R. v. Jordan, 2017 MBPC 7

Cite: 2017 MBPC 7 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) David Gilleta and Allison Kindle Pejovic ) for the Crown- and – ) ) Jagdip Singh Sidhu, ) ) Saul Simmonds and Adam Hodge, Accused ) ) for the Accused ) Judgment delivered: ) January 27, 2017 MARY KATE HARVIE, P.J. Introduction [1] On November 24, 2014, the accused Jagdip Sidhu was charged with impaired driving and failing to comply with a probationorder. On March 10, 2015, after the completion of blood analysis, he was charged with driving over .08, arising out of the November 24th incident.

Following a series of remands, the matter appeared on July 22, 2015 at which time trial dates of October 5, 6 and 7, 2016were confirmed in Provincial Court. [2] On September 15, 2016, the accused filed a Notice of Motion alleging a breach of s. 7 and s. 11(

b) of The Canadian Charter ofRights and Freedoms (“The Charter”), alleging unreasonable delay and seeking a Judicial Stay of Proceedings pursuant to s. 24(1). It isagreed that the overall delay from the offence date to the first day of trial is 22 months and 11 days. Defence counsel has waived delaybeyond October 5, 2016 to allow for the scheduling of the motion, which was argued on December 12, 2016. Crown counsel opposes themotion and asks that it be dismissed. A New Legal Approach for the Assessment of Pre-Trial Delay [3] In July, 2016, the Supreme Court of Canada released the reasons for decision in R. v.

Jordan 2016 SCC 27 and R. v.Williamson 2016 SCC 28, and in doing so created a new framework for the analysis of pre-trial delay. Previously, the assessment ofdelay was governed by a series of Supreme Court decisions, including Mills v. The Queen, (SCC), [1986] 1 S.C.R. 863;R. v. Smith, (SCC), [1989] 2 S.C.R. 1120; R. v. Askov, [1990] 2 S.C.R. 119; R. v. Morin, (SCC), [1992]1 S.C.R. 771; and R. v. Godin, 2009 SCC 26 , [2009] 2 S.C.R. 3.

Until Jordan, a delay motion was assessed under the so-called“Morin framework”, which called for the balancing of a series of interests, allowing for a period of eight to ten months of “institutionaldelay”. [4] In Jordan, the Court expressed concern that the Morin framework had “given rise to both doctrinal and practical problems,contributing to a culture of delay and complacency towards it.” (see para. 29) The Court established a new framework with a“presumptive ceiling” of 18 months for matters going to trial in Provincial Court and 30 months for cases going to trial in the superiorCourt “beyond which delay is presumptively unreasonable.” [5] In calculating pre-trial delay, the Court noted that time assessed as “defence delay” does not count towards the presumptiveceiling.

The Court defined “defence delay” as being 1) delay waived by the defence, either explicitly or implicitly, but in any event thewaiver must be “clear and unequivocal” (see para.61); and 2) delay caused solely by the conduct of the defence. However, “defenceactions legitimately taken to respond to the charges fall outside the ambit of defence delay”. (see para. 65) [6] Once it is established that the presumptive ceiling has been exceeded, the burden shifts to the Crown to rebut the presumptionthat the pre-trial delay is unreasonable.

The presumption may be rebutted if the Crown can establish that the delay was caused by“exceptional circumstances” beyond their control in that 1) they are reasonably unforeseen or reasonably unavoidable, and 2) they cannotbe reasonably remedied (see para. 69). If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to thatevent is subtracted. If the exceptional circumstance arises from the case’s complexity, the delay is reasonable.

[ 7 ] In cases where the delay falls below the presumptive ceiling, the defence bears the onus of establishing that the delay is unreasonable by showing “1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and 2) the case took markedly longer than it reasonably should have.” (see para. 105) [ 8 ] For so called “transitional cases” currently within the system, the Court in Jordan urged the application of the new framework “flexibly and contextually, with due sensitivity to the parties’ reliance on the previous state of the law” (see para. 105).

In Williamson the Court applied the framework from both Jordan and Morin , recognized the case to be a “transitional” one, concluded that there were no “exceptional circumstances” and upheld the judicial stay of proceedings entered by the Ontario Court of Appeal. In assessing pre-trial delay, the Court considered the following factors: a. the complexity of the case; b. the period of time in excess of Morin guidelines; c. the Crown’s response to institutional delay; d. Defence efforts to move the case along; and e. Prejudice to the accused.

The aforementioned list represents an example of a contextual application of the Jordan and Williamson framework to cases already in the system which otherwise would have been governed by the Morin test. [ 9 ] Therefore, not unlike an analysis under the Morin framework, there must be some evaluation of the actions of the parties to determine responsibility for the delay. In this case, the

schedule of proceedings for the 22 months and 11 days of pre-trial delay must be analyzed to determine whether there is any so-called defence delay which should be subtracted from the overall calculations. The

Schedule of Proceedings [ 10 ] I note at the outset a concern as to timing of this motion, which was filed on September 15, 2016, less than 30 days before the hearing and in contravention of Provincial Court Practice Directive No. 6. Defence counsel’s materials were not filed in time for this motion to be argued on the first day of trial. The defence relies on the affidavit of Mr. Sidhu, which was not filed until December 9, 2016, after the Crown had filed their motion brief.

I understand that the law in this area has changed significantly, and may result in some counsel re-considering their client’s rights regarding pre-trial delay. However, as time passes and the Court moves out of the “transitional” period, counsel may find that compliance with the Practice Directives is something that will be more strictly enforced. To his credit, counsel in this case is not relying on the period after the first day of trial. [ 11 ] Crown counsel filed the affidavit of Crown attorney David Gilleta, which includes a series of e-mails exchanged between the parties throughout the proceedings.

This affidavit, along with the transcripts, provides an overview as to the proceedings, both in and out of Court. [ 12 ] The proceedings began on November 25, 2014, when the accused was released on an Appearance Notice on the charges of breach of probation and impaired driving. He was ordered to make a first appearance on December 30, 2014, five weeks after his arrest date.

Both counsel agreed that the delay between the arrest and the first appearance is not unusual in a Winnipeg setting but were otherwise unable to explain the purpose of such a lengthy period prior to the first appearance. [ 13 ] On December 15, 2014, pursuant to the direction on the Appearance Notice, the accused attended to the Winnipeg Police Service Identification Unit and provided his fingerprints and photographs. [ 14 ] On December 30, 2014 the matter appeared on the administrative docket before a Staff Justice of the Peace (“SJP”) and counsel from Mr. Simmonds’ office appeared but did not go on the record.

Some particulars were provided and the matter was adjourned to January 27, 2015. [ 15 ] On January 27, 2015 counsel from Mr. Simmonds’ office appeared again “as a friend of the Court” and the matter was adjourned to February 24, 2015. It appears that some disclosure was provided but that all parties were waiting for the results of the blood test. [ 16 ] It was on February 24, 2015 that the matter became complicated. Counsel from another law firm inadvertently appeared on and adjourned this matter, having confused this accused for another with a similar name.

However, it is clear that all parties were still waiting for further information related to the blood samples and that the matter would have been adjourned in any event. Counsel who appeared on behalf of the assigned Crown attorney stated “The Crown is in agreement of the three month timeline extension. He is waiting on reports. We could extend the timeline three months, but maybe one month remand”. (see transcript of proceedings February 24, 2015). The matter was adjourned to March 24. There is no indication that anyone from Mr.

Simmonds’ office appeared on the matter. [ 17 ] A second complicating event occurred on March 10, 2015, when the accused attended to the WPS station at a mutually agreed upon time and was re-arrested on the charge of driving over .08. He was released on a new Appearance Notice with a first appearance date of March 24, 2015, and a requirement that he attend to the WPS Identification Unit to provide his fingerprints and photograph. Having already done so, the accused thought his attendance was not necessary and did not appear for fingerprinting. As a result, a warrant issued for his arrest.

[ 18 ] On March 24, 2015 counsel from Mr. Simmonds’ office appeared again. There continued to be confusion between this accused and another with a similar name.

Once again it appears that a remand was inevitable, because despite the fact that the accused had already been charged with driving over .08, Crown counsel advised the SJP that “they are waiting for blood sample reports your Worship that’s why the timeline has been extended to May”. (see transcript of proceedings March 24, 2015) There was no mention of the warrant arising from the failure to re-attend for fingerprinting. [ 19 ] On April 14, 2015 counsel from Mr. Simmonds’ office appeared and addressed the confusion as to who represented the accused.

The matter was adjourned one week to have all counsel appear and to confirm who would remain as counsel of record. [ 20 ] On April 21, 2015, matters came to a head. The issue of representation was clarified and counsel appeared on behalf of Mr. Simmonds, who went on record. Defence counsel appearing was advised for the first time of outstanding warrant arising from the failure to re-attend for fingerprinting.

Despite being aware of the confusion over the representation of the accused, the SJP stated that “I have my order” and issued a “public interest warrant” on the substantive charges. [ 21 ] The following day, on April 22, 2015, Mr. Simmonds’ office e-mailed the Crown’s office explaining his client’s confusion respecting the requirement on the second appearance notice to attend for fingerprinting and asked that the matter be brought forward to cancel the warrants.

A staff person from the Crown’s office responded by e-mail, agreeing to bring forward the Bench Warrant but stating that prior to doing so “first instance FTA IDENT warrant” would have to be executed. There was some further exchange between defence counsel and the prosecutions branch, and as a result of the failure of the parties to agree Mr. Simmonds indicated in an e-mail dated April 28, 2015 that he would be bringing a motion in Provincial Court “to cancel the warrant”. [ 22 ] On June 2, 2015 a motion to cancel the warrants was filed and the matters appeared in Provincial Court on June 4, 2015.

After hearing submissions, the presiding Judge directed that the warrants be held for a week while the accused attended to provide his fingerprints and photographs, after which the warrants would be cancelled. The accused attended as directed and the warrants were cancelled on June 10, 2015. The matter was adjourned to June 22, 2015. [ 23 ] On June 22, 2015, counsel from Mr. Simmonds’ office appeared and requested a five week adjournment, whereas the assigned crown counsel had noted on the file that a two week adjournment would be appropriate.

After some discussion the matter was adjourned two weeks to July 6, 2015. On that date, the matter was adjourned to “date setting court” on July 23, 2015. From there the trial dates of October 5, 6 and 7, 2016 were confirmed. Calculating the Delay [ 24 ] As noted earlier, Jordan creates a “presumptive ceiling” of 18 months for matters in Provincial Court. It is agreed that the actual delay in this matter from initial charge to the first day of trial is 22 months and 11 days.

Crown counsel asserts that two specific periods within the timeline amounting to over four months of delay ought to be attributed to the actions of the defence. The first is the period when confusion arose respecting the accused’s failure to appear for fingerprints and photographs and respecting other counsel appearing on behalf of the accused. The second relates to the actual trial days chosen by the accused which were a month beyond the earliest dates offered by the Crown. I shall deal with each of these issues as they have a significant impact on the calculation of delay.

From November 24, 2014 to April 21, 2015 [ 25 ] The accused was arrested on November 24, 2014 but was not given a first appearance date until December 30, 2014, resulting in a delay of approximately five weeks. Both counsel acknowledge that this type of delay is not unusual in Winnipeg, although I note that a different state of affairs exists in regional courts where an accused is often given a first appearance date within days of the offence.

With increased scrutiny respecting delay, building this type of delay into the system is something which needs to be reviewed as it could, in some cases, prove to be the tipping point which takes a case beyond the 18 month presumptive ceiling. The delay of five weeks in this case certainly cannot be held against the accused. [ 26 ] There are some unusual aspects to this case. First, as noted earlier, the accused was initially charged only with impaired driving. It was not until March, 2015 that the results of the blood samples were obtained and the charge of driving over .08 was laid.

Even after the charge was laid, Crown counsel was awaiting information. Further, it was not until late June, 2015 that the extrapolation report was forwarded to defence counsel. Although these types of tests are not unusual or complex, there is no evidence to explain the delay in their completion. What is clear is that they played a significant role in the delay occasioned early in the proceedings. Crown counsel was candid that the prosecution was not in a position to set a trial date until the results of the blood samples were obtained.

He also candidly admitted that it was his preference, although not an absolute necessity, to have the extrapolation results prior to setting a trial date. Because this evidence is important for the prosecution, it should be obtained as quickly as possible.

If, in the future, Crown counsel wishes to argue that obtaining evidence as straightforward as a blood analysis is something which should be considered “genuinely outside their control”, compelling evidence will have to be presented, mindful of the caution issued in Jordan that “the ceiling will not permit the parties or the courts to operate business as usual.” (at para.107) [ 27 ] The second unusual aspect of this case arose from the dual confusion on the part of the defence related to who was representing the accused and to his need to re-attend for fingerprinting in compliance with the second Appearance Notice.

Confusion as to representation arose on February 24, 2015 and was not fully clarified until April 21, 2015. However, given the need in this case to wait for the results of the blood tests, it does not appear that this actually added to or caused any delay in the proceedings. [ 28 ] The same can be said of the initial appearances by defence counsel, with some qualification. Early in the proceedings there were a number of adjournments where Mr. Simmonds appeared as “a friend of the court”.

While he received the particulars that were available, there is no evidence of any attempts to “expedite the proceedings.” While under the circumstances of this case, these early adjournments were inevitable, in the future defence counsel should expect that their actions will be carefully scrutinized, including routine requests for adjournments for as long as a month at a time. In the words of Jordan “defence action legitimately taken” would include early adjournments to facilitate the provision and review of particulars. There are, however, limits. This does not mean that

routinely requesting lengthy adjournments is acceptable. Defence counsel would be wise to articulate their reasons for adjournment requests, so as to avoid any suggestion that any delay occasioned is attributed to the conduct of the defence. From April 24, 2015 to June 10, 2015 [ 29 ] This matter was further delayed as a result of the warrants issued by the WPS identification unit and by the SJP on April 24, 2015. The accused’s confusion about attending twice is understandable, and appears to have been compounded by his failure to formalize his retainer with Mr. Simmonds.

It is somewhat surprising that the matter was processed in this fashion, as charges are often added to the docket “no process” with the consent of counsel and without the necessity of the accused attending for further prints. As pointed out by the Judge who heard the motion, for

summary conviction matters there is no requirement for fingerprints and photographs. It is also unfortunate that the matter was not resolved between Crown and defence counsel in the fashion very reasonably directed by the Judge. However, when it became apparent that such a resolution would not be forthcoming, defence counsel ought to have moved immediately to bring the matters back before the Court. It took defence counsel approximately seven weeks to file a motion to have the matter addressed in open court. The delay in having this matter brought before the Court is the responsibility of the defence.

June 10 to July 23, 2015 [ 30 ] The proceedings in this matter were adjourned several times during this period and the discussions, such as they were, are outlined in the e-mails between Crown and Defence. After the cancellation of the warrant Defence counsel stated that they “weren’t ready to set dates” and requested an adjournment to June 22, , 2015. From that date, Crown counsel’s request for a two week remand prevailed and the matter was adjourned to July 6 th . From July 6 th the matter went to “date setting court” on July 23 rd .

There was no further e-mail discussion between counsel until July 21 st at which time Crown counsel suggested the setting of three days. During this time, further disclosure was provided, including the extrapolation report. [ 31 ] Defence counsel fairly points out that the July 21 st e-mail represents the first time in which the Crown outlined the number of witnesses he intended to call, including an expert, and the number of days he thought would be necessary. I cannot conclude from a review of the transcripts and the e-mails that Crown counsel was in a position to set dates any earlier.

There is certainly no evidence of Crown counsel requesting defence counsel’s availability or otherwise asking for trial dates prior to the July 21 st e-mail. While Crown counsel suggested that a case management conference be arranged to “narrow down the specific issues”, a plain reading of the e-mail is that Crown counsel clearly contemplated the setting of the case management after the setting of trial dates. Defence counsel rightly points out that it would have been impossible to arrange a case management conference in the two days prior to the setting of the trial date.

I also note that it would have been open for Crown counsel to request a case management conference, regardless of the position of opposing counsel. [ 32 ] The failure of both counsel to take advantage of the case management process for this matter is disappointing. This is a case which may have benefited greatly from such a conference. I note that there was ample time between the June 10 th appearance and the July 24 th “date setting appearance” to have arranged a case management conference. Both counsel candidly agree that a case management would have been made available if either counsel had requested it.

While Crown counsel is to be credited for making the suggestion, there was no follow-up on either part. In the future, the party who bears the onus in a delay motion may well be called upon to explain why the case management process was not used in an attempt to focus the issues. [ 33 ] Crown counsel also points to the fact that dates as much as one month earlier than the October dates that were ultimately set were offered by the Crown and the Court. Defence counsel expresses concern that the only dates which are provided to the defence are those in which both the Crown and the Court are available.

Generally speaking, the Crown should not be penalized for delay related to the unavailability of defence counsel. However, a tempered approach will have to be taken to an assessment of the setting of trial dates. In this case there is no evidence of the Defence offering earlier or alternative dates.

If both defence counsel and the Court are available for an earlier date, the Crown’s policy of file ownership may well have to be considered in determining whether that policy has contributed to the delay in the setting of the trial date. [ 34 ] What is of significant concern is that Crown counsel assessed this matter as requiring three days of trial without having made any serious attempt to narrow the issues, obtain agreements or otherwise eliminate witnesses and thereby reduce the number of days required.

The requirement for multiple days for the hearing of this matter was one of the most significant factors contributing to the delay in obtaining trial dates. While Jordan recognizes that the complexity of a case and the need for multiple trial dates to be a factor which may contribute to delay, Crown counsel is obligated to attempt to streamline their case and to request a reasonable number of trial days. With respect to this matter, on the first day of trial the length of the hearing was reduced significantly through a number of agreements, and if the matter proceeds will likely be completed in well under a day.

Had those agreements been sought at the outset, much earlier dates could have been offered. [ 35 ] This does not absolve defence counsel of their responsibility to make reasonable concessions and assist in the streamlining of a case, particularly when they later raise concerns about delay. The use of the case management process, meaningful concessions which do not unduly compromise their client’s interests, and the offering of timely trial dates will all be factors considered in a delay motion.

Counsel should be mindful of the caution issued by the Court in Jordan that the actions of the accused will be scrutinized and that “substance matters, not form”. (see para. 84) A Blended Jordan/ Morin Analysis for Transitional Cases [ 36 ] I am satisfied that there are two periods of delay which ought to be attributed to the actions of defence counsel and therefore deducted from the overall period of 22 months and 11 days. The first is the period of seven weeks from April 21, 2015 when a warrant issued for his client, to June 10, 2015 when the warrant was cancelled.

The second period of five weeks, from August 29, 2016, being the earliest trial date offered to October 3, 2016, being the date that was actually accepted. Deducting this period of 12 weeks from the overall period of delay of 22 months and 11 days, leaves a period of 19 months and 11 days, exceeding the presumptive ceiling in Jordan .

[ 37 ] However, because this case is a “transitional” case, it must be assessed taking into account both the new framework outlined in Jordan and the previous state of affairs under Morin . In Jordan , the Court had this to say about transitional cases which exceed the presumptive ceiling (at para. 96): First, for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision.

This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice. For example, prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework.

For cases currently in the system, these considerations can therefore inform whether the parties’ reliance on the previous state of the law was reasonable. Of course, if the parties have had time following the release of this decision to correct their behaviour, and the system has had some time to adapt, the trial judge should take this into account. [ 38 ] I am mindful of several realities, the first being that the Morin guideline of eight to ten months of institutional delay was given little weight.

In this case, the institutional delay amounts to approximately 13 1/2 months, a length often tolerated under the Morin framework. I am also mindful of the fact that the delay has resulted in little in the way of actual prejudice to the accused, and that prejudice was one of the most significant factors to impact the outcome of a delay motion under Morin. Crown counsel argues that the complexity of the case required the setting of multiple days.

This must be tempered by the fact that the actual case will be resolved with the use of very little court time, and there was little effort made on the part of Crown counsel to streamline the case. I also note that there was little effort made by the defence to move the case forward or otherwise expedite the proceedings. Conclusion [ 39 ] Under both Jordan and Morin , the Court commented that a judicial stay of proceedings should only be granted in the clearest of cases.

The creation of the Jordan framework was intended to send a clear message to the Courts that the previous delays occasioned under Morin cannot be tolerated. While the “clearest of cases” tests will always be applied, counsel can expect that its

interpretation will change when the Court moves away from transitional cases to those proceedings strictly under the Jordan framework. [ 40 ] This case demonstrates the previous way of doing business resulted in unnecessary delays occasioned by both Crown and defence counsel. As noted in Jordan , it is incumbent on all players in the criminal justice system to do a better job of moving cases towards their conclusion.

In the future, practices such as lengthy remands, failure to use the case management process, and little meaningful discussion between counsel respecting the time requirements for an individual case will all be scrutinized. [ 41 ] I note as well the concerns expressed in Jordan with respect to the presumptive ceilings (at paras. 56-57): We also make this observation about the presumptive ceiling. It is not an aspirational target. Rather, it is the point at which delay becomes presumptively unreasonable. The public should expect that most cases can and should be resolved before reaching the ceiling....

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. This is a long time to wait for justice. But the ceiling reflects the realities we currently face. We may have to revisit these numbers and the considerations that inform them in the future. [ 42 ] Given the amount of delay in this case, I recognize that the onus rests with the Crown to establish that the delay is not unreasonable.

Bearing in mind that it is a transitional case, I am not satisfied that the delay occasioned should result in the judicial stay of proceedings or that this is one of the clear cases which requires such a significant remedy. Had this not been a transitional case, the decision of the Court would be quite different. [ 43 ] The motion for a judicial stay of proceedings is dismissed. “Original signed by” MARY KATE HARVIE, P.J.