R. v. Ethier & Jones, 2017 ONSC 6230
CITATION: R. v. Ethier & Jones, 2017 ONSC 6230
COURT FILE NO.: 13-G30422; 13-G3-427
DATE: 2017/10/18
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
Charles Ethier Applicant
Ryan Jones Applicant
COUNSEL:
R. Sonley, J. Legrand and M. Jarmoc for the Crown (Respondent)
D. Condo for Charles Ethier (Applicant)
J. Langevin for Ryan Jones (Applicant)
HEARD: in Ottawa August 10, 11 and 14, 2017
ADDENDUM TO REASONS FOR DECISION (Charter Motion, Section 7 & 11(d) released August 28, 2017)
C.T. Hackland J.
[1] In the court’s August 28, 2017 reasons herein, the motion brought by each accused for a stay of proceedings or a mistrial was dismissed. This motion was brought on the basis of an argument that non-disclosure by the Crown, of audio intercepts and certain other records, breached the accused’s fair trial rights under sections 7 and 11(d) of the Charter.
[2] As part of this Charter motion, the accused Ethier also re-newed his motion for a stay based on trial delay allegedly violating his sec.11(b) Charter rights. This addendum addresses the re-newal of Ethier’s sec 11(b) motion.
[3] As part of the court’s January 27, 2017 reasons for judgment convicting Ethier and Jones of cocaine trafficking and conspiracy to traffic cocaine, the section 11(b) trial delay Charter motions brought by both accused were also dismissed, see paragraphs 104-142 (reported at 2017 ONSC 564).
[4] I will not repeat the analysis in detail. Essentially, applying the framework in R. v. Jordan, 2016 SCC 27, 2016 S.C.C. 27, the elapse of time to the end of trial was 38 months, reduced to 32 months after deducting defence delay and exceptional circumstances. The court then considered the delay to be reasonable both because this was a complex case and due to application of the transitional exception.
[5] When the court’s reasons for judgment and the sec.11(b) ruling were delivered on January 27, 2017, a date for sentencing submissions was set for March 31, 2017. This delay was required to obtain pre-sentence reports.
[6] On March 31, 2017 an adjournment was sought by the defence in order for them to obtain and review significant amounts of electronic documentation from the Crown, the non-disclosure of which they argued constituted a breach of their respective client’s fair trial rights. As noted in paragraph one, above, this motion was argued on August 10, 11 ad 14 and was dismissed on August 28, 2017.
[7] On August 28, 2017 a new date was set for sentencing submissions, being Wednesday October 25, 2017. This two month delay was due to unavailability of defence counsel for any earlier date.
[8] It can be seen that the time delay occurring after the accused were convicted is 9 months: (2 months to obtain pre-sentence reports, 5 months to prepare for, argue and obtain judgement on the Stinchombe/Charter motion, and 2 months to get new sentence submission dates).
[9] I am not prepared to re-visit the accused’s section 11(b) ruling handed down at the conclusion of trial. The Jordan time guidelines have no application after the end of the trial, see R. v. Picard, 2017 ONCA of para 26. Moreover, the subsequent elapse of time is all reasonable and is as brief as it could have been for the purposes explained in the previous paragraphs. Of particular note is that 5 months of delay occurred due to the accused’s Stinchcombe/Charter application on which they were not successful.
[10] For these reasons, the renewed sec 11(b) Charter application by the accused Ethier is dismissed.
Mr. Justice C.T. Hackland
Released: October 18, 2017
CITATION: R. v. Ethier & Jones, 2017 ONSC 6230
COURT FILE NO.: 13-G30422; 13-G3-427
DATE: 2017/10/18
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
– and –
Charles Ethier Applicant
Ryan Jones Applicant
addendum to reasons for decision (charter motion, section 7&11(d) released August 28, 2017)
Hackland J.
Released: 2017/10/18