OTTAWA COURT FILE NO.: 14-5224
DATE: 20180604
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
RYAN SALT
Applicant
Allyson Ratsoy and John MacFarlane for the Crown
Solomon Friedman and Fady Mansour, for the Applicant
HEARD: 24 and 25 May 2018 at Ottawa
reasons for decision
(Application for Stay of Proceedings)
MEW J.
[1] This is a second application made by Ryan Salt pursuant to sections 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms, seeking a stay of drug trafficking charges faced by him. His previous application, brought in January 2018 at the commencement of what had been scheduled to be a five week trial of Mr. Salt and his co-accused, Hisham Alkhalil, was heard by Phillips J., who dismissed Mr. Salt’s application, but granted Mr. Alkhalil’s, staying the charges against him.
[2] After Phillips J.’s decision was pronounced, but before the trial formally commenced, Phillips J. recused himself from further involvement in the case.
[3] On 26 February 2018, Ratushny J. established new trial dates for the weeks of 11 June, 3 July, 29 October and 13 November 2018.
[4] On 7 March 2018, I ruled on an application brought by the Crown pursuant to section 653.1 of the Criminal Code – reported at 2018 ONSC 1437 - the effect of which is that, in respect of Mr. Salt’s second section 11(b) application:
a) findings made by Phillips J. concerning the allocation of responsibility for delay in the prosecution of the case, concluding that there had, until January 2018, been net delay of 37.5 months for the purposes of the considerations articulated in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, should stand; but
b) Mr. Salt would otherwise be at liberty to advance his application afresh and, in particular, to seek to persuade the court, based on such evidence he might adduce, to evaluate the prejudicial effect on him of the period of net delay of 37.5 months, and beyond.
[5] Net delay of 37.5 months rises above the 30-month ceiling, set in R v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, for cases which proceed through the Superior Court. The onus is therefore on the Crown to rebut the presumption of unreasonable delay by showing that the time it will have taken for the trial to be concluded is justified based on the parties’ reasonable reliance on the law as it existed prior to the Supreme Court’s decision in Jordan - the so-called “transitional exception”.
[6] In R. v. Cody, 2017 SCC 31, [2107] 1 S.C.R. 659, at para. 69, the Supreme Court addressed the application of the transitional exception:
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). Additionally, some jurisdictions are plagued with significant and notorious institutional delays, which was considered under Morin as well (Jordan, at para. 97; Morin, at pp. 799-800). For cases currently in the system, these considerations can inform whether any excess delay may be justified as reasonable (Jordan, at para. 96).
[7] The “Morin framework” refers to the factors listed in R. v. Morin, [1992] 1 S.C.R. 771, 1992 CanLII 89, at para. 31 for consideration when determining whether the right to be tried within a reasonable time had been infringed:
the length of the delay;
waiver of time periods;
the reasons for the delay, including
a. inherent time requirements of the case,
b. actions of the accused,
c. actions of the Crown,
d. limits on institutional resources, and
e. other reasons for delay; and
- prejudice to the accused.
[8] A Provincial Practice Direction Regarding Criminal Proceedings, Effective May 1, 2017, includes a requirement, at para. 24, that:
Unless otherwise directed by a judge, all s. 11(b) applications must be scheduled to be heard at least 60 days before the first scheduled day of trial or, where pre-trial applications are scheduled to be heard separately in advance of the trial, at least 60 days before the first scheduled day of pre-trial applications.
[9] This Practice Direction was not complied with in the present case. Rather, the s. 11(b) applications by Mr. Salt and Mr. Alkhalil were brought at the commencement of what was to have been a five-week trial.
[10] The parties agree that the recusal of Phillips J. was a “discrete event” within the meaning of Jordan and that at least some, if not all, of the resulting delay should be attributable to that. For the purposes of the analysis that I am now asked to undertake, the parties concur that the applicable net delay remains the 37.5 months as found by Phillips J.
Procedural History
[11] The charges in the matter were laid on 30 January 2014. Mr. Salt was held in custody for seventeen days before being released strict bail terms after a contested bail hearing. The plan put forward by Mr. Salt, which was accepted by the Justice of the Peace, enabled him to continue working at a landscaping company called NCG, which he co-owned with one of his sureties, but otherwise required that he not be away from his place of residence except in the presence of a surety (there originally being one other surety, his common-law spouse, Narelle Hamill).
[12] On 28 November 2014, the applicant’s bail conditions were varied, on consent of the Crown, to remove a curfew from 6 AM to 9 PM thereby enabling him to work in the evenings and early mornings.
[13] On 22 September 2015, there was a further variation of the applicant’s bail conditions to enable him to possess a mobile telephone, thereby facilitating his ability to communicate for business purposes.
[14] Following the death of Mr. Salt’s father in British Columbia on 3 February 2016, another bail variation was agreed by Crown to permit Mr. Salt to travel to British Columbia unescorted and without a surety, for the purpose of attending to his late father’s affairs (it was, however, necessary for him to arrange for his mother, a British Columbia resident, to be added as a surety).
[15] At a trial scheduling appearance on 17 May 2016, the court offered a start date for the trial of 21 February 2017. Neither Mr. Salt’s counsel nor his co-accused’s counsel were available then. This resulted in the earliest mutually convenient date of 8 January 2018 being set. The intervening 10.5 months was found by Phillips J to be attributable to defence delay, for the purposes of his Jordan assessment.
[16] In June 2016, a request by Mr. Salt for a further variation that would have added a third Ontario-based surety was not responded to by the Crown. Mr. Salt did not pursue this request further, either by following-up with the Crown or bringing an application.
[17] On 30 September 2016, counsel for Mr. Alkhalil sought an earlier trial date (his availability had changed since the trial date had been set). Although the court was able to offer dates in May or June 2017, for which the Crown was also available, Mr. Salt’s counsel was not.
[18] Instead of the trial starting on 8 January 2018, as scheduled, the court heard applications, including the defendants’ s. 11(b) applications. Phillips J. pronounced his decision on those applications on 22 January 2018. On 24 January he recused himself from further involvement in Mr. Salt’s case.
[19] On 12 April 2018, the Crown consented to further variations to the applicant’s bail conditions to permit him to travel within City of Ottawa without a surety. This was as a result of his spouse giving birth to their child. It is a temporary variation which remains in effect until 30 June 2018, although the Crown has indicated an openness to extending this revised condition.
Facts Relevant to the Application
[20] Mr. Salt filed an affidavit in support of his application and was cross-examined on it at the hearing. There was also an affidavit from Narelle Hamill, Mr. Salt’s common-law partner. She was not cross-examined.
[21] Negative media coverage resulting from the charges against Mr. Salt caused the loss of his major business client and ultimately resulted in the closure of his landscaping company, NCG. He says he has been shunned by his neighbours since the charges and individuals in the community have posted disparaging comments about on social media. The banks and credit card companies that he dealt with prior to his arrest have dropped him as a customer.
[22] After the failure of his business, he was left with a debt of $500,000. Over four years, he has managed to reduce that debt to approximately $250,000, mainly with the help of inheritance received from his late father. While he has since been able to establish two new viable businesses, his earnings have been reduced from approximately $80,000-$100,000 per year to $60,000-$80,000 per year. It is only because his common-law spouse, who has a good job in the public sector and who pays all of the household expenses, that he has been able to continue to live in the same residence.
[23] Mr. Salt described having experienced anxiety and panic attacks, numbness in his hands and feet, shortness of breath, increased heart rate, unwanted irrational thoughts, weight gain and insomnia. He attributes all of these physical manifestations to his deteriorating mental state and associated anxiety. He takes medication for anxiety and stress. This evidence is uncontradicted.
[24] Although Mr. Salt’s spouse has stood by him, he described her anger, resentment and frustration arising from his charges and the delay in having them resolved. They held off starting a family in the hope that the charges against Mr. Salt would be resolved. However, as both Mr. Salt and Ms. Hamill are now 36, they reached a point where they felt that they should not wait any longer. Their son was born in March 2018.
[25] Asked why, when faced with a delay of 20 months until his trial, arising, in part, from the unavailability of his counsel of choice, he did not find another lawyer, Mr. Salt said that had he done so there could have been more delay. In fact, he was unaware that the court was able to set a trial date in February 2017, but for the availability of counsel. He also acknowledged that it was his choice be represented by Mr. Friedman, and that he was prepared to accept the earliest available trial date having regard to Mr. Friedman’s schedule.
[26] Ms. Hamill says that during the past 50 months she has seen Mr. Salt’s physical, emotional and mental health change dramatically for the worse as a result of the charges against him and the time it has taken to bring them to trial. She described the stress that has been placed on their relationship and her own anger and resentment towards Mr. Salt because of the allegations and the fact they remain unresolved.
The Decision of Phillips J.
[27] Although my previous decision means that the application of the Morin factors can be considered afresh, both counsel made reference to aspects of the decision of Phillips J.
[28] In his Jordan analysis, Phillips J. found that two four-month periods should be described as Crown delay. One of those periods related to a conflict of interest issue relating to the co-accused’s selection of counsel. The other arose from a lack of timely disclosure, which prolonged the completion of the preliminary inquiry. In addition, he determined that there had been eight months of delay in the Ontario Court of Justice and 8.75 months in the Superior Court of Justice.
[29] As already noted, Phillips J. found that defence delay amounted to 10.5 months. This delay was caused by the combined unavailability both defendants’ counsel. In that regard, Phillips J. observed, at page 8 of his 22 January 2018 reasons:
Both defence counsel point to the well-settled rule at the time that counsel were not obliged to maintain themselves in a state of perpetual availability. I agree that before Jordan, considerable leeway was granted to counsel whose schedule prevented taking the first available date. In my view, though, that leeway was always limited by a notion of reasonableness. Here, one or both counsel were too busy to have the trial for virtually all of the remaining sitting months of 2017. In my opinion, the degree of defence counsel' s unavailability was unreasonable.
[30] In his assessment of Morin factors applicable to both of the accuseds that he was dealing with, Phillips J. categorised the case as “moderately complex”. He found that there was “no waiver alleged or present” by the defence.
[31] Finding that there were no actions by the accuseds which caused or meaningfully contributed to the delay (aside from the 10.5 months caused by the unavailability of defence counsel), Phillips J. observed that “in the case with 37.5 months of delay, eight months due to preventable Crown conduct is significant”.
[32] He also made reference to a sixteen month interval which it took for the Crown to decide whether there should be a re-election to judge alone as “troubling”.
Position of the Applicant
[33] At the time of the first application, the total delay was already 48 months. By the time Mr. Salt’s trial is concluded, the total delay will be over 57 months. In Morin, the Supreme Court (at para. 61) found that “prejudice to the accused can be inferred from the prolonged delay”. Mr. Salt argues that it is a logical inference that the longer the delay, the greater the prejudice suffered.
[34] Mr. Salt has suffered anxiety, stigma, financial and personal ruin, due to the prolonged exposure to criminal proceedings. This has impacted his right to security of the person.
[35] His right to liberty has been infringed due to the extremely restricted bail conditions which he has been subject to for the past 52 months.
[36] The right to a fair trial is inevitably impacted as the proceedings are now set to begin 52 months after Mr. Salt’s arrest meaning that evidence will no longer be fresh in the minds of the witnesses.
[37] While acknowledging that a certain amount of prejudice results from the nature of the offences that Mr. Salt has been charged with, the level of the prejudice suffered is significant and has been exacerbated due to the length of the delay that has occurred.
[38] Counsel for the defendants acknowledges that neither he nor Mr. Elkhalil’s counsel considered the requirements of the Practice Direction when asked why the s. 11(b) applications were not scheduled to be heard in advance of the trial.
[39] The defence questions the Crown’s assertion of its reliance on the pre-Jordan law given the existence of an unexplained period of delay of eight months.
Position of the Crown
[40] The Crown adopts the approach recommended in Cody, emphasising the issues of prejudice and the seriousness of the offences.
[41] Section 11(b) is concerned with prejudice arising from the delay in processing or disposing of the charges against an accused, rather than the impairment or prejudice arising from fact that he had been charged: R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, at para. 71.
[42] The nature and extent of the prejudice actually suffered by Mr. Salt should be assessed having due regard to his decision to exercise his right to engage a busy lawyer, whose availability has contributed to the delay in getting to trial and, hence, to the prolonged anxiety and uncertainty which Mr. Salt as described as well as the continuing stigma of his unresolved charges. This should be a relevant consideration aside and apart from the issue of defence delay decided by Phillips J.
[43] The court should have regard to the length of time it took Mr. Salt to bring his s. 11(b) application when considering the genuineness of the prejudice experienced by Mr. Salt. Jordan was decided on 8 July 2016. If the prejudice to Mr. Salt was so severe, why was it not raised for the first time until January 2018?
[44] Although Phillips J. considered defence delay in reaching his conclusion on the amount of net delay, defence delay remains relevant to the application of the Morin factors. See for example R. v. Picard, 2017 ONCA 692, 137 O.R. (3d) 401, at para. 126. The Crown argues that defence delay forms part of the context in which the Morin factors are to be considered and applied.
[45] While the bail conditions applicable to Mr. Salt are restrictive, they are what would be expected in the circumstances. On four of the five occasions that Mr. Salt had sought a variation of his bail conditions, the Crown has promptly consented. Significantly, the bail conditions and enabled Mr. Salt to continue his businesses. Although there has been some economic impact arising from the charges against him, he has been able to maintain a good income and reduce the debt which she had shortly after he was charged. Furthermore, Mr. Salt did not make the Crown aware of any specific economic difficulties, including the failure of NCG Enterprises, until April 2018 when he submitted his affidavit in support of this application.
[46] Mr. Salt is charged with conspiracy to traffic in cocaine at the kilogram level. The Crown alleges that Mr. Alkhalil and Mr. Salt represent the upper echelon of a group which was involved in that conspiracy. Their alleged co-conspirators sold a total of five kilograms of cocaine, one kilogram at a time, to a police agent. When a search warrant was executed at the residence of one of those individuals, a further two kilograms of cocaine was seized. Eleven kilograms of cocaine was seized from a car stopped on Highway 401, the driver of which was linked to Mr. Salt. Some of the individuals concerned - all first-time offenders who entered guilty pleas - received sentences in the range of five to eight years’ imprisonment.
[47] There is, accordingly, a heightened societal interest in having a trial on the merits given serious nature of the offences charged.
Analysis
[48] In her concurring judgment in Morin, McLachlin J. said, at para. 85-86:
It is easy … to lose sight of the true issue at stake -- the determination of where the line should be drawn between conflicting interests. On the one hand stands the interest of society in bringing those accused of crimes to trial, of calling them to account before the law for their conduct. It is an understatement to say that this is a fundamental and important interest. Even the earliest and most primitive of societies insisted that the law bring to justice those accused of crimes. When those charged with criminal conduct are not called to account before the law, the administration of justice suffers. Victims conclude that justice has not been done and the public feels apprehension that the law may not be adequately discharging the most fundamental of its tasks.
On the other side of the balance stands the right of a person charged with an offence to be tried within a reasonable time. When trials are delayed, justice may be denied. Witnesses forget, witnesses disappear. The quality of evidence may deteriorate. Accused persons may find their liberty and security limited much longer than necessary or justifiable. Such delays are of consequence not only to the accused, but may affect the public interest in the prompt and fair administration of justice.
[49] The charges faced by Mr., Salt are serious. Some of his alleged co-conspirators have received significant sentences. The prejudice asserted by Mr. Salt must necessarily be weighed against society’s interest in having these charges tried on their merits.
[50] Crown counsel devoted a significant portion of her argument to the manner in which the defence was conducted. Suffice it to say that this was not a case where, to adopt the language of the Supreme Court in R. v. Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741, at para. 30, the defence “was reasonably proactive in attempting to move the matter along”.
[51] Furthermore, aside and apart from the issue of non-compliance with the Practice Direction, the prejudicial effect of the delay which Mr. Salt asserts should, in my view, be mitigated to some degree by his failure to prosecute a s. 11(b) application until January 2018. I would add, however, that I do not accept the suggestion, made by the Crown, that I should also take into account that Mr. Salt offered no evidence in support of his original s. 11(b) application. That was no doubt a decision taken with the benefit of counsel’s advice at the time by an accused person who enjoyed the right to silence.
[52] The bail conditions that Mr. Salt has been subject to have restricted his freedom of movement and actions. The record included a description of Ms. Hamill having to return from Vancouver, where she had been visiting her own family and, on the same day, flying back there with Mr. Salt so that he could be with his dying father.
[53] As the Crown noted, however, the bail conditions were what would have been expected in a case such as this and were varied, with the Crown’s concurrence, on four occasions. Despite the initial setbacks experienced by Mr. Salt after he was charged – including the loss of a major customer and the failure of his NCG business – he has in fact managed to establish two new businesses and although he has experienced some diminution in his income, all things considered, he has done well.
[54] The reactions of neighbours, friends, family and financial institutions are also what might be expected as a consequence of the charges themselves. It is important to distinguish between prejudice which arises from the fact of being charged with criminal offences and prejudice arising from delay: R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588, at para. 71.
[55] While I accept the uncontradicted evidence of Mr. Salt and Ms. Hamill concerning the stress that Mr. Salt has experienced and its effect on his mental and physical well-being, in the absence of any objective evidence, such as a medical report or from a disinterested person, I do not attach a great deal of weight to it. Indeed, it would be unusual for anyone in Mr. Salt’s position not to express subjective feelings of stress and anxiety. But the record before me makes it hard to gauge the true magnitude of Mr. Salt’s condition.
[56] Delay of the degree present in this case inevitably prolongs the impact of the prejudice that flows from the charges. To his credit, Mr. Salt has taken steps to mitigate that prejudice by, for example, removing his last name from his business cards.
[57] In R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, the trial judge had found that the accused – a teacher charged with accessing, attempting to access and possessing child pornography – experienced “minimal prejudice as a result of the delay”. Rather, as the Court of Appeal summarised at para. 104:
The prejudice that he did suffer arose from: (1) the appellant’s restrictive bail conditions, requiring him to live with his father in Collingwood while maintaining his own home in Toronto and commuting to Toronto for therapy; and (2) the condition barring the appellant from accessing the Internet, which had restricted his efforts to find new employment. However, the trial judge found that the vast bulk of the prejudice to the appellant came from the nature of the offences and its impact on his occupation as a teacher. This is not prejudice flowing from delay.
[58] The net delay in Coulter was 23 months – five months in excess of the presumptive ceiling prescribed in Jordan for cases tried in provincial courts. However, six months of that delay had been caused by a “discreet event”, which took the “remaining delay” below the eighteen-month ceiling, and thus put the onus on the defendant to show that the delay was unreasonable. Nevertheless, the dynamic in that case between the court’s assessment of prejudice arising from the delay and prejudice flowing from the charges is instructive.
[59] The nature of the charges faced by the defendant in Coulter were such that, regardless of the outcome of his case, as the Court of Appeal put it (at para. 24) “it was unlikely that he would ever be able to return to his chosen profession”. Mr. Salt, by contrast, has been able to substantially overcome the negative economic consequences that initially flowed from the charges against him.
[60] Furthermore, the – albeit restrictive - conditions of Mr. Salt’s bail are less onerous than those in Coulter and have been modified on four occasions to make it easier for him to carry on his businesses and discharge his responsibilities as a spouse, parent and son.
[61] So far as the effect of the delay on Mr. Salt’s right to a fair trial is concerned, the principal evidence against him is said to be that of a police agent whose anticipated evidence is supported by photographs, recordings and text messages. While it is axiomatic that memories fade over time, the nature of the evidence that the Crown will be proffering is such that, in my judgment, the effluxion of time is unlikely to have a significant impact on the quality of that evidence.
[62] On behalf of Mr. Salt it was suggested that there are also issues relating to the loss of original text messages. It is unclear what the relationship is between the loss of this evidence and delay or how that may affect the evidence admitted at trial. Suffice it to say that if the case proceeds to trial, Mr. Salt will retain his rights and remedies arising from any loss of evidence that has occurred.
[63] Finally, while I acknowledge the comments of Phillips J. concerning aspects of the conduct of the prosecution which he found wanting, there was a greater level of tolerance in the pre-Jordan regime – which, to some extent both the prosecution and the defence relied on – for parties who failed to apply the vigour now expected to move cases along in a timely way.
Decision
[64] In conclusion, while I accept that the delay has indeed prolonged the impact of the prejudice to Mr. Salt which flows from the charges, I do not find such prejudice to have been significant in all of the circumstances, nor do I consider that delay has had a markedly aggravating effect. A contextual analysis, which also takes account of the serious charges faced by Mr. Salt, leads me to the conclusion that a proper application of the Morin factors does not warrant a stay of proceedings in this case.
[65] I take some comfort, in reaching this conclusion, from the fact that there was no mention of a s. 11(b) application until shortly before the scheduled commencement of the trial – over seventeen months after Jordan was handed down. Surely if the effect of the prejudice being experienced by Mr. Salt was as crushing as he asserts it has been, he would have moved sooner.
[66] For the foregoing reasons, Mr. Salt’s application is denied. As a consequence, this matter should now proceed to trial, scheduled to commence on 11 June 2018.
Graeme Mew J.
Released: 04 June 2018
OTTAWA COURT FILE NO.: 14-5224
DATE: 20180604
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
RYAN SALT
Applicant
REASONS FOR DECISION:
application FOR STAY OF PROCEEDINGS
MEW J.
Released: 04 June 2018