COURT FILE NO.: 17-50000346-0000
DATE: 20180517
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
RESHANE HAYLES-WILSON
Elizabeth Nadeau and Marco Cuda, counsel for the Crown
Stephen Bernstein and Paul Alexander, counsel for the Accused
HEARD: May 7 and 8, 2018
M.A. CODE J.
REASONS FOR JUDGMENT ON two pre-trial motions concerning admissibility of evidence and section 11(B) DELAY
A. INTRODUCTION
[1] The accused Reshane Hayles-Wilson (hereinafter, Wilson) was jointly charged with Jermaine Dunkley and Sheldon Tingle (hereinafter, Dunkley and Tingle) in an Indictment alleging one count of first degree murder. The matter was scheduled in this Court for the hearing of six to eight weeks of pre-trial Motions in April and May of 2018 and then for a two to three month trial in September of 2018.
[2] As a result of certain developments early this year, the Crown severed Wilson from the other two co-accused such that there are now two separate Indictments in this Court alleging the same first degree murder. It was agreed between the parties that a shortened version of the pre-trial Motions would proceed as originally scheduled in April 2018 on the Dunkley and Tingle Indictment. The now severed Wilson Indictment would then proceed in May 2018 with any further pre-trial Motions and with a shortened trial of that one accused. Finally, the separate trial of Dunkley and Tingle would proceed as originally scheduled in September 2018. In other words Wilson’s trial was both expedited and shortened as a result of the severance.
[3] I was assigned to conduct both sets of Motions and both trials as there is considerable over-lap in the evidence and in the legal issues. I heard the pre-trial Motions on the Dunkley and Tingle Indictment in a three week period in April 2018 and issued written Reasons for Judgement on April 27, 2018. That Ruling concerned the common law admissibility of much of the evidence to be tendered at trial by the Crown. See: R. v. Dunkley and Tingle, 2018 ONSC 2741.
[4] The remaining pre-trial Motions on the Wilson Indictment proceeded next on May 7, 2018 with a s.11(b) Charter of Rights Motion that I dismissed that same day, with reasons to follow. On May 8, 2018, a Motion that addressed residual common law evidentiary issues was argued. At the end of that day I delivered a short oral Ruling with reasons to follow.
[5] These are my reasons on both the s.11(b) Charter Motion and on the common law evidentiary Motion. I intend to address the latter first as it is related to the lengthy written Reasons that I already released on April 27, 2018 on the Dunkley and Tingle Indictment.
B. THE COMMON LAW ADMISSIBILITY ISSUES
[6] My written Reasons for Judgement in R. v. Dunkley and Tingle, supra, set out an overview of the Crown’s case and of the evidentiary issues that arise at common law in this case. I do not intend to repeat what is set out in those Reasons and simply adopt it as the background to the further evidence law issues raised by the Crown and defence on the Wilson Indictment.
[7] As set out in those earlier Reasons for Judgement, there were six distinct bodies of Crown evidence that were at issue on the Dunkley and Tingle Indictment. As a result of my Ruling, admitting some of this evidence and excluding other parts of the evidence, it was no longer necessary to argue all of these issues on the Wilson Indictment. In addition, the Crown had advised counsel and the Court that it was calling a much shorter and simpler case on the Wilson Indictment. Given these two developments, there was less evidence at issue on this second Indictment.
[8] On the Motion that proceeded before me on May 8, 2018, there were three relatively small and discrete categories of circumstantial evidence that required a Ruling as to admissibility at common law, namely:
- Two wiretap intercepts between the accused Dunkley and the accused Wilson in February and March 2015. At this point in time, Wilson had already been arrested and charged with the murder but Dunkley had not yet been charged. Wilson was in custody and he and Dunkley discussed certain aspects of the case. Wilson is admittedly the gunman who shot and killed one Neeko Mitchell on November 24, 2013. These events are captured on surveillance video at the front doors to the North Kipling Community Centre where the alleged murder occurred. Dunkley was present just inside the front doors and it is alleged that he directed or instructed Wilson to carry out the shooting in order to avenge the earlier murder of Dunkley’s brother. It is admitted that Dunkley is a leader of a criminal gang known as “Monstarz” that is based in “a Rexdale neighbourhood”. The North Kipling Community Centre is located in Rexdale. The lawfulness of these two wiretap intercepts is not in issue but the balance between their probative value and prejudicial effect is challenged by the defence;
- Video images or still frames of Dunkley and Wilson together, during the months shortly before the shooting, while performing two rap songs. Dunkley is a composer and performer of rap music under the production name “Monstarz”. The images from these two rap videos are tendered by the Crown as evidence of prior association and the character of that association at the relevant time;
- Two photographs from the same time period prior to the alleged murder. One photograph was apparently posted on Twitter by Dunkley. It depicts Dunkley and Wilson together in a pose that suggests a certain camaraderie. The other photograph was extracted from Dunkley’s cell phone by forensic experts who determined that the “file” containing the photograph was “created” the night before the alleged murder of Neeko Mitchell. The photograph depicts Wilson and one Tyrone Knott posing together and arguably making hand signs that signify the firing of a gun. Tyrone Knott was at the North Kipling Community Centre the next day, interacting with Dunkley and Wilson and others prior to the shooting of Neeko Mitchell.
[9] The admissibility of all three categories of evidence is governed by one common law rule, namely, the balancing of probative worth and prejudicial effect. This legal principle is discussed in my related Reasons for Judgement in R. v. Dunkley and Tingle, supra. I will not repeat that discussion and simply adopt my earlier Reasons for purposes of the present Motion.
[10] In my view, all three categories of evidence summarized above are admissible, subject to editing of certain irrelevant and/or prejudicial parts. Once these edits are made, the legitimate probative value of the remaining evidence exceeds any prejudicial effect.
[11] When evaluating the probative worth of the above three categories of evidence, it is important to remember that they are simply individual items of circumstantial evidence. It is also important to identify the main issues in the case, namely, the requisite intent for second degree murder, lack of provocation, and planning and deliberation. The Crown has over-whelming evidence that Wilson caused the death of Neeko Mitchell by shooting him a number of times with a handgun that Wilson pulled from the area of his waist at the front doors to the North Kipling Community Centre. This is captured on the surveillance video and Wilson’s identity is not in issue. There is no suggestion of self-defence in any of these video images. It has, however, been suggested by defence counsel that provocation may become an issue, which the Crown would then have to negative. More importantly, the Crown has the burden of proving first degree murder on the basis of “planning and deliberation”. The video surveillance images show Wilson interacting with Dunkley and others at the Community Centre in the period immediately prior to the alleged murder. The Crown will ask the jury to infer from these images, when considered together with all the other evidence, that Dunkley was directing Wilson to carry out an unprovoked, planned, and premeditated shooting of Neeko Mitchell. It is admitted that Dunkley is a leader of a criminal gang in the Rexdale community. The Crown will ask the jury to infer that this status or position likely gave Dunkley some degree of authority over certain associates. The nature of the relationship between Dunkley and Wilson, prior to the shooting of Neeko Mitchell, is an item of circumstantial evidence relied on by the Crown when evaluating the likelihood that Dunkley directed Wilson to kill Mitchell and the likelihood that Wilson followed such direction.
[12] The admissibility of the three categories of evidence summarized above was challenged by Mr. Alexander, counsel for Wilson, by way of analysing each separate utterance on each separate wiretap, each separate rap video image, and each separate photograph posted on social media or found in Dunkley’s phone, in isolation. Counsel then proceeded to submit that each item was ambiguous and lacking in probative value and was, therefore, susceptible to the drawing of speculative inferences. With respect, this kind of piecemeal analysis is not the proper way in which circumstantial evidence should be assessed. In a circumstantial case, individual items of evidence can easily and often appear ambiguous and lacking in probative value when viewed in isolation. It is the totality of all the individual circumstances that must be assessed because the ambiguity of one circumstance, when standing alone, may disappear once it is strengthened by a number of other surrounding circumstances. Taschereau J., as he then was, made this point many years ago in R. v. Coté (1941), 1938 CanLII 44 (SCC), 71 C.C.C. 75 at 76 (S.C.C.), speaking for six members of the Court:
It may be and such is very often the case, that the facts proven by the Crown, examined separately have not a very strong probative value, but all the facts put in evidence have to be considered each one in relation to the whole, and it is all of them taken together, that may constitute a proper basis for conviction. [Emphasis added.]
[13] More recently, in R. v. Terry (1996), 1996 CanLII 199 (SCC), 106 C.C.C. (3d) 508 at 518-519 (S.C.C.), the Court considered the admissibility of a poem in a murder case that involved a stabbing. The accused wrote the poem in which he referred to “crazy thoughts” in his head and to having “killed a life … with my knife.” McLachlin J., as she then was, gave the judgment of the unanimous full Court and described the probative value of the poem as “not great” and even “tenuous”. It was, nevertheless, admissible because the jury was instructed “not to use it in isolation” but rather to consider it as one “link in a chain of inferences tending to establish guilt.” Her Reasons on this point were as follows:
An admission against interest made by the accused is admissible as a recognized exception to the hearsay rule, provided that its probative value outweighs its prejudicial effect.
The probative value of the poem on the ultimate issue is not great. As a form of artistic expression, a poem is not necessarily probative of the "truth" expressed therein; an author may have any number of motivations for expressing himself or herself in a given fashion, only one of which is to recite what he or she did. Moreover, this poem's connection with known events is tenuous. No names were mentioned. The poem is undated. No details of the "crime" described in the poem were provided other than a reference to the use of a "knife". At the same time, its prejudicial effect was considerable. The danger existed that the jury would accept the poem's oblique factual similarity with actual events to infer directly that the appellant was the author of both the poem and the events.
These concerns, however real, were alleviated by the careful instruction the jury received on the use of the poem. The trial judge charged the jury that it could conclude that the poem represented a "lament about the killing in question", but was not to use it in isolation as direct proof of the fact the appellant committed the act. It was admissible, he instructed, as a link in the chain of inferences tending to establish guilt; the strength of that link was for the jury to determine based on the cogency of the connecting inferences and the number and nature of alternative innocent inferences. [Emphasis added.]
Also see: R. v. Morin (1988), 1988 CanLII 8 (SCC), 44 C.C.C. (3d) 193 at 205-211 (S.C.C.); R. v. Bouvier (1984), 1984 CanLII 3453 (ON CA), 11 C.C.C. (3d) 257 at 264-6 (Ont. C.A.), aff’d 1985 CanLII 17 (SCC), 22 C.C.C. (3d) 576 n (S.C.C.); R. v. Lynch, Malone and King (1978), 1978 CanLII 2347 (ON CA), 40 C.C.C. (2d) 7 at 19 (Ont. C.A.).
[14] Applying the above principles, the three categories of evidence that are at issue on this Motion – two wiretaps, two sets of rap video images, and two photographs either posted on social media or found in Dunkley’s phone – must be considered together. They must also be situated within the context of the larger body of admissible evidence relied on by the Crown, in particular, the surveillance video images at the North Kipling Community Centre showing the interactions between Dunkley and Wilson that led up to the shooting of Neeko Mitchell, and the fact that Dunkley is admittedly a leader of a Rexdale criminal gang. When analysed in this manner, the three categories of challenged evidence tend to infer a close allegiance between Dunkley and Wilson rather than a chance meeting one day at a local Community Centre. Indeed, the wiretaps may suggest a conspiracy between them. When this evidence inferring a close allegiance between the two men is then considered together with the evidence of Dunkley’s gang leadership, as well as the video-taped interactions between Dunkley and Wilson at the Community Centre immediately prior to the shooting, and the fact that Wilson pulled out a loaded handgun from his waist and fired it, this entire body of evidence is capable of assisting the Crown in proving that Dunkley directed Wilson to shoot Neeko Mitchell. In other words, the totality of the evidence is probative of the central issue in the case, namely, whether the shooting was planned, deliberate, unprovoked and directed, rather than being spontaneous or provoked.
[15] As against this probative value, the prejudicial and irrelevant aspects of the three categories of challenged evidence are amenable to editing. Beginning with the images from the rap videos, I have already excluded ten rap videos that the Crown sought to rely on because many of the images on the videos are “threatening and intimidating and they depict unrelated crimes such as drug trafficking, kidnapping, and possession of proceeds of crime” and because the lyrics “glorify violence and celebrate the use of guns and murder”. See: R. v. Dunkley and Tingle, supra at paras. 34-40 where this large body of evidence is described. I ruled that limited excerpts of the lyrics from three rap songs were admissible against Dunkley, as the author and singer of the lyrics, because they arguably express a motive and state of mind that is relevant to the alleged murder of Neeko Mitchell. I also ruled that “non-prejudicial still photos or screen captures of those present with Dunkley in the videos can be tendered for my consideration as evidence of association”. Wilson is present in two of these three videos that include brief relevant lyrics relating to Dunkley’s alleged motive and state of mind. Both of these videos were posted on YouTube shortly before the shooting of Neeko Mitchell so their timing may be significant. The Crown does not seek to tender the relevant lyrics from the two rap songs where Wilson is present, at Wilson’s severed trial, because the truth of their contents is hearsay as against Wilson. If Wilson testifies, and depending on how he testifies, his knowledge of Dunkley’s motive and state of mind in relation to the alleged murder may become important. The rap video lyrics, if Wilson was aware of them, may provide some non-hearsay evidence as to that knowledge. See: R. v. Bridgman (2017) 2017 ONCA 940, 138 O.R. (3d) 721 at paras. 66-77 (Ont. C.A.). I need not consider this issue at present as the Crown is not tendering the relevant rap lyrics as part of its case in chief at Wilson’s now severed trial and it is not known whether Wilson will testify.
[16] Consistent with my previous Reasons in R. v. Dunkley and Tingle, supra, I ruled during argument of the present Motion that the Crown could not play either of the two rap videos where Wilson was present, even with the lyrics edited out, because some of the images are threatening and they may invite stereotypical biases and prejudicial reasoning about “gangster rap”, young black males, and criminal behaviour. As a result, the Crown tendered a number of stills or screen captures from the two relevant rap videos showing Dunkley and Wilson together. I admitted the non-prejudicial stills that capture or portray an apparent friendship and camaraderie between Dunkley and Wilson at the relevant time. I excluded the stills that were threatening, menacing, or suggestive of criminal conduct. In short, I am satisfied that the prejudicial content was excluded from the rap video evidence and that only legitimately probative stills were admitted. I note that at the trial of the two alleged accessories, Dambrot J. of this Court made a similar Ruling concerning the admissibility of non-prejudicial stills or screen captures from the rap videos as evidence of an “ongoing and close relationship.” See: R. v. Kashana Duncan and Tyrone Knott, unreported, July 7, 2015 (Ont. S.C.J.).
[17] Turning to the two photographs, I had already ruled that they are admissible in my earlier Reasons in R. v. Dunkley and Tingle, supra at paras. 20, 70, and 73, together with an analogous photograph of Dunkley and Tingle together shortly before the shooting of Neeko Mitchell that was also posted on social media by Dunkley. Indeed, the admissibility of these photographs had not been seriously challenged when the earlier Motion on the Dunkley and Tingle Indictment was argued because they showed association between the relevant parties shortly before the shooting and they inferred something about the character of that association. In Wilson’s severed trial, I edited the text that accompanied Dunkley’s Twitter posting of the photograph of himself and Wilson together on October 10, 2013. That accompanying text stated, “Loyalty Can Take U A Long Way!!” It is hearsay and inadmissible as against Wilson, although I leave open for now the issue as to whether Wilson can be asked in cross-examination if he ever read, received, or acknowledged this Twitter posting, if and when he testifies. The only other issue about this photograph, raised in argument by Mr. Alexander, is that Dunkley and Wilson are both making different hand signs with their fingers in the photograph. The hand signs are common ones that have no sinister or gang-related meaning and they tend to depict a certain camaraderie between the two men. I am satisfied that the photograph has legitimate probative value and it is not prejudicial, subject to editing the hearsay text that accompanies it.
[18] The second photograph is even more probative, in my view, as it depicts Wilson and Tyrone Knott together on the night before the shooting. Both are gesturing towards the camera with their right hands in a shooting posture. The date of the photo, and its association to Dunkley, can be inferred both from the fact that Wilson and Knott are wearing similar clothing to what they are seen wearing in surveillance video the night before the shooting and from the fact that the photograph “file” in Dunkley’s phone was “created” that same night. Mr. Alexander submitted that the photograph was prejudicial as it depicted a threatening gesture that was unrelated to the shooting the next day. As discussed previously, the photograph is simply one item of circumstantial evidence that has to be situated and assessed in the context of all the other evidence. The fact that two persons who played a role in a shooting the next day, including the person who actually fired the gun (Wilson), are depicted making a shooting gesture in a photograph found in a “file” that was “created” that same night in the phone of the gang leader who arguably played a role the next day in directing that shooting, is some evidence of relevant association and some evidence of relevant intention. The exact point in time when Dunkley’s alleged motive to kill Neeko Mitchell arose is not clear from the evidence but the rap video lyrics indicate that his desire to avenge his brother’s death pre-dated the late November 2013 events at the North Kipling Community Centre. I am satisfied that the photograph of Wilson and Knott in a shooting posture is probative because of its connection to Dunkley and its connection to the events that unfolded the next day at the Community Centre. There is nothing extrinsic or irrelevant or prejudicial that needs to be edited because the entire image is probative of the central issues in this case in the manner discussed above.
[19] The final category of evidence to address on this Motion is the two wiretap intercepts between Wilson and Dunkley. The task of separating the legitimately probative parts of these two intercepts, and editing out the irrelevant and prejudicial parts, is somewhat more challenging. Nevertheless, I was satisfied that these two telephone conversations between Wilson and Dunkley in early 2015, after Wilson’s arrest and before Dunkley’s arrest, were amenable to editing without destroying the legitimate use and meaning of what was being said. I reviewed the proposed editing with the parties in open court on May 10, 2018, together with my rationale for editing some parts and not others, and then made some final adjustments to the editing. I will not repeat these detailed discussions in these Reasons.
[20] In brief summary, there are a number of utterances in the two intercepts that have real probative value, in particular the following:
- As noted, Dunkley had not yet been arrested and at various points he says to Wilson, “keep holding on, don’t say a word… I know you’re not stressing, you’re a soldier, boom, we know what’s going on… Just gotta see… how this shit plays out for us dog”;
- Dunkley takes an active and even dominant role throughout the two conversations, with Wilson’s assent, in helping and directing Wilson in the conduct of his defence. For example, Dunkley states that Wilson’s lawyer “has to know who you are… We’re not taking any chances… Cause we could always get you another lawyer…I’m going to ask my lawyer if you’re in good hands… Make sure you’re in good hands… Like I have to let him know like you’re my family… like you guys better know what it is… Like I’m going to have to show my lawyer like you guys don’t play with my cousin’s life… Right now I’m just in fighter mode… we have gloves on bro… Don’t worry, don’t say a word, don’t say a word, I’m gonna go talk to him…I was just with my lawyer last night too”;
- There is a lengthy discussion about Wilson’s arrest which took place on September 22, 2014, some ten months after the shooting of Neeko Mitchell on November 24, 2013. A warrant had been issued for Wilson’s arrest on January 23, 2014 but he remained at large for the next eight months. Wilson discusses the circumstances of his arrest and states, “It was just a random thing where I just had to cut for a day… Everything was supposed to plug in the next day… the day before everything was supposed, then yeah, then this”. Dunkley replies, “I know, I remember. That’s why I punched Ella [Kareem Jackson] in his face… If Ella was moving right too, everything woulda been okay bro. That’s why I just punched him in the face the other day. I’m telling him like, you’re the reason why my cousin’s in jail”;
- There is also a discussion about whether the police will be making a further arrest of a certain person they refer to as “the fat one.” Dunkley asks, “like they’re gonna try what, charge him again?” Wilson replies, “No, they’re gonna try and make him talk on me”. Dunkley replies, “Talk on you and say what, bro? Did you do anything bro? Like these people better not just piss me off right now… You mean lie on you, cause that’s all these fucking people do”. Wilson urges Dunkley to talk to Dunkley’s own lawyer and then “link with my lawyer and see what’s going on”;
- Dunkley and Wilson discuss the fact that Kashana Duncan and Tyrone Knott were charged with being accessories to the alleged murder and the fact that their preliminary inquiry is proceeding separately from Wilson’s preliminary inquiry. Dunkley states, “I went to see Baller [Duncan] yesterday”. Wilson states, “You see who you just told me you seen… that person’s peoples… was saying… any help needed… they’ re ready… if they can help in any way, they’re willing”. Dunkley replies, “Yeah, yeah, okay, okay”;
- Dunkley continues, in a further discussion, to take a role in the conduct of Wilson’s defence, at Wilson’s request. Wilson asks Dunkley if he spoke to his own lawyer, as they had previously discussed. Dunkley replies, “He’s saying he thinks the lawyer is good… but if you wanna switch it, then for sure, right?” Wilson asks Dunkley to go and see his own lawyer “in person”. Dunkley replies, “Yeah, I’m gonna see him in person and then after that I’ll give you the final.”
[21] In my view, the above parts of the wiretap intercepts have real probative value in proving the character of the relationship between Dunkley and Wilson. They are capable of inferring that it was a particularly close relationship where Dunkley played a significant and even dominant role in directing Wilson, where Wilson looked to Dunkley for advice, and where Dunkley felt loyalty, allegiance, and responsibility towards Wilson. The parties (particularly Dunkley) use the pronoun “we”, when discussing their efforts in response to Wilson having been charged with murder, inferring that it may be a kind of joint enterprise that will determine how the matter “plays out for us.” Indeed, their discussion about Wilson’s arrest could infer that there was some kind of prior plan or arrangement between them to prevent Wilson’s arrest. This character to the relationship, as explained previously (at para. 14), has real probative value in relation to the central issue in the case concerning whether it is likely that Dunkley directed Wilson to carry out the shooting and, therefore, whether it was intentional, unprovoked, and planned.
[22] As against this probative value, there is some prejudicial effect. The jury will likely infer from the above excerpts that Wilson was in jail at the time, in early 2015, a few months after his arrest. This is not significant prejudice, in my view, as most jurors would likely assume, as a matter of common sense, that an accused charged with first degree murder after being at large for eight months, would be in custody for a period of time. See: R. v. Moore (2015) 119 W.C.B. (2d) 482 at paras. 2-5 (Ont. S.C.J.). I have tried to diminish this prejudice by editing out the parts of the wiretaps that explicitly dwell on the fact that Wilson is in jail and that discuss what is happening in the jail.
[23] In addition, I have edited out most of the parts of the wiretaps where Wilson discusses his former lawyer with Dunkley. This former lawyer was discharged by Wilson on April 15, 2015, a week before Wilson’s preliminary inquiry was scheduled to proceed. There is discussion about Wilson’s financial arrangements with the former lawyer, about whether this lawyer is trying to resolve Wilson’s case in some fashion, about the relationship between Dunkley’s lawyer and Wilson’s lawyer, and about whether there is some kind of referral arrangement between them. None of these discussions are particularly probative of the relationship between Dunkley and Wilson and they introduce irrelevant and distracting issues into the trial concerning Wilson’s prior solicitor and client relationship. The parts of the wiretaps that I have admitted, where Dunkley and Wilson discuss this former lawyer, are all focused on Dunkley’s role in helping and directing Wilson in the conduct of his defence, as set out above. They are legitimately probative of the nature of the relationship between Wilson and Dunkley. I will, of course, forcefully instruct the jury that none of these discussions in early 2015 refer to Wilson’s relationship with his current lawyers who were not retained until February 2016.
[24] For all the above reasons, I was satisfied that the legitimate probative value of the two wiretaps, the two photographs, and certain stills from two rap videos outweighed any prejudicial effect, provided the evidence was edited to remove the more prejudicial aspects, as explained above.
C. THE SECTION 11(B) CHARTER MOTION
[25] The s.11(b) Charter Motion in this case is relatively straight forward in light of the new framework for analysing the right to trial within a reasonable time set out in R. v. Jordan (2016), 2016 SCC 27, 335 C.C.C. (3d) 403 (S.C.C.) and R. v. Cody (2017), 2017 SCC 31, 349 C.C.C. (3d) 488 (S.C.C.).
[26] The parties agreed at the time of the s. 11(b) Motion, that the total delay in this case is 44 months, or three years and eight months. This period began on September 22, 2014 when the Information was sworn charging Wilson with murder. It was to end on May 25, 2018 when the parties anticipated the trial would conclude. Since the argument of the s.11(b) Motion, the anticipated end of the trial has been extended by one week to June 1st, 2017. As a result, I will treat the total delay as 44 and a half months. This exceeds the Jordan presumptive ceiling for s.11(b) delay by 14 and a half months.
[27] The parties also agreed that the total delay in this case has to be reduced by certain periods of “defence delay”, as that term has been interpreted in R. v. Jordan, supra, in its companion case R. v. Williamson (2016) 2016 SCC 28, 336 C.C.C. (3d) 1 (S.C.C.), and in the post-Jordan case law. In particular, the parties substantially agreed that there were three periods of “defence delay”, namely, two periods from early 2015 to early 2016, and a third period in early 2017. These three periods total 13 months of “defence delay”. Accordingly, the total delay in the case must be reduced by this amount leaving net delay of 31 and a half months. In my view, there is a fourth period of “defence delay” that involved at least another two months. It occurred in the fall of 2016 when Wilson’s counsel was not available for the preliminary inquiry but the Court and the Crown were available. As a result, the net delay in the case is below 30 months and there is no presumptive violation of s.11(b) pursuant to the new Jordan framework.
[28] In any event, even if the above calculations of “defence delay” are somehow in error, I am satisfied that two exceptions to the presumptive ceiling, for “case complexity” and for “transitional” cases, are both applicable to this case. These exceptions would justify a delay of at least a few months over the presumptive ceiling. In this regard, the parties were agreed that the net delay is, at most, 31 and a half months and so this excess time above the presumptive ceiling is minimal and is easily justified by either of the two exceptions.
[29] It can be seen that the s. 11(b) Motion turns mainly on the calculation of “defence delay” and, alternatively, on the two exceptions for “case complexity” and for “transitional” cases.
[30] In relation to the first issue, “defence delay” was defined in R. v. Jordan, supra at paras. 60-66 and in R. v. Cody, supra at paras. 28-35 as “delay waived by the defence” or delay that is “solely or directly caused by the accused person”. It is the second of these two forms of “defence delay” that is at issue in this case. That second form of defence delay, according to the above passages from Jordan and Cody, includes situations where “the court and the Crown are ready to proceed but the defence is not” and, in particular, situations involving “defence unavailability”. For example, in R. v. Jordan, supra at paras. 14 and 120-124, the accused “changed counsel and requested an adjournment” shortly before trial. Defence counsel was also unavailable on the “last day scheduled for the preliminary inquiry” which resulted in the need to set a “continuation date”. These two events caused delays of four months in one case and one and a half months in the other case, both of which were characterized by the Court as “defence delay”. Similarly, in R. v. Williamson, supra at paras. 21-2, the Court attributed one and a half months delay to the defence because the accused was not available until the last of four dates offered by the Court for a first appearance after committal. Most recently, in R. v. Mallozzi, 2018 ONCA 312 at paras. 3, 6, and 9-10, the Court stated the following in relation to “defence delay”:
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
The respondent maintains that his trial counsel had dates earlier than those offered by the court and, therefore, though his counsel was not available on the later dates that were offered, he should not be required to absorb this time as defence delay. We disagree. Jordan is clear that defence delay will arise where the Crown and the court are ready to proceed, but the defence is not. Read contextually, and having regard to the trial verification form, the Crown and the court were ready to proceed. Defence counsel was not. The trial judge erred in failing to consider these 87 days as defence delay.
The record reveals that the earliest dates provided did not coincide with the respondent's trial counsel's schedule . The trial verification form demonstrates that there was almost three months between the earliest dates offered and when the respondent's counsel became available to conduct the rescheduled preliminary inquiry.
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.
[31] Applying the above principles, there were four separate periods of defence delay in this case, as follows:
- After the accused Wilson was arrested and charged on September 22, 2014, there was a short “intake period” in the Ontario Court of Justice that lasted less than three months. The parties held a judicial pre-trial and were ready on December 1, 2014 to set a date for a three day preliminary inquiry. The Court offered various early dates, within less than three to four months (starting on February 9, 2015) but defence counsel was not available. Accordingly, the preliminary inquiry was scheduled for April 20 to 22, 2015. The parties agree that the two and a half months from February 9 to April 20, 2015 is “defence delay” due to counsel’s unavailability;
- Five days before the scheduled preliminary inquiry, on April 15, 2015, defence counsel had the matter brought forward in order to seek an adjournment. He advised the Court that he had been discharged by his client, who was now in the process of trying to retain new counsel. The adjournment was granted by DiZio J. Counsel stated on the record, “the case has moved very quickly through the court system … Mr. Hayles-Wilson knows that … his case has moved expeditiously, that this is obviously going to delay it, and it’s his request to delay it in order to secure new counsel”. Over the course of the next few months, Wilson attempted to retain new counsel through Legal Aid, without success. Eventually, on July 2, 2015, Marshall J. set a new date of February 1 to 3, 2016 for the preliminary inquiry on a “with or without counsel basis”. She stated, “this delay is entirely at his [Wilson’s] feet.” She ordered that any Rowbotham Application “better be brought well before this new prelim date.” It was not until seven months later, on February 2, 2016, that Wilson succeeded in retaining new counsel. By this time, there had been a number of significant intervening events: the two co-accused Dunkley and Tingle had been jointly charged with Wilson; a new “criminal organization” charge had been added; Wilson had submitted a fresh Legal Aid application and started the Rowbotham process; and the preliminary inquiry date set by Marshall J. had been vacated. A third preliminary inquiry date was set on February 3, 2016 by French J., with counsel now on the record for all three accused. The parties agree that the nine and a half month period, from April 20, 2015 (the first preliminary inquiry date) until February 3, 2016 (when the second scheduled preliminary inquiry would have ended and when the third preliminary inquiry date was set) is “defence delay” due to the adjournment of the first preliminary inquiry by Wilson, after he had discharged his first counsel;
- The third and fourth periods of “defence delay” occurred when setting a new date for the preliminary inquiry before French J. on February 3, 2016. The preliminary inquiry was now estimated to require three weeks of court time. In addition, the Court now had to contend with the calendars of four lawyers, for the Crown as well as three separately represented accused. As a result, there were considerable difficulties in finding dates when everyone was available. On the basis of the transcript of the proceedings before French J., the trial coordinator’s “Certificate of Trial/Prelim Requirements” (found at TAB 1 of Exhibit 13, filed on the Motion), and Mr. Bernstein’s very frank submissions before me (after consulting his 2016 calendar), I am satisfied that the following is what happened: Mr. Herschberg, Mr. Royle, and Mr. Bernstein, respectively counsel for Dunkley, Tingle and Wilson, had early dates available at various points in their calendars (for example, between mid-March and mid-August 2016) but the Court was not available; the earliest date offered by the Court was two weeks from August 22 to September 2, 2016 but the Crown was not available; the Court then offered a lengthy ten week block of dates from September 6 to November 10, 2016 but counsel for Dunkley was not available and Mr. Bernstein, counsel for Wilson, was not available for nine of these ten weeks (from September 6 to 29 and from October 11 to December 2, 2016); the Court then offered a further two week period from November 21 to December 2, 2016 but counsel for Dunkley was not available and Mr. Bernstein was also not available; the Court then offered another two week period from December 5 to 16, 2016 but Mr. Bernstein was not available in the first of these two weeks (from December 5 to 9, 2016) and it appears that Mr. Herschberg was not available in the second of these two weeks; the Court then offered a three week period commencing on January 9, 2017 but Mr. Bernstein was not available; finally, the Court offered a three week period from February 6 to March 1, 2017 when all four parties were available and French J. proceeded to set these dates. On the basis of the above findings of fact, I am satisfied that the Applicant Wilson alone caused the delay from January 9 to February 6, 2017 as only his counsel was not available. Mr. Bernstein substantially acknowledged that this one month period of “defence delay” had to be attributed to Wilson, even though Mr. Bernstein had earlier dates available in 2016, in light of the Court of Appeal’s recent decision in R. v. Mallozzi, supra. I am also satisfied that another ten weeks of delay was caused jointly by the Applicant Wilson and the co-accused Dunkley due to their counsel’s unavailability on dates between early September and early December 2016 when the Court and the Crown were available, as detailed above
[32] In the result, the four periods of “defence delay” that are attributable to Wilson are as follows: two and a half months in early 2015, prior to the first preliminary inquiry, due to the unavailability of his first counsel; nine and half months between the first preliminary inquiry date and the second preliminary inquiry date, from April 2015 until February 2016, due to Wilson discharging his first counsel and adjourning the first preliminary inquiry date; one month in early 2017, prior to the third preliminary inquiry date, due solely to the unavailability of Wilson’s second counsel; and two and a half months in the fall of 2016, prior to the third preliminary inquiry date, due to the joint unavailability of Wilson’s second counsel and Dunkley’s counsel. The total defence delay attributable to the Applicant Wilson is, therefore, 15 and a half months. This reduces the total delay of 44 and a half months to a net delay of 29 months.
[33] I should note that I have set out the above somewhat complex facts relating to the availability of the Court and the availability of four separate counsel at the February 3, 2016 appearance before French J. in considerable detail because of the recent decision of the Court of Appeal in R. v. Gopie (2017), 2017 ONCA 728, 356 C.C.C. (3d) 36 at paras. 128-136 (Ont. C.A.). In that case, Gillese J.A. (van Rensberg J.A. concurring) stated the following:
I do not agree with the Crown that delay by one accused should be attributed to all. Rather, an individualized approach must be taken to the attribution of defence-caused delay in cases of jointly-charged accused. This conclusion flows from Jordan and the weight of the jurisprudence. Accordingly, I would not attribute delay caused by the actions of a co-accused to Sargeant or Gopie.
Fairburn J. (as she then was) addressed this issue in R. v. Ny (2016), 2016 ONSC 8031, 343 C.C.C. (3d) 512 (Ont. S.C.J). She rejected the Crown’s position that when one accused causes delay in a case involving jointly-charged accused, the delay is attributable to each of the accused as defence delay. Her analysis for concluding that the assessment of defence delay must be done on an individualized basis in persuasive. At paras. 37-38 she stated:
As for the second component of defence delay, it requires an assessment of the “accused’s acts” and whether his or her acts directly caused the delay: Jordan, at para. 63. It also requires an assessment of whether “the acts of the accused” can be shown to be a “deliberate and calculated tactic employed to delay the trial”. Like waiver, these are concepts attaching to a specific individual and his or her decisions to act in a certain way.
The inquiry into whether a party is the sole cause of delay is not conducive to then turning around and cloaking others with that delay. A decision by an accused to waive the right to a timely trial, or to behave indifferently toward the right through the actions he takes, is an individual choice. It is a choice that cannot be directly visited on a co-accused in the sense that the net delay faced by the co-accused will change.
See also R. v. Curry (2016), 2016 BCSC 1435, 360 C.R.R. (2d) 273 (B.C.S.C.).
In my view, attributing to an accused the delay caused by the actions or inactions of a co-accused is inconsistent with the approach and language of Jordan. That does not mean, however, that delay caused because the matter proceeded jointly against multiple accused is irrelevant to the s. 11(b) assessment under Jordan. As I discuss below, delays arising in the case of jointly-charged accused can give rise to exceptional circumstances under the Jordan framework.
For a discussion of how this issue of delay caused by one co-accused in joint trial proceedings was addressed under the old Morin framework for s.11(b) analysis, prior to Jordan, see R. v. Brissett et al (2017), 2017 ONSC 401, 373 C.R.R. (2d) 170 at paras. 43-52 (Ont. S.C.J.).
[34] The effect of deducting 15 and a half months of “defence delay”, as noted above, is to bring the net delay in this case down to 29 months. Delays below the 30 month “presumptive ceiling” can still violate s.11(b) but only in “rare” and “clear” cases. As the majority explained in R. v. Jordan, supra at paras. 48 and 82-91:
If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. We expect stays beneath the ceiling to be rare, and limited to clear cases. [Italics in the original.]
[35] In my view, the Applicant Wilson cannot satisfy either of the above two criteria. As to the first criterion, Wilson’s discharge of counsel on the eve of the first preliminary inquiry and the lengthy delay in retaining new counsel (including a four and a half month period of what appears to be complete inaction) does not constitute “a sustained effort to expedite the proceedings”. As to the second criterion, 29 months to complete a preliminary inquiry and trial for an alleged murder like this one is not “markedly longer than it reasonably should have” been. This latter point leads into the issue discussed in the next section of these Reasons, namely, the exception for “case complexity”.
[36] I am satisfied that the net delay in this case falls below the 30 month “presumptive ceiling” in Jordan, for the reasons set out above. Accordingly, it is not necessary to rely on any exceptions to the “presumptive ceiling”. Nevertheless, I will briefly refer to the two exceptions for “case complexity” and “transitional” cases, as I am satisfied that they both apply.
[37] The majority in R. v. Jordan, supra at para. 77 described the complex case exception as follows:
Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications, novel or complicated legal issues, and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case. [Italics in the original.]
[38] In R. v. Cody, supra at paras. 63-65, the Court elaborated as follows:
Unlike defence delay and discrete events, case complexity requires a qualitative, not quantitative, assessment. Complexity is an exceptional circumstance only where the case as a whole is particularly complex. Complexity cannot be used to deduct specific periods of delay. Instead, once any applicable quantitative deductions are made, and where the net delay still exceeds the presumptive ceiling, the case’s complexity as a whole may be relied upon to justify the time that the case has taken and rebut the presumption that the delay was unreasonable (Jordan, at para. 80). A particularly complex case is one that “because of the nature of the evidence or the nature of the issues, require[s] an inordinate amount of trial or preparation time” (Jordan, at para. 77 (emphasis deleted)). When determining whether a case’s complexity is sufficient to justify its length, trial judges should consider whether the net delay is reasonable in view of the case’s overall complexity. This is a determination that falls well within the expertise of a trial judge (Jordan, at para. 79).
[39] In my view, the present case easily meets the above criteria for the “case complexity” exception. In particular, I note the following:
- The Crown and the defence successfully negotiated a number of significant admissions this year, that is, in 2018. In particular, the fact that Monstarz is a criminal gang in the Rexdale neighbourhood and Dunkley is a leader of the gang was agreed to by all three accused on February 2, 2018. Since that time there have been further admissions. This shortened and simplified the joint trial and allowed the Crown to agree to sever Wilson which, in turn, led to an expedited trial date for him. Up until that point, and even after that point, the Crown was entirely justified in proceeding jointly against the three accused for what was and still is alleged to be a joint enterprise. This inevitably added to the complexity of the case. See: R. v. Gopie, supra at paras. 169-174;
- The evidence in the case was both voluminous and complex, especially prior to the recent admissions. I am told that there are 126 gigabytes of disclosure. It includes a large number of wiretaps from two separate police investigations in 2011 and in 2015 that were important to the Crown’s proof of the criminal gang aspect of the case. In addition, there is a large amount of evidence from social media, rap music videos, and forensic extractions from digital devices. Expert evidence concerning urban street gangs also figured prominently in the case up until the recent admissions;
- The preliminary inquiry was scheduled for three weeks and the trial was scheduled for two to three months, prior to the recent negotiation of admissions. This amount of court time is unusually long, even for a murder trial in the modern era. See: R. v. Millard and Smich, 2017 ONSC 4030 at para. 80;
- There were a large number of Motions and some of the Motions were complex and unusual. For example, a Motion to remove Tingle’s counsel due to a conflict, a Motion seeking certiorari to quash the committal, and a Motion seeking severance were all scheduled before different judges of this Court, in advance of a trial Judge being assigned. In addition, counsel estimated that they needed six to eight weeks to argue various Motions before the trial Judge. Some of the evidence law issues argued before me, concerning wiretaps, rap lyrics, social media posts, and expert evidence were difficult, involving a detailed assessment of relatively complex bodies of evidence. In short, the number, length, and complexity of pre-trial Motions was unusual;
- There were a large number of ongoing judicial pre-trials, both before French J. in the Ontario Court of Justice and before McMahon J. in this Court, which reflects the complexity of the case. Both judges made repeated efforts to assist in negotiating admissions, narrowing the issues, and shortening the amount of court time required for the case. On December 16, 2016, French J. described it as “a voluminous, complicated case” with a “substantial budget” from Legal Aid and with “a great number of issues”. On May 23, 2017, McMahon J. referred to “the complexities of the case and the length of the pre-trial Motions”. He offered to expedite the trial by having it commence in early June 2018, immediately after completion of the pre-trial Motions. All three defence counsel declined this offer and asked for “September dates”, presumably so that there would be additional time to prepare between the end of the Motions and the start of the trial.
[40] For all these reasons, an additional amount of time above and beyond the 30 month “presumptive ceiling” could easily be justified in this case, due to its complexity. I need not determine the justifiable quantum of that excess above the ceiling because it is either very small or non-existent at present.
[41] Finally, I am also satisfied that the “transitional” exception applies to this case. The Jordan decision was released on July 8, 2016, that is, about 21 and a half months after the present case commenced on September 22, 2014. In other words, almost half of the total delay in this case pre-dates Jordan.
[42] In its recent decision in R. v. Cody, supra at paras. 67-71, the Court elaborated on “the transitional exceptional circumstance” as follows:
Put another way, the Crown may show that it cannot be faulted for failing to take further steps, because it would have understood the delay to be reasonable given its expectations prior to Jordan and the way delay and the other factors such as the seriousness of the offence and prejudice would have been assessed under Morin.
To be clear, it is presumed that the Crown and defence relied on the previous law until Jordan was released. In this regard, the exceptionality of the “transitional exceptional circumstance” does not lie in the rarity of its application, but rather in its temporary justification of delay that exceeds the ceiling based on the parties’ reasonable reliance on the law as it previously existed (Jordan, at para. 96). The transitional exceptional circumstance should be considered in cases that were in the system before Jordan. The determination of whether delay in excess of the presumptive ceiling is justified on the basis of reliance on the law as it previously existed must be undertaken contextually and with due “sensitiv[ity] to the manner in which the previous framework was applied” (Jordan, at paras. 96 and 98). Under the Morin framework, prejudice and seriousness of the offence “often played a decisive role in whether delay was unreasonable” (Jordan, at para. 96).
When considering the transitional exceptional circumstance, trial judges should be mindful of what portion of the proceedings took place before or after Jordan was released. For aspects of the case that pre-dated Jordan, the focus should be on reliance on factors that were relevant under the Morin framework, including the seriousness of the offence and prejudice. For delay that accrues after Jordan was released, the focus should instead be on the extent to which the parties and the courts had sufficient time to adapt (Jordan, at para. 96). [Emphasis added.]
[43] The Court of Appeal has also provided guidance in relation to the proper approach to transitional cases in a recent decision, R. v. Gordon, 2017 ONCA 436 at para. 20. Doherty J.A. gave the judgment of the Court and stated:
The transitional exception is based on reasonable reliance on Morin. The exception cannot assist the Crown if the delay was unreasonable as measured against the Morin criteria: see Jordan, at para. 128. To rely on the transitional exception, the Crown must show that the pre-Jordan delay was not unreasonable under the Morin analysis. [Emphasis added.]
[44] Applying the above principles, the 21 and a half months of pre-Jordan delay in this case was clearly “not unreasonable under the Morin analysis”. There had been a speedy two and a half month neutral “intake period”, followed by an equally speedy four and a half month period of inherent time required for counsel to clear their calendars and prepare for the first scheduled preliminary inquiry. See: R. v. Tran (2012), 2012 ONCA 18, 288 CCC (3d) 177 at para. 32 (Ont. C.A.); R. v. Lahiry et al (2011), 2011 ONSC 6780, 283 C.C.C. (3d) 525 at paras. 25-37 (Ont. S.C.J). In other words, there was no Crown delay and no systemic delay in the initial seven month period from September 22, 2014 to April 20, 2015. This was followed by nine and a half months of admitted defence delay, from April 20, 2015 to February 3, 2016, when Wilson discharged his first counsel and adjourned the preliminary inquiry in order to try to retain new counsel. In relation to Wilson’s difficulties with Legal Aid, see R. v. Boateng (2015), 2015 ONCA 857, 128 O.R. (3d) 372 (C.A.). Finally, when the new preliminary inquiry date was set on February 3, 2016, there was at most six and a half months of systemic delay until the earliest available dates offered by the Court, namely, August 22, 2016. This was well under the eight to ten month Morin guideline for systemic delay, especially in a case like this where the Court and counsel were asked to find a three week block of time in their calendars. This was followed by a half month of Crown delay, as Ms. Nadeau was not available until the next September 6, 2016 block of time offered by the Court. Thereafter, all of the delay was due to defence unavailability.
[45] It can be seen that there was at most seven months of delay, prior to the February 6, 2017 preliminary inquiry, that was caused by either the Crown or by lack of institutional resources. This would never have been regarded as unreasonable under the Morin framework for s.11(b) analysis, particularly in a murder case with three co-accused that required three weeks of court time for a preliminary inquiry. The gravity of the offence and society’s interest in a trial on the merits were important factors in the final balancing that would easily have justified this short period of delay under the Morin framework. See: R. v. Morin (1992), 1992 CanLII 89 (SCC), 71 C.C.C. (3d) 1 at pp. 12-13 (S.C.C.); R. v. Seegmiller (2004), 2004 CanLII 46219 (ON CA), 191 C.C.C. (3d) 347 at paras. 21-5 (Ont. C.A.); R. v. Qureshi (2004), 2004 CanLII 40657 (ON CA), 190 C.C.C. (3d) 453 at para. 41 (Ont. C.A.).
[46] For all these reasons, the case was in compliance with the requirements of s.11(b) at the time when Jordan was released. The Crown and the Court were entitled to proceed in “reasonable reliance on the law as it previously existed”. In the period after the release of Jordan, the Courts and the Crown moved expeditiously. The preliminary inquiry was completed essentially within the time scheduled. McMahon J. then set a date for trial on the first appearance after committal in this Court, on May 10, 2017, without waiting for a judicial pre-trial to be held. The trial date set was April 2, 2018, which was 11 months away. The Court and the parties appeared to be of the view that this date was within the new Jordan ceiling. It was exactly 30 months after the Information jointly charging the three accused had been sworn on October 1, 2015, it was a complex case, and there had been substantial “defence delay” caused by Wilson. As noted previously, on the next appearance on May 23, 2017, the scheduled trial date in April 2018 was converted into a date for only pre-trial Motions as the defence declined McMahon J.’s offer to proceed immediately with the jury trial upon completion of the Motions. The defence requested that the trial proceed in September 2018. In a letter from the Crown to counsel dated September 21, 2017, after one of the many ongoing judicial pre-trials, it was stated that “the Crown believes we are safely within the Jordan limits.” No counsel had given notice of any s.11(b) Motion at this point. Finally, after successfully negotiating a large number of admissions in early 2018, the Crown consented to severance of Wilson and substantially shortened and expedited his trial.
[47] In all these circumstances, I am satisfied that the exception for “transitional” cases also applies to this case. Once again, I need not determine the exact quantum of any justified excess above the “presumptive ceiling” because it is either very small or non-existent at present.
[48] I should not leave the s.11(b) Motion without briefly addressing Mr. Bernstein’s argument that one year of delay was caused by actions of the Crown. He submits that the year from February 3, 2016 (the date when the second preliminary inquiry could have been completed, had it proceeded “with or without counsel”, as scheduled by Marshall J.) to February 6, 2017 (the date when the third preliminary inquiry did proceed, as scheduled by French J.), was delay caused by the Crown and that it should carry significant weight in the s.11(b) analysis. The specific action of the Crown which is said to have caused this delay was the decision to join the three accused, which led to vacating the date set by Marshall J. and which also led to difficulties in finding a new preliminary inquiry date where counsel for the Crown and all three co-accused were available. Mr. Bernstein submits that even if the Crown’s joinder decision was reasonable in the particular circumstances of this case, the delay resulting from that decision was attributable to the Crown and that period of delay was unreasonable. In other words, he submits that the immediate effects of a reasonable Crown joinder of co-accused can still amount to unreasonable delay. He relies heavily on three s.11(b) decisions that all pre-date Jordan, namely, R. v. Pakjou (2013), 2013 ONSC 1419, 278 C.R.R. (2d) 106 (Ont. S.C.J.); R. v. Schertzer et al (2009), 2009 ONCA 742, 248 C.C.C. (3d) 270 (Ont. C.A.); and R. v. Heaslip et al (1983), 1983 CanLII 3519 (ON CA), 9 C.C.C. (3d) 480 (Ont. C.A.).
[49] In my view, this argument is misconceived for a number of reasons. In the first place, none of these cases was decided under the modern Jordan framework with its much simpler s.11(b) methodology. The fact that the Crown caused a significant period of unreasonable delay, under the old Morin framework for s. 11(b) analysis, was said to carry substantial “weight” in the flexible balancing of the four Morin factors. Under the modern Jordan analysis, which applies to the present case, there is no flexible balancing of four factors and the main issue is whether the net delay is over or under the 30 month “presumptive ceiling.” Even if Mr. Bernstein was right, that the Crown caused a 12 month period of delay by joining the three accused, that would not change the fact that the net delay in this case is still under 30 months.
[50] The second flaw in Mr. Bernstein’s argument is his premise that the Crown’s decision to join the three accused in this case may have been entirely reasonable but it still resulted in unreasonable delay which “weighs” heavily against the Crown. There is nothing in Pakjou, Schertzer, or Heaslip that stands for this proposition, even if the old pre-Jordan framework still applied in this case. In all three of these cases, the Courts were extremely critical of the Crown’s decision making and found it to be unreasonable. In R. v. Heaslip, supra at pp. 496-7 and 500, Martin J.A. stated that the Crown was “derelict.” He attributed “fault to the Crown in respect of the inordinate delay” and held that the delay was due to “negligence on the part of the Crown”. In R. v. Schertzer, supra at para. 147, the Court stated there was “no cogent reason” for the Crown’s decision to delay the co-accused Benoit’s trial as it caused “serious prejudice” and it resulted in “unjustified and inexcusable” delays. In R. v. Pakjou, supra, at para. 75, 104, 107, and 113, Campbell J. referred to the Crown’s “decision to belatedly prefer a new indictment” and held that it was “not acceptable,” given that it contributed to “significant prejudice” to the accused and resulted in “quite exceptional” total delays. In other words, the Crown’s own conduct and decision making in all three cases was unreasonable and the overall delay caused by that conduct was completely unjustified. In the present case, I have already held that the Crown’s decision to join the three accused was entirely reasonable, and Mr. Bernstein does not suggest otherwise. I have also held that the overall delay in this case was justified by its complexity.
[51] The third flaw in this particular argument is that the Crown’s decision on October 1, 2015, to join the three accused in a new Information charging both murder and a new “criminal organization” count, actually benefitted Wilson. He was languishing in custody without counsel, having exhausted all of his Legal Aid appeals, and he was now facing an upcoming preliminary inquiry for first degree murder on a “with or without counsel” basis. The new charges allowed him to make a fresh application to Legal Aid. This renewed process eventually led to him successfully retaining Mr. Bernstein and having counsel to assist him in defending a particularly serious charge at a preliminary inquiry. In Pakjou, the Crown had waited some 18 months before taking steps to join the separate accused. The Crown then vacated the existing trial date, at a point when the case was already three years old, and in the face of vigorous s.11(b) Charter objections from counsel who were retained and on the record. In the present case, the Crown joined the three accused in a fresh Information on October 1, 2015 and almost immediately notified Wilson (and Mr. Bernstein, who was not yet retained) that the scheduled preliminary inquiry in February 2016 was “not likely to proceed” and that the Crown “will be trying them [the three accused] together.” Two months later, on December 8, 2015, the Crown withdrew the old Information charging Wilson alone. Counsel for Mr. Bernstein (who had still not been retained) stated on the record before French J. that “we understand those dates [in February 2016] have to be vacated and we’ve booked a judicial pre-trial with both of the new accused so new dates can be set, hopefully in short order.” There was no suggestion that Wilson was prejudiced by the Crown’s actions or that his s.11(b) interests were somehow being compromised.
[52] For all the above reasons, the Pakjou line of authority has no application to the s.11(b) Motion in the present case.
D. CONCLUSION
[53] In the result, I allowed the Crown’s Motion seeking to admit the two wiretaps, the two photographs found on social media and in Dunkley’s phone, and certain stills from two rap videos, all subject to editing. I then dismissed Wilson’s s.11(b) Charter Motion.
M.A. Code J.
Released: May 17, 2018