COURT FILE NO.: CR-21-3-062
DATE: 20210813
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
MILTON THOMPSON
Applicant
Craig Coughlan, for the Crown
Mary E. Murphy, for the Applicant
HEARD: June 18, 2021
RULING ON AN APPLICATION TO STAY PROCEEDINGS
B.P.O’MARRA J
[1] This ruling turns on how the court should characterize the delay resulting from the decision of the Attorney General (AG) of Ontario to vacate all preliminary inquiries based on its interpretation of Bill C-75, which was federal legislation that made significant amendments to the Criminal Code and other statutes. The Crown submits that this was a discrete event that should be subtracted from the net delay. The applicant submits this is Crown delay. For the following reasons the application is dismissed.
[2] The applicant was alleged to have assaulted his former spouse on several occasions in 2017. He was first arrested and charged in August 2017. A second set of charges related to events on November 18, 2017 were disclosed through witness preparation in April 2018 and were laid on July 16, 2018. The applicant failed to appear for his trial on July 18, 2018. A warrant was issued for his arrest. He turned himself in on August 3, 2018. He was released on bail on August 7, 2018. He was not charged with failing to appear at his first trial and the issue of his non-attendance has never been litigated.
[3] The charges from November 18, 2017 were not laid for more than six months so the Crown had to proceed by indictment. The Crown also joined all of the charges on one information on January 3, 2019. The applicant elected trial by judge and jury. October 23 and 24, 2019 were set on consent for a preliminary hearing.
[4] On June 21, 2019 Bill C-75 received royal assent and on September 19, 2019 amendments came into effect that limited the availability of preliminary inquiries for certain offences. They included the offences alleged against the applicant. The AG of Ontario took the position that effective September 19, 2019 the Ontario Court of Justice (OCJ) no longer had jurisdiction to conduct preliminary hearings for certain offences. Applications were brought by the Crown to vacate preliminary hearings that had already been set. Ontario was the only justice ministry in Canada to take that position. The Public Prosecution Service of Canada did not take steps in Ontario to vacate any preliminary hearings that had been scheduled.
[5] On September 12, 2019 the Crown filed an application to determine the jurisdictional issue. Before that application was heard, Regional Senior Justice Thomas of this court released his decision in R. v. R.S., 2019 ONSC 5497. He found that the OCJ did not have jurisdiction to continue with preliminary hearings that did not conform to the amendments as of September 19, 2021. The parties on the matter before me accepted that R.S. was the law in Ontario pending a further appeal in that case. The applicant decided not to re-elect to have a trial on October 23, 2019. It was agreed that a further judicial pretrial (JPT) would be held to determine how the case would proceed. On November 18, 2019 the decision in R.S. was overturned in a decision reported at 2019 ONCA 906. The court held that where an accused had made his intention known to have a preliminary hearing in a timely way he retained the right to that hearing.
[6] At a JPT on December 11, 2019 a new date for a preliminary hearing was set for March 24, 2020. By mid-March of 2020, and in the months that followed, the Covid-19 pandemic caused the closing and then the gradual, phased reopening of the courts by remote and then some in-person attendances. A preliminary hearing in this matter proceeded on January 11, 2021. The applicant was committed for trial. A JPT was held on February 5, 2021. On February 10, 2021 trial dates were set for January 10-15, 2022.
[7] The applicant does not dispute that the pandemic delay was a discrete event. However, that would still leave 32 months of delay. The total delay is 41 months and 11 days. That includes 5 months and one day related to Bill C-75.
[8] The appellate decision in R.S. dealt specifically with the impact of Bill C-75 but also addressed the doctrine of stare decisis. Justice Doherty at para. 73 stated that following the decision of RSJ Thomas, the OCJ was bound and could not have conducted the scheduled preliminary hearing. Other judges of the OCJ determined that they were bound by that decision and at para. 74 Justice Doherty said they were correct to do so. The subsequent reversal on appeal did not render the Crown position as unreasonable. For a brief time the state of the law on this issue was in flux. In my view this was a discrete and exceptional issue that took a relatively brief time to play out. The time spent in the process should be deducted from the total time to trial. In this case that would take the remaining delay below the presumptive ceiling. The onus then shifts to the defence to prove that the delay is nonetheless unreasonable: R. v. Coulter, 2016 ONCA 704 at paras. 34-41; R. v. Jordan, 2016 SCC 27 at paras. 36-48. The applicant in the matter before me did not submit that the delay was otherwise unreasonable if the time related to Bill C-75 was deducted from the total time to trial.
[9] The application is dismissed.
O’Marra J.
B.P.O’MARRA J.
Released: August 13, 2021
COURT FILE NO.: CR-21-3-062
DATE: 20210813
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
MILTON THOMPSON
Applicant
ruling on an application to stay proceedings
B.P.O’MARRA J.
Released: August 13, 2021