Court File and Parties

COURT FILE NO.: 24/17 AP DATE: 20171117 SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL TORONTO REGION

BETWEEN:

HER MAJESTY THE QUEEN Appellant – and – VERA KRIKUNOVSKI Respondent

Counsel: Martin Sabat, for the Appellant Michael Bryant, for the Respondent

HEARD: October 19, 2017

Byrne J.

Reasons for Decision

[1] This is a Crown appeal from a stay of proceedings for a violation of the right to a trial within a reasonable time pursuant to 11(b) of the Charter.

[2] On September 7, 2015, the respondent was arrested and charged with Impaired Driving and Over 80. The trial was set to commence on September 19 and 20, 2016. On the first day of trial, the Crown requested an adjournment because the qualified breath technician had suffered a heart attack earlier in the month and could not attend court due to a follow-up medical examination. On September 26, 2016, a new trial date of April 11 and 12, 2017 was set. On March 3, 2017, the respondent brought an application in the Ontario Court of Justice alleging that her 11(b) Charter rights had been violated. The charges were stayed.

[3] Although this case is technically transitional in that the arrest, charges and setting the first trial date were completed in a pre-Jordan environment, the almost seven month delay between the first and second trial dates occurred in a post-Jordan environment and that time frame is the focus of this appeal.

[4] The Crown appeals the stay and asserts that the trial judge failed to properly apply the Jordan framework. The Crown submits the trial judge erred by:

(i) Failing to consider the delay caused by defence; (ii) Failing to turn his mind to the presumptive ceiling and the burden of proof; and (iii) Failing to properly consider the exceptional circumstance of the officer’s medical condition.

Analysis

[5] I think it is helpful to start with a brief overview of the Jordan guidelines.

[6] The first step in the Jordan framework is to calculate the total delay from the charge to the end of trial and then subtract any defence delay.

R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 66.

[7] The next step in the Jordan framework is to determine whether the remaining delay, that is the delay not caused by the defence, falls above or below the presumptive ceiling.

R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 67.

[8] The presumptive ceiling for cases in the Ontario Court of Justice is 18 months.

R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 46.

[9] If the total delay exceeds the ceiling, the delay is presumptively unreasonable and the onus is on the Crown to establish presence of exception circumstances. Absent exceptional circumstances, the delay will be deemed unreasonable and a stay will follow.

R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 47.

[10] If the total delay falls below the presumptive ceiling, in this case 18 months, then the onus switches to defence to show that the delay is unreasonable. To do so, the defence must establish: (1) that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) that the case took markedly longer than it should have.

R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 48.

[11] In this case, the parties agree that the total delay to the anticipated trial was 19 months and four days.

[12] The parties disagree on how the almost seven months of delay from September 19, 2016 to April 12, 2017 should be allocated.

[13] At the Ontario Court of Justice and in their materials filed on appeal, the Crown took the position that one month of delay should be attributed to the defence. The Crown now wishes to revise that position and advances for the first time that one month and 29 days of delay should be attributed to the defence. The respondent continues to contend that no delay should accrue to the defence and resists the Crown’s proposed revision.

[14] I am not prepared to allow the Crown to revise its position for the purposes of appeal. The focus of this review, absent a fresh evidence application, must be limited to the evidentiary record on the application and the reasons that followed. The proposed revision will not be permitted.

[15] The Crown submits that the trial judge failed to calculate or subtract the defence delay from the overall delay as is required as a first step in Jordan and, in doing so, failed to address the critical issue of onus.

[16] In this case, September 19, 2016 was the first trial date. The next trial date offered by the Crown following the adjournment was October 24, 2016, one month and five days after the first trial date. Defence was not available on that day. They had a two week trial scheduled in the Superior Court of Justice.

[17] Crown counsel urged the trial judge to allocate that delay to the defence and deduct it from the overall delay. She argued that would then bring the overall delay below the 18 month presumptive ceiling and the onus would shift to the defence to prove that the delay was unreasonable.

[18] The trial judge made no mention of this step or calculation in his oral judgment. That does not mean, however, that he failed to consider the issue. It is apparent from his judgment that he did not find any fault with the efforts and actions of the defence. It is implicit in his findings that he did not attribute any delay to the defence. While it is true that he did not specifically articulate the Jordan steps or guidelines, it does not mean he did not apply them.

[19] The application itself was fast paced and dynamic. The trial judge gave his oral decision on the heels of counsel submissions. While it lacked precision, that alone does not create an error in law. That oral decision has to been looked at its entire context. In my view, the basis for the trial judge’s reasons is very much informed by the evidentiary record and the submissions of counsel. The lively and pointed dialogue that preceded the trial judge’s reasons demonstrates that he was very much alive to the Jordan guidelines and the critical issues attached to this particular application.

[20] It is clear from the trial judge’s reasons that he was focused on the efforts and actions made by the Crown in attempting to secure the earliest second trial date. It is important to recall that at the time of setting the second trial date, the Crown had already implemented new Jordan case management strategies. Ultimately, the trial judge had found clear latches on behalf of the Crown. He found that the Crown had not complied with these new strategies. He found the Crown had not taken reasonable steps to avoid the delay and, as a result, the case simply fell through the cracks.

[21] It is implicit in his reasons, when read as a whole having regard to the issue raised, the evidentiary record and the submissions of counsel, that the trial judge found that delay was above the 18 month presumptive ceiling and the burden of proof reasonableness was on the Crown.

[22] I find no error.

[23] Crown counsel argues that the trial judge failed to properly consider the “exceptional circumstance” that arose in this matter.

[24] On September 6, 2016, an essential Crown witness, the qualified breath technician (“QBT”) suffered a heart attached and was hospitalized. On September 19, 2016, the first day of trial, the QBT had a follow-up medical appointment and could not attend the trial. The Crown requested an adjournment.

[25] In Jordan, the Supreme Court of Canada defined exceptional circumstances as follows:

69 Exceptional circumstances lie out the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable; and Crown counsel cannot reasonably reasonable remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.

70 It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful – rather, just that it took reasonable steps in an attempt to avoid the delay.

71 It is obviously impossible to identify in advance all circumstances that may qualify as “exceptional” for the purposes of adjudicating a s.11(b) application. Ultimately, the determination of whether circumstances are “exceptional” will depend on the trial judge’s good sense and experience. The list is not closed. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.

R. v Jordan, supra at paras. 69-71

[26] In this case, the trial judge acknowledged that the medical issue that arose were unforeseeable and justified the adjournment of the trial. The concern for the trial judge were the steps the Crown took, more accurately failed to take, after the adjournment, to secure an early trial date. As previously stated, he found the Crown was deficient in that regard.

[27] I am mindful that the trial judge did not specifically calculate how much delay would be attributed to this discrete event, nor did he have to. It is obvious from his judgment that despite this event, he was not convinced that the Crown took all the reasonable available steps after the event to secure the earliest possible trial date.

[28] I find no error.

Conclusion

[29] For the reasons stated, appeal dismissed.

Byrne J.

Released: November 17, 2017

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN Appellant – and – VERA KRIKUNOVSKI Respondent REASONS FOR DECISION BYRNE, J. Released: November 17, 2017