WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4 or 486.6 of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) as soon as feasible, inform any witness under the age of 18 years and the victim of the right to make an application for the order;

(b) on application made by the victim, the prosecutor or any such witness, make the order; and

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order;

(b) on application of the victim or the prosecutor, make the order; and

(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(3.1) If the prosecutor makes an application for an order under paragraph (2)(b) or (2.2)(b), the presiding judge or justice shall

(a) if the victim or witness is present, inquire of the victim or witness if they wish to be the subject of the order;

(b) if the victim or witness is not present, inquire of the prosecutor if, before the application was made, they determined if the victim or witness wishes to be the subject of the order; and

(c) in any event, advise the prosecutor of their duty under subsection (3.2).

(3.2) If the prosecutor makes the application, they shall, as soon as feasible after the presiding judge or justice makes the order, inform the judge or justice that they have

(a) informed the witnesses and the victim who are the subject of the order of its existence;

(b) determined whether they wish to be the subject of the order; and

(4) An order made under this section does not apply in either of the following circumstances:

(a) the disclosure of information is made in the course of the administration of justice when the purpose of the disclosure is not one of making the information known in the community; or

(b) the disclosure of information is made by a person who is the subject of the order and is about that person and their particulars, in any forum and for any purpose, and they did not intentionally or recklessly reveal the identity of or reveal particulars likely to identify any other person whose identity is protected by an order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that other person.

(5) An order made under this section does not apply in respect of the disclosure of information by the victim or witness when it is not the purpose of the disclosure to make the information known to the public, including when the disclosure is made to a legal professional, a health care professional or a person in a relationship of trust with the victim or witness.

486.6 (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(1.1) A prosecutor shall not commence or continue a prosecution against a person who is the subject of the order unless, in the opinion of the prosecutor,

(a) the person knowingly failed to comply with the order;

(b) the privacy interests of another person who is the subject of any order prohibiting the publication in any document or the broadcasting or transmission in any way of information that could identify that person have been compromised; and

(c) a warning to the individual is not appropriate.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

COURT OF APPEAL FOR ONTARIO

DATE: 20241003 DOCKET: COA-24-CR-0031

Fairburn A.C.J.O., Gillese and Dawe JJ.A.

BETWEEN

His Majesty the King Appellant

and

S.A. Respondent

Counsel: Joanne Stuart and Akshay Aurora, for the appellant Deryk Gravesande and Cecilia Fearon-Forbes, for the respondent

Heard: September 12, 2024

On appeal from the stay entered by Justice Maureen D. Forestell of the Superior Court of Justice on December 11, 2023, with reasons reported at 2023 ONSC 5829.

Fairburn A.C.J.O.:

A. Overview

[1] This is a Crown appeal from a stay of proceedings following a finding of unreasonable delay pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms.

[2] The application judge found that the delay in this case was unreasonable even though it fell below the applicable ceiling under R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, which in this case was 30 months. In her view, a factor that contributed to the delay was unfilled judicial vacancies. In assessing the reasonableness of the delay, she considered what would be typical for a comparable case in the jurisdiction if the court were not under-resourced. She found that the case had taken six to ten months longer than “what should be typical” (emphasis in original). Ultimately, she concluded that this was one of the “rare and clear” cases where a stay of proceedings was warranted.

[3] On appeal, the Crown submits that the application judge erred in concluding that the case took markedly longer than it reasonably should have based on her projection of what would have happened had seven judicial vacancies been filled. The Crown contends that, applying the correct legal approach, the respondent failed to rebut the presumption that the delay in this case was reasonable.

[4] At the conclusion of the hearing of the appeal, the appeal was granted, the stay was set aside, and a new trial was ordered with reasons to follow. These are the reasons.

B. Background

[5] Before delving into the details of the procedural history, I note that the application judge was correct in finding that the net delay in this case is 26.5 months, which is 3.5 months under the Jordan ceiling. Twenty-two and a half of those months occurred in the Superior Court of Justice. I would also note that, as the application judge saw it, the real problem arose on April 17, 2023, when the court failed to proceed with the trial on the first scheduled trial date because a judge was not available.

(1) Chronology leading up to the s. 11(b) application

[6] The respondent was charged with assaulting and sexually assaulting his common law partner. He was released on bail on December 6, 2021, the same day that the information was sworn.

[7] The matter proceeded in the Ontario Court of Justice until the respondent elected to be tried by judge and jury on March 25, 2022. Although there was some later suggestion that he might re-elect, he did not do so even though the Crown was prepared to consent to re-election.

[8] The respondent’s first appearance in the Superior Court was scheduled for April 12, 2022. Neither he nor his counsel appeared on that date, so the matter was rescheduled for April 19, 2022, at which time a pre-trial was scheduled. As found by the application judge, the week that passed between April 12 and 19, 2022 is the only period of time that constitutes defence delay.

[9] On May 13, 2022, the judicial pre-trial was held. It was determined that the respondent wanted to pursue third-party record applications before the trial proceeded. The third-party record applications were scheduled in a way that would permit them to be completed before the jury trial which was scheduled to commence on April 17, 2023. The trial was expected to last 8 to 10 days.

[10] Rulings dismissing those applications were rendered in sufficient time for the trial to commence on its scheduled date. Unfortunately, the trial could not commence on that date because there were no judges available to preside. Had the trial proceeded on that date, it would have been around 16.5 months from charge to the end of trial.

[11] When the trial could not proceed on the originally scheduled trial date, the court looked for its next available date for a 10-day jury trial, which was January 2, 2024. As that date did not work for the parties, the trial was ultimately scheduled to proceed on February 12, 2024. Had the trial had gone ahead on the second scheduled trial date, and if it had taken the full ten days, it would have been finished in about 26 months and 3 weeks. Deducting one week for defence delay, that would have left a net delay of 26.5 months.

(2) Section 11(b) application

[12] The respondent filed a s. 11(b) application on September 11, 2023, and it was heard on October 13, 2023.

[13] At the hearing of the application, the parties agreed on a few things, including that the net delay was below the 30-month Jordan ceiling for matters proceeding in the Superior Court. They also agreed that in order for delay under the ceiling to be considered unreasonable, the defence must demonstrate that: (i) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (ii) the case took markedly longer than it reasonably should have: Jordan, at para. 82.

[14] The respondent argued that both criteria were met.

[15] In response, the trial Crown maintained that the respondent’s conduct was really nothing more than the baseline standard conduct in cases of this nature and that there had been no specifically sustained effort to expedite the proceedings. The Crown also argued that, even taking into account the fact that the case had to be adjourned to February 12, 2024, it had not taken markedly longer than what a typical two-week jury trial with pre-trial applications would take in the very busy jurisdiction of Toronto.

[16] The parties returned for the decision on October 20, 2023, but the application judge asked them for additional submissions. Specifically, she wanted to hear from the parties on the issue of judicial vacancies and the role that those vacant seats played in causing the adjournment from the first to the second trial date. The application judge adjourned the matter to November 20, 2023, for argument on the new points she had raised.

[17] After receiving the additional submissions, the application judge rendered her ruling on December 11, 2023, staying the proceedings. She correctly identified that the net delay in this case was 26.5 months, which was under the applicable Jordan ceiling. She found that the defence took meaningful and sustained steps to expedite the trial, as there were no further steps that counsel could have been expected to take. And, as detailed below, she also concluded that the case took markedly longer than it reasonably should have given that there were seven unfilled judicial vacancies in the region at the relevant time.

C. Analysis

[18] The application judge’s findings of fact are owed deference on appeal, but her legal analysis, including her determination that the delay is unreasonable for purposes of s. 11(b), must be correct: R. v. Jurkus, 2018 ONCA 489, 363 C.C.C. (3d) 246, at para. 25, leave to appeal refused, [2018] S.C.C.A. No. 325; R. v. Pauls, 2020 ONCA 220, 149 O.R. (3d) 609, at para. 40, aff’d R. v. Yusuf, 2021 SCC 2, [2021] 1 S.C.R. 5.

[19] As I will explain, the application judge erred in determining that the 26.5 months it took from charge to the estimated end of trial constituted unreasonable delay. Although she stated the law correctly, she erred in her application of the law.

(1) The Jordan framework

[20] In order to explain where the application judge went off track, it is necessary to briefly review the well-known Jordan framework.

(a) The presumptive ceiling

[21] Central to the Jordan framework is the “ceiling beyond which delay is presumptively unreasonable”: Jordan, at para. 49. This ceiling – 30 months in the Superior Court of Justice and 18 months in the Ontario Court of Justice – is the “most important feature” of the new framework: Jordan, at para. 49.

[22] Ceilings are intended to provide “meaningful direction” to those working within the administration of justice about their s. 11 (b) obligations, and to encourage conduct and the allocation of resources that promote timely trials: Jordan, at paras. 50, 107. Toward that end, ceilings offer participants in the criminal justice system the ability to know in advance the bounds of reasonableness, thereby allowing them to take pro-active measures to remedy any delay that could become unreasonable in nature: Jordan, at para. 108.

[23] In setting the ceilings, the Jordan majority was alive to the real world within which the administration of criminal justice operates and well aware that “resource issues are rarely far below the surface of most s. 11 (b) applications”: Jordan, at para. 117. To this end, the ceilings set in Jordan were said to “reflect[] the realities we currently face”: Jordan, at para. 57.

(b) Cases below the ceiling

[24] The majority signalled that stays of proceedings under the ceiling will occur only in rare cases where there is clearly unreasonable delay: Jordan, at para. 48. By remarking upon the anticipated rarity of staying cases under the ceiling, the majority made specific note of three factors that had been considered in calibrating the ceilings of 30 months for cases in the Superior Court of Justice and 18 months for cases in the provincial court: the increased complexity of cases, their inherent needs, and a certain “tolerance for reasonable institutional delay”: Jordan, at para. 83.

[25] As explained above, the defence may establish unreasonable delay below the ceiling only if the defence can establish two things, 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” (emphasis in original): Jordan, at para. 82; see also R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39, at paras. 4, 70, 104. In determining whether a case took markedly longer than it should have, case-specific factors will inform how to characterize the delay: Jordan, at para. 51; K.J.M., at para. 75. Those factors will include the complexity of the case, any local conditions that may be operative, and whether the Crown took reasonable steps to expedite the proceedings: Jordan, at para. 87.

[26] As for local conditions, 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”: Jordan, at para. 89. At the end of the day, trial judges assessing whether the case has taken markedly longer than what was reasonably required are advised to “step back from the minutiae and adopt a bird’s-eye view of the case”: Jordan, at para. 91.

[27] I also note that, as for the Crown’s role in the matter, it is unlikely that the reasonable time requirements of the case will have been markedly exceeded if the Crown has done its part to ensure that the matter proceed expeditiously: Jordan, at paras. 90, 112.

(2) Application of Jordan: No unreasonable delay

[28] The appellant does not challenge the application judge’s finding that the defence took meaningful steps that demonstrate a sustained effort to expedite the proceedings. Rather, the appellant challenges the application judge’s conclusion that the case took “markedly longer than it reasonably should have.” More specifically, the appellant takes issue with the application judge’s consideration of local conditions and submits that, properly considered, the case did not take markedly longer than it should have in the Toronto region.

[29] With respect, I agree that the application judge erred in her analysis and that this case is not one of the rare cases warranting a stay of proceedings on the basis of unreasonable delay below the ceiling. As I will explain, at the root of the problem is the application judge’s use of a hypothetical scenario – a situation in which there were no judicial vacancies – as a yardstick for measuring the reasonableness of the below-ceiling delay.

[30] The application judge identified “[t]he real issue” as the court’s failure to reach the trial on the scheduled trial date and the subsequent delay of ten months to the second trial date. She attributed the delay to three reasons: (1) the high volume of serious criminal cases in Toronto; (2) the lasting effects of the COVID-19 pandemic, which had led to jury trials being suspended for long periods of time; and (3) a lack of judicial resources arising from judicial vacancies going unfilled.

[31] She noted that despite the high volume of cases and the COVID-19 backlog, simple trials were generally still being set in 2022 within 12 months of the indictment being filed. “The trials”, she said, “were set with the expectation that the court would have a full complement of judges”.

[32] As for judicial vacancies, the application judge found that, in April 2023, when the trial was not reached, there were seven judicial vacancies in Toronto. She reasoned that, “[h]ad the judicial positions in Toronto been filled, this case and others would not have been delayed.” She went on to explain that the Crown and defence had “acted responsibly and cooperatively to move the case forward.” The problem was that the “court lacked the judicial resources to hear the case in a timely manner”, which she described as “unreasonable.”

[33] In assessing the reasonableness of the delay, the application judge considered, not what was typical in her region, but what would be typical if the court were not under-resourced:

In this jurisdiction, it is becoming typical that scheduled trials are not reached because of a lack of judicial resources. With judicial vacancies filled, it would be highly unusual for cases not to be heard when scheduled. Cases are scheduled with the expectation that the Court will have adequate judicial resources. Trials are scheduled with the expectation that as judges retire, new ones will be appointed. These expectations have not been met. As a result, cases take longer than they should take to be tried ….

Although the delay caused by judicial vacancies has become 'typical', in my view, it does not justify the delay. The failure to provide adequate judicial resources is unreasonable.

In this case therefore, in considering what length of time is typical, I have considered what would be typical for a similar simple case in this jurisdiction if the Court were not under-resourced. Even with the high volume of complex criminal cases in Toronto and the lingering COVID-19 backlog the length of time for such a case to be heard would be about 12-16 months after the case comes to the court. At 22 months, this case has taken 6 to 10 months longer than what should be typical. [Emphasis added by underline; emphasis in original by italics.]

[34] The application judge raises a valid practical concern about judicial resources. As she noted, it is one that is shared by Canada’s judicial leaders, who have publicly expressed the concern that delays in filling judicial vacancies have a detrimental effect on the administration of justice and the functioning of the courts. Here, however, the problem is that the application judge allowed her practical concern to cloud her legal analysis. In my view, there are several problems with the application judge’s approach.

[35] First, the focus was erroneously placed upon whether this and other cases could have been heard more quickly if all judicial vacancies had been filled. But the legal question was not whether the case could have or should have taken less time if there had been more judicial resources. As the Supreme Court explained in K.J.M., at para. 107, “the issue is not whether the case should reasonably have been completed in less time.” Rather, the issue is “whether the case took markedly longer than it reasonably should have”: K.J.M., at para. 107 (emphasis in original). In answering that question, the application judge should not have started from the position that the state acted unreasonably in failing to fill every judicial vacancy. Instead, she should have started from the position that the state brought the respondent to trial within a presumptively reasonable time, and, from that starting point, should have asked whether the respondent had rebutted the presumption of reasonableness.

[36] Second, the application judge found that the “failure to provide adequate judicial resources is unreasonable.” To be sure, judicial vacancies should be filled in a timely manner. About that, there is no question. But the reasonableness inquiry under s. 11 (b) engages with a very specific legal framework. Although delays in filling judicial vacancies may be understandably described as “unreasonable” in a colloquial sense, it is not unreasonable, in and of itself, within the meaning of s. 11(b) of the Charter. Conflating those uses of the term unreasonable constitutes error.

[37] Third, the application judge found that, if all vacancies were filled, “it would be highly unusual for cases not to be heard when scheduled.” Again, that is not the legal question. The command of Jordan is not to ask whether the case could be heard when first scheduled, but whether it took markedly longer than it reasonably should have.

[38] As a practical matter, I would note that some jurisdictions in Ontario, including Toronto, schedule on the basis that not all trials will go ahead on their trial dates, especially first trial dates. As this court noted, “[t]he practical reality is that first trial dates are often set optimistically when it is not certain that the parties will, in fact, be ready for trial” and “given the pressures on the parties to set dates in order to keep the case moving forward, … a first trial date may be more aspirational as to timing than it is realistic”: R. v. Campbell, 2022 ONCA 223, 412 C.C.C. (3d) 510, at para. 24. Other reasons a case may not go ahead as scheduled include last-minute resolutions, sickness and so on.

[39] Whatever the reason, those trials that do not proceed on their trial dates fall within the “collapse rate”, something that has “always existed in the criminal courts”: R. v. Lui, 2024 ONSC 2022, at para. 26. As a direct result of the collapse rate and the desire to achieve maximum efficiency by not having courtrooms left empty, trial coordinators will deliberately overbook or “stack” trial lists. Code J. noted this reality in the Toronto region: “[t]here are almost always excess cases scheduled for trial in a given week because the reality is that a certain number of cases invariably ‘collapse’, either on the trial date, shortly before the trial date, or shortly after the trial date”: Liu, at para. 27.

[40] 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. Of course, there is a risk that, from time to time, such as in this case, not every trial will be reached as the collapse rate that week is less than anticipated. Where this happens, it is reasonable to expect that cases will be triaged taking into account constitutional demands. One would expect that those cases that risk breaching the Jordan ceiling will likely be given priority over cases such as this one, which was well below the ceiling and, therefore, presumptively reasonable.

[41] In the real world, where resources are in fact finite, this is precisely the way that the administration of criminal justice must operate, with a view to meeting the constitutional requirements of each individual case within the context of the system as a whole. It brings to mind what Doherty J.A. wrote more than 25 years ago, “[n]o case is an island to be treated as if it were the only case with a legitimate demand on court resources”: R. v. Allen (1996), 92 O.A.C. 345 (C.A.), at para. 27, aff’d , [1997] 3 S.C.R. 700.

[42] Fourth, the basis of some of the statements in the decision under review appear speculative. For instance, it is said that trials being set in 2022 “were set with the expectation that the court would have a full complement of judges at the time of the trials.” Similarly, it is said that cases were “scheduled with the expectation” that the court would have “adequate judicial resources”, an expectation that was not met because of unfilled judicial vacancies.

[43] Although those responsible for filling judicial vacancies must work with all diligence, the aspirational goal of a full complement of judges is not always realistic. As recognized in R. v. Als, 2024 ONSC 1428, at para. 45, “[o]ut of a complement of approximately 90 judges in the Toronto region, there will always be a certain degree of turnover that cannot be accurately forecast and there isn’t really a practical capacity to appoint judges on stand-by in excess of the statutory limits to await such un-forecast vacancies.” Not only is it not realistic to expect that there will necessarily be a full complement of judges at all times, [1] but that is not the constitutional yardstick for determining whether there is unreasonable delay below the ceiling. Quite simply, if the accused was brought to trial within a reasonable time, it does not matter how many judicial vacancies there were and, conversely, if the accused is not brought to trial within a reasonable time, the fact there was a full complement of judges will not necessarily save the prosecution.

[44] Viewing the matter holistically, the defence failed to rebut the presumption that the under-the-ceiling delay was unreasonable. If anything, almost every factor in this case pointed away from a stay of proceedings. As the appellant points out:

(i) the 26.5 months delay in this case was well below the Jordan ceiling;

(ii) the parties had both acted responsibly and with diligence to move the case forward;

(iii) the Toronto region was experiencing an increase in complex cases;

(iv) the Toronto region was still experiencing the after-effects of the pandemic;

(v) the appellant had been on bail since the day he was charged;

(vi) there was nothing about this case that compelled a sense of urgency, such as if the respondent had been a young person or this matter was a re-trial; and

(vii) the first trial date reflected an ambitious schedule, reflected by the fact that if it had gone ahead, this two-week jury trial would have been completed in less than 17 months, which even falls below the ceiling for a trial proceeding only in the Ontario Court of Justice.

[45] In summary, this is not a “clear” case warranting a s. 11 (b) stay.

D. Conclusion

[46] For these reasons, the appeal must be granted, the stay set aside, and a new trial ordered.

Released: “October 3, 2024 JMF” “Fairburn A.C.J.O.” “I agree. E.E. Gillese J.A.” “I agree. J. Dawe J.A.”

[1] Prior to the pandemic there were about the same number of judicial vacancies in Toronto as existed at the time that this proceeding was stayed: R. v. Martins, 2024 ONSC 146 at para. 33.