Court File and Parties
Court File No.: CR-17-90000720-0000 Date: 2018-07-06 Ontario Superior Court of Justice
Between: Her Majesty the Queen And: Courtney Cunningham, Accused
Counsel: Kelvin Ramchand, for the Crown Aghi Balachandran, for the Accused
Heard: June 22, 2016
Before: B.A. Allen J.
Reasons for Decision
(Application, reasonable delay, Charter, s 11(b))
Background
[1] The applicant Courtney Cunningham was arrested on August 14, 2016 and charged on two counts of selling cocaine to an undercover officer on two occasions, November 22 and 23, 2015. The police came into contact with Mr. Cunningham because he was involved in a car accident on August 13, 2016.
[2] The information was sworn on May 20, 2016. Before they arrested Mr. Cunningham, the police continued their investigation with the intention of attempting further undercover drug buys with Mr. Cunningham. The police had some difficulty contacting Mr. Cunningham. The police ended the investigation after they were unable to contact him for another drug buy planned for March 14, 2016.
The Jordan Framework
[3] The Applicant brings the application under s. 11(b) of the Charter of Rights seeking a stay of proceedings under s. 24(1) of the Charter on the basis of unreasonable delay in commencing and completing trial.
[4] The Supreme Court of Canada released a decision, R. v. Jordan, 2016 SCC 27 that changed the landscape of how to apply s. 11(b) and s. 24(1). The Jordan framework introduced significant changes to the former framework set down under R. v. Morin, (1992), 71 C.C.C. (3d) 1 (S.C.C.) as to how delay should be assessed. Jordan also proposed a transitional framework for those cases, like the one before this court, that were commenced before R. v. Jordan was decided.
[5] The focus of the Jordan framework is on “non-defence” delay, that is, delay not caused by or waived by the defence. The framework sets a presumptive ceiling of 30 months as a reasonable period of delay for cases tried at the Superior Court, that period being calculated from the date the accused is charged to the date the trial is anticipated to be or is actually completed: [R. v. Jordan, at para. 49].
[6] If the delay exceeds the presumptive ceiling, any delay caused by the defence must be subtracted from total delay: [R. v. Jordan, at para. 60]. Once defence delay is subtracted from total delay, a determination must be made as to whether the net delay is above or below the presumptive ceiling. If the net delay falls below the presumptive ceiling the onus rests with the defence to establish that the delay is unreasonable.
[7] The parties take differing positions on how delay should be calculated. However, both parties’ positions assess the delay at below the presumptive ceiling. There is no dispute that the defence has to show that any delay is unreasonable. A stay can be granted in “clear cases” already in the system where the delay remains below the presumptive ceiling and is deemed unreasonable. However, a stay in that circumstance is even more difficult to achieve: [R. v. Jordan, at para. 101].
[8] The burden on the defence is satisfied by the defence establishing that: (a) it took meaningful and sustained steps to expedite the proceedings; and (b) the time of the proceedings markedly exceeded the reasonable time requirements of the case: [R. v. Jordan, at para. 82].
[9] Jordan sets down a further transitional framework for those cases that were commenced before R. v. Jordan was decided. Jordan advocates a “flexible and contextual” application of the new framework to cases in the system before Jordan.
Here, there is a variety of reasons to apply the framework contextually and flexibly for cases currently in the system, one being that it is not fair to strictly judge participants in the criminal justice system against standards of which they had no notice. Further, this new framework creates incentives for both the Crown and the defence to expedite criminal cases.
[10] The Crown must satisfy the court that the time it has taken to get to trial is justified because of the parties’ reliance on the previous state of the law under R. v. Morin: [R. v. Jordan, paras. 95-103].
[11] To determine what would be reasonable delay for cases in the “transitional phase” courts are directed to continue to rely on and apply the spirit of the Morin framework: [R. v. Brissett, 2017 ONSC 410]. It is reasonable for the parties to have relied on the law as it previously existed at the time the charges were laid.
Analysis
[12] The trial is scheduled for seven days commencing September 24, 2018. The defence calculates total delay in bringing the matter on for trial from May 20, 2016, the date the information was sworn, to the last day of trial, October 2, 2018. The defence’s position is that pre-charge delay should be included in the calculation of total delay. From that viewpoint, total delay is 28 months, 12 days which is also below the 30-month presumptive limit.
[13] The defence concedes the total period of delay attributable to the defence is 14 days: from October 17, 2016 to October 25, 2016 when neither counsel nor defendant attended court; and from January 5, 2017 to January 12, 2017 when it appears the defence was misinformed about the court date.
[14] The defence asks the court to assess delay taking into account the conduct of the police between the time of laying the information on May 20, 2016 and arresting him on August 14, 2016. The defence is critical of the police for having Mr. Cunningham’s name, date of birth, and residence and not moving more expeditiously to charge him.
[15] The defence submits that prejudice to Mr. Cunningham results from evidence lost during the pre-charge period as a result of delay which Mr. Cunningham says impairs his ability to raise a defence of duress. This submission is based on Mr. Cunningham’s contention that he was under duress from a person named “Bud” at the time of the offences. The defence submits that it is because of the delay that Mr. Cunningham has not been able to contact Bud.
[16] Regarding the pre-charge investigatory period, the Crown submits there was no unnecessary delay. The Crown takes the position that the police were involved in a legitimate, continuing investigation of Mr. Cunningham after the two drug transactions they had with him on November 22 and 23, 2015. They were attempting to set up a further transaction which was unsuccessful. After the failed attempt on March 14, 2016, the police decided to end the investigation. They arrested Mr. Cunningham some five months later on August 14, 2016.
[17] The Crown points out that apart from an assertion of prejudice during the pre-charge period there is nothing upon which the defence can base its submission. As this court has observed in a recent decision:
In absence of any evidence of bad faith or ulterior motive, there is no basis for shifting the burden to the Crown to explain the investigative and prosecutorial processes. To do so would be to effectively impose a judicially created limitation period, something that has long been held to be inappropriate.
[R. v. R.G., 2018 ONSC 130, at para. 22]
[18] On the issue of the Charter implications of prejudice during the pre-charge period the Supreme Court of Canada cautioned that the prejudice suffered by a litigant is relevant to a Charter section 7 analysis only when it is attributable to delay that was caused by the state. “Prejudice that flows from the circumstances leading to charges or complaints, or charges or complaints themselves, is not attributable to state delay”: [[Blencoe v. British Columbia (Human Rights Commission), [2000] 1 S.C.R. 307]](https://www.canlii.org/en/ca/scc/doc/2000/2000scc44/2000scc44.html)
[19] The case law supports the view that the police were entitled to approach their investigation of Mr. Cunningham in the way they considered to be most effective. It was legitimate for the police to attempt further drug buys, and when they did not succeed, to decide to arrest him thereafter. It was five months from the date of the last transaction until he was arrested. However, I do not find that to be an unreasonable period in view of the many cases the police would reasonably be handling at any given time. The police have to be able to manage their caseloads without unnecessary scrutiny by the courts.
[20] There is a further principled reason that pre-charge delay cannot be considered. A more recent Newfoundland Court of Appeal case in R. v. Hunt, cites passages from earlier cases such as the Supreme Court of Canada in R. v. Mills, [1986] 1 S.C.R. 863, at p. 945, (S.C.C.) to support the view that other Charter provisions are engaged with pre-charge delay:
Pre-charge delay is relevant under ss. 7 and 11(d) because it is not the length of the delay which matters but rather the effect of that delay upon the fairness of the trial. Pre-charge delay is as relevant as any other form of pre-charge or post-charge conduct which has a bearing upon the fairness of the trial. In other words, pre-charge delay is relevant to those interests which are protected by the right to a fair trial whereas it is irrelevant to those which are protected by 11(b). Similarly, pre-charge delay may be a relevant consideration under the doctrine of abuse of process in the same manner as any other conduct by the police or the Crown which may be held to constitute abuse of process.
[R. v. Hunt, 2016 NLCA 61, at para. 65]; See also R. v. Kalanj; and R. v. L. (W.K.), [1991] 1 S.C.R. 1091
[21] This court decided that while typically the delay clock starts to run when the information is laid, liberty, security and trial fairness issues are not engaged when the accused is unaware of the criminal charges against him: [R. v. Magiri, 2017 ONSC 2818, at paras. 8–9].
[22] The language in Jordan sets the delay framework to begin with calculating the total delay from the date of the formal charge, rather than the date of arrest, to the actual or anticipated end of trial: [R. v. Jordan, at para. 60]. On this seeming discrepancy with other cases, the Crown takes a pragmatic and common sense approach to interpreting the starting point enunciated by Jordan.
[23] The Crown points out that Jordan did not have before it the specific issue of pre-charge delay. Taking a broader view, the Crown also submits that the natural implication from individual and societal interest perspectives is that it is from the time of arrest that the expectations of the individual and society for a trial within a reasonable time are engaged.
[24] I find the Crown’s perspective on that point to be reasonable. From a practical point the law supports the Crown’s position that delay ought to be assessed from the date the charges are laid.
[25] As observed in the above passage by the Supreme Court of Canada in R. v. Hunt, pre-charge delays including those during the investigatory or pre-charge stage are not subject to the 11(b) analysis. Circumstances arising during that period can be relevant under abuse of process or in relation to the impact to the right of a fair trial under sections 7 and 11(d): [R v. Hunt, 2017 SCC 25], adopting the dissent in R. v. Hunt 2016 NLCA, as cited above.
[26] The Crown submits the law is clear that the fairness of a trial must be determined based on the particular circumstances of the case. Rights are not violated solely because a lengthy delay is apparent on the face of the indictment. In a case like the case at hand where there was a defence claim of missing or lost evidence, the Ontario Court of Appeal, citing earlier cases, referred to the following passage:
In our view, a showing of some prejudice is not a sufficient basis for a decision that an accused person’s Charter rights under ss. 7 and 11(d) would be infringed if the accused were required to stand trial. What must be demonstrated on the balance of probabilities is that the missing evidence creates a prejudice of such magnitude and importance that it can be fairly said to amount to a deprivation of the opportunity to make full answer and defence. The measurement of the extent of the prejudice in the circumstances of this case could not be done without hearing all the relevant evidence, the nature of which would make it clear whether the prejudice was real or minimal. The Crown’s submission was, in our view, right. The motion was premature and the stay should not have been granted when it was.
[[R. v. C. (R.), [1995] O.J. No 201, at para. 7]](https://www.canlii.org/en/on/onca/doc/1995/1995canlii8582/1995canlii8582.html), (Ont. C.A.), citing R. v. Francis (1993), 15 O.R. (3d) 627 (Ont. C.A.)
[27] The cases cited by the Crown make it clear that actual prejudice must be demonstrated. The mere possibility of prejudice is insufficient to find that the pre-charge delay prejudiced the accused’s ability to make full answer and defence: [R. v. Hunt, para. 67]. The Crown submits that the law supports the view that the missing witness, as an obstacle to putting forward a defence of duress, is a matter for trial.
[28] The Crown takes the position that there is no evidentiary basis for pre-charge delay being the cause of Bud going missing. There is no assurance that even if Mr. Cunningham were arrested right after the police drug buys, Bud would have been found or would have allowed himself to be found particularly if Bud was involved in the drug offences.
[29] I accept the Crown’s position that there has been no actual prejudice shown by the defence that the loss of Bud as a witness impairs his opportunity to prove the defence of duress. This is especially so given that Bud would be expected to testify against his own interest. He would have to admit he created duress for Mr. Cunningham during the drug sales to the police which would be an admission as to guilt of being involved in drug trafficking. It would not be beyond reason that Bud might not want to be found by the police if he was involved in drug crime.
[30] I find there is no reasonable basis on the record before the court on this application to establish prejudice was suffered or that the defence’s right to a fair trial was impacted. It would be more appropriate that any prejudice the defence asserts be determined on a full trial record under sections 7 and 11(d) of the Charter.
[31] The Crown acknowledges that if the date of swearing the information is the commencement date for the delay period, the total delay is 28 months, 12 days. The Crown’s calculation of total delay from the date of arrest to the end of trial is 25 months, 18 days. The net delay, subtracting 14 days’ defence delay, calculated from the date of arrest to the end of trial, is 25 months, 4 days. This is below the presumptive ceiling.
[32] Based on reasons discussed above I accept the Crown’s calculations.
[33] The delay being below the presumptive limit, it is the defence’s burden to show that the net delay is unreasonable. The defence is required to establish that: (a) it took meaningful and sustained steps to expedite the proceedings; and (b) the time of the proceedings markedly exceeded the reasonable time requirements of the case: [R. v. Jordan, at para. 82].
[34] The Crown concedes, and I agree, that the defence took meaningful and sustained steps to move the case along. The defence refers in its materials to delays with Crown disclosure that required added attendances. There are no details as to the disclosure that is at issue. The Crown submits it was reasonably expeditious in providing disclosure. The Crown suggests the defence could have, but did not, request case management to address any disclosure concerns.
[35] This is not an exceptionally complex case and I see no exceptionally lengthy delays. Looking at the chronology and timing of court attendances I accept that the Crown and the defence attempted to move the matter along and did not cause any critical delay concerns. The most notable delays that occurred were institutional delays in scheduling dates for the preliminary inquiry and the trial. I do not find that the time of the proceedings markedly exceeded the reasonable time requirements of the case.
[36] In coming to a conclusion on whether the defence met its onus, I refer to an observation in Jordan. With delay below the presumptive ceiling, in “clear cases”, the defence may show that the delay is unreasonable. The case before me is not one of the clear cases: [R. v. Jordan, at para. 105].
Transitional Provisions
[37] This is a transitional case in that Jordan was decided after this case emerged in the courts. The parties would have had in their expectations the law that was in place when the accused was arrested. I found there was no unreasonable delay under the Jordan guidelines. As well, the delay calculated under the Morin framework is about 18 months which is within the Morin delay timelines. Hence, no further inquiry under the Morin framework is needed.
Disposition
[38] The application is dismissed.