Ontario Court of Justice, Central West Region
COURT FILE No.: 0611-998-61101652
DATE: March 14, 2025
Between:
His Majesty the King
— AND —
Javier Ibarra
Heard Before Mr. Justice Richard H.K. Schwarzl at Orangeville on March 12, 2025
Reasons released on March 14, 2025
Counsel:
Mr. J. Chaaya ................................................................................. for the Crown / Respondent
Mr. D. O’Connor ........................................................................... for the Defendant / Applicant
SCHWARZL, J.:
RULING ON S.11(B) CHARTER APPLICATION
1.0: INTRODUCTION
[1.] The Applicant, Mr. Javier Ibarra, has brought an application alleging that his right to be tried within a reasonable time pursuant to section 11(b) of the Canadian Charter of Rights and Freedoms. If granted, he seeks a stay of the charges which are scheduled to proceed to trial before me on May 5 and 8, 2025.
[2.] For reasons I will explain, the application is dismissed. In coming to this conclusion, I have relied on the transcripts, the Information, the Trial Scheduling Sheet, the Application Record, the Crown Response, the legal authorities provided to me, and the submissions of counsel.
2.0: ANALYSIS UNDER THE R. V. COULTER, 2016 ONCA 704 FRAMEWORK
[3.] Information 23-61101652 was sworn on November 20, 2023. The last day set for the 1.5-day trial is May 8, 2025. The total delay in this case is 536 days, or 17.6 months1, which is below the presumptive ceiling set out in R. v. Jordan, 2016 SCC 27.
[4.] There were no express waivers by the defence.
[5.] I assess defence caused delay as 103 days, or 3.4 months, based on the following chart:
| Period | Reason & Transcript (by Tab #) | Days |
|---|---|---|
| February 6 to February 15, 2024 | On February 6, 2024 matter adjourned at defence request to February 15, 2024 for possible guilty plea. (Tab 4) | 9 |
| February 15 to February 23, 2024 | Crown ready to proceed with plea. Defendant decides to have a trial and requests to adjourn to February 23 to set JPT. (Tab 5) | 8 |
| February 23 to March 1, 2024 | On February 23, defence requested adjournment to March 1 to set JPT because counsel not sure how to arrange a JPT. On March 1, JPT was set for March 11 with Chaffe, J. (Tab 6). Trial estimate of 1.5 days was made. (see p. 3, Tab 14). | 15 |
| April 24 to April 30, 2024 | On March 11, 2024 JPT held. Matter was adjourned to March 27 to set continuing JPT. On March 27, continuing JPT fixed for April 24. On April 24, JPT not held because defence asked to reschedule ongoing JPT to April 30. (Tab 10) | 6 |
| May 10 to May 17, 2024 (conceded by defence) | On May 10, request by defence for more time to schedule ongoing JPT because they failed to do so prior to that day. Over to May 17 to set continuing JPT (Tab 12). On May 17, continuing JPT set for June 20, 2024. (Tab 13) | 7 |
| June 20 to July 18, 2024 | On June 20, 2024 JPT not held as defence trying to resolve. Request by defence adjourn to July 18 to meet TC to select TR dates. (Tab 14) | 28 |
| July 18 to August 7, 2024 | On July 18, dates not set because counsel did not contact the TC until July 11, 2024, thus insufficient time to have trial scheduling meeting before July 18. Defence requests adjournment to August 7 to set trial dates. (Tab 15) | 21 |
| August 7 to August 13, 2024 | On August 7, counsel had not yet met with the TC and he requested an adjournment to August to meet TC to select TR dates (Tab 16). On August 16, trial dates set for May 5 and 8, 2025. (Tab 18) | 6 |
| May 5 to May 8, 2025 | Defence turned down the first available date of December 30, 2023 meaning this case could have completed on May 5, 2025, not May 8, had it taken. (Trial scheduling form). | 3 |
Total Defence Caused Delay: 103 days
[6.] The net delay in this case is 433 days2, or 14.2 months, which is under the Jordan presumptive ceiling of 18 months in the provincial court. As such, there is no need to consider any exceptional circumstances nor the complexity, if any, of the matter.
[7.] In this case the total delay is below the presumptive ceiling and therefore there was no need for me to assess either net delay or remaining delay, including defence caused delay. However, the exercise was relevant to the assessment of whether the defendant has met his onus of demonstrating that the time to trial in this case was unreasonable.
[8.] To succeed in a stay application where the delay is under the presumptive ceiling, an applicant must establish both of the following conditions. First, that he made a sustained effort to expedite the proceedings to trial. Second, that the case took markedly longer than it should have. A stay of proceedings in cases falling beneath the presumptive ceiling will be granted only in the clearest of cases.
[9.] With respect to the first condition, and upon hearing from counsel and reviewing the transcripts, the Information, the correspondences in the Application Record, and the Trial Scheduling Sheet, it would appear that:
- (a) following the first appearance in November 2023, the case seemed to be on track to resolve without a trial. To this end, a potential guilty plea was scheduled for February 15, 2024;
- (b) On February 15, 2024, the defendant did not plead guilty and decided to deal with the matter in two simultaneous, but distinct tracks. First, he wanted to pursue a trial. Second, he also continued to negotiate a resolution to a reduced offence. In furtherance of these objectives, as well discussing a complaint about disclosure of the audio of a police video, a JPT was held on March 11, 2024;
- (c) At the pretrial held March 11, 2024, it appears the parties agreed the case would take 1.5 days regardless of the outstanding disclosure;
- (d) Despite the Crown persistently urging the matter to be set down for trial, the defence only did so on August 16, 2024, some six months after the time estimate was made. The trial was set for 1.5 days, just as agreed to in the Spring.
[10.] Between March and August 2024, defence counsel spent much of this period trying to convince the Crown to resolve the matter in a manner favourable to his client instead of setting the case for trial. He also sent numerous requests for disclosure for an unredacted copy of the investigating officer’s in-car camera. Instead of setting the trial as soon as possible and continuing his efforts at persuasion in the interim, he seemed content to exhaust all efforts to resolve before having to set the trial.
[11.] In November 2023 the Chief of our Court issued the Jordan-Compliant Scheduling Practice Direction. It is designed to counter the “culture of complacency” in criminal matters lamented by the Supreme Court in Jordan and ensure that a person’s right to trial within a reasonable time is respected. The Direction represents a fundamental transformation of how criminal cases proceed in the Ontario Court of Justice. Being a practice direction, counsel are professionally obligated to follow it and courts are responsible for enforcing it. Counsel are dutybound to (a) inform themselves of all Practice Directions issued by the Chief of the Court and (b) adhere to those directions, whether they like it or not. This Direction was in force as of November 1, 2023, and applied to the entire history of this case. Given the duty of everyone to know and follow the Direction, there was never a need to bring it to anyone’s attention at any point in the proceedings.
[12.] One aspect of the Direction is to set a trial date within six months of the charge being laid, even where (a) there are disclosure issues, (b) the parties are negotiating a resolution, or (c) both. I find the Crown and Court were ready to set a trial within six months but the defence was not.
[13.] Mr. Ibarra took a more traditional, pre-Direction approach by expending a great deal of energy in pursuing resolution instead of following the Direction by setting a trial and then working backwards from there to resolve it and/or address disclosure issues. Mr. O’Connor is an experienced, highly respected, and excellent lawyer who has been in practice for many years before our Chief implemented a major shakeup of how we do business. Mr. O’Connor appeared to be content to deal with the case in the “old way” as he had been accustomed to for many years. While habits are hard to break and customs difficult to change, the Jordan-Compliant Scheduling Direction has effectively put a kibosh on this way of practice by every justice participant.
[14.] Examining the situation objectively, it cannot be said that the defence worked as expeditiously as was reasonable in the circumstances for the reasons just discussed. More to the point, I find that a trial date should have been set shortly after the March 11, 2024, pre-trial instead of doing so in August 2024. This unnecessary delay resulted in a squandered opportunity to secure trial dates much earlier than those selected.
[15.] Additionally, the record demonstrates that counsel for the defence delayed the setting of JPTs and the trial by stating that he was not familiar with the practice in Orangeville. Indeed, Mr. O’Connor said as much in his submissions but blamed what he called an unfamiliar and unnecessarily byzantine trial scheduling process in Orangeville that requires parties to schedule JPT and trial dates through a trial coordinator. One could countenance that excuse being proffered once, but not more than that after being informed of what was expected.
[16.] Here, counsel was met with having to navigate the local scheduling process in early March 2024. At that point he knew or ought to have known how things work in Dufferin County. In his submissions, Mr. O’Connor acknowledged that he “did not cotton onto” the local scheduling system until mid-July. Unfortunately, counsel was not diligent to move the case forward because he did not readily educate himself or conform with local and long-established procedures, however arcane and inefficient he feels they are.
[17.] The defence submits that the delay in setting the trial came in no small measure from unanswered complaints about disclosure. I respectfully disagree because:
- (a) It turns out these complaints about disclosure had no impact on either the trial estimate or when the trial could reasonably be scheduled;
- (b) Given that the determination of disclosure issues is ultimately the purview of the trial judge, the defendant should have set trial dates as soon as possible and set a disclosure hearing if he was unhappy with the responses (or lack thereof) of the Crown; and
- (c) In this case, the defendant was given substantial core disclosure at the very earliest of dates. All defendants are entitled to full, but not perfect, disclosure. He was aware of the case he had to meet early on, and he does not appear to have been prejudiced by the absence of complete disclosure prior to setting the trial. In submissions, it was acknowledged that the defence received the unredacted in-car video in March 2024 which means that outstanding disclosure was not an impediment to setting trial dates sooner than they did.
[18.] Taking a bird’s eye view as I must, I find that on the record before me that the defence did not make sustained efforts to bring the matter to trial for the reasons I described. As a result, he has not met his onus on the first condition to be satisfied by him. Consequently, his application to stay the proceeding fails.
[19.] If I am wrong on my assessment of the first condition, this case did not take longer (let alone “markedly” so) than it reasonably should have in the circumstances. It is a simple 1.5-day drink/drive trial, and had it been set shortly after the time estimate was made in March 2024 it is very likely that it would have been completed well before May, 2025. Given my finding that the remaining delay in this case is just over 14 months, this is well within the acceptable scheduling parameters for the Ontario Court of Justice and significantly under the Jordan presumptive ceiling. As a result, the defendant has not met his onus on the second condition and the stay application must be dismissed on this basis.
[20.] Even if I am wrong on both points, this is not the “clearest of cases” in which a stay should be entered given the situation as I have assessed because the Crown and the Court did nothing to stymie the applicant’s access to timely justice.
[21.] The Application dismissed. Parties shall appear for trial commencing on May 5, 2025, at 10:00 a.m. in Orangeville Courtroom 101.
Richard H.K. Schwarzl,
Justice of the Ontario Court of Justice
Footnotes
- As per R. v. Shaikh, 2019 ONCA 895 at para. 33, the total delay is calculated in months by dividing the total number of days by 30.417.
- Total delay of 536 days minus Defence Caused Delay of 103 days.