R. v. Tonner, 2017 ONSC 7656
CITATION: R. v. Tonner, 2017 ONSC 7656
COURT FILE NO.: CR-17-158-AP
DATE: December 21, 2017
ONTARIO
SUPERIOR COURT OF JUSTICE
(East Region)
BETWEEN:
HER MAJESTY THE QUEEN
– and –
STEVEN TONNER
COUNSEL:
Janet O’Brien, for the Respondent
David J. D’Intino, for the Appellant
HEARD: October 31, 2017 at Kingston
SUMMARY CONVICTION APPEAL
REASONS FOR DECISION
TAUSENDFREUND, J
OVERVIEW
[1] This is an appeal from the decision of Justice Letourneau of the Ontario Court of Justice at Kingston, Ontario on February 24, 2017, dismissing the Appellant’s motion under s. 11(b) of the Canadian Charter of Rights and Freedoms (“the Charter”).
FACTS
[2] The Appellant was charged with dangerous driving, contrary to s. 249(1) of the Criminal Code, and with failing to stop his motor vehicle while pursued by a peace officer, contrary to s. 249.1(1) of the Criminal Code. These two charges arose out of the same incident which occurred on December 28, 2013 in the County of Frontenac.
[3] There were in total 21 court appearances. A review of these now follows.
February 14, 2014
[4] The Appellant advised that he was seeking a lawyer.
March 17, 2014
[5] A Disclosure and Charge Screening form was provided by the Crown.
April 28, 2014
[6] The Appellant advised that he had yet to retain counsel. He had applied for Legal Aid, but had not yet received a certificate. He requested an adjournment to retain a lawyer. Trial dates of May 26 and June 16, 2014 were offered. The Appellant declined on the basis that he would not have a lawyer by then. A trial date was set for July 21, 2014, although the Appellant had stated that he might not be ready by then.
A legal Aid Certificate was granted on May 9, 2014 and was acknowledged by the Appellant’s lawyer on September 30, 2014.
July 3, 2014
[7] The Appellant brought an application to adjourn the trial date, as he had yet to retain counsel. The trial date of July 21, 2014 was vacated and the matter was adjourned to July 29. The Appellant conceded defence delay for that 8-day period.
July 29, 2014
[8] At the request of the Appellant, the matter was further adjourned to September 9 to allow him to retain counsel.
September 9, 2014
[9] The Appellant sought a further adjournment, as he had yet to retain counsel. The matter was adjourned to October 21, 2014 peremptory on the Appellant to set a trial date. The Appellant conceded defence delay for that 42-day period.
October 21, 2014
[10] Counsel for the Appellant sent correspondence requesting a judicial pre-trial (“JPT”) despite the fact that the matter had been adjourned to that date peremptory on the Appellant to set a trial date. The matter was further adjourned at the request of the Appellant to November 13, 2014 to set a date for a JPT.
November 13, 2014
[11] The Appellant confirmed that he had retained counsel and that his lawyer wanted a date for a JPT. The matter was adjourned to November 18, 2014.
November 18, 2014
[12] A date for a JPT was set for December 19, 2014.
December 19, 2014
[13] A JPT was held. Counsel for the Appellant requested that the matter be set over to January 13, 2015 to set a date for a two-day trial.
January 13, 2015
[14] February 18 and 20, 2015 were offered for a trial. Court and Crown were available. However, the Appellant did not accept these proposed dates, as this was “tax season” for him. Alternate trial dates of September 25 and 26, 2015 were then set. The Appellant waived 11(b) for the period of February 18 to September 25, 2015, a total of 218 days.
September 25, 2015
[15] The Crown provided additional disclosure. For that reason, the matter was adjourned to October 6, 2015.
October 6, 2015
[16] Trial dates of April 11 and 12, 2016 were set.
April 11, 2016
[17] At the start of trial, counsel for the Appellant sought an adjournment. He advised that his instructions had been to bring a s. 11(b) application. As a result of his oversight or misadventure, no such application had either been served or filed. He sought the adjournment to belatedly allow him to bring the s. 11(b) application. The trial judge denied the adjournment request. After the lunch break, counsel for the Appellant advised the court that there had been a breakdown of his professional relationship with the Appellant and requested that he be discharged as counsel of record. The Appellant joined in that request. The application was granted. About 75% of the available court time that day was taken up by these two applications. Nevertheless, the trial started that day with the Appellant as a self-represented litigant.
April 12, 2016
[18] Day two of this trial started with the Appellant’s application to have the trial judge recuse himself on the basis of a claimed apprehension of bias. In support of his application, the Appellant stated that the trial judge “stretched his neck at him” when he adjourned the prior day’s proceeding and held that the trial would resume at 10:00 a.m. the following morning. The Appellant stated that he relied not on what the trial judge said, but on the manner in which he said it. The application was dismissed and the trial continued. After the Crown closed its case, the Appellant requested an adjournment to seek legal advice on the question of whether he should call evidence. The adjournment was granted and the matter was adjourned to April 19, 2015 to set a continuation date.
April 19, 2016
[19] The Appellant advised that he was attempting to retain other counsel. For that reason, the matter was adjourned to April 21, 2016.
April 21, 2016
[20] The Appellant appeared and advised that he had filed an application with Legal Aid for a change of representation. The matter was put over to May 3, 2016 to set a continuation date.
May 3, 2016
[21] The trial was set for continuation to February 24, 2017. This was the first full available court date for the trial judge. At the suggestion of the court, the matter was put over to May 31, 2016 to see if an earlier date in the meantime might become available.
May 31, 2016
[22] No earlier dates had opened up. The trial continuation date was confirmed for February 24, 2017, with or without counsel.
February 24, 2017
[23] The Appellant had now retained counsel and both appeared. The Appellant elected to call no evidence. The Appellant had served a s. 11(b) application on February 2, 2017. Despite the short service, the Appellant’s s. 11(b) application proceeded. Justice Letourneau dismissed that application with oral reasons delivered that day. He then gave his decision on the trial of the two charges and found the Appellant guilty on both counts. The matter was put over to April 3, 2017 for sentencing, which was completed that day.
ISSUES
[24] The Appellant advances two issues on this appeal:
- Did the trial judge err in failing to provide reasons for dismissing the s. 11(b) application?
- Did the trial judge err in dismissing the s. 11(b) application?
ANALYSIS
Did the Trial Judge Err in Failing to Provide Reasons for Dismissing the s. 11(b) Application?
[25] On the issue of the duty of trial judges to give reasons for their decisions, the Ontario Court of Appeal in R. v. Sliwka[^1] sets out a helpful roadmap at paras. 24 and 25:
Trial judges must give reasons for their verdicts. Reasons that explain to the parties and the public the result arrived at by the trial judge are crucial to maintaining the proper level of transparency and accountability essential to the maintenance of the integrity of the trial process and public confidence in that process. Reasons for judgment allow the parties to know that their claims have been heard, understood and adjudicated upon in an objective and reasonable fashion that accords with the applicable legal principles: see R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 15, 22, 24.
On an appeal based on the trial judge’s failure to give reasons, the appellate court measures the adequacy of the reasons against the requirement that the reasons permit meaningful appellate review of the trial decision. If the reasons serve that function, any shortcomings from a due administration of justice perspective, do not justify appellate intervention. However, reasons that frustrate meaningful appellate review constitute an error in law. That error requires the quashing of the verdict unless the trial record as a whole permits effective appellate review of the verdict: see Sheppard, at paras. 25-33, 46.
[26] The trial judge gave oral reasons which are captured in the available transcript. To get a wholesome perspective of the trial judge’s reasons, one must cross-reference the transcript of his reasons with the factum filed by the Crown at trial. The Crown’s factum is part of the record and was relied on by the trial judge, as reflected in his reasons. It would perhaps have been easier for an appellate judge to follow reasons that are self-contained. However, that would be a matter of style over substance.
[27] Excerpts of the trial judge’s reasons are these:
[T]he 11(b) application is dismissed. If counsel desire it, either, or Mr. Tonner, I will provide written reasons on a future date. The short version is this. I have zero doubt that Mr. Tonner had little, if any, interest in a speedy trial. His conduct in these proceedings belie that tremendously. There were applications, requests, that were not bona fide….
[H]e had no defence on the merits of this case. The evidence was overwhelming. I have rarely seen a case that was so … 100% definitive proof. It was [he who] was operating that motor vehicle during the incident in which there was a high-speed police chase, and he did not pull over, and had an accident, of sorts, and went for a run…. [T]his is as close in real life as you can get to proving it with 100% certainty.
… Mr. Tonner has conducted these proceedings never for one second with a view of having a speedy trial. He certainly was fixated on maneuvering throughout these proceedings, to possibly at some point in time argue that it has taken too long and his 11(b) rights have been infringed.
In a general sense, I find that [the Crown’s] submission with respect to how to properly, on the new Jordan regime, characterize the delay with respect to this proceeding, fairly accurate. I am fully satisfied that on a proper Jordan analysis, the net delay, taking the total delay and subtracting defence delay, easily is below the 18-month presumptive ceiling….
[Mr. Tonner] was the one driving the bus, making it, the trial process, longer and longer for his own reasons. Which as I have said includes he had a view early on in this proceeding that perhaps his only defence would be to drag the proceeding out and hopefully be successful on this very 11(b) application.
I’m satisfied in all the circumstances and all of the written and oral submissions, that the bulk of this delay is defence caused delay.… Legal Aid was granted to Mr. Tonner on May 9, 2014 and was not acknowledged until September 30, 2014, and I appreciate that five month period. An acknowledgment is when counsel signs it. It was granted May 9th.
… Five months, that’s not explained by Mr. Tonner with respect to that period, is telling and also is an indicator, in my view, that his professed desire to have a speedy trial is disingenuous.
So that the delay here, the remaining delay is well below the 18-month presumptive ceiling in this circumstance. So Mr. Calendar [then counsel for the Appellant] are you pursuing the next step which even though it’s under the presumptive ceiling it is still a violation of 11(b)?
Mr. Calendar: No, Your Honour.
[28] In the event that the Appellant had been of the view that the reasons given by the trial judge were either insufficient or too difficult to follow, the Appellant could have requested written reasons, as offered. He did not.
[29] Although sparse in detail, I am nevertheless satisfied that the reasons provided by the trial judge were sufficient to meet the test set out in R. v. Sheppard.[^2]
Did the Trial Judge Err in Dismissing the s. 11(b) Application?
[30] On appeal, the trial judge’s characterization of the various periods of delay and the ultimate finding on the s. 11(b) application are reviewable on the standard of correctness. The underlying findings of fact are subject to review on a standard of palpable and overriding error.[^3]
[31] This is a “transitional case”. It was started prior to the release of the Jordan decision, but completed after its release. Accordingly, I will address the application of R. v. Jordan[^4] and then turn to the transitional application of R. v. Morin.[^5]
[32] The Jordan framework is helpfully summarized by the Ontario Court of Appeal in R. v. Coulter[^6] at paras. 34-50:
Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).
Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).
Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).
If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).
Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).
If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).
If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).
The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the “Transitional Cases”) (Jordan, para. 96).
B. KEY ELEMENTS IN THE NEW FRAMEWORK
(1) Defence Delay
Defence delay has two components: (1) that arising from defence waiver; and (2) delay caused solely by the conduct of the defence (“defence-caused delay”) (Jordan, paras. 61 and 63).
Waiver can be explicit or implicit but, in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights (Jordan, para. 61).
Defence-caused delay is comprised of situations where the acts of the defence either directly caused the delay or are shown to be a deliberate and calculated tactic employed to delay the trial. Frivolous applications and requests are the most straightforward examples of defence delay (Jordan, para. 63). Where the court and the Crown are ready to proceed but the defence is not, the defence will have directly caused the delay (Jordan, para. 64).
(2) Exceptional Circumstances
If the Net Delay exceeds the presumptive ceiling, the onus is on the Crown to rebut the presumption of unreasonableness based on the presence of exceptional circumstances.
Exceptional circumstances lie outside the Crown’s control in that: (1) they are reasonably unforeseen or reasonably unavoidable; and (2) Crown counsel cannot reasonably remedy the delays emanating from the circumstances once they arise. Such circumstances need not be rare or entirely uncommon (Jordan, para. 69).
An exceptional circumstance is the only basis upon which the Crown can discharge its burden to justify a Net Delay that exceeds the ceiling. The seriousness or gravity of the offence cannot be relied on. Nor can chronic institutional delay or the absence of prejudice to the accused (Jordan, para. 81).
The list of exceptional circumstances is not closed but, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).
(a) Discrete Events
An illustration of a discrete event that will generally qualify is a medical or family emergency on the part of the accused, important witnesses, counsel or the trial judge (Jordan, para. 72).
The period of delay caused by any discrete event must be subtracted from the Net Delay for the purpose of determining whether the presumptive ceiling has been reached. However, any portion of the delay caused by a discrete event that the Crown or system could reasonably have mitigated may not be subtracted (Jordan, para. 75). [Emphasis in original.]
[33] As this was not a complex case, the issue of complexity as an exceptional circumstance, discussed in Coulter at paras. 51-52, did not arise.
[34] The presumptive ceiling for this case tried in the Ontario Court of Justice is 18 months: Jordan, at para. 46.
[35] I calculate the total delay from the date of charge of December 28, 2013 to the end of the trial on February 24, 2017 to be 38 months.
[36] Defence delay I find to be as follows:
a) July 21-29, 2014, as conceded by the Appellant—8 days
b) July 29-September 9, 2014 – The Appellant had a Legal Aid Certificate as of May 9, 2014. I find that the Appellant could reasonably have retained counsel in that period of May 9 to July 29, 2014. The Appellant did not offer an explanation. The Crown and court were ready to set a trial date. At the request of the Appellant, the matter was further adjourned to September 9, 2014 to allow him to retain counsel. I find this period to be defence delay – 40 days
c) September 9-October 21, 2014, as conceded by the Appellant—42 days
d) October 21-November 18, 2014: The Crown was ready to proceed. The JPT could have been set on either of the adjourned dates of October 21 or November 13. In fact, nothing was accomplished on either of these two dates other than to put the matter over to November 18 to set a JPT date to be held on December 19, 2014—28 days.
e) January 13, 2015: the Appellant sought to vacate the offered trial dates of February 18 and 20, 2015 as it was “tax season” for him. New trial dates were agreed for September 25 and 26, 2015. The Appellant conceded that the period February 18 to September 25, 2105 was defence delay—218 days.
Subtotal: 336 days
[37] Appellant’s counsel had agreed that two days were needed for trial. Two earlier sets of dates had been agreed upon for trial with his concurrence. These were February 18 and 20, 2015 and September 25 and 26, 2015. Both were then vacated for separate reasons, the first at the request of the Appellant and the second as the Crown provided further disclosure. Eventual trial dates of April 11 and 12, 2016 proved to be insufficient. A continuation date of February 24, 2017 was required. I find that two days for trial would have been sufficient, but for the fact that 75% of the first trial date of April 11, 2016 was taken up with issues over which the Crown had no control. The first was the Appellant’s request to adjourn the trial to allow him to proceed with a s. 11(b) application which, as of that date, had neither been served nor filed. The second was the resulting professional fallout between Appellant’s counsel and his client resulting in a request to have him discharged as counsel of record for the Appellant. I find that, but for these two issues, this trial could and would have been completed within the two-day envelope. Several days were then set in quick succession, namely April 19, 21, and May 3, 2016 to identify the first available continuation date for trial. That was February 24, 2017. That was followed with a further date of May 31, 2016 to attempt to find an earlier date, but without success. I find that these dates reflect an attempt by the Crown to mitigate an unduly long adjournment.
[38] I note the following comments by the Supreme Court of Canada in Jordan, as it relates to the court’s view on “exceptional circumstances”:
Discrete, exceptional events that arise at trial may also qualify and require some elaboration. Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. … [I]f the trial goes longer than reasonably expected — even where the parties have made a good faith effort to establish realistic time estimates — then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance.
[T]he focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling. … [W]hen an issue arises at trial close to the ceiling, it will be more difficult for the Crown and the court to respond with a timely solution. For this reason, it is likely that unforeseeable or unavoidable delays occurring during trials that are scheduled to wrap up close to the ceiling will qualify as presenting exceptional circumstances.
The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. … Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted.…
[39] As this trial could have been completed within the two allocated days, I find that the request by the Appellant for an adjournment to seek advice as to whether or not to call evidence was an unforeseen circumstance beyond the control of the Crown. I accept that reasonable efforts were made to mitigate. The period of April 12, 2016 to February 24, 2017 was an exceptional circumstance, as defined within the Jordan framework. Accordingly, the time for that period of 317 days will be subtracted from the total period of delay.
[40] The defence delay plus the exceptional circumstance period I calculate to be 21.8 months.
[41] The total delay is 38 months. To be deducted is defence delay plus exceptional circumstances which I calculate to be 21.8 months. The net delay is 16.2 months.
[42] The delay may be unreasonable, even if it falls below the presumptive ceiling: see Jordan at para. 82. However, I note that Appellant’s former counsel during the course of the s. 11(b) motion stated that he would not pursue the position that the delay was unreasonable, despite the trial judge’s finding that it was below the presumptive ceiling. As such, I need not address that issue.
[43] As this is a transitional case, I note that the new framework, including the presumptive ceiling, applies to cases currently in the system, subject to two qualifications: see Jordan at para. 95. The first qualification relates to a delay which exceeds the ceiling. For reasons noted, it does not apply to this situation. The second qualification applies to cases such as this which fall below the ceiling: see Jordan at para. 99:
For these cases, the two criteria — defence initiative and whether the time the case has taken markedly exceeds what was reasonably required — must also be applied contextually, sensitive to the parties’ reliance on the previous state of the law.
[44] In my view, the position taken by former counsel of the Appellant – that he did not intend to pursue an argument that there was still a violation of s. 11(b) despite the finding of the trial judge that the delay fell below the presumptive ceiling – applies as well to the transitional issue raised by the Supreme Court in Jordan at para. 99. In any event, I note these comments by the trial judge:
Mr. Tonner has conducted these proceedings never for one second with a view to having a speedy trial. He certainly was fixated on maneuvering throughout these proceedings, to possibly at some point in time argue that it has taken too long and his 11(b) rights have been infringed.
[Mr. Tonner] was the one driving the bus, making it, the trial process, longer and longer for his own reasons. Which as I have said includes he had a view early on in this proceeding that perhaps his only defence would be to drag the proceeding out and hopefully be successful on this very 11(b) application.
I’m satisfied in all the circumstances and all of the written and oral submissions, that the bulk of this delay is defence caused delay.… Legal Aid was granted to Mr. Tonner on May 9, 2014 and was not acknowledged until September 30, 2014…. An acknowledgment is when counsel signs it. It was granted May 9th.
… Five months, that’s not explained by Mr. Tonner with respect to that period, is telling and is also an indicator, in my view, that his professed desire to have a speedy trial is disingenuous.
These are findings of fact by the trial judge which are to be granted deference and which I accept.
[45] Based on the above noted position of the Appellant’s trial counsel and the comments of the trial judge on the Appellant’s approach to the trial process, I find that there is no evidence upon which I could find that Morin[^7] impacted the finding that the net delay is below the presumptive ceiling.
CONCLUSION
[46] The appeal is dismissed.
Tausendfreund, J
Released: December 21, 2017
[^1]: R. v. Sliwka, 2017 ONCA 426. [^2]: R. v. Sheppard, 2002 SCC 26. [^3]: R. v. Nguyen, 2013 ONCA 169, at paras. 47-48. [^4]: R. v. Jordan, 2016 SCC 27. [^5]: R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771. [^6]: R v. Coulter, 2016 ONCA 704. [^7]: R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, at p. 802.