CITATION: R. v. Dabreo, 2017 ONSC 5425
COURT FILE NO.: CRIMJ(F) 585/14
DATE: 2017 09 13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Robert G. Johnston, for the Crown
- and -
QUESON DABREO
Maurice J. Mattis, for the Applicant
HEARD:
RULING
(Section 11(b) of the Charter)
Seppi J.
[1] The Applicant, Queson Dabreo, was charged with two counts of possession for the purposes of trafficking on June 19, 2013. His trial, which is estimated to be about eight days, is currently scheduled to begin on November 27, 2017. He is alleged to have been in possession of 63.5 grams of cocaine and 72 codeine pills when he was arrested following the execution of a judicially authorized search warrant at premises in Mississauga.
[2] The total time from his arrest to the expected end of trial on December 6, 2017 is approximately 53.5 months. This application is for a stay of proceedings pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms (the “Charter”) on grounds that his rights pursuant to section 11(b) of the Charter to a trial within a reasonable time have been violated.
[3] In R. v. Jordan[^1] the Supreme Court of Canada established a new framework for courts to follow in deciding applications which allege a breach of section 11(b) of the Charter. Central to this framework is a ceiling beyond which delay is presumptively unreasonable. For the Superior Court this presumptive ceiling is 30 months from the charge to the actual or anticipated end of trial. Defence-waived or defence-caused delay is to be discounted and does not count in whether the presumptive ceiling has been reached.[^2]
[4] The Applicant alleges the presumptive ceiling has been exceeded and the total delay is unreasonable. He acknowledges and deducts his explicit 11(b) waiver of about 10.5 months from January 17, 2017 to November 27, 2017, which was on account of a defence adjournment request. He submits the balance of the delay, which is just under 43 months, is presumptively unreasonable and prejudicial to his defence.
[5] The Crown opposes the application. He submits the presumptive ceiling has not been reached in this case. He points to a significant amount of delay being due to the defence requesting more time to consider its position after a ruling on a pre-trial motion. As a result of the position taken by the defence at the time, the trial did not proceed following the ruling of the case management justice on March 21, 2016. The trial was ultimately put over to January 17, 2017 instead of continuing following the pre-trial motion. The Crown submits that but for the defence request the trial would have proceeded and concluded by April 10, 2016. He attributes the total time from April 10, 2016 to November 27, 2017 (19 months and 17 days) to defence delay.
[6] In addition, the Crown points to three additional delays, totalling 127 days (4 months and 7 days) to have been caused by the defence: namely, November 28, 2014 to December 12, 2014 (14 days) on account of the matter having to be adjourned to set a trial date because defence counsel was not present; September 28, 2015 to October 19, 2015 (21 days) to accommodate the defence not being available on September 28, 2015, for a trial date; and, November 16, 2015 to February 16, 2016 (92 days) due to the unavailability of the defence on November 16, 2015, for trial after the October 19, 2015 trial date was adjourned at the request of the Crown.
[7] The Crown thus submits the remaining delay, after deducting the defence-waived and defence-caused delay is less than the 30 month presumptive ceiling. He further submits the defence has failed to show the delay is unreasonable.
Analysis
[8] The new framework for deciding 11(b) Applications is summarized by Gillese J.A. in R. v. Coulter[^3] at paras 34-41 as follows:
A. The New Framework Summarized
[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 form 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).
[9] Following this framework, the total delay to the end of trial in the case at bar has been calculated as 53.5 months. The amount of defence-caused delay beyond the defence-waived delay of almost 10.5 months to be deducted, is at issue to determine the net delay.
[10] In Coulter[^4] Justice Gillese explains defence-caused delay as follows:
[44] Defence caused delay is comprised of situations where the acts of the defence either directly caused the delay or are shown to be a deliberate and calculated tactic employed to delay the trial. Frivolous applications and requests are the most straightforward examples of defence delay (Jordan, para. 63). Where the court and the Crown are ready to proceed but the defence is not, the defence will have directly caused the delay (Jordan, para. 64).
[11] A review of the record, including the transcripts and endorsements of the various proceedings in this case, supports the conclusion that in each of the situations argued to be defence-caused delays by the Crown, both the court and the Crown were ready to proceed but the defence was not.
[12] On November 28, 2014 defence counsel had left and was not present when the matter came up at assignment court to set the trial date. As a result the court had to remand Mr. Dabreo to the December 12, 2014 assignment court. Those 14 days of delay are defence-caused.
[13] At the December 12, 2014 assignment court, September 28, 2015 was offered by the court for the trial date, which was agreeable to the Crown. The date offered was not agreeable to the defence and thus the next available date given was October 19, 2015. That 21 day delay was due to the defence not being available.
[14] On July 7, 2015, the Crown made an application for an adjournment due to the unavailability of a key witness that was scheduled for the October 19, 2015 trial. The new date then given was April 11, 2016. On July 24, 2015 at a subsequent attendance at the request of the defence to seek an earlier date, November 16, 2015 was offered by the court for a trial, which date was also available to the Crown. The defence however was not available for November 16, 2015, and not until February 8, 2016. Thus the court set February 16, 2016 as the trial date.
[15] Despite the fact the adjournment of the October 19, 2015 trial date was at the Crown’s request, the adjournment in that situation would ultimately have been only until November 16, 2015, and not to February 16, 2016, based on the court and Crown availability. Thus, from November 16, 2015, when the court and Crown were both available for the trial and the defence was not, to February 16, 2016, the date scheduled to accommodate defence availability, is a three month defence-caused delay.
[16] On February 16, 2016, the anticipated date for trial, the defence brought a section 8 Charter motion challenging the search warrant and the manner of its execution. This motion continued before the case management justice for a period of several days concluding on February 26, 2016. At the conclusion of the hearing the Crown spoke about the potential jury selection to occur after the ruling was given. This is an indication the Crown was ready to proceed to trial immediately after the ruling if the defence motion did not succeed.
[17] The case management justice rendered his decision on March 21, 2016. Following receipt of the decision defence counsel asked for an indulgence of five minutes for discussion. He returned to court and said, “We don’t want to put it on a trial list again.” The matter then came back to be spoken to before the case management justice on March 30, 2016 and again on April 6, 2016, when it was put over to April 22, 2016 to set a new trial date.
[18] On April 22, 2016 a new trial was set for January 23, 2017, which at the trial readiness court was moved to January 17, 2017.
[19] Had the trial proceeded in the usual course following a decision on the pre-trial motion, instead of being taken off the trial list at the request of defence on March 30, 2016, it would have concluded by about April 10, 2016. Thus this delay from April 10, 2016 to January 17, 2017 was as a result of the defence having the case taken off the trial list after the pre-trial Charter motion ruling.
[20] It was the defence’s request for the matter not to go on the trial list after the Charter motion ruling on March 21, 2016 that caused the delay. Although a request to allow more time for pre-trial discussions after a ruling was not unusual at the time, the delay from April 10, 2016 to January 17, 2017 is a defence-caused delay of 9 months and 7 days under the new framework.
[21] Based on the above, I find the total defence-waived delay is 10 months plus 10 days and the defence-caused delay 13 months and 10 days. This is a total of 23 months and 20 days of defence-waived plus defence-caused delay.
[22] The net delay is 53 months and 7 days minus 23 months and 10 days, which is just under the presumptive ceiling of 30 months.
[23] Where the net or remaining delay falls below the presumptive ceiling the onus is on the defence to show the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps to demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. Absent these two factors, the section 11(b) Application must fail.[^5] As stated by the court, stays beneath the ceiling are expected to be granted “only in clear cases”[^6].
[24] The only situation in the case at bar in which the defence showed an effort to expedite the proceedings was by asking to move up the trial date from April 11, 2016 to an earlier date. This single effort is not a “sustained” effort on the part of the defence to expedite the proceedings in this case.
[25] The defence has also not shown the case took markedly longer than it reasonably should have. Much of the delay was caused as a result of the defence section 8 Charter motion, which the case management justice described as having worked into something more than anticipated. The inference is the complexity of the motion justified the time it took and the resultant delay that followed.
[26] This case was in the system before the Supreme Court decision in Jordan. The Supreme Court has recognized the need to apply this new framework contextually and flexibly for cases already in the system. The court states: “that it is not fair to strictly judge participants in the criminal justice system against standards of which they had no notice”.[^7]
[27] Although the above assessment of time taken to the end of trial results in a finding the net delay has not exceeded the presumptive ceiling, it comes close. If the net delay were assessed to exceed the ceiling, consideration must be given to the fact the parties and the court were subject to the previous state of the law at the time most of the delay occurred.
[28] On February 16, 2016 when the matter was set to proceed to trial, the defence brought its section 8 Charter motion, which the case management justice found to have been more prolonged than originally anticipated. The length of time taken by this motion and the resultant adjournment of the trial date accounts for a significant portion of the total delay. Although proper notice of this Charter motion was not given by the defence, it proceeded on the scheduled trial date without objection by the Crown, as did the subsequent rescheduling of the trial date following the defence request not to put the case on for trial after the decision on the motion. The court and parties at the time were fairly and reasonably balancing the relevant factors under the previous law regarding delay in the conduct of this case.
[29] Taken together, I find these are transitional exceptional circumstances to be considered in the context of the law as it existed at the time. The resultant significant portion of the delay, which resulted in the trial to end on December 6, 2017, rather than April 10, 2016, is justified based on the parties’ reasonable reliance on the law as it previously existed.
Conclusion
[30] Having regard to the defence-waived plus defence-caused delays, I find the net delay as assessed above is below the presumptive ceiling. The defence has not shown the delay has been unreasonable, nor that it took meaningful steps that demonstrate a substantial effort to expedite the proceedings. On that basis the application fails.
[31] Further, as this case was already in the system when the Jordan framework was established, the delays are to be viewed in the context of the parties’ reasonable reliance on the law before the change came into effect. The significant delays that occurred after the section 8 Charter application and the consequent need to reschedule the trial in an exceptionally busy jurisdiction are transitional exceptional circumstances which justify the time it has taken to bring this case to trial.
[32] Having regard to all the circumstances, including the defence-caused delays and the reasonable reliance of the parties on the law as it existed, the delays in this case have not been unreasonable.
Disposition
[33] This application for a stay of proceedings is therefore dismissed.
Seppi J.
Released: September 13, 2017
CITATION: R. v. Dabreo, 2017 ONSC 5425
COURT FILE NO.: CRIMJ(F) 585/14
DATE: 2017 09 13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
QUESON DABREO
RULING
(Section 11(b) of the Charter)
Seppi J.
Released: September 13, 2017
[^1]: R. v. Jordan, 2016 SCC 27 [^2]: Jordan, para. 49 [^3]: R. v. Coulter, 2016 ONCA 704, [2016] O.J. No. 5005 (C.A.) [^4]: R. v. Coulter, para. 44 [^5]: Jordan, para. 82 [^6]: Jordan, para. 83 [^7]: Jordan, at para. 94.