ONTARIO COURT OF JUSTICE DATE: 2024 09 26 COURT FILE Nos.: Central East - Newmarket 21 91105314 21 91100662
BETWEEN:
HIS MAJESTY THE KING
— AND —
CENGIZ AY
Before Justice A. A. Ghosh
Heard on August 12 and September 4, 2024
Reasons for Judgment
Released on September 26, 2024
J. Mutton............................................................................................... counsel for the Crown A. Gur.......................................................................... counsel for the accused Cengiz Ay
I. OVERVIEW:
1Cengiz Ay is scheduled for trial later this month for charges of driving while “impaired” and with an excess blood alcohol concentration, contrary to the Criminal Code.
2He applies for a stay of proceedings, alleging that his s.11(b) Charter right to be tried within a reasonable time has been violated. The Information was sworn on December 13th, 2021. The trial is scheduled to end on September 27, 2024, spanning a total delay of 33 months and two weeks (or 1019 days).
3These are my reasons determining the Charter application.
II. SUMMARY OF THE EVIDENCE
4The first seven (7) months of the matter was devoted to standard case management processes, such as disclosure, file review, counsel pretrials and client instructions. Ultimately, this matter would be set down for trial.
5The four (4) months that followed were waived by the defence, as the Applicant was in the process of retaining counsel for trial. More months would pass, as counsel expressed an intention to apply to be removed from the record. By the time counsel was removed from the record, over 13 months had passed from the charge.
6On April 17th, 2023, 16 months since the charge was laid, the self-represented defendant was provided with a Blitz Trial Scheduling Court (BTSC) date of May 10th, despite his request for more time to retain new counsel. This involved a delay of 24 days.
7By the time the matter was scheduled for trial on May 10th, 17 months had elapsed since the charge. The trial was scheduled for April 8, 9, 10, 2024, a period of 11 months (or 336 days) bridging the set date to the trial itself.
8On April 5th, the last juridical day before the trial, the Crown successfully applied to adjourn the trial. The main Crown witness was away on a leave of absence for illness. Newly consulted counsel attended for the adjournment application.
9At the second BTSC scheduling appearance, the Crown asked to prioritize scheduling to mitigate the delay arising from the Crown adjournment application. Trial dates were ultimately set for September 25, 26, and 27, 2024.
III. ANALYSIS
A. The 18-Month Jordan Framework for Unreasonable Delay
10In R. v. Jordan [1], the Supreme Court set out the modern framework for determining the reasonableness of delay to trial pursuant to s.11(b) of the Charter. Once a criminal proceeding exceeds 18 months before our Court, the delay is presumptively unreasonable. Delay caused solely by the defence must first be deducted from the total delay between the charge and the end of trial.
11Once the presumptive ceiling is breached, the Crown must rebut the presumption of unreasonable delay based on exceptional circumstances that lie outside of the Crown’s control. Exceptional circumstances must be reasonably either unforeseen or unavoidable and they cannot reasonably be remedied.
12There are two categories of exceptional circumstances: Discrete events or case complexity. The delay reasonably attributable to a discrete event must be subtracted from the total delay. If the exceptional circumstance arises from the complexity of the case, the delay is reasonable.
13Where the remaining delay after deductions is below the ceiling, the defence may still show in clear cases that the delay is unreasonable. The Applicant 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.
14For a straightforward “drinking and driving” matter with such a fraught procedural history, it is important to embrace the “bird’s eye view” perspective in assessing attribution of delay. On the one hand, it may be unreasonable for the Crown respondent to expect delay to be attributed to the defence for the first couple of court appearances, especially given the defendant was self-represented and there was a language barrier.
15On the other hand, the Applicant spent over 10 months delaying the matter through a combination of delay waivers and counsel being removed from the record for retainer issues. Even when the Applicant was about to schedule his trial, he implored the Court to defer setting the date in order to earn money and retain second counsel. The case was at 15 months at the time, hardly demonstrating any desire or assertion to have a timely trial. Given the number of contested time periods, I will embark on a somewhat granular delay attribution analysis for each stage of the proceedings.
B. Commencement of the Proceedings: The “Charge”
16The delay calculation commences from the beginning of the proceeding, described in Jordan as the date of the “charge”. The Applicant, despite seemingly dispositive appellate law to the contrary, submits in this case the “charge” begins from the date of arrest rather than the swearing of the Information. It is submitted that the imposition of the restraints of the Form 11.1 undertaking, and perhaps the ADLS driving suspension, crystallized the type of prejudice embedded into the Jordan analysis and the presumptive ceiling for undue delay.
17The Court of Appeal in Allison [2], directly addressed this issue. A specific ground of appeal challenged whether the “charge” as the starting point for delay “should have been the date of the arrest rather than the date the Information was sworn.” The Court rejected a contextual case-by-case approach, supporting that the constraints of an undertaking and a licence suspension do not alter this bright-line rule. It confirmed the longstanding position from the Supreme Court in Kalanj, and solidified post-Jordan by our Court of Appeal in Wookey, that:
“for s.11(b) purposes, “the period to be scrutinized is the time elapsed from the date of the charge to the end of the trial. In this context, “charge” means the date on which an information is sworn…” [3]
18Ultimately, this is a dispute over a three-week period. I appreciate this period may prove important in this case. However, I am bound by the dispositive appellate authority that the “charge” commences when the Information is sworn.
C. Defence Delay Deducted from Total Delay – Net Delay
19Any delay solely caused by the defence must first be subtracted from the total delay. This stems from the principle that “the defence should not be allowed to benefit from its own delay-causing conduct.” “Defence delay” involves either a waiver of the s.11(b) right or delay “solely” caused by the conduct of the defence.
20The periods of the delay right having been waived is not contested. A waiver of the right can be explicit or implicit, but it must be clear and unequivocal. It is not the right itself that is being waived, but only the inclusion of specific periods in the overall assessment of reasonableness. [4]
21Delay caused “solely by the conduct of the defence” can be challenging to identify. They include “those situations where the accused’s acts either directly caused the delay… or the acts of the accused are shown to be a deliberate and calculated tactic aimed at causing delay, which include frivolous applications and requests…” [5]
22The defence will have “directly” caused delay, as a common example, if the court and the Crown are ready to proceed but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. [6]
23As the Supreme Court elaborated in R. v. Cody:
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. [7]
24The court must be careful not to confuse defence delay with “defence actions legitimately taken to respond to the charges.” Legitimate defence conduct includes preparation time, even when the court and Crown are ready to proceed. Determining defence delay is “by no means an exact science.” [8]
D. No Defence Delay for Early Intake and Case Management Period
25The Crown submits that the first two court appearances must be characterized as defence delay, given the unrepresented defendant failed to proactively inquire about disclosure and take steps to move the matter forward. This would have resulted in a deduction of 46 days, but such a finding would be in error.
26The Supreme Court has repeatedly confirmed that steps taken by the defence to legitimately respond to the charges are not defence delay. Specifically, the defence is afforded reasonable time to prepare and to obtain instructions without being held responsible for delay, even when the Crown and the Court are ready to proceed. [9]
27At the first appearance, the defendant was entitled to expect disclosure and to seek representation, without being responsible for delay. All of this was pursued in good time. I note that the system did not arrange for a necessary interpreter for the first appearance, supporting that an adjournment was also required for systemic reasons.
28The Jordan ceiling accommodates faultless, reasonable intake processes in the first several months. This includes the pursuit of representation, receipt of disclosure, file review, pretrials and client instructions. It is rare, absent an explicit waiver of the delay right, that the defence can be deemed “solely” responsible for delay in these early months. All sides are orienting themselves and, ideally, preparing to move the matter forward.
29By way of illustration, on November 1st, 2023, the Court issued the “Jordan-compliant scheduling” directive. [10] This and related directives support that the Crown and defence have mutual, intersecting, and collaborative duties within the first three (3) months to complete pretrial processes. There is a related expectation that a criminal proceeding either resolve or be set down for trial within the first six (6) months and that trial be heard within fifteen (15) months of the charge. This conforms and attends to the practical realities of the 18-month presumptive ceiling.
30These directives were not yet in place by the time the first scheduled trial was set down for this matter. However, they signal a systemic recognition and accommodation that the first several months of a criminal proceeding are faultlessly attributable to all parties. There would be rare cause to attribute any delay solely to the defence during this formative period.
31In this case, the defendant was initially self-represented with a significant language barrier. The Crown submitted that the defendant was expected at this early stage to make disclosure inquiries and successfully overcome technical challenges of virtual court, or else risk delay attribution. I find otherwise.
32The provision of core disclosure rests solely on the Crown and must be provided “without request”. [11] A corollary of that principle is that no proactivity is expected on the defence, subject to the reasonable realities and logistics of sharing and accessing digitized disclosure.
33On that front, it does not matter that the disclosure is housed on an electronic hub or server, arguably awaiting an email or a request from the defence. A deeper discussion about technology and post-COVID disclosure processes is not warranted here. I reject the submission that the first two adjournments were caused solely by the conduct of the self-represented defendant.
E. No Defence Delay Caused Immediately After Crown Pre-Trial: Intake
34As referenced, the first few months of a criminal proceeding will generally involve faultless delay attribution towards the ceiling, as all parties pursue orientation and pretrial processes. On the other hand, by June 3rd, 2022, this matter was in the system for over five (5) months. Multiple Crown pretrial engagements had recently been completed. The defence was fixed with the firm Crown position on resolution, and counsel confirmed on June 30th, 2022 that a trial would be set. Almost another year would pass before a trial was set, over the expressed objection of Mr. Ay, who wanted more time to retain new counsel.
35While there is some superficial appeal to the Crown position that the immediate delay following June 3rd should be attributed solely to the defence, I find otherwise. The Crown office apologetically delayed the Crown pretrial due to workflow, causing at least one adjournment. The Crown finally engaged counsel in a Crown pretrial, over three email exchanges on May 20th, May 31st, and June 2nd, 2022.
36The court appearance was the very next day, affording no reasonable time for client consultation after the pretrial. As earlier referenced, counsel was entitled to some reasonable time to seek instructions before submitting the trial scheduling form. This is not delay caused “solely” by the defence and must be attributed to the ceiling as acceptable intake processes.
37July 11th, 2022, was the next court date, generously affording the defence over five (5) weeks for instructions and to submit the trial scheduling form. This ends the case management period that counts towards the ceiling in this case, as delay was waived for many months after that. The informally termed “intake” period thus spanned 210 days, or about seven (7) months. Delay waivers and other defence delay followed for over nine (9) uninterrupted months.
F. Defence Delay: 4.5 Months of Delay Waivers – A Sign of Delays to Come
38Delay was waived between July 11 to November 25, 2022. This is 137 days or four-and-a-half months. While the waiver makes clear this is defence delay, it also portended related defence inaction supporting further attribution to the defence in the months that followed the waivers. The reason behind the defence waivers are important.
39The defence waived delay for these four-and-a half-months expressly for counsel to be fully retained for trial. The defence made a choice not to assert the right to a timely trial during these months, as there were well-known local procedural alternatives that would have moved the matter forward more expeditiously.
40We, in York Region, have a longstanding procedural accommodation permitting trial dates to be set even when consulted counsel is not fully retained for trial. Locally, this predates the confirmatory Jordan-compliant scheduling directives of November 1st, 2023.
41Consulted counsel and the self-represented defendant would attend trial scheduling court together. The trial would be set “with or without counsel” in accordance with the schedule of counsel expecting to be retained before trial. Even when Mr. Ay’s initially retained counsel waived delay for months to be fully retained for trial, our court had this procedure in place. This process was primarily instituted to address our collective duties, post-Jordan, to mitigate delay.
42Instead, the defence in this case chose to waive delay in pursuit of a complete retainer before setting a trial date. Over eleven (11) months passed without the retainer being finalized, and the solicitor-client relationship would break down anyway. While financial constraints on defendants are understandable, the defence cannot then wield the delay right as a sword when related defence inaction has contributed to significant delay. The specific time attributions remain central.
G. Defence Delay: Removal of Counsel and Pursuit of New Counsel
43On November 25th, 2022, eleven (11) months since the charge was laid, counsel informed the court of his intention to apply to be removed from record. He asked for time to file and argue the application for January 13th, 2023. Counsel sent an agent on the January 13th date and asked for the matter to be adjourned for argument on January 23rd, 2023.
44Mr. Ay had not been responding to counsel’s efforts to contact him, solidifying this was purely delay caused by the defence. For well over six (6) months, the Crown office had been expressly urging the defence in court to move the matter forward. The Court removed counsel from the record and instructed counsel to notify Mr. Ay by registered mail that a warrant would issue for his arrest on the next court date. This is clearly delay caused solely by the conduct and inaction of the defence.
45The Applicant specifically concedes that from November 25th, 2022, to February 6th, 2023 (73 days) constitutes defence delay, caused by the removal of counsel and Mr. Ay’s desire to consult new counsel. After that, the defendant appeared without counsel and was guided by the system towards finally setting a trial date “with or without counsel. I will discuss this time separately.
46The Applicant ultimately has conceded that July 11, 2022, to February 6th, 2023, must be deemed defence delay, covering delay waivers and a related breakdown in the relationship with counsel. At least 210 days of defence delay must be deducted (or seven (7) months). I will discuss the time that follows next.
H. From Discharging Counsel to Setting Trial “With or Without Counsel”
47On February 6th, 2023, Mr. Ay appeared for the first time after his counsel had been removed from the record. A trial was not set for over three months until May 10, 2023, to be heard on April 8-10 of 2024. I must determine delay attribution for this time between Feb. 6-May 10, 2023.
48By this time, Mr. Ay had not set a trial date for over a year since he was charged. After his counsel was removed from the record, the Applicant was expected to make reasonable efforts to move the matter forward. This was especially true if he wished to assert his right to be tried within a reasonable time. On the contrary, he demonstrated procedural indifference to the pace of proceedings after a year had passed.
49On February 6th, 2023, the Court suggested a self-represented pre-trial to be scheduled for April. Instead of agreeing to progress his matter this way, Mr. Ay asked for the matter to be deferred until May in order to secure more funds and retain counsel. The Court prudently set the pretrial date over his expressed objection for more time.
50On April 17th, 2023, Duty Counsel assisted Mr. Ay. Through Duty Counsel, the Applicant renewed his request for further time to retain new counsel, as he had just begun working again. Mr. Ay later would also personally implore the court for more time to retain a lawyer. He shared that he had just started work, and that he also needed to send some of his earnings to family living abroad. The Court refused this defence request to delay the matter further and eventually directed that a BTSC trial scheduling date would be set for May 10th, 2023.
51Clearly, the delay between the discharge of counsel was caused solely by the defence. For well over nine (9) months, the Crown and the Court had been variously pressing to have the matter set down for trial. Instead, the Applicant asked to defer setting the trial date to earn enough money to retain new counsel for trial. Over a year had already been lost due primarily to that pursuit with prior counsel.
52The 70 days between February 6th and April 17th, 2023, must be deducted as defence delay.
I. Delay Of 24 Days to Obtain BTSC Date: Discrete Event
53Despite his request on April 17, 2023, for more time to retain new counsel before setting a trial date, Mr. Ay was provided with a Blitz trial scheduling date of May 10th, 2023. It is accepted that the “Blitz trial Scheduling Court” (BTSC) was a procedural innovation borne entirely out of the exceptional circumstance of the COVID-19 public health crisis that impacted and impeded the administration of justice in countless ways.
54Countless trials had to be adjourned, adding immense and compounding trial scheduling pressures on the system. The BTSC was instituted to centralize and focus scheduling – a valuable and necessary step instituted ultimately to mitigate scheduling delays.
55The time required to schedule a Blitz scheduling date has been deducted in several local decisions as a COVID-19-informed discrete event. I accept the correctness of those decisions and adopt the related analysis. As my local colleague Justice Bergman recently observed in the unreported decision of R. v. Zettler [12]:
What is abundantly clear from the submissions of counsel and my limited knowledge of the culture of the Newmarket, Ontario Court of Justice, is that the Blitz court procedure only arose as a result of the pandemic. Blitz court only exists because the pandemic necessitated its existence. The Blitz court in Newmarket was created as a means of trying to minimize and mitigate against Covid-19 related delays…
Had the pandemic not occurred, there would have been no Blitz court in Newmarket. Given Crown and defence counsel's submissions, I accept that the existence of the Blitz court is directly attributable to the pandemic. The reasonable delays arising from the Blitz court process is therefore evidence that Covid-19 caused delays. I find that the 43 days it took from defence counsel's follow up to the trial coordinator until the Blitz court date are due to the exceptional circumstance created by Covid-19.
56Two other local colleagues came to the same determination that the BTSC procedure was implemented to mitigate scheduling delay arising out of the COVID-19 crisis, [13] and that the time required to obtain a BTSC date must be deducted as a discrete event. I embrace and adopt the correctness of these analyses. Accordingly, the 24 days required to obtain a BTSC date must be deducted as a discrete event.
J. “Time To Trial” – Lingering Impact of COVID-19: Limited Deduction
57The time between setting the trial and the trial itself obviously must count towards the ceiling. The trial was set on May 10th, 2023, and to be heard on April 8-10, 2024. These eleven (11) months (or 336 days) would otherwise be attributed to the system.
58However, the “time to trial” delay jurisprudence has engaged the exceptional circumstance of the COVID-19 crisis, that still reverberates in our courts today. Much has recently been written about the nuanced and fading impact of the pandemic on trial scheduling in our jurisdiction. It cannot be disputed that our court is still impacted by the unprecedented exceptional circumstance of the pandemic.
59I draw from the analysis of our Local Administrative Justice, Justice Henschel in R. v. Korovchenko [14], where three (3) months were deducted in 2022 from the time to trial, due to the exceptional circumstance of the COVID-19 pandemic.
60I recognize that the local jurisprudence that followed sometimes reflected that the impact of the pandemic lessens and softens as time passes. I agree with that as a general proposition. However, it is indisputable that it still impacts the “time to trial” in York Region.
61Specifically, there were eleven (11) months between setting the trial date and the original trial dates. Prior to the pandemic, I am aware that, locally, a similar trial could be scheduled within a shorter timeframe. Apparently also embracing this view, a local colleague mere months ago again deducted three (3) months for the Covid-informed impact on time-to-trial. [15] This was correct. Some related deduction is required, drawing from local jurisprudence.
62I will exercise restraint in delay attribution from this ongoing exceptional circumstance. While I may have deducted 60 days, I will merely deduct 30 related days between the set date and original trial dates. Ten (10) of the eleven months will be deducted from the set date to the end of the original trial dates in April of 2024.
K. Crown Adjournment Granted – Witness Illness a Discrete Event
63As confirmed in Jordan, “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.”
64Exceptional circumstances to excuse delay may involve discrete events, such as illness or the COVID-19 pandemic. Case complexity is also an exceptional circumstance, qualitatively applied to excuse delay, although this does not apply here.
65The Crown successfully applied to adjourn the trial scheduled for April of 2024 due to a key police witness being away on an illness-related leave of absence. At the time, newly consulted counsel attended for the Applicant to speak to the adjournment. The adjournment was granted “on consent” of the defence.
66The defence now concedes that the ensuing delay must be deducted as a discrete event. That was correct to do so, given the Crown’s efforts to mitigate the delay that followed.
67The Supreme Court in Jordan repeatedly specified “illness of a trial participant” as an example of a discrete event that can justify delay. [16] Beyond the adjournment, there was no other remedy available to the Crown for its key witness.
68The Crown asked to prioritize trial scheduling after the adjournment and was available for the earliest offered dates. In doing so, the Crown took all reasonable steps to mitigate the delay that followed.
IV. FINAL CALCULATION
69The remaining delay is approximately seventeen (17) months and ultimately below the 18-month ceiling for unreasonable delay. The calculation involves a total delay of 33 months and two weeks (or 1019 days) and is to be summarily apportioned as follows:
[Total Delay - 1019 days, or 33.5 months] i. 210 days (intake processes, towards ceiling – 7 months)
- (Deduct next 137 days for delay waivers – 4.5 months)
- (Deduct next 73 days of defence delay for counsel removal – 2.5 months)
- (Deduct next 70 days of defence delay for request for time – 2.5 months)
- (Deduct next 24 days as discrete event for trial setting – BTSC)
- (Deduct next 30 days for impact of COVID-19 on “time to trial”) ii. 306 days (time to trial, towards ceiling - or 10 months)
- (Deduct 172 days after trial adjourned for discrete event of illness) iii. 513 days (Remaining delay – 17 months)
A. Below Ceiling Calculation
70The remaining delay of 17 months is below the presumptive ceiling for unreasonable delay. In clear cases, delay below the 18-month ceiling may still be unreasonable if the defence took meaningful steps to show a sustained effort to expedite the proceedings and the case took markedly longer than it reasonably should have.
71Neither of these two preconditions to a below-ceiling violation is established here. Mr. Ay did not take meaningful steps to show a sustained effort to expedite the proceedings. After the first 7 months, the defence waived delay for several months to perfect counsel’s retainer. Instead of waiving delay for a retainer pursuit that would fall apart, the matter could simply have been set down for timely trial in accordance with the availability of consulted counsel to be retained in the interim.
72More months would pass, as counsel would soon be removed from the record. By the time the Applicant finally set his matter down for trial, approximately 17 months had passed. Even when trial dates were offered almost a year away, the Applicant asked to defer the trial further given he had “just started working”.
73No meaningful steps were taken by Mr. Ay. Any effort to expedite the matter was far from sustained. It cannot be suggested in the circumstances that the case took markedly longer than it reasonably should have. I cannot find a “below ceiling” violation of Mr. Ay’s delay rights.
V. CONCLUSION
74While the total delay is over thirty-three (33) months, seven (7) of those months was solely caused by the defence. The Crown-caused adjournment of first trial is agreed to be a discrete event that had been mitigated by the system, resulting in an additional deduction of over 5.5 months (or 172 days).
75Other identified deductions stemmed from the lingering effects of the COVID-19 public health crisis and further defence delay, resulting in a remaining delay of 17 months. That is below the presumptive ceiling for unreasonable delay, and this is not clearest of cases warranting a violation and stay of proceedings under the ceiling.
76The application is denied. The trial dates scheduled for later this month remain. My thanks to counsel.
Released: September 26, 2024 Signed: Justice A. A. Ghosh
1R. v. Jordan, 2016 SCC 27, [2016] S.C.J. No. 27; R. v. Coulter, 2016 ONCA 704, [2016] O.J. No. 5005 (C.A.)
2R. v. Allison, 2022 ONCA 329, paras. 35-43
3R. v. Wookey, 2021 ONCA 68, para. 55; R. v. Kalanj, [1989] 1 S.C.R. 1594
4Jordan, para. 61
5Jordan, para. 63
6Jordan, para. 64
7R. v. Cody, 2017 SCC 31, para. 32
8Jordan, para. 65
9Jordan, para. 65; Cody, para. 29; Wookey, para. 27; R. v. Lahiry, 2011 ONSC 6780, para. 19
10Ontario Court of Justice"Practice Direction: Jordan-Compliant Trial Scheduling, (November 2023)
11R. v. Stinchcombe, [1991] 3 S.C.R. 326, para. 17
12R. v. Zettler, (June 2, 2024) Newmarket, Bergman J. (O.C.J.)
13R. v. Dobell, (December 7, 2023) Newmarket, Robinson J. (O.C.J.); R. v. Colquhoun, (January 19, 2023) Newmarket, Sickinger J. (O.C.J.)
14R. v. Korovchenko, 2022 ONCJ 388
15R. v. Clark, 2024 ONCJ 218, paras. 8-9
16Jordan, paras. 81 and 195