R. v. Profiti, 2025 ONCJ 723

ONTARIO COURT OF JUSTICE

CITATION: R. v. Profiti, 2025 ONCJ 723

DATE: 2025 04 09

COURT FILE No.: Brampton 3111 998 23 31106988

BETWEEN:

HIS MAJESTY THE KING

— AND —

JOHN PROFITI

Before Justice G.P. Renwick

Heard and Judgment Released on 09 April 2025

E. Wong counsel for the prosecution

A. Menchynski counsel for the Defendant John Profiti

RULING ON S. 11(B) CHARTER¹ APPLICATION

RENWICK J.:

INTRODUCTION

1The Defendant faces one count of having an excess blood alcohol concentration within two hours of operating a motor vehicle.

2The Defendant was arrested on 11 June 2023. The Information was sworn 28 June 2023. The Defendant’s trial was set to take place today and tomorrow (09-10 April 2025). The trial was apparently adjourned by another judge on 20 March 2025 to permit the prosecution to respond to the late filing of this Application (17 March 2025). The parties agree that the global post-charge delay until the original anticipated completion of the Defendant’s trial is 653 days or 21 months and 14 days.²

3This Application is brought because the Defendant asserts that his constitutional right to be tried within a reasonable period of time will have been breached by the date that this trial was originally set to conclude. The prosecution does not seek to rely on any exceptional circumstance to justify any delay and professes timeliness and all appropriate alacrity.

4There are few facts in dispute between the parties. The parties agree on the calculation of the total delay and the applicable law. At issue are deductions for defence delay and any apportionment of responsibility for the trial date that was set.

5I have also considered whether this Application is ripe for determination: the new trial date has not been set, the total gross delay is unknown. I have taken into account that I have heard full argument and I am in a position to determine the Application, as it is currently framed, today.

GOVERNING JURISPRUDENCE

6In R. v. Jordan, the Supreme Court of Canada held that trials in provincial courts ought to complete within 18 months.³

7The first step under the Jordan analysis is to determine the total length of time between the date when the Defendant was charged and the completion of his trial.⁴ The next step is to subtract from the total delay any time periods which are “attributable to the defence.”⁵

8If the net delay remains above the appropriate ceiling:

…then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.⁶

9If, after subtracting defence delay, the net delay is below the 18-month ceiling:

…then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. …stays beneath the ceiling [will] be rare, and limited to clear cases.⁷ [Emphasis in the original.]

10What is “defence delay?” Time periods that may be deducted from the total delay are those “where the defence conduct has “solely or directly” caused the delay.”⁸

11That said, not all delay caused by the defence should be counted as defence delay. Our Supreme Court clarified the definition of “defence delay” in R. v. Cody:

In setting the presumptive ceilings, this Court recognized that an accused person's right to make full answer and defence requires that the defence be permitted time to prepare and present its case. To this end, the presumptive ceilings of 30 months and 18 months have "already accounted for [the] procedural requirements" of an accused person's case (Jordan, at para. 65; see also paras. 53 and 83). For this reason, "defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay" and should not be deducted (Jordan, at para. 65).

The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. As we said in Jordan, the most straightforward example is "[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests" (Jordan, at para. 63). Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted (Jordan, at para. 64). These examples were, however, just that -- examples. They were not stated in Jordan, nor should they be taken now, as exhaustively defining deductible defence delay. Again, as was made clear in Jordan, it remains "open to trial judges to find that other defence actions or conduct have caused delay" warranting a deduction (para. 64).

Defence conduct encompasses both substance and procedure -- the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.

As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extend to omissions as well as acts (see, for example in another context, R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244, at para. 37). Accused persons must bear in mind that a corollary of the s. 11(b) right "to be tried within a reasonable time" is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to "actively advanc[e] their clients' right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and ... us[e] court time efficiently" (Jordan, at para. 138).⁹

12In R. v. Mallozzi, our Court of Appeal confirmed that actions that are legitimately taken to respond to the charges will fall outside of defence delay and will not be subtracted from the total delay.¹⁰ However, legitimate defence action may still reduce overall delay if not taken in a timely way, or if the manner of proceeding has led to delay.¹¹

13The calculation of defence delay is no longer simply a matter of measuring the time between refused and accepted trial dates. Our Court of Appeal has rejected this approach in favour of a contextual approach that considers the circumstances relevant to whether, in respect of a particular period of time, the defence refusal of a date is the “sole or direct” cause of the resulting delay.¹² The Supreme Court has confirmed that courts are entitled to apportion responsibility for delay among the litigants.¹³

14In J.F., in the context of delay calculation when a re-trial is ordered, the Supreme Court affirmed the requirement of all parties to take a prospective approach to delay.¹⁴

ANALYSIS

A. THE TOTAL DELAY

15It is agreed that the total delay for this case is 653 days or 21 months and 14 days.

B. THE NET DELAY

16Defence delay is to be subtracted from the total delay to arrive at the net delay. Defence delay can arise in two different ways.

17The first component is delay resulting from clear and unequivocal waiver of the Defendant’s s. 11(b) right. The parties agree that there has been no explicitly waived periods of delay by the Defendant in this matter.

18The second component is delay caused solely by the conduct of the defence. This includes periods when the prosecution and the court were prepared to proceed and a defendant was not.

19The Defendant accepts 35 days of delay that occurred during the period after the judicial pre-trial (held 29 February 2024) until the trial scheduling meeting occurred. This was a reasonable concession: on 06 March 2024, agent for counsel of record (not counsel who argued this Application), indicated that a trial scheduling meeting would be held, “later this week.” That did not occur. In fact, on the subsequent court appearance (20 March 2024), inexplicably, no one appeared. Eventually, the trial scheduling meeting was held on 11 April 2024.

20Subtracting 35 days from gross delay leaves 618 days or 20 months and 10 days of delay.

C. ADDITIONAL DELAY

21The prosecution seeks the attribution of further defence delay as a remedy for the late filing of this Application and no prior notice of an intention to bring a s. 11(b) Application. Following several provincial court authorities, the prosecution seeks some apportionment of defence delay in the period from the setting of the trial date until what was (until recently) the anticipated completion of the trial.¹⁵ When pressed during oral submissions, the prosecutor (like counsel for the Applicant) was reluctant to give a precise apportionment of responsibility for the 12 months from the trial set date (11 April 2024), until the putative trial completion date (tomorrow).

22The Defendant accepts that it did not give written or formal notice of its s. 11(b) Charter concerns until the filing of this Application on 17 March 2025. However, the Defendant submits that the defence conduct always signalled an intention to rely upon s. 11(b) of the Charter. This was demonstrated by the speed with which matters were moved ahead, the willingness of the Defendant to conduct a crown pre-trial meeting (11 January 2024) even before disclosure (the Qualified Technician’s breath sampling procedure and prisoner cells videos) was completed, and the ready acceptance of the first trial dates offered (15-16 May 2024), which were rejected by the prosecution.

23Pursuant to the directions of higher courts, I have tried to take a wholistic view of the conduct of the parties both before and after setting this matter down for trial. When considered from an atmospheric view, I find that some delay is appropriately attributed to the Defendant.

24I accept that there were disclosure issues that prevented this matter from moving forward until late January 2024 (some seven months post-charge). During the fifth court appearance on 31 January 2024, counsel’s agent sought a three-week adjournment to review “the recent video disclosure” and to schedule a judicial pre-trial.

25However, the Defendant, through counsel, was not blameless for all delay until the matter was set down for trial. On 21 February 2024, counsel’s agent sought a two-week adjournment due to counsel’s unavailability (conducting a homicide trial). Further, there is the delay (accepted by the Defendant) from 06 March until 11 April 2024 in holding the trial scheduling meeting, despite representations made on 06 March.

26I mention these delays not to assign blame, but to acknowledge that any message sent to the prosecution, on the basis of counsel’s conduct, would have been mixed.

27I also find that efforts to assert the Defendant’s s. 11(b) right were lacking. There are no emails or letters, there were no comments on the record (during any of the Defendants nine court appearances), there is no indication on either the Trial Time Estimate Form (completed before the trial scheduling meeting), or the Trial Scheduling form itself, that s. 11(b) was to be litigated.

28The Defendant asserts that there was some discussion about s. 11(b) during the trial scheduling meeting, which is accepted by the court, for the purposes of this argument. However, without any context or other evidence, it is almost meaningless. Did the Defendant put the prosecution on notice that s. 11(b) Charter concerns were going to be raised? Did counsel advise that instructions would be needed from the Defendant, but if positive, the prosecution could expect to litigate a s. 11(b) Application? In the absence of a more complete record, it is inappropriate to give this fact much weight.¹⁶

29I find that the late notice of this Application runs afoul the Supreme Court’s direction in R. v. J.F.:

The predictability of the new framework makes the parties more accountable and encourages them to be proactive about delay (Jordan, at para. 112; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 36). In the case of the Crown, the prospective approach clarifies the content of its constitutional obligation to bring the accused to trial within a reasonable time (Jordan, at para. 112). As for the accused, the predictability provided by the new framework requires that they be an active part of the solution to the problem of delay in criminal cases (Jordan, at paras. 84-86 and 113).¹⁷ [emphasis added]

30There can be no doubt that the Defendant cannot sit idly by while delay mounts:

An accused who sees delay lengthening must therefore respond in a proactive manner. Being proactive may mean filing a s. 11(b) motion where the accused believes that their right to be tried within a reasonable time is not being or will not be respected (Jordan, at para. 85). Like any other application made by an accused, a motion of this kind must be brought "reasonably and expeditiously" (para. 85). Lateness in raising delay is contrary to the proper administration of justice, because such a practice serves to waste judicial resources.

In short, a duty to act proactively also rests on the accused. As a result, the accused must indicate that their right to be tried within a reasonable time has not been respected and, where the circumstances require, bring a motion for a stay of proceedings in a timely manner. As a general rule, this means before the trial is held. By the time the trial dates are set, the parties are generally in a position to know whether the trial delay will exceed the applicable presumptive ceiling, and the defence can raise any concerns it may have.¹⁸

31The majority decision in J.F. uses the word “proactive” or “proactively” no less than 18 times in 80 paragraphs. The message is clear: all parties (which includes a defendant) must act proactively to avoid unreasonable delay in the conduct of a criminal prosecution. That includes putting the other side and the court on reasonable notice of an intention to bring a s. 11(b) Application.

32I also find that by failing to formally raise s. 11(b) as an issue either in writing or on the record during court proceedings, the Defendant deprived the prosecution of an opportunity to remedy the situation.

33This failing is especially significant in this jurisdiction where there was a successful backlog-reduction initiative in the fall of 2024 which invited Defendants with s. 11(b) concerns to court to attempt to move their trials to earlier dates.

34Situations like this were anticipated. In fact, the Chief Justice of this court created a practice direction to avoid them. That practice direction became effective 01 November 2023. On that date, Her Worship (now Regional Senior Justice of the Peace) S. Burton advised the parties (during the third appearance) of the new practice direction given the disclosure difficulties some four months post-charge. Among other things, that practice direction also requires:

2. Unless the Court directs otherwise, section 11(b) applications shall be heard at least four months before trial, to allow the scheduled trial dates to be utilized for other matters should the proceedings be stayed.

3. Section 11(b) applications will be scheduled at the same time the trial is set. To facilitate this procedure:

i. s. 11(b) applications will be canvassed during judicial pre-trials and the defence (counsel, authorized agent or accused, if self-represented) is required to advise the pre-trial judge if they intend to bring a s. 11(b) application; and

ii. s. 11(b) applications will be canvassed when trial dates are canvassed in the trial scheduling court or in the Trial Coordinator’s office. If the trial date is more than 18 months from the Information sworn date, a s. 11(b) application date will be set unless the defence confirms on the record that they are not bringing a s. 11(b) application.

This procedure applies, with any necessary modifications, when a trial is adjourned and/or a new trial is being set.

4. The s. 11(b) Notice of Application (Form 1) and any supporting materials must be served and filed at least 30 days in advance of the application hearing date, in accordance with Rule 3.1 of the Criminal Rules of the Ontario Court of Justice.

35Neither the rules nor the practice direction were followed by this Defendant.¹⁹

36I agree with and adopt the words of Justice Monahan in R. v. Kullab:

…the defence was uniquely in the position to say if delay was a problem. Simply because dates were set outside the Jordan ceiling would not necessarily signal to the Crown that there was a section 11(b) problem. For example, the defence may have been content with the delay for whatever reason. Accordingly, both the defence and the Crown were to blame.²⁰

37In considering an apportionment of the delay from 11 April 2024 until 10 April 2024, I have taken the following into account:

i. The Defendant had been reasonably diligent in moving the matter along throughout most of the early appearance, pre-trial process;

ii. The prosecution took no proactive steps to avoid delay from the start of the proceedings until the trial was set (it took seven months for core disclosure to be made available);

iii. The Defendant failed to put the prosecution and the court on notice of s. 11(b) concerns for 11 months following the setting of the trial date; and

iv. A lack of institutional resources was the largest determinant of the 12-month delay from the setting of the trial until the trial date, rather than the conduct or inaction of the parties.

38Accordingly, of the delay from setting the trial to reaching the trial date, I am prepared to apportion 20% responsibility to the Defendant. Of the 365 days from 11 April 2024 until 10 April 2025, the Defendant is responsible for 73 days.

39When defence delay is subtracted from the gross delay (653 minus 35, minus another 73 days), the net delay to trial is 545 days or 17.92 months, which is marginally below the presumptive Jordan limit for trials in this level of court.²¹

The Trial Will Be Adjourned

40On 20 March 2025, the matter was brought forward from today’s trial date to discuss the late filing of this Application. The presiding judge granted an Order to permit the prosecution to file a late response to this late Application. As well, I am advised that the presiding justice adjourned the trial and vacated tomorrow as a continuation date to permit the prosecution to respond to the Application without the need to prepare for trial.

41Today, the parties indicated that they could begin the trial if need be. That may not change anything, given the time left today and the requirement of up to two days to complete this trial.

42I do not propose to over-rule a prior Order of a colleague. This trial will not begin today. The parties are directed to return to the Trial Coordinator’s Office to reschedule this two-day trial.

CONCLUSION

43The Defendant’s s. 11(b) Charter right to be tried within a reasonable period of time was not expected to be violated if the evidence and submissions ended tomorrow, as initially planned. This is the only time period I have been asked to consider.

44My findings and these reasons should not be interpreted to bind any other court if any future Application(s) are brought. However, future Applications should adhere to both the rules and the practice direction of 01 November 2023.

45Given that no new trial date is fixed, I do not consider myself to be seized to hear this matter.

46For the reasons above, this Application is dismissed.

Footnotes

1. 1Canadian Charter of Rights and Freedoms, Being Part I of the Constitution Act, 1982, Enacted as Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (“Charter”).
2. 2I adopt the formula used by Paciocco J.A. in R. v. Shaikh, 2019 ONCA 895 at para. 33. To convert the total number of days to months, one must divide the total number of days by the average number of days in a month (365/12 = 30.417). 653 days divided by 30.417 equals 21.47 months.
3. 32016 SCC 27 at para. 5.
4. 4Jordan, supra, at para. 60.
5. 5Ibid.
6. 6Jordan, supra, at para. 47.
7. 7Jordan, supra, at para. 48.
8. 8R. v. Cody, 2017 SCC 31, [2017] S.C.J. No. 31, at para. 28; Jordan, supra, at para. 66.
9. 9Cody, supra, at paras. 29-30 and 32-33, respectively.
10. 10R. v. Mallozzi, 2018 ONCA 312, [2018] O.J. No. 1794 (C.A.) at para. 3.
11. 11R. v. Boulanger, 2022 SCC 2 at para. 5.
12. 12R. v. Albinowski, 2018 ONCA 1084 at para. 46.
13. 13Boulanger, supra, at para. 8.
14. 142022, SCC 17 at paras. 31 and 31.
15. 15See R. v. Nigro, 2023 ONCJ 541 and R. v. Kullab, 2023 ONCJ 458, among other unreported cases.
16. 16Earlier today, I denied a defence request for an adjournment of this Application to provide an affidavit from a student who was present during the trial scheduling meeting. There was no explanation given for the failure to file this evidence along with this Application.
17. 17J.F., supra, at paras. 30-31.
18. 18J.F., supra, at paras. 34 and 36.
19. 19It is not lost on the court that there is no indication that the Trial Coordinator set a s. 11(b) hearing date pursuant to the requirement in 3(ii), above. One inference is that s. 11(b) was not raised during the scheduling meeting.
20. 202023 ONCJ 458 at para. 38.
21. 2118 months is equal to 1.5 years or (365 + (.5 x 365 = 182.5) = 548 days).