ONTARIO COURT OF JUSTICE
DATE: 2024 01 26 COURT FILE No.: Brampton 3111 998 22 030702
BETWEEN:
HIS MAJESTY THE KING
— AND —
ADITYA JASWAL
Before: Justice G.P. Renwick
Heard on: 26 January 2024 Reasons for Judgment released on: 26 January 2024
Counsel: R. Moir, for the Crown A. Pazuki, for the Aditya Jaswal
RULING ON S. 11(B) CHARTER APPLICATION
INTRODUCTION
1The Defendant faces one count of having an excess blood alcohol concentration within two hours of operating a motor vehicle. The prosecutor has proceeded summarily.
2The Defendant was arrested on 04 June 2022. The Information was sworn 20 July 2022. The Defendant’s trial is set to take place 29-30 April 2024. The parties agree that the global post-charge delay until the anticipated completion of the Defendant’s trial is 650 days or 21 months and 20 days.
3This 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 also asserts that if the net delay is below the constitutional limit that this prosecution has taken markedly longer than it should have taken to complete. The prosecution does not seek to rely on any exceptional circumstance to justify any delay and professes timeliness and all appropriate alacrity.
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, 2016 SCC 27, the Supreme Court of Canada held that trials in provincial courts ought to complete within 18 months.
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. The next step is to subtract from the total delay any time periods which are “attributable to the defence.”
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.
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. [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.”
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, 2017 SCC 31:
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, 2016 SCC 27, 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, 2016 SCC 27, 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, 2016 SCC 27, the most straightforward example is "[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests" (Jordan, 2016 SCC 27, 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, 2016 SCC 27, 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, 2016 SCC 27, at paras. 113 and 121). Illegitimacy may extend to omissions as well as acts (see, for example in another context, R. v. Dixon, [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, 2016 SCC 27, at para. 138).
11In R. v. Mallozzi, 2018 ONCA 312, 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. 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.
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. The Supreme Court has confirmed that courts are entitled to apportion responsibility for delay among the litigants.
13In R. v. J.F., 2022 SCC 17, 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.
ANALYSIS
A. THE TOTAL DELAY
14It is agreed that the total delay for this case is 650 days or 21 months and 20 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 does not accept that there have been any periods of delay caused solely by the Defendant. The Defendant accepts that it did not give notice of its s. 11(b) Charter concerns until 01 December 2023.
19The prosecution submits that there are discrete periods of defence delay, which ought to be deducted from the total delay calculation. As well, the prosecution, quite fairly, suggests that the Defendant was at least equally to blame (50% responsible) for the nine months of delay from when the trial was set (the trial scheduling meeting took place on 02 March 2022) until 01 December 2023, when the prosecution was put on notice of s. 11(b) concerns and ought to have taken steps to obtain an earlier trial date, but have not.
[20] Accepting the prosecution’s argument would result in the following deductions to calculate the net delay of this case: i. 134 days from receipt of initial disclosure (22 August 2022) until the crown pre-trial (“CPT”) was held on 03 January 2023; ii. 16 days from the completion of the judicial pre-trial (26 January 2023) until the request for a trial scheduling meeting was made by the Defendant; and iii. One half of 275 days (138 days is 50% responsibility for delay from 02 March 2023 until 01 December 2023).
21This would result in a net delay of (650 minus 288) 362 days, which is approximately 12 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.
23Leading up until the second court appearance (25 October 2022), the Defendant appeared to move the matter along with appropriate haste. He had hired a lawyer and requested disclosure well before his first appearance. Indeed, initial disclosure was received the day prior to the first appearance. By the date of his second appearance, the Defendant had requested additional disclosure no less than three times.
24On subsequent, early appearances, the Defendant continued to assert that there were problems awaiting core disclosure. The prosecution does not dispute the number of requests but takes issue that “core” disclosure was missing. It submits that well before the CPT on 03 January, it was obvious that there were disclosure issues that could have benefitted from a CPT. In fact, on 25 October 2022, the court invited the Defendant to “get a CPT or a JPT accomplished before” the return date of 20 December 2023, yet neither took place. Rather than seek out an “R1 Crown,” which the Defendant does not dispute was available daily, to try to work out missing disclosure, the Defendant awaited until 21 December 2022 to book the CPT for 03 January 2023.
25The JPT was booked shortly after the CPT on 09 January 2023 for 26 January 2023. The JPT forms and request for a trial scheduling meeting was not filed by the Defendant for 16 days. The trial scheduling meeting took place on 02 March 2023 and the matter was ultimately set down for trial two court appearances later, through no fault of the Defendant, on 23 May 2023.
26I accept that there were disclosure issues that prevented this matter from moving forward until mid-December. From that time, some of the delay until the anticipated completion of the trial can be apportioned to both parties.
27There is no explanation for why the Defendant did not conduct a CPT or meet with an R1 Crown prior to 20 December 2022. This was a missed opportunity to resolve the outstanding disclosure issue. The court seemed to be the only one interested in moving the matter along on 25 October 2022.
28I find that the delay from 25 October until the CPT was set on 21 December is Defence delay (57 days).
29After the JPT on 26 January 2023, it would have been reasonable for the Defendant to take one week to receive legal advice and to provide instructions regarding the setting of a trial. Accordingly, of the 16 days until the Defendant sent in a trial scheduling request, 9 days are also properly attributed as Defence delay.
30Some calculation must also account for the Defendant’s apparent acceptance of the trial date and his silence respecting s. 11(b) until 01 December 2024.
31I find that there was not a single mention of s. 11(b) of the Charter, throughout the six court appearances, the 18 letters I am told were written respecting disclosure, the Trial Time Estimate Form completed during the JPT on 26 January 2023, and the Trial Scheduling Form completed by the Trial Coordinator and the parties on 02 March 2023. In fact, until 01 December 2023, the Defendant expressed no apparent concern for the pace of the proceedings throughout all of the time from his arrest on 04 June 2022.
32The Defendant seeks to explain some of the delay in raising its s. 11(b) concerns for 9 months (02 March until 01 December 2023) because of the practicalities of bringing a s. 11(b) Charter Application: the Defendant has to receive legal advice, decide whether or not to pursue the Application, order transcripts, and retain counsel. In addition, the Defendant speaks Hindi and counsel requires more time to receive instructions than would otherwise be the case.
33For the Defendant, the practicalities are very real. However, in the Jordan analysis, they carry little weight. Though defendants are entitled to receive and consider legal advice, which is an important and legitimate step in trial planning, beyond an appropriate period of time, further delay must be deducted from the calculation of total delay.
34Waiting for nine months to elapse to advise of the intention to bring this Application 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.
35Well before 04 April 2023, when the trial dates were known and could have been put on the record, the Defendant could have made a preliminary decision respecting his constitutional right to be tried in a reasonable period of time. At the very least, counsel (who was present on 04 April and 23 May 2023) could have indicated whether or not s. 11(b) was possibly going to be raised as an issue. It would have been prudent to at least consider whether delay was likely to be raised as an issue upon scheduling the trial.
36By 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 nine months to remedy the situation.
37I agree with and adopt the words of Justice Monahan in R. v. Kullab, 2023 ONCJ 458:
…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.
38As 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, 2016 SCC 27, 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, 2016 SCC 27, 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, 2016 SCC 27, 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, 2016 SCC 27, 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, 2016 SCC 27, at paras. 84-86 and 113).
39There 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, 2016 SCC 27, 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.
40The majority decision in J.F., 2022 SCC 17 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.
[41] In considering an apportionment of the delay from 02 March until 01 December 2023, I have taken the following into account: i. The Defendant had been reasonably diligent in moving the matter along throughout some of the pre-trial process; ii. The prosecution took no proactive steps to avoid delay from the start of the proceedings until the trial was set (it took five months for core disclosure to be made available); iii. The Defendant failed to put the prosecution and the court on notice of s. 11(b) concerns for nine months following the setting of the trial date; and iv. A lack of institutional resources was the largest determinant of the approximately 14-month delay from the setting of the trial until the trial date, rather than the conduct or inaction of the parties.
42Accordingly, 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 275 days from 02 March 2023 until 01 December 2023, the Defendant is responsible for 92 days.
43Thus, the total delay caused by the Defendant is (57 + 9 + 92) 158 days. When subtracted from the total delay (650 days), the net delay to trial is 492 days or 16 months and 6 days, which is below the presumptive Jordan limit for trials in this level of court.
44The Defendant suggests that this is an inordinate period of time and his matter has taken markedly longer than it should have to complete.
[45] The Defendant bears the onus to establish that the case is a clear example of unreasonable delay by meeting two criteria: i. The Defendant took meaningful steps demonstrative of a sustained effort to expedite the proceedings; and ii. The case took markedly longer than it reasonably should have taken to end.
46I reject this argument for two reasons.
The Defendant Did Not Take Meaningful Steps to Expedite the Proceedings
47Apart from the period until 25 October 2022, there was no sustained effort to move the matter along. I have found that the Defendant caused almost two months of additional delay by failing to speak directly to a prosecutor to attempt to obtain the outstanding disclosure. The Defendant’s efforts were inefficient. Writing letters every three weeks did not move things along. Perhaps the Defendant was content to permit some delay to accrue on the hope that it would be considered inherent pre-trial delay. The failure to set a CPT or to speak to a prosecutor after 25 October until 21 December 2022 did not demonstrate the diligence required to meet the first branch of the test. This is further reflected in the delay before arranging a trial scheduling meeting.
48The Defendant’s silence respecting s. 11(b) until 01 December 2023 belies any notion of a sustained effort to protect and enforce his reasonable trial time right.
The Case Did Not Take Too Long to Come to Trial
49By 21 December 2022, some five months after being charged, substantial disclosure was completed. A JPT was held one month later (26 January 2023). The matter was ready for a trial to be set some five weeks later. I do not find that the prosecution took markedly longer than it should have taken to move the matter from the swearing of the Information until the trial was set. In fact, over two months of this delay was caused solely by the actions of the Defendant.
50When I also deduct three months of delay (92 days of Defence apportioned delay) from the approximately 14 months after the trial date was chosen until the trial is expected to complete, I do not find that this period is exceptional or markedly beyond what a multi-day trial should take for one of the busiest jurisdictions in the country.
51The Defendant seeks to rely upon the pre-Jordan authorities to suggest that this type of trial should be completed in a shorter period of time. There is an appeal to this logic. For the most part, the investigation was complete on 04 June 2022, which was well before the charge was even laid.
52However, I cannot accept this argument. I have no data respecting the time to trial for two-day trials in this jurisdiction during the pre-Jordan era. A trial is not a race to justice. Though the intake steps were completed quickly, I am not prepared to find that 16 months is beyond the outside limit of reasonableness for a two-day trial in Brampton on the heels of a global pandemic and heretofore unimaginable institutional pressures.
CONCLUSION
53The Defendant’s s. 11(b) Charter right to be tried within a reasonable period of time is not expected to be violated if the evidence and submissions end on 30 April 2024.
54Accordingly, this Application is dismissed.
Released: 26 January 2024 Justice G. Paul Renwick