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'Robust' approach to timely trials, says defence lawyer

Thursday, October 13, 2016 @ 8:00 PM | By Cristin Schmitz

Defence counsel say the Ontario Court of Appeal has served notice to lower courts that the s. 11(b) Charter right to trial within a reasonable time must be vigorously enforced in the wake of the Supreme Court’s speedy trial blockbuster handed down this summer.

In its first two rulings applying July’s guidance from the top court in R. v. Jordan 2016 SCC 27, the Court of Appeal rolls out a step-by-step roadmap showing how the s. 11(b) framework and analysis works in practice.

Its 116-page judgment in R. v. Manasseri 2016 ONCA 703 and 31-page decision in R. v. Coulter 2016 ONCA 704 — handed down by different appellate panels Sept. 28 — elaborate on important analytical concepts from Jordan that are used to determine whether s. 11(b) is violated in a given case, such as whether the Crown has established that presumptively unreasonable delays are actually reasonable due to “exceptional circumstances,” and what amounts to a “transitional exceptional circumstance” enabling a court to make allowances for the parties’ reliance on the pre-Jordan state of the law.

“The court is definitely signalling a robust approach to 11(b),” remarked Howard Krongold of Ottawa’s Abergel, Goldstein and Partners, who won a stay for appellant George Kenny. “The case signals that the courts are becoming more serious in their treatment of delay since Jordan. The ruling in [Kenny’s case] in particular, emphasizes that Crowns engaged in complex prosecutions have to be diligent and proactive to keep delay to a minimum and will have to consider how the charging decisions they make affect each of the accused individually in terms of their constitutional right to a timely trial.”

In Manasseri, Kenny and co-accused Charlie Manasseri were convicted by an Ontario Superior Court jury in relation to the death of a 22-year-old man celebrating his birthday in an Ottawa bar on New Year’s Eve in 2004. The victim sustained head injuries in successive — but separate —assaults by the co-accused. Based on fresh evidence, the Court of Appeal ordered a new trial for Manasseri, who had been convicted of second degree murder. However Justice David Watt stayed proceedings against Kenny because the panel concluded his s. 11(b) Charter right to trial within a reasonable time was violated.

Kenny’s 2012 conviction for two counts of assault causing bodily harm (reduced by the jury from manslaughter) came more than seven years (86 months) after he was first charged in 2005. Setting aside the 18 months of delays owing to a certiorari application and related appeal proceedings in the case, Crown and defence counsel agreed that Kenny experienced total delay of 68 months. None of that delay was attributed to the defence.

Jordan holds that for superior court trials, 30 months is the ceiling at which delay not waived or attributable to the defence is presumed to be unreasonable, barring “exceptional circumstances” established by the Crown to show the delay was reasonable. Eighteen months is the presumptive ceiling for provincial court trials.

“The trial Crown’s conduct of this case is a poster child for the culture of complacency towards delay so rightly condemned in Jordan,” Justice Watt wrote for Justices Peter Lauwers and Grant Huscroft. Justice Watt cited, among other problems, “a leisurely approach to disclosure. Letting the schedule of Manasseri’s then-counsel control setting the date for a preliminary inquiry more than two years after the accused were charged. Failure to pay any real heed to the s. 11(b) interests of Kenny whose counsel had been advancing them from the outset.”

While Manasseri was an unusual murder case in some respects, “it really should inform how Crowns are prosecuting cases,” Krongold suggested. “The decisions the Crowns have traditionally made about joinder, or the kinds of evidence they called, are going to be assessed [by courts] more rigorously to determine if they’re decisions respecting the accused’s right to a timely trial — and that’s a sea change, for sure.”

Brendan Crawley, a spokesman for the Ontario Ministry of the Attorney General, did not say whether the Crown will seek leave to appeal Manasseri to the Supreme Court — given that the decisions are still within the appeal period.

“We are developing a plan to respond to the Jordan decision,” he noted by e-mail. “Since July, the Ministry has been working with Crowns, court services staff, the judiciary and the criminal defence bar, and we have taken a number of steps: (1) assessing the state of cases in the Superior Court of Justice and the Ontario Court of Justice; (2) local bench, Crown and bar meetings to discuss local solutions; and (3) in September the Ontario Court of Justice and the Ministry of the Attorney General hosted a criminal justice sector workshop which focused on planning justice sector responses to Jordan.”

Crawley added: “We must improve the trial process, and we are optimistic that by working with our justice sector partners, we can achieve this. The lessons of Askov have not gone unnoticed by this Ministry and necessary steps towards transitioning to the new s.11(b) regime are well under way.”

Richard Litkowski of Toronto’s Hicks Adams, who argued James Coulter’s appeal, told The Lawyers Weekly “that both decisions are signals to defence counsel, Crowns and trial judges, that concerted, proactive efforts must be displayed moving forward, post-Jordan, to deal with the ‘culture of complacency’ that the new Jordan presumptive ceilings are designed to address.”

In Coulter, a different appellate panel of Chief Justice George Strathy and Justices Eileen Gillese and Gladys Pardu, dismissed the accused’s argument that his Ontario Court of Justice conviction for accessing and possessing child pornography should overturned, and the proceedings stayed, for violating his s. 11(b) rights. Charged in November 2011, he was not convicted in provincial court until April 2014, almost 29 months later.

“The Court of Appeal decided that 17 months was the correct actionable delay — which number would have been basically the same whether correctly analyzed under the old Morin/Askov framework, or under the new Jordan framework,” Litkowski noted by e-mail. “So this is one case where it may well be that under the previous, more flexible framework of analysis, a stay may have issued. But under the new [Jordan] ‘ceiling approach,’ since this fell just under the 18-month [presumptive] ceiling for Ontario Court of Justice cases, it was difficult on the record as it stood (the trial took place well before Jordan was decided) to satisfy the onus that now exists on the defence once the case falls below the presumptive ceiling. Also, this case fell within the ‘transitional principles’ which take into account the parties’ reliance on the state of the law as it existed pre-Jordan.”

In Manasseri, Justice Watt rejected the Crown’s position the delays were reasonable because they flowed inevitably from the joint nature of the pair’s trial (which the Crown argued was necessitated by the public interest) and from contradictions and complexities that emerged over time in various experts’ opinion evidence about who caused the death and how. Meanwhile Kenny’s counsel at first instance repeatedly tried to get an early trial date and to have his client’s trial severed from Manasseri’s. He also actively resisted, and objected to, the delays all along the way.

“Where the Crown, as here, chooses to prosecute both accused jointly, it must remain vigilant that its decision to proceed jointly does not compromise the s. 11(b) rights of an individual accused,” Justice Watt stressed. “The Crown is disentitled to close its eyes to the circumstances of an accused who has done everything possible to move a case along, only to be held hostage by his or her co-accused and the inability of the system to provide earlier dates.”

In a final footnote apt to be controversial among both defence and Crown counsel, Justice Watt admonished “after Jordan, with full disclosure as required by Stinchcombe, the Crown should give very serious consideration to preferring direct indictments to fulfil its mandate under s. 11(b) and to ensure, to the extent reasonably possible, that criminal trial proceedings do not exceed the presumptive ceilings set by Jordan.”

Direct indictments under s. 577(a) of the Criminal Code have been infrequent in Ontario.