Date: 20180831 Docket: CR 14-15-00636 (Thompson Centre) Indexed as: R. v. Clemons Cited as: 2018 MBQB 144 COURT OF QUEEN'S BENCH OF MANITOBA IN THE MATTER OF: AND IN THE MATTER OF: The Criminal Code of Canada Section 7, section 11(b) and section 24(1) of the Canadian Charter of Rights and Freedoms B E T W E E N: HER MAJESTY THE QUEEN ) Counsel: ) - and - ) MICHAEL A. BODNER ) for the Crown ELMER BILL LAFOY CLEMONS, ) ) DAVID N. GRAY accused. ) for the accused ) ) JUDGMENT DELIVERED: ) AUGUST 31, 2018 Ruling re application under s. 11(b) of the Canadian Charter of Rights and Freedoms (the Charter ) SUCHE J. [1] Following a trial before me, I found Elmer Clemons guilty of sexual assault. He now brings an application for a judicial stay of proceedings alleging that his right to be tried within a reasonable time was violated.
Page: 2 BACKGROUND [2] Clemons was charged on August 22, 2013 as a result of an incident that occurred earlier that day. He was committed to stand trial on September 4, 2014 following a one-day preliminary inquiry. On November 22, 2014, his trial before a jury was scheduled for April 11 to 22, 2016. [3] In the fall of 2015, Clemons lawyer, Robert Mayer, fell ill. He announced his retirement from the practice of law on January 7, 2016. [4] Clemons had not been in contact with Mayer since the preliminary inquiry. He moved and did not advise Mayer of his new address. A lawyer at Mayer s firm, Margaret Carroll, attempted to reach Clemons on January 14, 2016. She called several phone numbers Clemons had provided and left messages. She also sent letters to him, one on January 22 and another on February 5, the latter by registered mail. She spoke to the Crown in January 2016 to explain the situation. [5] Clemons eventually contacted Carroll by phone on February 25, 2016. He told her he had lost his job some months prior. He was planning to apply to Legal Aid. [6] Carroll filed a notice of motion seeking permission for Mr. Mayer to withdraw as counsel of record. The matter came before the court on March 22, 2016. Clemons was present. He explained to the court that he had not been in touch with Mr. Mayer because he was laid off from his job and was not able to pay him. He wanted a Legal Aid lawyer to represent him. When asked what he
Page: 3 had done to find a lawyer, he said he had filled out an application for Legal Aid but had not heard back; his first action, he said, was to come to the motion. The court reminded him that the trial was only a matter of weeks away and asked if he was seeking an adjournment of the trial. He responded: Yeah that would be great because it ll give me time to talk with a lawyer. [Transcript of Proceedings, March 22, 2016, p. 3, lines 26-28] [7] Ms. Sweet, the Crown, spoke up and said that while it was obviously important for Clemons to have a lawyer, she was concerned about the delay and Clemons lack of contact with Mayer. She wanted the record to be clear that any adjournment was not the responsibility of the Crown but, rather, Clemons. [8] The court responded: So what Ms. Sweet is saying, Mr. Clemons, is she has no objection to Mr. Mayer no longer representing you and giving you a reasonable opportunity to get a new lawyer, even if that means adjourning the trial. The... concern she has is one of delay, and what she wants to make clear is that any delay from today s date forward to whenever a new date may be set is not attributable to the Crown. That is, the Crown is ready to go, any delay may not be your personal fault, per se. That s hard to know, I mean there s some evidence of lack of communication with Mr. Mayer, but certainly it isn t attributable to the Crown. And as long as it s agreed and accepted that that is the situation go forward anyway, then she would be prepared to agree to the trial being adjourned so that you can have a reasonable opportunity to secure a new lawyer. [Transcript of Proceedings, March 22, 2016, p. 4, lines 30-34, and p. 5, lines 1-10] And also: So there is going to be a lengthy delay. I think that we re looking at dates more than a year from now. Perhaps May of 2017. There were some dates available in May. There are some dates in April but the difficulty is it s very chopped up. There s a long weekend for Easter, four
Page: 4 days. There s also a four-day weekend because there s a judicial conference on the Thursday/Friday, so with several weeks very truncated; it might be harder to efficiently conduct a jury trial that s going to be seven or eight days that is going over a period of two weeks. [Transcript of Proceedings, March 22, 2016, p. 5, lines 22-32] [9] In fact, the first available two-week block was September 18 to 29, 2017. The trial was set for that time, and Mr. Clemons was told he should tell his new lawyer about the date. [10] A pre-trial conference took place on September 20, 2016. Mr. Clemons new lawyer appeared and advised he required time to review the transcripts of the preliminary inquiry and determine whether he would adopt the approach of the previous defence counsel. He had not yet considered re-election or resolution. He said nothing about delay. [11] Another pre-trial conference took place on January 20, 2017. The defence advised that Clemons was going to re-elect to judge alone. Counsel agreed that the trial only required one week. It seems there was no mention of delay. [12] The trial took place September 18 to 21, 2017. I gave my decision on September 25, 2017 and ordered a pre-sentence report, including a Gladue assessment, the preparation time for which was 12 weeks. On October 2, 2017, sentencing was scheduled for March 26, 2018. [13] On February 7, 2018, Mr. Clemons lawyer withdrew as counsel, and Mr. Clemons confirmed he had retained Mr. Gray to represent him.
Page: 5 [14] On March 13, 2018, Mr. Gray advised the court that he had assumed conduct of the defence and asked that the sentencing hearing be adjourned to allow him to bring this motion. THE LAW [15] In R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada set 30 months as a time limit for completion of trials in a superior court. Beyond that, the law presumes the accused s right to a fair trial has been violated and the Crown bears the onus of proving otherwise. [16] The 30-month ceiling is not absolute. Jordan requires that any delay caused by the defence is to be deducted. Further, if exceptional circumstances caused delay the time frame will be adjusted. Exceptional circumstances are events beyond the Crown s control because they were reasonably unforeseen or reasonably unavoidable, and the Crown could not have reasonably remedied them once they became known. [17] For cases in the system prior to the ruling, Jordan directed that the framework must be applied contextually and flexibly for reasons of fairness and practicality, and to ensure the integrity of the justice system. [18] After these adjustments are made, if the delay still exceeds the ceiling, transitional exceptional circumstances will apply if the Crown demonstrates that the time was justified on the basis of the parties reasonable reliance on the law as it previously existed; that is, the framework in R. v. Morin, [1992] 1 S.C.R. 771.
Page: 6 ANALYSIS AND DECISION [19] This case raises the following issues: 1. The proper characterization of the request for the adjournment was it a waiver of s. 11(b), defence-caused delay or exceptional circumstances? 2. What, if any, obligation did the Crown have to mitigate the delay, and did it meet that obligation? 3. What is the correct treatment of the six months delay from conviction to sentencing? 4. Was Mr. Clemons s. 11(b) right violated? [20] This motion was argued on May 29, 2018. In order to minimize the delay involved, I gave a ruling on July 3, 2018, being the first date counsel was available after June 11, 2018, which was the date initially offered. [21] I advised the parties I was dismissing the motion and a brief summary of why. I advised counsel that reasons for my decision would follow. They do now. 1. Was the delay waived? [22] In Jordan, the Supreme Court discussed waiver as one category of defence delay: [61] Defence delay has two components. The first is delay waived by the defence (Askov, at pp. 1228-29; Morin, at pp. 790-91). Waiver can be explicit or implicit, but in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the
Page: 7 effect waiver will have on those rights. However, as in the past, "[i]n considering the issue of 'waiver' in the context of s. 11(b), it must be remembered that it is not the right itself which is being waived, but merely the inclusion of specific periods in the overall assessment of reasonableness" (R. v. Conway, [1989] 1 S.C.R. 1659, per L'Heureux- Dubé J., at p. 1686). And as Sopinka J. stated in Morin, at p. 790: 38 Waiver requires advertence to the act of release rather than mere inadvertence. If the mind of the accused or his or her counsel is not turned to the issue of waiver and is not aware of what his or her conduct signifies, then this conduct does not constitute waiver. Such conduct may be taken into account under the factor "actions of the accused" but it is not waiver. As I stated in Smith, supra, which was adopted in Askov, supra, consent to a trial date can give rise to an inference of waiver. This will not be so if consent to a date amounts to mere acquiescence in the inevitable. [23] The defence says that Clemons was not in a position to give an informed waiver. He was self-represented and did not have the benefit of legal advice. He was not properly informed that he had a s. 11(b) right, and that he was giving it up. His agreement to the new trial date was mere acquiescence. [24] I disagree. Mr. Clemons requested the adjournment. The court told him in very clear language that an adjournment would delay the trial a year or more, and the delay would not be considered the Crown s fault, but his. His affidavit reveals that he understood his choices were to act for himself, proceed with Ms. Carroll, whom he felt had insufficient experience to take on his case, or adjourn the trial. His answer to the court s question of whether he was seeking an adjournment, Yeah... that would be great... exhibits a level of enthusiasm inconsistent with mere acquiescence.
Page: 8 [25] The circumstances as a whole also do not reveal any sense of urgency on Clemons part. He had not been in contact with Mr. Mayer for months; and at least by February 25, when he spoke with Ms. Carroll, he had decided to apply to Legal Aid, but all he had accomplished in the intervening month was to fill out an application. Of note, the issue of delay was not raised by his next lawyer or at all until a few weeks before sentencing. [26] It is true that nowhere in the exchange between Clemons and the court on March 22, 2016 was there specific reference to s. 11(b) and the right to a trial within a reasonable time. However, I conclude that the circumstances as a whole give rise to an inference that Mr. Clemons understood he had the right to have his trial heard in a timely way. In seeking an adjournment, he understood he was giving up that right for the period between April 2016, when the trial was then scheduled, and the new trial date of September 2017, which is 17 months. If not waived, was the delay due to exceptional circumstances or the conduct of the defence? [27] In addition to waiver, delay caused by the defence, whether intentionally or not, is also deducted in the time calculation. Jordan states: [63] The second component of defence delay is delay caused solely by the conduct of the defence. This kind of defence delay comprises "those situations where the accused's acts either directly caused the delay... or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial" (Askov, at pp. 1227-28). [64] As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay,
Page: 9 even if defence counsel is also unavailable. This should discourage unnecessary inquiries into defence counsel availability at each appearance. Beyond defence unavailability, it will of course be open to trial judges to find that other defence actions or conduct have caused delay (see, e.g., R. v. Elliott (2003), 114 C.R.R. (2d) 1 (Ont. C.A.), at paras. 175-82). [28] As for exceptional circumstances, Jordan describes them as: [69] Exceptional circumstances lie outside the Crown's control in the sense that (1) they are reasonably unforeseen o reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon. [Emphasis supplied in Jordan] [29] Exceptional circumstances are generally either discrete events or particularly complex cases, and their existence is a question of fact to be determined by the trial judge. One example cited in Jordan is medical or family emergencies (whether on the part of the accused, important witnesses, counsel or the trial judge) (para. 72). [30] The defence says Mr. Mayer s illness was unforeseen and unavoidable and falls within the example of a medical emergency. I disagree. [31] Mr. Mayer became ill in the fall of 2015. He announced his retirement on January 7, 2016. The motion seeking leave for him to withdraw as Mr. Clemons lawyer was not brought before the court until March 22, 2016. [32] I accept that Mr. Mayer s illness was completely unexpected, but it was not an emergency. Sometime prior to January 7, 2016 (when he gave notice of retirement from practice) his inability to continue to act as Mr. Clemons lawyer
Page: 10 was known. The delay thereafter in getting before the court was significant. Some of this was caused by Clemons himself he had not told them he had moved and did not respond to Carroll for well over a month. [33] Given all of this, I conclude that this was not a situation of exceptional circumstances but defence-caused delay: specifically, the defence was not ready to proceed. 2. The Crown s duty to mitigate delay [34] The defence argues that where delay is defence-caused, the Crown is required to take all reasonable steps to reduce or avoid the impact of that delay. I disagree. [35] The obvious reason for the distinction between defence-caused delay and delay arising from exceptional circumstances is to differentiate between the roles these situations play in the new s. 11(b) analysis. The former is simply deducted. The latter will only be deducted if the Crown shows, [70]... that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful rather, just that it took reasonable steps in an attempt to avoid the delay...... [75] The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of
Page: 11 prioritizing cases that have faltered due to unforeseen events (see R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625). Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e. it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events). [36] This distinction makes sense, of course. Both Morin and Jordan specifically recognized an obvious truth: some accused persons are not only content but would prefer to see their trials delayed for as long as possible. For the system to work, then, there should be no circumstance where the defence can benefit by causing delay. Imposing an obligation on the Crown and the justice system to mitigate delay caused by the defence has the potential for doing exactly that. [37] This is not to ignore that the new role of the Crown is to be both the responsible manager and the good shepherd of criminal prosecutions, obliged to pay attention to each case and move it through the system as expeditiously as possible. Here, the Crown was available for the first date offered for both the new trial and the sentencing, and otherwise did not add to any delay. I conclude it met its obligations. 3. Is sentencing to be included in determining the time to completion of trial? [38] In setting the presumptive ceiling at 30 months to the end of trial, Jordan referred to the issue of sentencing this way: [49] For cases going to trial in the superior court, the presumptive ceiling is 30 months from the charge to the actual or anticipated end of trial. 2...
Page: 12 2 This Court has held that s. 11(b) applies to sentencing proceedings (R. v. MacDougall, [1998] 3 S.C.R. 45). Some sentencing proceedings require significant time, for example, dangerous offender applications or situations in which expert reports are required, or extensive evidence is tendered. The issue of delay in sentencing, however, is not before us, and we make no comment about how this ceiling should apply to s. 11(b) applications brought after a conviction is entered, or whether additional time should be added to the ceiling in such cases. [39] In my view, this makes it clear that the Supreme Court of Canada was not intending to alter the law in this area; that is, the decision in R. v. MacDougall, [1998] 3 S.C.R. 45, continues to be authority. This is the interpretation applied by most of the decisions that have considered the question. See R. v. Patel, 2017 ONSC 5827; R. v. Dadmand, 2017 BCSC 1644; R. v. Warring, 2017 ABCA 128; R. v. Tsega, 2017 ONSC 3090; R. v. K.G.K., 2017 MBQB 96. [40] In MacDougall, the Supreme Court of Canada held that s. 11(b) applies to the period post-conviction and prior to sentence. However, in the postconviction phase of proceedings the interests engaged by s. 11(b) are more attenuated in the circumstances than in the pre-conviction phase. [41] The inherent time requirements of sentencing include the time required to prepare pre-sentence material, subpoena necessary witnesses and schedule the sentencing proceeding. For the reasons explained in the footnote in Jordan, above, the reasonableness of the inherent time requirements of sentencing must be assessed on a case-by-case basis. Whether delay at this stage is unreasonable requires consideration of the length of delay, reasons for delay, any waiver by the accused and prejudice suffered by the accused (see
Page: 13 MacDougall, para. 60). It is of note as well that inherent time requirements of sentencing also did not fall within the pre-conviction periods established in Morin and Askov. [42] Here, the delay was due, in part to the time required to prepare the pre-sentence report, but also because I was not available as I was assigned to hear several lengthy criminal trials during the early part of 2017. The latter fact is an unfortunate reality in scheduling a sentencing: unlike a trial where one of many judges could be assigned, only the trial judge can hear the sentencing. [43] In the end, I conclude that the time from conviction to sentencing was not unreasonable. 4. Was Clemons right to be tried within a reasonable time violated? [44] The total time from charge to conviction was 49 months. When the 17- month delay resulting from the adjournment is deducted, the time remaining is 32 months. This is two months over the Jordan ceiling. [45] The transitional exceptional circumstance assessment applies to this case. It is a qualitative notion with two underlying principles: the parties cannot be judged by standards of which they had no notice; and change takes time (R. v. Cody, 2017 SCC 31, paras. 68-69; Jordan, paras. 94-98). [46] The assessment is contextual and must be sensitive to the manner in which the Morin framework was applied, and requires the good sense of trial judges to decide whether delay has been reasonable in any given case (Jordan, para. 98). The trial judge s knowledge of systemic and institutional
Page: 14 circumstances is essential, particularly in jurisdictions with significant problems with institutional delay, since such a reality constrains the Crown s behaviour. [47] Further, the system lawmakers, court administration and Crowns themselves needs time to respond to the new framework. Thus, even significant institutional delay will not automatically result in a stay of proceedings (Jordan, para. 97). [48] Recognizing the former reality, Cody made the point that, [70]... This Court's decision in R. v. Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741, should not be read as discounting the important role that the seriousness of the offence and prejudice play under the transitional exceptional circumstance. The facts of Williamson were unusual, in that it involved a straightforward case and an accused person who made repeated efforts to expedite the proceedings, which efforts stood in contrast with the Crown's indifference (paras. 26-29). Therefore, despite the seriousness of the offence and the absence of prejudice, the delay exceeding the ceiling could not be justified under the transitional exceptional circumstance. This highlights that the parties' general level of diligence may also be an important transitional consideration. But the bottom line is that all of these factors should be taken into consideration as appropriate in the circumstances. [49] As for the Morin considerations, the case itself was not complex. It was agreed that the parties had sexual intercourse. The only question was whether it was consensual. The Crown called six witnesses; the defence called four witnesses. The case was set for a week but was completed in four days. [50] To be considered is the fact that Clemons had elected to be tried before a jury, the inherent time for which is always greater than a judge alone trial. As the transcript of the March 22 court appearance shows, the trial could have been
Page: 15 heard in April 2017 were it before a judge alone. This would have brought the total time period down to 27 months. [51] The delay otherwise was entirely institutional. The Crown was late with some disclosure, but this did not affect setting dates for either the preliminary inquiry or the trial. The matter proceeded without interruption. The real and overwhelming problem in this case was the significant delays endemic in the Thompson judicial centre. This was so both when the initial and subsequent trial dates were set. [52] This situation was the result of far more than the limited number of courtrooms at the Thompson courthouse, although that was one factor. Lack of availability of both Crown and defence counsel, limited experienced defence lawyers, the nature of the cases themselves a high number of serious and violent offences, including sexual assaults, which are often not capable of resolution and the challenges presented when prosecutions arise from situations in communities distant from Thompson, were all factors at play. [53] This court has been involved in concerted and focussed efforts to address the problem of delay in Thompson since 2013. This includes creation of a team of judges to oversee pre-trial and resolution conferences with a view to streamlining or resolving cases where appropriate; comprehensive review of all cases set for trial; centralization of scheduling; and outreach and consultation with members of the Bar, Department of Justice officials and the Provincial Court. The Law Society of Manitoba was also engaged, as part of an attempt to
Page: 16 address the limited number of lawyers practising in the north. These efforts were directed at bringing the length of time to trial in line with that in the Winnipeg judicial centre, which was operating on the basis of the Morin guidelines. [54] As was the case in every judicial centre, these efforts were re-examined and somewhat intensified after Jordan was decided. [55] As of the fall of 2017, the time from first appearance of a case in assignment court to trial, for the most part, is now well within or at least within the Jordan guidelines. Of course, indictable offences are a two-stage process, so delays at Provincial Court sometimes still impact the ultimate time to completion of trial. [56] In evaluating the Crown s response to the new time frames, the stage of the proceedings when Jordan was released is to be considered. The court in Cody directed: [71] When considering the transitional exceptional circumstance, trial judges should be mindful of what portion of the proceedings took place before or after Jordan was released. For aspects of the case that predated Jordan, the focus should be on reliance on factors that were relevant under the Morin framework, including the seriousness of the offence and prejudice. For delay that accrues after Jordan was released, the focus should instead be on the extent to which the parties and the courts had sufficient time to adapt (Jordan, at para. 96). [57] Here, the only possibility of changing course came at the January 2017 pre-trial conference. The defence advised that Mr. Clemons would be re-electing to judge alone. As a result, the time scheduled for trial was reduced to one week. The pre-trial memorandum makes no reference to any discussion about
Page: 17 consideration of an earlier trial date. Certainly, there was no request by the defence to this effect. In any event, given the ongoing efforts to utilize court time described above, it would be virtually certain that there would not be a week of court time available before the end of June. [58] So, while this pre-trial occurred approximately six months after the release of Jordan, given that the case was set for trial, absent an opening in the court schedule during the five months left until the end of the court term, there really was nothing that could be done by the Crown or the court. No case is an island, after all. [59] In light of all of the above, I find that the Crown did not fail in its obligations by not taking steps to try to advance the trial date. [60] As to other considerations, the prejudice from this delay was limited. Clemons was on bail while awaiting trial, so his liberty rights were minimally affected. It was not argued that trial fairness was affected. Certainly, the passage of time is always a factor in situations where witnesses are required to recall events, and this was true in this case. Ultimately, it was not a significant issue. It was made somewhat worse, however, by the fact that at least some of the defence witnesses gave statements to Mr. Mayer that were not transferred to Clemons new lawyer. As a result, these witnesses did not have access to them prior to giving their testimony. The fact that delay was not raised until a few weeks before sentencing suggests that prejudice was not a concern.
Page: 18 [61] The fact that at no time did the defence raise delay or take any active steps to move matters forward is also a consideration. At the pre-trial conference in September 2016, Clemons new counsel had not yet reviewed the preliminary inquiry transcript, nor was he able to advise of his position on any issues. [62] Finally, this is a serious charge. It involved non-consensual sexual intercourse with someone who was essentially a stranger. The public interest in proceeding with the prosecution is significant. [63] I note that there are several transitional cases from this court where delay in excess of 32 months has been held to be reasonable. These include R. v. Amyot and Emslie, 2016 MBQB 186, R. v. Richard, 2017 MBQB 11, R. v. Summerfield, 2016 MBQB 241. [64] For all of these reasons, then, I find that Mr. Clemons rights under s. 11(b) of the Charter were not violated. The motion is dismissed. J.