



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Campbell, 2022 ONCA 223

DATE: 20220321

DOCKET: C68302

Tulloch, van Rensburg and
    Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dwayne
    Campbell

Appellant

James Foy, for the appellant

Michael Fawcett and Andrew Hotke, for
    the respondent

Heard: September 7, 2021 by video
    conference

On appeal from the convictions entered
    by Justice David E. Harris of the Superior Court of Justice on July 10, 2019.

Nordheimer J.A.:

[1]

Mr. Campbell appeals from his convictions for
    robbery, forcible confinement, and use of an imitation firearm in the
    commission of an offence. The appellant submits that the application judge
    erred in dismissing his application for a stay arising from an alleged breach
    of his right to be tried within a reasonable time, contrary to s. 11(b) of
    the
Canadian Charter of Rights and Freedoms
.

For the
    following reasons, I would dismiss the appeal.

A.

Background

[2]

While it is not necessary to review every court appearance
    in this case in order to properly address the s. 11(b) issue, some
    recitation of the history of this matter is required.

[3]

The appellant was arrested on February 16, 2017
    and brought to court the following day. The allegations arose from a home
    invasion robbery that took place on December 19, 2016. The appellants
    co-accused had been arrested on the day of the robbery, a short distance from
    the scene.

[4]

On March 9, 2017, a judicial pre-trial was
    scheduled for March 23. The appellant was represented but the appellants
    co-accused was not. Consequently, the pre-trial took place in court. Crown
    counsel said that he had provided disclosure both to the appellants counsel
    and to prospective counsel for the co‑accused. There was some issue over
    whether prospective counsel would, in fact, be retained by the co-accused. Six
    days was settled upon as a time estimate for the preliminary hearing, but the court
    lacked dates before 2018.

[5]

On March 30, the parties appeared again and
    succeeded in securing target preliminary inquiry dates for September 2017, with
    a single date in October for a witness significant to the case against the
    co-accused. The co-accused objected to setting dates for the preliminary
    hearing.

[6]

A continuing judicial pre-trial was then
    scheduled for April 13, 2017. The Crown obtained an order appointing counsel to
    cross-examine one child witness on behalf of the co-accused pursuant to s. 486
    of the
Criminal Code
, R.S.C. 1985, c. C-46. On April 26, the Crown
    reported that Legal Aid had said that they were willing to issue a certificate
    to fund counsel for the co-accused, but the co-accused said that he was not
    sure that he would use the Legal Aid certificate that had been offered. The appellants
    bail hearing was scheduled for May 2. It proceeded that day and the appellant
    was ordered detained in custody.

[7]

On May 5, 2017, the parties appeared again. The
    co-accused stated that he would proceed without a lawyer because he mistrusted
    everyone involved. A date was set for a bail hearing for the co-accused and he
    was ultimately ordered detained.

(1)

The First Trial Date

[8]

The preliminary inquiry proceeded as scheduled
    on the target dates set in September, and both accused were committed for trial
    on September 13, 2017. The co-accused was represented by counsel at the
    hearing. On September 29, the parties made a first appearance in the Superior
    Court, saying they were prepared to set judicial pre-trial dates. They agreed
    on October 26, 2017. The presiding judge pushed the parties to also target
    trial dates. Eventually, June 11, 2018 was selected for an anticipated 12-day
    jury trial.

[9]

In the last week of May 2018, less than two
    weeks before the trial was scheduled to begin, counsel for the co-accused
    successfully applied to be removed from the record. On June 1, the co-accused
    appeared in person and said he had asked Legal Aid for a change of counsel. Prospective
    new counsel for the co‑accused was not able to proceed on the scheduled
    June 11 trial date. The co‑accused was unwilling to proceed without a
    lawyer and effectively requested an adjournment. The appellants counsel stated
    that she was prepared to proceed and that, given that the appellant was in
    custody, she wanted to maintain the June 11 date. Crown counsel said she
    was prepared to proceed but was in an awkward position given that they could
    not force the co-accused on when he was requesting a lawyer. The trial dates
    were ultimately vacated.

(2)

The Second Trial Date

[10]

On June 22, 2018, the parties appeared again. The
    co-accused was still waiting for Legal Aid to decide his change of solicitor request,
    but the Crown and the appellant sought to set target dates immediately in order
    not to lose any further time. The co-accuseds prospective new counsel was not
    present but conveyed through the appellants counsel that he wanted a further
    pre-trial but could not commit to dates before he was retained. The court
    offered January 21, 2019 for a two-week trial and the appellant and the Crown
    agreed to those dates. The trial was set with or without counsel in respect
    of the co-accused.

[11]

The case was spoken to again on July 13, 2018.
    By this time, Legal Aid had denied the co-accuseds change of solicitor
    application. The co-accused intended to appeal that decision. The co-accuseds prospective
    new counsel had also conveyed that he was not available for trial on January 21,
    2019 and the Crown had discovered that an important witness for them would also
    be unavailable at that time. Both the Crown and the co-accused were considering
    an adjournment application. The appellants counsel reiterated that she was
    anxious to proceed.

[12]

At the next appearance, on August 10, the
    co-accuseds Legal Aid appeal had been refused. He had one further internal Legal
    Aid appeal which was estimated to take four weeks. The appellants counsel
    stated that she wished to know sooner rather than later if the January 21
    date would be adjourned. The presiding judge said that, while he was
    sympathetic to her position, he saw no alternative to returning in a month, on
    September 14. By that day, the co-accuseds Legal Aid appeals had been
    exhausted. He said that he intended to bring a
Rowbotham
application.
    The case returned several times during the fall. The co‑accused eventually
    succeeded in obtaining a
Rowbotham
order.

[13]

On December 14, 2018, the co-accuseds new
    counsel applied to adjourn the January 21 trial date. The application was
    opposed by the appellant and by the Crown. The presiding judge denied the
    adjournment.

[14]

The parties appeared on December 20, 2018, and
    then again on January 9, 2019, to see whether the co-accused could retain
    counsel available for the trial dates. The co-accused insisted that he wanted to
    be represented by the specific counsel who was unavailable. At the January 9
    appearance, the presiding judge commented that to adjourn the case to a date
    when hes available would require [the appellant] to sit in jail for about a
    year from his first trial date, and the first trial got adjourned because you
    discharged your lawyer. The presiding judge also noted that the trial had been
    set with or without a lawyer. The appellants counsel commented that, if an
    adjournment had been sought earlier and the resulting delay would have been
    limited, then the appellant may have consented, but that the prospect of a
    further six months delay was intolerable. The issue of severance was raised,
    but Crown counsel stated their position that a joint trial was important to
    avoid having the child witness testify twice.

[15]

On the day of trial, January 21, 2019, the
    co-accused was unrepresented and requested an adjournment on the basis that he
    had not had access to his disclosure in custody and so was not able to proceed.
    This time the adjournment was granted, over the objection of the appellant, whose
    counsel noted that she was ready to proceed and that the appellant was not
    waiving his s. 11(b) rights.

(3)

The Third Trial Date

[16]

On January 29, 2019, the parties returned to set
    new trial dates. The Crown reiterated its position to proceed with a joint
    trial because of the child witness. With respect to the resulting delay, Crown counsel
    noted that if I have to argue it down the line at some point as to whether
    that was a reasonable call, Ill make that argument. The co-accuseds new
    counsel did not appear but conveyed that he was available for trial starting on
    July 8 although the court had offered earlier dates. The appellants counsel
    was available for those earlier dates and reiterated her concern about delay.

[17]

The presiding judge pressed the Crown to
    consider severance so that the appellants trial could be scheduled for late
    February dates for which his counsel could make time. The Crown indicated this
    may be an option in the event of a re‑election. The appellant did not
    commit to re-electing and was remanded to the trial date of July 8, 2019.

(4)

The Application to Stay the Proceedings

[18]

The appellant applied for a stay of proceedings
    for a violation of s. 11(b). The application was heard by Shaw J. on June
    14, 2019.
[1]
The parties agreed that the total effective delay to be considered was 28
    months and 26 days, which was below the presumptive ceiling of 30 months set in
R. v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 49. They
    also agreed that the bulk of the delay was caused by the co-accused.

[19]

The application judge dismissed the application.
    She found that neither part of the
Jordan
test for cases under the
    ceiling had been met. She found that the appellant could not be said to have
    taken meaningful steps to expedite in view of his failure to apply for
    severance. Specifically, she found that the appellant could have moved for
    severance immediately following each of the two adjourned trial dates. She also
    found that the case had not taken markedly longer than it reasonably should
    have.

B.

Analysis

[20]

In
Jordan
, the court explained, at
    para. 82, that in order for the defence to obtain a stay for breach of s. 11(b)
    for a case that took less time than provided for by the presumptive ceiling, the
    defence must establish two things: (1) it took meaningful steps that
    demonstrate a sustained effort to expedite the proceedings; and (2) the case
    took markedly longer than it reasonably should have. The court stated that it expected
    stays beneath the ceiling to be rare and limited to clear cases: at paras. 48,
    83.

(1)

Meaningful
    Steps to Expedite the Proceedings

[21]

The respondent concedes that the application
    judge erred in finding that the appellant had failed to take meaningful steps
    to expedite the trial. In particular, the respondent agrees that the
    application judge erred in finding that the appellant had failed in his efforts
    to expedite his trial by not bringing a motion for severance.

[22]

On this point, the application judge found, at
    para. 55:

The applicant's position that his severance
    application would likely have been denied based on all the principles
    surrounding joint trials cannot be used as a shield to justify why this
    meaningful step was not taken. The applicant cannot say that he did not take a
    step as he did not think he would be successful, and then rely on that same
    doctrine  severance  as a sword to say that it forms the basis or reason why
    the trial did not proceed within a reasonable timeframe.

[23]

The respondent says, and I agree, that requiring
    an accused person to demonstrate that they have taken sustained, meaningful
    steps to expedite proceedings does not include requiring them to bring motions
    that are doomed to fail. Unmeritorious motions only add to the consumption of court
    time and thus create further delay, if not for the case at hand, then potentially
    for other cases. To quote the respondent, the parties were right to dispense
    with the formality of a severance application and avoid clogging up the system
    and using scarce judicial resources to argue over something that was hopeless.

(2)

Delay Markedly Exceeding the Reasonable Time
    Requirements

[24]

The issue then becomes whether the case had
    taken markedly longer than it should have. On this issue, the appellant points
    to the fact that the application judge found that that the case is not a
    factually or legally complex matter. He also points to the fact that the first
    trial date had been set for a year earlier, and states that this provides a ready-made
    yardstick by which to measure how long the case ought to have taken to get to
    trial. On that latter point, the appellant relies on the decision in
R. v.
    Belle
, 2018 ONSC 7728, 424 C.R.R. (2d) 233, where Harris J. made the point
    that the first trial date provided a ready-made yardstick of the reasonable
    time requirements of the case: at para. 8.

[25]

With respect, I do not agree that the first
    trial date necessarily provides a marker for the reasonable time requirements
    of the case. The practical reality is that first trial dates are often set optimistically
    when it is not certain that the parties will, in fact, be ready for trial. Indeed,
    that was the situation in this case in light of the issues with the co-accused.
    It must be recognized, given the pressures on the parties to set dates in order
    to keep the case moving forward, that a first trial date may be more aspirational
    as to timing than it is realistic.

[26]

The first trial date in
Belle
may have
    been a better measure since the only reason for the loss of the trial date was
    the last-minute disclosure by the Crown of a large amount of information,
    something that the trial judge found should never have happened:
Belle
,
    at paras. 3, 22-24. However, in this case, the first trial date was set
    when there were many indicators that it might not be met. For example, the date
    was set before there had been a judicial pre-trial. Any number of issues might
    have arisen at the judicial pre-trial that would have brought the first trial
    date into question. Further, the parties knew that there were ongoing issues
    respecting the co-accused that could reasonably have been anticipated to
    potentially derail the trial date that had been set. Of course, this is exactly
    what happened.

[27]

My view that the first trial date does not
    necessarily provide an appropriate measure for how long a case should
    reasonably take is reinforced by the decision in
Jordan
. In its
    decision, the court set out what it meant by this second factor. It said, at
    para. 87:

The reasonable time requirements of a case
    derive from a variety of factors, including the complexity of the case, local
    considerations, and whether the Crown took reasonable steps to expedite the
    proceedings.

[28]

These various factors demonstrate why a first
    trial date may not be an accurate measure of how long a case should reasonably take.
    I would point out, on this question, that there is a difference between when a
    trial
might
be completed and when it
should
be completed. As
Jordan
points out, there may be a variety of factors that come to bear on the reasonable
    time requirements of a case. There may be issues such as outstanding
    disclosure, the availability of experts or expert reports, erroneous trial
    estimates, and other issues that may highlight that the first trial date may
    not be an accurate one. Nevertheless, often such trial dates are set expectantly
    and, as I have said, to keep the case moving. Other issues may loom large on
    this point, including the one that drove this case, that is, the actions of a
    co-accused.

[29]

The other important aspect of this second factor
    is the point made in
Jordan
that the case must markedly exceed the
    reasonable time requirements of the case. As stated in
R. v. K.J.M.
,
    2019 SCC 55, 439 D.L.R. (4th) 607, at para. 107:

To be clear, under this branch of the test,
    the issue is not whether the case should reasonably have been completed in less
    time. Rather, it is whether the case took
markedly
longer than it
    reasonably should have. [Emphasis in original.]

[30]

Again, it was easier in
Belle
to
    conclude that the case took markedly longer than it reasonably should have
    because the only reason for the loss of the first trial date was the last
    minute, unexplained delivery of a significant amount of disclosure. That should
    not have happened, and thus it was easier to say that the delay it caused was
    outside the reasonable time requirements for that case.

[31]

However, in this case, the delay was almost entirely
    caused by the actions of the co-accused coupled with the Crowns refusal to
    consider severance. It will be self-evident that cases in which there is more
    than one accused will likely take longer to get through a trial because of the need
    to accommodate the schedules and demands of more parties and more counsel: see
Jordan
,
    at para. 77.

[32]

The history of this case ought to have made it
    clear to all concerned that there were likely to be additional problems caused
    by the co-accused. While the Crown had a good reason to want to avoid
    severance, it nonetheless had to realize that its position on that issue was
    likely to invite additional delay. I note, on that point, that one of the
    factors that
Jordan
identifies in determining whether the case took markedly
    longer than it ought to have is whether the Crown took reasonable steps to
    expedite the proceedings: at para. 87.

[33]

Reinforcing this point is the fact that the
    second trial date, January 21, 2019, was set when the issues surrounding the
    representation of the co-accused were still unsettled. Legal Aid had consumed
    some period of time deciding whether it would agree to a transfer of the
    certificate and appeals from its decision were still outstanding. Further, the
    possibility of a
Rowbotham
application would have had to have been in
    everyones minds, if the refusal of Legal Aid to agree to a transfer was
    upheld. Again, of course, that is what happened.

[34]

In an effort to address these problems, the
    second trial date was set with or without counsel. The immediate concern that
    stipulation provokes is whether, if an accused ultimately does not have
    counsel, they will actually be in a position to proceed. One important
    component of the accused persons ability to proceed is, of course, whether
    they have access to the disclosure in the case. For reasons that are not clear
    on the record, when the second trial date was reached, and the co-accused did
    not have counsel, it became apparent that the co-accused did not have access to
    the disclosure while in custody. Therefore, despite the stipulation of with or
    without counsel, the trial could not proceed. Why the disclosure issue only
    became apparent at that point is also not clear.

[35]

Despite all of these issues, the trial
    ultimately proceeded on the third trial date, still within the 30-month limit
    set by
Jordan
. The application judge considered all of these matters
    and concluded that the case had not taken markedly longer than it reasonably
    ought to have. In particular, the application judge found that the Crowns
    decision not to permit severance was not unreasonable in the context of the
    case.

[36]

As the court said in
Jordan
, at para. 91:

Determining whether the time the case has
    taken markedly exceeds what was reasonably required is not a matter of precise
    calculation. Trial judges should not parse each day or month, as has been the
    common practice since
Morin
, to determine whether each step was
    reasonably required. Instead, trial judges should step back from the minutiae
    and adopt a bird's-eye view of the case. All this said, this determination is a
    question of fact falling well within the expertise of the trial judge. [Citation
    omitted.]

[37]

The application judges decision is entitled to
    deference:
Jordan
, at para. 91. Given the issues with the
    co-accused, all of which were predictable, the trial was undoubtedly going to
    take longer than it otherwise would have. However, in all the circumstances, I
    cannot say that the application judges determination that the case did not
    take markedly longer than it should have, is an unreasonable one. Consequently,
    the appeal fails.

C.

Remedy

[38]

Given my conclusion on the s. 11(b)
    application, I do not need to address the respondents submissions regarding the
    appropriate remedy for a breach, including whether a remedy short of a stay of
    proceedings is available.

D.

Conclusion

[39]

The appeal is
    dismissed.

Released: March 21, 2022 M.T.

I.V.B.
    Nordheimer J.A.

I agree. M.
    Tulloch J.A.

I agree. K. van
    Rensburg J.A.





[1]

R. v. Campbell
, 2019
    ONSC 4228, 446 C.R.R. (2d) 326.


