Ontario Court of Justice

Date: 2024 11 14 Court File No.: BRAMPTON 23-31104608

BETWEEN:

HIS MAJESTY THE KING

— AND —

Mark BACHANEK

Before: Justice S. Caponecchia

Heard: November 4, 2024 Decision: November 14, 2024

Counsel: A. Heydon, counsel for the Crown / Respondent R. Tomovksi, counsel for the accused / Applicant

Reasons for Decision

CAPONECCHIA J.:

1Mr. Bachanek applies for a stay of proceedings pursuant to s. 11(b) of the Charter.

2The information was sworn on May 1, 2023. A one-day trial was scheduled for July 31, 2024. It was scheduled in a court with other matters. It was not reached and transferred to a different courtroom in the middle of the day. The trial did not complete. A trial continuation is scheduled for November 20, 2024. The Jordan deadline for this case is November 1, 2024.

3My conclusion is that a breach of s.11(b) has been established.

4The facts upon which this application turns are not in dispute. They are:

1. After the information was sworn on May 1, 2023, the case did not progress out of the intake phase until November 8, 2023. On November 8, 2023 the defence advised the court that they had yet to receive the complainant’s statement. The statement was taken by police on April 30, 2023. The Justice of the Peace directed that a trial date be set nevertheless.
2. On November 9, 2023 the defence conducted a resolution meeting with the Crown. The parties agreed that one day was required for a trial. The Crown intended to call the complainant and two police officers. The defence contemplated calling zero to one witness. No pre-trial motions, no Charter issues, no interpreters were required.
3. On November 27, 2023 a trial scheduling meeting was held with the trial coordinator. The trial was scheduled eight months later, on the first date offered: July 31, 2024.
4. On July 31, 2024 the trial was not reached in the originally scheduled courtroom. It was transferred when another courtroom became available. The trial started at approximately 12:15pm. The Crown called the complainant. Her evidence was completed at 4:45pm. The Crown indicated they were calling no further evidence. Another half day was estimated to complete the trial. The court canvassed whether both counsel were available the next day to complete the trial. Defence was unavailable because they had an in-custody trial scheduled.
5. On August 1, 2024 a meeting was held with the trial coordinator to obtain a continuation date. The parties were offered August 14, 2024. The Crown was available, the defence was not because they had an in-custody bail matter scheduled in Superior Court. The next date offered was November 20, 2024. This date was agreeable to both parties.
6. On August 12, 2024 the trial continuation date was put on the record. Defence notified the court and the Crown of their intention to bring a s. 11(b) application.
7. On August 22, 2024 the trial coordinator offered the parties one additional date for a trial continuation: October 18, 2024. The Crown was available, the defence was not. The defence notified the Crown and the Trial Co-Ordinator that they were available to complete the case on September 19, October 17, 25, 31, November 1, 4, 14 and 15, 2024. The Crown advised the defence that they had reviewed this courts schedule on October 28, 2024 and November 14, 2024 and were prepared to give this case priority over the other matters scheduled before the court. October 28, 2024 was not a date that defence counsel had available. November 14, 2024 was after the Jordan deadline on November 1, 2024. No explanation was given by defence for their unavailability on October 18 and 28, 2024.
8. On August 23, 2024 the hearing date for the s. 11(b) was fixed: November 4, 2024.

The Law

5In Jordan [R. v. Jordan, 2016 SCC 27]; R v Coulter, 2016 ONCA 704, at paras. 34 to 41, the Supreme Court of Canada detailed the following steps when determining the merits of an 11(b) application:

1. Calculate the total delay, which is the period from the laying of the charge to the actual or anticipated end of trial; The end of trial does not include the period between the end of closing arguments to the verdict: R v KGK, 2020 SCC 7, at paras. 30 to 50;
2. Subtract defence delay from the total delay, which results in net delay;
3. Compare the net delay to the presumptive ceiling. If the net delay exceeds the presumptive ceiling, the Crown must establish the presence of exceptional circumstances, otherwise a stay will follow. Exceptional circumstances fall under two categories: discrete events, and particularly complex cases;
4. Subtract delay caused by any discrete events from the net delay, leaving the remaining delay;
5. If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.

Analysis

Step 1: Calculating Total Delay

6The parties agree that the total delay upon completion of the trial on November 20, 2024 is 569 days, or 18 months and 19 days, above the 18-month guideline established by the Supreme Court of Canada in Jordan for trials held in the Ontario Court of Justice.

7The delay is presumptively unreasonable. The onus is on the Crown to demonstrate otherwise.

Step 2: Defence Delay

8The Crown submits that the total delay in this case should be reduced for defence delay based on three periods. The defence disagrees.

1. Half of the 77 days between August 24, 2023 – November 9, 2023.

   [9] As of August 24, 2023, the Crown and defence were not in possession of two pieces of essential disclosure: the complainant’s statement taken by police on April 30, 2023 and a recording she made of the incident giving rise to the charges.

   [10] On November 8, 2023 the parties were reminded by the Justice of the Peace of a new trial scheduling Practice Direction and were directed to set a trial date. The next day they proceeded to complete a trial time estimate form. The trial date was scheduled without the outstanding disclosure.

   [11] The Crown submits that between August 24, 2023 and November 8, 2023 both parties erred in delaying the setting of the trial date while they waited for disclosure and therefore this period of delay should be divided equally between them.

   [12] On the facts of this case, I decline to attribute any of the intake delay to the defence because I am not persuaded that the defence solely or directly caused the delay. Had the complainant’s statement - taken 6 months earlier - been provided to the defence within a reasonable amount of time, I am satisfied that the defence would have set a trial date before they were directed to do so by a Justice of the Peace on November 8, 2023.

   [13] I also decline to attribute any delay to the defence between August 24, 2023 – November 9, 2023 for their part in failing to follow a Practice Direction that did not take effect until November 1, 2023.

2. Four days between November 23, 2023 - November 27, 2023.

   [14] After being directed to set a trial date on November 8, 2023, the defence conducted a Crown resolution meeting the next day and obtained the necessary Trial Time Estimate Form to schedule a trial date. The defence proceeded to book a meeting with the trial coordinator for November 27, 2023. The Crown submits that there were earlier available appointments between November 23-27, 2023 and therefore the defence is the sole cause of the delay of 4 days.

   [15] This court declines to attribute any of the time between November 23-27, 2023 to the defence because the affidavit evidence relied upon by the Crown to establish there were earlier time slots, does not convince me that that there was availability for a meeting with the Trial Coordinator starting on November 23, 2023. The affidavit suggests that there were appointments into the evening hours. The trial coordinator’s office does not operate during evening hours. The calendar upon which the affiant based her evidence also appears to be set on African time, not Eastern Standard Time.

3. 33 days between October 18, 2024 – November 20, 2024

   [16] When the trial could not be completed on July 31, 2024, the trial coordinator offered two continuation dates. The first was August 14, 2024. The Crown was available, the defence was not. November 20, 2024 was the next date offered, which both parties accepted.

   [17] After the trial continuation was secured, defence notified the Crown and the court on August 12, 2024, that a s. 11(b) application would be filed.

   [18] On August 22, 2024 the trial coordinator offered one additional date before the Jordan deadline: October 18, 2024. The Crown also offered to give this case priority on October 28, 2024.

   [19] The Crown’s position is that the only reason why the matter did not complete on October 18, 2024 and before the Jordan deadline on November 1, 2024 was because the defence was not available. The Crown submits that the October 18, 2024 continuation date was offered on August 22, 2024, leaving the defence with ample time to prepare.

   [20] The defence submits that none of the delay should be attributed to the defence because the only reason the trial did not finish on July 31, 2024, was due to the lack of judicial resources on July 31, 2024.

   [21] The issue of how to apportion delay when a trial does not proceed or finish as scheduled has been the subject of appellate review since Jordan. In Hanan [R. v. Hanan 2023 SCC 12] and Boulanger [R. v. Boulanger 2022 SCC 2] the Supreme Court of Canada held that delays due to the unavailability of defence counsel may be "reasonably apportioned" based on all the relevant circumstances. Hanan, at para. 9; Boulanger, at paras. 8-10.

   [22] In Boulanger the relevant circumstances were that the need for additional trial time was identified by counsel approximately three months prior to the commencement of the trial and counsel requested additional time be set aside. The request made in advance of the trial was declined by a judge. Subsequently the trial judge in January 2019 agreed that additional time was required and insisted on continuing the case in September 2019, without considering the possibility of earlier dates when the parties were available. Boulanger, at para. 9. The court apportioned the delay equally between the Crown and defence.

   [23] In Hanan there was a change in the Crown’s case that prevented a jury trial from proceeding. The defence offered to proceed with a judge alone trial and the Crown refused to consent to a re-election. In these circumstances the ensuing delay based on defence counsel’s unavailability was not attributed entirely to the defence.

   [24] The relevant circumstances in this case include:

   1. A lack of judicial resources on July 31, 2024 prevented the matter from starting and finishing on the same day.
   2. On August 1, 2024 the trial coordinator offered two dates to complete the matter: August 14, 2024 and November 20, 2024. Only the first date was before the Jordan deadline on November 1, 2024. The defence had a professional obligation on August 14, 2024 and therefore November 20, 2024 was chosen.
   3. On August 12, 2024 defence notified the court and the Crown that they would be bringing a s. 11(b) application.
   4. On August 22, 2024, the trial coordinator offered one additional date prior to the Jordan deadline, October 18, 2024. The Crown also offered to prioritize this continuation ahead of other matters on October 28, 2024. The defence was not available on either of the two October dates prior to the Jordan deadline (November 1, 2024). However, the defence provided the Trial Coordinator and the Crown with their availability: September 19, October 17, 25, 31, November 1, 4, 14 and 15, 2024. The first four dates were prior to the Jordan deadline (November 1, 2024).

   [25] The defence position that no delay should be attributed to the defence is seemingly in conflict with the decision in Jordan, Hanan and Boulanger, all of which state: "the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not." Jordan, at para. 64. That said, it is undeniable that in this case the only reason the matter did not complete on the trial date was due to a stacking of cases on July 31, 2024, which prevented this matter from being reached in the scheduled courtroom. When the matter did not complete on July 31, 2024, the state responded by offering three dates before the Jordan deadline (August 14, 2024, October 18, 2024 and October 28, 2024). The defence was not available on the dates but was prepared to complete the case on four different dates prior to the Jordan deadline (September 19, 2024, October 17, 25, 31, 2024). In these circumstances, the court is only prepared to deduct half of the 33 days of delay between October 18, 2024 and November 20, 2024 to the defence.

   [26] In apportioning the delay in this fashion this court is guided by two recent decisions by the Ontario Court of Appeal.

   [27] First, R. v. S.A. 2024 ONCA 737. The stacking of cases in courtrooms has been recognized by the Ontario Court of Appeal as a long standing and necessary practice where resources are finite. Justice participants are reminded that no case is an island to be treated as if it were the only case with a legitimate demand on court resources. R. v. S.A., at para. 41. The court held that a judicious use of stacking is to be encouraged, not discouraged, because it avoids leaving courtrooms empty and judges without trials. Done properly, stacking will generally reduce trial delays. Ibid., at para. 40. The Court of Appeal also recognized that there is a risk that, from time to time, such as in this case, not every trial will be reached. Where this happens, it is reasonable to expect that cases will be triaged, taking into account constitutional demands. One would reasonably expect that those cases that risk breaching the Jordan ceiling will likely be given priority over others which are below the ceiling and presumptively reasonable. Ibid.

   [28] Second, R. v. J.S. 2024 ONCA 794. In the case of J.S. trial continuation dates were necessary due to exceptional circumstance when a Crown witness did not testify as anticipated. The court held that when the need for continuation dates arises, it is incumbent on all justice participants to make best efforts to accommodate the earliest possible dates so that trials can finish close to on schedule. This will sometimes require the parties to assess and reassess their priorities and, where possible, adjust their schedules to accommodate the dates offered so as to avoid lengthy adjournments. R. v. J.S., at para. 79. The court in J.S. deducted some of the delay due to exceptional circumstances because the parties were offered nine dates, not one or two. Importantly, the court declined to decide whether the Crown’s alternative argument had merit. Namely, defence unavailability on available continuation dates amounts to defence delay. Ibid., at para. 85.

Step 3: Calculation of Net Delay

29Total delay in this case is 569 days. I find that a deduction of 16.5 days based on defence unavailability for the continuation date on October 18, 2024 is warranted. This results in a net delay of 552.5 days, above the Jordan ceiling of 547 days for matters tried in the Ontario court of Justice. 18 months x 30.41 = 547.36. See R. v. Shaikh, 2019 ONCA 895; R. v. Chung, 2021 ONCA 188; R. v. Charity, 2022 ONCA 226, at para. 17.

Step 4: Exceptional Circumstances

30The Crown also submits that exceptional circumstances apply because the trial went longer than expected.

31Exceptional circumstances are described in Jordan, at para. 69 as circumstances that lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.

32In this case, the Crown has not persuaded the court that the first requirement for exceptional circumstance has been established. Nothing unforeseeable or unavoidable occurred on the trial date. It was reasonably foreseeable that other matters would occupy some time in court on whatever day was selected for trial. The Crown intended to call the complainant and two police officers. There was also a recording of the incident made by the complainant. The Crown was aware the defence intended to call up to one witness. The Crown could have estimated 1.5 days for trial to ensure it completed as scheduled. For these reasons, I decline to deduct any time for exceptional circumstances in this case.

Step 5: Delay below the Presumptive Ceiling

33If the Crown is correct and the entire 33 days between October 18, 2024 and November 20, 2024 should be deducted for defence delay or exceptional circumstances, the net delay in this case would be 536, 11 days below the presumptive ceiling of 547 days. Given the law with respect to how to apportion delay when matters do not complete as scheduled continues to be the subject of judicial debate and discretion, this court will consider whether a stay is warranted for a sub-ceiling delay of 536 days.

34Where the net delay from the charge to the actual or anticipated end of trial falls below the presumptive 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. Jordan, at para. 48.

35The Crown acknowledges the first branch of the test has been established on a balance or probabilities.

36Turning to the second pre-requisite for a sub-ceiling delay. Reasonable time requirements of a case derive from a variety of factors, including the complexity of the case, local considerations and whether the Crown took reasonable steps to expedite the proceedings. Jordan, at paras. 87, 88.

37This case was not complex. It was a simple 1-day domestic trial. In the intake phase, the Crown did not take steps to expedite the proceedings. Essential primary disclosure was still outstanding after 6 months. In Peel it is routine to stack cases to ensure judicial resources are maximized. The Crown did not take this, or daily court seizures, into account when agreeing to a one-day trial. When this matter did not complete on July 31, 2024, only one date prior to the Jordan ceiling was originally offered by the Trial coordinator. When a s. 11(b) application was identified, two additional days were identified before the Jordan deadline by the trial coordinator and the Crown. None of the dates matched the four dates that the defence was available on prior to the Jordan deadline.

38In Jordan, at para. 91 the Supreme Court of Canada explained that it is no longer a matter of precise calculation when a court decides whether a case has taken markedly longer than it should. A court should not parse each day or month to determine whether each step was reasonably required. Rather, the exercise requires a trial judge to "step back from the minutiae and adopt a bird's-eye view of the case." When I do so in this case, I am satisfied a delay of 11 days short of the Jordan deadline for this factually simple and straightforward one day trial is markedly longer than it should to complete.

39The defence has met their onus for a stay based on a sub-ceiling delay.

Conclusion

40The 11(b) application is allowed.