CITATION: R. v. Jackson and Went, 2017 ONSC 5925

COURT FILE NO.: CrimJ(F) 1326/15

DATE: 2017 10 06

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

S. Weinstock, for the Respondent

Respondent

• and -

CHARMAINE JACKSON and JOANNE WENT

J. Hue, for the Applicant Charmaine Tasha Jackson; N. Chaabane for the Applicant Joanne Went

Applicants

HEARD: September 15, 2017

REASONS FOR JORDAN RULING

Justice Thomas A. Bielby

1Before me are applications to stay the charges against both the accused on the grounds that their 11(b) Charter Rights have been violated.

2Both were arrested on March 4, 2014, at the Pearson International Airport for allegedly importing cocaine into Canada, contrary to section 6(1) of the Controlled Drug and Substances Act.

3The applicants rely on the decision in R. v. Jordan 2016 SCC 27, which was released by the Supreme Court of Canada on July 8, 2016. Therein the Court dramatically changed the approach as to how we determine the issue of whether an accused was tried or will be tried within a reasonable period of time. A new framework was implemented in regard to section 11(b) rights.

4As noted by Fairburn J. (as she then was) in R. v. Ny and Phan 2016 ONSC 8031, paragraph 15,

“Jordan reminds us that timely justice is a right of all and it is the responsibility of each justice participant to move cases forward in an efficient and timely way.”

5In matters proceeding to trial in the Superior Court of Justice, a ceiling of 30 months has been imposed and which is calculated from the charge to the date of the trial completion or the anticipated date of completion. The ceiling represents the outer limits beyond which unreasonable delay will be presumed (Ny, para. 17).

6From this period of time is deducted any defence delay resulting in the “net delay”. If the net delay exceeds the 30 month ceiling, the onus is on the Crown to establish the delay was reasonable due to “exceptional circumstances” (If the delay falls below the ceiling, the onus is on the defence to prove the time to trial is unreasonable).

7If the Crown fails in its onus the charges are to be stayed.

8The trial is to commence on October 17, 2017, and is expected to take seven days to complete (October 24, 2017). Accordingly, the length of time from the date of their arrest to the anticipated date of the completion of the trial, by my count, is 43 months and 20 days (43.66 months).

9There are two types of defence delay. Delay can arise from defence waiver or delay caused solely by the conduct of the defence (Jordan, at para. 63), which includes conduct that constitutes a deliberate and intentional tactic used to effect delay.

10In this matter there are no periods in which delay was waived. There were however periods of delay caused soley by the defence as noted hereinafter.

11In the Jordan decision there were multiple accused, some of whom caused significant delay in proceeding to trial. It was determined that such delay cannot be directly visited on a co-accused who is not responsible for the delay. As stated in the Ny decision, at paragraph 38,

“It is a choice that cannot be directly visited on a co-accused in the sense that the net delay faced by the co-accused will change.”

12The Crown has to be aware of the issue of delay and consider the options available to the Court to ensure that all accused are tried in a reasonable period of time. One such option is severing the accused and having separate trials, keeping in mind however there are, “sound policy reasons for conducting joint trials” (Ny, para. 42).

13In R. v. Vassell 2016 SCC 26, at para. 6 the Court stated that, “delay cause by proceeding against multiple co-accused must be accepted as a fact of life and must be considered in deciding what constitutes a reasonable time for trial.”

14As stated, if the net delay is more than 30 months the Crown can rebut the presumption of unreasonable delay by demonstrating the existence of exceptional circumstances. The central defining feature of such circumstances is that they lie outside of the Crown’s control. Exceptional circumstances fall into two categories, discrete events and particularly complex cases (Ny, para. 26).

15As noted at paragraph 72 of the Jordan decision, medical or family emergencies whether on the part of the Crown, the accused or important witnesses would be examples of discrete events.

16The matter before me cannot be considered particularly complex. Both applicants are charged with one offence, being the importation of a controlled substance. It is alleged the drugs were discovered by officers of the Canada Border Services in the applicants’ suitcases. These types of trials are routinely before the courts in Brampton and generally the only issue for the judge and/or jury is whether or not the accused had knowledge of the drugs.

17The only possible consideration that adds to the complexity of this matter is the fact that the matter is to proceed as a joint trial for the two applicants. When the dates of the various court attendances were determined, they had to take into account the availability of both defence counsel, as well as the Crown. However, such considerations are common and fall well short of establishing an exceptional circumstance based on complexity.

18We are left then with the need to determine if there are any circumstances in this matter that can be considered as discrete events.

19Finally, since these charges were laid prior to the release of Jordan, this matter is considered a transitional case and a further exceptional circumstance can be taken into account if the delay can be justified because of the parties’ reliance on the law as it existed at the time (pre-Jordan).

20From paragraphs 96 and 97 of Jordan I quote,

“First for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision. This transitional case exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified base on the parties’ reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice. For example, prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework. For cases currently in the system, these considerations can therefore inform whether the parties’ reliance on the previous state of the law was reasonable. Of course, if the parties have had time following the release of this decision to correct their behaviour, and the system has had time to adapt, the trial judge should take this into account.

Moreover, the delay may exceed the ceiling because the case is of moderate complexity in a jurisdiction with significant institutional delay problems. Judges in jurisdictions plagued by lengthy, persistent, and notorious institutional delays should account for this reality, as Crown counsel’s behaviour is constrained by systemic delay issues…This transitional delay exceptional circumstance recognizes that change takes time, and institutional delay – even if it is significant – will not automatically result in a stay of proceedings.”

21As noted above, it cannot be said that this is a case of even “moderate complexity”.

22R. v. Cody 2017 SCC 31, notes that in regards to transitional exceptional circumstances, they must justify the delay (para. 25).

23Prior to Jordan, the Supreme Court of Canada decision in R. v. Morin (1992) 1992 CanLII 89 (SCC), 1 S.C. R. 771 sets out the guiding principles in regards to section 11(b) applications.

24Both defence counsel submit that the delay in this matter runs afoul of Morin. They argue this matter took 20 months to get to the Superior Court of Justice whereas Morin suggests an 8-10 month timeframe. They also submit that the time it has taken to get to trial at the Superior Court level also falls outside the Morin guidelines.

25These conclusions were not seriously contested by the Crown who has the burden of proving such exceptional circumstances. While I accept that there would be different considerations in play in a Morin calculation, I accept that the time it has taken this case to get to trial does not meet the Morin limits.

26Accordingly, it cannot be argued that the release of the Jordan decision automatically transformed this case, which would have previously been considered one of reasonable delay into an unreasonable one (Jordan, para. 102).

27I am left therefore with considering delay caused by the applicants and whether there were any discrete events. Counsel in their submissions focused on certain periods of time in regards such circumstances.

28The first period to consider is from March 4, 2014 to August 29, 2014, which represents the date of arrest to the date for the Ontario Court pre-trial (JPT). During this period the Crown was completing disclosure and the matter was before the Court six times prior to the JPT. One of the items of disclosure was a surveillance video. A copy of the video had been given to counsel for Ms. Jackson by June 27, 2014, but was not provided to Ms. Went’s counsel until August 15, 2014.

29The Crown submits that counsel for Ms. Went would not set a JPT date until she received this disclosure. Once received a JPT was scheduled for August 29, 2014.

30The Crown submits that this period should be considered defence delay. A date for JPT could have been set pending final disclosure. Counsel for Ms. Went submits that it was the Crown who suggested the matter be adjourned until disclosure was completed. Further, the Crown did not provide any reason as to why disclosure was made to one of the accused and not the other.

31While I recognize case authority that notes dates can be set before the completion of disclosure, I will not consider any of this time to be defence delay. Both accused ought to have received disclosure at the same time and I accept that the Crown was content with the numerous adjournments pending disclosure.

32The next period to be considered is the time it took to complete the preliminary hearing/discovery portion of the proceedings.

33On September 12, 2014, the defence elected trial by judge and jury and a preliminary hearing date of April 13, 2015, was set based upon an estimation that it could be concluded in one day. On April 13th, only one witness was completed. Thereafter it was agreed by defence counsel that the matters should proceed by way of discovery, conceding committal. The discovery process was not completed until November 18, 2015.

34Thereafter the matter was remanded to a Superior Court of Justice assignment court on January 22, 2016.

35I accept the submissions of defence counsel that they, on behalf of the applicants expedited the process by agreeing to convert the process from a preliminary hearing to a discovery.

36Counsel for the Crown submits that the failure to book more time for the preliminary hearing could be categorized as a miss-estimation. The Crown attorney’s input into this estimate of time is critical. He or she determines what and how many witnesses are to be called, to the extent necessary to have the accused committed to trail.

37While the Crown submits that there is no evidence before the Court, as might be found in the transcripts, to suggest why the matter moved from a preliminary hearing process to a discovery process, it was also conceded that it was a responsible decision on the part of defence counsel.

38I find that there is no defence delay over the time period for preliminary hearing/discovery to be completed.

39Another significant period of time in issue is from February 16, 2016, when a Superior Court JPT was to be conducted and a trial date set, to July 22, 2016, a period identified by all parties. On February 16, 2016, the Court was advised that for medical reasons, counsel for Ms. Jackson had to withdraw from the case. She was then required, through no fault of her own, to apply to Legal Aid Ontario for authorization to change lawyers, a process that took some time, perhaps as much as six weeks. Thereafter she had to approach and retain new counsel. There were five court appearances before new counsel was retained and who appeared in court, for the first time on July 22, 2016, a period of 5 months, 6 days. The matter was put over to September 6, 2016, for a judicial pre-trial and the fixing of a trial date.

40I agree with the Crown that the need to change counsel can be considered a discrete event. The need to retain new counsel was completely out of the control of Ms. Jackson and was certainly outside of the control of the Crown. I do take some issue however with the length of time required to retain counsel. I will attribute 3 months to the discrete event and will deal with it by deducting 3 months from the net delay. The balance of the time, 2 months, 6 days (2.2 months), will be considered delay on the part of Ms. Jackson.

41Generally when court dates are sought to complete the various steps within a criminal proceeding, the dates must be convenient and available to all counsel. Dates offered by the Court may be unacceptable by any combination of Crown and defence counsel.

42In reviewing the chronological court appearances in this matter, as noted previously, I find there were no efforts on the part of either defence counsel which would suggest tactical delay. The busy schedules of all the participants are a fact of judicial life.

43There were no periods of defence inaction that would amount to defence conduct that was not legitimate (R. v. Cody 2017 SCC 31, para. 33).

44I do recognize that defence delay also includes periods in which the Court and the Crown are ready to proceed and the defence is not (Jordan para. 64). However from my review of the history of this matter, and apart from my comments above, there were some minor delays resulting from the need to co-ordinate schedules of counsel. An example of this might be the 14 days it took from the completion of the discovery process to the first appearance in the Superior Court of Justice. I consider this to be contemplated within the 30 month ceiling.

45Another period of time to consider is from September 6, 2016, when the parties appeared in assignment court and set a trial date of June 19, 2017. The Court offered multiple dates available commencing in January, 2016, but the date set for trial was a date available to the court and to all counsel for what was then estimated to be a two week trial.

46I have reviewed the parties’ chronologies for that period and find that the delay attributable to Ms. Jackson was 35 days (1.13 months) and to Ms. Went, 4 months.

47The final period of time under consideration is from June 19, 2017, the date the trial was to commence to October 17, 2017, the current trial date. The matter could not commence on the original trial date because the Crown had a family medical emergency. I accept this circumstance was a discrete event, completely out of the control of the Crown. It was not foreseeable by the Crown.

48A new trial date of October 17, 2017, was selected although the Court proposed new dates as early as August 8, 2017. I accept the submissions of the Crown that the period from June 19, 2017 to August 8, 2017, was the timeframe for the discrete event, being 1 month, 20 days (1.66 months) and which will be taken into consideration by deducting the time from the net delay. The delay thereafter is attributed to the Crown.

49Accordingly, the period of net delay in regards to Ms. Jackson is 40.33 months and to Ms. Went, 39.66 months.

50I have determined that there are two periods of exceptional circumstances which warrant further reductions of the ceiling (3 months and 1.66 months). In reaching this decision I have not lost sight of the impact these court proceedings have on the applicants as individuals. The arrest of both applicants and their terms of bail have for obvious reasons adversely affected their abilities to work, travel and generally enjoy life and celebrate family. However, circumstances often arise in which the persons affected have no control and such occurrences are to be considered matters of exceptional circumstance in accordance with the Jordan decision.

51After deducting 4.66 months attributable to the exceptional circumstances, the final time to trial in regards to Ms. Jackson is 35.67 months and for Ms. Went, 35 months.

52Therefore, after considering the exceptional circumstances and their impact on the net delay, I find that the delay in this matter is not reasonable. The Crown has not discharged the onus of establishing that the trial will be completed with a reasonable period of time. The applicants’ section 11(b) Charter rights have been violated.

53The charge of importing cocaine against both Charmaine Jackson and Joanne Went are stayed.

Bielby J.