COURT FILE NO.: 13-5060

DATE: 2018/02/08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

Leslie Patrois

Applicant

Moiz M. Karimjee, Counsel for the Crown

Dominic Lamb, Counsel for the Applicant

HEARD: January 15, 2018

R. Smith J.

REASONS FOR DECISION ON s. 11(b) APPLICATION

[1] The accused has brought an Application seeking a stay of the criminal proceedings pursuant to s. 11(b) of the Charter due to the length of the delay in getting to trial. On July 25, 2013 the accused was charged with 10 sexual offences in relation to the complainant.

[2] The trial is set to commence on February 12, 2018 and is expected to be completed by March 2, 2018. A total of 1,681 days, 56 months, or 4.7 years will have elapsed from the date the charges were laid. The accused submits that this amount of delay is above the presumptive 30 month delay established in Jordan and that a stay should be granted.

[3] The Crown submits that when the defence delay the time when defence waived his 11(b) rights, the appellate periods for the certiorari application and the appeal to the Court of Appeal, and the discrete event delay are deducted; the net delay is below the 30 month presumptive ceiling established in Jordan.

Defence Delay and Waiver of 11(b)

[4] The defence agreed with the Crown’s description and allocation of delay in paras. 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12 of the Crown’s chart attached as Appendix “A” (the “Chart”). The defence also agreed that 21 days should be allocated for an exceptional discrete event, to allow counsel to attend to a family matter and that it waived its s. 11 (b) rights for at least 178 days.

[5] The defence does not agree with the following allocations of time:

(a) 35 days of delay because defence counsel did not attend a counsel pre-trial set for November 4, 2013;

(b) That the defence waived his s. 11 (b) rights for 178 days rather than 198 as claimed by the Crown;

(c) 559 days as appellate delay to complete the Crown’s certiorari application to the Superior Court, and the appeal to the Court of Appeal of Maranger, J.’s decision refusing to grant certiorari; and

(d) The allocation of 385 days of delay to the defence for the period from February 10, 2017 to March 3, 2018 to obtain a new trial date after the appeal was heard (#22 on the Chart).

Issues

[6] The following issues must be decided:

(1) Should 35 days be allocated to defence delay for failing to attend a counsel pre-trial (“CPT”) on November 4, 2013?

(2) Did the defence waive its s. 11 (b) rights for 198 or 178 days?

(3) Should 559 days be allocated to Appellate Delay for the time required to complete the certiorari and subsequent appeal to the Court of Appeal?

(4) What is the net delay according to Jordan?

(5) Should 385 days be allocated to the defence for the delay from the Court of Appeal’s decision on February 10, 2017 until the completion of the new trial?

Factual Background

[7] The facts are largely uncontested and I have taken parts from the parties’ Factums.

[8] On July 25, 2013, the applicant was charged with 10 counts of sexual offences in relation to the complainant. Five of the counts alleged anal penetration in the City of Ottawa. He was also charged with one further count of unlawfully concealing and harboring the complainant.

[9] The preliminary inquiry was held on June 15-18, 2015. Before the close of the preliminary inquiry (“P.I.”), the Crown asked that the respondent be discharged on four of the sexual offence counts alleging anal penetration and that count #5 of the Information (which had alleged anal penetration) be amended to allege sexual assault in both the City of Ottawa and the Province of Quebec.

[10] The accused had argued at the P.I. that the Ontario Court lacked territorial jurisdiction because the complainant testified that the acts of anal penetration occurred in the province of Quebec.

[11] On June 18, 2015, the preliminary inquiry judge committed the applicant to stand trial on five sexual offence counts, but agreed with the defence’s argument and discharged him on the amended Count #5 for want of territorial jurisdiction. Count #5 was the most serious charge because it involved allegations of anal penetration.

[12] On July 13, 2015 the Crown filed a certiorari application challenging the discharge on Count #5. On July 20, 2015, the Crown preferred an indictment on six counts. Count #6 of the preferred indictment was identical to the amended Count #5, on which the applicant had been discharged at the preliminary inquiry.

[13] The Crown’s certiorari application with respect to Count #5 was heard by Superior Court Justice Robert Maranger on July 13, 2016 and dismissed on July 20, 2016. The Crown appealed the dismissal to the Court of Appeal, filing its Notice of Appeal on August 8, 2016.

[14] In order that the applicant’s trial not be delayed, both parties agreed to set three weeks for trial commencing on November 16, 2016 and agreed to proceed with the judicial pre-trial conference.

[15] The Supreme Court of Canada released its decision in Jordan on July 8, 2016.

[16] At the pre-trial on September 30, 2016, the Crown proposed to “simply go ahead with the trial, hear all of the evidence...and then wait for the ruling of the Court of Appeal to see how that would affect the counts”. The trial was set to commence on November 7, 2016 for 3 weeks and the appeal was to be heard on February 10, 2017. The defence counsel did not agree with the Crown’s proposal and asked to vacate the trial dates.

[17] At the pre-trial the Crown also sought to obtain the accused’s agreement that the alleged conduct, which took place in Quebec (the anal penetration), would be part and parcel of the allegations against the accused at trial. Defence did not agree to discuss this request further and therefore the November 2015 trial dates were vacated. The pre-trial judge advised the parties that their positions would be considered if an 11(b) application was brought.

[18] At the Court of Appeal hearing on February 10, 2017, the accused conceded that the pre-trial judge had erred in discharging the accused on the amended Count #5. Counsel for the accused, who is trial counsel, made it clear that he would challenge the indictment at the trial. This included Count #6 which was identical to the amended Count #5 on the information before the Preliminary Inquiry judge.

[19] On March 3, 2017, new trial dates were set for February 12 – March 2, 2018.

Analysis

[20] Section 11(b) of the Charter of Rights and Freedoms states that “Any person charged with an offence has the right … to be tried within a reasonable time.”

[21] In the Jordan decision a majority stated that the Morin framework for s. 11(b) applications had given rise to both doctrinal and practical problems that contributed to a culture of delay and complacency. Consequently, it established a new framework to be applied where a breach of s. 11(b) is alleged. In R. v.Coulter 2016 ONCA 704, [2016] O.J. No. 5005 (Ont.CA), the Court of Appeal stated that the new framework required all participants in the justice system to work together to achieve speedier trials:

Ultimately, all participants in the justice system must work in concert to achieve speedier trials. After all, everyone stands to benefit from these efforts. As Sharpe J.A. wrote in R. v. Omar, 2007 ONCA 117, 84 O.R. (3d) 493 (Ont. C.A.):

The judicial system, like all other public institutions, has limited resources at its disposal, as do the litigants and legal aid. … It is in the interest of all constituencies – those accused of crimes, the police, Crown counsel, defence counsel, and judges both at trial and on appeal – to make the most of the limited resources at our disposal. [para. 32]

Sharpe J.A.’s reference to finite resources is an important point. We are aware that resources issues are rarely far below the surface of most s. 11(b) applications. By encouraging all justice system participants to be more proactive, some resource issues will naturally be resolved because parties will be encouraged to eliminate or avoid inefficient practices.

[22] The new framework introduced a “presumptive ceiling”, and delay that exceeds this ceiling is presumptively unreasonable. The presumptive ceiling for trials in the superior court is 30 months.

[23] In Jordan, the Supreme Court reiterated that a waiver of delay can be either explicit or implicit, as long as it is clear and unequivocal, accompanied by a complete understanding of the right, and the effect of waiving that right.

[24] In order to determine delay, the Court must conduct the following analysis:

a. Calculate the total delay from the date that charges were laid until the actual or anticipated end of the trial;

b. Deduct from the total any delay waived by defence or delay caused by the conduct of the defence;

c. If the net total exceeds the presumptive ceiling, the onus shifts to the Crown to rebut the presumption of unreasonable delay by demonstrating that there are exceptional circumstances. If the Crown fails to do so, a stay must follow;

d. In contrast, if the delay falls below the presumptive ceiling then the defence has the onus of showing that the delay is unreasonable.

[25] For cases that were already in the system as of July 8, 2016, an additional step applies. In these cases, the court must consider if there are transitional exceptional circumstances and apply the framework flexibly. If the delay in a transitional case exceeds the presumptive ceiling, the Crown must show that the delay is justified based on a reasonable reliance on the previous law.

Issue #1: Should 35 days be allocated to defence delay for failing to attend a counsel pre-trial on November 4, 2013?

[26] At paras. 49, 60 and 61 of the Jordan decision, the Supreme Court stated that there are two different categories of defence delay: delay that has been waived by the defence and delay that is caused by the conduct of the defence.

[27] The Crown submits that 35 days should be allocated to defence delay as a result of defence counsel not attending a counsel pre-trial on November 4, 2013.

[28] Defence counsel submits that he attended a counsel pre-trial with Ms. Fitzpatrick and was present for the counsel pre-trial.

[29] The Crown accepts counsel’s submission that he attended a counsel pre-trial but submits that the record demonstrates that there were 2 counsel pre-trials scheduled and defence counsel attended the counsel pre-trial set for December 9, 2013 but failed to attend the counsel pre-trial previously set for November 4, 2013.

[30] At the appearance on October 3, 2013, a counsel pre-trial (“CPT”) was set for November 4, 2013 and the matter was returnable on November 14, 2013. On the November 14 date, Mr. Friedman from defence counsel’s office attended before Justice of the Peace Switzer and stated “Mr. Lamb’s request is to set a CPT sometime in the second week of December”. Mr. Friedman agreed to December 9, 2013 at 2:45 p.m. with a return date on December 19, 2013.

[31] On December 19, 2013, Ms. Cunningham stated that “two CPT’s had been scheduled and Mr. Lamb hadn’t attended”. Mr. Lamb responded “No I did attend with Ms. Fitzpatrick”. The Crown’s file indicated that defence counsel was a “no show” on both November 4, 2013 and December 9, 2013.

[32] Based on the above evidence, I am satisfied that defence counsel did not attend the first scheduled CPT on November 4, 2013 as Mr. Friedman from his office attended on November 14, 2013 and asked to set a CPT conference on December 9, 2013. Mr. Friedman would not have asked to set a CPT if one had already been held.

Disposition of Issue #1

[33] For the above reasons 35 days are considered as defence delay for failing to attend the CPT set for November 4, 2013, which resulted in a delay from November 14, 2013 to the next court appearance on December 19, 2013.

Issue #2: Did the accused waive his 11 (b) rights for 198 days or 178 days?

[34] The accused agrees that on December 3, 2014 he filed a request for an adjournment of the trial dates set to commence on January 19, 2015. A new trial date was set to commence on June 15, 2015. The accused calculates the time that was waived from the date originally set for the trial on January 19, 2015 until the commencement of the new trial dates in the Ontario Court on June 15, 2015. This period of delay would be 178 days.

[35] The Crown calculates the waiver of delay from the December 3, 2014 date when the accused filed his request for an adjournment of the trial date set for January 19, 2015 until the end of the new trial on June 19, 2015. This results in a delay of 198 days.

[36] In R. v. Morin [1991] SCJ 25 (S.C.C.) at paras. 47 – 48 the Supreme Court held that the period of institutional delay started to run when the parties were ready for trial but the system could not accommodate them.

[37] In R. v. Coulter, 2016 ONCA 704, 2016 OJ No. 5005 (Ont. C.A.) at para. 44 and in Jordan at para. 44, the court stated that where the court and the Crown are ready to proceed but the defence is not, the defence will have directly caused the delay. Beyond defence unavailability, it will of course be open to trial judges to find that other defence actions or conduct has caused the delay.

[38] I find that when the accused gave notice on December 3, 2014 that he was seeking an adjournment of the upcoming trial dates, this constituted evidence that he was not ready to proceed and the Crown and the Court were ready to proceed.

Disposition of Issue #2

[39] For the above reasons, I find that the accused has waived his 11(b) rights for 193 days from December 3, 2014 when he gave notice seeking an adjournment of the trial dates until the new trial date was set to commence on June 15, 2015.

Issue #3 - Should 559 days be allocated to Appellate Delay for the time required to complete the certiorari application and subsequent appeal to the Court of Appeal?

[40] A substantial period of the delay in this matter stems from the Crown’s application for certiorari of Fournier J.’s decision to discharge the accused on Count #5 (which allegedly occurred in both Ottawa and Quebec over a period of time) and the time for the appeal of Maranger J.’s decision refusing to overturn Fournier J.’s refusal to commit. Count #5 of the amended information included the most serious allegations of acts of anal intercourse.

[41] In R. v. Tsega [2017] O.T. No. 2724 (SCJ), the Crown brought certiorari proceedings when Mr. Tsega was committed to stand trial on second degree murder but not on first degree murder and the Crown then appealed the certiorari decision to the Court of Appeal. The defence also brought certiorari proceedings and appealed to the Court of Appeal. The similarity with the case before me is that both involved committals on some but not all of the charges and the certiorari applications and appeals to the Court of Appeal caused a substantial delay.

[42] The case of R. v. Potvin, [1993] 2 S.C.R. 888 para. 56, the Supreme Court stated that s. 11(b) of the Charter did not apply to delay in respect to an appeal from conviction or acquittal. At para. 26 of Tsega, Aitken, J. stated as follows:

26. The many different circumstances which may prevail at the post-verdict, post-stay stage require a flexible approach to remedies. In some cases stays of proceedings may be appropriate. In other cases, other remedies will necessarily arise for consideration. The Charter empowers the court to grant such remedies as may be just in all the circumstances. In selecting a remedy, the judge should bear in mind such factors as the length and nature of the delay, the seriousness of the offence, the nature of the injury suffered by the accused and any prejudice caused to the accused’s defence by the delay: see La Forest J. in R. v. Rahey, supra, at p. 648.

[43] In Jordan the Supreme Court did not overrule its ruling in Potvin holding that s. 11(b) delay did not apply to appeal periods. As a result, I conclude that the Potvin decision of the Supreme Court continues to be binding authority.

[44] In R. v. Manassari 2016 ONCA 703, [2016] O.J. No. 5004, 132 O.R. (3d) 4014 Watt J. stated at paras. 337 – 340 as follows:

It would seem incongruous to treat time taken in pursuit of extraordinary remedies differently than that taken in appeals from convictions, acquittals or stayed proceedings as Potvin mandates.

[45] I agree with Atkins J.’s decision in Tsega where she followed the Potvin and Manassari decisions that the time spent to complete certiorari applications and appeals therefrom to the Court of Appeal do not apply to the calculation of the delay under s. 11(b) of the Charter.

[46] The Crown filed its certiorari application July 13, 2015 and the matter was dealt with on July 24, 2015 in Assignment Court. The Crown claims that the appellate process commenced on July 24, 2015 when the matter was first dealt with after the certiorari application was filed. I find that this is the appropriate commencement for the period of appellate delay.

[47] In submissions the accused did not dispute that appellate time should not be calculated when determining the total delay. Rather, the defence submitted that the Crown should have abandoned its certiorari application and its appeal to the Court of Appeal because: a) the accused had already been committed to stand trial on 5 other sexual offence charges; b) pursuing certiorari and the appeal didn’t make a lot of sense and compromised the accused’s s. 11(b) rights and, c) the Crown’s appeal was found to be moot in any event.

[48] The Preliminary Inquiry judge had refused to commit on the amended Count #5 which contained the most serious allegations of five incidents of anal penetration. I find that the Crown had valid reasons to apply for certiorari and to appeal to the Court of Appeal to ensure that the most serious allegations were brought against the accused. I also find that the Crown would not have been allowed to proceed with Count #6 on the preferred indictment (the same allegations as on the amended Count #5 on the original information) when the accused had been discharged at his Preliminary Inquiry. To do so would have been an abuse of process. The only option for the Crown was to appeal the denial of its certiorari application. An alternative for the Crown was to obtain the consent of the accused to the appeal or to get the accused to agree not to challenge Count #6 of the trial indictment, which is what the defence agreed to before the Court of Appeal.

[49] The Crown had specifically asked the accused to consent to the appeal but the accused refused to do so. This would have preserved the November 16, 2016 trial dates.

[50] As a result, I find that there was no abuse of prosecutorial discretion for the Crown to proceed with a meritorious application for certiorari and to proceed with a meritorious appeal.

[51] The Crown’s certiorari application was heard in July of 2016 and denied on July 20, 2016. The Crown filed a Notice of Appeal on August 8, of 2016. The period of 19 days from July 20 to August 8, 2016 is considered as part of the 11(b) delay.

[52] The Court of Appeal hearing was held on February 10, 2017. The Court of Appeal stated that Fournier J. had erred and should have committed the accused on Count #5 of the original information as amended. The Court of Appeal also stated at para. 2 that “given the position taken by counsel (for the defence) today it was most expeditious to declare the Crown’s appeal to be moot and to direct that the trial proceed on the indictment as preferred. The Court of Appeal stated that the accused’s trial counsel had “made it clear that he will not challenge the indictment in the trial court”.

[53] When defence counsel advised the Court of Appeal that he would not challenge the preferred indictment including Count #6, which was identical to the amended Count #5 on which the Preliminary Heading judge had refused to commit, the Crown’s appeal became moot.

[54] The Crown had asked defence counsel by e-mail if he would consent to the Crown’s appeal which would have allowed the trial to proceed in November of 2016 as scheduled. The accused did not agree with the Crown’s written request and at the pre-trial asked that the trial dates be vacated until after the result of the appeal was known. The accused then conceded before the Court of Appeal that he would not challenge the preferred indictment at trial, effectively agreeing to the Crown’s appeal.

[55] At the pre-trial the Crown and the judge also suggested that the accused agree to proceed and hear the evidence during the trial dates set in November 2016 and then wait to make final submissions after the result of the Court of Appeal decision was known. This proposal was refused by the defence. In these circumstances the Crown took the initiative to reduce the trial delay by making this proposal, which is the approach suggested in Jordan.

[56] The accused was not required to consent to an appeal or to proceed to have the evidence heard before the appeal result was known; but when the defence took this approach then it is reasonable to consider the whole period until the appeal decision was made as part of the appeal period.

Disposition of Issue #3

[57] For the above reasons, 559 days are allocated to appellate delay which are not counted as part of the Jordan 11(b) delay analysis. As a result the total length of the delay (excluding the appellate time) is 1,123 days from the date the charges were laid on July 25, 2013 until the estimated end of the trial on March 2, 2018.

Issue #4 - What is the net delay according to Jordan?

[58] The total delay is 1,122 days when the appellate delay of 559 days is deducted from 1681 days. The accused was found to have waived his 11 (b) rights for 193 days, caused a delay of 35 days for not attending a scheduled counsel pre-trial, and there was a discrete event of exceptional circumstances where defence caused a delay of 21 days. The defence delay adds up to 259 days which must be deducted from the total delay. The net delay, without considering the further delay of 385 days to set a new trial date after the Court of Appeal decision, is 863 days.

[59] The 30-month presumptive limit set by Jordan is 912.5 days. The net delay of 863 days is 49.5 days, less the presumptive limit 30 months, or approximately 28.5 months of delay.

[60] Even if all of the 385 days to set a new trial date after the Court of Appeal’s decision was all considered as part of the 11(b) calculus, the net delay is below the 30-month limit. As a result the onus does not shift to the Crown to rebut the presumption of unreasonable delay and the defence has the onus of showing that the delay is unreasonable.

[61] I find that the defence has not met its onus to demonstrate that the delay was unreasonable for the following reasons:

(a) The accused conceded that the Crown’s appeal was valid at the Court of Appeal and refused to concede the validity of the Crown’s appeal at an earlier date when asked to do so. The accused’s conduct in acting in this manner contributed to a substantial part of appellate delay and caused the loss of the trial dates set for November of 2016;

(b) The accused refused the Crown’s request to proceed to hear the evidence on the dates set for trial in November of 2015 and then make closing submissions after the Court of Appeal decision was released. While not required to consent to the merits of the appeal at an earlier date, this conduct contributed substantially to the additional delay;

(c) The 28.5 months of delay is below the presumptive limit; and

(d) The accused has shown that he has suffered prejudice as a result of the delay, but he was also charged with and was on bail for two other sexual assault charges during part of the time he was awaiting trial.

[62] The case is a transitional case but does not exceed the presumptive limit and as a result is not necessary to decide if the delay was justified based on a reasonable reliance on the previous law.

Issue #5 - Should all or part of the 385 days to set new trial dates after the appeal was heard be allocated to the defence or the Crown?

[63] The Crown submits that the 385 days required to obtain a new trial date after the Court of Appeal allowed the matter to proceed to trial on Count #6 should be allocated to the defence. The Crown submits that the defence re-elected to the Superior Court from the former trial date set before the Provincial Court. In addition, the Crown submits that the defence could have agreed to hear the evidence on the trial dates set for November of 2016 and then make final submissions after the Court of Appeal’s decision was known.

[64] The defence only conceded to the Crown’s appeal when the appeal was heard and had refused to agree earlier even though the Crown had asked the defence to concede the merits of the appeal. The defence’s action in waiting until the final dates had been vacated to concede the merits of the validity of the Crown’s appeal contributed to the delay in fixing a new trial date.

[65] The resolution of this issue is not necessary as I would dismiss defence’s 11 (b) application in any event because the net delay is only 28.5 months even if the whole of the 385 days was allocated to the Crown. However the application of the principles set out in Jordan requires cooperation between the Crown and the defence to ensure that trials are heard as efficiently as possible. Without some reasonable explanation for only conceding the merits of the Crown’s appeal before the Court of Appeal, when the earlier trial dates could have been preserved if the concession was made earlier, then a substantial part of the delay would be allocated to the defence. This would reduce the net delay even further.

Disposition of the 11(b) application

[66] For the above reasons the application for a stay based on a breach of the accused’s 11(b) rights is dismissed.

The Honourable Mr. Justice R. Smith

Released: February 8, 2018

COURT FILE NO.: 13-5060

DATE: 2018/02/08

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Leslie Patrois

REASONS FOR DECISION on s. 11(b) application

R. SMITH J.

Released: February 8, 2018