Superior Court of Justice
CITATION: R. v. Powell, 2017 ONSC 5658
COURT FILE NO.: CR16-5000-0584-0000
DATE: 20170926
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DEWAYNE POWELL
Applicant
A. Del Rizzo, for the Respondent Crown
Mitchell Chernovsky, for the Applicant
HEARD: September 22, 2017
S.F. Dunphy, J.
[1] This is a transitional section 11(b) Charter case involving delay from arrest until the estimated end of the trial of approximately 34 1/4 months. Fortunately, I have had the benefit of the reasons of the Court of Appeal in R. v. Picard, 2017 ONCA 692 which has provided me with a considerable amount of guidance on how to apply the principles of R. v. Jordan [2016] 1 S.C.R. 631, 2016 SCC 27 to transitional cases such as the present one. Trial is scheduled to proceed before a jury on October 23, 2017 and is expected to last approximately 4 weeks, with an anticipated end date of November 17, 2017.
[2] Because the net delay in this case exceeds the 30 month presumptive ceiling for Superior Court trials directed by the Supreme Court of Canada in R. v. Jordan, [2016] 1 SCR 631, 2016 SCC 27, both parties agreed that the burden of establishing that the delay in this case is a reasonable one rests with the Crown.
[3] I heard argument on this application on September 22, 2017 and released my decision dismissing the application with reasons to follow on September 26, 2017. These are my reasons for having dismissed the application and concluding that the right of the accused to be tried within a reasonable time guaranteed by s. 11(b) of the Charter was not violated on the facts of this case.
Background and chronology
[4] Mr. Powell was arrested on January 12, 2015 and faces four counts of kidnapping, forcible confinement and related charges. He has been in custody since his arrest having been denied bail on February 27, 2016.
[5] The indictment alleges that Mr. Powell participated in the kidnapping of the complainant on January 6, 2015. Mr. Powell’s arrest occurred on January 12, 2015 in connection with an alleged attempt to collect ransom money. The victim was located and freed the following day by police as a result of their intensive investigation.
[6] Mr. Powell was not the only one arrested. Two and eventually three other co-accused were also arrested. Charges against one co-accused (Mr. Partipilo) were ultimately withdrawn at the outset of the preliminary inquiry while charges against two others (Mr. Zaya and Mr. Sweeney) were resolved with guilty pleas (in Mr. Zaya’s case, during the preliminary inquiry in May, 2016 and in Mr. Sweeney’s case, in January 2017).
[7] The following is a brief chronology of the major elements of the timeline:
a. January 6, 2105 – alleged kidnapping of complainant;
b. January 12, 2015 – arrest of Mr. Powell;
c. February 27, 2015 – Mr. Powell is denied bail; Mr. Chernovsky appeared on his behalf;
d. March 30, 2015 – set date – adjourned to April 10, 2015 at the request of Mr. Chernovsky (via note) due to alleged issues with disclosure;
e. April 10, 2015 – set date - Mr. Chernovsky fails to appear at set-date hearing but further disclosure issues raised, matter adjourned to 22 April, 2015;
f. April 22, 2015 – set date - Duty counsel advises Mr. Chernovsky requires further disclosure before scheduling JPT while Sweeney’s counsel ready – matter adjourned to May 4, 2015;
g. May 4, 2015 – set date – further week’s adjournment sought by co-accused changing counsel – adjourned to May 11, 2015 (parties agree 1 week Defence Delay per Morin guidelines)
h. May 11, 2015 – set date – further adjourned due to Mr. Zaya continuing to have no counsel – adjourned to May 20, 2015 (parties agree 1 week Defence Delay per Morin guidelines);
i. May 20, 2015 –JPT set for July 29, 2015 subject to further appearances to maintain jurisdiction;
j. July 29, 2015 – JPT held – preliminary inquiry set for eight days: May 11-13 and May 16 – 20, 2016;
k. November 9, 2015 – 2nd JPT held, preliminary inquiry dates remain unchanged;
l. April 15, 2016 – Crown sends defence counsel list of intended witnesses at preliminary inquiry & asks for any requested additions;
m. May 11, 2016 – Preliminary inquiry begins, charges withdrawn against one co-accused (Mr. Partipilo);
n. May 15, 2016 – Applicant’s counsel responds to Crown list of witnesses and requests to hear from additional witnesses;
o. May 17, 2016 – last day of evidence heard at preliminary inquiry; Mr. Zaya pleads guilty to kidnapping and forcible confinement;
p. May 18, 2016 – Preliminary inquiry adjourned to June 29, 2016 to permit discovery of additional police officers;
q. June 8-June 14, 2016 – three days of discovery are held during which time the Applicant examined 8 police officers;
r. June 29, 2016 – preliminary inquiry adjourned to July to permit resolution discussions – judge advised there are no significant committal issues;
s. July 8, 2016 – SCC releases R. v. Jordan;
t. July 14, 2016 –completion of preliminary inquiry scheduled for September 1, 2016;
u. September 1, 2016 – count 4 withdrawn, committal conceded on all remaining counts save assault cause bodily harm and threatening (counts 3 and 5), SCJ set-date fixed for 22 September;
v. September 22, 2016 – initial Superior Court appearance – JPT fixed for October 6, 2016 and request for four week jury trial;
w. October 6, 2016 – set-date adjourned to October 21 to permit further JPT;
x. October 21, 2016 – Court indicates October 23, 2017 earliest available date for four week jury trial with September 27, 2017 trial readiness;
y. December 13, 2016 – further JPT;
z. January 13, 2017 – Mr. Sweeney re-elects judge alone and guilty plea accepted.
Issues to be decided
[8] Just as the chronology of this trial straddles the timelines prescribed by Jordan, so the timeline of this application straddles the decision of the Court of Appeal in Picard. The Application in this case was made on June 26, 2017 and scheduled to be heard September 22, 2017. The argument of Picard before the Court of Appeal occurred on June 12, 2017 while the decision was released on September 7, 2017. Both sides were required to re-work their oral submissions to take this decision of the Court of Appeal into account. I should take this opportunity to commend both counsel for the deftness and agility shown in doing so on quite short notice.
[9] In light of Picard, both parties approached this Application from the perspective of whether the facts of this case present transitional exceptional circumstances of sufficient weight to justify exceeding the presumptive 30 month ceiling. As the Jordan delay ceiling is exceeded on the facts of this case even granting the Crown the two instances of discrete delay claimed, the Crown accepts that it bears the burden in this case of establishing that the delay has been reasonable having regard to Jordan and Picard.
[10] The issue to be determined therefore is whether the Crown has established that exceptional transitional circumstances exist in this case in light of which the delay in bringing this matter to trial may be considered to have been reasonable.
Analysis and discussion
[11] Section 11(b) of the Charter secures the fundamental right to be tried within a reasonable time. The judgment of the Supreme Court of Canada in Jordan was that the collective output of our criminal justice system was quite simply inadequate to respond to this constitutional imperative and that a culture change on the part of all participants in the criminal justice system is required to better secure this fundamental right. The 30 month presumptive ceiling prescribed by Jordan (and repeated in R. v. Cody, 2017 SCC 31) was never intended as a bright line to be robotically applied without regard to the facts and circumstances of a case. The Constitution is applied by judges in a courtroom, not accountants in a boardroom.
[12] Neither the ship of state nor the criminal justice system can be turned on a dime retroactively. As the court in Cody noted (at para. 3): “the Jordan framework now governs the s. 11(b) analysis and, properly applied, already provides sufficient flexibility and accounts for the transitional period of time that is required for the criminal justice system to adapt” (emphasis added). Picard has now provided us with guidance as to how to apply the transitional framework of Jordan for the cases in the system prior to July 8, 2016. The process of adapting the criminal justice system is a work in process, but is proceeding on numerous fronts.
[13] I distill the following directions from Jordan, Cody and Picard where the presumptive ceiling has been exceeded:
a. Firstly, establish the total delay from the time of arrest to the anticipated completion of trial;
b. Secondly, calculate the “net delay” after deducting defence delay calculated in accordance with Jordan;
c. Thirdly, subtract “discrete delay” arising from discrete events which, even if not necessarily defence delay as described in Jordan, could not have been anticipated by or mitigated by reasonable actions on the part of the Crown;
d. Fourthly, if the remaining delay still exceeds the presumptive 30 month ceiling, consider whether the remaining delay was nevertheless justified in light of the complexity of the case; and
e. Fifthly, for cases already in the system prior to July 8, 2016, consider whether the delay may be justified by the parties’ reasonable reliance upon the law as it existed pre-Jordan.
[14] It is only at the fifth and last stage of the analysis that the pre-Jordan law comes into the analysis. For example, if the complexity of the case justifies the delay beyond the ceiling under the Jordan analysis, there is no need to resort to R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771. There is no issue in this case in calculating the total delay (34 ¼ months) or in calculating the Jordan defence delay (none claimed in this case). I shall proceed therefore to consider the last three steps in the analysis outlined above.
(a) Discrete delay
[15] The Crown has put forward two events it describes as discrete delay: a 16 day period in May 2015 occasioned by the actions of a co-accused over which the Crown had no control and a further 42 day period in May 15, 2016 until June 29, 2016 when the preliminary inquiry was delayed to permit the Applicant to obtain discovery from eight police officers that it requested.
[16] While the Applicant contests the 42 day period at least, the Crown readily concedes that whether the outcome of that issue, the remaining delay is still beyond the 30 month presumptive ceiling. The total amount of discrete delay claimed by the Crown is just short of two months whereas the net delay exceeds the ceiling by just over four months. In other words, the burden to justify the delay in this case rests with the Crown regardless as the remaining delay is at least 32 1/4 months.
[17] There is little doubt that the first period of 16 days claimed by the Crown as discrete delay is correctly characterized by the Crown. Mr. Zaya sought to change counsel in May 2015 and the parties were delayed 16 days in getting a date set for the preliminary inquiry as a result. The Crown could not have anticipated this delay nor is there any suggestion that there is any step that the Crown should have taken that it failed to take to mitigate the time lost as a result. It was not the fault of the Applicant to be sure, but this was clearly an exceptional but discrete circumstance.
[18] The more significant dispute centred upon the request made to examine officers not called by the Crown that was made on May 15, 2016 that resulted in the completion of the preliminary inquiry being delayed to permit further discovery. The following is the background to this issue.
[19] The investigation of this kidnapping case was a very major one. The police became involved in an undercover capacity while negotiations with the kidnappers were underway. The location of the victim was not known. Extensive surveillance and intelligence operations were underway. Mr. Powell was arrested in connection with an alleged attempt to collect the ransom money. A cell phone in his possession eventually led the police to discover the whereabouts of the victim who was rescued the following day.
[20] On July 20, 2015, Mr. Chernovsky made what might be described as a generic discovery request that requested, among other things, “a master disc containing all officer’s notes, and the materials customarily found on an initial disclosure disc”.
[21] On April 15, 2016, the Crown provided the Applicant with a list of the names of witnesses it intended to call for purposes of the preliminary inquiry and gave its notice pursuant to s. 540(7) of the Criminal Code, adding “if there are particular witnesses that Counsel wish to hear from, please let me know and I will do my best to have them attend”.
[22] There was no response to this request from the Applicant prior to May 15, 2016. On that day an email was sent by Mr. Chernovsky requesting that nine or possibly ten additional officers be heard from and offering to do so by way of discovery. I accept that these requests arose from information that came to light during the evidence called by the Crown at the preliminary inquiry but at least some of the names of officers requested figure in the lists of notes disclosed in prior discovery. In other words, the desire to obtain discovery from these witnesses may have arisen from evidence given. However it cannot be said that the names of none of these were available beforehand. Of these listed potential witnesses, three were able to be called over the next two days of evidence at the preliminary inquiry.
[23] The preliminary inquiry was adjourned on May 18, 2016 and no further evidence was taken. Instead, the parties conducted discovery in early June of a further eight officers. Only some of the names examined were the on the original May 15, 2016 email request. It is clear the discovery request continued to evolve after May 15, 2016.
[24] I recite this chronology without seeking to point a finger of blame in any direction. To the contrary, it has been made abundantly clear to me that the Crown and defence teams were working professionally and diligently throughout and nothing has been suggested to me by either that I have found to be in any way improper or untoward. Mr. Chernovsky I have no doubt made the requests for discovery that he made based upon the information he had as soon as reasonably practicable. This was a very large investigation. It is natural that issues arise or are put to bed as the case evolves. In this case, there were issues and theories that the evidence at the preliminary inquiry first brought into relief for the defence that led the defence to request additional discovery. There is nothing improper or blameworthy in this.
[25] That being said, I do not agree with the Applicant that these late-breaking discovery requests should be classified as Crown delay arising from allegedly deficient or late disclosure. The single generic disclosure request in July 2015 could not reasonably be construed as putting each and every one of the dozens of officers who touched the file in any capacity under the disclosure microscope nor can the Crown by held to anticipate each and every discovery request that may arise as a case unfolds. Neither side has produced the output of this additional disclosure process to me. It is therefore impossible for me to assess the importance or materiality of any of it still less whether I can fault the Crown for having failed to produce it earlier. Once again, I say that without intention to cast aspersions and fully recognizing that some issues must be fully investigated before they can be put to bed. I do not find that this late disclosure request arose from any fault of the Crown.
[26] I am fully satisfied of two facts. Firstly, the Crown had no reason to anticipate the request of the defence for additional discovery prior to completion of the preliminary inquiry. Secondly, the Crown facilitated the discovery request when made as soon as reasonably practicable.
[27] Accordingly, I am satisfied that it would be reasonable to characterize the 42 day delay in the completion of the preliminary inquiry (the actual resulting delay was in fact longer as it turned out, but the initial adjournment was for a period of 42 days) as a discrete event that ought to be deducted from the net delay as an exceptional circumstance in application of the Jordan framework.
[28] As noted earlier, the deduction of these two periods of discrete delay (totalling 58 days) still leaves a remaining delay a little over two months beyond the presumptive ceiling of 30 months. By coincidence, this is about the delay that resulted when the parties agreed to engage in resolution discussions on June 29, 2016 instead of completing the preliminary inquiry that day or originally planned. This requires me to proceed to the fourth step and consider whether the complexity of the case can be relied upon by the Crown as justifying the delay.
(b) Case complexity
[29] I start with the recognition that delay attributable to case complexity is to be considered on an overall basis. This consideration is not a basis to deduct this or that specific period of delay or to attribute a week or month of delay to one side or the other. Rather, I am required to look at the entire arc of the case and not simply the case as it now appears likely to be presented at trial: Picard, para. 57. It is the case as it might be tried viewed from the outset of proceedings that must be prepared for by the Crown, not the case that will be tried after numerous issues have been raised, fleshed out and dealt with after months of diligent work by counsel on all sides.
[30] At first blush it might be said that Picard has set the “case complexity” bar much higher than the present case. Picard was after all a murder trial where the Court of Appeal concurred with the trial judge that the complexity of that case did not constitute an exceptional circumstances capable of justifying the delay that had occurred in that case. Picard also involved voluminous disclosure and an extensive police investigation while Picard was a case that required a five-week preliminary inquiry as compared to only eight days in the present case.
[31] I am not persuaded that that is the end of the inquiry into complexity however. Picard also presented with an eight month delay caused by Mr. Picard changing counsel – a delay that the Crown might have better used to prepare witnesses and otherwise mitigate the delay implicit in a complex case. Secondly, there was a further seven month delay attributed to the Crown insistence that two senior Crown’s assigned to the case be available for trial and the overall delay of 48 months was well in excess of the presumptive ceiling. Both of these delays presented the Crown with more than sufficient time – some of which was used but much of which was not – to mitigate the delay. A small delay on account of complexity may have been efficient and reasonable under the Jordan framework; the Court in Picard found that seven additional months caused by the Crown insisting both senior Crown’s assigned to the case be available was unacceptable and precisely the type of approach that Jordan was seeking to remedy: Picard para. 68. In other words, a finding that complexity did not justify a delay eighteen months in excess of the presumptive ceiling on the facts of Picard does not imply that a similar level of complexity would not justify a 4 ¼ month delay in this case.
[32] I consider the following elements of case complexity to be material to the Jordan analysis here:
• There were initially four co-accused each represented by separate counsel;
• The investigation of the case was large and complex involving dozens of police officers and witnesses;
• The disclosure was also voluminous and complex; and
• Even after resolution of the charges with respect to two of the four initially charged, the case remained a long trial (four weeks).
[33] It is plain and obvious to me that the time required to co-ordinate and prepare committal proceedings and then trial for a long trial involving four co-accused separately represented will require more time than co-ordinating a short trial involving a single accused. The most diligent of court systems and an unlimited supply of qualified Crown counsel will not free long windows in the calendars of four separate defence counsel nor does any improper or dilatory behaviour have to occur for separate counsel to pursue at least some separate issues separately, all of which must be prepared for, responded to and, where appropriate, made the object of disclosure by the Crown and police. The task set for us by Jordan was to distinguish delay due to complacency from delay due to complexity, not to ignore it.
[34] This was also a large and complex investigation. There were dozens of police officers involved in forensic work, investigation, surveillance and similar matters. The nature of preparation in this sort of a case is, to a significant degree, an iterative process. One round of disclosure or discovery might generate further requests and so on. Indeed, this is precisely what occurred at the preliminary inquiry where evidence heard led to discovery requests that were accomplished the following month. Pointing this out is not to criticize the defence for doing their job but simply to acknowledge the time that is required in more complex cases for a thorough investigation of possible issues and that it cannot reasonably be expected that each and every issue and all the disclosure relating to it will infallibly be anticipated by police and the Crown at the outset with or without a generic request for all police notes.
[35] The process of proceeding to committal was not pro forma in this case. Charges against one accused were not proceeded with. A second co-accused resolved at the preliminary inquiry while a third resolved following Superior Court pre-trials. The committal process saw some of the charges against the Applicant withdrawn, simplifying issues.
[36] The Applicant conceded that the disclosure in this case was voluminous and complex. Disclosure takes time. It takes time both to locate the materials required – be they notes, surveillance tapes, audio recordings, video interviews or other media – and to inventory and catalogue them.
[37] Finally, this remains a four week (i.e. long) trial even after numerous judicial pre-trials, simplification of the indictment and the resolution of charges against three of four initially charged individuals. The preparation time for long trials will tend to surpass the “average” preparation time. This case is no exception.
[38] It must be recalled that in conducting the Jordan analysis, complexity is not an all or nothing proposition. A finding that complexity of a particular case justifies some delay in excess of the Jordan presumptive ceiling does not imply that all delay is justified. Conversely, complexity that does not justify a long period of delay may well serve to justify a shorter delay.
[39] I do not propose to reach a firm conclusion whether the complexity I have found in this case would justify the remaining delay of two and a quarter months beyond the Jordan presumptive ceiling (after deducting the discrete delay I have found). Having regard to my conclusion that transitional exceptional circumstances have been made out in this case (discussed in the next section of these reasons), I do not find it necessary to consider whether the complexity of this case alone also justifies the delay. I should not however be taken as concluding in this case that complexity would not have justified the delay absent transitional exceptional circumstances. I shall leave that consideration to another court at another time.
(c) Transitional exceptional circumstances
(i) Overview of Morin analysis
[40] To determine whether transitional exceptional circumstances justify a delay above the presumptive ceiling, I am required to undertake a contextual assessment of the circumstances including complexity, the period of delay in excess of the Morin guidelines, the Crown’s response, if any, to institutional delay, the defence efforts to move the case along and prejudice to the accused: Picard at para. 71.
[41] I have already reviewed the complexity of the case above. In my view, a proper contextual assessment of this factor leads to the conclusion that this was indeed a moderately to fairly complex case.
[42] The overwhelming impression gleaned from reviewing the evidence on this application was that both sides behaved professionally and efficiently at all times. There was no stonewalling on disclosure nor is there any sign of dilatory tactics being deployed.
[43] The prejudice to the accused in this case must be considered and given appropriate weight. There is no suggestion that the delay has prejudiced the right of Mr. Powell to a fair trial. However, that is not the only type of prejudice I must consider. Mr. Powell was denied bail and has thus been in custody since his arrest on January 12, 2015. I am also urged by the Applicant to attribute a somewhat greater degree of weight to the factor of prejudice in this case by reason of the place of that detention being the Toronto South Detention Centre.
[44] The Applicant filed an affidavit attesting to the numerous lockdowns at that detention centre that made the conditions of his pre-trial detention more onerous than it might otherwise have been. His records of actual detention time are imprecise of course – he has had to rely upon his memory. It might have been possible to obtain more precise records of the actual period of lockdown as is commonly done in sentencing hearings. However, I accept that the majority of Mr. Powell’s time at Toronto South Detention Centre has been in conditions of lock-down. I do not find it necessary to make a firm finding on the precise number of days he was there or how many of them involved partial or complete lock-down.
[45] While I concur with the Applicant that the prejudice arising from delay in the case of an accused in custody is greater than it would be in the case of an accused who is not in custody, I am not prepared to amplify that concern to a significant degree on the facts of this case by reason of the place of detention. I should not in any way be taken to condone the chronic staffing shortages at Toronto South Detention Centre that results in so many inmates being subjected to constant lock-down conditions. However, Mr. Powell took steps to ensure that he was not transferred out of that facility for reasons sufficient to him – including his desire to be closer to family. The adverse conditions of detention add some weight to the prejudice of delay in this case, but that additional weight is limited.
[46] I shall now proceed to review each of the relevant time periods under the Morin guidelines.
(ii) Morin time periods: January 12, 2015 – July 29, 2015
[47] The first time frame I consider is January 12, 2015 (arrest of Mr. Powell) until July 29, 2015 (fixing of preliminary inquiry date). The total time consumed by the intake process at the Ontario Court of Justice was thus about 6 ½ months. I have already discussed the 16 days of discrete delay above. This is conceded by the Applicant to be defence delay for purposes of the Morin analysis.
[48] The judicial pre-trial was fixed on May 20, 2015 for the first available date being July 29, 2015. I have no evidence before me as to whether any earlier dates were lost due to co-ordinating counsels’ calendars, but the net delay of about six months for intake (not counting the two weeks of defence delay) can reasonably be attributed to neutral intake delay under the Morin guidelines. I attribute no institutional delay to this first time frame.
(iii) Morin time periods: July 29, 2015 – May 11, 2016
[49] The second time frame I consider is the delay between July 29, 2015 (when the first JPT was held and the preliminary inquiry dates were set) and May 11, 2016 (when the preliminary inquiry began). The total delay between setting the date and the commencement of the preliminary inquiry was just over nine months.
[50] It would be an error to attribute the entirety of this delay to institutional delay: Picard para. 93-94. Clearly, the parties were not ready to begin the preliminary inquiry on July 30, 2015 when the date was set. A period of several months would have been reasonably necessary to prepare the preliminary inquiry. Among other things, disclosure needed to be completed and further demands responded to. All of this continued to consume a great deal of time. There were multiple judicial pre-trials held. Mr. Sweeney took steps to change counsel. The record shows several documentary requests were received and processed promptly in this time frame.
[51] In Picard, there was just over an eight month delay following the setting of the date and before the commencement of the preliminary inquiry, four months of which were categorized as being institutional delay with the balance being attributed to the inherent time requirements of the case.
[52] There is an organizing principle of life in the legal world that work expands to occupy all of the time available to accomplish it. This principle is subordinate only to the iron law of necessity: nothing so concentrates the mind as a deadline in the morning. Having regard to the flow of work outlined before me, I have no doubt that the preparation work in this case might have been accomplished in less time if an earlier preliminary inquiry date had been available and ordered.
[53] I would allocate two months from this second time frame to institutional delay with the balance being necessary preparation time.
(iv) Morin time periods: May 18, 2015 – September 1, 2016
[54] The third time frame to consider is the time between the adjournment of the preliminary inquiry on May 18, 2016 and the actual formal completion of the preliminary inquiry and committal that occurred on September 1, 2016.
[55] The proximate cause for failing to complete the preliminary inquiry in the time allocated was the Applicant’s request for further discovery. I do not concur with the defence argument that the time to accommodate this request can be laid at the feet of the Crown by reason of allegedly late disclosure. I have previously found that this request was not reasonably anticipated by the Crown but was responded to and accommodated reasonably and without delay. I have no basis to attribute fault for late disclosure for the reasons already outlined.
[56] When the matter returned on June 29, 2016, it was adjourned again for resolution discussions with the agreement of all parties. When the matter came back on July 14, 2016, Lapkin J. was unable to continue the preliminary inquiry that day and the matter was put over to the next available date before him being September 1, 2016. While dates in August had been offered, counsel for one of the co-accused were unavailable on those dates.
[57] In my view, the entire time period between May 18, 2016 (adjournment of preliminary inquiry) and September 1, 2016 (completion) is properly attributable either to defence delay or neutral inherent circumstances. None of it is institutional delay or Crown delay.
(v) Morin time periods: September 1, 2016 – October 21, 2017
[58] The next time frame to consider is September 1, 2016 until October 21, 2017 when the trial date of October 23, 2017 was set by McMahon J. in Superior Court.
[59] The Applicant takes no issue with any of this time save the two weeks between October 6, 2016 and October 21, 2016. The Applicant submits that it sought to have a trial date set on October 6 but was “told” that it could not do so due to Justice McMahon’s unavailability. That submission requires a very selective reading of the record.
[60] Mr. Powell was committed to trial (along with Mr. Sweeney) on September 1, 2016 and initially appeared in Superior Court before Ducharme J. on September 21, 2016. The parties were given an October 6, 2016 judicial pre-trial date at that time and were to come back to speak to the long trial list to set a trial date afterwards. The judicial pre-trial was not completed on October 6, 2016 and was adjourned to be completed before Goldstein J. on October 21, 2016. A trial date could not be set until after the JPT had been completed. The case was simply not ready to have a date set for trial on October 6, 2015 in any event. The comment made by counsel regarding McMahon J. and his availability on that day was just that – a comment. It was not a finding of fact by anyone.
[61] I attribute the entire SCJ intake time frame (September 1, 2016 until October 21, 2016 to neutral inherent delay.
(vi) October 21, 2016 – October 23, 2017
[62] The last time frame to consider is October 21, 2016 until the anticipated start of the four week trial on October 23, 2017. That delay is just over one year. Defence counsel both indicated on the record that they were prepared to start the trial as early as February, 2017. These assertions were of course made secure in the knowledge that such dates were not in fact available and there was thus no risk of the trial being scheduled then. It was known at the time that further resolution efforts were on-going and that a JPT had been scheduled for December 2016. In fact, Mr. Sweeney’s charges did resolve following a further JPT in January 2017. I cannot conclude that the case was in fact ready to proceed but for the lack of an available trial date. I conclude, to the contrary, that it was not.
[63] There was no meaningful effort made to seek an earlier trial date after charges against Mr. Sweeney were resolved in January 2017, for example. McMahon J. had left the door open to making further efforts to find an earlier trial date at a later time but no further defence application to that effect was made. Numerous judicial appointments were made over the following weeks and months that materially improved the Toronto Superior Court availability.
[64] In Picard, a five month time period for trial preparation was attributed to inherent delay after a three month Superior Court intake process. No two cases are alike. In all of the circumstances, I would attribute six months after October 21, 2016 to inherent delay and attribute the remaining time (six months to the start of trial) to institutional delay.
(vii) Summary of Morin factors
[65] It follows from the foregoing that the Morin analysis would lead me to attribute a total of eight months of the 34 ¼ months total delay to trial completion to institutional delay. I attribute none of this time to Crown delay. The remainder is either inherent delay or defence delay as discussed above.
(viii) Morin balancing
[66] Balancing the interests required by the Morin analysis requires me to consider this eight months of institutional delay in the context of the interests s. 11(b) of the Charter aims to protect, the explanations for the delay and the prejudice to Mr. Powell.
[67] The total delay in this case - 34 ¼ months to completion - is obviously a concern, but in the context of a somewhat complex long trial it is not an unreasonable delay. Complexity and inherent delay account for most of this delay. The institutional delay I have found in this case – eight months – is still well below the Morin guideline and there was no Crown delay.
[68] The societal interest must also be considered. Kidnapping and forcible confinement are very serious offences. The grave nature of these crimes gives rise to a heightened societal interest in having a trial on the merits.
[69] Against these factors I must also consider the prejudice to the accused who was in custody the entire time.
[70] Applying the Morin guidelines, it is clear to me that the overall delay that has occurred in this case was well within the bounds of reasonable having regard to the complexity of the case, the reasons for the delay, the prejudice to the accused and the societal interest in having a trial on the merits. It cannot be said that this case viewed as a whole was “near the line” let alone over it when viewed through a Morin lens.
(ix) Application of Morin conclusions to Jordan: transitional exceptional circumstances
[71] Finally I must return to the Jordan analysis to consider whether, in all of the circumstances, the delay in this case is justified as a transitional exceptional circumstance.
[72] I am mindful of the fact that a significant segment of the institutional delay in this case occurred post-Jordan. It is not reasonable to interpret Jordan as requiring that the process of adapting the criminal justice system it called for must be instantaneous. As it is, the time out to trial for a long trial in this case was well within the range of normal viewed through a pre-Jordan lens. The resources of the Superior Court were in the process of being marshalled to prioritize criminal trials while the judicial appointment process was accelerated and succeeded in clearing the backlog in appointments in a very short time span (this was done in less than a year post-Jordan). Change in response to Jordan was well underway and continues. It may well be that still more could have been done still faster in hindsight, but it would be pure speculation to suggest such measures would have had a material impact on the scheduling of this trial given the number of moving pieces that must be co-ordinated to schedule a four week trial with this number of witnesses and counsel.
[73] It will be relatively rare that delay found reasonable under Morin (as this delay has been) will nevertheless be considered to be unreasonable under Jordan: Picard at para. 139. I can point to no mistakes or missteps by the Crown here that might lead to such a conclusion. There has been no failure post-Jordan to heed the admonitions of the Supreme Court. All that could have been done to expedite this trial – or at least all that could reasonably be done in the circumstances –was done.
[74] I find that the delay in bringing this matter to trial is justified by the transitional exceptional circumstance.
Disposition
[75] Accordingly, I have dismissed the application and find that Mr. Powell’s right to trial within a reasonable time pursuant to s. 11(b) of the Charter has not been infringed in this case.
S.F. Dunphy, J.
Released: 26 September 2017
CITATION: R. v. Powell, 2017 ONSC 5658
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
DEWAYNE POWELL
REASONS FOR JUDGMENT
S.F. Dunphy, J.
Released: September 26, 2017