COURT FILE NO.: CR-21-30000464-0000 DATE: 20221011
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
JOSHUA HAMBLETT AND KEEGAN PROPHETE
J. Smith, for the Crown
S. Dallall, for Mr. Hamblett G. Logan, for Mr. Prophete
HEARD: 14 July 2022
S.A.Q. AKHTAR J.
RULING ON SECTION 11(B) APPLICATION
FACTUAL BACKGROUND AND OVERVIEW
Introduction
[1] Joshua Hamblett and Keegan Prophete are charged with numerous offences related to the human trafficking for sexual services of two complainants.
[2] The police also charged a third accused, Mr. Hamblett’s girlfriend, Sashuana Wilkins. However, shortly before the preliminary inquiry in this matter was due to commence, Ms. Wilkins provided a statement to the police which led to the Crown severing her from the information and informing counsel for the co-accused that it intended to call her as a Crown witness.
[3] Mr. Hamblett was charged on 1 December 2018, and Mr. Prophete on 4 December 2018. Their trial is scheduled to commence on 9 January 2023 and last 3 weeks with an anticipated end date of 27 January 2023.
[4] This would bring the total period of delay between charge and end date to 1,519 days or approximately 50 months.
[5] Both accused apply, pursuant to the principles enunciated in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 for a stay of proceedings arguing a violation of their right to be tried within a reasonable period of time under s. 11(b) of the Charter of Rights and Freedoms.
The Timeline of Events
1 December 2018: Joshua Hamblett and Sasauhna Wilkins are arrested and charged with Human Trafficking offences in regard to two complainants. Keagan Prophete is arrested and charged on 4 December 2018.
2 December 2018: The information jointly charging the Mr. Hamblett and Ms. Wilkins is sworn.
26 April 2019: A new information is filed adding further charges against Mr. Hamblett and Ms. Wilkins as a result of a second statement from one of the complainants.
16 May 2019: A judicial pre-trial is conducted for all three accused.
30 May 2019: The preliminary inquiry is set for 6-8 November 2019.
4 November 2019: Counsel for Mr. Hamblett requests an adjournment of the preliminary inquiry based on Ms. Wilkins’ police statement and the Crown’s stated intention to call her as a witness at the hearing. The Crown consents to the application which is granted. New preliminary inquiry dates are set. Although the Crown and the court are available on 20 April 2020, Mr. Hamblett’s counsel is not. The preliminary inquiry date is accordingly scheduled to proceed on 25 May 2020.
4 May 2020: The closure of the courts due to the COVID-19 pandemic means that the 25 May 2020 must be vacated as all trial and preliminary inquiry hearings are temporarily suspended until 6 July 2020.
13 August 2020: A new judicial pre-trial is held to determine a new date.
2 October 2020: New dates of 17-19 February 2021 for the preliminary hearing.
17-19 February 2021: The preliminary hearing commences but cannot be completed in the allotted time. Further dates are secured (25 February 2021, 8 March 2021 and 22 March 2021 16 June 25 June) and the parties make submissions on 25 June 2021. On 29 July 2021, the preliminary inquiry judge committed both accused for trial.
12 August 2021: The accused make their first appearance at the Superior Court of Justice.
17 August 2021: The matter appears in Practice Court and is remanded to a judicial pre-trial on 17 September 2021.
17 September 2021: A judicial pre-trial was conducted with the parties estimating that a jury trial would take 15 days along with 5 days for pre-trial motions and 2 days for a s. 11(b) application.
28 September 2021: The pre-trial motions dates were put on the record. The trial date was still to be agreed upon by the parties.
5 October 2021: A 15-day trial, scheduled to commence on 9 January 2023 and end on 27 January 2023 is fixed.
Positions of the Parties
[6] Both parties agree that the overall delay in this case exceeds the Jordan presumptive guidelines as the delay from charge (21 December 2018) to the anticipated completion of the trial (27 January 2023) is 49.9 months, or 1,519 days.
[7] There is also some agreement between the parties with respect to periods of defence delay:
After the first preliminary inquiry date was adjourned, the Crown and the court was available on 20 April 2020 but the defence were not. Their first available date was 25 May 2020. This period of 35 days, or 1 month and 5 days is conceded to be defence delay and should be deducted from the total delay.
The pandemic which began in March 2020 necessitated the adjournment of the second preliminary inquiry date of 25 May 2020. The matter was re-scheduled to 17 February 2021. This period of 8 months and 23 days is also conceded by the applicants to fall within the exceptional circumstances category and to be deducted from the final delay total.
[8] However, the applicants claim that there should be no further deductions. The Crown, on the other hand, submits that there are further periods of delay that either fall at the feet of the applicants or constitute delay that amounts to unforeseen and exceptional circumstances.
LEGAL PRINCIPLES
The Presumptive Ceiling
[9] In Jordan, the Supreme Court of Canada dramatically changed the s. 11(b) guidelines which had been in effect since the Supreme Court of Canada’s decision in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771.
[10] The Court set a new ceiling of 30 months for offences tried by indictment beyond which delay was presumed unreasonable. 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.
[11] 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 commencing prior to Jordan, the Crown may rely on the “transitional period exception”, using the Morin standards to determine whether the delay was unreasonable.
[12] In R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-41, the Court of Appeal for Ontario set out the following step-by-step 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.
[13] See also: R. v. Gordon, 2017 ONCA 436, 137 O.R. (3d) 776.
[14] Although some of the delay was caused by the lack of availability of either counsel on certain dates, there was no real argument by either of the applicants that an individualised approach, as set out in R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, was appropriate in this case.
[15] Rather, I find from the record, that the communal approach set out in R. v. Albinowski, 2018 ONCA 1084, [2018] O.J. No. 6892 at paras. 37-39; and R. v. Pauls, 2020 ONCA 220, 149 O.R. (3d) 609 at paras. 53-54 is applicable in this case.
[16] The defence worked together in a united manner. Each counsel appeared to agree or acquiesce with the other’s representations as the matter made its way through the court process. There was no application for severance by one of the accused citing delays by the other. Each seemed content with a joint approach.
[17] For these reasons, I find the delay factors are common to both accused.
The First Preliminary Inquiry Date
[18] There appears to be three controversial dates which divide the parties in this case.
[19] The first of these is the setting and subsequent adjournment of the first preliminary inquiry date. It is useful to review the background to the defence request that the preliminary inquiry be moved.
[20] On 8 October 2019, Ms. Wilkins, the third co-accused, on her own initiative and with the assistance of legal counsel, provided a videotaped statement to the police recorded at her lawyer’s office. Ms. Wilkins provided evidence relating to the charges faced by her co-accused as well as allegations against Mr. Hamblett in connection with a separate prosecution.
[21] Both the Crown and defence received a video copy of the statement along with a 20-page summary after which the Crown indicated it would be calling Ms. Wilkins as a witness at the preliminary inquiry.
[22] On 4 November 2019, the defence appeared before the Ontario Court of Justice requesting an adjournment of the 6-8 November dates based on the new material. The Crown consented.
[23] The applicants argue the subsequent delay must lay at the feet of the prosecution.
[24] The Crown, on the other hand, relies on R. v. Cody, 2017 SCC 31, [2017] S.C.J. No. 31, and argues that the provision of Ms. Wilkins’ statement was an unforeseen event beyond its control. Accordingly, says the Crown, this period of delay must be treated as an exceptional circumstance under the Jordan principles.
[25] In Cody, new disclosure came to light on the eve of a defence application to exclude evidence at trial pursuant to the Charter. The matter was adjourned for five months, part of which was deducted from the total delay because the Court found that the new disclosure qualified as a discrete event “and the Crown acted responsibly in making prompt disclosure, following up as the matter proceeded, and seeking the next earliest available dates”: Cody, at para. 54.
[26] The Crown says this is what happened in this case.
[27] Whilst I agree that this period of time ought to be deducted from the total delay, I am not entirely sure that it can be characterised as a discrete event. There is some similarity to Cody, but also some important differences.
[28] First, Cody involved the provision of disclosure in the midst of pre-trial motions, whereas here, the change of events occurred prior to a preliminary inquiry. The transcript of 4 November 2019 indicates that the applicants received the video statement either the week before 4 November 2019, or “about a week and a half after the statement was given or two weeks after the statement was given”. Since the statement was made on 8 October 2018, the timing of receipt would have been around 22 October 2019 or shortly thereafter.
[29] It is unclear why the applicants, who would have been in possession of the statement for at least 9 days (or even longer if it was provided two weeks after it was made), would require an adjournment to cross-examine Ms. Wilkins. The applicants explanation is that because Ms. Wilkins had become a Crown witness, they also wished to cross-examine her on cell phone extractions from devices seized by the police. They argue that those extractions might have contained significant material contradicting her claims.
[30] I repeat my observation that this was a preliminary inquiry. The primary purpose of the preliminary inquiry is to determine whether there is sufficient evidence for committal with the defence obtaining an advantage of discovery from the witnesses called to testify. It is not a forum that mandates that the defence possess every single piece of evidence that might relate to a witness prior to their testimony. In other words, the defence has a constitutional right to full disclosure before trial, but not at a preliminary inquiry: R. v. Girimonte (1997), 1997 CanLII 1866 (ON CA), 121 C.C.C. (3d) 33.
[31] Notwithstanding these principles, the defence had been in possession of Ms. Wilkins’ statement for over a week, if not two weeks - more than sufficient time to prepare to cross-examine her. Nor was there any basis for throwing away three days of court time in the Ontario Court of Justice on the possibility that further disclosure from the cell phone records “might” contain material that could be the subject of cross-examination.
[32] Whatever material was obtained from the cell phone extraction - significant or not - would be in defence hands prior to trial and available for use if Ms. Wilkins testified. The cancellation of three assigned days of court time which resulted in a further delay of almost six months was completely unjustified, particularly when the defence were unaware of what the cell phone records contained.
[33] The Supreme Court of Canada’s decision in Jordan demanded a culture change by all participants. It is an uncontroversial fact that available time in the Ontario Court of Justice is a precious commodity. In this case, the parties should have proceeded with the hearing and used the days that were available. If more time was required, it could have been booked prior to the hearing commencing or at the end of the third day.
[34] Given the Crown’s position, I am prepared to allocate this period of time as a discrete event. However, part of it could, just as easily, be characterised as defence delay.
[35] In light of these findings, I conclude the period from 4 November 2019 to the next available court date of 20 April 2020 was a discrete event. Counsel for the applicants have already agreed that the period between 20 April and 25 May 2020 constitutes defence delay as counsel for Mr. Hamblett was unavailable at that time.
Time to be deducted: 203 days
The Effects of the Pandemic
[36] As noted, the applicants do not dispute that the period between 25 May 2020 and 17 February 2021 constitutes a discrete event caused by the onset of the COVID-19 pandemic which resulted in an initial shut down of the courts, and a later limited re-opening which caused cases to be adjourned for a lengthy period of time.
Time to be deducted: 268 days
The Preliminary Inquiry Overrun
[37] After scheduling the second preliminary inquiry to start on 17 February 2021, further judicial pre-trials were held to ensure that three days were sufficient. All parties agreed that it was. However, by the second day of the hearing, it became apparent that further dates would be required. Three more days were added and the hearing was concluded on 25 June 2021.
[38] The Court in Jordan recognised that there would be situations that where a trial has exceeded its anticipated end date, and where the parties have made best efforts to estimate realistic time limits, the delay that ensues should be considered as a discrete event. As the majority explained at paras. 73-74:
Discrete, exceptional events that arise at trial may also qualify and require some elaboration. Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. For example, a complainant might unexpectedly recant while testifying, requiring the Crown to change its case. In addition, if the trial goes longer than reasonably expected — even where the parties have made a good faith effort to establish realistic time estimates — then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance.
Trial judges should be alive to the practical realities of trials, especially when the trial was scheduled to conclude below the ceiling but, in the end, exceeded it. In such cases, the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling. Trial judges should also bear in mind that when an issue arises at trial close to the ceiling, it will be more difficult for the Crown and the court to respond with a timely solution. For this reason, it is likely that unforeseeable or unavoidable delays occurring during trials that are scheduled to wrap up close to the ceiling will qualify as presenting exceptional circumstances.
[39] In R. v. Jurkus, 2018 ONCA 489, [2018] O.J. No. 2899 at para. 55, the court held that these comments “have equal application when it comes to a preliminary inquiry”.
[40] As noted, with discrete events, the Crown is expected to mitigate any subsequent delay. The record shows that all parties did so seeking the earliest available dates and arranging their schedules to ensure that they could attend to ensure completion.
[41] For this reason, the period of time between 19 February 2021 (the scheduled end date of the preliminary inquiry) and 25 June 2021 (the date the preliminary inquiry completed) is deducted.
Time to be deducted: 127 days
The Trial Date
[42] After committal to the Superior Court of Justice, a judicial pre-trial was held on 17 September 2021 when the parties indicated that the applicants’ jury trial would take three weeks. The Crown and defence sought, by a series of email communications, to agree a trial date.
[43] In its factum, the Crown details a series of dates upon which the defence were available through April and May 2022 and then from September onwards.
[44] However, the court and the Crown were available from 6 June 2022 although the defence were not. The only mutually available date for both counsel was the trial date of 9 January 2023.
[45] It is clear that the Jordan clock stops running from the date on which both the Court and the Crown were available: Jordan, at para. 64; Cody, at para. 30; R. v. Mallozzi, 2017 ONCA 644, O.J. No. 4303 at para. 34. Accordingly, the time between 6 June 2022 and 9 January 2023 is therefore deducted as defence delay. This would require a deduction of 7 months 3 days from the total delay.
Total time deducted: 217 days
The Ripple Effect
[46] The Crown makes one further argument regarding the time to be deducted. The Crown submits the court should take notice of the fact that the COVID-19 pandemic not only caused direct delays but also a “ripple” effect due to the backlog created by the closure of the courts.
[47] Some judges have used this indirect delay as a form of discrete event caused by exceptional circumstances. For example, in R. v. Hamidi, 7 January 2022, unreported (ONCJ), Chapman J. deducted 60 days due to the limited scheduling availability caused by the pandemic. In R. v. Titus, 2022 ONSC 3484, at paras. 17-18, Dunphy J. made the following comments:
The current backlog in cases awaiting a hearing cannot in any way be attributed to a re- emerging culture of complacency that Jordan directed all justice system participants to work diligently to eliminate. The backlog is the mathematical result of the cascading systemic impact of cancelled scheduled hearing dates and deferred scheduling of future hearing dates occurring during the periods of total physical closures of court operations plus other periods of only partial re-opening where fewer hearings than normal were able to be processed. The resulting backlog is in the process of being worked through but, like the proverbial pig in the python, it will take some time before it can be considered to be fully digested.
The simple fact of the matter is that the justice system cannot expand and contract at will and without limit to accommodate every contingency. There has never been an emergency in the history of the administration of justice in this country that has resulted in this degree of court closures lasting for anything close to this amount of time. Ever.
[48] See also: R. v. Venne, 2021 ONCJ 80, at paras. 31-34; R. v. Robinson, 2021 ONSC 2445, at paras. 102-103; R. v. Khan, 2021 ONCJ 195, at para. 14.
[49] I agree with these cases and would find that it would be appropriate to deduct an amount of time in recognition of the “ripple” effect caused by the pandemic’s closing of the court. However, since I have already found that the time estimate falls below the 30 months guideline set by Jordan, there is no need to address the amount of time in this case.
Conclusion
[50] I find that the following amount of time must be deducted from the total time of 1519 days:
• Re-scheduling of first preliminary inquiry (4 November 2019 to 25 May 2020): 203 days
• The adjournment of the preliminary inquiry date due to COVID-19 (25 May 2020 to 17 February 2021): 268 days
• The overrunning of time of the preliminary inquiry (19 February 2021 to 25 June 2021) 127 days
• The setting of the trial date (6 June 2022 to 9 January 2023) 217 days
[51] This amounts to a total of 815 days.
[52] When this is deducted from the net delay of 1,519 days, it leaves a total of 704 days or approximately 23 months and 4 days, a figure that rests below the Jordan threshold.
[53] Accordingly, I find no breach of s. 11(b) and the application is dismissed.
S.A.Q. Akhtar J.
Released: 11 October 2022
COURT FILE NO.: CR-21-30000464-0000 DATE: 20221011
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
JOSHUA HAMBLETT AND KEEGAN PROPHETE
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.