This week’s top three summaries: R v Croteau, 2020 ONCJ 55, R v Forsyth, 2020 ABQB 86, and R v Gray, 2020 ABQB 68.
R v Croteau (ONCJ)
[January 30, 2020] Charter s.11(b) - Post Conviction Stay of Proceedings - 2020 ONCJ 55 [P.K. Doody J.]
AUTHOR’S NOTE: The ONCA in R v Charley, 2019 ONCA 726 left the remedy for a post-conviction delay over 5 months unexercised. Here, Justice Doody, after a thorough analysis proposes that the remedy should always be a stay of the sentencing. The conviction remains, but no sentence is imposed. It is unclear, whether this position will withstand subsequent jurisprudence or of a reduction in sentence is seen as possible in some circumstances. Time will tell. However, for now this decision is persuasive authority for a stay of sentencing to be the only possible remedy.
Pertinent Facts
[1] The defendant Peter Croteau was charged with 5 offences under the Controlled Drugs and Substances Act and 1 count of possession of currency knowing it to have been obtained by the commission of an indictable offence. The trial of those charges, and the hearing of a motion to stay the proceedings on the basis of an alleged breach of s. 11(b) of the Charter, were scheduled to begin on January 7, 2019.
[2] On January 2, 2019, the defendant entered a plea of guilty to two counts – one of conspiracy to traffic in marijuana of an undisclosed amount, and one of trafficking in marijuana under 3 kilograms.
[3] After the guilty pleas were entered, an Agreed Statement of Facts was entered. Mr. Croteau did not admit, in that document, that the amount of marijuana which he had conspired to traffic was over 3 kilograms. It was silent as to the quantity of marijuana which was the subject of the conspiracy. I found Mr. Croteau guilty of those two counts. I ordered a pre-sentence report, with the consent of both the Crown and defence. Because the pre-sentence report would take some time, the matter was adjourned to March 21, 2019 for sentencing submissions.
[4] On March 20, 2019, the day before sentencing submissions were to be made, Crown counsel advised defence counsel that if Mr. Croteau did not admit that the amount of marijuana he had conspired to traffic was over 3 kilograms, she would seek to lead evidence of that fact in a Gardiner hearing.
[5] The defence was not prepared to admit that fact. The Crown sought to prove it.
[6] The issue of whether the Crown could lead evidence in a Gardiner hearing was argued before me on June 18, 2019.
[7] On July 31, 2019, I released a written decision in which I held that, considered objectively, the Crown and the defence entered into an agreement that Mr. Croteau would plead guilty to these two counts, abandoning his right to a trial and his right to apply for a determination of whether his right to a trial within a reasonable time had been infringed, and in return the Crown agreed that the facts relied upon for the sentencing would be the facts set out in the Agreed Statement of Facts.
[8] On October 21, 2019, I heard further submissions on the issue of whether the decision of the Supreme Court of Canada in R. v. Nixon, 2011 SCC 34(which had not been raised by either counsel) affected the issue of whether, despite the agreement I had found, the Crown was entitled to lead evidence on a Gardiner hearing and whether, if so, the defendant was entitled to have his plea of guilty struck out. The next day, October 22, I issued my decision with written reasons holding that the Crown was not entitled to lead further evidence.
Post-Conviction Delay Analysis
[57] The parties do not differ about the framework to be used in determining this issue, which was established by the Supreme Court of Canada in Jordan, explained by the Court of Appeal in R. v. Coulter, 2016 ONCA 704 at para. 34, and held to be applicable to post-verdict delay in Charley at pars. 3 and 95:
(a) calculate the total sentencing delay – the period from the guilty finding to the actual or anticipated end of sentencing;
(b) subtract defence delay or waiver from the total sentencing delay, which results in the net sentencing delay;
(c) compare the net sentencing delay to the presumptive post-verdict ceiling of 5 months;
(d) if the net sentencing delay exceeds the 5 month presumptive post-verdict ceiling, it is presumptively unreasonable;
(e) to rebut the presumption, the Crown must establish the presence of exceptional circumstances;
(f) in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases; and
(g) subtract delay caused by discrete events from the net sentencing delay, resulting in the remaining sentence delay; if this exceeds 5 months consider whether the case was particularly complex such that the time taken for sentencing is justified and the delay is reasonable.
Key Portions of the Analysis Here
[58] The total sentencing delay is the delay from January 2, 2019, the date the plea of guilty was entered and I found Mr. Croteau guilty, to January 7, 2020, the date I heard sentencing submissions. That is a period of 1 year 5 days.
[69] This was not a complex case. Sentencing would have taken about an hour but for the Gardiner issue. Any complexity was created by the Crown mistake (the characterization made by Crown counsel) in entering into the Agreed Statement of Facts in its present form, and then taking the steps I describe in the next section of these reasons. It was not outside the Crown’s control, as is required by para. 69 of Jordan for exceptional circumstances, which include complex cases. The Crown cannot both create complexity and rely on it to justify delay. (R. v. Z.N., 2018 ONCJ 501; R. v. Albadry, 2018 ONCJ 114 at para. 28)
Discrete Event Argument
[70] Crown counsel submitted that this case qualified as a discrete event because Crown counsel who negotiated the Agreed Statement of Facts expected that she would be entitled to lead evidence to establish the amount of marijuana the defendant had conspired to traffic.
[71] He points to her affidavit (upon which she was not cross-examined) in which she swore that it was always her intention to provide further information to the sentencing judge to expand on portions of the agreed statement of facts with regard to Mr. Croteau’s role in the conspiracy and the volume of drugs being trafficked. She swore that the Crown had prepared additional material it intended to file during the sentencing hearing which included photographs and videos taken during the course of the investigation and:
The Crown did not anticipate that such easily proved details from the videos of Mr. Croteau and Mr. Saikely taken during the course of surveillance, hallway videos and video of Mr. Saikely counting and handling the marihuana received from Mr. Croteau would be contentious.
[72] As I said at para. 52 of my decision of July 31, I accept this evidence. As I explained in that decision, however, the objective evidence does not support that expectation.
[73] It was unreasonable for Crown counsel to expect that she would be able to introduce additional facts on sentencing. Although it was unforeseen that defence counsel would object to the tendering of this evidence and the court would uphold the objection, it was not reasonably unforeseen as is required by the test for exceptional circumstances set out in paragraph 69 of Jordan.
[74] Nor was it reasonably unavoidable.
[75] Crown counsel should have realized that the Agreed Statement of Facts did not specify the amount of marijuana which was the subject of the conspiracy if that was a fact which was important to put before the court on sentencing. Had she done so, she would have raised that in negotiations with defence counsel and one of two things would have happened – either the parties would have agreed on the amount, or they would not have been able to come to an agreement.
[78] If that delay had not occurred, sentencing submissions would have been made on March 21 if the defendant had pleaded guilty.
[79] Even if the Gardiner application was an exceptional circumstance, the Crown did not take reasonable available steps to avoid and address the problem before the delay exceeded the ceiling, as required by para. 70 of Jordan.
[81] Crown counsel was, in many respects, content to let the matter drift....
[82] It cannot be said that the defendant’s actions showed a different approach....
[85] The manner in which the defence was conducted after the Crown gave notice of its intention to file further evidence leads me to conclude that much of it was “illegitimate” as that word is used at paras. 31 to 35 of Cody – that is, not misconduct but showing “marked inefficiency or marked indifference to delay”.
[86] The Supreme Court, however, ruled in Jordan at para. 63 that defence delay is delay “caused solely by the conduct of the defence”. It repeated this at para. 30 of Cody where Moldaver J. wrote:
The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges.
[87] I am bound by those decisions.
[88] The “illegitimate” conduct of the defence that I have described did not solely or directly cause the delay between the guilty plea and November 15, the date that sentencing submissions could have been argued but for the s. 11(b) application. The actions of Crown counsel that I have described above were the primary cause of the delay. But for those actions, the sentencing hearing could have proceeded on March 21, less than 3 months after the finding of guilt
[94] I accept Crown counsel’s submission that the position he took in the application to call further evidence had an arguable basis and was neither frivolous nor undertaken in bad faith, as those words are used in Tsega. I have already held, however, that the application itself was neither reasonably unforeseen nor reasonably unavoidable. It was not, therefore, a discrete event.
[110] I conclude that the “remaining delay” is approximately 1 year – the time between January 2, 2019 and January 7, 2020, less 8 days waived by defence between March 21 and March 29.
Transitional Issue
[113] The parties did not know, prior to the release of Charley, that the presumptive limit for net sentencing delay was 5 months.
[114] They did know, however, that s. 11(b) applied to post-verdict delay. That was made clear by the Supreme Court decision in R. v. MacDougall, [1998] 1 S.C.R. 45.
[124] In my view, taking all of these things into consideration, including transitional issues, it is appropriate to deduct the time between November 15 and January 7, a period of 8 weeks, from the total sentencing delay.
[125] The net sentencing delay is thus 10 months, which is 5 months in excess of the 5 month presumptive limit.
[126] Mr. Croteau’s right to a trial within a reasonable time has been breached by this post-verdict delay.
Remedy
[127] Doherty J.A. wrote in Charley, at paras. 106 to 114, that neither R. v. Rahey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588 nor any of the subsequent cases specifically address the appropriate remedy for post-verdict delay. He accepts as accurate Ginsberg J.’s description of the possibility of vacating a valid conviction based on sentencing delay as “an unjustified windfall” for the accused. (Betterman v. Montana, 578 U.S. ___ (2016)) He wrote that the analysis offered in Rahey to support the holding that a stay of proceedings was the required remedy for a s. 11(b) breach suggests that the remedy for a post-verdict s. 11(b) breach should target sentence and not conviction. He noted that Lamer J., writing in Rahey for himself and Dickson C.J.C., held that no court had jurisdiction to try a defendant after the passage of an unreasonable period of time, and wrote that, based on that rationale, it could be argued that post-verdict delay should impact only the jurisdiction to sentence.
[128] At paragraph 114, Doherty J.A. wrote:
It is arguable that the remedy for post-verdict delay should not affect the conviction, but should be based on a determination of the "appropriate and just" remedy as it relates to sentencing. Appropriate remedies might include a stay of the sentencing, or a stay of the enforcement of all or part of the sentence imposed. I leave this issue to a case in which the court has found a breach of s. 11(b) post-verdict.
[129] In my view, the Supreme Court of Canada made it clear in Rahey that the only remedy for a breach of s. 11(b) is a stay of proceedings. I cannot discern a way in which to limit its application to proceedings occurring before a finding of guilt. I am bound by that decision, which is not weakened by the Court’s subsequent decision in R. v. Nasogaluak, 2010 SCC 6.
[130] In Rahey, only 8 of the Court’s members took part in the judgment. There were 4 separate opinions, each supported by 2 judges. One of the issues was the remedy for a breach of s. 11(b). The breach in that case occurred before a verdict was declared, and arose as a result of a delay in the trial judge giving a decision on an application for a directed verdict.
[132] Lamer J. made it clear that a stay – what he called the “minimum remedy” – had the effect of halting the proceedings as at the time the finding was made when he held that the remedy could not be an acquittal for someone like the accused in that case who had asserted that the breach had occurred before the end of the trial. He wrote at para. 52:
If an accused chooses, as in this case, to challenge the process before the end of the trial under s. 11(b) of the Charter, he or she then elects to put a definitive but premature end to the process instead of a final determination of the issue of guilt or innocence. In such a case, the proper remedy is, in my respectful view, a stay. [emphasis added]
[135] Only two members of the Court held that other remedies short of a stay could be granted for a s. 11(b) breach. Laforest J. wrote on behalf of himself and McIntyre J. that a broad range of remedies were possible. He cited his earlier judgment in R. v. Mills, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863 where, writing only for himself, he had held that s. 24(1) of the Charter authorized remedies beyond staying the prosecution even where s. 11(b) had been breached, and McIntyre J.’s judgment in that case in which he held that a breach of any Charter right did not “exclude the court from further participation in the matter” but rather gave a court discretion to give the appropriate remedy.
[139] In Rahey, the defendant’s right to a trial within a reasonable time was breached after the trial had begun but before he had elected whether to call evidence. Consequently, he was not entitled to an acquittal but only to a stay of proceedings.
[140] In the case before me, Mr. Croteau’s right to a trial within a reasonable time was breached after I found him guilty but before I imposed sentence. I conclude that, despite the attractiveness of Laforest J.’s reasons, and the potential for an “unjustified windfall” for a defendant who has been found guilty, the only remedy I can grant for the infringement of Mr. Croteau’s right to a trial within a reasonable time is a stay of proceedings.
R v Forsyth (ABQB)
[February 4, 2020] Charter s.11(b) - Late Crown Disclosure Adjournment - 2020 ABQB 86 [D.A. Sulyma J.]
AUTHOR’S NOTE: In the above decision, Justice Sylyma deals with a case where the delay was just over the 30-month superior court limit. Here, late disclosure led to an adjournment of the trial. The issue was that police did not "create" the disclosure until close to the trial (a cell phone extraction) and then provided it so close to the trial an adjournment was necessary. Ultimately, this case stands for a number of useful propositions to the defence: delay just over the 30-month deadline still results in a stay, Crown disclosure must be prompt in the delivery and creation, and finally earlier Crown-offered dates do not establish defence waiver on their own and subsequent events can make that circumstance moot (ie. disclosure provided after the earlier-offered dates).
Pertinent Facts
[1] The Applicant/Accused applies for a stay of proceedings pursuant to section 24.1 of the Charter on the basis that his right to a trial within a reasonable time pursuant to section 11(b) has been breached.
[2] His trial is currently scheduled to be heard February 24 to 28, 2020 with jury selection to take place on February 20, 2020. The total anticipated delay to the end of trial is 31 months, 10 days. He submits that this 31 months’ delay is presumptively unreasonable as being over the ceiling of 30 months established in R v Jordan, 2016 SCC 27 (CanLII), [2016] SCJ No. 27 (SCC).
[3] He was originally arrested and charged on July 19, 2017, with offences under s. 151, 152, 153(1)(a) and 271 of the Criminal Code. Certain of these charges pertain to a circumstance where the complainant is under the age of 16. In this case, the complainant was in fact not under the age of 16 as at the dates of the alleged offences. Accused was released on a recognizance and the October 25, 2017, Information 170818702P1 was withdrawn and replaced with Information 170999957P1 and the process was transferred to that Information.
[6] On August 20, 2019, the Defence applied for an adjournment of the September 30, 2019, trial. I will explain further that the adjournment application was granted due to the Defence receiving a large volume of disclosure on the eve of trial.
[8] Significant events leading up to scheduled trial dates include the fact that the RCMP obtained two cell phones from the complainant on September 5, 2017, which purportedly contained text messages between the complainant and the accused. The police seized one of those two cell phones (the Green IPhone), sent it to NAICEU for forensic examination on March 21, 2018, and on June 1, 2019, made available to the Defence a CD marked ESP 00064.
[9] On June 27, 2019, the matter was before the Court for the purpose of a Crown application for a witness to appear for trial by CCTV. At that time, the Defence became aware that the Crown had inadvertently failed to provide proper disclosure for ESP 000064. That resulted in replacement disclosure on July 16, 2019. This disclosure was over 5,000 text messages and also contained a 51-page extraction report. The latter contained text messages forensically extracted from the Green IPhone.
[10] At the same time, there was still significant outstanding disclosure in relation to the forensic analysis performed on the Green IPhone.
[11] It was not until August 2, 2019, that the Defence received the forensic report, which contained 12 pages and was marked “main report” as well as CD disc affixed to the inside back page of the bound report....
[12] On August 19, 2019, an additional package of disclosure ESP 000066 to ESP 0000121 was made available to the Defence and picked up by the Defence counsel August 26, 2019. That disclosure consisted of 65 pages which were not organized...
[13] Defence applied to adjourn the trial on the basis of late disclosure and to allow him to make full answer and defence in light of the volume, nature and importance of that disclosure received between July 16 and August 19, 2019.
[14] The original trial date was adjourned by Justice Belzil from August 28, 2019, to September 20, 2019, in QBAC in order to set new dates. The present trial date was set and this application precedes the booked date.
[26] The major instances of systemic delay arises as the Crown had the Green IPhone in its possession since September 5, 2017, but failed to send it for forensic examination until March 21, 2018, and it was not until July 31, 2019, that the Crown had completed providing disclosure with respect to the forensic analysis of the Green IPhone.
The Law
[15] The law relating to delay has been recently defined by the decision of Jordan in the Supreme Court of Canada: R v Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. The matter was further dealt with in an Alberta Court of Appeal case of R v Chang 2019 ABCA 315. By the Jordan decision, the Supreme Court set new guidelines concerning how all actors in the judicial process should handle and process criminal cases. A presumptive ceiling was established for cases proceeding in superior courts at 30 months. That is when the delay becomes presumptively unreasonable.
[16] The Crown bears the onus of establishing that a delay over the Jordan ceiling is reasonable based on exceptional circumstances. The Court also described circumstances of delay that would be attributable to the Defence. That is (1) delay that is explicitly or implicitly waived; and (2) delay caused solely by the conduct of the Defence. The onus is on the Crown to prove that any portion of delay is solely caused by the accused (R v Askov, 1990 CanLII 45 (SCC), [1990] 2 SCR 1199, at paragraph 63).
Application
Crown's "New Information" = New Day Argument
[21] It is correct that the new Information added charges in relation to child pornography so it can be argued that, in this case, the changes go beyond technical corrections. I am of the view that although the replacement charges did add a significant replacement charge, that the complainant remained the same complainant and acts as alleged initially remained the same, that the prejudice to the accused remained or reflected the same prejudice as followed from the first Indictment and as the process was transferred, I note he remained under the same conditions of release.
[22] I conclude, as did the Ontario Court of Appeal in Milani (R v Milani 2014 ONCA 536), that for all practical purposes, this was a single proceeding and therefore the Jordan clock remains as beginning at the date of the first Indictment, not the second. Accordingly, the elapsed time to consider as the Jordan time runs from the swearing of the first Information to the current end of trial date equals 31 months.
Crown Argument: Defence Rejected an Earlier Offered Trial Date
[30] I find that this onus is on the Crown despite there being an ultimate onus on the Defence to establish a breach of s. 11(b) rights on a balance of probabilities.
[31] This is stated in R v Chang at paragraphs 40 to 48 which deal with the practical and conceptual difficulties with calling upon the Defence to prove its own delay or waiver. The statement of the Alberta Court of Appeal at the end of paragraph 48 states:
Once defence-caused delay becomes a live issue, the onus lies on the defence to show whether the delay was in fact caused by the defence and if so, what effect it should have on the total timeline.
[32] As explained above, any period of waiver must be proved by the Crown. Realistically, it will fall to the Crown to allege defence-caused delay and to adduce proof thereof.
[33] In this case, I have been provided with emails regarding setting of trial dates between the Crown and Defence. The Crown had put forth a list of trial dates in April of 2018 and Mr. Kurie, on behalf of the accused, chose the later date. That is not proof that the Crown or the Court was indeed available on the earlier dates and the Defence was not. I do not approach this argument as one of the Defence bearing the onus. Rather, I approach it as the Crown having the initial onus of proving this was a defence-caused delay and has not done so.
[35] In addition, there was additional disclosure on August 19, 2019, containing a further 65 pages. Accordingly, the issue of whether the Defence could have set earlier dates becomes moot by this later fact. That is, that during the whole of the period which included what the Crown states would have been available trial dates, disclosure had not occurred and indeed did not occur until just before the chosen trial date of September 30. I find it is clear that disclosure necessitated an adjournment that clearly would have precluded the Crown proceeding on any of the earlier dates.
[36] I decline to find the alleged 10-month delay due to what the Crown states is the Defence rejecting an offer of earlier trial dates to be a delay solely attributable to conduct of the Defence. That argument is overtaken and extinguished by the later reality of lack of disclosure.
Case Complexity
[43] It is clear that this case does not meet that standard that was contemplated by the Supreme Court of Canada as “particularly complex”. In Jordan, (at para 77) complex cases are described as:
“Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications, novel or complicated legal issues, and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case”.
[44] I note that the first trial was set for a 5-day jury trial and the only change in the circumstances surrounding this case was the Crown failing to provide disclosure in a timely manner. Therefore, this is not a case where the volume of disclosure, number of witnesses, or any other factor could be said to make this a particularly complex case. Indeed, the Crown now states that the trial never ought to have been set for two weeks.
Conclusion
[49] Crown counsel have a duty to advance their prosecution in a timely manner. The delay in the case at bar is the direct result of the Crown’s failure to advance Mr. Forsyth’s case. It is not enough for the Crown to remain silent on the record during proceedings as to its earlier availability and concerns about the Jordan limitations. It is not enough for the Crown to advise the Defence and the Court after a trial has been rescheduled as to their earlier availability and willingness to proceed to trial at those earlier times.
[51] The police/Crown had the Green IPhone in their possession since September 5, 2017. It was not until March 21, 2018, that the Green IPhone was sent to NAICEU for forensic examination. And it was not until July 31, 2019, that the Crown had completed providing disclosure with respect to the forensic analysis of the Green IPhone.
[52] The failure of the Crown in handling this case has led to a violation of Mr. Forsyth's ss. 7 and 11 (b) Charter rights. In this case, the constituent parts of the Crown have each failed in their respective duties to bring Mr. Forsyth to trial within a reasonable time. Collectively, these failures resulted in a delay of over 31 months.
R v Gray (ABQB)
[January 27, 2020] – Charter s.11(b) - Defence not Available on Mutual Dates with Court and Crown – 2020 ABQB 68 [B.R. Burrows J.]
AUTHOR’S NOTE: Another 11(b) case with Crown providing late digital disclosure. However, what is far more interesting for future application is that here the Defence was explicitly unavailable for re-scheduling dates that were available to the Crown and Court. The defence was not penalized for its more limited flexibility in its calendar. The case stands for the proposition that where defence has "reasonable availability" it will not be penalized for solely-caused defence delay on rescheduling a trial simply because that availability does not match the Court and Crown at a earlier point.
Note: there are issues with paragraph numbering in this decision.
Pertinent Facts
[6] The election and plea steps were completed, and the preliminary inquiry was conducted, within what is generally considered to be a reasonable time – under 10 months. Mr. Gray was committed to stand trial and a Queen’s Bench judge alone trial was scheduled for September 10 to 14, 2018. If the trial had occurred on those dates, Mr. Gray would have had his trial within 24 months of the commencement of the proceedings by the earlier information.
[7] However, on September 6, 2018, four days before the scheduled commencement of the trial, Mr. Gray applied for an adjournment of the trial. The reason for the application was that the Crown had not yet provided “data from seized devices to a defence expert” – there had been a delay in effecting an element of disclosure. There was at that point insufficient time remaining before the commencement of the trial, four days later, for the defence expert to complete his analysis even if the required disclosure was made immediately.
[10] At the adjournment application, the Crown acknowledged that the requested disclosure had not been provided and advised that the Crown did not object to the adjournment so long as Mr. Gray waived his Charter s. 11(b) right. Mr. Gray declined to do so. He did not accept responsibility for the state of affairs that made the adjournment application necessary. It was recognized that the Jordan deadline would expire in early 2019.
. . . it seems to me that defence has to have an opportunity to have [the requested disclosure] reviewed by their expert. And the trial can’t go ahead without that having happened. So, I don’t think I’m going to require [Mr. Gray] to waive 11(b) in order to get the adjournment. I’m not going to say whose fault it is. If it becomes an issue, that will have to be determined.
[15] The materials on this application do not indicate what dates Crown Counsel, Mr. Rowan, was available. It appears, however, that the messaging between Counsels’ offices did not identify any dates when both Mr. O’Keeffe and Mr. Rowan were available prior to March 22, 2019. The materials indicate that there may have been dates in May 2019 when both Mr. Rowan and Mr. O’Keeffe were available, but court time was not available on those dates.
[17] Mr. Rowan’s availability was not specifically mentioned but I expect this was because there was no point in mentioning his availability, whatever it was, when there was no date when Mr. O’Keeffe’s and the court’s availability matched. I take notice that, at least in September 2018, when scheduling difficulties such as those presented on this occasion arose, the Crown’s availability was rarely the problem. The Crown, at least in September 2018, was usually able to change prosecutor assignments if necessary to accommodate defence and Court schedules.
[18] The Court set the trial for February 3 to 6, 2020. There was no mention of Jordan concerns at this appearance.
[19] The first issue to be decided is whether at least 10 months of the delay in excess of 30 months was waived or caused solely by Mr. Gray. If not, then the second issue is whether the Crown has shown that the delay beyond the Jordan ceiling results from exceptional circumstances.
Delay of the Requested Disclosure
[1] I do not agree with the Crown’s first point. In my view, the description in the Agreed Statement of Facts of the back and forth between Crown and Defence from the date Defence requested the disclosure to the adjournment application, January 24 to September 6, 2018, a period in excess of seven months, (see the Appendix to this decision) demonstrates that neither Crown nor Defence focused on the disclosure request with any urgency or with reasonable efficiency. The disclosure request may not have been routine, but neither was it difficult or incapable of being accomplished in very much less that seven months.
[3] I do not agree that the 34 days that were lost while the Crown awaited the return of the signed Consent Order, not realizing that the lawyer to whom it had been sent had left the practise of law, should be labeled “defence delay”. Such a delay apparently did not, at the time, concern the Crown sufficiently to generate a follow up inquiry. It should have.
[4] In my view, none of the delay that was encountered in the Crown making the disclosure which the Defence requested on January 28, 2018 is delay “solely caused by the conduct of the defence.” (Jordan para. 63). None of it should be subtracted from the overall delay.
Delay from Rescheduling the Trial Date
[5] I also disagree with the Crown’s submission that the delay from the adjourned trial dates to the rescheduled trial dates, 17 months, was caused by the defence....
[6] In my view, it is not accurate to describe the difficulty that arose on September 14, 2018, in finding four consecutive dates when the court, the Crown and the Defence would all be available in the six months following (that is, the six months before the Jordan deadline), as a situation where the court and Crown were ready to proceed, but the defence was not. The court and Defence were, in fact, each “ready to proceed” on three “blocks” in that six months. Presumably the Crown could have been “ready to proceed” on all six blocks if necessary. But neither the court nor the Defence was “ready to proceed” on the same block.
[7] On September 14, 2018, the three schedules that had to be coordinated simply could not be coordinated. There is no more basis for ascribing fault for that state of affairs to the Defence as there is for ascribing it to the court or the Crown. The resources of each are limited. If the situation involved “fault” at all, it is “fault” which lies as much on the court as on the Defence.
[8] It cannot be said that it is Defence Counsel’s lack of availability that resulted in the matter being set further into the future than would be otherwise be the case. The court, the Crown and the Defence all had reasonable availability, albeit limited availability, before the Jordan deadline. But none of that reasonable availability was at the same time.
[13] It is clear from these passages that it is fundamental to a finding that exceptional circumstances render delay beyond the Jordan ceiling reasonable, that the Crown have taken reasonable steps when the problem arose to attempt to remedy it.
[14] Here, in my view, the problem – that it was difficult on September 14, 2018 to find four consecutive days when the Crown, the Defence and the court were all available for trial before March 22, 2019 – was reasonably unavoidable, but whether or not it could have been reasonably remedied is not known. The Crown made no request either in QBAC, or to the judge who had conducted the pretrial conference, or to the Chief Justice, either before the Jordan deadline or ever, for special attention to be given to the scheduling of this matter.
[15] Such a request would have been a reasonable thing to do – probably the only reasonable thing to do. But the Crown made no attempt whatsoever to remedy the problem. If it did not do so, as was suggested in the Crown’s submissions, because it assumed that Mr. Gray had waived his Charter s. 11(b) rights, there was no basis whatsoever for that assumption.
[17] Mr. Gray’s right to trial within a reasonable time, guaranteed by Charter s. 11(b) has been violated. I order that the proceedings against him be stayed.
