ONTARIO COURT OF JUSTICE DATE: 2023 11 05 COURT FILE No.: Central West Region - Brampton – 22-1606

BETWEEN:

HIS MAJESTY THE KING

— AND —

Patrick Thiruchelvam

Before Justice Andrew F. Falls

Heard on September 29, 2023 11(b) Ruling released on November 5, 2023

C. Vanden Broek................................................................................. counsel for the Crown B. Petrouchinova.............................. counsel for the defendant, Patrick Thiruchelvam

Table of Contents Introduction .. 2 The Jordan Framework . 2 Positions of the Parties . 3 Total Delay . 3 Defence Delay . 3 June 23, 2023 – November 30, 2023 (161 days) 4 Exceptional Circumstances . 6 Delay Below the Presumptive Ceiling . 8 Defence Initiative . 8 Reasonable Time Requirements for the Case . 9 Conclusion . 10

Falls, J.:

Introduction

1This is an application brought by Patrick Thiruchelvam seeking a declaration that his right to be tried within a reasonable time under s.11(b) of the Charter of Rights and Freedoms has been violated. Mr. Thiruchelvam seeks a stay of these proceedings pursuant to s. 24(1) of the Charter.

2On February 9, 2022, Patrick Thiruchelvam was charged with discharging a firearm. It is alleged that, on December 1, 2021, Mr. Thiruchelvam fired a handgun out of a moving motor vehicle in an industrial area within the City of Brampton.

3The proceedings commenced on February 9, 2022. The matter was judicially pre-tried, and a 4-day trial estimate was approved. Mr. Thiruchelvam has elected to proceed to trial in the Ontario Court of Justice. The trial is set to proceed on November 27-30, 2023.

4On September 29, 2023, this application was argued. On November 1, 2023, I provided a brief oral ruling dismissing the application. The following are my reasons.

The Jordan Framework

5The Supreme Court of Canada set out the applicable framework when analyzing delay in R. v. Jordan, 2016 SCC 27.

6In applying the Jordan framework, a court is required to identify and analyze periods of delay that may be present. R. v. Zahor, 2022 ONCA 449 at paras. 61-78; R. v. Coulter, 2016 ONCA 704 at paras. 34-41.

7After determining the total delay, a conclusion regarding net delay is arrived at by subtracting defence delay from the total delay.

8A court should then compare the net delay to the 18-month presumptive ceiling established for cases tried in the Ontario Court of Justice. If the net delay is above the ceiling, the delay is presumptively unreasonable.

9The Crown may then rebut this presumption by demonstrating exceptional circumstances.

10After deducting any applicable time for exceptional circumstances, a stay will be entered if the remaining delay exceeds the presumptive ceiling, unless the Crown can demonstrate that the remaining delay is justified in light of case complexity.

11If the remaining delay cannot be justified based on the complexity of the case, a stay will be entered.

Positions of the Parties

12Counsel for Mr. Thiruchelvam argues that the total delay in this matter is 659 days or 21.65 months. Only approximately 2 ½ months of this delay is to be attributed as defence delay.

13In the alternative, Counsel for Mr. Thiruchelvam argues that, should I conclude that if the net delay falls below 18 months, I should nevertheless stay the proceedings because the delay to trial below the presumptive ceiling is unreasonable.

14The Crown argues that a period of time after the scheduling of the trial should be attributed as defence delay. Earlier trial dates were offered where the Crown and the Court were available and the defence was not. As such, the delay is properly characterized as defence delay.

15The Crown advanced a further argument that a period of delay in the fall of 2022 should be considered as an exceptional circumstance.

Total Delay

16The calculation of total delay starts from the date on which the Information was sworn. R. v. J.F., 2022 SCC 17 at paras. 23 and 27, applying R. v. Kalanj, [1989] 1 S.C.R. 1594 at p. 1602 and R. v. Potvin, [1993] 2 S.C.R. 880 at pp. 908-910; R. v. Kanda, 2021 BCCA 267 at paras. 104-115; R. c. Poitras, 2022 QCCA 1561 at paras. 44-67; R. v. Doak, 2022 NBCA 48 at paras. 18-39; R. v. Allison, 2022 ONCA 329 at paras. 35-43.

17The Information was sworn on February 9, 2022. A calculation of the time from February 9th to the anticipated end of the trial on November 30, 2023 is 660 days, or 21 months and 22 days.

18Thus, the total delay in this matter is 660 days, or 21 months and 22 days. Following the formula applied by the Ontario Court of Appeal in R. v. Shaikh, 2019 ONCA 895, and R. v. Charity, 2022 ONCA 226.

Defence Delay

19The Crown position is that defence delay begins on April 27, 2023. This amounts to 218 days, or 7 months and 4 days. The Crown’s argument places the net delay below the presumptive ceiling at 442 days, or 14 months and 18 days.

20The defence argues that, at its highest, delay may be characterized as defence from the September 11-14, 2023 trial offerings and following. That is 78 days, or 2 months and 17 days. The defence argument places the net delay above the presumptive ceiling at 582 days, or 19 months and 5 days. The defence consistently advanced the case. Any delay was a result of delayed disclosure.

21Based on my review of the record, the issues raised in this application can be resolved by analyzing the following periods of defence delay.

June 23, 2023 – November 30, 2023 (161 days)

22On February 2, 2023, original trial dates were offered for October 1-4, 2024. Those dates were scheduled on the record on March 8, 2024.

23Commencing on February 24, 2023, the Crown corresponded with Counsel offering earlier trial dates. Fourteen blocks of dates were offered:

1. April 17-20, 2023
2. April 24-27, 2023
3. May 1-4, 2023
4. May 16-19, 2023
5. May 29-June 1, 2023
6. June 12-15, 2023
7. June 20-23, 2023
8. August 8-11, 2023
9. September 11-14, 2023
10. September 25-28, 2023
11. October 3-6, 2023
12. October 16-19, 2023
13. October 24-27, 2023
14. November 27-30, 2023

24On May 10, 2023, the original trial dates were vacated, and new dates were scheduled. September 29, 2023 was selected to argue a s. 8 application. November 27-30, 2023 was selected for the trial. A new date was not selected for a s.11(b) application.

25Notwithstanding these cooperative efforts, and delay mitigated by 310 days, the Applicant maintains that these efforts fall short of what is necessary to escape Charter scrutiny.

26The defence argues the first eight blocks of dates allowed insufficient time for preparation. Counsel was not available on such short notice. The defence argues that a reasonability lens should be applied when assessing when the trial could proceed.

27The defence further argues that, in the circumstances of this case, offering earlier trial dates as part of a “blitz” approach was an unfair exercise that prejudices a defence practice. It is unrealistic to expect counsel to keep their schedules perpetually available. Considering the dates offered by the court, the earliest that the defence could be expected to be available was the September 11th trial sittings.

28In contrast, the Crown argues that 218 days for this time period should be attributed as defence delay. The defence was not available for the April 24, 2023 offerings. Because the Court and the Crown were available from those dates moving forward, the resulting delay falls at the feet of the defence.

29This issue was considered by the Supreme Court of Canada in R. v. Hanan, 2023 SCC 12 and Justice Duncan in R. v. Qureshi, 2023 ONCJ 189.

30Jordan is clear that defence unavailability for trial will be considered as defence delay. However, as noted in Hanan and Qureshi, this is not a bright-line rule. Trial dates offered cannot leave inadequate time for defence preparation. R. v. Albinowski, 2018 ONCA 1084. The circumstances of each case will guide this analysis: Hanan, supra at para. 9.

31In R. v. Rehal, Justice Duncan provided a helpful case law review on the amount of time required for trial preparation.

32On February 24, 2023, the Crown offered the earlier trial dates noted above. The first was 60 days from the offering date.

33Following His Honour’s approach in R. v. Rehal, it is my view that the first six blocks of trial dates did not provide adequate time for trial preparation. This is not a routine summary conviction case. It is a four-day trial. The disclosure is voluminous. I am told the Crown seeks to circumstantially establish the Applicant’s guilt using cellular telephone analysis and tracking data.

34I find it would be unreasonable to expect the defence to have accepted the trial offerings from April 17, 2023 to June 12, 2023.

35That noted, the June 20, 2023 offerings provided sufficient time for counsel to prepare for the pre-trial applications and trial. This allowed counsel approximately four months for preparation. I note that previous cases, including to some extent His Honour in R. v. Rehal, have taken a perspective that an assessment of trial preparation commences when trial dates are offered. I appreciate the logic of this approach and the practicalities of a litigation practice. I would observe that approach in some measure diminishes the file time invested by counsel prior to setting the matter for trial. Issue identification, case specific research, legal and strategic advice, client instructions, crown pre-trial and judicial pre-trials are all completed prior to scheduling a trial. All time legitimately spent and billed by counsel. In my view, in the context of a s.11(b) analysis, this time ought to be considered.

36As noted by Justice Duncan, tighter timelines for preparation are “the price that all participants sometimes must pay to provide defendants with their right to trial in a reasonable time”: R. v. Qureshi, 2023 ONCJ 189 at para. 24. Given live delay concerns, all litigants should be turning their attentions to ways to mitigate delay.

37Aside from allowing adequate preparation time, there were no intervening factors in this case that would argue in favour of deviating from the general rule in Jordan regarding defence unavailability.

38Considering all the circumstances, I find that the sole reason this matter did not proceed on the previously offered trial dates was the unavailability of the defence.

39I conclude that the defence was required to accept trial dates offered as early as June 20, 2023, or accept the resulting delay. I consider 161 days from June 23, 2023 to the end of the trial as defence delay.

40Subtracting the defence delay from the total delay provides a net delay of 499 days or 16.41 months.

Exceptional Circumstances

41The Crown argued that I should consider an exceptional circumstance deduction for the time period between September 21, 2022 to January 16, 2023.

42As noted in Jordan, supra at paras. 69, 70 (italicized emphasis in original judgment). See also R. v. Cody, 2017 SCC 31 at para. 52:

Exceptional circumstances lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or 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.

It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show 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.

43An initial judicial pre-trial (“JPT”) was conducted on September 2, 2022. As a result of disclosure issues, that pre-trial did not proceed in any substantive manner. A subsequent JPT was scheduled for September 21, 2022. That pre-trial was cancelled by the Trial Coordinator. Ultimately, a JPT was completed on January 16, 2023 before a different pre-trial judge. In the time around the first and second JPT, the original JPT judge lost a close family member.

44Though counsel was not aware at the time of filing written submissions, Defence Counsel conceded in oral submissions that the death of a family member is an exceptional circumstance. The Supreme Court contemplated as much in paragraph 72 of Jordan.

45In characterizing this time period, I agree with both counsel. The delay caused by the original judge’s unfortunate loss is a clear example of a discrete event that would ordinarily give rise to an exceptional circumstance deduction. In this case, the time period from September 21, 2022 to January 16, 2023.

46Defence Counsel, however, submits that I should not deduct any time for this exceptional circumstance. Not because the event was reasonably unforeseen, or the Crown could have reasonably remedied the delay. Counsel argues that meaningful disclosure was outstanding at the time of the first JPT. This JPT did not proceed as a result. That disclosure remained substantially outstanding until January 6, 2023. In other words, even if the September 21st JPT had commenced as scheduled, the parties were in the same position they were in on September 2nd. The second JPT could not have proceeded.

47The Crown concedes that any finding I make regarding an exceptional circumstance deduction is dependent on my view of the disclosure issue.

48I agree with the defence argument. Though the loss of the original JPT judge’s family member qualifies as an exceptional circumstance, the reality is that the second JPT could not have proceeded. As noted, the defence did not receive the missing disclosure until January 6, 2023. Included in this disclosure was the Information to Obtain, the Centre of Forensic Sciences results, cell phone records and police officer notes.

49In the circumstances of this case, an analysis of an exceptional circumstance deduction becomes moot.

50Accordingly, I decline to attribute any of this time as an exceptional circumstance.

Delay Below the Presumptive Ceiling

51The Supreme Court in Jordan, supra at paras. 82-91 provided guidance for determining whether a stay should be granted when the remaining delay falls below the presumptive ceiling.

52The burden shifts to the defence to establish two factors:

1. Defence Initiative – The defence took meaningful steps that demonstrate a sustained effort to expedite the proceedings., and
2. Reasonable Time Requirements of the Case – The case took markedly longer than it reasonably should have.

53As noted in Jordan, supra at para. 83, absent these two factors, an 11(b) application must fail.

Defence Initiative

54To satisfy this requirement the defence must show that it took meaningful and sustained steps to expedite the proceedings. An assessment of what the defence could have done and actually did is required. Jordan, supra at para. 84. Perfection is not required to satisfy this requirement. Though, more is required than simply placing comments on the record that delay is an issue.

55Has the defence demonstrated meaningful and sustained efforts to expedite the proceedings? To analyze whether this requirement has been met I was provided with the written and oral submissions of both counsel. In addition, the Crown filed email correspondence with the Trial Coordinator on the topic of scheduling and rescheduling the JPT before the original JPT judge. From the email correspondence, the defence was an agreeable and willing participant, responding diligently to emails from the Crown and the Trial Coordinator. However, I would not characterize the defence efforts as active with a view to expediting the proceedings. It appears that the defence waited until other parties initiated action. In contrast, the Crown appeared to take steps to remedy potential delay. As an illustration, on October 17, 2022 in response to an email from the Trial Coordinator, the Crown raised the possibility and initiated the process of conducting a JPT with a different judge.

56This matter appeared before the court for ten appearances before the 11(b) application was argued. I have reviewed the entire court proceedings. Defence Counsel voiced concern about the delay on October 26, 2022, January 11, 2023, and March 8, 2023. Though it is clear from the record that delay became a concern for the defence, it can be inferred that, at the scheduling of the November 2023 trial dates, delay ceased to be an issue. I take note of the proceedings on May 10, 2023.

57I acknowledge that Defence Counsel, in her written submissions, advised that the defence sent correspondence to the Crown seeking disclosure. Further, in those letters counsel advised that she expressed concerns regarding delay. These efforts weigh in favour of a conclusion that the defence efforts were meaningful and sustained.

58Considering the submissions and all the evidence before me on this application, I am not prepared to make a finding that the defence took meaningful and sustained steps to expedite the proceedings. I come to this conclusion keeping mind that perfection is not required in assessing the defence actions. The proceedings do demonstrate a continuing interest in moving the case forward. However, as outlined in Jordan, I am obliged to consider and analyze the steps actually undertaken by the defence. In my view, to the extent necessary to satisfy this criterion, the defence did not take meaningful steps to expedite the proceedings. For example, instead of waiting for the Crown to provide delayed disclosure, counsel could have sought a case management judge and/or brought a Stinchcombe application seeking production of the disclosure.

Reasonable Time Requirements for the Case

59The second criteria that the defence must establish is that the time markedly exceeds what is reasonable for the requirements of the case. As noted in Jordan, supra at para. 87, “The reasonable time requirements of a case derive from a variety of factors, including the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite the proceedings.” Trial judges should adopt a bird’s-eye view of the case and apply knowledge of their jurisdiction, “including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances”: Jordan, supra at paras. 89 & 91.

60As further noted in Jordan, supra at para. 90:

Where the Crown has done its part to ensure that the matter proceeds expeditiously - including genuinely responding to defence efforts, seeking opportunities to streamline the issues and evidence, and adapting to evolving circumstances as the case progresses - it is unlikely that the reasonable time requirements of the case will have been markedly exceeded. As with assessing the conduct of the defence, trial judges should not hold the Crown to a standard of perfection.

61I have found that the net delay in this case is 16.41 months.

62As I noted above, when the continued participation of the original JPT judge became an issue, the Crown sought assignment of a replacement. I am advised that the Crown elected to prosecute a separately charged co-accused individually, instead of combining the cases to save court resources. Both these actions were undertaken to move the case forward.

63This is not a complex case as envisioned by Jordan. That noted, it is not without its complexities. It appears to be a challenging circumstantial case for the Crown to prove, relying on cellular phone data and tracking information.

64In my experience, 16.41 months is not markedly longer than it would take for similar cases to proceed through the Ontario Court of Justice in Brampton.

65I pause to note that the defence submissions regarding the delayed disclosure do have merit. There has been considerable delay in the provision of disclosure. At the time this application was argued, meaningful disclosure remained outstanding. The Crown has undertaken to remedy this issue. Continued delay in the provision of disclosure may change my assessment of the reasonableness of the remaining delay.

66In conclusion, I find that the delay below the presumptive ceiling is reasonable in the circumstances of this case. I find that the defence has not established both criteria for a successful stay application below 18 months for a case proceeding in the Ontario Court of Justice.

Conclusion

67Comparing the net delay to the presumptive ceiling established in R. v. Jordan, the net delay falls below 18 months.

68This below the ceiling delay is reasonable in the circumstances of this case.

69The application is dismissed.

70I note that at the time this application was argued considerable disclosure remained outstanding. While I have denied the application, my ruling does not preclude the defence from raising delay at a future date. Should the trial not proceed as currently scheduled, I am prepared to hear a renewed oral application, without further written materials. I would ask that if counsel are going to rely on source materials, that they be filed in support of their arguments.