COURT FILE NO.: 4804/20 and 4813/21
DATE: 2022-09-19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Sabrina Montefiore, for the Crown
Respondent
- and -
Stephen Atherley
Scott Reid, for the Applicant
Applicant
HEARD: September 8, 2022
RULING ON APPLICATION PURSUANT TO SECTIONS 11(b) & 24(1) OF THE CHARTER
GAMBACORTA, J.
Overview
[1] Stephen Atherley 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 ("Charter") has been infringed.
[2] The applicant was arrested on February 8, 2019 and charged with robbery with a firearm and number of related offences alleged to have been committed during a home invasion. A preliminary inquiry was held, and the applicant was committed to stand trial December 18, 2020. His trial by judge and jury commenced December 6, 2021 and concluded in a mistrial on December 9, 2021. His new trial is scheduled to commence November 21, 2022 and to conclude December 9, 2022. Accordingly, the time from the charge until the anticipated completion of trial is 46 months.
Background Facts
[3] The applicant and one co-accused were charged on February 8, 2019, with home invasion, robbery and firearm related offences. A third co-accused was subsequently arrested.
[4] The matter took almost 13 months in the Ontario Court of Justice before preliminary hearing dates were set for February 24 to 28, 2020. Due to court and defence medical emergencies, the preliminary hearing did not finish, and new dates were obtained to continue the preliminary hearing April 6 to 9, 2020. The preliminary hearing could not proceed on the continuation dates due to court closures related to the Covid-19 pandemic. New dates were scheduled for continuing the preliminary hearing July 27 to 28, 2020. As the preliminary hearing did not conclude on July 28, 2020, a further date was secured for September 8, 2020. On that day, the applicant did not attend, and Crown counsel had a medical emergency. Defence counsel was not available until December 2, 2020, so another date was secured to continue the preliminary hearing on December 18, 2020. The applicant was committed to stand trial in the Superior Court on December 18, 2020.
[5] The applicant’s first attendance in the Superior Court was on February 17, 2021, at which time pre-trial motions were set for two days on July 22 and 23, 2021 and jury trial dates were set for 8 to 10 days commencing December 6, 2021, due to defence counsel’s unavailability from September through to December 5, 2021.
[6] The pre-trial motions did not proceed on July 22 and 23, 2021. Defence materials were not served or filed in accordance with the Rules of Criminal Procedure and the Crown sought judicial direction. A timeline was set by the court for service and filing of defence application materials. New dates were offered in August, September and October 2021 to conduct the pre-trial motions, subject to filing and officer availability. New pre-trial motion dates were set for September 23 and 24, 2021. The pre-trial motions were heard and continued November 16 and 18, 2021, with a ruling being rendered on November 30, 2021.
[7] The jury trial commenced December 6, 2021 and a mistrial was declared on December 9, 2021 due to the discovery that a juror was friends with the arresting officer in the case. The police witness was (inadvertently) not indicated on the Crown witness list read to the jury panel at jury selection.
[8] The matter was placed on the assignment court list of December 20, 2021 for re-scheduling and the parties reached out to the trial coordinator seeking new dates. The trial coordinator did not provide dates on December 20, 2021, and the matter was adjourned to the assignment court of January 24, 2022. The parties reached out again seeking new trial dates but did not receive a reply before the January 24, 2022 assignment court, and the matter was adjourned to the February 22, 2022 assignment court. Parenthetically, jury trials in the Ontario Superior Court were suspended until January 29, 2022 by directive of the Chief Justice with jury trials commencing February 1, 2022 at the earliest.
[9] On February 8, 2022, the court (through the trial coordinator) offered four separate trial dates to accommodate a 14-day jury trial commencing March 21, 2022, March 28, 2022, July 4, 2022, or November 21, 2022. On February 15, 2022, the Crown’s office confirmed availability for trial commencing March 28, 2022, July 4, 2022 or November 21, 2022. On February 16, 2022, counsel for the applicant confirmed availability for trial commencing November 21, 2022. The dates were set at the February 22, 2022 assignment court.
Position of the Parties
[10] The applicant alleges that the delay violates his right under s.11(b) of the Charter to be tried within a reasonable time and should result in a stay of proceedings. While he concedes certain periods of delay as defence and discrete event delay, he argues the case is not complex or transitional and contends the period remaining (or remainder delay) still exceeds the ceiling set out in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, is therefore unreasonable, and a stay should ensue.
[11] The Crown acknowledges that the gross amount of delay exceeds the Jordan ceiling but submits that, once delay caused by the defence and discrete events is subtracted, the remaining delay is under the presumptive ceiling. In the result, the Crown contends the delay is not unreasonable and the application should be dismissed.
Analysis
The 11(b) framework and Jordan
[12] In Jordan, the Supreme Court of Canada (“SCC”) set a presumptive ceiling for delay in the Superior Court of Justice at 30 months calculated from the date of the charge to the end or anticipated end of the trial. If the total delay, minus defence delay, exceeds the ceiling then the delay is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow: Jordan, at paras. 46-47.
[13] Defence delay has two components; delay waived by the defence (explicit or implicit) and delay caused solely by the conduct of the defence: Jordan, at paras 61 and 63. 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. Defence actions taken to legitimately respond to the charges fall outside the ambit of defence delay such as preparation time: Jordan, at paras. 64 and 65.
[14] Exceptional circumstances are those that lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise: Jordan, at para. 69.
[15] Exceptional circumstances include periods of delay caused by discrete exceptional events and case complexity. The assessment of delay under exceptional circumstances is qualitative in nature. The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded: Jordan, at paras. 73 to 77.
[16] Case complexity is not being advanced as a circumstance justifying the delay in this case. As case complexity does not factor into this analysis, I need not discuss its application to the framework.
[17] As these charges were laid post Jordan, I need not discuss the transitional exceptional circumstance or its application to the framework as it does not apply to this case.
Application to the Case at Bar
[18] The applicant’s case will have taken a total of 46 months to come to its anticipated end (46 months total delay).
[19] The applicant agrees that 8.2 months of the delay can be attributed to exceptional delay occasioned before arriving at the Superior Court (8.2 months discrete/exceptional delay).
[20] At the first appearance in the Superior Court on February 22, 2021, trial dates were set commencing December 6, 2021, predicated on defence counsel’s unavailability for the three-month period between September 2021 and December 2021 (acknowledge by applicant’s counsel on the record). I find this period to be an implicit waiver of delay by the defence (3 months defence delay).
[21] I find that any courthouse closures or suspension of jury trials related to the Covid-19 pandemic occasioned between February 22, 2021 and September 2021, while discrete events, did not cause any delay to this trial (which was already set and proceeded as scheduled) and are irrelevant to this analysis. Further, I am mindful that the applicant did not file his pre-trial motion materials in time to capitalize on his set pre-trial motion dates in July 2021. However, due to the Crown’s proactive resort to case management processes in seeking the assistance of the court, new timelines and dates were set and the motions were heard without disrupting or delaying the set trial dates.
[22] The mistrial occurred due to an honest and inadvertent error by the Crown, but it cannot be said to have laid outside of the Crown’s control or have been reasonably unavoidable. The Crown bears the onus of proof and is at liberty to design its case in its sole discretion. While the defence and the court were aware Officer Tanasi could or would likely be called as a witness as a result of pre-trial motion evidence, the responsibility to list the names of potential Crown witnesses to be called at trial laid with the Crown. Therefore, so too does the resulting delay.
[23] Despite swift action by the Crown and defence to set new trial dates immediately after the mistrial, the court did not offer them until February 8, 2022. Four sets of trial dates were offered, the first of which was slated to commence March 21, 2022 within six weeks’ time (14 weeks post mistrial). The date was not available to the Crown. Thereafter, the Crown and court were available to accommodate the three other trial dates, the next of which was slated to commence March 28, 2022, within seven weeks’ time (15 weeks post mistrial). The applicant chose the last of the offered dates for trial commencing November 21, 2022 due to his counsel’s unavailability for the earlier trial dates offered.
[24] The defence argues that the entire delay from mistrial to new trial, or at the very least from mistrial to the July dates, should be attributed to the Crown despite its unavailability for the March 28, 2022 and July 4, 2022 trial dates. The applicant contends that if the new trial dates had been offered earlier, when canvassed, his lawyer’s office could likely have accommodated them. Moreover, he relies on the proposition that it would be unreasonable to expect counsel to hold themselves in a state of perpetual availability for 11(b) purposes, citing the 2009 decision of the SCC in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3 in support.
[25] With its judgment in Jordan, the SCC pronounced a change of direction and new 11(b) framework defined by numerical ceilings. It did so in an effort to enhance analytical simplicity and foster constructive incentives, describing the previous Morin framework as too unpredictable, confusing and complex: Jordan, at para. 38.
[26] Further, the SCC placed an obligation on all of the participants to actively mitigate delay and to ensure that the trial concludes within a reasonable time: Jordan, at para. 50.
[27] The framework in Jordan was decided seven years post Godin and defined a new path forward on how reasonableness should be assessed. The court in Jordan was explicit that defence will have directly caused delay if the court and the Crown are ready to proceed but the defence is not, and the period of delay resulting from that unavailability will be attributed to the defence and subtracted from the total delay. This is a quantitative deduction, not a qualitative one.
[28] This was reaffirmed in R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659 at para. 30. The purpose being to prevent the defence from benefiting from its own delay-causing action or inaction: Cody, at para. 28.
[29] Here, I found that the mistrial, while unforeseen, was not unavoidable. As such, any delay resulting from the mistrial to the first available date to try the matter (when the court and the Crown could accommodate a new trial) will be included in the calculus of delay and not deducted as a discrete exceptional event. To hold otherwise would be to allow defence waiver or inaction to determine the length/resulting period of delay and benefit from it. I find that the parties made reasonable efforts to respond to their Jordan obligation, as did the court, by prioritizing the case and offering early dates. Whatsmore, the defence unavailability for the three earlier offered dates was not predicated on the need to prepare its case, but rather on scheduling conflicts. I do not accept counsel’s submission that, had the dates been offered sooner, his office could likely have been available. It is hypothetical. It is based on speculation, not evidence. In the result, I find that the 7.8-month period from March 28, 2022 (when the Crown was willing to proceed) to November 21, 2022 (when applicant’s counsel was available) is attributable to the defence (implicit waiver) (7.8 months defence delay).
The Calculus (Calculation of Delay) and Conclusion
[30] Forty-six (46) Months Total Delay:
a. Less 10.8 months Defence Delay
Equalling 35.2 months Net Delay (The applicant has established the delay is unreasonable)
b. Less 8.2 months Discrete/Exceptional Delay
Equalling 27 months Remaining Delay (The Crown has rebutted the presumption as the delay is below the presumptive ceiling in the Superior Court)
[31] The applicant does not contend a stay should be entered in the event the court finds that the delay falls below the presumptive ceiling. Accordingly, I find the delay occasioned in this case to be reasonable in the circumstances, and the application is dismissed.
G.B. Gambacorta, J.
Released: 2022-09-19
COURT FILE NO.: 4804/20 and 4813/21
DATE: 2022-09-19
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Respondent
- and -
Stephen Atherley
Applicant
RULING ON APPLICATION PURSUANT TO SECTIONS 11(b) & 24(1) OF THE CHARTER
G. B. Gambacorta, J.
Released: 2022-09-19