COURT FILE NO.: CR-23-46
DATE: 2023 09 27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Sam Weinstock, for the Crown/Respondent
- and -
KEVIN NYADU
Heather Spence, for the Defendant/Applicant
HEARD:
11(b) Motion RULING
MIRZA J.
OVERVIEW
[1] Kevin Nyadu, brought an application pursuant to sections 7 and 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms for a stay of proceedings on the basis that his right to a trial within a reasonable time has been infringed.
[2] The motion was heard before me on September 11, 2023. There is a trial confirmation date of September 29, 2023.
[3] The Applicant’s trial proceedings are comprised of a four-day section 8 Charter motion followed by a two-week jury trial. The motion is set for October 10-13, 2023. The trial dates are January 8-19, 2024.
[4] The parties agree that the jury trial is scheduled to complete in 27 months and 13 days (27.5 months). This is 2.5 months below the 30 month ceiling for a Superior Court trial pursuant to R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.
[5] For the reasons that follow, I have determined that 27.5 months for the Applicant’s trial to conclude in the Superior Court of Justice does not breach his right to be tried within a reasonable time. The Applicant has not demonstrated that there has been a violation of sections 7 and 11(b) of the Charter. On this timeline, the case will not have taken markedly longer than it reasonably should have in the overall circumstances.
[6] Although the cumulative delay is not markedly longer than it should have, as I will explain, I do find that there are periods of delay caused by the Crown’s management of the case that are problematic. Consistent with the direction in Jordan, supra, for all actors to do more to achieve reasonably prompt justice, the facts of this case demonstrate the importance of better communication between the parties with transparent and timely procedural decisions.
[7] Due to the short turnaround time from the hearing of this motion to the trial confirmation date, out of necessity I will be relatively brief in my reasons to assist the parties moving ahead.
ALLEGATIONS
[8] On the indictment, the Applicant is charged with Possession of a Restricted Weapon (s. 91(3)), Possession of a Restricted Weapon without a License (s. 92(3)), Careless Storage of a Firearm (s. 86(3)) and Possession of a Weapon Dangerous to the Public (s. 88(2)) contrary to the Criminal Code. The Applicant is also charged with two counts of Possessing for the Purposes of Trafficking a Substance (s. 5(2)) under the Controlled Drugs and Substances Act. The substances are cocaine and fentanyl.
[9] In 2021, York Regional Police (YRP) investigated the Applicant for drug trafficking. Officers conducted surveillance, which was aided by a tracking device on a vehicle owned by the Applicant. On October 6, 2021, officers arrested the Applicant.
[10] The Crown’s materials indicate that officers seized approximately 30 grams of cocaine, 4.5 grams of fentanyl, and a scale from the vehicle the Applicant was driving at the time. They also seized a key ring attached to the car key. The additional keys opened a storage locker and, within the locker, a safe in which officers found two semi-automatic Glock handguns and three extended-capacity magazines, two of which contained ammunition.
[11] YRP also charged several other individuals connected to the investigation. Tyasia Love was charged in connection with the firearms in the storage locker. Emmanuel Amponsah and Albert Effah were charged with offences arising from a search warrant executed at 34 Bottomwood Street, Brampton, on October 6, 2021. Police had observed Mr. Amponsah engaging in suspected drug trafficking with the Applicant and another individual, Richard Ameyaw, outside 34 Bottomwood on September 17, 2021. Police arrested Mr. Ameyaw that day and seized 13.5 grams of fentanyl.
[12] As a result of the overall related circumstances, these individuals were case managed as co-accused.
PROCEEDINGS
[13] I have reviewed the parties’ respective application records including affidavits, transcripts and correspondence etc. I will summarize the relevant dates as required.
[14] Attached as Appendix A is a chart of the relevant dates in this case based on materials prepared by the Defence. The dates and events described were not disputed by the Crown.
[15] The charges against the five co-accused commenced in the Ontario Court of Justice in Newmarket.
[16] An information pertaining to the Applicant was sworn October 7, 2021. He was released on bail on October 12, 2021.
[17] I am informed that because the YRP handled the investigation, this circumstance informed the Crown’s decision for the case to proceed in Newmarket court. However, in general, the primary factual allegations occurred in either Toronto or Brampton.
[18] By May 5, 2022, the Crown decided to transfer the case to Brampton. Up to this point all set dates and a judicial pre-trial were conducted in Newmarket.
[19] I was informed that the Crown decided to transfer the case to Brampton because in a different case, Superior Court Justice Fuerst presiding in Newmarket, refused to accept a case where there was no factual nexus in relation to the allegations to York Region.
[20] Over the course of several months and prior to this understanding, the parties made 8 appearances in the Ontario Court of Justice, Newmarket. The Defence made disclosure requests. Crown disclosure was provided to the Defence in multiple electronic waves.
[21] The court appearances sought to manage and keep the co-accused together. This required some adjustments to set dates to try to keep the parties joined.
[22] As the Crown continued to assess their case against the co-accused, decisions about whether to proceed against certain individuals and severance, were made at different times and stages.
[23] On March 2, 2022, the charges against Mr. Effah were withdrawn.
[24] On April 25, 2022, a Judicial Pre-trial (JPT) was held for the four remaining accused, including the Applicant.
[25] At the court appearance on April 25, 2022, in furtherance of the JPT, the Applicant’s counsel expressed that they were open to proceed directly to an Ontario Court of Justice trial. However, the co-accused Mr. Amponsah elected for a preliminary hearing and a judge and jury trial. At this time, the Crown would not sever the Applicant.
[26] Since the case was prosecuted jointly, Mr. Amponsah’s election bound the co-accused, including the Applicant, unless the Crown agreed to severance.
[27] As noted above, on May 5, 2022, the Crown indicated the case was being transferred to Brampton.
[28] On May 11, 2022, Ms. Love’s charges were withdrawn by the Crown in Newmarket upon her providing a statutory declaration.
[29] June 10, and June 24, 2022, were appearances in Brampton to move the matter towards setting preliminary hearing dates. On June 10, 2022, the Crown indicated that the JPT in Newmarket and completed forms therein would apply. There was no need for another JPT. An appointment with all counsel and the trial co-ordinator (TC) was to be arranged.
[30] On June 24, 2022, the parties confirmed that the preliminary hearing dates would be set with the TC on June 29, 2022.
[31] Preliminary hearing dates of November 27 to December 1, 2023, were obtained.
[32] On August 5, 2022, Defence counsel, Mr. Fletcher, appearing as agent for the Applicant, indicated that it would be over 25 months to get to the preliminary hearing and 11(b) was a live issue.
[33] On January 19, 2023, the Crown emailed Defence counsel and advised that the Crown is filing a direct indictment with respect to Mr. Nyadu and Mr. Ameyaw. In this email, the Crown also stated that they intended to bring the matter forward to stay Mr. Amponsah’s charges.
[34] On January 24, 2023, Defence counsel for the Applicant, emailed that Mr. Nyadu and Mr. Ameyaw wanted to elect trial in the Ontario Court of Justice. Counsel suggested that a JPT be set to revise the estimate for trial and to preserve the November preliminary hearing dates and add or subtract dates after a JPT. The Crown responded that the filing of a direct indictment in Superior Court meant that a trial in the Ontario Court was not possible.
[35] On January 25, 2023, in court, the Crown filed the direct indictment against the Applicant and Mr. Ameyaw. The Crown formally stayed the charges against Mr. Amponsah. The Defence reiterated that it wanted a trial in the Ontario Court of Justice and that the Crown would not consent.
[36] On February 3, 2023, a date for the Superior Court JPT was set for February 23, 2023.
[37] On March 1, 2023, the JPT continued. At the appearance, the Crown severed Mr. Nyadu and Mr. Ameyaw. Trial dates were set for 2 weeks starting January 8, 2024. Also, October 10, 2023, was set for a Charter motion. The time from March 1, 2023, to January 8, 2024, is about 10 months and 10 days.
POSITIONS:
Defendant/Applicant:
[38] The Applicant submits that the Crown failed to conduct a diligent and timely prosecution of this case. The Applicant wanted a trial in the Ontario Court of Justice and requested severance before preliminary hearing dates were set. Severance was a continuing request. Staying the charges against Mr. Amponsah was done late. Only Mr. Amponsah wanted a preliminary hearing and jury trial. Further, the direct indictment was obtained late. There was inaction by the Crown for 6 months after the preliminary hearing was set.
[39] During submissions at this motion, the Defendant’s counsel was asked whether their trial estimate would be less if the matter proceeded as a judge alone trial in the Ontario Court (or Superior Court). Counsel indicated that the Charter motion and trial time would be similar. The Defence elected to have a jury trial.
The Crown/Respondent:
[40] The Crown concedes that the Defendant has demonstrated that there has been defence initiative.
[41] Their main argument is that the case has not taken markedly longer than is reasonably necessary. They acknowledge that there have been “bumps in the road” pertaining to some areas such as the case requiring a transfer to Brampton and the time associated with the preferred indictment. Still, the Crown submits that from an overall perspective as required, the case is to be completed within a reasonable period.
THE LAW
Essential Principles
[42] A criminal defendant has the right “to be tried within a reasonable time” under s. 11(b) of the Canadian Charter of Rights and Freedoms. If that right is violated the remedy is a stay of the charges.
[43] In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the Supreme Court established the framework for trial courts to assess delay in determining whether the right to be tried within a reasonable time has been violated and whether charges should be stayed.
[44] In R. v. Bulhosen, 2019 ONCA 600 at paras. 69-71, leave to appeal refused, [2019] S.C.C.A. No. 423, the Court of Appeal rejected the submission that when the Crown prefers an indictment the 18-month limit, normally applicable to cases that proceed in the Ontario Court of Justice, should apply. A 30-month limit applies to Superior Court trials, whether by the accused’s election for a Superior Court trial without a preliminary hearing, direct indictment, or following a preliminary hearing.
[45] In determining an 11(b) motion, the Court is required to consider the bigger picture. Parsing of time periods as per the prior framework is discouraged. Still, the overall decision-making by the parties is under review while maintaining a bird’s-eye view.
[46] In Jordan, supra, the Supreme Court stated at para. 91:
Determining whether the time the case has taken markedly exceeds what was reasonably required is not a matter of precise calculation. Trial judges should not parse each day or month, as has been the common practice since Morin, to determine whether each step was reasonably required. Instead, trial judges should step back from the minutiae and adopt a bird's-eye view of the case. All this said, this determination is a question of fact falling well within the expertise of the trial judge. [Citation omitted.]
Delay Below the Presumptive Ceiling:
[47] In Jordan, supra, the Supreme Court established a framework to determine if delay below the presumptive ceiling is unreasonable and warrants a stay of proceedings. First, there must be defence initiative to expedite the proceedings to obtain earlier dates. The defence is required to act reasonably, not perfectly.
[48] Second, the defence must establish that the time the case has taken markedly exceeds the reasonable time requirements of the case.
[82] A delay may be unreasonable even if it falls below the presumptive ceiling. If the total delay from the charge to the actual or anticipated end of trial (minus defence delay and delay attributable to exceptional circumstances that are discrete in nature) is less than 18 months for cases going to trial in the provincial court, or 30 months for cases going to trial in the superior court, then the defence bears the onus to show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. Absent these two factors, the s. 11(b) application must fail.
[83] We expect stays beneath the ceiling to be granted only in clear cases. As we have said, in setting the ceiling, we factored in the tolerance for reasonable institutional delay established in Morin, as well as the inherent needs and the increased complexity of most cases.
Defence Initiative – Meaningful and Sustained Steps
[84] To discharge its onus where delay falls below the ceiling, the defence must demonstrate that it took meaningful, sustained steps to expedite the proceedings. “Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the court must consider” (Morin, at p. 802). Here, the trial judge should consider what the defence could have done, and what it actually did, to get the case heard as quickly as possible. Substance matters, not form.
[49] In R. v. K.J.M., 2019 SCC 55, [2019] 4 SCR 39, at paras. 107-111, the Supreme Court instructed that the focus regarding reasonable time requirements of the case is on whether the case took markedly longer than it reasonably should have to be completed. It is not about whether the case should have been completed in less time.
ANALYSIS
Facts Applied to the Law:
[50] The Crown fairly concedes in their factum that the Defence has acted reasonably and taken steps to expedite the proceedings. I agree.
[51] The primary focus of this motion is the second branch of the test: whether the delay markedly exceeds the reasonable time requirements of the case.
[52] I have considered the totality of the Defence position concerning causes of delay and combined consequences of how the case progressed. My reasons deal with the primary grounds raised under headings to enhance cogency.
Severance:
[53] The Defence submits that the Crown’s decision to sever the Defendant should have occurred earlier than March 1, 2023. It could have been done earlier as requested by the Applicant and while the matter was still before the Ontario Court of Justice. Severance in combination with a Crown prioritization of this matter with a request to the court for earlier dates could have reduced delay.
[54] I agree that in the right circumstances, timely severance can be in the interests of justice and serve as an effective way to alleviate delay and prejudice to the accused.
[55] However, the central issue in this case is whether the case took markedly longer than it reasonably should have to be completed.
[56] In this case, it did not.
[57] The Defence did not establish that a multi-week trial would have been completed significantly sooner had the Applicant received severance earlier and the Applicant’s case proceeded directly to trial in the Ontario Court of Justice.
[58] Although a decision to sever a defendant from his co-accused in a timely manner may reduce delay below the Jordan limits in the right circumstances, this is not one of those cases where an earlier decision would have meant a significant saving of delay given the Applicant wanted a trial in the Ontario Court of Justice. At the relevant time, as demonstrated by the preliminary hearing dates, the Ontario Court of Justice, was experiencing significant delays and backlog.
[59] The failure to sever earlier to permit the case to proceed to trial in the Ontario Court of Justice did not cause the case to take markedly longer than was reasonably necessary.
[60] In the Ontario Court of Justice, Brampton, the dates of November 27 to December 1, 2023 were set for a five-day preliminary hearing. These dates were about 17 months from the date on which they were set, and 25 months after the information was sworn.
[61] The timing from the laying of the information to the setting of the dates (October 7, 2021 to June 29, 2022) was not unreasonable on these facts involving a multi-accused case and considerable disclosure. The Defence did not establish that this period involved problematic Crown decisions that contributed to a markedly longer time to trial.
[62] The JPT was held April 25, 2023, and adjourned to May 11, 2023, to set dates until the Crown intervened to bring the case forward to May 5 to be transferred to Brampton.
[63] My assessment takes into consideration the approximately one month and three weeks (May 5 to June 29) of delay to set dates caused by the case being transferred to Brampton and being re-organized. Although this was avoidable, the case is still reasonably below the 30-month limit.
[64] The preliminary hearing dates were set with the trial co-ordinator around June 29, 2022. They were put on record on August 5, 2022. At the August appearance, Defence counsel said the November 27 et al. preliminary hearing dates were the earliest available dates offered. I am advised by counsel that in fact, the first date offered to counsel was October 30, 2023. Had the October date been accepted, the delay in the Ontario Court from the setting of the dates to the preliminary hearing conclusion would be about 16 months.
[65] During oral submissions, the Applicant’s counsel was asked for their view on how long a judge alone trial would reasonably take to complete. In other words, whether it would require significantly less time than the three weeks in total it is currently set for in the Superior Court for a Charter motion then jury trial. The Applicant’s counsel submitted that if the matter proceeded in the Ontario Court of Justice, Brampton, as a single accused, the Applicant’s trial still required up to three weeks to complete.
[66] That estimate may be too high with appropriate steps taken to improve efficiency and the absence of time to select the jury. Still, it means that up to three weeks of court time would be required in the Ontario Court of Justice.
[67] Even if the parties found reasonable ways to reduce trial time down to two weeks, a trial of two weeks is double the amount of time originally set at the provincial court. That means that a trial in provincial court, as requested by the Applicant, would have required far more court time than originally scheduled.
[68] From the time the parties were ready to set dates, it is reasonable to infer that the hearing dates for a two to three week trial in provincial court would have extended the delay in that forum, not reduced it. Factoring the intake time, the case would have taken more than the 25 months it was anticipated to languish in the Ontario Court when only 5 days were required for a preliminary hearing.
[69] On this record, no evidence was put forward to indicate that earlier dates could have been obtained for a trial and Charter motion of multi-week duration in the Ontario Court of Justice as compared to a briefer preliminary hearing. It is unlikely that the Applicant would have received an earlier trial given the higher number of days that would have been required for the trial and the conditions in the Ontario Court of Justice. This is inconsistent with the local conditions and common sense.
[70] This court is also mindful that the combination of the COVID-19 pandemic, province-wide court closures and restrictions, and local conditions, including less than a full complement of Ontario Court of Justice judges, resulted in a significant backlog in Brampton. The local conditions are that judicial and courthouse resources in Brampton are stretched to, and at times, beyond their limits. This is a long-standing problem duly observed by now ACJO Fairburn when presiding in this region in R. v Ny and Phan, 2016 ONSC 8031 at para. 46. The local strain on resources has not subsided over the past two years. It has become more intense. However, in 2023, there was an increase in provincial judicial appointments to fill vacancies. Nevertheless, these combined conditions clearly contributed to the court’s unavailability and the significant delay at the relevant time: R. v. Agpoon, 2023 ONCA 449 at paras. 28-35.
[71] Further, the Defence did not establish that the Applicant was distinctly situated from his co-accused in terms of discrete allegations or issues, less trial time or cost, or other meaningful ways, that justified severance earlier. These factors are relevant circumstances in the interests of justice analysis. I will discuss this point further, later in the reasons.
Prioritization:
[72] The Defence submitted that the Crown should have prioritized the case in the Ontario Court of Justice due to the delay being clear, especially when the preliminary hearing dates were set so far out. Prioritization is an available option for the Crown to address delay.
[73] However, the parties did not submit any materials to establish that Crown prioritization of this case would have resulted in earlier dates being available in the Ontario Court of Justice despite the local conditions and backlog at the time.
[74] The Crown’s office has numerous prosecutions to manage, including in custody matters, trial continuations, and complex cases. Further, even with prioritization efforts, the Crown is still subject to the court’s availability.
[75] The Applicant was on bail and out of custody. His request for prioritization has to be contextualized by this reality. It is not unusual for in-custody cases and continuing trials to take priority. See Agpoon, supra, at paras. 30-32.
[76] Overall, based on the amount of trial time required, on this record I cannot find that earlier dates would have been available in the Ontario Court of Justice even if the Crown had “prioritized” the Applicant’s case or severed the Applicant prior to January 2023. For example, had the Crown severed the Applicant between the JPT in April 2022 and when the preliminary hearing dates were set in June 2022, there is no basis to find that a multi-week judge alone trial would have concluded significantly earlier than the current reality of 27.5 months.
Direct Indictment:
[77] The Defence was critical that the Crown did not take more active steps between June 2022 and January 2023 when notice was provided of the direct indictment and staying of the charges against Mr. Amponsah.
[78] The Defence submitted that the Crown took over six months to prefer the indictment and that this was unduly long. I accept that this was long.
[79] I accept that the Crown’s lack of communication with the Defence about the direct indictment over several months is troubling. The Crown did not tender evidence about when the direct indictment was sought and a reasonable time period for it to be obtained. The Defence did not specify their view of a reasonable period of time for this procedural step to be completed.
[80] The Crown did not concede wrongdoing but did not significantly dispute that there was insufficient communication to the Defence about the timing of the direct indictment.
[81] The Crown also did not explain the timing for the stay of the charges against the co-accused, Mr. Amponsah, and the timing of the severance.
[82] I agree that there are aspects of the Crown’s case management that are problematic.
[83] First, the Crown should not have waited to inform the Defence counsel that they intended to prefer an indictment as of January 19, 2023.
[84] After the preliminary hearing dates were set in June 2022, it was clear that the dates set for November 27-December 1, 2022, to be followed by a Superior Court trial, meant the 30-month Jordan limit was in serious jeopardy of being breached. When the dates were set, the Defence stated that they had s. 11(b) concerns.
[85] The Crown waited six months later, on January 19, 2023, on the eve of confirming the indictment in court to notify the Defence that they had sought a direct indictment and that it would be filed next week on January 25, 2023.
[86] During submissions, the Crown acknowledged that there was no communication to Defence counsel about the intention to obtain a direct indictment from when the preliminary hearing dates were set on June 29, 2022, to when the direct indictment was communicated to the Defendants around January 19, 2023.
[87] Similarly, on January 19, 2023, the Crown communicated their intention to stay the charges against Mr. Amponsah, whose election caused the case to proceed in the Superior Court. This was put on the record on January 25, 2023.
[88] A lack of communication can contribute to an appearance that the Crown is being less than pro-active and taking their time with procedural steps that could reduce delay because they can rest on the higher 30-month limit in the Superior Court. This appearance of a lack of diligence and transparency must be avoided.
[89] Fairness and trial within a reasonable time rights required that the Crown communicate to the Defendant(s) their intention so that options to expedite the case could have been canvassed. This may have included the option of the Defendants waiving the preliminary hearing to proceed directly to trial in Superior Court. Discussions could have taken place about additional procedural steps taken in the interim to promote fairness, such as discoveries if required.
[90] During submissions, the Crown did not disagree that transparency and exploring of options with the Defence would have been appropriate and helpful in this case.
[91] I note, however, that the Defence did not specifically submit that had they been notified earlier of the Crown’s intention to obtain a direct indictment that they may have consented to proceed directly to trial in Superior Court to reduce delay.
Stay of Charges:
[92] Second, as mentioned, the Crown waited until January 19, 2023 to communicate their intention to stay the charges against Mr. Amponsah.
[93] Again, this was several months after the preliminary hearing dates were set and well after the Defence requested severance from Mr. Amponsah, as a follow-up to the JPT of April 25, 2022.
[94] The disclosure was continuing over subsequent months, but I was informed by both counsel that in substance, disclosure was largely complete as of the setting of the preliminary hearing dates.
[95] During submissions, the Crown did not dispute that there was not a material change in circumstance in the disclosure that justified the later decision to sever the Applicant or his remaining co-accused and to stay the charges against Mr. Amponsah.
[96] The record is not clear as to the reason the Crown eventually decided to stay the charges in mid-January 2023. As a result, based on the concessions, it is reasonable to find that informed decisions at an earlier stage may have been possible. How much earlier is not clear.
Transfer:
[97] Third, the Crown’s decision to transfer the case to Brampton after several months could have been avoided. This issue should have been spotted and the decision should have been done before the eighth court appearance.
[98] However, the initial decision to proceed in Newmarket was understandable since the YRP was the investigating police force. Once the Crown discovered that this posed a potential problem based on a direction from a Superior Court Case Management Judge on another case with a similar issue, to avoid complications later, the transfer to Brampton was done relatively efficiently.
[99] The JPT already conducted remained helpful, and this move caused about less than two months of delay.
Bird’s-Eye View Assessment:
[100] I acknowledge that whether the Jordan ceiling is breached or not, the Crown has a duty to act reasonably. When delay is in issue, the Crown is required to act diligently and take procedural steps expeditiously that are within their authority.
[101] Similarly, the Crown is required to provide adequate responses or explanations to defence disclosure and procedural requests; and to the Court about the timing of those decisions when delay is in issue.
[102] However, when all of the sources of delay are considered in totality, while maintaining a bird’s-eye perspective on the cumulative delay, I am not satisfied that the delay caused the case to take markedly longer to complete than it reasonably ought to have.
[103] When considering the steps taken by the Crown to expedite proceedings, the Supreme Court in Jordan, supra, at paras. 90-91, pointed out that the motions judge should not parse out time periods or hold the Crown to a standard of perfection. Had this case breached the ceiling, the Crown would have the onus to justify the delay, including the time pertaining to the obtaining of the direct indictment. See Agpoon, supra.
[104] The Crown’s overall position is that even with these “bumps in the road”, the Crown acted diligently to move a multi-accused prosecution forward and reduce the delay in the Ontario Court of Justice, by preferring an indictment.
[105] Overall, I find that this is not a clear case where delay beneath the ceiling warrants a stay.
[106] Despite the valid Defence concerns about segments of the delay, they do not establish that the case took markedly longer than was reasonably necessary, even with the at times, slow pace by the Crown.
[107] From a higher view, detached from each segment of delay, the total amount of time is fair and reasonably necessary.
[108] I must also factor that the Crown took reasonable steps that likely reduced the amount of trial time for the Applicant’s case. The Crown withdrew charges against Mr. Effah on March 2, 2022. They decided not to proceed against Ms. Love as of May 11, 2022. The Crown stayed the charges against Mr. Amponsah on January 19, 2023, formalizing it shortly thereafter. They severed Mr. Ameyaw in January 2023. These steps demonstrate that the Crown took reasonable steps, even if some of them could have been done earlier.
[109] The bottom line is that the Applicant’s three-week jury trial is set to conclude reasonably below the 30-month ceiling. Factoring the delay to get to the preliminary hearing dates, a trial in provincial court likely would have taken a similar or longer period to conclude.
[110] In this particular case, the direct indictment that moved the case into the Superior Court, probably mitigated the delay. It likely decreased the total time to trial and reduced delay.
[111] In this case and on this record, I am not satisfied that Crown prioritization or severance earlier would have necessarily solved the delay issues in the Ontario Court of Justice, where the defendant wanted to be tried.
[112] This is currently set as a judge and jury trial that is expected to conclude in the Superior Court, 27.5 months from the date of the charge. That is likely less time than it would have required to be completed in the Ontario Court of Justice, factoring that counsel submits that the total trial time required is relatively consistent for both venues. As mentioned, even if the judge alone trial usually takes less time than a jury trial, which it should, at least two weeks of trial time was required in the Ontario Court of Justice.
[113] I am satisfied that on these facts, the 27.5 months for the case to be tried is a reasonable period of time in the busiest jurisdiction.
Future considerations about severance:
[114] In my view, to foster methods to address delay and the backlog, it is important to continue to encourage proactive and preventative measures by the Crown to avoid issues in analogous cases moving forward. Although the totality of factors, did not warrant a stay in this case, severance remains an important tool.
[115] In Jordan, supra, the Supreme Court spoke at length about the importance of preventative measures to address inefficient practices that cause complacency and delay.
[116] Even when the total delay is below the ceiling, the Crown should proactively address delay. This will indicate to the court with clarity that the case did not take markedly longer than reasonably necessary.
[117] While factoring the presumption of joint trials for multi-accused cases with a factual nexus, timely severance is a useful method to reduce delay in appropriate cases when judicial resources permit earlier dates.
[118] The presumption of a joint trial, especially when defendants are alleged to have acted in concert, will only be displaced where the interests of justice require separation. See section 591(3) of the Criminal Code; and R. v. Savoury (2005), 2005 CanLII 25884 (ON CA), 200 C.C.C. (3d) 94 (Ont. C.A.), at para. 22.
[119] Amongst the relevant interests of justice factors are the length of the trial having regard to the evidence to be called; and the potential prejudice to the accused with respect to the right to be tried within a reasonable time. Multiple accused cases often take longer and have a heightened risk of unreasonable delay because of the necessity for more trial time and schedule co-ordination.
[120] Long multi-accused trials can be oppressively expensive or unaffordable for some defendants. The court must be mindful that a high proportion of individuals cannot afford to retain counsel for long trials. For individuals that are able to obtain Legal Aid Ontario funding, cost savings are still an important consideration. Further, it cannot be presumed that all aspects of their defence will be covered.
[121] The interests of justice encompass society’s interest in seeing that justice is done in a reasonably efficient and cost-effective manner.
[122] Mindful of the presumption of joint trials for cases arising out of the same events, when a joint trial is not cost-effective to the participants and risks unreasonable delay, these circumstances may result in an injustice to a particular accused. See R. v. Last, 2009 SCC 45, at paras. 16-18; R. v. Crawford, 1995 CanLII 138 (SCC), [1995] 1 S.C.R. 858, at paras. 19, 31; R. v. Chow, 2005 SCC 24, at para. 47.
[123] The court must consider the impact of the co-accused’s conduct on a distinctly situated defendant coupled with the Crown’s refusal to consider severance, particularly when delay is in issue. R. v. Campbell, 2022 ONCA 223 at para. 31, citing Jordan, supra at para. 77.
[124] A defendant that is severed from their co-accused may elect to have a judge alone trial that is efficiently completed in days rather than weeks or months.
[125] It is important to consider whether the case against an individual co-accused is distinct due to narrow issues and whether their trial can be concluded within a significantly shorter duration if severance was granted.
[126] When the time to trial risks unreasonable delay and severance is a viable option in the interests of justice, general prosecutorial concerns such as calling the evidence again at different trials, forgoing tactical advantages, or speculative concerns about inconsistent verdicts, must be carefully assessed on a case-by-case basis. In some instances, those concerns may be less significant in the weighing of factors when overall efficiency is improved.
[127] Although the Crown is authorized to make discretionary decisions as it deems appropriate, the Court has a duty to ensure that the Crown remains vigilant and that the pace with which they make those decisions does not jeopardize the efforts of the accused to have their case tried within a reasonable time.
[128] In K.J.M. supra, at para. 110, citing Jordan, supra at para. 79, and R. v. Vassell, 2016 SCC 26 at paras. 5-6, the Supreme Court reiterated the importance of the Crown remaining vigilant that its prosecutorial decisions such as prosecuting multiple accused jointly do no compromise s. 11(b) rights especially when one of the accused is taking steps to have his case dealt with promptly and raises s. 11(b) concerns.
[129] The Court must also consider when the trial can be completed based on the local conditions, which can fluctuate due to available judges and other circumstances impacting court availability. This case demonstrates that when resources are strained, depending on the accused’s election, earlier dates below the applicable limit at the provincial court may not be available.
[130] That said, there will be other cases when court availability in combination with timely procedural decisions will serve to effectively reduce delay and costs for the system and defendant.
CONCLUSION:
[131] The concerns outlined above are intended for future consideration based on the issues raised.
[132] However, in this case, they do not alter the outcome of this motion. This case is reasonably below the 30-month ceiling, and based on the totality of factors, there is no sections 7 and 11(b) Charter breaches. A stay is not warranted.
[133] The motion is dismissed. The Applicant has been remanded to September 29, 2023, for trial confirmation.
[134] I thank both parties for their submissions.
Mirza J.
Released: September 27, 2023
APPENDIX A
Date
Appearance Details
October 6, 2021
Applicant is arrested.
October 7, 2021
Information Sworn.
October 12, 2021
Bail hearing. Applicant is released.
November 9, 2021
Counsel requested initial disclosure to the Provincial Crown Attorney’s office.
November 10, 2021
First Appearance: Matter is adjourned to November 28 to marry up information with co-accused’s return date.
November 10, 2021
Counsel requested initial disclosure to the Federal Agent Prosecution office.
November 24, 2021
Second Appearance: Crown counsel indicated that they were in the process of obtaining disclosure and the matter is adjourned to December 22 to receive disclosure.
December 22, 2021
Third Appearance: Matter is adjourned to January 5 to receive disclosure to be released that day.
December 22, 2021
Wave 1 of disclosure is shared with counsel.
January 5, 2022
Fourth Appearance: Matter is adjourned to January 26 to receive and review additional disclosure along with co-accused.
January 10, 2022
Counsel sent a disclosure request for officers notes and four (4) Information to Obtain Search Warrants.
January 18, 2022
Wave 2 of disclosure is shared with counsel.
January 26, 2022,
Fifth Appearance: Matter is adjourned to February 16 to review wave 2 of disclosure and potentially conduct a Crown pre-trial.
February 15 – March 1, 2022
Counsel requested to set a Crown pre-trial, and scheduling is discussed.
February 16, 2022
Sixth Appearance: Matter is adjourned to March 16 to conduct a Crown pre-trial in the interim.
February 28, 2022
Crown pre-trial is conducted.
March 1, 2022
A follow up discussion with the Crown occurred.
March 7, 2022
An OCJ judicial pre-trial is scheduled for April 25, 2022.
March 16, 2022
Seventh Appearance: Matter is adjourned to April 25 to conduct a Judicial pre-trial.
April 25, 2022
A judicial pre-trial is conducted. Defence indicates: “I can indicate that myself and Ms. Kent’s client, we’re open to an Ontario Court of Justice trial matter. But there is going to be an election for judge and jury, and there is going to be no severance. So given that, we will be moving forward with the prelim.”
The matter is subsequently adjourned to May 5 to schedule preliminary trial dates.
May 5, 2022
The prosecution emailed defence counsel to advised that the matter would be moved from the Newmarket courthouse to the Brampton courthouse.
May 5, 2022
Eighth Appearance: Counsel is advised that the matter is being transferred from Newmarket to Brampton and preliminary trial dates cannot be set. Adjourned to June 10 for the Applicant’s matter to be transferred to Brampton.
June 10, 2022
Ninth Appearance: The matter is adjourned to June 24 to hear back from the Crown as to whether a new Judicial pre-trial needs to be held due to the matter moving to Brampton.
June 15, 2022
A meeting time is set with the Trial Coordinator’s office to set a preliminary hearing date.
June 24, 2022
Tenth Appearance: The matter is adjourned to August 5 to canvas preliminary trial dates in the interim.
June 29, 2022
The following preliminary trial dates were offered by the trial coordinator in the following manner:
October 30 to November 3, 2023 - yes for everyone but co-accused Ameyaw.
November 6-10, 2023 - yes for everyone but co-accused Ameyaw.
November 14-17, 2023 - yes for everyone but co-accused Ameyaw.
November 12, 20-24, 2023 - yes for everyone but co-accused Ameyaw.
November 27 to December 1, 2023 - yes to all.
Preliminary Trial is scheduled for November 27, 2023, to December 1, 2023.
August 5, 2022
Eleventh Appearance: Preliminary trial dates are put on the record. Agent for counsel Mr. Fletcher stated: “Preliminary hearing is November 2023. It will be 25 plus months to get to the preliminary hearing. These are the first dates offered. It was up from delay from the matter being transferred from Newmarket to Brampton, but 11(b) is a live issue.”
The matter is then adjourned directly to the first date of the preliminary hearing.
Application Record, Tab 16, Transcript of Proceedings
January 19-24, 2023
Email from Crown advising counsel that they will be proceeding on a Direct Indictment in this matter against the Applicant and brought the matter forward to January 25.
Application Record, Tab 23j, Emails Regarding Indictment
January 25, 2023
Twelfth Appearance: The Co-accused, Mr. Amponsah charges are stayed by the Crown. The Crown is proceeding by direct indictment on the remaining accused and there will be a first appearance in SCJ practice court on February 3, 2023.
Counsel makes the following comments on the record: “So, the, so, Ms. Kent and Ms. Spence for, for Nyadu and Ameyaw, have always wanted an OCJ trial. It is actually Mr. Amponsah who elected, who elected a trial of the Superior Court of Justice with a prelim. It, so we were deemed to elect on behalf of Mr. Nyadu and, and Ms., Mr. Ameyaw were deemed to elect. Now that Mr. Amponsah’s charges are getting stayed, I understand that we’ve asked for the Crown’s consent to re-elect back down. And I understand that based on the brief discussions that for the purpose of, I mean, just say it nicely for the purpose of preventing any 11(b) issues, the Crown is not consenting at this point. So that’s, those are the options that Ms. Spence that my friend alluded to, Ms. Spence needs to consider.”
Matter is adjourned to February 10, 2023, for counsel to evaluate options.
February 3, 2023
First Appearance in SCJ Practice Court: Matter is adjourned directly to a Judicial pre-trial on February 23.
February 10, 2023
Thirteenth OCJ Appearance: Matter is adjourned to March 10 to conduct Judicial pre-trial in the interim.
February 14, 2023
Counsel Ms. Spence sent a further disclosure request.
February 23, 2023
SCJ Judicial pre-trial is conducted, and S. 8 motion dates are offered in the following manner:
October 3, 2023 – Applicant not available
October 10-13, 2023 – Yes for both
(NOTE: The dates offered are from counsel’s JPT notes as the matter was not addressed on the record)
February 23, 2023
Emails sent regarding the vacating of the preliminary hearing dates.
March 1, 2023
Judicial pre-trial continued:
The Applicant’s matter is severed, and trial dates are set for January 8-12 and 15-19, 2024.
Trial readiness motion date is set for September 29, 2023.
Trial readiness date is set for December 22, 2023.
Application Record, Tab 21, Transcript of Proceedings
March 10, 2023
Fourteenth Appearance: Court withdrew charges at the OCJ level and Counsel put trial motion dates on the record and adjourned directly to that date on September 29, 2023.
March 15, 2023
An email is sent to the prosecution requesting any explanation for the delay in proceeding with a direct indictment. Mr. Weinstock stated: “I will have to wait to see your application to better determine.
how to respond.”
Ms. Spence responded: “If
there is an explanation that will be tendered to the Court in response to the s. 11(b) Application then I expect that it would be as disclosable now as it would be as part of the response to the Application.”
March 28, 2023
Wave 4 of disclosure is released.
March 28-April 17, 2023
Emails discussing outstanding disclosure.
October 10 – 13, 2023
s. 8 Motion dates
January 8 – 19, 2024
Scheduled Trial dates
COURT FILE NO.: CR-23-46
DATE: 2023 09 27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Crown
- and -
KEVIN NYADU
Defense
11(b) Motion RULING
Mirza J.
Released: September 27, 2023