Court File and Parties

COURT FILE NO.: CJ 9373 DATE: 2018-12-19 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – L.R. Applicant

Counsel: Jennifer Caskie, Counsel for the Respondent Harald Mattson, Counsel for the Applicant

HEARD: December 12, 2018

The Honourable Mr. Justice C. S. Glithero

Ruling on 11(b) Charter Motion

Background

1L.R. is jointly charged with J.J.T. on a nine count indictment. They stand charged with the following offences, all of which are said to have occurred between July 30, 2017 and August 6, 2017, in Kitchener, and to have involved a 15 year old female:

• Kidnapping contrary to s.279(1)(a)
• Unlawful confinement contrary to s.279(2)
• Assault contrary to s.266
• Sexual assault contrary to s.271
• Uttering threats to cause bodily harm contrary to s.264.1(1)(a)
• Procuring for sexual services a person under 18 years contrary to s.286.3(2)
• Receiving a financial benefit from trafficking of a person contrary to s.279.02(2)
• Advertising an offer to provide sexual services contrary to s.286.4(a)
• Dealing with a person under 18 years for the purpose of exploiting them contrary to s.279.011(1).

2Ms. L.R. seeks an order staying these charges as against her as an appropriate remedy under s.24(1) of the Charter for the alleged breach of her right to trial within a reasonable time as guaranteed by s.11(b).

3This case involves a direct indictment. A preliminary inquiry had not yet been scheduled when the direct indictment was presented.

4In short, the applicant’s position is that this is a “one-stage proceeding” and accordingly the presumptive ceiling as established in Jordan is 18 months. The period of time that will have elapsed from the date of her charge, August 15, 2017, to the anticipated end of her trial, October 25, 2019, is a period of approximately 26 months. Accordingly, she submits that the delay is presumptively unreasonable and that she is entitled to a stay of the charges.

Chronology of Events

5A review of the transcripts of the various court appearances indicates that there have been 19 appearances between the first appearance in bail court and the most recent appearance in this court at which pretrial application dates and trial dates were set. Pursuant to the directions in Jordan, in particular at paragraph 91, in my opinion it is not necessary for purposes of deciding the main issue on this application to review every appearance, but rather the approach is to step back and utilize a wider perspective. In my opinion, the important dates and developments for purposes of determining the issue here are the following:

• August 15, 2017 – date of charge;
• January 26, 2018 – in OCJ Mr. Mattson advises he understands counsel for the co-accused J.J.T. intends to elect to have a preliminary inquiry, and further that he has been told the Crown is going to seek a direct indictment. Crown counsel confirms that a direct indictment “is being pursued” but that delay reduction is not the sole purpose for seeking a direct indictment and rather the Crown has its own reasons as well;
• February 16, 2018 Mr Mattson advised that he is “stuck with a preliminary” given the intention of the co-accused to proceed to trial in Superior Court
• Feb 26, 2018—Crown counsel advised defence counsel in writing that if they wished to proceed in OCJ the Crown would abandon its request for a direct indictment, provided that the defence waived some period of delay;
• May 11, 2018—A judicial pre-trial is conducted in OCJ and it was determined that 4 days would be required for a preliminary hearing and that it would be scheduled at the next scheduled court appearance on May 18, 2018;
• May 15, 2018 – Deputy Attorney General approves the request for direct indictment;
• August 31, 2018 – Both accused appear in Superior Court and both elect to be tried by judge alone in Superior Court. Crown advises that dates have been arranged through exchanges in writing between the trial coordinator and all counsel with the result that pretrial applications are to commence June 3, 2019 for 4 days and a 3 week non-jury trial is to commence on October 7, 2019. She further advised that earlier dates were offered and that the Crown is available any time after November 1, 2018 and asks the trial coordinator to advise if any earlier dates become available. Mr. Mattson advises that there were dates available for pre-trial applications commencing April 1 and trial dates in June and July, but he was unavailable for that week in April, but was available for a different week in April than the one available to the court, but that he was available for trial in June and July of 2019. He then advises that he would be available for pretrial applications commencing May 27 and for trial dates commencing September 2, 2019. Counsel for J.J.T. advised the trial coordinator and counsel in writing that he was not available until the October 7, 2019 trial date because of other Superior Court matters.

6Accordingly, approximately 5 ½ months elapsed from the date of the charges to the point where the Crown indicated an intention to seek approval to prefer a direct indictment. Approximately 9 months elapsed between the date of the charges and the approval for a direct indictment.

The Presumptive Ceiling for Direct Indictments

7The argument advanced by the applicant in this case, namely that in circumstances of a direct indictment the appropriate presumptive ceiling should be 18 months, rather than 30 months, is not new. The same argument has been considered in one Manitoba appellate court decision, four Ontario Superior Court cases, and 3 Alberta superior court cases. None of the Ontario decisions have been appealed.

8The reasoning in the four Ontario cases which have dealt with this same argument have some common themes. The first in time is that of R. v. Bulhosen, 2016 ONSC 7284. There, the direct indictment was preferred approximately two months prior to the date set for a preliminary hearing. Justice Henderson quite properly noted the explicit direction of the Supreme Court of Canada that a new procedure was to be followed and concluded that the court meant what it said in indicating that the ceiling is dependent on the court in which the case is proceeding to trial.

9In R. v. Nyznik, 2017 ONSC 69 the direct indictment was preferred approximately six weeks before the scheduled preliminary hearing. In rejecting the argument that the 18 month ceiling was appropriate in a direct indictment case, Nordheimer J. (as he then was) noted that the Supreme Court of Canada in Jordan used the phrase “going to trial in the Superior Court” on five different occasions and accordingly concluded that the repetition of those same words demonstrated a clear intention on the part of the Supreme Court that the determining factor was the court in which the matter was “going to trial”. Secondly, he took notice of continued recognition on the part of the Supreme Court of Canada that a longer period of reasonable delay can be expected in superior court matters as opposed to provincial court matters and accordingly the lengthier presumptive ceiling period for superior court matters was understandable. He also took into account that it was within the discretion of the Attorney General to consent to the preferment of an indictment at any stage and that such discretion can be exercised at any time. He opined that mischief could flow from the possibility that dates for a preliminary inquiry could be set, following by a last minute consent to committal, and thereby invoke the 18 month ceiling when it was too late for the system to react.

10Justice Nordheimer also referred to another argument, also advanced in this case and in some of the others, to the effect that it is unfair to permit the Crown to both deny the accused a preliminary inquiry by means of a direct indictment, and yet still enjoy the longer presumptive ceiling. He concluded that if there be any merit to such an argument, it arises from Parliament’s enactment of section 577 and the Attorney General’s discretion thereby created.

11Justice Nordheimer considered as well the fact that an accused in whose case a direct indictment is preferred is not without remedy in that it is still open to such an accused to demonstrate that the delay, even though short of the ceiling, has been unreasonable on the grounds set forth in paragraph 82 of Jordan. He points out as well that in an extreme case where the Crown preferred a direct indictment right after charges had been laid, thus invoking the 30 month presumptive ceiling yet with virtually none of the normal intake period requirements, that course of action would strengthen the argument in favour of unreasonable delay as contemplated in paragraph 82 of Jordan. Lastly, he relies on the decision in Bulhosen and that in R. v. Jones, 2016 ABQB 691 and in R. v. Maone, 2017 ONSC 3537, both direct indictment cases, where the same argument was advanced, but dismissed.

12During oral submissions, Mr. Mattson suggested that the reason that Justices Henderson and Nordheimer ruled the 30 month ceiling to be appropriate was that the indictment was preferred so close to the expiration of the 18 month ceiling that the Crown would not have been able to get a trial completed within what was left of that shorter ceiling. This submission of course suggests that these two judges wanted to avoid a stay and opted for the 30 month ceiling to accomplish that aim. That submission is neither appropriate nor accurate. I can say with obvious confidence that both of those fine judges would have ruled the 18 month ceiling to be appropriate, if they thought that was the appropriate legal result, and then could have gone on to consider whether the period of delay in excess of the ceiling was justifiable on the basis of exceptional circumstances as developed in paragraphs 68 through 81 of Jordan.

13The applicant submits that the judges in Bulhosen and Nyznik misread the decision in Jordan. He points to Justice Henderson’s statement in paragraph 48 of Bulhosen that “it is important to recognize that the Court in Jordan never makes a distinction between a one-stage and two-stage proceeding.”, and says that is wrong. Mr. Mattson’s submission is founded on a belief that Jordan incorporates the one-stage and two-stage reasoning from Morin. In my opinion it does not. It refers to that wording from Morin, by way of describing where we have been, but then goes on to deliberately chart a new course based on presumptive ceilings. Henderson J expressly so found when you read his paragraphs 47 and 48 together.

14Mr. Mattson submits that Nordheimer J in Nyznik misread Jordan as evidenced by the statement at paragraph 23 that “the majority clearly says that the presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and 30 months for cases going to trial in the superior court”. The criticism is that in the selected sentence the application judge did not repeat the caveat from Jordan that 30 months would be the ceiling where a case has gone through a preliminary inquiry in provincial court and then returns to provincial court for trial. Of course that factual possibility was not present in Nyznik so there was no need to refer to it. It is also an unfair and inaccurate criticism in that at paragraph 17 of Nyznik there is an express acknowledgment of the Jordan direction of a 30 month ceiling in cases going back to provincial court for trial after a preliminary. The suggestion is that this latter direction in Jordan shows that the court intended that a one-stage, two stage approach is still in play. In my opinion the misreading of Jordan is by counsel, rather than in Nyznik.

15Counsel for the applicant also submits that the Supreme Court of Canada in Jordan never turned its mind to the issue of a direct indictment, or at least chose not to deal with it. Counsel relies on footnote #2 where the Court indicated that the issue of delay as a result of sentencing was not before them so it chose not to deal with it. He seeks to extrapolate from this that the Court’s judgment also did not deal with the direct indictment situation. But as was pointed out by Code J in Millard (infra) at paragraph 57 the Criminal Lawyers Association of Ontario intervened in Jordan and specifically asked the Court to deal with the direct indictment situation. I suppose it could be argued that the Court forgot to do so. I think it more likely that the Court intended that the direct indictment situation be governed by the 30 month presumptive ceiling regime, and that had it intended not to deal with the impact of a direct indictment it would have said so as it did in the footnote regarding delay resulting from sentencing.

16In R. v. Maone, 2017 ONSC 3537, Justice O’Marra relied on the reasons in the earlier Ontario cases of Bulhosen and Nyznik and further noted that the Supreme Court of Canada could have created an exception for preferred indictment cases if it had wished to do so, but chose not to.

17Justice Code also dealt with this same argument that the 18 month presumptive ceiling should be applicable in cases where no preliminary hearing is held in R. v. Millard, 2017 ONSC 4030. He too pointed out the repeated references in Jordan to the court to which the case is going for trial as being the determining factor as to whether the presumptive ceiling is one of 18 months or 30 months. He also referred to the fact that the language is unambiguous and to the fact that the Supreme Court of Canada in Jordan was expressly invited by an intervener to treat the direct indictment situation differently, but the court chose not to do so. Code J. also relied on the reasons developed in the three predecessor cases of Bolhosen, Nyznik and Maone and in that connection also relied on the judgment of Strathy J., as he then was, in R. v. Scarlett, 2013 ONSC 562, where at paragraph 43 he indicates that judges of the same level should follow the previous decisions of their colleagues, unless subsequent decisions have affected the earlier precedent, or some binding case law or statute law was overlooked in the earlier decision, or where for some other reason it was not a decision made after full consideration. He concluded that “these circumstances could be summed up by saying that the judgment should be followed unless the subsequent judge is satisfied that it was plainly wrong.”

18I am not so satisfied. To the contrary, in my opinion all four Ontario cases were rightly decided. In this area the law, in having regard to the approach taken in Jordan, I suggest there is all the more reason to follow these precedents and to resist the suggestion that minor differences in facts should lead to different results. Such an approach would only land us back in the jurisprudential morass that followed Morin.

19The arguments advanced on behalf of this applicant have also been considered in other provinces. At the appellate level, the Manitoba Court of Appeal in R. v. Schenkels, 2017 MBCA 62 considered the same issue and held that the 30 month presumptive ceiling is appropriate in the case of a direct indictment.

20In R. v. Cabrera, 2016 ABQB 707, the Alberta Court of Queen’s Bench dealt with the same arguments and determined them to fail as a result of the clear language of Jordan and also observed that the Supreme Court of Canada could have created some sort of exception for direct indictment cases, but chose not to. This trial decision was appealed with the arguments being heard on March 15, 2018, but no decision is yet available from the Alberta Court of Appeal and staff there indicate there is no information available as to when to expect a decision released.

21The Alberta Court of Queen’s Bench has also dealt with the same arguments in R. v. Jones, 2016 ABQB 691 and held against the argument that an 18 month ceiling applies when no preliminary has been held. This court also relied on the repeated references in Jordan to “cases going to trial in Superior Court” as being clear language setting forth the deciding factor, and also noted that the Supreme Court of Canada could have chosen a different route for direct indictment cases if it wished to in Jordan, but hadn’t. The Jones decision was appealed, but the appeal was abandoned in May of this year.

22Lastly, in R. v. Wilson, 2017 ABQB 68, the same argument was advanced with the same unsuccessful result. That court also noted that where the 30 month ceiling is applicable in a direct indictment case, it is still open to the defence to show that the delay, falling short of the ceiling, was nevertheless unreasonable. A notice of appeal has been filed in Wilson, but it has not yet been scheduled for hearing.

23As best I am aware, all trial decisions dealing with this same issue have ruled that the 30 month ceiling is applicable in cases of direct indictments and the fact that no preliminary hearing has been held. The only appellate decision that I’m aware of, to date, came to the same conclusion.

Exceptional Circumstances

24In alternate submissions, Crown counsel addressed the issue of whether or not the delay in excess of 18 months here, if the 18 month period had been held applicable, could be explained on the basis of exceptional circumstances as contemplated in Jordan at paragraphs 69 through 81.

25She provided submissions regarding the complexities of this case and sought to justify the delay of approximately 8 months over the 18 month ceiling level. Given the conclusion I have reached that the 30 month ceiling is appropriate in this case, I need not deal with those alternate Crown submissions.

Delay Below the Ceiling and Request for a Second Motion

26In neither his written or oral submissions did counsel for the applicant raise the issue of whether or not the delay in this case, falling short of the 30 month ceiling, was nevertheless unreasonable as contemplated in Jordan beginning at paragraph 82. Nor were any materials addressing that issue filed.

27When that was pointed out to him, counsel requested, at the end of submissions, that I allow him to bring another s. 11(b) motion in which he would intend to argue that there was prejudice to the accused because of the amount of delay here, and make submissions to undermine the Crown’s case as to the complexity of the prosecution. With respect, I don’t think the first suggested issue has much to do with the requirements set out in that section of Jordan.

28As stated at paragraph 83, relief on that basis would be granted only in clear cases and that to succeed the “defence must demonstrate that it took meaningful, sustained steps to expedite proceedings.” At paragraph 85, Jordan makes clear that it would not be enough to simply put on the record that the defence wants an earlier trial date. Instead, meaningful and sustained steps to be tried quickly are required. Crown counsel here has filed an affidavit of Kate Wood, which contains a detailed account of all the steps taken by both sides in this matter. Frankly, I don’t see any meaningful or sustained steps having been taken in this case.

29There was no request for severance. While it may be that such a request would be unlikely to succeed because of the general desirability that co-accused be tried together, at least an effort to obtain severance, even if unsuccessful, would be a meaningful step to have taken place.

30If an expeditious trial was truly sought, given the clear indication that the co-accused wanted to proceed to trial in Superior Court, and was entitled to do so, and the indication that Crown counsel had applied for the Attorney General’s consent to prefer an indictment, it would have been open to the applicant here to write the Attorney General consenting to a direct indictment so as to try and support the Crown’s request and thereby perhaps expedite the matter. Such a step may well have been unsuccessful, but again it would be a demonstration of a step being taken.

31Section 577 also permits an application to a judge for an order that a direct indictment may be preferred. Here the record contains no suggestion that any such application was made, or suggested to other counsel. Had it been, one would think the Crown would have difficulty in opposing it. Defence co-counsel may have opposed it, but again, it would at least be a demonstrated step indicating a desire for trial in a shorter period of time.

32Simple protestations of unhappiness at the speed with which the process is unfolding would, I think, fall short of the mark.

33Regardless, on the broader issue, I decline to grant leave to bring a further section 11(b) application so as to permit the defence to try and show that the delay, although below the ceiling, was nevertheless unreasonable. I do so as in my view, motions arising from an alleged breach of a particular Charter section should be brought as one application. It is not appropriate that section 11(b) applications be brought in stages, as for example where there is a challenge as to which presumptive ceiling is appropriate, followed later by a challenge on the basis that the delay, short of the ceiling, was nevertheless unreasonable. Charter applications take up enough time as it is. Repetitive applications create problems in terms of judicial scheduling, if the same judge is to hear both parts, and leads to some duplication of effort, and hence resources, if different judges hear the different parts of the application.

34In my opinion, there is nothing harsh in requiring that counsel be required to advance all alternate arguments within the one application.

35For these reasons, this 11(b) application is dismissed.

C.S. Glithero J. Released: December 19, 2018

Additional Information

COURT FILE NO.: CJ 9373 DATE: 2018-12-19 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – L.R. Applicant

RULING ON 11(B) CHARTER Motion C. Stephen Glithero J.