WARNING The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall
( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
( b ) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (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.
ONTARIO COURT OF JUSTICE
DATE: 2022 10 25 COURT FILE No.: BRAMPTON 3111-998-20-9709
BETWEEN:
HIS MAJESTY THE KING
— AND —
S.C.
Before Justice A.R. Mackay Heard on April 22, 2022 Reasons for Judgment released on October 25, 2022
Counsel: Sarah Burton .......................................................... counsel for the Respondent Crown Yonatan Eshetu ............................................................. ... counsel for the Applicant S.C.
MACKAY J.:
Introduction
[1] S.C. is charged with sexual offences alleged to have been committed against his stepdaughter, F.H., between March 18, 2018 and April 1, 2018.
[2] The Applicant has brought an application for a stay of proceedings based on an alleged violation of his right to a trial within a reasonable time as guaranteed by section 11(b) of the Canadian Charter of Rights and Freedoms. On July 22, 2022, I advised the parties that I dismissed the application with reasons to follow. These are those reasons.
Overview
[3] The analytical framework to be used for 11(b) applications was provided by the Supreme Court of Canada in R. v. Jordan. [1]
[4] The parties agree that the Jordan clock commences at the time the Information was laid. [2] I am also of the view that case law supports this conclusion. [3]
[5] S.C. was charged on October 13, 2020, just seven months after the Global Pandemic was declared by the World Health Organization on March 11, 2020. This declaration remains in force. On March 15, 2020, the Ontario Court of Justice suspended normal operations. It remained open only for "in-custody or urgent" matters. All other criminal matters were adjourned for 10 weeks by Order of the Court. This Order continued to be amended to suspend trial dates until July 6, 2020.
[6] In a Notice dated May 11, 2020 the Chief Justice of the Ontario Court of Justice outlined the processes that would be followed during the ongoing state of emergency. The Notice directed that trials scheduled following July 6, 2020 should be expected to proceed, however, rescheduling of the cancelled matters would be done according to priority set out by the Court following that date.
[7] After much work and consultation with Government and health experts and the implementation of a wide range of health and safety measures, the courts reopened on July 6, 2020. Trial courts, however, were not stacked with multiple cases; for the most part only one trial was placed in a trial court at a time. This was done to protect the public and justice participants. At this point in time the Trial Coordinator was commencing to make efforts to deal with the huge backlog of cases in the system as a result of the fact that scores of cases had to be adjourned.
[8] Jordan provides a presumptive time period within which an accused must be brought to trial for cases in the provincial court of 18 months.
[9] 715 days will have elapsed from the time S.C. was charged to the date the trial was expected to end, or 23 months and 15 days. The Information was sworn on October 14, 2020. The trial was scheduled to begin on August 29, 2022 and end on September 29, 2022. [4]
Position of the Parties
[10] The Applicant submits that there is no defence delay and that throughout the entire history of this case, defence counsel has sought to move the matter along expeditiously. Despite the Applicant being arrested on October 13, 2020, initial disclosure was not available until sometime during the week of January 4, 2021. Important disclosure was not available for another 4 months.
[11] The Respondent submits that the net delay in this case is 14.9 months (455 days) after accounting for defence delay and delay caused by exceptional circumstances. As such, the Respondent submits that S.C.’s s. 11(b) right was not breached.
[12] On January 6, 2021, a Crown Pre-trial was held to complete a bail variation for the Applicant. On the same date, disclosure was provided to defence counsel, Mr. Aswani Datt. Disclosure included near-verbatim transcripts of the witness’ statements to police.
[13] Counsel then waited approximately 3 months to request outstanding disclosure on April 8, 2021. Within three days of this request, on April 12, 2021, the video statements of the Applicant and three witnesses were uploaded to the Central Disclosure Hub. [5] From this point onward, each time the defence made a request for disclosure the Crown followed up by providing disclosure the same day or within days of the request.
Defence Delay
[14] The delays to be subtracted at the outset consist of two parts: (1) periods that are waived; and (2) periods of defence-caused delay. Defence delay comprises “those situations where the accused’s acts either directly caused the delay… or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial.” [6]
[15] Two periods of significant delay attributable to the defence are as follows:
- The delay in following up with outstanding disclosure; and
- The defence being unavailable for trial on several earlier dates offered by the Trial Coordinator.
The Duty to Request Disclosure
[16] Defence delay does not include defence actions that are legitimately taken to respond to the charges. The defence must be allowed time to prepare even where the Court and the Crown are ready to proceed. Defence applications that are not frivolous will also generally not count against the defence. [7]
[17] However, in cases where a step taken by counsel has some 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.” [8] To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. [9]
[18] A corollary of the s. 11(b) right “to be tried within a reasonable time” is the responsibility to avoid causing unreasonable delay. [10] All criminal justice participants must take a proactive and collaborative approach to ensure that accused persons are tried within a reasonable time. As Sopinka J. wrote in Morin: “The purpose of s. 11( b ) is to expedite trials and minimize prejudice and not to avoid trials on the merits.” [11]
[19] The accused’s right to disclosure is one which must be asserted. While the Crown always has a duty to provide disclosure, the defence has a duty to follow-up in a timely manner to ensure Crown compliance with its duty. If the defence fails to raise the issue and does nothing to alert the Crown, any delay arising will be taken into account when assessing whether the defence took meaningful steps to expedite the trial. [12]
[20] This reciprocal disclosure process and collaboration enhances trials within a reasonable time and avoids adjournments and delay. [13]
[21] The Ontario Court of Appeal has stressed the point that disclosure need not be complete before dates are set for trial or preliminary hearing and that the defence would be wrong in delaying of the setting of trial dates in some cases. [14] It is only when the missing disclosure is truly material to "crucial steps" in the process, like election and plea, that it will justify delay at these early stages. [15]
[22] Most participants are aware that meaningful Crown pre-trials or Judicial Pre-trials are the most effective way to resolve the issue of outstanding disclosure. It is not uncommon for judges to give the police and Crown deadlines for producing outstanding disclosure and to mediate between the parties as to which requests are reasonable. [16]
[23] I will deduct 2 months (60 days) from the 3 month period in which disclosure was not provided as in large part the delay was caused because defence counsel took no steps to acquire it.
Other Periods of Defence Delay
[24] On September 16, 2021, a JPT was held and a trial-time-estimate-form was completed. The next step was for counsel to send the forms to the Trial Coordinator’s Office to set trial dates. However, counsel did not do so until Crown counsel inquired about when he was going to set the trial. On October 14, 2021, counsel sent the email to the Trial Coordinator’s Office to book a scheduling conference. October 28 was first offered but counsel was not available until November 2, 2021. On November 2, 2021, the parties attended the trial scheduling conference. Trial dates were set for August 29–September 1, 2022 and September 27-29, 2022. I apportion 27 days defence delay for counsel’s delay in proceeding to set trial dates.
Offer of Earlier Dates and Counsel’s Unavailability
[25] As the ceilings established in Jordan are intended as presumptive time periods as to reasonable delays for which the state is responsible, actions that are not attributable to the state, such as defence unavailability, are excluded from the total calculation of delay. Where a date is available to the Crown and Court, but refused by the defence, aside from time required to legitimately respond to the charges or other unique circumstances, this is defence-caused delay. [17]
[26] A contextual approach should be applied when determining how much of the delay will be deducted for defence unavailability. Only in instances where it can be said that there were additional causes of the delay besides defence unavailability will the delay be parsed out as between those causes. [18]
[27] The following summarizes the dates offered to the defence and the context surrounding them. As a result of a request made by the Crown dated January 12, 2022, on January 27, 2022, the Trial Coordinator was able to offer earlier trial dates of February 24, 25, 28 and March 1-4, 2022. The Applicant did not accept the earlier dates and instead retained new counsel. Newly retained counsel was not available for the earlier dates. Given the dates offered were only a month away it would not be reasonable to expect counsel to be available and prepared to proceed to trial and as such I do not count this period as defence delay.
[28] The Crown again reached out to the Trial Coordinator to request earlier dates. On February 8, 2022, the Trial Coordinator wrote to defence counsel to advise that an earlier block of dates had become available. A scheduling conference was held on February 11, 2022. Several sets of dates were offered, including:
▪ June 7 – 10, 14, 15, 2022 ▪ June 13 – 17, 20, 21, 2022 ▪ June 27 – 30, July 4 – 6, 2022 ▪ July 14, 15, 18 – 22, 2022 ▪ August 8 – 12, 15, 16, 2022
[29] The Crown was available for all dates. Defence counsel was not available for any of the dates. Applying Jordan, I deduct the time period from June 7 to August 16. This is the period of time in which the trial could have been completed but was not because of counsel’s unavailability. The period amounts to 70 days of defence delay.
Total Defence Delay
[30] The following is a summary of the total defence delay:
Failure to follow up with disclosure: January 6, 2021 – April 8, 2021 (as discussed above, I only attributed 60 days to defence)
Counsel delayed in setting trial dates: September 17, 2021 – October 14, 2021 (27 days)
Counsel was unavailable for several dates when the Court and the Crown were available: June 7, 2022 – August 16, 2022 (70 days)
Net Delay
[31] Total defence delay is 157 days or 5.2 months, leaving a net delay of 558 days or 18.3 months.
[32] Given the net delay is above the presumptive ceiling, it is important to address the existence of the exceptional circumstance, the Global Pandemic, which impacted the justice system throughout S.C.’s case.
Deductions for Exceptional Circumstances – Discrete and Unexpected Events:
Exceptional Circumstances
[33] “Exceptional circumstances” was succinctly defined by the Ontario Court of Appeal in Coulter as follows:
46 Exceptional circumstances lie outside the Crown's control in that: (1) they are reasonably unforeseen or reasonably unavoidable; and (2) Crown counsel cannot reasonably remedy the delays emanating from the circumstances once they arise. Such circumstances need not be rare or entirely uncommon (Jordan, para. 69).
47 An exceptional circumstance is the only basis upon which the Crown can discharge its burden to justify a Net Delay that exceeds the ceiling. The seriousness or gravity of the offence cannot be relied on. Nor can chronic institutional delay or the absence of prejudice to the accused (Jordan, para. 81).
48 The list of exceptional circumstances is not closed but, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).
49 …
50 … any portion of the delay caused by a discrete event that the Crown or system could reasonably have mitigated may not be subtracted (Jordan, para. 75).
[34] The following are time periods which were unavoidable due to the impact of the Pandemic.
August 10, 2021 – September 17, 2021 (38 days)
[35] Due to the COVID-19 backlog, the earliest available date for a judicial pre-trial was September 17, 2021. To protect the public and justice participants the Trial Coordinator set up a system where the setting of judicial pre-trials, trials and preliminary hearings were done virtually and by appointment (virtual trial scheduling conferences). Prior to the Pandemic parties could simply walk into the Trial Coordinator’s Office and stand in line until the office could accommodate them. Instituting this system was the result of a number of factors attributable to the Pandemic including: the prioritization of matters which were cancelled as a result of the pandemic; the Court’s shift to virtual case management courtrooms, and; the backlog of work and emails that the Trial Coordinator was diligently trying to parse through once courts re-opened and matters needed to be scheduled and re-scheduled.
October 14, 2021 – November 2, 2021 (19 days)
[36] Due to the backlog created by the pandemic, the Trial Coordinator was unable to arrange for a trial scheduling conference until November 2, 2021. These 19 days are directly attributable to the Pandemic. COVID-19 forced the Trial Coordinator’s Office to develop new methods for scheduling trials as discussed above. This new system for scheduling trial dates, accompanied by the backlog of cases which were still being rescheduled, created delay in setting dates for this trial.
[37] In addition to the periods set out above, at the set date appearances, matters were adjourned for lengthier periods of time because of the increased numbers appearing in the set date courts. The Applicant’s initial court dates were adjourned for longer blocks of time due to the numbers of persons appearing in the set date courts. Persons attending were those whose trials were adjourned because of the closing of the courts, persons who were charged during the Pandemic whose matters were also adjourned and persons who were being charged while the courts were attempting to prioritize and reschedule cases. It followed that disclosure to accused persons was also delayed.
[38] As Justice Nakatsuru described in R. v. Simmons, the impact of the Pandemic was far-reaching, and it continues to impact the administration of justice in Ontario:
The impact of the pandemic on the criminal justice system “is not limited to those periods of time when the court had to adjourn scheduled cases or when jury trials were suspended. It has had numerous and far-reaching impacts on how we do things, and, on the people who do them.” This has “a significant impact on scheduling. Scheduling new trials and rescheduling existing trials have become more complex and difficult. A backlog of cases has ensued. A lack of resources was not the cause. Rather, COVID-19 was. It has had a system-wide impact of unprecedented proportions, never seen before in our lifetime .” [19]
Net Delay Caused by Exceptional Circumstances
[39] The net delay indirectly caused by the Pandemic was 1.9 months (57 days). The remaining delay is 501 days or 16.5 months.
Delay Falling Below the Presumptive Ceiling
[40] As the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable. [20] To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings ("defence initiative"); and (2) the case took markedly longer than it reasonably should have. Absent both of these two factors, the s. 11(b) application must fail. [21]
[41] Stays of proceedings for delays that fall below the ceilings will be rare and limited to clear cases. [22]
The Defence Initiative
[42] Justice Moldaver in K.J.M. [23] described the “meaningful steps” test as follows:
If the defence hopes to satisfy the “meaningful steps” test set out in Jordan, it must engage in proactive conduct throughout and show that the accused is committed to having the case tried as quickly as possible. Resigned acquiescence will not do.
[43] In the case before me, counsel did not request disclosure for 3 months. In all the circumstances it reveals that the defence was making only token efforts to move the case along. Had counsel scheduled a judicial pre-trial earlier or had another meeting with the assigned Crown, it is very likely that the outstanding disclosure would have been received. Attending at a busy set date court and simply putting on the record that disclosure is outstanding is not sufficient. In addition, after having completed a judicial pre-trial the defence chose to delay the process of setting a trial date for one month. I cannot find in all the circumstances that meaningful and sustained steps were taken on behalf of the Applicant to move the case along nor that the defence engaged in proactive steps throughout.
Markedly Longer
[44] The 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. [24] The Supreme Court has instructed trial judges to use the knowledge they have of their own jurisdiction, including how long a case with similar issues typically takes to get to trial in light of the systemic circumstances of their jurisdiction. [25]
[45] Where the Crown has made every effort to ensure that the matter proceeds expeditiously it is unlikely that the reasonable time requirements of the case will have been markedly exceeded. As with assessing the conduct of the defence, trial judges should not hold the Crown to a standard of perfection. [26]
[46] The delay in providing disclosure unfortunately was also due in part to the Pandemic. As the Crown pointed out the Crown needed to fully transfer its disclosure process to an electronic system (The Central Disclosure Hub).
[47] Prosecutors should bear in mind that the presumptive ceiling “is not an aspirational target”, 18 or 30 months is still “a long time to wait for justice”, and most cases “can and should” be completed in less time. [27]
[48] In determining whether the case has taken markedly longer than what was reasonable, trial judges are to step back from the ‘minutia’ of parsing out days or months and adopt a “bird’s eye view of the case.” [28]
[49] As stated in R. v. K.J.M. [29]:
To be clear, under this branch of the test, the issue is not whether the case should reasonably have been completed in less time. Rather, it is whether the case took markedly longer than it reasonably should have.
[Emphasis in original.]
Conclusion
[50] The net delay to bring S.C.’s case to trial and was 16.5 months. This was not a complex case; however, his trial has been estimated to take 7 days. When the Crown was made aware of outstanding disclosure it acted promptly. In addition, the Crown attempted on two occasions to schedule earlier trial dates. S.C.’s matter entered the Justice system, just seven months after the Global Pandemic was declared. In all of the circumstances, I cannot find that the case took markedly longer than it reasonably should have in the jurisdiction of Peel.
[51] After applying the Jordan framework, the net delay in this matter fell below the presumptive ceiling. I have determined that the Applicant has failed to establish that he took meaningful steps to expedite the proceedings and that he has failed to establish that the case took markedly longer than it reasonably should have. In the result, the s. 11(b) Charter application is dismissed.
Released: October 25, 2022
Signed: Justice A.R. Mackay
[1] R. v. Jordan, 2016 SCC 27. The analytical framework as set out in Jordan was summarized by the Court of Appeal in the case of R. v. Coulter as follows:
[34] Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).
[35] Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, at para. 66).
[36] Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).
[37] If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).
[38] Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).
[39] If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).
[40] If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).
[2] R. v. Kalanj, [1989] 1 S.C.R. 1594 at para. 19.
[3] R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39; R. v. Hunt, 2017 SCC 25, [2017] 1 S.C.R. 476; R. v. Coulter, 2016 ONCA 704; [2016] O.J. No. 5005.
[4] The trial did not finish when anticipated due to my illness and the subsequent death in the family of defence counsel.
[5] An electronic system where counsel can retrieve their disclosure online. This system was created to avoid the need for in person attendance to retrieve disclosure.
[6] R. v. Jordan, 2016 SCC 27 at paras. 60-66; R. v. Williamson, 2016 SCC 28 at paras. 21-22; R. v. Cody, 2017 SCC 31 at paras. 28-31.
[7] Jordan, at paras. 65-66.
[8] R. v. Jordan, 2016 SCC 27 at paras. 21; 49; 60; R. v. Cody, 2017 SCC 31 at paras. 1; 32-33; R. v. K.J.M., 2019 SCC 55 at paras. 81-84; R. v. Thanabalasingham, 2020 SCC 18 at para. 9.
[9] R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 32.
[10] Cody at paras. 32-33.
[11] , [1992] 1 S.C.R. 771 at para 57 quoted in Jordan at para. 60.
[12] R. v. Stinchcombe, [1991] 3 S.C.R. 326 at paras. 12 and 28; R v Dixon, [1998] 1 S.C.R. 244 at para. 38; R. v. Eadie, 2010 ONCJ 403 at paras. 43-46; R. v. Michelutti, [2009] O.J. No. 2839 (SCJ) at para. 28.
[13] R. v. Stinchcombe, [1991] 3 S.C.R. 326 at para. 24; R. v. Eadie, 2010 ONCJ 403 at para. 46; R. v. Michelutti, [2009] O.J. No. 2839 (SCJ) at para. 28.
[14] R. v. Kovacs-Tatar, 192 O.A.C. 268, at para. 47.
[15] R. v. Schertzer et al., 2009 ONCA 742 at paras. 93 and 94; R. v. M. (N.N.), 209 O.A.C. 331 at para 37; R. v. Kovacs-Tatar, 192 O.A.C. 268 at para. 47; R. v. Lahiry et al., 2011 ONSC 6780, para 114; R. v. Gandhi, 2016 ONSC 5612, at paras. 33-36; R. v. Truong, 2020 ONCJ 613 at paras. 58-61.
[16] R. v. Lahiry et al., 2011 ONSC 6780 at paras. 108-111 and 114; R. v. M. (N.N.), [2006], 209 O.A.C. 331 at para. 37; R. v. Kovacs-Tatar, [2004], 192 O.A.C. 268 at para. 47; R. v. Carbone, 2020 ONCA 394, at para. 53; R. v. Chowdhury, 2019 ONCJ 600, at paras. 16-17; R. v. Gandhi, 2016 ONSC 5612, at paras. 33 -36r.
[17] R. v. Boulanger, 2022 SCC 2; R. v. Thanabalasingham, 2020 SCC 18 at para. 9; R. v. Jordan, 2016 SCC 27 at paras. 63-5; R. v. Williamson, 2016 SCC 28 at paras. 21-22 R. v. Coulter, 2016 ONCA 704 at paras. 72-77; R. v. Mallozzi, 2017 ONCA 644 at paras. 32-38; 41; leave to appeal to the S.C.C. dismissed (without reasons); [2017] S.C.C.A.; R. v. Cowell, 2019 ONCA 972 at para. 32; R. v. Albinowski, 2018 ONCA 1084 at paras. 32; 37-40; 49.
[18] For example, see R. v. Boulanger, 2022 SCC 2, R. v. Hanan, 2022 ONCA 229 at paras. 47-59 and R. v. J.P., 2021 ONCA 866 at paras. 6-9.
[19] R. v. Simmons, 2020 ONSC 7209 at para. 70.
[20] Jordan, para. 48.
[21] Jordan, para. 82; Coulter, at para. 53.
[22] R. v. Jordan, 2016 SCC 27 at paras. 5; 46-8; 49; 60; R. v. McManus, 2017 ONCA 188 at para. 21.
[23] At para. 83.
[24] Jordan, para. 87.
[25] Jordan, para. 89.
[26] Jordan, para. 90.
[27] Jordan, at paras. 56-57.
[28] Jordan, para. 91; R. v. K.J.M., 2019 SCC 55 at paras. 68-84.
[29] 2019 SCC 55, 439 D.L.R. (4th) 607, at para. 107.