Court File and Parties
Court File No.: CR-15-0023 Date: 2017-12-08 Ontario Superior Court of Justice
Between: Her Majesty the Queen, Respondent – and – Kevin Harry Bomberry, Applicant
Counsel: S. Haner, for the Respondent J.E. Weppler, for the Applicant
Heard: in Gore Bay: November 15, 2017
Ruling on Application
DEL FRATE, J.
[1] The applicant seeks a dismissal of the charges against him pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms as a result of the delay in having his trial within a reasonable period of time.
Background
[2] The applicant faces two counts of sexual assault pursuant to s. 271 of the Criminal Code of Canada, R.S.C. 1985, c. C-46. One incident took place in the District of Manitoulin, and the other in the Town of Petawawa.
[3] The information for the incident on Manitoulin was sworn on December 16, 2013, even though the alleged offence is to have taken place on August 2, 2013. The Petawawa incident that allegedly occurred on August 1, 2013, was added the information on November 20, 2015. Since the applicant was residing in Brantford, Ontario, the warrant was not executed until May 8, 2014, some five months following the laying of the information. The applicant sought bail and he was released on May 12, 2014. His first appearance was scheduled for June 23, 2014.
[4] The applicant sought to retain counsel; however, he had difficulties. In the meantime, he personally requested the disclosure and this disclosure was provided on September 3, 2014. Eventually, in November 2014, counsel came on record and he requested a further adjournment of 60 days to permit him to review the disclosure and prepare for the pre-trial, which was conducted on February 4, 2015.
[5] On March 30, 2015, the matter returned to court for the setting of a date for the preliminary hearing. A date could not be set, and accordingly it was adjourned to May 25, 2015, at which time a preliminary date was set for November 16, 2015.
[6] On November 16, 2015, after only the complainant was called as a witness, a committal for trial was entered with the understanding between counsel that certain witnesses would be discovered. Although numerous discovery dates were offered, there was no time agreeable to both parties until December 6, 2016, at which time the discoveries were completed. Between May 2014 and December 20, 2016, there were 24 attendances in Ontario court.
[7] It appears from these court attendances that the difficulty in completing the one day discovery was primarily the non-availability of defense counsel and some of the witnesses.
[8] Following the completion of the discoveries, the matter was spoken to in the Superior Court of Justice on January 16, 2017, and a judicial pre-trial took place on February 27, 2017. At the assignment court scheduled on May 10, 2017, trial dates were offered for September, October, and December 2017. These dates were not suitable to defense counsel due to other commitments. In fact, defense counsel preferred to proceed with another trial in September 2017, even though the Crown outlined that the applicant’s case was more urgent that the other. Eventually, a trial date was set for January 8, 2018.
Position of the applicant
[9] The applicant submits that the requirements pursuant to R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 have been exceeded considering that the information was sworn on December 16, 2013, and the expected completion of this matter is January 13, 2018, for a total of 1,489 or 4 years and 28 days, which by far exceeds the parameters in Jordan.
[10] The applicant further submits that with the presumptive ceiling being exceeded, he has been prejudiced economically and psychologically and the delay was not the result of his actions, except for a period of some 5.5 months from February 26 to August 12, 2016, when defense counsel underwent surgery. At all other times, the applicant was prepared to proceed in an expeditious fashion. Accordingly, even deducting the 5.5 months, the time period of 43.5 months far exceeds the presumptive ceiling of a total of 30 months as set out in Jordan.
Position of the respondent
[11] The respondent submits that the delay in this case was caused primarily by the applicant. Although the information was sworn on December 16, 2013, and the warrant was executed on May 9, 2014, some five months later, during this time the applicant was not imperilled in any way and may not have even known of the charges against him. Accordingly, the initial five months should not be considered as delay on the part of the Crown.
[12] Second, the respondent contends that even though the applicant requested disclosure even without having retained counsel, it was not was until November 2014 that counsel appeared on record. These six months should neither be attributed to the Crown nor to the administration of justice, but to the defense. The challenges that the applicant had in retaining counsel are beyond the Crown’s responsibilities. Ordinarily, a period of 30 to 60 days is allotted for counsel to be retained.
[13] Third, the respondent agrees that the period during counsel’s medical challenges must be deducted and thus not attributable to the Crown.
[14] Most importantly, the conduct of counsel following the committal for trial on November 16, 2015, and the completion of the discovery on December 6, 2016, is directly the responsibility of the defense. Numerous dates were extended, and all were refused by the defense. Once a date was set, the discoveries were completed in one day. Accordingly, the approximately 13 months for the completion of the discoveries ought to be attributed to the defense.
[15] Last, the respondent submits that the unavailability of counsel from September to the date of the anticipated trial should be attributed to the defense as well. Dates were offered, yet counsel chose to proceed with other matters.
[16] Taking into account all of these factors, the time attributable to the case would be from May 8, 2014, when the applicant was arrested, to September 2017, being the first date offered for trial. This amounts to 23.8 months, well below the presumptive ceiling.
The law
[17] Since Jordan was released in 2016, there have been numerous decisions dealing with the presumptive ceiling of 30 months predicated by Jordan.
[18] In R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, the Ontario Court of Appeal set out the analysis that must be made in calculating the total delay period. More recently, the Supreme Court of Canada in R. v. Cody, 2017 SCC 31 reiterated what it had stated in Jordan.
[19] Most recently, the Ontario Court of Appeal opined the procedure to be followed in transitional cases in R. v. St. Amand, 2017 ONCA 913.
[20] The principles of law are that an accused person should be tried within 18 months for cases in Provincial court and 30 months for cases tried in Superior court or in Provincial court following a preliminary inquiry. Should the total delay (less delays either waived or exclusively caused by the defense) exceed the presumptive ceiling, the onus shifts to the Crown to demonstrate that the delay was nevertheless reasonable. Where the delay falls below the ceiling, the defense must demonstrate that the period of time to the end of the trial was nevertheless unreasonable. The cases also reiterate that a stay of proceeding for delay that fall below the ceilings will be rare and limited to clear cases.
Discussion
[21] In this case, the following periods must be considered. I have outlined the timetable differently than counsel, but the total time is the same.
[22] In calculating whether the Jordan parameters have been exceeded, I am using an approximation of the time period as opposed to the number of days. Accordingly, I wish to make it clear that if a specific daily calculation is applied, my approximations may not be accurate. However, such inaccuracies would not lead to a much different result.
[23] In Jordan, at paras. 37, 111, the Supreme Court of Canada expressly discouraged “micro-counting.” The minute accounting required by the previous framework was deemed inefficient and unnecessary.
1. December 16, 2013, to May 9, 2014
The applicant contends that the time period ought to run from the laying of the information and not from the time that he was arrested. The Crown contends that since the accused was not in jeopardy, the time should start running from May 9, 2014, being some four months and three weeks post the laying of the charges.
Although the information was sworn on December 16, 2013, for whatever reasons, the authorities failed to execute the warrant until May of 2014. I appreciate that the applicant was neither a resident of Manitoulin Island nor Petawawa, but the authorities did know that he resided in Brantford, Ontario. With the resources available to the Crown and with a reasonable effort, the applicant could have been served without too many difficulties.
Jordan stipulates that all parties in the administration of justice must cooperate and expedite trials. After the information is sworn, it becomes the onus of the police authorities to make sure that it is served on the accused in a prompt fashion. The police were aware of where the accused person resided. He could have been easily served with the cooperation of the Brantford police force. This was not done. Even though this was pre-Jordan, the lack of service of the information cannot be condoned. Accordingly, this period of some 4.765 months must be borne by the Crown. I find therefore that the time period runs from December 16, 2013.
2. May 9, 2014 to November 24, 2014
During this time period, the applicant attended in court in person or with duty counsel on six different occasions. It was not until November 24, 2014, that Mr. Weppler attended as counsel of record, even though he had spoken to the matter as duty counsel on previous occasions.
The applicant attributes this delay to not having the financial resources to retain counsel personally, and secondly to his challenges in obtaining legal aid. Once those challenges were met, then Mr. Weppler became counsel of record.
Although his challenges with legal aid may be a contributing factor, there is no specific evidence as to what steps he undertook to advance his cause. The approximate six months to retain counsel are, in my view, inordinately long. There is an obligation on the part of all parties to cooperate and expedite the matter. In my view, some of this delay must be attributed to the applicant.
I cannot accept the applicant’s contention that the challenges that he experienced with legal aid should be borne by the Crown or the administration of justice. Were that to be the case, then there would be an onus on the Crown and the administration of justice to become involved in determining who would qualify for legal aid. Although there are rare circumstances where courts can intervene in the appointment of counsel, such as in Rowbotham applications, this, in my view, is not one of those cases.
Ordinarily, one to two months should be sufficient time for an accused person to retain counsel. Accordingly, I conclude that four months during this time frame should be attributed as defense delay.
3. February 4, 2015 to November 16, 2015
During this timeframe there were several attendances for setting a date for the preliminary. In fact, the preliminary did take place on November 16, 2015. Only the complainant was called as a witness at that time. The parties agreed that there should be a committal on her evidence; however, counsel agreed to the discovery of other potential witnesses.
The discovery was not competed until December 6, 2016. The delay in completing these discoveries resulted from several factors, such as defense counsel’s medical issues and defense counsel’s unavailability for the discovery dates.
For example, on February 26, 2015, defense counsel requested further disclosure and requested an adjournment to March 30, 2015. Even though the court indicated that a date could be set, defense counsel felt that it ought to be adjourned to March 30, 2015. On that day, it was again adjourned to April 13, 2015, at the request of defense counsel. Finally, on April 13, 2015, a date was set for November 26, 2015. Again, the court was available, as was the Crown. This period of time, 1.5 months, is delay attributable to the defense.
4. February 26, 2016 to August 12, 2016
The parties agree that this period should be defense delay in view of defense counsel’s medical challenges.
5. August 12, 2016 to December 20, 2016
The defense concedes that 46 days or 1.5 months are attributable to defense delay. The rest should be borne by the Crown. The discoveries were completed on December 8, 2016, with the formal committal for trial on December 20, 2016.
I do not accept that during this timeframe the defense delay is 1.5 months. At assignment court on September 12, 2016, Mr. Weppler informed the court that discoveries were not completed and asked for an adjournment to November 29, 2016. In fact, the matter was addressed at assignment court scheduled on December 8, 2016. At that time, a date was set for a judicial pretrial for February 27, 2017. These adjournments were at the request of the defense. Accordingly, even though the defense concedes 1.5 months during this period, I conclude that the entire period is defense delay.
6. December 8, 2016 to February 27, 2017
Ongoing process.
7. May 8, 2017 to January 13, 2018
Following the pretrial, the matter was addressed on May 8, 2017, at the assignment court for the purposes of setting a trial date. On May 8, 2017, Mr. Weppler informed the court that his earliest available date for trial would be October 16, 2017. It should be noted that Mr. Weppler had another case in Superior court scheduled at the same time. He preferred that the other case proceed over this one, even though the Crown outlined potential Jordan issues.
It appears from the record that a trial date for this matter could have been available as of September 15, 2017. Defense counsel did not wish to have this matter as a backup either in the September assizes or the October assizes on the basis that his client could not attend due to financial restraints for the selection of the jury unless the trial started immediately thereafter. Further, it was defense counsel’s preference not to proceed on back-to-back cases in view of the stresses resulting from such a procedure. Although dates were offered in October and December of 2017, defense counsel refused these dates due to prior commitments.
The court appreciates that defense counsel is not always available to proceed due to prior commitments. However, in such circumstances, Jordan enunciates that defense counsel’s unavailability is considered against the defense. It would not be fair to the Crown and the administration of justice if such an unavailability would be counted against them when in fact they are ready to proceed. This is especially so in smaller centres like Manitoulin Island where the trial schedule is limited to certain times of the year.
On Manitoulin Island, there are sittings on a monthly basis for judge-alone matters and jury trials scheduled at particular times of the year. Usually these are in the spring, the fall, and sometime in December. Special dates, as in this particular case, may be set as well.
The court calendar is usually available for the coming year by September or October. This calendar is distributed to all counsel who regularly practice on Manitoulin Island. These counsel should be aware of the sittings and should, as much as possible, make themselves available for when these sittings are scheduled. Their availability is all the more necessary when there are running lists during these assizes. The administration of justice cannot afford the luxury of set dates. Accordingly, if only one case is set for that assize and should that case resolve, there would be a downtime of two to three weeks. As inconvenient as it may appear to counsel, it is a necessity to comply with the Jordan requirements.
Since this matter could have been heard at the September 15, 2017 sittings, and since Mr. Weppler chose to proceed with another matter, and since he was unavailable for the October sittings and the proposed December sittings, I conclude that the period from September 15, 2017, to January 13, 2018, being the projected conclusion of the trial, is delay attributable to the defense.
Summary Jordan Calculations
December 16, 2013, to January 13, 2018 (4 years 28 days or 49 months)
[24] I calculate the defense delay as follows:
| Time Frame | Months |
|---|---|
| May 9, 2014, to November 24, 2014 | 4.0 months |
| February 4, 2015, to November 16, 2015 | 1.5 months |
| February 26, 2016 to August 12, 2016 | 5.5 months |
| August 12, 2016 to December 20, 2016 | 4.25 months |
| May 8, 2017 to January 13, 2018 | 4.0 months |
| Total Defense Delay | 19.25 months |
Conclusion
[25] According to Jordan, if the net delay exceeds the presumptive ceiling, then the Crown bears the onus of establishing that exceptional circumstances justify the delay. However, where the delay falls below the presumptive ceiling, as is the case in this application, Jordan places the onus on the defense to establish that the delay is unreasonable. This requires the defense to show that it made “meaningful and sustained steps” to expedite the case and that the proceedings took “markedly longer” than they reasonably should have. As noted by the court, stays under the presumptive ceiling are “to be rare, and limited to clear cases”: Jordan, at para. 48.
[26] Additionally, Jordan provides an exception for transitional cases. As confirmed in recent cases like St. Amand and Coulter, the new framework applies to cases already in the system, but a more flexible assessment is needed for proceedings commenced before Jordan was released. For portions of proceedings that pre-date Jordan, “the focus should be on reliance on factors that were relevant under the Morin framework, including the seriousness of the offence and prejudice”: Cody, at para. 71. Such prejudice must arise from the delay and not due to factors like restrictive bail conditions or the nature of the offence: Coulter, at para. 104.
[27] The delay in this case, 29.75 months, is below the presumptive ceiling of 30 months, and the defense has failed to satisfy its onus. The defense did not take reasonable steps to expedite the matter, in fact defense counsel contributed substantially to the delay by rejecting earlier trial dates proposed by the Crown. Moreover, there is nothing indicating that the proceedings took substantially longer than they ought to have taken given the circumstances and nature of the offences.
[28] The trial will be completed within the timeframe enunciated in Jordan and subsequent appellate decisions. Accordingly, the application is dismissed.
The Honourable Mr. Justice Robert G.S. Del Frate Released: December 8, 2017