CITATION: R. v. Bassaragh, 2017 ONSC 4668
COURT FILE NO.: CR-17-0000428-0000
DATE: 20170814
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
KESWORTH BASSARAGH
Applicant
Dennis Galiatsatos, for the Crown
Mitchell Chernovsky, for the Applicant
HEARD: July 31, 2017
RULING ON AN APPLICATION PURSUANT TO s. 11(b) OF THE CHARTER
B. p. o’marra j.
OVERVIEW
[1] The applicant faces charges of robbery, use of an imitation firearm in the commission of an indictable offence and breaking and entering a dwelling house, all contrary to the Criminal Code of Canada. He was arrested on January 12, 2015 and released on a recognizance on February 4, 2015. He has since been charged with further unrelated charges and is now in custody. His trial is scheduled to commence on September 5, 2017 with an estimated duration of four weeks. The total delay between his arrest and the anticipated end of trial is 33 months.
[2] The applicant now seeks a stay of the charges based on an alleged violation of s. 11(b) of the Charter of Rights and Freedoms (the “Charter”), related to his right to be tried within a reasonable time.
TIMELINE
[3] I have reviewed the entire chronology as filed by counsel. The following are the salient dates and events:
The Ontario Court of Justice
January 12, 2015 – The applicant was arrested. The co-accused had been arrested in December 2014. He was detained in custody for the entire process.
January 21, 2015 – Duty counsel for the applicant requested an adjournment to January 27, 2015 on behalf of David Midanik who was counsel for the applicant.
February 4, 2015 – The applicant was released on a strict surety recognizance with a curfew.
June 9, 2015 – On this date scheduled for a judicial pretrial, counsel for the co-accused advised the court that David Midanik had been counsel for the co-accused on other prior charges and was thus in a conflict to represent the applicant. The crown intended to join the application to remove David Midanik as counsel of record for the applicant. It was agreed that a further pretrial date and dates for a preliminary hearing could not be set until the conflict issue was resolved and new counsel was on record for the applicant. Both accused were adjourned on consent to June 16, 2015 to be spoken to.
June 16, 2015 – Mr. Chernovsky appeared as new counsel of record for the applicant. He advised the court that previous counsel “now realizes there is a conflict” and Mr. Chernovsky will take over the file. On consent, both accused were remanded to June 23, 2015 to arrange a new judicial pretrial.
June 23, 2015 – Duty counsel spoke on behalf of counsel for both accused and requested an adjournment to June 24, 2015 to set dates for a preliminary hearing.
June 24, 2015 – On consent, both accused were adjourned to June 25, 2015 to set dates for the preliminary hearing.
June 25, 2015 – Preliminary hearing dates were set for November 4-6, 2015 inclusive. The earliest availability date for counsel for the applicant was November 2, 2015. Counsel for the co-accused had availability as of July 27, 2015 but agreed that the November dates were the first dates available to counsel for both accused. September 15, 2015 was scheduled on consent for a confirmation hearing and filing of the Statement of Issues pursuant to s. 536.3 of the Criminal Code.
September 15, 2015 – Neither counsel had filed a Statement of Issues. Counsel for the applicant did not appear but left a message with the crown confirming the preliminary hearing dates set for November 4-6, 2015 inclusive. Counsel for the co-accused was unable to attend and requested a return date of September 18, 2015 so she could file the Statement of Issues. On consent, both accused were remanded to September 18, 2015.
September 18, 2015 – Counsel for the applicant appeared by agent and requested an adjournment for one week to prepare and file a Statement of Issues. Counsel for the co-accused also appeared by agent and advised that the co-accused wanted to discharge his counsel and obtain new counsel. On consent, both accused were remanded to September 24, 2015 to appear before a judge.
September 24, 2015 – The co-accused confirmed that he wanted to retain new counsel and asked for a remand to do so. Counsel for the co-accused was removed as counsel of record. Duty counsel appeared as agent for counsel for the applicant and filed the Statement of Issues. On consent, both accused were remanded to October 9, 2015 to be spoken to.
October 9, 2015 – Counsel Luc Leclair appeared to address his potential status as new counsel for the co-accused. He advised the court that an application for a change of solicitor by the co-accused had been filed with Legal Aid. He also advised that he expected to be retained but was not available for two of the three dates currently set for the preliminary hearing. On consent, both accused were remanded to October 16, 2015 to be spoken to.
October 16, 2015 – An agent appeared on behalf of counsel for both accused. On consent, the scheduled preliminary hearing dates of November 4-6, 2015 inclusive were vacated and November 4, 2015 was set for a further judicial pretrial.
November 4, 2015 – Counsel for both accused appeared and attended a judicial pretrial. On consent, the preliminary hearing was set to proceed on March 21-24, 2016 inclusive.
March 24, 2016 – The preliminary hearing was not completed within the three scheduled dates. The parties agreed to return on April 13, 2016 to schedule continuation dates.
April 13, 2016 – The coordination of the schedules of the presiding justice and counsel led to further dates being set for August 8-11, 2016 inclusive. Before the return date of August 8, 2016, the applicant was arrested on unrelated charges and was thereafter held in custody.
August 19, 2016 – The presiding justice advised counsel in writing that the applicant’s post-arrest statement and evidence of in-dock identification were admissible for reasons to follow.
August 23 – September 11, 2016 – In this time period there was correspondence between crown counsel and counsel for both accused as to whether committals for trial were still in issue. Counsel for both accused ultimately replied that they would make submissions on whether there should be committals for trial.
November 7, 2016 – Both accused were committed for trial after submissions of all counsel.
The Superior Court of Justice
November 28, 2016 – On consent, a judicial pretrial was set for December 19, 2016.
December 19, 2016 – A further judicial pretrial was set for December 23, 2016 since it would be on the long trial list with a time estimate of 6-8 weeks.
December 23, 2016 – The Court offered a trial date of February 15, 2017. The crown and counsel for the co-accused were agreeable to that date. Counsel for the applicant advised that he was not available until June 19, 2017. A trial date of September 5, 2017 was ultimately set for the applicant. Counsel for the co-accused declined to waive any delay beyond February or March of 2017 for his trial.
January 9, 2017 – The crown elected to sever the two accused and the co-accused scheduled a trial for February 2017. The co-accused later resolved his matters. The trial for the applicant alone was confirmed for September 5, 2017.
July 31, 2017 – Submissions were completed on the s. 11(b) application and the ruling was reserved to August 14, 2017.
THE NEW FRAMEWORK
[4] Since July 2016, the Supreme Court of Canada has imposed a significant new framework for assessing whether delays in criminal matters are unreasonable: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631; R. v. Williamson, [2016] 1 S.C.R. 742; R. v. Cody, 2017 SCC 31.
[5] In R. v. Coulter, 2016 ONCA 704, the new framework was summarized as follows at paras. 34-41:
34 Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).
35 Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).
36 Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).
37 If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).
38 Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).
39 If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).
40 If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).
41 The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the “Transitional Cases”) (Jordan, para. 96).
TRANSITIONAL EXCEPTIONAL CIRCUMSTANCE
[6] Jordan was released on July 8, 2016. If a case was already in the system when Jordan was released, as in this case, a “transitional exceptional circumstance” may arise “if the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed.” (Jordan, at para. 96).
[7] If I am in error in calculating the net delay under the Jordan principles, I am satisfied that the transitional exceptional circumstance applies on these matters.
[8] The factors to be considered and the onus of proof on pre-Jordan applications under s.11(b) of the Charter were set out in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771 at paras. 31-33:
The Approach to Unreasonable Delay – The Factors
31 The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in Smith, supra, "[i]t is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable?" (p. 1131). While the Court has at times indicated otherwise, it is now accepted that the factors to be considered in analyzing how long is too long may be listed as follows:
the length of delay;
waiver of time periods;
the reasons for the delay, including
(a) inherent time requirements of the case,
(b) actions of the accused,
(c) actions of the Crown,
(d) limits on institutional resources, and
(e) other reasons for delay; and
- prejudice to the accused.
These factors are substantially the same as those discussed by this Court in Smith, supra, at p. 1131, and in Askov, supra, at pp. 1231-32.
32 The judicial process referred to as "balancing" requires an examination of the length of the delay and its evaluation in light of the other factors. A judicial determination is then made as to whether the period of delay is unreasonable. In coming to this conclusion, account must be taken of the interests which s. 11(b) is designed to protect. Leaving aside the question of delay on appeal, the period to be scrutinized is the time elapsed from the date of the charge to the end of the trial. See R. v. Kalanj, 1989 CanLII 63 (SCC), [1989] 1 S.C.R. 1594. The length of this period may be shortened by subtracting periods of delay that have been waived. It must then be determined whether this period is unreasonable having regard to the interests s. 11(b) seeks to protect, the explanation for the delay and the prejudice to the accused.
33 The role of the burden of proof in this balancing process was set out in the unanimous judgment of this Court in Smith, supra, at pp. 1132-33, as follows:
I accept that the accused has the ultimate or legal burden of proof throughout. A case will only be decided by reference to the burden of proof if the court cannot come to a determinate conclusion on the facts presented to it. Although the accused may have the ultimate or legal burden, a secondary or evidentiary burden of putting forth evidence or argument may shift depending on the circumstances of each case. For example, a long period of delay occasioned by a request of the Crown for an adjournment would ordinarily call for an explanation from the Crown as to the necessity for the adjournment. In the absence of such an explanation, the court would be entitled to infer that the delay is unjustified. It would be appropriate to speak of the Crown having a secondary or evidentiary burden under these circumstances. In all cases, the court should be mindful that it is seldom necessary or desirable to decide this question on the basis of burden of proof and that it is preferable to evaluate the reasonableness of the overall lapse of time having regard to the factors referred to above.
I do not read the Askov decision as having departed from this statement although portions of the reasons of Cory J. emphasized certain aspects of the evidentiary burden on the Crown.
[9] In the final stage of the pre-Jordan analysis, the court must consider and balance the various factors while considering the societal interest in a trial on the merits.
ANALYSIS
[10] The applicant submits that the most significant reason for the unreasonable delay in this case relates to the failure to complete the preliminary hearing in the scheduled four days in March 2016. He submits that incremental, incomplete and poorly organized disclosure led to protracted proceedings at that stage. That combined with certain complex issues to double the court time required to complete the preliminary hearing. Coordinating the schedules of the presiding justice and busy trial counsel for continuation dates added several months to the process.
[11] I agree that the protracted nature of the preliminary hearing and the need for continuation dates led to a significant delay at the Ontario Court level. I also find that there were issues related to disclosure that contributed to the delay. Notwithstanding that, there were discrete events and a waiver of certain time periods that place the overall net delay below the Jordan ceiling of 30 months.
[12] Defence delay is divided into two components: (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; Cody, at para. 26.
[13] A waiver of delay by the defence may be explicit or implicit, but must be informed, clear and unequivocal: Jordan, at para. 61; Cody, at para. 27.
[14] There were two discrete events in the Ontario Court proceedings that reduce the raw total delay:
(1) The period between June 9 and 25, 2015 related to a delay in setting dates for a judicial pretrial and preliminary hearing. This arose from original counsel for the applicant being in a clear conflict of interest since he had previously represented the co-accused. This 15-day period was in no way caused by the court or the crown.
(2) Between September 18 and November 4, 2015, the four originally scheduled dates for the preliminary hearing were vacated and November 4, 2015 was converted to a judicial pretrial. This was caused by the co-accused discharging his counsel and requesting time to retain new counsel. Not surprisingly, the new counsel was not available or prepared to proceed on the November 2015 dates. This period of 47 days was in no way caused by the court or the crown.
(3) In the Superior Court, the applicant was offered a trial date of February 15, 2017. The crown, court and co-accused agreed to that date. Counsel for the applicant was unavailable to start the trial until June 19, 2017. The co-accused was severed and the applicant agreed to a trial date of September 5, 2017. The 123 days between February 15, 2017 and June 19, 2017 must be attributed to the applicant.
[15] The total of the two discrete events in the Ontario Court and the effective waiver of time in the Superior Court amounts to 6.1 months.
[16] That figure must be deducted from the raw total time leaving 26.9 months. This net delay falls below the Jordan ceiling. Therefore the onus rests on the defence to show that the delay is unreasonable.
[17] Counsel for the applicant made certain tactical decisions that increased the time required to complete the preliminary hearing in the originally scheduled time period. The crown tendered a post-arrest statement of the applicant. Counsel for the applicant chose to contest the admissibility of the statement. He was entitled to do so but there were consequences in terms of court time. Where the crown tenders a post-arrest statement to a person in authority at a preliminary hearing, the burden of proving voluntariness is beyond a reasonable doubt: Criminal Code s. 542(1); R. v. Pickett (1975), 1975 CanLII 1428 (ON CA), 31 C.R.N.S. 239. This is the only category of evidence that requires proof beyond a reasonable doubt at a preliminary hearing. Absent a waiver, this usually necessitates calling all persons in authority who had any meaningful contact with the accused before and during the post-arrest statement.
[18] On this application, counsel for the applicant referred to the series of complex issues dealt with at the preliminary hearing. That complexity combined with disclosure issues contributed to the delay. However, in light of the net overall delay for these serious charges with two accused and a hotly contested committal for trial, I cannot find that the case took markedly longer than it reasonably should have.
[19] For purposes of the Morin analysis, I would calculate the delay as follows:
(1) The total time in the Ontario Court of Justice between the arrest on January 12, 2015 and the committals for trial on November 7, 2016 is 22.2 months. In assessing institutional/crown delay, the following time periods must be deducted:
(a) January 12 – February 26, 2015 – inherent intake period – 45 days;
(b) June 9 – 25, 2015 – delay in setting dates for judicial pretrial and preliminary hearing caused by conflict of interest of first counsel for the applicant – 15 days;
(c) September 18 – November 4, 2015 – delay caused by co-accused discharging counsel and needing time to retain new counsel – 47 days; and
(d) February 3 – March 21, 2016 – inherent preparation time for preliminary hearing set for four days – 45 days.
Total: 152 days or 5 months.
Thus, the total of institutional/crown delay in the Ontario Court of Justice was 17.2 months.
(2) The total time in the Superior Court of Justice between November 28, 2016 and October 6, 2017 (estimated date to complete the trial) is 10.4 months. In assessing institutional/crown delay, the following time periods must be deducted:
(a) November 28 – December 23, 2016 – inherent time to arrange and hold a judicial pretrial for a long trial – 25 days;
(b) February 15, 2017 – June 19, 2017 – this is the time between the trial date offered by the court and agreed to by the crown of February 15, 2017 and June 19, 2017 when counsel for the applicant was first available – 4.1 months; and
(c) August 5 – September 5, 2017 – inherent preparation for trial – 30 days.
Total: 5.9 months.
Thus, the total institutional/crown delay in the Superior Court of Ontario is 4.5 months.
The total institutional/crown delay for both levels of court is 21.7 months.
[20] This total is slightly over the Morin guidelines (which are not time limits in any event): R. v. Morin, at p.799; R. v. Khan, 2011 ONCA 173, at para. 22.
[21] I have referred to the effective waiver for the time period when counsel was unavailable for trial until June 19, 2017. Counsel for the applicant referred me to the passages in R. v. Godin, 2009 SCC 26 at para. 23 related to “reasonable availability” of counsel. I acknowledge it will be difficult in many cases for trial counsel to be available for trial within a few weeks of a set date. However, Godin must be read in light of the new world order of Jordan, Williamson and Cody. The sense of urgency to get trials set within the Jordan stipulations must apply to both crown and defence.
[22] The applicant does not allege any specific prejudice attributable to delay. His current custodial status is related to other offences alleged to have been committed while he was at large on the matters before this court.
[23] The applicant is alleged to have been involved in serious crimes of violence. There is a significant societal interest in an adjudication on the merits. In considering all the factors based on the findings I have made and the onus resting on the applicant, the application is dismissed.
B. P. O’Marra J.
Released: August 14, 2017
CITATION: R. v. Bassaragh, 2017 ONSC 4668
COURT FILE NO.: CR-17-0000428-0000
DATE: 20170814
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
KESWORTH BASSARAGH
Applicant
rULING ON AN APPLICATION PURSUANT TO s. 11(b) OF THE CHARTER
B. P. O’Marra J.
Released: August 14, 2017