COURT FILE NO.: CR-17-70000585
DATE: 20180511
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
SUZANA VIDINOVSKI
C. Glaister for the Crown
A. Karapancev for the defendant Suzana Vidinovski
HEARD: April 18, 2018
FAVREAU J.:
Introduction
[1] On July 23, 2015, the applicant, Suzana Vidinovski, was charged with fraud and a number of other offences. Her trial is scheduled for two weeks, starting on June 18, 2018.
[2] Ms. Vidinovski seeks a stay of proceedings pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms (the "Charter") on the basis that her right to a trial within a reasonable time pursuant to section 11(b) of the Charter has been breached.
[3] The key issue on this application is whether all, some, or none of the delay caused by defence counsel's unavailability for preliminary inquiry dates and trial dates should count as defence delay under the framework established by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27.
Chronology
[4] The significant dates and events from the date when the applicant was charged are as follows:
a. July 23, 2015: The applicant was arrested and charged with fraud, forgery, uttering a forged document and personation. She was released that day on a promise to appear in court on September 9, 2015.
b. September 9, 2015 to February 4, 2016: There were several appearances in the Ontario Court of Justice while the applicant awaited a decision from Legal Aid Ontario about funding for counsel. During this time period, the Crown provided some disclosure and made requests for documents from the applicant. At the February 4, 2016 attendance, duty counsel advised the Court that the applicant's application for Legal Aid had been refused, but that she was hoping that the decision would be reversed based on additional banking documents she had recently submitted.
c. February 25, 2016: The applicant attended Court with counsel who advised that he had been retained.
d. April 4, 2016: A judicial pre-trial was held at which a three day preliminary hearing was set for February 6 to 8, 2017.
e. February 6, 2017: on the first day set for the preliminary hearing, the Crown and defence were advised that no courtroom was available, and that the matter could not proceed on the three days scheduled for the hearing. The defence made a number of factual concessions for the purpose of shortening the time required for the preliminary hearing, but the Crown and defence agreed that the matter would still likely require more than two days. The Court advised the parties that the preliminary hearing could be scheduled for May 2 to May 4, 2017, but defence counsel was not available on those dates. The matter was rescheduled for June 12, 13 and 14, 2017, which were the next dates when the Court, Crown and defence were available.
f. February 7, 2017: Although defence counsel was not present, the judge who had dealt with the adjournment the previous day advised counsel for the Crown that February 7 and 8, 2017, had now become available. The Crown was advised that February 24 and April 21, 2017 were also now available for the preliminary hearing. The Crown requested that the matter be adjourned to the next day to allow her to contact people for scheduling purposes.
g. February 8, 2017: The Crown and the defence attended before the judge who had dealt with the matter on the two previous days. The parties were then informed that the preliminary hearing could proceed on February 8, February 24, April 21, May 31 and June 1. The Crown was available on those dates but defence counsel advised that he was only available on April 21. This would not allow the preliminary hearing to be completed before the June 12 to 14 dates. On that basis, the matter was adjourned to June 12th for the start of the three day preliminary hearing.
h. June 12 to June 14, 2017: The preliminary hearing was held. At the conclusion of the hearing, the matter was adjourned to July 21, 2017, for the purpose of scheduling a judicial pre-trial. At that time, the applicant explicitly waived her section 11(b) Charter rights for the period from June 14, 2017 to July 21, 2017.
i. July 21, 2017: The matter was rescheduled to July 28, 2017, at defence counsel's request. The applicant again explicitly waived her section 11(b) Charter rights, this time for the period from July 21, 2017 to July 28, 2017.
j. July 28, 2017: The applicant was committed to stand trial, after which the matter was adjourned to August 4, 2017, at the Crown's request.
k. August 4, 2017: A judicial pre-trial was scheduled for September 18, 2017, in the Superior Court.
l. September 18, 2017: Following the judicial pre-trial held that day, the parties attended Practice Court for the purpose of setting a trial date. The Crown advised the presiding judge that the "Jordan date" was January 23, 2018, and that the matter was in "Jordan distress". The parties were offered a start date of October 2, 2017, which was the next available date for the start of a two week trial. The Crown was available then but defence counsel was not available. The next date offered by the Court to start a two week trial was June 18, 2018. The trial was scheduled for that date, but defence counsel indicated that the applicant was eager to proceed with her trial and that he was next available on November 8, 2017. The matter was then adjourned to Practice Court on October 10, 2017, for the purpose of canvasing earlier trial dates at that time.
m. October 10, 2017: No earlier trial dates were available, and the matter was adjourned for another attendance in Practice Court on December 8, 2017.
n. December 8, 2017: The Court advised the parties that the trial could be scheduled to start on January 8, 2018, January 15, 2018 or January 22, 2018. The Crown was available on those dates, but defence counsel indicated that he was not available until March, at which point he would be available for dates in March, April and May. The Court had no dates available in that time period. The trial remained scheduled to start on June 18, 2018.
o. Since December 8, 2017: The parties have appeared in court on three occasions for the purpose of dealing with third party record application issues, but no further dates for trial have been canvased.
Jordan framework
[5] In Jordan, at paras. 46 and 47, the Supreme Court set a presumptive ceiling of 30 months for cases, such as this one, that are going to trial in the Superior Court. If the total delay between the date of the charges and the anticipated date of trial exceeds 30 months, then the delay is presumed to be excessive, and the matter is to be stayed unless there are exceptional circumstances.
[6] The Court established a framework to be used in calculating whether a delay falls above or below the presumptive ceiling, and what is to be done in either circumstance. The Jordan framework is as follows:
a. The first step is to calculate the total delay from the date when the charges were laid to the anticipated end of trial. (para. 60)
b. The next step is to calculate the defence delay, and to deduct it from the total delay. There are two types of defence delay:
i. Delay explicitly waived by the defence; and
ii. Delay solely caused by the conduct of the defence. (paras. 61 and 63)
c. Once the defence delay has been deducted, the next step depends on whether the remaining delay falls below or above the 30 month presumptive ceiling.
i. Where the delay exceeds 30 months, the presumptive ceiling applies, and the proceeding is to be stayed unless the Crown can establish exceptional circumstances. Exceptional circumstances are matters that fall outside of the Crown's control, and that the Crown cannot reasonably remedy once they arise. (para. 69)
ii. Where the delay falls below 30 months, the defence can still demonstrate that the delay was unreasonable if the "case took markedly longer than it should have" and the defence took meaningful steps that demonstrate a sustained effort to expedite the case. (para. 82)
d. Finally, the Jordan framework applies to cases in which charges were laid before Jordan was decided. However, if the delay exceeds the 30 month presumptive ceiling, the Court may find that there are "transitional exceptional circumstances" if the Crown establishes that the parties reasonably relied on the law as it previously existed. In such cases, the Jordan framework is to be applied more flexibly.
Application of the Jordan framework
[7] In this case, the primary issue is whether the delays caused by defence counsel's unavailability for preliminary inquiry dates and trial dates should be counted as delay caused solely by the defence. In the event I find that the delay exceeds the 30 month ceiling, the Crown does not argue that there are exceptional circumstances justifying the delay, but does rely on transitional exceptional circumstances. In the event that I find that the delay falls below the 30 month ceiling, the defence does not take the position that the delay was nevertheless unreasonable.
a. Total delay
[8] Charges were laid on July 23, 2015, and the trial is scheduled for two weeks, starting on June 18, 2018, which means that it is anticipated to go until June 29, 2018. Therefore, the total delay is 35 months and 6 days, which is 5 months and 6 days beyond the 30 month presumptive ceiling set by Jordan.
b. Defence delay
[9] As indicated above, defence delay is comprised of delay explicitly waived by the defence and delay caused solely by the defence.
i. Delay waived by the defence
[10] In this case, the defence explicitly waived a delay period of one month and 14 days, which is the period between June 14, 2017 and July 28, 2017, following the preliminary hearing.
[11] Therefore, once the delay waived by the defence is deducted, the remaining delay is 33 months and 20 days.
ii. Delay caused solely by defence
[12] The Crown takes the position that there are two additional periods of delay that should be attributed to the defence. The first period is between April 21, 2017 and June 14, 2017, which is the time between when the preliminary hearing would have been completed if defence counsel had been available for the new dates offered by the Court and the date when the preliminary hearing actually started. The second period is between October 2, 2018 and June 18, 2018, which is the period between the first trial date offered by the Court and the date the trial is currently scheduled to start. The first period is one month and 22 days, and the second period is eight months and 16 days.
[13] In both cases, the delay arose in circumstances when the Court and the Crown were available but defence counsel was not available.
[14] The Crown argues that Jordan and subsequent decisions make clear that any delay due to defence counsel's unavailability is to count as delay caused solely by the defence. In contrast, the applicant's counsel relies on the decision of the Supreme Court of Canada in R. v. Godin, 2009 SCC 26, and argues that defence counsel cannot be expected to be available on every date offered by the Court.
[15] In Jordan, at paras. 63 and 64, the majority identified two examples of circumstances in which delays are to be viewed as caused by the defence, namely situations in which the defence takes tactical steps that are deliberate and calculated to delay the proceedings and situations where delay is caused by the defence’s unavailability:
63 The second component of defence delay is delay caused solely by the conduct of the defence. This kind of defence delay comprises "those situations where the accused's acts either directly caused the delay ... or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial" (Askov, at pp. 1227-28). Deliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests, are the most straightforward examples of defence delay. Trial judges should generally dismiss such applications and requests the moment it becomes apparent they are frivolous.
64 As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. This should discourage unnecessary inquiries into defence counsel availability at each appearance…
[16] The Court went on, at para. 65, to explain what types of delays do not count as defence delays:
65 To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused's right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions.
[17] In this case, the Crown does not allege that the defence intentionally delayed the proceedings or took frivolous steps that should not have been taken. Rather, the Crown relies on delay which it claims was caused solely by defence counsel’s unavailability. In support of this position, the Crown has put forward a number of decisions since Jordan where defence counsel’s unavailability was counted as defence delay.
[18] In R. v. Williamson, 2016 SCC 28, which was decided at the same time as Jordan, at para. 22, the Supreme Court applied this principle to the facts of that case:
We agree with the Court of Appeal that the period from June 23 to August 4, 2010 is delay caused solely by the defence because it is time where the court was available and ready to proceed but the defence was not, and the delay was not associated with legitimate defence preparation time. However, since the period of time from June 23 to August 4, 2010 is exactly six weeks, the defence is only responsible for one and a half months of delay.
[19] In R. v. Cody, 2017 SCC 31, the Supreme Court confirmed the framework for calculating defence delay, including confirmation, at para. 30, that "where the Court and the Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted". The Court went on, at para. 55, to apply this principle to the facts in that case as follows:
55 That said, we would not deduct the entire five months for this event. Two months, specifically the time it took for the Crown and defence to be prepared to proceed (until late June 2013) should be deducted. However, the court was unable to accommodate them until September -- that portion of delay was therefore a product of systemic limitations in the court system and not of the discrete event (Jordan, at para. 81) and therefore those months should not be deducted. Then, because defence counsel was unavailable in September, the matter was put over until October 2013. As this one month of delay was caused by defence counsel's unavailability (Jordan, at para. 64), and not by the preparation time necessary to respond to the charges (Jordan, at para. 65), it should be deducted.
[20] More recently, in R. v. Mallozzi, 2018 ONCA 312, the Court of Appeal for Ontario addressed the issue of defence delay caused by defence unavailability. At para. 3, the Court reviewed the relevant principles as follows:
Defence delay is defined in Jordan as including periods of time when the Crown and the court are ready to proceed, but the defence is not: Jordan, at para. 64. See also: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 55. Although actions that are legitimately taken to respond to the charges will fall outside of defence delay, when what prevents the matter from proceeding is simply that the defence is not available when the Crown and the court are, this constitutes defence delay and will be subtracted from the total delay.
[21] The Court went on to find that there were three periods of delay in that case caused by the defence's unavailability that were to be deducted from the total delay.
[22] As indicated above, in this case, the applicant relies on the Supreme Court of Canada's decision Godin and argues that defence counsel cannot be excepted to always be available, thereby suggesting that an element of reasonableness has to be factored into assessing whether defence unavailability was the cause of delay.
[23] R. v. Godin was decided before Jordan. In that case, the Supreme Court applied the guidelines set out in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, to decide whether there was undue delay. In doing so, the Court rejected an argument that defence counsel's unavailability for a period of 6 weeks for the scheduling of a pre-trial should count as a delay waived by the defence:
Moreover, I respectfully disagree that this period of delay should be treated as waived by the defence in the circumstance of this case. Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability. Here, there is no suggestion that defence counsel was unreasonable in rejecting the earlier date. Indeed, his prior conduct in seeking earlier dates for the preliminary inquiry -- efforts which were ignored -- suggests that he wished to proceed expeditiously. I respectfully agree with Glithero R.S.J., dissenting in the Court of Appeal, at para. 53, that: "To hold that the delay clock stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable."
[24] The Crown takes the position that Godin no longer applies because, in Jordan, the Supreme Court explicitly moved away from the Morin guidelines. With the 30 month presumptive ceiling, the calculation of unreasonable delay is to be fairly straightforward and predictable. The deduction of the delay caused solely by the defence's unavailability is meant to be a mathematical exercise without regard to the reason for the defence's unavailability. The only exception is where the delay is caused by a legitimate need for preparation time.
[25] The applicant's counsel argues that this cannot be a blanket principle, and that consideration should be given to the specific circumstances that led to defence counsel being unavailable. He argues that, in this case, with respect to the preliminary inquiry, defence counsel's unavailability only became an issue when the Court could not deal with the case on the dates originally scheduled. With respect to the trial dates, he argues that it was not reasonable to expect counsel to be available for trial within two weeks of the judicial pre-trial and for the next date after that to be over eight months later.
[26] The case therefore turns on whether defence unavailability is to be tabulated as defence delay in all circumstances. Notably, in Mallozzi, the judge in the Court below had relied on R. v. Godin in not counting delays due to defence unavailability as defence delays. In its decision reversing the application judge’s decision, the Court of Appeal did not refer to Godin and did not address whether it continues to have any relevance or application post-Jordan.
[27] However, what is clear from Jordan and the post-Jordan decisions reviewed above is that, where the reason for a delay in proceeding is the unavailability of the defence, the delay will be counted as defence delay. The cases do not look at whether there is a reasonable explanation for the defence counsel's unavailability; rather, the question is whether the only reason for the delay is the defence's unavailability. If the Crown is also unavailable, this does not count as defence delay, and if the defence is unavailable because of a legitimate need for preparation time, this again does not count as defence delay. However, scheduling conflicts count as defence delay.
[28] The focus therefore has to be on whether the delay was only caused by the defence's unavailability. In my view, the facts in this case highlight that not all instances of defence unavailability can fairly be counted as defence delay; in some cases, regard has to be given to the dates offered by the Court, and in particular whether those dates are themselves reflective of institutional delays. In this regard, I do not mean to focus on the reasonableness of defence counsel’s explanation for being unavailable, but rather on whether the dates offered are reasonable.
[29] In this case, in my view, the time claimed by the Crown as defence delay should be broken down into three, rather than two, separate periods, namely 1) the delay caused by defence counsel's unavailability for the earlier rescheduled preliminary inquiry dates, 2) the delay caused by defence counsel's unavailability for the October 2, 2017 trial dates, and 3) the delay caused by the defence counsel's unavailability for the January 2018 trial dates.
The preliminary inquiry
[30] As outlined above, the Crown's position is that the period between April 21, 2017 and June 14, 2017, should count as defence delay because the preliminary inquiry would have been completed by April 21th if the defence had been available on the dates offered by the Court at the time of the adjournment. The applicant argues that the preliminary inquiry was set to proceed on February 6th, and that it was adjourned because the Court was unavailable and the Crown chose to prioritize the hearing of another case; the consequences of the adjournment should not be counted as defence delay.
[31] The Crown relies on Mallozzi to argue that defence unavailability following an adjournment that was not caused by the defence nevertheless counts as defence delay under the Jordan framework. In that decision, at para. 10, the Court of Appeal considered and rejected an argument that defence delay should not include circumstances where defence counsel was not available for new dates after an adjournment precipitated by a co-accused:
The respondent maintains that he was ready to proceed on the first preliminary inquiry date and, therefore, his co-accused's request for an adjournment should not result in any defence delay to him. Multi-accused cases bring a level of complexity with them. All justice participants are required to work together in obtaining the earliest dates possible when matters cannot proceed. Although a co-accused caused the adjournment of the original preliminary inquiry date, something that could trigger an inquiry into exceptional circumstances under R. v. Gopie, 2017 ONCA 728, 356 C.C.C. (3d) 36, at para. 136, we need not resort to an analysis of this Jordan principle here. In the wake of the adjournment request, new dates were offered and the Crown and the court were ready to proceed. The defence was not. This was defence delay.
[32] Arguably, the difference in this case is that the adjournment was caused by the Court’s unavailability and the Crown choosing to prioritize another case, and not by a co-accused. However, in Cody at para. 58, the Supreme Court held that the Crown is not to be held to a standard of perfection. In that case, at para. 55 referred to above, the defence sought to have the whole delay caused by late Crown disclosure included as part of the 30 month ceiling, but the Court attributed two months of delay to the defence because of defence unavailability once the disclosure issue had been remedied and the Court and Crown were ready to proceed. Accordingly, it is evident that, even where a delay is initially caused by the Court or the Crown, under the Jordan framework, once the Court and the Crown are available to proceed, the delay in proceeding due to defence unavailability is to be counted as defence delay.
[33] In this case, after the Court advised that the preliminary hearing would not proceed on February 6, 7 and 8, 2017, the parties were given a number of alternative dates. On February 6th, they were offered three days in May, and on February 8th, they were offered five other dates. Defence counsel was only available on one of those dates, and ultimately the preliminary inquiry took place in June.
[34] While the adjournment was not caused by the defence, the delay in rescheduling the preliminary inquiry was caused by the defence’s unavailability. Multiple dates were offered between February 8 and June 14, 2017. Defence delay should of course not include the delay caused by the adjournment, but does include the period between when the preliminary inquiry could have been completed if the defence had been available on the newly offered dates and the date when the preliminary inquiry ultimately started. I therefore accept the Crown's argument that the period between April 21, 2017 and June 14, 2017, should count as defence delay. This is a period of one month and 22 days.
The October trial dates
[35] In addition to the delay caused by the defence's unavailability for the rescheduled preliminary inquiry, the Crown also argues that the period from October 2, 2017 to June 18, 2018, should count as defence delay, because the defence was unavailable to start the trial on October 2, 2017. The defence argues that it was unreasonable to expect counsel to be available within two weeks of the pre-trial, and that the following 8 ½ months should not be attributed to the defence because defence counsel would have been available for trial in November.
[36] I agree with the defence that this period of time cannot be attributed to the defence.
[37] First, it was reasonable for the defence to reject the October 2nd date. While not explicitly rejected on the basis that the date would interfere with legitimate defence preparation time, given that the date was offered on September 18th, which was the day of the judicial pre-trial and only two weeks before October 2nd, it would be fair to infer that, even if counsel was available on that date, it was still too soon after the pre-trial to provide for sufficient preparation time.
[38] The most significant flaw in the Crown's position is that it seeks to attribute the Court's inability to offer any dates for a two week trial from October 2, 2017 to June 18, 2018, solely to the defence. This is a period of more than 8 months, and it takes the trial beyond the Jordan ceiling. This is not a delay caused by the defence. Defence counsel was available as early as November 8, 2017. This is an institutional delay, and precisely the type of delay the Jordan framework is meant to address.
[39] As referred to above, not all situations in which the defence is unavailable for dates on which the Court and the Crown are available can fairly be characterized as delays caused solely by the defence. This proposed 8 ½ month period is a perfect example. The defence was only offered one trial date two weeks after the pre-trial and another date 8 ½ months later. In finding that this period cannot be counted as defence delay, my focus is not on the issue of whether it was reasonable for defence counsel to be unavailable, but rather on the reasonableness of the dates offered. The choice between a date in the immediate future and a date more than 8 months later does not arise because of counsel unavailability but, rather, because of the unavailability of a hearing date within a reasonable time. This cannot be characterized as delay caused solely by the defence.
[40] Accordingly, I do not accept the Crown's position that the delay between October 2, 2017, and June 18, 2018, should count as defence delay.
The January trial dates
[41] However, given what unfolded subsequently, this does not end the issue.
[42] In Jordan, at para. 138, the Supreme Court emphasized that the Crown and defence are to work diligently together to avoid delays. In this case, both the Crown and defence lived up to this standard. Once the trial date was given for June 18, 2018, the Crown and defence attended Practice Court to try to obtain earlier dates. No additional dates were available when the parties attended on October 10, 2017, but on December 8, 2018, the parties were offered three sets of dates in January. Both the Court and the Crown were available on January 8, 2018, January 15, 2018 or January 22, 2018, but defence counsel was not available on those dates.
[43] In my view, at this point, the defence's unavailability was the only cause of the delay. The dates were far enough in the future that they did not give rise to preparation time concerns, and they were not so far away that they could be attributed to institutional delays. Accordingly, based on counsel's unavailability, defence delay was from January 19, which is when the trial would have ended if it had started on January 8th, and June 18, for a total of 5 months.
[44] The applicant argues that, even if defence counsel had been available for the January dates, the trial could not have proceeded in January because there was an outstanding third party records application. However, it is evident from the transcript of the December 8, 2017, attendance that the parties were prepared to deal with that issue at the beginning of trial if dates for trial could be secured.
c. Net delay
[45] Based on the considerations above, the net delay falls below the 30 month presumptive ceiling:
Total delay: 35 months 6 days
Defence delay: 8 months 6 days[^1]
Net delay: 27 months
d. Exceptional circumstances
[46] As indicated above, the defence does not argue that there are exceptional circumstances that would warrant a stay if I find, as I have, that the delay falls below the 30 month presumptive ceiling.
[47] In addition, given that the matter falls below the 30 month presumptive ceiling, I do not have to consider whether transitional exceptional circumstances apply.
Conclusion
[48] For the reasons above, the application for a stay is dismissed.
FAVREAU J.
RELEASED: May 11, 2018
COURT FILE NO.: CR-17-70000585
DATE: 20180511
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N :
HER MAJESTY THE QUEEN
– and –
SUZANA VIDINOVSKI
REASONS FOR JUDGMENT
FAVREAU J.
RELEASED: May 11, 2018
[^1]: Calculated by adding the delay waived by the defence (1 month 14 days), delay caused by the defence’s unavailability for the rescheduled preliminary hearing (1 month 22 days), and the day caused by the defence’s unavailability for the January 2018 trial dates (5 months).