COURT FILE NO.: 17-202929
DATE: 2019/12/19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Appellant
– and –
LAURA SAIKALY Respondent
Moiz M. Karimjee, for the Crown
Charles Shortt, for the Respondent
HEARD: December 11, 2019
decision on summary conviction appeal
LALIBERTE J.
[1] The Court is dealing with a summary conviction appeal brought by the Crown against a stay of proceedings granted by Justice Kehoe of the Ontario Court of Justice on March 22, 2019 with written reasons for same provided on April 12, 2019.
[2] The Respondent was charged with having refused, without reasonable excuse, to comply with a demand to provide a sample of breath in an approved screening device, contrary to s. 254(5) of the Criminal Code. She had also been charged with possession of cannabis marijuana contrary to s.4(1) of the Controlled Drugs and Substances Act but the Crown did not proceed with this charge. Justice Kehoe found that her right to be tried within a reasonable time under the s.11(b) of the Charter had been infringed and directed a stay of proceedings as a s.24(1) of the Charter remedy.
[3] The Crown submits that the learned trial Judge erred in doing so and seeks a new trial.
[4] The allegations against the Respondent are that on August 27, 2017 at 1:43 A.M., she was stopped by the police while driving a motor vehicle in excess of the posted speed limit. The officer observed an alcoholic beverage readily accessible to her. She was brought to the back seat of the police cruiser where the officer states having detected a very strong odour of alcohol coming from her breath. She is said to have refused to provide a sample of her breath in an approved screening device as requested by the officer. She would have stated: “I refuse. I’ve been told I don’t have to and I shouldn’t… yes, I refuse. I will have my lawyer fight it in court…”
[5] She was released by way of an appearance notice with a first Court date of September 7, 2017.
[6] The facts reveal that the information was sworn on August 31, 2017. There were a number of appearances resulting in a one (1) day trial being set for January 7, 2019. It was listed in what is known as a “Reservoir Court” where matters are added to cases already set to proceed on the same date. The hope is that set matters will collapse and/or finish so as to accommodate new matters.
[7] The Respondent’s trial was not reached until the afternoon and therefore was not completed on January 7, 2019. A continuation date was ultimately scheduled for April 12, 2019. The Respondent brought a s. 11(b) Charter Application on March 22, 2019 which was granted by Justice Kehoe.
[8] The total delay from the swearing of the information on August 31, 2017 to the anticipated end of the trial on April 12, 2019 is 19.5 months.
[9] As already noted, Justice Kehoe provided both oral and written reasons in the Charter Application. In staying the charge on March 22, 2019, she stated the following:
“ No, but my issue goes before that;… It’s reservoir court, and stuffing matters that are set a year in advance for a trial, and the accused shows up with their counsel and they say, well, there’s no courtroom,, you’re in reservoir court for the next day… with no hope of finishing a case that’s set for a day in a half day, and its going to go over two or three months. And if the Crown was prepared to do whatever it needed to do, it needed to be done on January 7th, not February 14th or 15th…”
“…but some of what’s being pushed through the courts could be dealt with much earlier so- and I think people need to be guaranteed that, if they’re coming to trial, a year after the trial is set, with no notice that it could be reached, not reached, then you need to proceed with your trials that day…”
“No, but somebody has to… take responsibility for stuffing all that stuff in there and it’s been ongoing for the last year here that it’s just chaos… and I don’t think that’s what Jordan said…”
[10] The Court notes the following analysis in her April 12, 2019 written reasons:
“11. I agree that waiting 15 months to set a trial date on a simple Charter application/Refusal case that is estimated to take one day to complete is over the Morin guidelines, and should be screaming out that the delay risks a stay. Notwithstanding that risk, “the system” meaning whoever makes the decisions of which cases will be set where, put this case into a “Reservoir Court” hoping that other cases already set and proceeding would collapse or finish and that this case could be accommodated. Half of the full trial date was lost, and as a result the trial had to be put over 3 months, and over the Jordan limit to complete…”
“12. I disagree that the delay between December 7, 2018 and January 7, 2019 is Defence Delay. It is unreasonable to expect counsel, when setting a trial date on November 2, 2018, to be available on December 10, 2018… I would not allocate the 30 days between December 7, 2018 and January 7, 2019 as Defence Delay.”
“13. I also disagree that there was any Defence Delay after February 8, 2019. Defence counsel had a family emergency and was unavailable as a result. However, the emails demonstrate that counsel was cooperating and attempting to move the matter forward as much as possible even agreeing to send Mr. Grant to accommodate the March 22, 2019 s. 11(b) hearing date.”
“14. I find that the total delay is 19 months and 16 days, which is over the 18 month presumptive limit. The Defence has shown that the delay markedly exceeded the reasonable requirements of the case and the Defence took meaningful steps to expedite the proceedings. The Jordan time periods were at issue when the trial date was set and the manner in which the case was set, on top of other proceedings at that stage, risked further delay that would exceed the 18-month limit. It is a risk taken knowing potential results. The proceedings are stayed.”
[11] For the most part, the issues in this appeal revolve around two (2) distinct periods of delay which were not held as defence delay by Justice Kehoe.
[12] The first period is from December 7, 2018 to January 7, 2019. The record shows that defence had been offered trial dates on December 7, 10, 14, 17, 18, 19 and 20, 2018. The Crown was available, but defence was not. This resulted in a delay of 31 days.
[13] The second period of delay is from February 15, 2019 to April 12, 2019, a total of 45 days. The Crown sought to bring the matter forward once served with the 11(b) Application. On February 15, 2019, the Court offered February 21, 25 and 26, 2019, as earlier trial dates but defence was unavailable. The April 12, 2019 trial continuation date was maintained.
[14] It is also uncontested that defence counsel Mr. Schachter had a serious family emergency which made it such that he was unavailable to respond to the Crown’s email of February 8, 2019 concerning earlier dates nor continue the trial between February 10 and 16, 2019.
[15] The Crown’s position in this appeal is that Justice Kehoe failed to consider and apply the law on subtracting from total delay defence caused delay due to defence unavailability and exceptional circumstances (i.e. family emergency for defence counsel). This was an error that resulted in the stay of proceedings. Had the 76 days of the delay been subtracted from the total of 603 days, the net delay would have been 527 days, which is less than the net Jordan permissible delay of 18 months or 547 days. Since the delay is less than the 18-months ceiling, the defence had the onus of demonstrating that the delay was unreasonable because (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings and (2) the case took markedly longer that it reasonably should have. The defence failed to meet this onus. The Crown is therefore seeking a new trial.
[16] The Respondent submits that Justice Kehoe’s decision was sound and that she did not err in holding that the two (2) periods of delay were not defence delay. She was correct in finding that the total net delay was in excess of the 18-month Jordan ceiling and therefore presumptively unreasonable. Even if she erred in finding that both periods of delay were not defence delay, a net delay of 17.5 months is unacceptable given the specific factors of this case and the jurisdiction. A stay should still be entered as the case has taken markedly longer than it reasonably should have. The Crown’s appeal should therefore be dismissed.
[17] In deciding this matter, the Court is guided by the following principles:
Standard of Review
the trial Judge’s characterization of the various periods of time making up the overall delay in a case and the ultimate decision as to whether there has been an unreasonable delay, are reviewed against the standard of correctness;
the underlying factual findings are reviewed on the standard of palpable and overriding error;
R. v. Schertzer, 2009 ONCA 742.
R. v. Nguyen, 2013 ONCA 169.
R. v. Fotiou, 2018 ONSC 4958.
Summary of Jordan Analytical Framework (R. v. Coulter, 2016 ONCA 704)
1- Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial;
2- Subtract defence delay from the total delay, which results in the “net delay”;
3- Compare the “net delay” to the presumptive ceiling (18 months in the Ontario Court of Justice/ 30 months in the Superior Court of Justice);
4- 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; if it cannot rebut the presumption, a stay will follow; exceptional circumstances fall under two categories: discrete events and particularly complex cases;
5- Subtract delay caused by discrete events from the “net delay” for the purpose of determining whether the presumptive ceiling has been reached;
6- 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;
7- If the “remaining delay” falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.
Defence Delay
“44. Defence-caused delay is comprised of situations where the acts of the defence either directly caused the delay or are shown to be a deliberate tactic employed to delay the trial. Frivolous applications and requests are the most straightforward examples of defence delay. Where the Court and the Crown are ready to proceed but the defence is not, the defence will have directly caused the delay.”
Discrete Events
“49. An illustration of a discrete event that will generally qualify is a medical or family emergency on the part of the accused, important witnesses, counsel or the trial judge.”
[18] Having considered the circumstances in this matter and the relevant principles, the Court finds that the appeal should be dismissed based on the following considerations:
i) The matter is being argued in this appeal by both parties on a somewhat different footing than it was before Justice Kehoe. The Court notes the following:
− The Respondent’s position in this appeal is that both delay periods should not be seen as defence delay based on the unavailability of defence on earlier dates where the Court and the Crown are ready to proceed; defence counsel had conceded that the first period was defence delay when asked by Justice Kehoe (page 3 of the March 22, 2019 transcript);
− The Appellant’s position in this appeal is that the period of time defence counsel was unavailable by reason of a serious family emergency should be subtracted as a discrete event; Justice Kehoe was told that both counsel agreed that there were no discrete events raised for her consideration (page 2 of the March 22, 2019 transcript).
ii) The Court agrees with the Appellant that the principles are such that the first impugned period of 31 days between December 7, 2018 and January 7, 2019 should be found to be defence delay as the Court and the Crown were ready to proceed, but defence was no available. Justice Kehoe is found to have erred in law in not finding so. This is reinforced by the fact that defence had made this concession. However, this 31 days delay attributed to defence does not bring the net delay below the 18-month presumptive ceiling.
iii) However, the Court rejects the Appellant’s argument that Justice Kehoe erred in failing to attribute the second impugned period of 45 days as defence delay based on unavailability on earlier dates which were now being offered prior to the already set continuation date of April 12, 2019. The Court agrees with the trial Judge’s reasoning and analysis that the facts and circumstances were such that the unavailability of defence counsel prior to April 12, 2019 cannot be imputed as defence delay. The Court notes the following in support of this proposition:
• Fundamental to Justice Kehoe’s decision is the notion that there is a connection between the delay in this matter and the use of the since defunct “Reservoir Court” as a means of scheduling trials; she described this process as “chaos” and Crown counsel before her agreed with this characterization; the Court shares the trial judge’s concerns that a fairly uncomplicated one (1) day trial matter would be set some 15 to 16 months down the line into a “Reservoir Court” hoping that other cases already set and proceeding would collapse or finish so that this case could be accommodated. Justice Kehoe stated that this was her 4th or 5th such 11(b) Charter Application from this “Reservoir Court”.
• This Court is of the view that possible earlier dates to complete the trial should have been canvassed by the Crown and the Court prior to the setting of the April 12, 2019 continuation date and the filing by the Respondent of a s. 11(b) Charter Application. In her February 8, 2019 email to defence counsel, Crown counsel states that her “office is willing to get earlier trial dates on this matter. We would be willing to move other cases around. We could do it as early as next week.” While these efforts are certainly commendable, as noted by Justice Kehoe in her March 22, 2019 oral reasons “… and if the Crown was prepared to do whatever it needed to do, it needed to be done on January 7th, not February 14th and 15th…”
• The end result is that defence was offered earlier dates on fairly short notice in response to its s. 11(b) Charter Application. It is not seen as fair and reasonable that delay generated by such a factual setting would qualify as defence delay on the basis of unavailability on dates when the Crown and Court are ready to proceed. Consideration must be given to the notion that defence counsel need not remain in a state of perpetual availability in such scenarios in the hope that the Crown may try to provide an earlier date by “moving other cases around”.
The Court therefore finds that the trial Judge did not err in not deducting the 45 days delay when Crown counsel attempted to bring the matter forward once served with a s. 11(b) Charter Application. The net delay therefore remains above the 18-month presumptive ceiling.
- The Court rejects the Appellant’s suggestion in this appeal that the delay between February 15, 2019 and April 12, 2019 should be classified as a discrete event warranting a 45 days reduction so as to bring the net delay under the 18-month presumptive ceiling. Reference is made to the fact that defence counsel had a serious family emergency and was therefore unavailable for the proposed earlier February dates. This argument is rejected for the following reasons:
• Justice Kehoe’s finding in her April 12, 2019 written decision is that defence counsel would have been available for the February 25, 2019 proposed continuation date had been offered on January 7, 2019; so that defence unavailability was not strictly due to personal circumstances;
• The issue of this period of delay being the result of the suggested discrete event was not raised with Justice Kehoe; as already noted, she was told that both counsel agreed that there were no such discrete events for her consideration;
• The fact that defence counsel may not have been available for some of the earlier February 2019 new proposed trial dates, does not detract from the Court’s fundamental view with regard to the circumstances already discussed which led to the offering of these new dates.
[19] While the Court disagrees with Justice Kehoe’s view as to the period from December 7, 2018 to the period of January 7, 2019, in the end she is found to have correctly decided that the delay exceeded the presumptive 18-month ceiling. She found the total delay to be 19 months and 16 days. The Court’s finding in this appeal is that the net delay is 18.5 months.
[20] In light of the Court’s conclusion that the net delay exceeded the 18-month presumptive ceiling, the questions of whether defence has shown that the delay markedly exceeded the reasonable requirements of the case and whether Defence took meaningful steps to expedite the proceedings need not be addressed by the Court.
[21] The Crown’s appeal is therefore dismissed.
Laliberté J.
Released: December 19, 2019
COURT FILE NO.: 17-202929
DATE: 2019/12/19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Appellant
– and –
LAURA SAIKALY Respondent
decision on summary conviction appeal
Justice Laliberté
Released: December 19, 2019