



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Powell, 2020 ONCA 743

DATE: 20201125

DOCKET: C65178

Huscroft, Miller and Nordheimer
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dewayne Powell

Appellant

Mitchell Chernovsky and Faisal Mirza,
    for the appellant

Lorna Bolton, for the respondent

Heard: November 5, 2020 by video conference

On appeal from the convictions entered by
    Justice Kenneth L. Campbell of the Superior Court of Justice on November 7,
    2017, and from the sentence imposed on December 13, 2017, with reasons reported
    at 2017 ONSC 6698 and 2017 ONSC 7437

Nordheimer J.A.:


[1]

Mr. Powell appeals from his convictions on one
    count of kidnapping for ransom and one count of conspiracy to kidnap. He
    abandoned his sentence appeal at the commencement of the hearing. The sole
    challenge to his convictions involves the dismissal of his application for a
    stay of proceedings under s. 11(b) of the
Canadian Charter of Rights and
    Freedoms
. That application was heard earlier and dismissed by Justice Sean
    Dunphy of the Superior Court of Justice on September 26, 2017.
[1]

[2]

The appellant was arrested on January 12, 2015.
    He was ordered detained after a bail hearing and remained in custody. A
    preliminary inquiry was set after a judicial pre-trial in the Ontario Court of
    Justice on July 29, 2015. The preliminary inquiry commenced on May 11, 2016 and
    the appellant was committed for trial on September 1, 2016. He appeared in the
    Superior Court of Justice on September 22, 2016 and, on October 21, 2016, trial
    dates were set to commence on October 23, 2017. The anticipated completion of
    the trial was on November 17, 2017. The trial, in fact, ended on October 30, 2017.

[3]

The length of time from arrest until the
    completion of the trial was 33.5 months. That period of time exceeds the
    presumptive ceiling of 30 months set out in
R. v. Jordan
, 2016 SCC 27,
    [2016] 1 S.C.R. 631, for a matter proceeding to trial in the Superior Court of
    Justice. However, there appears to be agreement that a two-week period of delay
    arising from a co-accuseds attempts to change counsel is properly deducted
    from the delay as a discrete event, leaving 33 months of delay to be
    considered.

The
Jordan
analysis

[4]

The application judge deducted a second period
    of time as a discrete event, namely, a period of 42 days arising from a delay
    in completing the preliminary inquiry due to a defence request to hear from
    additional witnesses. Rather then deal with the correctness of that deduction
    at this stage, I will deal with it in my analysis of the transitional
    exceptional circumstance below. I do so because it is a factor in that analysis
    and because, even if the application judge was correct to deduct this time
    period, the total delay would still exceed the presumptive ceiling of 30
    months.

[5]

The application judge also considered whether
    the complexity of the case could justify the delay above the presumptive
    ceiling. Ultimately, the application judge concluded that it was not necessary
    for him to resolve that question. Rather, he found that the issue should be
    decided with reference to the transitional exceptional circumstance. I agree
    with that approach.

[6]

Nevertheless, the respondent renews the
    argument that the total period of delay in this case should be excused based on
    the complexity of the case. Given my analysis of the transitional exceptional
    circumstance, it is
not necessary for me to decide
    the issue either. I would, however, express my doubt that this case rose to the
    level of a particularly complex case sufficient, by itself, to justify the
    delay.

[7]

On that point, in determining whether a
    case is particularly complex, the following factors are of importance
:

·

case complexity
    requires a qualitative, not quantitative, assessment:
R. v. Cody
,
    2017 SCC 31, [2017] 1 S.C.R. 659, at para. 64.

·

complexity is
    an exceptional circumstance only where the case
as a whole
is particularly complex:
Cody
, at
    para. 64.

·

complex cases
    are cases that, because of the nature of the evidence or the nature of the
    issues, require an
inordinate
amount of trial or preparation time such
    that the delay is justified:
Jordan
, at para. 77.

·

if the case is complex, then the court must look
    at whether the Crown developed and followed a concrete plan to minimize the
    delay occasioned by the complexity:
Ontario (Ministry of Labour) v. Nugent
,
    2019 ONCA 999, 384 C.C.C. (3d) 189, at para. 31.

[8]

While there were elements of complexity involved
    in this case, including multiple accused, significant disclosure, and expert
    reports, by the time of trial the case had simplified greatly, as evidenced, at
    least in part, by the fact that ultimately the trial took only five days.

Transitional exceptional circumstance
    analysis

[9]

This case straddled the decision in
Jordan
,
    which was released while the preliminary inquiry was adjourned and before the
    case appeared in the Superior Court of Justice. Consequently, the central issue
    in this case revolves around the application of the transitional exceptional
    circumstance.

[10]

The approach to the transitional exceptional
    circumstance is set out in
Jordan
, at para. 96:

This transitional exceptional circumstance
    will apply when 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. This requires a contextual assessment, sensitive to the
    manner in which the previous framework was applied, and the fact that the
    parties' behaviour cannot be judged strictly, against a standard of which they
    had no notice.

[11]

As noted in
R. v. Picard
,
    2017 ONCA 692, 137 O.R. (3d) 401, at para. 71, leave to appeal refused, [2018]
    S.C.C.A. No. 135, the proper approach to the application of the transitional
    exceptional circumstance requires a contextual assessment of all of the
    circumstances. A starting point is to determine the amount of institutional
    delay and compare it to the guidelines for permissible delay set out in
R. v. Morin
,
    [1992] 1 S.C.R. 771, which, in a case proceeding in the Superior Court of Justice,
    were set at 14 to 18 months.

[12]

The application
    judge undertook this analysis and concluded, at para. 70, that the delay was
    well within the bounds of reasonable having regard to the complexity of the
    case, the reasons for the delay, the prejudice to the accused and the societal
    interest in having a trial on the merits.

[13]

Unfortunately,
    there are a number of errors in the application judges
Morin
analysis. For example, a period of nine months passed between the judicial
    pre-trial in the Ontario Court of Justice and the date set for the preliminary
    inquiry. The application judge allocated just two months of this time to
    institutional delay and the remaining seven months to preparation time (i.e.,
    inherent time requirements of the case). It is not clear on what basis the
    application judge concluded that seven months would have been required for
    counsel to prepare to conduct the preliminary inquiry in this case. He does not
    point to any basis in his reasons. The fact that work occurred on the case in
    this timeframe does not establish that the time was required. In contrast, in
Picard
, to
    which the application judge referred, and which was a more complex case of
    first degree murder, this court attributed only four months to the inherent
    time requirements of the case.

[14]

In my view, the
    application judge erred in his analysis on this point. I would attribute four
    months to the inherent time requirements of the case and five months to
    institutional delay.

[15]

The next
    problematic period is the approximately three and one-half months between the
    adjournment of the preliminary inquiry and its ultimate completion. This
    adjournment arose from a request from the defence to examine certain police
    officers whom the Crown had not intended to call at the preliminary inquiry, and
    who could not be easily scheduled, once it became known that the defence wished
    to examine them. This is the other discrete event, to which I referred earlier,
    that the application judge deducted from the overall delay under his
Jordan
analysis.

[16]

The application
    judge concluded that this delay could not be laid at the feet of the Crown. He
    was also critical of the lack of effort made by defence counsel to obtain
    disclosure. He said, at para. 25:

The single generic disclosure request in July
    2015 could not reasonably be construed as putting each and every one of the
    dozens of officers who touched the file in any capacity under the disclosure
    microscope nor can the Crown by held to anticipate each and every discovery
    request that may arise as a case unfolds. Neither side has produced the output
    of this additional disclosure process to me. It is therefore impossible for me
    to assess the importance or materiality of any of it still less whether I can
    fault the Crown for having failed to produce it earlier
.

[17]

It is not clear to me what the
    application judge was attempting to imply when he referred to defence counsels
    disclosure request as generic. The fact is that defence counsel had made a
    detailed request for disclosure including, among other things, for disclosure
    of the notes of all of the police officers who were involved in the
    investigation and disclosure of all materials relating to an emergency
    interception, if any. These are normal and fundamental disclosure requests
    which the Crown ought to reasonably anticipate
.

[18]

There had been
    an emergency wiretap in this case. The Crown had not disclosed the identities
    of the officers involved in that wiretap and had not disclosed their notes
    until the issue arose at the preliminary hearing. It was at this point that
    defence counsel asked to hear from some of those officers which, in turn, led
    to a delay in completing the preliminary hearing. The defence also
wished to hear from some additional surveillance officers.
    Admittedly, the defence
was aware of the identities
    of those officers well before the preliminary hearing began.

[19]

Contrary to the
    application judges finding, all of these officers were under the disclosure
    microscope and the Crown ought to have anticipated that the defence might wish
    to hear from them. Certainly, that is the case with respect to the officers
    involved in the emergency wiretap. Those officers were involved in a critical
    aspect of the investigation. Contrary to the respondents submission, these
    were not officers who the defence could reasonably have known about through
    other disclosure or other witnesses. This fact was fairly acknowledged by the
    trial Crown when, at the time that the issue arose at the preliminary hearing,
    he said:

I think it more
    relates to Mr. Chernovsky has a number of people that he would still like to
    hear from, and in fairness to him, I think he got some late disclosure which
    resulted in his asking for other witnesses that the Crown hadnt envisioned
    calling.

[20]

Also, on this
    point, it is not up to the application judge to be independently satisfied of
    the importance or materiality of the
disclosure
sought. The fact is that these officers were involved in
    an important aspect of the investigation which justified the defence wishing to
    hear from them. Whether they had important or material evidence to provide
    could not, of course, be determined by defence counsel until they heard from
    them. I also note that the trial Crown did not suggest that these officers were
    immaterial or irrelevant nor did he object to the defence request to hear from
    them. Rather, the trial Crown very responsibly tried to make those officers
    available for examination as quickly as he could.

[21]

The event
    contributed to a delay in completing the preliminary inquiry from May 18, 2016
    to September 1, 2016. It was not the only event that led to that delay,
    however.

[22]

From the record
    before us, it appears that approximately six weeks of this three and one-half
    month period was due to the Crown having to arrange for these officers to be
    available to be examined. That period of time is properly characterized as
    Crown delay. The balance of the time was the result of a joint request of the
    Crown and the defence for some time to discuss possible resolution before
    addressing committal for trial. That period of time is properly considered as
    part of the inherent time requirements of the case.

[23]

In the end
    result, while the matter was in the Ontario Court of Justice, there was six
    weeks of Crown delay and seven months of institutional delay (two months in
    getting to the judicial pre-trial and five months to get to the preliminary
    inquiry). This period of institutional delay is within the
Morin
guidelines of eight to ten months.

[24]

Turning then to
    the period while the case was in the Superior Court of Justice, there was a
    period of 12 months and 9 days between the completion of the judicial pre-trial
    and the end of trial. The application judge attributed six months of this time
    to the inherent time requirements of the case and six months to institutional
    delay. Once again, it is not clear why the application judge concluded that six
    months was required for counsel to prepare for trial.

[25]

The application
    judge noted that defence counsel had said that they were prepared to start the
    trial as early as February 2017. However, the application judge then
    immediately discounted this fact. He said [t]hese assertions were of course
    made secure in the knowledge that such dates were not in fact available and
    there was thus no risk of the trial being scheduled then. He then went on to criticize
    defence counsel for not subsequently making any effort to advance the trial
    date, without any evidence that earlier trial dates would have been available.
    In doing so, he also failed to reflect the principle enunciated in
Jordan
, and
    in
Cody
, that both sides bear responsibility for
    ensuring that a trial proceeds as expeditiously as possible. The Crown also did
    not make any efforts to advance the trial date.

[26]

There was no
    basis for the application judge to mock counsels position as to when they could
    be ready for trial or to arbitrarily attribute six months to the required
    preparation time. The period of four months that counsel had indicated they
    needed in order to be ready for trial was the proper allocation of time to be
    attributed to the inherent time requirements of the case. The balance of eight
    months was institutional delay. That period of time also falls within the
Morin
guidelines, albeit just barely, of six to eight months.

[27]

In the end
    result, the total period of Crown and institutional delay was 16.5 months. The
Morin
guidelines for a two-stage case is 14 to 18 months.

[28]

Finally, there
    is the issue of prejudice. The application judge acknowledged that the
    appellant suffered prejudice as he was incarcerated throughout this time.
    However, the application judge rejected the defence position that the prejudice
    should be viewed as being greater for the appellant because he was incarcerated
    in the Toronto South Detention Centre, where there are frequent lockdowns
    arising from staff shortages, among other reasons.
[2]
The application judge said that, while he
    was not intending to condone the conditions at the Toronto South Detention
    Centre, he discounted any impact on the appellant because the appellant had
    taken steps to ensure that he was not transferred out of that institution.

[29]

The evidence
    was that the appellant chose to stay in the Toronto South Detention Centre
    because it meant that he would be closer to his family and closer to his
    counsel. It was inappropriate for the application judge to discount the
    prejudicial impact of the appellants incarceration, essentially on the basis
    that he was the author of his own misfortune because he could have sought a
    transfer to another institution, without any apparent concern for the personal
    impacts of such a decision. An incarcerated individual awaiting trial ought not
    to have to choose between contact with his/her family and counsel, just to
    obtain acceptable housing conditions.

[30]

I note, on this
    point, that the Toronto South Detention Centre is the principal detention
    facility for the entire City of Toronto. It is capable of housing 1,650
    individuals awaiting trial. It has also been the subject of scathing criticism
    for several years from many judges regarding the manner in which it is
    operated, and the consequent impact on the individuals housed there. A
    consistent theme in this criticism is the excessive number of lockdowns that
    occur in that facility: see, for example, the summary in
R. v. Persad
,
    2020 ONSC 188, at para. 29.

[31]

The application
    judges discounting of the prejudice suffered by the appellant on this basis is
    not only inappropriate, it is also counterproductive, because it shifts the
    focus about the problems associated with the Toronto South Detention Centre
    away from where it belongs: on the Ministry of the Solicitor General, which
    bears responsibility for the operation of correctional facilities in Ontario.

[32]

Considered
    properly, the level of prejudice to the appellant was significant. The
    countervailing consideration, though, is that the offences were very serious
    ones: a violent abduction that lasted nearly seven days and which involved the
    victim being physically tortured, before he was rescued by the police. A proper
    balancing of those considerations, given that the delay fell within the
Morin
guidelines,
    would not have warranted a stay under the pre-
Jordan
law.

[33]

I would also
    note, on the issue of prejudice, that
Jordan
expressly sought to remove prejudice from
    the s. 11(b) analysis, at para. 54. It ought not, therefore, to drive the
    analysis here. That is not to say that prejudice is not a concern. However,
    that concern can be addressed in other ways. One option is for the accused
    person to bring a fresh bail application, relying on the longstanding
    problematic conditions in the detention facility as a ground, by itself, to
    warrant a release. Another option is for a convicted person to seek, as the
    appellant did here, enhanced credit against any sentence imposed. The appellant
    received a credit of four additional months from the sentencing judge on this
    basis. It may well be that an even higher credit could have been allowed in
    these circumstances, but ultimately that was a matter for the discretion of the
    sentencing judge.

The final balancing

[34]

The delay in
    this case was only slightly over the
Jordan

ceiling of 30 months. In the application judges analysis, it was
    about two months, and, in my analysis, it would be about three months.

[35]

Further, the
    trial date in the Superior Court of Justice was set only three months after the
    decision in
Jordan
was released. Courts could not be
    expected to alter their scheduling practices overnight. Neither could it be
    expected that there would be an immediate influx of new judges and new
    courtrooms to accommodate a faster route to trial. As the majority observed in
Jordan
, at
    para. 97:

Parliament, the
    legislatures, and Crown counsel need time to respond to this decision, and
    stays of proceedings cannot be granted
en
    masse
simply because
    problems with institutional delay currently exist.

[36]

Consequently,
    this is a case to which the transitional exceptional circumstance applies. In
    that regard, I repeat what the majority said in
Jordan
, at
    para. 96:

This transitional exceptional circumstance
    will apply when 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.

[37]

I have already
    said that the delay in this case fell within the
Morin
guidelines. There was no reason, at least while the case was in the Ontario
    Court of Justice, for the parties to believe that they would be judged by a
    different standard. Further, there was no realistic prospect that the case
    could immediately move more quickly to trial just because of the
Jordan
decision. The application judge outlined some of the prevailing problems in the
    Superior Court of Justice that precluded that from happening. These are
    precisely the types of problems that led to the adoption of the transitional
    exceptional circumstance in
Jordan
.

[38]

Placed in its
    proper context, this was not a case where the delay justified a stay.

Conclusion

[39]

The appeal is
    dismissed.

Released: GH NOV. 25, 2020

I.V.B. Nordheimer J.A.

I agree. Grant Huscroft J.A.

I agree. B.W. Miller J.A.





[1]

R. v. Powell
,
    2017 ONSC 5658



[2]

The evidence showed that the appellant had spent 398 days in
    lockdowns during his incarceration.


