Court File and Parties
Court File No.: CR-23-85 Date: 2024/04/04
BETWEEN: HIS MAJESTY THE KING – and – Marcus Pearson
Ontario Superior Court of Justice
Before: Carter J.
Counsel: Lorne Goldstein, for the Crown Jordan Gold, for the Applicant
Heard: March 25, 2024-oral reasons given March 26, 2024
Reasons for Decision on S. 11 (B) Application
CARTER J.
Overview
[1] The Applicant stands charged with three counts of sexual assault causing bodily harm and two counts of sexual assault with a weapon. He was arrested on February 7, 2022. The information was sworn on March 22, 2022. A Preliminary Hearing had been scheduled, but on October 25, 2023, the Crown preferred a direct indictment. The trial is currently scheduled to be completed on May 24, 2024. This would be a total delay of 26 months and 2 days from the swearing of the information until the end of trial, a number under the ceiling of 30 months set out in R. v. Jordan, 2016 SCC 27.
[2] Despite this, the Applicant submits that the delay has been unreasonable and that a stay of proceedings ought to be entered. The Crown waited an entire year after the Preliminary Hearing was set to prefer the indictment. Rather than preferring the indictment when the defence elected for a Preliminary Hearing or even some reasonable time after the Preliminary Hearing date was set, the Crown waited until two weeks before the hearing to do so. One entire year in which the case was not advanced in any way is not reasonable.
[3] The Crown counters that because the delay is under the ceiling of 30 months there is a presumption that it is reasonable. The onus is on the defence to demonstrate that the case took markedly longer than it should have and that the accused person took meaningful steps that demonstrate a sustained effort to expedite the proceedings. The Crown says the defence fails on both fronts. In particular, the decision to prefer a direct indictment is a matter of prosecutorial discretion that can only be reviewed where abuse of process is alleged. No such allegation is made here.
[4] For the reasons that follow, I find that the Applicant has failed to establish a breach of his s. 11(b) Charter rights.
Legal Principles
[5] The Supreme Court of Canada in Jordan set out the framework to be applied in determining whether an accused’s s.11(b) rights have been violated. For Superior Court matters, a presumptive ceiling of 30 months was set. Above the ceiling and the delay is presumptively unreasonable. The onus is on the Crown to establish an exception. Below the ceiling and the onus is on the defence to show the delay was unreasonable. Here we are dealing with the latter scenario.
[6] To meet its onus, the defence must prove two things:
It took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and
the case took markedly longer than it reasonably should have: Jordan at para. 82
[7] The reasonable time requirements of a case derive from a variety of factors, including the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite the proceedings: Jordan at para. 87. The list is not exhaustive. Other factors may affect the reasonable time requirements of a given case.
[8] The Court, however, made it clear that the Crown should not be held to a standard of perfection and that stays for unreasonable delay under the presumptive ceiling should only be granted in clear cases: Jordan at paras. 83 and 90.
Analysis
[9] In my view, the defence took meaningful steps that demonstrate a sustained effort to expedite the proceedings.
[10] The Applicant retained defence counsel, sought disclosure, and generally moved with dispatch during the intake period. Of particular note, he held a CPT, held a JPT, informed the court of his election, and even went so far as to set the Preliminary Hearing without having received or ever viewed the central evidence in the case – video of the offences themselves. Furthermore, the defence advised the Court and Crown of the s.11(b) concern when it arose, at the time the direct indictment was preferred.
[11] It is true, as the Crown argues, that the defence turned down some dates for the Preliminary Hearing and one date for the first Superior Court JPT. As noted in Jordan, however, defence counsel should not be held to too high a standard. If counsel is not available for some offered dates, counsel is not available. That does not mean that the Applicant is not taking meaningful steps to expedite proceedings. Nor should the Applicant be expected to find new counsel who might be available for those dates. That is unlikely to move the matter along any more expeditiously, as new counsel will have to get up to speed on the file.
[12] Nor can counsel be expected to continually hound the trial coordinator in an attempt to obtain an earlier Preliminary Hearing date after it has been set. Court administration staff are overworked as it is. Placing the additional burden of repeatedly responding to these requests will not speed things up or make the system operate any more smoothly.
[13] The real issue in this case is not whether defence counsel moved with sufficient dispatch, but whether the Crown’s decision to prefer a direct indictment led to the case taking “markedly” longer than it reasonably should have.
[14] The Applicant says that from October 11, 2022, until October 25, 2023, nothing happened. During this one-year period, the parties were ostensibly just waiting for the Preliminary Hearing.
[15] The Crown disagrees. It says the defence may have been doing nothing, but it was conducting significant work which resulted in a reassessment of the case, including the decision to pursue a direct indictment. The difficulty with this argument is that there is no evidence to that effect. It is the Crown’s right not call any evidence of steps taken during this period of time, but in the absence of such evidence the Court cannot conclude that the Crown was undertaking “significant work.”
[16] Nevertheless, the onus is on the Applicant to show that the delay was unreasonable. The issue is not whether time was “wasted” per se. The test is whether the case took markedly longer than it reasonably should have.
[17] In order for the Applicant to succeed in his argument, a number of pieces would need to fall into place.
[18] First, it would need to be established that the decision to prefer the direct indictment should have been made earlier and that the failure to do so was unreasonable. But the Crown’s decision to prefer an indictment is a matter of prosecutorial discretion and is reviewable only for abuse of process. The Crown has no obligation to give reasons to justify its decision, absent an evidentiary basis for a claim of abuse of process: R. v. Bulhosen, 2019 ONCA 600 at para. 88. Without evidence of the reasons for the decision, it will be difficult to establish that it was unreasonable.
[19] Second, the Applicant would have to demonstrate when the decision to prefer the indictment ought to have been made. Here, the Applicant says it should have been done at the time the preliminary hearing dates were set. But why? And more importantly, how is the Court to determine the date it should have been done on without getting into the reasoning process of the Crown, which, again, it is not required to disclose without evidence of an abuse of process.
[20] Finally, the defence would have to demonstrate that much earlier trial dates could have been obtained. In some senses, this is the easiest part of the argument to make out. The Court is to take a birds-eye view of the matter, not focus on the minutiae. Reasonable inferences can be drawn from the record. However, such inferences can be drawn only if it is clear when the Crown “should have” preferred the direct indictment.
[21] Recall that the Court in Jordan emphasized that stays for unreasonable under the ceiling delay should only be granted in “clear” cases. It is far from clear on the evidentiary record before me that the case took markedly longer than it reasonably should have. I cannot say that the indictment should have been preferred earlier, much less when it should have been preferred.
[22] That is not to say that the timing of the preferring of an indictment is never relevant on an under the ceiling Jordan application. I do not read the decision of the Ontario Court of Appeal in Bulhosen as foreclosing such an argument. Indeed, sufficient evidence that the decision to prefer the indictment was for an improper purpose may lead to a finding of an abuse of process. Short of that, there may be cases in which the preferring of the indictment in conjunction with a lack of Crown diligence leads to a finding that the case took markedly longer than was reasonable. One such hypothetical example can be found in the decision of R. v. Nyzik, 2017 ONSC 69 at para. 32. There may be others. This, however, is not such a case.
[23] For the reasons given above, the Application is dismissed.
Carter J. Released: April 4, 2024