R. v. McConnell, 2017 ONCJ 104

ONTARIO COURT OF JUSTICE CITATION: R. v. McConnell, 2017 ONCJ 104 DATE: February 7, 2017 COURT FILE No.: 2811 998 14 00620 00 BETWEEN: HER MAJESTY THE QUEEN — AND — Shawn McConnell Before Justice P.J. Wright Heard on November 16, 2015, February 17, 2016, April 13, 2016, June 20, 2016, August 29, 2016 and September 26, 2016 Oral Ruling on November 24, 2016 Reasons for Judgment released on February 7, 2017 T. Hewitt.......................................................................... counsel for the Crown J. Boisseneault................................................................ counsel for the Crown D.

Anber...................................................................... counsel for S. McConnell M. Wolfson.................................................................. counsel for S. McConnell WRIGHT J.: INTRODUCTION AND OVERVIEW [1] This is an application by Shawn McConnell to stay the charges on the basis of a breach of his right to be tried within areasonable period of time as guaranteed by

Section 11(

b) of the Canadian Charter of Rights and Freedoms (the Charter) pursuant toSection 24(1) of the Charter. [2] Shawn McConnell was charged with impaired driving and “over 80” on June 24, 2014. The information was sworn on July 9,2014.

Shawn McConnell made his first court appearance on the charges July 24, 2014. [3] Shawn McConnell’s trial which was scheduled for one day. [4] The total delay from the date the information was sworn on July 9, 2014 to the anticipated completion of the trial on September26, 2016, as agreed by counsel, was more than 26 months. [5] Shawn McConnell submits that after deducting two months of defence delay, the total delay was 24 months. [6] Shawn McConnell relies upon the recent Supreme Court of Canada case of R. v.

Jordan 2016 SCC 27 , 2016 S.C.C. 27and submits that the delay is unreasonable because it is over the 18 month presumptive ceiling for constitutionally tolerable delay set out

in that case. [ 7 ] The Crown submits that after deducting two months of defence delay and 13.5 months of combined neutral time and exceptional circumstances, there remains only 11.5 months of institutional delay which is well below the presumptive ceiling set out in R. v. Jordan. The Crown submits that the 11.5 months of delay is presumptively reasonable. [ 8 ] Following the receipt of further evidence and submissions on September 26, 2016 regarding the application by Shawn McConnell to stay proceedings against him on the basis of a

Section 11 (

b) violation the matter was adjourned to November 24, 2016. [ 9 ] On November 24, 2016 this Court provided an oral ruling with written reasons to follow that Shawn McConnell’s rights to be tried within a reasonable time guaranteed as guaranteed under

Section 11(

b) of the Charter had been violated and entered a stay all proceedings pursuant to Section 24(1) of the Charter . These are those written reasons. [ 10 ] This case raises the issue of how to calculate time periods in an Application to a case such as the one, which was in the system when R. v. Jordan was released by the Supreme Court of Canada. [ 11 ] The analysis lends credence to Justice Cromwell’s prediction in dissent that any hoped for simplicity flowing from the presumptive ceiling may be illusory.

CHRONOLOGY IN THIS CASE [ 12 ] Shawn McConnell was charged with impaired driving and “over 80” on June 24, 2014. The information was sworn on July 9, 2014. Shawn McConnell was scheduled to make his first court appearance on July 24, 2014. [ 13 ] On July 24, 2014, Mr. Anber appeared in court as counsel and agent for Shawn McConnell. The Crown elected to proceed summarily on the charges. [ 14 ] On October 9, 2014 Shawn McConnell’s trial was scheduled to proceed for one day on August 17, 2015. [ 15 ] On August 17, 2015 Shawn McConnell and his counsel attended for trial and waited the entire day.

Other matters proceeded ahead of the trial scheduled for Shawn McConnell. His trial could not be reached. Shawn McConnell’s trial matter was not spoken to until later in the day and it was determined by the Court that the trial would not likely be reached. Shawn McConnell’s trial was adjourned to November 16, 2015. [ 16 ] On November 16, 2015 Shawn McConnell’s trial began but could not be completed on time. The trial began just before the lunch break allowing for the examination in-chief only of one Crown witness.

This one day trial was given only slightly more than one- half day on November 16, 2015. [ 17 ] At 4:30 p.m. on November 16, 2015 Shawn McConnell’s trial was adjourned for continuation to February 17, 2016. [ 18 ] On February 17, 2016 Mr. Anber counsel for Shawn McConnell, was unable to attend for the trial continuation as he had to attend Montreal due the pass of his last living grandparent. [ 19 ] On February 17, 2016 Shawn McConnell’s trial continuation was re-scheduled for April 13, 2016. [ 20 ] On April 13, 2016 Shawn McConnell attended for his trial.

The evidence and submissions of counsel were completed during the trial which lasted the entire day. Judgment was adjourned to June 20, 2016. [ 21 ] On June 20, 2016 Shawn McConnell and Mr. Anber (counsel) attended court to receive judgment. Through inadvertence Wright, J. was not scheduled to preside June 20, 2016 and was not in a position to deliver his judgment. Shawn McConnell’s trial was adjourned to August 29, 2016. [ 22 ] On August 29, 2016, Shawn McConnell and Mr. Wolfson as counsel and agent for Mr. Anber attended court to receive judgment.

As a result of inadvertence and a scheduling error, Wright J. was not in a position to deliver his judgment. Shawn McConnell’s trial was adjourned to September 26, 2016. [ 23 ] On September 16, 2016 Shawn McConnell filed an Application in the court returnable September 26, 2016 for a stay of the charges against him pursuant to Section 24(1) of the Charter on the basis that he was not tried within a reasonable period of time as guaranteed pursuant to

Section 11(

b) of the Charter . [ 24 ] On September 26, 2016 Shawn McConnell testified regarding the prejudice he suffered as a result of the number of times these charges have been before the Court. He spoke of the manner in which that prejudice has profoundly affected him – his emotional health, his job, his relationships with others and his family. Shawn McConnell’s evidence of prejudice was genuine, real and palpable. Shawn McConnell’s evidence was understated in terms of the prejudice he suffered. Shawn McConnell became emotional.

Shawn McConnell made every effort to remain composed as he recounted how his long conflict before the Court has impacted him. The Court was impressed with Shawn McConnell’s honesty and candor when expressing the manner in which he experienced real prejudice.

LAW [25] R. v. Jordan 2014 SCC 27 , [2014] SCJ No. 27 now governs the law of delay in bringing a criminal case to trial. Theframework for assessing delay is summarized at paragraph 105 as follows: 105. The new framework for s. 11(

b) can be summarized as follows: • There is a ceiling beyond which delay becomes presumptively unreasonable. The presumptive ceiling is 18 months for cases triedin the provincial court, and 30 months for cases in the Superior Court (or cases tried in the provincial court after a preliminary inquiry). Defence delay does not count towards the presumptive ceiling. • Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on thebasis of exceptional circumstances.

Exceptional circumstances lie outside the Crown’s control in that (1) they are reasonably unforeseenor reasonably unavoidable, and (2) they cannot reasonably be remedied. If the exceptional circumstance arises from the case’scomplexity, the delay is reasonable. • Below the presumptive ceiling, in clear cases, the defence may show that the delay is unreasonable.

To do so, the defence mustestablish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case tookmarkedly longer than it reasonably should have. • For cases currently in the system, the framework must be applied flexibly and contextually, with due sensitivity to the parties’reliance on the previous state of the law. [26] In R. v. Coulter 2016 ONCA 704 the Ontario Court of Appeal provided a

summary of the Jordan framework foranalysis of delay as follows: 1. Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47); 2. Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66); 3. Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66); 4. If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown mustestablish the presence of exceptional circumstances (Jordan, para. 47).

If it cannot rebut the presumption, a stay will follow (Jordan, atpara. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para.71); 5. Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determiningwhether the presumptive ceiling has been reached (Jordan, para. 75); 6.

If the remaining delay exceeds the presumptive ceiling, the Court must consider whether the case was particularly complex such thatthe time the case has taken is justified and the delay is reasonable (Jordan, at para. 80); 7. If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan,para. 48)’ 8. The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released the“transitional cases”) (Jordan, para. 96). [27] APPLYING THE ANALYSIS TO THIS CASE 1.

Total Delay The total delay in this case in 26 months 2. Defence Delay In Jordan, the Supreme Court held that defence delay consisted of periods of delay that were waived by the defence or periods of delaythat were caused by the defence. It was never suggested that the defence deliberately delayed or failed to move this case along at any point. It is clear that the defenceaccepts responsibility for the delay between February 17, 2016 and April 13, 2015. In all other respects the defence took meaningfulsteps that demonstrate a sustained effort to expedite the proceedings.

Subtracting the defence delay time of two months results in a remaining net delay of 24 months. 3. Compare Net Delay to Presumptive Ceiling (Jordan para. 61) and

4. Determine if the Net Delay is Below or Above the Presumptive Ceiling ( Jordan para. 47&71) In this case the total delay from the charge to the actual or anticipated end of the trial (minus defence delay) exceeds the presumptive ceiling and as such in presumptively unreasonable. To rebut the presumption, the Crown must establish exceptional circumstances ( Jordan , para. 47). If it cannot rebut the presumption a stay will follow ( Jordan , para. 47). 5.

Subtract Delay Caused by Discreet Events from the Net Delay Leaving Remaining Delay This Court finds that there were no exceptional circumstances or discreet events or that this was a complex case (Jordan para. 75). The Court finds the remaining delay is 24 months. The Court rejects the Crown’s submission that the three month period from June 20, 2016 to September 26, 2016 constituted exceptional circumstances.

As an aside, even if the three month period were seen to be, exceptional circumstances, the result would be to reduce the remaining delay from 24 months to 21 months which is still above the presumptive ceiling. 6. Is This a Complex Case ( Jordan para. 80) This was not a particularly complex case. CONCLUSION [ 28 ] This case failed to proceed on the first day set for trial on August 17, 2015. [ 29 ] This case was only partially able to proceed on the second day set for trial on November 16, 2015. [ 30 ] Not until April 13, 2016 was this matter given the appropriate amount of time to complete.

Judgment was adjourned to June 20, 2016. [ 31 ] Clearly the lack of scheduled court time and/or its availability in a reasonable period of time is at the very centre of the failure to ensure that the Defendant receive a trial within a reasonable period of time. [ 32 ] Clearly the lack of scheduled court time and/or its availability in a reasonable period of time caused this Defendant’s rights to be violated under

Section 11(

b) of the Charter . [ 33 ] This case was already in jeopardy in April of 2016 when evidence and arguments were completed. This was well before June 20, 2016. Given the violation of the Defendant’s rights to a trial within a reasonable period of time as guaranteed by

Section 11(

b) of the Charter . [ 34 ] I accept and adopt the language of Kenkel, J. in R. v. DeSouza [2016] O.J. No. 5091 para. 13 , 14, 15, 16. “13. The Crown submits that Jordan imposes a new timeline such that delays that might have been found to be reasonable under Morin may not lead to that result in the new framework. In support of that argument they cite paragraph 48 where the Court mentions that they expect, “stays beneath the ceiling to be rare, and limited to clear cases”. 14.

The stated purpose of the Jordan decision was to encourage all participants in the justice system to do better when it comes to delay, not worse. Within days of the release of the decision the trial courts in this province began work on further procedural reforms to implement the direction in Jordan . Given the new instruction provided in that case the Supreme Court is right to expect that stays beneath the ceiling will be rare. 15. Under the previous Morin framework stays were also rare. Given the nature of the relief, stays were not granted for marginal cases.

The vast majority of cases were resolved or tried well before an 11(

b) application was required. That’s not to say that all cases moved along with sufficient speed. The Jordan framework provides further helpful instruction in that regard and a framework that focuses every participant in the justice system on moving matters on towards trial or resolution. 16. What is reasonable in terms of s. 11 (

b) is not determined solely by one number or circumstance. The new Jordan framework is not solely focused on time calculation. Case specific factors remain relevant.

Trial courts are instructed to, “Step back from the minutiae and adopt a bird’s eye view of the case”.” [ 35 ] I am satisfied that the time this case has taken markedly exceeds the reasonable time requirements of a straight forward drinking and driving case (Jordan para. 87). [ 36 ] There is an important public interest in proceeding with serious drinking and driving criminal cases but the Supreme Court of Canada’s concern about the complacency in our justice system would most certainly not permit transitional cases such as this one which would have failed to meet the old text in R. v.

Morin of a “trial within a reasonable period of time” to have become revived under the new R. v. Jordan regime.

[ 37 ] The Remaining Delay ( Jordan , para. 75) in this case is 24 months. The Crown has not rebutted the presumption which engages the presumptive ceiling of 18 months. [ 38 ] I find that the Applicant has proved the

Section 11 (

b) breach alleged on a balance of probabilities. This Court stays these proceedings pursuant to Section 24(1) of the Charter . Released: February 7, 2017 Signed: Justice P.J. Wright