COURT FILE NO.: CR-16-10000689 DATE: 20180306
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
STEVEN NOWACK
Applicant
Counsel:
R. Weinberg, for the Crown
P. Slansky, for the Applicant
HEARD: December 21, 2017
REASONS FOR JUDGMENT
DUCHARME j.
[1] This is a s. 11(b) Charter of Rights application brought by the Applicant, Steven Nowack, alleging violation of his right to be tried within a reasonable time. He is charged with 13 counts of fraud over $5,000. The delay application was argued before me on December 21, 2017 and the trial is scheduled to start on March 26, 2018 and it is estimated that the trial will take six weeks ending on May 4, 2018. These are my reasons for judgment on the Charter application.
[2] The applicant, Mr. Nowack, was arrested on October 23, 2013. In its recent decision in R. v. Jordan, the majority of the Court repeatedly stated that the relevant time period runs from “the charge to the actual or anticipated end of trial.”[^1] Thus, the total delay for Mr. Nowack to May 4, 2018 is 54 months and 2 weeks. This time exceeds the ceiling set in Jordan of “30 months from the charge to the actual or anticipated end of trial.” However, the majority went on to hold that “delay attributable to the defence must be subtracted” and that this subtracted period includes both “delay waived by the defence” and “delays caused solely or directly by the defence’s conduct.” It is only then that it can be determined whether the case conforms to the guidelines set down in Jordan.
[3] I shall first outline the delay analyzed under the Askov/Morin principles. I will then outline the delay under the Jordan principles. Finally, I shall analyze what result should be rendered in this transitional case.
The Delay under the Askov/Morin Principles
[4] Under the approach in Askov and Morin, the factors to be considered in analyzing whether a delay is unreasonable are: (A) the length of the delay; (B) waiver of time periods; (C) the reasons for the delay, including (1) inherent time requirements of the case, (2) actions of the accused, (3) actions of the Crown, (4) limits on institutional resources, and (5) other reasons for delay; and (D) prejudice to the accused.
(A) The Length of the Delay
[5] In considering the total length of delay, one should consider the administrative guidelines set out in R. v. Morin, supra, of 8 to 10 months following the intake period to the completion of the preliminary inquiry and another 6 to 8 months from committal to trial. In so doing, it must be kept in mind that these guidelines are not to be applied as if they were judicially developed limitation periods.
[6] For the purposes of the s. 11(b) analysis, the concern is the delay attributable to actions of the Crown or institutional delay (“actionable delay”). This obviously does not include the delay that is deemed to be neutral, such as intake periods, or the delay caused by or waived by the applicants.
(B) Waiver of Time Periods
[7] An accused person may waive his or her rights under s. 11(b) either in their entirety or, more commonly, by agreeing that specific time periods need not be considered in the overall assessment of reasonableness. A waiver must be clear and unequivocal with full knowledge of the rights guaranteed by s. 11(b) and of the effect waiver will have on those rights. Where no real choice or option exists, there can be no waiver. A waiver may be explicit or implicit. An explicit waiver ordinarily involves express advertence to the delay issue. An implicit waiver arises when it is appropriate to infer from the conduct of the defence that a particular period of delay is acceptable. For example, agreement to a future date for an appearance may be sufficient to constitute waiver:
Agreement by an accused to a future date will in most circumstances give rise to an inference that the accused waives his right to subsequently allege that an unreasonable delay has occurred. While silence cannot constitute waiver, agreeing to a future date for a trial or a preliminary inquiry would generally be characterized as more than silence. Therefore, absent other factors, waiver of the appellant’s s. 11(b) rights might be inferred based on the foregoing circumstances. R. v. Smith (1989), 1989 CanLII 12 (SCC), 52 C.C.C. (3d) 97 per Sopinka J. at 109 (SCC) [Emphasis added.]
[8] But an important qualification to this is that the notion of waiver contemplates that a choice has been made between available options. Agreement to the inevitable, or the only option, does not constitute waiver. The onus is upon the Crown to prove or establish waiver.
(C) Reasons for the Delay
(1) The Inherent Time Requirements of the Case
As Sopinka J. explained in R. v. Morin, 1992 CanLII 89 (SCC), [1992] S.C.J. No. 25 at para 41:
All offences have certain inherent time requirements which inevitably lead to delay. Just as the fire truck must get to the fire, so must a case be prepared. The complexity of the trial is one requirement which has often been mentioned. All other factors being equal, the more complicated a case, the longer it will take counsel to prepare for trial and for the trial to be conducted once it begins. For example, a fraud case may involve the analysis of many documents, some conspiracies may involve a large number of witnesses and other cases may involve numerous intercepted communications which all must be transcribed and analyzed. The inherent requirements of such cases will serve to excuse longer periods of delay than for cases which are less complex. Each case will bring its own set of facts which must be evaluate. [Emphasis added.]
[9] In R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45 at para. 44, McLachlin J. stated that the inherent time requirements of a case consist of “the period of time that would normally be required to process a case, assuming the availability of adequate institutional resources.” Importantly, the period of time attributable to the inherent time requirements of a case is neutral in terms of the s. 11(b) analysis.
[10] The first part of the inherent time requirements of a case has been described as the intake requirements of a case. These include preliminary matters, such as applications for bail; applications for legal aid; retention of counsel by the accused; and disclosure by the Crown. As for delay involved in the holding of judicial pre-trials, the more recent case law from our Court of Appeal indicates that this should properly be considered part of the inherent time requirements of a case and the resulting delay is therefore neutral.
[11] Another important part of the inherent time requirements of a case is the time required for counsel to prepare for a case. As made clear in the above passage from Morin, the more complex the case, the longer the period required to properly prepare for it. The need for preparation can change the calculation of institutional delay between a set date and a preliminary inquiry or a set date and a trial date. This is recognized in R. v. N.N.M. (2006), 2006 CanLII 14957 (ON CA), 209 C.C.C. (3d) 436 (Ont. C.A.). Justice Juriansz made it clear that the time required for preparation is part of the inherent time requirements of the case and that this could affect the calculation of institutional delay. When discussing an “extraordinary delay” of almost a year between a set date and the preliminary inquiry, Juriansz J.A. stated at paras. 28 and 29:
In this case counsel did not even put their own availability on the record. Counsel merely stated that November 24, 2003, was the earliest date the court could provide. It is extremely doubtful counsel were available for the preliminary inquiry immediately. Counsel’s availability is useful context for assessing the reasonableness of the total delay in the concluding balancing analysis. It is also worth noting that neither party allotted any time for counsel to prepare for the preliminary hearing. Counsel’s preparation time would be part of the inherent time required in this case. [Emphasis added.]
[12] As well, when discussing the assessment of the reasonableness of the total delay, Justice Juriansz at para. 70 observed:
Moreover, neither party in this case took into account the preparation time required by counsel. As noted above, Sopinka J. in Morin made clear that the time counsel require to prepare for trial and the other steps in the proceeding is inherently required.
[13] In Schertzer, 2009 ONCA 742, [2009] O.J. No. 4425, while the Ontario Court of Appeal did not mention N.N.M., the Court did say of the six-month period between the set-date appearance in this court and the trial date, “Ordinarily, this would be considered institutional delay, assuming the parties are otherwise ready to proceed.” (Emphasis added.) I do not take this passage to mean that both parties must be ready to proceed the next day when setting a trial date or that institutional delay only commences when both parties are entirely ready to proceed. But I do take this passage from Schertzer, like the preceding passages from N.N.M., to be a clear recognition that when preparation is required for a preliminary inquiry or a trial, it is unreasonable to consider that the entirety of the delay from the set date should count as institutional delay against the Crown. Rather, the period of institutional delay should be reduced by the amount of time that would have been required for counsel to prepare. In making this calculation, a judge also should heed the comments of Sopinka J. in Morin, at para 42: “Account must also be taken of the fact that counsel for the prosecution and the defence cannot be expected to devote their time exclusively to one case. The amount of time that should be allowed counsel is well within the field of expertise of trial judges.”
(2) Actions of the Accused
[14] In R. v. Morin, supra, Sopinka J. at p. 793 made it clear that the actions of the accused, though short of waiver, should nonetheless be taken into account:
This aspect of the reasons for the delay should not be read as putting the “blame” on the accused for certain portions of delay. There is no necessity to impute improper motives to the accused in considering this factor. Included under this heading are all actions taken by the accused which may have caused delay. In this section I am concerned with actions of the accused which are voluntarily undertaken. Actions which could be included in this category include change of venue motions, attacks on wiretap packets, adjournments which do not amount to waiver, attacks on search warrants, etc. [Emphasis added.]
[15] Justice Sopinka concluded that such actions “must therefore be taken into consideration in determining whether the overall delay suffered by the accused was reasonable.” This does not mean that the pursuit of such legitimate issues by the defence is to be discouraged. Rather, it is simply recognition that the defence raising such further issues will increase the complexity of the matter, requiring more time for the matter to be litigated.
(3) Actions of the Crown
[16] In R. v. Morin, supra, Sopinka J. at p. 793 made it clear that a similar approach must be taken when dealing with delay caused by actions of the Crown:
As with the conduct of the accused, this factor does not serve to assign blame. This factor simply serves as a means whereby actions of the Crown which delay the trial may be investigated. Such actions include adjournments requested by the Crown, failure or delay in disclosure, change of venue motions, etc. An example of action of this type is provided in Smith, supra, where adjournments were sought due to the wish of the Crown to have a particular investigating officer attend the trial. As I stated in that case, there is nothing wrong with the Crown seeking such adjournments but such delays cannot be relied upon by the Crown to explain away delay that is otherwise unreasonable.
(4) Limits on Institutional Resources
[17] In R. v. Morin, at para. 47, Sopinka J. defined institutional delay as “the period that starts to run when the parties are ready for trial but the system cannot accommodate them.” In most cases, the most significant period of time attributable to limits on institutional resources will be the time periods between a set date and a preliminary inquiry or trial. However, as noted above, the amount of time attributable to institutional delay may be reduced when significant preparation is required for the preliminary inquiry or trial. This is likely only to be a consideration in complex cases.
(5) Other Reasons for Delay
[18] The Court left open the possibility of other reasons for delay. In this case, the parties raised no other reasons for delay during the relevant period of time.
(D) Prejudice to the Accused
[19] Prejudice to the accused can be inferred from prolonged delay and the right protected by s. 11(b) of the Charter is not restricted to those who assert the right throughout the proceedings. The longer the delay, the more likely that such an inference will be drawn. Conduct of the accused falling short of waiver may be relied upon to negative prejudice. Both the defence and the Crown can lead evidence to demonstrate particular evidence in a specific case or to dispel such a finding. Importantly, any prejudice must result from the delay, not merely from the fact of being charged with a criminal offence. In this case, Mr. Nowack is not alleging any prejudice beyond that which can be inferred from the length of the delay. While he has complained of the charges having a negative impact on his employment prospects I find this is the result of the nature of the charges rather than the delay in coming to trial.
[20] The following are the dates analyzed under the Askov/Morin principles:
| DATE | EVENT | REASON FOR DELAY | RESULTING DELAY | REAL TIME |
|---|---|---|---|---|
| October 24, 2013 | Consent release on conditions | Intake/inherent | 1 month | |
| November 26, 2013 | First appearance out of custody; Crown gave disclosure; student on behalf of Applicant asked for three week adjournment; Crown agreed | Intake/inherent Defence delay |
3 weeks | 1 month |
| December 17, 2013 | Student on behalf of Applicant stated that that disclosure was under review; asked for 3 more weeks; Crown agreed and advised that more disclosure was coming | Intake/inherent Defence delay |
3 weeks | 2 months |
| January 16, 2014 | Crown states that he advised Defence that there is more, lengthy, disclosure available for pick up; the student asked for one month; all agreeable | Intake/inherent Defence delay |
4 weeks | 3 months |
| February 11, 2014 | Crown advises that more disclosure is anticipated in a few weeks; Crown suggested, and “I understand my friend is also requesting” approximately four weeks | Intake/inherent Defence delay |
4 weeks | 4 months |
| March 12, 2014 | New Information before the court; original withdrawn; student needed time to review disclosure and have some discussions with client; Defence asking for April 2nd return date | Intake/inherent Defence delay |
3 weeks | 5 months |
| April 2, 2014 | Counsel and Crown unable to obtain judge’s schedule to book a JPT; matter went over to secure JPT date in interim; Defence agreeable | Part institutional (no indication as to why it went over for 3 weeks to obtain the judge’s schedule) | 3 weeks | 5.5 months |
| April 23, 2014 | Matter put over to judicial pretrial on May 30, 2014 | Institutional | 5 weeks | 6 months |
| May 30, 2014 | JPT held; dates set for prelim for September 8 - October 2, 2015; Trial Verification Form silent on availability of Brian Greenspan or Crown or Court | Institutional | 15 months, 1 week | 7 months |
| September 22, 2014 | Another JPT held | No resulting delay | 11 months | |
| April 1, 2015 | Application to remove Mr. Greenspan granted; “...we have received instructions that Mr. Nowack would proceed with the preliminary hearing with or without counsel…” | No resulting delay | 17 months | |
| June 10, 2015 | Applicant stated to Focus Hearing/Preliminary Hearing Justice that his intention is to retain counsel as the matter is complex | Defence not ready to proceed | No resulting delay | 19.5 months |
| July 8, 2015 | Applicant stated to Justice McLeod that he was in the process of retaining Jackie Freeman and he would be able to retain her within the next 2 to 3 weeks; forensic accounting report disclosed | Defence not ready to proceed | No resulting delay | 20.5 months |
| July 27, 2015 | Information not before the court at continuing Focus Hearing; Applicant lacked financial resources to retain Jackie Freeman; he had very substantial discussions with Anil Kapoor; lawyers have told him that this is a very complex matter; Applicant has arranged for more funds, which he will not be able to get until October 8, 2015; Applicant wants the preliminary hearing adjourned; that application dismissed; matter put over to prelim date of September 8 | Defence not ready to proceed | No resulting delay | 21 months |
| September 1, 2015 | Applicant brought the matter forward to speak to, again stating that he had discussions with Mr. Kapoor, again stating that he could retain counsel by October 8th, 2015 | Defence not ready to proceed | No resulting delay | 21.5 months |
| September 8, 2015 | Applicant arraigned on new Information, then advised that he will be retaining Mr. Kapoor “no later than next Tuesday…”; argued prejudice if the matter goes ahead; Justice McLeod declined to order an adjournment; the old Information, which had been missing for a few appearances, was found and withdrawn | Defence not ready to proceed | No resulting delay | 21.5 months |
| September 10, 2015 | Applicant advised, “I will have a lawyer by next Wednesday”, which was the date of resumption of the evidence | Defence not ready to proceed | No resulting delay | 21.5 months |
| September 16, 2015 | Applicant arrived late and advised that he had not retained a lawyer yet, but “it could be imminent”. Discussion about the process; Applicant asked about the “lost” Information; clerk stated, “we found that one … and it was withdrawn and replaced” | Defence not ready to proceed | No resulting delay | |
| September 17, 2015 | Elderly witness testified; Mr. Nowack cross-examined | Inherent | ||
| September 18, 2015 | Another witness testified. Mr. Nowack cross-examined | Inherent | ||
| September 21, 2015 | Another witness testified. Mr. Nowack cross-examined | Inherent | ||
| September 22, 2015 | Continued cross-examination; Discussions between judge and Mr. Nowack about cross-examining someone from FXCM about whether certain accounts exist | Inherent | ||
| September 24, 2015 | Another witness testified; No witnesses testified after this date | Inherent | 22 months | |
| September 28, 2015 | Nowack late; Mr. Moustacalis appeared on a “limited retainer to assist Mr. Nowack with respect to some issues relating to his preliminary hearing”; Defence requested six-week adjournment to review material | Defence delay | 6 weeks | |
| November 2, 2015 | Counsel Mr. Fox is still “unclear” about what the Defence is thinking of doing. They are asking for a date at the end of December; the date selected for continuation was March 1, 2016; a speak-to date of January 20th was set | Defence Delay | 4 months | 23.5 months |
| January 20, 2016 | Mr. Nowack not present; counsel stated there was difficulty with transcripts; with respect to the issue on the preliminary hearing, counsel stated, “I’m unclear.” | Defence delay | No resulting delay | 26 months |
| January 28, 2016 | Mr. Fox and Mr. Nowack attended. They still would not say what the motion is for. | Defence delay | No resulting delay | 26 months |
| January 29, 2016 | Mr. Fox stated that the motion will relate to the loss of jurisdiction. Matter remanded to February 19 | Defence delay | No resulting delay | 26 months |
| February 19, 2016 | Defence had emailed crown saying that application is not completed as Mr. Nowack does not have the resources; they will be asking for more time; Crown opposed; matter adjourned to March 1, 2016 | Defence delay | No resulting delay | 28 months |
| March 1, 2016 | Mr. Nowack advised that he has been unable to put together the resources for the application and he requested an adjournment. Court was adjourned to June 1st. | Defence delay | 3 months | 28 months |
| June 1, 2016 | Mr. Moustacalis requested an adjournment of the preliminary hearing so he could file a factum. Matter remanded to July 14th. | Defence delay | 6 weeks | 31 months |
| July 8, 2016 | JORDAN DECIDED | |||
| July 14, 2016 | Mr. Nowack not present. Counsel’s factum not finished; Defence said that factum could be finished within a week | Defence delay | 3 weeks | 32.5 months |
| August 4, 2016 | Mr. Moustacalis advises that there is no merit to the jurisdictional argument; Mr. Nowack makes the application on his own; application dismissed; Mr. Nowack advises he will be having surgery and will not be available for 6 weeks. | Defence delay | 2 months, 1 week | 33.5 months |
| October 13, 2016 | Mr. Nowack indicated that he wanted an adjournment because of his ill health; he wanted to cross-examine the affiant and the forensic accountant; Mr. Nowack waived delay from October 13th to the end of the preliminary hearing | Defence waiver | Delay waived to end of preliminary inquiry | 35.5 months |
| October 21, 2016 | Mr. Nowack brought a medical note; application to cross-examine the affiant dismissed; Mr. Nowack raised a section 7 argument; advised he begins radiation in next two weeks; wants two weeks to seek the advice of a lawyer; Mr. Nowack wanted to make submissions “within four months subsequent to my radiation treatment.” | Defence waiver | Delay waived to end of preliminary inquiry | 36 months |
| October 26, 2016 | Mr. Nowack did not appear. Mr. Slansky appeared and asked for an adjournment. | Defence waiver | Delay waived to end of preliminary inquiry | 36 months |
| October 31, 2016 | Written reasons issued on “lost” information; submissions made on the preliminary hearing | Defence waiver | Delay waived to end of preliminary inquiry | 36 months |
| November 3, 2016 | Matter committed for trial | Institutional | 3 weeks | 36.5 months |
| November 24, 2016 | First appearance in Superior Court; Mr. Nowack came late; counsel not retained; 11(b) waived to December 22nd | Defence waiver | 1 month | 37 months |
| December 22, 2016 | Mr. Slansky appeared on behalf of Mr. Nowack, Mr. Nowack was not present and Mr. Slansky was not retained; Crown sought date early in January, Mr. Slansky not available | Defence waiver | 1 month | 38 months |
| January 24, 2017 | Court offered September 11th or 18th, 2017 for trial; crown available; Defence waived delay for counsel to be retained; Defence requested adjournment; Trial date set for March 26th, 2018 as Defence had another trial in January – March, 2018; 11(b) waived from September 11, 2017 to March 26, 2018 | Institutional Defence waiver |
7 months, 1 week 7 months, 2 weeks |
39 months |
| March 29, 2017 | Mr. Slansky attended but Mr. Nowack did not. Mr. Slansky not retained | Defence not ready to proceed | No resulting delay | |
| April 24, 2017 | All present; still no judicial pretrial | No resulting delay | ||
| May 23rd, 2017 | A date for an in-court judicial pretrial set for June 22nd, 2017 | No resulting delay | ||
| June 22, 2017 | In-court judicial pretrial. Defence states they are missing disclosure but they are unable to state what they are missing; they are given to the end of July to advise the Crown | Defence delay | No resulting delay | |
| July 27, 2017 | In-court judicial pretrial. Defence got their own disclosure back in the civil proceedings on June 29th, but they still have not advised the Crown what further disclosure they want. Judge says to advise the Crown within two weeks of today. | Defence delay | No resulting delay | |
| September 26, 2017 | In-court judicial pretrial. With respect to the Defence disclosure request, they still haven’t provided it to the Crown. [Note: The request was provided to the Crown on October 8th) | Defence delay | No resulting delay | |
| March 26, 2018 | Start of trial | Defence waiver | 53 months | |
| May 4, 2018 | Anticipated end of trial | Inherent | 54.5 months |
[21] When one looks at the total delay in this case, it is clear that it took too long for the preliminary inquiry to commence. The preliminary inquiry did not start until September 8, 2015, 22 months and two weeks after the arrest of Mr. Nowack. It is also clear that Mr. Nowack was not ready to proceed for much of the time as he did not have a lawyer and he suffered some serious health problems. He repeatedly sought to adjourn the proceedings. There was also a lot of time wasted in preparing for a motion that was eventually abandoned by the lawyers retained to argue it and was argued instead by Mr. Nowack. Nonetheless, despite Mr. Nowack’s approach to the case there remains a significant amount of actionable delay in this case. I would say that the actionable delay is as follows:
| DATE | EVENT | REASON FOR DELAY | RESULTING DELAY | TOTAL DELAY |
|---|---|---|---|---|
| April 2, 2014 | Adjourned to get JPT Judge’s schedule | Institutional | 3 weeks | 3 weeks |
| April 23, 2014 | Matter put over to judicial pretrial on May 30, 2014 | Institutional | 5 weeks | 2 months |
| May 30, 2014 | JPT held; dates set for prelim for September 8 - October 2, 2015 | Institutional | 15 months, 1 week | 17 months, 1 week |
| November 3, 2016 | Matter committed for trial | Institutional | 3 weeks | 18 months |
| January 24, 2017 | Court offered September 11th or 18th, 2017 for trial; crown available; Defence waived delay for counsel to be retained; Defence requested adjournment; Trial date set for March 26th, 2018 as Defence had another trial in January – March, 2018; 11(b) waived from September 11, 2017 to March 26, 2018 | Institutional Defence Waiver |
7 months, 1 week 7 months, 2 weeks |
25 months, 1 week |
[22] In making the foregoing calculations I have been generous to the defence as the delay stemming from the April 2 and April 23, 2014 appearances may have been due at least in part to the defence. Nonetheless, the total delay is 25 months, 1 week which exceeds the 18 months guideline suggested in Morin. However, this figure does not account for preparation time. Even if I were to suggest that this case would require 2 months of preparation time, which I think would be excessive, the total delay would still exceed the Morin guidelines by more than 5 months.
The Delay under the Jordan Principles
[23] In Jordan the majority stated that “in our view, developments since Morin demonstrate that the system has lost its way. The framework set out in Morin has given rise to both doctrinal and practical problems, contributing to a culture of delay and complacency towards it.”[^2] Consequently they introduced a new approach to s. 11(b). It is a simplified analysis and it focuses on “a presumptive ceiling on the time it should take to bring an accused person to trial: 18 months for cases going to trial in the provincial court, and 30 months for cases going to trial in the superior court.”[^3] The Crown bears the onus of justifying delays that exceed this ceiling.
[24] Defence delay can be deducted from the total delay and it consists of clear and unequivocal waiver or delay caused solely by the conduct of the defence. In my view, the Court’s insistence on a clear and unequivocal waiver suggests that the observation in Smith that agreeing to a future date may constitute a waiver of that time period may no longer be good law. Nonetheless under the Jordan approach I found delay caused solely by the defence or delay waived by the defence on the following dates:
| DATE | EVENT | REASON FOR DELAY | RESULTING DELAY | TOTAL DELAY CAUSED BY DEFENCE OR WAIVED |
|---|---|---|---|---|
| November 26, 2013 | First appearance out of custody; Crown gave disclosure; student on behalf of Applicant asked for three week adjournment; Crown agreed | Defence delay | 3 weeks | 3 weeks |
| December 17, 2013 | Student on behalf of Applicant stated that that disclosure was under review; asked for 3 more weeks; Crown agreed and advised that more disclosure was coming | Defence delay | 3 weeks | 1 month, 2 weeks |
| January 16, 2014 | Crown states that he advised Defence that there is more, lengthy, disclosure available for pick up; the student asked for one month; all agreeable | Defence delay | 4 weeks | 2 months, 2 weeks |
| February 11, 2014 | Crown advises that more disclosure is anticipated in a few weeks; Crown suggested, and “I understand my friend is also requesting” approximately four weeks | Defence delay | 4 weeks | 3 months, 2 weeks |
| March 12, 2014 | New Information before the court; original withdrawn; student needed time to review disclosure and have some discussions with client; Defence asking for April 2nd return date | Defence delay | 3 weeks | 4 months, 1 week |
| September 8, 2015 | Applicant arraigned on new Information, then advised that he will be retaining Mr. Kapoor “no later than next Tuesday…”; argued prejudice if the matter goes ahead; Justice McLeod declined to order an adjournment; the old Information, which had been missing for a few appearances, was found and withdrawn | Defence delay | 1 week | 4 months, 2 weeks |
| September 28, 2015 to March 1, 2016 | Counsel for the applicant appears on several occasions speaking to a motion with respect to the preliminary inquiry. Over Crown objections eventually put to March 1, 2016 | Defence delay | 5 months | 9 months, 2 weeks |
| March 1, 2016 to June 1, 2016 | Mr. Nowack advised that he has been unable to put together the resources for the application and he requested an adjournment. Court was adjourned to June 1st. | Defence delay | 3 months | 12 months, 2 weeks |
| June 1, 2016 to July 14, 2016 | Mr. Moustacalis requested an adjournment of the preliminary hearing so he could file a factum. Matter remanded to July 14th. | Defence delay | 6 weeks | 14 months |
| July 14, 2016 to August 4, 2016 | Mr. Nowack not present. Counsel’s factum not finished; Defence said that factum could be finished within a week. Adjourned to August 4, 2016. | Defence delay | 3 weeks | 14 months, 3 weeks |
| August 4, 2016 to October 13, 2016 | Mr. Moustacalis advises that there is no merit to the jurisdictional argument; Mr. Nowack makes the application on his own; application dismissed; Mr. Nowack advises he will be having surgery and will not be available for 6 weeks. | Defence delay | 2 months, 1 week | 17 months |
| October 13, 2016 to November 3, 2016 | Mr. Nowack indicated that he wanted an adjournment because of his ill health; he wanted to cross-examine the affiant and the forensic accountant; Mr. Nowack waived delay from October 13th to the end of the preliminary hearing | Defence Waiver | 3 weeks | 17months, 3 weeks |
| January 24, 2017 | Court offered September 11th or 18th, 2017 for trial; crown available; Defence waived delay for counsel to be retained; Defence requested adjournment; Trial date set for March 26th, 2018 as Defence had another trial in January – March, 2018; 11(b) waived from September 11, 2017 to March 26, 2018 | Defence Waiver | 7 months, 2 weeks | 25 months, 1 week |
[25] As I stated above the total delay in this case is 54 months, 2 weeks. When the period of 25 months, 1 week is deducted from this the delay for Mr. Nowack is under the Jordan presumptive ceiling: 54 months, 2 weeks - 25 months, 1 week = 29 months, 1 week.
[26] In Jordan the majority stated that where the total delay is below the presumptive ceiling the defence bears the onus to show that the delay is unreasonable.[^4] According to the majority, this requires that:
the defence must establish two things: (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. Absent these two factors, the s. 11(b) application must fail.
[27] The majority also made it clear that this standard will be applied strictly saying that, “We expect stays beneath the ceiling to be granted only in clear cases.” This is even more true for transitional cases: “a stay of proceedings below the ceiling will be even more difficult to obtain for cases currently in the system.”[^5]
[28] In the case of Mr. Nowack, the defence cannot meet this strict test. Mr. Slansky cannot demonstrate that he, his predecessor counsel on the case, or Mr. Nowack took “meaningful steps that demonstrate a sustained effort to expedite the proceedings.” The majority stated that to do so:
it falls to the defence to show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications (including the s. 11(b) application) reasonably and expeditiously.
[29] On this basis, I would dismiss Mr. Nowack’s application.
DUCHARME J.
Released: March 6, 2018
COURT FILE NO.: DATE: 20180306
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
STEVEN NOWACK
Applicant
REASONS FOR judgment
DUCHARME J.
Released: March 6, 2018
[^1]: R. v. Jordan, 2016 SCC 27 at paras. 47-49. [^2]: Jordan at para 29. [^3]: Jordan at para 5. [^4]: Jordan at para 8. [^5]: Jordan at para 101.