COURT FILE NO.: SCA(P) 1194/18
DATE: 20190730
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
AMEERA AMEERULLAH Appellant
Christina Sibian, for the Crown Respondent
Anne Marie Morphew, for the Appellant
HEARD: June 24, 2018
REASONS FOR JUDGMENT
[On Appeal from the Judgment of Mr. Justice P.R. Curry, dated July 9, 2018]
J.M. Woollcombe J.
A. Introduction
[1] The appellant, Ameera Ameerullah, was charged operating a motor vehicle with more than 80 mg of alcohol in 100 mL of blood (the “over 80” charge) and with impaired driving.
[2] On July 4, 2018, the trial judge, Justice P.R. Curry, dismissed her application under s. 24(1) of the Charter to stay the proceedings on the basis that there had been a violation of her s. 11(b) Charter right to a trial without an unreasonable delay. On July 9, 2018, the trial judge provided his oral reasons for dismissing the s. 11(b) application.
[3] The appellant’s trial on both charges then commenced. Partway through the trial, the Crown and defence jointly submitted that she should be found guilty of the over 80 charge and that the impaired driving charge should be dismissed. The trial judge acceded to this joint position and made a finding of guilt on the over 80 charge. On August 22, 2018, a sentence of 30 days intermittent was imposed, to be followed by a 2 year driving prohibition.
[4] The appellant now appeals her conviction for the over 80 charge. The only ground of appeal is that the trial judge erred in dismissing the s. 11(b) Charter application.
B. The Chronology
[5] The parties are agreed about the history of the proceedings leading to the s. 11(b) application. They are summarized in the trial judge’s oral ruling on the application.
[6] To summarize that history, the appellant was charged on October 25, 2016. The Information was sworn on October 27, 2016. There followed a number of court appearances between November 2016 and April 2017, during which time the defence was seeking the video of the breath room. That video was provided on April 19, 2017. The matter was adjourned to May 17, 2017 so that counsel could review the video and a Crown pre-trial could take place.
[7] When the matter came back to court on May 17, 2017, the defence requested a return date of June 7, 2017 as counsel had not been able to conduct the Crown pre-trial. A judicial pre-trial (“JPT”) was set for July 21, 2017.
[8] Following the JPT on July 21, 2017, the trial was set for three days on April 4, 5 and 6, 2018.
[9] The Verification of Trial Date form provided by the trial coordinator for July 21, 2017 reveals that before the trial was set, numerous blocks of sequential dates for a three day trial were offered to counsel.
[10] Counsel were offered July 31-August 2, 2017, September 25-27, 2017, November 29-December 1, 2017 and December 6-8, 2017. Neither the Crown nor defence counsel were available for any of these four blocks of trial time.
[11] The next dates offered for trial were December 13-15, 2017. The Crown was available but defence counsel was not.
[12] Counsel were offered January 2-4, 2018. The Crown was available but defence counsel was not.
[13] Counsel were offered January 15-17, 2018. Neither counsel was available.
[14] Counsel were offered January 22-24, 2018. The Crown was available but defence counsel was not.
[15] Counsel were offered January 29-31, 2018, January 31-February 2, 2018, February 5-7, 2018 and February 7-9, 2018. Neither counsel was available on any of these dates.
[16] Counsel were offered February 12-14, 2018. The Crown was available but defence counsel was not.
[17] Counsel were offered March 5-7, 2018 and March 19-21, 2018. Neither counsel was available on these dates.
[18] Counsel were offered March 21-23, 2018 and March 26-28, 2018. On both of these dates the Crown was available but defence counsel was not.
[19] Ultimately, before the trial was scheduled for April 4-6, 2018, counsel had been offered 17 blocks of earlier trial dates. The Crown was available for six of these blocks of time. Defence was unavailable for all 17 sets of dates.
[20] At the court appearance on July 21, 2017 when the trial date was set, the agent who appeared on behalf of defence counsel provided no indication that defence counsel would have had any availability for this trial prior to April 4-6, 2018. On this record, therefore, there is no evidence that defence counsel had any availability for trial prior to April 4-6, 2018.
[21] On April 4, 2018, the trial was not reached. A new trial was scheduled for July 9, 10 and 11, 2018. There is nothing in the transcript from that day to indicate that defence counsel was concerned about the delay, or that s. 11(b) was a live issue. Nor is there any evidence that defence counsel had earlier dates available for trial. Certainly, the record does not reflect any request for an earlier trial date was made by counsel.
C. Legal Principles
[22] Since July 8, 2016, the legal framework to be applied to determining whether there has been a violation of an accused's s. 11(b) right to a trial without an unreasonable delay is that set out in R. v. Jordan, 2016 SCC 27. The approach was summarized by the Supreme Court of Canada in R. v. Cody, 2017 SCC 31 beginning at para. 20:
20 The new framework established in Jordan for analyzing whether an accused person's right to a trial within a reasonable time has been breached centres on two presumptive ceilings: 18 months for cases tried in provincial courts and 30 months for cases tried in superior courts (Jordan, at para. 46).
21 The first step under this framework entails "calculating the total delay from the charge to the actual or anticipated end of trial" (Jordan, at para. 60). In this case, an information was sworn against Mr. Cody on January 12, 2010, and his trial was scheduled to conclude on January 30, 2015. This makes the total delay approximately 60.5 months.
22 After the total delay is calculated, "delay attributable to the defence must be subtracted" (Jordan, at para. 60). The result, or net delay, must then be compared to the applicable presumptive ceiling. The analysis then "depends upon whether the remaining delay — that is, the delay which was not caused by the defence — is above or below the presumptive ceiling" (Jordan, at para. 67 (emphasis in original)).
[23] It is important to understand what is meant by the phrase "defence delay" as explained in the appellate authorities. There are two types of defence delay:
a. "delay waived by the defence" and
b. "delay that is caused solely by the conduct of the defence" (Jordan, at paras. 61 and 63; Cody at paras. 26 and 55).
[24] In R. v. Mallozzi, 2018 ONCA 312, the Court of Appeal considered a Crown appeal from a stay of proceedings granted for unreasonable delay. In allowing the appeal, the Court identified three errors that arose as a result of the trial judge’s failure to properly calculate defence delay. The Court summarized the relevant legal principles saying:
- Defence delay is defined in Jordan as including periods of time when the Crown and the court are ready to proceed, but the defence is not: Jordan, at para. 64. See also: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 55. Although actions that are legitimately taken to respond to the charges will fall outside of defence delay, when what prevents the matter from proceeding is simply that the defence is not available when the Crown and the court are, this constitutes defence delay and will be subtracted from the total delay.
[25] The Court went on to identify legal errors made by the trial judge in assessing defence delay:
- The trial judge failed to consider two periods of time that constitute defence delay. He also misapprehended the evidence respecting another period of time, leading to an erroneous conclusion that the time did not constitute defence delay.
5 First, there is an 87-day period of time during which the defence delayed the scheduling of the preliminary inquiry. Although the trial judge’s reasons correctly note that earlier dates for the preliminary inquiry were provided, there is no analysis as to why the matter was not scheduled on those earlier dates. The evidence is clear that Crown counsel was available during the earlier dates.
6 The respondent maintains that his trial counsel had dates earlier than those offered by the court and, therefore, though his counsel was not available on the later dates that were offered, he should not be required to absorb this time as defence delay. We disagree. Jordan is clear that defence delay will arise where the Crown and the court are ready to proceed, but the defence is not. Read contextually, and having regard to the trial verification form, the Crown and the court were ready to proceed. Defence counsel was not. The trial judge erred in failing to consider these 87 days as defence delay.
9 The Crown expressed its concern about moving the matter forward. To this end, the Crown opened up its priority in-custody dates to accommodate the earliest possible dates to reschedule the preliminary inquiry. The record reveals that the earliest dates provided did not coincide with the respondent’s trial counsel’s schedule. The trial verification form demonstrates that there was almost three months between the earliest dates offered and when the respondent’s counsel became available to conduct the rescheduled preliminary inquiry.
10 The respondent maintains that he was ready to proceed on the first preliminary inquiry date and, therefore, his co-accused’s request for an adjournment should not result in any defence delay to him. Multi-accused cases bring a level of complexity with them. All justice participants are required to work together in obtaining the earliest dates possible when matters cannot proceed. Although a co-accused caused the adjournment of the original preliminary inquiry date, something that could trigger an inquiry into exceptional circumstances under R. v. Gopie, 2017 ONCA 728, 356 C.C.C. (3d) 36, at para. 136, we need not resort to an analysis of this Jordan principle here. In the wake of the adjournment request, new dates were offered and the Crown and the court were ready to proceed. The defence was not. This was defence delay.
[26] Subsequently, in R. v. Albinowski 2018 ONCA 1084, the Court of Appeal considered another Crown appeal from a stay granted for unreasonable delay. One of the issues before the Court was how to characterize the eight month delay related to the scheduling of the preliminary inquiry. There were three co-accused. When dates were canvassed for the preliminary inquiry, counsel was offered three weeks of time over five weeks in January and February, 2016 and three weeks in July and August, 2016. One or more of the defence counsel were unavailable for each of those weeks. The Crown was available for all of the weeks offered. Ultimately, the preliminary hearing was set for September 2016. In assessing the delay, the trial judge declined to attribute the delay from January to July, 2016 to the defence.
[27] Writing for the Court, Roberts J.A. found that the trial judge had erred in not attributing the delay caused by defence counsels’ unavailability from January to September, 2016 to the defence. She held that defence counsel had rejected multiple dates because of previous commitments. She stated that the trial judge had mis-applied the principles in R. v. Godin 2009 SCC 26 as this was a case in which the defence had been offered and refused multiple possible trial dates. In concluding that the trial judge should have found the entire 8 month delay was defence delay, Roberts J.A. stated, at paras. 45-49:
[45] As already noted, the trial judge characterized the approximate 6.4-month period from January 11 to July 25, 2016 as institutional delay, and the 1.6-month period from July 25, 2016 to the start of the preliminary inquiry on September 12, 2016, as defence delay. In my view, the trial judge erred by mischaracterizing the initial 6.4 months of defence delay as institutional delay.
[46] Crown counsel argues that all the delay following the very first date offered for the preliminary inquiry must be assessed as defence delay. I disagree with such a categorical approach. It is necessary to consider the circumstances of this case. The Crown and court demonstrated the requisite scheduling flexibility demanded by Jordan to accommodate the three-week preliminary inquiry. Specifically, eight sets of dates were offered over a short period of eight months but not all defence counsel were available on the same dates. The trial judge properly characterized as defence delay the July and August dates when defence counsel were unavailable. However, he erred in failing to characterize the period of delay resulting from the rejection of the January and February dates as defence delay.
[47] In the circumstances of this case, it is appropriate to characterize as defence delay the period from January 11, 2016 to September 12, 2016. This was not a question of fitting in one or two days, but of the court and the Crown accommodating a three-week preliminary inquiry requested by the respondents. Moreover, these dates were offered to the parties three months in advance.
[48] The trial judge erred when he accepted the defence’s position that “[t]he dates offered in January and February 2016 did not permit proper preparation” and thus should not be counted against the defence: at paras. 23, 28. As I read his reasons, the trial judge’s starting point was that, because defence counsel expected a delay of 12 to 15 months before conducting a preliminary inquiry, they could not be expected to have dates available earlier, as they needed time to prepare for or conduct the hearing should earlier dates become available. The trial judge described the commitments counsel had made as being consistent with the court’s expectation of the interlude between readiness for the preliminary hearing and the hearing, and that the dates ultimately set for the hearing accorded with the court’s practice at the time: at para. 26. On this basis, the trial judge refused to characterize this period as defence delay.
[49] First, as already noted, these dates were offered three months in advance. Second, three judicial pre-trials had already been conducted, presumably fleshing out the issues to be addressed at the preliminary inquiry. Third, the witness list had already been settled. The Crown planned to call five necessary witnesses plus ten witnesses at the request of the defence. Expecting defence counsel to be available in these circumstances does not amount to insisting that they “hold themselves in a state of perpetual availability”, particularly in the post-Jordan era. Here, the plain fact is, as stated in Jordan, “the court and the Crown [were] ready to proceed, but the defence [was] not”: Jordan, at para. 64.
[28] To summarize, the appellate authorities, including Mallozzi, Albinowski and R. v. Picard, 2017 ONCA 692; leave to appeal refused, [2018] S.C.C.A. No. 135 (S.C.C.) make clear that s. 11(b) requires reasonable availability, flexibility and some level of cooperation. Clearly, when a single date or block of time is offered to the defence, and counsel is unavailable on that date, not all of the delay to the next available date is necessarily defence delay. Rather than taking this sort of “categorical” approach, there needs to be consideration of the particular circumstances of a case, bearing in mind the Jordan call for a change in direction and break in the culture of complacency.
[29] However, when the Crown is available on numerous dates that are offered by the court, and the defence counsel is repeatedly unavailable for any dates over a reasonable period, the delay that results is defence delay. The justification for this approach is that it is defence counsel’s lack of availability that results in the matter being set further in the future than would otherwise be necessary.
[30] Once defence delay is calculated, and net delay is determined, the total net delay must be compared to the presumptive ceilings provided in Jordan. Jordan sets out at para. 48 that if the total net delay falls below the presumptive ceiling:
... then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (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. [Emphasis in original.]
D. The Decision of the trial judge
[31] Before the trial judge, the parties agreed that the total delay from the swearing of the Information until the anticipated conclusion of the trial was from October 27, 2016 until July 11, 2018, a total of 20 months and 15 days.
[32] Both sides also agreed that from the total delay, there should be a deduction of time due to defence counsel’s unavailability for the first pre-trial (May 17, 2017 to June 7, 2017). Accordingly, it was agreed that the starting point is that there has been a total delay of 19 months and 26 days.
[33] The trial judge appreciated that the critical question on the application related to the delay from July 21, 2017, when the trial date was set, until the April 4-6, 2018 trial dates. While he understood that the defence position was that only 18 days of this was attributable to the defence, he concluded that the period from December 13, 2017, the first date on which the Crown and court were available for trial, until April 4, 2018, when defence counsel was first available, was defence delay. This amounted to 3 months and 22 days.
[34] As a result of deducting this 3 month and 22 days of defence delay from the total delay of 19 months and 26 days, the trial judge concluded that the net delay was 16 months and 4 days, below the presumptive ceiling. Accordingly, he held that the onus was on the defence to establish that the delay was unreasonable. As he correctly observed, this required the defence to show that it took meaningful steps to demonstrate a sustained effort to expedite the proceedings and that the case took markedly longer than it should have.
[35] The trial judge concluded that the defence had not met its onus. He noted that between the laying of the charge and the scheduling of a Crown pre-trial, the defence did nothing to demonstrate sustained efforts to expedite the proceedings. As well, he concluded that in the busy jurisdiction in which this case proceeded, the case did not take markedly longer than was reasonable.
E. The Issues
[36] The appellant submits that the trial judge erred in two respects:
a. First, it is submitted that the trial judge erred in attributing the delay from December 13, 2017 (the first date for trial on which the court and Crown were available) until the April 4, 2018 trial date, to the defence. In her factum, the appellant submits that only 18 days of this delay, the actual number of days on which the Crown and court were available but the defence was not, are properly understood as defence delay. I understood counsel to modify this position slightly during her oral argument and to concede that while some delay was attributable to the defence, only a small portion of it should be deducted because some of the delay was as a result of the Crown’s unavailability.
b. Second, the appellant submits that the trial judge erred in finding that she had failed to meet her onus of establishing that she had taken meaningful steps that demonstrated a sustained effort to expedite the proceedings. The defence submits that the trial judge erred in finding that the appellant had not established that the delay was unreasonable.
F. Analysis
[37] In my view, the trial judge did not fall into the errors alleged.
[38] In respect of the delay that occurred when the trial dates were set on July 21, 2017, I see no error in the trial judge’s conclusion that all of the delay after the December trial dates, on which the court and Crown were first available, was defence delay.
[39] This is a case in which 17 blocks of time were offered. The Crown was available for 6 of them, beginning on December 13-15, 2017 and including additional dates in January, February, and March, 2018, all before the April 4-6, 2018 dates that were actually selected as the first dates on which the defence was available. The defence was neither available for any of the dates offered, nor indicated that counsel had any availability for other dates. In my view, the trial judge was correct to conclude, in these circumstances, that the delay from December to April was caused solely by the conduct of the defence as that term has been interpreted.
[40] This is not a case, like some of those relied upon by the appellant, in which the defence had numerous dates available before the date set, and the court did not have time to offer. In such cases, I accept that some of the authorities provided to me support a conclusion that not all of the delay from the first date on which the Crown and court are available until the date set is necessarily defence delay (See, for example, R. v. Feng, 2018 ONSC 1232). I need not address this factual scenario, however, as that is plainly not what transpired here. As I have indicated, defence counsel here was unavailable for all 17 blocks of time that were offered. Further, there is no evidence that defence counsel had any available dates before April 4-6, 2018 trial date. In these circumstances, I find the conclusion that the delay was caused solely by the conduct of the defence to be correct.
[41] I do not accept the defence position that because the Crown was available for only six of the 17 blocks of time offered for trial that the delay in setting the trial date had to be apportioned between the Crown and the defence. As I have indicated, had defence counsel had some reasonable availability for trial during the period between December, 2017 and April, 2018, I might have taken a different view. But, when the Crown was available for a reasonable number of trial dates, and the defence had no dates available, the trial judge was correct to attribute this delay to the defence.
[42] The result of finding no error in the trial judge’s calculation of the defence delay is that the net delay is below the Jordan presumptive ceiling.
[43] As I have indicated, the appellant submits that having concluded that the total delay fell below the presumptive ceiling of 18 months, the trial judge erred further in failing to conclude that the defence had met its onus of showing that the delay was unreasonable.
[44] In Jordan, the Court stated, at paras. 48 and 83, that it expected stays for delay beneath the presumptive ceiling to be granted rarely and “only in clear cases”.
[45] While the trial judge’s analysis respecting why the defence had failed to meet its onus of showing that the delay was unreasonable was brief, I see no error. The trial judge correctly identified that the defence had the onus of establishing both that it took meaningful steps to demonstrate a sustained effort to expedite the proceedings and that the case took markedly longer than it should have.
[46] The trial judge concluded that the defence had failed to establish that the appellant had made a sustained effort to expedite the proceedings. I agree. The proceedings seemed to move slowly early on while the defence awaited the disclosure of the breath room video. But, it seems to me that there was no reason to await the disclosure of the video before setting a JPT. On January 11, 2017, the Crown offered to set a JPT without the video having been provided and the agent appearing for counsel declined to do so, although he indicated that if the disclosure became available, the matter could be brought forward to set a JPT.
[47] When the video was still not available on February 22, 2017, the agent for defence counsel continued to be content to adjourn the matter. When disclosure, which did not include the breath room video, was made on March 22, 2017, the agent for counsel asked for a month to review it and raised no concern about the breath room video. Then, when the breath room video was provided on April 19, 2017, counsel asked for another month to review it and conduct a Crown pre-trial.
[48] In the period while awaiting disclosure, there was little said by defence counsel to indicate any concerns about the pace of the litigation. Had there been a genuine concern about expediting the process, there is no reason why a JPT could not have been scheduled earlier.
[49] Furthermore, once the video was disclosed, and the trial date set, it appears that the defence never raised concerns about the pace of litigation. It is significant that defence counsel raised no concern about the trial date being set in July, 2017 for April, 2018. More telling, in my view, is that when the trial did not start in April, 2018, counsel raised no concerns on the record about obtaining the earliest possible next trial date and seemed content for trial to be delayed for a further three months.
[50] In my view, on the record before him, the trial judge made no error in finding that the appellant had failed to meet its onus of showing that it took meaningful steps to expedite the proceedings. On this basis alone, he made no error in dismissing the s. 11(b) application.
[51] Furthermore, I see no error in the trial judge’s conclusion that the defence failed to establish that the case took markedly longer than it reasonably should have.
[52] It is important to observe that determining whether a matter has taken markedly longer than was reasonable is not a matter of “precise calculation”. Judges have been cautioned not to parse each day or month but, instead, to step back from the minutiae and to adopt a “bird’s eye view of the case”. This is a question of fact falling within the expertise of the trial judge: Jordan at para. 91.
[53] Reasonable time requirements depend on such factors as complexity of the case, local considerations and whether the Crown took reasonable steps to expedite the proceedings: Jordan at para. 87.
[54] I accept the appellant’s position that this was not a complex case. However, the experienced trial judge found that the delay was not markedly longer than was reasonable in the busy jurisdiction of Peel. This factual finding is entitled to some deference. Moreover, as Harris J. observed at para. 8 of R. v. Belle, 2018 ONSC 7728, a good yardstick of the reasonable time requirements of a case is the delay to the first trial date. In this case, the trial should have been completed by April 6, 2018. Instead, when the trial was not reached on April 4, 2018, it was adjourned and was completed on July 9, 2018. In other words, the delay from what would have been reasonable to what actually occurred was about three months.
[55] As the trial judge observed, when the trial was not reached, the parties took steps to get it back on for hearing as quickly as possible. No submission was ever made by defence counsel that an earlier trial date was being sought. In a case in which the defence had been unavailable for trial for a protracted period of time, and in which there was a relatively quick re-scheduling of the trial when it was not reached, I see no error in the trial judge’s conclusion that the defence had not met its onus of demonstrating that the delay was markedly excessive.
G. Conclusion
[56] For the reasons I have set out, the appeal is dismissed.
Woollcombe J.
Released: July 30, 2019
COURT FILE NO.: SCA(P) 1194/18
DATE: 20190730
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
- and –
AMEERA AMEERULLAH Applicant
REASONS FOR JUDGMENT
[On Appeal from the Judgment of Mr. Justice P.R. Curry, dated July 9, 2018]
Woollcombe J.
Released: July 30, 2019