R. v. Harris-Lowe, 2021 ONCJ 260

ONTARIO COURT OF JUSTICE DATE: 2021-05-03 Central East Region

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

CRAIG HARRIS-LOWE

Before: Justice J. Bliss

Heard on: April 22, 2021 Reasons for Judgment released on: May 3, 2021

Counsel: M. MacDonald, counsel for the Crown J. Naresh, counsel for the accused Craig Harris-Lowe

BLISS J.:

1Craig Harris-Lowe argues that his right to a trial within a reasonable time guaranteed by s.11(b) of the Charter, has been violated, and that the charges against him should be stayed. On May 10, 2018, the applicant was charged with theft of a motor vehicle, operating a motor vehicle while his ability to do so was impaired by alcohol, and operating a motor vehicle with a blood alcohol concentration above 80 milligrams of alcohol in 100 millilitres of blood. The information was sworn on June 13, 2018. Although theft over $5,000 is a straight indictable matter, the Crown deferred its election until December 4, 2019. The trial was scheduled for January 29, 2020. One week prior to trial, the Crown withdrew the theft over charge and sought leave to proceed summarily on the remaining charges. The defence took issue with the Crown being able to do so in the absence of the defendant’s consent. By agreement, the trial date was vacated and the Crown’s application was put to that date. On that day, the defence consented to the re-election and the matter was put over for a new trial date to be scheduled.

2The applicant’s trial was rescheduled for June 26, 2020 and July 3, 2020. The trial did not proceed then because trial proceedings were suspended due to the COVID pandemic. The trial is now scheduled to commence on June 11, 2021 and conclude on June 29, 2021. The applicant applies for an order staying the proceedings pursuant to s.24(1) of the Charter for breach of the applicant’s right to trial within a reasonable time as guaranteed by s.11(b) of the Charter.

3Crown and defence jointly submitted that the “end” date to be used for the s.11(b) calculation is January 29, 2020. They agree that the trial dates offered after then, but before the declaration of the COVID pandemic emergency and suspension of court proceedings on March 16, 2020, were not available to the defence and that the subsequent delay in scheduling the applicant’s trial was due to the exceptional circumstances of the pandemic.

4There is no dispute that R. v. Jordan 2016 SCC 27, [2016] S.C.J. No. 27 fixes a presumptive ceiling on the time it should take to bring an accused person to trial at 18 months for cases in the Ontario Court of Justice. The Court wrote:

If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow. (Jordan, para 47)

If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (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. We expect stays beneath the ceiling to be rare, and limited to clear cases. (Jordan, para 48)

5After the total delay from the charge to the actual or anticipated end of trial is determined, delay attributable to the defence must be subtracted. As the Court observed, “[t]he defence should not be allowed to benefit from its own delay-causing conduct. As Sopinka J. wrote in Morin : "The purpose of s. 11( b ) is to expedite trials and minimize prejudice and not to avoid trials on the merits." (Jordan, para 60)

6Defence delay has two components:

1. Delay waived by the defence. 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 effect waiver will have on those rights.
2. 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". (Jordan, para. 63)

7“Defence delay” was explained in Jordan (supra), and R. v. Cody 2017 SCC 31: 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. Periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. (Jordan, para 64)

8The Supreme Court of Canada made it clear that “[d]efence conduct encompasses both substance and procedure – the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay. (Cody, at para 32)

9Defence conduct is subject to scrutiny:

Accused persons must bear in mind that a corollary of the s. 11(b) right "to be tried within a reasonable time" is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to "actively advanc[e] their clients' right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and ... [use] court time efficiently (Cody, para 33; Jordan, para. 138)

10As the Court in Cody (supra) wrote:

In broad terms, the second component is concerned with defence conduct and is intended to prevent the defence from benefitting from "its own delay-causing action or inaction" (Jordan, at para. 113). It applies to any situation where the defence conduct has "solely or directly" caused the delay (Jordan, at para. 66) (Cody, para 28)

The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges.(Cody, para 30).

It remains open for a trial judge to find that other defence actions or conduct have caused delay warranting deductions (see Jordan, para 64).

11If the delay not caused by the defence exceeds the 18 month ceiling, it is presumptively unreasonable. The Crown may rebut this presumption, however, by showing that the delay is reasonable because of the presence of “exceptional circumstances”. (Jordan, supra, para 68) Exceptional circumstances are considered to lie outside the Crown's control if they are: (1) reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. (Jordan, supra, para 69)

12The Supreme Court of Canada recognized that “[d]iscrete, exceptional events that arise at trial may also qualify and require some elaboration. Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay…Trial judges should be alive to the practical realities of trials, especially when the trial was scheduled to conclude below the ceiling but, in the end, exceeded it. In such cases, the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling. Trial judges should also bear in mind that when an issue arises at trial close to the ceiling, it will be more difficult for the Crown and the court to respond with a timely solution.” (Jordan, at para 73-74)

13There is an obligation on all parties to seek to mitigate the delay. When the presumptive ceiling is at risk, or has been exceeded, it lies with all judicial participants, including the defence, to strive to mitigate the delay and prioritize such cases.

14If delay falls below the presumptive ceiling, the defence must demonstrate that it took meaningful, sustained steps to expedite the proceedings. “Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the court must consider. The trial judge is to consider what the defence could have done, and what it actually did, to get the case heard as quickly as possible. Substance matters, not form.” (Jordan, para 84). The majority in Jordan cautioned, however, that “trial judges should not take this opportunity, with the benefit of hindsight, to question every decision made by the defence. The defence is required to act reasonably, not perfectly.” (Jordan, para 85)

15Jordan sent a clear message to crown, defence and judiciary that the criminal justice system needed a change in culture and that it was no longer “business as usual”. The crown and defence need to be part of the solution and the courts more accountable. Ultimately, the Court wrote, “all participants in the justice system must work in concert to achieve speedier trials. After all, everyone stands to benefit from these efforts.” (Jordan, para 116)

The Timeline in the Case at Bar

16The following timeline provides a summary of the history of this matter:

• May 10, 2018: Applicant charged
• June 13, 2018: Information sworn
• June 20, 2018: Articling students attends for first appearance – no disclosure – put to July 18th for it be couriered to office
• July 18, 2018: Additional disclosure provided and to August 15th to review
• August 15, 2018: No-one appears – discretionary warrant to September 5th
• Sept. 5, 2018: Agent for counsel – defence request to go to October 3rd to schedule Crown resolution meeting
• Oct. 3, 2018: Agent for counsel – defence request to go to October 17th for instructions. No crown resolution held.
• Oct. 17, 2018: Agent for counsel – crown resolution meeting held – defence request to November 7th for instructions
• Nov. 7, 2018: Agent for counsel requesting four week adjournment to schedule crown resolution meeting – crown notes no resolution meeting has been held and requesting 11(b) waiver – court notes concern of about no resolution meeting having been held and adjourns to November 21st for that to take place.
• Nov. 21, 2018: Agent for counsel requesting four week adjournment for crown resolution meeting – crown expresses concern with delay – and matter put to December 12th
• Dec. 12, 2018: No one appears and discretionary warrant issued returnable December 19th
• Dec. 19, 2018: Agent for counsel requesting judicial pre-trial be scheduled in January or February – crown indicates crm had been scheduled for November 23rd and no-one called and attempt to contact counsel unsuccessful – crown agrees for matter to go to Feb 5th for JPT to move matter along with defence to have crm in interim – court offers Jan 8th for JPT but unlikely be able to schedule crm in interim
• Feb. 5, 2019: No one appears – crown indicates no crm held in interim so no JPT could– crown spoke with counsel who advised will contact crown’s office on Feb 8th for crm and JPT will have to be adjourned to Feb 13th to schedule JPT
• Feb 13, 2019: Agent not able to attend – counsel letter to Crown’s office – CRM held on February 8th – Crown indicates electing summarily then retracts and seeks to hold off electing as potential resolution for one matter – crown indicates estimate of ¾ day for trial which would then not require JPT – defence request for February 20th – matter marked peremptory
• Feb. 20, 2019: Assigned lawyer not able to attend as stuck behind accident – matter to next date of March 6th
• March 6, 2019: Email sent by articling student seeking JPT be scheduled- that needs to bring severance application and is expecting 1.5 days for trial but is prepared to set trial date and provides available dates from May 2019 to August 2019 which not available to the court – Court adjourns matter for one week to set a date and notes three full days available for trial in March and April and then not until January 2020 but agent not provided with dates for counsel’s availability for that time period. Matter to March 13th
• March 13, 2019: Counsel not available for trial dates provided up to May 27th – remaining dates are not with same jurist – first available date with same jurist for 1 day trial of January 29, 2020 selected with status hearing for October 9, 2019.
• Oct 9, 2019: Counsel seeks three week adjournment of status hearing for further discussions before confirming trial date. Returning November 6th
• Nov 6, 2019: Crown initially seeks to elect to proceeds summarily then notes one charge theft over is straight indictable – crown seeks to defer formal election – agent for counsel seeks matter return in two week for instructions about elections and to file certificate of readiness
• Nov 20, 2019: Crown advises crown now wishes to elect for preliminary hearing which may not be available – agent for counsel present – (transcript incomplete matter returns Dec 4th)
• Dec 4, 2019: J. Naresh attends and advises wished to elect preliminary hearing and had previously stated such but record does not reflect that – defence request to vacate trial date and order transcripts to show he anticipated electing preliminary hearing – crown opposes and takes position that no preliminary hearing sought before September 19, 2019 amendments – court of view that trial date should remain as either preliminary hearing if available or trial – Court orders application for preliminary hearing be filed by December 16th and crown response in advance of hearing on December 19th – trial date not vacated.
• Dec 19, 2019: Crown indicates spoke with counsel who advised no application being made for preliminary hearing and that working on proposal that would not proceed on theft over count and would enable crown to elect summarily – counsel not able to get instructions and not able to attend court as was required to attend another matter in Woodstock – agent contacted at 8 a.m. to appear and advises on behalf of counsel that seeking adjournment to December 31st for instructions – court indicates presumption is matter will proceed to trial on January 29, 2020 with status hearing adjourned to December 31st with an order than counsel appear
• Dec 31, 2019: J. Naresh appears and indicates C. Barry is counsel and maintains intention was always to have a preliminary hearing and that since election only made on December 8th no ability to make that election – concedes that since use agents that transcripts would not reflect intention to have a preliminary hearing– Mr. Barry out of country and seeking a day to return to argue should be preliminary hearing – since Mr. Barry only returning mid-January and trial scheduled for late January would be Mr. Naresh making the argument – s.11(b) is waived until the next date if able to make the argument – crown seeks for trial to be confirmed – Court puts matter for trial and if defence seeks to bring application to convert trial to preliminary hearing expect application before trial judge and can address whether to hear matter or proceed to trial
• Jan. 22, 2020: J. Naresh attends and concedes that preliminary hearing not available and defendant wishes to be committed to trial in Superior Court of Justice as per election to proceed by indictment – Crown verbalizes offer to withdraw theft over with defence consent to summary election on other matters rejected by defence – then withdraws theft over charge – Crown seeks to elect summarily in absence of consent with leave of the court – defence still seeking to vacate trial date – court vacates trial date and converts it to hearing of argument – endorsement that prior election to proceed by indictment that counsel sought order vacating trial and committing applicant to trial in Superior Court – applicant not present – crown withdrew indicatable offence and sought leave to re-elect to proceed summarily and have trial proceed January 29, 2020 as scheduled – applicant not consenting so court agrees to vacate trial date and convert trial to hearing of crown motion
• Jan. 29, 2020: J. Naresh attends and consents to re-election – defence submits delay is responsibility of the Crown – Crown disagrees – matter to February 4th to set new date
• Feb. 4, 2020: Crown of view ¾ day – defence had indicated on trial form 2 days for trial – dates offered of February 20, February 24 and April 27 not available to defence, June 26, 2020 and July 3, 2020 were selected for trial with status hearing May 5, 2020
• March 16, 2020: COVID pandemic declared
• May 5, 2020: Trial dates vacated due to COVID and COVID JPT to be scheduled as per OCJ protocol and to be spoken to on July 14th
• July 14, 2020: COVID JPT has been held – presumptive adjournment to September 22nd
• Sept. 22, 2020: Matter adjourned to October 13th for trial scheduling forms to be filed and schedule new trial dates
• Oct. 13, 2020: Articling student requests one week adjournment – defence needs to file trial scheduling form and have scheduling meeting arranged – to October 27th
• Oct 27, 2020: Articling student attends and seeks to have matter return December 1st
• Dec. 1, 2020: No one appears to speak to matter – discretionary warrant to December 8th
• Dec. 8, 2020: Articling student attends – trial scheduling conference scheduled for December 17th – matter to return December 22nd
• Dec. 22, 2020: Trial dates set for June 11 and June 29, 2021 with s.11(b) application for April 8, 2021
• June 29, 2021: Anticipated conclusion of trial

17Both applicant and respondent submitted that the end date I should use to calculate the delay in this case is the first trial date of January 29, 2020. The applicant conceded that the defence was responsible for the delay rescheduling the second trial date beyond the February and April, 2020 dates offered as they could not be set then because of counsel’s unavailability. The applicant also conceded that the delay caused by the suspension of trial proceedings due to the COVID-19 pandemic was an exceptional circumstance that no party was able to mitigate.

18The total delay from charge date on May 10, 2018 to anticipated conclusion of the evidence on June 29, 2021 is 1146 days. The time from charge to first trial date on January, 29 2020 is 629 days which is above the 547 day presumptive ceiling set by the Supreme Court of Canada.

19The applicant submits that, but for, the Crown’s failure to elect in a timely fashion, proceeding by indictment, then withdrawing the only straight indictable offence, then applying to proceed summarily without, and then with, the applicant’s consent, the trial could have proceeded as scheduled.

20During the oral hearing, the applicant conceded that COVID-19 was an exceptional circumstance that impacted scheduling and that the subsequent trial dates that had been scheduled on June 26, 2020 and July 3, 2020 were vacated because of those exceptional circumstances. Notwithstanding that concession, I will also consider the time period from January 29, 2020 to the second trial date as they were set before the COVID pandemic, but share the view that the rescheduling scheme implemented as a result of the pandemic is an exceptional circumstance for s. 11(b) purposes.

21The applicant contends that the defence consistently took meaningful steps to expedite proceedings, and that there is nothing in the record to indicate that the defence was deliberately delaying the proceedings. He submits that the Crown must bear the responsibility for the trial not proceeding on January 29, 2020 and the unreasonable delay caused as a result.

22The respondent, not surprisingly, take a different view. The Crown submits that all of the delay following the cancellation of the first trial date was caused by the defence, and that in particular, the following time periods were solely caused by defence action or inaction and should be deducted from the total delay being considered.

• August 15 to September 5, 2018, defence delay (non-attendance) = 21 days
• December 12, 2018 to December 19, 2018, defence delay (non-attendance) = 7 days, but see entry below
• September 5, 2018 to February 13, 2019, defence delay (in holding CRM/JPT, 12 appearances – For CRM) = 161 days
• Feb 20, 2019 to March 13, 2019, defence delay (in setting date) = 21 days
• March 21 to May 27, 2019, defence delay (not available for trial) = 67 days

23The Crown characterizes the delay between February 20, 2019 and March 6, 2019 as an exceptional or discrete event when counsel was unable to appear in court because of being stuck behind a collision during a snowstorm and the matter was adjourned as a result. I agree, and will deduct 14 days during that first time period for this exceptional circumstance.

Analysis

24The approach in Jordan and Cody seeks to avoid microcounting and attribution of blame, and substitutes a more global approach to the analysis that recognizes the shared responsibility of all judicial participants to mitigate trial delays. The applicant submits that even the time to the first trial date exceeded the 18 month presumptive ceiling and that the time to the anticipated conclusion of trial, even considering the impact of COVID, highlights the further erosion of his right to a trial within a reasonable time.

25While the calculation of delay post- Jordan involves a more global approach consistent with the notion of shared responsibility, there is still a need to consider what caused the delay in the first place. While both defence and crown say that I should consider only the period of time up to the first trial date, I will also consider the delay to the second trial date that was set pre-COVID.

26I will also address briefly, given the applicant’s concession, to what extent the exceptional circumstance the COVID-19 pandemic, and the necessity of the Courts’ response to that pandemic, accounts for the further delay in the applicant’s trial to its anticipated conclusion.

27I note, at outset, that although the respondent used the date the information was sworn as the start time, the language in Jordan, Cody and most recently in R. v. K.G.K. 2020 SCC 7, 2020 SCJ 7 all speak of the start date of the s.11(b) calculation commencing from the date of charge and, as clarified in K.G.K., (supra) ending at the actual or anticipated end of the evidence and argument.

28The applicant was charged on May 10, 2018. The evidence and argument is anticipated to end on June 29, 2021. The total delay to that date is 1146 days which exceeds the 18 month presumptive ceiling of 547 days.

The First Time Period from May 10, 2018 to January 29, 2020

29I consider the following time periods to be defence delay i.e. delay explicitly or implicitly waived by the defence or delay caused solely by the conduct of the defence. I do so because the record is clear that the adjournments were caused solely by counsel or agent failing to appear for court appearances, repeated failure by defence to have a crown resolution meeting, delays caused by the defence scheduling a Judicial Pre-trial that would have been apparent was not required had they had a crown resolution meeting then not showing up for the Judicial Pre-trial once and perhaps twice. The record is also clear that leading up to the time when the matter was actually able to be scheduled for trial, the Crown was pressing for the matter to proceed. They repeatedly requested defence schedule a crown resolution meeting, were prepared to accommodate according to defence counsel’s schedule, and agreed to a judicial pre-trial when no crown resolution meeting had been held, all in an effort to have counsel discuss the file so the matter could be set for trial. The transcripts provided make it clear that the defence action or inaction or indifference to the matter directly caused the delays during the following time periods:

• August 15, 2018 to September 5, 2018 – disclosure had previously been provided but no crown resolution meeting held – no counsel or agent appeared or provided instructions and bench warrant with discretion was issued (21 days)
• September 5, 2018 to October 3, 2018 – still no crown resolution meeting scheduled by defence – agent appears and adjourns for crown resolution meeting (28 days)
• October 3, 2018 to October 17, 2018 – defence request for two week adjournment to obtain instructions – Crown requests crown resolution meeting be held (14 days)
• October 17, 2018 to November 7, 2018 – defence indicates crown resolution meeting has been held and seeks to adjourn three weeks for instructions (21 days)
• November 7, 2018 to November 21, 2018 – defence requests 4 week adjournment for crown resolution to take place – Crown has requested a CRM be held from September 5th and had been adjourned that by defence for CRM to be scheduled. (14 days)
• November 21, 2018 to December 12, 2018 – defence has still not scheduled a crown resolution meeting – Crown requests counsel contact Crown’s office for one to be scheduled (21 days)
• December 12, 2018 to December 19, 2018 – no-one appears and discretionary warrant issued (7 days)
• December 19, 2018 to February 5, 2019 – crown resolution meeting still not held – defence requests JPT be scheduled – defence to have CRM in interim and JPT scheduled for February 5, 2019* (48 days) *when Crown resolution meeting was finally held on February 8, 2019 it was estimated that trial would take ¾ of day required so no JPT was necessary. Had defence had CRM before December 19th as requested, this adjournment would not have been necessary
• February 5, 2019 to February 13, 2019 – defence still had not had a crown resolution meeting and fails to attend for JPT (8 days)
• February 13, 2019 to February 20, 2019 – defence sends email that agent fell through and seeking one week adjournment (7 days)

30Finally, on March 13, 2019 a one day trial was set for January 29, 2020. A simple Jordan calculation would take the 629 days from date the applicant was charged to January 29, 2020, less the 189 days of defence delay and a further 14 days for the delay caused by the exceptional or discrete events, to a net delay of 426 days.

31The applicant frames his argument by submitting that s.11(b) was breached because of the Crown’s actions prior to that trial date caused the trial not to proceed, and so the crown must bear the responsibility for the entirety of the delay. What led to the trial not proceeding, and whether the resulting delay was “unreasonable” in the context of the s.11(b) calculation must be considered. To do that, even though the events between the setting of the trial date on March 13, 2019 and the January 29, 2020 trial date is already part of the s.11(b) calculation, what happened in that period reveals why the trial did not go ahead as scheduled.

32The applicant seeks to attribute the delay from the matter not being able to proceed on January 29, 2020 to the Crown’s decision to withdraw the charge of theft over and seeking to re-elect to proceed by summarily on the remaining charges. A review of the history shows what happened to be somewhat more complicated than that.

33From May 10, 2018, the applicant was facing a charge of theft over $5000, contrary to s. 334 (a) of the Criminal Code along with charges of over 80 and impaired operation. The charges were all on the same information. Theft over is a straight indictable offence. Despite repeated requests by the crown and the court for the defence to conduct a crown resolution meeting, the first time a crown resolution meeting was held was on February 8, 2019, almost eight months after the applicant’s first appearance. At the next court appearance on February 13, 2019, the presiding judge asked the Crown about the Crown election. The Crown responded that there was a potential resolution to one of the charges and so was holding off on electing for that purpose. The Crown explained that if the matter was proceeding to trial on all matters, the crown could make the election, but if one charge is resolving by way of direct accountability then they would seek to hold off making that election. Agent for counsel made no comment about the delayed election. When the matter did not resolve, all matters were set for trial. As long as the theft over charge was on the information, no other election was available other than by indictment, and that provided the applicant with the right, at the time, to a preliminary hearing and trial in Superior Court.

34The Crown concedes that it should have formally elected sooner. It was clear from the record that the offer of direct accountability to resolve the theft over charge was made on the charge screening form and rejected. It was readily apparent that unless the charge was withdrawn outright with no conditions, that it was going to trial. While the election should have been made, at the latest, when all matters were set for trial, all parties would have known that as long as the theft over charge was still being prosecuted, that there was no other election available other than by indictment.

35When agent for counsel appeared to schedule the matter, it was scheduled for trial at the Ontario Court of Justice. At no time during any of the fifteen appearances between first appearance and when the matter was set for trial did the applicant ever request a preliminary hearing, trial in Superior Court, or file a Notice of Election, even in the absence of the Crown formally electing.

36A status hearing was scheduled for October 9, 2019 to confirm the trial on January 29, 2020. Agent for counsel requested the status hearing be adjourned. On November 6, 2019, an agent again appeared on behalf of counsel. The issue of elections was raised by the Court and the matter had to be adjourned to November 20, 2019 for defence to provide a certificate of readiness for trial and obtain instructions for elections.

37On November 20, 2019, agent for counsel appeared for the applicant. The Crown advised that counsel had indicated that the applicant was now seeking a preliminary hearing. At no time prior to that date, and more importantly prior to September 19, 2019 when Bill C-75 came into effect and removed the availability of a preliminary hearing for the offence of theft over, was any request for a preliminary hearing made by the applicant. Bill C-75 was not a surprise, but it left unanswered whether a defendant charged prior to September 19, 2019 would still be entitled to a preliminary hearing notwithstanding losing that entitlement as a result of Bill C-75. Prior to September 19, 2019, Notices of election were being filed asserting requests for preliminary hearings, and verbal and written requests for preliminary hearings were being made to preserve a defendant’s claim to a preliminary hearing. None of that was done in the applicant’s case. The answer to the question was provided conclusively by the Court of Appeal on November 18, 2019 in R. v. R.S. 2019 ONCA 219. Put simply, an accused person who requested a preliminary inquiry before the amendments came into force on September 19, 2019, was still entitled to a preliminary inquiry. Accused persons who were before the courts prior to September 19, 2019, but had not requested a preliminary inquiry, as of that date, had no right to a preliminary inquiry. (R.S., supra, para 4).

38The first time the applicant requested a preliminary hearing was sometime after the November 6, 2019 appearance and before the November 20, 2019 court appearance. On November 20, 2019, when the presiding justice pointed out that the applicant was very likely not eligible for a preliminary hearing given the Court of Appeal’s decision released two days earlier, the matter was held down for agent to contact counsel to obtain instructions. The agent was also supposed to have been provided with the certificate of readiness to be filed but had not been. What happened after the matter was held down is unclear as the transcript does not continue. It appears that the matter was put to December 4, 2020 to be addressed.

39On December 4, 2019, Mr. Naresh appeared on behalf of counsel, Mr. Barry. The Crown recounted the history from the last date and noted how the presiding judge sought a properly informed agent to attend and “the instructions we also had were that a prelim was no longer required, and the trial date was what was needed.” Presumably that was from what was said when the matter had returned after being held down on November 20th. It was at the December 4th appearance that the crown formally elected to proceed by indictment. Mr. Naresh advised that their position had changed and counsel was seeking a preliminary hearing notwithstanding that a preliminary hearing had never been requested. Mr. Naresh initially sought to vacate the trial so he could order the transcript and schedule a date to argue the matter. The presiding judge declined to vacate the trial date but, on Mr. Naresh’s request, scheduled a hearing on the issue of whether the applicant was entitled to a preliminary hearing. The hearing was scheduled for 5 hours on December 19, 2019 with timelines set for the serving and filing of the application material.

40On December 19, 2020, Mr. Naresh did not appear nor did he file any material. Instead, the Crown recounted an email he received from Mr. Naresh the day before which he then followed up with a telephone conversation with Mr. Naresh. The Crown advised the court that Mr. Naresh advised the Crown that “under the instructions of Mr. Barry, they purposely did not file the application” and that “Mr. Barry’s office and Mr. Harris-Lowe are not proceeding with a request for a preliminary hearing”. No notice was provided to the court or crown that the application was being abandoned. Despite having scheduled the matter personally, Mr. Naresh told the Crown that he was required for another matter in Woodstock and he would send an agent to adjourn the matter. The agent for Mr. Naresh was retained, as he advised the court, at 8 a.m. that morning with instructions to adjourn the matter to December 31st to get instructions from his client. The matter remained scheduled for trial on January 29, 2020 but was to return December 31st for the applicant to indicate his election.

41Between December 19 and December 23, 2019, the Crown reached out to Mr. Barry’s office to advise that Mr. Harris-Lowe needed to indicate his election at the next appearance. The crown learned that the applicant’s position had changed once again. Despite R.S. (supra), and not appearing nor filing any material in support of the very same application that he had sought, then abandoned on December 19th, the applicant renewed his request for a preliminary hearing.

42On December 31, 2019, Mr. Naresh again appeared for Mr. Barry, who was described as “primary counsel” on the matter. Mr. Barry was out of the country but maintained, according to Mr. Naresh, his position that Mr. Harris-Lowe was entitled to a preliminary hearing. Counsel submitted that because the Crown had not formally elected until December 4th, the applicant was not in a position to not formally request a preliminary hearing. He also explained his previous abandonment of the application by acknowledging that transcripts would not reflect any intention for a preliminary hearing. Counsel agreed that if the transcripts would not make clear counsel’s intention for a preliminary hearing, that the evidence would need to come from Mr. Barry, which would leave Mr. Naresh to make the argument. When asked what Mr. Barry would have to say about s.11(b), Mr. Naresh’s response was that it would be “waived for the purpose of this date until the next date potentially if we were able to make that argument given that it is a defence request.” The presiding judge put the matter to the scheduled January 29, 2020 trial date and ordered that if the applicant was seeking a preliminary hearing, an application should be before the trial judge at least two weeks before trial and the trial judge will be able to either hear the application or just commence with the trial.

43The matter did not go straight to January 29, 2020; instead the defence brought the matter forward to January 22, 2020. On that date, Mr. Naresh appeared and conceded there was no right to a preliminary hearing and the applicant was seeking to vacate the trial date and be put to his election whereupon he will elect a Superior Court trial with a jury. There were two problems with this. The applicant was not present and he did not have a Notice of Election that could be filed with the court in the accused’s absence. It is the Crown’s next step that is the foundation for the s.11(b) application.

44Rather than have the matter proceed to the Superior Court, the Crown withdrew the theft over charge and sought leave of the court to proceed by summary conviction. The applicant was opposed to that, and so the issue was now whether there was a common law right for the Crown to re-elect to proceed summarily in the absence of the accused’s consent. The Crown and defence both agreed to vacate the trial date and convert it into an application date. When the matter returned on January 29, 2020, the applicant consented to the Crown’s re-election and the matter was adjourned to a case management court for new dates to be set. The applicant submits that that if not for the Crown’s re-election, the trial could have proceeded on January 29, 2020 and so all of the delay for it not proceeding rests with the Crown.

45The transcripts make clear that the Crown had sought to mitigate delays almost from the outset. Initial and additional disclosure requested by the defence was provided within two months of the first appearance. What should have then become a simple matter of scheduling a crown resolution meeting and scheduling the matter for trial was marked by court appearance after court appearance with requests by the crown and court for the defence to conduct a crown resolution meeting and failing to do so. After one was finally was held, the matter was able to be scheduled for trial.

46The only reason the Crown would have sought to defer its election was in hopes that if the applicant entered into “direct accountability”, the charge would be withdrawn. The applicant rejected that offer from the outset. While not explicitly stated, there was no other reason for the Crown to seek to defer making its election. That was the only charge for which there was no election other than by indictment. Ultimately, the six month time limitation ran out, the indictable offence was still on the information, and the Crown had no option but to proceed by indictment in the absence of the accused’s consent. The Crown had already elected to proceed by indictment when it withdrew the theft over charge and sought to proceed summarily. There is nothing on the record before me to impute any improper motive by the Crown in either prosecuting or withdrawing that charge against the applicant. The applicant ultimately consented to the Crown’s application to re-elect. He had every right to withhold his consent and maintain his right to a jury trial. It was his decision to consent knowing full well what he was giving up.

47While the applicant argues that the Crown’s decision necessitated the trial being adjourned, I find it was the applicant’s conduct, especially in the two months leading up to the trial, that was a significant contributing cause of the trial not proceeding as scheduled. Up to then, the defence put little attention into moving the matter along. Court appearances were marked by indifference and inaction: Non-attendances, resolution meetings not being held, seeking then not attending judicial pre-trials, then with time ticking towards the trial date, threatened applications scheduled, but never brought. I cannot say it was done purposely to position the applicant for a s.11(b) claim, because there did not seem to be much purpose behind the defence making any of the applicant’s appearance meaningful.

48I recognize the danger in second guessing steps taking by defence for the purpose of responding to charges, but as noted in Cody, at para 32 “the decision to take a step, as well as the manner in which it is conducted, attract scrutiny.” While I do not go so far as to find that the defence action was designed to delay, I do find that the manner in which it arose, did, to use the language in Cody, exhibit a “marked inefficiency or marked indifference toward delay”. A corollary of the s. 11(b) right "to be tried within a reasonable time" is the responsibility to avoid causing unreasonable delay. The defence actions did the opposite.

49From the charge date of May 10, 2028 to the first trial date on January 29, 2020 is 629 days. The defence was responsible for a delay of 189 days in that time period. The net delay of 440 days should be reduced by a further 14 days for the exceptional circumstance on February 20, 2019 when the matter was adjourned when counsel for the applicant found himself in a snowstorm and behind a collision and unable to get to court. The net delay is 426 days which is below the presumptive ceiling of 547 days. The defence did not demonstrate that it took meaningful, sustained, steps to expedite the proceedings. If I were to just consider that time period, the application should be dismissed. I will, however, also consider the next time period to the second trial date scheduled.

The Second Time Period from May 10, 2018 to July 3, 2020

50When the matter returned on February 4, 2020 in the case management court to schedule a new trial date, the court offered February 20, 24 and April 27, 2020. The defence were unavailable on each of them. That trial dates were not available to the defence within three weeks is understandable and I would not consider that delay to be caused by defence not being available for trial on short notice. Defence and Crown counsel often have other commitments with very little flexibility to move other matters or have other counsel take over, and time is needed on all sides to properly prepare. I would not, therefore, attribute the defence inability to take advantage of the early dates offered on February 20 and February 24 to the defence. The April 27th trial date offered is different. I do not know what the other commitments defence counsel had, but given the history of the matter and concern about the applicant’s s.11(b) rights, the defence should have sought to mitigate the delay and given some priority given to the matter. Ultimately, dates of June 26, 2020 and July 3, 2020 were selected in accordance with defence availability. While the defence conceded that none of the time following the January 29, 2020 rescheduling should be part of the delay calculation, I would not have gone that far.

51I would not consider the “delay” because the defence was not available on February 20 or February 24 to be unreasonable or defence-caused. Counsel’s unavailability on April 27, 2020 meant that the matter had to be scheduled for July 3, 2020. I consider the delay from April 28 to July 3, 2020 to be defence delay caused by counsel’s unavailability. Notwithstanding that the COVID pandemic meant that the second trial date was not able to proceed regardless of whether it was April 27 or July 3, 2020, I am of the view that this period should still be considered for s.11(b) purposes. From January 29, 2020 to July 3, 2020 is an additional 156 days. Of that I would deduct 66 days of “defence delay” from April 28, 2020 to July 3, 2020.

52The total delay from May 10, 2018 to July 3, 2020 is 785 days. Defence delay accounted for 189 days from the earlier period and 66 days in the second time period for a total defence delay of 255 days. There is a further reduction of the 14 days for the exceptional circumstance from the weather and traffic issue during the earlier time period which leaves the net delay from May 10, 2018 to July 3, 2020 as 516 days which is still below the 547 day presumptive ceiling.

The Third Time Period from May 10, 2018 to June 29, 2021

53On March 16, 2020, the COVID pandemic intervened and trial proceedings were suspended. The applicant concedes that the pandemic is an exceptional circumstance for s.11(b) purposes. The period post-July 3, 2020, in which scheduling was driven by the COVID-19 pandemic, is one that must be considered as a discrete event in which exceptional circumstances meant that the delay could not be remedied.

Conclusion

54The applicant’s s.11(b) claim fails on two fronts: First, I find that it was the applicant’s conduct leading up to the January 29, 2020 trial date that was a significant contributing cause of the trial not proceeding. While the applicant denies any responsibility for the trial proceeding or for the delay in rescheduling the trial that followed, I disagree. As the Supreme Court of Canada expressed: “Inaction may amount to defence conduct that is not legitimate. Illegitimacy may extend to omissions as well as acts. Accused persons must bear in mind that a corollary of the s. 11(b) right "to be tried within a reasonable time" is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to "actively advance their clients' right to a trial within a reasonable time, collaborate with Crown counsel when appropriate and ... use court time efficiently" (Cody, para 33; Jordan, at para. 138).” This was not done in this case. The approach in Jordan is “intended to prevent the defence from benefitting from "its own delay-causing action or inaction" (Jordan, at para. 113) which would be the result if a stay were granted in this case.

55The net delay from the charge date to the end date of January 29, 2020, which the crown and defence submits is the end date I should consider, is 426 days. If I consider the time period to the end date of what would have been the second trial date on July 3, 2020, the net delay is 516 days. Both calculations are below the 18 month or 547 day presumptive ceiling. That delay may still be unreasonable if the defence establishes that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and the case took markedly longer than it reasonably should have. Absent these two factors, the s. 11(b) application must fail. The applicant has failed to establish either. A stay is to be granted only in clear cases. This is not such a case; accordingly, the application is denied.