Holding back the hands of Jordan


John Baron was charged with 28 counts of fraud. He was convicted and sentenced to 6 years jail. Prior to trial Baron brought an application to stay the proceedings based on a violation of s11(b), unreasonable delay. The trial judge dismissed the application. Baron appealed. His appeal was dismissed: 2017 ONCA 772.

Baron was charged with two others, McGill and Houle. In all 59.5 months passed before the conclusion of their trial. The trial judge found no waiver nor any delay attributable to the Crown. The total institutional delay was 18.5 months (8 months in OCJ and 10.5 months in SCJ). The remainder, bulk of the delay, was almost entirely neutral time under Morin – 6 months was attributed to defence delay.

In reviewing the ruling and impugned delay the Court of Appeal agreed with the trial judge that there was no violation of s11(b). A few points are particularly notable.

First, the court agreed that time arising from the removal of counsel was attributable to defence delay. The court further did not entirely reject the position of the Crown that the delay from the removal of counsel to the start of the second dates for the preliminary inquiry should be defence delay – a position which might in other circumstances be accepted. The court explained:

I would allocate the entire time between the date set for the start of the first preliminary inquiry (August 2, 2011) and the date set for the commencement of the second preliminary inquiry (February 13, 2012), that is 6 ½ months, as defence delay. This delay was caused by the removal of counsel from the record and was the responsibility of all three accused. On appeal, counsel for the Crown submits that the entire period of time from counsel’s removal (April 13, 2011) until the second preliminary inquiry (February 13, 2012), namely 10 months, should be deducted. While this position is not unreasonable, I would apply only 6 ½ months because the possibility of proceeding on the original dates might also be said to have been frustrated by other factors. [@48].

Second, delay occasioned by the co-accused was treated as neutral by the applicaton judge under the transitional exception and thus justified delay beyond the ceiling. The Court of Appeal agreed:

Operating within the Morin framework, the application judge was correct to treat the delay caused by the co-accused as neutral time: see Whylie, at para. 24; and L.G., at paras. 62-63. He also recognized the importance in trying co-accused together, a principle that was recently endorsed by this court in R. v. Zvolensky2017 ONCA 273 (CanLII), 135 O.R. (3d) 401, per Watt J.A., at paras. 245-255.
This case is not like R. v. Vassell2016 SCC 26 (CanLII), [2016] 1 S.C.R. 625, in which Mr. Vassell’s persistent and proactive efforts to have a trial as soon as possible were thwarted by the delay caused by his six co-accused.
Here, the appellant was content with the pace of the proceedings, never raising the issue of severance. Severance was not appropriate in any event, given the complexity of the case, the nature of the allegations, and the evidence common to all three accused. [@62-64].

Third, on the issue of complexity the Court of Appeal rejected the notion that because the trial only took 8 days it was not complex – this approach to complexity is mistaken and has been rejected:

In gauging the complexity of the case, it is an error to focus exclusively on the end product – the trial. Case complexity must be evaluated over the course of the entire proceedings. As Rouleau J.A. held in Picard, at para. 62:
A case can be complex in the earlier stages and require extensive disclosure, the compiling of expert evidence and numerous witness statements, only to be made simpler and more straightforward when it comes time for trial…. These kinds of complexity in the early stages may result in inevitable delays due to extensive disclosure, a lengthy preliminary inquiry and so on, although the case is simple by the time of trial.

Fourth, the court noted that the transitional exception was created to avoid the very result sought by Baron – a stay relying on a new regime where the parties were proceeding reasonably under the law that existed before Jordan. In support the Court of Appeal cited the following passage from Pyrek2017 ONCA 476 @32:

Finally, in Jordan itself, at para. 98, the court categorized the kind of transitional case in which the delay would warrant a stay, and the present case is far removed from that categorization. The court said: "if the delay in a simple case vastly exceeds the ceiling because of repeated mistakes or missteps by the Crown, the delay might be unreasonable even though the parties were operating under the previous framework." The present case was not "simple". The delay did not "vastly" exceed the ceiling. And the delay was [not] caused by… "repeated mistakes or missteps".

Baron is another case in a recent string of cases where the Court of Appeal has rejected s11(b) claims in transitional cases. It is a welcome and principled approach to Jordan.


Porn & Prejudice

Stillwell was charged with distributing, possessing and accessing child porn. A little more than 26 months elapsed between the date the information was sworn against Stillwell and the last day scheduled for his trial. Stillwell brought an application for a stay of proceedings on the basis that his right to a trial without unreasonable delay had been violated.

The trial judge concluded that 12.5 months of delay was attributable to the Crown (5.5 months crown and 7 months institutional) and that this exceeded the 8-10 month guideline established in Morin, 1992 CanLII 89 (SCC). The 5.5 months attributed to the Crown were dedicated to the analysis of Stillwell’s computer and the preparation of the report of that analysis. The trial judge entered a stay of proceedings.

The Crown successfully appealed: Stillwell, 2014 ONCA 563.  The Crown argued that first, given the shear volume of files on Stillwell’s computer additional time was required for the investigator to review and categorize the images. Second, the Crown argued that the trial judge erred in her assessment of the prejudice to Stillwell.

The trial judge commented on the task required of police in preparing a categorization report:

While I am sympathetic to the police and the difficult task they have to perform, it is clear that the resources assigned to the completion of this analysis were woefully inadequate, particularly when the main investigator became unavailable.  It is well settled that decisions on the part of the state concerning the allocation of its resources cannot be used to justify the abrogation of the rights of an accused person. @para 14.

The Court of Appeal accepted that:

(…) child pornography investigations are unique in that the storage capabilities of electronic devices may result in huge universes of information that can only be analyzed after charges have been laid. I also recognize that officers categorizing these types of images need frequent breaks due to the emotional toll associated with the work. @para 39

However the Court rejected the Crown’s argument that the 5.5 months attributed to the Crown for the preparation of the report was neutral. The Court held that allocating it as the trial judge did was appropriate in the circumstances.

The Court of Appeal however did not agree with the trial judge’s conclusion that such an allocation of time periods should result in a stay of these proceedings. The prejudice to the accused was minimal and “his ability to make full answer and defence was unaffected by the delay” [@para 23]. The Court agreed with the trial judge:  

(…) that the Crown delay in disclosing the final report was clearly disproportionate to the time spent preparing it.  In my view, however, this fact should not overwhelm the analysis.  On the trial judge’s own findings, the delay in disclosing the final report accounted for only five and a half months of the total 26 month period.  The bulk of the time was taken up by neutral intake time (nine months), defence delay (five and a half months) and reasonable institutional delay (seven months).  When the five and a half months of unreasonable Crown delay is added to the institutional delay, the total is 12.5 months – beyond the Morin guideline, but not egregiously so.  When this delay is balanced against the minimal prejudice the respondent experienced and the grave seriousness of the charges against him, the delay, while not ideal, was not unreasonable. [emphasis added]

With respect to the gravity of child pornography offences the Court referenced the recent SCC decision in Spencer, 2014 SCC 43 (check out blog on this by Dallas Mack “The Privacy of Anonymity”) as follows:

Society has both a strong interest in the adjudication of the case and also in ensuring that the justice system remains above reproach in its treatment of those charged with serious offences.  If the evidence is excluded, the Crown will effectively have no case.  The impugned evidence (the electronic files containing child pornography) is reliable and was admitted by the defence to constitute child pornography. Society undoubtedly has an interest in seeing a full and fair trial based on reliable evidence, and all the more so for a crime which implicates the safety of children. [Emphasis added.] @para 63.

Stillwell serves as a significant guide to the balancing required between prejudice to the accused and the mighty public interest in prosecuting child pornography offences. Minimal prejudice which does not impact on the accused’s right to make full answer and defence must not result in a stay. It also marks an important, although in this particular case not significant, acknowledgement of the massive task facing investigators as they process ‘universes of information’ found on computers.


Current & Curious: Is the merit of a prosecution a factor in determining unreasonable delay?

Viktor Sokolovski operated a martial arts club aimed at young people. It was alleged that he assaulted five of his students during the years that he trained them. Specifically, he was charged with eight counts of assault with a weapon, five counts of assault and a single count of uttering a death threat. The defence brought an application seeking a stay of proceedings based on unreasonable delay. Blouin J. of the Ontario Court of Justice applied the factors set out by the Supreme Court of Canada in R v Morin [1992] 1 SCR 771 and granted the stay of proceedings: 2012 ONCJ 759.
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