MCL Nugget: Shaikh ONCA

R v Shaikh, 2019 ONCA 895

This case deals with the complicated issue of unreasonable delay in the context of an 11(b) application and exhibits the importance of obtaining a waiver of 11(b). It also exposes some of the pressures on the legal system with the lack of courtroom space and the necessity of taking measures to expedite proceedings.

This case deals with the complicated issue of unreasonable delay in the context of an 11(b) application and exhibits the importance of obtaining a waiver of 11(b). It also exposes some of the pressures on the legal system with the lack of courtroom space and the necessity of taking measures to expedite proceedings.

This case deals with the complicated issue of unreasonable delay in the context of an 11(b) application and exhibits the importance of obtaining a waiver of 11(b). It also exposes some of the pressures on the legal system with the lack of courtroom space and the necessity of taking measures to expedite proceedings.

FACTS

On October 6, 2014, the appellant and his former common law partner, Ms. Amer, were charged with uttering death threats, carrying a concealed handgun and pointing a firearm. They were both released on bail and Ms. Amer absconded by leaving the jurisdiction.

Several attempts to have a preliminary inquiry were made but were impeded for various reasons. On the first date of the preliminary hearing, October 4, 2016, Ms. Amer’s charges were withdrawn by the Crown. The preliminary inquiry could not proceed as the court could not accommodate the matter at that time.

On October 6, 2016, the Appellant’s counsel brought an application to get off the record for lack of communication and breakdown in the lawyer-client relationship. The application was denied and the preliminary inquiry judge put the matter over to the next day to deal with unexpected changes, specifically the Crown’s withdrawal of charges against Ms. Amer and the expressed intention to call her as a witness at the trial.

On October 7, 2016, the appellant’s counsel informed the court that he and his co-counsel needed to withdraw for ethical reasons. This was accepted by the preliminary inquiry judge and the counsel were removed from the record. The matter was remanded to November 1, 2016 and then to November 22, 2016 for new counsel to be retained.

On November 22, 2016, new counsel appeared for the appellant and indicated that the appellant wished to re-elect to be tried before the Ontario Court of Justice. On November 28, 2016, the re-election was consented to by the Crown. However, no waiver of 11(b) was obtained by the Crown or offered by the appellant.

On November 30, 2016, the appellant’s counsel expressed intent to bring a section 11(b) application in advance of the trial. On March 3, 2017, an application judge heard the 11(b) motion and the matter was adjourned to the first date set for trial which was March 27, 2017. In her March 29, 2017 reasons, the application judge quantified the total delay from the charge on October 6, 2014 to the scheduled beginning of the trial (March 27, 2017) to be 2 years, 5 months and 21 days. She also noted that since the matter would have to be continued and would not end on March 31st, 2017 as originally anticipated. Based on courtroom availability, the realistic conclusion was determined to be April 12, 2017. In that case, the total delay would be 919 days or 30.2 months.

The net delay was considered secondly which included three periods of ‘defence delay’ between February 24, 2015 and May 2, 2015 (66 days); January 18, 2016 to March 7, 2016 (49 days) and October 6, 2016 to March 27, 2017 (172 days). With the defence delay concessions, the net delay was calculated to be 287 days. The Crown asked the court to treat 7 months of the delay which was caused by the complainant’s travel plans as a discrete event. This was refused as the dates had been set for 10 months down the road and no evidence was presented as to when the airplane tickets were booked, the purpose of the trip or Crown efforts to ascertain the availability of the complainant.

Notwithstanding the appellant’s re-election, the judge applied the 18-month presumptive ceiling and thus the 20-month net delay was identified as presumptively unreasonable. The presumption was rebutted as this was a transitional exceptional circumstance case, this was a busy jurisdiction lacking institutional resources, the matter was moderately complex, the charges were serious and the Crown withdrew charges on the co-accused to expedite matters.

The matter concluded on April 12, 2017 as predicted and the decision was delivered on May 17, 2017. He was convicted of the charges of making a death threat and carrying a concealed weapon but the charge of pointing a firearm was withdrawn.

The appellant renewed his 11(b) application arguing that the time taken to reach a decision should be included in the delay. This was dismissed by the trial judge on July 20, 2017 finding that deliberation delay is not included in calculating periods of delay under Jordan.

ISSUES

The appellant appealed on both 11(b) rulings, arguing that the net delay was mischaracterized and miscalculated. Further, he argued that the deliberation period should be included in calculating delay.

The Crown argued that the appellant initially elected to have a preliminary inquiry and then re-elected to proceed in the ONCJ, thus, the presumptive ceiling which should apply is 30 months.

WHICH PRESUMPTIVE CEILING APPLIES?

At para 46 of Jordan, there court states:

At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry). [Emphasis added].

And then at para 49:

We note the 30-month ceiling would also apply to cases going to trial in the provincial court after a preliminary inquiry.

And in footnote three of the majority decision:

While most proceedings with a preliminary inquiry are eventually tried in the superior court, this is not always the case. For example, a case may go to trial in the provincial court after a preliminary inquiry if the province in which the trial takes place offers this as an option (such as Quebec), or if the accused re-elects a trial in the provincial court following a preliminary inquiry. In either case, the 30-month ceiling would apply.

In the matter at hand, the re-election did not occur after a preliminary inquiry but instead before it had commenced. The court made note of the case of D.M.S. v R, 2016 NBCA 71 where on the date of the preliminary inquiry, the accused waived the hearing and re-elected to be heard in provincial court. The parties agreed the ceiling was 30 months and Quigg J.A. accepted the position at para 17:

In my view, when an accused makes an election and requires the Provincial Court to schedule a preliminary inquiry, barring exceptional circumstances such as a very early re-election to be tried by a Provincial Court judge, the case should be treated as one that included a preliminary inquiry even if the preliminary inquiry is eventually waived.

The court noted that this decision was based primarily on the parties’ joint agreement to proceed with the 30-month ceiling. There was no such agreement here and thus the court found the appropriate ceiling was 18 months.

WAS THE DELAY PROPERLY CALCULATED BY THE APPLICATION JUDGE?

The court determined that the period between February 24, 2015 to May 1, 2015 was misclassified as defence delay. Jordan established at paras 61 to 63 that such delay has two components: periods waived by the accused and periods of delay solely caused by the defence. Upon review, this period was not waived and was not attributable solely to the accused.

The period of delay resulting from the appellant’s counsel’s application to get off the record was treated as a discrete exceptional circumstance. In reclassifying the delay, the court found that at the very least, the delay amounted to 697 days or nearly 23 months.

DID THE APPLICATION JUDGE ERR BY MISAPPLYING THE TRANSITIONAL EXCEPTION?

The court noted that the transitional exception is dependent upon whether the Crown relied on the Morin framework which was pre-Jordan. If the Crown has not, it cannot state that it relied reasonably with respect to delay on the law as it previously existed. The court found that the transitional exception should not have been applied. The delay was presumptively unreasonable by a significant margin that exceeded the Jordan guidelines and that the Morin guidelines, which suggested 8 to 10 months for cases in the OCJ, were exceeded substantially. The court found there was no meaningful demonstration that the Crown had been mindful of its 11(b) obligations, even as they existed prior to Jordan and that the seriousness of the charges and the finality of a stay cannot fairly outweigh those considerations.

CONCLUSION

The appeal was allowed, the convictions set aside and the charges were stayed against the appellant.

MCL Nugget: Goddard BCCA

R v Goddard, 2019 BCCA 164

 The Issue

Were certain conditions attached to the appellant’s probation vague, overbroad and unreasonable because there was an insufficient nexus between the conditions and the protection of the public and the appellant’s rehabilitation?

The Answer

Of the 23 conditions imposed by the sentencing judge, the British Columbia Court of Appeal struck conditions 17 and 18 as a violation of the Appellant’s rights under the Charter.

The Fine Print

This was a complicated case where the 29-year-old Appellant pleaded guilty to breaching several conditions of his sentence. His criminal record dated back to 2010 and the offences included sexual offences against minors where the internet was used to contact the young victims.

This matter related to a breach of probation where the Appellant pleaded guilty to possessing a mobile phone capable of accessing the internet contrary to section 733.1(1) of the Code. He was sentenced to 1 day in jail followed by 3 years of probation which included 23 conditions. The defence contended that some of the conditions imposed should not be enforceable as they were unauthorized by government legislation and infringed the Appellant’s Charter rights.

At para 19, the BCCA noted the sentencing judge’s wide discretion in determining conditions on probation and that the appellate court will only intervene should there be an error in principle or a condition that is clearly unreasonable/manifestly inappropriate/renders the sentence unfit.

Under section 732.1(3)(h) of the Code, the sentencing judge is able to impose reasonable probation conditions that are considered desirable for “protecting society and facilitating the offender’s successful reintegration into society.” Along with these purposes, the conditions must also be reasonable and compliant with other provincial and federal legislation, including the Charter. “Reasonable conditions” will generally be linked to the particular offence but that is not an absolute requirement. What is required is a nexus between the offender, the protection of the community and the offender’s reintegration into the community: R v Duguay, 2019 BCCA 53 at para 65. R v Proulx, 2000 SCC 5 also held at para 32 that probation has typically been viewed as a rehabilitative sentencing tool and while it may have punitive aspects of effects, punishment will not be the primary purpose of its imposition.

The impugned conditions read as follows (at paras 33 and 34):

Condition 17: You shall, upon your consent, allow any peace officer and/or probation officer to examine any device in your possession and permit any peace officer to bring any device in your possession to the police department to verify compliance with this order. You shall provide any peace officer and/or probation officer any passwords, access codes and manuals associated to any device in your possession to enable examination of the device. If you do not consent, you shall forthwith report to your probation officer and thereafter report daily to him or her until the probation officer decides that daily reporting is not necessary [Emphasis added].

Condition 18: You shall, upon your consent, allow any peace officer and/or probation officer to access your residence to confirm your compliance with the conditions of this order. If you do not consent to allow a peace officer and/or probation officer access to your residence to confirm compliance with conditions of this order, you shall forthwith report to your probation officer and thereafter report daily to him or her until the probation officer determines that daily reporting is no longer necessary [Emphasis added].

The Court noted at para 41 that, “[the Appellant] can refuse to provide consent to these searches. Significantly, however, his refusal comes at the price of daily reporting to his probation officer for as long as the probation officer deems necessary.” The Court found that the threat of daily reporting, should the Appellant not consent to a search, to be extraneous to the purpose of preventing him from using the internet to prey upon children. At para 48, the Court noted about the condition, “[…] it is, in its effect, a retaliatory and punitive measure that appears to be designed to pressure the appellant to waive his constitutional right.”

As noted at para 49, “[f]or a waiver of constitutional rights to be valid it must, among other things, be voluntary, meaning that the individual can choose one course of conduct over another, free from coercion.” The Court stated at para 53 that without the daily reporting provisio, the conditions would likely be acceptable. However, the conditions would simply state that the Appellant could consent to a search and this was unnecessary. Both of the conditions were struck from the Appellant’s probationary order.

MCLNugget: CC ONSC

R v CC, 2019 ONSC 3232

The Issue

Under section 715.1 of the Criminal Code, what is a reasonable amount of time for a videotaped statement alleging sexual assault against a minor complainant to be made following the alleged offence?

The Answer

In the case at bar, the court determined that the videotaped statement was made at least 3 years and 5.5 months after the 15-year-old complainant was alleged to have been sexually assaulted. The court stated at paragraph 27 that, “it is not unusual for a victim of sexual assault to be reluctant in reporting the incident” and admitted the statement as sufficiently contemporaneous in the circumstances.

The Fine Print

Section 715.1 establishes a statutory exception to the hearsay rule for videotaped evidence and sets out criteria to be met which include: 

  • The victim in the video recording was under 18 years old when the alleged offence occurred;

  • The video recording was “made within a reasonable time after the alleged offence”;

  • The video victim “describes the acts complained of” in the video recording;

  • The victim can testify and “adopts the contents of the video recording”;

  • The judge does not believe that the admission of the video recording “would interfere with the proper administration of justice”.

The court noted at paragraph 28 that one of the reasons for this section was to reduce the likelihood of further trauma on the complainant.

The defence had relied upon the Ontario Court of Appeal case of R v S(P), 2000 CarswellOnt 1341 (CA) where a 2-year delay in making a videotaped statement after a sexual assault was determined to be “borderline” but reasonable. The complainant there was 8-years-old at the time of the alleged incident and 12 when the trial commenced. The defence argued several indicia, such as intimidation and embarrassment were present in that case, but not at the case at bar and thus the statement cannot be justified as reasonable after such a delay.

Ultimately the court grated the Crown’s application, stating at paragraph 28 that, “[t]his is a Judge alone trial and the defence will have the usual rights to cross-examine the complainant on all of her evidence including the videotaped evidence.”

MCLNugget: PN ONCA

R v PN, 2019 ONSC 2858  

The Issue

When examining a potential surety during a bail hearing, should the Crown be allowed to question this individual about conversations that s/he had with the accused related to the accused’s charges? 

The Answer

The court found that yes – asking a potential surety whether the charges had been discussed with them by the accused is acceptable. Justice O’Marra reasoned that such questioning was not improper here as 1) such questions do not imperil the fair trial interest of the accused; 2) the presiding justice has an overriding discretion to limit such questions to prevent abusive or protracted proceedings; and 3) such questions may be relevant to the strength of the Crown’s cases and potentially the protection of the public.

The Fine Print

The Defence objected to the questioning of the prospective surety, citing R v KK, 2019 ONSC 1578 which prohibited questioning in the following situations:

  1. The question is an attempt to unfairly exploit the bail hearing to discover the defence’s position and elicit evidence of the accused’s admissions;

  2. The bail hearing cannot be used for the ulterior purpose of augmenting the Crown’s case, but only to determine whether and on what conditions the accused should be held on.

Justice O’Marra did not find that these situations applied to the case at hand for three reasons:

  1. The questions asked would not violate the accused’s right to a fair trial.

  2. A justice overseeing the bail hearing is not restricted to evidence that would be admissible at trial but to a broad scope of evidence as classified under section 518 of the Code. The Justice has the authority to control questioning that is irrelevant.

  3. Section 518(1) (d.2) of the Code provides that the Court shall take into consideration any evidence submitted regarding the need to ensure the safety or security of any victim or of a witness to an offence. Questions to prospective sureties related to information received from the accused since arrest may be very relevant to the protection of the public.