Court File and Parties
COURT FILE NO.: 7846/18 DATE: 2019-10-16
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Respondent
- and -
CODY BLAINE CUTHBERTSON Applicant
Counsel: B. Pritchard, Federal Counsel Eric D. McCooeye, Counsel for the Applicant
HEARD: October 1, 2019
VARPIO J.
REASONS FOR DECISION ON APPLICATION UNDER S. 11(b) OF THE CHARTER OF RIGHTS AND FREEDOMS
[1] The accused was charged on February 1, 2017 with a variety of drug and weapons offences. His trial is scheduled to commence March 23, 2020 and end on April 3, 2020. This is a delay of 38 months and 3 days, which is beyond the presumptive limit for trial delay as described in R. v. Jordan, [2016] 1 SCR 631, 2016 SCC 27.
[2] The accused brings this application under s. 11(b) of the Charter of Rights and Freedoms. Upon review of the materials filed and the arguments of counsel, the total delay in this case (subtracting defence delay) is approximately 36 months. As was conceded by the Crown, there is nothing particularly complex in this case such that the 36-month delay is acceptable. As such, the s. 11(b) application is successful and the charges are stayed.
FACTS
[3] The accused was charged on February 1, 2017. The accused did not have a bail hearing and, therefore, remained in custody. On October 12, 2107, a trial date of January 11, 2018 was set in the Ontario Court of Justice. Shortly thereafter, a trial continuation was set. This second date was March 22, 2018. The dates set were “in custody” trial dates. A January 3, 2018 trial date was offered but the defence was not available.
[4] On November 17, 2017, Mr. Cuthbertson was released from custody and his trial dates were vacated to accommodate “in custody” matters. He also re-elected to a trial by judge and jury in the Superior Court of Justice.
[5] On December 21, 2017, the matter was spoken to and a date was to have been set for a preliminary hearing, but the defence did not prepare a Statement of Issues. There is no evidence on the record of any available preliminary inquiry dates from the December 21, 2017 appearance.
[6] The matter was adjourned to January 11, 2018 where a one-day preliminary hearing was set for March 22, 2018. Of note, this was the original trial continuation date in the Ontario Court of Justice. The preliminary hearing was completed on that day and the matter was remitted to Superior Court.
[7] A pretrial was convened on May 9, 2018 in the Superior Court of Justice. Defence applications dates were set for November 14 – 16, 2018. The parties had been offered September 5 – 7, 2018 but defence was not available. Of note, no trial date was set at this juncture.
[8] In August 2018, defence counsel sought further disclosure which application was opposed by the Crown. An application for disclosure was heard in November 2018 and the Crown was ordered to disclose certain handler notes. Said disclosure caused the adjournment of the remaining applications.
[9] In early 2019, and prior to the completion of further applications, the first trial judge needed to recuse herself from the case due to personal circumstances. I became the trial judge in this matter. The earliest trial date that could be offered was March 23, 2020. This trial date was ultimately confirmed on July 4, 2019.
ANALYSIS
[10] The governing case law as regards trial delay is R. v. Jordan, and R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659. This new frame work was summarized in R. v. Coulter, 2016 ONCA 704. Coulter was further summarized by Del Frate J. in R. v. Brooks [2017] O.J. No. 819 at para. 14:
In Coulter, Gillese J. describes the formula to be followed in calculating these timelines at paras. 34-40. I have reproduced it below for reference:
Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).
Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).
Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).
If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).
Subtract delay caused by discrete events from the Net Deal (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).
If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).
If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).
The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the “Transitional Cases”) (Jordan, para. 96).
[11] As per the Jordan framework, the delay in getting this matter to trial is beyond the presumptive 30-month ceiling. Next, I must determine the quantum of defence delay in this matter. The Crown argues that the accused’s decision to change from trial in the Ontario Court of Justice to a trial with judge and jury delayed this matter as did Mr. Cuthbertson’s initial failure to file a notice of issues in December 2017. It should be noted that Mr. Cuthbertson’s initial “in custody” trial was scheduled to finish on March 22, 2018. His preliminary hearing was completed on that date. In other words, Mr. Cuthbertson’s re-election did not contribute to any delay in the Ontario Court of Justice in so far as he was able to finish his preliminary hearing on the same date that his trial would have ended.[^1]
[12] The Crown argues, and the defence concedes, that the delay from September 5 to November 14, 2018 is defence delay in that defence counsel was not available for the earlier dates. Accordingly, I must deduct two months, 9 days from the total delay.
[13] The Crown also argues that the defence’s failure to ask for disclosure in a timely fashion is such that all remaining time ought to be considered as defence delay. Since the Crown opposed the defence application and was ultimately ordered to make disclosure, the failure to seek same prior to August 2018 is of no moment. Only a Superior Court Justice could order such disclosure since the matter was set for judge and jury. September 5, 2018 was therefore the first available date for a disclosure application[^2]. Had the disclosure application been unsuccessful, or had the Crown provided the disclosure without being ordered so to do, it is arguable that the late request contributed to the total delay such that time ought to be deducted from the total delay. That did not happen in this case and, accordingly, no time is to be deducted.
[14] I must therefore deduct 2 months, 9 days for defence delay which brings the Net Delay to 35 months, 24 days.
[15] According to the Jordan framework, I must now determine whether there are any exceptional circumstances to be considered. The Crown argues that the initial trial judge’s inability to hear the matter contributed to the delay of this matter. This would be a “discrete event” as per Jordan. In this case no trial date was set prior to my assuming of carriage of the matter. Accordingly, there is no way to determine whether or not the change of trial judge contributed to any delay in getting a new trial date. Accordingly, there is no way to determine whether changing the trial judge contributed to any delay of this matter. No time will be deducted from the Net Delay as a result.
[16] Finally, the Crown conceded that this is a simple case. For the purposes of this matter, I am willing to accept that concession although I note that the presence of Garofoli applications can make a matter more lengthy such that it may constitute some level of complexity beyond the norm. I do not, however, wish for this decision to be used as precedent regarding the issue of whether the presence of Garofoli applications constitutes “complex” cases as per Jordan. That may be litigated upon another occasion.
CONCLUSION
[17] The delay in this matter once all appropriate deductions are made as per Jordan (35 months, 24 days) falls well outside the acceptable ceiling for bringing the matter to trial. I have been given no adequate reason to justify said extended delay and, as such, I am left with no recourse but to stay the instant matter pursuant to section 11(b) of the Canadian Charter of Rights and Freedoms.
Varpio J.
Released: October 16, 2019
ONTARIO SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN – and – CODY BLAINE CUTHBERTSON
REASONS FOR DECISION ON APPLICATION UNDER S. 11(B) OF THE CHARTER OF RIGHTS AND FREEDOMS
Varpio J.
Released: October 16, 2019
[^1]: There is an open question as to whether Mr. Cuthbertson could have had the January 3 and 11, 2018 dates used as a preliminary inquiry date. I have no evidence that these dates could have been offered to Mr. Cuthbertson (on the initial October 12, 2017 set date) if he had made an initial election to judge and jury, and whether that date would have been offered again once Mr. Cuthbertson was out of custody. Given that I have no evidence on this issue, I will not make any such findings.
[^2]: Defence was unavailable on September 5, 2018 and the application started on November 14, 2018. That delay has already been accounted for in Paragraph 12 above.