R. v. Picard, 2018 ONSC 3828

COURT FILE NO.: 12-M7874

DATE: 2018/06/29

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

ADAM PICARD

Applicant

D. Mack and L. Tansey, for the Crown

M. Crystal, for the Applicant

HEARD: May 8, 2018

RULING – 11(b) application

PHILLIPS J.

1Adam Picard is charged with first degree murder. He applies, again, for a stay of proceedings, alleging that his right to be tried within a reasonable time, as guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms (the “Charter”), has been infringed.

2On May 8, 2018, I requested that counsel file a written submission in support of their position on the issue, making sure to put their best foot forward. I made clear that I was intent on performing a preliminary assessment of the merits of the application in accordance with Rule 34.02 of the Criminal Proceedings Rules for the Superior Court of Justice.

Background Facts

3On December 12, 2012, Mr. Picard was charged with the first degree murder of Mr. Fouad Nayel, whose death is believed to have occurred on June 17, 2012.

4From December 12, 2012 to November 15, 2016, the matter unfolded over a series of steps best captured in the following chart:

Date	Information	Month
December 12, 2012	Mr. Picard is arrested	0
December 13, 2012	Information is sworn	0
May 23 – 24 and June 19 – 20, 2013	Bail hearing is held	5 - 6
June 25, 2013	Bail is denied	6
July 18, 2013	Mr. Picard dismisses his lawyer	7
January 28, 2014	Mr. Picard hires Mr. Greenspon	13
March 26, 2014	Judicial pre-trial is held	15
April 4, 2014	Dates are set for a four-week preliminary inquiry from December 1 to 19, 2014 and January 5 to 9, 2015	15
May 6, 2014	January 26 to 30, 2015 are added to the preliminary inquiry dates	16
December 1, 2014 to January 30, 2015	Preliminary inquiry is held	24 – 25
March 13, 2015	Committal to stand trial for first degree murder is ordered	27
May 29, 2015	Trial dates are set: nine days of pre-trial motions commencing September 6, 2016, followed by a six-week jury trial commencing November 7, 2016	29
August 6 – 7, 2015	Motion to expedite trial is heard	31
February 1, 2016	Date originally offered for commencement of pre-trial motions but rejected by the Crown due to unavailability of the assigned Crowns	37
September 6, 2016	Pre-trial motions begin	44
November 7, 2016	Trial begins	46
November 10, 2016	Section 11(b) application is heard	46
November 15, 2016	Section 11(b) application is granted – stay entered	47

5The Crown successfully appealed the stay of proceedings granted on November 15, 2016. The Court of Appeal for Ontario ordered the matter back for trial in reasons released September 7, 2017 (See: R. v. Picard 2017 ONCA 692, [2017] O.J. No. 4608).

6Following the September 7, 2017 appellate decision, the matter was spoken to in the Ottawa Superior Court of Justice on September 8, 2017. On that day, Crown counsel indicated that they were anxious to proceed and had been instructed to agree to, and otherwise make themselves available for, the earliest date available. The Court indicated that it too had taken steps to allocate its resources to accommodate the first available date for trial suitable to Mr. Picard. Mr. Picard indicated that his intention was to bring another s. 11(b) application for a stay of proceedings.

7On September 11, 2017, a pre-trial was held and trial dates were canvassed. Mr. Picard’s counsel of choice, Mr. Greenspon, was not available from September 27 to October 2, 2017 and November 22 to December 5, 2017. In the result, a trial was scheduled to commence October 20, 2017. Mr. Greenspon re-iterated that a “fresh” 11(b) application would be brought, and October 10, 2017 was set for that purpose.

8On September 18, 2017, another judicial pre-trial was held. Mr. Greenspon advised that leave to appeal the September 7, 2017 decision to the Supreme Court of Canada would be sought. The October trial dates were abandoned. Dates were set for a bail hearing (four days, commencing October 10, 2017). A new six-week block of trial time was set (commencing April 3, 2018). The idea shared by all was that the time to April 2018 would be required to hear back from the Supreme Court about leave to appeal.

9On October 16, 2017, Mr. Picard was ordered detained pending trial.

10On December 1, 2017, Mr. Picard brought an application to replace Mr. Greenspon with Mr. Crystal.

11On December 4, 2017, Mr. Crystal advised that leave to appeal to the Supreme Court of Canada would be abandoned. The date of February 27, 2018 was set for a hearing of the 11(b) motion. The five-week trial set to begin April 3, 2018 was confirmed.

12On February 27, 2018, an application was brought by the defence to adjourn the trial set to begin April 3, 2018. The Crown opposed the requested delay. Mr. Crystal indicated that the scope and nature of the case was more than he had originally anticipated and that he needed more time to prepare. Mr. Crystal asked the court to ease up on what he perceived to be its “hurry-up offense” approach. In the result, given the position taken by defence counsel about the lack of likely readiness for trial commencing April 3, 2018, the court adjourned the trial to commence on the next available date: September 4, 2018.

13Mr. Picard now proposes that the trial begin with a “fresh 11(b) motion”.

Legal Principles

14An 11(b) application is nothing less than an assertion that an accused individual’s treatment at the hands of the state has run afoul of the constitution. Of course, such an application must be decided fairly and judicially. The court has discretion to control its processes and to determine what procedure shall be followed to arrive at such a principled result. Since it will generally be assumed that the application is not brought lightly and has some evidentiary foundation, a full in-court hearing will be the norm. Nonetheless, the court retains discretion to perform a triage function, sometimes determining a matter summarily on the basis of an abridged record taken at its highest for the applicant. It is important for the proper administration of justice that applications devoid of any reasonable prospect of success not take up the court’s limited resources.

15This discretion is set out in Rule 34.02 of the Criminal Proceedings Rules for the Superior Court of Justice which provides that:

The presiding judge may conduct a preliminary assessment of the merits of any pre-trial or other application on the basis of the materials filed, and, if satisfied that there is no reasonable prospect that the application could succeed, may dismiss the application without further hearing or inquiry.

16As can be seen from the language of the rule, the threshold for summarily dismissing an application is a high one. It requires that there be "no reasonable prospect" that the application could succeed.

17Rule 34.02 is not one that has been frequently resorted to. Rather, the general practice has been to permit any pre-trial application to be fully argued and determined. This general practice has recently come under some critical commentary by the Supreme Court of Canada arising out of concern regarding the length of time for trials to be completed. This concern was highlighted in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 (S.C.C.) and reiterated in R. v. Cody. In R. v. Cody, the issue about pre-trial applications was specifically commented on by the court, at para. 38:

In addition, trial judges should use their case management powers to minimize delay. For example, before permitting an application to proceed, a trial judge should consider whether it has a reasonable prospect of success. This may entail asking defence counsel to summarize the evidence it anticipates eliciting in the voir dire and, where that summary reveals no basis upon which the application could succeed, dismissing the application summarily (R. v. Kutynec (1992), 1992 CanLII 7751 (ON CA), 7 O.R. (3d) 277 (C.A.), at pp. 287-89; R. v. Vukelich (1996), 1996 CanLII 1005 (BC CA), 108 C.C.C. (3d) 193 (B.C.C.A.)).

18Nordheimer J. (as he then was) set out the practical application of the Rule 34.02 preliminary assessment in the post-Jordan era in R. v. Papasotiriou-Lanteigne, 2017 ONSC 5337. As he explained, the procedure contemplates a relatively informal and expedient process. Since it is a threshold question, it cannot be taken to envisage affidavits being filed, and cross-examinations being conducted. To hold otherwise would be to defeat the fundamental point of the exercise. Rather, what is envisaged is that counsel will advise the court of their "best case", assuming that there is a reasonable prospect that they could obtain all of the facts that they hope to through an evidentiary hearing, and the court will then determine if that best case could reasonably achieve the result that party seeks.

Analysis

19This is an appropriate scenario for application of Rule 34.02. All the relevant facts are known and the applicable law is non-contentious. The Applicant’s position is comprehensively presented in his written materials.

20Pointing out the obvious, I note that I do not sit in judgment of the correctness of the decisions of the Court of Appeal for Ontario. My role is to accept the decisions of that court and to act on them. I must, therefore, read the appellate court’s September 7, 2017 decision as a finding that Mr. Picard’s 11(b) right had not been breached to that point. In fact, since no one could expect a trial to start the day after an appeal judgment is released, I take the Court of Appeal’s September 7, 2017 decision to have some future application in that it surely would have contemplated that a reasonable time period would be required to get the trial up and running thereafter. Whether as a result of stare decisis or res judicata, I consider myself bound by this approach.

21At the same time, however, it remains the case that the order that the matter return to this court to be tried had to be acted on in a way respectful of Mr. Picard’s 11(b) right. It is not as if Mr. Picard’s experience pre-September 7, 2017 is now immaterial or that the appellate decision renders his 11(b) right un-breached for all time. The issue of the passage of time is a cumulative one. While the Court of Appeal should be taken as comfortable with the amount of straw that had accumulated to September 7, 2017 and for a reasonable time thereafter, there can come a point where continuous addition of straw will break the camel’s back. The question is: Is there any basis upon which it could be said that since September 7, 2017, events have unfolded as to now give rise to any reasonable prospect of a successful 11(b) application?

22I answer that question in the negative.

23I cannot see one thing that the administration of justice could have done differently to have the trial now scheduled for September 4, 2018 occur any earlier. The very next day after the matter was returned from the Court of Appeal, both the Crown and the Court indicated that the matter was a priority and that any time suitable to Mr. Picard would be made available. The only reason the matter has been scheduled for September 2018 and not earlier has been to accommodate the wishes of Mr. Picard. I will consider his position in this regard to be entirely legitimate. I accept his submissions that the time has been needed to both consider a Supreme Court of Canada appeal and to otherwise prepare for trial. That said, Mr. Picard cannot both ask for delay and then complain about it.

24There is no merit to the proposed 11(b) application. There is no reasonable prospect that the application could succeed. The application is dismissed.