His Majesty the King v. Elijah Jacques-Taylor, 2024 ONCA 458

Court and Parties

COURT OF APPEAL FOR ONTARIO

DATE: 20240611 DOCKET: COA-23-CR-0743

Benotto, Favreau and Madsen JJ.A.

BETWEEN:

His Majesty the King Appellant

and

Elijah Jacques-Taylor Respondent

Counsel: Tracy Kozlowski, for the appellant Kayla Tink, for the respondent

Heard: June 3, 2024

On appeal from the order of Justice Edward Prutschi of the Ontario Court of Justice dated June 8, 2023, with reasons reported at 2023 ONCJ 243.

Reasons for Decision

[1] The Crown appeals the application judge’s decision under s. 11(b) of the Charter to stay the charges against Mr. Jacques-Taylor.

[2] Mr. Jacques-Taylor and three co-accused were charged with a series of firearms offences following a RIDE stop when two loaded firearms were found. The information was sworn on November 18, 2021.

[3] On July 6, 2022, the parties attended Blitz Trial Scheduling Court to set a trial date. The trial coordinator offered August 8, 2023. Counsel for the co-accused was not available. September 2023 was considered but counsel for Mr. Jacques-Taylor was not available. The trial coordinator offered October 2, 2023, which all parties accepted. This date was 22 months and 2 weeks after the information was sworn and 55 days after the first trial date offered, August 8, 2023.

[4] The application judge concluded that the net total delay was 18 months and 2 weeks, placing it two weeks over the presumptive 18-month Jordan ceiling: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. In coming to this conclusion, he deducted only the month of September 2023 as defence delay, when respondent’s counsel was not available. He also deducted three months to account for the COVID-19 backlog in the court system.

[5] The Crown submits that the application judge erred by not deducting the full 55 days from August 8, 2023 to October 2, 2023. In particular, it submits the application judge erred: (i) by treating the “contextual approach” outlined in R. v. Hanan, 2023 SCC 12, 426 C.C.C. (3d) 1, as applicable to the initial setting of dates; (ii) in failing to deduct the delay arising from counsel for the co-accused’s unavailability; and (iii) in deciding that the Crown should have mitigated the delay arising from the joint prosecution by severing the respondent.

[6] We do not accept these submissions.

[7] As the application judge found, Hanan mandates that, “all relevant circumstances should be considered to determine how delay should be apportioned among the participants”: Hanan, at para. 9. There is no categorical approach: see Hanan, at para. 9; R. v. Albinowski, 2018 ONCA 1084, 371 C.C.C. (3d) 190, at para 46.

[8] In declining to deduct the delay arising from a co-accused’s unavailability, the application judge referred to this court’s decision in R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, where the Crown argument “that delay by one accused should be attributed to all”, was rejected. This court held instead that, “an individualized approach must be taken to the attribution of defence-caused delay in cases of jointly-charged accused”: at para. 128. The application judge in this case found as fact that the co-accused did not proceed as a collective. This finding is supported by the evidence and entitled to deference: see Gopie, at paras. 128-136.

[9] The application judge did not require the Crown to sever. On the contrary, he referred to this as an “unpalatable” option, but recognized there were “tools” available to address the delay, particularly in the face of the respondent’s stated intention in July of 2022 to bring an 11(b) application.

[10] We see no error in the application judge’s conclusion.

[11] The appeal is dismissed.

“M.L. Benotto J.A.”

“L. Favreau J.A.”

“L. Madsen J.A.”