COURT FILE NO.: 0005/19
DATE: 20200902
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
MARK BROWNE
Applicant
Lisa Jacek for the Respondent
Hilary Dudding for the Applicant
HEARD: August 28, 2020
Ruling on Application to Stay Proceedings for Delay
MacDonnell, J
[1] On November 6, 2017 the applicant was charged with aggravated sexual assault, sexual assault with a weapon, and assault. All three offences are alleged to arise from an incident in the residence of the complainant on July 31, 2017. The applicant’s trial before a court composed of judge and jury is scheduled to commence on September 14, 2020 and is expected to conclude on October 2, 2020.
[2] The time that will have elapsed between the date on which the applicant was charged and the anticipated end of his trial will be 34 months and 26 days. The applicant concedes that almost 3 months of the delay – 89 days – was caused by the defence. However, he submits, the remaining delay of 31 months and 27 days is presumptively unreasonable, the Crown cannot justify it on the basis of exceptional circumstances, and to proceed with the trial will infringe his right under s. 11(b) of the Canadian Charter of Rights and Freedoms to be tried within a reasonable time. Accordingly, he applies under s. 24(1) of the Charter for an order staying the proceedings.
[3] For the reasons that follow I am not persuaded that the applicant has established an infringement of his right to be tried within a reasonable time and the application for a stay of proceedings is dismissed.
I. History of the Proceedings
Ontario Court of Justice
[4] On November 6, 2017 an information was sworn charging the applicant with the offences before the court and he made his first appearance in bail court. He was assisted by duty counsel and on consent he was released on a $2000 surety bail with conditions. The matter was then adjourned to November 23.
[5] On November 23, 2017 the applicant was provided with initial disclosure. Some of the disclosure was withheld because, due to its sensitive nature, its release required a signed undertaking from counsel and the applicant had not yet retained counsel. Duty counsel advised the court that the applicant was going to be making a Legal Aid application and he requested a six-week adjournment, to January 9, 2018.
[6] On January 9, 2018 the court received a message from counsel, Mr. Vecchiarelli, indicating that he had been in touch with the applicant, that he had been retained and that he had disclosure. He further indicated that he could not come to court that day as he had injured his knee. He asked that the matter be put over for two weeks, to January 23. He said that in the interim he would set up a Crown pretrial.
[7] On January 23, 2018 Mr. Vecchiarelli appeared for the applicant. He advised the court that he was “not fully, but somewhat retained”, that the applicant “has provided me with his disclosure recently, and I am still reviewing it”, and that “I intend on conducting a Crown pretrial.” The Crown indicated that there were three packages of disclosure available, one of which was the disclosure that required counsel’s signed undertaking. Mr. Vecchiarelli asked that the matter return on February 23. That date was not convenient to the Crown, and so Mr. Vecchiarelli suggested that the matter return on March 5. The Crown consented to that request.
[8] On March 5, 2018 Mr. Vecchiarelli did not attend court. Duty counsel advised that he had received a message from Mr. Vecchiarelli asking that the matter be adjourned to March 22. The message did not indicate why Mr. Vecchiarelli was not in attendance, nor did it indicate why a 2½-week adjournment was being requested. Crown counsel advised the court that a Crown pretrial was scheduled for March 7. The presiding justice of the peace was concerned about the lack of progress in the case and directed that it be returnable before a judge, rather than a justice of the peace, on March 12.
[9] On March 12, 2018 Mr. Vecchiarelli did not attend court. He sent an agent (a non-lawyer) in his stead. The agent advised the presiding judge: “I don’t know why it was put in here, I don’t know why it’s here today.” He indicated that there was a Crown pretrial scheduled for April 3, and he asked for an adjournment to April 9. That request was granted without objection.
[10] On April 3, 2018 a Crown pretrial was conducted. At the conclusion of the pretrial, Crown counsel sent an email to Mr. Vecchiarelli to confirm what had occurred that day. The email stated, in part: “We agreed that disclosure is substantially complete and that we are in a position to set a 6 hour Preliminary Inquiry. The only Crown witness will be the complainant… We also agreed to adjourn this for a couple of weeks in order for the Crown to canvass police availability and for you to speak to your client.” [emphasis added]
[11] On April 9, 2018 Mr. Vecchiarelli did not attend court due to a child care issue. He sent a message requesting that the matter go over one day to April 10. On April 10 Mr. Vecchiarelli attended. Crown counsel (not the counsel assigned to the case) advised that he had “a bunch of further disclosure to provide”. Contrary to what was set forth in the Crown’s April 3 email, Mr. Vecchiarelli stated that the assigned Crown had “indicated that we should adjourn one more time, for me to review the new disclosure, because there’s further disclosure… I don’t know if the complainant was going to be heard from [at the preliminary inquiry].” Mr. Vecchiarelli asked for an adjournment to April 24.
[12] The applicant had not appeared in court in person since his first appearance out of custody on November 23, 2017. Mr. Vecchiarelli had been promising to file a designation of counsel since January 23, but as of April 10 he still had not done so. Jurisdiction over the applicant had been maintained with a series of discretionary bench warrants. On April 10, Mr. Vecchiarelli advised the court that he had not yet filed a designation because “I just haven’t had an opportunity to meet up with [the applicant] to acquire a signature from him. But I’m always in contact with Mr. Browne, he works and lives in Toronto, so there’s no issue with that.” [emphasis added]
[13] On April 24, 2018 Mr. Vecchiarelli attended court and advised “I am still in the process of reviewing the disclosure and meeting with my client.” Crown counsel reminded Mr. Vecchiarelli that the Crown was ready to set a date for a six-hour preliminary inquiry. Mr. Vecchiarelli stated that he was “not in a position just yet to set that”. He requested an adjournment to May 14. He agreed to waive the delay occasioned by the adjournment. The presiding justice of the peace inquired as to whether Mr. Vecchiarelli had filed a designation. Mr. Vecchiarelli confirmed that he had not done so. He said that it was “my fault, the last time I met up with him I forgot to get it signed”.
[14] On May 14, 2018 neither the applicant nor Mr. Vecchiarelli attended court. Duty counsel advised that Mr. Vecchiarelli was requesting that the matter be put over for one day and that he was promising to file a designation then. On May 15, Mr. Vecchiarelli did not attend court. No explanation was offered, either then or subsequently, for his non-attendance. The message he had sent to duty counsel was a request for an adjournment to May 22. Duty counsel was now in possession of the long-promised designation of counsel, but because counsel named in the designation, Mr. Vecchiarelli, was not present, the discretionary bench warrant was extended.
[15] On May 22, 2018 Mr. Vecchiarelli did attend court in the morning but there was some difficulty locating the information and Mr. Vecchiarelli departed before the information was found. He left instructions with duty counsel to have the matter adjourned for two weeks, to June 5. No explanation was provided as to the need for a further adjournment.
[16] On June 5, 2018, Mr. Vecchiarelli did not attend court. Once again, no explanation was provided for his non-attendance. He had sent duty counsel a message suggesting an adjournment to June 11, at which time, he indicated, a date for the preliminary inquiry could be set.
[17] On June 11, 2018 Mr. Vecchiarelli did appear. In the course of the proceedings he advised the court:
My friend and I attended at the trial coordinator’s office, where we’re looking at setting a one-day preliminary hearing date. I can indicate that I was not – there were some dates offered in October, November, where I was not available. There was also some dates in November where the Crown was not available. In any event, there was a date offered in December, which I was agreeable to. However, in fairness to my friend, I understand that Ms. Jacek’s [the assigned Crown] schedule is quite loaded up and they wanted to canvass with Ms Jacek first before we set that date, whether she would be available in the December date… But in the meantime, myself, my friend’s office and the trial coordinator will correspond by way of email to hammer out a final date for a one-day preliminary inquiry and we should have an answer by July 3. [emphasis added]
[18] On July 3, 2018 Mr. Vecchiarelli failed to appear in court. He had provided duty counsel with a message advising that his non-attendance was due to “personal issues”. He asked that the matter be adjourned one day. Crown counsel was not available for the following day and so the matter was adjourned one week to July 10.
[19] On July 10, 2018 Mr. Vecchiarelli and Ms Jacek attended to set the date for the preliminary inquiry. Due to some delay in acquiring the trial verification form, both counsel had to leave before the date was actually set. They agreed to have another Crown put the date on record in their absence once the form arrived. Before leaving, Mr. Vecchiarelli stated that he and Ms. Jacek had been canvassing December dates because “I am in a long trial between the months of September to November”. Later in the day the requisite form became available and the date of December 11, 2018 was set. The form confirmed that counsel was not available until December 11, 2018. It is clear from what was said by Mr. Vecchiarelli, both on June 11 and on this occasion, that it was the defence, not the Crown, that was not available until December 11. This was confirmed by Crown counsel, who advised the presiding justice: “We were – Crown was ready to proceed and had dates all throughout the fall. It’s a one-witness preliminary inquiry.”
[20] On December 11, 2018 the preliminary inquiry was conducted and the applicant was committed for trial. He was then remanded to appear in the Superior Court of Justice on January 25, 2019 for a judicial pretrial (JPT).
Superior Court of Justice
[21] On January 25, 2019 Mr. Vecchiarelli attended before Justice Dunnet in the Toronto Superior Court Practice Court and advised that the defence had cancelled the JPT that was scheduled for that morning due to “retainer issues”. He requested an adjournment to February 19 “to sort that out” with the applicant. Crown counsel raised the issue of s. 11(b) of the Charter. Mr. Vecchiarelli responded: “From now until that period, it’s my request. There’s no issue with 11(b) for that period.”
[22] On February 19, 2019 the applicant appeared before Justice A. O’Marra but Mr. Vecchiarelli did not. Crown counsel advised the court that Mr. Vecchiarelli had requested a further three-week adjournment and that Mr. Vecchiarelli was waiving s. 11(b) for that period. Justice O’Marra had the applicant personally confirm the waiver. The matter was then adjourned to March 8.
[23] On March 8, the applicant and Ms. Jacek appeared before Justice B. O’Marra. Ms Jacek advised the court of what had transpired on January 25 and February 19, and then stated: “I’m notified by Mr. Vecchiarelli that he will not be representing Mr. Browne any further and it’s my understanding from him that Mr. Browne would like to make a legal aid application.” The applicant interjected: “I’ve already actually made the legal aid application and I have been accepted for the certificate… I just received the notice for my certificate late last night…” As the applicant had not yet found new counsel, the matter was adjourned for two weeks, to March 22, to give him the opportunity to do so.
[24] On March 22, 2019, Solange Davis-Ramlochan appeared before Justice Forestell as agent for the applicant’s new counsel, Hilary Dudding. A JPT date was not set on this occasion because the Crown did not have Ms Jacek’s availability and because the defence required time to get up to speed. Ms. Davis-Ramlochan advised Justice Forestell:
In any event, Your Honour, counsel is just recently retained. She has had Mr. Browne sign off on an authorization so that she can get disclosure from his previous counsel, so she’ll be doing that very shortly, and I guess she can get in touch with the assigned Crown and they can hopefully schedule a judicial pretrial before the next court appearance.
[25] Justice Forestell asked: “So when do you want it to go to?” Ms. Davis-Ramlochan replied: “April 10, please.”
[26] On April 10, the matter came before Justice Dambrot. Counsel appearing as agent for Ms. Dudding advised Justice Dambrot that Ms. Dudding and Ms Jacek had scheduled a JPT for May 17.
[27] On May 17, 2019, following the completion of the JPT, a trial date of September 14, 2020 was set. The first date that the Court had been able to offer was May 11, 2020. The defence was available on that date but the Crown was not.
II. Overview of the Applicable Law
[28] In R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada rewrote the analytical framework for the determination of s. 11(b) claims. The central feature of the new framework is a ceiling beyond which delay is presumptively unreasonable. For cases tried in the Superior Court, the ceiling is 30 months from the date on which a defendant is charged to the anticipated end of his or her trial.
[29] A total delay that exceeds the 30-month ceiling does not necessarily trigger the presumption of unreasonableness. Delay that is attributable to the defence is not included in the calculus. Defence delay has two components: (i) delay that was either explicitly or implicitly waived by the defence; or (ii) delay that was caused solely by the conduct of the defence. The latter kind of delay comprises "those situations where the accused's acts either directly caused the delay ... or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial” [emphasis added].[^1] Actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time whether or not the court and the Crown are ready to proceed. Further, defence applications and requests that are not frivolous will generally not count against the defence. In setting the presumptive ceiling, the Supreme Court took into account the delay that preparation for trial and legitimate applications and requests might entail.[^2] It is only if the total delay minus delay attributable to the defence exceeds 30 months that the presumption of unreasonableness is engaged.
[30] If the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness. The only basis upon which the Crown can discharge that burden is the presence of exceptional circumstances.[^3] Exceptional circumstances can arise from discrete events or from the complexity of the case. The period of delay caused by a discrete exceptional event will be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. However, if the court finds that the case was particularly complex, such that the time the case has taken is justified, the delay is reasonable and no further analysis is required with respect to particular time periods.[^4]
[31] If the total delay from the charge to the anticipated end of a Superior Court trial, minus defence delay or a period of delay attributable to exceptional circumstances, exceeds 30 months, and the overall delay is not justified on the base of case complexity, a defendant will not have been brought to trial within a reasonable time, s. 11(b) of the Charter will have been breached, and a stay of proceedings must follow. Neither the seriousness of the charges nor the absence of actual prejudice to the defendant can stand in the way of that result.[^5]
[32] If the total delay from the charge to the anticipated end of the trial, minus defence delay or a period of delay attributable to exceptional circumstances, does not exceed 30 months, the delay may nonetheless be held to be unreasonable. To obtain a stay of proceedings in such a case, however, the defence must establish (i) that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (ii) that the case took markedly longer than it reasonably should have. In the absence of either of those factors an application to stay proceedings for delay must fail.
III. The Positions of the Parties
[33] On behalf of the applicant, Ms Dudding concedes that, for the purpose of deciding whether the 30-month presumptive ceiling has been exceeded, three periods of defence delay must be subtracted from the total delay of almost 35 months. She acknowledges that Mr. Vecchiarelli expressly waived the time between April 24 and May 14, 2018 (20 days); and between January 25 and March 8, 2019 (41 days). She also acknowledges that the time between May 14 and June11, 2018 (28 days) should be characterized as defence delay because the adjournments that caused that delay, which were requested by Mr. Vecchiarelli, do not appear to have been sought for any legitimate reason associated with the applicant’s defence. The total of conceded defence delay, therefore, is 89 days. That would reduce the relevant total delay to 31 months and 27 days. As that amount of delay is above the ceiling for cases tried in the Superior Court, it is presumptively unreasonable, and as the Crown is not seeking to rely on exceptional circumstances a stay of proceedings must be entered.
[34] Ms Dudding further submits that even if the 30-month presumptive ceiling has not been exceeded, the case has taken markedly longer than it reasonably should have and the record reveals a sustained effort by the applicant to expedite the proceedings. Accordingly, Ms Dudding submits, the delay is unreasonable, the applicant’s s. 11(b) right has been breached, and a stay of proceedings must follow.
[35] On behalf of the Crown, Ms. Jacek takes issue with the applicant’s calculation of defence delay. In addition to the periods conceded by the applicant, Ms Jacek submits that four other periods should also be deducted:
(i) January 23 to April 9, 2018 (75 days) – Ms. Jacek submits that as of January 23 sufficient disclosure had been provided to enable the defence to set a date for a preliminary inquiry. She submits that the substantial reason why a date was not set in this time period was Mr. Vecchiarelli’s multiple failures to attend court to deal with the matter.
(ii) July 3 to July 10, 2018 (7 days) – Ms Jacek submits that this delay was necessitated by the non-attendance of Mr. Vecchiarelli on July 3.
(iii) September to December 2018 (90 days) – Ms. Jacek submits that the unavailability of Mr. Vecchiarelli to conduct the preliminary inquiry throughout the fall gave rise to a further 3 months (90 days) of defence delay.
(iv) March 8 to 22, 2019 (14 days) – Ms Jacek submits that this period of time, which was not covered by the waiver that the applicant made on February 19, was defence delay because it was solely for the purpose of enabling the applicant to retain new counsel.
[36] Thus, in addition to the 89 days of defence delay conceded by the applicant, Ms. Jacek submits that a further 186 days should be deducted. This would result in a total deduction of 275 days, or just over 9 months,[^6] and would reduce the relevant part of the overall delay to approximately 26 months. As this would fall short of the presumptive ceiling, a stay of proceedings would only be appropriate if the applicant were to establish that he took meaningful steps that demonstrated a sustained effort to expedite the proceedings and that the case took markedly longer than it reasonably should have. Ms. Jacek submits that the applicant cannot meet his burden with respect to either of those requirements.
IV. Discussion
[37] I do not accept Ms Jacek’s submission that the 75 days between January 23 and April 9, 2018, and the 7 days between July 3 and 10, 2018, should be characterized as defence delay. I agree that some of the time in the fall of 2018 when the defence was unavailable to conduct the preliminary inquiry constitutes defence delay, although I do not accept that the quantum of the delay is 90 days. I also agree that the 14 days between March 8 and 22, 2019 was defence delay. However, I disagree with Ms Jacek’s position that none of the delay following March 22 was defence delay. In my opinion, regardless of whether the applicant had waived a portion of it, the entirety of the delay between January 25 and May 17, 2019 was defence delay.
(i) January 23 to April 9, 2018
[38] The Crown’s submission that the delay between January 23 and April 9, 2018 should be characterized as defence delay rests on the proposition that as of January 23 the defence had everything that it needed to make an election as to how to proceed and to set a date for either a preliminary inquiry or a trial. The record does not support that proposition.
[39] The retention of counsel and the receipt of initial disclosure cannot be expected, in most cases, to put the defence in an immediate position to know the extent of the case for the Crown, to decide how to plead, and to select a mode of trial. Generally speaking, those decisions require time and solicitor-client discussions. Further, in many cases, a pre-trial conference with the Crown will be required before some of those decisions can be made. Delay that flows from allowing that process to unfold is not defence delay in the relevant sense and it is not deductible in determining whether the presumptive ceiling has been breached.[^7]
[40] There is nothing in the record that would enable me to accept that the initial package of disclosure was all that the defence needed in order to set a date for a preliminary inquiry. On January 23, the Crown never suggested that a date should be set nor did it raise any concern about the defence request for a four-week adjournment for counsel to review disclosure, three packages of which were only provided that day. When the return date of February 23 suggested by the defence did not suit the Crown’s schedule, the Crown did not offer to adjust its schedule but instead consented to a further ten-day delay to March 5 for the next appearance. In addition, on January 23 Mr. Vecchiarelli advised the court that a Crown pretrial was yet to be held. In fact, a Crown pretrial did get scheduled for March 7, although, for reasons that do not appear on the record, it appears that it did not proceed. A second Crown pretrial was scheduled and conducted on April 3. After the April 3 pretrial, both the Crown and the defence agreed that the matter should be adjourned for a couple of weeks to enable Mr. Vecchiarelli to have some discussions with his client, presumably based on what had occurred at the pretrial.
[41] It is true that Mr. Vecchiarelli’s diligence in proceeding through the intake process is open to question, a matter I will return to later, but it is not clear that this was the sole reason why the matter progressed at the pace that it did between January 23 and April 9. In the end I am not persuaded that this 75-day period is defence delay.
(ii) July 3 to 10, 2018
[42] Nor am I persuaded that the 7 days between July 3 and July 10, 2018 is deductible defence delay. As I read the record, it had been decided on June 11 that because of Mr. Vecchiarelli’s unavailability throughout the fall, the preliminary inquiry could not be scheduled until on or after December 11. On July 10 the preliminary inquiry was set for that date. Had Mr. Vecchiarelli been present on July 3 the same date would have been set. The delay between July 3 and 10 had no impact on when the preliminary inquiry was scheduled.
(iii) September to December 2018
[43] Based on what Mr. Vecchiarelli told the court on June 11, 2018, I infer that the trial coordinator had offered more than one date in October 2018 for a one-day preliminary inquiry and that Crown counsel was available for those dates. Mr. Vecchiarelli was not available for the October dates or, indeed, for any other dates prior to December 11, because he was to be engaged in a long trial throughout the fall. Accordingly, the only reason why the preliminary inquiry did not proceed in October was Mr. Vecchiarelli’s unavailability.
[44] Mr. Vecchiarelli also told the court on June 11 that the trial coordinator had offered dates in November and that on some of those dates Ms Jacek was unavailable. I do not take that to mean that on none of the November dates was the Crown available. On July 11, when the date for the preliminary was formally set, Crown counsel stated that the Crown “was ready to proceed and had dates all throughout the fall.” I infer that but for Mr. Vecchiarelli’s unavailability the preliminary inquiry could have also proceeded on some November dates.
[45] In Jordan, at para. 64, the majority stated:
As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable.
[46] The Crown’s position is that because it had dates throughout the fall, while Mr. Vecchiarelli had none, the defence should be taken to have caused the entire three months of delay from September to December. However, there is no evidence that the court could have offered dates in September. The inference I would draw from what Mr. Vecchiarelli said on June 11 is that the October dates he referred to were the earliest dates available to the court. Thus any delay in the fall prior to those dates was not due solely to defence unavailability and it is not defence delay.
[47] While the defence must be taken as solely responsible for part of the delay between the October dates that were offered and December 11, it would not be fair to characterize the entirety of the time as defence delay as it appears that there were some dates in November when the Crown was also not available. It is not clear from the record what dates in October were offered nor how many dates in November were available to both the Crown and the court. In the circumstances it is difficult to come up with a precise number, but on balance I would attribute 30 days of the delay between October and December to the unavailability of the defence and characterize it as defence delay.
(iv) January 25 to May 17, 2019
[48] The applicant was committed for trial on December 11, 2018. Before leaving court that day, the parties scheduled a Superior Court JPT for 9:00 a.m. on January 25, 2019. In the interval, retainer issues arose and a few days before January 25 the JPT was cancelled at the request of the defence. It was not rescheduled until May 17, almost 4 months later.
[49] The applicant concedes that he explicitly waived the delay between January 25 and March 8, 2019. However, he submits that none of the delay between March 8, when he advised the Practice Court judge that he had been granted a Legal Aid certificate and that he was seeking to retain counsel, and May 17, when the Superior Court JPT finally occurred, should count as defence delay, notwithstanding that it flowed from his change of counsel. He submits that in the interval between those dates he had “retained new counsel… arranged to obtain disclosure from previous counsel, reviewed it… [counsel had] obtained instructions, communicated with Crown counsel our of court and scheduled a JPT for May 17, 2010”. Relying on the decision of the Supreme Court in R. v. Cody, 2017 SCC 31 he submits that because he acted reasonably and with diligence, the delay that was required for him to retain new counsel and for new counsel to be brought up to speed is not properly characterized as defence delay.[^8]
[50] As I have said, Crown counsel did not seek to have any part of the period between March 22 (when Ms. Dudding was retained) and May 17 categorized as defence delay. I am not bound to accept that position: see R. v. Tran, 2012 ONCA 18, at para. 31. In my respectful view, on a proper understanding of the decisions in both Jordan and Cody the entire period between January 25 and May 17 is properly characterized as defence delay and must be deducted when considering whether the presumptive ceiling has been exceeded.
[51] Defence conduct does not have to be “illegitimate” in order to fall within the ambit of defence delay. The applicant’s position to the contrary appears to be based on the discussion of defence delay in Cody, at paragraphs 27-35, and in particular on the opening words of para. 30:
The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. [Emphasis added]
[52] The italicized words cannot be divorced from their context. The preceding paragraph (para. 29) makes clear that the “component” under discussion was the exception to defence delay for “defence actions legitimately taken to respond to the charges”. The Cody court made clear in para. 29, as the Jordan court had done earlier (at paras. 53, 65 and 83), that the reason why delay caused by defence conduct legitimately taken to respond to the charges falls outside of the ambit of deductible defence delay is because in settling on a ceiling of 30 months the court had taken into account the time that such conduct might require. But for such an allowance, the presumptive ceiling would have been lower. That is, the Supreme Court was of the view that delay caused by defence actions to respond to the charges is logically relevant to a determination of the reasonableness of the overall delay, but, rather than deducting it from the consideration of whether the presumptive ceiling had been breached, it raised the ceiling. The opening words of paragraph 30 simply make it clear that so long as defence conduct is of the kind that the Jordan court factored into its determination of where the presumptive ceiling should be, the delay that it causes is not deductible.
[53] It would not be reasonable to read the opening words of paragraph 30 as an exhaustive description of what kind of delay can be defence delay. The balance of the paragraph is inconsistent with such a restrictive interpretation.:
As we said in Jordan, the most straightforward example [of illegitimate conduct] is "[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests" (Jordan, at para. 63). Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted (Jordan, at para. 64). These examples were, however, just that - examples. They were not stated in Jordan, nor should they be taken now, as exhaustively defining deductible defence delay. Again, as was made clear in Jordan, it remains "open to trial judges to find that other defence actions or conduct have caused delay" warranting a deduction (para. 64). [emphasis added]
[54] The pertinent question in this case is not whether the defence acted reasonably and with diligence in the steps that it took following the applicant’s change of counsel. I accept that it did. The question, rather, is whether the delay that flowed from the taking of those steps was of the kind that the Supreme Court had factored into its determination of where the presumptive ceiling should be. If it was, it is not deductible. But, in my opinion, it was not. The delay of almost four months between January 25 and May 17 was not occasioned by the need to do things that undoubtedly are a legitimate component of preparing a defence but rather by a need to re-do them. It is not an answer to say that the defence acted with diligence in retracing steps that had already been taken by previous counsel. That may be true, but it misses the point. It misconceives why the delays inherent in those steps, although caused by the defence, are ordinarily not deductible – namely because in setting the presumptive ceiling the Jordan court took the delay that those steps could be expected to cause into account. It is the retaking of those steps that makes what would otherwise be non-deductible delay deductible. To fail to deduct it without a corresponding increase in the presumptive ceiling would not only be unfair to the prosecution, which is charged with responsibility for ensuring that the defendant is tried within a reasonable time, it would be illogical. It would, effectively, permit the defence to double-count the delay flowing from legitimate defence conduct without a corresponding increase in the presumptive ceiling.
[55] The defence position that the almost four months of delay occasioned by the applicant’s change of counsel should not be deducted in determining whether the presumptive ceiling has been exceeded is virtually without support in the cases. The applicant has pointed to the decisions in R. v. D.M.S., 2016 NBCA 71, [2016] N.B.J. No. 320 (C.A.); R. v. A.E, 2019 QCCA 1865; Regan, supra; and R. v. Guimont, 2017 QCCA 1754. Of those cases, only Guimont offers any support for the applicant on this point, but its assistance is tenuous. In the course of pretrial proceedings in that case the defendant’s counsel withdrew, leaving the defendant to continue on her own. The trial judge adjourned the proceedings for a time to enable the defendant to review the evidence. One of the questions before the Quebec Court of Appeal was whether three months of the time that followed the adjournment should be counted as defence delay. At paragraph 50, the Court of Appeal stated that it was not persuaded that by seeking the adjournment to review the evidence in those circumstances the defendant was waiving the resulting delay. The Court also suggested that it was reasonable not to characterize some of the delay as defence delay. In the end however the Court found it unnecessary to decide whether it was or was not defence delay because in either event the case was well over the presumptive ceiling.
[56] In my opinion, none of the other cases support the defence position. Neither D.M.S. nor A.E. were change of counsel cases and neither dealt with the question of how delays caused by a change of counsel should be treated when assessing whether the presumptive ceiling has been exceeded. Regan was a change of counsel case, but it supports the view that delays caused by a defendant’s change of counsel should be characterized as defence delay. In Regan, the defendant had fired two different lawyers. Firing the first lawyer had caused a delay of about one month. Firing the second lawyer occurred on the eve of trial and caused a delay of 12½ months. On an application to stay proceedings for delay, the trial judge declined to attribute the delay caused by the first firing to the defence but he did so with respect to the entirety of the delay caused by second firing. In the opinion of the Alberta Court of Appeal, the trial judge was correct with respect to the delay that flowed from the second change of counsel but wrong with respect to the delay caused by the first. The Court noted that firing the first lawyer “meant a new lawyer had to come onto and review the file. The accused retained other counsel quickly, and [the new lawyer] moved with admirable haste in her initial review of disclosure, but the practical effect of the decision to discharge [the first lawyer] was that trial dates were not set for an additional month. This delayed the proceedings… This was delay that was solely attributable to the actions of the defence. This approximately one-month period…constitutes defence delay.”[^9]
[57] More significantly, there are aspects of both Jordan and Cody that must be overcome before the court can proceed along the path that the applicant wishes it to follow on this application.
[58] In Jordan, the trial was scheduled to commence on September 12, 2012 and to finish on September 28. Three weeks prior to trial, Mr. Jordan retained new counsel, who was not available for the scheduled trial date. There was no suggestion that Jordan had changed counsel for the purpose of delay or for any other improper reasons. As a result of the change of counsel, however, that matter had to be rescheduled for January 2013, with an anticipated completion date of February 1, 2013. The trial judge observed that “Mr. Jordan acknowledges that he is responsible for the delay between September 28, 2012 and February 1, 2013, due to his change of counsel on the eve of the trial originally scheduled to commence September 10, 2012. Effectively, Mr. Jordan waived four months of the delay.” When considering whether that delay should count toward the presumptive ceiling, the majority in the Supreme Court of Canada stated: “We see no reason to interfere with the trial judge's finding that four months of this delay were waived by Mr. Jordan when he changed counsel shortly before the trial was set to begin, necessitating an adjournment.”[^10]
[59] In Cody, the defendant changed counsel twice, once by choice and once by necessity. The first change occurred in October 2010, nine months after Mr. Cody’s arrest, and led to a one-month delay in the scheduling of the preliminary inquiry. The matter was subsequently scheduled to go to trial on November 5, 2012 but two months before the trial date Mr. Cody’s second counsel was appointed to the bench. The need to find new counsel led to the trial being postponed until May 6, 2013. Although there was no suggestion that the first change of counsel was not for legitimate reason, the Supreme Court of Canada characterized the delay that it caused as defence delay. With respect to the second change of counsel, for which the defendant was clearly blameless, the Court characterized the resulting delay as flowing from a discrete exceptional event rather than as defence delay. The important point, however, is that once again none of the resulting delay was counted toward the presumptive ceiling.[^11]
[60] In my opinion, the weight of the authorities supports the view that regardless of why it became necessary for a defendant to change counsel, the delay that the change causes is not to be counted toward the presumptive ceiling. It will either be characterized as defence delay or as delay attributable to a discrete exceptional event.
[61] With respect to how much of the resulting delay should be deducted, in both Jordan and Cody the Supreme Court of Canada affirmed that, generally speaking, “if the court and the Crown are ready to proceed but the defence is not [the] period of delay resulting from that unavailability will constitute defence delay” (Jordan, at para. 64; Cody, at para. 30). In R. v. N.N.M., 2006 CanLII 14957 (ON CA), [2006] O.J. No. 1802 (C.A.), in the context of the need to reschedule a JPT that had been adjourned at the request of the defence, Justice Juriansz stated: “In my view, the party who causes an adjournment is responsible for the entire delay until the matter can be re-scheduled, unless the other party is unavailable for an unreasonable length of time”. The Alberta Court of Appeal came to the same conclusion in Regan, supra, at paragraph 96.
[62] In the case at bar the Crown and the court were prepared to proceed with the applicant’s JPT on January 25, 2019. The matter was adjourned because of the applicant’s change of counsel. New counsel for the applicant was not in a position to set a date for a JPT until April 10, and the JPT was not scheduled until May 17. There is nothing in the record that would suggest that either the Crown or the court were unavailable for an unreasonable length of time. In my opinion, all of the delay between January 25 and May 17 – 111 days – is defence delay.
Summary
[63] I calculate the deductible defence delay in this case as follows:
(i) April 24 to June 11, 2018: 48 days
(ii) October to December, 2018: 30 days
(iii) January 25 to April 10, 2019: 74 days
(iv) April 10 to May 17, 2019: 37 days
Total defence delay: 189 days
[64] The total delay in this case from the charge to the anticipated end of the trial is 34 months and 26 days, which is 146 days beyond the presumptive ceiling. Deducting the 189 days of defence delay that I have identified reduces the overall delay to approximately 28½ months, 43 days below the ceiling. Even if I am wrong in characterizing the period from April 10 to May 17, 2019 as defence delay, the remaining defence delay of 152 days would still bring the total delay to an amount below the presumptive ceiling. On either calculation, the delay in this case is not presumptively unreasonable.
Is the Applicant Nonetheless Entitled to a Stay of Proceedings?
[65] I will briefly address the applicant’s submission that even if the relevant delay is below the presumptive ceiling his right to be tried within a reasonable time has nonetheless been infringed. As indicated earlier, where the delay falls below the presumptive ceiling the burden is on the defence to establish (i) that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (ii) that the case took markedly longer than it reasonably should have. In the absence of either of those factors an application to stay proceedings for delay must fail.
[66] A delay of almost 30 months to bring a case such as this to trial is concerning, but I need not determine whether the case has taken markedly longer than it should have because, in my opinion, the applicant cannot establish that he took meaningful steps that demonstrated a sustained effort to expedite the proceedings.
[67] In the Superior Court, the defence acted reasonably and diligently after Ms. Dudding came on board but it would go to far to characterize what she did as a sustained effort to expedite the proceedings. In any event, however, the conduct of prior counsel while the case was in the Ontario Court of Justice was the antithesis of a demonstration of such an effort. Between January 9, the first appearance after Mr. Vecchiarelli was retained, and July 10, when the date for the preliminary inquiry was set, there were 14 court appearances. On seven of those occasions Mr. Vecchiarelli failed to attend court. As his client was also not present, nothing could be accomplished on those days and the proceedings were adjourned. Because of Mr. Vecchiarelli’s non-attendance on one of those occasions, the matter was ordered returnable before a judge. On the return date Mr. Vecchiarelli not only did not attend but he sent an agent who had no idea why the matter was before the judge. On yet another date Mr. Vecchiarelli attended but left before the matter could be dealt with. I am unable to find a single occasion on which Mr. Vecchiarelli did anything that could be characterized as an effort to expedite the proceedings. Further, Ms. Dudding acknowledged that the time between May 14 and June11, 2018 (28 days) should be characterized as defence delay because the adjournments that caused that delay were not sought for any legitimate reason associated with the applicant’s defence.
[68] Accordingly, the applicant has failed to establish that notwithstanding that the operative delay is below the presumptive ceiling his right to be tried within a reasonable time has been infringed.
V. Disposition
[69] The application to stay proceedings for delay is dismissed.
MacDonnell, J
Released: September 2, 2020
[^1]: Jordan, at para. 63; see also R. v Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, at pp. 1227-28 [^2]: Jordan, at para. at paras. 53, 65 and 83; R. v. Cody, 2017 SCC 31, at para. 29 [^3]: Jordan, at para. 81 [^4]: Jordan, at para. 80 [^5]: Jordan, at paras 47, 54 and 81 [^6]: Ms. Jacek’s Factum arrives at slightly different numbers. [^7]: Jordan, at paras. 65 and 66 [^8]: Applicant’s Factum, at paragraph 52 [^9]: At paras. 91 and 92 [^10]: at paragraph 120 [^11]: The defendant had waived one month of the six months of delay.