.

[58] To conclude on the issue of waiver, I am not persuaded that S.D.’s waiver was unequivocal. It leaves many questions unanswered, specifically with respect to the waiver of time periods and what S.D. intended. It is likely that he did not understand the effect of section 11(b) and that his being self-represented afforded him no real opportunity to elucidate this and to make an informed decision. Had he known that his section 11(b) rights might assist him in obtaining a stay of proceedings, he may not have waived this right. Furthermore, had the pretrial judge or the Crown been of the view, at the time of the pretrial conference, that S.D. had waived his section 11(b) rights, one would expect there to have been a formal record made of that.

[59] Finally, when S.D. appeared at assignment court in October 2016 and agreed to October and November 2017 trial dates, with pretrial motions to be heard the week of 19 June 2017, he did not somehow affirm the waiver he is said to have made at the pretrial. As already noted, there is no waiver if consent to a trial date amounts merely to acquiescence in the inevitable.

[60] Accordingly, the period from September 2016 until November 2017 should not be deducted as part of the calculation of net delay.

First Preliminary Hearing Dates

[61] The Crown argues that the delay between the first and second set of preliminary hearing dates was entirely attributable to the defence.

[62] The record does not bear this out.

[63] The uncontradicted evidence of S.D. is that in November 2014, the Kingston Crown Attorney raised the possibility of vacating the preliminary inquiry dates because of the inappropriateness of the Kingston Crown Attorney’s office handling the prosecution of S.D. due to conflict issues.

[64] This was before S.D. had parted company with his own counsel. That happened about a month later and was formalised by an application heard on 13 January 2015. At that hearing, the Crown advised that it was consenting to the application by S.D.’s former lawyer to be removed and that “[S.D.] is consenting to the vacation of the trial dates”. At that time, S.D. indicated that he had witnesses who were not available for the March and April 2015 dates. This garnered the following comment from the court:

THE COURT: Okay. So not only are you content that these existing trial dates be cancelled, it is actually to your advantage that these trial dates be cancelled because you have witnesses that aren’t available…

S.D.: That’s correct, Your Honour.

[65] At a judicial pretrial conducted on 6 February 2015, S.D. re-elected trial by judge alone in the Superior Court, thereby clearing up confusion as to whether the dates to be set were for a trial in the Ontario Court of Justice or a preliminary hearing. Both S.D. and the pretrial judge had anticipated something more than merely a trial management pretrial, which is what the Crown had come prepared to deal with. Indeed, even that was questionable, since the Crown who attended did not have dates for the assigned Crown.

[66] S.D. having made his re-election, the pretrial judge, somewhat prophetically, said:

I just want to make sure all the ducks are in a row when the prelim date comes up so that there aren’t any outstanding issues that need to be dealt with.

[67] There was then a discussion about disclosure and some of the difficulties S.D. was encountering due to bail conditions which prevented him from using the internet, computer equipment or a mobile phone.

[68] This was followed by a discussion about the issue of cross-examination, i.e. the section 486.3 cross-examinations. The Crown indicated that the issue had been raised with Ms. Bramwell (the assigned Crown) and “there may very well be an Application to appoint counsel”. After the court had commented that that may require extra time, the Crown stated “I think that would have to be initiated by Ms. Bramwell well in advance of the dates” [emphasis added].

[69] As already noted, by the time that the preliminary hearing dates were set, at an attendance on 24 February 2015, Ms. Bramwell was no longer the assigned Crown. Nevertheless, the October and November 2015 dates were set for the two preliminary hearings.

[70] It seems from the record that the March and April 2015 preliminary hearing dates did not go ahead because of (a) the inability of the Kingston Crown Attorney’s office to prosecute S.D. due to legitimate conflicts; (b) the unavailability of defence witnesses; and, arguably, (c) S.D.’s change in representation.

[71] The Crown in its factum suggests that the first period of defence delay should be calculated on the basis of the time which elapsed from 12 August 2014, when the first preliminary hearing dates were set, to 13 January 2015, when defence counsel got off the record. A period of five months. That submission is illogical. To the extent that there was a delay as a result of defence counsel getting off the record, it would be referable to the period of time between when the second of the originally scheduled preliminary hearings would have been completed (9 April 2015) and when the second of the rescheduled preliminary hearing would have ended (6 November 2015). A total of 211 days or 6.9 months.

[72] To whom should that delay be attributed?

[73] The adjournment of the first scheduled preliminary hearings was mutually convenient to both the Crown and S.D.. However, it seems more likely than not that the preliminary hearings would not have gone ahead in March or April regardless of S.D.’s preferences because of the reassignment of the case to the Ottawa Crown’s office (where the first assigned Crown seems to have only had the file for a month or two before it got passed on to someone else).

[74] That said, when S.D.’s former counsel got off the record in January 2015, the March and April dates were going to be trial dates. So S.D. would have needed his defence witnesses (although there appears to have been confusion on his part at the time as to whether he was to be tried by judge alone in the Ontario Court of Justice or by judge and jury or judge alone in the Superior Court), and some of those witnesses were not available.

[75] It will be recalled that, from January 2015 onwards, S.D. was representing himself. This is not a case where there was period of delay or indecision while an unrepresented accused pondered over whether to retain new counsel. S.D. made it clear that he would be representing himself. When the October and November 2015 preliminary inquiry dates were set, the only availability that was discussed was that of the Crown. There is no indication that any unavailability of S.D. influenced the selection of those dates.

[76] There may be circumstances under which it is appropriate to apportion a period of delay between the Crown and the defence: see, for example, R. v. Bishop, 2016 ONSC 7734. I find this to be such a case.

[77] By the time S.D. re-elected trial by judge alone in the Superior Court, the May and April dates had been vacated. In seems appropriate, therefore, that some portion of the ensuing delay should be attributed to the defence. But for S.D. announcing at the time his lawyer got off the record that some of his witnesses were not available in March and April 2015, it is possible that the defence would have been able to proceed then, even if the Crown was not. However, it should not necessarily be half of the ensuing period of delay which is attributed to the defence because the record indicates that the court was able to offer September 2015 preliminary hearing dates which dates do not appear to have suited the Crown.

[78] I have concluded that it would be appropriate to attribute three months out of the 6.93 months’ delay caused by the adjournment of the first scheduled preliminary hearing dates to the defence.

Second Preliminary Hearing Dates

[79] After the October and November preliminary hearings had been set, a focus hearing was scheduled to take place on 10 July 2015 on Information #14-6611 (the October 2015 preliminary hearing).

[80] A focus hearing was subsequently set for 30 July 2015 in relation to the other charges.

[81] As already alluded to, it was only at the 10 July 2015 attendance that the section 486.3 counsel issue was addressed. The Crown Attorney, Mr. Elhadad, was aware that Justice Beaman had made reference to the appointment of section 486.3 counsel and, initially, appeared to be under the impression that she had made an order (although he confessed he had not seen it). At one point he said that it was his understanding that the Kingston Crown’s office would be looking after that issue. Later on in the hearing, the clerk of the court drew to the judge’s attention that there was no section 486.3 order on the record. A transcript of the pretrial with Justice Beaman was available. After further discussion, Justice Kirkland made a section 486.3 order, but only with respect to Information #14-6611. It was explained to S.D. that it would be Legal Aid Ontario who determined which counsel, from a list of counsel, would be appointed.

[82] The Crown’s factum observes that at the 10 July focus hearing, after announcing that he intended to call 86 witnesses at the preliminary hearing and hearing an explanation from the judge and the Crown that the preliminary inquiry judge would not be making credibility determinations, S.D. asked “to put it off for another six months then” (it not being clear whether “it” was a reference to the preliminary hearing or the trial). The implication being that S.D. wanted to slow the process down. As the Crown’s factum states, following that discussion:

The 486.3 order having been made, and [S.D.] having been advised that the preliminary inquiry judge may simply cut off his list of witnesses, the matter is subsequently adjourned directly to the preliminary inquiry date in October.

[83] It then took close to two months before S.D. was notified of the appointment of section 486.3 counsel. I make no criticism of that – it was summer time and people were on vacation – but the result was to provide a fairly narrow window of opportunity for counsel to be engaged and ready in time for the October and November preliminary hearings.

[84] S.D. wasted no time in meeting with the appointed section 486.3 lawyer, Ms. Christie, once told of her appointment. Having reviewed the correspondence and considered the evidence relating to her appointment and subsequent withdrawal, I make no criticism of the way S.D. approached things. While he had made inquiries about Ms. Christie before he met with her, I accept his assertion that he went into the meeting with her prepared to have her assist him. Although his evidence under cross-examination and upon re-examination waivered somewhat, I was left with the impression that the decision not to have Ms. Christie continue as section 486.3 counsel was a joint one, resulting from a level of discomfort that both he and Ms. Christie had as a result of their discussion and their mutual acquaintances in the community. Indeed, Ms. Christie’s assistant, Kelsie Virgin, provided an affidavit confirming that “on the basis of a mutual decision”, Ms. Christie told Legal Aid Ontario she would not act for S.D. on the Legal Aid Certificate as section 486.3 counsel.

[85] S.D. cannot be criticised for what happened after that. Within two weeks, he had found a lawyer prepared to take on the role of section 486.3 counsel. However, the first preliminary inquiry was less than a month away and the second one (in respect of which an order had yet to be made) was only two months away.

[86] The Crown acknowledges “miscommunication in the Crown’s office”, the net result of which “was minor”. But that significantly understates what happened.

[87] The issue of obtaining section 486.3 counsel simply slipped between the cracks.

[88] The Crown is responsible for not dealing with this issue, which was so clearly flagged by Justice Beaman on 6 February 2015, in a timely manner.

[89] It follows that I disagree with the Crown’s submission that it was S.D.’s “refusal” to work with Legal Aid Ontario appointed section 486.3 counsel and his selection of 486.3 counsel who was unavailable for the second preliminary inquiry dates that was the predicate cause of the delay.

[90] Had a section 486.3 order been obtained in good time it would have minimised, if not wholly eliminated, the risk of a further adjournment being required if the counsel initially appointed was, for whatever reason, not able to act.

[91] S.D. was not advised of Ms. Christie’s appointment until a little over five weeks before the first preliminary hearing was scheduled to commence. There was, accordingly, no room to manoeuvre if something went awry, which, as it turns out, it did.

[92] The adjournment of the October and November 2015 preliminary hearings was a foreseeable consequence of the Crown’s delay in obtaining the section 486.3 orders.

[93] The third set of preliminary hearing dates were established at a set date hearing on 6 October 2015. The dates selected - of 27, 28 and 29 June 2016 and 19 and 20 July - reflected the availabilities of Crown counsel and Ms. Conway, as well as an out of town judge (necessitated by S.D.’s ties in the Kingston legal community). There is no record of the Crown and the court offering earlier dates which were rejected by the defence.

[94] The resulting delay until the last day of the second preliminary hearing (as rescheduled for the second time), in fact, 19 July 2016, was 256 days (8.4 months).

[95] The present case is not, as the Crown sought to argue, one where S.D. seeks to assert “a regime of perpetual responsibility in which the defence can decline dates after a Crown-caused adjournment yet the continually accumulating delay continues to be a Crown delay” (per Paciocco J. in R v. Sheldrick, 2017 ONCJ 16 at para. 44). There is nothing in the record to suggest that, following the adjournment of the October and November 2015 preliminary inquiries, the defence declined earlier dates than those that were set.

[96] In conclusion, I do not ascribe the delay between the second and third set of scheduled preliminary hearings as defence delay. Rather, it was the result of a lack of oversight by the Crown of a case involving a self-represented accused, where the preliminary inquiry had already been delayed once, where there were widespread potential conflicts because of S.D.’s deep roots and connections in the community and, in particular, by the failure to make timely requests for section 486.3 orders in both cases. As submitted by the defence: “Put simply, not only did the Crown have no plan for bringing the Applicant to trial within a reasonable time, it contributed directly to the delay through its own actions and inaction”.

[97] I hasten to add that none of the substantive events described in this section of my reasons occurred on the watch of counsel now appearing for the Crown.

DECISION

[98] As a result of my finding that three months’ delay should be attributed to defence delay, the net delay in this case is just over 38 months. That is still well in excess of the presumptive ceiling established in R. v. Jordan. It should not have taken so long to bring the charges against S.D. to trial. His right to be tried within a reasonable time has not been observed.

[99] I therefore allow his application and stay the charges against him.

Graeme Mew J.

Handed down: 27 July 2017 (orally)