R. v. Ndirangu, 2016 ONCJ 723

ONTARIO COURT OF JUSTICE DATE: 2016 12 09 COURT FILE No.: Central East - Newmarket 4911-998-15-04444-00 CITATION: R. v. Ndirangu , 2016 ONCJ 723 BETWEEN: HER MAJESTY THE QUEEN — AND — DERICK NDIRANGU Before Justice John McInnes Heard on November 10, 2016 Reasons for Judgment released on December 9, 2016 D. Moull.................................................................................................. counsel for the Crown H.

Spence..................................................... counsel for the defendant Derick Ndirangu McINNES J.: [ 1 ] Derick Ndirangu was charged with impaired driving, “over 80” and dangerous driving following his involvement in a June 6, 2015 motor vehicle accident. His trial was originally scheduled for July 28 and 29, 2016 but was not reached on those dates and had to be re-scheduled for January 16 and 17, 2017. In advance of the new dates, Mr. Ndirangu applied for a stay of proceedings pursuant to s. 11(

b) of the Charter . On November 10, 2016, I heard that application and granted the relief sought with reasons to follow. These are those reasons. I. Procedural History [ 2 ] The Information was sworn on June 8, 2015. Between June and October, 2015, there were five intake appearances while disclosure requests were processed and Crown and judicial pre-trials were held.

On October 26, 2015 the trial was scheduled for July 28 and 29, 2016. [ 3 ] On July 28, 2016 the case returned in “triage” court where the Crown determined its priority relative to the other scheduled trials and the parties waited for an available courtroom. Unfortunately it was not reached and counsel had to attend the trial coordinator’s office to obtain new dates. The Crown declined two pairs of dates available to the defence in September and another two in December.

The defence turned down a pair of dates in December and another pair in early January, 2017. [ 4 ] I need not further examine each period of delay because the parties have agreed that the defence is responsible for only 11 days out of the total delay of 19 months and 9 days. II. The Jordan Framework and Position of the Parties

[5] In R. v. Jordan 2016 SCC 27 the Supreme Court of Canada introduced a new analytic framework for assessing s. 11(

b) claims.The new framework requires me to: (

i) calculate the total delay from the date the Information was sworn [June 8, 2015] to the scheduled end of the trial [January 17,2017] (Jordan, at para. 47); (ii) subtract defence delay to determine "net delay" (Jordan, at para. 47); and then, (iii) compare the net delay to the applicable presumptive ceiling (Jordan, at para. 66). [6] As mentioned, the parties agree the “net delay” was 18 months and 28 days. The presumptive ceiling for trials in the OntarioCourt of Justice is 18 months [Jordan, para. 46].

It follows that the net delay in this case exceeds the applicable ceiling by 28 days and istherefore presumptively unreasonable. Accordingly, I must proceed to the next step in the Jordan analysis: (iv) determine whether the Crown has rebutted the presumption by establishing the presence of an “exceptional circumstance”, i.e.an unavoidable “discrete event” that delayed the proceedings or that the case is especially complex [Jordan, paras. 69 to 81]. [7] The Crown concedes that neither of these two general categories of exceptional circumstance applies in this case.

Ordinarily, Iwould therefore be required to stay the proceedings: Jordan, para. 81.

Here, however, the Crown argues that a “transitional exceptionalcircumstance” is applicable. [8] Noting that “it is not fair to strictly judge participants in the criminal justice system against standards of which they had nonotice,” that it will take time for the new framework to effect change and that in the meantime “the administration of justice cannottolerate a recurrence of what transpired after the release of Askov” – stays of proceedings being granted en masse – the Court determinedthat the new ceilings must be applied “flexibly and contextually” in transitional cases: Jordan, paras. 93 to 94, 97. [9] This means that delays exceeding the presumptive ceilings may be deemed reasonable in transitional cases provided the Crownestablishes “that the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed”and/or “the case is of moderate complexity in a jurisdiction with significant institutional delay problems” such that the Crown’s ability tomove the case forward was “constrained by systemic delay issues”: Jordan at paras. 96-97, [emphasis added]; see also, R. v.

Manasseri,2016 ONCA 703, paras. 318 to 320; R. v. Coulter, 2016 ONCA 704, paras. 87 to 89. [10] Crown counsel submits the “transitional exceptional circumstance” in the present case arises from the 9-month wait for theoriginal trial dates. He advised me the 9-month delay for this 2-day trial was a function of the wide delay gap as between 1-day and 2-day trials in this jurisdiction, i.e. 5-7 months compared to 9-10 months.

To safely accommodate 2-day trials within the presumptiveceiling, he argues, this delay-differential will have to be narrowed so that there is more delay for 1-day matters and less delay for 2-daymatters. [11] Defence counsel responds that both the delay-differential and the typical wait for a 2-day trial remain the same today and thereis no basis for the Crown’s supposition that it would have been able to secure an earlier 2-day trial in a hypothetical post-Jordan system.Moreover, she submits, the total period of “institutional delay” as defined in R. v.

Morin, (SCC), [1992] 1 S.C.R. 771works out to between 12.5 and 14 months, well above the 8-10 month guideline, and it follows that a stay would likely have been grantedunder the Morin framework. [12] Defence counsel also points to the Crown’s failure to expedite the matter after it did not proceed on the original trial dates. Sheadvised me that another lawyer in her firm brought the delay problem in this case to the Crown Attorney’s attention at a meeting held onSeptember 26 but even at that point nothing was done to expedite the trial.

Crown counsel acknowledged this meeting occurred and thatthere is no evidence before me that the Crown has ever taken any active steps to move this matter along. III. Analysis [13] The narrow issue in this case is whether the Crown has established a “transitional exceptional circumstance” that renders the netdelay reasonable despite the breach of the presumptive ceiling.

To resolve this issue I must determine whether the breach of thepresumptive ceiling in this case is attributable to the Crown’s “reasonable reliance on the law as it previously existed” and/or to thisbeing a case “of moderate complexity in a jurisdiction with significant institutional delay problems” such that the Crown’s ability tomove the case forward was “constrained by systemic delay issues”: Jordan at paras. 96-97. [14] I will first address the arguments concerning systemic delay in setting 2-day matters in this jurisdiction.

While it is certainlytrue that the wait for the original trial date would have been shorter had this been a 1-day matter, the proposed inference that the 9-monthdelay was a consequence of the delay-differential between 1-day and 2-day matters would be speculative on this record. The causes ofand solutions for systemic delay in trial scheduling are notoriously complex.

While it is reasonable to imagine that a Jordan-recalibratedsystem would be able to accommodate a 2-day trial more quickly than the system did in this case this may or may not have anything todo with a reduced delay-differential. [15] I accept the Crown’s submission that the wait for a 2-day trial may well drop significantly once the system fully responds toJordan. The effects of the new framework will take time to be felt and the fact this has not yet happened in the few short months sinceJordan was released does not undermine the Crown’s argument: see, Jordan at paras. 93, 97 and 117.

In the final analysis, however, therelevant question is not whether the trial could have been completed within 18 months had the wait for the original trial dates been, say,6 months instead of 9 months. The relevant question, rather, is whether the 9-month wait for the original trial dates prevented the Crownfrom ensuring the trial was held within 18 months. [16] The Jordan majority introduced presumptive ceilings in order to transform the “culture of complacency towards delay…in the

criminal justice system”: Jordan, paras. 39 to 41. In my view, however, the specific numbers the Court chose for the ceilings were notthe intended change agent; rather, the very idea that compliance with s. 11(

b) will now be gauged with reference to presumptive timelimits was intended to incent the various actors in the criminal process to modify their behaviour. The Court set the ceilings at 18 monthsfor cases tried in provincial courts and 30 months for cases tried in superior courts after conducting a “qualitative review of nearly everyreported s. 11(

b) appellate decision from the past 10 years”; the Morin guidelines as well as the need for “additional time to account forthe other factors that can reasonably contribute to the time it takes to prosecute a case” were specifically taken into account.

The Courtmade it clear there is “little reason to be satisfied” with the current ceilings which reflect “the realities we currently face” and noted theymay well be revisited in the future: Jordan at paras. 52 to 54, 57 and 106 [emphasis added]. [17] It follows that much of the time applying the ceilings “contextually and flexibly” to transitional cases will not translate into anyupward, or for that matter downward, adjustment to the ceiling.

Having to wait 9 months for a 2-day trial that must then be rescheduledafter not being reached is the sort of unexceptional contingency that is already baked into the 18 and 30-month presumptive ceilings.Delays above the ceiling require an exceptional circumstance. [18] Under the Morin framework, the sum of Crown-generated and institutional delay in this case would work out to approximately15 months and consequently the case likely would have been stayed irrespective of Jordan.

The main point of applying the ceilings moreflexibly in transitional cases is ensuring “that for most cases that are already in the system, the release of [Jordan] should notautomatically transform what would previously have been considered a reasonable delay into an unreasonable one”: Jordan, para.102.The fact that the delay in this case likely would not “previously have been considered…reasonable” is a strong indication that notransitional exceptional circumstance is operative. [19] In the final analysis, the most legally significant reason why the ceiling was breached in this case is that the Crown took noconcrete steps to expedite new trial dates when the case did not proceed last July 28 including after the matter was brought to the CrownAttorney’s attention on September 26.[i] This happened three weeks after the release of Jordan and the Crown is fixed with theknowledge that rescheduling the trial for January 17 and 18, 2017 all but guaranteed a breach of the presumptive ceiling.

Despite that,the Crown turned down dates that would have allowed the case to finish within 18 months. [20] Crown counsel advised me this probably happened because those dates conflicted with officer leave dates. I accept that isprobably the case but since the alternative was a presumptive breach of Mr.

Ndirangu’s constitutional right to be tried within areasonable time, it seems to me that the Crown was obliged to make some effort to find a solution; for example, the Crown could havedouble-checked with the officers in question or assessed whether it could prove its case without the witness who was not available on theearlier dates. The notion that there is a heightened obligation on the Crown to reduce the consequent additional delay when trials do notproceed as scheduled is hardly new: R. v. Satkunananthan, (ON CA), [2001] O.J. No. 1019, 152 C.C.C. (3d) 321(CA) at paras. 55-56; R. v.

Brace, 2010 ONCA 689 at para. 15. [21] For the foregoing reasons I conclude the Crown has not established an operative transitional exceptional circumstance and inaccordance with Jordan I am therefore bound to allow the application and stay the proceedings. [22] I want to thank both counsel for their thoughtful and well-presented arguments. Released: December 9, 2016 Signed: Justice John McInnes [i] No criticism of the Crown Attorney or any member of his office is intended. It may be that inquiries were made and nothing could bedone. I have no evidence either way.

But the Crown has the persuasive burden vis-à-vis rebutting the presumption the delay isunreasonable and has not established any Crown proactivity on or after the matter was not reached on the originally scheduled trial dates.