CITATION: R. v. Patel, 2017 ONSC 5827
NEWMARKET COURT FILE NO.: CR-14-07160-00
DATE: 20171002
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Rakesh Patel
Applicant/Defendant
Martin Dionne, for the Crown
T. Edmund Chan, for the Defendant
HEARD: September 15, 2017
REASONS FOR DECISION
RE: APPLICATION UNDER SECTION 11(B) OF THE CHARTER
SUTHERLAND J.:
Overview
[1] The defendant, after conviction, brings an application relying on section 11(b) of the Canadian Charter of Rights and Freedoms (“the Charter”) requesting an order setting aside the conviction and an order for a stay.
[2] The defendant was arrested and charged with dangerous driving on September 5, 2014. On October 1, 2014, new information was sworn with two counts of criminal negligence causing death and dangerous driving causing death.
[3] On October 3, 2016, a judicial pretrial was conducted in front of Fuerst RSJ. At the pretrial, it was agreed that a section 11(b) of the Charter application would not be brought if the trial proceeds on the scheduled date of April 24, 2017.
[4] The trial commenced on April 24, 2017. The defendant was convicted of dangerous driving causing death on July 5, 2017. At the appearance on July 5, 2017, the proceeding was adjourned to September 15, 2017 for a sentencing hearing. At the request of the defendant, a Pre-Sentence Report (PSR) was ordered at that time.
[5] On July 20, 2017, the defendant brought his application requesting an order quashing the conviction and staying the proceedings pursuant to section 24(1) of the Charter because his right as guaranteed by section 11(b) of the Charter has been infringed.
[6] After hearing submissions, I advised the parties that I was not persuaded that Mr. Patel’s section 11(b) right has been infringed and dismissed the defendant’s application with reasons to follow.
[7] Below are my reasons.
The Issues
[8] The issues for the court to answer are as follows:
Did Mr. Patel waive his section 11(b) right at the judicial pretrial held on October 3, 2016?
Does the time between conviction (July 5, 2017) and the date of the sentencing hearing (September 15, 2017) fall within the 30 month presumptive ceiling set by the Supreme Court of Canada in R. v. Jordan[^1]?
Has Mr. Patel’s section 11(b) right been infringed?
If the answer to issue three is in the affirmative, what is the remedy?
Did Mr. Patel waive his section 11(b) right at the judicial pretrial held on October 3, 2016?
[9] On October 3, 2016, a judicial pretrial was heard by Fuerst RSJ. At the pretrial, counsel and the Regional Senior Justice discussed the inordinate length of time the proceeding was in the Ontario Court of Justice[^2]. There was an exchange between the Regional Senior Justice and counsel as follows[^3]:
THE COURT: May I have the indictment, please? And I take it there’s no section 11(b) application?
MR. CHAN: Not at this time, Your Honour.
THE COURT: Meaning not if the trial proceeds on the April 24th date? Is that what that means?
MR. CHAN: Yes.
THE COURT: So we need an assignment court date. It will be Wednesday before, I think.
MR. MCCALLION: Agreed
MR. CHAN: That’s agreeable.
[10] Fuerst RSJ. then endorsed the record as follows:
Judicial Pretrial held, Mr. Patel re-elects trial by judge alone with Crown consent. The trial is set to proceed on April 24th, 2017 at 9:30 a.m. for five days non-jury. The week of March 13, 2017 was available to the Court and the Crown but declined by the defence. There is no Section 11(b) issue, provided that the trial proceeds on the April date. Adjourned to April 19, 2017 at 9:30 a.m. for assignment court.
[11] The trial did proceed on April 24, 2017.
[12] The Crown takes the position that the statements made by counsel for the defendant at the pretrial hearing was a concession that there was no section 11(b) issue and a waiver of any delay up to the date of trial, if the trial proceeded on April 24, 2017.
[13] Defence counsel submits that his statements to Fuerst RSJ. were not a waiver. He agreed that the exchange was accurate but that the situation changed from the date of the pretrial conference. Further, his client’s instructions were to bring the application based on section 11(b) of the Charter. Defence counsel argues that there was no waiver.
[14] Arbour J.A. (as she then was) in R. v. Rabba[^4] examined when an appellant failed to assert his 11(b) rights on a timely basis and stated:
In my view, the failure to move for a stay of proceedings, either before trial or at trial, would, in most cases, be fatal. The failure to move for a stay of proceedings would normally amount to a waiver of any claim which may arise under s. 11(b) of the Charter. To hold otherwise would amount to imposing a duty on the trial judge to examine, in each case, the entire history of the proceedings, on his or her own motion, in order to ascertain whether or not the trial was ready to proceed within a reasonable time.[^5]
[15] Arbour J.A. further stated:
…However, even if the accused need not assert that he wishes to exercise his right to be tried within a reasonable time, he must, at some relevant point, assert explicitly that his right has been infringed and seek the appropriate remedy.[^6]
[16] Jordan, in dealing with waiver of delay by the defence, such waiver may be explicit or implicit but must be “clear and unequivocal”. As the court stated: “The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights.”[^7]
[17] Jordan did not change the law of waiver of delay by the defence prior to the release of Jordan.[^8]
[18] In the circumstances of this case, the exchange at the pretrial on October 3, 2016 is clear. The inordinate time at the Ontario Court of Justice was raised. Counsel for the defendant did agree that if the trial proceeded on April 24, 2017, there would be no section 11(b) issue. It must be assumed that at the time of the pretrial that counsel was well aware of the delay in the Ontario Court of Justice and further, that he received the appropriate instructions from his client to make the agreement. There was no evidence put forth at this hearing to suggest otherwise. Accordingly, the defendant accepted that the delay at the Ontario Court of Justice did not infringe his right to an early trial, given the trial date set.
[19] Consequently, I agree with the submission of the Crown. The defendant waived any unreasonable delay prior to the commencement of the trial, if the trial commenced on April 24, 2017.
[20] For this reason alone, I would dismiss the application of the defendant that there was any unreasonable delay prior to the commencement of trial on April 24, 2017.
[21] For completeness, I will nonetheless deal with the other issues.
Does the time between conviction (July 5, 2017) and the date of the sentencing hearing (September 15, 2017) fall within the 30 month presumptive ceiling set by the Supreme Court of Canada in R. v. Jordan?
[22] The Crown and defence have agreed to the following:
The period of time between the swearing of the charges and the date of conviction is 33 months and 4 days.
There is defence delay of 5 months and 13 days.
The net time from the swearing of the charges to conviction is 27 months and 21 days.
The post-conviction time is 2 months and 10 days.
The time from the swearing of the charges to a sentencing hearing is 35 months and 14 days.
The net time from the swearing of the charges to sentencing hearing is 30 months and 1 day.
[23] If post-conviction time is not used, the elapsed time is below the presumptive ceiling of Jordan. If post-conviction time is used, then the presumptive ceiling is exceeded by one day.
Position of the Crown and the Defendant
[24] Mr. Patel argues that the time period between conviction and sentence hearing falls within the 30 month presumptive ceiling of Jordan. Mr. Patel contends that a purposive reading of section 11(b) suggest that the phrase “tried within a reasonable time” includes extending to the sentencing process. In support of this contention, the defence directs the court to R. v. MacDougal[^9] and R. v. Swanson[^10].
[25] The Crown does not disagree that sentencing process is included in section 11(b) but contend that Jordan does not encompass the sentencing process within the presumptive ceiling of 30 months. The Crown contends that, at best, the sentencing process is to be considered under the regime prior to Jordan that is the regime, as dictated by MacDougal. Crown directed the Court to R. v. Tsega[^11] in support that post-conviction time is not encompassed in the presumptive ceiling described in Jordan.
Analysis
[26] I agree with the submission of the Crown that any unreasonable delay in the sentencing process is not covered by Jordan but is covered by MacDougal.
[27] The Supreme Court of Canada in Jordan made it clear that they declined to comment on how the new framework applied to sentencing delay. Moldaver J. at paragraph 49 of Jordan stated that the presumptive ceilings commence from the charge “to the actual or anticipated end of trial”.
[28] Moreover, in footnote 2 of Jordan the Supreme Court stated:
This Court has held that s. 11(b) applies to sentencing proceedings (R. v. MacDougal, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45). Some sentencing proceedings require significant time for example, dangerous offender applications or situations in which expert reports are required, or extensive evidence is tendered. The issue of delay in sentencing, however, is not before us, and we make no comment about how this ceiling should apply to s. 11(b) applications brought after a conviction is entered, or whether additional time should be added to the ceiling in such cases.
[29] C.D. Aitken J., in R. v. Tsega came to the conclusion that in the circumstances of Tsega the sentencing process is not included in the Jordan presumptive ceiling[^12].
[30] G.P. Smith J. in R. v. Swanson indicated that the 30 month presumptive ceiling was not pronounced by the Supreme Court of Canada to apply to sentencing.[^13] But post-conviction considerations may be relevant to ascertain whether an accused’s section 11(b) right to be sentenced within a reasonable time has been violated.[^14]
[31] The Alberta Court of Appeal in R. v. Warring disagreed with the contention of the appellant that Jordan regime applies through the sentencing process. As the Court stated at paragraph 10:
The appellant argues that Jordan applies throughout the sentencing process. That is not what Jordan says. Jordan merely confirms the court’s earlier statement in R. v. MacDougall 1998 CanLII 763 (SCC), [1998] 3 SCR 45, [1998] SCJ No 74, that s. 11(b) may apply to sentencing proceedings.[^15]
[32] The Ontario Court of Appeal in R. v. Mallozzi[^16] declined to determine if the presumptive ceiling in Jordan applies from charge to sentence.
[33] From my review of the case law, it seems to me that the presumptive ceiling set out in Jordan does not apply from charge to sentence but from charge to verdict. The time between verdict to sentence, it seems to me, is governed by MacDougall and that subject to the circumstances of a case, an accused’s section 11(b) right may be infringed between conviction and sentence.
[34] Consequently, I do not accept the submission of the defendant that the 2 months and 10 days from conviction to sentence must be added to the net time of 27 months and 21 days from charge to verdict.
[35] I therefore find that the net time from charge to verdict is 27 months and 21 days. It is this period of time that is to be used to ascertain if the defendant’s section 11(b) right has been infringed. In addition, it is the period of 2 months and 10 days that must be used to determine if the defendant’s section 11(b) right has been infringed, after conviction.
Has Mr. Patel’s section 11(b) right been infringed?
Position of the Crown and Defendant
[36] The defendant contends that his section 11(b) right has been infringed. The defendant argues that the time period that his case was in the Ontario Court of Justice, and specifically the over 6 months required to obtain the disclosure of the reconstruction report from the Crown violated his section 11(b) rights. The defendant argues that he took steps to expedite his trial. The defendant submitted that the court must take a holistic approach and by taking this approach, the defendant was not tried in a reasonable time because of the time it took to obtain the disclosure of the reconstruction report. The defendant does not argue that 2 months and 10 days from conviction to sentence is an unreasonable time that violates his section 11(b) rights.
[37] The Crown argues that the time period of 27 months and 21 days is below the presumptive ceiling mandated by Jordan. There is no evidence provided at this hearing to indicate that the defendant was not tried within a reasonable time and accordingly, the defendant’s section 11(b) rights have not been infringed.
Analysis
[38] The Supreme Court in Jordan and later reiterated in R. v. Code mandated a new framework when determining an accused’s section 11(b) rights have been infringed. The Ontario Court of Appeal in R. v. McManus summarized this new framework as follows:
[21] The Supreme Court set a presumptive ceiling of 30 months of delay for cases proceeding to trial in the Superior Court, beyond which the delay is presumptively unreasonable: Jordan, at paras. 5, 46. The Crown may rebut this presumption by establishing exceptional circumstances: Jordan, at para. 68.
[22] The first step is to calculate the total delay from the charge to the actual or anticipated end of trial, subtracting any defence delay to arrive at the “net delay”: Jordan, at para. 47; R. v. Coulter, 2016 ONCA 704, at para. 35. If the net delay exceeds the ceiling, unless the Crown can establish exceptional circumstances the delay is unreasonable and a stay of proceedings must follow: Jordan, at para. 47.
[39] Jordan also examined the situation when the delay is below the presumptive ceiling. In these cases, a delay may still be unreasonable. The onus to show that the delay is unreasonable is borne by the defence. As the Supreme Court stated:
…To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings and (2) the case took markedly longer than it reasonably should have. Absent these two factors, the s. 11(b) application must fail.[^17]
[40] The Court went further and stated:
We expect stays beneath the ceiling to be granted only in the clear cases. As we have said, in setting the ceiling, we factored in the tolerance for reasonable institutional delay established in Morin, as well as inherent needs and the increased complexity of most cases.[^18]
[41] In reviewing the facts of this case to the two things the defence must establish, I find the following:
i. Counsel for the defendant or his agent appeared at all the court proceedings.
ii. Counsel for the defendant inquired several times of the Crown when the reconstruction report would be completed and disclosed.
iii. Counsel for the defendant did agree to expedite the pretrial on October 6, 2016 to obtain a quick trial date.
[42] Defence counsel acted in a manner conducive to the statements of the Supreme Court in Jordan. Defence counsel was not obstructionist. He worked together and cooperatively with the Crown to obtain a quick turnaround trial date. Both the Crown and defence acted in a manner that kept in mind the defendant’s section 11(b) right. Both the Crown and the defence worked together to move the case along to obtain a quick trial date and complete the trial within the time allotted.
[43] Having said this, I do not equate requesting the disclosure report, cooperating or agreeing to an expedited date for a pretrial and conducting the trial in an manner that it was completed in the allotted time as “a sustained effort to expedite the proceedings” in the circumstances of this case. I do not see from the evidence provided at this hearing that the defendant took “meaningful steps to demonstrate a sustained effort to expedite the proceedings” that is different than how counsel should conduct themselves, especially after Jordan.
[44] Furthermore, I am not persuaded that the time it took to get this matter to trial is ”markedly longer than it reasonably should have”. I interpret “markedly” as meaning a situation that is clearly noticeable. I do not see that 27 months and 21 days to get this matter to the end of trial, deducting defence attributable delay, as clearly noticeable that it took an unreasonable length of time.
[45] Lastly, taking a holistic approach as submitted by the defendant, I do not see that the progress of the proceeding is a clear case of unreasonable delay. There may have been an inordinate amount of time in the Ontario Court of Justice, but any such delay was rectified in the Superior Court of Justice in that the defendant’s length of time to the end of trial was expedited. A trial date was provided that was 6 months after the pretrial date.
[46] In the end, I do not accept the submissions of the defendant and do not find that the length of time from charge to conviction was an unreasonable delay that violated his section 11(b) right to be tried within a reasonable time.
Post-Conviction Time
[47] Even though the defendant is not contending that the 2 months and 10 days from conviction to sentencing hearing violates his s. 11(b) right, I will briefly comment on this period of time.
[48] The Supreme Court of Canada in MacDougall reviewed whether an accused’s section 11(b) right was violated when the trial judge (the sentencing judge) was ill for a period of nine months, during which time the accused was waiting to be sentenced. MacDougall indicates that the protection guaranteed by section 11(b) is of a more limited scope at the sentencing stage.[^19] In the sentencing stage, the accused’s presumption of innocence no longer applies. Thus, the framework requirements for sentencing are not the same as the time framework requirements for the pre-conviction time period.[^20]
[49] MacDougall and Jordan[^21] implicitly, seem to suggest that a separate analysis is required when determining whether an accused’s section 11(b) right has been violated. An analysis that is separate from the R. v. Morin[^22] and Jordan framework.
[50] But the analysis, it seems to me, is not made in a vacuum. The time period between charge and conviction must be taken into consideration when determining if an accused’s rights under section 11(b) have been breached. It seems to me factors the court may take into consideration include not only the purpose and scope of the sentencing process as described by Moldaver J. in Jordan but in addition, factors such as: the total length of the period of time between charge and sentence, whether the accused has suffered any prejudice which would encompass whether the accused is in custody and the length of time the accused has been in custody, the serious and substance of the conviction in contrast to the length of time the accused has been in custody, the reason for the length of time, time required by the court to deliberate and render reasons, time required by both the Crown and defendant to prepare for the sentencing hearing, the necessity of a Pre-Sentence Report and a Victim Impact Statement and whether the length of time is a marked departure in that specific judicial jurisdiction. Taking these and other factors into consideration, the court must determine if the length of time between conviction and sentencing violated the accused’s right to be tried within a reasonable time.
[51] In this present situation, Mr. Patel was not in custody. The length of time for net delay is 27 months and 21 days. A Pre-Sentence Report was requested by the defendant. The Crown required time to obtain a Victim Impact Statement. Both counsel required time to prepare for the sentencing hearing. The length of time is either 2 months and 10 days from conviction to sentencing hearing or 3 months and one day from conviction to delivery of the sentence.[^23] Notwithstanding, the concession of the defendant that there is no section 11(b) issue concerning the length of time between conviction and sentence, I would not have come to the conclusion, in any event, that either 2 months and 10 days or 3 months and one day are an unreasonable length of time to have a sentencing hearing and to render the sentencing decision, violated Mr. Patel’s right to be tried in a reasonable time.
Disposition
[52] As already stated, I dismiss the defendant’s application for an order setting aside the conviction and an order for a stay.
Justice P.W. Sutherland
Released: October 2, 2017
CITATION: R. v. Patel, 2017 ONSC 5827
NEWMARKET COURT FILE NO.: CR-14-07160-00
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
– and –
Rakesh Patel
Applicant/Defendant
REASONS FOR DECISION
RE: APPLICATION UNDER section 11(b) OF THE CHARTER
Justice P.W. Sutherland
Released: October 2, 2017
[^1]: 2016 SCC 27, [2016] 1 S.C.R. 631 [^2]: Transcripts of the pretrial on October 3, 2016 at p. 3. [^3]: Transcripts of the pretrial on October 3, 2016 at p. 6. [^4]: 1991 CanLII 7073 (ON CA), [1991] OJ No. 883, 3 O.R. (3d) 238 (CA), also see R. v. Warring, 2017 ABCA 128 [^5]: Ibid. pp. 3 and 4. [^6]: Ibid. p. 4. [^7]: Supra, note , para. 61 [^8]: R. v. Gandhi 2016 ONSC 5612 para.20; R. v. Tetreault 2017 ABQB 349, para 8 [^9]: 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45 [^10]: 2017 ONSC 710, [2017] O. J. No. 623. paras. 54-56 (SCJ) [^11]: 2017 ONSC 3090 (SCJ) [^12]: Ibid, para. 23. [^13]: Supra, note 8, para 16. [^14]: Ibid. para.14. [^15]: Supra, note 9. [^16]: 2017 ONCA 644 , paras 49 and 50 [^17]: Supra, note 1, para 82 [^18]: Ibid., para. 83. [^19]: Supra, note 9, para 32. [^20]: Ibid, para. 47. [^21]: In footnote 2, Moldaver J. does indicate that certain sentencing proceedings require significant time to complete. [^22]: 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771. [^23]: An agreed return date of October 6, 2017 has been scheduled.