COURT FILE NO.: CR-19-50000606-0000
DATE: 20201020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DANE BROWN
A. Nash, for the Crown
A. Morphew, for Mr. Brown
HEARD: 17 September 2020
s.a.Q. akhtar j.
FACTUAL BACKGROUND AND OVERVIEW
Introduction
[1] The applicant, Dane Brown, stands charged with various firearms related offences arising out of a police chase and arrest on 15 July 2018. The applicant’s trial is scheduled for 23 November 2020 and set to end on 4 December 2020. He brings an application alleging that his s. 11(b) Charter rights have been breached and requests a stay of proceedings.
[2] At the conclusion of argument, I indicated that the application would be dismissed with reasons to follow.
The Crown Allegations
[3] On 15 July 2018, police received a call reporting a possible impaired driving offence. Driving to the scene, two police officers observed two cars, a Jeep and a Honda Civic, stopped on the street side-by-side with their windows down and the occupants engaged in conversation.
[4] The officers discovered that the Civic had been reported as stolen and decided to speak to the driver. As they approached, both cars left the scene, taking different routes. The Civic sped away through a red light at high speed on Dixon Road in Toronto and was followed by the police. Ultimately, the officers ended their pursuit of the Civic for public safety reasons but noticed the Jeep turning right onto Dixon Road.
[5] The officers decided to stop the Jeep to obtain information about the Civic. Accordingly, they followed the vehicle on Dixon Road and observed it to slow down as it approached a crosswalk near Dixon Park. When the car stopped, the applicant alighted from the driver’s side door and crossed Dixon Road running through Dixon Park.
[6] A chase ensued with the applicant running along the north side of 370 Dixon Road. As the pursuing officer closed the distance between them, the applicant stumbled and fell to the floor. The officer heard the sound of a metallic item hitting a hard surface. The applicant got up and continued to run but was detained and arrested. The police found drugs in the applicant’s shorts beneath his sweatpants. At the police station, an additional 1.08 grams of crack cocaine was found on the applicant.
[7] When police conducted a search of the area where the accused was arrested they found nothing and left the scene. A short time later, a security guard patrolling the areas of 370, 380 and 390 Dixon Road saw a crowd of people gathered in the courtyard area. The crowd signalled that there was a gun in front of 370 Dixon Road. The police were called and seized the gun.
The Timeline
[8] The applicant was arrested on 15 July 2018. On 2o November 2018, a preliminary inquiry date was set for 11 June 2019. However, that did not proceed and the preliminary inquiry was adjourned to 17 September 2019 for a two day hearing which was completed on time.
[9] The matter was committed to appear in the Superior Court of Justice on 9 October 2019 and a judicial pre-trial was held on 21 October 2019 where the parties estimated a two week trial with a jury. The first available date offered by the court was 23 November 2020. The trial is estimated to complete on 4 December 2020.
LEGAL PRINCIPLES
The Presumptive Ceilings
[10] In R. v. Jordan, 2016 SCC 27, [2016] 1 SCR 631, the Supreme Court of Canada pressed the reset button on principles governing the application of s. 11(b) of the Charter of Rights and Freedoms. The old jurisprudence outlined in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, was jettisoned except in transitional cases already in the system prior to the Court’s decision.
[11] New presumptive ceilings of reasonable delay were created for criminal cases: 18 months for cases tried summarily and 30 months for those matters tried by indictment.
[12] Determining whether a particular time period breached the ceiling requires some analysis of the history of the case. Any delay caused by the defence must be deducted from the total time period.
[13] If, after deducting defence delay, a case still exceeds the ceiling, the Crown is required to identify the existence of exceptional circumstances justifying the excess delay. Failure to do so results in a stay of the charges.
[14] Calculation of the time period requires the court to identify the time accruing from the date of charge to the end of the trial (“the total delay”) and the subtraction of delay periods attributable to the defence. This leaves a “net delay” figure.
[15] If the “net delay” exceeds 30 months, the Crown can only seek to justify the excess by demonstrating the existence of exceptional circumstances: Jordan, at paras. 47, 68-75. For cases which began life prior to Jordan, the Crown may rely on the “transitional period exception”, using the Morin standards to determine whether the delay was unreasonable.
[16] In R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-41, the Court of Appeal for Ontario identified the following approach to determine whether an accused’s s. 11(b) rights had been breached:
(1) Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial
(2) Subtract defence delay from the total delay, which results in the “net delay”
(3) Compare the net delay to the presumptive ceiling
(4) If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable.
To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If it cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases
(5) Subtract delay caused by discrete events from the net delay (leaving the “remaining delay”) for the purpose of determining whether the presumptive ceiling has been reached
(6) If the remaining delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable
(7) If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.
[17] Where cases fall below the presumptive ceiling an accused may still demonstrate that their s. 11(b) rights have been violated by showing that (1) they took meaningful steps demonstrating a sustained effort to expedite the proceedings and (2) the case took markedly longer than it should have: Jordan, at para. 47. It is also worth remembering that stays of this kind must only be granted in clear cases: Jordan, at paras. 82-91.
WAS THERE A VIOLATION OF THE APPLICANT’S SECTION 11(B) RIGHTS?
The Net Delay
[18] Whilst both parties agree that the period of total delay is below 30 months, they differ on the precise amount of delay that has occurred.
[19] The applicant argues that there has been no defence delay in this case and that the total period to the anticipated end of trial amounts to 28 months and 3 weeks.
[20] The Crown, on the other hand, argues that two periods of delay should be deducted from the total: the first being defence induced delay and the second constituting delay caused by exceptional circumstances. The deduction of these time periods would lower the total delay to 23 months.
Was There Defence Delay?
[21] When the preliminary inquiry date was set, the court offered 15-17 April 2019, and 23-26 April 2019 as the earliest dates for the hearing. The Crown was agreeable to those dates but the defence indicated that they were not available. As a result, the court offered dates of 5-7 June 2019 but these were dates which the Crown could not make. Eventually, both parties agreed on the dates of 11-13 June 2019 as suitable dates.
[22] The applicant argues that none of the two month period between April and June 2019 should be counted as defence delay. They rely on the principles set out in R. v. Godin, 2009 SCC 26, [2009] 2 SCR 3, a pre-Jordan case where the Supreme Court of Canada found that when the Crown had caused a hearing to be adjourned and only offered a single date for the next hearing, the delay clock did not stop if the defence were not available. In Godin, the Court took the view that in these circumstances a range of dates had to be offered and the s. 11(b) procedure did not require “defence counsel to hold themselves in a state of perpetual availability”: Godin, at para. 23.
[23] The applicant argues that Godin continues to apply after Jordan and points to authorities such as R. v. Zikahli, 2019 ONCJ 24, 428 C.R.R. (2d) 44, and R. v. Dhaliwal, 2019 ONCJ 761, as judgments that support this argument. That being the case, there is no defence delay to be deducted from the total.
[24] The Crown, on the other hand, submits that post-Jordan, Godin does not apply, relying on cases such as R. v. Albinowski, 2018 ONCA 1084, 371 C.C.C. (3d) 190, and R. v. Malozzi, 2017 ONCA 644, 390 C.R.R. (2d) 57. As such, the two month time period between April and June should be deducted from the total as defence delay.
[25] I have already expressed my view in R. v. Bilachi, 2019 ONSC 5149, at paras. 10-31, that Godin does not survive Jordan. I need not recite my reasons from that case in detail.
[26] In Jordan, at para. 64, the Supreme Court of Canada made clear when the clock stops:
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. This should discourage unnecessary inquiries into defence counsel availability at each appearance. Beyond defence unavailability, it will of course be open to trial judges to find that other defence actions or conduct have caused delay (see, e.g., R. v. Elliott (2003), 2003 CanLII 24447 (ON CA), 114 C.R.R. (2d) 1 (Ont. C.A.), at paras. 175-82). [Emphasis added]
[27] These sentiments have been repeated in subsequent appellate cases: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 30; and R. v. Mallozzi, 2017 ONCA 644, 390 C.R.R. (2d) 57, at para. 34, leave to appeal dismissed, 2017 S.C.C.A. No. 392.
[28] With great respect, I cannot agree with the comments of the court in Dhaliwal that if the Supreme Court of Canada had intended to overrule Godin, it would have expressly done so. If anything emerged from Jordan, it is that, except in transition cases, the prior Morin regime had been swept away in its entirety. This was confirmed by the Court of Appeal for Ontario in R. v. Bulhosen, 2019 ONCA 600, 440 C.R.R. (2d) 1, at paras. 96-97, where Strathy C.J.O. wrote:
It bears repeating that Jordan established a new framework for the s. 11(b) analysis. As this court has observed, the Supreme Court “rewrote the law on unreasonable delay ... with the release of its decision in Jordan”: R. v. Mallozzi, 2017 ONCA 644, 390 C.R.R. (2d) 57, at para. 24, leave to appeal to S.C.C. refused, [2017] S.C.C.A. No. 392; see also Coulter, at para. 60.
Other than in transitional cases, which the Crown concedes this is not, pre- Jordan constructs have little utility in the Jordan analysis. [Emphasis added]
[29] I repeat my comments made in Bilachi, that seeking to apply Godin in post-Jordan cases would undermine the Court’s decision for clarity and its recognition that the Morin framework had “been interpreted so as to permit endless flexibility, making it difficult to determine whether a breach has occurred”: Jordan, paras. 32 and 37.
[30] I would add that this approach is not intended to punish the defence for being unavailable but recognises the reality that when an accused alleges that their s. 11(b) rights had been violated they seek one of the most draconian remedies in the criminal justice system: a stay of charges without trial. That remedy cannot be justified when the court and the Crown have provided a date for trial which is inconvenient for the defence.
[31] For the foregoing reasons, I find that the Jordan clock stopped on 15 April 2018, the first date offered by the court to hear preliminary inquiry. The time between that date and 11 June 2018 should be counted as defence delay and removed from the total delay period. This would bring the net delay to 27 months.
Were There Exceptional Circumstances?
[32] However, I disagree with the Crown that the 11 June 2018 adjournment is a deduction from the total delay. This was clearly not defence induced delay and there is some mystery as to why the court was not able to accommodate the preliminary inquiry on that date. Whilst the Crown cites this as an example of “exceptional circumstances”, I cannot agree and find that this time period is part of the 30 month time period set by Jordan. It may well be that if the Crown is correct, and the matter was adjourned due to the illness of a trial judge, that this time period would count as exceptional circumstances reducing the delay if total delay exceeded the 30 month ceiling. However, that is not the case here.
Is the Delay to Trial Unreasonable?
[33] As previously described, when an accused alleges a violation of his s. 11(b) rights in cases which fall below the presumptive ceiling, the applicant must show that that (1) they took meaningful steps demonstrating a sustained effort to expedite the proceedings and (2) the case took markedly longer than it should have.
[34] The Crown in this case concedes that the defence satisfies the first limb of the test. However, it argues that the applicant has not shown that the case took markedly longer than it should have. On the other hand, the applicant suggests that the 30 month ceiling is meant to apply to complex cases that require that amount of time to make it to trial.
[35] I cannot agree. The majority in Jordan made clear that the 30 month ceiling applied to all cases heard in the Superior Court of Justice. As the Crown points out, complexity in cases justify delays that exceed the 30 month ceiling.
[36] The test for staying charges below the presumptive ceiling is not whether a particular case could have been dealt with more quickly or efficiently but whether it took markedly longer than it should have done: R. v. K.J.M., 2019 SCC 55, at para. 107.
[37] At para. 87 of Jordan, the Court wrote that in the context of a “below ceiling” case a number of factors must be examined including complexity, local considerations, and whether the Crown took reasonable steps to expedite the proceedings.
[38] The applicant argues that this is a straightforward case with no complexity. I disagree. It is clear from the applicant’s own submissions that there will be a Charter argument alleging that the police had no grounds for arrest, and that, even if this fails, the applicant will be arguing that the Crown cannot prove that the firearm found belonged to him. Whilst this may not be the most complex of cases, neither can it be characterised as straightforward.
[39] Nor do I consider it helpful to parse out time periods in the manner that the appellant purports to do to demonstrate that the Crown could have provided disclosure more quickly. This is not a case like R. v. Belle, 2018 ONSC 7728, 424 C.R.R. (2d) 233, where the Crown disclosed a voluminous amount of disclosure just before the trial commenced. Whilst the Crown may well have provided the materials requested by the defence sooner, it did not do so in a way that made the delay unreasonable. If, as was made clear in Jordan, at paras. 90-91, the defence is not required to be held to a standard of perfection, neither is the Crown.
[40] Most significantly, the Supreme Court of Canada in Jordan made clear, at para. 89, that trial judges should consider the time that it would typically take for cases of a similar nature to get to trial in light of the local conditions. As noted by my colleague, Molloy J., in R. v. R.D., 2017 ONSC 1770, at para. 32, the Toronto Region has a busy criminal list with a significant number of complex and long trials. In my experience, the applicant’s case and the time taken to get to trial is typical of cases of a similar nature. This is hardly the “clear case” required by Jordan, at para. 83.
[41] For these reasons, the application is dismissed.
S.A.Q. Akhtar J.
Released: 20 October 2020
COURT FILE NO.: CR-19-50000606-0000
DATE: 20201020
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
DANE BROWN
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.