COURT FILE NO.: CR 1061/19
DATE: 2020-08-19
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
J.K.
Applicant/Accused
and
F.S.
Accused
K. Ludgate, for the Respondent
M. Venturi, for the Applicant, J.K.
HEARD at Sudbury: August 6, 2020
DECISION ON DELAY APPLICATION
A.D. Kurke, J.
Overview
[1] The applicant and F.S. were jointly charged October 2, 2017 on an information with various offences in relation to events from August 1, 2017. The applicant was arrested on these charges on April 26, 2018, almost seven months later. He was committed to trial May 24, 2019 on his second preliminary inquiry date. F.S. was finally arrested on these charges May 29, 2019. A direct indictment charging the applicant and F.S. jointly was sought by the Crown, and signed September 12, 2019. A pre-trial in the Superior Court was set for the applicant alone for July 8, 2019 but was held two weeks later after applicant’s counsel did not attend the first date, and ultimately a further one was conducted for both accused persons on November 18, 2019. Trial dates were set in December 2019 for October 2020, originally to conclude on October 23, but then on October 27, 2020 because of scheduling issues for applicant’s counsel.
[2] Three years and 25 days will have passed from the swearing of the information to the conclusion of trial. The applicant complains that this exceeds the 30-month ceiling for delay under s. 11(b) of the Charter, and he requests as remedy a stay of proceedings pursuant to s. 24(1). The Crown respondent argues that with a proper accounting of deductions from that total period of delay, the net delay will not exceed the 30-month ceiling, and the case should be permitted to proceed to its conclusion at trial.
[3] No evidence of actual prejudice has been advanced by the applicant, who is not seeking a remedy if this court determines that the delay is less than 30 months. F.S. did not take part in the application. Although I was involved in pre-trying this matter, the parties confirmed that they had no issue with my hearing this application.
[4] For the following reasons, the application is dismissed.
Section 11(b) of the Charter
[5] The decision in R. v. Jordan, 2016 SCC 27, has provided a framework for the determination of unreasonable delay. Matters tried in the Superior Court can survive up to 30 months of delay to the conclusion of the 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 it. If the Crown cannot do so, a stay of proceedings will follow. To achieve a stay below the ceiling, the defence has the burden of showing that the net delay was unreasonable, even though the ceiling was not surpassed: R. v. Jordan, 2016 SCC 27, at paras. 5, 46-49, 68; R. v. McManus, 2017 ONCA 188, at paras. 21-22.
[6] Subtractions are made from the total delay to yield net delay. Time periods waived by an accused and periods of delay caused solely by the conduct of the defence are deducted. 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 court and Crown can create delay attributable to the defence: R v. Albinowski, 2018 ONCA 1084, at paras. 28-33.
[7] Where the presumptive ceiling is exceeded by the net delay, the Crown must show that there were exceptional circumstances in the case, which can include discrete events or complexity. Exceptional circumstances do not need to be rare or uncommon. They are things beyond the Crown’s control as reasonably unforeseen or unavoidable, which result in delays that the Crown cannot remedy through the exercise of reasonable diligence. 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; R. v. Thind, 2018 ONSC 1337, at paras. 75-86.
[8] 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 of 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. There is no claim of complexity in this case.
[9] 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 desire to move the matter along. An accused must show such things as efforts to set earlier dates and notice to the Crown when delay becomes problematic: Jordan, at paras. 48, 82-86.
A major period of time: October 2, 2017 to April 26, 2018
[10] The respondent focuses heavily on the time that passed between October 2, 2017, when the information was sworn, and April 26, 2018, when the applicant was arrested. Concerning this period, the respondent makes two arguments. Either this period should not be counted at all towards the 30-month ceiling because it is pre-charge delay, or alternatively, some portion of it should be deducted on the basis that the 30-month ceiling has been exceeded, and some of the time was “exceptional” in the circumstances.
Does this period involve an exceptional circumstance?
[11] I will briefly address the alternative argument, in order to reject it.
[12] The investigator in this case interviewed the complainant in August 2017 and formed grounds to arrest the applicant. He attended at the applicant’s residence on three occasions in September 2017, in attempts to find him, and left a voicemail message for him, asking him to contact police who wanted to speak with him. The complainant advised the officer that he had heard that the applicant, whom he knew from work, was avoiding police and residing with his mother, but he did not know where the applicant’s mother lived. The police data system offered no further information about police involvement with the applicant and provided no further clues. Accordingly, on September 22, 2017, the officer requested that an arrest warrant be prepared and entered onto the police system, as he could not locate the applicant. There is no evidence of further active efforts made by police to locate the applicant until his arrest.
[13] In my view, it would strain the definition of “exceptional circumstances” to find that the efforts in this case sufficed to demonstrate that the delay between the swearing of the information and the arrest of the applicant was unavoidable or irremediable. The complainant knew the applicant from their workplace, yet there is no indication that police attended the workplace to search out leads to the applicant’s whereabouts. There is no evidence that the applicant was actually trying to avoid police. Nevertheless, the investigator could have made an internet search involving the name of the applicant, in hopes of finding the applicant’s mother, who might, after all, share his surname. Such evidence as there is does not demonstrate reasonable diligence to locate the applicant.
When does the s. 11(b) clock start running?
Positions of the parties
[14] The respondent’s principal argument for this period of time is that s. 11(b) of the Charter protects those who are “charged” with offences. It is the respondent’s submission that the applicant was not actually “charged” with any offences until his arrest on the charges in the information that was sworn months earlier. The applicant argues that a person is “charged” from the point that a criminal information is sworn against him, regardless of when he is subject to compulsion to attend court to answer to the charge.
[15] In my view, the delay clock started to run on April 26, 2018, when the applicant was arrested pursuant to the information that had been sworn October 2, 2017.
Discussion
[16] In Jordan, the Supreme Court set out a test for calculating at what point the delay to trial was too long. The presumptive ceiling of 30 months of delay begins to run from “the charge” (Jordan, at paras. 47, 48), and it is clear from the facts of the case that the Court meant the date of the swearing of the information, as the accused had been arrested at some time prior to that date. Does the date a person is “charged” necessarily imply the date of the swearing of the criminal information?
[17] A consideration of this question begins with a review of the most important interests protected by the s. 11(b) right, those relating to the accused. In R. v. Jordan, 2016 SCC 27, at para. 20, the Supreme Court spoke of those interests in some detail:
Trials within a reasonable time are an essential part of our criminal justice system's commitment to treating presumptively innocent accused persons in a manner that protects their interests in liberty, security of the person, and a fair trial. Liberty is engaged because a timely trial means an accused person will spend as little time as possible held in pre-trial custody or living in the community under release conditions. Security of the person is impacted because a long-delayed trial means prolonging the stress, anxiety, and stigma an accused may suffer. Fair trial interests are affected because the longer a trial is delayed, the more likely it is that some accused will be prejudiced in mounting a defence, owing to faded memories, unavailability of witnesses, or lost or degraded evidence.
[18] Central concerns in this bundle of interests include the hardship occasioned by pre-trial custody or the restrictive effects of terms of release on bail. Delay to trial also involves increased stress, anxiety, and stigma experienced by an accused person. These interests necessarily imply that an accused person is aware of the existence of charges, and pre-trial custody or release on conditions of bail. Additionally, as the time to trial increases, so too does the possibility of an impaired ability to defend oneself, given the loss or degradation of evidence.
[19] The Jordan Court, however, recognized that there were also accused persons who did not want a speedy trial and would embrace delay, if the consequence was the staying of their charges to remedy a right which they only valued in its breach. The Court therefore stated that “[s]ection 11(b) was not intended to be a sword to frustrate the ends of justice”: Jordan, at para. 21.
[20] In the early s. 11(b) decision of R. v. Carter, 1986 CanLII 18 (SCC), [1986] 1 S.C.R. 981, at 985, Lamer J. (as he then was), for a majority of eight members of the Court, defined “charged” as involving “the service of a summons pursuant to the laying of the information,” in a case where information and summons were essentially simultaneous. The laying of the information alone was not sufficient to mean that a person was “charged”. In explaining his disagreement with the decision of the trial judge that “pre-information” delay could inform the assessment of the reasonableness of post-charge delay, Lamer J. stated that “prior to the charge, the liberty of the individual will not be subject to restraint nor will he or she stand accused before the community of committing a crime” and, accordingly, the interests protected by the s. 11(b) right were not implicated (at 985-986). Such interests as these require that an accused person be aware of the charges and subject to pre-trial detention or a bail order and public knowledge of the charges.
[21] R. v. Kalanj, 1989 CanLII 63 (SCC), [1989] 1 S.C.R. 1594, involved accused persons who were arrested months in advance of the laying of the criminal information, and were subject to personal trauma and public ignominy as a result of their arrests. Based on this, the trial judge found a breach of the s. 11(b) right. The Court of Appeal overturned that finding and was upheld by the Supreme Court. For a majority of three judges in the Supreme Court, McIntyre J. held that a person was charged with an offence within the meaning of s. 11 of the Charter when “an information is sworn alleging an offence against him, or where a direct indictment is laid against him when no information is sworn” (at 1607). The applicant relies heavily on this decision to underpin his argument that the clock in this case started running October 2, 2017.
[22] However, it must be borne in mind that the focus of argument in Kalanj in the Supreme Court was whether a person could be considered “charged” at the time of arrest and prior to the swearing of an information. Given the facts of the case, McIntyre J. not surprisingly relied on what must have been considered the most important detail in Carter, the swearing of the information. McIntyre J. adapted to his own context the ruling of Lamer J. in Carter, which he construed as follows (at 1607):
In Carter, Lamer J., with the agreement of seven judges who heard the case, clearly stated that an accused was charged upon the swearing of the information, and Carter supports the view that the pre-charge delay is not a factor for consideration under s. 11(b).
[23] The explanation of the decision in Carter advanced by McIntyre J. in Kalanj was not, in fact, the complete position of the eight-judge majority in Carter, which had required both the laying of the information and the service of the summons pursuant to the information in order to render a person “charged.” In my view, the ratio in Kalanj should be restricted to the case where arrest precedes the laying of the criminal information, which also accounts for McIntyre J.’s ruling (at 1608) that “[p]re-information delay will not be a factor” for the s. 11(b) right.
[24] Given the similarity of its factual background to that in Kalanj, the Jordan Court’s holding, based on arrest preceding formal charge, that the assessment of delay begins from the date of the “charge,” does not assist in defining what that means in a context where the charging document precedes arrest (see also R. v. Millar, 2019 BCCA 298, at paras. 51-61, 78-80).
[25] The logic of starting the Jordan clock only from the point at which an accused has been made aware of the charges was considered again in R. v. Magiri, 2017 ONSC 2818. In that case, the accused provided warranted samples of his DNA to police after a criminal complaint had been made concerning a sexual assault. The accused left Canada in February 2014 for Kenya. After his DNA samples were analyzed, a criminal information was sworn against him March 28, 2014. The accused was arrested on his return to Canada on January 30, 2015.
[26] In the course of dismissing the accused’s s. 11(b) application, McWatt J. held that the time for consideration of a s. 11(b) claim ran from the date of arrest. In her view, interests protected by s. 11(b) required the accused person’s knowledge that he was charged, or the reality of being subjected to conditions deriving from the existence of a charging document. As McWatt J. explained (Magiri, at para. 9):
The interests described in Jordan, however, are not engaged when the accused is unaware of the criminal charges he faces. The accused is not held in pre-trial custody or forced to live under stringent bail conditions. The accused suffers no stress or anxiety and perceives no stigma. When evidence is physical and non-perishable, the passage of time does not cause prejudice to fair trial interests.
[27] Shortly after Magiri, Coroza J. (as he then was) revisited the issue in R. v. Thind, 2018 ONSC 1337, in which an information charging perjury was sworn against the accused on March 12, 2013, but he was only arrested January 8, 2016 upon his return to Canada from Australia. The Crown argued that the latter date was the date on which the accused was “charged” for a consideration of the s. 11(b) right. Coroza J. did not follow the reasoning in Magiri, instead accepting the accused’s argument that Kalanj had established the operative starting point as the date of the swearing of the information. In so finding, Coroza J. pointed out that the ruling in Kalanj had been repeatedly followed, including by the Ontario Court of Appeal in R. v. E.(K.), 2013 ONCA 175.
[28] E.(K.) was similar to Kalanj in that it involved an accused who had been arrested long prior to the date he was formally served with a Record of Disciplinary Proceedings, the charging document in military proceedings. Relying on Kalanj, the Ontario Court of Appeal focused on the date of swearing of the charging document (E.(K.), at para. 20):
It is well-settled that a person is "charged with an offence" within s. 11, thus s. 11(b) of the Charter, when an information is sworn alleging an offence against him or her: R. v. Kalanj, 1989 CanLII 63 (SCC), [1989] 1 S.C.R. 1594, at p. 1607. Time reckoning for the purposes of claims of infringement of the right to be tried within a reasonable time commences with the laying of the information and continues until the completion of the trial.
[29] Respectfully, on the facts in the present case I decline to follow the reasoning of Coroza J. in Thind. I am unable to find that the decision in Kalanj can stand for the proposition for which it is advanced, as it goes against the clear holding of a larger majority of the Supreme Court in Carter and involves different circumstances than those in the earlier case. I find that E.(K.), like Kalanj, reflects a situation where arrest preceded written charge. In my view, the Court of Appeal in E.(K.) reaffirmed the holding in Kalanj that the s. 11(b) clock in such circumstances only starts to run from the date that the charging document completes the charging process that had begun with the arrest of the accused. In other words, those cases relate to a situation where arrest precedes the swearing of the criminal information.
[30] Where, as here, the swearing of the criminal information precedes the arrest, the actual holding in Carter governs. The delay clock begins to run when a charging document is sworn and the charges are made known to an accused person through arrest or summons, at which point the prejudicial effects to an accused person’s liberty and security of the person from the outstanding charges begin to be felt.
[31] In sum, the law concerning delay requires the preparation of a charging document as a necessary, but not a sufficient, precondition for the s. 11(b) clock to start running. It is also essential that the accused know that he or she has been charged, through the medium of arrest, or service of a summons, or some other means, with the result that the effects of being charged are felt by the accused. Where, as here, there is no evidence that the applicant was aware that he was facing charges until his actual arrest close to seven months after the laying of the criminal information, no legitimate purpose is served by starting the s. 11(b) clock with the information. Indeed, to do so would simply encourage those persons who would seek to convert the s. 11(b) shield into a sword to conceal themselves for as long as possible, to improve the odds of a remedy for breach of the s. 11(b) right.
[32] No argument has been made in this case that the applicant’s ability to defend himself has been in any way adversely affected by the passage of time. However, that issue has been important in discussions about delay, and should be considered. If the starting point for the delay clock involves the arrest or summons of an accused after the swearing of a charging document, as in this case, what protects such an accused from some impairment of his ability to defend himself as a result of the passage of time between information and arrest?
[33] First, it is well established that any prejudice to the accused’s ability to defend himself against the charges based on delay in charging him is justiciable pursuant to ss. 7 and 11(d) of the Charter, subject to a showing that the delay has had an adverse effect on trial fairness: see R. v. L.(W.K.), 1991 CanLII 54 (SCC), [1991] 1 S.C.R. 1091, at para. 25.
[34] Second, the Jordan framework accounts for such prejudice arising in this scenario in two ways. Of course, once the delay reaches the 30-month mark from the date of arrest, the delay is deemed to be presumptively unreasonable. If the time from arrest to trial in the Superior Court is less than 30 months, an accused nevertheless can seek the s. 11(b) remedy, but must demonstrate that he or she worked to move the case along, to minimize the prejudice occasioned by delay: Jordan, at paras. 84-86. As will be set out below, in this case it was the view of applicant’s counsel in the Ontario Court of Justice that the delay clock only commenced on the arrest of the applicant. Although delay was specifically not waived when the first preliminary inquiry date was lost, applicant’s counsel did not express any particular urgency in seeing the case advance, which tells against a desire to move the case to trial and minimize the prejudicial impact of delay.
[35] I find that the period of delay under consideration in this application only began to run on April 26, 2018, with the arrest of the applicant on the information sworn in October 2017.
Delays with respect to the applicant’s preliminary inquiry
January 18, 2019 to February 15, 2019
[36] On August 8, 2018, the parties were in the Ontario Court of Justice to set a date for the applicant’s preliminary inquiry. The trial coordinator offered January 18, 2019, which date was accepted by the Crown but declined by the agent for defence counsel, as counsel was scheduled to be in North Bay at that time. The next date that was offered by the court, February 15, 2019, was acceptable to both Crown and defence and was set.
[37] The Crown and the court were prepared to proceed on January 18, 2019, but the defence was not. The period of four weeks from that date to February 15, 2019 must accordingly be deducted as defence delay.
February 15, 2019 to May 24, 2019
Positions of the parties
[38] The respondent argues that this period of delay, from the first date set for the preliminary inquiry to the second date, should be deducted from the total delay. On the respondent’s argument, the delay of the preliminary inquiry was a discrete exceptional circumstance, caused by the Crown’s inability to meet with the complainant and prepare him ahead of time for the hearing. Moreover, that delay would have been shorter still, but for the defence refusal of new dates of May 2 or May 9, 2019 for the preliminary inquiry, when the court and Crown were available. The applicant submits that the loss of the first preliminary inquiry date was regrettable, but avoidable, and therefore not exceptional, and that it would be unreasonable to require the defence to have been available for the May 2 and May 9 dates.
[39] For the following reasons, I reject the respondent’s argument and find that this period of delay should not be deducted from the total delay.
Facts
[40] On January 8, 2019, a confirmation hearing was held in preparation for the preliminary inquiry. The Crown who was in court confirmed that all witnesses necessary for the day-long preliminary inquiry had been served with subpoenas.
[41] February 15, 2019 was the date set for the preliminary inquiry. The presiding judge announced early on that the court would have a foreshortened hearing day, as work had to be done on courtroom electronics. The court would be closed between noon and 2 p.m.
[42] The Crown advised the court that he had only seen the complainant, the sole witness required for the preliminary inquiry, that very morning just before court began. The Crown’s office had attempted to contact the complainant for a preparation meeting prior to the preliminary inquiry, but “we may have had the wrong number.” Fortunately, the witness had attended in answer to his subpoena, but the Crown stated that he needed time for the witness to review statements that he had given to police. In the interim, the court went on to deal with another matter on the docket.
[43] It rapidly became apparent that the witness would not complete his review of his statements before noon, so the matter was stood down to 2 p.m. The Crown raised concerns about delay if the matter was not completed that day. After the lunch recess, the Crown readdressed the matter, and advised the judge that a new preliminary inquiry date of May 24, 2019 had been secured. The matter could not have been completed on February 15, given the 2 p.m. start, so it was better to seek a new date rather than a continuation date. May 2 and May 9 had been offered, “which understandably, [counsel for the applicant] was not available for.”
[44] The Crown’s concern about delay was allayed somewhat by relatively early dates for the preliminary inquiry. The Crown also advised the court that one other factor that reduced the concern about delay was the view shared with him by counsel for the applicant that the Jordan clock did not start running until April 2018, rather than October 2017, as a result of the April 2018 arrest date. Defence counsel did not counter or qualify this explanation offered by the Crown. He did state that although the applicant was not waiving the delay, counsel understood the Crown’s difficulty, and he continued that “I don’t foresee a delay being an issue.”
[45] The preliminary inquiry was held and completed on May 24, 2019.
Discussion
[46] In para. 49 of its factum, the respondent bases its argument about exceptional circumstances on the Crown’s inadvertent oversight concerning the complainant’s contact information, and states that “mistakes happen.” In the respondent’s view, the Crown made reasonable efforts to remediate the situation. Moreover, the respondent asserts that the delay between May 2, 2019 and May 24, 2019 should be allocated to the defence, as the Crown and the court were available, but the defence was not.
[47] I do not accept that any delay between February 15, 2019 and May 24, 2019, should be attributed to the defence.
[48] At the confirmation hearing on January 8, 2019, the Crown indicated that it was ready to proceed, and that witnesses had been subpoenaed. That was the date on which to raise with the court any difficulties that the Crown had had in contacting the complainant, as that could, and in the result did, affect the Crown’s ability to proceed with the case on February 15, 2019. Such acknowledgment is the very purpose of confirmation hearings, as it permits the reallocation of time lost on one proceeding to another one. Moreover, it is difficult to understand how police were able to serve the complainant with a subpoena, but the complainant could not be found to set up a preparation interview. Mistakes do happen, to everyone, but mistakes such as this are avoidable, and cannot detract from the applicant’s ability to rely on this delay in seeking to vindicate his s. 11(b) right.
[49] Nor can the defence be found responsible for the delay between May 2, 2019 and May 24, 2019. On February 15, 2019, the Crown acknowledged that it was “understandable” that defence counsel was not available on May 2 or May 9. That position properly reflects the view that it is not reasonable to expect that defence counsel can always clear their calendars on short notice to reduce delay that is accruing in proceedings against their clients. As put by the Supreme Court of Canada in R. v. Godin, 2009 SCC 26, at para. 23:
Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability.
Superior Court pre-trial and direct indictment: June 18 to November 18, 2019
Positions of the Parties
[50] The respondent seeks to deduct as defence delay two two-week periods: July 8 to 22, 2019 and September 3 to 17, 2019. These periods of time were lost when counsel for the applicant failed to attend a judicial pre-trial in the Superior Court, and when the matter was adjourned on consent to await the filing of the direct joint indictment for the applicant and F.S. in this matter. The applicant argues that those periods of time should not be deducted as defence delay, since those delays were necessary in any event, because of the Crown’s decision to seek a direct joint indictment.
[51] In my view, no delay between June 18, 2019 and November 18, 2019 can be attributed to the defence.
Facts
[52] On June 18, 2019, a Superior Court pre-trial date of July 8, 2019 was confirmed by the parties. On the same June date, the Crown advised that F.S. had been arrested after the applicant had been committed to trial following his preliminary inquiry. The Crown indicated that it would be seeking a direct indictment for her.
[53] Applicant’s counsel did not appear for the July 8, 2019 judicial pre-trial because he was for some reason not aware of the date. The matter was adjourned to July 16 to set a new date, and from there to July 22, 2019 for the pre-trial. The pre-trial was held on that date, but the indictment was endorsed (by me) as follows:
“Initial Superior Court pre-trial held. Another will be required when and if co-accused Ms. Sutherland is added by anticipated direct indictment. Matter to August 20, 2019 Assignment Court, to be spoken to.”
[54] The Crown explained that there would not be a decision on the direct indictment until the end of August. From August 20, 2019, the matter was therefore adjourned to September 3, 2019 “to have a joint indictment before the court and attempt to set a date for joint Superior Court pre-trial,” according to the endorsement on that date.
[55] From September 3, 2019, the Crown “suggested” that the matter go over two further weeks, as the parties were still awaiting the direct joint indictment. Counsel on behalf of the applicant agreed with the Crown’s request, and the matter went to September 17. The direct joint indictment was finally signed September 12, 2019, but it was not yet before the court on September 17, 2019, so the matter was adjourned from there to October 1, 2019.
[56] On October 1, 2019, the matter was set to November 18, 2019 for judicial pre-trial on the joint indictment. That pre-trial was conducted and the matter was returned to court December 3, 2019, to set a date for trial.
Discussion
[57] 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. The Crown’s right to conduct a joint prosecution must be in the interests of justice and must account for the s. 11(b) rights of the accused persons: R. v. Manasseri, at para. 373. Jordan does not require a separate prosecution of persons who are jointly charged to ensure the speediest possible trial: R. v. Boghassian, 2019 ONCA 169, at para. 22. However, the Crown must consider whether trying multiple accused persons together will “unduly complicate a proceeding,” and thereby violate an accused’s s. 11(b) rights by holding one accused hostage to delays relating to the other: Jordan, at para. 79; Gopie, at para. 171.
[58] Such considerations must naturally apply to Crown decisions to seek a direct indictment that jointly charges two accused persons, during criminal proceedings that have already advanced against one accused, as here. In such circumstances, attention must not only be focused on the recently-apprehended accused, but also on the accused who has already undergone the normal criminal process in the Ontario Court of Justice.
[59] In this case, the Crown was already expressing concern in February 2019 about delay in the proceedings in the context of the need to adjourn the preliminary inquiry to permit witness preparation. On June 18, 2019, after the applicant’s preliminary inquiry, the Crown announced its intention to seek a direct indictment involving F.S. and the applicant.
[60] Had it not been for the Crown decision to directly indict F.S. along with the applicant, the applicant’s Superior Court pre-trial would have been completed July 22, 2019, and two weeks of delay, from July 8 to July 22 would have been attributed to the defence, as applicant’s counsel had missed the July 8 pre-trial. But in the result the applicant’s pre-trial on July 22, 2019 served no real purpose once the Crown chose to proceed with a direct joint indictment, and a further pre-trial with both accused persons had to be held anyway.
[61] In the context of the already-recognized delay in the applicant’s case, the further delay in waiting for the direct indictment and a joint pre-trial must be held to overtake any individual minor delays caused by or agreed to by the defence during this period. The agreement by the defence to the adjournment from September 3 to September 17, 2019, an adjournment requested by the Crown to await the direct indictment, was nothing other than an “acquiescence to the inevitable” (R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, at para. 38), and not attributable to the defence.
[62] The overarching decision at play during this period was the choice to directly indict F.S. on an indictment with the applicant. In that context, the two two-week periods focused on by the respondent as somehow attributable to the defence are subsumed in delay that was caused by a Crown tactical decision. While the decision to seek a direct indictment of F.S. was no doubt an effort to ensure that the entire matter was dealt with conclusively in a single trial, it resulted in months of delay before a joint Superior Court pre-trial could be held. That delay is the Crown’s.
A later end date for the trial: October 23 to 27, 2020
[63] On December 6, 2019, October 19 to 23, 2020 were confirmed by all parties as trial dates for a judge-alone trial for both accused persons. In court on December 17, 2019, counsel on behalf of the applicant indicated that trial counsel was no longer available October 22 and 23, 2020, so the final two trial dates were adjourned to October 26 and 27, 2020.
[64] Those four days of delay (October 23, 2020 until October 27, 2020) are attributable to the applicant, whose counsel’s unavailability caused them.
Conclusion
[65] The operative total delay in this case is between April 26, 2018 and October 27, 2020, a period of 30 months and one day. From that figure must be deducted four weeks and four days that are attributable to the accused/applicant. It is therefore apparent that the net delay in this case stands at less than 30 months.
[66] The applicant has made no argument for a s. 11(b) violation below the 30-month ceiling, and the evidence at this hearing does not support any such violation.
[67] For these reasons, the application is dismissed.
The Honourable Mr. Justice Alexander D. Kurke
Released: August 19, 2020
COURT FILE NO.: CR 1061/19
DATE: 2020-08-19
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
J.K Applicant/Accused
and
F.S. Accused
DECISION ON DELAY APPLICATION
A.D. Kurke, J.
Released: August 19, 2020