COURT FILE NO.: CR-18-10000462-0000
DATE: 20201218
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
M. Brown, for the Crown
HER MAJESTY THE QUEEN
– and –
A.C.
Applicant
A. Michael Stein, for the Applicant
HEARD: December 11, 2020
a.J. O’Marra J. (Delivered Orally)
SECTION 11(b) CHARTER APPLICATION
[1] A.C. has brought an application for a stay of proceedings on the basis that his right to be tried within a reasonable time as guaranteed under s. 11(b) of the Charter of Rights and Freedoms has been infringed.
[2] An Information sworn July 6, 2017 charges the applicant with multiple sexual offences alleged to have been committed against his daughter, at the time 5 to 11 years old.
[3] The second two-week trial date is scheduled to commence in the Superior Court on January 25, 2021.
[4] The total delay from the swearing of the Information, July 7, 2017 to the anticipated end of the second trial, February 5, 2021 is 43.5 months. The applicant, a resident of British Columbia, contends that the overall delay is 45.5 months as a result of the Toronto police alerting him by telephone pre-charge on May 12, 2017 that he was to be charged.
[5] In R. v. Jordan, 2016 SCC 27 the Supreme Court set the presumptive ceiling for delay in the Superior Court of Justice at 30 months, calculated from the charge to the actual or anticipated length of the trial. Any delay in bringing the accused to trial in excess of 30 months is presumptively unreasonable.
[6] In cases where the total delay, less delays either waived by the accused or exclusively caused by the defence, exceeds the presumptive ceiling of 30 months, the onus shifts to the Crown to demonstrate that the delay was nevertheless reasonable due to exceptional circumstances. Particularly complex matters or discrete events that lie outside the Crown’s control as being reasonably unforeseen or reasonably unavoidable, and which delay the Crown could not reasonably have remedied due to those exceptional circumstances is subtracted from the total delay to determine whether the presumptive ceiling has been exceeded.
[7] In this matter, the Crown asserts that there are a number of defence delays and explicit s. 11(b) waivers, in addition to a discrete event when subtracted from the total delay results in a net delay of 18.9 months, well under the 30-month presumptive ceiling. The applicant, on the other hand asserts that the delay due to a defence waiver and a discrete unavoidable event results in at least 34 months of unjustifiable delay - four months in excess of the presumptive ceiling.
[8] Briefly the background to this matter is that the applicant resides in Nanaimo on Vancouver Island, British Columbia with his wife and two children of his second marriage. The complainant a child of his first marriage resides in Ontario. During a family law dispute in British Columbia the authorities received information of alleged sexual misconduct by the applicant with the complainant. He was notified of the allegations in April 2017 by the B.C. authorities and the matter was referred to Toronto Police. On May 12, 2017 an officer of that police service advised him in a telephone call he was to be charged, he should contact his lawyer and not travel anywhere.
Overview of Events
I. Swearing of the Information to the Preliminary Inquiry: July 6, 2017 – August 30, 2018, (13.75 months).[^1]
On July 6, 2017 the officer in charge of the investigation, Detective Sarah Panton appeared before a Justice of the Peace at the College Park Courthouse, Toronto to swear an Information, and arrest warrant. Prior to the swearing of the Information discussions occurred between defence counsel and the Crown to permit the Applicant to surrender himself at the Nanaimo Courthouse, British Columbia on July 13, 2017 and to be released on agreed terms of bail. Subsequent appearances in Ontario until the preliminary inquiry were by designation of counsel by the applicant, who remained in B.C.
After a first appearance on August 17, 2017 a pre-trial conference was scheduled for August 22, 2017 at which time a one-day preliminary inquiry date was set for March 16, 2018 in a courtroom CCTV equipped for the youthful complainant.
On October 5, 2017 the Crown sought to have an earlier date set for the one-day preliminary inquiry but the defence did not and the applicant waived s. 11(b) rights to the preliminary inquiry date of March 16, 2018. Both parties agree that there was an explicit s. 11(b) waiver of 162 days on the record, (5.5 months).
On March 16, 2018 the preliminary inquiry scheduled for one day could not be completed initially due to the availability of a judge and then later in the day due to technical issues concerning the court equipment. The next available date for the court and Crown was March 21, 2018. Defence declined that date because the applicant had to return to British Columbia to attend classes at the University of Vancouver Island. His earliest availability was June 2018. The agreed return date was set for August 2, 2018. The Crown asserts that there was a period of defence delay between March 21, 2018 and June 2018.
The defence submits that there was no defence delay because the original preliminary inquiry date of March 16, 2018, which could have accommodated the time required to complete the hearing, was not fully utilized due to the lack of court infrastructure and as such should be accorded as institutional delay.
- On August 2, 2018 the preliminary inquiry could not continue due to the judge being ill and unavailable. The preliminary inquiry continuation was put over to August 30, 2018, a period of 27 days (1 month), which both Crown and defence agree should be considered in the category of discrete delay, an unavoidable exceptional circumstance.
II. Committal to the Adjournment of the first trial date – August 30, 2018 – December 13, 2019 (15.5 months).
On August 30, 2018 after committal at the request of counsel the matter was put over for its first appearance, October 3, 2018 in the Superior Court. The Crown advised that a judicial pre-trial could be scheduled before the next court appearance.
On October 3, 2018 the first available date for the defence to have a judicial pre-trial was November 2, 2018, which was changed that day to November 9. The court and Crown were available for judicial pre-trial dates throughout October. The Crown claims there was defence delay of 26 days, as he was not available for a JPT from October 3 to October 29.
On November 9, 2018 a trial date for a 3-week Judge and Jury trial was set for January 6, 2020, noted to require CCTV. A third-party records application was set for May 16, 2019.
On May 16, 2019 the third-party records application was abandoned and the trial confirmation date was set for November 13, 2019.
On October 28, 2019 defence counsel notified the Crown by email that the applicant, who resided in Nanaimo B.C., had two potential defence witnesses - his wife and mother, he wanted to testify via video-link because of problems for them to attending a trial in Ontario. His wife attended what counsel described as “mandatory classes” at the University of Vancouver Island, and his mother was recovering from cancer surgery. In addition, the applicant and wife had child care issues. Counsel for the applicant offered to re-elect to judge alone to facilitate the witnesses testifying at convenient times due to their travel and scheduling problems and time difference between B.C. and Ontario.
The Crown consented to the potential witnesses testifying remotely. On October 30, 2019 staff of the trial coordinator’s office advised counsel that video-links had been arranged with the Nanaimo Courthouse on another occasion, but “it is the obligation of counsel to make these arrangements”.
On November 13, 2019, the trial confirmation date, defence counsel advised he was having difficulty arranging the video-link in Nanaimo and raised the possibility of making an adjournment application. The court suggested Skype or something like that and adjourned the matter to November 21, 2019 for re-election to a judge alone trial.
On November 28, 2019 defence counsel announced he was bringing an adjournment application and requested the matter go over two weeks to December 13, 2019 to do so.
III. Adjournment Application – December 13, 2019
On December 13, 2019 the defence sought an adjournment of the January 6, 2020 trial date. The Crown opposed the adjournment as the matter was approaching the Jordan ceiling and any additional delay would cause anxiety to the child complainant. The Crown was ready to proceed, and the Court time was available.
The applicant sought the adjournment because of problems with the availability of his defence witnesses, his wife and mother. Further, the applicant was having financial problems arranging to pay for the video-link fees in order for his witnesses to testify from British Columbia and funds to fully retain counsel. On the application counsel stated:
He doesn’t have funds right now. He also owes me funds, but he’s hoping that his school finishes in April, they’ll be back to work. He was hoping to have a trial date in June and July or August. I’m told by my friend that can’t be arranged, but perhaps something in November can be arranged and that may be agreeable. By then, he will have enough funds to keep me in funds and arrange to bring at least one of his witnesses to Toronto . . .
Later in submissions counsel stated he assumed his client would be in funds “by the end of summer”.
Further, the applicant explicitly waived his s. 11(b) rights to the new trial date.
In the transcript of a December 13th adjournment application the court wanted to know if the applicant was expressly waiving his s. 11(b) rights.
The Court: Okay. So, as I understand it from the material, defence is going to waive s. 11(b) until the new trial date: is that right? Mr. Stein? You’re – you’re going to waive 11(b) until the new trial date?
Mr. Stein: At some point in time at least one of the witnesses will be via video-link.
The Court: Okay. That wasn’t my question. My question was, are you prepared to waive delay? Waive 11(b)? In other words, are you prepared to waive your Jordan rights? Because I understand the Jordan date is coming up in January.
Mr. Stein: Oh, I’m not sure I’m waiving.
The Court: You’re not waiving.
Mr. Stein: Oh, okay.
The Court: Okay. Are you prepared to go on the record and say that your client is not going to assert his s. 11(b) rights when he comes back?
Mr. Stein: Yeah, I’ve already discussed it with him in great detail.
The Court: Okay, but I’m asking. To put it on the record, I need to find out are you waiving 11(b)?
Mr. Stein: Yeah, he is prepared to waive those rights.
The Court: Okay.
Mr. Stein: He indicated that in the affidavit, actually.
The Court: Well, I know, I just wanted to confirm it on the record.
Mr. Stein: Yeah.
The Court: Okay, all right, okay, so, I understand the prejudice to the complainant and her wish to get it on, and that’s completely understandable but I think under the circumstances, given the waiver of 11(b), I’m going to grant the adjournment.
After that exchange with the presiding Justice, defence counsel and the Crown attended to the trial coordinator’s office and returned to set the second trial date of January 25, 2021, the first available two-week time period with a courtroom equipped with CCTV capacity for a video-link for the potential witnesses the defence wanted to call.
[9] The Crown asserts that as a result of the applicant’s adjournment application and explicit s. 11(b) waiver there is 409 days of defence waiver (13.75 months) – December 13, 2019 to January 25, 2021.
[10] Defence counsel contends, notwithstanding the explicit s. 11(b) waiver on the record to the new trial date, which he had discussed “in great detail” with his client, the applicant would have been available for a trial as early as June 2020 as noted on the trial coordinator’s sheet. As a result, his s. 11(b) waiver delay should only amount to 153 days (5 months).
IV. Post-adjournment Appearances to second Trial date – December 13, 2019 – January 25, 2021 (13.5)
[11] The matter was adjourned to a confirmation date of March 18, 2020. In February 2020 the applicant notified the Crown that they would like to canvas the availability of earlier dates for trial. The Crown advised counsel that there was a two-week period available, starting September 21, 2020, however CCTV would only be available during the first week, which would not accommodate the defence witnesses anticipated to be called in the second week.
The COVID-19 Pandemic
[12] On March 15, 2020 the Chief Justice of the Superior Court of Justice issued an order that the courts would be closed due to the COVID-19 pandemic with all matters scheduled between March 17, 2020 to June 2, 2020 to be adjourned to the latter date.
[13] On May 13, 2020 a further notice was issued directing that there would be no in-court hearings until July 6th at the earliest, and no jury trials until September 21, 2020.
[14] On June 2, 2020 the Superior Court of Justice was opened for limited types of matters and did not include in-person trial matters.
[15] On June 25, 2020 the Superior Court of Justice issued a further notice that there would be a phased reopening of a limited number of courts – 56 across the province to be specially equipped with health and safety precautionary measures with priority given to hearing previously scheduled matters or matters adjourned earlier due to the COVID-19 closure.
[16] Many urgent matters proceeded either by teleconference and by the newly developed Zoom platform in the Superior Court throughout the summer and fall 2020.
[17] In an email exchange between counsel of September 1 to September 14, 2020 defence counsel advised the Crown that the applicant intended to bring a s. 11(b) application for delay, in effect reversing his position with respect to his express s. 11(b) waiver to the new trial date given at the time of the adjournment. The Crown indicated that the applicant’s matter was being given priority and that checks would continue to determine whether earlier dates would become available.
[18] On October 14, 2020 counsel for the applicant gave notice that a s. 11(b) application would be brought on December 11, 2020.
[19] On November 2, 2020 defence counsel was advised that a two-week trial period in a CCTV equipped court was available due to an adjournment of another matter starting November 16, 2020. Defence declined the offer as “patently unreasonable and unfair to the defence”, because the applicant would have to give notice to his employer in order for him to travel by air during the COVID-19 pandemic, counsel would have limited time to finish his trial and witness preparation while putting together a s. 11(b) application, and the uncertainty of being able to secure a video-link with the Nanaimo Courthouse.
Assessment
Total Delay
[20] The applicant contends that the Jordan timeframe started from the moment police contacted him May 17, 2017 to advise he was going to be charged. As a result, the pre-charge period should be considered as part of the overall delay of 45.5 months. Whereas the Crown asserts that the overall time to consider is 43.5 months, from the time the Information was sworn, July 7, 2017.
[21] Counsel for the applicant argued that the police having advised A.C. he was to be arrested, and not to travel had in effect of placing him under arrest and constraining his liberty.
[22] Section 11(b) states: “any person charged with an offence has the right to be tried within a reasonable time”. Determining whether a person has been accorded a trial within a reasonable time commences when an Information is sworn, or a direct indictment has been laid, if no Information is sworn.
[23] It is clear in Jordan at paras. 47, 48 and 60 that the application of the framework in calculating the total delay is from “the charge to the actual or anticipated end of the trial”. The Supreme Court, since R. v. Kalanj, 1989 CanLII 63 (SCC), [1989] 1 SCR 1594 has held that s. 11(b) protection does not apply to pre-charge delay.
[24] However, the applicant relies on a comment made in R. v. Luoma, 2016 ONCJ 670 at para. 29 where it was observed that the principles in Kalanj led the court to the opinion that a s. 11(b) delay clock starts at the point in time when an Information is sworn “or ought to have been sworn”.
[25] Counsel in this case contends that the police ought to have sworn the Information by May 12, 2017 when the investigation was purportedly complete and he could have been charged.
[26] The circumstances in Luoma and which gave rise to the view that pre-charge time ought to be included differ significantly from this case. There, the accused had been arrested and released on a promise to appear, but the police failed to swear an Information as required under s. 505 of the Criminal Code for more than two months. In that case the court noted that the applicant was not only “subject to the very real prospect” of being charged, he believed that he was charged and subject to the requirements of the promise to appear, and as such he was under the court process. That is not the case here.
[27] Moreover, the concern in Kalanj, as here, is that the court is not in a position to assess the reasonableness of the investigative process, and as in Luoma the applicant was not subject to the court process, which could be assessed.
[28] I note parenthetically, in this case the advance notice to the applicant that he was to be charged gave him the opportunity to make arrangements to have counsel and to minimize significant restrictions to his liberty by arranging his surrender and consent release in Nanaimo, on July 13, 2017, as opposed to being arrested by warrant in B.C. and transfer in custody to Ontario.
[29] In this case, the calculation of delay commences as of July 7, 2017 when the Information charging A.C. with the offence alleged was sworn.
[30] The overall time from the swearing of the Information to the anticipated end of the trial, February 5, 2021 is 43.5 months.
Section 11(b) Waiver
[31] The next step in the assessment is to determine whether there has been defence delay of which there are two types: periods that have been waived, and periods of defence caused delay.
[32] Waiver of delay by the defence may be explicit or implicit, but it must be informed, clear and unequivocal. The accused must have full knowledge of his or her rights as well as the effect waiver will have on those rights.
[33] Here, there are two distinct and unequivocal waivers of delay by the applicant. The first period was with respect to the setting of the date for the preliminary inquiry. Earlier dates were available, but the applicant wanted a later date to accommodate his school schedule. Both defence and Crown counsel accept there was an explicit s. 11(b) waiver of delay from October 5, 2017 to March 16, 2018 – 162 days (5.5 months).
[34] The second waiver of delay by the applicant was when he applied for the adjournment of the first trial date set for January 6, 2020. Defence counsel accepts that there was a waiver however, submits that the court should conclude that it was only extended to June 2020 when he suggested on the application it was the earliest the applicant would be available. He contends that the waiver should not be considered unequivocal because the hearing justice demanded it be clearly stated on the record that the s. 11(b) waiver by the applicant was to the new trial date. He felt it was unfair of the justice to have done so as it placed him in an antagonistic position with his client’s wishes presumedly to secure the earliest trial date.
[35] It was clear that the application was brought because the applicant was not in a position to proceed on the first trial date. Counsel had not arranged the video-link with the Nanaimo Courthouse as required of him, and the applicant lacked funds for the fees and counsel’s retainer. Moreover, the applicant’s witnesses had limited availability for video-link appearances had they been arranged due to mandatory classes, in the instance of the applicant’s wife and health of his mother.
[36] In my view, it was somewhat disingenuous for defence to submit that the applicant was available in June for trial after his classes were finished, when one of the reasons in seeking an adjournment was due to his lack of funds. Yet, counsel indicated on the record, he assumed the applicant would be in funds “by the end of the summer”. Further, he acknowledged the possibility of a trial date being available in November and stated: “By then, he’ll have enough funds to keep me in funds and to arrange to bring at least one of his witnesses to Toronto.”
[37] I reject the contention that the presiding justice acted in any way unfairly in having it confirmed on the record that the applicant was waiving his s. 11(b) rights.
[38] The justice at the adjournment hearing required an express s. 11(b) waiver on the record because the Jordan timeframe and presumptive ceiling of 30 months would have been reached by the trial date of January 6, 2020, a date available to the court and Crown to proceed. It was at that point in the proceedings due in large part to the earlier waiver of delay by the applicant to the preliminary hearing date.
[39] Any delay beyond the original trial date was at the request of the applicant who was just not ready to proceed.
[40] An explicit waiver was a significant consideration in the presiding justice granting the applicant’s adjournment request. After noting the approaching Jordan date, the justice asked: “Are you prepared to go on the record and say that your client is not going to assert his s. 11(b) rights when he comes back?” The response was unequivocal. Counsel stated he had discussed it in “great detail” with his client and “he’s prepared to waive those rights”.
[41] After the adjournment was granted and the earliest two-week trial date with CCTV equipped courtroom for both Crown and Defence was set, the Crown agreed to a return date in March 2020 to see if an earlier date would become available.
[42] When counsel told the Crown in an email exchange in February 2020 the witnesses could be available in the summer, the Crown checked with the trial coordinator for earlier dates. September 21, 2020 was available for a two-week trial, but CCTV availability was limited.
[43] One has to be mindful of the exceptional intervening circumstances that occurred in March 2020 with the declaration of the COVID-19 pandemic and the effect upon the operation of the courts. It precipitated significant delays due to re-scheduling of hundreds of cases in Toronto alone from March 17, 2020 to July 6, 2020 to ensure the safe reopening for all participants and the community at large. Even then the Crown endeavoured to assist the defence in seeking earlier dates for trial.
[44] I am satisfied on the record before me that there was an explicit s. 11(b) waiver to the new trial date of January 25, 2021, which resulted in a delay of 409 days, (13.75 months).
Defence Delay
[45] In Jordan at para. 64 an example of defence delay occurs when the court and Crown are ready to proceed, but the defence is not - “the period of delay resulting from the unavailability will be attributable to the defence”.
[46] When the preliminary inquiry was held March 16, 2018 a continuation date available to the court and Crown, March 21, 2018 was declined by the defence because the applicant was attending school in British Columbia and not available again until June 2018. The first available date for both defence and the Crown to continue was August 2, 2018.
[47] In this instance, I assessed defence delay as being from March 21, 2018 to June 1, 2018, 76 days (2.5 months).
[48] Counsel for the Crown has submitted that there was a further delay as a result of counsel not having provided earlier dates for judicial pre-trials after the initial Superior Court of Justice appearance of October 3, 2018 until November 2, 2018. The preliminary inquiry committal was on August 30, 2018 and at the request of counsel for the applicant the matter was put over to October 3, 2018. A time period of two months to arrange a judicial pre-trial in the Superior Court following committal is not excessive and while there may be some time accorded to defence delay in not being available within that timeframe it is marginal at best in the overall consideration of delay in this case.
Net Delay
[49] The total waiver and defence delay in this case is 21.75 months (5.5 + 13.75 + 2.5). In the result, the net delay is 21.75 months (total delay 43.5 months less 21.75 months defence delay and waiver).
Discrete Delay
[50] In addition to defence delay, both parties accept that there was a discrete event delay of approximately one month as a result of the presiding justice being unavailable to continue the preliminary inquiry on August 2, 2018 due to illness, which resulted in an adjournment to August 30, 2018.
Conclusion
[51] The net delay, 21.75 months and 1-month discrete delay totals 22.75 months delay.
[52] In the result, the remaining delay 20.75 months (43.5 less 22.75 months) falls well below the presumptive ceiling as set in Jordan. When that is the case, the defence has the onus of demonstrating that there was unreasonable delay.
[53] In Jordan at paras. 82-83 its noted that where the presumptive ceiling has not been exceeded a stay will be rare and granted only in clear cases. To obtain a stay the defence must satisfy two criteria:
(a) the defence took meaningful steps to demonstrate a sustained effort to expedite proceedings; and
(b) the case took markedly longer than it reasonably should have.
[54] All of the net delay in this instance, which took the total delay well below the presumptive ceiling, was to accommodate the applicant.
[55] In this instance, the defence has not met its onus in demonstrating that this is a clear case of unreasonable delay.
[56] The application is dismissed. The matter will proceed to trial on January 25, 2021.
A.J. O’Marra J.
Released: December 18, 2020
COURT FILE NO.: CR-18-10000462-0000
DATE: 20201218
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
A.C.
Applicant
SECTION 11(b) CHARTER APPLICATION
A.J. O’Marra J.
Released: December 18, 2020
[^1]: Monthly time allocations have been rounded to the nearest quarter percent.