R. v. Corner, 2017 ONSC 5629

Citation: R. v. Corner, 2017 ONSC 5629 Oshawa Court File No.: CR-15-13823 Date: 20170922

Ontario Superior Court of Justice

Between:

Her Majesty the Queen

– and –

Keenan Corner Defendant/Applicant

Counsel: K. Saliwonchyk and L. Crawford, for the Crown S. DiGiuseppe and K. Heath, for the Defendant/Applicant

Heard: July 17 and 18, 2017

PUBLICATION BAN

The Supreme Court of Canada has issued an Order which seals the court file in relation to an appeal by Crime Stoppers and banning publication of any information that is related to the appeal or which might identify the source of the anonymous communication received by Crime Stoppers and which is subject of the appeal before the Supreme Court of Canada. This Order of the Supreme Court of Canada is subject to modification or being vacated by the Supreme Court of Canada.

Pursuant to the Order of Justice M. McKelvey, issued December 1, 2015 under section 648 of the Criminal Code, no information relating to the pre-trial applications shall be published in any document or broadcast or transmitted in any way before the jury retires and considers its verdict.

Reasons for Decision

McKelvey J.:

Introduction

[1] Keenan Corner is charged with second degree murder arising out of the death of Shabir Niazi on February 19, 2014. He has brought this application seeking a stay of the charge against him on the basis that his s. 11(b) Charter right to be tried within a reasonable time has been breached. He seeks a stay of the charge against him.

[2] Although initially Mr. Corner denied being responsible for the shooting, he has now admitted that he shot Mr. Niazi and his defence is based on self defence and/or provocation. Mr. Corner admits to having lied to both the police and others about his involvement in the death of Mr. Niazi following the shooting.

[3] The trial in this action was initially scheduled to commence on February 8, 2016. As a result of pre-trial motions taking longer than anticipated, the trial was subsequently rescheduled to start on May 2, 2016. At the request of the defence, there was a further adjournment to April 3, 2017. The trial did not proceed on April 3, 2017 as the Supreme Court of Canada was considering an appeal by Crime Stoppers arising out of a decision to admit evidence of a call allegedly made by the accused to Crime Stoppers. Crime Stoppers sought and obtained leave from the Supreme Court of Canada to appeal this interlocutory decision. The hearing by the Supreme Court of Canada took place on January 20, 2017. Although it was hoped that the Supreme Court of Canada would release its decision prior to April 3, 2017, this did not occur and the trial was subsequently adjourned to September 25, 2017. A significant issue on the defence application for an 11(b) stay relates to the delay by the Supreme Court in issuing its decision on the Crime Stoppers appeal. Specifically, the accused argues that the delay between April 3 to September 25, 2017 should be included in calculating the delay for purposes of the presumptive ceiling which the Supreme Court established in its earlier decision in R. v. Jordan, 2016 SCC 27. The accused takes the position that the delay is now beyond the limit set out by the Supreme Court in Jordan. On September 8, 2017 I advised the parties orally of my decision so they would know whether the trial was proceeding or not. I also advised the parties that my reasons for dismissing the application would follow. These are those reasons.

Chronology

[4] The chronology of events leading up to this s. 11(b) application is important. The following is a summary of the dates on which significant events occurred:

• February 19, 2014 – Shabir Niazi is shot to death in the garage of Keenan Corner’s family home. Initially, Mr. Corner denied any involvement in the shooting. On March 23, 2016, however the defence provided the Crown with a series of significant concessions in this matter which included an admission that Mr. Corner shot Mr. Niazi and that he lied to police, family members, friends and others as to what happened during the shooting.

• March 2, 2014 – The information in relation to this prosecution was sworn.

• June 6, 2014 – Dates for a preliminary inquiry were set in Provincial Court. Initially the preliminary inquiry dates were scheduled to take place on September 2, 3, 4 and 5, 2014. However, at the request of counsel the preliminary inquiry dates were rescheduled to take place between January 5 to February 13, 2015.

• March 31, 2015 – By this point the matter had been transferred to the Superior Court of Justice. A pre-trial conference form was completed by Crown and defence. The pre-trial conference form includes reference to the Crown’s intention to rely on Mr. Corner’s alleged call to the police after the shooting. It does not specifically refer to the call as a “Crime Stoppers call”. The pre-trial conference form of the Crown estimated that pre-trial motions would take six to eight days. The defence estimated that the pre-trial motions would take eight to ten days.

• May 14, 2015 – At a judicial pre-trial, Justice Fuerst made an order that the pre-trial motions were to be heard commencing November 30, 2015. Three weeks were allocated for hearing of the pre-trial motions. The actual trial was scheduled to commence on February 8, 2016.

• July 29 to August 25, 2015 – A series of emails were exchanged between the Crown and counsel for Crime Stoppers where counsel discuss the Crown’s application with respect to the alleged call made by the accused to Crime Stoppers.

• September 8, 2015 – A judicial pre-trial was held on this day. An order was signed by Justice Fuerst which released the Crime Stoppers tip sheet and related items to the accused.

• October 5, 2015 – The parties attended before Justice Fuerst. At this time the Crime Stoppers tip records were filed as an exhibit.

• November 30, 2015 to December 18, 2015 – Three weeks of pre-trial motions were heard, but the pre-trial motions were not completed and it was apparent that a lengthy additional period of time would be required to complete the pre-trial motions.

• December 18, 2015 – The pre-trial motions were adjourned to continue on February 8, 2016 which was the original date scheduled for commencement of the trial. At some point later, the commencement of trial was re-scheduled to May 2, 2016.

• February 8, 2016 to April 15, 2016 – The pre-trial motions were continued during this period of time.

• April 15, 2016 – The defendant brought a motion to the court to adjourn the commencement of trial from May 2, 2016. The basis for this request was that a potential expert, Dr. Gojer who might testify for the defence was not available. The defence was advised that if the defence request were granted, there would be a lengthy adjournment. The following is the endorsement which I made on April 15, 2016 with respect to the defence application for an adjournment,

The defendant has brought an application today for the adjournment of the trial which is scheduled to start on May 2 due to the unavailability of their expert witness Dr. Gojer. The defence understands that the adjournment of the trial would be quite lengthy and the new trial date will likely be scheduled for some time in 2017 according to the information currently available. The defendant has waived his 11(b) rights for all of the delay resulting from this adjournment request. For oral reasons given today, the defendant’s request for an adjournment is granted. Counsel is directed to make an appointment with Justice Fuerst as soon as conveniently possible in order to schedule a new trial date.

• April 21, 2016 – Written reasons were delivered by the court in relation to the alleged telephone call by Mr. Corner to Crime Stoppers. In this decision, I concluded that the evidence of the Crime Stoppers call was admissible evidence at trial subject to a consideration of the probative and prejudicial value of the evidence.

• May 26, 2016 – A judicial pre-trial was held before Justice Fuerst. Mr. Corner was not present due to illness. Justice Fuerst considered new trial dates. Counsel for the defence made the following comment,

And I won’t be making submissions in this regard in the absence of Mr. Corner but as the Court and my friend is aware, Mr. Corner’s request is for trial dates commencing in September due to a counsel of choice issue.

Justice Fuerst endorses that the target trial dates were being put in place as follows:

• The weeks of January 9 and 16, 2017 for two weeks of motions; and

• April 3, 2017 for seven weeks of trial.

The judicial pre-trial was adjourned to June 28, 2016 to confirm the trial dates.

• July 8, 2016 – The Supreme Court of Canada released its decision in R. v. Jordan.

• August 2, 2016 – At this time, the trial dates were finalized. During that attendance the agent appearing for the accused once again requested that the trial be adjourned to September, 2017 when Ms. DiGiuseppe, who had been Mr. Corner’s counsel from the outset of this matter, was expected to be back from her maternity leave and in a position to act as counsel at trial.

In support of the defence request on August 2nd, a letter was read into the record from Mr. Corner in which he states that he, “would like to utilize my right to a lawyer of my choice; my choice being Ms. DiGiuseppe who has been working on this matter from the beginning”.

Mr. Corner refers to the fact that he has been in custody and states in his letter, “I feel that having my counsel of choice overpowers any desire I have to rush this matter and get it done, to leave custody at Central East Correctional Centre”.

In her submissions to the court, counsel for the accused stated:

And obviously I appreciate Your Honour giving me that opportunity and as Your Honour knows, not only is there the issue of counsel of choice with respect to the reason for the defence request for the trial to be set for September, 2017; there is also the issue of the Crime Stoppers leave to appeal to the Supreme Court and that matter obviously needing to be decided upon ultimately by the Supreme Court before this trial can continue. And so there is some concern that if a ruling from the court is not received, this trial would need to be adjourned anyways in light of the impact it would have on the admissibility of some of the Crown’s evidence. So those are the two ultimate reasons for the defence requesting that it be September, 2017. [Emphasis added]

Having heard those submissions, Justice Fuerst concluded that the trial still needed to proceed in the Spring of 2017 on the dates that were discussed in chambers. As a result, Justice Fuerst ordered that the trial proceed as earlier indicated with further pre-trial motions to start January 9, 2017 for two weeks of motions and the trial itself to commence on April 3, 2017 for eight weeks.

• October 20, 2016 – The Supreme Court of Canada granted leave to Crime Stoppers to appeal this Court’s interlocutory decision re: Crime Stoppers.

• November 7, 2016 – A judicial pre-trial was held before Justice Fuerst. It was noted that the Supreme Court of Canada had granted leave to appeal the Crime Stoppers ruling. It was also noted that the Supreme Court of Canada would hear the appeal on January 20, 2017. The trial date of April 3, 2017 remained in place.

• November 7, 2016 – Following the judicial pre-trial on November 7, Justice Fuerst wrote a pre-trial memo to me as the trial judge with a copy to counsel in which she summarized the following matters which were addressed at the pre-trial. This memo included a reference with respect to the trial date. Paragraph 7 of the memo reads as follows,

7. The April 3, 2017, trial date remains in place. Counsel raised the prospect that the Supreme Court of Canada may not release its decision on the Crime Stoppers appeal by that date, although the court will be made aware of the pending trial date. It was agreed that if the Supreme Court of Canada’s decision is not released by March 20, 2017, counsel will jointly ask that the trial be adjourned to start on September 25, 2017. An eight week period commencing on that date has been tentatively blocked on everyone’s schedule in case of delay at the Supreme Court of Canada.

• January 10 to 18, 2017 – Further pre-trial motions were argued and completed.

• January 20, 2017 – The Supreme Court of Canada heard the Crime Stoppers appeal.

• March 22, 2017 – As the Supreme Court of Canada decision had not been received by March 20, the parties appeared again in court before Justice Salmers. Crown counsel addressed the court as follows,

So as a result of that, we had to reach an agreement back in November as to what would occur at that point in time and that is that we had a new block of dates set for September; September 25 for eight weeks instead of the April 3 start date, so that we can get that ruling from the Supreme Court of Canada.

So that’s the purpose of today’s date. It’s my understanding it’s a joint request from both parties at this point because we are both waiting for this ruling.

Following Crown counsel’s submissions, the agent for the defendant advised that she had some comments for the record as follows,

I do want to say that Mr. Corner is anxious to proceed with his trial and that it is the decision of the Supreme Court that we are waiting for, which has caused this delay.

The September dates that my friend has just mentioned were canvassed at the November 7, 2016, judicial pre-trial in front of Regional Senior Justice Fuerst. My understanding that those dates were chosen was because of the availability of the judge as well as I think some of the availability of the Crown. I just wanted to say on the record that defence counsel did have dates available prior to September and that in terms of the dates being set at that time, it was not at the feet of Mr. Corner.

Later in the discussion before Justice Salmers, the following exchange takes place,

THE COURT: All right. So I take it from Ms. Heath’s comments that 11(b) is still in issue here.

MS. HEATH: We won’t be waiving 11(b) at this time.

THE COURT: Didn’t think so. All right. So I have noted here for the Crown, Ms. Crawford; for the defence, Ms. Heath. The accused is present in custody.

Parties are awaiting an evidentiary ruling from the Supreme Court of Canada. Parties jointly request, and it is an order, that the existing trial dates are vacated and the trial shall now commence September 25, 2017, at 9:30 for eight weeks, jury.

The applicable legal principles

[5] The majority decision in Jordan set out a new framework for consideration of s. 11(b) applications. The new framework created a ceiling beyond which delay is presumptively unreasonable. Delay is calculated by first calculating the total delay from the time of the charge to the actual or anticipated end of trial. The next step is to calculate the total defence delay which must be deducted from the total delay which results in the “net delay”. The net delay is then compared to the presumptive ceiling. Further, the period of delay caused by any discrete exceptional events must also be subtracted from the total period of delay. 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. If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.

[6] In calculating the length of the delay, the time will commence when the information is sworn. This assumption is based on the Supreme Court of Canada’s decision in R. v. Kalanj, 1989 CanLII 63 (SCC), [1989] 1 S.C.R. 1594, at p. 1607. This conclusion is further supported by the Ontario Court of Appeal decision in R. v. Coulter, 2016 ONCA 704. In Coulter, which was decided after Jordan, the Court considered a s. 11(b) appeal and calculated the total delay running in that case from November 18, 2011, “when the information containing the first five counts was sworn” (at para. 62).

[7] In R. v. Manasseri, 2016 ONCA 703, the Ontario Court of Appeal considered the Jordan framework. In their decision the court noted the defence waiver of delay can be explicit or implicit, but it must be clear and unequivocal. Delay caused solely by the conduct of the defence takes into account a variety of conduct that either directly causes the delay or reveals a deliberate and calculated tactic to delay the trial. The Court notes that where the Court and Crown are ready to proceed, but the defence is not, the defence will have directly caused the delay. This is not the case, however, where the Court and Crown are unavailable even if the defence is not.

[8] The Court in Manasseri also reiterates that where the net delay exceeds the presumptive ceiling, the onus of rebuttal rests with the Crown. To rebut the presumption, Crown counsel must show that the delay is reasonable because of the presence of exceptional circumstances. If the Crown cannot rebut the presumption a stay will follow. Exceptional circumstances are circumstances that lie outside the Crown’s control. These are circumstances that are reasonably unforeseen or reasonably unforeseeable and the Crown cannot reasonably remedy the delays emanating from those circumstances once they arise. The circumstances need not be rare or entirely uncommon. What is required of the Crown is a demonstration that it took reasonable steps to avoid or address the problem before the delay exceeded the ceiling. Generally exceptional circumstances fall under two categories: discrete events and particularly complex cases.

[9] The Court of Appeal describes discrete events in the Manasseri decision at para. 310 as follows:

Discrete events that delay completion of trial proceedings may arise outside the trial context or within it. Any period of delay caused by any discrete events must be subtracted from the net delay to determine whether the delay falls above or below the presumptive ceiling. But the Crown and the justice system must always be prepared to mitigate the delay resulting from discrete exceptional circumstances. Reasonable efforts to prioritize faultering or stumbling proceedings must be undertaken. Thus, any part of the delay that the Crown and system could reasonably have mitigated may not be subtracted: Jordan, at para. 75. See also, Vassell, at para. 10.

[10] At para. 314 of the Manaserri decision, the Court of Appeal says as follows in connection with the issue of complexity:

Second, a trial judge should also consider whether the architect of what could reasonably be expected to be a complex prosecution – the Crown – has developed and followed a concrete plan to minimize the delay caused by the complexity that is of the Crown’s doing: R. v. Auclair, 2014 SCC 6, [2014] 1 S.C.R. 83, at para. 2; Jordan, at para. 79. The Crown must be cognizant of the fact that any delay resulting from an exercise of their prosecutorial discretion, for example to conduct a joint trial, must respect and conform to an accused’s right to a trial within a reasonable time: Jordan, at para. 79.

The Jordan decision establishes that the seriousness or gravity of an offence on its own, cannot be invoked as an exceptional circumstance.

Issues agreed upon and to be addressed

[11] The information was sworn on March 2, 2014. The trial is scheduled to commence on September 25, 2017 and is scheduled to last eight weeks. Both parties agree that the total delay until the anticipated end of trial is 44 months, 15 days.

[12] Further, both parties agree that the delay caused by the defence adjournment application heard on April 15, 2016 should be deducted from the total delay. While the parties each have a different method of calculating this delay they both agree that a period of 11 months and 1 day ought to be deducted from the total delay to account for the period of defence waiver as a result of the adjournment of the trial at the request of the defence on April 15, 2016. This reduces the net delay to 33 months and 2 weeks which is still above the presumptive ceiling of 30 months.

[13] The defence has advised that it will not be advancing an 11(b) argument if the delay is found to be less than 30 months.

[14] The issues which have been raised by the Crown and which remain to be addressed are as follows:

1. Should the delay in scheduling the preliminary inquiry dates between September of 2014 and January of 2015 be attributed to defence delay to further reduce the net delay?

2. Does the adjournment of the trial between February 8, 2016 and May 2, 2016 constitute exceptional circumstances under the Jordan criteria?

3. Does the delay in the commencement of trial between April 3, 2017 and September 25, 2017 constitute exceptional circumstances under the Jordan criteria?

Should the delay in scheduling the preliminary inquiry from September, 2014 to January, 2015 be subtracted as defence delay?

[15] The Ontario Court of Justice record documents that the initial dates for the preliminary inquiry were scheduled to start on September 2, 2014. The dates were subsequently adjourned to January, 2015. The Crown takes the position that the preliminary inquiry dates were adjourned because the defence was not ready to proceed and therefore should be deducted from the total delay in accordance with the Jordan decision. The defence argues, however that it is not clear that the Crown was ready to proceed to a preliminary inquiry in September, 2014. The defence therefore argues that this delay should not be deducted for purposes of this application.

[16] The court form which makes reference to the September dates has spaces to indicate the position of both Crown and defence with respect to the proposed date. Unfortunately this portion of the record has not been completed.

[17] The attendance in order to schedule the preliminary inquiry dates took place before Mr. Justice Block on June 6, 2014. According to the transcript from this attendance, Crown counsel in referring to the September dates made the following comments:

We had discussed that (the September dates) so it was confusing for a period of time for us as well and the trial coordinator as well. We had discussed doing that. However given certain disclosure issues in terms of the pathology report, primarily the other things as well, we thought it might be better to go for the January dates and it was going to have to be split up a little bit anyway in terms of that – between the discovery and the regular court.

So we settled on the dates in January and that also guaranteed Ms. DiGiuseppe’s availability as well.

[18] The Crown argues that the disclosure of the pathology report would not have been a significant issue for purposes of a preliminary inquiry given that the cause of death was readily apparent. The Crown submits that it was the availability of defence counsel which led to the preliminary inquiry being scheduled for January, 2015 instead of September, 2014. The Jordan decision makes it clear that in order to deduct a period of delay on the basis that the delay has been caused by the defence, the delay itself must be caused “solely” by the conduct of the defence. Periods of time during which the court and the Crown are unavailable will not constitute defence delay even if defence counsel is also unavailable.

[19] While the submissions made before Justice Block suggest that the adjournment was related to the availability of defence counsel, I am not satisfied that the evidence supports a conclusion that the delay was caused solely by defence counsel availability. The reference to disclosure issues and “other things as well” suggest that there were other issues leading to the decision to reschedule the preliminary inquiry. For this reason, I am not prepared to deduct the delay in scheduling the preliminary inquiry as defence delay.

[20] In the alternative, the Crown argued that the delay in scheduling the preliminary inquiry could qualify as a transitional exceptional circumstance under the Jordan analysis. In Jordan, the court recognized that cases which had been commenced prior to Jordan could not be judged by standards of which the parties had no notice. The new Jordan framework, including the presumptive ceiling was held to apply to cases currently in the system subject to two qualifications. In cases where the delay exceeds the ceiling, transitional exceptional circumstance may arise where the charges were brought prior to the release of the decision. The court held that this transitional exceptional circumstance would apply when the Crown satisfies the court that the time the case has taken is justified based on the parties reasonable reliance on the law as it previously existed. There is, however, no evidence before me that the adjournment of the preliminary inquiry was based on reliance under the Askov/Morin criteria. Instead, it appears there was an issue of defence counsel availability combined with other factors which meant that the parties were simply not prepared at that point to proceed to a preliminary inquiry in September. In the circumstances, I conclude that the transitional exceptional circumstances exception as outlined in the Jordan decision does not apply.

[21] It flows from this analysis that there should be no deduction based on the delay from September, 2014 to January, 2015 in conducting the preliminary inquiry.

Does the delay in adjourning the trial between February 8, 2016 to April 3, 2016 constitute exceptional circumstances?

[22] The pre-trial motions were initially scheduled to take place for a three week period between November 30 to December 18, 2015. The motions could not be completed during that time and resumed on February 8, 2016 which was the date originally scheduled for the commencement of trial. They continued until April 15, 2016 when the defence brought its motion for an adjournment. A further two weeks for pre-trial motions were scheduled by Justice Fuerst on November 7, 2016 to take place starting on January 20, 2017.

[23] The Crown argues that the adjournment of the trial between February 8, 2016 to May 2, 2016 should be treated as a discrete exceptional event and deducted from the net delay. As noted above the onus is on the Crown to establish exceptional circumstances. The Crown asserts that this delay falls under the heading of a discrete exceptional event. These events were described in Jordan at para. 73 as follows:

Discrete, exceptional events that arise at trial may also qualify and require some elaboration. Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. For example, a complainant might unexpectedly recant while testifying, requiring the Crown to change its case. In addition, if the trial goes longer than reasonably expected — even where the parties have made a good faith effort to establish realistic time estimates — then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance.

[24] Pre-trial motions are considered to be part of the trial process. See s. 645 of the Criminal Code and R. v. Schertzer, 2009 ONCA 742 at para. 114. The defence argues that the delay caused by the pre-trial motions was entirely foreseeable. It refers to the fact that at para. 69 of Jordan the court states that exceptional circumstances lie outside the Crown’s control in the sense that they are reasonably unavoidable and the Crown is not in a position to reasonably remedy the delays once they arise. The defence argues that the Crown has failed to discharge its onus to establish that the length of the pre-trial motions was reasonably unforeseeable and could not have been remedied at an earlier time. The defence further argues that at least some of the delay was caused as a result of the Crown taking unreasonable positions on the pre-trial motions. The defence argues that in connection with the statement of the accused to the police after the shooting, the Crown should have conceded that the accused had been detained after he was told not to leave the examination room where he was being questioned by police. The defence also argues that the Crown should have been aware that the admissibility of the Crime Stoppers tip would significantly lengthen the pre-trial motion process.

[25] I have concluded that the adjournment of the trial between February 8 to May 2, 2015 does constitute a discrete exceptional event which should properly be deducted from the delay in this case for the following reasons:

1. The preliminary inquiry was completed in February, 2015. The Superior Court of Justice pre-trial conference form was prepared by the parties at the end of March, 2015 and the judicial pre-trial before Justice Fuerst setting the schedule for pre-trial motions and a trial date was heard on May 14, 2015. All of these events occurred in a timely manner and I think it is unlikely the schedule for the hearing of pre-trial motions and setting a trial date could have been heard earlier.

2. At the time of the judicial pre-trial on May 14, 2015, counsel’s estimate for the length of the pre-trial motions ranged from six to ten days. This was expanded by Justice Fuerst to a total of three weeks. She scheduled pre-trial motions to be heard starting November 30, 2015 and the trial to start February 8, 2016. It turns out that the estimate for hearing of pre-trial motions seriously underestimated the time which was actually required. There were in my view, numerous factors which contributed to this result. These factors included a work disruption at the Central East Correctional Centre which led to delays in Mr. Corner’s attendance at trial. There was also some time off which was required due to illness or other acceptable absences by counsel. Some time was also required by the court to consider and deliver its reasons on the pre-trial motions. The argument on the motions was considerably lengthier than anticipated. For example, the admissibility of Mr. Corner’s statement took up a considerable period of time. In large part this was because Mr. Corner’s statements to police took place over a lengthy period of time, under varying circumstances. Mr. Corner’s statements had to be divided accordingly as different considerations applied to the different time periods involved. I do not accept that the position taken by the Crown on the admissibility of the statement significantly increased the length of the pre-trial motions. These motions were all hard fought by both Crown and defence which in turn resulted in lengthy argument which no doubt exceeded the original estimate.

3. The defence also argued that the involvement of Crime Stoppers was not contemplated at the time the pre-trial motion schedule was set up and was a major factor in the delay in completing the pre-trial motions on time. They point to the reference in the pre-trial memo that the alleged call by the accused was to the police. A call to the police would not necessarily involve a claim for informer privilege which was the major issue for Crime Stoppers on that pre-trial application. The description of a call to the police in the Crown pre-trial form was not necessarily inaccurate as the call in question was received by a police officer who was designated as the Crime Stoppers Co-ordinator in Durham. Nevertheless it would have been preferable if the Crown had identified the involvement of Crime Stoppers in the pre-trial report. Having said that, the details of the call were clear and the issue of informer privilege would have been apparent by the time of the judicial pre-trial held on September 8, 2015; at that point Justice Fuerst released the Crime Stoppers tip sheet and related items to the accused and there was no suggestion that any additional time would be required for the pre-trial motions. Further, my notes indicate that the argument on the Crime Stoppers application did not commence until March 29, 2016 (apart from a brief overview of the issues on March 24, 2016). It is clear that by this point the duration of the pre-trial motions had gone well beyond anyone’s expectations and the scheduled trial date of February 8, 2016. I conclude in the circumstances that it was in fact the earlier pre-trial motions which necessitated the adjournment of the original trial date. Further, it was the accused’s request for an adjournment which led to the need to adjourn the next trial date of May 2, 2016 which had been scheduled.

4. I am satisfied that the parties used their best efforts to come up with a reasonable estimate for the pre-trial motions. While the estimate turned out to be inaccurate, it does not reflect a lack of diligence on either the Crown or defence counsel. This conclusion is supported by the fact that Justice Fuerst, who is a very experienced and well regarded trial judge made an estimate of three weeks for the hearing of pre-trial motions. While she obviously was aware of the possibility that the estimate of counsel might be on the low side, her estimate was that the pre-trial motions could be completed in three weeks.

5. Even assuming that the parties might have anticipated the pre-trial motions would take longer than anticipated, I am not satisfied that the pre-trial motions could have been heard any earlier. There was a large volume of material which was prepared by both the Crown and defence with respect to all of the pre-trial motions. The amount of preparation time required for the pre-trial motions was extensive. This is reflected in the fact that at the judicial pre-trial held on October 5, 2015, Justice Fuerst notes that the defence counsel’s facta were filed late and exceeded the page limit in the court’s rules. I realize, of course, that counsel work to deadlines. However, those factors reflect in my view, the amount of extensive research and preparation required. Certainly by October 5 as the complexity of the pre-trial motions started to become apparent it is unlikely the pre-trial motions could have been heard earlier especially since the deadline for delivery for Crown counsel facta was extended to November 16, 2015 due to the late delivery of material by the defence.

[26] In light of the circumstances described above I have concluded that the length and complexity of the pre-trial motions could not have been reasonably identified when the original dates for the motions were scheduled. While it seems likely that the complexity and length of the motions would have become apparent shortly before the motions were heard and as the facta were being prepared, this occurred at a point when the delay could not have been attenuated. These circumstances resulted in the need to use the period following February 8, 2016 for purposes of continuing the pre-trial motions and in turn led to the need to adjourn the commencement of trial from February 8, 2016 to May 2, 2016. I conclude that this delay of 2 months and 24 days should be considered as a discrete exceptional event in accordance with the Jordan criteria.

[27] The effect of this deduction is to reduce the net delay from 33 months and 15 days to 30 months and 21 days which is close to, but still above the presumptive ceiling of 30 months. It must be recognized, however that the presumptive ceiling of 30 months set by the Supreme Court of Canada appears to be a bright line test. The Supreme Court has made it clear that neither the seriousness of the charge nor the issue of prejudice will convert an unreasonable delay into a reasonable one. The court points out in its decision that the presumptive ceiling is not an aspirational target. Instead it is the point at which delay becomes presumptively unreasonable. I accept, therefore, that the Jordan ruling stands for the proposition that despite the serious nature of the offence and even assuming there is no prejudice to the accused, a delay of 30 months and 21 days would still have to result in a stay of the charges against the accused.

Does the delay in the commencement of trial between April 3, 2017 to September 25, 2017 constitute exceptional circumstances in accordance with the Jordan framework?

[28] The adjournment of the commencement of trial from April 3 to September 25, 2017 is a direct result of the Supreme Court of Canada not delivering its ruling on the Crime Stoppers issue by the end of March. The oral hearing on the Crime Stoppers appeal before the Supreme Court had previously taken place on an expedited basis on January 20, 2017. The Crown argues that this delay falls under the category of exceptional circumstances, either as a discrete event or because it is a novel legal issue. In the alternative, the Crown argues that the delay would qualify as a transitional exceptional circumstance. The defence position is that the delay caused by the adjournment cannot be considered to be outside the Crown’s control in the sense that it was reasonably unforeseen or reasonably unavoidable. The defence argues that given the state of the law on informer privilege, especially as it applies to Crime Stoppers calls, it should have been reasonably foreseeable to the Crown as early as May, 2014 that the Crime Stoppers issue had the potential to become complex and cause delay. As such, the defence argues that the Crown ought to have acted with the utmost caution in disclosing and pursuing admission of the Crime Stoppers tip by serving Crime Stoppers with timely notice of all motion materials related to the disclosure and admission of the tip. The defence also argues that if the Crown had followed the proper procedure for disclosure of the tip and sought a judicial order prior to initial disclosure to defence counsel in May, 2014, the matter and all appeals could have been dealt with far in advance of the accused’s trial.

[29] The defence further argues that the Crown had more than sufficient evidence about the applicant lying to authorities and others regarding what occurred during the shooting. It notes that in addition, the accused has formally admitted his lies to various parties in these proceedings. In that context, the defence argues that the Crown ought to have mitigated the delay occasioned by the interlocutory appeal to the Supreme Court by proceeding without the Crime Stoppers tip evidence.

[30] With respect to the transitional exceptional circumstances exception, the Crown made reference to the circumstances of the defence request for a new trial date following the adjournment on April 15, 2016. The Crown referred to the fact that on both May 26, 2016 and November 7, 2016 the accused requested that the trial be scheduled for September of 2017 in order to ensure the availability of his trial counsel and also to ensure that the Supreme Court of Canada process with respect to the Crime Stoppers appeal had been completed. The Crown argued that in these circumstances it would be perverse to grant the defence application for a stay as the accused ultimately was successful in obtaining what he had previously asked for; that is a trial date in September, 2017. The Crown argued that the court ought not to accept the accused’s retraction of his request for a September trial date or should give this retraction little weight. The Crown pointed to the fact that there was no substantial prejudice to Mr. Corner by adjourning the trial to September, 2017. The Crown further argued that the transitional exception should apply because the events surrounding the adjournment of the trial straddle pre and post-Jordan timeframes. The initial application for an adjournment on April 15, 2016 occurred pre-Jordan as did the initial judicial pre-trial on May 26, 2016 when the tentative trial date of April 3, 2017 was referenced.

[31] It is indeed surprising to see such a dramatic change in the position taken by the accused in objecting to the September, 2017 trial date, which he had previously sought, when the only apparent change in circumstances was the release of the Jordan decision in July, 2016. Having said that, I am not aware of any authority which would prevent the accused from changing his position for a strategic reason or otherwise. As noted earlier, defence waiver of delay can be explicit or implicit, but it must be clear and unequivocal. It is clear on the record that Mr. Corner terminated his waiver of any delay on March 22, 2017. While it might be arguable that Mr. Corner has to take responsibility for any continuing delay which flowed from the termination of his waiver and which could not reasonably have been avoided, this period of delay would be minimal in the present case given that the trial could have proceeded on April 3, 2017 had the Crown agreed to waive the Crime Stoppers issue for purposes of trial.

[32] In my view, therefore, the issue turns on whether the Crown is able to establish exceptional circumstances exist either based on a discrete event or the complexity of the case. The first issue to be addressed in this regard is whether the Crown took reasonable steps to avoid and address the problem before the delay exceeded the ceiling.

[33] I accept that there were some steps the Crown could have taken to deal with the Crime Stoppers application more efficiently. While the Crown consulted with Crime Stoppers prior to the hearing of the motion, it released information to defence about the Crime Stoppers tip without consulting Crime Stoppers. This subsequently had to be remedied by obtaining a written undertaking from the defence and obtaining an order for disclosure from Justice Fuerst on September 8, 2015.

[34] The Crown also failed to deliver a copy of their application to Crime Stoppers in advance of the hearing of the motion which formally commenced on March 29, 2016. The defence also relied on the fact that when the Crown served and filed its notice of application on October 30, 2015, it did not address the issue of informer privilege. The defence position is therefore that the Crown should have anticipated that its Crime Stoppers motion had the potential to delay the proceedings and that the Crown should have taken more steps recognizing that its application had the potential to affect a third party. The defence argues that had the Crown brought the motion at an earlier time, it is possible that the Supreme Court would have been able to deliver its decision without the necessity of a further adjournment to September 25, 2017.

[35] There is some evidence which supports the defence position. At the hearing, Crime Stoppers’ counsel stated that it was their position that the Crown should never have disclosed the Crime Stoppers tip to the defence. Further, it was at the court’s initiative early on during the Crime Stoppers hearing that a request was made to have input from Crime Stoppers, especially on the procedural issues as to how the hearing should proceed. This led to the subsequent involvement of Crime Stoppers’ counsel. In an agreed statement of facts submitted for purposes of the present application, it indicates at para. 10 that as counsel for Crime Stoppers, Ms. Booth’s consistent practice is to oppose motions for disclosure of Crime Stoppers tips. It goes on to state that had Ms. Booth been made aware of the intention to disclose the contents of the tip to defence counsel in advance of the disclosure, she would have opposed any application to disclose the tip. She further stated at para. 12 that Crime Stoppers was not served with any motion material in relation to this application until after it was being heard.

[36] While I accept that the conduct of the Crown was not optimal, I have concluded that this was not responsible for the subsequent adjournment of the case from April 3 to September 25, 2017. The Crown has filed a series of emails from the Crown and Ms. Booth, counsel for Crime Stoppers. The initial email is dated July 29, 2015 when the Crown was seeking to set up a time where they could discuss the case with Ms. Booth. This contact therefore occurred approximately eight months before the commencement of the pre-trial application in question. It is apparent that the issue of disclosure of the tip to the defence was discussed because on August 5, 2015, Ms. Booth provided to Crown counsel a copy of a draft order which would permit the production of a Crime Stoppers tip with conditions. This order was subsequently signed by Justice Fuerst. I conclude that the Crown disclosure of the Crime Stoppers documentation to the accused was not a significant issue in the context of this case.

[37] Before the end of August, there was apparently some discussion between the Crown and Crime Stoppers about whether informer privilege would apply. Ms. Booth was advised by Crown counsel in an email dated August 25, 2015 as follows:

Publication bans, media bans, and exclusion of the public are tricky topics to say the least, and given the type of privilege (or lack thereof) attaching to this unusual set of circumstances, it’s the Crown’s position that this particular point is a matter that should be determined by the trial judge if it is necessary. In any event, the subject of this information won’t be discussed in open court until the pre-trial motion is heard regarding the accused’s post-offence conduct. If Crime Stoppers feels that such a ban is still a necessary part of an order to make regarding any reference to the tip in court, that issue can be addressed in front of the trial judge during the pre-trial motions (those pre-trial motions are set for November 30 and on for three weeks).

[38] The email exchanges between Crime Stoppers’ counsel and the Crown which were filed on this motion support a conclusion that there was a respectful relationship between Crime Stoppers and the Crown prior to the hearing. The fact that Crime Stoppers assisted the Crown by providing a draft order which was used by the Crown to authorize the previous disclosure made to the defence suggests a level of co-operation between the Crown and Crime Stoppers’ counsel. The email of August 25th alerted Crime Stoppers’ counsel to the fact that the pre-trial motions were set to start on November 30 for three weeks. There is no evidence before me of a major confrontation developing between the Crown and Crime Stoppers before the commencement of the hearing. It is also significant that Crime Stoppers was aware of the pre-trial application regarding the Crime Stoppers tip by August of 2015 and was advised of the scheduled dates for pre-trial motions. Crime Stoppers made an informed decision initially not to participate in the pre-trial motion relating to its tip. This was reported by defence counsel to the court on March 29, 2016 when she stated at p. 43 of the transcript,

MS CRAWFORD: She indicated to me that the reason why because I had been in contact with her and I had advised her of the way that we were proceeding in terms of the disclosure of the matter, that it was not her intention on behalf of Crime Stoppers to come and intervene on this case because she felt that the defence counsel could handle the same arguments that she would be making in terms of privilege applying in general to Crime Stoppers calls.

[39] On the evidence before me, the first occasion when Crime Stoppers indicated an intention to appeal a decision if their claim of informer privilege was not upheld occurred on March 31, 2016, when counsel for the accused stated:

Ms. Booth wanted to convey to the court as well, that should Your Honour grant the Crown’s application, they would be seeking a stay of the order and an immediate appeal to the Court of Appeal. So I am communicating that to Your Honour on behalf of Ms. Booth, just so Your Honour is aware of the overall procedure depending on Your Honour’s ruling. So, I am sorry for being somewhat ambiguous but it is a difficult topic but that is what was conveyed to me by Ms. Booth.

[40] The intention to appeal was referred to again on April 6, 2016, again by counsel for the accused who stated,

Well there’s two matters. One of them is that, as Your Honour knows, Ms. Booth on behalf of Crime Stoppers indicated that she may very well receive instructions from her client to pursue a stay of Your Honour’s order, should you deem the information not privileged.

[41] My perception at the time of the above two comments was that it was a not very subtle attempt to influence my decision on the issue of informer privilege. While I let the first comment pass, after the second comment I did indicate to counsel that this was not a factor that I could take into consideration for purposes of my decision. In any event, the relevant point I have taken from this exchange is that there was no prior indication before the commencement of the hearing of an intention by Crime Stoppers to appeal or seek a stay if their position was not adopted which would have put the Crown on notice of the necessity to take into account the likelihood of an appeal by Crime Stoppers.

[42] I have concluded on the evidence before me that while the Crown should have kept in touch with Crime Stoppers after August 25, 2015 and delivered a copy of its notice of application to Crime Stoppers, that this failure by the Crown did not result in any significant delay. The argument on the Crime Stoppers motion was completed on April 15, 2016 and my decision was released on April 21, 2016 well within the timeframe which would have allowed the trial to proceed on May 2 as originally scheduled. The events which resulted in the adjournment of the trial from April 3 to September 25, 2017 was the combined effect of the defence not being prepared to proceed on May 2, 2016 and their request for an adjournment together with the decision by Crime Stoppers to appeal this Court’s order to the Supreme Court of Canada. Their intention to appeal to the Supreme Court and the consequent delay was not reasonably foreseeable prior to March 29, 2016.

[43] The leave to appeal application was brought by Crime Stoppers on June 6, 2016. I am satisfied that from that date the Crown has taken all reasonable steps to minimize the delay occasioned by the Crime Stoppers appeal. In this regard, I accept the evidence of Susan Magotiaux which is contained in her affidavit dated July 5, 2017 and which was filed by the Crown. The contents of this affidavit were not seriously disputed on the application before me. In her affidavit, she outlines the steps which she took to minimize any delay in the trial of this action as a result of the Crime Stoppers appeal. This included working with all parties to expedite the filing of relevant material in the leave to appeal application and once leave was granted on the appeal itself. The Supreme Court initially scheduled the tentative date for the hearing on the appeal for March 29, 2017. However, the oral hearing was subsequently moved forward to January 20, 2017. At the conclusion of the hearing before the Supreme Court, after the court indicated that they would reserve their decision, the Crown rose to thank the court for the expedited hearing of the appeal and pre-hearing motions given that the appeal was holding up the trial.

[44] With respect to the defence position that the Crown should have proceeded to trial without adducing evidence of the alleged Crime Stoppers tip, I would note that this issue is a matter of prosecutorial discretion. In addition, I disagree with the suggestion that in light of the defence acknowledgment that the accused has previously lied to police and others about his involvement in the case that the Crime Stoppers evidence is not particularly relevant. In this regard, I accept the Crown’s submission that the Crime Stoppers evidence is important evidence of post-offence conduct. It is particularly significant because if the Crown’s position is accepted, it overshadows all of the other lies told by the accused. It involved planning by him and a series of positive steps which he took in finding a call booth and making the call. It represented a concrete plan to divert police resources in following up on the false tip. There is a significant qualitative difference between any lies Mr. Corner may have told the police and others earlier. If he made the call and if the evidence is admissible, it represents a qualitative difference in his attempt to obstruct justice.

[45] I have concluded that the circumstances of the Crime Stoppers appeal constitute either a discrete event or a novel legal issue within the context of the Jordan framework. The Crime Stoppers appeal constituted an unforeseeable development which was taken by a third party and which has ultimately led to significant delay. This constitutes one type of exceptional circumstances under the Jordan framework.

[46] The second category of exceptional circumstances relates to cases which are particularly complex. At para. 77 of the Jordan decision, the Supreme Court noted that particularly complex cases arising from the nature of the issues may be characterized by among other things, novel or complicated legal issues. I have concluded that the issue of informer privilege attaching to this type of Crime Stoppers call is a novel legal issue. This is reflected by the fact that the Supreme Court still has its decision under reserve and it is now almost eight months since the appeal was argued before that court and no decision has yet been rendered. In reviewing my decision of April 21, 2016, it is apparent that there is little appellate authority on the issue raised by Crime Stoppers.

[47] This leaves the issue of whether the delay by the Supreme Court of Canada in delivering its decision can properly be deducted from the total delay. Neither party was able to find any authorities with respect to delay created due to an adjournment caused where an appellate court failed to release a decision on an interlocutory appeal which in turn resulted in a delay of the trial. The defence points to the Supreme Court of Canada decision in R. v. Rahy, 1987 CanLII 52 (SCC), [1987] S.C.J. No. 23, where the court found an eleven month period of inaction on the part of the trial judge to decide a motion on a directed verdict. In that case, the Supreme Court held that the delay by the trial judge was unjustified.

[48] In my view, the Supreme Court, having emphasized the lack of tolerance for delay and the need to deal with a culture of complacency in its Jordan decision has an obligation as do all courts to take steps to try to minimize delay in the context of the criminal justice system. Having said that, the Supreme Court hearing on the Crime Stoppers appeal took place on January 20, 2017 and the deadline agreed to by the parties for proceeding with the trial on April 3 was March 20, which left the Supreme Court with only a two month window to decide the Crime Stoppers appeal if in fact the trial was going to proceed on the April 3 date. It was clearly recognized by both Crown and defence that the Supreme Court might not be able to deliver its decision prior to March 20. This is reflected in the initial defence request for a trial date in September 2017 as well as the discussion at the judicial pre-trial conference which was held on August 2, 2016 and the discussion which took place at the judicial pre-trial on November 7, 2016. It is further reflected in the memo dated November 7, 2016 which Justice Fuerst distributed to all counsel and where the back-up date of September 25, 2017 is specifically referenced. Given the responsibility of the Supreme Court to deal with novel and important issues and setting a legal standard which must be followed by all other courts in the country, I have concluded that the delay by the Supreme Court to date, is reasonable and consistent with the expectation of the parties that a decision from that court might not be available prior to the deadline of March 20 and which led in turn to the decision to schedule the backup date of September 25.

[49] In these circumstances, I have concluded that the action by the third party in bringing an appeal to the Supreme Court is both a discrete event and an issue of complexity which constitutes exceptional circumstances in the context of the Jordan framework. The delay caused by these exceptional circumstances represents a delay of just under six months, which brings the net delay well below the 30 month presumptive ceiling.

[50] As noted previously, the defence is not advancing an argument if this court concludes that the net delay is less than 30 months. It follows that the defence application is dismissed.

Justice M. McKelvey

Released: September 22, 2017