ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
VACLAV STEFAN
Before Justice A. Neil Singh
Heard on November 6, 2024
Reasons for Judgment on s.11(b) released on November 12, 2024
Sebastien Gerdun Counsel for the Respondent/Crown
Gurpreet Dhaliwal Counsel for the Applicant / defendant Vaclav Stefan
Table of Contents
Introduction.. 2
The Factual Background.. 2
The Jordan Framework.. 5
Positions of the Parties. 7
Analysis & Discussion.. 7
Total Delay. 7
Defence Delay. 7
Net Delay. 8
Delay Below the Presumptive Ceiling.. 8
(i) Sustained Effort to Expedite the Proceedings 8
(ii) Markedly Longer 12
Conclusion.. 16
Introduction
1The Applicant has brought a motion alleging that his right to a trial within a reasonable time as enshrined in s.11(b) of the Canadian Charter of Rights and Freedoms (Charter) has been infringed. The Applicant seeks a stay of proceedings under s.24(1) of the Charter. The Respondent opposes the application submitting that there has been no breach of the Applicant’s s.11(b) Charter right.
2On August 12, 2023, the Applicant was arrested for the drinking and driving offences of (i) impaired driving; and (ii) driving with excess blood alcohol. The information was sworn on August 21, 2023. The presumptive Jordan ceiling is February 21, 2025. The trial is scheduled to be completed on January 22, 2025, within the presumptive Jordan timelines. Nevertheless, the Applicant pleads that his s.11(b) Charter right was infringed. He seeks an under-the-ceiling stay.
3These are my reasons:
The Factual Background
4To properly assess whether there has been a breach of the Applicant’s s.11(b) Charter right, a summary of the factual background is necessary. The following are the key factual circumstances necessary to understand the issues and the Court’s ultimate determination of this application:
| Date | Facts |
|---|---|
| August 12, 2023 | The Applicant was arrested for the charges before the Court. He was released on an Undertaking with a first appearance of August 25, 2024. |
| August 21, 2023 | The information was sworn to and accepted by Her Worship Double, thus commencing the criminal proceedings against the Applicant. |
| August 24, 2023 | Counsel, Mr. Dhaliwal sent an email to the Brampton Crown Attorney’s Office formally requesting disclosure. |
| August 25, 2023 | The Crown Attorney’s Office responds to Mr. Dhaliwal’s email acknowledging his request and informing counsel that the “appropriate staff member has been notified.” Counsel is further advised of the Scope ID & Peel Regional Police Division that the prosecution arises out of. At the first appearance, Mr. Dhaliwal attended to speak to the matter. Mr. Dhaliwal noted his disclosure request from the day prior and confirmed that the Crown had responded. The matter was adjourned to October 20, 2023. |
| October 20, 2023 | Mr. Dhaliwal attended to speak to the matter. He advised the Court of his disclosure request and that he has not received disclosure yet. The Court inquired of the Crown for a status update. The Crown advised that Mr. Dhaliwal’s disclosure request “has been actioned, however disclosure’s currently not ready.” The matter was adjourned to January 5, 2024, while counsel still awaited receipt of initial disclosure. |
| January 5, 2024 | Mr. Dhaliwal attended to speak to the matter. He advised on the record, “I’m still waiting for disclosure…I can’t move forward in its absence, so I’m happy to go to any court date the Crown may suggest, but…I need something to move forward.” The Crown in Court responded again acknowledging Mr. Dhaliwal’s disclosure request. The Crown in Court stated that they were going to “send a follow-up request with respect to this matter to the case management Crown” and asked for a date in February “to try to make sure that we get counsel that disclosure.” The matter was adjourned to February 16, 2024. |
| February 16, 2024 | Mr. Dhaliwal attended Court to speak to the matter. He advised the Court that he is still waiting on disclosure. The Crown in Court advised that disclosure appeared “to still be in the vetting stage” and asked for a short adjournment. The Crown in Court advised that “I can notify my colleagues to have disclosure out expeditiously.” The matter was adjourned to March 15, 2024. |
| March 14, 2024 | Disclosure was released to counsel at 9:41 p.m. |
| March 15, 2024 | Counsel booked a Crown Pretrial through the Crown’s online scheduling system. The earliest date available was April 15, 2024, at 4:00 p.m. It was selected. Mr. Dhaliwal then appeared in Court and advised that he had received disclosure and booked the Crown Pretrial. The Crown in Court noted the availability of the “R1” Crown who would be available to meet with counsel before the scheduled Crown Pretrial. Mr. Dhaliwal advised that he had no difficulty scheduling a Crown Pretrial with the “R1” Crown but noted that he had some difficulty in the past with that process. He advised that if he was “able to do that before April the 15th,” he would. The matter was adjourned to April 19, 2024. |
| April 15, 2024 | The Crown Pretrial was held, as scheduled. Pursuant to those discussions, it was determined that the matter required a Judicial Pretrial. |
| April 16, 2024 | Mr. Dhaliwal scheduled a Judicial Pretrial through the Trial Coordinator’s Office. The first date offered was May 16, 2024. It was accepted. |
| April 19, 2024 | Mr. Dhaliwal appeared in Court to speak to the matter. The matter was adjourned to May 24, 2024, so that the Judicial Pretrial could be conducted. |
| May 16, 2024 | The Judicial Pretrial was conducted as scheduled. A trial estimate of 3 days was confirmed. |
| May 22, 2024 | Mr. Dhaliwal contacted the Trial Coordinator’s Office to secure trial dates for the matter. |
| May 24, 2024 | Trial dates of June 19-21, 2024, were offered. The defence accepted them. The Crown was not available. The next dates offered were January 20-22, 2025. They were accepted by all parties. Mr. Dhaliwal then appeared in Court to speak to the matter. The paperwork confirming the trial dates was not yet available on the Court’s network drive and the matter was adjourned to June 7, 2024, to put the trial dates on the record. |
| June 7, 2024 | Mr. Dhaliwal appeared and put the trial dates on the record. At the time that he put the trial dates on the record, Mr. Dhaliwal stated “I’ll be bringing an 11(b) application. It’s a live issue at this point.” The matter was adjourned to the first date of the trial. |
| August 7, 2024 | Counsel secured a date of November 6, 2024, for the hearing of an 11(b) motion. |
5A few things bear noting at this point.
(1) The time from the date of the swearing of the information to the date that the Applicant received disclosure was 207 days1.
(2) The time from the date counsel received disclosure to the date trial dates were secured from the Trial Coordinator’s Office was 70 days.
(3) The total time from the date counsel received disclosure to the anticipated end of the trial was 313 days.
(4) The total time from the date the information was sworn to the anticipated end of the scheduled trial was 520 days.
The Jordan Framework
6In determining whether an Applicant’s right under s.11(b) of the Charter has been breached, Application Judges are required to employ the framework established by the Supreme Court of Canada in R v. Jordan2. For a matter proceeding in the Ontario Court of Justice, the Supreme Court established a ceiling of 18 months from the swearing of the information, after which the delay is considered presumptively unreasonable.
7In R v. Coulter3, the Ontario Court of Appeal helpfully distilled the framework down to the following steps:
(1) Calculate the total delay, which is the date of the swearing of the information to the actual end or anticipated end of trial (i.e., the end of the evidence and closing arguments).
(2) To calculate the net delay, subtract defence delay, including delay that is waived by the defence, from the total delay.
(3) Compare the net delay to the presumptive Jordan ceiling.
(4) If the net delay exceeds the presumptive ceiling, the delay is presumptively unreasonable. The onus is on the Crown to rebut the presumption of unreasonable delay by establishing the presence of exceptional circumstances. If the Crown is unable to do so, a stay will follow. Exceptional circumstances fall under two categories: discrete events and particularly complex cases.
(5) To calculate the remaining delay, subtract, from the net delay, delay caused by discrete events.
(6) If the remaining delay exceeds the presumptive ceiling, consider whether the case was particularly complex, so as to justify the time the case has taken and lead to a conclusion that the delay is reasonable.
(7) If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is, in any event, unreasonable.
8To establish a below-ceiling breach of an Applicant’s s.11(b) Charter right, the Applicant must satisfy both of the following criteria: (1) that the defence took meaningful steps demonstrating a sustained effort to expedite the proceedings; and (2) that the case took markedly longer than it reasonably should have4. Their onus is assessed on a balance of probabilities.
9It should be noted that a stay within the presumptive ceiling should be considered as rare and limited to “clear cases.”5
10The burden at this stage is on the Applicant to show that they took meaningful, sustained steps to expedite the proceedings. The Court is to consider what the defence could have done, and what it actually did to get the case heard as quickly as possible. Substance matters, not form. The defence are expected to act reasonably, not perfectly.6
11In determining whether the case took markedly longer than it otherwise reasonably should have the Court is to look at a number of factors including (i) local considerations, (ii) the complexity of the case, and (iii) the Crown’s efforts to expedite the proceedings.7
12In assessing local considerations, trial judges should “employ the knowledge they have of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances.” Trial judges are supposed to take a step back from the minutiae and adopt a bird’s-eye view of the case8. It is unlikely that the time requirements of a case will have been markedly exceeded if the Crown has done its part to ensure the matter proceeded expeditiously9.
13Ultimately, the issue is whether the case took markedly longer than it reasonably should have10. In assessing a below-the-ceiling stay, the Court is to start from the position that the state brought the Applicant to trial within a presumptively reasonable time, and from there, ask whether the presumption of reasonableness has been rebutted.11
Positions of the Parties
14The Applicant submits that although the presumptive Jordan ceiling has not been breached, he has nevertheless established a breach of his s.11(b) right to a trial within a reasonable period of time. The Applicant submits that he has made sustained efforts to expedite the matter, and the matter took markedly longer than it otherwise should have.
15The Respondent has opposed the application. The Respondent submits that the Applicant has failed to meet their onus on either step of the test for an under-the-ceiling stay. The Respondent submits that the Applicant could have (and should have) done more to try to expedite the matter. Beyond that, the Applicant has failed to establish that a trial within 17 months of the swearing of the information is unreasonable.
Analysis & Discussion
Total Delay
16The total delay from the swearing of the information (August 21, 2023) to the anticipated end of trial (January 22, 2025) is 520 days, or 17.1 months12. This is below the presumptive Jordan ceiling. The onus thus remains with the defendant to establish a breach of his s.11(b) right within the presumptive Jordan timeframes.
17While the total delay is within the Jordan timeframes, it is necessary to consider the net delay in the matter. Any defence delay may become relevant in assessing whether the efforts they made to expedite the matter were meaningful and sustained.
Defence Delay
18The Applicant submits they are not responsible for any delay. They never waived their s.11(b) right at any time, nor did their actions cause any of the delay in this matter. The Respondent did not submit otherwise in either their written materials, or orally before me.
19I agree. The defence pursued disclosure and, once in receipt, moved expeditiously to carry the matter through the required Court procedures of a Crown Pretrial, Judicial Pretrial, and ultimately the setting of a trial date. When trial dates were put on the record, they put the Crown on notice that they would be bringing a s.11(b) Application.
20The Applicant moved almost immediately after each stage of the proceeding once in receipt of disclosure. The only period where he didn’t was between the Judicial Pretrial and contacting the Trial Coordinator’s Office to secure trial dates, a period of 6 days. This is not defence delay, however. I have previously found that in a routine impaired driving case, a week to obtain instructions and then move the matter forward was reasonable13. Counsel did so and took next steps within that timeframe.
Net Delay
21There are no deductions to be subtracted from the total delay. Further, there are no exceptional circumstances that would require any further deductions. The total delay, net delay, and remaining delay are congruent with one another at 520 days or 17.1 months.
Delay Below the Presumptive Ceiling
22To be eligible for a below-the-ceiling stay, the Applicant must meet their onus on both prongs of the test. First, they must establish that the Applicant took meaningful steps that demonstrate a sustained effort to expedite the proceedings. Second, they must establish that the case took markedly longer than it reasonably should have.
(i) Sustained Effort to Expedite the Proceedings
23The Applicant submitted that at all stages of the proceeding, they exhibited a sustained effort to expedite the matters. From the Applicant’s perspective, the only thing that delayed matters was the failure of the Crown to provide timely disclosure. The Crown did not provide any disclosure until 207 days after the swearing of the information. Once they were in receipt of disclosure, they moved the matter forward without delay.
24The Respondent counters that the Applicant did not do enough. The Respondent notes that only one written request from disclosure was made. They further submit that the Applicant ought to have raised their s.11(b) concerns at the initial stages when they were awaiting the initial disclosure package. The Respondent submits that the Applicant was obligated to specifically state that s.11(b) was in issue if their concern was an under-the-ceiling stay. The Respondent also submits that the Applicant’ should have scheduled a Judicial Pretrial to address the disclosure issues in this case. Finally, the defence should have booked an “R1” Crown Pretrial instead of an “R3” Crown Pretrial to move the matter along.
25Addressing each of the Respondent’s submissions is important in coming to a determination on this matter. Before doing so, I remind myself of Justice Moldaver’s instructions in Jordan that I am to consider what the defence could have done, and what it actually did to get the case heard as quickly as possible. Substance matters, not form. Further, the defence must show that they attempted to set the earliest possible hearing dates, was cooperative and responsive to the Crown and the Court, put the Crown on timely notice when delay was becoming an issue and conducted all applications reasonably and expeditiously. I also remind myself not to take this opportunity, with the benefit of hindsight, to question every decision made by the defence. The standard is one of reasonableness, not perfection.14
One Written Disclosure Request
26An accused’s right to disclosure is triggered once asserted. While the Crown has a duty to provide disclosure, and often does so without requiring a formal request, the defence is duty-bound to follow-up to ensure their compliance with their constitutional obligation. If they fail to do so, any resulting delay will be considered when assessing whether the defence took meaningful steps to expedite the trial15.
27It is undisputed that only one written disclosure request was made. It must be noted, however that this was an initial disclosure request. This is not a situation where counsel received disclosure, sat idly by while outstanding disclosure remained, and then complained. The defence here was without any disclosure.
28On the morning of the Applicant’s first appearance, the Crown acknowledged receipt of his disclosure request. At each subsequent Court appearance after that date until disclosure was provided, defence counsel advised the Court that they were awaiting initial disclosure. The Crown was responsive on each occasion.
(1) On October 20, 2023, the Crown advised the Court that the disclosure request had been “actioned,” but was not ready yet.
(2) On January 5, 2024, Mr. Dhaliwal stated he could not move the matter forward without disclosure. The Crown in Court did not dispute this, but rather advised that they would be sending a follow-up request to the Case Management Crown.
(3) On February 16, 2024, the Crown advised that disclosure was still in the vetting stage and sought an adjournment stating that they would request disclosure be sent out “expeditiously.”
Disclosure was ultimately provided on March 15, 2024, a month later.
29Could Mr. Dhaliwal have sent in more written disclosure requests? Yes. Were his actions in seeking disclosure reasonable? Yes.
30It is well known by this jurist, having heard several s.11(b) motions in this jurisdiction, that when disclosure requests are made to the Brampton Crown Attorney’s email (VirtualCrownBrampton@ontario.ca), a pro forma response is sent to counsel. That is what was done here. Instead, counsel raised his concerns directly with the Court. The Crown was responsive to the concerns. Mr. Dhaliwal’s choice to rely on a live Crown (an officer of the Court) with access to SCOPE16 rather than a general email inbox (where a pro forma response would be expected) was entirely reasonable. Substance matters, not form. The Applicant pursued disclosure diligently.
Putting s.11(b) concerns on the record prior to receiving initial disclosure
31The Respondent submitted that the defence was further obligated to put their s.11(b) concerns on the record earlier while they awaited initial disclosure. In response to the Court asking if the defence needed to say the words “11(b)” on the record to make this clear, counsel for the Respondent stated that if the concern is an under-the-ceiling stay, “yes.”
32With the greatest of respect, I disagree. Askov17 and Stinchcombe18 were each decided over 30 years ago, in 1990 and 1991 respectively. If it were not clear that failing to provide initial disclosure to an accused facing criminal allegations would raise s.11(b) concerns, then basic common sense has become overborne by the culture of complacency the Supreme Court of Canada spoke out against in Jordan.
33The Applicant in response stated that they would not know whether s.11(b) would truly be an issue until trial dates were secured. In fact, the Applicant stated that had the June 2024 dates that were offered been accepted by the Crown, there would have been no s.11(b) application. Once dates were secured and put on the record, the Crown was put on notice.
34I agree. The Supreme Court in R. v. J.F.19, at paragraph 36, found that an accused has an obligation to indicate that their right to be tried within a reasonable time has been infringed, and bring an application for a stay of proceedings in a timely fashion. The Court stated that as a general rule, the parties will be in a position to know whether the trial delay will exceed the presumptive ceiling at the time the trial is set, and the defence can raise any concerns it may have. The same applies with respect to under-the-ceiling stay applications. The trial date secured is germane, and indeed fundamental to counsel’s assessment of their client’s s.11(b) rights. Here, when dates were put on the record, the assessment having been made, counsel put the Crown on notice immediately and without equivocation.
35Could the Applicant have stated s.11(b) was an issue while they waited for initial disclosure? Yes. Ultimately, were their actions in raising s.11(b) reasonable? Yes.
36That being said, I note that the Respondent’s position would simply encourage every accused to put the Crown on notice that s.11(b) was in issue at their first appearance. Practically, I suspect that such pro forma notice would handcuff the Crown in identifying and prioritizing matters with legitimate s.11(b) issues. I reiterate the obvious again: substance over form.
Booking an “R1” Crown Pretrial instead of an “R3”
37The Applicant booked a Crown Pretrial through the normal course. They selected the earliest date offered through the Crown’s online booking system. They were open to conducting an “R1” Crown Pretrial sooner if they were able to prior to the scheduled Crown Pretrial. In oral submissions, Mr. Dhaliwal advised that in his experience the “R1” system was “hit or miss,” meaning that sometimes the Crown would contact you, and sometimes they would not.
38Indeed, that has been my experience over the time that I have presided in Brampton. I often hear that counsel have signed up for an “R1” Crown Pretrial, on numerous dates, and never received a call from the Crown. I am also aware that there is no set time when counsel can expect to be contacted by the “R1” Crown. They simply enter a queue and wait their turn. If counsel is otherwise unavailable when the Crown calls, they lose their place in line. A scheduled Crown Pretrial is more reliable.
39While I think it likely that Mr. Dhaliwal would have been able to connect with an “R1” Crown prior to April 15, 2024, at the same time he cannot be expected to hold himself perpetually available to do so. Counsel took the earliest Crown Pretrial offered through the normal course, and in accordance with his schedule.
40Could counsel have conducted a “R1” Crown Pretrial before April 15, 2024? Yes. Were his actions in securing and conducting the earliest “R3” Crown Pretrial on the date he received disclosure reasonable? Yes.
41The evidentiary record makes it clear that there was a case management Crown attached to this file. I note, anecdotally at this point, that if the Crown was concerned about delay in this matter, and the culture of complacency that has infected the criminal justice system, they could have reached out to counsel for a Crown Pretrial outside of their office’s normal protocols. There is no evidence they did.
42In all of the circumstances, the defence acted reasonably.
Not setting a Judicial Pretrial to address the lack of disclosure
43The Respondent submitted that the defence should also have scheduled a Judicial Pretrial to address the lack of disclosure issue. In doing so, Mr. Gerdun stated that it was common practice to book a Judicial Pretrial to canvas disclosure issues even if the defence is unable to have a meaningful Judicial Pretrial. Had the defence booked a Judicial Pretrial, the Respondent submits that the lack of disclosure would have been “impossible to ignore.”
44It is well established that disclosure need not be complete before moving matters forward through the system. Meaningful steps can indeed be taken by counsel to advance their client’s case without complete disclosure.
45What about the situation when there is no disclosure? Requiring the setting of a Judicial Pretrial in such circumstances would not be an effective use of Court time. The goal should be to have meaningful pretrials. While a meaningful pretrial can be achieved without full disclosure, one simply cannot be had where no disclosure has been provided.
46I find that requiring a Judicial Pretrial would not be reasonable. A meaningful pretrial could not be held. In addition, this could create a cascading effect of Judicial Pretrial timeslots being taken up by parties simply seeking to have the Crown comply with their most basic Stinchcombe obligations while forcing others, who are actually prepared to discuss substantive issues, to wait longer for theirs. This could very well end up exacerbating the delay problem in Peel Region, rather than help rectify it. Crowns are Ministers of Justice with constitutional obligations. The Court should not be used as their tickler system.
Conclusion on Step 1: the defence took meaningful sustained efforts to expedite
47I find, as a fact, that the Applicant took meaningful sustained efforts to expedite the matter. Counsel was retained before the first appearance. A disclosure request was sent before the first appearance. At every Court appearance, the Applicant advised the Court and Crown that disclosure was outstanding. The Crown was meaningfully responsive to the Applicant’s concerns, indicating where the status of disclosure stood, and what steps they would take to get disclosure to the accused.
48Once in receipt of disclosure, the Applicant moved with a level of efficiency rarely seen in these Courts. The Crown Pretrial was booked on the date disclosure was ostensibly received. The Judicial Pretrial was booked the day after the Crown Pretrial was conducted, although I note the Crown Pretrial was conducted at 4:00 p.m. Only 6 days after the Judicial Pretrial, counsel contacted the Trial Coordinator’s Office to fix trial dates. The earliest dates offered were agreeable to the defence, albeit not the Crown. The next dates offered; the existing trial dates were accepted by all. When dates were put on the record, they notified the Crown that they would be bringing a s.11(b) application. They obtained a date for the application and argued it reasonably and efficiently.
49In doing so, I firmly reject the Crown’s position that the defence should have done more to move the case along when the Crown did not produce initial disclosure.20 The defence is not held to a standard of perfection, but rather one of reasonableness. I find that the Applicant’s actions in trying to expedite this matter were meaningful, sustained, and indeed reasonable.
(ii) Markedly Longer
50At this stage, the Court is required to assess whether this case took markedly longer than it otherwise reasonably should have. The analysis requires that I take a bird’s eye view and resist the urge to focus too narrowly on the minutiae of the case. The Court must assess (i) local considerations, (ii) case complexity, and (iii) whether the Crown took reasonable steps to expedite the proceedings.
Local Considerations
51At the risk of sounding like an echo bellowing through the hallways of this Courthouse, Brampton is one of the busiest jurisdictions in the country. That being said, just because a jurisdiction is busy, it does not mean it will necessarily suffer from systemic delays. A busy jurisdiction can be fully served by its system of justice21.
52I also note that on numerous occasions, I have expressed dismay with respect to this Crown’s office failing to provide disclosure in a timely fashion to accused persons with no accompanying justifiable reason for the delay22. That is precisely the same situation this Court is faced with, yet again. While I cannot go so far as to say that the Crown was negligent, I find as a fact that they were, at the very least, complacent regarding their constitutionally mandated disclosure obligations.
Case Complexity
53This is a straightforward impaired driving case. There is nothing complex about it. No one has submitted otherwise. The vast majority (if not all) of the disclosure had crystallized at the time of the offence. While most of the disclosure could have been provided to the Applicant on the date of the arrest, a reasonable allowance ought to be afforded for the backlog of other cases in the system and for administrative procedures. Justice Harris, sitting in the Superior Court of Justice in this building, recently allowed a conservative estimate of one month for a straightforward case23.
Crown Efforts to Expedite
54I find without hesitation that the Crown did not undertake efforts to expedite this matter. There is no evidence that they did anything to expedite this case at any stage of the proceedings. They certainly didn’t expedite disclosure, and despite speaking of the availability of a Crown Pretrial at an earlier stage, the Crown took no initiative to reach out to counsel themselves. In the substance vs. form arena, the Crown’s office chose form. Finally, once trial dates were secured and the Crown was put on notice that there would be a s.11(b) motion, nothing was done to secure earlier dates. My experience in this jurisdiction has shown me that it is not uncommon to be offered dates within sixty days where the Crown chooses to prioritize an uncomplex matter.
Conclusion on Step 2: This case took markedly longer than it reasonably should have
55When factoring in local considerations and case complexity, I find that this case should have reasonably taken approximately 12 months. There was nothing complex about the case, and once disclosure was provided, the matter moved quickly through the system with the Court being a model of efficiency and responsiveness.
56The sole source of delay here was Crown complacency. The Crown said, amongst other things that they “dropped the ball” and this case “fell through the cracks.” There is no evidence as to how the proverbial ball was dropped through the cracks.
57Taking a bird’s eye view of this situation, this jurist sees complacency and indifference towards constitutional disclosure obligations. This was initial disclosure. There were multiple court appearances where the issue was raised, and the Crown in Court appeared genuinely responsive. A marked portion of the presumptive Jordan timeframe was taken up for no good reason24. It is one thing for a matter to take the time it does because the Court, or Crown’s office is overborne by volume. This situation, however, was entirely different; and on the evidentiary record, entirely avoidable.
58We all know that a defendant cannot be complacent and reap the benefits of accumulating delay. Similarly, the Crown cannot be complacent in its constitutional disclosure obligations and then benefit from it by asserting that the timeframe for the case-at-bar is what is typical in this jurisdiction.
59In R. v. R.M., my brother Justice Bernstein found that a delay of 519 days for a 5-day trial, in a matter he found to be uncomplex to be markedly longer than it should have taken25. In another case, Justice Harris of the Superior Court of Justice found 17-months to be markedly longer than it should have been for a straightforward 3-day trial in the Ontario Court of Justice26. In both cases, the delay in the matter proceeding sooner, was as a result of Crown disclosure issues. In the case at bar, considering the evidentiary record as a whole, while adopting a bird’s eye view of the case, I come to the same conclusion.
60The Crown submitted to me that a stay, should only issue in the “clearest of cases.” With great respect, I disagree. The Supreme Court in K.J.M., clarified the meaning of “clear cases” in the context of an under the ceiling stay in stating, “the restriction to “clear cases” was simply meant to ensure that borderline cases are not stayed, given the significant public interest in seeing a criminal matter resolved on the merits.”27
61I find my brother Justice Jones’ analysis from paragraphs 68 to 73 in his recent decision of R. v. Drummond28 to be particularly helpful. I can do no better than to quote his eloquent words directly:
[63] I find Harris J.'s decision in R. v. Belle, 2018 ONSC 7728, particularly informative. The Crown provided a “mountain of information” on the eve of the accused’s trial. This material should have been provided previously, and the Crown did not explain why it was disclosed at the last minute. A second trial date was set after 28 months and 10 days, which fell below the ceiling of 30 months for cases to conclude in the Superior Court of Justice.
[64] Harris J. granted a Jordan application despite the application being based on delay falling below the ceiling. It was a standard importing case with a six-day jury trial. After arriving in the Superior Court, a trial could typically have been set within 10-12 months: see para. 12. Instead, it took nearly 18 months to bring the case to trial, which was “markedly longer” than what should have been expected.
[65] Commenting on Belle in Campbell, the Ontario Court of Appeal noted that the delay in Belle was due to the late disclosure, which allowed the application judge to determine that the time to the second trial was outside the reasonable time requirements for the case: see para. 30. Similarly, I find the late disclosure in this case has resulted in a trial date outside what was reasonably required.
[66] In R. v. Mohamed, [2022] O.J. No. 2146, Justice Peeris held that 16 months and 18 days was “markedly longer” than reasonably required for a three co-accused case involving firearms and drug charges. The prosecution was centred around the execution of a search warrant based on information provided by a confidential source. There was nothing particularly complex about the evidence, but the case was delayed by the failure of the Crown to provide disclosure within six months. The charges were stayed.
[67] In other reported decisions where courts have denied “under the ceiling” applications for delay and where the defence cited the late provision of disclosure, the Crown has been able to rely upon some explanation for its inaction. For example, in R. v. Rahi, 2023 ONSC 905, Ducharme J. accepted the pandemic's role in the case's ability to move forward and that the Crown made efforts at all stages of the proceedings: see para. 49. In R. v. S.C., 2022 ONCJ 486, Mackay J. accepted that the pandemic and the switch to a new electronic disclosure system justified delays in providing disclosure: see para. 46.
[68] Similarly, Fraser J. denied a Jordan application in R. v. Charlton, 2024 ONCJ 95. The accused was charged with possession of child pornography. A report detailing the images and videos located on two cell phones was outstanding for a prolonged period, and the defence did not consistently act with due diligence in obtaining that report: see paras. 15-16. The outstanding disclosure was also the product of post-arrest investigative steps, common in child pornography cases, but that does not exist in the present case: see para. 24. The case could not be said to have taken “markedly longer” than reasonably necessary.
[69] I find nothing equivalent that explains the disclosure problems present here. Certainly, no evidence in that regard was provided by the Crown. Taking a birds-eye view of this case, there is no escaping the conclusion that the delay was due to the Crown's negligence in providing essential disclosure materials. Mr. Battigaglia did everything that could have been reasonably expected of him.
[70] When determining if a case took “markedly longer” than is reasonably necessary to get to trial, the Supreme Court instructed trial judges to use knowledge of their jurisdiction, including how long a similar case typically takes to get to trial considering relevant local and systemic circumstances: see Jordan at paras. 87-89, 91.
[71] This case could have been set for a trial much sooner. Once the parties had sufficient disclosure to set trial dates, I note that they were able to obtain a five-day trial within four months of requesting one and were able to get four days for Charter motions within two months of that request. Had a complete disclosure package been provided to Mr. Battigaglia once he was retained and appeared in court on August 16, 2023 (which was six months post-arrest)[9], trial dates would have been made available by early 2024, or approximately twelve months after the laying of the information. That would have been three to four months sooner than the trial dates that were finally acquired.
[72] No evidence was presented that the Crown undertook efforts to prioritize this case.
[73] Each case must be decided on its facts and rather than what I might deem to be a generally reasonable period of delay for all cases of a similar nature: A.C. at para. 58. The police had near complete disclosure in their possession from the day they arrested and charged Mr. Drummond.[10] Cases of this nature should be held to a different standard than more complex ones with challenging or ongoing disclosure requirements.
62His Honour’s analysis is unassailable, and it applies to the case at bar. This case is not borderline. It is a straightforward matter that was delayed inexplicably and without excuse due to Crown complacency. As Justice Harris stated in A.(C.), “the decades long chronic delay in Brampton exacerbated the situation and should not lead to greater tolerance for delay, but less.”29 The police had complete (or at least nearly complete) disclosure from the date of arrest. Further, the Crown took no steps to expedite the matter.
Conclusion
63The Applicant has met their onus, on a balance of probabilities, for a below-the-ceiling stay. They undertook meaningful and sustained efforts to expedite the proceedings, and the matter took markedly longer than it otherwise should have. Mr. Stefan’s Charter right to be tried within a reasonable time has been infringed. The charges will be stayed.
64Drinking and Driving is one of our society’s most pernicious evils, it quite literally destroys lives, tears apart families, and ruptures our society’s feeling of safety and security. A trial on the merits is always the preferred route, but it cannot come at the cost of our collective rights and freedoms as enshrined in the Charter.
65My thanks to counsel for their assistance in this matter.
Released: November 12, 2024
Signed: Justice A. Neil Singh
Footnotes
- Although initial disclosure was released on March 14, 2024, it was done at 9:41 p.m. Given that disclosure was provided well outside the normal operating hours of the Courts, I have considered it to have been provided on March 15, 2024.
- 2016 SCC 27
- 2016 ONCA 704 at paras. 34-41
- R v. Jordan, supra at paras 82-83
- Ibid at para 48
- Ibid at para 84, 85
- Ibid at para 87
- Ibid at para 89, 91
- Ibid at paras 90, 112
- R v. K.J.M., 2019 SCC 55 at para 107
- R v. S.A., 2024 ONCA 737 at para 35
- I have adopted the calculation of Paciocco J.A. in R v. Shaikh 2019 ONCA 895 at para 33 rounded to the nearest 10th.
- See for example R v. Scott-Wolf, 2024 ONCJ 502 at paras 34-38, where I accepted the Respondent submission (from this Crown Attorney’s Office) that a one-week period post-Judicial Pretrial for counsel to obtain instructions was reasonable and not to be considered defence delay.
- R v. Jordan, supra at paras 84-85
- R v. S.C., 2022 ONCJ 486 at para 19
- SCOPE is a digital information system that allows Crowns and police to share information about criminal cases (source: Archived - Putting Justice Within Reach: A Plan for User-Focused Justice in Ontario | ontario.ca)
- 1990 CanLII 45 (SCC), [1990] 2 SCR 1199
- 1991 CanLII 45 (SCC), [1991] 3 SCR 326
- 2022 SCC 17
- See R v. R.H., 2023 ONSC 412 at para 33
- R. v. A.(C.), 2024 ONSC 1603 at para 77
- See for example R v. Scott-Wolf, supra at paras 57-60
- R. v. A.(C.), supra at para 63
- The Applicant waited 38% of the 18-month Jordan timeframe without any disclosure
- R v. R.M., 2024 ONCJ 491
- R v. A.(C.), supra
- R v. K.J.M., supra at para 78
- 2024 ONCJ 170
- R v. A.(C.), supra at para 114