WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 151, 152, 153, 153.1, 155, 160, 162, 162.1, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
R.D.
Before Justice G.P. Renwick
Heard on 01 December 2023
Reasons for Judgment released on 02 December 2023
I. Isowski counsel for the Crown
M. Saggi and A. De Boyrie counsel for the Defendant R.D.
RULING ON S. 11(B) CHARTER[^1] APPLICATION
INTRODUCTION
1The Defendant faces two counts relating to the alleged sexual assault of a minor. The Defendant was arrested on 15 September 2021. The Information charging the Defendant was sworn on 24 September 2021. The parties agree that the global, post-charge delay until the completion of the Defendant’s upcoming trial (04-06 December 2023) is two years, two months, and 13 days or 804 days.
2This Application is brought because the Defendant asserts that his constitutional right to be tried within a reasonable period of time will have been breached by the date that this trial is set to conclude. The Defendant does not suggest that if the net delay is below the constitutional limit that this prosecution has taken markedly longer than it should have taken to complete.
3For its part, the prosecution has been equally fair-minded. The prosecution does not seek to rely on any exceptional circumstance to justify any delay above 18 months.
4There are few facts in dispute between the parties. The parties agree on the calculation of the total delay and the applicable law. At issue are deductions for defence delay and any apportionment of responsibility for the trial date that was set.
GOVERNING JURISPRUDENCE
5In R. v. Jordan, the Supreme Court of Canada held that trials in provincial courts ought to complete within 18 months.2
6The first step under the Jordan analysis is to determine the total length of time between the date when the Defendant was charged and the completion of his trial.3 The next step is to subtract from the total delay any time periods which are “attributable to the defence.”4
7If the net delay remains above the appropriate 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.5
8If, after subtracting defence delay, the net delay is below the 18-month 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. …stays beneath the ceiling [will] be rare, and limited to clear cases.6 [Emphasis in the original.]
9What is “defence delay?” Time periods that may be deducted from the total delay are those “where the defence conduct has “solely or directly” caused the delay.”7
10That said, not all delay caused by the defence should be counted as defence delay. Our Supreme Court clarified the definition of “defence delay” in R. v. Cody:
In setting the presumptive ceilings, this Court recognized that an accused person's right to make full answer and defence requires that the defence be permitted time to prepare and present its case. To this end, the presumptive ceilings of 30 months and 18 months have "already accounted for [the] procedural requirements" of an accused person's case (Jordan, at para. 65; see also paras. 53 and 83). For this reason, "defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay" and should not be deducted (Jordan, at para. 65).
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. As we said in Jordan, the most straightforward example is "[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests" (Jordan, at para. 63). Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted (Jordan, at para. 64). These examples were, however, just that -- examples. They were not stated in Jordan, nor should they be taken now, as exhaustively defining deductible defence delay. Again, as was made clear in Jordan, it remains "open to trial judges to find that other defence actions or conduct have caused delay" warranting a deduction (para. 64).
Defence 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 therefore 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.
As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extend to omissions as well as acts (see, for example in another context, R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244, at para. 37). 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 ... us[e] court time efficiently" (Jordan, at para. 138).8
11In R. v. Mallozzi, our Court of Appeal confirmed that actions that are legitimately taken to respond to the charges will fall outside of defence delay and will not be subtracted from the total delay.9 However, legitimate defence action may still reduce overall delay if not taken in a timely way, or if the manner of proceeding has led to delay.10
12The calculation of defence delay is no longer simply a matter of measuring the time between refused and accepted trial dates. Our Court of Appeal has rejected this approach in favour of a contextual approach that considers the circumstances relevant to whether, in respect of a particular period of time, the defence refusal of a date is the “sole or direct” cause of the resulting delay.11 The Supreme Court has confirmed that courts are entitled to apportion responsibility for delay among the litigants.12
13In J.F., in the context of delay calculation when a re-trial is ordered, the Supreme Court has affirmed the requirement of all parties to take a prospective approach to delay.13
ANALYSIS
A. THE TOTAL DELAY
14It is agreed that the total delay for this case is 26 months and 13 days (804 days).
B. THE NET DELAY
15Defence delay is to be subtracted from the total delay to arrive at the net delay. Defence delay can arise in two different ways.
16The first component is delay resulting from clear and unequivocal waiver of the Defendant’s s. 11(b) right. The parties agree that there has been no waiver of any periods of delay by the Defendant in this matter.
17The second component is delay caused solely by the conduct of the defence. This includes periods when the prosecution and the court are prepared to proceed and a defendant is not.
18The Defendant accepts two periods of defence delay:
i. Delay of 50 days:14 due to the Defendant’s unavailability for the first judicial pre-trial on 16 May, which was held on 05 July 2022; and
ii. Delay of 63 days: from 04 October until 06 December 2023, for refusing the first trial date offered.
19The prosecution suggests that the Defendant was at least equally to blame (50% responsible) for the more than months of delay from when the trial was set (the trial scheduling meeting took place on 27 July 2022) until its completion,15 because the Defendant remained mute respecting delay until 10 October 2023 (55 days before trial).
20Accepting the prosecution’s argument would result in the following deductions to calculate the net delay of this case:
i. Admitted Defence delay of 113 (50 + 63) days; plus
ii. One-half of the period from 27 July 2022 until 04 October 2023 (the last day of the first trial date offered and refused), which is one half of one year, 9 weeks, and 6 days or (434 days divided by 2) 217 days.
21This would result in a net delay of (804 minus 330) 474 days, which is 15.5816 months. This net delay is well below the Jordan ceiling for a trial in the provincial court.
Calculation of Defence Delay
22Pursuant to the directions of higher courts, I have tried to take a wholistic view of the conduct of the parties in setting this matter down for trial. When considered from an atmospheric view, I find that some delay is appropriately attributed to the Defendant.
23Other than a missed judicial pre-trial, the Defendant appeared to move the matter along with appropriate haste. The Defendant did not even receive its initial disclosure until three days before the second appearance on 27 January 2022, some four months after being charged. Counsel notified the prosecution of missing disclosure and held a crown pre-trial in order to remedy the disclosure issues. Even despite the missed judicial pre-trial, the matter was set down for trial at 10 months post-charge.
24At issue is the effect of the Defendant’s silence when accepting the trial date, the late notice of s. 11(b) concerns, and any apportionment of delay as a result.
25I accept that other than a brief mention of “delay” in the context of outstanding disclosure during the third appearance on 24 March 2022, the Defendant expressed no apparent concern for the pace of the proceedings throughout all of the court appearances,17 the judicial pre-trial, and the trial scheduling meeting.
26The Defendant seeks to explain the delay in raising its s. 11(b) concerns for more than 14 months because when the trial was set (roughly 10 months post-charge), it was not obvious that s. 11(b) was engaged. The Defendant argued that once counsel began to prepare for the trial in September 2023, the s. 11(b) issue crystalized, and within days instructions were given to counsel, transcripts were ordered, and the crown and court were alerted.
27Waiting for over one year to advise of the situation deprived the prosecution of an opportunity to ameliorate the unanticipated predicament. I find that the Defendant waited too long to complain of delay in this case.
28While I agree with the Defendant that when the trial was set (27 July 2022), the matter was only 43 weeks and 5 days old, I cannot accept that there would be no reason to at least consider s. 11(b) concerns even at that early date. At that time, it was known that the trial was not set to occur for another 16 months. It would have been prudent to at least consider whether or not delay was likely to be raised as an issue prior to trial.
29By failing to even discuss with the prosecutor the potential to raise s. 11(b) as an issue, the Defendant deprived the prosecution of an opportunity of almost eight months to remedy the situation.
30I agree with and adopt the words of Justice Monahan in R. v. Kullab:
…the defence was uniquely in the position to say if delay was a problem. Simply because dates were set outside the Jordan ceiling would not necessarily signal to the Crown that there was a section 11(b) problem. For example, the defence may have been content with the delay for whatever reason. Accordingly, both the defence and the Crown were to blame.18
31As suggested by Justice Monahan, delay is not uniquely a defendant’s concern. The Supreme Court reminds all litigants of this:
While Jordan does not indicate the point in time when an accused must bring a s. 11(b) motion, the Court has nonetheless been clear about how it wishes all participants in the criminal justice system to act: at all stages of the trial process, everyone must take proactive measures to remedy any delay and to ensure that the accused is tried in a timely manner (Jordan, at paras. 137-39; R. v. Thanabalasingham, 2020 SCC 18, at para. 9).
The new framework marks a shift away from a retrospective approach and adopts a prospective standpoint that allows the various participants to know the bounds of reasonableness from the outset of the proceedings (Jordan, at para. 108; K.G.K., at para. 43). The predictability of the new framework makes the parties more accountable and encourages them to be proactive about delay (Jordan, at para. 112; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 36). In the case of the Crown, the prospective approach clarifies the content of its constitutional obligation to bring the accused to trial within a reasonable time (Jordan, at para. 112). As for the accused, the predictability provided by the new framework requires that they be an active part of the solution to the problem of delay in criminal cases (Jordan, at paras. 84-86 and 113).19
32There can be no doubt that the Defendant cannot sit silently while delay mounts:
An accused who sees delay lengthening must therefore respond in a proactive manner. Being proactive may mean filing a s. 11(b) motion where the accused believes that their right to be tried within a reasonable time is not being or will not be respected (Jordan, at para. 85). Like any other application made by an accused, a motion of this kind must be brought "reasonably and expeditiously" (para. 85). Lateness in raising delay is contrary to the proper administration of justice, because such a practice serves to waste judicial resources.
In short, a duty to act proactively also rests on the accused. As a result, the accused must indicate that their right to be tried within a reasonable time has not been respected and, where the circumstances require, bring a motion for a stay of proceedings in a timely manner. As a general rule, this means before the trial is held. By the time the trial dates are set, the parties are generally in a position to know whether the trial delay will exceed the applicable presumptive ceiling, and the defence can raise any concerns it may have.20
33The majority decision in J.F. uses the word “proactive” or “proactively” no less than 18 times in 80 paragraphs. The message is clear: all parties must act proactively to avoid unreasonable delay in the conduct of a criminal prosecution.
34In considering an apportionment of the delay from 27 July 2022 until 04 October 2023, I have taken the following into account:
i. The Defendant had been reasonably diligent in moving the matter along throughout the pre-trial process (except for the accepted delay from 16 May through 05 July 2022);
ii. The prosecution took no proactive steps to avoid delay from the start of the proceedings until the trial was set (it took four months for initial disclosure to be made available);21
iii. The Defendant failed to put the prosecution and the court on notice of s. 11(b) concerns for over 14 months following the setting of the trial date;
iv. The Defendant moved quickly in September 2023 to retain and instruct counsel, order transcripts, and notify the prosecution and the court of this Application;
v. The prosecution should have taken note of the prescient words of Justice Duncan during the court appearance on 09 December 2022 (“I mean, how is this going to be a valid prosecution at that time? [In terms of] 11(b). Wow.;” and
vi. A lack of institutional resources was the largest determinant of the 16-month delay until the trial date, rather than the conduct or inaction of the parties.
35Accordingly, of the delay from setting the trial to reaching the trial date, I am prepared to apportion one-third (33.3%) responsibility to the Defendant. Of the 434 days from 27 July until 04 October 2023 (the first offered date when the trial could have ended), the Defendant is responsible for 145 days.
36Thus, the total delay caused by the Defendant is (50 + 63 + 145) 258 days. When subtracted from the total delay (804 days), the net delay to trial is 546 days or 17 months and 28 days, which is below the presumptive Jordan limit for trials in this level of court.22
CONCLUSION
37The Defendant’s s. 11(b) Charter right to be tried within a reasonable period of time is not anticipated to be violated if the evidentiary portion of this trial ends on 06 December 2023.
38Accordingly, this Application is dismissed.
Released: 02 December 2023
Justice G. Paul Renwick
Footnotes
- 2016 SCC 27 at para. 5.
- Jordan, supra, at para. 60.
- Ibid.
- Jordan, supra, at para. 47.
- Jordan, supra, at para. 48.
- R. v. Cody, 2017 SCC 31, [2017] S.C.J. No. 31, at para. 28; Jordan, supra, at para. 66.
- Cody, supra, at paras. 29-30 and 32-33, respectively.
- R. v. Mallozzi, 2018 ONCA 312, [2018] O.J. No. 1794 (C.A.) at para. 3.
- R. v. Boulanger, 2022 SCC 2 at para. 5.
- R. v. Albinowski, 2018 ONCA 1084 at para. 46.
- Boulanger, supra, at para. 8.
- 2022, SCC 17 at paras. 31 and 31.
- For some reason during submissions, the parties accepted the court’s erroneous calculation of “54” days. To be clear, 05 July is exactly 7 weeks and one day after 16 May.
- I note that this is over-inclusive of the period from the date first offered for the trial (02-04 October) until 06 December 2023 (the last day scheduled for the trial), which was agreed to be Defence delay.
- I adopt the formula used by Paciocco J.A. in R. v. Shaikh, 2019 ONCA 895 at para. 33. To convert the total number of days to months, one must divide the total number of days by the average number of days in a month (365/12 = 30.417).
- To be accurate, there were two additional court appearances after the trial was set (05 and 09 December 2022) where the Information was before the court in error and the Defendant was unaware.
- 2023 ONCJ 458 at para. 38.
- J.F., supra, at paras. 30-31.
- J.F., supra, at paras. 34 and 36.
- I have no information whether or not, for instance, the investigation was complete by the date of the Defendant’s arrest. If this were the case, I could have found that the prosecution had created delay throughout the disclosure and pre-trial process.
- 18 months is equal to 1.5 years or (365 + (.5 x 365 = 182.5) = 548 days).
- Canadian Charter of Rights and Freedoms, Being Part I of the Constitution Act, 1982, Enacted as Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (“Charter”).