CITATION: R. v. Nyznik, 2017 ONSC 0069
COURT FILE NO.: CR-16-00000396-000
DATE: 20170104
ONTARIO
SUPERIOR COURT OF JUSTICE
Toronto Region
B E T W E E N:
LESLIE NYZNIK, SAMEER KARA & JOSHUA CABERO
H. Black Q.C., for the applicant, Leslie Nyznik
A. Gold, for the applicant, Sameer Kara
P. Ducharme, for the applicant, Joshua Cabero
Applicants
- and -
HER MAJESTY THE QUEEN
P. Perlmutter & S. Reid, for the respondent
Respondent
HEARD: December 16, 2016
Nordheimer J.:
[1] The applicants are each charged with a single count of sexual assault. The applicants bring this application, under s. 11(b) of the Canadian Charter of Rights and Freedoms, for a stay of the prosecution on the basis of delay.
Background
[2] The applicants are all police officers employed by the Toronto Police Service. The complainant is a Parking Enforcement Officer, also employed by the Toronto Police Service. On the evening of January 16, 2015, leading into the morning of January 17, 2015, the applicants, the complainants, and others, were involved in a social function known as “Rookie buy night”, arranged by members of 51 Division. The participants engaged in drinking at a number of different locations. Eventually, some of the participants, including the applicants and the complainant, arrived at the Westin Harbour Castle Hotel, where a room had been booked. The applicant, Kara, had arrived at the hotel some time earlier than the others.
[3] It is alleged that, while at the hotel, the applicants sexually assaulted the complainant. It is further alleged that they did so while the complainant was incapacitated as a result of her consumption of alcohol. On January 26, 2015, the complainant reported the assault to the police. On February 19, 2015, the applicants were arrested.
[4] The applicants made various appearances in the Ontario Court of Justice. Issues of disclosure were raised throughout these appearances. The prosecution requested that the applicants elect their mode of trial, but the applicants declined on the basis that they could not make an informed decision until the outstanding disclosure was received.
[5] On June 23, 2015, a judicial pre-trial was set for September 24, 2015. This date was the earliest date that all defence counsel were available. On September 24, 2015, the judicial pre-trial was held. Also on this day, the applicants elected trial by judge and jury. A preliminary inquiry date was set for July 20, 2016.
[6] On November 30, 2015, the prosecution expressed concern about a potential conflict of interest arising from the fact that then counsel for the applicant, Kara, was planning on joining the law firm that was then counsel for the applicant, Cabero. On January 2, 2016, then counsel for Kara confirmed that he was joining the law firm that was counsel for Cabero.
[7] On January 13, 2016, the prosecution requested that one, or both, of the then counsel for Kara and Cabero, remove themselves from the record. Also on that date, the prosecution advised that they would be seeking the consent of the Attorney General for a direct indictment.
[8] On January 14, 2016, counsel from the Crown Law Office – Criminal sent a letter to counsel for the applicants, confirming the request for the consent of the Attorney General for a direct indictment, and inviting any submissions that counsel might wish to make. In response, counsel for Nyznik asked for a copy of the request and supporting material. Counsel from the Crown Law Office – Criminal declined to provide the materials sought on the basis that they were privileged. On January 27, 2016, counsel for Nyznik provided his submissions in response to the direct indictment request.
[9] Also on January 27, 2016, the prosecution served their motion seeking to remove then counsel for Kara and Cabero from the record on the basis that they had a conflict of interest. The motion was initially returnable on February 11, 2016. On February 11, 2016, the conflict motion was adjourned to April 21, 2016 for hearing.
[10] There had been a judicial pre-trial scheduled for February 19, 2016 to address the upcoming preliminary inquiry. Counsel for the applicants asked that the judicial pre-trial be adjourned in light of the conflicts motion, and in light of the pending request for a direct indictment. It was eventually agreed to adjourn the judicial pre-trial to May 3, 2016.
[11] On April 21 & 22, 2016 the conflicts motion was argued. A decision was reserved.
[12] On June 30, 2016, the prosecution advised counsel for the applicants that consent had been obtained for the direct indictment. As a consequence, the case was put into the Special Assignment Court in the Superior Court of Justice on July 20, 2016. The dates set aside for the preliminary inquiry were vacated.
[13] On July 15, 2016, the reasons on the conflict motion were released. Counsel for Kara and Cabero were ordered removed from the record. On July 19, Mr. Ducharme advised that he had been retained by Cabero. On July 25, Mr. Gold advised that he had been retained by Kara.
[14] On July 20, 2016, a judicial pre-trial in the Superior Court was set for September 16, 2016. A judicial pre-trial was held on that date. Trial dates in January 2017 were offered by the court for a four week trial. Defence counsel advised that they were not all available until May 29, 2017. The trial was then set for May 29, 2017 for four weeks.
[15] The above set out the basic facts that I believe that I need to recite for the purposes of this application. The total time between the date of the arrest, and the anticipated date for the completion of the trial, is twenty-eight months and four days.
Analysis
[16] On July 8, 2016, the Supreme Court of Canada released its decision in R. v. Jordan, 2016 SCC 27, [2016] S.C.J. No. 27 that significantly changed the approach to be taken to applications for a stay of proceedings arising from delay that constitutes a breach of an accused person’s rights under s. 11(b) of the Charter.
[17] Of particular significance is the fact that the decision in Jordan set two “ceilings” above which proceedings are presumed to violate s. 11(b). More specifically, the majority decision in Jordan said, at para. 46:
At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry).
[18] In this case, the applicants submit that the appropriate ceiling to be applied is 18 months. Indeed, the applicants acknowledge that this submission is the “crux” of their application.[^1] They contend that this is the appropriate ceiling because the prosecution obtained a direct indictment and thereby deprived the applicants of their right to a preliminary inquiry. As a consequence, the applicants say that the prosecution does not get the benefit of the higher ceiling generally applicable to “two-stage” proceedings.
The proper analytical approach post-Jordan
[19] Before turning to the central issue, I want to address what I view as the proper analytical approach to be taken to applications made under s. 11(b) post-Jordan. In order to determine such applications, it is unnecessary, in my view, to engage in a detailed analysis of the time periods that have occurred, in the course of a prosecution, with a view to categorizing them as Crown delay, defence delay, inherent time requirements, institutional delay, or other causes. While that time consuming and detailed analysis has been accepted as necessary, at least in this Province since the decision in R. v. Schertzer, 2009 ONCA 742, [2009] O.J. No. 4425 (C.A.), it now appears clear from Jordan that those efforts are no longer essential to properly determine an application under s. 11(b). In fact, it seems clear from Jordan that the majority has cautioned against engaging in such “minute accounting”.
[20] I draw that conclusion from the following criticisms of that detailed and time-consuming approach, often referred to as the Morin framework, that appear in the majority’s reasons in Jordan:
The absence of a consistent standard has turned s. 11(b) into something of a dice roll, and has led to the proliferation of lengthy and often complex s. 11(b) applications, thereby further burdening the system. (para. 32)
Finally, the Morin framework is unduly complex. The minute accounting it requires might fairly be considered the bane of every trial judge’s existence. Although Cromwell J. warned in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, that courts must avoid failing to see the forest for the trees (para. 18), courts and litigants have often done just that. Each day of the proceedings from charge to trial is argued about, accounted for, and explained away. This micro-counting is inefficient, relies on judicial “guesstimations”, and has been applied in a way that allows for tolerance of ever-increasing delay. (para. 37)
Trial judges should not parse each day or month, as has been the common practice since Morin, to determine whether each step was reasonably required. Instead, trial judges should step back from the minutiae and adopt a bird’s-eye view of the case. (para. 91)
Third, the new framework reduces, although does not eliminate, the need to engage in complicated micro-counting. While judges will still have to determine defence delay, the inquiry beneath the ceiling into whether the case took markedly longer than it reasonably should have replaces the micro-counting process with a global assessment. (para. 111)
[21] There is a further reason why, in this case, such “micro-counting” is unnecessary, and that is because the issue raised essentially succeeds, or fails, on the central question as to which ceiling applies. If it is the 18 months ceiling, then the delay in this case exceeds that ceiling by more than ten months. Despite the prosecution’s efforts to do so, I would not conclude that the prosecution can reduce that delay below 18 months on account of defence delay or exceptional circumstances. If the ceiling is 30 months, then the delay in this case is below that ceiling by almost two months. The applicants do not contend that they can achieve a finding of unreasonable delay, notwithstanding that the 30 months ceiling has not been reached.
The appropriate ceiling
[22] As I mentioned above, the applicants contend that the 30 months ceiling only applies to prosecutions that proceed through a preliminary inquiry and then a trial in the superior court. The applicants further contend that the quid pro quo for the higher ceiling, and the corresponding benefit that the prosecution is said to gain in such cases, is the benefit to the accused person of a preliminary inquiry. The applicants say that, if the accused person is denied the benefit of a preliminary inquiry, then the prosecution should be denied the benefit of having more time to bring the accused person to trial. The applicants acknowledge that there is no authority, to which they can point, that supports this approach.
[23] There are problems with the applicants’ central contention. First, it appears to be inconsistent with the wording used by the majority in Jordan to describe the presumptive ceilings. The majority clearly says that the presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court. One can take from that choice of words that it is the court, in which the offence is being tried, that dictates the appropriate ceiling. Once the applicants elected trial by judge and jury, this case was “going to trial” in the Superior Court of Justice, and thus attracts the 30 months ceiling.
[24] Second, I would note that the Supreme Court of Canada has always taken the position that cases tried in a superior court would attract a longer period of reasonable delay, under s. 11(b), than cases tried in a provincial court. They have expressed that view since, at least, R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771 where it was said that the inherent time requirements for a “two-stage” prosecution were necessarily longer than for a “one-stage” prosecution. At no point, however, has the Supreme Court of Canada ever said that a preliminary inquiry must actually occur in order to create, or justify, the two-stage approach. Rather, it is the recognition that time will inevitably be spent, in pursuit of that end, or that first stage, and thus warrants an overall period of time to trial that is longer.
[25] Third, the applicants’ contention fails to take into account that the Attorney General can direct an indictment at any time whether before, during, or after, the preliminary inquiry. In response to that reality, the applicants took the position that, if the direct indictment occurred during, or after, the preliminary inquiry, the 30 months ceiling would apply but, if it occurs before, the 18 months ceiling applies on the basis that, in the latter case, the accused person has received no benefit from the preliminary inquiry whereas, in the former case, the accused has received at least some benefit. I fail to see any compelling logic, from the s. 11(b) perspective, in that distinction. The s. 11(b) analysis is concerned with determining the appropriate allotment of time to get a case tried and, as I have earlier noted, considerable time is spent getting to a preliminary inquiry regardless of whether it ultimately happens.
[26] Fourth, it is the accused person, not the prosecution, that determines whether there will be a preliminary inquiry: Criminal Code, s. 536(4). That statutory entitlement flows from the accused person’s election as to his/her mode of trial. The accused person can, of course, waive the preliminary inquiry by consenting to his/her committal for trial. Since the applicants’ central contention is that, if no preliminary hearing occurs, the 18 months ceiling applies, the logical extension of the applicants’ position would be that, if the accused person was to consent to his/her committal for trial prior to the conduct of the preliminary inquiry, the 18 months ceiling would then be invoked. The mischief that an accused person could create, in that scenario, should be apparent.
[27] I accept that there was undoubtedly the assumption, lying behind the higher ceiling for cases tried in a superior court, that more time would be necessary to reach trial because a preliminary inquiry would actually take place. Indeed, that would be the usual result since direct indictments, at least in this Province, were rare. It does not follow from that assumption, however, that the fact that a preliminary inquiry may not, in fact, occur, in a particular case, should result in a change regarding the appropriate ceiling to be applied. There are different reasons why a preliminary inquiry may not occur, and the preferring of an indictment is but one of them.
[28] The applicants complain that there is an inherent unfairness in permitting the prosecution to, on the one hand, deny the accused person his/her preliminary inquiry but, on the other hand, extend the permissible time in which the prosecution is constitutionally permitted to bring that accused person to trial. Accepting, for the purposes of this argument only, that there is an unfairness in denying an accused person his/her preliminary inquiry in the post-Stinchcombe regime, it seems to me that that unfairness arises from s. 577 of the Criminal Code, that permits an Attorney General to prefer an indictment. It does not relate to an accused person’s constitutional right, under s. 11(b), to be tried within a reasonable time nor does it relate to the judicially created framework against which that constitutional right is to be tested. In addition, courts should also be cautious about placing potential impediments, to the exercise of the Attorney General’s power under s. 577, that are not contained in the section itself. Put simply, I do not see any reason to link the two.
[29] There is another reason not to link the consequences of preferring an indictment (that is the possible loss of a preliminary inquiry) and the question whether an accused person has been brought to trial within a reasonable time. The latter question involves a possible violation of a constitutional right. The former does not. The “right” to a preliminary inquiry is a statutory right. It is not a constitutional right. As Martin J.A. said in R. v. Arviv (1985), 1985 CanLII 161 (ON CA), 51 O.R. (2d) 551 (C.A.) at p. 560:
The so-called “right” to a preliminary hearing is not elevated to a constitutional right under the Charter. The “right” to a preliminary hearing under the Code may be displaced by the Attorney-General preferring an indictment under s. 507(3) which, as we have previously stated, does not per se contravene s. 7 of the Charter.
[30] That conclusion does not mean that an accused person is devoid of any remedy, if it appears that the direct indictment was obtained simply to extend the time in which the prosecution can bring an accused person to trial. A ceiling is simply a ceiling. It does not purport to be a mandate for the time that is to be taken to bring a person to trial. This was made clear in Jordan, where the majority said, at para. 56:
We also make this observation about the presumptive ceiling. It is not an aspirational target. Rather, it is the point at which delay becomes presumptively unreasonable. The public should expect that most cases can and should be resolved before reaching the ceiling. For this reason, as we will explain, the Crown bears the onus of justifying delays that exceed the ceiling. It is also for this reason that an accused may in clear cases still demonstrate that his or her right to be tried within a reasonable time has been infringed, even before the ceiling has been breached.
[31] That last point is of importance to the situation here. The preferring of an indictment does not bestow 30 months of free time on the prosecution, which they can consume at their leisure on their way to at trial. It is always open to an accused person to demonstrate that a trial, that occurs below the 30 months ceiling, is still an unreasonable time for the trial to take place. The majority in Jordan made that clear, at para. 82, where they said:
A delay may be unreasonable even if it falls below the presumptive ceiling. If the total delay from the charge to the actual or anticipated end of trial (minus defence delay and delay attributable to exceptional circumstances that are discrete in nature) is less than 18 months for cases going to trial in the provincial court, or 30 months for cases going to trial in the superior court, then the defence bears the onus to show that the delay is unreasonable. 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.
[32] Take the extreme case, where the prosecution obtains a direct indictment the day after the accused person is charged. The defence may well be able to establish that a trial, that then occurs 30 months later, “took markedly longer than it reasonably should have” and, thus, still violates s. 11(b). In that extreme example, the proper approach, under the Jordan framework, is not to change the presumptive ceiling, but, rather, is to require the defence to demonstrate that 30 months is still too long a period of time to bring the accused person to trial in the circumstances of that particular prosecution. The preferring of the indictment is a circumstance to which the defence could point that would be relevant to that determination.
[33] In summary, I do not accept that the preferring of an indictment changes the presumptive ceiling that applies to a case that is to be tried in a superior court. I should add that I am not alone in that view. The same conclusion was reached in R. v. Jones, 2016 ABQB 691 where Nielsen J. said, at para. 26:
The Supreme Court had the option of deciding that the determinative factor for the presumptive ceiling was the presence or absence of a preliminary inquiry – the reality is that it did not do so.
I note that the same conclusion was also reached in R. v. Bulhosen, 2016 ONSC 7284 (Henderson J. at para. 49).
[34] Further, there is also a strong implication of the same conclusion to be taken from the decision in R. v. Manasseri, 2016 ONCA 703, [2016] O.J. No. 5004 (C.A.) where, in a footnote to para. 376 of his reasons, Watt J.A. said:
Direct indictments under s. 577(a) of the Criminal Code have been infrequent in this province. However, after Jordan, with full disclosure as required by Stinchcombe, the Crown should give very serious consideration to preferring direct indictments to fulfill its mandate under s. 11(b) and to ensure, to the extent reasonably possible, that criminal trial proceedings do not exceed the presumptive ceilings set by Jordan.
[35] Consequently, I conclude that the presumptive ceiling to be applied in this case is 30 months. The time to the anticipated conclusion of the trial here is just past 28 months. There is no basis for a conclusion that that time period is unreasonable under s. 11(b).
[36] Given my conclusion, I do not intend to engage in the issues raised regarding the appropriate allocation of time between the prosecution and the defence regarding, for example, the time incurred addressing the conflict of interest application; the availability of defence counsel both for the preliminary inquiry dates and/or for the trial dates; the impact, if any, on the time to trial arising from disclosure issues; or the various submissions made by the applicants regarding prejudice that they have sustained.
[37] However, I will say, regarding the last point, that, if nothing else is clear from Jordan, it ought to be clear that we are no longer to engage in the analysis of prejudice as a factor to decrease or increase the time to trial. As the decision in Jordan makes clear, the consideration and evaluation of prejudice gave rise to a host of problems in the s. 11(b) analysis. The majority pointed these out, at para. 33:
Second, as the parties and interveners point out, the treatment of prejudice has become one of the most fraught areas in the s. 11(b) jurisprudence: it is confusing, hard to prove, and highly subjective. As to the confusion prejudice has caused, courts have struggled to distinguish between “actual” and “inferred” prejudice. And attempts to draw this distinction have led to apparent inconsistencies, such as that prejudice might be inferred even when the evidence shows that the accused suffered no actual prejudice. Further, actual prejudice can be quite difficult to establish, particularly prejudice to security of the person or fair trial interests.
Consequently, prejudice “will no longer play an explicit role in the s. 11(b) analysis”: (para. 54).
Conclusion
[38] The application for a stay of proceedings is dismissed.
NORDHEIMER J.
Released: January 4, 2017
CITATION: R. v. Nyznik, 2017 ONSC 0069
COURT FILE NO.: CR-16-00000396-000
SUPERIOR COURT OF JUSTICE
Toronto Region
B E T W E E N:
LESLIE NYZNIK, SAMEER KARA & JOSHUA CABERO
Applicants
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR DECISION
NORDHEIMER J.
RELEASED:
[^1]: Applicants’ factum, para. 67