Court File and Parties

Court File No.: CR-18-10000022-AP Date: 2020-01-15 Ontario Superior Court of Justice

Between: Her Majesty The Queen, Respondent And: Bruce Doucette, Appellant

Counsel: D. Spence, for the Respondent D. Goldbloom, for the Appellant

Heard: November 20, 2019.

Reasons for Judgment

On appeal from the convictions entered on December 15, 2017 by the Honourable Justice M. McLeod of the Ontario Court of Justice.

SCHRECK J.:

[1] On December 17, 2015, Bruce Doucette was charged with two counts of accessing child pornography, contrary to s. 163.1(4.1) of the Criminal Code. He was convicted on both counts 23 months and 28 days later on December 15, 2017. He appeals his convictions on the sole ground that the trial judge erred in concluding that his right to a trial within a reasonable time, as guaranteed by s. 11(b) of the Charter, had not been infringed. [1]

[2] For the reasons that follow, the appeal is dismissed. While the parties agree that the trial judge erred in his treatment of the transitional exceptional circumstance in his s. 11(b) analysis, I have concluded that the net delay in this case did not exceed the 18-month ceiling established in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. As a result, the transitional exceptional circumstance does not apply.

I. Chronology of the Proceedings

A. Prior to the Release of R. v. Jordan

[3] The appellant was arrested on December 17, 2015 and appeared in court the following day. He retained counsel and after a number of brief adjournments was released on bail on January 7, 2016. His counsel requested disclosure on January 17, 2016.

[4] Some disclosure was provided on February 4, 2016. A further disclosure request was made on February 24, 2016 for the informations to obtain search warrants (“ITO”). When no further disclosure was provided at the next court appearance on March 17, 2016, the matter was adjourned to April 21, 2016. Further disclosure was provided on April 1, 2016 and a judicial pre-trial (“JPT”) was scheduled for May 4, 2016. The matter was adjourned to that date.

[5] Further disclosure was provided on May 2, 2016, but the ITOs and some forensic reports remained outstanding. At the JPT, Crown counsel advised that the ITOs had yet to be unsealed and that the forensic reports would take some time. The matter was adjourned to June 16, 2016 and then July 7, 2016. On that date, a forensic report was disclosed and the matter was adjourned to July 21, 2016 so that counsel could review it.

[6] On July 8, 2016, the Supreme Court of Canada released its decision in R. v. Jordan.

B. Delay to Confirm Retainer and the Rescheduled Judicial Pre-Trial

[7] On July 21, 2016, the parties scheduled a JPT for August 25, 2016. At the JPT, the Crown advised the Court that it was prepared to set a trial date. However, the appellant had been denied legal aid so his counsel required additional time to pursue a Rowbotham application. [2] The matter was adjourned to October 14, 2016 for a continuing JPT. The JPT was later adjourned to November 16, 2016 at the request of the defence, which was still in the process of preparing a Rowbotham application.

[8] The November 16, 2016 JPT was to take place before Caldwell J. On November 9, 2016, the trial co-ordinator contacted counsel to advise that Caldwell J. had a scheduling conflict so the JPT could not take place as scheduled. It was rescheduled to November 29, 2016.

C. Setting and Confirming Trial Dates

[9] On November 29, 2016, the parties agreed to set trial dates despite the fact that disclosure was still incomplete and defence counsel was not yet retained. Trial target dates of September 6-8 and 10-15, 2017 were set, which were the earliest dates offered by the Court. The parties also scheduled a s. 11(b) application for June 21, 2017 and a Garofoli application [3] for June 25, 2017. The matter was adjourned to February 8, 2017 to confirm that the Rowbotham application had been successful and counsel was fully retained.

[10] The Rowbotham application was not perfected by February 8, 2017, but was ultimately consented to by the Crown on March 28, 2017. The matter was adjourned to June 21, 2017, the date scheduled for the s. 11(b) application.

D. The Trial Judge’s Unilateral Shortening of the Trial

[11] When the matter returned on June 21, 2017, the appellant was arraigned before the trial judge. Not all of the transcripts required for the s. 11(b) application had yet been produced, so the application was adjourned to August 24, 2017. Counsel and the trial judge then had a discussion about the eight days that had been scheduled for trial. In the course of that discussion, the trial judge stated:

I’d like to take at least three of them away. I mean, I’m, I’m not – we should have a discussion at some point, because I am saying I am taking three days away, just to focus. [4]

[12] After some further discussion, the following exchange took place:

THE COURT: So tentatively what I’m thinking about is 13th to 15th, the last three days. That’s what I mean. Does that create a problem?

CROWN COUNSEL: Well, it ultimately might. I don’t know. I’ll have to …

THE COURT: Yeah.

CROWN COUNSEL: … my friend and I will work together on some of these issues, but just to be clear …

THE COURT: No, no, I mean ….

CROWN COUNSEL: … we also set it on the basis of eight days, and so that’s where the timeslot for that went. Now, I’m not sure if it ultimately would’ve changed anything in terms of five versus eight days, but it was obviously set for eight days during that time period. [5]

Counsel for the appellant (not Mr. Goldbloom) made no submissions with respect to shortening the trial.

[13] As a result of the trial judge’s decision to eliminate the last three days, the trial was scheduled to end on September 12, 2017.

E. The First Section 11(b) Application

[14] The first s. 11(b) application was heard on August 24, 2017. The total delay at issue was from the time the appellant was charged on December 17, 2015 to what was then the anticipated end of the trial on September 12, 2017, a period of just under 21 months. The trial judge dismissed the application on August 29, 2017.

F. The Trial Does Not Finish as Scheduled

[15] The trial commenced as scheduled on September 6, 2017. It was not completed by September 15, the last scheduled day as a result of the trial judge’s decision to eliminate the last three days. As a result, the matter was adjourned to November 17, 2017. Neither defence counsel nor the trial judge was available on any earlier date.

[16] On November 17, 2017, the Crown closed its case. The defence called one witness, the appellant, following which submissions were made by counsel.

G. The End of the Trial to the Delivery of the Verdict

[17] At the conclusion of the submissions on November 17, 2017, the trial judge advised the parties that he was not going to provide them with a decision that day. The following exchange then took place:

THE COURT: We’re looking for a date, right?

DEFENCE COUNSEL: Yes. And Ms. Gibson has her calendar and I do. And I should just say, I’m in a three-week matter starting on Monday in Newmarket, so I would ask for some time in December.

THE COURT: Mm-hmm. That’s fine.

DEFENCE COUNSEL: Is the 15th of December, is that at all possible? That’s a Friday.

THE COURT: Sure.

DEFENCE COUNSEL: Ms. Gibson is nodding.

THE COURT: Okay. [6]

The matter was accordingly adjourned to December 15, 2017. On that date, the appellant was found guilty.

H. The Second Section 11(b) Application

[18] After the appellant was found guilty, the case was adjourned to January 16, 2018 to be spoken to as defence counsel was considering bringing a constitutional challenge to the mandatory minimum penalty. When the matter returned that day, counsel for the appellant advised the trial judge that he intended to renew his s. 11(b) application.

[19] The second s. 11(b) application was argued on March 6, 2018 and dismissed on March 14, 2018.

II. Analysis

A. Overview

[20] The proper approach to determining whether there has been a s. 11(b) Charter violation is now well established and was summarized in R. v. Gopie, 2017 ONCA 728, 356 C.C.C. (3d) 36, at paras. 112-119:

The first step is to calculate the total delay from the charge to the actual or anticipated end of trial.

Next, defence delay must be subtracted from the total delay, leaving the “Net Delay”. Defence delay has two components: that arising from defence waiver and, that caused solely by the conduct of the defence (“defence-caused delay”). The latter is comprised of situations where the acts of the defence either directly caused the delay or are shown to be a deliberate and calculated tactic employed to delay the trial. Frivolous applications and requests are straightforward examples of defence-caused delay (Jordan, at paras. 60-67).

If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable (Jordan, at para. 68).

To rebut the presumption of unreasonableness, the Crown must establish the presence of exceptional circumstances. Exceptional circumstances are those which lie outside the Crown’s control, in that they are: (1) reasonably unforeseen or reasonably unavoidable; and (2) Crown counsel could not reasonably remedy the delay emanating from the circumstances once they arose. Such circumstances need not be rare or entirely uncommon (Jordan, at paras. 68-69).

Generally, exceptional circumstances fall under two categories: (1) discrete events; and (2) particularly complex cases. An illustration of a discrete event is a medical or family emergency on the part of the accused, important witnesses, counsel or the trial judge (Jordan, at paras. 71-72).

The period of delay caused by discrete events must be subtracted from the Net Delay -- yielding the “Resulting Delay” -- for the purposes of determining whether the presumptive ceiling has been reached. If the Resulting Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex, such that the time the case took was justified and the delay reasonable (Jordan, at paras. 75-80).

If the Resulting Delay falls below the presumptive ceiling, the onus shifts to the appellants to show that the delay is unreasonable. Stays beneath the ceiling are expected to be rare and limited to clear cases (Jordan, at paras. 82-83).

For cases in the justice system on the date of Jordan’s release, a “transitional exceptional circumstance” applies if the Crown satisfies the court that the time the case took is justified based on the parties’ reasonable reliance on the previous state of the law. This is a contextual assessment, sensitive to the manner in which the Morin framework was applied and to the fact that the parties' behaviour cannot be judged strictly against a standard of which they had no notice when the proceedings began. Considerations of prejudice and the seriousness of the offence can inform whether the parties’ reliance on the previous state of the law was reasonable (Jordan, at para. 96. See also R. v. Pyrek, 2017 ONCA 476, at paras. 9, 28).

[21] The trial in this case took place in the Ontario Court of Justice. The applicable ceiling is therefore 18 months.

[22] The appellant submits that the trial judge erred in dismissing both s. 11(b) applications. The parties have helpfully narrowed the issues in dispute. They were (1) whether the two-week delay as a result of the re-scheduled JPT is an exceptional circumstance; (2) whether the three-month delay resulting from the trial judge’s shortening of the trial is an exceptional circumstance; (3) whether the one-month period between the end of the trial and the delivery of the verdict should count in the total delay; and (4) whether the trial judge erred in the manner in which he applied the transitional exceptional circumstance. The second and third issues are only relevant to the second s. 11(b) application.

B. Issues Not in Dispute

(i) Total Delay

[23] The appellant was charged on December 17, 2015. The trial was initially scheduled to end on September 15, 2017. Ultimately, the appellant was convicted on December 15, 2017. The parties agree that the total delay is therefore just under 21 months for the purposes of the first s. 11(b) application and 23 months and 28 days for the second application.

(ii) Defence Delay

[24] The parties agree that the period during which the setting of the trial date was delayed because defence counsel needed to confirm his retainer is defence delay. The Crown was prepared to set a trial date on August 25, 2016 and target dates were set on November 29, 2016. The parties also agree that the two weeks resulting from the rescheduled JPT should be subtracted from this period as the parties were actually prepared to set trial dates as of November 16, 2016, when the JPT was originally scheduled to take place. The defence delay is therefore two months and 22 days. This leaves a net delay of approximately 18 months and eight days for the purposes of the first application and 21 months and six days for the second.

C. The Rescheduled Judicial Pre-Trial

[25] As noted earlier, a JPT was scheduled to take place on November 16, 2016. On November 9, 2016, the parties were notified by the trial coordinator that the judge who was to hear the JPT, Caldwell J., had a scheduling conflict. As a result, the matter had to be adjourned to November 29, 2016, a period of approximately two weeks.

[26] The trial judge characterized this two-week period as defence delay as it was part of the time between when the Crown was prepared to set trial dates and when trial dates were actually set. The parties agree that he was wrong to do so. They disagree on whether this period should nevertheless be deducted as an exceptional circumstance. The appellant says that it should not. The respondent says that it should. I agree with the respondent.

[27] There is no information in the record as to why the JPT had to be rescheduled other than that Caldwell J. had a scheduling conflict. However, in my view it is reasonable to infer that there was some other matter requiring Caldwell J.’s attention which she determined should be given priority over the JPT in this case. Whether the other matter was of a personal or professional nature is unknown, but in my view it does not matter. Either way, this was not something which the Crown could have foreseen or mitigated.

[28] Although the Crown could not have mitigated this period of delay, the question still remains whether the justice system could have done so. The Supreme Court of Canada’s recent decision in R. v. K.J.M., 2019 SCC 55 is informative on this issue. In that case, there was some delay because a transcript ordered by the trial judge arrived while she was on vacation, so she did not notice that it was incomplete. The Court deducted this period of delay for the following reasons (at para. 102):

But when assessing whether a particular period of delay could reasonably have been mitigated by the Crown or the justice system, we must take into account certain “practical realities” (Jordan, at para. 74). One of those practical realities is that judges sometimes take vacations. They are not chained to their desks. While the error could have been caught and remedied had the trial judge taken no vacation and instead monitored her inbox, in my view this is not a reasonable expectation. Accordingly, this was a period of delay that could not reasonably have been mitigated by the justice system.

[29] It is similarly a “practical reality” that matters sometimes arise in the professional or personal life of a judge that requires her attention and may prevent her from attending to a previously scheduled matter. As a result, in my view this 13-day period must be deducted as an exceptional circumstance.

[30] This leaves a net delay of about 17 months and 25 days with respect to the first application and 20 months and 23 days for the second.

D. Conclusion Respecting the First Application

[31] Even if the trial had ended when it was initially anticipated to do so on September 15, 2017, the net delay would have been below the ceiling. As a result, the trial judge did not err in dismissing the first application.

E. The Trial Judge’s Shortening of the Trial

[32] At the time the trial dates were initially set, the parties agreed that the trial would take eight days and scheduled trial time accordingly. The trial judge disagreed with this estimate and unilaterally shortened the trial to five days, such that it was scheduled to be completed by September 15, 2017. As it turned out, counsel were correct and the trial was not completed by that date. As a result, further dates had to be obtained and the matter could not be completed until November 17, 2017, approximately two months later.

[33] There is authority stating that where time estimates made in good faith turn out to be inadequate due to unforeseeable developments during the trial, this constitutes an exceptional circumstance. In R. v. Jurkus, 2018 ONCA 489, 363 C.C.C. (3d) 246, a case where the trial took longer than anticipated, the Court held (at para. 55):

These are precisely the types of discrete events that Jordan contemplated. Trials are not “well-oiled machines” and things can quickly go awry in a way that leads to delay: Jordan, at para. 73. An example given in Jordan, is where a trial goes longer than “reasonably expected”, even where the parties have in good faith attempted to establish realistic timelines. In these circumstances, it is “likely the delay was unavoidable” and will constitute an exceptional circumstance: Jordan, at para. 73.

See also R. v. Antic, 2019 ONCA 160, at para. 8.

[34] The difficulty in this case is that on the one hand, the trial judge’s time estimate was clearly made in good faith, so it could be argued that there is no principled reason to distinguish good faith time estimates by the trial judge from those made by counsel. On the other hand, it could be argued that in this case, counsel did establish realistic timelines and the delay caused by the trial judge’s unilateral decision to shorten them resulted in delay that was completely foreseeable.

[35] In my view, the trial judge ought not to have unilaterally shortened the trial. The trial time estimates had been made by counsel who were familiar with the case, presumably in consultation with the judge who had conducted the JPT. Counsel were in a better position than was the trial judge to accurately estimate the time required for trial.

[36] That said, while Crown counsel questioned the trial judge’s decision, counsel for the appellant made no objection whatsoever. I recognize that he may have simply concluded that the trial judge had already made up his mind, but in my view, there is an obligation on counsel to assert his client’s s. 11(b) rights in circumstances where they appear to be in jeopardy of being infringed. His failure to do so means that the appellant must bear some responsibility for the time estimate that ultimately turned out to be inadequate: R. v. Live Nation Canada Inc., 2016 ONCJ 735, 372 C.R.R. (2d) 210, at para. 24.

[37] In all the circumstances, while I am of the view that the trial judge ought not to have shortened the trial, the resulting delay must nonetheless be treated as an exceptional circumstance. This brings the net delay to 18 months and 23 days.

F. Deliberation Delay

[38] The remaining period at issue is the time during which judgment was reserved between the last day of trial, November 17, 2017, and the date of the verdict, December 15, 2017, a period of just under one month. As it turns out, this is the critical issue on this appeal because if that period does count, the net delay is over the ceiling.

[39] The issue of whether deliberation delay should be counted for the purpose of a s. 11(b) analysis is not settled in Ontario. The issue was expressly left open by the Ontario Court of Appeal in R. v. Shaikh, 2019 ONCA 895, at para. 89, and Ontario (Ministry of Labour) v. Nugent, 2019 ONCA 99, at paras. 20-21. The issue is currently under reserve in the Supreme Court of Canada in the appeal from R. v. K.G.K., 2019 MBCA 9, 373 C.C.C. (3d) 1, at paras. 59-128, per Hamilton J.A., dissenting, at paras. 188-219, per Cameron J.A. (appeal to S.C.C. heard and reserved on September 25, 2019). Appellate courts have taken conflicting approaches to the issue: R. v. Chang, 2019 ABCA 315, at paras. 57-71; R. v. Rice, 2018 QCCA 198, 44 C.R. (7th) 83, at para. 86; R. v. Brown, 2018 NSCA 62, 364 C.C.C. (3d) 238, at paras. 73-75; R. v. King, 2018 NLCA 66, 369 C.C.C. (3d) 1, at paras. 135-142. See also D. Spencer, “Extending Jordan to Consider Verdict and Sentencing Delays” (2019), 50 C.R. (7th) 30.

[40] Ultimately, I need not decide this issue because in my view, the one-month delay was not in fact deliberation delay. Rather, it was defence delay. On November 17, 2017, after the trial judge indicated that he would not be rendering a decision that day, defence counsel advised the Court that he was commencing a three-week trial the following Monday and asked to have the matter return on December 15, 2017. There is nothing in the record to indicate that the trial judge required a month to deliberate. Rather, defence counsel required the time because of another commitment. In these circumstances, given that the onus of establishing a Charter breach rests with the appellant, I must conclude that this period is defence delay and ought to be deducted. This brings the net delay to 17 months and 23 days, which is below the ceiling.

G. Transitional Exceptional Circumstance

[41] Given my conclusions, it not strictly necessary for me to determine whether the transitional exceptional circumstance applies in this case. I would note, however, that the parties agree that the trial judge’s approach, which appears to have been to ignore Jordan and apply the framework in R. v. Morin, [1992] 1 S.C.R. 771 because some of the delay took place prior to the release of Jordan, was wrong. The Jordan analysis applies in all cases after the decision was released: Jordan, at para. 85. The Morin analysis is only relevant insofar as it allows the court to determine whether the parties reasonably relied on the law as it existed prior to Jordan: K.J.M., at paras. 111-117; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at paras. 68-69; R. v. Picard, 2017 ONCA 692, 137 O.R. (3d) 401, at para. 71. In this case, most of the delay took place after the release of Jordan. This suggests that had the net delay exceeded the ceiling, it would likely not have been justified by the transitional exceptional circumstance: K.J.M., at para. 119.

III. Disposition

[42] The appeal against conviction is dismissed.

Justice P.A. Schreck Released: January 15, 2020.

Footnotes

[1] The appellant has also appealed his sentence and has challenged the six-month mandatory minimum sentence in s. 163.1(4.1)(b) of the Criminal Code on the grounds that it violates s. 12 of the Charter. The parties have agreed to schedule the hearing of the sentence appeal if and when the conviction appeal is dismissed.

[2] An application to have defence counsel’s fees paid by the state, named for the decision in R. v. Rowbotham (1988), 41 C.C.C. (3d) 1 (Ont. C.A.).

[3] An application to challenge a search warrant on constitutional grounds, named for the decision in R. v. Garofoli, [1990] 2 S.C.R. 1421.

[4] Transcript, vol. II, p. 70, ll. 18-22.

[5] Transcript, vol. II, p.72, ll.18-33.

[6] Transcript, vol. III, p.233, ll.12-29.