486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
A.B.
Before Justice Paul F. Monahan
Heard on September 21, 2023
Reasons for Judgment released on October 5, 2023
I. Osowski Counsel for the Crown
A. Bugo Counsel for the defendant A.B.
MONAHAN J.:
Introduction
1The defendant brings an application for a stay of proceedings for an alleged violation of section 11(b) of the Charter.
2As I will review in the chronology set out below, a three day trial was initially set outside the Jordan ceiling of 18 months but when the defence raised section 11(b) concerns, the Crown and the trial coordinator (“TC”) prioritized the case and offered 11 blocks of earlier three day trial dates. The defence accepted one of the earlier blocks of dates offered. The case is now scheduled to be tried and completed on December 11, 12 and 13, 2023. This is 536 days or about 17.6 months from when the information was laid (using one month as 30.5 days).
3It is the submission of the defence that the test for granting a stay under the Jordan ceiling has been met and that a stay should be entered. The Crown submits that the test for granting a stay under the ceiling has not been met and that the section 11(b) application should be dismissed.
The Allegations against the Defendant
4The defendant faces one charge of sexual assault contrary to section 271 of the Criminal Code. The offence is alleged to have taken place on or about June 22, 2022. As I understand the allegations, the defendant’s daughter lives with her mother and her grandmother. It is alleged that the defendant sexually assaulted the grandmother of his daughter. It is alleged that he entered her bedroom at 5 a.m. and touched her vagina over her nightclothes while she slept.
5The defendant was apparently invited back into the apartment and police were called on June 25, 2022. The defendant was arrested and charged at that time.
Chronology
6A brief chronology of this matter is as follows:
(a) The defendant was arrested for sexual assault on June 25, 2022. The information was sworn that same day;
(b) The defendant was released on bail on consent on July 6, 2022. Defence counsel was retained for trial at that point in time;
(c) Significant disclosure was provided by the Crown to the defence on or about September 2, 2022 and September 30, 2022 but the videotaped statement of the complainant was not provided at this time notwithstanding that it had been requested by defence counsel;
(d) A Crown pretrial (“CPT”) was to have taken place on October 11, 2022 but it did not happen when Crown counsel apparently telephoned defence counsel but was unable to reach him. Another CPT was scheduled by the defence to take place on October 21, 2022 but apparently Crown counsel did not call defence counsel that day.
(e) A CPT was held on January 3, 2023. It was set up by the defence on December 21, 2022. The video statement of the complainant remained outstanding at this time and this was apparently discussed at the CPT;
(f) On March 23, 2023 the defence set up a judicial pretrial which was scheduled to take place on May 4, 2023;
(g) The defence made numerous requests for the videotaped statement of the complainant going back to at least August 23, 2022;
(h) On April 25, 2023, the video statement of the complainant was disclosed to the defence. According to Crown counsel’s oral submissions, the delay resulted at least in part from the need for the videotaped statement to be redacted in some way;
(i) on May 4, 2023, a judicial pretrial (“JPT”) was held before Justice Martins;
(j) on May 8, 2023 a trial date was scheduled with the TC’s office. The TC offered a date which was only 3 weeks away and neither the Crown nor the defence were available. The next date offered was October 2 to 4, 2024 with a pretrial application to take place in advance of the trial. Both Crown and the defence were available and the dates were set. As I understand it, the contemplated pretrial application involved obtaining third-party records from the Children’s Aid Society. Defence counsel made his position on section 11(b) known at the time of the trial scheduling conference (i.e. that section 11(b) would be breached by the dates agreed to) and a date for the section 11(b) application was scheduled for January 12, 2024;
(k) on July 12, 2023, Crown counsel, working with the trial coordinator, wrote to defence counsel indicating that they were prepared to prioritize this case and offered the following 11 blocks of earlier three day trial dates: September 6-8, 2023, September 25-27, 2023; October 3-5, 2023; October 24-26, 2023; November 14-16, 2023; November 27-29, 2023; December 4-6, 2023; December 11-13, 2023; January 8-10, 2024; January 17-19, 2024; and January 24-26, 2024;
(l) on July 17, 2023, defence counsel wrote Crown counsel and indicated that he could make the December 4-6, 2023 or December 11-13, 2023 dates work but that the remaining 9 blocks of dates would not work (i.e. the defence was unavailable);
(m) On July 24 2023, a further trial scheduling conference was held with the TC. New trial dates of December 11-13, 2023 were accepted by the defence and the Crown with a stage I and stage II section 278 application scheduled for September 29, 2023 and November 17, 2023. Section 11(b) was still said by the defence to be an issue; and
(n) On or about August 25, 2023, the section 278 application was abandoned by the defence after certain occurrence reports were disclosed by the Crown to the defence on or about August 11, 2023.
The Jordan framework
7The Jordan framework is well known and may be summarized as follows:
A trial court hearing an section11 (b) application should calculate the total delay from the charge to the anticipated end of the trial (Jordan at para. 47).
From the total delay the Court should deduct defence delay (Jordan para. 66) and the delay associated with discrete exceptional circumstances (Jordan at paras. 75 and 82).
Defence delay has two components. The first is delay waived by the defence. The other is delay caused "solely or directly" by defence conduct including circumstances where the defence uses a deliberate tactic to delay the trial. A further example of defence delay will occur where the Court and the Crown are ready to proceed and the defence is not (Jordan paras. 60 -64; see also R. v. Cody, 2017 SCC 31, [2017] S.C.J. No 31 at paras. 28 to 35). However, there is no "bright line rule" requiring that where dates are offered when the Court and the Crown are available but the defence is not, then all delay until the next date is defence delay. Rather, all of the relevant circumstances must be considered to determine how delay should be apportioned among the participants: R. v. Hanan 2023 SCC 12 at para 9 and R. v. Boulanger 2022 SCC 2 at para 8.
The determination of whether defence conduct amounts to defence delay is “by no means an exact science” but is something that “first instance judges are uniquely positioned to gauge” (see Jordan para 65). It is “highly discretionary” (see R. v. Cody 2017 SCC 31 at para. 31)
If the delay is above the presumptive ceiling then it is presumptively unreasonable. The Crown can rebut this presumption by showing that the delay is reasonable on the basis of exceptional circumstances (Jordan para. 68). This is the only basis upon which the Crown can justify a delay above the ceiling and avoid a stay. The absence of prejudice in cases above the ceiling is irrelevant (Jordan para. 81).
Below the presumptive ceiling a stay may still issue if the defence can establish two things: (1) that 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. In the absence of these two factors, the stay application will fail (Jordan para. 82). The Supreme Court observed that they expected stays below the ceiling would be "rare" and should be limited to only in clear cases. In setting the ceiling, the Supreme Court factored in tolerance for reasonable institutional delay (Jordan para. 48 and 83).
As concerns defence initiative constituting meaningful and sustained steps, the Court should consider what the defence could have done and what it did. It is a matter of substance rather than form. It is not enough to put on the record that the defence wanted an early trial date. Having said that, the defence must act reasonably and not perfectly (Jordan paras. 84-85)
As to whether the time took markedly longer than it should have, this will require a consideration of the reasonable time requirements of a case which derive from a variety of factors, including the complexity of the case, local considerations, whether the Crown took steps to expedite the proceedings and other factors (Jordan para. 87).
Discussion and Analysis- Application of the Law to the Facts in This Case
Introduction
8There is no dispute that this case is scheduled to be completed under the Jordan ceiling. The defence submits that the total delay is about 17 months and 19 days after the information was laid and that there is no defence delay nor exceptional circumstances delay.
9As indicated in the review of the law above, for a stay to issue under the Jordan ceiling of 18 months, the defence has the onus of establishing that the defence took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and that the case took markedly longer than it reasonably should have. The defence submits that it has met its onus and that a stay should issue. At the core of the defence’s submission is the failure of the Crown to produce a key piece of disclosure namely the complainant’s video statement until April 25, 2023, 10 months after the defendant was arrested and charged. The defence argues that the Crown waited too long to prioritize this matter and that had it prioritized the case from the beginning as it should have, proper and timely disclosure would have been made and the trial scheduled and completed in well under the Jordan ceiling and markedly faster than it is currently scheduled to be heard. The defence further submits that some of the dates offered during the second trial scheduling conference were too soon for the defence to be expected to be available or to properly prepare for trial.
10On the other hand, the Crown argues that the defence could have and should have proceeded with a JPT based on the summary of the complainant’s statement which was disclosed to the defence early on in the disclosure process. The Crown submits that that the failure to do so was a failure on the defence to take meaningful steps and sustained steps to expedite the proceeding. The Crown submits that the JPT judge could have directed the Crown to disclose the statement and that this would have expedited matters. The Crown also submits that a date for the trial could have been set without the statement.
Does Defence Delay result from the earlier trial dates offered which were not accepted?
11Before turning to the question of whether the defence has met its onus for a stay when the case will be heard in under 18 months, I begin my analysis by examining whether the position that the defence advances is correct namely that the anticipated delay to the end of trial is 17 months and 19 days and that none of it amounts to defence delay.
12Defence counsel raised section 11(b) concerns throughout these proceedings as he was obliged to do. After the first trial dates were set on May 8, 2023 for October 2024, well outside the Jordan ceiling, the Crown, working with the TC’s office, took steps to attempt to remedy or mitigate the delay and to answer the defence’s section 11(b) concerns. They did so by writing to defence counsel on July 12, 2023, just over two months after the original dates were set, offering to prioritize the case and suggesting 11 blocks of three-day trial dates. I note that the January 2024 dates were outside the Jordan ceiling.
13The defence agreed to earlier trial dates of December 11-13, 2023. They were apparently also available for December 4-6, 2023 and made this known to the trial coordinator but for some reason the earlier dates were not used. The defence was not available for any of the other nine blocks of dates offered. The Crown and the Court were available for all 11 blocks of dates.
14The question is whether the defence was obliged to accept earlier dates than the ones that were accepted or have defence delay attributed to them.
15The Supreme Court of Canada in R. v. Hanan 2023 SCC 12 dealt with a case involving the rescheduling of trial dates. In Hanan, the trial was scheduled to be held for 6 weeks before a judge and jury in October 2018. The trial had to be adjourned due to an unexpected refusal of a witness to testify and the Crown's late disclosure of cell phone data. The defence offered to re-elect to judge alone to avoid losing the trial dates but the Crown refused to agree. A new date had to be found for what was anticipated to be a six week trial. The Court and the Crown were available on June 3, 2019 for a six week trial but the defence was unavailable. Accordingly, the matter went over for trial to October 28, 2019.
16In Hanan, the Crown argued, before all three levels of Court, that the delay from June 3 to October 28, 2019 was defence delay because the Crown and the Court were available for the six week trial on June 3 but the defence was not. The Court and the Crown were not otherwise available from mid-July 2019 until October 28, 2019. The trial judge held that only the six weeks from June 3 to mid-July 2019 was defence delay. The Ontario Court of Appeal upheld the trial judge and the Supreme Court of Canada in Hanan agreed with the reasoning of the Ontario Court of Appeal on this issue.
17In that context, the Supreme Court made it clear that there is no “bright line rule” that when the Court and the Crown are available but the defence is not, that all of the time to the next date is on the defence as defence delay. The Court must consider all of the circumstances including whether the Crown and the Court were available during the subsequent period of the time that they seek to have characterized as defence delay. I note that Hanan was a case in which only one block of dates was offered and the defence was not available for that single block of dates.
18There is a considerable body of law developing post Hanan where, as here, trial dates are set over the Jordan ceiling but earlier dates are subsequently offered and the defence is not available.
19By way of example, in R. v. Qureshi (No. 1) 2023 ONCJ 189 and R. v. Qureshi (No. 2) 2023 ONCJ 202, Justice Duncan dealt with a case where trial dates were set outside the Jordan ceiling but when section 11(b) concerns were raised, multiple earlier trial dates were offered and not accepted. Justice Duncan found that the defence was obliged to accept a date 80 days away and having failed to do so the time afterwards was defence delay. See also my own decision in R. v. B.D. 2023 ONCJ 224 as well as R. v. S.C. 2022 ONCJ 486 (per Justice MacKay) and R. v. Edwards 2023 ONCJ 221 (per Justice Daviau). In each of these cases, trial dates were set outside of the Jordan ceiling and multiple earlier trial dates were offered and declined by the defence and in each case some significant period of defence delay was found.
20While R. v. Albinowski 2018 ONCA 1084 was a pre-Hanan case and was not a rescheduling case, it is nevertheless instructive. In that case, the Court of Appeal overturned a trial judge’s stay under section 11(b). In that case, multiple dates for a lengthy preliminary inquiry were offered. There were three sets of defence counsel. The trial judge declined to find defence delay relating to earlier dates offered for a preliminary inquiry on the basis that there was not sufficient time to prepare. Some defence delay was found by the trial judge. However, the trial judge found that the dates offered which were three months away would not give the defence sufficient time to prepare for the hearing. The Court of Appeal disagreed and found that three months gave a reasonable time to prepare for the preliminary inquiry. The Court of Appeal looked at all of the circumstances in that case and found that defence delay should have been counted from the first date offered where the Crown and the Court were available but the defence was not. The Court noted that eight sets of dates had been offered in that case and declined by the defence. The Court also noted that the principles in R. v. Godin 2009 SCC 26 regarding defence counsel not having to hold themselves “in a state of perpetual availability” did not apply when more than one set of dates is offered (see Albinowski at para 34).
21I derive from the “earlier date cases” that each case will depend upon all of the circumstances (see Hanan and Albinowski) but if there are multiple blocks of earlier dates offered over a reasonable period of time and the dates allow sufficient time to permit defence counsel to prepare for trial, then defence delay may be attributed from the first date offered depending upon the circumstances.
22Returning to the facts of this case, as said above, 11 blocks of three-day trial dates were offered and the defence was able to agree to two sets of dates namely December 4-6 and December 11-13, 2023 but was unavailable for any of the remaining 9 blocks of dates offered. The crown was available for all 11 blocks of dates. I repeat my observation from above that the January 2024 dates were outside the Jordan ceiling.
23The defence submits that some of the dates offered were “on short notice” and that the defence could not be expected to “hold itself in a perpetual state of availability” (see para 42 of the defendant’s factum). I agree with the defence that some of the earlier dates offered were too soon to reasonably expect the defence to be able to prepare for trial. In my view, approximately 60 to 90 days would be required to prepare for this trial. I will use the 90 day point as a minimum cut off time for assessing the reasonableness of the dates offered. I do so for two reasons. First, I accept the defence submission made in oral argument that it is not the simplest case but it is not the most complex case either. In my view, the complexity of the case was somewhere in the lower to middle of the complexity continuum of cases heard in the OCJ. Second, there was contemplated a section 278 application relating to Children’s Aid Society records at the time the old and new dates were set. This pretrial application meant that this case would require a slightly longer preparation time for trial and would be somewhat more difficult to schedule as the pretrial application would need to be held before trial and would need to be before the same judge scheduled to hear the trial.
24If one looks at the dates offered, the first two blocks of time namely September 6-8, 2023 and September 25-27, 2023 dates would be too soon as they were under 90 days from the time they were offered on July 12, 2023. The dates of October 3-5, 2023 were 83 days away from when they were offered. I will put those aside as well even though I consider that it is likely that these dates would have allowed sufficient time for the defence to prepare. I am of the view that the dates offered of October 24-26, 2023, which were more than 100 days away from the time they were offered on July 12, 2023, needed to be accepted by the defence or otherwise have the difference between the anticipated end date of October 26, 2023 and the currently contemplated trial end date of December 13, 2023 treated as defence delay. As Justice Duncan put it in the Qureshi (No. 1) at para 25 “the defence was required to accept the … dates offered … or accept the consequences” . As I’ve already said, in that case, he found that the time after the date offered to be defence delay.
25I reach this conclusion considering all of the circumstances. In particular, I note that the new dates were offered to the defence just over two months after the original trial dates were set. I recognize that these dates were being offered over a year after the defendant was charged. Nevertheless, multiple earlier blocks of dates were provided to the defence but rejected and there was more than sufficient time to get the case tried under the Jordan ceiling. I recognize that the defence was prepared to and did accept the December 11-13, 2023 dates but there were multiple earlier dates offered namely the October 24-26, 2023 dates which were more than 100 days away; the November 14-16, 2023 dates which were more than 120 days away; and November 27-29, 2023 which were about just under 140 days away.1 All of these dates would have permitted the case to be tried significantly earlier. The Crown and the Court were available for all of these dates and the defence was not and all of them would have allowed plenty of time for the defence to prepare for trial.
26According, by way of summary on this issue, I have ignored the dates offered in the first 3 blocks of dates as too soon to allow for proper trial preparation. However, the time from the end of the fourth block offered of October 24-26, 2023 to the end of trial as it currently stands on December 13, 2023 is defence delay in my view. This is 48 days.
27The defence is to be commended for accepting earlier dates but that doesn’t permit them to now assert that the net delay is 17 months and 19 days when the case could have been tried much earlier based on the dates that were offered. Accordingly, the net delay to the end of trial is not 17 months and 19 days. After deducting the 48 days mentioned above, the total net delay is 488 days which is 16 months (June 25, 2022 to October 26, 2023).
Has the defence met its onus to obtain a stay when the case is under the Jordan ceiling
28I begin this section by addressing the second prong of the test laid down in Jordan when the defence seeks a stay for a case under the ceiling. The second prong requires that the defence demonstrate that the case took markedly longer than it should have.
29In assessing whether a case took markedly longer than it should have, the Court is to consider a variety of factors including the complexity of the case, local conditions and whether the Crown took reasonable steps to expedite the proceedings (see Jordan para 87)
30I agree with the defence that 10 months to disclose a video statement of the complainant in a sexual assault case is excessive. It should not have happened. But having failed to produce this videotape in a timely way did not prevent the Crown from prioritizing this case and offering reasonable dates for trial which would have the case completed within 16 months. When the Crown was clearly made aware of the section 11(b) issues at the time the first trial dates were set, it took steps to prioritize this case and was able to offer 11 blocks of dates.
31As I have already said, this case was somewhere in the lower to middle of the complexity spectrum for cases heard in the OCJ. Having said that, to be clear, this is not a complex case but the pretrial application made the case somewhat more difficult to schedule and somewhat more complicated than a case without a pre-trial application.
32Moreover, when one considers local conditions it is appropriate to recognize that Brampton is one of the busiest provincial courts in the country. This does not mean that delay can be excused. Having said that, because Brampton is so busy it will take longer to get a case heard in Brampton than it might in a smaller less busy Court location. As Justice Rahman observed in R. v. Dhindsa, [2022] O.J. 5285 at para 44 “that is not to say that a court should simply forgive excessive delay in busier jurisdictions, because such an approach would undermine the purpose behind section 11(b). Nonetheless, local conditions are part of the markedly longer calculus” (my emphasis).
33In this case, the net delay of 16 months is well under the Jordan ceiling. It is by no means the type of rare and clear case for a stay under the ceiling. In my view, this case did not take markedly longer than it should have.
34As concerns whether the defence has demonstrated that it took meaningful steps to demonstrate a sustained effort to expedite the proceedings, I don’t think that it has.
35I agree with the defence that the statement of the complainant in the circumstances of this case was critical disclosure and the defence could not be expected to set a trial date without it. Having said that, I don’t consider that the defence moved quickly enough to set up a CPT or a JPT.
36The first CPT in the case didn’t take place until January 3, 2023. I understand the defence set up a CPT for October 11, 2023 and the record would indicate that the Crown called defence counsel but didn’t reach him that day (see November 1, 2022 transcript). A further judicial pretrial was then set up by the defence for October 21, 2022 and apparently the Crown did not call that day. It would appear that there was some mix-up on these first two CPT’s which did not proceed and that probably both the defence and Crown were to blame. Having said that, the defence then waited two months, until December 21, 2022, to set up a CPT for January 3, 2023. I appreciate that the defence appeared in Court on November 1, 2022 and wrote an email to the Crown on November 7, 2022. Having said that, it is well known in Brampton that CPTs are available on any day (see R. v. Kaur 2021 ONSC 7519 at para 26). In any event, putting aside that a CPT could have been scheduled on any day with the resolution Crown, and acknowledging the mix-ups with the October 11 and 21, 2022 scheduled CPTs which the defence did set up, the defence should have taken steps to set up another CPT well in advance of the January 3, 2023 CPT. Some period of time here could be attributed as defence delay but I will not do that here. Having said that, the delay in setting up the CPT makes it very difficult for the defence to discharge its onus to show that it took meaningful and sustained steps to expedite this matter.
37As concerns the outstanding disclosure namely the videotape of the complainant, I accept of course that the Crown was to blame for the late disclosure. I accept that the defence needed the statement to set a trial date. But in my view, in order to meet the test of “meaningful steps that demonstrate a sustained effort to expedite the proceedings” the defence needed to do something more than make repeated requests for disclosure. When the videotape statement was not forthcoming, the defence should have also set up a JPT. Disclosure issues are often remedied through a JPT: see Justice Code’s decision in R. v. Richards 2010 ONSC 6202 at para 20-22. Having sat as a trial judge and a JPT judge in this jurisdiction for many years, I have no doubt that if a JPT was held and the JPT judge was made aware of the failure of the Crown to produce a key piece of disclosure, the disclosure problem would have been solved very quickly. The failure to set up the JPT is another example of the defence having failed to take meaningful steps to demonstrate a sustained effort to expedite the proceedings.
Summary
38For the reasons outlined above, the net delay is 16 months which is well under the Jordan ceiling.
39For the reasons outlined above, the defence has not met their onus to establish either of the two requirements for a stay under the Jordan ceiling.
40In the circumstances, the 11(b) application will be dismissed.
Released: October 5, 2023
Signed: Justice Paul F. Monahan
