Court File and Parties

COURT FILE NO.: CR-16-A13065 DATE: 2019/07/12 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

Her Majesty the Queen – and – Christopher Mansour

Counsel: Moiz Karimjee for Her Majesty the Queen Jon Doody for Christopher Mansour

HEARD: May 29, 2019

REASONS FOR DECISION

O’Bonsawin J.

Background

[1] The Crown appeals the decision of Dorval J. in which she stayed the charges against Mr. Mansour. Since the timelines are important, I will list them below:

• Mr. Mansour was charged with drug impaired driving on October 17, 2016. The information was sworn on October 26, 2016. His trial dates were set for May 7-8, 2018.
• On September 1, 2017, Schreck J. released his decision in R. v. Stipo, 2017 ONSC 5208, 18 M.V.R. (7th) 72, affirmed by the Ont. C.A., 2019 ONCA 3, in which he ordered the disclosure of the Drug Recognition Expert’s (“DRE”) rolling logs.
• On October 23, 2017, the Defence in this matter sought disclosure of the DRE’s rolling logs. The Crown refused to disclose.
• On March 21, 2018, the Defence’s motion for disclosure of the DRE’s rolling logs was adjourned to April 19, 2018.
• On April 30, 2018, the trial judge ordered the disclosure.
• On May 7, 2018, the Crown advised the Defence that it intended to bring an application of certiorari.
• On May 8, 2018, a Judicial Pre-trial was held and the Crown’s request to join this matter to the R. v. Kyle Branson and R. v. Evan Branson matters was granted.
• The Crown filed its Notice of Application on May 9, 2018.
• On May 18 and July 9, 2018, I heard the Crown’s application, which was supported by the third party record holder, the Ottawa Police Service (“OPS”).
• On September 26, 2018, the trial judge refused to hear a s. 11(b) Canadian Charter of Rights and Freedoms (“Charter”) motion since I had not yet released my decision. A new motion date was set for October 19, 2018.
• New trial dates were set for earlier, on November 13-14, 2018.
• On October 11, 2018, I released my decision dismissing the Crown’s application for a certiorari.
• On October 19, 2018, the 11(b) Charter motion was adjourned to the first day of trial, November 13, 2018.
• On November 5, 2018, the Crown and OPS served a Notice of Appeal of my decision.
• On November 13, 2018, the trial judge heard the Defence’s 11(b) Charter motion.
• On December 7, 2018, the trial judge stayed the charge against Mr. Mansour.
• On January 7, 2019, the Court of Appeal released its decision in R. v. Stipo, 2019 ONCA 3, 370 C.C.C. (3d) 311, which upheld Schreck J.’s decision.
• On February 15, 2019, the Court of Appeal rendered its decision in R. v. Tsega, 2019 ONCA 111, 144 O.R. (3d) 561.
• On April 4, 2019, the Court of Appeal dismissed the Crown’s appeal of my decision as abandoned.

[2] The rolling log captures historical opinions of the DRE related to other proceedings, including the DRE’s opinion regarding the drug class and the corresponding toxicology results of testing on that subject’s bodily substance sample. The basis for this disclosure request was an intention to cross-examine the DRE to undermine the conclusion of drug impairment.

[3] The Crown objected to the disclosure request, citing s. 258.1 of the Criminal Code, R.S.C. 1985, c. C-46 (“Code”) as a statutory prohibition and citing the lack of relevance to of the rolling log. This section of the Code has since been repealed (An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, 2018, c. 21, s. 14).

[4] The trial judge held that the certiorari proceedings were to be counted as part of the 11(b) Charter calculus.

[5] In Stipo, the Court of Appeal held that the DRE logs were both relevant and first party disclosure.

Issues

[6] The issues in this matter are as follows:

1. What is the appropriate standard of review on this appeal?
2. Did the trial judge err in her calculation in her 11(b) Charter analysis?

What is the appropriate standard of review on this appeal?

[7] The parties are not in agreement with regards to the standard of review. The Crown asserts that it is a finding of law and the appropriate standard of review is correctness. The Defence argues that this is a finding of mixed fact and law and therefore the appropriate standard of review is a palpable and overriding error.

[8] In R. v. Farrah, 2011 MBCA 49, 87 C.R. (6th) 93, at para. 7, the Manitoba Court of Appeal reviewed the appropriate standard of review of a Charter breach. It found that there are several components for the appellate court to consider. The relevant components for this appeal are as follows:

• the appellate court will review the decision to ensure that the correct legal principles were stated and this raises questions of law, therefore the standard of review is correctness;
• the appellate court will then review the evidentiary foundation which forms the basis for the trial judge’s decision to see whether there was an error; the judge’s decision is entitled deference absent a palpable and overriding error; and
• the appellate court will also examine the application of the legal principles to the facts of the case to determine if the facts as found by the trial judge satisfy the correct legal test – in the criminal law context, this is a question of law and the standard of review is correctness.

[9] The Court of Appeal recently determined that when an 11(b) Charter analysis requires extensive fact-finding by the trial judge and an appreciation of how the criminal process works, deference is owed to the trial judge’s assessments absent palpable and overriding error (R. v. Majeed, 2019 ONCA 422, at para. 7).

[10] As in Majeed, I find that the trial judge in this matter made fulsome findings of fact, therefore the appropriate standard of review is whether the trial judge made a palpable and overriding error.

Did the trial judge err in her calculation in her 11b) analysis?

[11] The trial judge made the following findings of fact in her decision (R. v. Mansour, [2018] O.J. No. 6421):

• the total delay from charge date to trial date = 840 days (at para. 33);
• the trial judge attributed 42 days for Defence delay broken down as follows: 14 days from March 7 and March 21 as additional time for new counsel to get prepared for a JPT and 28 days given counsel was not available on the first two dates offered for trial (at para. 34);
• she deducted 94 days for the period that my decision was on reserve and 7 days between February 22, 2018 and March 1, 2018 as the change in counsel was occasioned by appointment of his original counsel to the Bench (at para. 35);
• total delay calculation: 840 minus 42 minus 101 = 697 (at paras. 33, 36);
• the Crown had still not complied with her Order for disclosure of the DRE rolling logs notwithstanding my decision (at para. 2);
• she included the delay incurred by the certiorari in the calculation of the delay; if she was in error on this issue, the trial judge would find that the delay is not an exceptional circumstance since it were obvious (at para. 30); and
• the Crown adopted a course of action it knew would considerably delay this proceeding – this is beyond mere complacency, and it is opposite of an attempt to remedy delays (at para. 30).

[12] The Crown argues that 383 days should have been deducted from the 840 days of the total delay leaving a delay of 457 and a stay should not have been issued. The Crown submits that there were errors in the attribution of delay and they are as follows: the Defence delay attributed to the time for new counsel to get prepared and set a trial date should have been 23 days (March 1-24, 2017); 96 days for the earliest dates available to the Crown and dates accepted by the Defence (January 31 to May 7, 2018); and 273 days as the period of time during which certiorari proceedings were ongoing (May 7, 2018 to February 5, 2019).

[13] The Defence concedes that the trial judge made an error by listing the anticipated trial dates as being February 4-5, 2019. Those dates were not set for trial in this matter. The actual trial dates were set for November 13-14, 2018. However, the trial judge indicated after hearing the 11(b) Charter application on the first date set for trial of November 13, 2018, that the issue of setting new trial dates would be dealt with on December 7, 2018. Since she stayed the charge on that date, new trial dates were not set.

[14] In addition, the Defence concedes that the trial judge made another error regarding her calculation of the total delay between the charge date of October 26, 2016 and November 13, 2018, which she amounted to 757 days. The correct calculation is of 748 days.

[15] R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 is the starting point for calculating delays. In matters before the Ontario Court of Justice, the relevant ceiling is eighteen months. If the total delay from the charge to the end of trial exceeds the ceiling, then the delay is presumptively unreasonable. It must be noted that defence delay and/or a period of delay attributable to exceptional circumstances are subtracted from the total amount of delay.

[16] In R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-41, the Court of Appeal set out the steps to be taken in applying the Jordan framework:

1. calculate the total delay (period from the laying of the charge to the actual or anticipated end of trial);
2. subtract defence delay including delay that is waived from the total delay, which results in the “Net Delay”;
3. compare the Net Delay to the presumptive ceiling;
4. if the Net Delay exceeds the presumptive ceiling, the Crown must establish the presence of exceptional circumstances, otherwise, the stay will be granted (exceptional circumstances fall in two categories: discrete events and complex cases);
5. subtract delay cause by discrete events from the Net Delay which equals the remaining delay;
6. if the remaining delay exceeds the presumptive ceiling, the court must consider whether the case was complex such that the time the case has taken is justified and the delay is reasonable; and
7. if the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.

[17] I will begin by reviewing the appropriate time between the charge and the anticipated end of the trial: October 17, 2016 to November 14, 2018. The timeline equals 759 days. The Crown made its calculations using the trial judge’s number of 840 and the Defence made its calculations using 748 days. Both are incorrect.

[18] I turn to the delay attributable to change in counsel. According to the transcript of March 1, 2017, new counsel for Mr. Mansour sought an adjournment for two weeks in order to get caught up on the file and receive instructions. The next appearance date was March 24, 2017. The trial judge accorded a period of 14 days from March 7 and March 21 as additional time for new counsel to prepare. This is incorrect since the appropriate timeline, according to the transcripts, is March 1-24. Consequently, the appropriate delay to be accorded for new counsel should be 24 days, and not 14 days. I find that the trial judge made a palpable and overriding error with regards to her calculation of the delay attributable to Defence delay for new counsel.

[19] I turn to the delay attributable to the certiorari proceedings. The Court of Appeal had not yet issued its decision in Tsega, at the time of the 11(b) Charter motion. This decision provided new guidance to trial judges regarding the calculation of time related to certiorari hearings. The Court of Appeal reviewed a series of cases that dealt with this issue of certiorari proceedings, and even refereed to the trial judge’s decision in this matter (Tsega, at para. 69). The court reviewed the “correct approach to extraordinary remedies in the Jordan analysis”. It found that the Crown’s seeking extraordinary remedies would run the risk of exceeding the Jordan ceiling. Therefore, at para. 77 the court stated:

[I]t cannot be the case that the time taken for extraordinary remedies and appeals therefrom must, without exception, be included in the delay calculation under Jordan. If that were the case, the Crown’s ability to bring an application for extraordinary remedies would be effectively nullified.

[20] The court in Tsega also noted that if the Crown has a reasonable basis for seeking an extraordinary remedy, it should not automatically be forced to abandon it for fear of a s. 11(b) Charter application. An extraordinary remedy is not within the control of the Crown, instead it arises as per the facts of a given case and the Crown must undertake this extraordinary remedy in order to fulfill his/her professional obligations. In this case, the Crown argued that it had to fulfill its professional obligations by not contravening s. 258.1 of the Code. This was a reasonable position to take, until at a minimum, I determined that s. 258.1 had no final bearing on this matter. I did not find that the Crown’s pursuit of the certiorari was frivolous, undertaken in bad faith, nor executed in a dilatory manner.

[21] The court in Tsega further determined the test to be applied when a trial judge is tasked with determining whether delay caused by a Crown application should be excluded from the delay calculation. The trial judge “must recognize the Crown’s discretion to take such steps and limit the analysis to a consideration of whether the Crown’s actions were frivolous, undertaken in bad faith, or executed in a dilatory manner” (at para. 82). This action by the trial judge fulfills his/her obligation imposed by Jordan to ensure that all participants are acting reasonably and ensuring that the accused’s right to be tried within a reasonable time is respected (at para. 82).

[22] To be fair, the trial judge did not have the benefit of reading Tsega, which was issued on February 15, 2019, after the rendering of her Reasons for Decision on December 7, 2018.

[23] In this matter, there is no evidence to support a finding that the Crown’s actions were frivolous, undertaken in bad faith, or executed in a dilatory manner. I agree with the Crown’s argument that the consequence of compliance with these orders, if it was in error, was a commission of a criminal offence contrary to s. 258.1(5) of the Code. The third party OPS also sought a review which led to a delay which was inevitable regardless of the Crown’s position.

[24] The Crown was unsuccessful in the certiorari proceedings. However, the question to be considered is not whether the Crown was successful in its certiorari proceedings, but rather whether it was reasonable for the Crown to pursue this remedy. At this period of time, Stipo had been argued before the Court of Appeal but a decision had not yet been rendered. The court only issued its reasons in Stipo on January 7, 2019. Overall, I find the Crown’s actions were reasonable and they were neither frivolous, undertaken in bad faith, nor executed in a dilatory manner.

[25] The certiorari period ran from May 7, 2018 when the Crown advised the Defence that it intended to bring an application of certiorari to the end of the trial date of November 14, 2018 (192 days). Tsega confirms that the entire delay occasioned by the certiorari proceedings should have been deducted as a discrete event (at para. 82). The trial judge committed an overriding and palpable error by incorrectly deducting only the period of 94 days that she attributed to my decision that was on reserve. The whole period of 192 days should have been deducted from the 759 days.

[26] Since the delays associated to new counsel and the certiorari proceedings bring the ceiling below the period of eighteen months, I need not address the alleged error in the trial judge’s calculations of the days for the earliest dates available to the Crown and dates accepted by the Defence.

Conclusion

[27] The trial judge made a palpable and overriding error in her calculation of the final assessment of delay. I find that the trial judge should have added, at a minimum, the full 192 days related to the certiorari proceedings and 24 days for the delay related to new counsel. Consequently, the delay should be calculated as follows:

Delay Calculation

How delay is calculated	Days
delay from charge to trial date	759 days
minus 52 days (24 days for new counsel and 28 days given counsel was not available on the first two dates offered for trial)	-52 days
minus 192 days (period for certiorari proceedings)	-192 days
equals	515 days

[28] Since the delay is of 515 days and is below the eighteen-month ceiling, I allow the Crown’s appeal, dismiss the s. 11(b) Charter application and remit the matter back to the Ontario Court of Justice for trial.

Justice M. O’Bonsawin Released: July 12, 2019