Court File and Parties

PETERBOROUGH COURT FILE NO.: CR-20-10001469-00AP DATE: 2024-06-25 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Gregory Dunford

BEFORE: The Honourable Mr. Justice R.E. Charney

COUNSEL: Kaitlyn Beard, Counsel for the Crown/Appellant Melanie Webb, Counsel for the Respondent

HEARD: May 17, 2024

Endorsement

On Appeal from the Judgment of Justice Timothy Breen of the Ontario Court of Justice on November 17, 2023.

Introduction

[1] The Crown appeals from the stay of proceedings issued by the Ontario Court of Justice in the Respondent’s case for unreasonable delay pursuant to s. 11(b) of the Charter.

Facts

First Trial and Appeals

[2] On June 11, 2020, the Respondent was arrested on the charge of possession of child pornography.

[3] The matter proceeded through the Ontario Court of Justice and trial dates were set for October 13 & 14, 2021. A pre-trial motion date was set for July 21, 2021, for defence to bring a s. 8 Charter application.

[4] The pre-trial application proceeded as scheduled on July 21, 2021. In a decision released on August 19 2021, the original trial judge found a breach of Mr. Dunford’s s. 8 Charter right and the matter was adjourned for submissions on the exclusion of evidence pursuant to s. 24(2) of the Charter.

[5] Submissions with respect to the exclusion of evidence were heard on September 1, 2021 and the reasons for ruling were released on September 23, 2021, granting the application and excluding evidence stemming from the search of the residence.

[6] On October 13, 2021, the trial commenced. As a result of the s. 8 Charter ruling, the Crown called no evidence and the charges were dismissed.

[7] The Crown filed Notice of Appeal to the Summary Conviction Appeal Court on November 8, 2021, challenging the trial judge’s s. 8 Charter ruling.

[8] The summary conviction appeal was heard on July 22, 2022.

[9] On July 25, 2022, the Summary Conviction Appeal Court ruled that the trial judge erred in determining the Charter application. The appeal was allowed, and a new trial was ordered. Written reasons were provided on July 28, 2022.

[10] Counsel for Mr. Dunford filed an Application for Leave to Appeal and Notice of Appeal on July 26, 2022, challenging the Summary Conviction Appeal Court’s decision in overturning the trial judge’s Charter ruling and seeking an order restoring the acquittal entered at trial.

[11] The Ontario Court of Appeal dismissed the motion for leave to appeal on January 26, 2023.

[12] This appeal period – the time between the filing of the Application for Leave to Appeal on July 26, 2022 and the release of the Court of Appeal’s dismissal of the leave application on January 26, 2023 - is the focus of the present appeal.

Retrial

[13] Following the Ontario Court of Appeal’s decision dismissing Mr. Dunford’s motion for leave to appeal, the Crown took steps to have the matter brought back before the court for retrial. On May 17, 2023, an order was signed to summons Mr. Dunford back to the Ontario Court of Justice.

[14] On May 30, 2023, Mr. Dunford made his first appearance in the Ontario Court of Justice since being remitted. An agent appeared on behalf of counsel for Mr. Dunford. The agent did not have instructions whether Mr. Dunford intended to set a new trial. The Crown asked that counsel contact the assigned Crown to set a judicial pre-trial if the matter was proceeding to trial.

[15] On June 12, 2023, a Crown pre-trial was set for June 26, 2023.

[16] The matter appeared before the Court on June 13, 2023. An agent for counsel appeared on behalf of Mr. Dunford and requested a five week adjournment to July 18, 2023.

[17] On July 10, 2023, a Judicial pre-trial was conducted and authorization was given for two days of trial.

[18] A trial scheduling meeting was conducted on July 13, 2023. The first date offered was August 21, 2024, however defence counsel advised that they were unavailable until after September 9, 2024. Trial dates were ultimately set for September 10 & 11, 2024.

[19] The matter was before the Court on July 18, 2023. An agent appeared on behalf of counsel and Mr. Dunford. The trial dates of September 10 & 11, 2024 were confirmed on record and the matter was adjourned to the trial confirmation date. The agent did not have instructions with respect to any potential 11(b) application at that time.

[20] Following the court appearance on July 18, 2023, defence counsel advised by email that an 11(b) application would be brought.

[21] On July 19, 2023, the Crown took steps to have the matter brought forward to July 21, 2023 to address the 11(b) issue and canvass earlier available trial dates. Defence rejected offered dates of November 22 & 24, 2023 due to being unavailable. Earlier trial dates were ultimately set for January 2 & 8, 2024.

[22] The anticipated end of end of the trial at the time of the 11(b) application was January 8, 2024.

11(b) Application

[23] Counsel for Mr. Dunford filed a notice of application for an 11(b) motion on August 14, 2023 and a hearing date was set for September 6, 2023. Defence’s materials on the application were filed August 30, 2023.

[24] The 11(b) application was heard on September 6, 2023 before Breen J. His decision on the 11(b) application was released on November 9, 2023.

[25] The application judge stated, at para. 6:

In circumstances of a re-trial following a successful appeal, delay is measured from the date that a new trial is ordered to the anticipated completion of the trial.

[26] The application judge calculated the total delay as 17 months and 11 days from the date the matter was ordered to be remitted for trial (July 28, 2022) to the anticipated end of trial (January 8, 2024).

[27] The application judge found that there was no defence delay.

[28] Seventeen months and 11 days is still under the presumptive ceiling of 18 months established in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, for proceedings in the provincial court. The Application judge recognized, at para. 8, that “where net delay is below the ceiling, the applicant bears the onus of establishing that the delay is unreasonable.” The Application judge noted, however that retrials should generally require less time to be completed, stating, at para. 9:

For re-trials in the Ontario Court, it is reasonable to expect that a matter can be completed well under the presumptive ceiling. Re-trials must be given priority and should generally require less time to be completed.

[29] See: R. v. J.F., 2022 SCC 17, at para. 71; R. v. MacIsaac, 2018 ONCA 650, at para. 27.

[30] The Crown took the position that that appellate delay does not apply in the assessment of delay pursuant to s. 11(b) of the Charter and, therefore, the entire 6 month period between the filing of the Defendant’s Application for Leave to Appeal on July 26, 2022 and the release of the Court of Appeal’s dismissal of the leave application on January 26, 2023 (the “Appeal Period”) ought to be deducted from the net delay.

[31] The Application judge declined to deduct any delay for the Appeal Period.

[32] The Application judge relied primarily on the Court of Appeal’s decision in R. v. MacIsaac, 2018 ONCA 650. In MacIsaac, the accused was convicted of aggravated assault. The Court of Appeal allowed his appeal and ordered a new trial. The Crown waited for almost nine weeks before summoning the accused to retrial while the Crown considered whether to seek leave to appeal to the Supreme Court of Canada. The Crown decided not to seek leave to appeal. The retrial was not scheduled to take place for over 17 months following the Court of Appeal’s order for a new trial. The trial lasted two weeks, and the trial judge reserved her decision for two months, finding the accused guilty. The total time from the Court of Appeal ordering a new trial to the finding of guilt was just over 19 months.

[33] The Court of Appeal concluded that the net delay was unreasonable whether the reserve time was included (19 months) or not (just over17 months).

[34] The Crown argued that the 9 week delay attributable to the Crown’s consideration of whether to seek leave to appeal was an “exceptional circumstance” that excused delay in excess of the presumptive 18 month ceiling.

[35] The Court of Appeal rejected this argument, stating at paras. 51 and 52:

The decision whether to seek leave to appeal to the Supreme Court is not an unforeseeable or unavoidable event of the sort contemplated by Jordan. On the contrary, it is a routine matter that arises in every case in which an appeal from conviction succeeds. A decision allowing an appeal and ordering a retrial may well be unexpected in particular circumstances by the Crown, but it is not an unforeseeable event on that account. It is always a possibility and the Crown must be prepared to consider its appeal option in every case.

The duty to re-try a case as soon as possible imposes no great burden on the Crown, even assuming there may be good reason to consider seeking leave to appeal to the Supreme Court in a particular case. It would be a relatively simple matter to take the steps required to set a retrial in train while a leave application is being considered.

[36] The Application judge concluded that the Court of Appeal’s decision in MacIsaac also applied when it is the Defendant who seeks leave to appeal. He stated, at para. 14 of his Reasons:

It seems to me that the reasoning in MacIsaac has equal application in the circumstances where a leave application or an appeal as of right are pursued. The fact that a re-trial cannot proceed while a further appeal is pending does not relieve the prosecution of the obligation of promptly bringing the matter back before the trial court and setting a trial date. Should the trial be adjourned due to an outstanding appeal the resulting delay would be attributed to the defence or described as an exceptional circumstance, depending on which party initiated the appeal. Should the defence resist setting a trial date pending the resolution of an appeal, the resulting delay would be attributable to the defence.

[37] The Application judge rejected the application of those authorities “which stop the s.11(b) clock while appellate proceedings are outstanding” because (at para. 15), those cases “were decided in the context of a framework that included first trial delay.”

[38] The application judge further concluded that although the total delay was slightly under the presumptive ceiling, he was satisfied that the delay was nonetheless unreasonable because it took more than 10 months to summons the accused to trial after the new trial was ordered. He stated, at para. 19:

Although the prosecution may have been waiting for the outcome of the defence application for leave, a further five months passed before the applicant was summonsed to court. No explanation for the delays is offered, nor can one be inferred from the record.

Analysis

[39] The issue in this case is whether the Application judge erred in failing to deduct the six month Appeal Period from the net delay.

[40] On appeal, the factual findings that underlie an 11(b) determination are reviewed on the standard of palpable and overriding error. The characterization of periods of delay and the ultimate decision as to whether there has been an unreasonable delay are subject to review on a standard of correctness: R. v. Jurkus, 2018 ONCA 489, at para. 25.

[41] In my view, the Application judge was wrong to equate the Crown’s delay in MacIsaac with the Appeal Period at issue in this case. The period of delay addressed in MacIsaac involved delay that accrued because of conduct of the Crown in deciding whether or not to bring a further appeal. That was delay within the Crown’s exclusive control. At the end of the day, a leave to appeal application was not brought, and time was lost. The delay in MacIsaac was occasioned by the Crown’s indecision.

[42] In contrast, the Appeal Period in this case was the result of the decision of the Defence to commence an appeal. That decision and process was completely outside of the Crown’s control.

[43] I do not accept the Application judge’s suggestion that the Crown should have scheduled trial dates in the face of a Defence application for leave to appeal, only to vacate the trial dates if, six months later, leave to appeal were granted. Trial dates are a scarce resource that must be carefully allocated to ensure that all trials are scheduled within a reasonable period. While retrials must be given priority, scheduling place-holder trial dates on the off-chance that the Court of Appeal will deny leave to appeal will result in wasted trial dates. As the Court of Appeal recently reaffirmed in R. v. Coates, 2023 ONCA 856, at para. 45:

No case is an island to be treated as if it were the only case with a legitimate demand on court resources… An analysis of the reasonableness of the Crown’s actions in any one case inherently requires a consideration of the broader context of the functioning of the court system, especially in an exceptional circumstance.

[44] Previous cases have held that s. 11(b) of the Charter does not apply to delay in respect of appellate proceedings: R. v. Potvin, [1993] 2 SCR 880, at pp. 907-908, per Sopinka J., for the majority; R. v. Manasseri, 2016 ONCA 703, at paras. 335, 339 – 341.

[45] The Supreme Court’s decision in Potvin was based on the premise that the appeal would occur after a conviction, acquittal, or stay of proceedings, at which time the accused will no longer be a “person charged” and s. 11(b) would have no application. If, on the appeal, the judgment was set aside and the matter remitted for trial, the accused would revert to the status of a person charged and “the computation of delay restarts at zero when a new trial is ordered”: R. v. J.F., 2022 SCC 17, at para. 55.

[46] The Applicant in this case submits that, as a result of the July 28, 2022 Summary Conviction Appeal decision, he reverted to the status of a person charged on July 28, 2022, and therefore the Potvin/J.F. analysis does not apply to his application for leave to appeal. He remained a person charged with an offence even as he pursued his appeal.

[47] While this is correct, it would seem incongruous to treat the time in pursuit of a defence appeal from an order for a new trial differently than an appeal from conviction, acquittal, or stay of proceedings.

[48] The defence appeal in this case is akin to an application for certiorari, where the accused remains a person charged with an offence throughout the application. In R. v. Tsega, 2019 ONCA 111, the Court of Appeal held that a good faith defence application for certiorari qualifies as an “exceptional circumstance” that should be deducted from the net delay. The Court stated, at para. 83:

With regard to defence applications, where they are frivolous or made in bad faith, they will generally constitute defence delay. Where they are brought in good faith, they constitute an exceptional circumstance because they would be outside of the control of the Crown, unless in opposing such an application or an appeal therefrom the Crown is acting in bad faith, taking a frivolous position, or responding in a dilatory manner.

[49] In the present case, the Crown acknowledges that the defence motion for leave to appeal was made in good faith, and takes the position that the Appeal Period should therefore be treated as an exceptional circumstance.

[50] Exceptional circumstances lie outside the Crown’s control in the sense that those circumstances:

i. are reasonably unforeseen or reasonably unavoidable; and ii. Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise.

See: Jordan, at para. 69; Manasseri, at para. 343.

[51] The defence motion for leave to appeal from the Summary Conviction Appeal Court was unavoidable from the Crown’s perspective and outside of the Crown’s control in terms of when the Court of Appeal would render its decision once the leave to appeal process was put in motion. On that basis, the six month Appeal Period qualifies as an exceptional circumstance and should be deducted from the total delay, leaving a total delay of just over 11 months, no where near the presumptive ceiling.

[52] While, as the Application judge noted, re-trials must be given priority and should generally require less time than a first trial, “the analysis remains contextual to the circumstances of the particular case” (Coates, at para. 52). The case specific context in this case includes the Defendant’s application for leave to appeal. In my view, it was reasonable for the Crown to wait for that process to be completed before summonsing Mr. Dunford back to Court.

[53] That said, even if the Appeal Period is deducted, the Crown still waited nearly four months to summons Mr. Dunford back to Court, a delay which the Crown acknowledges was less than ideal. Neither the Crown nor defence counsel are, however, held to a standard of perfection, and a total delay of 11 months from the date the matter was ordered to be remitted for trial does not qualify as a case which “took markedly longer than it reasonably should have”: Jordan at para. 82. While the Crown was slow off the mark, the Crown took all reasonable steps to expedite the proceedings following the initial delay in obtaining a summons.

[54] As the Supreme Court stated in Jordan, 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.

[55] In summary, I conclude that the Application judge was wrong in law to fail to treat the Appeal Period as an exceptional circumstance that should be deducted from the total delay. When that deduction is made, the total delay of just over 11 months is well below the presumptive ceiling and does not qualify as one of the “clear cases” (Jordan, at para. 83) where a stay beneath the ceiling should be granted.

Conclusion

[56] The Crown’s Appeal is allowed, the stay of proceedings is set aside, and the matter is remitted to the Ontario Court of Justice for a trial on the merits.

Justice R.E. Charney Date: June 25, 2024