Court File and Parties
COURT FILE NO.: SCJ 61/17 DATE: 2018/11/02 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Colin McMorrow, for the Crown
- and -
SEAN LEBLOND Michael Venturi, for the Accused Defendant
HEARD: November 1, 2018 ellies j.
Reasons for Decision on Charter Application
Overview
[1] The accused, Mr. Leblond, is charged with five sexual offences involving a single complainant. The allegations span a period from November 30, 1992 to November 30, 1998. The trial is scheduled to commence on November 27, 2018. Mr. Leblond applies under ss. 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms for an order staying the trial on the basis of unreasonable delay.
[2] For the following reasons, the application is dismissed.
Background
[3] The indictment in this case is based on an information that was sworn on May 4, 2015. The parties agree that 1305 days will have passed between that date and the date the trial is scheduled to finish, on November 29, 2018. That equates to roughly 43 months, which is above the presumptive ceiling set by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R., to which I will refer below.
[4] The Crown contends that the defence is responsible for approximately 18 months of the time it has taken to complete this matter. If so, the delay will fall below the ceiling.
[5] Six discrete periods of time are in issue, which I will list below as I discuss each.
[6] In these reasons, I will first set out the legal framework to be followed in determining whether an accused’s s. 11(b) right has been infringed and then analyze the various time periods at issue using that framework. Although Jordan measures delay in months, I will use days, to be more precise. Ordinarily, in order to convert days into months, one divides by 30.42 (365 divided by 12). However, the overall time frame at issue in this case, which spans the years 2015 to 2018, includes a leap year (2016), in which there is an extra day. Therefore, in order to convert days to months, I have taken the total number of days in four years, including one leap year (1,461), and divided that number by 48 months. In this way, I have arrived at a divisor of 30.44. The difference, if any, in using this number as opposed to 30.42 is very small.
The Legal Framework
[7] Since July 8, 2016 the legal framework used to determine whether an accused’s right to trial within a reasonable time under s. 11(b) of the Charter has been infringed has been governed by the framework set out in Jordan. That framework was succinctly set out in the subsequent decision in R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, beginning at para. 20:
A. The Jordan Framework
[20] The new framework established in Jordan for analyzing whether an accused person's right to a trial within a reasonable time has been breached centres on two presumptive ceilings: 18 months for cases tried in provincial courts and 30 months for cases tried in superior courts ( Jordan, at para. 46).
[21] The first step under this framework entails "calculating the total delay from the charge to the actual or anticipated end of trial" ( Jordan, at para. 60).…
[22] After the total delay is calculated, "delay attributable to the defence must be subtracted" ( Jordan, at para. 60). The result, or net delay, must then be compared to the applicable presumptive ceiling. The analysis then "depends upon whether the remaining delay -- that is, the delay which was not caused by the defence -- is above or below the presumptive ceiling" ( Jordan, at para. 67 (emphasis in original)).
[23] If the net delay falls below the ceiling,
then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. [Emphasis in original.]
( Jordan, at para. 48)
[24] If the net delay exceeds the ceiling,
then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.
( Jordan, at para. 47)
[25] Where charges pre-date Jordan and the delay remains presumptively unreasonable after deducting defence delay and accounting for and considering exceptional circumstances, the Crown may nevertheless demonstrate that the transitional exceptional circumstance justifies the delay ( Jordan, at paras. 95-96).
[8] I will explain the concepts of defence delay, exceptional circumstances and transitional exceptional circumstances, below.
Defence Delay
[9] Defence delay is of two types:
(1) “delay waived by the defence”; and
(2) “delay that is caused solely by the conduct of the defence” ( Jordan, at paras. 61 and 63).
[10] A defence waiver of delay may be explicit or implicit, but it must be informed, clear and unequivocal ( Jordan, at para. 61; Cody, at para. 27).
[11] Delay that is caused by the defence need not be intentional, as long as it is caused “solely or directly” by the defence ( Jordan, paras. 63 and 66).
Exceptional Circumstances
[12] Once defence delay is deducted, the only way in which the Crown can justify net delay beyond the presumptive ceiling for cases commenced after the decision in Jordan was released is by demonstrating the presence of exceptional circumstances.
[13] To qualify as exceptional, the circumstances giving rise to the delay must meet two criteria:
(1) they must be either:
(i) reasonably unforeseen, or
(ii) reasonably unavoidable; and
(2) the delay caused by the circumstances cannot reasonably be remedied by the Crown ( Jordan, para. 69).
[14] In general, exceptional circumstances fall into two categories:
(1) discrete events; and
(2) particularly complex cases ( Jordan, at paras. 71, 72 and 77).
[15] Discrete events include such things as medical or family emergencies of a system participant, a complainant recanting while testifying, or a trial that takes longer than reasonably expected ( Jordan, at para. 73).
[16] Particularly complex cases include cases where there are a large number of charges, multiple co-accuseds, a large number of issues, or a large number of pre-trial applications ( Jordan, at para. 77).
Transitional Exceptional Circumstances
[17] The Jordan framework applies both to cases commenced after the decision was released and to cases that were already in the system at the time of its release. However, with respect to the latter, where the ceiling is exceeded after deducting defence delay and exceptional circumstances, it is still open to the Crown to demonstrate that the ceiling would not have been breached but for transitional exceptional circumstances ( Jordan, at para. 95).
[18] In order to establish the presence of transitional exceptional circumstances, the Crown must satisfy the court that the time the case has taken is justified based on a party’s reasonable reliance on the law as it existed prior to Jordan ( Jordan, para. 96).
Where the Presumptive Ceiling is Under 30 Months
[19] Where the net delay falls under the presumptive ceiling, it is still open to the accused to show that the delay is unreasonable in the particular circumstances of the case. In order to do so, the accused must show:
(1) that he took meaningful steps that demonstrate a sustained effort to expedite proceedings; and
(2) that the case took markedly longer than it reasonably should have ( Jordan, para. 82).
[20] Against this legal framework, I turn now to analyzing the specific time periods at issue in this application.
Analysis
Overall Delay
[21] Under Jordan, as it did previously, the s. 11(b) clock begins to run when an information is sworn. It stops when the trial ends. As I mentioned earlier, the overall delay from May 4, 2015 the date the information was sworn, to November 29, 2018 the estimated end of the trial, is 1,305 days. This converts to just under 43 months, which exceeds the presumptive ceiling.
Defence Delay
[22] The Crown submits that the defence delay in this case accounts for approximately 18 months. This 18 month total is based on the delay involved in the following six discrete periods of time.
(i) August 20, 2015 to September 17, 2015 (28 days)
[23] The accused retained counsel even before the information was sworn. On May 14, 2015 his lawyer at the time, Mr. Fenton, wrote by facsimile transmission to the Crown Attorney’s Office. In his letter, he advised that he had left a telephone message for the investigating officer, Detective Constable Jason Long, on April 21, 2015 asking that the officer contact him if charges were laid so that he could arrange to have the accused surrender himself into custody. In his letter, Mr. Fenton indicated that he had not heard from the officer in response. He asked that the Crown advise him as to the status of any investigation or the existence of any warrant for his client’s arrest.
[24] By June 5, 2015 Mr. Fenton had still not heard from the Crown. He wrote again on that date by facsimile transmission, requesting a response. He did not receive one until at least August 4, 2015 when Assistant Crown Attorney Mazurski wrote, apparently by ordinary mail, advising that there was a warrant for the accused’s arrest and that she had asked the North Bay Police Service to contact Mr. Fenton in order to determine if it was feasible to have the accused turn himself in. According to the notes of Detective Constable Long, he left a message for Mr. Fenton on August 20, 2015 at approximately 11:40 a.m. However, it was not until September 17, 2015 that arrangements were completed to effect the accused’s arrest and release.
[25] The Crown contends that the period between August 20 and September 17 constitutes defence delay and should be deducted from overall delay. I am unable to agree. The evidence stops short of establishing that the delay was caused solely or directly by the defence.
[26] I agree that it is a reasonable inference to draw from the letters to which I have referred that Officer Long's telephone call to Mr. Fenton's office was with respect to the possibility of Mr. Leblond turning himself in. However, that is all that can be inferred from the evidence. There is no evidence as to what took place from that point forward.
[27] Once the overall delay exceeds the presumptive ceiling, as it does here, the onus of demonstrating that the net delay does not surpass the ceiling is on the Crown. It has failed to do that with respect to this period of time. Therefore, these 28 days should not be deducted from the overall delay.
(ii) December 19, 2016 to June 12, 2017 (175 days)
[28] On June 14, 2016 the parties confirmed a preliminary inquiry date of December 19, 2016. However, the preliminary inquiry was subsequently rescheduled on two occasions, both at the request of the defence.
[29] On October 4, 2016 the December 19 date was vacated because Mr. Fenton advised he was to undergo a medical procedure on December 13, 2016. The matter was addressed again on October 18, 2016 at which time the preliminary inquiry was rescheduled to May 10, 2017.
[30] On November 8, 2016 however, Mr. Fenton requested that a different date be set because the accused was unavailable on May 10. Accordingly, on December 6, 2016 the preliminary inquiry was rescheduled to June 12, 2017 for four hours.
[31] The accused concedes that the delay resulting from the rescheduling of the preliminary inquiry from December 19, 2016 to June 12, 2017 is defence delay. I agree.
(iii) June 12, 2017 to September 15, 2017 (95 days)
[32] The preliminary inquiry took place on June 12, 2017, as it was scheduled to do. However, as it turned out, four hours were insufficient to complete the hearing. Only the complainant’s evidence was completed on that date. Accordingly, at the conclusion of the evidence of June 12, September 15, 2017 was set to conclude the preliminary inquiry. The transcript does not indicate how that date was arrived at. The court first offered July 7, 2017 when Mr. Fenton was already scheduled to be before the preliminary inquiry judge. However, it appears that what occurred in court immediately after that date was offered was not recorded. The transcript for that day contains ellipsis points instead of dialogue just after the date was offered and ends a short while later, with the court fixing the date as September 15. There is no indication of what happened in between.
[33] The Crown has filed the court reporter’s typewritten notes for June 12. Unfortunately, they are not of much assistance. While they seem to indicate that Mr. Fenton was of the view that there would not be enough time on July 7 to continue with the preliminary hearing, I am not at all confident that the notes are complete. For example, they make no mention of any discussion about the availability of the two police witnesses for September 15, while the transcript finishes with the preliminary inquiry judge asking Mr. McMorrow if they were available for that date. Nonetheless, it is not contended that the delay involved in concluding the preliminary hearing was added to by the fact that the defence was unavailable on any dates earlier than September 15. In the circumstances, I believe it is fair to assume that September 15, 2017 was the first date available to the court.
[34] When the preliminary inquiry resumed on that date, the court heard from the two police witnesses, following which the accused was committed to stand trial.
[35] Mr. McMorrow contends that the delay between June 12, 2017 and September 15, 2017 is defence delay. He points out that the only witness that the Crown wished to call at the preliminary inquiry was the complainant and that the accused was ultimately committed to stand trial on that witness’s evidence alone. For that reason, Mr. McMorrow submits that this period should be deducted as defence delay. I do not agree.
[36] The defence is entitled to use the preliminary inquiry as a mechanism for discovery and for tying witnesses to sworn or affirmed versions of their evidence. This is a normal part of preparing for trial. As the court stated in Jordan, defence preparation is already factored into the presumptive ceiling (para. 65). There is no suggestion that there was nothing to be gained by the defence wanting to hear from the police witnesses during the preliminary inquiry.
[37] In this case, the initial four hour estimate was arrived at with the agreement of both counsel. The statement of issues prepared on behalf of the accused was submitted prior to the four hour estimate being used to set the preliminary inquiry date. That statement indicated that the defence wished to hear from all three witnesses, namely the complainant and the two police officers. The record indicates that the four hour estimate was a good faith effort by both counsel to estimate the length of time a preliminary inquiry involving all three witnesses would take. As such, the fact that it took longer may properly be characterized as a discrete event.
[38] However, pursuant to Jordan, exceptional circumstances should only be considered once all the defence delay is accounted for. For that reason, I will return to this exceptional circumstance later in these reasons, in the event that the net delay exceeds 30 months.
(iv) November 17, 2017 to April 3, 2018 (137 days)
[39] Following the accused’s committal for trial, the matter was transferred to the Superior Court and November 17, 2017 was eventually set for a judicial pre-trial (“JPT”). According to the endorsement of the JPT judge, however, on that date Mr. Fenton advised that he would be retiring soon and that the accused had retained new counsel from the law firm of Weaver, Simmons (Mr. Venturi’s firm). Thus, the JPT was adjourned to the December 8, 2017 assignment court to set a new JPT date. The endorsement of the JPT judge reads: “Any delay resulting from this adjournment is for the account of the accused.”
[40] On December 8, 2017 the matter was adjourned at the request of the defence to the January 5, 2018 assignment court. On that date, a Designation was filed, in which Mr. Venturi was noted as counsel of record. The court was advised by Mr. Venturi's agent that Mr. Venturi was attempting to get the Crown disclosure from Mr. Fenton before setting a date for a JPT. Accordingly, the matter was adjourned to the next assignment court on February 2, 2017. However, Mr. Venturi was asked through his agent on January 5 to participate in a teleconference with the presiding judge on January 19, 2018 because the court was concerned about an approaching “Jordan date”.
[41] According to an endorsement which appears to have been made on January 19, 2018 Mr. Venturi advised the court at that time that he still did not have the Crown disclosure from Mr. Fenton. Therefore, a further teleconference was set for February 1, 2018 to schedule a JPT.
[42] On February 1, 2018 the JPT was scheduled for and ultimately did take place on April 3, 2018.
[43] The Crown argues, based on the JPT judge’s November 17 endorsement, that the delay from November 17 to April 3 was waived by the accused and is therefore defence delay. Counsel for the accused argues that, at most, this delay should be characterized as an exceptional circumstance. He contends that the Crown had an obligation to mitigate the delay by offering to provide the defence with another copy of the disclosure. I disagree.
[44] In my view, the entire period between November 17, 2017 and April 3, 2018 is properly characterized as defence delay, apart altogether from the possibility that the delay was waived by the accused. The delay arose solely from the conduct of the defence. While it is true that delay caused by the defence and delay caused by exceptional circumstances share in common the fact that they are both beyond the control of the Crown, there is an important distinction. In the case of defence delay, the harm to the accused's Charter right is self-inflicted. Because the defence is the cause, it can also be the cure. In the absence of a request for another copy of the disclosure, the Crown had no obligation to try to remedy the delay caused by whatever difficulties were slowing down the transfer of disclosure from one defence lawyer to another.
[45] This delay should be deducted from the overall delay.
(v) May 28, 2018 to September 26, 2018 (118 days)
[46] In Jordan, the Supreme Court of Canada held that delay will be defence delay where the court and the Crown are ready to proceed, but the defence is not (para. 64).
[47] On April 6, 2018 Mr. Venturi appeared at the assignment court, requesting a date for a three day trial. Although he was offered May 28, 2018 Mr. Venturi indicated that the first dates he had available were in September. Accordingly, he was offered and accepted September 24, 25 and 26, 2018 which were also agreeable to the Crown.
[48] The Crown submits that the delay beyond the first trial date offered to Mr. Venturi should be characterized as defence delay. Ordinarily, I would agree. However, in my view, the Crown has failed to satisfy its burden of establishing that the Crown was ready to proceed on May 28.
[49] The Crown did not indicate on April 6, 2018 that it was prepared to proceed on May 28, 2018. It now maintains that it was. Notwithstanding the fact that no affidavit evidence has been filed by the Crown, Mr. McMorrow contends that the only witness the Crown intended to call was the complainant and that, because he is a civilian, there would have been no difficulty procuring his attendance for that date. He concedes that the Crown usually likes to have the investigating officer present at trial and relies on a copy of the officer's schedule to argue that he was also available on May 28, 2018.
[50] The onus is on the Crown to establish the cause of the delay. I am not satisfied that the Crown would have been able to proceed on May 28, 2018. If it was, it would have been easy to put that on the record on April 6. Jordan did not do away with the need to demonstrate that the Crown is ready to proceed to trial on a date offered by the court. Ever since the decision in R. v. Morin, [1992] 1 S.C.R. 771, this has routinely been done by so indicating at the time the date is offered. I do not view the proof offered now to be sufficient to overcome the Crown's failure to indicate its readiness then.
[51] Accordingly, the Crown has failed to prove that this period should be deducted from the overall delay as defence delay.
(vi) September 26, 2018 to November 29, 2018 (64 days)
[52] Had it started on September 24, the trial was predicted to end on September 26. The trial did not start on September 24, however. Instead, Mr. Venturi was granted an adjournment in order to deal with disclosure he had received late on the preceding Friday. The disclosure resulted from a meeting the Assistant Crown Attorney had with the complainant to prepare for trial. The adjournment was necessary to permit Mr. Venturi to integrate important new information he had received into the cross-examination he had prepared of the complainant (see my reasons at 2018 ONSC 5627).
[53] A new date for the trial was fixed during a teleconference held on September 26, 2018. Although both the Crown and the court were available to conduct a three-day trial as early as October 15, 2018 Mr. Venturi indicated that he was not available on that date. Had he been, the delay associated with the adjournment would have been 21 days (September 26 to October 17, when the trial would have finished). Instead, the trial date was set for November 27.
[54] Unfortunately, as he concedes, Mr. Venturi did not indicate at that time exactly when he would have been first available. As a result, he indicated in his submissions that he was prepared to concede that the period from October 17 to November 29 (the present projected end date for the trial) is defence delay. That would amount to 43 days.
[55] However, a review of the court record indicates that, when the new trial date of November 27 was set, Mr. Venturi did state that he was available on November 13, another date that was offered. Ultimately, because I was already familiar with the case, I decided that it should be heard by me beginning on November 27, rather than by another judge beginning on November 13. Thus, I would deduct 14 days from the delay for which the defence was prepared to accept responsibility, for a total of 29 days of defence delay. That leaves 35 days of delay caused by the adjournment.
[56] The issue with respect to the 35-day period is whether the delay should be deducted as an exceptional circumstance. The Assistant Crown says he was as surprised as the defence was at the new information. The defence says that, had the Crown not been interviewing a witness at the last minute, the new information would not have caused any delay. At this point, however, I need not decide the issue. As I have already indicated, exceptional circumstances need only be considered if the presumptive ceiling is exceeded after deducting defence delay.
Net Delay
[57] Based on the foregoing, I conclude that a total of 341 days (175+137+29) should be deducted from the overall delay as defence delay. This leaves a total net delay of 964 days. Dividing this total by 30.44 yields 31.7 months of net delay, which exceeds the presumptive ceiling.
[58] Therefore, I return to the two potential periods of delay that might be characterized as exceptional circumstances. In addition, I will address one other potential exceptional circumstance raised by the Crown.
Exceptional Circumstances
June 12, 2017 to September 15, 2017 (95 days)
[59] This is the period of time over which the completion of the preliminary hearing was delayed because counsel’s four hour time estimate was incorrect. In my view, the period from June 12 to September 17, 2017 period of time should be characterized as a discrete event and, therefore, deducted as an exceptional circumstance.
[60] In Jordan, the Supreme Court of Canada held that, where the parties have made a good faith effort to establish realistic time estimates but, notwithstanding those efforts, a trial lasts longer than expected, this may constitute an exceptional circumstance (para. 73). I see no reason to treat preliminary inquiries that unexpectedly take longer to complete any differently than trials in this respect. They may both constitute discrete events, in my view.
[61] Deducting this period of time from the net delay calculated earlier leaves a total net delay of 869 days, or 28.5 months. This brings the net delay below the presumptive ceiling.
September 26, 2018 to October 15, 2018 (21 days)
[62] This is the period from the date the trial was originally scheduled to the date that it would have finished if Mr. Venturi had been available to commence the trial on October 15.
[63] Given that the net delay is below the presumptive ceiling after taking into account the delay in concluding the preliminary inquiry, I do not need to consider the delay in concluding the trial that arose from Mr. Venturi’s request for an adjournment.
Case Complexity
[64] The Crown argued that this case is complex as a result of the fact that it is historical in nature.
[65] Again, given that the net delay is below the presumptive ceiling after deducting defence delay and the delay caused by the preliminary inquiry taking longer than projected, I need not decide this issue.
Transitional Exceptional Circumstances
[66] In its factum, the Crown argued that the transitional circumstances exception was applicable. I need not consider this argument in light of my conclusion that the net delay is below the presumptive ceiling.
Defence Efforts to Expedite the Trial
[67] The defence does not argue that it made any efforts to expedite the trial.
Conclusion
[68] After deducting defence delay and delay caused by exceptional circumstances, the net delay is 28.5 months, which is below the presumptive ceiling.
[69] The application to stay the trial is therefore denied.
Ellies J.