Court File and Parties

Court File No.: 15-2310 Date: 2017-12-08 Ontario Superior Court of Justice

Between: Her Majesty the Queen, Respondent And: Ian Bush, Applicant

Counsel: Tim Wightman, for the Respondent Self-represented, for the Applicant

Heard: November 27, 2017

Decision on Section 11(b) Charter Application

Beaudoin J.

[1] The Applicant alleges a breach of his right to a timely trial pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 [the Charter]. The remedy sought is a stay of proceedings, which has long been recognized as an extraordinary remedy.

[2] Mr. Bush is representing himself in this Application. To assist him, on October 18, 2017, I ordered transcripts of the proceedings from the relevant dates and these were provided to him. I directed that this Application be argued on the basis of those transcripts and a copy of the endorsements found on the indictment. At that time, Mr. Bush acknowledged that his counsel was in conflict and could not argue this Application.

[3] The Applicant was charged with these offences on December 19, 2014. On February 18, 2015, while he remained in custody on these charges, he was charged with three counts of first degree murder in relation to an unsolved 2007 triple homicide investigation. It was DNA evidence uncovered in the investigation of these offences that led to the murder charges.

[4] After some initial attempts to schedule this matter for trial for three weeks in September 2016, it was ultimately scheduled to be tried for eight weeks commencing March 6, 2017. Those dates were set prior to the release of the Supreme Court of Canada’s decision in R. v. Jordan, 2016 SCC 27, 1 S.C.R. 631, on July 8, 2016. The triple murder trial was scheduled to commence on October 23, 2017.

[5] Within days of the Jordan decision, namely on July 19, 2016 at a trial scheduling conference, Justice McKinnon confirmed an agreement with all counsel that the trial dates would be switched. On August 8, 2016, these new trial dates were confirmed by counsel for the Applicant.

[6] As I understand his argument, the Applicant maintains any waiver of delay in this matter must to be made by him personally after being informed of his s. 11(b) rights; that this waiver must be clear and unequivocal and cannot be based on his silence nor can it be implied through an acceptance of a “fait accompli” on the part of his counsel. He maintains that he did not know about his 11(b) rights and he did not clearly waive them. More importantly, he argues that there was no agreement by his counsel to switch the trial dates; that she was forced into accepting this and that in any event, he is not bound by that agreement.

[7] He further argues that the reassignment of new Crown attorneys to handle this matter led to further delay as this trial could have proceeded as early as September 2016. He maintains that there are no discrete exceptional circumstances and that this is not a complex attempt murder and robbery trial.

[8] Mr. Bush’s judge and jury trial on the three charges of first degree murder started on April 3, 2017. He was found guilty on all three counts on May 17, 2017. The passage of time between the laying of the information involving the three counts of first degree murder and the completion of the trial on those charges was 27 months. Had these charges proceeded on that date, there would have been no argument of unreasonable delay.

[9] This jury trial on the attempt murder, robbery, forcible confinement and weapons charges commenced on October 23, 2017. The trial started 35 months after the Applicant was arrested and charged with these offences. The trial is anticipated to conclude on December 1, 2017 which is 36 months and 1 week after the Applicant was arrested and charged with these offences.

Litigation Participants and Chronology

[10] Assistant Crown Attorney, Julie Scott, was originally assigned to prosecute Mr. Bush on these charges. In the spring of 2015, Ms. Scott was appointed as the Crown Attorney for Perth. Subsequent to Ms. Scott’s transfer to Perth, Mr. Cavanagh and Mr. Wightman were assigned to prosecute Mr. Bush on both the triple murder charges and these charges. Ms. Geraldine Castle-Trudel has remained as counsel for Mr. Bush on all of his criminal charges since December 2014.

[11] On June 5, 2015, Ms. Castle-Trudel appeared in Assignment Court to speak to these charges. Mr. Bush was present in custody. Ms. Castle-Trudel requested that a three-week judge and jury trial be set although she indicated on the record that she was still considering changing the trial date to a preliminary hearing. Ultimately, on June 5, 2015, trial dates were set for three weeks commencing September 6, 2016.

[12] The Crown became concerned with the scheduled trial dates and brought the matter forward for a judicial pre-trial with Justice Ratushny on June 11, 2015. At that pre-trial, unsuccessful efforts were made to re-schedule the trial dates.

[13] Mr. Cavanagh raised a number of concerns related to this file in a letter sent to Justice Ratushny on June 17, 2015. Mr. Cavanagh articulated the scheduling conflicts for the assigned Crowns and offered to move the trial dates forward to September 8-26, 2015. These dates were offered as available by the superior court trial coordinator. Ms. Castle-Trudel rejected these trial dates.

[14] In the same letter, Mr. Cavanagh articulated a course of action which involved setting 6-7 weeks of trial time for the attempt murder file in January or February of 2017. In anticipation of Mr. Bush being committed to stand trial on the three counts of first degree murder, Mr. Cavanagh advanced a procedure which would see the murder trial take place during the time reserved for the attempt murder trial.

[15] On July 9, 2015, the parties attended at a judicial pre-trial meeting with Justice Parfett. The accused was present in custody. Tentative dates for pre-trial motions were set for the weeks of August 8 and August 15, 2016. An 8 week trial starting March 6, 2017 was also tentatively set. The new trial dates were confirmed on July 24, 2015.

[16] On April 15, 2016, Ms. Castle-Trudel filed a “Counsel Designation Notice” with the court in relation to the charges on the attempt murder indictment. The Notice reads as follows:

I, Ian Bush hereby designate Geraldine Castle-Trudel, Barrister and solicitor, 331 Cooper Street, Suite 403, Ottawa, Ontario K2P 0G5, Telephone Number (613) 237-8409, to represent me and appear on my behalf (unless the court orders otherwise) with respect to the above mentioned charges.

I specifically designate not only Geraldine Castle-Trudel, but each and every member of her staff who has been instructed to act as her agent in these matters.

[17] The Notice is signed by Ian Bush and Geraldine Castle-Trudel. Mr. Reesink was co-counsel on the triple murder prosecution. Mr. Reesink appeared at a number of judicial pre-trial meetings on Ms. Castle-Trudel’s behalf.

[18] A scheduling conference was commenced on July 14, 2016 before Justice McKinnon. This scheduling conference was continued on July 15 and was concluded on July 19. The Applicant was represented by counsel at all three meetings. The purpose of this scheduling conference was to discuss the possibility of switching the scheduled dates for the attempt murder trial and the triple murder trial.

[19] Ms. Castle-Trudel and Justice McKinnon were concerned about the publicity related to the attempt murder trial and the negative impact it would have on Mr. Bush’s ability to be tried by an impartial jury on the triple murder trial. It was agreed by all parties that the trial dates for the two matters would be switched so that the triple murder trial would be conducted first in sequence. When this switch was made, no concern was raised by Ms. Castle-Trudel or by Mr. Reesink about their client’s s. 11(b) Charter right in respect of the attempt murder trial. Mr. Cavanagh’s understanding of those discussions is captured in an e-mail dated July 13, 2017.

[20] From the transcript of the proceedings before Justice McKinnon on July 19, 2016, I note the following:

It has been agreed that the dates originally scheduled for the trials in these matters will be reversed. In other words, the original schedule had the attempt murder charge, Ian Bush with attempting to murder Ernest Côté, preceding the triple homicide, of which Mr. Bush is charged involving the Garons and their neighbour, Ms. Beniskos.

It has been consistent- consistently, Ms. Castle-Trudel, has, has insisted that the triple murder precede the attempt murder because clearly the publicity surrounding an attempt murder and, in the event of a conviction on the attempt murder, that such circumstances would gravely prejudice Mr. Bush on the triple homicide. Consequently, it’s been agreed that the dates will be changed and new dates have been agreed upon.

[21] Ms. Castle-Trudel confirmed those dates and did nothing to dispute the agreement that the court has placed on the record. Later, in that same proceeding, Mr. Cavanagh said:

Mr. Cavanagh: Yes. I guess the only other thing, your honour, as I should say, as we discussed, that we have turned our minds to the recent decision of the Supreme Court of Canada case and effectively the switching of the dates means that all matters will be completed within the same timeframe. In addition, to which all parties agree that it is in the best interests of Mr. Bush and the administration of justice that the triple homicide prosecution trial proceed first.

The Court: Yes, thank you Mr. Cavanagh. Thank you everyone.

Ms. Castle-Trudel: Thank you, Your Honour.

[22] On August 5, 2012, Mr. Bush met with his counsel. On August 8, 2016, Mr. Reesink appeared before Justice Sheard to confirm the agreement that the trial dates would be switched; to have the triple murder prosecution occur between April and June 2017 and the attempt murder prosecution occur between October and December 2017. Mr. Bush was present in court when these dates were confirmed. No objection to the new trial dates or concerns about Mr. Bush’s 11(b) Charter rights were raised by Mr. Reesink or by Mr. Bush himself on August 8, 2016. The only concerns related to continuing Mr. Bush’s detention at the Regional Detention Centre so as to facilitate communications with his counsel in preparation of the trials.

[23] Ms. Castle-Trudel’s Pre-Trial Conference Report for the attempt murder file made no reference to an anticipated s. 11(b) motion. The first time it was raised was on August 16, 2017 at the pre-trial conference before Justice Ratushny. It was made clear to Mr. Bush that he would be arguing this on his own behalf. While Mr. Bush made a reference to Ms. Castle-Trudel being in conflict when he asked the court to order the transcripts on October 18, 2017, he now claims to have not understood the reason for the conflict until the hearing of this Application.

The Law

[24] Section 11(b) of the Charter guarantees a right “(b) to be tried within a reasonable time.”

[25] In determining whether a person’s s. 11(b) rights have been infringed:

• First, the court must assess the total delay. This is a straightforward approach that begins with the laying of an information and ends with the actual or anticipated conclusion of the trial.
• Second, defence delay must be deducted from that total.
• Third, if that delay is beyond the 30 month ceiling for Superior Court matters, it is presumptively unreasonable. The Crown bears the onus of justifying that delay. Justification for delay is restricted to “exceptional circumstances”.
• Exceptional circumstances lie outside the control of the Crown in that they are (i) reasonably unforeseen or reasonably unavoidable and (ii) cannot be reasonably remedied once they arise.
• Exceptional circumstances are recognized as discrete events or case complexity. In the case of the former, the delay attributable thereto is deducted from the total. In the case of the latter, if found, delay beyond the ceiling may be deemed reasonable.
• Fourth, if the case is a transitional case – already in the system when Jordan was released on July 8, 2016 – any delay beyond the ceiling must be analyzed contextually and flexibly including the reasonable reliance of the parties on the previous state of the law.

Delay in Excess of the Presumptive Ceiling

[26] As stated by the majority in Jordan, at para. 51, “reasonableness cannot be captured by a number alone, which is why the new framework is not solely a function of time.”

Exceptional Circumstances

[27] In Jordan, the majority identified exceptional circumstances as the only justification for delay beyond the ceiling. Exceptional circumstances include discrete events or complex cases. Jordan, at paras. 69, 96 In order to be found to be exceptional, the Crown must show that the circumstance was (i) reasonably unforeseen or reasonably unavoidable and (ii) cannot be reasonably remedied once it arises. There is one caveat to this, however. For cases already in the system, an exception will apply if the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it existed pre-Jordan. This, the majority characterized as a “transitional exceptional circumstance.”

Discrete Events

[28] Discrete events which are reasonably unforeseen or unavoidable and which cannot be reasonably remedied by the Crown are exceptional circumstances. The delay occasioned thereby is deducted from the total. Discrete events give rise to discrete deductions.

Conclusion on Discrete Events

[29] I conclude that the court and the Crown agreed with Ms. Castle-Trudel’s request, made on behalf of Mr. Bush, to schedule the first degree murder trial first in sequence because of the concerns articulated above. The trial dates were confirmed in Mr. Bush’s presence on August 8, 2016 in assignment court. No complaint or comment about delay was made at the time the dates were confirmed. The Court and the Crown were entitled to the reasonably held belief that counsel for Mr. Bush was acting on the client’s instructions when the dates were set and confirmed on the record on August 8, 2016.

[30] To accept Mr. Bush’s argument would mean that a Court could never rely on a confirmed agreement of counsel of record. A court would have to intrude upon solicitor-client privilege and inquire of any accused if they had been fully advised of their s. 11(b) rights by their counsel and if these had been weighed against their s. 11(d) rights to fair trial.

[31] I further conclude that the switch in trial dates represents an exceptional circumstance which should be recognized as a discrete event. The change in dates was made to safeguard Mr. Bush’s equally protected constitutional right to a murder trial by an impartial jury under s. 11(d) of the Charter. This results in any delay attributed thereto as being deducted from the total. The roughly 5.5 months of delay alleged by the Applicant comes only as a result of the change in the order of the prosecutions to the benefit of the Applicant and should be deducted from the total.

[32] As a result, the total delay is 30 ½ months.

Transitional Exception

[33] Even if the agreement to switch the trial dates was not considered an exceptional circumstance, and to the extent that this matter might minimally exceed the presumptive ceiling of 30 months, I now turn to the transitional exceptions set out by the majority in Jordan. This exception permits a reasonable reliance on the law as it existed prior to Jordan to justify delay. In other words, if the parties reasonably relied on pre-Jordan principles governing s. 11(b) resulting in delay beyond the new ceiling, the delay will be justified. The necessity and rationale for this approach is important in understanding the scope of its application – it was explained this way by the majority in Jordan:

As well, the administration of justice cannot tolerate a recurrence of what transpired after the release of Askov, and this contextual application of the framework is intended to ensure that the post-Askov situation is not repeated. Jordan, at para. 94

[34] For cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise when the Crown satisfies the court that the time the case has taken is justified based 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.

[35] 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.

[36] The importance of pre-Jordan principles in the treatment of transitional cases is acknowledged by the Practice Direction (effective 1 September 2016) of Ontario’s Superior Court of Justice in s. 11(b) applications which states in part:

Factums

In addition, in transitional cases, (i.e. cases with a charge date before July 8, 2016), the factum should clearly attribute each period of time in the proceeding to one of the five categories of delay identified in R. v. Morin ((i) inherent time requirements; (ii) delay attributable to the accused/defence; (iii) Crown delay; (iv) institutional delay and (v) other reasons for delay).

[37] The application of these factors was not intended to be a pure mathematical exercise; rather, they were to be applied in a manner which was consistent with the purpose and principles of s. 11(b). This was to be governed by two concepts. The first is the interests of the accused. Section 11(b) was designed to protect the accused’s liberty, security and right to a trial while the evidence is fresh and available. The second aspect is the interests of society. Section 11(b) was also designed to protect society’s interest in ensuring those charged with a criminal offence are treated fairly while also ensuring that they are brought to trial to be dealt with according to the law. R. v. MacDougall, [1998] 3 S.C.R. 45 at paras. 30-35

Inherent Time Requirements

[38] The Criminal Code of Canada, R.S.C., 1985, c. C-46 (the Code) prohibits the Crown from joining other counts onto an indictment for murder. The Crown could not have tried both the triple murder allegations and the attempt murder allegations together, absent the accused’s consent.

[39] The accused’s concern with respect to the publicity attached to the attempt murder charge and counsel’s opposition to the admission of the similar fact evidence was a clear and consistent indication of the lack of consent to try both matters together. The only option available to the Crown was to schedule two distinct trials for each respective set of charges.

[40] The original trial estimate for the triple murder prosecution was 13 weeks. The trial estimate for the attempt murder was 6 weeks. The combined total for both trials was 19 weeks of court time with a jury required for both trials.

[41] This is a complex file. While not required to, the Defence has not provided any admissions. The Crown was put on notice that all elements of each offence would have to be proven. I accept the Crown’s argument that this file involved a complex web of evidence which includes:

• A charge of attempt murder which can be harder to prove because the Crown must prove specific intent;
• Since the victim, Ernest Côté, died of old age after the events, circumstantial evidence was required to prove identity and intent;
• Expert DNA evidence was required to link the Applicant to the crime scene;
• Surveillance video evidence was relied upon from several different locations including the victim’s condominium complex, OC Transpo transit stations, the Rideau Centre Shopping mall, the Place D’Orleans Shopping mall and two different ATM machines;
• Banking records;
• Hearsay Statements from the deceased victim Ernest Côté;
• Expert evidence on the issue of the potential for asphyxiation;
• Evidence relating to the accused’s OC Transpo fare payment and bus schedules;
• Forensic Identification evidence related to the scene of the alleged crime;
• Forensic Identification evidence related to the 2 searches of the accused’s residence;
• Expert firearms evidence;
• Expert evidence related to the analysis of the duct tape found at the crime scene;
• There was a total of approximately 35 witnesses. Four of these witnesses were experts.

[42] The alleged crimes of attempt murder, robbery and forcible confinement are very serious offences.

Actions of the Defence

[43] Crown counsel also suggested trial dates in January of 2017 (a delay of only 4 months from the original trial dates in September 2016). However, the second trial date was not set until March 6, 2017 because Ms. Castle-Trudel was out of the country until that date.

[44] Not once did Ms. Castle-Trudel comment on the record that she was concerned about Mr. Bush’s 11(b) rights. Ms. Castle-Trudel did not mention a possible 11(b) application in her Pre-trial Conference Report submitted to the court.

[45] The first time the Applicant’s 11(b) rights were asserted occurred during a judicial pre-trial on August 16, 2017. Mr. Bush filed notice of his Application with the court on that date; roughly 13 months after the new trial dates were agreed to by his counsel and roughly 12 months after they were confirmed on the record in his presence on August 8, 2016. At no time during this 12-13 month period did counsel for Mr. Bush or Mr. Bush himself provide the court or the Crown with any notice of a pending 11(b) application. Nor was any complaint made on the record with respect to any delay related to the new trial dates.

Actions of the Crown

[46] The Crown made efforts to schedule the trial to occur 9 months after the accused was charged with these offences. Crown counsel were available to conduct this prosecution in January and February 2016, but the court was unable to accommodate the trial. The Crown made further efforts to schedule trial dates in January 2017. Ms. Castle-Trudel was unavailable until March 6, 2017.

[47] Crown counsel agreed with Defence counsel’s concern about the potential for prejudice to the accused if the attempt murder trial was held first and agreed to switch the trial dates.

[48] Crown counsel agreed to write a letter to the Regional Detention Centre to request that Mr. Bush remain at that institution leading up to his trial dates. This request was made to assist Mr. Bush and his counsel in their preparation for trial. In addition to the letter referenced above, Crown Counsel offered a practical solution to avoid Mr. Bush being transferred to the Central East Detention Center in Lindsay ON. The Crown agreed to adjourn Mr. Bush “month to month” into the bail review court to ensure Mr. Bush would be kept at the Ottawa Carleton Regional Detention Centre.

Waiver of Any Time Periods

[49] I have already concluded that the Applicant, through his counsel, waived the delay associated with the change in trial dates. Ms. Castle-Trudel’s agreement to switch the trial dates in order to avoid any prejudice to the accused is an implicit waiver of any delay associated with that course of action.

Prejudice

[50] The Applicant has been represented by experienced counsel since he was first charged in relation to the Ernest Côté file in December 2014. Ms. Castle-Trudel also represented Mr. Bush on the triple murder prosecution. Mr. Bush has never made an application for judicial interim release. Since May 17, 2017, the Applicant has been serving three concurrent life sentences for the crime of first degree murder. The presumption of innocence that attached to Mr. Bush in relation to the three charges of first degree murder prior to that trial no longer exists. The Crown made efforts to ensure that Mr. Bush was not transferred out of the jurisdiction to another custodial facility. This was done to assist Mr. Bush and Ms. Castle-Trudel with their trial preparation.

Conclusion

[51] The Defence counsel’s concerns about prejudice arising from pre-trial publicity were the genesis for the switch of the trial dates. This exceptional circumstance was outside the control of the Crown. The concerns about pre-trial publicity were reasonably unavoidable and could not be reasonably remedied.

[52] If necessary, I conclude that this case is a transitional case and that a contextual and flexible approach should be used. I accept that every step in the procedural history of this case that could have impacted on delay was undertaken relying on pre-Jordan principles. Mr. Cavanagh confirmed the agreement of all parties that that both matters would be completed within the original time frame allocated for the two trials. He confirmed that the parties had turned their minds to the issue of delay having regard to the recent Jordan decision.

[53] Once scheduling conflicts were identified, the Crown moved quickly to make efforts to offer new trial dates. There were no realistic steps that the Crown could have taken to reduce the overall delay in response to the decision in Jordan which was released on July 8, 2016 in light of this jurisdiction’s Superior Court of Justice trial schedule.

[54] The Crown reduced the number of counts (on what was originally a 17 count indictment) to five charges. One Crown counsel argued the case instead of the two that were originally scheduled. I can find no missteps or mistakes by the Crown or police that would undermine the Crown’s reliance on pre-Jordan principles.

[55] The switching of the trial dates was done to protect the Applicant’s right to a trial by an impartial jury which is guaranteed by s. 11(d) of the Charter. Mr. Bush has been represented by the same, experienced counsel since December 2014. Ms. Castle-Trudel consented to the switching of the trial dates. No complaint was made by counsel concerning the delay involved with the switch.

[56] For these reasons, this Application is dismissed.

Mr. Justice Robert N. Beaudoin Released: December 8, 2017