COURT FILE NO.: CR-16-4000004
DATE: 20180625
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen
Respondent
– and –
Ammaan Charley
Applicant
Tracy Vogel and Andrew Weafer, for the Respondent/Crown
David Midanik, for the Applicant/Defence
HEARD: June 1 and 5, 2018
E.M. Morgan, J.
I. Section 11(b) and sentencing delay
[1] This Application for a stay of proceedings under s. 11(b) of the Charter raises the question of post-judgment sentencing delay.
[2] The Supreme Court of Canada in R v Jordan, 2016 SCC 27, [2016] 1 SCR 631 observed in a footnote that it had previously held in R v MacDougall, [1998] 3 SCR 45 that s. 11(b) applies to delays in sentencing. The Court then went on to state that, “The issue of delay in sentencing, however, is not before us, and we make no comment about how this ceiling should apply to s. 11 (b) applications brought after a conviction is entered, or whether additional time should be added to the ceiling in such cases”: Jordan, n. 2.
[3] Accordingly, while it is clear that s. 11(b) applies and that it places limits on the delay that can be encountered post-conviction and prior to sentencing, neither the Supreme Court nor the Court of Appeal has yet determined how it applies and what those limits should be. As for the trial courts, the jurisprudence is divided. Some Ontario courts have applied Jordan’s presumptive 30-month limit to the sentencing phase of the trial: see R v Swanson, 2017 ONSC 710, at para 47. Others have held that the presumptive ceiling in Jordan ends at the date of decision and does not continue into the sentencing phase: see R. v. Eid, 2017 ONSC 892, at para 47.
[4] When it comes to applying Jordan and the transitional regime flowing from the change rendered by that case, timing is everything.
[5] This was made clear by the court in Eid, where the delay had, in effect, been engendered through reliance on the analysis in R v Morin, [1992] 1 SCR 771 that pre-dated Jordan:
The trial and decision phase were completed May 2, 2016 before Jordan was decided; and at a time when the law governing delay was governed by the Morin guidelines. The defendant had not launched an application based on delay under the previous guidelines. This application falls to be decided under the “transitional exceptional circumstances” in Jordan if the total time after deduction for defence delay is greater than 30 months.
[6] The Crown submits that in assessing delay during the sentencing phase of the case, the court should apply the test set out in MacDougall, which is itself an application of the s. 11(b) test for unreasonable delay set out in Morin and that for pre-trial purposes was overturned by Jordan. It takes this position because the case was “in system” when the Supreme Court’s Jordan decision was rendered; that is, the arrest date and the indictment of Mr. Charley pre-dated the Jordan decision date of July 8, 2016. Accordingly, the Crown submits that the s. 11(b) framework must be applied “contextually and flexibly”, and that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice: Jordan, at para 96.
[7] The defence, on the other hand, stresses that Jordan overruled Morin, and that pursuant to Jordan a presumptive ceiling of 30 months, minus defence delay, is the governing rule unless exceptional circumstances apply. More specifically, the defence submits that the onus of justification for exceeding the ceiling is on the Crown and that the defence need not demonstrate that it took initiatives to expedite the matter. The defence further emphasizes that, “The seriousness or gravity of the offence cannot be relied on [in elongating the presumptive ceiling]…[n]or can chronic institutional delay”: Jordan, at para 81.
[8] The governing ethic of the post-Jordan era was expressed by the Supreme Court of Canada in R v Cody, 2017 SCC 31, [2017] 1 SCR 659, at para 1: “[E]very actor in the justice system has a responsibility to ensure that criminal proceedings are carried out in a manner that is consistent with an accused person’s right to a trial within a reasonable time.” In applying this standard to the sentencing phase of this case, it is obvious that the case should proceed to conclusion as efficiently and expeditiously as possible. As the British Columbia Supreme Court said in R v Dadmand, 2017 BCSC 1644, at paras 56-7, “[i]n considering the time elapsed between verdict the anticipated end of sentencing, I also bear in mind that sentencing is an individualized process, tailored to the particular circumstances of the offender and the gravity of the offence.”
[9] Accordingly, Jordan urged courts to look to MacDougall for guidance, not to automatically apply a Morin analysis, but to glean any insight it provides as to how delay should be analyzed in a post-Jordan era. The Morin factors for assessing delay in sentencing must now be tempered by “Jordan's emphasis on the importance of facilitating a more efficient justice system, and thereby protecting the right to trial within a reasonable time”: Dadmand, at para 55. As defence counsel put it in oral argument, the analysis of post-verdict sentencing delay may still start with MacDougall – that is, it examines each step in context to determine where to allocate responsibility for delay – but the approach must now be Jordanized.
II. The present s. 11(b) Application
[10] Ammaan Charley was arrested on January 15, 2015 in relation to an armed robbery that took place on Eglinton Avenue West in Toronto. On January 27, 2017, he was convicted of the offences of robbery with a firearm, aggravated assault and possession of a loaded firearm.
[11] Mr. Charley remained in custody at the Toronto South Detention Centre (“TSDC”) from the date of his arrest, through to the end of trial, and until today. He has yet to be sentenced for the offences for which he has been convicted. The anticipated sentencing date has been today, June 25, 2018. However, given the new schedule occasioned by a recent witness brought by the Crown and by the Crown’s pending cross-examination of Mr. Charley on an affidavit filed 10 months ago, the sentencing submissions will not conclude today.
[12] Following his conviction, the Crown brought an Application under section 752.1(1) of the Criminal Code remanding Mr. Charley for the purposes of having a psychiatric assessment for use as evidence in a proposed application to have him declared a dangerous or long-term offender under s. 753 or s. 753.1. The request for psychiatric assessment was ultimately dismissed on June 22, 2017.
[13] Since dismissal of the Crown’s application for psychiatric assessment, the defence has brought a number of constitutional challenges. These challenges have resulted in numerous days of evidentiary hearings and legal argument. They have involved a challenge to pre-trial custody arrangements for remand prisoners across Ontario, which was combined with a habeas corpus application pertaining to Mr. Charley’s pre-trial detention. Those aspects of the constitutional challenge were dismissed for incorrect forum and mootness in my ruling of February 22, 2018.
[14] The balance of the defence application remains alive. It entails a challenge seeking relief under section 24(1) of the Charter based on the alleged discriminatory and unjust treatment to which Mr. Charley has been subjected at the TSDC. The evidence adduced during the course of the constitutional challenge is also relevant to the sentencing of Mr. Charley, as defence counsel has indicated that it will be applied to the issue of credit for time served under section 719(3) of the Criminal Code and to a constitutional challenge to that section.
[15] The evidentiary portion of that aspect of the constitutional challenge has not yet ended. On June 1, 2018, the Crown called its last witness in response to Mr. Charley’s evidence of mistreatment in custody, and the Crown’s cross-examination of Mr. Charley on his affidavit filed last August at the outset of the defence Charter application is yet to come.
III. The history of proceedings
[16] The timing of this case makes it what the Court in Jordan, at para 96, referred to as one potentially raising a “transitional exceptional circumstance.” That, in turn, calls for an analysis that requires a careful review of the chronology of the proceedings. The chart that forms Schedule “A” to this Judgment sets out that detailed chronology.
[17] As discussed below, there is not much disagreement between the parties with respect to the pre-trial period. The more substantive dispute is with respect to allocating responsibility for the post-judgment sentencing delay. However, it is first important to come to grips with the overall proceeding, which has been protracted and procedurally complicated as demonstrated by the chart at Schedule “A”.
IV. The pre-trial period
[18] In terms of pre-trial delay, the parties almost agree that there is very little to be addressed here. The Crown takes the position that there was a one-month period of delay in March-April 2015 that is attributable to the defence. In mid-March the Crown advised that the disclosure package was prepared and available, but it was not until mid-April that defence counsel arranged for it to be picked up.
[19] Beyond that, the Crown agrees that the defence was not responsible for any pre-trial delay. A judicial pre-trial took place in early December 2015, and on February 23, 2016 the trial date was set for almost a year later, commencing January 9, 2017. None of that long wait for trial was the defence’s fault; the record establishes that defence counsel had dates available through the summer and fall, but that could not be accommodated.
[20] The defence points out that during March-April 2015, when the disclosure package sat unretrieved at the Crown office, the case was at a standstill because the Crown was not in a position to proceed against the person who was co-accused with Mr. Charley. Whether that was the fault of the Crown or of the co-accused is not entirely clear to me, but it seems beyond dispute that it was not the fault of Mr. Charley or his counsel. The charges ultimately did not proceed against the co-accused and Mr. Charley stood for trial alone; but in March-April 2015 the charges against the co-accused were very much alive and the matter would not proceed against one accused without the other.
[21] Accordingly, whether or not Mr. Charley’s disclosure package sat for a few weeks before it was picked up is irrelevant. Any delay that took place during the early spring of 2015 is not attributable to the defence. In essence, the 24 months and 12 days that passed from the date of Mr. Charley’s arrest to the date of the trial judgment is all institutional delay. There is no pre-trial delay for which the defence can be held responsible, and nothing that amounts to an exceptional circumstance leading to a reduction of the net delay time for the pre-trial period.
V. Sentencing delay
[22] What must therefore be addressed in significantly more detail is the post-judgment sentencing delay. From January 27, 2017 to June 25, 2018, this period encompasses 17 months.
[23] The history of proceedings shows that there are four separate periods following the January 27, 2017 trial judgment which must be considered: a) the Crown’s dangerous offender application; b) the defence’s constitutional applications; and c) the two waiting periods: i) the down time preceding the Crown application, and ii) the down time preceding the defense applications. Each of these periods raises a distinct set of issues with respect to s. 11(b).
a) The Crown application
[24] On January 27, 2017, after the trial judgment was rendered, the Crown indicated that it intended to seek an order under section 752.1(1) of the Criminal Code remanding Mr. Charley for the purposes of having a psychiatric assessment in support of its proposed application to have him declared a dangerous or long-term offender. At the same time, the defence indicated that it intended to seek an order under s. 24(1) of the Charter staying the proceedings or reducing Mr. Charley’s sentence. The defence application was to be based on the difficult conditions of incarceration at the TSDC which Mr. Charley had experienced since the date of his arrest.
[25] It was the Crown’s position that the defence application should proceed first, since a dangerous offender application is a predictably lengthy process. It was the defence position that the Crown’s application should proceed first, as it was unfair to Mr. Charley to have to be cross-examined on his affidavit supporting his own Charter application before knowing what he was realistically facing in the Crown’s application.
[26] I ultimately indicated that if the defence feels it has grounds for a Charter application, it is not for the court to tell them whether and when to bring it. In any case, the sequence of whether the Crown brought its application first or the defence brought its application first was of little substantive consequence. The matter was then adjourned in order to allow the Crown to develop a timeline for the dangerous offender application.
[27] In due course the Crown served its materials for the s. 752.1 application, and after a number of brief appearances argument on that application was heard on May 18, 2017. The decision was reserved, and June 8, 2017 was scheduled for a ruling on the Crown’s application.
[28] On June 8, 2017, I read my ruling into the record. Defence counsel pointed out that during the course of my ruling I had misapprehended an important fact with respect to Mr. Charley’s prior criminal record – that is, I had mistaken a youth conviction for an adult conviction, which was central to my analysis: see R v Charley, 2017 ONSC 3496. It was not contentious that I had made this factual error; Crown counsel agreed that the prior offense in question was indeed a youth offence rather than an adult offence. I therefore indicated that it was necessary for me to re-visit my ruling with the proper factual record in mind.
[29] Further submissions were made by both counsel on the impact of Mr. Charley’s prior record, including youth offences. The matter then adjourned to June 22, 2017 for a ruling. On that date I dismissed the Crown’s s. 752.1 application. Since a psychiatric assessment is a threshold requirement for a dangerous offender application, that ruling effectively ended the dangerous offender proceedings.
[30] The Crown submits that a dangerous offender application is a unique deviation from the usual sentencing process, and that it can often take a very long period of time. Crown counsel argues that this elongation of the proceeding is not the fault of the prosecution but rather is inherent in the amount of information needed to be collected for a dangerous offender evaluation. Gonthier J. made a similar point on behalf of the Supreme Court of Canada in R v Jones, [1994] 2 SCR 229, at para 124: “As with all sentencing, both the public interest in safety and the general sentencing interest of developing the most appropriate penalty for the particular offender dictate the greatest possible range of information on which to make an accurate evaluation of the danger posed by the offender.”
[31] For this reason, although MacDougall makes it clear that sentencing delay is generally to be counted as part of the delay which can intrude on a person’s section 11(b) rights, a dangerous offender application does not necessarily so intrude. “Dangerous offender and long-term offender applications are the type of proceedings that obviously have a greater inherent time requirement by virtue of their seriousness, complexity, and voluminous materials”: R v Vincent, 2009 CarswellOnt 7404, at para 68. To the extent that the delay in the proceedings is inherent to a dangerous offender application – and the threshold s. 752.1 application is certainly an inherent part of such an application – it should not be counted against the Crown.
[32] Having said that, although dangerous offender applications are often quite lengthy, this one turned out not to be particularly long in duration. Setting aside for the moment the procedural debate and disclosure time that formed the prelude to the application, the s. 752.1 application itself was argued on May 18, 2017 and finally decided 1 month and 4 days later, on June 22, 2017. It is not on its own a major cause of delay in the overall context of this case.
[33] In view of that timing, it is fair to the Crown as well as to the defence to reduce the sentencing delay here by one month. But for the time it took for the dangerous offender application to be heard and resolved, the 17-month sentencing delay would have been a maximum of 16 months. Although bringing an unsuccessful application of this nature is certainly not the defence’s fault, it is equally incorrect to hold the 1-month delay engendered by the hearing of the s. 752.1 application against the Crown. That level of delay is inherent in a dangerous offender proceeding.
b) The defence applications
[34] As rarified as a dangerous offender application might be, the defence applications here raise even more unique questions. As indicated, defence counsel notified the court on January 27, 2017 that he planned to bring a Charter application with respect to the conditions of Mr. Charley’s detention at TSDC. Defence counsel explains that Mr. Charley could not come up with an acceptable recognizance arrangement, and so he never was granted bail. He therefore has been at the TSDC for roughly three and a half years, from January 15, 2015 until today.
[35] Defence counsel indicated at the June 22, 2017 hearing which dismissed the dangerous offender application that he would be filing materials with respect to the treatment of Mr. Charley at the TSDC. Those materials included records that had to be subpoenaed from the detention facility.
[36] The Crown had planned on pursuing the dangerous offender application, and was not in a position to proceed immediately to a sentencing hearing upon its dismissal. Among other things, the Crown wanted a pre-sentence report, which typically takes between one and two months to produce. Although the court offered a number of days in August 2017 for the next stage of he proceeding, three days in September – the 27th, 28th and 29th – were set aside for the sentencing hearing.
[37] At lease three days were deemed necessary due to the prospect that the sentencing hearing would include a Charter application by the defence, the evidence on which would also form part of the defence’s sentencing submissions. It was the defence position that the evidence of harsh treatment of Mr. Charley in detention provided grounds for an application to stay the proceedings, but that, in addition, the same evidence would also be relevant to sentencing in the even that a stay was not granted. Defence counsel made it clear that Mr. Charley would be seeking a reduction in sentence based on his difficult experience at the TSDC awaiting and following the trial.
[38] The defence served its Notice of Application, Notice of Constitutional Questions, supporting affidavit and factum in August 2017, and the sentencing phase of the trial commenced with the defence application on September 27, 2017. That has lasted, quite literally, until today. The defence called several officials from the TSDC as well as the Commissioner of Corrections of Canada. In the meantime, counsel for the Crown prosecution was joined on the government side of the case by counsel from the Ministry of the Attorney General (Constitutional Law Branch) and counsel from the Ministry of Community Safety and Correctional Services (Ontario). Counsel from the Department of Justice (Canada) also made an appearance.
[39] Partly due to the number of witnesses called by the defence and the length of their testimony, and partly due to my own crowded court schedule in the fall of 2017, the presentation of evidence going to the constitutional challenge/sentencing hearing went on for 7 sporadic days through December 2017. The subject matter had to do with the difficult conditions at the TSDC in two respects: the general policy in Ontario of placing remand prisoners in maximum security facilities without evaluating them, and the particular treatment and disciplinary measures to which Mr. Charley was subject.
[40] The constitutional challenge to Ontario’s blanket policy about placing pre-trial detainees in maximum security detention centres did not pertain only to, or particularly to, Mr. Charley. However, it did provide a forum for evidence that is directly relevant to Mr. Charley’s experience. Thus, for example, this aspect of the case introduced evidence that remand centres such as TSDC are always maximum security jails. Inmates are not assessed for the appropriate level of security with respect to their individual situations. They are all placed in either direct supervision, where there is some face-to-face contact with corrections officers and inmates can move from the yard to their cells if there is no lockdown, or indirect supervision, where prison staff are in secure modules and cell doors are locked when the inmates are in the yard so there is no free movement. In cases where the officers deem protection or punishment is warranted, the inmate is placed in segregation.
[41] The evidence adduced in this portion of the case also showed that the TSDC has virtually no recreational facilities, and that the “yard” where inmates can stroll around for some time each day is in fact an indoor area adjacent to the cells with indirect sunlight through high windows that provide no view of the outdoors except for a portion of the sky. The evidence provided by corrections officials also established that there is no library to speak of at the TSDC, there is minimal reading material available for inmates, few educational programs, double bunking in cells designed for a single bunk, no visitation rights except on screen through a video camera, and routine invasive searches of inmates.
[42] In addition, the evidence revealed chronic problems with staff absenteeism at TSDC, leading to frequent full or part-day lockdowns. The documentation provided by TSDC officials showed that from the time of Mr. Charley’s arrest in January 2015 until August 2017, the latest date that statistics were available, there were over 450 lockdowns at TSDC. During lockdowns, there is no exiting of cells or any recreation whatsoever for inmates.
[43] As for the evidence relating specifically to Mr. Charley’s conditions of detention, TSDC officials testified that in July 2015 he was placed in segregation for having a single marijuana joint in his possession, and from August to November 2015 he was placed in indirect supervision due to a lack of bed space in the jail. In November 2015 he was again placed in segregation for refusing to willingly participate in a strip search; this time he was placed in a “dry cell” with a special toilet so that his stool could be inspected for numerous days to determine whether he had swallowed drugs or other contraband, but it turned out there was nothing to be found. Thereafter he was placed in indirect supervision until December 2015 when he was again placed in segregation for refusing a “direct order” when an officer told him to put his arm in his cell instead of leaning against the bars and having his arm protrude. He managed to remain in direct supervision from January 2016 to November 2016, when he was again placed in indirect supervision as a punishment for not following some unidentified rule.
[44] From November 2016 to August 2017, Mr. Charley remained in segregation for “fighting” with an officer, in an incident which Mr. Charley contends started with the officer shoving him and which landed Mr. Charley in the hospital. The last witness produced by the Crown, John Marchant, the former Operational Manager at the TSDC, testified about this incident and the discipline procedure that followed it. Despite the fact that Mr. Marchant identified himself as an eye witness to the event and authored the internal report on it, his testimony shed little light on what actually occurred. His written report states that several corrections officers witnessed the fight, but provides no names and Mr. Marchant, who was a long-time staff member at TSDC, claimed to not know any of the officers’ names. What is clear is that Mr. Charley’s version of events was barely noted and that, in general, the idea of due process had not really taken hold in the facility’s disciplinary procedures.
[45] In any case, when Mr. Charley came out of segregation he was placed in indirect supervision until November 2017, when he was placed back in direct supervision. One witness, Robert Large, the TSDC’s Deputy Superintendent for Treatment and Programs, explained that there was nothing punitive about the way Mr. Charley was shuffled between direct and indirect supervision during the course of his detention. He went out of his way to attempt to counter the defence view of the disciplinary system at the TSDC as petty and harsh. Mr. Large testified that moving an inmate from direct supervision to indirect supervision was a “consequence” rather than a “punishment”, as if the corrections officers were simply guiding or coaching remand prisoners like Mr. Charley into better behaviour by limiting their human contact to the bare minimum. The fact is, however, that the corrections jargon and use of grade-school euphemisms do not do much to hide the punishing nature of Mr. Charley’s stay at the TSDC.
[46] The evidence also shows that Mr. Charley had long taken virtually every educational program or course available to him at TSDC. Mr. Large produced a list of such courses offered at the jail; it was obvious in perusing the list that there was not a lot to occupy one’s mind for a three-and-a-half-year stay.
[47] Interestingly, during his testimony Mr. Large denied, albeit hesitantly, that Mr. Charley had availed himself of all of the available courses. Under cross-examination he identified several courses that Mr. Charley had apparently ignored or entirely overlooked and that remained available for him to take: basic parenting, as well as Catholic mass and essentials of Judaism. Mr. Charley has not had a chance to explain why he skipped these course offerings. I would note, however, that Mr. Charley has no children. Moreover, while I have not inquired into his religious affiliation, if any, defence counsel suggested that Mr. Charley is unlikely to require schooling in either of the two denominations on offer.
[48] The Crown, of course, presented its own evidence and has its own version of many of the incidents and policies at issue in the defence’s Charter application. The evidence of TSDC officials is that the policy of placing all remand prisoners in maximum security is designed for efficiency, since most of them are in the detention for a short time before they are released on bail and there is no time for a full-scale assessment of them. The dearth of educational and recreational facilities is explained along similar lines, while the indoor ‘yard’ and the visitation only through video link are justified by prison staff on security grounds. In addition, the Crown presented evidence to dispute the defence contention that disciplinary process at the TSDC is less then due, or that the discipline treatment meted out to Mr. Charley was undeserved or unduly punitive.
[49] It is necessary to sketch out this evidence not in order to assess its strength here; rather, the point is to come to an understanding of its relevance to the overall case. While defence counsel adduced the general corrections policy evidence and specific TSDC operational evidence in support of its constitutional challenge, much of the evidence was, as the defence had said, potentially relevant to Mr. Charley’s sentencing. Laskin JA observed in R v Rezaie (1996), 31 OR (3d) 713, 721, that “[i]ncarceration at any stage of the criminal process is a denial of an accused’s liberty.” That fact, together with what the Supreme Court of Canada called the “qualitative impact” of detention – “the harshness of the conditions [of bail or detention]” – influence the granting of enhanced credit in the sentencing process: R v Summers, 2014 SCC 26, [2014] 1 SCR 575, at para 50.
[50] Accordingly, a significant quantity of the evidence on the defence’s Charter application would have been presented during the sentencing process even if no separate constitutional challenge were being raised. Although, as indicated, it is not my task to determine the strength of the defence position here, on its face the evidence of the conditions of Mr. Charley’s pre-trial and pre-sentencing detention is legitimately directed to his efforts at establishing enhanced credit on sentencing.
[51] This, in turn, is relevant to the s. 11(b) calculus. It helps refine the amount of time attributable to the defence and deducted from the number of months of delay in order to arrive at the relevant “net delay”. The Supreme Court stated in R v Cody, 2017 SCC 31, [2017] 1SCR 659, at para 29, that “‘defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay’ and should not be deducted.” This is an important point in Mr. Charley’s case since the constitutional challenge brought by the defence was in significant part a necessary ingredient in the defence position on sentencing – a procedure to which the defence is bound to respond, and which is not attributable to a Charter challenge that impugns the entire system of detention for remand prisoners.
[52] In addition, the Crown, although acting in good faith, was also not particularly expeditious in its response to the post-trial Charter application brought by the defence. That application, as indicated, commenced in September 2017, and in October the Crown (represented at that point by the Attorney General of Ontario (Constitutional Law Branch)) gave notice that it intended to move to dismiss the application on the grounds that it was partly moot and that it should be brought as a civil application rather than as part of the sentencing stage of a criminal trial. For reasons internal to the Constitutional Law Branch – I do not believe that the lawyers arguing the case were at fault here – the Crown’s factum was not actually served until December 2017 and the motion to dismiss did not get argued in court until January 9, 2018. At that point, the evidentiary portion of the defence constitutional application was already completed – or so I thought at the time.
[53] On the merits, I agreed with the Crown’s motion. On February 22, 2018, I dismissed the defence application insofar as it dealt generically with pre-trial detention and did not specifically address Mr. Charley’s personal situation. In that ruling, the defence was told that the remaining portion of its constitutional application – i.e. the portion pertaining specifically to Mr. Charley’s detention conditions – would be argued in the context of submissions on sentencing. The idea was that the defence could argue for its section 24(1) relief under the Charter, and even if that relief were denied the same evidence would also support the defence position on sentencing. The final paragraph of my February 22, 2018 ruling, para 51, stated:
A sentencing hearing is to be held at the earliest practicable time. As indicated, it will be open to Mr. Midanik to make submissions on Mr. Charley’s behalf based on Heads of Relief ‘a’, ‘e’, and ‘g’ of the Application. Those submissions should be made in the context of the sentencing hearing itself.
[54] At that point, three days were scheduled for the hearing: June 1, 5, and 25, 2018. In keeping with my ruling which dismissed a portion of the constitutional application and kept alive another portion of that application, defence counsel issued a revised Notice of Constitutional Question and both sides filed final factums.
[55] When we convened on June 1, 2018, counsel for the prosecuting Crown indicated that she still had more evidence to adduce in response to the defence application. The Crown intended to call one more witness – Mr. Marchant, who was identified as yet another staff person from TSDC – and, in addition, it wanted to cross-examine Mr. Charley on his affidavit filed back in August 2017 at the very outset of the defence application. That took me somewhat by surprise. After all, both sides had already filed their factums and appeared ready for oral argument. It is rather unusual to submit more evidence after written argument is already before the court.
[56] Counsel for the Crown submitted that since defence counsel had only recently served and filed its revised Notice of Constitutional Question, the Crown was still entitled to bring forward more evidence. The Crown was of the view that it needed Mr. Marchant to respond to the defence allegations about the discipline process at the TSDC, and, in addition, it wanted to take the opportunity to cross-examine Mr. Charley on various matters to which he had deposed at the outset of the application. I agreed that, formally speaking, the Crown had a right to submit its full evidentiary response to the defence application, and that if Crown counsel wanted to introduce a new witness and engage in a new cross-examination it could do so.
[57] That said, the timing of the Crown’s evidentiary response to the defence application is not something for which the defence must take responsibility. The calling of another witness and the decision to now cross-examine Mr. Charley, while within the Crown’s rights, ensured that the days set aside for sentencing submissions, which included the balance remaining on the defence application, will not suffice. Accordingly, today, initially scheduled as the last day of a three-day sentencing hearing, is now the first day. I do not know when counsel are available for the other two days, although experience tells me that any re-scheduling engenders some delay – either a matter of days or weeks.
[58] As already explained, the defence application commenced on September 27, 2017 and continued until today, June 25, 2018. That is just 2 days shy of 9 months. Part of that application was dismissed in my February 22, 2018 ruling and part remained alive; and some of the evidence on the part that was dismissed remained relevant for sentencing purposes. Thus some portion, but not all, of the nearly 9 months is deductible from the presumptive Jordan time frame as time attributable to the defence.
[59] Furthermore, some of the 9 months consumed by this application is attributable to the Crown. As indicated, I do not know why counsel for the AG Ontario Constitutional Law Branch waited from October to December to bring its motion to dismiss, and I do not know why counsel for the Crown waited until this month to introduce a witness to respond to evidence that was heard in late 2017 or to cross-examine Mr. Charley on his affidavit of August 25, 2017. As indicated, both of those timing decisions were within the Crown’s rights, and had they come earlier in the timeline of the case would have caused no real concern. There is no doubt, however, that the timing of these portions of the Crown’s response to the defence application caused the defence application to be more protracted than it otherwise would have been.
[60] The Supreme Court specifically commented in R v Vassell, 2016 SCC 26, [2016] 1 SCR 625, at para 5, that despite being engaged in complex proceedings, the Crown “was required to remain vigilant that its decision not compromise the s. 11(b) rights of the accused persons.” Although the defence application here has been complex and lengthy, the combination of two facts – a) that the Crown was responsible for part of the time consumed, and b) that a good portion of the evidence on the application comprised a legitimate and necessary part of the defence’s position on sentencing – removes some of the 9-month duration of the application from the defence’s shoulders.
[61] I would apportion the responsibility as 50-50. The fact that the defence brought a constitutional challenge to Ontario’s overall pre-trial detention policy that was ultimately dismissed, and the fact that the defence brought a constitutional challenge that is a legitimate part of its case on sentencing and that the Crown contributed to its lengthy duration, are roughly equal.
[62] In addition, at least one month of the 9-month delay was attributable to my own difficult schedule. Accordingly, of the 16 months of sentencing delay (i.e. 17 months, less 1 month for the dangerous offender application which does not count against the Crown), the defence is responsible for 4 months, the Crown is responsible for 4 months, and institutional delay is responsible for 1 month. The 4 months for which the defence is responsible constitute an extraordinary circumstance and the case was justifiably elongated by those 4 months. That leaves 12 months of sentencing delay to be taken into account in the s. 11(b) analysis.
c) The winter and summer of 2017
[63] There are two in-between times to consider with respect to sentencing delay. The first is the time between the trial judgment on January 27, 2017 and the hearing of the first stage of the dangerous offender application on May 18, 2017. The second is the time between the dismissal of the dangerous offender application on June 22, 2017 and the start of the defence Charter application on September 27, 2017. Each of these must be examined in turn.
i. The prelude to the Crown’s application
[64] The trial judgment in which Mr. Charley was found guilty was rendered on January 27, 2017. On that day, the Crown indicated that it was contemplating a dangerous offender application. Defence counsel has indicated that the Crown had informally advised him in December 2017 that they were contemplating this in the event that Mr. Charley was found guilty. That timing makes sense, of course, since a dangerous offender application is premised on the defendant’s criminal antecedents which were already well-known to the Crown. Indeed, at the next appearance, on February 22, 2017, counsel for the Crown indicated that it began requesting from various government agencies some of the relevant records as far back as October 28, 2016.
[65] Given the Crown’s difficulties in getting the records together, dates were selected for the first hearing in the dangerous offender application several months down the road. Ultimately, submissions were made on the Crown’s application for an assessment under s. 752.1 on May 18, 2017. That makes for a delay of 3 months and 3 weeks from the date of the trial judgment to the date of the hearing on the first stage of the Crown’s dangerous offender application.
[66] Although this portion of the delay was engendered by a Crown application, it is not fair to place the entire blame on the Crown. When it comes to dangerous offender applications, a lengthy process is in many respects built into the system. One cannot expect the Crown to have started any sooner than it did, especially given Crown counsel’s advice that the Crown began the task of gathering the relevant records together months before the trial even began.
[67] That said, the Crown followed the conviction at trial with what was ultimately an unsuccessful attempt to have Mr. Charley declared a dangerous offender. As defence counsel noted in his submissions, that process put Mr. Charley in extreme jeopardy, although he was eventually relieved of that jeopardy by my ruling dismissing the Crown’s application on June 22, 2017. The court cannot say that, having endured the stress of a pending application that could result in his indefinite incarceration, Mr. Charley’s Charter rights were entirely suspended in the meantime.
[68] Although I do not fault Crown counsel for the delay, I do not understand why it took so long for the records to be delivered to Crown counsel from the relevant governmental authorities. Transcripts of previous proceedings, Mr. Charley’s youth court files, and disciplinary records from TSDC and possibly other facilities where Mr. Charley had previously spent time, had to be retrieved. It seems to me that this should have taken a shorter time to gather than it did. October 28, 2016 to sometime before May 18, 2017 is a very lengthy amount of time to process one individual’s records.
[69] The impression made by this timing is that the case was just one more cog in a bureaucratic wheel, which at best moves at a moderate pace. While Crown counsel may be diligent, governmental process has not changed in response to the Supreme Court’s ruling in Jordan. Although the presumptive time frame for violating Mr. Charley’s s. 11(b) rights could already be seen on the horizon, the dangerous offender application moved along much as it would have done prior to Jordan.
[70] As indicated, the substantial delay at this point had more to do with the cumbersome process of obtaining records kept by different governmental departments than with Crown counsel. But that is little comfort to Mr. Charley. From the point of view of the defence and s. 11(b) of the Charter, the government – whether it is the Crown, the province’s Constitutional Law Branch, the Youth Court records office, the Ontario Ministry of Correctional Service, one or more detention facilities, or, for that matter, the Court as an institution – can be taken as monolithic when it comes to scheduling delays. In a Jordanized universe, the question is whether or the defence is responsible for any of the delay; if not, the time toward a Charter violation marches on.
[71] Of the 3.75 months between the trial judgment and the s. 752.1 hearing date, I would attribute 2 months to inherent delay and 1.75 months to delay attributable to the Crown writ large. That means that 2 months are to be deducted from the 12 months of sentencing delay (17 months minus 1 month for the hearing of the Crown’s application and 4 months for the defence application). That leaves 10 months still to be considered under the rubric of sentencing delay.
ii. The prelude to the defence application
[72] As already indicated, the Crown could have moved directly into a sentencing hearing following the dismissal of its s. 752.1 application on June 22, 2017. However, it was not prepared to do so. Instead, it sought to make time for a pre-sentence report and to prepare itself for sentencing submissions. Counsel for the Crown was available to commence the sentencing hearing on September 7 and 8 or September 26 through 29, 2018.
[73] In the meantime, defence counsel subpoenaed records from the TSDC to support Mr. Charley’s Charter application and his position on sentencing. Those records were delivered by the TSDC on August 3, 2017, and the defence served its Notice of Constitutional Question, Notice of Application, supporting affidavit of Mr. Charley, and factum on August 25, 2017. On August 29, 2017, defence counsel sent a disclosure request to the Crown for a number of relevant items, some of which constituted Third Party records. After a hearing for directions sought by the defence, counsel for the AG Ontario Constitutional Law Branch served a Notice of its proposed motion to dismiss the defence application on October 10, 2017 (which, as indicated earlier, was not perfected until December and was not actually argued until January 9, 2018).
[74] To their credit, defence counsel and the counsel for the various branches of the Crown (i.e. prosecuting Crown, A.G. Ontario (Constitutional Law Branch), Ontario Ministry of Correctional Service, and federal Attorney General) went into cooperative mode. The Third Party records application was resolved without the need for a hearing. On November 7, 2017, the date that had been set aside for the Third Party records application, the evidence portion of the defence application commenced.
[75] The question at this juncture is where to place responsibility for the 3-month gap between dismissal of the Crown’s dangerous offender application on June 22, 2017 and commencement of the sentencing process/Charter application on September 27, 2017. As indicated, the Crown sought a pre-sentence report on Mr. Charley. That is a standard and potentially very helpful piece of evidence to be weighed in a sentencing hearing, and it often takes up to 6 weeks for it to be produced. The Crown would also have needed at least some time to read and incorporate the report’s findings into their sentencing submissions. I therefore cannot fault the Crown for 2 months of the 3-month delay.
[76] That said, I am compelled to point out that this was the summer of 2017, and that Jordan had by then been decided a year earlier, in June 2016. Crowns across the country were on notice of its time frame, there was no reason to put off the sentencing hearing (or, as it turned out, the first day of the defence application that ultimately forms part of the sentencing hearing) for three months. Having started preparing in June, it seems to me that the Crown could have been prepared to commence the sentencing hearing in August. Defence counsel points out in argument that the transcripts show that due to my own upcoming schedule that fall, I offered to make a number of dates available in August 2017 so that the matter could proceed expeditiously.
[77] Generally, to rebut the Jordan presumption of undue delay beyond 30 months, “Crown counsel must show that the delay is reasonable because of the presence of exceptional circumstances… Exceptional circumstances are circumstances that lie outside the Crown’s control”: R v Manasseri, 2016 ONCA 703, [2016] OJ No 5004, para 305, 307. They are discrete circumstances that are exceptions to the time that otherwise inheres to the relevant procedures: R v Williamson, 2016 SCC 28, [2016] 1 SCR 741, at para 23.
[78] The Crown having commenced the sentencing phase of the trial three months after the dismissal of the dangerous offender application rather than two months was not a result of any exceptional circumstance. In another case this timing might have been business as usual. But since June 2017 marked the 30-month point since Mr. Charley’s arrest in January 2015, this case was not in that category.
[79] I would therefore conclude that while 2 months (of this 3-month period) should be deducted from the overall delay period, 1 month should remain in the delay calculation. Subtracting these 2 months from the other 10 months of sentencing delay (17 months, minus 1 month for the D.O. hearing and decision, minus 4 months for the defence application, minus 2 months for the delay in bringing the D.O. application), we are left with a net post-judgment sentencing delay of 8 months.
VI. Application of section 11(b)
[80] In total, the net delay in this case is 32 months – 24 months of pre-trial delay unattributable to the defence, and 8 months of sentencing delay which the Crown cannot justify as resulting from exceptional circumstances. The net delay must then compared to the presumptive 30-month ceiling in Jordan: see R v Coulter (2016), 2016 ONCA 704, 133 OR (3d) 433 (Ont CA), at paras 34-36. This case is, of course, above the presumptive ceiling.
[81] The Supreme Court of Canada has long held that among the purposes of s. 11(b) is the protection of security of the person. The constitutional requirement of the right to be tried within a reasonable time “seeks to minimize the anxiety and concern” of the accused: R v Morin, [1992] 1 SCR 771, at para 21. This aim was reiterated in Jordan, at para 202, where the Court reasoned that it is not necessary under s. 11(b) for a defendant to establish actual prejudice. In the Supreme Court’s view, at para 203, “prejudice to the liberty interests of the accused, notably being detained in custody or subject to very restrictive bail conditions pending trial, is taken into account in deciding what a reasonable time for trial would be.”
[82] Counsel for the Crown concedes that restrictive bail conditions can amount to prejudice for s. 11(d) purposes. The Crown stresses that, properly understood, prejudice must be a result of the delay, not a result of the arrest itself. As an illustration, Crown counsel poses the case of a person who is released on such restrictive bail conditions that he or she cannot drive and so cannot work for a lengthy period of time. This is then contrasted with the situation of a person who complains about the arrest and detention itself, and who presents the stress of facing criminal charges as a form of prejudice. The Crown states that while the former person is prejudiced by delay in the s. 11(b) sense, the latter is not.
[83] The Crown is correct in this view, but the illustration misses the point made by the defence here (and by the Supreme Court in Jordan). If restrictive bail conditions preventing a person from driving and working for many months amount to prejudice, then, ipso facto, restrictive detention conditions preventing a person from walking outside and having any freedom at all for many months amount to prejudice. As the Court put it in Jordan, para 204, “[t]he right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions.”
[84] The only difference between waiting for trial (including waiting for sentencing) while on strict bail conditions, and waiting for trial or sentencing while at the TSDC, is that waiting at the TSDC is much worse. It would be hard to imagine a form of house arrest that is comparable to the living conditions, regimentation, inactivity, chronic lockdowns, invasive searches, lack of family visitation, and harsh punishments for petty rule violations that the TSDC officials themselves described during the course of the defence application in this case. Far from mitigating the length of the proceeding, the conditions under which Mr. Charley has spent the past 32 months accentuated his insecurity and underscored the prejudice to his Charter right to a trial within a reasonable time.
[85] As stated at the outset, the Supreme Court has recognized that the new approach to delay, with a 30-month presumptive limit, could not be applied without qualification to cases that pre-date the release of Jordan. Those transitional cases, the Court reasoned, had moved through the system in reliance on the standard set out in Morin as the pre-Jordan measure of unreasonable delay: Jordan, at para 103.
[86] While that partly describes the present case, the real issue here is with respect to the delays occasioned after the Jordan decision was rendered. The 24-month delay until the commencement of trial in January 2017 was in any case within the presumptive limit; it was the post-judgment delay in sentencing which should have been done more quickly and which pushed this case over the limit. That phase of the case began in January 2017, fully 6 months after the Supreme Court’s judgment in Jordan and, therefore, when no one can claim reliance on the pre-existing state of the law. Mr. Charley cannot be made to shoulder the failure to expedite the case once all parties were aware of the new s. 11(b) parameters.
VII. Disposition
[87] Mr. Charley’s rights under s. 11(b) of the Charter have been infringed. The proceedings against him are hereby permanently stayed.
Morgan, J.
Released: June 25, 2018
SCHEDULE “A”
Date
Description/Event
Length of Delay
Jan. 15/15
Arrest
Jan. 16/15
Remand for bail hearing (C/P)
1 day
Jan. 19/15
Remand for bail hearing (C/P)
3 days
Jan. 21/15
Adjourned for bail hearing (C/P)
2 days
Jan. 27/15
Adjourned for bail hearing (C/P)
6 days
Feb. 9/15
Adjourned for bail hearing (C/P)
13 days
Feb. 10/15
Adjourned for bail hearing (C/P)
1 day
Feb. 19/15
Bail hearing – denied bail on secondary & tertiary grounds (C/P)
10 days
Feb. 20/15
Remanded to 1000 Finch Ave.
7 days
Mar. 12/15
Appearance re disclosure
19 days
Apr. 2/15
Appearance re disclosure
23 days
Apr. 16/15
Appearance re disclosure
14 days
Apr. 24/15
Appearance re disclosure
5 days
May 14/15
Date for judicial pre-trial for June 9, 2015
23 days
June 9/15
Judicial pre-trial – set prelim date for Nov. 30, 2015
26 days
June 18/15
Application to stay in jurisdiction
July 8/15
Application to stay in jurisdiction
July 23/15
Application to stay in jurisdiction – filing notice of election and statement of issues
Oct. 13/15
Confirmation of prelim hearing – statement of issues
Nov. 30/15
First day of prelim hearing
Total 4 months 21 days from June 9, 2015 to Nov. 3, 2015
Dec. 1/15
Second day of prelim hearing
1 day
Dec. 2/15
Third day of prelim hearing - committed to stand trial – Remanded to Jan. 28, 2016 at the Superior Court of Justice
1 day
Jan. 28/16
First appearance Superior Court of Justice – date set for judicial pre-trial Feb. 23, 2016
26 days
Feb. 23/16
Trial set for Jan. 9, 2017 for 3 weeks
10 months 14 days
Nov. 30/16
Trial readiness date
n/a
Dec. 6/16
Remain in jurisdiction for trial preparation
n/a
Jan. 9/17 to Jan. 27/17
Trial and decision
16 days
Jan. 27/17
Adjourned to Feb. 22, 2017 re decision re s.752.1
26 days
Feb. 22/17
Adjourned to May 18 and 19, 2017 for s.752.1 application
2 months 26 days
Mar. 15/17
Remand to remain in jurisdiction
April 6/17
Remand to remain in jurisdiction
May 7/17
Remand to remain in jurisdiction
May 18 & 19, 2017
Argument on 752.1 application; Adjourned to June 8, 2017 for ruling
30 days
June 8/17
Ruling – to be reconsidered; Adjourned to June 22, 2017
14 days
June 22/17
S.752.1 application dismissed – adjourned to Sept. 27, 2017 for sentencing hearing
2 months 21 days
July 13/17
For return of subpoena re jail records; Adjourned to Aug. 3, 2017
Aug. 3/17
Receipt of documents from jail; Adjourned to Aug. 24 to remain in jurisdiction
Aug. 24/17
Adjourned to Sept. 13 to remain in jurisdiction
Sept. 13/17
Application to direction; Adjourned for direction
14 days
Sept. 27/17
Adjourned to Nov. 7, 2017 for O’Connor application
1 month 10 days
Oct. 17/17
Interim remand to remain in jurisdiction
Nov. 7/17
Adjourned to Nov. 27 before Justice Morgan for evidence
20 days
Nov. 27/17
Further evidence; adjourned to Nov. 28 for motion to quash subpoena to Mr. Head; further evidence
1 day
Nov. 28/17
Adjourned to Nov. 29 for further evidence
1 day
Nov. 29/17
Adjourned to Jan. 9 & 10, 2018 for further hearing
41 days
Dec. 19/17
Interim remand to remain in jurisdiction
Jan. 9/18
Crown application to dismiss portions of defence Charter application – granted application served and filed by Sept. 24, 2017; Adjourned to Jan. 10, 2018
1 day
Jan. 10/18
10 day further evidence; adjourned to Feb. 22, 2018 for ruling on application
1 month 12 days
Feb. 22/18
Ruling dismissing habeas corpus application and dismissing s.52 challenge to provincial legislation without prejudice; adjourned to Mar. 23, 2108 for defence application for direction
1 month 1 day
Mar. 23/18
Defence application for direction; Adjourned to June 1 & 5, 2018 for submissions
2 months 9 days
June 1/18
Prospective submissions date
June 5/18
Prospective submissions date
4 days
June 25/18
Prospective sentencing date and conclusion of proceeding
20 days
Entire Length of Delay: 41 months, 10 days (1257 days) [January 15, 2015 - June 25, 2018]
COURT FILE NO.: CR-16-4000004
DATE: 20180625
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty The Queen
– and –
Ammaan Charley
Defendant
REASONS FOR JUDGMENT
E.M. Morgan, J.
Released: June 25, 2018