CITATION: R. v. Clarke, 2017 ONSC 4880
COURT FILE NO.: CR-16-70000617-0000
DATE: 20170907
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RASHID CLARKE
Applicant
Ms. Vogel, for the Crown
Mr. Bogle, for the Applicant
HEARD: June 8, 2017
SECTION 11(B) APPLICATION
A.J. O’marra J.
[1] The applicant, Rashid Clarke seeks an order from the court to stay proceedings pursuant to s. 24(1) of the Charter of Rights and Freedoms (Charter) on the basis that his right to be tried with a reasonable time under s. 11(b) of the Charter has been infringed.
[2] The applicant was arrested on June 19, 2014 and charged with a number of offences arising out of two robberies, including attempted murder with a firearm and robbery with a firearm. The allegations are that the applicant and two other accused tried to rob an armoured truck on June 19, 2014 during which one of the guards was shot and critically injured. The applicant and two others were arrested shortly thereafter. Two weeks earlier on June 5, 2014 the same armoured truck crew was confronted by three robbers. It is alleged that the applicant and his two co-accused were the robbers in that instance.
[3] The applicant’s trial date in the Superior Court is set for October 19, 2017 with an anticipated completion date of November 10, 2017.
[4] The applicant had an earlier judge and jury trial date set for five weeks commencing March 20, 2017. However, on March 16 counsel for the applicant brought an application to be removed from the record because of challenges in receiving legal aid funding. Justice J. McMahon of the Superior Court denied the application after the legal aid issue was resolved. He granted a one week adjournment to March 27, 2017 for counsel to properly prepare for trial.
[5] On March 27, 2017, at the start of the trial, defence counsel failed to provide any information regarding a response to the Crown’s pre-trial motions properly served and filed. Further, arriving late at approximately 11:00 a.m. that morning, counsel filed incomplete s. 10 and s. 11(b) applications. Notwithstanding, deficiencies in service, filing and materials, the pre-trial motions were conducted and completed by April 11, 2017. Thereafter, defence counsel was not available from May 8 to May 31, 2017 as a result of personal matters which prevented the continuation of the trial before a jury to completion. The trial proper was adjourned to October 19, 2017 on an express waiver by the accused of s. 11(b) rights until the completion of the trial.
[6] On July 8, 2016, the Supreme Court of Canada released R. v. Jordan, 2016 SCC 27 which created a new framework for the analysis as to whether an accused’s right to be tried within a reasonable time has been breached under s. 11(b) of the Charter. The framework creates two ceilings beyond which the delay is considered to be presumptively unreasonable. The ceiling in the provincial court for a matter “going to trial” is 18 months and 30 months for a case “going to trial” in the Superior Court of Justice.
[7] Where the total delay, less the delay either waived expressly or exclusively caused by the defence, exceeds the presumptive cap the onus is on the Crown to demonstrate the delay was nevertheless reasonable. However, where delay falls below the ceiling then the defence must demonstrate that the period of time to the end of trial was nevertheless unreasonable. Stays for delay below the presumptive ceiling will be rare and limited to only clear cases (see: Jordan, para. 46-49, and 60).
[8] In this matter I accept the chronology of proceedings as set out by the Crown respondent attached hereto as Appendix A.
[9] The total delay in this matter from arrest of the applicant on June 19, 2014 to the anticipated completion of trial, November 10, 2017 is 41 months. In that the matter exceeds the 30 month ceiling set by the Supreme Court of Canada in matters proceeding to trial in the Superior Court the delay, is considered presumptively unreasonable.
[10] In considering the express waiver made April 11, 2017 and defence contributed delay, which I will outline below, I am satisfied that the delay in this matter falls below the Jordan ceiling and is therefore not presumptively unreasonable.
Ontario Court Proceedings
[11] On October 20, 2014, after a number of pre-trial appearances, the preliminary hearing dates for the three accused were set for two weeks, September 14-18, and October 19-26, 2015. However, the preliminary hearing was not completed by the expiration of the two week period allocated and as a result additional days were required. The preliminary hearing was not completed until June 30, 2016 – 8 months beyond the October 26, 2015 anticipated completion of the preliminary hearing in the Ontario Court.
[12] At the time the preliminary inquiry had been set, all counsel had agreed that the time estimate of two weeks had been realistic in that the preliminary inquiry was to be focused where in everything was admitted except the voluntariness of the accuseds’ statements and the issue of identification. Counsel for the applicant indicated that committal would not be in issue.
[13] On October 26, 2015 the tenth day of the preliminary inquiry and the last which was originally set, the presiding justice observed that it would be prudent to schedule five additional days to complete the preliminary. It was also observed that counsel for the applicant was not in attendance, which hindered the calculation of the time estimate required.
[14] Notwithstanding, additional dates were set, December 14 and 15, 2015. The matter was adjourned to December 29, 2015 at which time it was anticipated that dates for the additional time required would be set. The dates were not set on December 29, the Crown advising that due to a miscommunication further dates had not been scheduled. The matter went over to January 5, 2016 at which time an agent for all counsel and Crown set continuation dates of April 14, 18 and 19, 2016 for the preliminary inquiry.
[15] It is the Crown respondent’s position that the entire period of October 26, 2015 to June 30, 2016, 8 months, should be characterized exclusively as defence delay. The Crown argued that notwithstanding an agreement by counsel that two weeks would be sufficient to complete the preliminary inquiry that period of delay was caused as a result of defence delay - counsel having missed certain dates scheduled for the hearing and examination of a particular witness, counsels’ decision to call their clients on the statement voluntariness voir dire and by having conducted more of a discovery process rather than an issue focused inquiry as agreed.
[16] In a review of the record, the only delay attributed to defence in general was the illness of one of the counsel who prevented the continuation of a witness’ evidence, a situation which was not attributable to the applicant. There was some further delay as a result of the presiding justice having been moved from one courthouse in Toronto to another and having to accommodate the additional dates with another court schedule. Again, no delay occasioned by defence.
[17] There was nothing improper or prolix in the conduct of the inquiry by counsel. Further, the dates required for the continuation of the inquiry were those available to the court and counsel, none of which can be considered delay caused by the applicant.
[18] Accordingly, I do not attribute the eight month period to defence delay as submitted by the Crown respondent. There are however, discreet time periods after June 30, 2016 which I do attribute to defence delay by applicant.
[19] After the last day of evidence, April 19, 2016 the matter was adjourned to June 3, 2016 for committal submissions of the other counsel. Counsel for the applicant had made it known at the outset of the preliminary inquiry committal would not be contested. Counsel for the applicant did not attend on June 3, 2016. After submissions of other counsel the matter was remanded to June 30, 2016 for judgment, and exit pre-trial discussions. Counsel for the applicant did advise Crown counsel he would attend June 30, 2016 for an exit pre-trial.
[20] Again counsel for the applicant did not attend on June 30, 2016, and the matter was remanded to August 30, 2016. On August 30, 2016, counsel did attend and requested that the matter be remanded to September 20, 2016 for him to obtain instructions from his client.
[21] Again Mr. Bogle, counsel for the applicant did not attend on September 20, 2016. Through an agent, who attended on his behalf he requested that the matter be further adjourned to October 24, 2016. On that date the presiding justice made the following comments:
I am actually a little bit concerned about what is happening at this stage, Mr. Clarke, and I apologize, because this will no doubt inconvenience you, and this is not your fault. But your lawyer specifically asked for today’s date. Information was supposed to be provided to the Crown about what is happening. That has not taken place. As a result, I am not content to have your matter go over for more than a month to the 24th given that Mr. Bogle still has not had the necessary discussions with Ms. Vogel.
[22] The Court remanded the matter to September 29, 2016 at which time counsel was to appear. On that date Mr. Bogle appeared and indicated that the matter would not resolve and the court could order committal, which had been conceded at the outset of the preliminary inquiry.
[23] Such matters could well have taken place by June 30, 2016 in that the preliminary inquiry had been completed April 19, 2016. As a result, I consider the time from June 30, 2016 the date set for committal and/or exit pre-trial discussions to September 29, 2016 – 3 months as delay attributable to the defence exclusively.
Superior Court of Justice
[24] In the Superior Court a judicial pre-trial was conducted on October 30, 2016. A continuation was required and rescheduled for November 21, 2016. Again, counsel for the applicant did not attend. An agent who appeared was not advised that a continuing judicial pre-trial was to be conducted. As a result, the court ordered Mr. Bogle to appear personally November 22. He appeared on that date un-gowned and required an agent speak to the matter. A further judicial pre-trial date was set for November 29, 2016.
[25] Accordingly, I attribute a further defence delay of 8 days, November 21 to November 29, 2016.
[26] On November 22 and November 29, 2016, the applicant was advised that the court and the Crown had time to proceed with the trial in this matter on January 3, 2017. On November 29, 2016, counsel for the applicant advised that the earliest time he had available was March 13, 2017.
[27] In Jordan at para. 64 the court stated that the defence will have directly caused the delay if both the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from the unavailability of counsel will be attributed to the defence. In this instance, the period from January 3, 2017 to March 13, 2017 is attributable to defence delay – 2.25 months.
[28] On March 16, 2017, four days before the start of trial on March 20, 2017, counsel for the applicant applied to be removed as counsel of record due to problems he was having with legal aid funding. With the intercession of the court the legal aid problem was resolved. Notwithstanding, on March 17, 2017 counsel still requested removal as counsel of record. Counsel was granted a week’s adjournment from March 20 to March 27 to prepare for trial.
[29] On March 27, 2017 counsel arrived late without having responded with materials to the Crown’s pre-trial motion. Indeed, at about 11:00 a.m. on March 27, 2017, counsel served the Crown two Charter applications for which he had not provided any advance notice to the Crown or filed with the court until that time. The time period from March 20 to March 27, 2017 as conceded by counsel is defence delay – 7 days (.25 months).
[30] After the pre-trial applications were completed April 11, 2016 counsel for the applicant was not in a position to select a jury and complete the matter before he was personally required in another court. The trial proper was adjourned to October 19, 2017. The defence expressly waived s. 11(b) delay from April 11, 2017 to the anticipated trial date completion, November 10, 2017 – 7 months.
[31] In considering the period of delay waived expressly by the applicant – April 11, 2017 to trial completion, November 10, 2017 - 7 months, and additional defence delays:
• June 30, 2016 to September 29, 2016 – 3 months,
• November 21, 2016 to November 29, 2016 - .25 months,
• January 3, 2017 to March 13, 2017 – 2.25 months,
• March 20, 2017 to March 27, 2017 - .25 months,
the overall delay of 41 months is reduced by 12.75 months to 28.25 months, a period within the Jordan time frame for a matter proceeding to trial in the Superior Court of Justice.
[32] When the delay falls below the presumptive ceiling a stay will be rare and granted “only in clear cases”. Further, where it falls below the presumptive ceiling then the applicant bears the onus to demonstrate it has been unreasonable. To do so the applicant must satisfy two criteria:
(i) the defence took meaningful steps demonstrating a sustained effort to expedite proceedings, and
(ii) the case took “markedly longer” than it reasonably should.
Where the defence is not able to establish both criteria the s. 11(b) application must fail.
[33] In this instance, the defence has not established it tried to set the earliest trial date, it put the Crown on timely notice when delay was becoming problematic, or conducted all applications, including the s. 11(b) application reasonably and expeditiously.
[34] At the outset of the preliminary inquiry counsel for the applicant admitted committal however, once the preliminary hearing evidence was completed on April 19, 2016 he did not request that the matter be committed to a trial date. He remained silent on any delay concerns which may have been present. It was not until September 29, 2016, four and a half months later that he informed the Crown and court as to whether the matter would be resolved or committed to trial.
[35] The first indication of a s. 11(b) concern was more than four months after the release of Jordan and after several appearances both in the Ontario Court and the Superior Court. It was first raised by an agent for counsel on November 21, 2016, a date counsel had failed to inform the agent there was continuing judicial pre-trial scheduled set for that day. Further, s. 11(b) was never raised by counsel in the Ontario Court, or in any of the judicial pre-trial forms provided.
[36] On the ordered attendance of counsel November 22, 2016 having failed to appear and conduct the scheduled continuing pre-trial the day before and his agent having raised a s. 11 b) concern on the record, Mr. Justice J. McMahon made the following remarks:
Right. It was just that we had a pre-trial yesterday that the agent did not show up (for) and did not know there was a pre-trial and then was concerned that there is an 11(b) and there was a real difficulty because of the 11(b) was going to be brought, so I was a little vexed by the fact that we’re complaining about 11(b) but we mis-diarized or did not show up for the pre-trial.
[37] Even though it was raised counsel for the applicant still failed to comply with the Chief Justice’s directions on filing s. 11(b) applications, which required for counsel to serve and file the s. 11(b) application materials 90 days before trial and the hearing of the application to be set 60 days before trial. Counsel for the applicant did neither.
[38] There is nothing in the record to suggest that this matter took markedly longer that it should have to come to trial. It is a complex matter as indicated by the fact that that the preliminary inquiry involved three accused and took more than 16 days to complete. Even counsel for the applicant acknowledged several times that the amount of disclosure was voluminous. Further, the original time frame of five weeks for trial by any standard reflects a complex matter.
[39] The overall record reflects that counsel was not ready to proceed to trial when it was set for March 20, 2017:
• Defence counsel failed to indicate on the judicial pre-trial form or at the judicial pre-trial conferences s. 11(b) concern.
• Defence counsel raised s. 11(b) concerns for the first time on November 21, 2016, yet he was not ready to proceed to trial January 3, 2017 when the court and Crown were ready to proceed to trial or on March 20, 2017 the date set for trial.
• Defence counsel brought a last minute application to be removed as counsel for the record because he maintained he could not be ready in time for trial. The application was denied. The matter was postponed one week to provide defence counsel time to prepare.
• He failed to respond to the Crown’s applications and to serve, or communicate informally the essence of the defence applications prior to the start of the trial date March 27, 2017.
• The defence motions were not provided to the Crown until almost 11:00 a.m. on March 27, which would have been the sixth day of trial had counsel been prepared to proceed March 20, 2017.
• The affidavit of the applicant required by the rules was not provided by the Crown until March 30, 2017 just before the Crown called the last witness on the blended voluntariness/ s. 10 Charter voir dire.
• Defence counsel made no efforts to secure the attendance of co-accused Nicholas Cross, an essential witness in his response to the Crown’s voluntariness application on the voir dire.
• Defence counsel required an additional delay of half a day to prepare submissions on the voir dire.
• After the conclusion of the voir dire counsel was not available to continue and complete the trial proper portion of the proceedings due to a personal conflict requiring him to be in another court.
[40] The applicant has not established that it took any meaningful steps to expedite proceedings or that the matter has taken markedly longer than it reasonably should. Accordingly, it falls within the Jordan framework and the delay is not unreasonable.
[41] As a transitional case, in considering the Morin factors, intake, actions of the defence and Crown, institutional delay due to resources I find that the overall delay to trial was not unreasonable.
[42] There is no period in the overall time frame that I would attribute to specific Crown delay as suggested by the applicant. To the contrary, the record and correspondence provided in the Respondent’s Application Record reveals that the Crown continued throughout to engage all counsel to coordinate their schedules and specific witnesses in order to move the matter forward.
[43] Considering the inherent delay for the intake of a complex multi-accused matter, specific defence caused delay noted above, the express defence waiver of delay - the institutional delay of 18-20 months as reflected in Appendix A to the first available trial date is reasonable and with the Morin guidelines of 14-18 months for a matter to be tried in the Superior Court. Sopinka J. observed in R .v. Morin (1992), 1992 CanLII 89 (SCC), 71 C.C.C. (3d) 1 (SCC) at p. 28 “deviations of several months in either direction can be justified by the presence or absence of prejudice”. Here, there is no evidence of any specific prejudice suffered by the applicant in this matter.
[44] The s. 11(b) application is dismissed.
A.J. O’Marra J.
Released: September 7, 2017
CITATION: R. v. Clarke, 2017 ONSC 4880
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RASHID CLARKE
Applicant
section 11(b) application
A.J. O’Marra J.
Released: September 7, 2017
APPENDIX A
Period
Duration
Time Allotment
Reason
PROVINCIAL COURT
June 19, 2014 – June 24, 2014
5 days
Morin: Intake/Inherent
June 19: Arrest and swearing of information. Bail hearing not commenced. Crown requested 3 day adjournment for investigative purposes. The matter was remanded to June 24th.
June 24, 2014 – July 15, 2014
21 days
Morin: Intake/Inherent
June 24: Special bail hearing set for July 15th for Clarke and Cross.
July 15, 2014 – August 21, 2014
37 days (1 month, 6 days)
Morin: Intake/Inherent
July 15: Special bail hearing commenced but not completed. The matter was remanded to noon on July 16th. Mr. Bogle advised the Court that he could not attend at noon but would leave case law with co-accused’s counsel. July 16: Bail hearing completed. Both Clarke and Cross released. The matter was remanded to August 21st for a first appearance.
August 21, 2014 – September 18, 2014
28 days
Morin: Intake/Inherent
August 21: Mr. Bogle appeared with the Applicant. The Crown advised that substantial disclosure had been provided (including officers’ notes and DVD statements of the accused). Further disclosure had been requested, but consisted mostly of forensic testing results and reports which would take some time. The Crown asked that counsel get in contact directly with Ms. Vogel to schedule a Crown Pre-Trial (“CPT”). Ms. Vogel was also agreeable to counsel setting a joint Judicial Pre-Trial in advance of the CPTs (“JPT”). Mr. Bogle asked that the matter be adjourned until after Ms. Vogel returned on August 25th in order to “get a handle on all the forensic testing”. He also did not have Cross’ counsel’s available dates. He asked that the matter be adjourned to September 18th.
September 18, 2014 – October 20, 2014
32 days (1 month, 2 days)
Morin: Intake/Inherent
September 18: Mr. Forte (counsel for Cross) appeared for all three accused. Mr. Bogle had provided available dates for a JPT. The JPT was set for October 20th. This was the earliest date agreeable to all counsel. The Trial Coordinator had offered dates as early as October 6th. Mr. Bogle’s earliest availability was October 8th.
October 20, 2014 – December 15, 2014
56 days (1 month, 25 days)
Morin: Institutional (minus 30 days neutral delay pursuant to R. v. Lahiry)
October 20: A JPT was conducted with Mr. Bogle and Ms. Robb (Beckford’s counsel). Preliminary hearing dates were scheduled for September 14, 15, 16, 17, 18, and October 19, 20, 22, 23 and 26, 2015. A continuing JPT was set in the interim for December 15, 2014.
December 15, 2014 – September 14, 2015
273 days (8 months, 30 days)
Morin: Institutional
December 15: Further JPT was held. Mr. Bogle was not in attendance. Ms. Vogel advised the Court that outstanding disclosure included fingerprint results, phone record results and video recordings from inside the station. She advised that the focus of the preliminary hearing would be on the accused’s’ statements. Ms. Robb agreed. The matter was remanded to the first day of the preliminary hearing, September 14th, 2015. On August 24, 2015, Ms. Vogel sent an e-mail to all three counsel reminding them that they indicated two weeks was a realistic time frame to complete the preliminary inquiry given their preparedness to make many admissions and have a focused hearing. Ms. Vogel asked counsel to send her their admissions before the preliminary hearing. She also asked all counsel to advise if they believed more than two weeks would be required to complete the preliminary hearing.[1] Ms. Vogel did not receive a response from Mr. Bogle. On September 3, 2015, Mr. Forte e-mailed Ms. Vogel, Ms. Robb and Mr. Bogle regarding the Crown’s anticipated witness list. Ms. Vogel responded that she had not been able to prepare an anticipated witness list because she had not received a response from Mr. Bogle or Ms. Robb re. admissions. Ms. Vogel reminded counsel that the Crown’s view was that more than two weeks were required for the preliminary hearing and that the two week time estimate would only be sufficient if counsel focused the hearing as they had indicated.[2] On September 12, 2015, Ms. Vogel received a response regarding admissions from Ms. Robb. Ms. Vogel informed Ms. Robb that she still had not heard back from Mr. Bogle, but would provide counsel with a witness list shortly. She did so by email the following day.[3]
September 14, 2015 – October 26, 2015
1 month, 12 days
Morin: Institutional
September 14: First day of preliminary hearing. Transcript not provided. September 15: Second day of preliminary hearing. September 16: Third day of preliminary hearing. Ms. Vogel advised the Court that she would be re-arranging the order of witnesses due to Mr. Forte’s unavailability on September 18th. The Court asked counsel to discuss which portions of the in-car videos needed to be shown to avoid unnecessary delays. September 17: Fourth day of preliminary hearing. September 18: Fifth day of preliminary hearing. Evidence was heard for most of the day. The Court ended earlier than usual in order for all counsel to review the ICAD report to ensure they were working off of the same report. Ms. Vogel advised the Court that she had spoken to the Trial Coordinator to canvass further dates Her Honour would be available to preside at 1000 Finch Court (as Her Honour would soon be presiding permanently at College Park Court). Ms. Vogel told the Court that she had dates from Ms. Robb but was still waiting on dates from Mr. Bogle and Mr. Forte.[4] On September 20, 2015, Ms. Vogel sent Mr. Bogle an email advising him that she had received dates from Mr. Forte and Ms. Robb and asked him to send his available dates to her as soon as possible. He provided his available dates by email on September 21st.[5] October 19: Sixth day of preliminary hearing. October 20: Seventh day of preliminary hearing. October 22: Eighth day of preliminary hearing. October 23: Ninth day of preliminary hearing. Mr. Bogle not in attendance. Ms. Robb advised the Court that counsel would be agreeable to continuing the preliminary hearing on additional dates scheduled at College Park Courthouse. The Court acknowledged that the scheduling issues could not be discussed at length because Mr. Bogle was not in attendance, but urged counsel to start speaking with the Trial Coordinators of both courthouses as soon as possible. Ms. Vogel advised that she obtained further available dates from all counsel by September 21st and immediately provided those dates to the Trial Coordinator. She told the Court that she had followed up with the Trial Coordinator to try and secure those dates to the benefit of all parties. She also advised the Court that counsel were now planning on calling their clients which was not originally allocated for in the original time estimate. The Court asked Mr. Forte to consider whether he required a voluntariness voir dire even though he had advised that he would be conceding committal. The Court advised that this should be raised with Mr. Bogle as well, since he had also conceded committal. The Court failed to see the necessity of taking up court time to argue the issue and wait for the Court’s ruling when it would have no effect. Mr. Forte advised the Court that he would not be continuing with the voluntariness voir dire.
October 26, 2015 – November 23, 2015
28 days
Jordan: Defence delay Morin: Actions of the accused
October 26: Tenth day of preliminary hearing (last date that was originally set). Mr. Bogle was not in attendance. Ms. Vogel advised that further dates had been provided by the Trial Coordinator but none were agreeable to all counsel: December 9th and 16th worked for all counsel, but the Court had other matters booked on those dates; dates were offered in January, but Ms. Vogel was not available; March 3rd and 4th were offered, but Ms. Robb was not available. Ms. Vogel advised that she would send an email to counsel for their updated availability. She asked that the matter be adjourned for a month and offered to speak to the matter on behalf of all counsel if they did not wish to attend. Ms. Robb indicated that after January, her earliest availability was June 13th. When discussing how many further dates would be required, the Court noted that it was unfortunate that Mr. Bogle was not in attendance as the issue of the voluntariness voir dire could not be raised with him and this would impact time estimates. The Court asked Mr. Forte to tell Mr. Bogle to advise the other parties how he wished to proceed in order to assist in time estimates when scheduling the further dates. The Court suggested that it would be prudent to schedule an additional 5 days. Ms. Vogel advised the Court that she was willing to have the matter continue at College Park. She told the Court that she had a three week preliminary hearing scheduled in January which she would try and have re-assigned, although it was unlikely. The matter was remanded to November 23rd to be spoken to. On October 27, 2015, Ms. Vogel advised counsel that two additional dates in December had become available. Mr. Bogle was the last to confirm his availability by email on October 30th and only after a follow up email from Ms. Vogel.[6]
November 23, 2015 – December 14, 2015
21 days
Jordan: Defence delay Morin: Actions of the accused
November 23: Further preliminary hearing dates set for December 14th and 15th.
December 14, 2015 – December 29, 2015
15 days
Jordan: Defence delay Morin: Actions of the accused
December 14: Eleventh day of preliminary hearing. Ms. Vogel advised the Court that she had asked all counsel to send further available dates. She advised that if Det. Stinson’s evidence was completed on the next date, Mr. Bogle would no longer need to attend. December 15: Twelfth day of preliminary hearing. Transcript not provided. Ms. Robb was feeling ill. Ms. Vogel called Det. Palermo as he did not have any contact with Beckford. Ms. Vogel advised she had not received counsel’s available dates yet. As Det. Stinson’s evidence was not able to be completed due to Ms. Robb’s illness, Mr. Bogle’s attendance was still required. The matter was remanded to be spoken to on December 29th. Ms. Vogel requested Mr. Bogle’s available dates by email four times (once on December 15th, twice on December 21st, and again on December 22nd) before receiving a response from Mr. Bogle’s office in the evening on December 22nd.[7]
December 29, 2015 – January 5, 2016
7 days
Jordan: Defence delay Morin: Actions of the accused
December 29: Ms. Guo appeared as agent for all counsel. The Crown advised that due to miscommunication, further dates had not been scheduled for the preliminary hearing.
January 5, 2016 – April 14, 2016
100 days (3 months, 9 days)
Jordan: Defence delay Morin: Actions of the accused
January 5: Ms. Guo appeared as agent for all counsel. Further dates of April 14th, 18th and 19th were set for the preliminary hearing.
April 14, 2016 – June 3, 2016
50 days (1 month, 20 days)
Jordan: Defence delay Morin: Actions of the accused
April 14: Thirteenth day of preliminary hearing. April 18: Fourteenth day of preliminary hearing. April 19: Fifteenth day of preliminary hearing. A further date of June 3rd was set for submissions on committal. Mr. Bogle advised the Court that he would not be in attendance due to prior commitments.
June 3, 2016 – June 30, 2016
27 days
Jordan: Defence delay Morin: Actions of the accused
June 3: Submissions on committal completed. Mr. Bogle was not in attendance. June 30th was set for judgment and exit pre-trials. August 30th was also set in the event Her Honour did not have her ruling ready. Although the June 30th exit pre-trial was confirmed with Mr. Forte, Ms. Vogel had not received confirmation from Mr. Bogle.
June 30, 2016 – August 30, 2016
61 days (2 months)
Jordan: Defence delay Morin: Actions of the accused
June 30: Ms. Vogel and Mr. Forte appeared at College Park for an exit pre-trial. Ms. Vogel advised the Court that Mr. Bogle had indicated to her that he had intended to attend for the exit pre-trial. A JPT was conducted on behalf of Cross only. Mr. Bogle did not attend. The matter was remanded to August 30th.
August 30, 2016 – September 20, 2016
21 days
Jordan: Defence delay (conceded) Morin: Actions of the accused
August 30: Ms. Vogel, Mr. Bogle and Ms. Robb appeared at College Park. The Court provided reasons for committal re. Beckford. A second exit JPT was held. The matter was remanded to September 20th for counsel to obtain instructions for resolution.[8]
September 20, 2016 – September 29, 2016
9 days
Jordan: Defence delay (conceded) Morin: Actions of the accused
September 20: Ms. Vogel and Ms. Robb appeared at College Park. Mr. Bogle was unable to attend and asked the matter be adjourned to whichever date the matter was being remanded to (i.e. October 24th). Ms. Vogel objected to the month long adjournment. She raised concerns that Mr. Bogle had not attended on previous occasions with no indication re. instructions. She was not content to remand the matter a month without having any knowledge of Mr. Bogle’s availability. Ms. Vogel stated that the result of this delay should fall on the Applicant and not the Crown. The Court acknowledged Ms. Vogel’s concerns about how the events had unfolded. Ms. Vogel asked that the matter be adjourned one week to allow Mr. Bogle to contact her with respect to availability. The Court acceded to Ms. Vogel’s request. The Applicant requested to speak to Mr. Bogle. After doing so, the Applicant advised the Court that Mr. Bogle requested the matter be remanded to October 24th. Ms. Vogel objected. The Court agreed with Ms. Vogel and remanded the matter to September 29th.
September 29, 2016 – October 20, 2016
21 days
Morin: Neutral
September 29: Mr. Bogle appeared at College Park with the Applicant. Mr. Bogle advised the Court that the Applicant would not be resolving. The Applicant was committed to trial in Superior Court.
SUPERIOR COURT OF JUSTICE
October 20, 2016 – October 31, 2016
11 days
Morin: Intake/Inherent
October 20: First appearance in Superior Court. Mr. Bogle appeared late. He told the Court that the Pre-Trial Conference Form had been sent to Mr. Armstrong.[9] The matter was remanded to October 31st for a JPT.
October 31, 2016 – November 21, 2016
21 days
Morin: Intake/Inherent
October 31: A JPT was conducted. The matter was remanded to conduct a further JPT on November 21st and to start canvassing trial dates.
November 21, 2016 – November 22, 2016
1 day
Jordan: Defence delay Morin: Actions of the accused
November 21: JPT was not conducted. Mr. Bogle did not appear and did not advise his agent that a JPT was scheduled. Mr. Bogle’s agent, Mr. Wellington, informed the Court that counsel anticipated bringing a s. 11(b) application. Upon questioning from the Court, Mr. Wellington agreed that the delay issues stemmed from the events in provincial court but was unsure whether the transcripts had been ordered or if the application was ready to be filed. The Court remanded the matter to November 22nd for Mr. Bogle to attend so that trial dates could be set.
November 22, 2016 – November 29, 2016
7 days
Jordan: Defence delay Morin: Actions of the accused
November 22: Mr. Bogle appeared but was not gowned. Ms. Martin acted as agent for counsel. The Court advised that he had ordered Mr. Bogle to appear because his agent had complained about s. 11(b), yet no one showed up for the scheduled JPT. The Court advised that the trial could be set for January 2017 if s. 11(b) was an issue. Ms. Martin advised that Mr. Bogle was unavailable in January, but was prepared to set other dates. His earliest availability was February 21st. The Court stated that a JPT was still required as counsel did not show up to the last one. The Crown advised that it was ready to proceed with the JPT and set trial dates. A further JPT was set for November 29th.
November 29, 2016 – January 11, 2017
43 days (1 month, 13 days)
Morin: Institutional (to Jan. 3) (minus 30 days neutral delay pursuant to R. v. Lahiry)
November 29: Further JPT conducted. The trial was scheduled to start on March 20th, 2017. The Court indicated that both the Crown and the Court were ready to proceed with the trial in January 2017, but defence counsel was not available until March 13th, 2017.
January 11, 2017 – February 22, 2017
42 days (1 month, 11 days)
Jordan: Defence delay Morin: Actions of the accused
January 11: Mr. Bogle advised the Court that the Applicant had entered into custody due to a bail surety rescission. The matter was remanded to the trial readiness date of February 22nd, 2017.
February 22, 2017 – February 28, 2017
6 days
Jordan: Defence delay Morin: Actions of the accused
February 22: Mr. Bogle was not able to confirm readiness for trial as he had an issue with Legal Aid. This was the first time an issue with legal aid was raised with the Court. The matter was remanded to February 28th.
February 28, 2017 – March 7, 2017
7 days
Jordan: Defence delay Morin: Actions of the accused
February 28: Mr. Bogle’s issues with Legal Aid were discussed in chambers. The Crown and Court agreed to take action to assist Mr. Bogle. The matter was remanded to March 7th.
March 7, 2017 – March 13, 2017
6 days
Jordan: Defence delay Morin: Actions of the accused
March 7: The Crown advised that Mr. Bogle’s issues with Legal Aid had not been resolved and asked the matter be adjourned to March 13th. The Court made it clear that everyone was working on the issue to ensure Mr. Bogle got paid, but that the trial would go ahead on March 20th in any event.
March 13, 2017 – March 16, 2017
3 days
Morin: Neutral
March 13: Mr. Bogle informed the Court that he had not been paid by Legal Aid and that he needed to make a further application to Legal Aid. He required money from Legal Aid to pay for the transcripts for his s. 11(b) application. Mr. Bogle agreed with the Court that the Crown and the Court were not to blame for the delay that stemmed from his issues with Legal Aid. The Crown indicated that it was ready to proceed to trial. The Court requested the matter return on March 16th with a representative from Legal Aid.
March 16, 2017 – March 17, 2017
1 day
Morin: Neutral
March 16: A meeting was held in chambers with a representative from Legal Aid. The Court was informed that the funding had been approved from Legal Aid. Mr. Bogle made submissions requesting his removal as counsel of record. The application record for removal was provided that morning in court. Ms. Vogel opposed counsel’s application. She specifically told the Court she did not require written materials from Mr. Bogle on the voluntariness voir dire, but requested an email re. voluntariness and Charter issues to be raised. The Court suggested a one week adjournment in order for counsel to properly prepare. Counsel maintained that even with a one week adjournment he was still requesting be removed as counsel of record. The matter was remanded to March 17th to ensure that Mr. Bogle received payment from Legal Aid.
March 17, 2017 – March 27, 2017
10 days
Jordan: Defence delay (starting March 20) Morin: Actions of the accused
March 17: The Court received confirmation that Mr. Bogle was paid. Mr. Bogle’s application to be removed as counsel of record was dismissed. The Court adjourned the trial one week to allow Mr. Bogle to prepare for trial. The Court noted that Mr. Bogle was counsel on the preliminary hearing and had knowledge of the case. The Court also noted that counsel had not raised s. 11(b) issues at any of the JPTs and that the Applicant has not complied with the Chief Justice’s direction on filings.
March 27, 2017 – April 11, 2017
15 days
Morin: Institutional
March 27: No transcript provided. Trial commenced at 11:30 a.m. as Mr. Bogle arrived late. The Applicant provided the Crown with a s.10 Charter application and the Applicant’s s. 11(b) application. A proper application record was not provided for either application. Ms. Vogel indicated that the Crown was ready to proceed despite the last minute notices and failure of counsel to advise the Crown about his position on the Charter and voluntariness by email. The Crown also agreed to a blended voir dire. The voir dire commenced on March 27th and continued with evidence until April 5th. Counsel requested a late start the morning of March 29th in order to allow him to attend Court in Milton. Court did not start until 12 p.m. Mr. Bogle did not provide the Crown with an affidavit of the Applicant required for his s.10 Charter motion until March 30th (just before the Crown’s last witness on the voir dire). Mr. Bogle failed to make efforts to have Cross (a defence witness) brought to court.[10] The Crown needed to call reply evidence in order to answer certain allegations made by the Applicant and Cross. Mr. Bogle requested a half day to prepare his submissions. Ruling on the voir dire was made on April 6th and the matter was adjourned to April 11th for reasons.
April 11, 2017 – November 24, 2017
227 days (7 months, 13 days)
Jordan/Morin: Defence waiver
April 11: Transcript not provided. Reasons for the voir dire rulings provided. Both counsel indicated that the trial would take 3 weeks to complete. However, Mr. Bogle was not available to proceed with the trial past May 8th. The matter was adjourned to June 8th for the Applicant’s s. 11(b) application. The trial was set to commence on October 19th with a special jury panel. It should conclude no later than November 24th, 2017. The Applicant waived the period of delay between April 11th and November 24th due to counsel’s unavailability to continue with the trial as originally scheduled.
[1] Affidavit of Leanna Guzzo, Exhibit “A”
[2] Affidavit of Leanna Guzzo, Exhibit “B”
[3] Affidavit of Leanna Guzzo, Exhibits “C” and “D”
[4] Affidavit of Leanna Guzzo, Exhibit “E”
[5] Affidavit of Leanna Guzzo, Exhibits “F” and “G”
[6] Affidavit of Leanna Guzzo, Exhibit “H”
[7] Affidavit of Leanna Guzzo, Exhibit “I”
[8] The Applicant has indicated in his “Chronology” chart at page 13 of his factum that the Court was delayed in bringing the matter back due to a conference. However, that was only with regard to a further date scheduled for Mr. Cross. The further date obtained for the Applicant (September 20, 2016) was not impacted by the Court’s conference schedule.
[9] Mr. Bogle’s “completed” Form 17 Pre-Trial Conference Report did not include an indication of a Parks challenge, or s. 7, 11(b) or 9 Charter applications. See: Affidavit of Leanna Guzzo, Exhibit “J”
[10] Affidavit of Leanna Guzzo, Exhibit “L”