R. v. Edan, 2016 ONCJ 493

ONTARIO COURT OF JUSTICE CITATION: R. v. Edan , 2016 ONCJ 493 DATE: 2016 08 12 COURT FILE No.: Brampton 14-726; 14-15571 BETWEEN: HER MAJESTY THE QUEEN — AND — AZAD EDAN Before Justice Louise A. Botham Heard on June 24, and July 18, 2016 Ruling on s. 11 (

b) Charter Application, released on August 12, 2016 M. Thomaidis....................................................................................... counsel for the Crown B. Starkman...................................................................... counsel for the defendant Edan BOTHAM J.: [ 1 ] This is my ruling on Azad Edan’s application for an order staying the proceedings against him on the grounds that his right to be tried within a reasonable time as guaranteed by s. 11(

b) of the Charter had been breached. [ 2 ] On November 26, 2014, Mr. Edan was arrested for over 80. The Information was sworn on December 15, 2014. His first appearance in court was December 19, 2014. On May 4, 2015, a trial date of December 9, 2015 was set. [ 3 ] On December 9, 2015, the applicant’s trial did not proceed as scheduled. There had been late production of the breath room video and production on the trial date of other previously requested disclosure. The defence request for the radio dispatch audio was still outstanding.

Crown counsel conceded that “there were some mysterious disclosure issues that were arising and we’ve yet to resolve all of them, although we’ve solved some of them this morning, and as a result I can see why my friend’s really not in a position to proceed today.” [1] [ 4 ] A review of the transcripts filed in support of this application reveals the following. On February 27, 2015 an agent appearing for Mr. Starkman confirmed that although a Crown pre-trial had been held, there was still outstanding disclosure, specifically a DVD.

On March 20 th , the Crown provided the agent for defence counsel with what was described on the record as the breath room DVD. On April 27 th a judicial pre-trial was held and the matter was adjourned to May 4 th to set a trial date.

On neither the April 27 th court appearance or on May 4 th was any issue raised on the record with respect to any outstanding disclosure issues. [ 5 ] The Affidavit of Robert Wulkan, an associate lawyer in Brian Starkman’s office, sets out the chronology of the relevant disclosure issues and was filed as part of the Application Record in this matter. [ 6 ] On July 31, 2015, a letter was sent requesting disclosure of information which would relate to the decision by the OPP to conduct the breath tests at the Aurora detachment, rather than presumably other detachments. On September 21, 2015, the Crown’s office

responded in writing confirming that those items had been requested of the OPP, although inferentially not received, and that the breath room and cell video disclosure was available to be picked up. [ 7 ] It is not clear how to reconcile the statements in court on March 20, 2015 concerning the provision of the breath room video in court with the letter of September 21 st that it was now available for pick up. At any rate on November 17, 2015, Mr.

Starkman’s office wrote Crown counsel asserting that the defence had still not received the items discussed in the September 21 st correspondence. [ 8 ] This sparked a chain of e-mails between the Crown’s office and Mr. Starkman’s office. It is clear from those e-mails that the Crown’s records showed that one or more DVD’s had been picked up on September 24 2015. In e-mail correspondence dated November 24, 2015 Mr. Starkman’s office clarified that they had received the maintenance record disc but not the breath room and cell recordings, notwithstanding at least two attendances to pick them up.

On November 30 th the defence requested that a copy of the recordings in question be made and offered to pick them up that day. On December 4 th , Assistant Crown attorney Emily Beaton wrote Mr. Wulkan stating “you should have been notified that the video had been copied a few days ago.” Mr. Wulkan responded that he would confirm that fact with his office and then on December 7, 2015, a further e-mail sent by Assistant Crown Attorney Emily Beaton advised “I think that disk just turned up. I’ll leave it at our front desk to your attention. It should be there within 20 minutes.” [ 9 ] Mr.

Wulkan has further deposed that on December 7, 2015 both he and Sarah Khan, also employed by Brian Starkman Professional Corporation, separately attended at the Peel Crown Attorney’s office and picked up disclosure disks. On December 8, 2015 he reviewed the contents of both the discs and found that they each contained a copy of the breath room/cell video. [ 10 ] A new trial date was not scheduled on December 9 th because trial counsel, Mr.

Starkman, thought the contents of the now produced breath room recording gave rise to an issue which might support a resolution of the matter without the necessity of a trial and it was jointly recommended that the matter be adjourned to January 11, 2016 to allow Crown counsel to consider the matter. [ 11 ] On January 11, 2016, there had been no response by the Crown’s office with respect to the proposed resolution. The defence put on the record that that there were 11(

b) concerns should the matter not be resolved and Crown counsel suggested that a trial date be set on that day. Mr Wulkan, appearing for Mr. Starkman, did not have the file and was unable to set a trial date. The matter was then adjourned to January 18 th for that purpose. However on that day a trial date could not be set because the Crown’s office could not locate the file nor was there an Information before the court. The matter was adjourned to January 25 th at which time the trial date of June 22 nd and 23 rd 2016 was set. [ 12 ] At some point, June 3, 2016 was scheduled for the argument of an 11(

b) application. The materials in support of the application were filed, absent an affidavit from the applicant; however, the matter could not proceed since the applicant and his counsel were not present. Upon making inquiries, I was advised that counsel for the applicant had understood that the application had been adjourned to the trial date, at his request. I adjourned the application to the trial date with the understanding that it would be argued after the substantive evidence had been heard. [ 13 ] On June 22, 2016 the trial commenced and completed early on the morning of June 23 rd . Submissions were heard on the substantive issues and after lunch argument on the defence 11(

b) application began. Mr. Edan had filed an affidavit asserting that he had experienced stress as a result of this charge and the delay in the matter coming to trial. He testified in response to his lawyer’s question “one thing that isn’t in the affidavit, so maybe I’ll ask you this now. What I’ve learnt from you now.

You spoke in para. 12 about being stressed and anxiety did you take any steps to deal with that?” He replied “Yes after everything happened I went to see a family doctor and told him what was going on and he started me on depression and anxiety pills and sleeping.” The applicant testified that he had the prescribed medication with him. [ 14 ] At that point, Crown counsel sought an adjournment to subpoena the applicant’s medical records.

I expressed some concern about the necessity for an adjournment given that the real issue would be whether the anxiety was triggered by the delay or the fact of the charge and it seemed that that could be dealt with through cross-examination. However, given Crown counsel’s assertion that the adjournment was necessary to for him to answer the defence application, I reluctantly adjourned the matter. An interim date of June 29 th was set at the request of Crown counsel. On that date, Crown counsel did not attend and I remanded the matter to July 18, 2016 which had already been scheduled to complete this matter.

On that day the applicant’s doctor attended and met with both counsel and confirmed that on June 10, 2016 he had seen the applicant who complained of stress and anxiety and that he had been already treating the applicant with respect to ongoing chronic pain. [ 15 ] On July 8, 2016, the Supreme Court of Canada (SCC) released their reasons in the case of R. v. Jordan setting out a new framework for the analysis of an assertion of an 11(

b) breach. Although both parties had filed written argument using the Morin analysis, in oral argument both addressed the issue of delay in the context of the test as set out in Jordan . [ 16 ] There is now a presumptive ceiling of 18 months for a cases tried in the provincial court beyond which delay to trial becomes presumptively unreasonable. That presumption is only rebuttable where the Crown can establish the existence of exceptional circumstances which are defined as events reasonably unforeseen or unavoidable and not capable of remediation.

Where the exceptional circumstance has caused a discrete event leading to delay, then that period of delay should be subtracted from the equation, where the Crown can demonstrate that the delay was as a result of a case’s complexity, then the excessive delay will be found to be reasonable. [2] [ 17 ] Where the delay to trial does not exceed 18 months, the applicant bears the onus of establishing that the defence “took meaningful steps that demonstrate a sustained effort to expedite the proceedings” and that the case “took markedly longer than it reasonably should have.” [3] [ 18 ] The new framework, including the presumptive ceiling, applies to cases currently in the system, unless the Crown can establish that the delay in bringing the matter to trial was occasioned by the parties’ reliance on the Morin framework of analysis [4] or where the

case is “in a jurisdiction with significant institutional delay problems.” [5] [ 19 ] In Jordan the court writes that “The first step in determining whether Mr. Jordan’s s. 11(

b) right was infringed is to determine the total delay between the charges and the end of trial. In this case, the total delay was 49.5 months.” [ 20 ] In argument before me, the applicant asserted that ‘charges’ in this case meant the time at which Mr. Edan was arrested, the Crown submitted that the relevant time period was from the swearing of the Information.

Given the absence of any argument on the issue, beyond the simple assertion by each counsel, I am deciding this application on the basis that the relevant time period begins on the date that the Information was sworn, December 15, 2014. [ 21 ] Applying the new framework of analysis as set out by the SCC in the case of Jordan , I would calculate the time from date of charge to the commencement of the trial to be 18 months and 7 days. (December 15, 2014 to June 22, 2016) The matter was then adjourned on June 23, 2016 a further 25 days at the request of the Crown. [ 22 ] Crown counsel submits that delay occasioned by the adjournment of the 11(

b) application is not relevant because the issue of time to trial relates solely to the dates scheduled for the hearing of the substantive matter. [ 23 ] I am not persuaded by that argument. At para. 48 of the judgment in Jordan , the court defines total relevant delay as that from the charge to the actual or anticipated end of trial. Applications for Charter relief are part of the trial process. Were it not for the Crown’s request that the matter be adjourned to July 18 th , there is no reason to think that submissions in this matter would not have concluded on June 23 rd . As it is, Mr.

Edan’s matter remained outstanding a further 25 days, making the total time from charge to the end of trial 19 months and 24 days. [ 24 ] The Crown submits that the time from January 25, 2016 to June 22, 2016 should be subtracted from the total time to trial because defence counsel was not available to continue this matter on the earlier dates offered by the court. [ 25 ] The Crown relies on para. 64 of Jordan which states that “the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not.

The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. This should discourage unnecessary inquiries into defence counsel availability at each appearance.” [ 26 ] That paragraph should not be read in isolation. At para. 65 and 66 of the judgment, the court goes on to say: To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay.

For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused’s right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions.

To summarize, as a first step, total delay must be calculated, and defence delay must be deducted. Defence delay comprises delays waived by the defence, and delays caused solely or directly by the defence’s conduct. Defence actions legitimately taken to respond to the charges do not constitute defence delay. [ 27 ] On December 9, 2015 it is clear that both parties agreed that there were legitimate outstanding disclosure issues which warranted an adjournment of the trial.

There is no basis, in my view, to find that the adjournment of the first trial date was caused by solely by the actions of the defence. [ 28 ] In this jurisdiction counsel are required to be available for two consecutive days for trials estimated to require 4 to 7 hours of court time. The January 25, 2016, verification of trial date form attached to the Information sets out the dates available to the court for this matter. February 2 nd and 3 rd , March 9 th and 10 th , March 22 nd and 23 rd or 23 rd and 24 th , April 12 th and 13 th , May 30 th and 31 st or 31 st and June 1 st as well as June 22 nd and 23 rd .

There is no evidence as to police availability since that was not known at the time the trial date was set. Nor is there any evidence of Crown availability since the form states that there was no Crown input into the dates. [ 29 ] Defence counsel did provide a number of dates in February, March, April and May. (See: Tab 3 of applicant’s materials, para. 5), they simply did not coincide with the court’s availability or the requirement that counsel be available for two consecutive days. For example the court offered February 2 nd and 3 rd . Defence counsel was available February 2 nd and 4 th .

In addition to other dates offered by the defence, April 7 th , 8 th , 13 th , 15 th and 18 th were suggested but the court was only available in April for the successive dates of the 12 th and 13 th . The trial co-ordinator’s sheet also notes that counsel is available for April 7 th and 8 th as well as May 24 th and 25 th . Neither of those successive dates were available to the court.

It would be unreasonable to attribute the difficulty in accommodating a second trial date in this matter to defence unavailability and contrary to the spirit of the SCC’s comments in Jordan . [ 30 ] The applicant was responsible for the delay in hearing the 11(

b) application. June 3 rd had been offered and accepted by counsel for the applicant, however, it would appear that the date was not one for which the accused could attend. I accept counsel’s submissions that he had been under the mistaken belief that his office had adjourned the hearing of the application to the trial date and therefore had not attended on June 3, 2016. [ 31 ] There is no basis to find that the adjournment of the 11(

b) application to the trial date in this case played any role in lengthening the time this matter took for trial. Two days were scheduled for this trial. It began on June 22 nd and at 3:15 p.m., the Crown advised that he believed he had completed the Crown’s case. However, because I had already indicated that I would hear submissions and the 11(

b) argument on the following day because I had a previously scheduled sentencing matter also to deal with that afternoon, Crown counsel reserved the right to call further evidence on the issue of as soon as practicable. [ 32 ] On June 23 2016, the matter resumed at 10:28:43, the Crown did call further evidence which was completed at 10:37:28.

Submissions were heard on the substantive issues and at 2:33:42 cross-examination of the applicant began and then was halted almostimmediately by the Crown’s application for adjournment. Were it not for that request, I have no reason to think the entire proceedings could not have been completed on June 23rd, since when the 11(

b) application resumed on July 18th at 10:27:51 it was completed within2 hours at 12:37:51 and that amount of trial time had been available on June 23, 2016. [33] I find that the total time to trial in this matter is 19 months and 24 days. I have considered whether any of that delay was causedeither solely or directly by the defence’s conduct so as to be deducted from that period. As previously stated I do not find that defencewas responsible for the adjournment of the first trial date, nor do I understand the Crown to be advancing that position. [34] Although the defence was responsible for the 11(

b) application not being heard prior to the dates scheduled for trial, on the facts of this case, I am satisfied that doing so did not add to the total delay, since there was sufficient time on June 23rd to have completed thematter. [35] A new trial date could have been scheduled on December 9 2015. Instead, Crown and defence were in agreement that it might bebeneficial to canvass some alternate form of resolution and the matter was adjourned to January 11, 2016.

Under the Morin analysis Iwould have characterized that time period as neutral and although deducted from any assessment of institutional delay I would not haveweighed it against either of the participants, nor would I have considered it a defence waiver. [36] The court, in para. 64 of Jordan, writes that “defence applications and requests that are not frivolous will also generally not countagainst the defence. We have already accounted for procedural requirements in setting the ceiling.” The adjournment from December 9to January 11, 2016 seems to me to properly fall within this rubric.

On January 11, 2016, the Crown requested that a trial date be set, thedefence was not in a position to do so. However, the following week, the defence was prepared to set a trial date and the Crown lacked the investigative file. Assuming, for the sake of argument, that earlier dates would have been available on either January 11th or January 18, 2016 than were actually available on January 25 and there is no evidence on that issue, it is difficult if not impossible to attribute anyof that delay to the defence without acknowledging that the following week it was the Crown who stalled the setting of the trial date.

Itseems to me that these types of procedural glitches are again exactly what is accounted for in the setting of an 18 month ceiling. [37] I therefore find no reason to deduct any of that time from the total time to trial which I have calculated as 19 months and 24 days. The matter therefore is presumptively unreasonable and the issue to be considered is whether there exists an exceptional circumstance asdefined in Jordan to rebut that presumption. [38] The trial was adjourned due to late disclosure.

It is clear that some additional disclosure was available to be picked up from theCrown’s office as of September 22, 2015. The Crown’s records show that it was picked up. The defence does not dispute that disclosurewas picked up but a review of the e-mail correspondence filed as part of the application record makes it clear that the defence wasasserting throughout the fall of 2016 that they had received the maintenance records but not the breath room and cell recordings whichhad also been requested. [39] Ultimately, the Crown did remedy the situation but not until December 7th, two days before the trial.

There were furtherdisclosure issues which were still outstanding on the day of trial.

No explanation has been advanced to explain why the outstandingdisclosure issues were unable to be remedied prior to the date scheduled for trial. [40] I am not satisfied that this reason for the delay constitutes an exceptional circumstance as defined in Jordan so as to rebut thepresumption of unreasonableness. [41] The Crown submits that the transitional provisions should apply in this case, either because the delay in bringing the matter totrial was occasioned by the parties reliance on the Morin framework of analysis[6] or in the alternative that Peel Region is “a jurisdictionwith significant institutional delay problems;” and that therefore, an assessment of time to trial, should account for these systemic delayissues.[7] [42] The problem with this submission is that the Morin framework of analysis as it has been applied in this jurisdiction for manyyears has not tolerated periods of delay to trial in excess of the 18 month ceiling set out in Jordan. [43] In 2005, sitting as a

summary conviction appeal judge, Justice Durno held that the trial judge erred in applying the 8 to 10 monthguideline to Peel in a case that he characterized as “somewhat more than a straightforward case” and that the appropriate guideline inPeel for institutional delay was 8-9 months.[8] More recently in the

summary conviction appeal cases of R. v. Ratneswaran,

(2013) O.J.No 5037 and R. v. Purewal,

(2014) O.J. No 2824, Durno, J. acknowledged that 8 to 9 months of institutional delay as set out by the courtof appeal in R. v. Rego, (2005) (ON CA), O.J. No. 4768 is still appropriate in Peel for a straightforward case. Evenaccounting for an intake period of some 3 to 4 months, the total period of constitutionally acceptable delay in this region would havefallen below the now presumptive 18 month ceiling. [44] There has not been a culture in this jurisdiction of tolerating lengthy institutional or Crown delay when assessing an 11(

b) claim.There is no basis to find that Crown or defence could have been lulled into a false sense of security that the delay occasioned in this case was somehow constitutionally tolerable. In fact, as of December 9th when the trial was adjourned, Crown and defence counselacknowledged that there may well be 11(

b) issues occasioned by the adjournment of the trial. [45] I am satisfied that there has been a breach of Mr. Edan’s rights under

section 11(

b) of the Charter and I direct that the proceedingsagainst him be stayed pursuant to section 24(1) of the Charter of Rights and Freedoms. Released: August 12, 2016

Justice Louise A. Botham [2] R. v. Jordan, 2016 SCC 27 , 2016 S.C.C. 27, para. 105