R. v. Carman, 2017 ONCJ 11

CITATION: R. v. Carman , 2017 ONCJ 11 DATE: January 23, 2017 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario B E T W E E N : HER MAJESTY THE QUEEN -and- EVERETTE CARMAN REASONS FOR JUDGMENT Duncan J. 1 . This is an 11b application. 2 . The defendant is charged with assault, firearms offences and possession of methamphetamine for the purpose of trafficking. The offences date from March and April 2016. He was arrested on April 7 2016. He has been in custody ever since. 3 . The trial is set to begin on May 10 2017 and run for five consecutive days.

Those dates were set 9 months earlier, on August 8 2016. Circumstances of the alleged offences: 4 . I was informed by counsel that the basic facts of the case are as follows: The defendant’s then girlfriend made comments to a friend that she was becoming uneasy with the relationship and mentioned that the defendant kept a gun in their apartment. When the friend did not hear from the girlfriend for a while, he became worried and contacted the police telling them what he had been told. On April 7, the police attended the apartment to check on her well-being and found both the defendant and the girlfriend there.

They also saw some marijuana in plain view and arrested both for possession. At the station, the girlfriend – now separated from the accused - gave a statement alleging an assault by the accused a couple of weeks earlier and that he kept a handgun in a knapsack that she described by colour and location. On the strength of this information the police applied for and were granted a tele-warrant to search the apartment. On doing so, they found the knapsack containing the loaded handgun and the methamphetamine.

The defendant was questioned and gave an exculpatory statement that the knapsack and its contents belonged to some other person who stayed at the apartment.

History of the proceedings: 5. The chronology is as follows: • April 7 2016 – arrest • April 8 – first appearance – adjourned to get counsel and arrange for sureties • April 11 – Counsel present – adjourned due to busy list – special bail hearing suggested by Court due to expected length. • April 12 – adjourned for counsel to canvas sureties and set special bail hearing • Apr 14 – adjourned to further canvas and confirm sureties • Apr 18 – Special bail hearing set for estimated half day • Apr 26 – Special bail hearing held. Defendant ordered detained. • May 3 – initial disclosure received.

Adjourned for counsel to review. • May 17 – Substantial additional disclosure received. Adjourned for counsel to review • May 24 – adjourned for further time to review disclosure • May 31 – adjourned for Crown pre-trial meeting to be held • June 7 – adjourned for Judicial pre-trial. July 27 first date of court availability • July 27 – Judicial pre-trial commenced. Adjourned for Crown to consult with officer in charge re a number of issues. • August 8 – Judicial pre-trial continued and completed.

Trial dates set to begin May 10 2017 being first dates offered by Court.January 13 set for hearing of an 11b application. 6. On January 13 2017, at the hearing of the 11b application, inquiries were made of the trial coordinator as to whether any earlierdates were available. It was discovered that two five day blocks were available, one starting February 6, the other March 13. Defencecounsel declined both. He was available the week of February 6 but said he needed that time to prepare for another trial commencing 2weeks later, February 23 and also needed more time to prepare for this trial.

In March he had 2 of the 5 days free but had other out-of-custody trials on the other three days. He was not prepared to prioritize this case by adjourning those. The Jordan framework: 7. The new analytical Jordan framework for 11b applications has been summarized by the Court of Appeal in R v Coulter (2016)2016 ONCA 704 , OJ No 5005 (para 34-41). The part that is relevant to this case is set out here for convenience:

A.

The New Framework Summarized 34 Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47). 35 Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, at para. 66). ……. 36 Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66). …….. 40 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). 41 The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the"Transitional Cases") (Jordan, para. 96).

Calculation of delay: 8. The total delay from charge (April 7 2016) to trial (May 10-15 2017) is 13 months. 9. Is there any defence delay to be deducted? There was no waiver and no instance of defence unavailability. Other deductible delayincludes deliberate acts taken to delay the trial, including frivolous applications and requests. But it does not include legitimate stepstaken for preparation or include applications or requests that are not frivolous: (Jordan paras 63-65).

The Crown argues that the defenceextended the required trial time by failing to make any reasonable admissions and by announcing an intention to bring a frivolous“Garofoli” application. However, since this is a prospective application and I am scheduled to be the trial judge, it would be bothdifficult and improper for me to make any pre-trial determination as to the frivolity or lack thereof of any application or as to theunreasonableness of any non-admission. I think these issues should be dealt with under the heading of defence initiative, discussedbelow. 10.

But defence delay also includes situations where the Crown and Court are ready to proceed but the defence is not (Jordan Para 64).Prominent for consideration is the failure to accept the February and March dates offered on January 13. In Coulter supra the Courtfound that the failure of the defence to accept new trial dates that had become available was delay caused by the defence. However inthat case defence counsel was available on the declined dates (see para 95). In this case whether defence was available on the offereddates, having regard to the reasons given above, is probably an arguable point.

For this reason I will assess this case on both bases. Butsince both scenarios are below the presumptive ceiling, the analysis is the same and need not be repeated, but for the different figuresthat result. 11. On the view that the defence was not obliged to accept the newly offered dates, there is no deductible defence delay. The net delayis therefore 13 months. This is well below the presumptive ceiling of 18 months. The onus is therefore on the defence to show that thedelay was unreasonable.

To discharge this burden he must show (1) that he took meaningful and sustained steps to expedite theproceedings (“defence initiative”) AND (2) that the case took markedly longer than it reasonably should have. I will deal with thesepoints in reverse order following some discussion of the question of custody. Custody and the Jordan framework: 12. As mentioned, the defendant has been in custody on these charges since the date of his arrest, April 7 2016. The conditions of hisconfinement have been difficult, to say the least. (see Affidavit of the Applicant attached as Appendix A.) 13.

How does this important circumstance fit into the Jordan analysis? It is self-evident that the detention of the accused in custody(hereafter simply “custody”) is relevant and important to any assessment of reasonableness of time to trial. Indeed, historically the rightto a speedy trial was focused exclusively on the denial of liberty through pre-trial incarceration, and it continues to be so focused in somecountries, including the United States.

The added concerns we now recognize as being engaged regarding security of the person and fairtrial are a more recent development: see R v Mills (SCC), [1986] 1 SCR 863 at pars 142-3 and Jordan per Cromwell Jparas 153-4. 14. The majority judgment in Jordan mentions these liberty concerns several times in its introductory paragraphs but does notspecifically deal with the issue of custody in the presentation of its new framework or the application of that framework to the facts.[1]This may suggest a few alternative

interpretations and approaches that this court might take:

15 . The Court did not intend to include custody and other exceptional types of cases – such as youth cases - in its pronouncement of the new approach to 11b. Those chapters would be written on another day: The problem with this

interpretation is that there is nothing in the judgment to support it and the tenor of the judgment is to the contrary. Note as well that when the Court was deferring issues- such as inclusion of time to sentencing and whether a stay should be the only remedy- it specifically said so. Finally, if this

interpretation is accepted it would raise the question of what framework would apply to cases involving custody? Would the analysis revert to Morin? Not likely. 16 . The Court intended that the framework would be applied but that the presumptive ceilings would be re-calculated in custody cases: Again there is nothing specific in Jordan saying this but some support can be constructed by connecting some passages and concepts in the minority and majority judgments.

First, as the minority judgment per Cromwell J noted, the approach in Morin was to recognize that custody or strict bail conditions were to be accounted for by reducing the acceptable institutional delay to the lower end of the guideline range of 8 to 10 months or even below : (para 171; see also para 203) . This can then be connected to the Jordan majority’s use of the Morin guidelines for institutional delay as the starting point for calculation of the presumptive ceiling: (para 52 ).

Arguably and logically then, the presumptive ceiling should be reduced as the acceptable institutional delay component is reduced. This approach has been applied in a recent case involving an accused young offender – another special 11b situation: R v J M [2017] ONCJ 4 (pars 113- 135) But I don’t think the adult custody situation is quite the same. Unlike Youth, it does not involve a different legal category of case, but rather only a different, albeit important, relevant circumstance. 17 .

The Court intended that the full Jordan framework including the same presumptive ceilings would be applied equally to custody cases. That framework adequately accommodates circumstances of prejudice, including custody, by allowing stays beneath the presumptive ceiling when two conditions are met. This is particularly so when combined with the reminders that the focus is always on reasonableness, not ceilings, and that the courts should always take a bird’s eye view of the situation: I think that this is the most likely

interpretation and the one that should be followed until further developments. Having said that, there are some serious concerns. Can it really be that waiting in custody for a trial in provincial court for up to 18 months – the equivalent, with enhanced credit, of a penitentiary sentence – is presumptively OK? And is it really acceptable to allow 11b relief in such a situation only if the defence has been proactive in attempting to get an earlier trial? What about defendants in custody who are unrepresented or ineffectively represented?

And why, if custody cases fall under this part of the framework, should 11b relief be difficult to obtain (para 101 ) and reserved only for clear cases ( para 83 ) when delayed custody cases would seem to be the most meritorious and deserving of Charter protection? All of these concerns suggest that this part of the framework was not designed or intended to apply to the custody situation. But I am unable to find another place within the Jordan framework to accommodate the custody factor. Markedly longer than it should have taken? 18 .

The defence must show that the time that this case has taken or is about to take markedly exceeds the time requirements of the case. This involves consideration of the complexity of the case, the resulting time required for preparation and presentation of the evidence and comparison to how long it takes to bring similar cases in the jurisdiction to trial and completion. ( paras 87-91 ) 19 . This case is serious but it is not at all complex.

From the outline I have been given, I infer that the investigation was pretty much complete on the day of arrest and search, but for routine analysis of the drugs and testing of the firearm. The search warrant information would have been brief, involve no CI concerns and required no or only the briefest vetting. There are no apparent legal issues. 20 . Five days have been set for the trial. I was told that the Crown requires 17 police witnesses to present its case, many being required because the defence would not make routine admissions. Even so, many of these witnesses will likely be very brief.

The five day estimate, as best I can tell from this vantage point, would seem to be very generous. 21 . A brief digression to explain: Under the trial scheduling system in effect in our Court for the past couple of years, trial times are inflated to avoid or minimize the recurring problem of trials that do not finish and require further continuation dates – a nightmare for scheduling and a recipe for 11b infringement.

So now when a case is set for a 5 day trial it means, not that it will likely take 5 days, but that 5 days are being set to ensure, to the extent that it is possible to do so, that the case will completed as scheduled. The system has dramatically reduced continuations and improved the over-all systemic health of our Court. 22 . Despite its former reputation as the poster child for delay, the Ontario Court of Justice in Brampton has always given prompt accommodation to in-custody trial matters.

In fact a very informal canvassing of some colleagues – representing in total almost 100 years of experience on the Brampton Court– revealed that no one could recall ever having had an 11b application in a custody case! There has been no history of tolerance of delay for in-custody cases in this jurisdiction [2] . In my experience a case such as this should have – and normally would have – come to trial within 5 to 7 months from the date of arrest. 23 .

While Jordan relieves me of the duty to autopsy the circumstances that brought about the excessive delay in this case, I think it is worthwhile to briefly do so. 24 . The intake period, that is the period up to the set date, was unremarkable but for one period when, on June 7, a judicial pre-trial date was set for July 27 – a month and a half away. That was said to be the first date available to the Court. But in my experience, the practice in our Court for in-custody cases is to give a judicial pre-trial date as soon as counsel is available. It will simply be added to whatever else is listed for that day.

I can only speculate that what happened here was that the Court had just instituted a half hourly appointment system for JPT scheduling, rather than have them all nominally scheduled for 10 am - and it may have been thought that in-custody cases could not receive immediate attention as before. 25 . The most significant period was from set date (August 8) to trial (May 10) a period of nine months! Such a length of time is what might have been expected for an out of custody case. Indeed it was at the outer limit for institutional delay for any case in Brampton under the former Morin guidelines.

But, possibly because the total time was well within the new Jordan ceiling, no one seemed to regard it as a problem. However, that it was a problem was red flagged by the setting of an 11b motion date at the same time. With respect to those involved, and completely understanding how a busy plea and remand court permits little appreciation beyond the superficial of the

cases speeding by, in my view this case should have been sent back to the trial co-ordinator to find earlier dates. 26 . I have no hesitation in concluding that this case took or will take markedly longer than it should to get to trial – on the assumption that the net delay runs to May. 27 . However, as per paragraph 10 above, if the net delay runs only to February, that is still 10 months and longer than it should have taken. While it may be a close call, I think this is still markedly longer - 30-40% in excess of the time that it should have taken. 28 . In

summary, on either scenario, this part of the two part hurdle has been cleared by the defence. Defence Initiative: 29 . The defence must show that it took meaningful and sustained steps to expedite the proceedings. It has failed to do so. 30 . Other than telling the court that he had earlier dates available and concurrently setting an 11b application, he took no steps to expedite the proceedings. Some things he could have done: • At the set date appearance in August he could have asked the court to direct that the trial co-ordinator find earlier dates.

In fact while the accused was before the Court and obviously in custody, counsel did not point out that he was in custody on these charges or in any way emphasize his custodial status. • If, at the time of the set date, he was stuck with accepting the May dates, he could have asked that the case be put on a wait list for consideration of earlier dates if they became available. • He could have asked for the case to return periodically to check for any newly available dates. • He could have sought the assistance and co-operation of Crown counsel in getting earlier dates.

After she was assigned the case in October or November, Ms. Watson for the Crown on her own initiative started making inquiries for earlier dates. She alerted the Court on January 13 that she was aware that February dates may have just become available. • He could have made reasonable admissions – such as continuity – that would have shortened the time requirements of the case. While, for reasons given above, I am not prepared to find that this was defence delay, it is different under this part of the framework.

At this point, the defence has a positive burden to show that he made meaningful and sustained efforts - which in this case would require at least some demonstration that there was a valid reason for not making reasonable and commonplace admissions. He has not done so. • He could have accepted the February or March dates offered. While in submissions counsel labelled these as “eleventh hour” dates that he was not obliged to accept, if that is a proper characterization (which I don’t accept), they were eleventh hour only because he did nothing at the tenth, ninth, eighth, etc. hours. 31 .

Counsel points out that Jordan cautions that the standard of measure for defence initiative is reasonableness, not perfection. But in my view, doing nothing can never be reasonable. 32 . Finally, it is not to the point that these suggested efforts or others might not have been successful. Obviously defence initiative will come under consideration only when they have been un successful, since successful efforts will result in there being no need for an 11b application at all.

The requirement for demonstrable defence initiative is to ensure that the goal of all players in the system- including the defence - is to obtain a speedy trial, not a stay. The disingenuous 11b applications of the Morin era have been de-legitimized by Jordan and are no longer to be countenanced. Transition: 33 . This is a transitional case.

The duty to demonstrate defence initiative is modified in such a case – but only to the extent that it is not to be applied to the “period of delay preceding this decision” because it would be “unfair to require it for the period of time before the release of this decision”. ( Jordan para 99). 34 . In this case the focus on defence initiative, as per above, has been exclusively on the post Jordan period. The transitional exception can therefore provide no assistance to the defendant. Conclusion: 35 . The defendant cannot satisfy the defence initiative requirement.

Accordingly, the 11b application must be dismissed. January 23, 2017 B Duncan J.

K Watson for the Crown; V Cojocaru for the Defendant APPENDIX A: AFFIDAVIT

ONTARIO COURT OF JUSTICE (Central West Region) BETWEEN: HER MAJESTY THE QUEEN -and-

EVERETTE CARMAN AFFIDAVIT IN SUPPORT OF CHARTER S. ll(

B) APPLICATION I, EVERETTE CARMAN, of the City of Mississauga, Province of Ontario, HEREBY MAKE OATH AND SAY AS FOLLOWS: 1. THAT I am the Applicant and accused in this matter and as such have knowledge of the matters hereinafter deposed to except where same are stated to be on information and belief. Where I refer in this affidavit to information I have received from others, I verily believe the information received to be true. 2. An Order is sought staying the proceedings against me pursuant to sections 1 1 (

b) and 24(1) of the Charter of Rights and Freedoms on the basis that my right to be tried within a reasonable time has been infringed. 3.

On April 7, 2016, I was arrested and charged with Assault, Unauthorized Possession of a Firearm, Knowledge of Unauthorized Possession of a Firearm, Possession of a Loaded Restricted Firearm, Possession of a Weapon Obtained by Crime, Careless Storage of a Firearm, Possession of Property Obtained by Crime (Over $5,000), Possession Contrary to s.l09 Order, and Possession of Methamphetamine for the Purpose of Trafficking, contrary to Criminal Code sections 266, 91(1) , 92(1) , 95(1) , 96(1) , 86(1) , 354 (l)(a), and 117.01(1) , and Controlled Drugs and Substances Act section 5(2), respectively.

I was then held pending a bail hearing. 4. A lengthy bail hearing was held in regards to my matter on April 26, 2016. A detention order was made on that date. I have thus remained in custody since my arrest. 5. As a result of the delay which has occurred regarding my legal matter, I have suffered extensive prejudice in numerous forms. This prejudice stems not only from my incarceration since the beginning of this matter, but further from the conditions in which I have lived during this period of incarceration at the Maplehurst Correctional Complex.

6. During my incarceration, I have been unable to adhere to a Kosher diet. I had requested that it be provided to me, as I am Jewish, and a Kosher diet is available at Maplehurst. However, my request was denied by Maplehurst staff as they did not believe that I was Jewish "enough". This was based on the fact that my mother was not Jewish, though my father is. As a result, my religious rights have been disregarded, and will continue to be disregarded by Maplehurst staff for a longer period of time due to the delay in this matter. 7. I have been unable to sleep in the dark.

When prisoners go to sleep at Maplehurst, staff leave on a "night light" which is of medium brightness. 8. I have only one set of clothing to wear, consisting of a cover-all, a shirt, and shorts. In order to wash the cover-all, I must wear the shirt and shorts, and vice-versa. 9. I have frequently been very cold. I did not notice the heating at Maplehurst being turned on until December. The facility appeared to remain unheated throughout November. When my cover-all was in the laundry, I had to wear a shirt and shorts during these periods of time, adding further to my discomfort. 10.

I have only a limited amount of activities to participate in, due to my incarceration in the pre-trial custody

section of the facility. I have the option of playing cards, using a chin-up bar, or reading. There are only 10 books per unit of 32 people, hence reading is not often an option. 11. Maplehurst is often under lockdown, which confines me to a cell for 19 hours per day. I estimate that there have been at least 100 days of lockdown since my incarceration, largely due to lack of staff. When on lockdown, I am unable to shave or take a shower. Worst of all, when the toilet clogs, nobody attends to fix it and it remains in that state for an extended period of time. 12.

Due to my continued incarceration while awaiting trial, I was unable to attend funeral proceedings for my mother, who passed away in August, 2016. I also understand that my continued incarceration causes my aging father a great deal of stress. Both of these factors stemming from the delay in this matter have continued to strongly affect me emotionally.

13. I also remain isolated from my family and friends while in custody, which is a feeling exacerbated by the delay in this matter. My social interaction is limited to other prisoners and Maplehurst staff, both of which are aggressive toward me at times. 14. Finally, my ongoing incarceration has cost me money and opportunities in terms of employment. I was previously in the process of obtaining my AZ truck license and had paid for my classes in advance. It will now be too late to complete the course, meaning I have also lost my money. 15. I make this affidavit in connection with an application pursuant to

section 11(

B) of the Charter of Rights and Freedoms and for no other or improper purpose.