COURT FILE NO.: 103/17 DATE: 2019 01 14
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – R. M. Accused/Applicant
Counsel: Sean Bradley, for the Crown Stephen Whitzman, for the Accused
HEARD: January 11, 2019
R ES TR I CT ION ON P UBL IC A T ION Pursu a nt t o s. 648(1) o f t he C r i m in a l Co de, no i n f o r m ati o n r e g arding this portion o f t he trial shall b e publ i s h ed in a ny d ocu m ent o r br o ad c ast or tra n s m itt e d in any w a y b ef o re t he jury reti r es to c o nsid e r its v erdict.
REASONS FOR DECISION – 11(b) CHARTER APPLICATION
Conlan J.
I. Introduction
[1] R.M. is set to be tried in the Superior Court of Justice in Milton, with a judge and jury, over seven days commencing on January 21, 2019.
[2] This Application was heard in Milton on January 11th, hence, time is of the essence in making a decision.
[3] R.M. faces one count – an allegation that he, in November 2015, at Halton Hills, Ontario, sexually assaulted “X” contrary to section 271 of the Criminal Code.
[4] R.M. applies for a stay of proceedings under section 24(1) of the Charter, alleging that his right to be tried within a reasonable time, as guaranteed by section 11(b), has been infringed.
[5] The Crown opposes the Application.
II. Analysis
The Law
[6] There is no dispute about the governing law. About two weeks ago, the Court of Appeal for Ontario, in R. v. Albinowski, 2018 ONCA 1084, at paragraph 6, referring to the seminal decision of the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, summarized the approach to be taken on this Application as follows:
(i) calculate the total delay period from the date of the charge to the end (actual or anticipated) of the trial in the Superior Court;
(ii) deduct from that defence delay;
(iii) if what is left exceeds 30 months, then it is presumptively unreasonable; and
(iv) if it is presumptively unreasonable, consider whether the Crown has rebutted that on balance by demonstrating the existence of exceptional circumstances (which may be discrete events or complexity particular to the case) or a “transitional exceptional circumstance” based on the law as it existed pre- Jordan (because R.M. was charged before Jordan was decided).
The Law as Applied to our Case
[7] The total delay period here is just shy of 33 months It started on the date that the Information was sworn, May 2, 2016, and concludes by the end of January 2019 (the trial starts on January 21st and is expected to last seven days, plus there will be time for jury deliberations).
[8] The parties are agreed on the total 33-month calculation.
[9] From the 33 months we must deduct one month for explicit defence waiver of delay between August 8 and September 11, 2017. That results in a net delay period of 32 months.
[10] The parties are agreed on the net 32-month calculation.
[11] The net delay period here (32 months) is presumed to be unreasonable (because it exceeds 30 months) and in breach of R.M.’s section 11(b) Charter right.
[12] The onus, therefore, shifts to the prosecution to establish on balance an exceptional circumstance or a transitional exceptional circumstance.
[13] Has the Crown done that? Only that question is in dispute and needs to be resolved by this Court.
[14] In fact, it is even narrower than that. The Crown does not rely upon the state of the law before Jordan was decided, thus, there is no need for this Court to consider the transitional factor.
[15] Further, the Crown makes no issue about this case being a complex one. Nor could it. It is far from complex. There is one count. One complainant. A charge very commonly tried in the courts.
[16] Thus, we have an insular question to decide: is there an exceptional circumstance justifying the net 32-month delay period?
[17] The Crown points to two things – (i) defence unavailability or unwillingness to try the case starting November 26, 2018, and (ii) the fact that the error that occurred during jury selection process in September 2018 was unforeseeable and unintentional.
[18] What error? This case was supposed to be over in September 2018. During jury selection on September 10th, however, the Crown inaccurately told the Court that the parties each had a maximum of eight peremptory challenges. In fact, they had twelve. The error was not discovered until after the jury was selected and the rest of the panel had been excused.
[19] The Court, upon discovery of the error, declared the jury selection a nullity and adjourned the proceeding to another date to get back on track.
[20] Immediately, to its credit, the Crown tried to fix the problem by arranging a quick trial date. The trial scheduling office, to its credit, complied and offered a start date of November 26, 2018.
[21] The Defence stated that it was not available for seven consecutive days commencing November 26th, and the Defence further objected to having the jury trial conducted piece-meal over what remained of the year 2018.
[22] Ultimately, the January 21, 2019 start date was arrived at, for seven consecutive days.
[23] The Crown wants this Court to deduct two months (November 26, 2018 to January 21, 2019) from the net delay period (32 months) and find that this case falls just at the 30-month presumptive ceiling.
[24] There is a problem with that argument, in my view.
[25] Even if the trial started on November 26th, it would not have finished until sometime after December 2, 2018. The net delay period would still have exceeded the 30-month ceiling, albeit barely so (May 2, 2016 to anything past December 2, 2018, less one month for Defence waiver, equals more than 30 months).
[26] During oral argument at Court on January 11th, I asked Mr. Bradley whether, assuming this Court accepted that the trial ought to have commenced on November 26, 2018, and assuming that it would have finished within a couple of days after the 30-month ceiling had expired, this Court has any discretion at all, under the current regime post- Jordan, to “save” the case.
[27] Candidly, Mr. Bradley retorted that he found no authority to suggest that this Court could “save” the case in that situation.
[28] In my view, there is no such discretion on the part of this Court. Once the penultimate period of delay, after accounting for waiver by the Defence and exceptional circumstances and transitional exceptional circumstances, is found to exceed 30 months, even if the excess is one day, there must be a finding of unreasonable delay.
[29] Otherwise, the whole point of Jordan is gutted. The objective of Jordan was to limit or eliminate discretion so as to bring a greater degree of certainty and consistency to the adjudication of section 11(b) Charter applications. If the Court is still able to “save” a case when it is one day above the 30 months, what about one week? Or two weeks?
[30] That cannot be the path that the Supreme Court of Canada wanted us to go down.
[31] The argument more forcefully pressed by Mr. Bradley at Court during oral submissions is that what occurred during the original jury selection was an “exceptional circumstance”.
[32] During oral argument at Court on January 11th, I asked Mr. Bradley, assuming this Court accepted that submission, what period of time would be deducted from the 32 months.
[33] Would it be all of the time after the aborted trial? Or some of the time? Or what? Is it even necessary to identify a specific time period that is attributable to the exceptional circumstance?
[34] Candidly, Mr. Bradley replied that he did not know the answers to those queries. He urged this Court to deduct all of the time since September 10, 2018. In other words, find that the overall period of delay in this case is 32 months minus 4.5 months (September 10, 2018 to January 21, 2019), which equals 27.5 months.
[35] Alternatively, Mr. Bradley argued that the Court should deduct from the 32 months the period of time between September 10, 2018 and January 2, 2019 (when Mr. Whitzman was first available for seven consecutive days). That would result in a net calculation of 28.25 months.
[36] With respect, neither submission makes any sense.
[37] Take, by analogy, a different kind of exceptional circumstance. Imagine that an essential witness for the prosecution in a criminal case has a heart attack while testifying in the witness box. Her recovery causes a four-week postponement of the trial. After the four weeks, she is ready, willing and able to resume her place in the witness box.
[38] In that scenario, four weeks would be deducted from the total delay period. Perhaps a touch more to permit everyone (the Crown, the Defence, and the Court) to get back at it once the witness had recovered.
[39] To include much, if any, other time after the witness had recovered would only serve to encourage the very same culture of complacency that the Supreme Court of Canada cautioned against in Jordan.
[40] In my opinion, once the delay that is directly attributable to the exceptional circumstance has ceased to exist, all interested parties and the Court owe a duty to cooperate, as much as reasonably possible, to resume the proceeding promptly.
[41] I am not at all suggesting that R. v. Godin, 2009 SCC 26 does not remain good law. Defence counsel are not expected to hold themselves in a state of perpetual readiness. Context is everything, however.
[42] Here, the Defence knew on September 11, 2018 that the trial could resume on November 26th. It had 2.5 months to shuffle the deck and clear seven consecutive days. It should have done so, I think.
[43] If the exceptional circumstance (the Crown’s error with regard to the number of peremptory challenges) had not occurred on September 10, 2018, then the trial would have concluded on or about September 18th.
[44] The error having occurred, the trial should have resumed on November 26th and concluded on or about December 4th.
[45] The appropriate period of time to deduct, then, assuming without yet deciding that the Crown is correct in its submission that what happened during jury selection on September 10, 2018 was an exceptional circumstance (which contention is hotly disputed by the Defence), is that between September 18 and December 4, 2018. That is 11 weeks.
[46] That 11-week period represents the time directly attributable to the exceptional circumstance. Put another way, those 11 weeks were lost directly because of the Crown’s error.
[47] The remaining time between what happened on September 10, 2018 and the end of January 2019 is not directly attributable to the exceptional circumstance. Put the other way, that remaining time was not lost directly because of the Crown’s error.
[48] If we deduct 11 weeks from the 32 months, then we would fall under the 30-month ceiling. Mr. Whitzman has confirmed that the Defence is not requesting a stay of proceedings if the Court is of the view that the overall net delay period, after accounting for exceptional circumstances, is below 30 months.
[49] So, is what happened during the original jury selection an “exceptional circumstance”? In my view, it is.
[50] R. v. Cody, 2017 SCC 31, in addition to Jordan itself, is instructive. A careful reading of both decisions suggests that an exceptional circumstance can be something that was either reasonably unforeseen or was reasonably unavoidable. Something that was both unforeseen and unavoidable is not necessary.
[51] There is no doubt that the Crown’s error was avoidable. It could have been avoided. More than that, it should have been avoided. Eight peremptory challenges in a criminal proceeding in Canada is a concept totally foreign to section 634 of the Criminal Code.
[52] At the same time, however, it would have been unanticipated, I would go further and say unimaginable, though certainly accidental, that the Crown would suggest, and the matter would proceed on the basis of, such a bizarre number of peremptory challenges during jury selection in a common sexual assault trial.
[53] That is the very definition of something unforeseen.
[54] Immediately afterwards, the Crown fell on the sword and tried to make amends. The very same day, the Crown was contacting the trial coordinator with urgent attempts to reschedule the trial. The Crown was pressing Defence counsel to provide available dates. The Crown was acting nearly panic-stricken. It was the polar opposite of complacency.
[55] I find that the mishap that occurred on September 10, 2018 was, indeed, an exceptional circumstance. It was an unforeseen slip that was made in good faith and which was caught and rehabilitated in relatively short order.
[56] Assuming that everyone did what could reasonably have been expected of them and resumed the trial on November 26, 2018, it can be said that the exceptional circumstance of the Crown’s error effectively cost the case 11 weeks of time.
[57] The Crown has met its onus to demonstrate, on balance, that the 32 months of delay in this case, although two months more than the ceiling, are justified in light of the exceptional circumstance regarding the original jury selection. The presumption of unreasonableness has been rebutted.
III. Conclusion
[58] The Defence 11(b) Charter Application is dismissed. There has been no violation of R.M.’s right to be tried within a reasonable time.
Conlan J.
Released: January 14, 2019