COURT FILE NO.: CR-1013/18
DATE: 2019-12-16
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
David Case and Celine Loyer
Applicants
S. Baker, for the Respondent
N. Xynnis, for Applicant Case
M. Haraschuk, for Applicant Loyer
HEARD at Sudbury: December 2, 2019
DECISION ON DELAY APPLICATIONS
A.D. Kurke, J.
Overview
[1] The applicants were arrested and charged jointly on February 28, 2017 for historical offences involving two different complainants. Applicant David Case was further arrested and charged alone on June 5, 2017 for historical offences alleged against a different complainant. A preliminary hearing into all charges against the two applicants was held on September 10, 11, 13, 14 and 17, 2018, and the applicants were committed to trial November 6, 2018. The indictment against applicant Case by himself is scheduled for trial January 13, 2020, some 31.5 months after he was charged. The trial involving both applicants jointly, now involving only a single count of sexual assault involving one complainant, is to commence January 27, 2020, some 35 months after they were charged.
[2] The applicants request stays of their proceedings on the ground that their Canadian Charter of Rights and Freedoms s. 11(b) rights to trial within a reasonable time will have been breached by the time that their cases get to trial in January 2020.
[3] At the conclusion of the hearing of these applications, I dismissed them for reasons to follow. These are those reasons.
[Section 11(b)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)
[4] The decision in R. v. Jordan, 2016 SCC 27, provides a new framework for the determination of unreasonable delay in criminal proceedings. Matters tried in the Superior Court have a ceiling of 30 months to the end of trial. If the net delay exceeds the ceiling of 30 months, then the delay is presumptively unreasonable, and the Crown has the burden of showing that exceptional circumstances justified the delay. If it cannot, a stay of proceedings will follow. Below the ceiling, the defence has the burden of showing that the delay was unreasonable, even though the ceiling was not surpassed: Jordan, at paras. 5, 46-49, 68; R. v. McManus, 2017 ONCA 188, at paras. 21-22.
[5] There are periods of delay to be subtracted from the total. These include periods of time that are waived by an accused and periods of delay caused by the conduct of the defence. Defence-caused delay includes situations where the acts or inaction of an accused either directly cause the delay or are shown to be markedly inefficient or a deliberate and calculated tactic employed by an accused to delay the trial. Included in defence-caused delay are situations where the court and Crown are prepared to proceed, but the defence is not: Jordan, at paras. 60-66; R. v. Cody, 2017 SCC 31, at paras. 28-36; R. v. Williamson, 2016 SCC 28, at paras. 21-22; R. v. Gopie, 2017 ONCA 728, at paras. 147-157. Unwillingness by defence counsel to accept a future date that is available to Crown and court creates delay attributable to the defence: R v. Albinowski, 2018 ONCA 1084, at paras. 28-33.
[6] Where the presumptive ceiling is exceeded, the Crown must show that there were exceptional circumstances, which can include discrete events or complexity. Exceptional circumstances are things beyond the Crown’s control as reasonably unforeseen or unavoidable, and that result in delays that the Crown cannot reasonably remedy. When they arise, the Crown must take steps to avoid or attempt to address the delay: Jordan, at paras. 69-71; Cody, at paras. 44-48, 54; McManus, at paras. 40-46.
[7] Discrete events involve dynamic developments in a proceeding that are time limited, either before trial or at trial; the delay they cause is deducted from the total delay: Jordan, at paras. 72-75; Cody, at para. 48. Complexity relates to a qualitative assessment of evidence or issues involved in a prosecution justifying expanded timelines: Jordan, at paras. 77-79; Cody, at paras. 64-65; R. v. Manasseri, 2016 ONCA 703, at para. 311; Gopie, at paras. 169-175. Complexity can be another way of considering unnecessary actions attributable to the defence that result in delays: R. v. Faulkner, 2018 ONCA 174, at para. 178.
[8] Where the presumptive ceiling is not exceeded, a stay of proceedings will be rare and granted only in clear cases, and only where the defence establishes both that it took meaningful steps demonstrating a sustained effort to expedite proceedings, and that the case took markedly longer to complete than it reasonably should. Unless both these things are established there will be no stay. Inaction by an accused that is inconsistent with a desire for a timely trial tells against a remedy. Empty statements on the record professing a wish for an earlier date are not sufficient as meaningful steps; rather, an accused must show efforts to set an earlier date and give notice to the Crown when delay becomes problematic: Jordan, at paras. 48, 82-86.
Applicant Loyer
[9] The delay relating to the charge against applicant Loyer will total 35 months to the trial date in January 2020. That exceeds the Jordan ceiling by five months. Applicant Loyer argues that the delay is unreasonable under the Jordan analysis, and that the charge against her must be stayed.
[10] I disagree. Given deductions for periods of delay occasioned by a discrete exceptional circumstance, defence-caused delay, and judicial decision-making at the preliminary hearing stage, the Jordan ceiling has not been exceeded. I will consider each category in turn.
Retainer and Legal Aid Issues: March 22, 2017 – August 15, 2017
Delay while awaiting Legal Aid
[11] A great deal of quantifiable delay in this case is attributable to applicant Loyer’s issues retaining counsel and her Legal Aid Ontario (“LAO”) application.
[12] On her first appearance on March 22, 2017, applicant Loyer requested two weeks of adjournment to “work on her retainer obligations” with her counsel of choice, Mr. Haraschuk. The same reasoning supported a further adjournment to April 19, 2017. On April 19, two weeks were requested again, this time for the LAO process, and then two further weeks both on May 3 and on May 17, 2017, with Mr. Haraschuk being noted as “agent” only. From May 31, 2017, the matter was adjourned to June 21, 2017, with a copy of the transcript of the day’s proceedings to be prepared and forwarded to LAO to encourage faster processing. Throughout, however, there is no evidence that LAO was behaving unreasonably or negligently in processing applicant Loyer’s application.
[13] June 21, 2017 brought a slight change, in that applicant Loyer had been denied Legal Aid, and “intended” to appeal the decision. The court granted her until July 12, 2017 to “see what is happening with” her appeal but on that date, there was no decision. Therefore, the matter was put over a week, with Crown counsel indicating “serious concerns” over the delay occasioned by the LAO process, seeking that the matter be marked “peremptory”, and making the suggestion that applicant Loyer “is going to have to look into a private retainer”, unless she was “prepared to waive 11(b)”. However, as Mr. Haraschuk was not yet actually retained, his agent had “no instructions from Ms. Loyer to waive 11(b) at this point in time.” The Crown also observed that applicant Loyer’s issues with LAO were delaying applicant Case’s matter as well.
[14] On July 19, 2017, although the agent for applicant Loyer had information that a decision on the LAO appeal would be given the following day, a further two-week adjournment was sought and granted. Crown counsel again expressed concerns at the delay. An in-person pre-trial was finally set for September 5, 2017, as applicant Loyer was still not represented. Months therefore had passed with little advance in the proceeding up to September 2017 while applicant Loyer attempted to sort out her retainer issues.
Discussion
[15] Some courts have held that retainer issues, Rowbotham applications, or LAO applications should be considered part of the ordinary process of the criminal trial, are accounted for in the Jordan timelines, and are not to be considered “defence delay”, except for periods of time where an accused is dilatory in bringing the application: see R. v. Payne, 2017 ONCJ 512, at paras. 12-14; R. v. Isaacs, 2016 ONSC 6214, at paras. 88-89. Moreover, the Crown is not permitted to stand by and do nothing when an institutional participant such as LAO “drags its feet and places the rights protected under s. 11(b) in jeopardy”: R. v. Boateng, 2015 ONCA 857, at para. 32.
[16] In this case, there is no evidence before the court that applicant Loyer was not diligent in making her application and appeals, or that LAO was “dragging its feet.” The agent for applicant Loyer and she herself in the transcripts from the numerous court appearances described LAO requiring further information, and applicant Loyer providing it, but nothing demonstrates that LAO was not properly doing its work with respect to applicant Loyer’s LAO application. Moreover, the Crown on several occasions pushed for the matter to be moved along and noted its concerns about the delay; it did not stand by and do nothing. Neither the Payne/Isaacs nor the Boateng analysis appears to apply, but half a year went by while the parties waited for applicant Loyer to get a lawyer and then to schedule and hold a pre-trial.
[17] In my view, in the circumstances of this case, the bulk of delay was delay that no one anticipated in securing the services of counsel. This was delay that brought the case virtually to a halt for a longer period than the ordinary retainer process. Such delay can only be labelled exceptional in the circumstances of this case, involving a discrete quantifiable period: Jordan, at paras. 69-73. It was out of the Crown’s control, though the Crown sought to limit it and ultimately managed to compel the holding of a pre-trial on the record; the Crown therefore met the expectations placed upon it by the Court of Appeal, “[w]hat counts is effort and initiative, not success”: R. v. Manasseri, 2016 ONCA 703, at para. 308; Jordan, at para. 70. It was an action of applicant Loyer that lengthened the proceedings, even if she did not anticipate that outcome.
[18] The period of delay from at least April 19, 2017, a month after first appearance, to August 15, 2017, the earlier date offered for the judicial pre-trial in the Ontario Court of Justice, must be considered as exceptional and discrete. This period of four months will be deducted from the total period of delay.
Delay caused by the defence
August 15, 2017 – September 5, 2017
[19] On August 2, 2017, the court was made aware that applicant Loyer’s LAO appeal had been denied, and a further appeal with respect to Legal Aid was contemplated to Toronto. The Crown was pushing to set a date for a judicial pre-trial, but the agent for applicant Loyer sought that any pre-trial date accord with Mr. Haraschuk’s availability, as he was intended counsel. August 15, 2017 was offered as an in-person pre-trial date, but declined by defence counsel, and September 5, 2017, selected. The judicial pre-trial was held on September 5, 2017.
[20] As the agent for Mr. Haraschuk and applicant Loyer turned down the August 15, 2017 date in favour of September 5, 2017, though Crown and court were available, that three-week period must be attributed to applicant Loyer as defence-caused delay.
July 23, 2018 – September 17, 2018
[21] It was agreed by Crown, applicant Case and applicant Loyer at the pre-trial in the Ontario Court of Justice on September 5, 2017 that five days were appropriate for the preliminary hearing in this matter. On September 20, 2017, preliminary hearing dates of July 13, 16, 19, 20, and 23, 2018 were set on agreement of court, Crown, and counsel for applicant Case. The agent for applicant Loyer and for Mr. Haraschuk could not confirm the dates. On September 27, 2017 those dates were vacated, as Mr. Haraschuk was “not available”. Ultimately, the matter was further adjourned to October 4, 2017 to find a five-day block of consecutive days. Crown counsel noted in any event that defence counsel had not yet filed their statements of issues, which the pre-trial judge had ordered to be filed by September 20, 2017.
[22] On October 4, 2017, counsel for applicant Case explicitly waived s. 11(b) to acquire consecutive preliminary hearing dates. Mr. Haraschuk for applicant Loyer was not available for the week of August 27, 2018, though it appears from the transcript that others were. The agent for applicant Loyer indicated that it was Mr. Haraschuk’s request to secure five consecutive days, and that Mr. Haraschuk was available after September 4, 2018. Ultimately the week of September 10, 2018 was chosen.
[23] In these circumstances, the two-month delay from July 23, 2018 to September 17, 2018 in conducting the preliminary hearing is attributable to applicant Loyer as defence-caused delay.
December 3, 2018 – February 25, 2019
[24] The Crown submits that December 3, 2018 to February 25, 2019 should be attributable to defence-caused delay, as earlier Superior Court pre-trial dates of December 3 and 17, 2018; January 21 and 28, 2019; and February 11, 2019 were offered and refused by Mr. Haraschuk for the applicant, though the court and the Crown were prepared to proceed.
[25] Reproduced in the responding application record is an e-mail trail among counsel for applicant Case, the Crown, and the legal assistant to counsel for applicant Loyer. Communications there make it probable that the trial coordinator’s office in the Superior Court had by November 19, 2018 offered dates of December 3 or 17, 2018; January 21 and 28, 2019; and February 11 or 25, 2019, to all counsel as dates for a Superior Court pre-trial. The e-correspondence indicates that counsel to applicant Case was available on the January dates, and provides ample grounds to find that counsel for Loyer was probably not available until February 25, 2019.
[26] Accordingly, it was the February 25, 2019 date that was confirmed in Superior Court on November 20, 2018, though the trial coordinator also set out on the record the earlier available dates. She personally could not confirm that the earlier dates had actually been offered to counsel, owing to her absence from the office when a date was chosen. The e-mail trail makes it clear that those dates had been offered, and it is evident that any of the dates would have been available to the Crown.
[27] The period from December 3, 2018 to February 25, 2019, a period of two months and three weeks, must be characterized as defence-caused delay in the setting of a date for a Superior Court judicial pre-trial.
April 5 – September 11, 2019
[28] On March 19, 2019, a date for a telephone continuation of the Superior Court judicial pre-trial that had been commenced before Gordon J. was to be set. April 4 and 5, 2019 were offered by the trial coordinator and refused by Mr. Haraschuk. Justice Gordon’s next available date was April 23, 2019, which was acceptable to all parties. This period of 2.5 weeks between April 4 and April 23, 2019 would be characterized as defence-caused delay, were it not for the fact that already by March 19, 2019 there were no further dates available for trial in 2019 in the Superior Court. No delay was caused by the choice of a later date for the continuation of the pre-trial.
[29] The Crown also argues that the period of time between May 13 and September 11, 2019 should be deducted from the total period of delay. That period represents the span of time over which numerous dates were offered by the Superior Court on March 19, 2019 for the certiorari application to quash the applicants’ committals to trial on some of the charges. Many of those dates were unavailable to counsel. September 11, 2019 was the earliest date offered for which applicants’ counsel were both available.
[30] Although this argument is superficially attractive, it too must fail. The transcript of March 19, 2019 is clear that on that date there were no trial dates available in 2019, so the certiorari application did not interfere with the setting of trial dates. Indeed, on May 21, 2019, long before the September 11, 2019 date for certiorari was reached, the current trial dates were set – in January 2020. The delay in securing a certiorari date is irrelevant in the Jordan analysis.
Judicial reserve time: September 17, 2018 to November 6, 2018
[31] The respondent argues that the period of time from the conclusion of evidence and argument at the preliminary hearing to the judge’s decision on committal should be deducted from the period of delay in this case. The applicants argue that the issues were straightforward at the preliminary hearing, involving simply allegations of misconduct towards three complainants. Moreover, the decision on committal related only to several counts with respect to a single complainant; delay such as this was excessive and unreasonable.
The preliminary hearing
[32] The preliminary hearing for all charges involving applicants Case and Loyer was held the week of September 10, 2018. During four days of evidence, it appears that video statements from complainants were filed as evidence for judicial review. Substantial argument on the preliminary hearing took place September 17, 2018. This argument related to only three charges before the court, as committal was conceded on other charges. In his reasons on the preliminary hearing, the judge expressed his view that “complex issues of memory recollection were involved.” At issue were concepts of “flashback, dreams or partial dreams, the definition of passing out, repressed memory and recovered memory.”
[33] In his submissions, counsel for applicant Case had described the Crown’s case as “damaged to some extent” by the evidence at the preliminary hearing. The preliminary hearing judge stated that “considerable case law as to the principles of committal and discharge” was filed and argued. He described the matter as “complex” and stated on September 17, 2018 that he had to take the matter under reserve, as he was “trying to figure out what to do.” The preliminary hearing judge reserved his decision until November 6, 2018, and on that date committed the applicants on all charges.
[34] The applicants anticipated proceeding with an application for certiorari to quash some of the counts on the indictment, as discussed earlier in these reasons.
Discussion
[35] Although the issue has not been dealt with at the appellate level in Ontario, there is persuasive authority that judicial reserve time should be subtracted from the net delay in the Jordan analysis. Judicial decision-making aims for correctness, not speed. To include judicial decision-making time in the Jordan timeline is to encourage judicial shortcuts in order to limit periods of delay. This not only increases the likelihood of error, but it also trenches on judicial independence, as an external factor compelling judges to readjust their workload and focus: R. v. Brown, 2018 NSCA 62, at paras. 72-75; R. v. K.G.K., 2019 MBCA 9, at paras. 188-219. That said, an inordinately delayed judicial decision can nevertheless provide a basis for a finding of unreasonable delay and a stay of proceedings: K.G.K., at paras. 220-228.
[36] Given the notoriously busy schedules of the trial courts in the Ontario Court of Justice, the need to coordinate the schedules of applicants’ counsel, Crown counsel, and the judge, and the complexity of issues to be considered by the trial judge, a committal ruling delayed to November 6, 2018 does not appear unreasonable. The facts outlined by the preliminary hearing judge in his reasons may seem straightforward in respect of essential elements of offences, but his recital of points in issue takes this case out of the realm of the ordinary.
[37] The seven weeks of time for the preliminary hearing judge to render his decision on committal, from September 17 to November 6, 2018, must be deducted from the net delay as reasonable judicial reserve time.
Conclusion with respect to applicant Loyer
[38] From the 35 months of delay at issue, some 7 months must be deducted as caused by the defence (5.5 months) or as reasonable time required for judicial decision-making (7 weeks). On top of that is the discrete period of four months of delay attributable to the exceptional circumstances of applicant Loyer’s LAO application.
[39] The total delay in the case of applicant Loyer stands at 24 months, well below the Jordan ceiling.
Applicant Case
[40] On the indictment on which applicant Loyer is jointly charged, applicant Case will also have spent 35 months from the date of charging through the trial date. On the separate indictment on which he is charged by himself, the period of delay is approximately 31.5 months. Applicant Case argues that as both indictments will have exceeded the Jordan ceiling by the time of trial, both should be stayed as applicant Case’s s. 11(b) Charter right has been violated.
[41] Although applicant Case argues that the Crown’s decision to hold a comprehensive preliminary hearing on the charges involving the applicants jointly and applicant Case alone added unnecessary complexity to the hearing and added to delay, I see no compelling evidence of this. The late-added charges against applicant Case alone were discussed at the same judicial pre-trial in the Ontario Court of Justice as the joint charges, were considered at the same preliminary hearing, and were initially added to the indictment. Ultimately the Crown severed that prosecution from the joint prosecution, and trial dates have been set on both matters in January 2020.
[42] As in the case of applicant Loyer, periods of time must be subtracted from the total time in order to determine the period of actual delay. In the case of applicant Case, those periods include periods of waived time, periods of defence-caused delay, the time required for judicial decision-making, and the extraordinary circumstances occasioned by applicant Loyer’s LAO application. Once proper deductions have been made, the delay on both matters involving applicant Case lies well below the Jordan ceiling.
Waived periods
April 5, 2017 – May 17, 2017
[43] On March 27, 2017, counsel to applicant Case, who had to be away for an extended period, requested to adjourn the matter for two months. The matter was put to the following week, to meet up with applicant Loyer’s matter, and for applicant Case to give instructions on waiver of s. 11(b). That waiver was communicated in court on the next attendance. In fact, apparently contrary to his expectations, counsel for applicant Case attended court May 17, 2017, and addressed the matter, adjourning it two weeks as “the investigation’s still continuing”.
[44] The actual period waived was therefore six weeks, from April 5 to May 17, 2017.
August 9, 2018 – September 17, 2018
[45] The matters were readdressed on October 4, 2017, when it became apparent on September 27, 2017 that the July 2018 preliminary hearing dates were unavailable to counsel to applicant Loyer. On October 4, 2017, individual days in August 2018 were canvassed, concluding with August 9, 2018. Counsel to applicant Case stated that they preferred not to do the case on the “installment plan” and advised that he had instructions from applicant Case to “waive 11(b) to get consecutive dates.” Consecutive preliminary hearing dates were eventually found and set, to conclude September 17, 2018.
[46] The period waived, from August 9 through September 17, 2018, constitutes 5.5 weeks.
Delay attributable to the defence
August 15, 2017 – September 5, 2017
[47] On August 2, 2017, Crown counsel insisted that a date for a judicial pre-trial be set, to be held on the record, as applicant Loyer was still unrepresented. Her agent requested a date in accordance with the availability of applicant Loyer’s chosen counsel in case he became retained in the meantime. Two in-person court dates were offered: August 15 and September 5, 2017. Crown counsel contacted applicant Case’s counsel for available dates and told the court “August 15th was offered… but both counsel are available on the 5th.”
[48] This period of three weeks, from August 15 to September 5, 2017, is defence-caused.
December 3, 2018 – January 21, 2019
[49] As considered above for applicant Loyer, after committal to trial the matters involving applicant Case appeared in Superior Court criminal assignment court on November 20, 2018. On that date, February 25, 2019 was confirmed for a pre-trial. Also available had been December 3 and 17, 2018; January 21 and 28, 2019; and February 11, 2019. I do not accept the argument of counsel for applicant Case that the December 2018 dates would not have provided enough time for filling out the relatively straightforward criminal pre-trial reports or would have unreasonably required counsel to participate during a holiday season.
[50] E-correspondence among the parties and the court made it clear that the January 21 and 28, 2019, dates were available to applicant Case, though not to counsel for applicant Loyer.
[51] Accordingly, the period from December 3, 2018 to January 21, 2019, a period of seven weeks, must be characterized as defence-caused delay in the setting of a date for a Superior Court judicial pre-trial.
May 13 – September 11, 2019: delay in the certiorari application
[52] For reasons offered above with respect to applicant Loyer, I cannot find that this period of time constitutes defence-caused delay.
Judicial reserve time: September 17, 2018 to November 6, 2018
[53] For reasons offered above, with respect to applicant Loyer, I find that the seven weeks of time for the preliminary hearing judge to render his decision on committal must be deducted from the net delay with respect to the joint indictment.
Applicant Loyer’s Retainer and Legal Aid Issues: March 22, 2017 – August 15, 2017
[54] Applicant Case argues that he cannot be held responsible for delay occasioned by applicant Loyer’s difficulties with Legal Aid. Applicant Case always wanted his matter to move along expeditiously, and it was always in the Crown’s hands to sever applicant Case from applicant Loyer, thus allowing his matter to proceed even if hers was stalled by factors beyond anyone’s control.
Severance and delay
[55] Jointly charged accused persons can present special challenges in the s. 11(b) arena. It is the Crown’s prerogative to prosecute two or more accused persons at the same proceeding, subject to rules concerning the right of accused persons to severance of charges or persons. However, the decision to maintain jointly charged accused persons in a single prosecution must take into account the accused persons’ s. 11(b) rights. The Crown’s ability to conduct a joint prosecution must be in the interests of justice and must factor in the s. 11(b) rights of the accused persons: R. v. Manasseri, 2016 ONCA 703, at para. 373.
[56] Delays occasioned by justifiably proceeding jointly against more than one accused can be considered to add complexity as “exceptional circumstances”: Jordan, at paras. 77-79; Cody, at para. 30; Manasseri, at paras. 311-314, 323, 329; Gopie, at para. 169. Jordan does not require severance of jointly charged accused persons to ensure the speediest possible trial, where delays are limited: R. v. Boghassian, 2019 ONCA 169, at para. 22.
[57] However, the Crown must consider whether trying multiple accused persons together or continuing jointly will “unduly complicate a proceeding,” and thereby violate one or both co-accused’s s. 11(b) rights by holding one accused hostage to the delays caused by another: Jordan, at para. 79; Gopie, at para. 171.
The interests of justice
[58] In my view it was in the interests of justice not to sever the charges involving applicant Case from those involving applicant Loyer.
[59] On April 5, 2017, counsel was prepared to waive applicant Case’s s. 11(b) right as counsel was going to be unavailable for two months. In the result, that length of time turned out to be unnecessary and excessive, but it shows that applicant Case was prepared to endure some considerable delay without demur. On June 21, 2017, the agent for applicant Case indicated that applicant Case had recently been charged with a new offence and was prepared “to essentially follow along with [applicant] Loyer.”
[60] The matter was put to July 12, 2017. On that date, Crown counsel expressed grave concern about the delay being caused by applicant Loyer’s foray into the Legal Aid process. After the Crown’s comments, counsel for applicant Case indicated that applicant Case had been prepared to proceed “from an early date.” On July 19, 2017, counsel to applicant Case raised the possibility of severance by the Crown, and the Crown indicated no desire to do that. By the next appearance on August 2, 2017, the date for judicial pre-trial was set.
[61] In these circumstances, it appears that applicant Case first appeared concerned at the relaxed pace of the prosecution on July 12, 2017. The LAO delay can only have been a factor until August 15, 2017, when an in-court judicial pre-trial could have been held, if that date had been agreeable to the applicants. In my view, so long as a joint prosecution was in the interests of justice, then the delay at issue here, and applicant Case’s attitude towards it, would not justify severance.
[62] Was a joint prosecution in the interests of justice? At the time of the preliminary hearing, the applicants were jointly charged with respect to two complainants. The complainants described conduct in which both accused persons participated, involving very intimate and apparently similar contact between the applicants and each complainant jointly. Severance of the applicants would have required that these complainants be required to testify potentially three times about such alleged personal invasions of their sexual privacy, if the Crown brought a successful similar act application. Factual overlap and interconnectedness, and limiting the trauma to the complainants of testifying on multiple occasions justified joint proceedings.
[63] Although the delay for LAO was extraordinary in the circumstances of this case, the combination of applicant Case’s ready acceptance of much of the delay, factual interconnectedness of the alleged conduct of the two applicants, and the potential for a successful similar act application justified a joint process. It was manifestly in the interests of justice for the Crown not to sever the accused persons, and instead to push for the setting of an in-court judicial pre-trial at the earliest time acceptable to the applicants. That was done.
[64] Accordingly, as in the case of applicant Loyer, the period of delay from at least April 19 to August 15, 2017, the earlier date offered for the judicial pre-trial in the Ontario Court of Justice, must be considered as exceptional also in the analysis of delay for applicant Case, at least with respect to the joint indictment. This discrete period of four months must be deducted from the total period of delay.
Conclusion with respect to applicant Case
The joint indictment
[65] From the 35 months of delay at issue on the joint indictment, some 11.5 weeks of time was waived, 10 weeks were attributable to the defence, 7 weeks resulted from the adjournment of the preliminary hearing for decision, and 4 months were caused by applicant Loyer’s extraordinary issues with Legal Aid. The deduction of these approximately 11 months leaves 24 months of delay, which is well within the guidelines set out in Jordan.
The indictment against applicant Case alone
[66] With respect to the 31.5 months of delay relating to the indictment that involves only applicant Case, it must be remembered that the charges arose only June 5, 2017. Thus, there are only 5.5 weeks of waived time during the existence of these charges, from August 9 to September 17, 2018. Delays in scheduling pre-trials in both courts were caused by applicant Case, and amount to ten further weeks.
[67] With respect to applicant Loyer’s LAO application, the charges against Case alone arose well into applicant Loyer’s LAO process. By June 21, however, applicant Case was prepared to let his charges follow along with those involving applicant Loyer, and he therefore must be understood to have accepted some delay resulting from her LAO difficulties, at least until August 15, 2017. This period of some eight weeks must also be deducted from the total delay.
[68] I do not accept that there would have been a need for judicial reserve time on the charges involving applicant Case alone, as committal was conceded on those charges.
[69] The deduction of delay from the charges against applicant Case alone, therefore, stands at approximately six months, bringing the total delay on those charges to 25.5 months, again well under the Jordan ceiling.
Delay below the ceiling
[70] As the delay on both indictments for both applicants is below the 30-month ceiling, the burden shifts to them to demonstrate that the delay in these cases violated their s. 11(b) rights.
[71] I begin by noting that the total actual delay that I have calculated for the two indictments involving the applicants falls within the reasonable time requirements for cases such as these in this jurisdiction, involving preliminary hearing and trial. Moreover, I am unable to find that either applicant demonstrated a sustained effort to expedite proceedings. Accordingly, their claims to s. 11(b) violations below the ceiling must fail.
[72] The following selection of issues, though not comprehensive, is sufficient to show that neither applicant took significant steps to expedite these proceedings.
[73] Both applicants were slow to file statements of issues for the purpose of the preliminary inquiry, though they had been ordered to do so at the judicial pre-trial in the Ontario Court of Justice. Both applicants refused earlier dates in order to get consecutive dates for the preliminary inquiry. Both applicants refused dates for the holding of the Superior Court pre-trial, even after so much time was lost during applicant Loyer’s LAO application issues.
[74] Applicant Case was prepared to waive months of delay, and to let his charge follow along with applicant Case for a period of time while she was stalled in the LAO process. He started advancing bald concerns about delay caused by applicant Loyer’s LAO application on the record only after the Crown raised the issue.
[75] Applicant Loyer made no efforts to advance her case while she attempted to secure Legal Aid funding, thus delaying the entire proceeding by at least four months. Carelessness concerning the availability of her (potential) counsel led to the cancelling and rescheduling of dates for the preliminary hearing.
[76] All of this was done virtually in the face of Crown efforts to move the matter along. Crown counsel repeatedly noted concern about the delay, urged that the matter be marked peremptory, and insisted on the setting of dates. When the required statements of issues were not forthcoming, the Crown pushed for their filing. The Crown never indicated that it was unavailable for any date that was offered.
Conclusion
[77] For these reasons, the applications pursuant to s. 11(b) of the Charter are dismissed.
The Honourable Mr. Justice A.D. Kurke
Released: December 16, 2019
COURT FILE NO.: CR-1013/18
DATE: 2019-12-16
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
David Case and Celine Loyer
Applicants
DECISION ON DELAY APPLICATIONS
A.D. KURKE J.
Released: December 16, 2019