This week’s top three summaries: R v Mantla, 2020 NWTCA 6: joint submissions, R v Drury, 2020 ONCA 5021: post-Morrison no presumption of belief from underage representation, and R v Brar, 2020 ONSC 4740: 11(b) runs for non-final judgement deliberation time.
R v Mantla, 2020 NWTCA 6
[July 17, 2020] Joint Submissions on Sentence: Reasonableness is not the Test - Other Non-Joint Sentences Not Basis to Find Joint is Unfit [J.D. Bruce McDonald, Susan Cooper, Dawn Pentelechuk JJ.A.]
AUTHOR’S NOTE: Joint submissions have gained significant protection from disagreeing judges since the SCC decided Anthony-Cook. Herein, the NWTCA reinforced this line of case law indicating that it is an error for a judge to review the merits of a joint-submission on the basis of a conventional sentencing framework. The public interest test in joint submissions includes the benefits to the system of such resolutions and consequently sentencing decisions from non-joint submissions are unhelpful to determining the fitness of a joint submission. Ultimately, the case is another clear indicator that joint submissions should not be interfered with.
Overview
[1] This appeal arises from the trial judge’s rejection of a joint submission on sentencing of the appellant, Mr. Mantla, on one count of assault causing bodily harm under s 267(b) of the Criminal Code, RSC 1985, c C-46. The summary conviction appeal judge dismissed Mr. Mantla’s appeal. Mr. Mantla now appeals his sentence and, alternatively, his conviction.
[2] The issue is whether the trial judge misapplied the public interest test for rejection of a joint submission, as outlined by the Supreme Court of Canada in R v Anthony-Cook, 2016 SCC 43 [Anthony-Cook], and in turn, whether the summary conviction appeal judge erred in upholding the trial judge’s decision to reject the joint submission.
Pertinent Facts
[4] On January 12, 2018, the second day of trial, and following resolution discussions between Crown and defence counsel, Mr. Mantla agreed to plead guilty to one count of assault causing bodily harm in exchange for a joint submission that he be sentenced to a six-month conditional sentence order followed by 12 months’ probation.
[5] The trial judge was presented with the joint submission in the context of the following agreed facts:
The facts are that on August 18th , 2017, at approximately 5 am, Guy Tlokka, Jerrick Eyakfwo, and Gem Huskey were hanging out around the 6-plex in Behchoko, drinking. Kirk Mantla walked by with two of his friends. At this time, Mr. Tlokka picked up a steel bar. Mr. Mantla began to walk away, at which time Mr. Tlokka
started yelling at Mr. Mantla. Mr. Mantla and Mr. Tlokka began to exchange words, and Mr. Tlokka called Mr. Mantla a crackhead.
Mr. Tlokka held the steel bar in his hands, and Mr. Mantla believed that Mr. Tlokka was going to hit him with this bar. In response, Mr. Mantla hit Mr. Tlokka once on the back with a piece of wood after picking up a piece of wood in that area. Mr. Tlokka fell down, at which time Mr. Mantla—when he fell down, he hit his head. At this time, Mr. Mantla kicked Mr. Tlokka in the face and walked away. As a result of this incident, Mr. Tlokka suffered the following injuries: scratches to his face, bruising below his eyes, bruising and pain to his wrist, a bump on the back of his head, swollen gums, and broken upper teeth.
[8] In written reasons reported at R v Kirk John Mantla, 2018 NWTTC 04 [Decision], the trial judge concluded that a reasonable person would view the proposed sentence “as an example of a breakdown in the proper functioning of the criminal justice system” that “would cause an informed and reasonable public to lose confidence in the institution of the courts”: Decision at para 88 [emphasis in original]. The trial judge viewed the sentence proposed as unfit for the circumstances of the offence; it did not express the community’s denunciation of Mr. Mantla’s behaviour and would force the court to ignore his “lengthy, recent and related criminal record”: Decision at para 81. In particular, she concluded that a conditional sentence order “would be contrary to law” as she was not satisfied the community would not be endangered if Mr. Mantla served his sentence in the community: Decision at para 89.
Standard of Review
[13] Generally, appellate courts adopt a deferential approach to sentence appeals as trial judges have a broad discretion to impose the sentence they consider appropriate within the limits established by the law. An appellate court can only intervene if the sentence is demonstrably unfit or the sentencing judge made an error in principle that affected the sentence. The Supreme Court of Canada recently reiterated the standard of review in sentencing appeals in R v Friesen, 2020 SCC 9. The Supreme Court of Canada provided at para 26:
As this Court confirmed in [R v Lacasse, 2015 SCC 64 [Lacasse]], an appellate court can only intervene to vary a sentence if (1) the sentence is demonstrably unfit (para. 41), or (2) the sentencing judge made an error in principle that had an impact on the sentence (para. 44). Errors in principle include an error of law, a failure to consider a relevant factor, or erroneous consideration of an aggravating or mitigating factor. The weighing or balancing of factors can form an error in principle “[o]nly if by emphasizing one factor or by not giving enough weight to another, the trial judge exercises his or her discretion unreasonably” (R v McKnight (1999), 1999 CanLII 3717 (ON CA), 135 CCC (3d) 41 (Ont CA), at para. 35, cited in Lacasse, at para. 49). Not every error in principle is material: an appellate court can only intervene if it is apparent from the trial judge’s reasons that the error had an impact on the sentence (Lacasse, at para 44). If an error in principle had no impact on the sentence, that is the end of the error in principle analysis and appellate intervention is justified only if the sentence is demonstrably unfit.
[14] An error in principle includes an error in law. The issue for the summary conviction appeal judge was whether the trial judge erred in law in her application of the stringent public interest test required by Anthony-Cook in rejecting the joint submission.
[15] A sentencing judge errs in principle when misapplying or failing to apply the public interest test, or if a conventional sentencing analysis or fitness assessment is undertaken when assessing and departing from the joint submission. If an error in principle is identified, no deference is owed: Anthony-Cook at para 6.
[16] The summary conviction appeal judge suggested “the focus on this appeal is on the reasonableness of the joint submission”: Appeal Decision at para 81. Similar comments have been made in cases such as R v Kippomee, 2019 NUCA 3 at para 31, and R v Jacobson, 2019 NWTSC 9 at para 23. Respectfully, Anthony-Cook makes clear that reasonableness is not the correct test. The public interest test is stricter, and is not expressed as reasonableness of the joint submission: Anthony-Cook at paras 30-31.
Joint Submissions
[18] In Anthony-Cook at para 5, the Supreme Court of Canada framed the appropriate test in rejecting a joint submission as the following question: would the proposed sentence bring the administration of justice into disrepute or otherwise be contrary to the public interest? In doing so, the Supreme Court of Canada expressly rejected the “fitness test”, wherein a trial judge may depart from a joint submission where, having regard to the circumstances of the case and sentencing principles, they conclude the sentence proposed is not “fit.” The Supreme Court of Canada also rejected the “demonstrable unfitness test”, a more stringent test that permits trial judges to reject a joint submission only where the sentence proposed is “demonstrably unfit”: paras 27-28.
[19] As noted by the Alberta Court of Appeal in R v Belakziz, 2018 ABCA 370 at para 15, repute of the administration of justice or the public interest are generic concepts that must take their meaning from context. As the Supreme Court of Canada emphasized in Anthony-Cook at para 40, joint submissions cannot be viewed through the lens of a traditional sentencing approach, but rather, approached with restraint and a robust recognition of the systemic benefits joint submissions provide to the criminal justice system, both to participants and to the administration of justice at large:
In addition to the many benefits that joint submissions offer to participants in the criminal justice system, they play a vital role in contributing to the administration of justice at large. The prospect of a joint submission that carries with it a high degree of certainty encourages accused persons to enter a plea of guilty. And guilty pleas save the justice system precious time, resources, and expenses, which can be channeled into other matters. This is no small benefit. To the extent that they avoid trials, joint submissions on sentence permit our justice system to function more efficiently. Indeed, I would argue that they permit it to function. Without them, our justice system would be brought to its knees, and eventually collapse under its own weight.
[20] The sentencing judge did not have the benefit of the guidance provided in Belakziz, where the court cautioned against “reverse engineering” the joint submission by first determining what sentence would have been imposed after trial and comparing it to the joint submission. Such an approach, and an emphasis on parity with sentencing ranges after trial, undermines the important policy considerations underscored in Anthony-Cook.
[22] The trial judge emphasized the need for parity, but even in conventional sentencing, the parity principle simply gives meaning to proportionality. The relevance of sentencing precedents is greatly attenuated with joint submissions, because in conventional sentencing, the systemic benefits derived from joint submissions need not be considered: Anthony-Cook at para 48; Belakziz at para 21.
Application
[27] In this case, the Crown was aware that Mr. Mantla was demonstrating pro-social conduct, supporting a young family, and recognizing his alcohol mis-use. While Mr. Mantla does have a record for violent offences, having been convicted of assault on five separate occasions from 2007 to 2012, his last offence date for assault in 2012 was some five years before the subject offence. Yet the trial judge assessed this as only a three-year gap, calculated from the time Mr. Mantla’s probation would have likely ended to the time of the subject offence.[30] In the majority of cases, where the issue of public safety has been addressed by the Crown and a conditional sentence order is an available sentence in law, lingering concerns over public safety will not provide a trial judge with a conduit to reject a joint submission.
[31] We further note that a properly constructed conditional sentence order can meet the objectives of denunciation and deterrence: R v Proulx, 2000 SCC 5 at para 127[Proulx]. Unlike a probation order, which is primarily rehabilitative, a conditional sentence order generally includes punitive conditions, such as house arrest, which restrict the offender’s liberty. Under the proposed joint submission here, Mr. Mantla would have been under house arrest for the duration of the conditional sentence order, subject to limited exceptions including future employment and caring for his ill father.
[32] However, denunciation and deterrence are not the only important factors. In presenting the joint submission, the Crown also emphasized a goal of rehabilitation, which is a further objective of conditional sentences: Proulx at para 127. Rehabilitation is not an unreasonable goal for the Crown to promote here, especially when properly considering the five-year gap in violent offences and a robust application of Mr. Mantla’s Gladue factors.
[33] In defaulting first to a conventional sentencing approach, including considering whether a conditional sentence order would keep the community safe, the trial judge failed to account for the systemic benefits of joint submissions and the admitted weaknesses in the Crown’s case. Only after concluding that a conditional sentence order was not appropriate, did the trial judge reference Anthony-Cook and the public interest test. While acknowledging the importance of resolution discussions in criminal cases and accepting that there may have been triable issues in this case, these considerations did not outweigh what she had already concluded was an unfit sentence...
[34] As noted, in conventional sentencing, courts are not bound to consider the systemic benefits of joint submissions. As a result, a conventional sentencing approach or “reverse-engineering” of the joint submission will invariably erode consideration of the systemic benefits flowing from resolutions and joint submissions.
[35] But it is the systemic benefits derived from resolution that guide the determination of whether the joint submission would bring the administration of justice into disrepute. Under the public interest test, rejection of a joint submission “denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down”: Anthony-Cook at para 34 [emphasis added]. “All the relevant circumstances” includes the guarantee of a conviction, flaws in the Crown’s case and resultant prosecutorial risk, and numerous intangible benefits flowing from a guilty plea.
[37] As noted by the trial judge, the agreed facts did not entirely accord with the evidence heard in the trial, but she was obliged to disavow herself of the trial evidence and proceed solely on the agreed facts. As noted in Belakziz, it is problematic to try and re-evaluate the nature of the quid pro quo or the compromises made by the Crown and the accused: paras 22-23. Here, the trial judge did not engage in a re-weighing as much as she appeared to disregard the compromises altogether. Absent from her reasons are the particulars of the Crown’s litigation liability and the commensurate compromise of Mr. Mantla:
I appreciate the importance of resolution discussions in criminal cases. And I recognize that this case is unusual in that the resolution discussions occurred well into the Crown’s case, but I also accept that there may have been triable issues in this case, and that the guilty plea and acceptance of the facts as presented was the product of true resolution discussions [emphasis added].Decision at para 79.
Conclusion
[38] In conclusion, the trial judge erred in her application of the public interest test by approaching the assessment of the joint submission through a conventional sentencing framework. She failed to recognize systemic benefits derived from joint submissions generally and the specific compromises made by both Crown and trial counsel in light of Crown’s evolving case. The summary conviction appeal judge, in turn, erred in law in upholding the trial judge’s application of the public interest test.
R v Drury, 2020 ONCA 502
[August 11, 2020] Child Luring s. 172(1)(b) - No Presumption of Belief Underage Based on Representation of Undercover Police [Reasons by David Watt J.A., with Gary Trotter and Harrison Young JJ.A. concurring]
AUTHOR’S NOTE: This decision follows the SCC case of Morrison by giving a specific factual example of the application working to the benefit of the accused. Simply put, just because the undercover officer police officer states they are child under 16 does not place an evidentiary burden on the accused to prove something in terms of their resultant belief. The onus is still on the Crown.
Overview of Offence
[1] Jeffrey Drury (“the appellant”) exchanged hundreds of messages with “Tiffany”. Jeffrey Drury was 52 years old. Tiffany said she was 15. The appellant’s messages were overtly sexual or had sexual overtones.
[3] The appellant arrived at the time and place of the meeting. But Tiffany was not there. Instead, the appellant was met and arrested by several police officers.
Pertinent Facts
[10] The appellant’s advertisement soon caught the attention of a member of the Ontario Provincial Police (OPP) who was monitoring the site. The officer – a member of the OPP’s Child Exploitation Unit – decided to respond by Craigslist chat, posing as a 15-year-old girl named Tiffany.
[11] Within minutes, the appellant responded to Tiffany. He asked Tiffany to send him a picture. He indicated age did not matter and inquired about a meeting that same evening. No meeting occurred.
[13] From time to time during his exchanges with Tiffany, the appellant pointed out that 15 was, as he put it, “illegal”. In response to repeated requests for a photograph, Tiffany sent a picture of a fully-clothed female police officer, posing as a teenager taking a selfie. The appellant researched the name Tiffany had provided. He found that a person by that name was a 24-year-old woman from the same city in which Tiffany claimed to live.
[14] In some communications, the appellant speculated that Tiffany might be a man, a much older person or even a police officer. Tiffany downplayed the suggestions in her responses, treating them in a joking manner.
[15] As noted, the appellant sent Tiffany numerous photographs during this exchange. From one of the photos, police were able to discern the licence plate number on a motorcycle. A vehicle registration check confirmed the appellant’s name and residential address.
[18] The appellant testified as the only defence witness at trial.
[19] The appellant, then a 55-year-old man who had been separated from his wife for over a decade, explained that he was unsure that Tiffany was 15 years old as she claimed. Just because Tiffany said so did not make it true since, in his experience, people lied about their age online. He tried to find out Tiffany’s true identity and age by asking questions and examining her emails for age-appropriate responses. He thought she could have been a police officer or an older person posing as a 15-year-old girl.
[21] In his testimony at trial, the appellant denied any interest or intention to have sexual intercourse with a 15-year-old girl at any time. As for the arranged meeting, the appellant just wanted to have a “fun day” with Tiffany, to “hang out” and “go Jeeping”.
[22] In cross-examination the appellant conceded that he was aware of the possibility that Tiffany was in fact 15 years old. However, he considered this unlikely, since the person in the photograph Tiffany sent was clearly older.
[24] Trial counsel for the Crown contended that the evidence proved the appellant’s guilt on all three counts beyond a reasonable doubt. The Crown relied on the presumptions in ss. 171.1(3) and 172.1(3) to establish the appellant’s belief in the underage status of Tiffany from her representation of it, absent evidence to the contrary.
The Law of Presumption of Belief under s.172
[40] However, that was then and this is now. Things have changed with respect to how the Crown may prove this aspect of the fault element in s. 172.1(1)(b). The presumption of belief based on evidence of a representation of age is no longer available. And the alternative path, based on an absence of reasonable steps, is equally unavailable. The role of s. 172.1(4) is to limit the defence of mistaken belief in age, not to establish (in combination with the presumption) the essential element at issue here: the appellant’s belief that Tiffany was under 16.
[41] In this case, the appellant says, the Crown had to prove beyond a reasonable doubt either that the appellant believed or that he was wilfully blind to the fact that his interlocutor – Tiffany – was under 16 years of age. Near recklessness as to her age was not sufficient. It was incumbent on the Crown to establish this essential element without the assistance of either s. 172.1(3) or s. 172.1(4). A fair reading of the trial judge’s reasons reveals that, but for the combined operation of those two provisions, he had a reasonable doubt that the appellant believed Tiffany was underage.
[45] he principles that govern our decision on this ground of appeal are those that explain the role of ss. 172.1(3) and (4) in proof of an offence under s. 172.1(1)(b) of the Code. Unfortunately, the most recent and authoritative exposition of these principles – R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3 – had not been released when the trial judge decided this case.
[50] The essential elements of the preparatory offence of s. 172.1(1)(b) may be briefly characterized as:
i. communication;
ii. recipient; and
iii. purpose.
The means of communication must be by telecommunication. The recipient must be a person who is (or the accused believes is) under 16. And the purpose of the communication must be to facilitate the commission of a listed offence (the secondary offence) with the recipient: Legare, at para. 36; Levigne, at para. 23.
[51] The issue in this case concerns the recipient. In this case, the recipient – Tiffany – was a fiction, thus not actually a person under 16. Accordingly, the Crown was required to prove beyond a reasonable doubt that the appellant believed Tiffany was under 16: Morrison, at paras. 95-96. It was not enough for the Crown to prove that the appellant hoped or even suspected that Tiffany was underage.
[52] The term “belief” refers to the mental acceptance of a statement, fact, doctrine or thing as true or existing. The term “hope” denotes the expectation of something desired, a feeling of expectation and desire combined: Oxford Dictionary of English, 3rd ed. (Oxford University Press, 2010).
[55] At the time of trial, the governing authorities permitted the Crown to establish the appellant’s belief in Tiffany’s underage status by proving beyond a reasonable doubt either that the appellant believed Tiffany was under 16 or that he failed to take reasonable steps to ascertain Tiffany’s true age: Morrison, at para. 28.
[56] But these two independent pathways to establish this essential element of the offence are now closed to traffic.
[57] In Morrison, the Supreme Court declared the presumption of belief in s. 172.1(3) to be of no force or effect because it breached s. 11(d) of the Canadian Charter of Rights and Freedoms and was not saved by s. 1: Morrison, at paras. 11, 73. In the result, a mere representation that the recipient of a telecommunication was under 16 cannot establish an accused’s belief that the recipient was under 16, even in the absence of evidence to the contrary. The accused’s belief must be affirmatively established without the assistance of the presumption – that is, by evidence adduced at trial establishing the requisite belief beyond a reasonable doubt.
[59] Where a prosecution under s. 172.1(1)(b) originates in a police sting and no underage person exists, the Crown must prove beyond a reasonable doubt three essential elements:
i. an intentional telecommunication;
ii. with a person whom the accused believes is under the requisite age; and
iii. for the purpose of facilitating the commission of a designated offence with respect to that person.
See Morrison, at para. 95.
[60] The second element requires the Crown to prove beyond a reasonable doubt that the accused believed the interlocutor was underage. Since the presumption of belief in s. 172.1(3) is no longer of any force or effect, the Crown cannot establish this element simply by proving that the interlocutor represented her age and that the accused failed to take reasonable steps to ascertain the interlocutor’s true age. What the Crown must prove beyond a reasonable doubt is that the accused either:
i. believed; or
ii. was wilfully blind whetherthe interlocutor was underage: Morrison, at paras. 96-97.
Recklessness as to the interlocutor’s age is not sufficient: Morrison, at paras. 100-101.
The Principles Applied
[64] The critical passage appears at para. 83 of the trial judge’s reasons, which I repeat here for the sake of convenience:
Based on all the evidence, I am satisfied beyond a reasonable doubt that Mr. Drury did not take reasonable steps to ascertain the true age of the person with whom he was communicating. Accordingly, he cannot rely on the defence that he believed the person with whom he was communicating was over 16 years of age. He was advised that that person was aged 15. For the purpose of the relevant provisions of the Code, that constitutes proof that Mr. Drury believed that the person was under age 16, in the absence of evidence to the contrary. There is no evidence to the contrary as contemplated in the relevant statutory provisions. Indeed, it is clear from Story 11 that Mr. Drury either believed the person was under age 16, or at best was not sure. If he was not sure, it was because he had not taken reasonable steps to ascertain the interlocutor’s true age.
[65] Proof that the appellant believed or was wilfully blind to the fact that Tiffany was under 16 was an essential element of the offence charged. The Crown was not entitled to invoke the presumption of belief from the underage representation to establish or even help establish this essential element. Nor was it entitled to rely upon the absence of reasonable steps to negate any evidence to the contrary or to afford a discrete pathway to conviction. The trial judge, quite understandably, adopted this approach in light of the existing jurisprudence. After Morrison, however, a finding of guilt recorded on these bases can no longer stand.
[Appeal allowed. New trial ordered.]
R v Brar, 2020 ONSC 4740
[August 14, 2020] – Charter s.11(b) - Judicial Deliberation Delay for Non-Final Judgement [J.M. Woolcombe J.]
AUTHOR’S NOTE: "It's good to be the King." The words of Mel Brooks's 1981 Movie: History of the World, Part 1 still ring true for the judicial deliberation exception carved out in R v KGK 2020 SCC 7. But, herding Justice Woolcombe confirms that judicial deliberation time except from the Jordan timelines does not include time pondering issues that are not the judgement in a trial. This is so even if the Charter decision effectively decides the case as in the vast majority of Over 80 driving prosecutions as this case was.
The 11(b) Delay Issue: Judicial Deliberation on the Charter Application
[119] The crux of the appellant’s position it that the trial judge erred in her characterization of the nine months and six day delay from February 13, 2018, when she had the Charter motion under reserve, until the release of her Charter ruling on November 19, 2018. The appellant submits that K.G.K. does not apply to deliberation time on interlocutory motions like the one that took place here, and that deliberation time on interlocutory motions presumptively falls within the Jordan ceiling.
[123] The first issue to resolve is whether the trial judge’s deliberation time in this case counts as time that is within the 18-month presumptive ceiling.
[124] The trial judge’s decision on the Charter motion was an interlocutory ruling. I do not accept the Crown’s position that in substance it was a final ruling. No one took that position before the trial judge. More importantly, it cannot be fairly seen as a judgment at the end of the trial. While no further evidence was called by either side after the Charter decision, it was not known, when the trial judge reserved her decision, that this would be the case. In her ruling, she made this clear, saying expressly that she was not yet finding the appellant guilty and that there could be further evidence and submissions on the trial proper. Nor is the Crown’s position consistent with what happened in court after the ruling was released and the parties were each asked if they were calling any further evidence on the trial. While no evidence was called, each side had an opportunity to do so.
[125] Interlocutory ruling are a normal part of many trials. Often, pre-trial applications are heard before the trial commences. They are scheduled after a pre-trial and may be conducted days, weeks or months before a trial, ensuring that the judge has time to render a decision before the trial commences. Other times, counsel agree to have such matters as Charter applications heard during the trial in a “blended” fashion, as was done here. Often, issues arise unexpectedly during a trial and there is a need for them to be litigated and adjudicated before the trial can continue. In all of these situations, the rulings that a trial judge must make are an integral part of the trial process, even if they may, ultimately, be dispositive of the trial. In my view, the time taken for these sorts of applications to be argued and adjudicated should presumptively fall within the Jordan ceilings: R. v. Mamouni, 2017 ABCA 347 at paras. 55-56; R. v. King, 2018 NLCA 66 at paras. 132-142; and R. v. Atkinson
[126] In reaching this view, I place some weight on the fact that Jordan and K.G.K. both say clearly that the time included in the ceiling is from charge until the end of evidence and argument. This suggests, on a plain reading, that the time for all interlocutory applications and motions to be heard and decided is included.
[128] Moreover, I think including the time for these applications and motions is consistent with the overall goal in Jordan of facilitating a more efficient criminal justice system. It encourages parties to be active in streamlining and simplifying such applications, litigating only those issues that require litigation and limiting evidentiary hearing and submissions to that which is necessary. It also gives the parties every incentive to provide the judge with the best possible tools to rule on the issue. In short, it fosters a culture in which everyone takes greater responsibility to ensure that the process moves along.
[129] I think the most practical approach, consistent with the Supreme Court of Canada post-Jordan, is to include all of the time up to the conclusion of the evidence and submissions as time that counts towards the presumptive ceiling. Determining whether that delay is unreasonable will then require consideration of whether, in a given case, there is a reason to deduct deliberation time (for instance, as an exceptional circumstance).
[131] Accordingly, it is my view that the trial judge was in error to conclude, as she did, that the time needed to render her ruling was not included in the Jordan ceiling. The result is that the delay from February 13 to November 19, 2018 is presumptively included.
[135] With respect, I do not accept the trial judge’s conclusion that defence counsel expressly waived the entire period of delay from January 29 to March 20, 2018, the date when judgment on the motion was scheduled to be released. To be valid, an accused’s waiver must be clear and unequivocal. The accused must intend to exclude the specific period of delay from the overall assessment of reasonableness: Jordan at para. 61.
[136] It is necessary to understand the context of what happened on January 29, 2018 to determine whether it amounted to an express waiver of the time until the decision was scheduled to be released. On that date, when it was agreed that written submissions would be filed, the trial judge said she would require a couple of weeks after receiving the written submissions to prepare her ruling. There was then discussion about scheduling the delivery of her decision in the third week of March. In that context, the trial judge said to counsel that she understood that delay was not an issue. His response was “not at this point, Your Honour, no”. In other words, counsel was acknowledging that there was no issue with delaying the delivery of her reasons, which was obviously going to be necessary, for at least a couple of weeks, until the later date of March 20, 2018. I do not think this can be fairly interpreted as an express or implicit agreement by counsel that this delay should be excluded from consideration in the overall assessment of reasonableness. Rather, I view it as a concession that if reasons were delivered as anticipated on March 20, there would be no issue respecting s.11(b).
[137] While the trial judge indicated in her s. 11(b) ruling that the time her decision was on reserve “was informed in part” by what she viewed as this “concession”, I do not think that the exchange that took place can reasonably be viewed as the sort of concession she found it to have been.
[138] In my view, the trial judge ought to have accepted the agreement of counsel that the delay from January 29 to February 13, 2018, when all submissions were to be filed, was delay resulting from a discrete event and that this delay should be deducted from the Jordan ceiling.
[139] But, I think the period of time from February 13, 2018, when all of the material was filed for the trial judge’s consideration, until March 20, 2018, when judgment was to be delivered, should properly be included in the Jordan calculation. None of it was expressly or implicitly waived by the defence as found by the trial judge.
[144] Second, it is important to recognize that waiver “must be expressed in some terms” and that silence or lack of objection does not necessarily create a waiver. If the Crown seeks to argue that the defence waived a period of delay, the Crown has the onus of demonstrating that the waiver can be inferred. That said, an agreement of counsel to a later date may give rise to an inference that an accused is waiving the right to later allege unreasonable delay: R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199 at para. 65.
[145] In my view, however, defence counsel’s general failure to object to the repeated delays caused by the trial judge’s decision not to release her decision on the date she had scheduled, and to delay the delivery of her decision four times, cannot be understood as an implicit waiver of the right to later complain that any of the delay caused by the trial judge was unreasonable. I say that for two reasons.
[146] First, I do not accept that in these circumstances, it was incumbent on defence counsel to articulate, each time the trial judge advised counsel that she needed more time to prepare her ruling, that delay was an issue. As part of their duty to uphold the Charter, judges are under an obligation to minimize delay at all stages of the trial process. As Moldaver J. stated in K.G.K. at para. 55, “Post-Jordan, judges – like all participants in the justice system – should be acutely aware of the issues that promote delay and which can, in turn, give rise to a s. 11(b) violation.” I think the record in this case, setting aside the July 11, 2018 appearance before the trial judge, could not reasonably have led to the trial judge to conclude that delaying her decision on the motion would never give rise to s. 11(b) issue. Particularly in a case that had been going on for so long, the trial judge had to have understood that delay was not off the table.
[147] Second, in considering whether counsel’s failure to raise the issue of delay means that the delay was implicitly waived, it is important to observe that, in K.G.K., while acknowledging that counsel may be reluctant to ask about the status of a judge’s decision when it is under reserve, Moldaver J. made it clear that justice system participants must work together to minimize delays. He explained that counsel ought, in appropriate circumstances, to communicate with the trial judge: K.G.K. at paras. 74-75.
[148] I accept that there is some expectation that if a decision has been under reserve for a lengthy period, and counsel do not know when it might be delivered, they are obligated to make inquiries. However, I do not see this as a case where defence counsel was under an obligation to raise concerns about delay with the trial judge. Counsel were not left in limbo for months on end as to when the trial judge would release her ruling....
[151] The question is this: what is to be made of the fact that the Crown told the trial judge that he had spoken to his friend before court and understood that s. 11(b) was “not an issue at this point”? Mr. Gold’s articling student said nothing, perhaps leaving the trial judge with the impression that s. 11(b) was not an issue at that point.
[153] In my view, it cannot be correct to find that the student’s silence amounted to an implicit waiver of all of the delay caused by the fact that the trial judge’s ruling was still not ready. It is important to recognize that before the appearance, the trial judge’s assistant had said that the reasons were not ready and had asked counsel to agree on a date in late August or September. The trial judge was signalling that her reasons could not be ready before late August. I do not see how anything said on July 11, 2018 could mean that the time up to the end of August was being implicitly waived. The parties really had no option because, before they agreed to the new date, they knew that delay until at least the end of August was inevitable, as this was the first date the trial judge was prepared to rule.
[154] Accordingly, I think it was reasonable for the trial judge to have taken from the exchange in court before her that the defence was not concerned about the further delay in her delivering the ruling from late August, the earliest date when her reasons could have been available, until the new date selected of September 14, 2020. On this basis, I am prepared to find an implicit waiver of 3 weeks. This period of time should be deducted from the 21 months and six days delay, leaving a delay 20.5 months. Even this, I think, is a generous deduction given the fact that the trial judge’s reasons were not ready by either late August or September 14, 2018.
[159] I have carefully reviewed the record respecting how the date of November 19, 2018 (as opposed to October 11, 2018) was set for delivery of the trial judge’s ruling. I do not think it supports the trial judge’s conclusion that this delay was caused by the defence. The record reflects that of the nine dates offered by the court in October, the defence initially indicated it was available for all but one: October 11. The Crown was available for October 11, 15 or 19. The defence was available for October 19 as well. When the matter was in court to set the date, the defence indicated it was not available on October 15 either. The result was that for the nine days offered initially October, the defence was available for seven and the Crown was only available for the three, two of which happened to be the two that the defence could not do. Both were available for October 19, but the trial judge, who had initially suggested that week, was not then available that day.
[161] I do not see how this state of affairs leads to a conclusion that the defence caused the delay from October 11 to November 19, 2018. Jordan requires that all parties be flexible and cooperative. It does not mandate that either side be in a state of perpetually availability. It is only when the defence is offered several dates over a reasonable period and is unavailable for any of them – i.e. when the Crown and court could have proceeded, but the defence could not – that the delay caused in setting a date should be understood as properly attributable to the defence: R. v. Albinowski, 2018 ONCA 1084 at paras. 28-35. In my opinion, given counsel’s availability in October, and the lack of Crown availability, the defence cannot be said to have caused the delay from October 11 to November 19, 2018. This period of time cannot be deducted from the overall delay.
Conclusion
[175] I find that the total net delay was 20.5 months, a period of time that exceeds the 18-month presumptive ceiling.
[176] In its factum, the Crown suggested that if I were to conclude that there was a violation of s. 11(b) of the Charter, I should decline to stay the proceedings. This argument was not pressed during the Crown’s oral submissions. While I appreciate the Crown’s position that in its recent decision in R. v. Charley, 2019 ONCA 726, the Court of Appeal accepted that the possibility of staying a valid conviction based on sentencing delay was an “unjustified windfall” for the accused, it is important to note that the Court of Appeal did not revisit what it characterized as the “settled law” that a stay of proceedings is the only available remedy for a s. 11(b) breach prior to verdict. As compelling as the reasons might be for not granting such a drastic remedy, I am bound to follow the long-standing authorities of the Supreme Court of Canada and Court of Appeal and to grant the only permitted remedy, a stay of proceedings.
[177] For the reasons I have set out, a stay of proceedings is granted.
