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Decision of the Week

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pineda, 2019 ONCA 935

DATE: 20191127

DOCKET: C62380

Watt, Miller and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Chris Denny Pineda

Appellant

Naomi M. Lutes, for the appellant

Caitlin Sharawy, for the respondent

Heard: September 12, 2019

On appeal from the conviction entered on May 22, 2013 by Justice Steve A. Coroza of the Ontario Court of Justice.

REASONS FOR DECISION

Background

[1]           The appellant seeks to set aside his guilty pleas on the basis that they were uninformed. Had he known the immigration consequences of his guilty pleas, he maintains that he would have instead proceeded to trial. For the reasons set out below, we allow the appeal, set aside the guilty pleas, and order a new trial on all counts of the information.

[2]           The appellant, an American national, came to Canada at age three and thereafter became a permanent resident. His four dependent children all reside in Canada, as do his mother and developmentally challenged brother. He conducted his business in Canada and considered himself Canadian. However, he never applied for, or received, Canadian citizenship.

[3]           On November 1, 2012, the appellant was charged with three firearm-related offences under the Criminal Code and one possession offence under the Controlled Drugs and Substances Act. He plead guilty to three of the offences – careless storage of a firearm, unlawful possession of a loaded prohibited firearm, and possession of cocaine – and a fourth charge was withdrawn. Pursuant to a joint submission he received a global sentence of 15 months incarceration less time spent in pre-trial custody, followed by 36 months probation. As a result of these convictions and sentences, he was stripped of his status as a permanent resident and ordered deported to the United States, with no right of appeal. He now resides in the U.S. and is not permitted re-entry into Canada where his children continue to reside. 

[4]           The appellant now seeks to introduce fresh evidence to establish that his guilty pleas were uninformed because he was unaware of the serious immigration consequences of them.

Analysis

[5]           To be valid, a guilty plea must be voluntary and unequivocal. It must also be informed, in the sense that the accused must be aware of the allegations made against him, and of the effect and “legally relevant collateral consequences” of that plea: R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at paras. 3-4. Legally relevant collateral consequences include immigration consequences. To set aside a presumptively valid plea, the appellant must establish that: (i) he was unaware of a legally relevant consequence of the plea, assessed objectively; and (ii) he has suffered prejudice, in the sense that he would have acted differently had he been properly made aware of the consequences: Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 33.

[6]           In the fresh evidence, the appellant states that although he was advised by his lawyer that there might be immigration consequences to his guilty pleas, and that he should seek the advice of an immigration lawyer, he did not understand that deportation would be within the range of possible consequences. He had thought he might be subject to questioning by an immigration official, or subject to an immigration hold. He did not consult an immigration lawyer. Trial counsel, in his affidavit, did not contradict this evidence. Trial counsel agreed that although he had a conversation with the appellant and alerted him that there might be immigration consequences, he likely did not discuss any specific immigration consequences with the appellant. Trial counsel’s evidence, at its highest, was that the word “deportation” may have come up.

[7]           There was no plea comprehension inquiry conducted in court. The appellant’s counsel advised the trial judge that the plea inquiry had been conducted with the appellant in advance. The trial judge was not made aware of the appellant’s immigration status or that immigration consequences could flow to the appellant as a result of his convictions.

[8]           The respondent concedes that the fresh evidence should be admitted. We are satisfied that the fresh evidence meets the Palmer criteria, as modified to assess the validity of a guilty plea, and ought to be admitted: R. v. Sangs, 2017 ONCA 683, at para. 7.

[9]           It is the respondent’s position that, at a minimum, the appellant was wilfully blind as to the immigration consequences arising from his plea. The respondent argues that the appellant should not be permitted to rely upon his wilful blindness in support of the claim that his pleas were involuntary: R. v. Girn, 2019 ONCA 202 at 62-3, 79. 

[10]        Based on the record before us, however, it seems clear that the appellant did not know the serious jeopardy he was in. While his lawyer told him that there may be serious immigration consequences arising from his guilty pleas, his lawyer admits that he did not “get into the specifics”. Rather, he told the appellant that he should seek the advice of an immigration lawyer. Knowing that the in-custody appellant had not done so, and did not know the “specifics” about the consequences of a guilty plea, the lawyer assisted the appellant with entering his plea. 

[11]        The consequences were, of course, grave. Not only was the appellant deportable after the plea because of his permanent resident status, but the length of sentence meant that he would not have a right of appeal from such an order. 

[12]        On the basis of the fresh evidence, we are satisfied that the appellant had not been informed by his counsel and was not otherwise aware of the potentially serious immigration consequences arising from his guilty pleas, specifically that he could be deported without a right of appeal. 

[13]        With respect to prejudice, we accept that the appellant would have elected to stand trial if he had been aware of the immigration consequences of his pleas. In his reasons for sentence, the sentencing judge noted the Crown’s case was circumstantial, there were triable issues including “issues with respect to whether or not the Crown could prove beyond a reasonable doubt that he was in fact in possession of the item that’s been exhibited…”. The consequences of deportation were devastating to the appellant’s relationship with his dependent children. The appellant states that had he known he would be facing deportation without a right of appeal, he would have taken all available steps in an effort to stay in Canada and keep his family together. One of those steps would have been pleading not guilty in the face of what he characterized as a weak Crown case. 

DISPOSITION

[14]        We admit the fresh evidence, set aside the pleas of guilty and consequent convictions, and order a new trial on all counts in the information.

“David Watt J.A.”

“B.W. Miller J.A.”

“Fairburn J.A.”




Decision of the Week – Appeal Court – Delay

Unreasonable delay results in conviction being set aside and stay of proceedings. Read the case below.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Shaikh, 2019 ONCA 895

DATE: 20191113

DOCKET: C64925

Watt, Lauwers and Paciocco JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Muhammad Daniyal Shaikh

Appellant

Ian R. Smith, for the appellant

Katie Doherty, for the respondent

Heard: October 7, 2019

On appeal from the conviction entered on May 17, 2017 by Justice Marcella Henschel of the Ontario Court of Justice.

Paciocco J.A.:

OVERVIEW

[1]          Muhammad Daniyal Shaikh appeals his convictions on serious charges arising out of a confrontation he had with a man alleged to have sexually assaulted Ms. Jawairia Amer, his former common law partner. The Crown proved to the satisfaction of a trial judge that on October 4, 2014, Mr. Shaikh threatened the man with a handgun and then robbed him by taking his cellphone. Accordingly, Mr. Shaikh was convicted of robbery with a firearm, contrary to Criminal Code, s. 344(1); uttering a death threat contrary to Criminal Code, s. 264.1; and carrying a concealed weapon, a handgun, contrary to Criminal Code, s. 90(1). He received a global sentence of five years incarceration, less time served. A charge of pointing a firearm at another person contrary to Criminal Code, s. 87(2), for which Mr. Shaikh was also found guilty, was stayed to avoid double jeopardy.

[2]          In the course of the proceedings, Mr. Shaikh brought two Charter applications pursuant to s. 11(b) to have the charges against him stayed for unreasonable delay. The first application was heard by an application judge before the trial. The second application was brought before the trial judge, after the trial judge rendered her decision on the merits, and while Mr. Shaikh was awaiting sentence. 

[3]          Mr. Shaikh’s only ground of appeal is that both judges erred in denying his s. 11(b) applications to stay his prosecution for unreasonable delay.

[4]          For reasons that follow, I would allow Mr. Shaikh’s appeal, based on errors committed by the application judge. The s. 11(b) application should have been granted, and the proceedings stayed. I would set aside Mr. Shaikh’s convictions and the finding of guilt contrary to s. 87(2) of the Criminal Code and stay the proceedings against him.

[5]          It will assist in understanding the material facts and issues in this appeal if I provide, at the outset, a brief overview of the legal tests to be used in determining whether the delay in prosecuting charges has been unreasonable, contrary to s. 11(b). The analytical framework to be applied was established in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, and helpfully synthesized in R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 32, 34-40, which I summarize here.

[6]          The initial step in the Jordan framework is to calculate the “total delay”, the period from the charge to the actual or anticipated end of trial. Then “defence delay” is identified and calculated. The entire “defence delay” is then subtracted from the “total delay” to identify the “net delay”. If the “net delay” exceeds the presumptive ceilings identified in Jordan of 18 months for cases going to trial in the provincial court or 30 months for cases going to trial in the superior court or in the provincial court after a preliminary inquiry, the delay is presumptively unreasonable. 

[7]          To rebut that presumption, the Crown must establish “exceptional circumstances”. In general, “exceptional circumstances” will be established in two ways. 

[8]          First, the Crown may show that “discrete events” have occurred due to unforeseeable circumstances. If deducting the delay caused by discrete events from the net delay produces a “remaining delay” that is below the relevant presumptive ceiling, the delay in prosecuting the charges is presumed to be reasonable. 

[9]          Or, the Crown may satisfy the court that the case is particularly complex such that the time the case has taken is justified.

[10]      In transitional cases, where the charge was laid before Jordan was decided on July 8, 2016, but where the actual or anticipated end of the trial falls after that date, a “transitional exceptional circumstance will apply if the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed”: Jordan, at para. 96. 

[11]      The issues that must be resolved in this appeal include whether the 18-month or the 30-month presumptive ceiling should apply where, before a scheduled preliminary inquiry is completed, the accused re-elects to be tried in the provincial court. 

[12]      This appeal also raises case specific issues relating to the proper identification of the defence delay, whether a period of delay resulting from a Crown requested adjournment is a discrete event, and whether the delay in this case is justifiable under the transitional exceptional circumstance. It is therefore necessary to set out the material facts in some detail.

MATERIAL FACTS

[13]      On October 6, 2014, Mr. Shaikh was charged with the offences for which he was convicted, as well as other related offences. Ms. Amer, who was present when he threatened the victim with a gun, was also charged on the same information. 

[14]      After being released on bail, Ms. Amer absconded, leaving the jurisdiction. A bench warrant was issued for her arrest. Matters nonetheless proceeded against Mr. Shaikh. 

[15]      After the first pretrial, February 24, 2015, the Crown advised the assignment court justice that a further pretrial was required, as the Crown needed to “speak to [his] boss” about a potential resolution. The matter was put over again so that the Crown could arrange to have a new information drafted. Mr. Shaikh’s counsel also required time to prepare and get instructions because new disclosure had been received. 

[16]      By May 1, 2015, Mr. Shaikh had received material disclosure and the second judicial pretrial was completed. 

[17]      On that date, May 1, 2015, a four-day preliminary inquiry was scheduled. Initially Mr. Shaikh was offered dates commencing on January 18, 2016, but declined those dates because his counsel was not available until March. The next available dates of March 7-10, 2016 were set. 

[18]      On January 4, 2016, eight months after the preliminary inquiry dates were set, the Crown sought and obtained an adjournment of the preliminary inquiry. The basis for the adjournment was that the complainant had prepaid air fare for a trip out of the country that would overlap with the March preliminary inquiry dates. The Crown did not attempt to preserve any of the March dates to call other witnesses. Mr. Shaikh consented to the adjournment but did not waive his s. 11(b) rights. The preliminary inquiry was rescheduled for October 4-7, 2016.

[19]      On June 27, 2016, Ms. Amer appeared at a bail hearing, having been arrested upon her return to the jurisdiction.

[20]      When the first date of the scheduled preliminary inquiry arrived, October 4, 2016, Ms. Amer appeared without counsel. The Crown withdrew the charges against her. The matter could not proceed against Mr. Shaikh because the court could not accommodate the case.

[21]      Again, on October 5, 2016, the court could not accommodate the scheduled preliminary inquiry.

[22]      Once again, on the morning of October 6, 2016, the court could not accommodate the scheduled preliminary inquiry. It was only on the afternoon of October 6, 2016, the third of four days set for the preliminary inquiry, that the court was in position to commence. It did not. 

[23]      Here is what happened on October 6, 2016. Counsel for Mr. Shaikh brought an application to get off the record. In his view, Mr. Shaikh was not communicating with him and had lost faith in him, and he was unable to get instructions. After Mr. Shaikh told the preliminary inquiry judge that he had not lost faith in his counsel and wanted to proceed, counsel’s application to get off the record was denied. However, the preliminary inquiry judge put the matter over until the next day to permit counsel to prepare to deal with an unexpected change in circumstances, specifically, the Crown’s withdrawal of charges against Ms. Amer, and its expressed intention to call her as a witness at the trial. As a result, defence counsel needed time to determine whether to call her as a witness at the preliminary inquiry and how to proceed.

[24]      The preliminary inquiry judge commented when adjourning the preliminary inquiry, “[t]his matter is not going to finish tomorrow, given the number of witnesses”.

[25]      Before the matter was adjourned, the prosecuting Crown explained to the preliminary inquiry judge his reasons for withdrawing the charge against Ms. Amer. I will recount those reasons later, where they bear upon the issues in this appeal. 

[26]      On October 7, 2016, the last day of the scheduled preliminary inquiry, Mr. Shaikh’s counsel advised the preliminary inquiry judge that he and his co-counsel had to withdraw for ethical reasons. The preliminary inquiry judge accepted this, and Mr. Shaikh’s counsel and his co-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.

[27]      On November 22, 2016, new counsel appeared for Mr. Shaikh and indicated that Mr. Shaikh wished to re-elect to be tried before the provincial court, the Ontario Court of Justice.

[28]      On November 28, 2016, that re-election occurred with the consent of the Crown. No s. 11(b) waiver was secured from, or offered by, Mr. Shaikh.

[29]      Two days later, on November 30, 2016, trial dates were set for March 27-31, 2017. The court had offered February 13-17, 2017, however Mr. Shaikh’s new counsel declined those dates, as he was unavailable. 

[30]      On November 30, 2016, Mr. Shaikh’s new counsel expressed Mr. Shaikh’s intention to bring a s. 11(b) application in advance of the trial. He soon did so, and on March 3, 2017, an application judge heard the motion. The matter was adjourned to the first day set for trial, March 27, 2017. Before that date was reached, however, the case was traversed by the court to March 28, 2017, and the first day set for trial was lost. 

[31]      On March 28, 2017, the application judge asked the parties several follow-up questions. Noting that the trial could not be reached that day, she notified the parties that they would receive her ruling the next morning. 

[32]      On March 29, 2017, the application judge dismissed the s. 11(b) application, and the trial was postponed yet another day until March 30, 2017, when it began.

[33]      In her March 29, 2017 reasons, the application judge quantified the total delay from the charge (October 6, 2014) to the scheduled beginning of the trial (March 27, 2017) to be 2 years, 5 months and 21 days, or 901 days.[1] She then noted that since the case was not reached on the first few scheduled trial dates, the matter would have to be continued and would not end on March 31, 2017, as originally anticipated. She determined based on courtroom availability and the trial estimate that the case would likely conclude on April 12, 2017. She therefore took April 12, 2017 as the end of the trial. The total delay she was working with was therefore 919 days, or 30.2 months.[2]

[34]      Having calculated the total delay, she went on to consider the net delay. She accepted the parties’ net delay calculation, which was based on the defence concession that there were three periods of “defence delay”: 

·        February 24, 2015 to May 1, 2015, the time that lapsed between the first pretrial and the day on which the preliminary inquiry dates were set (66 days); 

·        January 18, 2016 to March 7, 2016, the period after Mr. Shaikh declined preliminary inquiry dates because of the unavailability of his counsel until the first date set for preliminary inquiry (49 days); and 

·        October 6, 2016 to March 27, 2017, the period of delay after Mr. Shaikh’s former counsel applied to be removed from the record until the first date set for trial (172 days). 

[35]      Based on the defence delay concessions, the application judge ultimately calculated the net delay to be 20 months. 

[36]      The 20-month period the application judge worked with is clearly an approximation. Unfortunately, it understates the actual net delay that arises from the application judge’s own figures. In fact, the total defence delay arising from the identified periods of defence delay was 287 days. If deducted from the 919 days of total delay, the net delay would appear to be closer to 21 months, specifically, 632 days, or 20 months, three weeks, and two days, or 20.8 months.

[37]      During the s. 11(b) application, the Crown urged the application judge to deduct from the net delay a further period of approximately seven months caused by the Crown requested adjournment to accommodate the complainant’s planned trip. The Crown argued that this delay was caused by an “exceptional circumstance”, a discrete unforeseeable event outside of the Crown’s control. The application judge refused. She noted that the dates had been set ten months down the road and no evidence had been presented as to when the airplane ticket was booked, what the purpose of the trip was, or if efforts were made to ascertain the availability of the complainant. Nor was there evidence of any effort by the Crown to expedite the second set of dates.

[38]      Notwithstanding Mr. Shaikh’s re-election, the application judge applied the 18-month presumptive ceiling, finding the 20-month net delay she had identified to be presumptively unreasonable. She concluded, however, that the presumption of unreasonable delay was rebutted, as this was a transitional exceptional circumstance case. Until July 8, 2016, the R. v. Morin, [1992] 1 S.C.R. 771 regime applied. The application judge accepted the agreement of the parties that the institutional and Crown delay under the Morin guidelines was 15.5 months. This amount of delay exceeded the eight to ten months Morin guideline for provincial court trials. But she concluded that this was only a guideline and departed from it because: the trial was taking place in a busy jurisdiction lacking institutional resources; the matter was moderately complex; the Crown withdrew charges against Ms. Amer to move the matter along; the trial dates were secured promptly; and the charges were serious. She found the prejudice to Mr. Shaikh from the delay to be “troubling”, but decided that “overall, the prejudice in this matter is not so serious as to warrant a stay.”

[39]      The application judge then concluded:

When I take all issues into account, this matter falls extremely close to the line of what I would consider acceptable delay. Any further delay in this matter, even as much as a month, would likely cause me to decide otherwise. [Emphasis added.][40]      On March 30, 2017, the case commenced before another judge, the trial judge. Although Mr. Shaikh’s lawyer was ill and could not attend on April 7, 2017, the matter concluded on April 12, 2017 as the application judge had expected. The trial judge reserved her decision on the merits. She delivered that decision a little over a month later, on May 17, 2017. 

[41]      On June 30, 2017, while awaiting sentencing, Mr. Shaikh renewed his s. 11(b) application. Relying on the application judge’s comment that even as much as a month of additional delay would likely have caused her to reconsider and stay the proceedings, Mr. Shaikh argued that the month of deliberation delay before conviction mattered and that a stay was now required. 

[42]      The trial judge dismissed the application on July 20, 2017, finding that deliberation delay is not to be included in calculating periods of trial delay under Jordan.

ISSUES

[43]      Mr. Shaikh appeals both s. 11(b) rulings, arguing that both judges erred in quantifying the net delay: the application judge erred by mischaracterizing periods of delay and misapplying the transitional exceptional circumstance; and the trial judge erred by finding that the deliberation delay is not included in calculating the periods of delay under Jordan.

[44]      The appeal Crown has raised another central issue in response. She urges that since Mr. Shaikh initially elected a superior court trial and only re-elected to have a provincial court trial after the dates for the preliminary inquiry arrived, the appropriate period of presumptively unreasonable delay should be the 30-month period that would have applied had the preliminary inquiry been completed.

[45]      The analysis will proceed in the following order: 

A.           What presumptive period applies, 18 months or 30 months?

B.           Did the application judge err in calculating the period of delay?

C.           Did the application judge err by misapplying the transitional exception?

[46]      For reasons that will be explained, these inquiries make it unnecessary to consider the correctness of the trial judge’s s. 11(b) ruling or the issue of deliberation delay.

ANALYSIS

A.           WHAT PRESUMPTIVE PERIOD APPLIES, 18 MONTHS OR 30 MONTHS?

[47]      Jordan established two periods for determining whether net delay is presumptively unreasonable: 18 months for trials in the provincial courts, and 30 months for trials in the superior courts: at para. 32. For more than two years, Mr. Shaikh’s case proceeded as if it was a superior court matter, until his re-election to trial before the provincial court on November 28, 2016. This raises the question of whether the 30-month presumptive period applicable in superior court proceedings applies, or the 18-month period applicable to provincial proceedings. 

[48]      If the 30-month presumptive delay period is to be applied, Mr. Shaikh’s appeal would be easily dismissed. The delay would not be presumptively unreasonable since the total delay was 30.2 months, and Mr. Shaikh has correctly conceded that the 49 days between January 18, 2016 to March 7, 2016 is defence delay (the period after Mr. Shaikh declined preliminary inquiry dates because of the unavailability of his counsel to the first date set for preliminary inquiry). As explained, under the Jordan regime, this defence delay is to be deducted from the total delay in arriving at the net delay that is to be used in determining whether the delay is presumptively unreasonable. Even leaving aside other contentious periods, the maximum net delay would therefore be 870 days (or 28.6 months), which is less than the 30-month period of delay required to trigger the presumption of unreasonable delay. Mr. Shaikh has offered no evidence and made no argument that, in his case, a presumptively reasonable period of delay should nonetheless be found to contravene s. 11(b).

[49]      However, on the authority of Jordan, the 30-month presumptive ceiling does not apply in this case. The 18-month presumptive ceiling does. The Jordan majority described how the appropriate ceiling is to be selected, at para. 46:

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].

[50]      Later in the decision, at para. 49, the Jordan majority repeated this:

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

[51]      Then again 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. 

[52]      Here, the re-election to provincial court did not occur after the preliminary inquiry, but before it commenced. Applying the standards expressed in Jordan, the 18-month period applies.

[53]      I appreciate that Jordan did not involve a re-election, and so this issue was not directly before the court. However, Jordan was not about delay in a provincial court trial either. In the interests of certainty and simplicity, the majority nonetheless established an authoritative framework for provincial court trials as well, setting a presumptive period of unreasonable delay of 18 months. In the circumstances, I do not feel at liberty to interpret the criterion specifically identified by the Jordan majority as a passing comment when it is manifest that the majority was delineating how its presumptive delay framework was to apply.

[54]      I understand the attraction of the appeal Crown’s submission that, instead, a case-by-case approach should be used to determine whether a re-election occurs late enough to warrant imposing the 30-month period of presumptive delay. The difference in substance between a re-election after a four-day preliminary inquiry, and a re-election during the scheduled dates but before the preliminary inquiry is completed does seem negligible. However, it would grate against the objective of Jordan to evaluate which presumptive ceiling applies on an after-the-fact, case-by-case basis during s. 11(b) motions. The Jordan majority was attempting to establish a bright line structure for s. 11(b) cases using a framework that “accounts for case-specific factors”: at para. 5. The Jordan majority established the regime it did to overcome the previous, “highly unpredictable”, “unduly complex”, and endlessly flexible approach that does little to prevent delay by giving clear guidance in advance: Jordan, at paras. 31-37. The formula thrice stated in Jordan for when the 30-month period applies to provincial court trials must therefore be taken at face value and used as the bright line measure. Since re-election occurred before and not after the preliminary inquiry, this case falls on the wrong side of that bright line for the Crown.

[55]      In advocating for a 30-month period of presumptive delay, the appeal Crown relied upon the decision in D.M.S. v. R., 2016 NBCA 71, 353 C.C.C. (3d) 396. In D.M.S., on the date set for the preliminary inquiry, the accused waived his preliminary inquiry and re-elected to be tried in the provincial court. The parties agreed that in these circumstances, the presumptive ceiling was 30 months. Quigg J.A. accepted this position, commenting, 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.

[56]      With respect, the case-by-case approach applied in D.M.S. cannot be squared with the language or ethic of Jordan. This issue does not appear to have been fully litigated before the New Brunswick Court of Appeal because of the agreement between the parties, and the guidance provided by the Jordan decision as to when the 30-month presumptive period applies in provincial court trials may not have been brought to the court’s attention.

[57]      The bright line approach that I consider myself compelled to follow does not enable the defence to manufacture a s. 11(b) delay by re-electing into a shorter presumptive period of delay. Section 561(1) of the Criminal Code requires Crown consent before the accused can re-elect to a trial by a provincial court judge. Where re-election would create the risk of s. 11(b) problems, the Crown has the authority to, and should, refuse consent, absent a s. 11(b) waiver.

[58]      The application judge was therefore right to apply an 18-month period of presumptively unreasonable delay. 

B.           DID THE APPLICATION JUDGE ERR IN CALCULATING THE PERIOD OF DELAY?

[59]      The appeal Crown agrees that the application judge erred in calculating the period of delay, although in the appeal Crown’s view, those errors caused the application judge to exaggerate the remaining delay. The appeal Crown argues that since the remaining delay is shorter than the delay the application judge was working with, her ultimate decision remains correct and should not be disturbed. Specifically, the appeal Crown claims three errors, two that would benefit the Crown, and the other, Mr. Shaikh. I will begin with the alleged errors that would benefit the Crown. 

[60]      Most significantly, the appeal Crown argues in her factum that the delay caused by the adjourned preliminary inquiry to accommodate the complainant’s travel plans should have been treated as a discrete event and deducted from the net delay, thereby reducing the remaining delay by approximately seven months.[3] The appeal Crown was right not to press this submission in oral argument. Leaving aside that the Crown had the lawful authority to compel the complainant to attend the scheduled court dates and testify notwithstanding his scheduled trip, the application judge was correct. The evidentiary record presented by the Crown was inadequate to show that the delay could not have been foreseen, or that the Crown made efforts to expedite the second dates. Notably, the Crown did not seek to preserve any of those dates for other evidence.

[61]      The appeal Crown also argues that the application judge erred in not deducting the single trial date that was lost when defence counsel became ill on April 7, 2017. I agree that this one day should have been deducted from the net delay as a discrete event, but this is de minimis, which may be why the application judge did not address it.

[62]      In contrast, the error conceded by the appeal Crown that benefits Mr. Shaikh is material. Specifically, the application judge erred in calculating the net delay by treating as defence delay the 66-day period between February 24, 2015 to May 1, 2015, the time that lapsed between the first pretrial and the day on which the preliminary inquiry dates were set. Defence delay consists of two components: periods waived by the accused and periods of delay solely caused by the defence: Jordan, paras. 61-63. Mr. Shaikh did not waive this period of delay, nor was it solely attributable to him.

[63]      In fairness to the application judge, this error was triggered by an erroneous concession made by defence counsel during the s. 11(b) submissions that this period was defence delay. However, the Crown accepts that the application judge was wrong to treat this period as defence delay. This error did not arise from a factual finding made by the application judge or an inference drawn, but from an improper designation of the period of delay by the application judge based on uncontentious facts. As counsel for Mr. Shaikh points out, in R. v. Jurkas, this court held that the designation of periods of delay is a matter of law, attracting a standard of correctness: 2018 ONCA 489, 363 C.C.C. (3d) 246, at para. 25, leave to appeal refused, [2018] S.C.C.A. No. 325. An application judge errs by accepting incorrect concessions relating to the characterization of delay.

[64]      Those 66 days should not have been considered defence delay, and therefore, should not have been subtracted from the total delay when calculating net delay. This results in an even longer net delay, above and beyond the presumptive period of 18 months. Even if we assume that the entire 172-day delay after Mr. Shaikh’s former counsel applied to be removed from the record could be attributed to the defence or treated as delay arising from a discrete event (this period is discussed in greater detail below), the net delay would be 697 days[4], which is close to 23 months, as opposed to the 20-month period the application judge worked with. 

[65]      Mr. Shaikh argues that the application judge also erred in accepting as defence delay most of the period between October 6, 2016, when Mr. Shaikh’s former counsel applied to be removed from the record, and March 27, 2017, the first date of trial (172 days in total). I do not agree entirely with Mr. Shaikh. Most of this period should be characterized as either defence delay or discrete exceptional circumstance. For reasons that I will explain, I need not resolve whether the balance of this delay is also properly considered defence delay. I will divide the 172-day period of delay into three distinct periods, which I will approach chronologically.

[66]      First, Mr. Shaikh concedes that the 55-day delay between October 6, 2016, when Mr. Shaikh’s former counsel applied to be removed from the record, to November 30, 2016, when the March trial dates were set after re-election to provincial court, is a discrete exceptional circumstance. This period of delay resulted because Mr. Shaikh’s former counsel applied to get off the record, which was an unforeseen development. During that period, Mr. Shaikh was obtaining new counsel and providing instructions, and therefore, could not move the case along. Mr. Shaikh was correct to make this concession and Crown counsel agreed with this characterization.

[67]      The second period of delay is the 79-day period between November 30, 2016, when Mr. Shaikh re-elected to provincial court, and February 17, 2017, the final day in the first set of trial dates offered to Mr.  Shaikh. Mr. Shaikh contends that this delay cannot fairly be ascribed solely to him as defence delay. In the unusual circumstances of this case, I agree. Ordinarily, delay following re-election, will have been caused solely by the defence and will qualify as defence delay. However, in the unusual circumstances of this case, not all the delay that followed his re-election was triggered by these events. Delay was inevitable even if re-election had not occurred because no court was available for the first two and one-half days of the scheduled preliminary inquiry. As the presiding preliminary inquiry judge recognized, given the number of witnesses to be called, the preliminary inquiry could not be completed in the remaining time and therefore had to be rescheduled, in any event. It is not appropriate to treat a period of delay that would have occurred anyway because of institutional delay as defence delay. 

[68]      However, as the Crown points out, it is impossible to know whether the trial would have been scheduled more promptly had Mr. Shaikh’s former counsel not been removed from the record and had continuation dates been set immediately. Responsibility for precise periods of delay within that 79-day period cannot be calculated with perfect confidence. Perhaps the uncertainty could be resolved pragmatically by splitting responsibility for the delay equally, or it may be that it should be resolved by endeavoring to determine what would probably have happened. If the proper determination would have a material bearing on the outcome of this appeal, I would have to resolve how this 79-day period is to be allocated. Since the characterization of this period of delay will have no impact on the appeal outcome, I will refrain from determining whether the application judge erred in treating this period as defence delay. I will assume, for the purposes of this appeal, that her treatment of this delay as defence delay was correct.

[69]      The final period of the 172-day delay is straightforward. Had Mr. Shaikh’s counsel been available for the period from February 13-17, 2017, the trial dates Mr. Shaikh was offered, the period of delay between February 17, 2017 and March 27, 2017 would not have occurred. This period of 38 days is therefore defence delay.

[70]      In sum, there are 38 days of defence delay and 55 days of exceptional circumstance delay caused by a discrete event. As indicated, I will proceed, for the purposes of this appeal, on the basis that the application judge was correct in treating the remaining 79 days as defence delay without determining the matter. The application judge should therefore have quantified the delay, as follows:

Total Delay: 919 Days (October 6, 2014 to April 12, 2017 – Date of Charge to End of Trial)

Defence Delay: 166 Days 

·        49 Days (January 18, 2016 to March 7, 2016 – the period after Mr. Shaikh declined preliminary inquiry dates because of the unavailability of his counsel to the next date set) 

·        79 Days (November 30, 2016 to February 17, 2017 – the period after Mr. Shaikh re-elected to provincial court to the final day of the first set of trial dates available)

·        38 Days (February 17, 2017 to March 27, 2017 – the period after the earlier set of trial dates that Mr. Shaikh was offered to the date that defence counsel was available)

Net Delay (Total Delay – Defence Delay): 753 Days

Exceptional Circumstance: 56 Days 

·        55 Days (October 6, 2016 to November 30, 2016 – when Mr. Shaikh’s former counsel applied to be removed from the record to the date on which the March trial dates were set after re-election to provincial court).

·        1 Day (April 7, 2017 – when defence Counsel was ill)

Remaining Delay (Net Delay – Exceptional Circumstance): 697 Days (22.9 months)

[71]      The remaining delay in this case was therefore not the 20 months the application judge worked with. At the very least, it was 697 days, closer to 23 months. This is a material difference. Although I am not bound to follow the application judge’s lead, had she quantified the remaining delay as close to 23 months rather than 20 months, given her comment that “any further delay in this matter, even as much as a month, would likely cause [her] to decide otherwise” and find a s. 11(b) breach, she herself would have stayed the proceedings. She therefore erred in her analysis.  

C.           DID THE APPLICATION JUDGE ERR BY MISAPPLYING THE TRANSITIONAL EXCEPTION?

[72]      The burden is on the Crown to satisfy the court that a presumptively unreasonable delay can be saved based on a transitional exceptional circumstance. The application judge erred in finding that the Crown had discharged this burden. 

[73]      The transitional exception depends on the Crown having complied with the Morin framework in the pre-Jordan period. If the Crown has not, it is not in a position to demonstrate that it has relied reasonably with respect to delay on the law as it previously existed. The Supreme Court summarized the Morin framework in Jordan, at para. 30: 

The Morin framework requires courts to balance four factors in determining whether a breach of s. 11(b) has occurred: (1) the length of the delay; (2) defence waiver; (3) the reasons for the delay, including the inherent needs of the case, defence delay, Crown delay, institutional delay, and other reasons for delay; and (4) prejudice to the accused’s interests in liberty, security of the person, and a fair trial. Prejudice can be either actual or inferred from the length of the delay. Institutional delay in particular is assessed against a set of guidelines developed by this Court in Morin: eight to ten months in the provincial court, and a further six to eight months after committal for trial in the superior court.

[74]      Although the application judge did not break down her “length of delay” calculations, she premised her decision on a Morin delay of 15.5 months. It is not necessary to do a precise calculation of the Morin delay to confirm this quantification because even using the 15.5 month Morin delay, the decision cannot stand. The heart of the transitional exception is the unfairness in staying proceedings where the delay occurred because of the trial Crown’s reasonable reliance on the law as it previously existed: Jordan, at para. 96. The application judge erred by failing to give adequate scrutiny to whether the delays that occurred were reasonably incurred.

[75]       I also agree with Mr. Shaikh that the application judge gave inadequate or at times improper attention to the “relevant considerations informing the transitional exceptional circumstances analysis”, as identified by this court in R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, at para. 178, citing R. v. Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741. Those considerations include: “(i) the complexity of the case; (ii) the period of delay in excess of the Morin guidelines; (iii) the Crown’s response, if any, to any institutional delay; (iv) the defence efforts, if any, to move the case along; and (v) prejudice to the accused.” 

[76]      More specifically, the application judge did not properly evaluate the complexity of the case, failed to consider whether the period of delay in excess of the Morin guidelines was reasonably incurred, gave undue credit to the Crown for responding to institutional delay, failed to give adequate recognition to the defence effort to move the case along, and improperly minimized the prejudice. I will explain.

[77]      Complexity of the Case – The application judge gave undue emphasis to the complexity of the case, identifying it as “a moderately complex matter” because the trial estimate was four days. While the time a case requires is not immaterial in judging its complexity, much more is required. This was a simple credibility case. This case did not require an elaborate intake period to accomplish disclosure or to await forensic or expert evidence. It did not need significant preparation time, nor present scheduling challenges because of the number of accused persons. It was a straight-forward matter, and in all the circumstances, the complexity of the case should not have been used as a material makeweight in favour of the transitional exception. 

[78]      Period of Delay in Excess of the Morin guideline – On the application judge’s own calculation, the delay in this case was 15.5 months, more than one and one-half times as long as the outer edge of the Morin guideline of eight to ten months. That excess can easily be identified. That period, and more – seven months of delay, in fact – was attributable to the Crown’s adjournment request to facilitate the complainant’s trip. As the application judge recognized, she was presented with no evidence that could justify this delay. This delay therefore cannot be said to have been reasonably incurred.

[79]      Then when the second set of preliminary inquiry dates did arrive, having been scheduled nine months down the line, the court could not accommodate the hearing. Two and one-half days were lost. A further adjournment was inevitable because of this institutional delay. This additional delay was not reasonably incurred either. 

[80]      Nor was the short adjournment of the trial caused by the loss of two and one-half days of trial time reasonably incurred.

[81]      Yet the application judge did not consider any of this when conducting the holistic examination that the transitional exception requires.

[82]      The application judge did consider appropriately that counsel, including Crown counsel, “were able to secure trial dates” relatively swiftly; however, even this 117-day delay (3.8 months) from November 30, 2016 to March 27, 2017 was unduly minimized. The period of delay is much closer to four months than “the just over three months into the future” described by the application judge. 

[83]      Crown’s Response to Institutional Delay – No other evidence was led of any steps taken by the Crown to ameliorate the delay, although the application judge credited the Crown with addressing delay by withdrawing charges against Ms. Amer. With respect, this is an incomplete characterization of the trial Crown’s reasons, which were the following:

[G]iven that she was not in a position to proceed, I could have asked for an adjournment; that was, that was not an option given the length and history of the matter…. Second possibility was to apply to sever Ms. Amer’s matter. I reviewed the case, given the strength of the case the fact that she played a minor role, if she played any role at all, other than being present at the time…. I determined that that was not in the interest of justice, nor was it in the public’s interest to do that. That left me in a third option of simply not proceeding with Ms. Amer if I determined that the prospect of conviction against her was pretty weak. And, and so it was in I that determined it was in the interest of justice to simply withdraw against Ms. Amer and proceed against Mr. Shaikh, who was facing more serious charges. 

[84]      As can be seen, the trial Crown did recognize that an adjournment was not an option because of delay, but he explained that he withdrew the charges because he concluded that he had a weak case against Ms. Amer. Since Ms. Amer may not have played any role in the offences, it was contrary to the interest of justice and the public interest to maintain her prosecution. In the circumstances, it was not appropriate to treat this decision as a delay reducing measure.

[85]      Defence Efforts to Move the Case Along – There is no indication of defence efforts to move the case along prior to when Mr. Shaikh’s former counsel applied to be removed from the record on October 6, 2016. However, after his first counsel was released from the record, Mr. Shaikh expressed concern about the delay and asked if his trial would occur on the next date if he re-elected and represented himself. On November 22, 2016, his new defence counsel, speaking of the serious s. 11(b) issue that had developed, advised the court that Mr. Shaikh would re-elect to have a provincial court trial, and he did so formally on November 28, 2016. There is no doubt that the re-election shortened the proceedings. This should have been considered by the application judge but was not.

[86]      Prejudice – The application judge recognized that the prejudice to the accused was “troubling”. And it was. Mr. Shaikh was either under custody or house arrest for the first year, and then under curfew pending trial. He provided uncontradicted evidence of the strain this matter put on his family, his psychological wellbeing, and his ability to work.

[87]      In all the circumstances, the transitional exception should not have been applied. This delay was presumptively unreasonable; not by a narrow margin but exceeding the Jordan guidelines by nearly five months. Even the Morin guidelines were exceeded substantially. There was no meaningful demonstration that the Crown had been mindful of its s. 11(b) obligations even as they existed prior to Jordan, and the prejudice was troubling. The seriousness of the charges and the finality of a stay cannot fairly outweigh these considerations. 

[88]      The application judge called this a close case even when using a 20-month net delay calculation and she gave every indication that she would have stayed the charges had she properly quantified the period of delay. That was the outcome she should have ordered.

CONCLUSION

[89]      I would allow the appeal, set aside the convictions, and stay the charges against Mr. Shaikh. It is therefore unnecessary to consider whether deliberation delay is included in the Jordan period, or to examine the trial judge’s s. 11(b) decision.

Released: “D.W.” November 13, 2019

“David M. Paciocco J.A.”

“I agree. David Watt J.A.”

“I agree. P. Lauwers J.A.”


[1] It appears the application judge made a counting error. The number of days between October 6, 2014 to March 27, 2017 is 903 days. When calculating this, and other periods of delay between two dates, I do not include the first or last day of the period. The first day is not considered delay and the last day should not be counted either because it is the date on which proceedings resume.

[2] I have converted days to months by dividing by 30.417, which is approximately 365/12. I have also rounded month figures to one decimal point. 

[3] The preliminary inquiry was initially scheduled to begin on March 7, 2016, but it was rescheduled to October 4, 2016 to accommodate the complainant’s trip. This is a 211-day or 6.9-month delay. 

[4] Total delay of 919 days subtracted by the 49 days conceded by the defence, the one day that counsel was ill, and 172 days, is 697 days.




Substituted Acquittal Entered & Drug Conviction Overturned

Delay in access to legal advice following arrest in accused’s home results in conviction being overturned and substituted acquittal being entered. Read the case below.

Court of Appeal for Ontario located in Toronto Ontario.  Delay in access to legal advice following arrest in accused's home results in conviction ebbing overturned and substituted acquittal being entered.  Read the case below.
Ontario Court of Appeal, Toronto

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Noel, 2019 ONCA 860 

DATE: 20191101

DOCKET: C65221

Huscroft, Paciocco and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Marlon Noel 

Appellant

Leo Salloum, for the appellant

Marie Comiskey, for the respondent

Heard: September 26, 2019

On appeal from the conviction entered on February 21, 2018 by Justice Jocelyn Speyer of the Superior Court of Justice, sitting without a jury.

substituted acquittal

REASONS FOR DECISION

substituted acquittal

[1]          Mr. Daniel Noel (Mr. Noel) appeals his drug related convictions. For reasons that follow, we allow his appeal, set aside his convictions, and substitute verdicts of acquittal. 

[2]          The material facts are these.

[3]          On December 21, 2015, Durham Regional Police obtained a warrant to search a residence where Mr. Noel lived with his partner, Ms. Stacey Long, and his brother, Mr. Prince Noel. All three residents were suspected of small-scale cocaine trafficking in the Oshawa area. The warrant, which was based on confidential information and surveillance, authorized a search for cocaine, other controlled substances, and related evidence of drug trafficking. 

[4]          The police, armed with the search warrant, executed a dynamic entry into the residence at 10:28 p.m. Shortly thereafter, Mr. Noel was arrested by Officer Aiello at gunpoint in a bedroom containing his belongings and identification. He was taken to the floor and handcuffed. His partner, Ms. Long, and his brother, Mr. Prince Noel, were also arrested.

[5]          Officer Aiello did not advise Mr. Noel of his right to counsel. As previously arranged by the police entry team, Mr. Noel was brought to a central location in the house where, within five minutes of the police’s entry into the residence, another officer, Officer Gill, read him his rights to counsel. He asked to speak to a lawyer, but no steps were taken to facilitate his right to counsel. 

[6]          The search of the bedroom in which he had been arrested led to the discovery of $5,670 Canadian, $71 USD, 73 grams of cocaine, 55 grams of marijuana, and a digital scale. 

[7]          At 11:04 p.m., Mr. Noel was transported to the station. At Mr. Noel’s trial, Officer Gill testified that as he was leading Mr. Noel to the transport vehicle, Mr. Noel claimed ownership of the drugs and that his brother was not involved.

[8]          Mr. Noel arrived at the station at 11:10 p.m. On his arrival, no one took charge of facilitating his right to counsel. 

[9]          At 12:48 a.m., Officer Capener placed two calls to duty counsel on behalf of two of the persons arrested at the residence and left messages requesting that duty counsel return the calls. Officer Capener testified that these calls were placed for Mr. Noel and Ms. Long, but the trial judge had concerns about the accuracy of his evidence as to who the calls were placed for. 

[10]       At 1:25 a.m., cell staff advised Officer Westcott that Mr. Noel’s brother received a call from duty counsel, but that Mr. Noel had not. Officer Westcott called the duty counsel office and left a message for someone to call Mr. Noel. The evidence did not establish whether duty counsel ever called back.

[11]       During trial, Mr. Noel alleged several Charter breaches. He attacked the validity of the search warrant, contended that the dynamic entry violated s. 8, argued that his arrest was arbitrary contrary to s. 9, and claimed violations of both the informational and implementational components of his s. 10(b) right to counsel.

[12]       The trial judge rejected all the alleged violations, except one. She found that Mr. Noel’s right to consult counsel without delay was violated, an implementational breach. However, she denied Mr. Noel the exclusionary remedy he sought under s. 24(2) and admitted the evidence. 

[13]       Ultimately, the trial judge found Officer Gill’s testimony about Mr. Noel’s self-incriminating statement to be unreliable but convicted Mr. Noel on the balance of the evidence.

[14]       Mr. Noel appeals his convictions. He urges that the trial judge erred in failing to find that the dynamic entry violated s. 8, in finding the arrest not to be arbitrary contrary to s. 9, and in finding that there was no s. 10(b) informational breach. He also argues that the trial judge committed errors of principle in her exclusionary ruling relating to the s. 10(b) implementational breach that she did find. He asks us to reconsider the s. 24(2) remedy, to exclude the evidence, and to set aside his convictions.

[15]       Mr. Noel argues, in the alternative, that the conviction was unreasonable even if all the evidence was properly admitted, because the evidence could not support a finding that Mr. Noel knew the secreted narcotics were in his room.

[16]       We reject this latter ground of appeal. If the evidence discovered during the search were to be admitted, the convictions would not be unreasonable. The evidence discovered during the search of the bedroom linked to Mr. Noel gave solid support for the trial judge’s decision to convict.

[17]       However, we conclude that the trial judge committed errors of principle in her s. 24(2) Charter ruling. These errors were material to her findings relating to the seriousness, and impact, of the s. 10(b) implementational breach, which arose from the delay in facilitating Mr. Noel’s right to counsel. 

[18]       Specifically, the trial judge found the seriousness of the breach to have been “attenuated somewhat in this case, because the police complied with their obligation to hold off questioning the arrestee until after contact with counsel was facilitated.” This passage contains two errors. 

[19]       First, had the police attempted to use Mr. Noel as a source of self-incriminating evidence before he had a reasonable opportunity to speak to counsel, that would have been yet another s. 10(b) breach. The seriousness of the breach the trial judge did find cannot be attenuated by the fact that the police did not commit an additional breach of Mr. Noel’s rights. 

[20]       Second, there is no evidence that Mr. Noel ever succeeded in speaking to counsel. The evidence was that at 1:25 a.m., approximately three hours after his arrest, Officer Westcott left a message with duty counsel on Mr. Noel’s behalf, but there was no evidence that anyone followed up to ensure contact occurred. It is true that the onus is on Mr. Noel to establish the s. 10(b) breach, and that he did not lead affirmative evidence that he never managed to speak to counsel. That does not change the fact, though, that there is no affirmative proof that he did. It was not appropriate for the trial judge to proceed on the assumption that Mr. Noel did ultimately speak to counsel. It was also not appropriate for the trial judge to conclude that the seriousness of the breach was mitigated by that assumed consultation. 

[21]       In addition, the trial judge erred in evaluating the impact of the breach. She said:

I have heard no evidence about the impact of the breach on the protected interest of the accused. He did not testify on this application about any impact. It is his onus to demonstrate that a breach occurred and that the evidence should be excluded. While the evidence is that his right to confer with counsel was delayed, and there is necessarily an impact on his constitutionally protected interests as a result, there is no evidence that it was denied, or that the delay impacted adversely on his ability to have a meaningful conversation with counsel. On balance, I conclude that this factor is quite neutral in the s. 24(2) analysis. [Emphasis added.]

substituted acquittal

[22]       With respect, this passage reflects a misunderstanding of the relevant Charter protected interest. That interest is the right is to consult counsel without delay. The loss of this right is in no way neutralized because the right to consult counsel is delayed, as opposed to denied. Nor is the impact of delayed access to counsel neutralized where an accused fails to demonstrate that the delay caused them to be unable to have a late but meaningful conversation with counsel. It would be inconsistent with solicitor-client privilege to expect a detainee to lead evidence about the quality of their solicitor-client conversation. More importantly, this inquiry misses the mark. 

[23]       The right to consult counsel without delay exists because those who are arrested or detained are apt to require immediate legal advice that they cannot access without help, because of their detention: R. v. Bartle, [1994] 3 S.C.R. 173, at p. 191; R v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at para. 41: R. v. Rover, 2018 ONCA 745, 143 O.R. (3) 135, at para. 34. 

[24]       For example, an arrest and the search of one’s home can raise urgent legal issues about the lawfulness of the arrest and the obligation to submit, as well as the validity of the search warrant and the scope of authority that the search warrant gives to the police. Such information could be useful in preventing an unjustified search, before it happens: R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1144.  

[25]       Detention also raises questions of immediate importance relating to the detainee’s rights during detention, including the right against self-incrimination: Bartle, at p. 191;R. v. T.G.H, 2014 ONCA 460, 120 O.R. (3d) 581, at para. 4. 

[26]       Beyond this, the right to counsel is also important in providing “reassurance” and advice, on such questions as how long the detention is apt to last, and what can or should be done to regain liberty: Debot, at p. 1144; Suberu, at para. 41. As Doherty J.A. said in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 45:

The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.

substituted acquittal

[27]       Mr. Noel was not required to offer direct evidence about why he required access to counsel without delay. He asked to speak to counsel promptly but that right was denied. In assessing the impact of such breaches, it is not appropriate for courts to plumb the content and significance of the conversations a detainee would have had, if his right to consult counsel without delay had been respected, or to treat such breaches as “quite neutral” in the absence of such evidence. The impact of the loss of the right to consult counsel without delay can be evaluated based on the interests it is meant to protect along with the length of the delay. 

[28]       Given these errors in principle, the trial judge’s determination that the admission of the evidence would not bring the administration of justice into disrepute does not require deference, nor do her assessments of the seriousness and impact of the breach. In considering these matters afresh, we come to a different conclusion.

[29]       The s. 10(b) violation found by the trial judge was serious. Three hours passed between the time of the arrest and the first confirmed attempt by the police to secure counsel for Mr. Noel. When Mr. Noel arrived at the station at 11:10 p.m., entirely under the control of the police, no one took charge of ensuring that he could speak to counsel as he had requested. Instead, he was placed in a cell and left there. 

[30]       Rather, it was about an hour and a half later that Officer Capener called duty counsel on behalf of only two of the three detainees, keeping insufficient records to confirm who those detainees were. 

[31]       It was not until 1:25 a.m., now about two and a half hours after Mr. Noel’s arrival at the station, that Officer Wescott left a message with duty counsel, specifically on Mr. Noel’s behalf. There is then no confirmation that counsel actually spoke to Mr. Noel. 

[32]       From the beginning, the police appear to have had a somewhat cavalier attitude about a fundamental, important, and long-settled Charter right to consult counsel without delay. Indeed, the trial judge characterized the police conduct in this regard as demonstrating “carelessness” – a characterization with which the Crown does not take issue.

[33]       Moreover, the impact of the breach was significant, not neutral. Mr. Noel remained in custody without the benefit of counsel for at least three hours, unable to receive the direction, reassurance, and advice that counsel could provide.

[34]       We are mindful of the impact of excluding necessary, reliable evidence in this serious prosecution on the repute of the administration of justice. However, this was a clear violation of a well-established rule. The law around s. 10(b) is clear and long-settled. It is not difficult for the police to understand their obligations and carry them out. Furthermore, it is troubling that the police in this case could not provide any reasonable explanation for the delay, nor could they even say whether Mr. Noel did, in fact, speak to counsel. As noted by Brown J. in R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 44: “… exclusion has been found to be warranted for clear violations of well-established rules governing state conduct”.

[35]       We conclude that it would damage the long-term interests of the administration of justice to admit the evidence and thus be seen to condone the carelessness and disorganization exhibited by the police with respect to Mr. Noel’s right to consult counsel without delay. Given the collection of facts in this case, we conclude that the evidence must be excluded, notwithstanding that doing so undermines the Crown’s case against Mr. Noel.

[36]       Given this conclusion, we choose not to resolve Mr. Noel’s grounds of appeal relating to s. 8, s. 9, and the informational branch of s. 10(b). In doing so, we should not be taken as expressing agreement with the trial judge’s rulings. It is simply unnecessary to grapple with these issues given the significance of the s. 10(b) implementational error.

[37]       We therefore allow the appeal, set aside the convictions against Mr. Noel, and substitute verdicts of acquittal.

“Grant Huscroft J.A.”
“David M. Paciocco J.A.”

“I.V.B. Nordheimer J.A.”

http://www.ontariocourts.ca/decisions/2019/2019ONCA0860.htm

substituted acquittal




Crown Error Forces Appeal in Murder Case

Crown Error forces appeal.
Crown Attorney Pin

crown error

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Williams, 2019 ONCA 846

DATE: 20191028

DOCKET: C61373

Juriansz, Pepall and Roberts JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Naanan Williams

Appellant

Michael Dineen, for the appellant 

John Patton, for the respondent 

Heard: September 19, 2019

On appeal from the conviction entered by Justice John A. Desotti of the Superior Court of Justice, sitting with a jury, on January 22, 2015 and the sentence imposed on November 2, 2015.

Juriansz J.A.:

[1]           Before it convicted the appellant of second degree murder, the jury asked a question that made apparent it had been misled by Crown counsel’s incorrect description of the mens rea required for murder. The trial judge’s attempt to clarify the law was inadequate. Therefore, a new trial is necessary. 

A.            FACTS

[2]           The appellant was convicted of second degree murder for killing his uncle, Clifford Riley, in a trial before a judge and jury. He appeals from his conviction.[1]

[3]           On June 21, 2012, the appellant and his friend, Denzel Neron, went to two parties where they drank heavily and smoked marijuana. They were intoxicated.  They entered an unoccupied building owned by the appellant’s family, in which they found the appellant’s uncle.  

[4]           A fight broke out between the three men. The uncle suffered serious injuries and died of blunt force trauma to the chest. The appellant and Neron gave differing accounts of how the fight unfolded.

[5]           The appellant testified that his uncle pushed him out of the building and a fight ensued. The appellant fell, in part because of his intoxication, and his uncle got on top of him. Neron intervened, kicked the uncle, and the two continued fighting by the side of the road. The fight eventually broke up, and the appellant and Neron walked away. The appellant said his uncle cursed at them and called them “assholes”. However, he was inconsistent about whether his uncle shouted at them during the fight or after, when they were walking away. 

[6]            According to Neron, he and the appellant found the appellant’s uncle asleep on the floor of the unoccupied building. The appellant woke his uncle, demanded he get up, and began pushing him out of the building. The three men fought until the appellant and Neron knocked the appellant’s uncle down. As the appellant and Neron were walking away, the uncle sat up and began cursing at them, calling them “assholes”. The appellant jogged back, jumped, and stomped on the uncle’s leg, “jump stomped” on the uncle’s chest three times and then on his collarbone. The uncle went silent and they left. Neron and the appellant rode home on a bicycle with Neron on the handlebars.  

[7]           Neron’s trial testimony substantially contradicted a police statement he gave on June 22, 2012, in which he denied any knowledge of the killing. At trial, Neron admitted to lying to the police.

[8]           DNA consistent with that of Neron was on a necklace found near the uncle’s body. Gray Vans brand shoes seized from the appellant’s residence had a blood stain on the shoelace with a DNA profile consistent with that of the uncle. An expert qualified in footprint comparisons testified that the shoes’ soles could not be excluded as having created impressions on and around the uncle’s body, including a footprint on his chest that may be linked to the fatal injury. The appellant and Neron disagreed as to who wore those shoes at the time of the killing.

[9]           A video surveillance camera captured two men walking near the location of the fight on the night in question. The video showed two men emerging twice from the scene of the fight, corroborating Neron’s account that, after they began to walk away, the appellant had returned to stomp on the uncle before they walked away a second time.

[10]        The next day, the appellant went to see a friend who had been out with him the night before. The appellant was crying because his uncle had died. When the friend revealed that she had heard that the appellant killed his uncle, the appellant shook his head and asked her to “do me a solid”. He told her he was naïve and drunk, and the only evidence the police had on him was a shoe. He recounted that he did not remember walking home the night before. An acquaintance overheard this conversation and testified that the appellant broke down and said, “Yeah, I fucked up.”

[11]        In text messages to another friend, the appellant said, “You didn’t see anything remember just walked home”, “Stay solid”, and “we didn[’]t do shit”. He acknowledged that he told both women not to say anything. 

[12]        Both the appellant and Neron were arrested and charged with murder. Neron accepted a plea agreement that required him to testify against the appellant. He pleaded guilty to assault and to being an accessory after the fact to murder. He received a four-month sentence. 

B.            ISSUES ON APPEAL

[13]        The appellant raises five grounds of appeal, one of which he abandoned in advance of the hearing. I would allow the appeal on the first ground and find it unnecessary to deal with the other three grounds, which raise issues that may not arise on the retrial.

[14]        The appellant’s main submission is that the trial judge, by failing to correct a misstatement of the law by the Crown and by failing to provide clear, fulsome answers to the jury’s questions, permitted the jury to find him guilty of murder without being satisfied he had the subjective foresight that his uncle might die as a result of his actions. 

C.            ANALYSIS

crown error

(1)          The Crown’s Closing Submissions

[15]        In her closing address to the jury, the Crown incorrectly described the state of mind necessary to establish murder. She said:

And when you consider the issue of the intent that Mr. Williams would have had to have had, or the mental state that he would have had to have had to form the intent to kill, or that he ought to have known his actions would cause death, or was reckless to whether his actions would’ve caused death … I think there is significant evidence to prove that in fact Naanan Williams did have the necessary state of mind to know what he was doing, to kill his uncle, and to know that his actions in stomping his uncle would kill him, or ought to believe that it would likely cause death, or he just didn’t, you know, put his mind to it. He was reckless to that, okay. [Emphasis added.]

[16]        After reviewing additional evidence, she repeated: 

[A]ll that, that shows that, that Naanan Williams had the state of mind that night, had the intent to know that when he stomped or to – that he ought to have known that when he stomped on Clifford Riley that action was likely to cause his death. [Emphasis added.]
[17]        These were serious misstatements of the law with respect to the mens rea for murder. The phrase “that he knows or ought to know is likely to cause death” appeared in s. 229(c) of the Criminal Code. The Supreme Court of Canada declared that language in s. 229(c) unconstitutional in R. v. Martineau, [1990] 2 S.C.R. 633 and it has recently been repealed: R.S., 2019, c. 25, s. 77. The court made clear in Martineau that a murder conviction cannot rest on any mens rea less than subjective foresight of death: at pp. 645-46. 

[18]        In any event, s. 229(a), not s. 229(c), best applies to the circumstances of this case. Section 229(a) provides:

Culpable homicide is murder

(a) where the person who causes the death of a human being

(i) means to cause his death, or

(ii) means to cause him bodily harm that he knows is likely to cause his death, and is reckless whether death ensues or not.

[19]        In R. v. Cooper, [1993] 1 S.C.R. 146, at pp. 155-56, the court clarified that the mens rea for murder under s. 229(a)(ii) of the Criminal Code requires the Crown to prove beyond a reasonable doubt the accused’s (a) subjective intent to cause bodily harm and (b) subjective knowledge that the bodily harm is of such a nature that it is likely to result in death.

[20]        Defence counsel did not object and the trial judge did not correct the Crown’s misstatements immediately. Their effect on the jury and on the fairness of the trial must be assessed in the context of the whole trial, and everything the jury was told. 

crown error

(2)          The Trial Judge’s Instructions 

[21]        At the beginning of the trial, the trial judge told the jury it should take the law from him. In the course of making this point, he said:  

Counsel may also refer to some rules of law to help you understand their positions better. It is quite proper for them to do so. What counsel say about the law may be correct, but it is my job, as judge, to tell you about the law that applies. You must take that law from me.

[22]        In his jury charge, the trial judge gave the jury clear and correct instructions on the mental state required for murder. He said:

If you are satisfied beyond a reasonable doubt that Naanan Williams unlawfully caused the death of Clifford Riley, you must go onto the next question: Did Naanan Williams have a state of mind required for murder? The crime of murder requires proof of a particular state of mind for an unlawful killing to be murder. Crown counsel must prove that Naanan Williams meant either to kill Clifford Riley or meant to cause Clifford Riley bodily harm that Naanan Williams knew was likely to kill Clifford Riley, and was reckless whether Clifford Riley died or not.

[23]        The trial judge told the jury he would emphasize this instruction by repeating it “at least half a dozen other times” so that the jury “got that crystal clear in your mind.” He did what he said he would. He repeatedly emphasized the correct state of mind for murder and told the jury that if they did not find that the appellant had that state of mind, their determination should be manslaughter.

[24]        However, at this stage, no one, including the trial judge, said anything about the Crown’s misstatements to the jury that it could convict the appellant if “he ought to have known his actions would cause death”. 

(3)          The Jury’s Questions 

[25]        In the course of its deliberations, the jury asked two questions that revealed it was left in confusion by the Crown’s closing and the jury instructions. 

[26]        Three or four hours into its deliberations, the jury posed the question “state of mind – pre, present and post testimony – which can be used as evidence.” The trial judge correctly answered the question by instructing the jury that the state of mind required was whether the appellant “meant to cause Clifford Riley bodily harm that Naanan Williams knew was likely to kill Clifford Riley and was reckless whether Clifford Riley died or not, or he meant to kill Clifford Riley.”

[27]        On the morning of the second day of deliberations, the jury asked another question that made it obvious it was considering the issue of the appellant’s state of mind in light of the Crown’s misstatement of the law. The jury sought clarification on the legal meaning of “ought to know” and “reckless to the effects of your efforts”. The phrase “ought to know” did not appear in any part of the jury charge. Neither counsel nor the trial judge questioned the relevance of these terms to a charge of second degree murder. After consulting counsel, the trial judge answered the “ought to know” portion of the question:

There is not any, as far as I am aware, definition from any legal context or precedent. … However, “ought to know” at least piecing that together with Black’s Law Dictionary … is a general direction only, but will be taken as mandatory if the context requires. Little bit – be under a moral obligation, have as a duty, and advised or expected. That is the “ought” part. The “know” is to possess information, instruction, or wisdom, to perceive, apprehend, understand. 

crown error

[28]        Rather than disabusing the jury of the incorrect standard stated by the Crown, this instruction reinforced it. The instruction, in effect, confirmed the validity of the Crown’s statement and provided the jury with guidance as to how to apply the incorrect state of mind in its deliberations. 

[29]        The trial judge went on to answer the “reckless” portion of the jury’s question. He said: 

There is actually a legal direction with respect to “reckless” in a more commonplace expression. So I will give it in the context of which the word “reckless” is used in the charge: saw the likelihood that Clifford Riley could die from the injury but went ahead anyway and took the chance. So that is the actual formal, legal expression.

[30]        This definition would have been accurate had the trial judge stopped there. However, he went on to add: 

Then using again the Oxford Dictionary, more expanded version, “reckless”: of a person heedless of consequences of one’s actions or of danger, incautious, rash, inconsiderate of oneself or another, of an action, behaviour characterized as heedlessness or rashness, incautious, careless, wilfully careless. That is it. There is no other. There is nothing else that we have with respect to those expressions.

crown error

[31]        This erroneous instruction was all the more serious because it immediately followed the guidance the trial judge had provided about the meaning of “ought to know.” The instruction would have led the jury to understand that it could convict the appellant if he “ought to have known” his uncle would die, or if his behaviour met a dictionary definition of reckless that included mere carelessness. 

[32]        After receiving these instructions, the jury retired at 9:15 a.m. Shortly after, the Crown advised the court that she had misstated the law. She alerted the court that the jury should not be basing its decision on whether they believed that the appellant “ought to have known” his actions would have resulted in his uncle’s death. 

[33]        The jury was recalled at 9:46 a.m. and the trial judge sought to correct the misstatement of the law that had been conveyed to the jury and which it was evidently considering. The trial judge said:

Ladies and gentlemen, you probably wonder why unceremoniously we have brought you back into the courtroom when you have not asked a question. It goes back to your previous question, “ought to know”. There is no such definition in the section dealing with second-degree murder. “Ought to know” is not part of your consideration or concern. Any reference to the expression “ought to know” should be struck, deleted from your understanding in terms of your deliberations. I say that to you because that expression was used unfortunately by Madam Crown Attorney, inadvertently she used the expression “ought to know”. That is not part of the section, all right? So I am asking you to delineate, delete, whatever expression you want to do, erase my response to the query about “ought to know”. Your focus should be on reckless, which is clearly there, and not on that expression. I cannot be more definitive than that. … And I am asking you again to disregard that expression. It is not part of your deliberations. [Emphasis added.]

crown error

[34]        The jury retired at 9:52 a.m. and returned with its verdict at 10:27 a.m. 

[35]        The last instruction was intended to salvage the situation by correcting the answer given to the jury’s question about “ought to know”. Unfortunately, it did not do so fully and correctly. While the trial judge told the jury, clearly and emphatically, that “ought to know” was not the correct standard for the mens rea for murder, he was wrong to tell the jury its focus should be on “recklessness.” There are two problems with this instruction.

[36]        The first problem is that, half an hour earlier, the trial judge had left the jury with a definition of “reckless” that included carelessness. It is likely the broad dictionary definition he gave the jurors would still have been fresh in their minds. Considered in the context of that definition, telling the jury its focus should be on “recklessness” was a misdirection. 

[37]        The second problem is that the jury should have been told its proper focus should be on whether the appellant intended to cause bodily harm to his uncle that he knew was likely to result in his uncle’s death. As Cory J. explained in Cooper, at pp. 154-55:

The aspect of recklessness can be considered an afterthought since to secure a conviction under this section it must be established that the accused had the intent to cause such grievous bodily harm that he knew it was likely to cause death. One who causes bodily harm that he knows is likely to cause death must, in those circumstances, have a deliberate disregard for the fatal consequences which are known to be likely to occur. That is to say he must, of necessity, be reckless whether death ensues or not. [Emphasis added.][38]        On appeal, the Crown argues that the trial judge’s multiple repetitions of the correct mens rea standard for murder meant that the jury must have been properly informed when it began its deliberations. I do not accept that submission given the question by the jury and the trial judge’s inadequate answer. 

[39]        Questions by the jury give the clearest possible indication of the particular problem the jury is confronting: R. v. S. (W.D.), [1994] 3 S.C.R. 521, at p. 528. When the jury submits a question, it must be assumed that the jurors have forgotten the original instructions and will base their subsequent deliberations on the answer to the question: S. (W.D.), at p. 531. The correctness of the original charge cannot excuse an error in the answer to the jury’s question: S. (W.D.), at p. 530-31. 

[40]        In this case the jury repeatedly received correct instructions in the main charge. But considering everything the jury was told, I conclude there is a real danger that the jury was not left with a proper understanding of the role of recklessness in the mens rea for murder and that subjective foresight of death was required. 

crown error

D.            DISPOSITION

[41]        The appellant’s murder conviction cannot be regarded as safe. I decline the Crown’s invitation to apply the curative proviso under s. 686(1)(b)(iii) of the Criminal Code. In this case manslaughter, rather than second degree murder, was a possible verdict on the Crown’s version of the events.

[42]        In conclusion, I would allow the appeal, set aside the conviction, and order a new trial. 

Released: “RGJ” OCT 28 2019

“R.G. Juriansz J.A.”

“I agree. S.E. Pepall J.A.”

“I agree. L.B. Roberts J.A.”


crown error

[1] The appellant’s notice of appeal raises an appeal against sentence, but the appellant’s factum and oral submissions did not include arguments on sentence. Given the disposition of this appeal, I regard the sentence appeal as moot.




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