R v Jones, 2016 ABQB 691

Court of Queen’s Bench of Alberta Citation: R v Jones, 2016 ABQB 691 Date: 20161212 Docket: 150005387Ql Registry: Edmonton Between: Her Majesty the Queen Crown/Respondent - and - Desmond Ferdinand Jones Accused/Applicant _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice K.G. Nielsen _______________________________________________________ I. Introduction [ 1 ] The accused, Desmond Ferdinand Jones (the Applicant), applies for a judicial stay pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act , 1982 , being

Schedule B to the Canada Act , 1982 (UK), 1982, c. 11 on the ground that his s. 11(

b) Charter right to be tried within a reasonable time has been violated. This case was set to be tried by judge and jury for 7 days from December 5 to 13, 2016. Twenty-three months and 11 days have elapsed between the charge and the expected conclusion of this trial. II. Facts [ 2 ] On January 2, 2015, the Applicant was charged with sexual assault based on an incident on December 25, 2014. The accused appeared before a Justice of the Peace and was released that day on cash bail with a promise to appear in provincial court on

January 29, 2015. [3] On January 29, 2015, defence counsel appeared for the accused.

The matter was adjourned for 6 weeks until March 12,2015, for the Crown to provide disclosure. [4] On March 12, 2015, defence counsel appeared by designation, elected a judge and jury trial in the Court of Queen’s Bench,and set a preliminary inquiry for October 6, 2015. [5] On September 3, 2015, the Crown filed a direct indictment and the matter was set for September 18, 2015, in Queen’s BenchAppearance Court. [6] As the Crown inadvertently failed to inform defence counsel of the September 18, 2015 appearance, the Crown appeared onthat day and set the matter over until October 2, 2015. [7] An agent for defence counsel appeared on October 2, 2015, and set a trial for December 5 to 13, 2016. [8] The total time from the initial charge on January 2, 2016, to the anticipated completion of trial on December 13, 2016,amounts to 23 months and 11 days.

III. Law A. The Charter [9]

Section 11(

b) of the Charter provides: 11. Any person charged with an offence has the right... (

b) to be tried within a reasonable time. B. The Jordan Framework [10] The Supreme Court of Canada recently changed the framework for the analysis pursuant to s. 11(

b) in R v Jordan, 2016 SCC27, [2016] SCJ No 27. While the prior analytical framework in R v Morin, (SCC), [1992] 1 SCR 771, [1992] SCJ No25, informs portions of the test in Jordan (see R v Lam, 2016 ABQB 489, [2016] AJ No 887), the Jordan framework should be appliedin this case. 1. Total Delay [11] Under the Jordan framework, the court must first determine the total delay from the date of charge to the anticipated end oftrial (Jordan at para 49).

If any portion of this time was clearly or unequivocally waived by the defence, that portion should be deductedfrom the total delay (Jordan at para 61). [12] Defence attributable delay should also be deducted. This includes defence actions aimed at causing delay and delay resultingfrom periods where the court and Crown are ready to proceed but the defence is not (Jordan at paras 63-64). [13] If the delay after deductions is less than 30 months in a superior court trial, the delay is presumptively reasonable. Conversely,a delay of 30 months or more is presumptively unreasonable (Jordan at paras 46, 49, 105). 2.

Delay under 30 months [14] If the delay is below the 30 month ceiling in relation to a superior court trial, there is a presumption that

section 11(

b) has notbeen violated and that a stay will not be entered. [15] The defence can rebut this presumption by demonstrating 1) that they took meaningful, sustained steps to have the matter triedquickly and 2) that the case took “markedly longer” than it reasonably should have (Jordan at para 82).

Stays beneath the ceiling are “tobe granted only in clear cases” (Jordan at para 83). [16] In order to prove meaningful, sustained steps, “it falls to the defence to show that it attempted to set the earliest possiblehearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay wasbecoming a problem, and conducted all applications (including the s. 11(

b) application) reasonably and expeditiously” (Jordan at para85).

It should be noted that for this assessment the defence is required to act reasonably, not perfectly (Jordan at para 85). [17] Determining whether a case markedly exceeded reasonable time requirements requires consideration of the complexity of thecase, relevant local and systemic circumstances in the jurisdiction where the case is tried, and whether the Crown has taken steps toexpedite proceedings (Jordan at paras 88-90). [18] For cases in the system at the time of the release of the Jordan decision, a transitional exception modifies this framework:“the two criteria – defence initiative and whether the time the case has taken markedly exceeds what was reasonably required – must alsobe applied contextually, sensitive to the parties’ reliance on the previous state of the law” (Jordan at para 99). [19] Consequently, “the defence need not demonstrate having taken initiative to expedite matters for the period of delay preceding

[ Jordan ],” and institutional delay “reasonably acceptable in the relevant jurisdiction” under Morin should inform whether the reasonable time requirements of the case have been exceeded ( Jordan at para 99 ).

The Supreme Court also noted: “given the level of institutional delay tolerated under the previous approach, a stay of proceedings below the ceiling will be even more difficult to obtain for cases currently in the system” ( Jordan at para 100 ). [ 20 ] If defence counsel can rebut the presumption and therefore establish that the delay was unreasonable, charges will be stayed irrespective of the 30 month ceiling. 3. Delay over 30 months [ 21 ] This Court has already outlined the framework for delay above the presumptive ceiling in Lam and R v Regan , 2016 ABQB 561 , [2016] AJ No 1050.

If the delay breaches the 30 month ceiling for superior court trials, the court is to presume that s. 11(

b) has been breached. In this case it is unnecessary to outline how the Crown may rebut this presumption because defence counsel has conceded that the delay is only 23 months and 11 days. IV. Analysis [ 22 ] Given arguments raised by defence counsel, I must consider the proper presumptive ceiling for a superior court trial where there is no preliminary inquiry and then apply the Jordan framework based on the proper presumptive ceiling. A.

What is the applicable presumptive ceiling for a superior court trial that does not have a preliminary inquiry? [ 23 ] Defence counsel argues that the presumptive ceiling generally applied to provincial court trials (18 months) is applicable in this case as there was no preliminary inquiry. Defence counsel relies on the principles in Jordan as the basis for this argument.

I note that counsel was unable to point me to a single case where a court found that the absence of a preliminary inquiry meant a presumptive ceiling of 18 months in a superior court trial. [ 24 ] The Supreme Court makes it clear in Jordan that “the centre of this new framework is a presumptive ceiling on the time it should take to bring an accused person to trial: 18 months for cases going to trial in the provincial court, and 30 months for cases going to trial in the superior court ” ( Jordan at para 5 [emphasis added]).

The Court reiterated this point numerous times: The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry) (para 46) …. For cases going to trial in the superior court, the presumptive ceiling is 30 months from the charge to the actual or anticipated end of trial. We note the 30-month ceiling would also apply to cases going to trial in the provincial court after a preliminary inquiry (para 49) ….

There is little reason to be satisfied with a presumptive ceiling on trial delay set at 18 months for cases going to trial in the provincial court, and 30 months for cases going to trial in the superior court (para 57) …. If the total delay from the charge to the actual or anticipated end of trial… is less than 18 months for cases going to trial in the provincial court, or 30 months for cases going to trial in the superior court, then the defence bears the onus to show that the delay is unreasonable (para 82) ….

The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry) (para 105) …. [in applying Jordan ] this leaves a remaining delay of 44 months, an amount that vastly exceeds the presumptive ceiling of 30 months in the superior court (para 124). [ 25 ] A plain reading of the decision leaves no room to find that a superior court trial without a preliminary inquiry has a ceiling of 18 months. [ 26 ] While the Supreme Court did add an exception for provincial court trials with a preliminary inquiry, the Court never indicated that the presumptive ceiling for a superior court trial depends on the chosen procedure.

The Supreme Court had the option of deciding that the determinative factor for the presumptive ceiling was the presence or absence of a preliminary inquiry – the reality is that it did not do so. [ 27 ] The finding that the presumptive ceiling is 30 months for any superior court trial is consistent with other passages in Jordan as well as subsequent case law.

[ 28 ] The Court in Jordan considered the inherent time requirements of a case and the increasing complexity of criminal cases in setting the presumptive ceilings ( Jordan at para 53 ). Given that superior courts have jurisdiction over more serious cases, typically decide more complex cases, and have a very different caseload when compared to provincial courts, it stands to reason that the Supreme Court chose a higher presumptive ceiling for superior court trials.

This “reflects the realities we currently face” ( Jordan at para 57 ). [ 29 ] This Court’s recent decision in Regan , a case heavily relied on by defence counsel, reinforces that the proper ceiling for superior court trials is 30 months. A direct indictment was filed in Regan shortly before the preliminary inquiry and 24 months after the charge was laid ( Regan at paras 9, 12, 13, 99, 102 ).

While this delayed direct indictment meant that there was no preliminary inquiry, the Court in Regan still applied the 30 month presumptive ceiling because it was a trial in superior court ( Regan at paras 37-40, 83, 102 ). [ 30 ] This Court in Regan also suggested that proceeding by direct indictment can help reduce delay in certain circumstances: “The Crown did... have a very real opportunity to minimize the impact of delay by the timely and prudent use of its direct indictment power” ( Regan at para 108 ). [ 31 ] The Ontario Court of Appeal reached this same conclusion in R v Manaserri , 2016 ONCA 703 , [2016] OJ No 5004 (QL): “A direct indictment… might at least have resulted in a trial date in 11 months, rather than a preliminary inquiry” ( Manaserri at para 376 ; see also para 375). [ 32 ] The Ontario Court of Appeal noted in a footnote to paragraph 376: Direct indictments under s. 577 (

a) of the Criminal Code have been infrequent in this province. However, after Jordan , with full disclosure as required by R v Stinchcombe , [1995 CarswellAlta 27 (SCC) ] the Crown should give very serious consideration to preferring direct indictments to fulfill its mandate under s. 11(

b) and to ensure, to the extent reasonably possible, that criminal trial proceedings do not exceed the presumptive ceilings set by Jordan . This indicates that the Ontario Court of Appeal views direct indictments as a way to get below a presumptive ceiling – not as a procedural action that lowers a presumptive ceiling. [ 33 ] In

summary, the Supreme Court has clearly stated that the presumptive ceiling for superior court trials is 30 months and this Court has already applied this finding in a case where there was no preliminary inquiry. As this is a superior court trial, I find that the presumptive ceiling in this case is 30 months. B. Was the delay unreasonable based on the Jordan analysis? 1. What is the total delay in this case? [ 34 ] As outlined above, the Applicant was charged on January 2, 2015, and the originally scheduled trial was expected to end December 13, 2016. This amounts to 23 months and 11 days of delay.

Nothing should be deducted from this time as the parties agree that there was no waived delay or defence attributable delay. As this delay is below the presumptive ceiling, the delay is presumed to be reasonable. 2. Was the delay unreasonable even though it fell below the presumptive ceiling? [ 35 ] While the delay is below the presumptive ceiling, defence counsel can still demonstrate that the delay was unreasonable.

As discussed above, this requires consideration of 1) whether the defence took meaningful and sustained steps to have the matter tried quickly and 2) whether the reasonable time requirements of the case were markedly exceeded. As this case was in the system when Jordan was released, this test must be applied contextually “with due sensitivity to the parties’ reliance on the previous state of the law” in accordance with the transitional framework ( Jordan at para 105 ; see also paras 99-100). Stays beneath the ceiling are “to be granted only in clear cases” ( Jordan at para 83 ). a.

Did defence counsel take meaningful and sustained steps to have the matter tried quickly? [ 36 ] As mentioned above, in order to prove “meaningful steps”, “ it falls to the defence to show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications (including the s. 11(

b) application) reasonably and expeditiously” ( Jordan at para 85 [emphasis added]). While defence initiative is not required before the release of the Jordan decision, prior defence initiative may help the defence establish that the delay exceeded what was reasonably required ( Jordan at para 99 ). [ 37 ] I find that defence counsel has been cooperative and responsive to the Crown and the court.

This cooperation has reduced the time needed for trial and reduced the number of witnesses that need to be called. [ 38 ] I also find that defence counsel took initiative to set early hearing dates prior to the release of the Jordan decision. Defence counsel set a preliminary inquiry at the second appearance in Provincial Court (the first appearance after receiving disclosure), and set a trial at the first appearance they were informed of in the Court of Queen’s Bench.

Defence counsel’s conduct prior to the release of the Jordan decision moved the matter forward and thus warrants consideration. [ 39 ] However, some of defence counsel’s decisions post-release of the Jordan decision have contributed to systemic delay. Jordan was released on July 8, 2016. I find that defence counsel did not “put the Crown on timely notice when delay was becoming a problem” ( Jordan at para 85 ).

Defence counsel chose to wait until October 21, 2016, the last of two pre-trial conferences before me as the assigned trial judge, to raise concerns about delay. [ 40 ] Defence counsel also has not “conducted all applications ( including the s. 11(

b) application ) reasonably and expeditiously”

( Jordan at para 85 [emphasis added]). Defence counsel waited until October 27, 2016 (approximately 3.5 months after release of the Jordan decision), before filing notice of this Application. Because of defence counsel’s unnecessary delay, this trial will be adjourned resulting in an extensive period of delay.

While the Applicant has explicitly waived all the delay resulting from this Application, this further delay “aggravates victims’ suffering”, increases the worry and frustration of witnesses, and contributes to systemic delay ( Jordan at para 25 ; see also paras 22-24). [ 41 ] I am thus left with a difficult decision – defence counsel has taken some steps to move this matter forward, but failed to raise concerns with respect to delay in a timely manner. [ 42 ] While I recognize defence counsel is not to be held to the standard of perfection, defence counsel is responsible for their conduct post- Jordan including the timing of the Jordan application ( Jordan at paras 85, 99 ).

As the timing of this Application will cause an unnecessary lengthy adjournment, it cannot be said that the defence has taken meaningful and sustained steps to bring the matter to trial quickly. The fact that defence counsel has waived the delay resulting from the adjournment does not change this fact given that defence counsel could have brought this same Jordan application at an earlier date which would have allowed the trial to proceed as scheduled. [ 43 ] I acknowledge that this case is extremely close on this point.

I am comforted in my finding that the defence fails this element of the test by the Supreme Court’s conclusion that stays beneath the ceiling are “to be granted only in clear cases” ( Jordan at para 83 ). b. Were the reasonable time requirements of this case markedly exceeded? [ 44 ] As I have found that the defence has not taken meaningful and sustained steps to expedite the proceedings, I need not decide whether the reasonable time requirements of the case have been markedly exceeded.

Nonetheless, in case I have erred in my prior analysis, I find that the reasonable requirements of this case were not markedly exceeded. [ 45 ] As mentioned above, when assessing the reasonable time requirements “trial judges should step back from the minutiae and adopt a bird’s-eye view of the case” ( Jordan at para 91 ).

Trial judges are to consider “how long a case of [this] nature typically takes to get to trial in light of relevant local and systemic circumstances,” as well as the Crown’s conduct where relevant ( Jordan at paras 89-90 ). [ 46 ] The fact that this case was in the system prior to the release of the Jordan decision for the majority of its procedural history also impacts this analysis: “given the level of institutional delay tolerated under the previous approach, a stay of proceedings below the ceiling will be even more difficult to obtain for cases currently in the system” ( Jordan at para 101 ). [ 47 ] When considering the local and systemic circumstances in Alberta due to an escalating demand for court time and services, the fact that a 7 day sexual assault trial in a superior court took 23 months and 11 days from charge to the end of trial is not unreasonable.

Sexual assault cases can be complex – particularly where DNA evidence must be tested and analyzed as in this case. I therefore find that the reasonable time requirements of this case were not markedly exceeded. [ 48 ] The Crown’s conduct reinforces this finding.

As noted in Jordan : “where the Crown has done its part to ensure that the matter proceeds expeditiously — including genuinely responding to defence efforts, seeking opportunities to streamline the issues and evidence, and adapting to evolving circumstances as the case progresses — it is unlikely that the reasonable time requirements of the case will have been markedly exceeded” ( Jordan at para 90 ). [ 49 ] In this case the Crown provided disclosure in a timely manner, worked with the defence to set early trial dates, and worked with the defence to streamline issues and evidence.

While the Crown’s conduct was not perfect, for instance the Crown inadvertently forgot to inform defence of the September 18, 2015 appearance, “trial judges should not hold the Crown to a standard of perfection” ( Jordan at para 90 ). [ 50 ] The defence has emphasized the Crown’s decision to file a direct indictment one month prior to the preliminary inquiry.

The defence suggests that the 6 months preceding the filing of the direct indictment was a period of inaction and therefore unnecessary delay given that the Crown could have proceeded by direct indictment earlier. [ 51 ] Clearly, there would be some period of time required to obtain approval for the direct indictment. Also during this time, the Crown was involved in obtaining certain DNA evidence and then disclosing same to defence counsel.

The Crown’s decision to proceed by direct indictment is an exercise of prosecutorial discretion and thus “it is not for the court to fault the Crown in this regard and I do not” ( Regan at para 108 ; see also Jordan at para 79 ). [ 52 ] Importantly, Courts have recognized that proceeding by direct indictment can be a proactive step that helps reduce delay ( Manaserri at paras 375-376 , Regan at para 108). In this case the Crown’s choice to proceed by direct indictment meant that a trial date was set at the October 2, 2015 appearance.

If it were not for the direct indictment, the preliminary inquiry would have taken place on October 6, 2015, and, assuming committal, a trial date would then have been set on a subsequent occasion. This means that the Crown’s decision to proceed by direct indictment likely prevented at least some period of delay. [ 53 ] In

summary, I find that the reasonable time requirements have not been markedly exceeded in light of relevant local and systemic circumstances. This finding is reinforced by the Crown’s efforts to ensure that the matter proceeded expeditiously. V. Conclusion [ 54 ] As the 30 month ceiling has not been reached, I am to presume there has not been an unreasonable delay. Defence counsel has not rebutted this presumption because defence counsel has not taken meaningful and sustained steps to bring this matter to trial and the reasonable time requirements of this case have not been markedly exceeded. I therefore conclude that the Applicant’s s. 11(

b) Charter right has not been violated, and consequently I deny this Application.

Heard on the 5 th day of December, 2016. Dated at the City of Edmonton, Alberta this 12 th day of December, 2016. K.G. Nielsen J.C.Q.B.A. Appearances: Jennifer Danker for Her Majesty the Queen Evan V. McIntyre Pringle Chivers Sparks & Teskey for Desmond Fernand Jones