COURT FILE NO.: 9/19
DATE: 20191209
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
WARREN PAUL ATKINSON and COLIN GRIEVE
Applicant
Harutyun Apeal, for the Crown
Alan D. Gold and Laura J. Metcalfe, counsel for Paul Atkinson
Adam Weisberg and Michelle Psutka for Colin Grieve
HEARD: September 23, 2019
REASONS FOR JUDGMENT ON APPLICATION
FOR A STAY OF PROCEEDINGS
chozik j.
OVERVIEW:
[1] Warren Paul Atkinson and Colin Grieve are charged jointly with fraud over $5,000, money laundering and obstruction of justice contrary to sections 380(1)(a), 139(2) and 462.31(1)(a) of the Criminal Code.
[2] The issue on this application is whether their right to a trial within a reasonable time guaranteed by s. 11(b) of the Charter has been infringed. If there has been a breach of s. 11(b) the appropriate remedy is a stay of the proceedings.
[3] Atkinson and Grieve were arrested on February 28, 2017. The information was laid on March 7, 2017. Their trial is scheduled to commence on January 13, 2020 and expected to conclude on February 14, 2020. The total delay in this case from the date of the charge to the anticipated conclusion of the trial is 35 months and one week.
[4] The defence concedes that approximately three months are defence delay and should be deducted pursuant to R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. These three months are the time from the earliest available preliminary inquiry dates to the date accepted by defence. Therefore, the net delay at issue is 32 months and one week. This is nine weeks above the presumptive ceiling of 30 months fixed in Jordan.
[5] If the total delay from the date of the charge to the actual or anticipated end of the trial (minus defence delay) exceeds the presumptive ceiling of 30 months, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. The 30 months presumptive ceiling is not an “aspirational target”, but the outer limit of what may be tolerated (Jordan, at para. 56). The Crown must satisfy the court that it “should not be held accountable for the circumstances which caused the ceiling to be breached because they were genuinely outside its control” (Jordan, at paras. 47, 112).
[6] In this case, the Crown argues that three periods of delay should be subtracted from the actual delay and that once these periods are deducted, the total remaining delay is below the presumptive ceiling. The three time periods at issue are:
(i) a two-month period from August 17, 2017 when a judicial pre-trial date was available to October 19, 2017 when the actual judicial pre-trial took place (“the JPT Period”);
(ii) a two-month period from September 24, 2018 to November 22, 2018 when the preliminary inquiry had to be adjourned for continuation (“the Preliminary Inquiry Adjournment”); and
(iii) a seven-week period from November 23, 2018 to January 14, 2019 when the judge hearing the preliminary inquiry reserved her decision on committal (“the Reserve Period”).
[7] A finding that any one or two of these time periods should be subtracted from the total delay would put the delay below the presumptive ceiling and the onus would shift to the defence to show that the delay is unreasonable. To assess the reasonableness of the delay below the presumptive ceiling, this court must look at the proceeding as a whole (Jordan, at para. 91).
[8] For the reasons that follow, I am not satisfied that any of the three periods should be deducted as defence delay or an exceptional circumstance. The Crown has failed to establish that the circumstances which caused the ceiling to be breached were genuinely outside its control. Indeed, I find that, it was within the power of the Crown to anticipate or avoid each delay in question. The total delay in this case is therefore unreasonable. The Applicants’ right to be tried within a reasonable time under s. 11(b) of the Charter has been infringed and a stay of proceedings pursuant to s. 24(1) of the Charter must be entered.
BACKGROUND:
[9] Atkinson and Grieve are both firefighters. The charges against them arise from their alleged misappropriation of funds from the Ontario Professional Fire Fighter’s Association (“OPFFA”). Atkinson and Grieve were part of an ad hoc committee of the OPFFA: the Occupational Disease Committee (“ODC”).
[10] As part of this committee, Atkinson and Grieve assisted many families of firefighters who died prematurely from occupational hazards with claims for compensation from the Workplace Safety and Insurance Board (“WSIB”). They did so in various capacities for almost two decades for hundreds of families. It was common practice to ask those whose WSIB claims were successful to make a contribution towards assisting other families with such claims. It is alleged that Atkinson and Grieve deceived some of the families they assisted by asking them to make a contribution to a company they incorporated, the Professional Firefighters Advocates Incorporated (“PFAI”), instead of directing the donations to ODC or OPFFA.
[11] The investigation in this case was instigated by OPFFA and conducted under the direction of its civil counsel. Twenty-seven different families who dealt with Atkinson or Grieve were interviewed for the OPFFA investigation. A civil claim was then brought by OPFFA with respect to the funds OPFFA says it should have received from these families as a voluntary charitable donation. Instead, the OPFFA says, those funds were paid to Atkinson’s and Grieve’s company.
[12] The OPFFA actively lobbied the police to lay criminal charges. First, OPFFA sent its investigative file to the OPP. When the OPP refused to lay charges, the investigative file was sent to the Halton Regional Police Service (“HRPS”). In the meantime, several motions were heard regarding the civil claim, which relies on the same allegations.
[13] Nine family members of deceased firefighters or their spouses testified at the preliminary inquiry. These nine families had successfully received a WSIB award with the assistance of either Atkinson or Grieve. Their WSIB awards ranged from $130,000 to $1.1. million. Eight individuals testified that they believed that they or their family member was deceived by Atkinson or Grieve to make a financial contribution to PFAI rather than OPFFA. One individual, Beverlee Bamlett, testified that she decided not to provide any monetary donation to Atkinson from the total $1.1 million WSIB award she received. Of these nine families, five dealt with Atkinson and four different families dealt with Grieve.
[14] The defence theory is that the eight witnesses who now retrospectively claim that Atkinson and Grieve misled them or their family member are simply mistaken. According to the defence, several factors undermine the liability of these claims. These include, (i) the manner in which the statements from these few families were taken, (ii) the exposure of the witnesses to prejudicial media prior to the preliminary inquiry, (iii) the passage of time since the undocumented meetings with Atkinson and Grieve, (iv) the hearsay nature of some of the evidence which purports to establish what deceased family members knew or intended, (v) the fact that some of the witnesses are family members of the spouses who received the WSIB awards rather than the actual spouse, (vi) and the advanced age of some of the witnesses.
[15] Central to the defence is the manner in which statements were taken by OPFFA from those witnesses who came forward. Significantly, at the preliminary inquiry, the defence learned that the OPFFA in fact contacted 38 families. Of these, 11 did not respond to OPFFA. Of the remaining 27, only 9 came forward with complaints. None of the witnesses were interviewed by an independent police officer investigating the case. Rather, they were all interviewed by counsel or staff at OPFFA for the principal objective of advancing a civil action by the OPFFA. It was only later that the OPFFA ‘investigative’ file was provided to the OPP and the HRPS.
[16] Between November 20, 2015 and February 28, 2017, the OPFFA and its civil lawyers corresponded with the HRPS and the OPP and provided them documentation, urging them to lay charges against Atkinson and Grieve. It was discovered after the preliminary that after interviewing some witnesses the OPP had declined to lay charges because it concluded that no criminal offence had been committed. Atkinson and Grieve were arrested approximately 15 months after civil counsel first approached the police.
ISSUE #1: Is the two-month JPT Period defence delay?
[17] The Crown argues that the time from the first available judicial pre-trial date (August 17, 2017) to the actual judicial pre-trial date (October 19, 2017) should be deducted as defence delay. I disagree.
[18] Defence delay is that which is solely or directly caused by the accused person or flows from defence action that is illegitimate in so much as it is not undertaken as part of a proper response to the charges. (R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659 para. 3). It does not include the defence engaging legitimate and expected procedural steps available under law. Defence delay has two components: (i) delay that is waived by the accused and (ii) delay that is caused by the defence. Waiver can be explicit or implicit, but in either case, it must be clear, informed and unequivocal (Jordan, at para. 61; Cody, at para. 27). The accused must have full knowledge of their rights and the effect waiver will have on those rights (Jordan, at para. 61). Further, the mere silence of the accused is not sufficient to indicate a waiver of a Charter right; rather, the accused must undertake some direct action from which a consent to delay can be properly inferred. The onus rests upon the Crown to establish on a balance of probabilities that the actions of the accused constitute a waiver of his or her rights (R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, at para. 99).
[19] Where the Court and the Crown are ready to proceed, but the defence is not, the resulting delay should be deducted as defence delay (Jordan, at para. 64). However, periods of time when the court or the Crown are not available, even if defence counsel is also unavailable, will not constitute defence delay (Jordan, at para. 64). The Crown bears the onus to demonstrate that the Crown and the court were able to proceed but that the defence was not (Jordan, at para. 64; R. v. Ameerullah, 2019 ONSC 4537, at paras. 28-29)
[20] The judicial pre-trial was set on August 9, 2017. The transcript of the proceedings of that day establishes that an agent appeared for both defence counsel and stated:
“I attended the trial coordinator’s office and was given several dates. One as early as August 17th, which does not mash up – match up with counsel’s availability. We finally agreed on October 19th at 10:00 a.m., Court 16.” [Emphasis added]
This is the only evidence adduced before me as to how that date came to be chosen. In my view, this evidence is insufficient for the Crown to establish that this two-month time period is defence delay.
[21] The Crown argues that based on what was said on the record on August 9, 2017, I could reasonably infer that defence counsel were unavailable for the entire two-month period. With respect, the record does not support this finding. There is no evidence that the Crown was available during those two months.
[22] By the time the judicial pre-trial was being set, a Crown had been assigned and had taken carriage of the prosecution. Dates for a judicial pre-trial would have to meet with her approval. The assigned Crown too had to be available in order for a judicial pre-trial to proceed, as she had to be available for an earlier Crown pre-trial which was set accounting for her availability.
[23] Nothing stated on the record would allow me to conclude that the Crown was available any earlier than the October 19, 2018 date. There is simply no evidence as to why earlier dates were not agreeable to the parties.
[24] In the absence of any other evidence as to whether the Crown was prepared to proceed on any of the earlier judicial pre-trial dates or why those were not agreeable to the parties, I am not prepared to find that it was due solely to unavailability of defence counsel. Therefore, I am not prepared to find that this two-month period was either waived or caused by the defence.
ISSUE #2: Is the two-month Preliminary Inquiry Adjournment Period defence delay?
[25] On November 16, 2017 a 10-day preliminary inquiry was scheduled to commence on September 10, 2018. The preliminary inquiry did not conclude during those 10 days. A further two days were required, which necessitated an adjournment of two months to November 22, 2018. The Crown submits that the two-month period from the time the preliminary inquiry was originally expected to conclude (September 24, 2018) to the date it was ultimately concluded (November 23, 2018) should be subtracted as defence delay. The Crown says that the additional dates were required for the defence to call two witnesses: Brian George and Phillip (‘Phil’) King. Brian George testified about the ODC’s operations and its policies regarding the acceptance of gifts. Phil King testified about interviews by OPFFA with some of the family members for which he was present. I note that Brian George and Phil King testified on November 22, 2018 but November 23, 2018 was required for submissions on committal.
[26] As set out above, defence delay is either that which is waived by the defence or flows from defence action that is ‘illegitimate’ in so much as it is not undertaken to respond to the charges (Cody, at para. 30). In my view, this two-month period was neither waived nor illegitimately caused by the defence. Significantly, I accept the defence submission that the preliminary inquiry was not concluded within the 10 scheduled days in part due to the Crown’s approach to disclosure. As a result, this two-month period from the original end date for the preliminary inquiry to the ultimate end date for preliminary inquiry cannot be subtracted as defence delay.
[27] The defence, from the outset of the proceedings, sought disclosure of the OPP investigation. It requested that Detective Meyer, the only police officer assigned to this case by HRPS, interview the witnesses upon whose evidence the Crown would rely. The Crown initially took the position that the defence would have to bring a third-party records application to obtain the OPP brief. Then, the Crown assured the defence that the OPP had taken no investigative steps. This proved to be incorrect. Despite multiple defence requests, Detective Meyer did not interview any civilian witnesses prior to the preliminary inquiry.
[28] Detective Meyer testified at the preliminary inquiry that his investigation consisted of gathering WSIB files relating to certain families and determining which families had the “strongest” case in the sense that their claims were supported by bank records. He obtained a production order for bank records of PFAI. He did not speak to any of the families directly. Once the officer satisfied himself that supporting documentation confirmed that money was paid to PFAI instead of OPFFA, he sent emails to several of the families. He asked them to confirm that what they said in their will say statements to OPFFA was true.
[29] The Crown initially intended to bring an application under s. 540(7) of the Criminal Code and simply file the will-say statements of civilian witnesses at the preliminary inquiry. When the 10-day preliminary inquiry was set, the Crown indicated that it would call only two witnesses: Beverlee Bamlett and Detective Meyer. The defence strenuously opposed this approach. Again, the manner in which the statements were taken from those witnesses was a key issue for the defence. Eventually the Crown abandoned its original approach and agreed to make all the witnesses the defence requested available at the preliminary inquiry. The defence provided a list of witnesses to the Crown well in advance of the preliminary inquiry. The list included Phil King, who worked as a captain in the London Fire Department and served as treasurer of the London Professional Fire Fighters Association. In response, the Crown indicated that it was not familiar with Phil King. But it stated that it would call someone who was “involved in this process.” That person would testify about the responsibilities of Atkinson and Grieve. It would likely be Fred LeBlanc. The defence subpoenaed two civil lawyers for OPFFA, believing them to have been the ones who conducted the witness interviews.
[30] On the first day of the preliminary inquiry, the Crown indicated that it would not make Phil King available, but that it would likely call Fred LeBlanc. No will-say from Fred LeBlanc had been provided to the defence at that point. On the second day, the Crown then stated that it would make Ann Bryan and Phil King available.
[31] The defence was prepared to agree to have Phil King’s evidence entered by an agreed statement of facts if his evidence could be clarified. King had provided a list of 65 widows compiled by the London Professional Fire Fighters Association, to Detective Meyer. All but three names had been redacted. The Crown took the position that only those who were connected to the criminal case were relevant. The defence then insisted that Phil King had to be called to testify. It’s rational was that there may have been witnesses interviewed by OPFFA who could provide exculpatory evidence. To discover the identity of those potential witnesses, Phil King’s viva voce evidence was required. Since the police had not interviewed King and the Crown refused to call him, the defence called Phil King to ascertain the names of any potential exculpatory witnesses.
[32] Significantly, on the second day, an entire morning of the preliminary inquiry was dedicated to a motion to quash defence subpoenas of OPFFA’s civil lawyers. This would not have been necessary had the Crown disclosed that it was Ann Bryan, an OPFFA member, who participated in all of the interviews. It became apparent during the preliminary inquiry that Ms. Bryan had contacted 38 families, 11 of whom did not respond. Of the 27 families she interviewed, only 9 came to give evidence at the preliminary inquiry. The two page “will-say” form provided to the defence as disclosure from Ms. Bryan did not include this information. Her complete notes had not been disclosed to the defence. Detective Meyer only obtained them at the preliminary inquiry, after she testified.
[33] Detective Meyer did not disclose Ann Bryan’s notes from the interviews with the 11 families who refused to cooperate with the OPFFA. Detective Meyer claimed that those notes were “irrelevant” although he admitted he had not even read them. Ann Bryan’s complete notes were not disclosed to the defence until after the preliminary inquiry was concluded.
[34] Although the defence had sought disclosure of the investigative steps taken by the OPP from the outset, none had been provided until after the preliminary inquiry. As indicated earlier, the Crown took the position that the OPP had not undertaken any investigation. During the preliminary inquiry, it was learned that Beverlee Bamlett spoke to the OPP in January or February 2016. Neither her recorded interview nor the police notes of her interview had been disclosed. Well after committal, on February 1, 2019, defence counsel received the OPP investigative file. It was then learned that the OPP had concluded after its investigation that there were no grounds to believe that a criminal offence had been committed by Atkinson and Grieve.
[35] Some of the civilian witnesses who gave evidence at the preliminary inquiry attended with an entire folder of documents, including affidavits prepared by OPFFA’s civil counsel. Since these witnesses had not been interviewed by the police, the complete contents of those folders had not been disclosed to the defence. Defence counsel’s first opportunity to review those documents was therefore at the preliminary inquiry.
[36] During the preliminary inquiry, a one page will-say of the anticipated evidence of Fred LeBlanc was disclosed. Based on the will-say, the defence believed that he would give exculpatory evidence. It turned out that he gave inculpatory evidence. At that point, the defence urged the Crown to call Phil King, but the Crown refused. As set out earlier, the defence called King instead. He testified that Jason Timlick, then President of the OPFFA , asked him to contact four widows for the purpose of setting up conference call meetings with the OPFFA and a law firm representative. He complied. He attended at the homes of three of the widows during these conference calls.
[37] In my view, these events at the preliminary inquiry, fueled by non-disclosure, contributed to the length of the proceeding. Two observations are apposite. First, had witnesses been interviewed by the police and timely disclosure made, the preliminary inquiry could have proceeded in an orderly and streamlined way. The Court of Appeal for Ontario recently commented on the purpose of preliminary inquiries in R. v. R.S., 2019 ONCA 906:
[50] The primary purpose of the preliminary inquiry is to screen out meritless allegations. A preliminary inquiry gives the accused the opportunity to have a judicial determination of whether the Crown can produce sufficient evidence to justify the case going forward to trial.
[52] An accused’s right to obtain a timely judicial evaluation of the evidence offered by the Crown with a view to avoiding “a needless and, indeed, improper, exposure to public trial” is a significant and substantive right, having a meaningful and direct impact on an accused’s liberty and security of the person interests. The impact on those interests is particularly strong in cases in which the accused has been denied bail or released on very stringent terms. Pre-trial detention orders and bail orders come to an end if an accused is discharged: see R. v. Jones (1996), 1996 CanLII 12421 (ON CA), 32 O.R. (3d) 365, 113 C.C.C. (3d) 225, at p. 234.
[38] Ongoing serious disclosure issues at the preliminary inquiry needlessly undermined the efficiency of the process.
[39] Second, it is apparent that the process invoked by the defence advanced the objective of the justice system by enhancing the disclosure/discovery process. Much of the information that surfaced during the preliminary would not have otherwise become known by the defence (or Crown). Put differently, this preliminary inquiry produced results.
[40] The defence actively advanced its clients’ right to trial within a reasonable time. It continued with the cross-examination of Beverlee Bamlett despite the fact that her prior statement(s) to the OPP had not been disclosed. The defence pressed on with the cross-examination of witnesses despite the fact that each showed up with a folder of documents, some of which were previously undisclosed. The defence pressed on with the cross-examination of Fred LeBlanc despite the fact that his one page will-say was provided part-way through the preliminary inquiry. None of these setbacks were used by the defence to hold up proceedings.
[41] The framework set out in Jordan was intended to focus the s. 11(b) analysis on the issues that matter and encourage all participants in the criminal justice system to cooperate in order to achieve reasonably prompt justice. The Supreme Court of Canada held that the right to be tried within a reasonable time is central to the administration of criminal justice. The direction from the Supreme Court of Canada was intended to change a “culture of complacency” that existed when it came to pre-trial delays.
[42] In Cody, the Supreme Court of Canada reiterated that to effect real change, it is necessary to do more than engage in “a retrospective accounting of delay”. A proactive approach is required that prevents unnecessary delay by targeting its root causes. All participants in the criminal justice system share this responsibility (Cody, at para. 36). To give real effect to the principles enshrined in s. 11(b) of the Charter, the courtroom culture had to change.
[43] At this preliminary inquiry, the Crown took the position that committal was “a no-brainer” and that twelve days of court time had been wasted, when the preliminary inquiry could have been done in three days. The Crown submitted that the preliminary inquiry took so long at the insistence of the defence. With respect, I disagree.
[44] In my view, the manner in which the police investigation was conducted had a significant impact on the time required for the preliminary inquiry. Committal was a genuine issue, and, in particular, whether there would be evidence that could justify committal on all the counts. Significantly, the preliminary hearing judge reserved her decision for seven weeks. Had the Crown called only two witnesses, Beverlee Bamlett and Detective Meyer, it is difficult to see how the Crown would have established the element of deception and how the outcome of the preliminary hearing could have been the same. Had the Crown proceeded with its s. 540 application, the court would likely have ordered the witnesses to attend for cross-examination.
[45] The manner in which the Crown approached its disclosure obligations and the conduct of the preliminary inquiry cannot be ignored. The two-month delay required to complete the preliminary inquiry is not properly characterized as having been waived or caused by the defence.
[46] No exceptional circumstances arose that would justify the delay. Exceptional circumstances cover discrete events, such as medical or family emergencies, or exceptional events that arise during the course of a trial that cause cases to go awry, leading to delay. Even where the parties have made a good faith effort to establish realistic time estimates, delay as a result of an exceptional circumstance is unavoidable and is to be deducted. Exceptional circumstances may also arise in cases that are particularly complex because of the nature of the evidence or the nature of the issues, requiring an inordinate amount of trial or preparation time such that the delay is justified. (Jordan, at para 77). Failure to make proper disclosure, which then causes a case to go awry, is not an exceptional circumstance. Disclosure is entirely in the Crown’s control. This was not a particularly complex case.
ISSUE #3: Is the 7-week Reserve Period an exceptional circumstance?
The Time for Deliberation Regarding Committal is Part of the Presumptive 30-month Limit
[47] On November 23, 2018, following the submissions of counsel on committal, Crawford J. reserved her decision on committal to January 14, 2019. This accounts for seven weeks. In doing so, Crawford J. said the following:
“I’m not going to be giving a decision today, but I don’t want to delay the matter. The difficulty is, is that I have a number of other decisions that I need to release in the next few weeks and then I’m away. So I’d like to open your calendars for the early part of January which is about the best I can do in the circumstances. Let me just see where I am. I’m away at the beginning – I’m away over the holidays for a period of time and then I’m out of the country the beginning of January. So I’m wondering about January 14th which is a Monday.”
Crawford J. delivered extensive and thorough Reasons for Committal on January 14, 2019.
[48] The Crown argues that the time required for a judge to make a decision is an exceptional circumstance for which the Crown is not responsible and which it cannot remedy. As an exceptional circumstance, it justifies what would otherwise be unreasonable delay.
[49] The issue of whether time required for judicial decision-making is part of the inherent time requirements of a case and included in the presumptive ceilings under Jordan is unresolved. Post-Jordan appellate treatment of deliberation time has established three broad approaches (R. v. Chang, 2019 ABCA 315, at para. 62):
A. Deliberation time is included in the ceilings as an inherent part of the criminal process: D.M.S. v. R., 2016 NBCA 71, 353 C.C.C. (3d) 396; Lecompte v. R., 2018 NBCA 33, 362 C.C.C. (3d) 354; R. v. K.G.K., 2019 MBCA 9, 373 C.C.C. (3d) 1, per Hamilton JA, leave to appeal granted and appeal heard and reserved September 25, 2019, [2019] S.C.C.A. No. 19; R. v. King, 2018 NLCA 66, 369 C.C.C. (3d) 1, per Barry JA.
B. Deliberation time, or some portion of it, may be deducted from the timeline if it rises to the level of an exceptional circumstances: R. v. Mamouni, 2017 ABCA 347, 356 C.C.C. (3d) 153, per Watson JA. The Quebec Court of Appeal would apply this approach to interlocutory decisions only: R. c. Rice, 2018 QCCA 198, 44 C.R. (7th) 83; Agostini c. R., 2018 QCCA 373.
C. Deliberation time is exempt from the ceilings and therefore is deducted from the timeline: Mamouni per Slatter JA; R. v. Brown, 2018 NSCA 62, 364 C.C.C. (3d) 238; King per Hoegg and O'Brien JJA; K.G.K. per Cameron and Monnin JJA. The Quebec Court of Appeal would apply this approach to the final verdict only: Rice; Agostini.
[50] In Chang, the court held that 3.5 months required for judicial decision-making on a pre-trial Charter application was exempt from the Jordan ceilings and should be deducted from the gross timeline when calculating the net delay (at para. 71). Since the Supreme Court of Canada was silent as to deliberation time in Jordan, the Alberta Court of Appeal was not prepared to assume the court’s intention in this regard. It also found that it was unrealistic to build deliberation time into estimates when setting dates. Finally, and most importantly, the court found that rushing judgments would compromise quality justice and judicial independence.
[51] In R. v. Mamouni, 2017 ABCA 347, 356 C.C.C. (3d) 153, the court held that time required for judicial decision-making may rise to an exceptional circumstance where the complexity of the evidence and submissions, or the number of motions, warrants it. However, by and large, the time which is taken by judges to prepare the reasons that the law requires are still part of the time within the ranges specified for the “bright lines” set out in Jordan.
[52] The Nova Scotia Court of Appeal in R. v. Brown, 2018 NSCA 62, 364 C.C.C. (3d) 238, held that two months for judicial determination of a search warrant issue should not be considered in calculating delay, citing Mamouni. In R. v. King, 2018 NLCA 66, 369 C.C.C. (3d) 1, Barry J.A. concluded that the proper approach is to treat reserved decisions as part of the inherent time requirements of the case. It should not be an exceptional circumstance available to justify delay unless the time taken is unreasonable in the opinion of the trial judge. Hoegg J.A. was disinclined to include the time a judge takes to decide a pre-trial application in the 30 months presumptive ceiling unless the time could be characterized as ‘shocking, inordinate, or unconscionable’ (at para. 182).
[53] The Court of Appeal for Ontario in R. v. MacIsaac, 2018 ONCA 650, 141 O.R. (3d) 721, and in R. v. Jurkus, 2018 ONCA 489, 363 C.C.C. (3d) 246, declined to decide the issue of whether judicial deliberations fall within the presumptive ceiling. In MacIsaac, the Court of Appeal rejected the Crown’s argument that judicial deliberation time was a discrete or exceptional event that was unavoidable. Rather, the trial judge found that this time was required to provide the parties with a meaningful basis for appellate review (at paras. 46-48). In Jurkus, the trial judge accepted that part of the time taken to render a decision on committal was inherent delay while the remainder was an exceptional circumstance. Without deciding the issue, the Court of Appeal did not interfere with this finding.
[54] In R. v. Charley, 2019 ONCA 726, Doherty J.A. concluded that delay between a verdict and sentencing is not included in the presumptive ceiling under Jordan. In doing so, he noted that the majority in Jordan specifically spoke to pre-trial delay rather than post-verdict delay. Further, the four-month period between the verdict and the sentence was not even mentioned in the ultimate calculation of delay on the facts of the case in Jordan. Given the centrality of the presumptive ceilings to the decision, Doherty J.A. reasoned that the majority’s determination of the date of verdict as the end point for the purposes of calculating the relevant time period must be regarded as a carefully considered position (at paras. 51-52). He concluded that a five-month presumptive ceiling post-verdict is reasonable for sentencing delay.
[55] Recently, on September 25, 2019, the Supreme Court of Canada heard argument in R. v. K.G.K. (Docket No. 38532) with respect to whether delay from the conclusion of the trial until a judicial decision is rendered on verdict is part of the total delay. In that case, the issue was whether the 9 months after the last scheduled day of the trial until the trial judge rendered a verdict was part of the presumptive ceiling under Jordan. The Manitoba Court of Appeal decided that the Jordan framework did not apply to judicial deliberation time, with Hamilton J.A. dissenting.
[56] As I do not yet have the benefit of guidance from the Supreme Court of Canada on how to treat the judicial deliberation time on committal, I must apply previously articulated principles to decide whether the seven weeks required for the committal decision are part of the presumptive ceiling.
[57] In Jordan, the court did not give any indication that it intended for judicial deliberation time on interlocutory or pre-trial decisions to be excluded from the presumptive ceiling. In Cody, the Supreme Court of Canada made clear that the presumptive ceilings run from the date of the charge to the last scheduled day of trial (at para. 21). In my view, unless the time required to render a decision on committal is exceptional in and of itself, this time must be part of the presumptive ceiling prescribed in Jordan.
[58] The committal decision is always made prior to the end of the trial. It is an interlocutory step. As the ceilings in Jordan already encompass the time it takes to process a case from charge to the anticipated end of the trial, the Jordan ceilings already account for regular interlocutory steps. A decision on committal is part of the regular progress of a case in the Superior Court of Justice when a preliminary inquiry is held. Therefore, the onus is on the Crown to either show that the delay as a result of this regular step should be deducted as a discrete event or that it is reasonable due to the complexity of the case (i.e. that it is an exceptional circumstance).
The Delay in this Case does not Arise from Exceptional Circumstances:
[59] The Crown cannot simply point to the seven-week delay for the committal decision and argue that it was beyond its control. It must also demonstrate that it took reasonable steps to avoid and address the problem before the delay exceeded the ceiling.
[60] Exceptional circumstances are defined in Jordan as those which lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. Such circumstances need not be rare or entirely uncommon (Jordan, at para 69). The Crown, however, must do more than point to a past difficulty once the ceiling is breached. The Crown must show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include resorting to case management processes to seek the assistance of the court or taking steps to attempt to streamline the evidence or issues for trial. That streamlining process may include severance of accused, coordinating pre-trial applications or resorting to any other appropriate procedural means (Jordan, at para. 70).
[61] Where delay exceeds the presumptive ceiling, the Crown will only discharge its burden if it can show that it should not be held accountable for the circumstances which caused the ceiling to be breached. In other words, those circumstances must be genuinely outside its control. The Crown must be motivated to act proactively throughout the proceedings to preserve its ability to justify a delay that exceeds the ceiling (Jordan, at para. 112). At para. 138, Moldaver J. set out what exact steps counsel should strive for in order to meet this burden, stating:
For Crown counsel, this means making reasonable and responsible decisions regarding who to prosecute and for what, delivering on their disclosure obligations promptly with the cooperation of the police, creating plans for complex prosecutions and using court time efficiently. It may also require enhanced Crown discretion for resolving individual cases. For defence counsel, this means actively advancing their clients’ right to a trial within a reasonable time, collaborating with Crown counsel when appropriate and, like Crown counsel, using court time efficiently. Both parties should focus on making reasonable admissions, streamlining the evidence, and anticipating issues that need to be resolved in advance.
[62] There is no evidence in this case that the Crown took any steps after the preliminary inquiry to streamline the process or otherwise address the delay despite judicial warnings to do so. I am simply unable to point to any steps taken by the Crown to actively seek prompt justice.
[63] In the proceedings at the Superior Court of Justice, the Crown was reminded on more than one occasion of the looming Jordan deadline. At the first appearance in the Superior Court on January 18, 2019, Justice Conlan noted that the Crown “could not be too relaxed” about setting a judicial pre-trial date as the Jordan deadline was approaching in September. The pre-trial conference report filed by the defence ahead of the first judicial pre-trial conference indicated that a s. 11(b) application was likely. During that judicial pre-trial on February 4, 2019, Justice Durno expressed his reluctance to set trial dates for January 2020 because these dates fell after the Jordan deadline. Two further judicial pre-trials occurred on February 15 and March 1, 2019. Despite these clear warning signs that delay was becoming unreasonable, the Crown took no active steps to get this matter to trial sooner.
[64] The judicial deliberation time here was not exceptional. Applying the principles and direction given in Jordan and Cody, I have concluded that judicial deliberation time for an interlocutory decision such as committal is neither unforeseen nor reasonably unavoidable. It is a necessary step in the usual and ordinary progress of a criminal case like this. While it remains open to the Crown to demonstrate that judicial delay constitutes an exceptional circumstance in a particular case, or that it took reasonable steps to avoid and address the resulting delay, the seven weeks taken by the judge to render her decision on committal in this case was not exceptional. Therefore, these seven weeks are part of the inherent time requirement captured within the 30 months presumptive ceiling.
CONCLUSION:
[65] The delay of 32 months and one week in this case exceeds the presumptive ceiling fixed in Jordan. It is presumptively unreasonable. No exceptional circumstances have been established by the Crown. As indicated at the outset, the 30 months presumptive ceiling is not an “aspirational target” but the clear outer limit of what may be tolerated (Jordan, at para. 56). The Crown has failed to establish that the circumstances that led to the presumptive ceiling to be breached were genuinely outside of its control. As a result, the charges against Atkinson and Grieve must be stayed.
Chozik J.
Released: December 9, 2019
COURT FILE NO.: 9/19
DATE: 20191209
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
WARREN PAUL ATKINSON and COLIN GRIEVE
Applicant
REASONS FOR JUDGMENT ON APPLICATION FOR STAY OF PROCEEDINGS
Chozik J.
Released: December 9, 2019