ONTARIO COURT OF JUSTICE DATE: 2022 01 07 COURT FILE No.: Brampton 20-8831
BETWEEN:
HER MAJESTY THE QUEEN Respondent
— and —
EDWARD SAWH Applicant
Before: Justice M.M. Rahman
Application heard: November 30, 2021 Reasons for Ruling released on: January 7, 2022
Counsel: Amita Persad-Ford........................................... counsel for the Crown, respondent Ravi Sahota...................................................... counsel for the defendant, applicant
RAHMAN J.:
1. Overview
[1] The applicant is charged with having excess blood alcohol within two hours of driving. He applies for a stay of proceedings because his trial was unreasonably delayed.
[2] The applicant argues that the delay in this case exceeds the presumptive 18-month Jordan [1] ceiling. He says that whether the delay is calculated from the date of his arrest, or the date the information was sworn, the delay exceeds 18 months. The applicant says that the defence is not responsible for any delay and therefore no delay should be subtracted from the total delay. Alternatively, even if there is defence delay in this case, the applicant says his charges should still be stayed because the case has taken markedly longer than it should have, and the defence took meaningful steps to move the matter forward.
[3] The Crown argues that the net delay does not exceed the presumptive ceiling. The Crown says that the Jordan clock does not start until the date the information was sworn. In that case, the delay exceeds the presumptive ceiling by only five days. Once two periods of defence delay totalling 54 days are subtracted from this total delay, the net delay is under the presumptive ceiling. The Crown contends that this case did not take markedly longer than it should have and that the proceedings should not be stayed.
[4] These reasons explain why I am granting the application and entering a stay of proceedings. The delay here was under the presumptive ceiling, but the applicant has demonstrated that he took meaningful steps to be tried quickly and the case took markedly longer than it should have.
2. The Jordan Analysis
2.1. Total Delay
[5] There is usually no dispute between the parties about the total delay in a case. Total delay is calculated starting on the date an accused is charged and ends on the final day scheduled for trial. However, in this case, the applicant says that the delay between the date he was arrested and the date he was formally charged was unreasonably long (28 days) and should be counted as part of the total delay.
[6] The applicant was arrested on August 26, 2020. His appearance notice required him to make his first court appearance on November 3, 2020. The police did not lay the information against him until September 22, 2020. The applicant says that there is no explanation for this 28-day delay. The applicant argues that the court can also consider this period of pre-charge delay as part of the total delay because the applicant was subject to the court’s process compelling him to appear in court and was also subject to the mandatory 90-day license suspension under the Highway Traffic Act. The Crown says that the Supreme Court’s decision in R. v. Kalanj [2] is clear and binding on this court. In Kalanj, the Supreme Court held that the proper starting point for the calculation of s. 11(b) delay is with the laying of the information.
[7] In the circumstances of this case, I agree with the applicant that total delay should be calculated from his arrest date. The applicant’s position finds support in a few decisions of this court. [3] In one of those cases, R. v. Luoma, Schreck J. explained that Kalanj was not meant to apply to a situation like the typical drinking and driving case, where the police have completed their investigation and the accused has been arrested and been compelled to appear in court through a form of police bail.
[29] In my view, the conclusion in Kalanj was never intended to apply to a situation such as in the case at bar where the investigation has been completed and the accused has been arrested and is subject to the court’s process but where the police, in contravention of s. 505, have simply failed to have an Information sworn due to some administrative oversight. In my view, the principles in Kalanj lead to the conclusion that the s. 11(b) clock starts to tick at the point when an Information is sworn or ought to have been sworn. Under this approach, the concerns driving the result in Kalanj about the inability of the courts to assess the investigatory progress of the case simply do not arise and the police are not able to artificially manipulate the s. 11(b) calculus, either intentionally or inadvertently. [4]
[8] Schreck J. grounded his conclusion that the Jordan clock could start upon arrest by relying on the Court of Appeal’s decision in R. v. Milani [5]. In Milani, the court considered whether the period between the withdrawal and re-laying of charges should be counted as part of the total delay in the case. Although the court ultimately concluded that the period in that case was not a period during which the accused’s s. 11(b) interests were protected, the court did observe that there may be periods during which an accused is not formally charged that should still be counted when calculating whether there has been unreasonable delay. The court reasoned that where an accused is still effectively subject to the judicial process and has knowledge or expectation that charges are imminent, the accused’s s. 11(b) interests are still affected.
[48] There is a caveat, however. There are circumstances in which unilateral state action may control whether or not charges are withdrawn or re-laid. In such circumstances, where the formal charge has been withdrawn with the intention of laying a new charge, or an information has been quashed with a new information laid, it makes sense to consider the entire period from when the first charges were laid as part of the s. 11(b) analysis. In such circumstances, the person, although not formally charged during the "gap" period, remains subject to the judicial process, and his s. 11(b) interests will continue to be affected by the knowledge or expectation that further charges are imminent. It is reasonable to conclude that he remains subject to the process of the court. That is precisely what occurred in R. v. Antoine.
[49] For all of these reasons, I would interpret s. 11(b) as being engaged during any period that an accused person is in fact subject to charges, or when a person no longer actively charged remains subject to the very real prospect of new charges. [6] [emphasis added]
[9] The applicant was arrested on August 26, 2020. He was released by police on a Form 10 undertaking. That undertaking required him to appear at 22 Division to be fingerprinted on October 30 and to attend court on November 3. It would be unrealistic to say that the applicant was not subject to the very real prospect of being charged when released on a Form 10 on August 26. In these circumstances, using the date that the information is sworn as the date to start the Jordan clock would be a triumph of form over substance. Accused persons in the applicant’s situation know the date that they are arrested and given paperwork compelling them to attend a police station to be fingerprinted and to attend court. They may also be subject to conditions not to go to certain places or contact certain people. The police do not call them the day the information is sworn to let them know it is official. The liberty and security of the person interests protected by s. 11(b) – being subject to conditions, and the stress, anxiety and stigma of the criminal process [7] – are affected once an accused is arrested and released on police bail. In such circumstances, the date the information is sworn is not a significant one for the accused. Consequently, I conclude that the total delay in this case is 19 months and 4 days (581 days).
2.2. Defence Delay
[10] Defence delay must be subtracted from the total delay to determine the net delay. If the net delay exceeds the 18-month Jordan ceiling, the delay is presumptively unreasonable.
[11] Defence delay will arise where the Crown and the court are ready to proceed, but the defence is not. In this case, that would mean three periods of defence delay that should be subtracted from the total delay. First, a 14-day period from January 19, 2021 to February 1, 2021 during which applicant’s counsel sought an adjournment to get instructions. Second, a 40-day period between June 16, 2021, the first day the Crown and the court were available to accommodate the trial, and July 26, 2021, the first date ultimately set for trial. [8] Finally, an eight-day period between March 21, 2022, the first day the Crown and court were available, and March 29, 2022, the first day ultimately set for trial.
[12] Although the applicant initially conceded that there had been a brief 14-day period of defence delay when his counsel sought an adjournment to seek instructions from him, he retracted that concession during oral submissions. In short, the applicant says that, because the Crown did not provide him with full disclosure until the first trial date, the Crown was not truly ready for trial when it set the trial date. Consequently, he says any delay before July 26, 2021 cannot be counted against the defence.
[13] I cannot agree with the applicant’s position. As I will explain, the facts underlying the late disclosure, and counsel’s reaction to it, do not support his position.
[14] The first trial dates in this matter were set for July 26 and 27, 2021. On the first day set for trial, the parties appeared before a court which was already occupied with another matter. They explained to the court that there was an item of outstanding disclosure that the defence had just become aware of that day. The defence had only learned of a particular officer’s involvement that day because it was detailed in an ICAD report. The Crown had just given that report to the defence that day. Applicant’s counsel said that he would still be prepared to start the trial if the missing officer’s notes were not voluminous. Ultimately, the Crown provided the notes to applicant’s counsel over the lunch break. The notes comprised only three pages, and the applicant’s position was that this late-breaking disclosure was not an obstacle to starting the trial that day. Indeed, when it became clear that the matter would be adjourned because no court could accommodate it, applicant’s counsel said, “Just for the record, Your Honour, obviously Mr. Sawh and I were ready to proceed today. We are disappointed that we are unable to be reached.”
[15] The fact that the applicant was prepared to proceed on July 26 undermines his submission that the late disclosure affects the determination of defence delay. This is not a case where significant disclosure was outstanding as of the first trial date. As it turned out, the Crown had not disclosed an ICAD report and three pages of notes. But more importantly, the applicant did not regard this late disclosure as affecting his ability to start the trial on that date. In other words, the applicant’s own position on July 26 was that the trial was ready to go but for the lack of court space.
[16] Moreover, I cannot accept the applicant’s submission that agreeing to proceed after receiving late disclosure somehow punishes him for being reasonable and showing an interest in a timely trial. First, counsel are officers of the court. It is expected that they will be candid (as counsel was here) about the impact of late disclosure on their ability to proceed. And if counsel are not candid (or the parties disagree about the significance of disclosure), a judge will decide whether any late disclosure truly impacted their ability to conduct a trial. Second, I note that counsel being reasonable and showing a willingness to proceed is a factor that is important in cases where the net or remaining delay is under the Jordan ceiling. In such cases, counsel’s willingness to proceed after receiving late disclosure may be part of the meaningful steps that the defence took to expedite the matter.
[17] Combining the three periods of delay mentioned above, the total amount of defence delay in this case is 62 days.
2.3. Net Delay
[18] The net delay in this case is 17 months and 2 days. Because that delay is under the 18-month ceiling, the applicant must demonstrate that the delay is unreasonable.
2.4. Has the applicant demonstrated that the case should be stayed?
[19] Where the remaining delay is below the presumptive ceiling, the defence can succeed in showing unreasonable delay if it can establish both of the following two conditions:
(1) The defence took meaningful steps that demonstrate a sustained effort to expedite the proceedings (defence initiative).
(2) The case markedly exceeded its reasonable time requirements.
2.4.1. The defence took meaningful steps
[20] To show defence initiative, the defence must show that it took meaningful and sustained steps to have the case tried quickly. The defence must show that it attempted to set the earliest possible hearing dates and that it was “cooperative with and responsive to the Crown and the court.” The defence must also have “put the Crown on timely notice when delay was becoming a problem.” [9] The defence “must engage in proactive conduct throughout” and “show the accused is committed to having the case tried as quickly as possible.” [10]
[21] I am satisfied that the applicant took meaningful and sustained steps to be tried quickly. The applicant retained counsel before his first court appearance. Applicant’s counsel conducted a timely Crown pre-trial and followed up on disclosure. The applicant also followed up on the missing disclosure a few weeks before the July 26 trial date, and was prepared to proceed to trial despite receiving the missing disclosure on the first day of trial. The applicant also moved quickly to re-schedule the trial after the first trial date was adjourned. The trial scheduling form also shows that the applicant was available to conduct the new trial on September 2, 2021, just one month after the scheduling conference. Finally, when the new trial date was set on August 17, 2021, the applicant’s representative advised that the applicant would be bringing this application. That was the first realistic opportunity that the applicant had to put the Crown on notice that delay was becoming a problem, since, prior to this appearance, the case was not in serious jeopardy of being stayed for delay.
[22] I cannot accept the Crown’s submission that the applicant’s failure to set the first trial date until six weeks after the Crown pre-trial (which included the two-week adjournment to seek instructions) means that the applicant did not take sustained and meaningful steps throughout. Jordan [11] makes clear that the defence needs to act reasonably, not perfectly. The Crown pre-trial was conducted three days before Christmas, meaning that a portion of that six-week period occurred over the holidays. Apart from this period, the applicant otherwise showed that he was committed to having the matter tried quickly. More importantly, when the trial had to be re-scheduled, the applicant made himself available to conduct the trial in September 2021. That was less than two months from the adjourned, first trial date, and less than a month from the August 5 trial-scheduling conference. Making himself available for a trial so soon after the first trial dates adjourned is a significant and meaningful step in showing a commitment to have his case tried as quickly as possible. The applicant’s availability to conduct the trial six months before the ultimate trial date makes up for the six weeks it took him to set the first trial date.
2.4.2. The case took markedly longer than it should have
[23] Determining whether a case has taken markedly longer than it should have, “is not a matter of precise calculation.” 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.” [12]
[24] The net delay in this case is 17 months and 2 days. That is less than a month shy of the presumptive ceiling. For a straightforward, two-day drinking and driving trial, that is too long.
[25] I recognize that Brampton’s Ontario Court of Justice is the largest and busiest criminal courthouse in the province. [13] However, even the busiest court in the province must be able to schedule a simple, two-day trial sooner than 17 months. The fact that Brampton has more volume than other jurisdictions simply means that what is markedly longer somewhere else may not be markedly longer here. It does not mean that the acceptable period of delay should start to move so close to the presumptive Jordan ceiling that anything close to, but under, 18 months is acceptable. Doing so would make the presumptive ceiling resemble an aspirational target, something the Supreme Court warned against. [14] Moreover, the 18-month presumptive ceiling is meant to apply to all cases that proceed to trial in this court. That includes not just relatively simple, short cases like the applicant’s, but longer, more complicated indictable trials.
[26] I am also mindful that the courts have, as the Crown put it, “suffered a major body blow by being shut down completely and partially for a year” because of the global pandemic. [15] In some cases (such as longer trials), the impact of the pandemic might change what court considers to be markedly longer. [16] However, the record does not support the pandemic’s impact as being particularly relevant to this case. As mentioned above, the court could have accommodated this trial over six months earlier than it was actually scheduled. Indeed, the court offered new trial dates of August 24-25 and August 26-27, only a month after the initial trial dates had been adjourned, though neither party was available that soon. The “body blow” caused by the global pandemic was not a factor here.
[27] Finally, the Crown relies on the Court of Appeal’s statement in R. v. Coulter [17], citing Jordan, that “stays for cases in which the delay falls below the presumptive ceiling are rare and limited to clear cases.” I do not read either Coulter, or Jordan, as requiring that there must be anything exceptional about a case before it is stayed, or that a court must apply a separate clearest of cases analysis before entering a stay. The Supreme Court’s observation that a stay of proceedings will be rare where delay falls below the presumptive ceiling was not meant as a direction to trial courts only to stay cases in rare or exceptional circumstances. It was simply an expectation that, based on a typical application of the Jordan framework, a stay of proceedings will not be common. [18] The bottom line is that if an application of the Jordan framework leads to a finding there has been unreasonable delay, a stay follows. That is the situation here.
3. Conclusion
[28] The applicant has established that the delay in this case was unreasonable. The application is granted and the charges against the applicant are stayed.
Released: January 7, 2022 Justice M.M. Rahman
Footnotes
[1] R. v. Jordan, 2016 SCC 27. [2] R. v. Kalanj, [1989] 1 S.C.R. 1594. [3] R. v. Gill, 2020 ONCJ 124 at paras. 29-30; R. v. Albadry, 2018 ONCJ 114 at para. 9; R. v. Luoma, 2016 ONCJ 670; R. v. Egorov [2005] O.J. No. 6171 (C.J.); R. v. Swaminathan, 2015 ONCJ 394; See also R. v. Nash, 2014 ONSC 602 at paras. 5-7. [4] Luoma, supra, at para. 29. [5] R. v. Milani, 2014 ONCA 534. [6] Milani, supra, at paras. 48-49. [7] Jordan, para. 20. [8] In written submissions, the Crown initially described this period of defence delay as ending on June 29, which was the first day that the defence was available, but the Crown was not. During oral submissions, applicant’s counsel agreed that the proper calculation under Jordan, assuming I do not accept his submission detailed below, would be 40 days (June 16 to July 26). [9] Jordan, supra, at paras. 84-85. [10] R. v. K.J.M., 2019 SCC 55, at para. 83. [11] Jordan, supra, at para. 85. [12] Ibid. at para. 91. [13] R. v. Elakrat, 2020 ONCJ 343 at para. 51; R. v. Dhaliwal, 2019 ONCJ 761 at para. 31; R. v. Khattra, 2020 ONSC 7894 at para. 62. [14] Jordan, supra, at para. 56: “[The presumptive ceiling] is not an aspirational target. Rather, it is the point at which delay becomes presumptively unreasonable. The public should expect that most cases can and should be resolved before reaching the ceiling.” [15] I did not understand the Crown to be relying on the pandemic as a discrete event constituting an exceptional circumstance, but as a factor to consider in determining whether this case took markedly longer than it should have. [16] Some decisions have gone further and considered the impact of the pandemic to constitute a discrete event that extends beyond just that period where the courts were automatically adjourning trials: see for example, R. v. Simmons, 2020 ONSC 7209, at paras. 69-74; R. v. Dumpfrey, 2021 ONSC 7758 at para. 43; R. v. Venne, 2021 ONCJ 80, at para. 34. [17] R. v. Coulter, 2016 ONCA 704, at para. 87. [18] Indeed, the precise language from the court was framed as an expectation (at para. 48): “We expect stays beneath the ceiling to be rare, and limited to clear cases.” [emphasis added]
