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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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) 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: 2024 02 20 COURT FILE No.: 22-40003134 Toronto Region

BETWEEN:

HIS MAJESTY THE KING

— AND —

Jun-Feng ZHANG

Before Justice C. Faria

Heard on January 29, 2024 Oral Decision February 5, 2024 Reasons for Ruling on Charter s.11(b) released on February 20, 2024

Daniel DeSantis.................................................................................. counsel for the Crown Myles Anevich............................................... counsel for the accused Jun Feng ZHANG

Faria J.:

I. Overview

[1] Jun Feng Zhang was arrested on June 28, 2022, and charged with three counts of sexual assault contrary to s. 271 of the Criminal Code on an Information sworn the next day.

[2] A motion for directions had been set for February 8, 2024, as well as dates for Step 1 and Step 2 hearings for his s. 278.92 application have been set. The trial is scheduled for May 27 to 29, 2024.

[3] By that time, 23 months will have passed. This is over the 18-month limit set by the Supreme Court in R. v. Jordan, 2016 SCC 27 as to what is a reasonable time to trial in the Ontario Court of Justice.

[4] Mr. Zhang therefore alleges his s.11(b) right pursuant to the Charter has been violated and asks the court to stay the charges pursuant to s. 24(1).

[5] As a decision was required quickly to ascertain if the matter would proceed on February 8, 2024, on February 5, 2024, I dismissed the application with reasons to follow. These are my reasons.

II. Analytical Framework

[6] Jordan sets out the analytical framework to determine a s. 11(b) violation as follows [2]:

Step 1: Calculate the total delay. This is the period from the charge to the actual or anticipated end of the trial.

Step 2: Calculate the net delay. Subtract any defence delay from the total delay. Defence delay may arise from a defence waiver, and/or a delay caused solely by defence conduct.

Step 3: Compare the net delay to the presumptive ceiling of 18 months in the Ontario Court of Justice. If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable.

Step 4: The Crown may rebut this presumption if it establishes exceptional circumstances such as complexity and/or discrete events.

Step 5: Calculate remaining delay. Subtract delay caused by any exceptional discrete events from the net delay. If the remaining delay exceeds the presumptive ceiling, it is unreasonable delay.

Step 6: If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable by demonstrating a sustained effort to expedite the proceedings and the case took markedly longer than it reasonably should have.

III. Evidence

[7] The case can be divided into 3 broad periods of time:

• June 29, 2022 to December 2, 2022: time taken to retain counsel and obtain disclosure (5 months).
• December 2, 2022 to July 13, 2023: time taken to review disclosure, conduct a Crown Pre-Trial (“CPT”), a Judicial Pre-Trial (“JPT”), and set trial dates (7 months).
• July 13, 2023 to May 29, 2024: time taken to set a Motion for Directions, a Step 1 hearing, a Step 2 hearing for a s. 278.92 application, and a 3-day trial (10 months).

June 29, 2022 to December 2, 2022

[8] Between the Applicant’s arrest on June 28, 2022 and December 2, 2022, a period of, just over 5 months, the matter appeared in court 4 times:

• September 9, 2022 – Counsel sent an agent advising he was not yet retained and asking to adjourn to October 7, 2022 to perfect retainer.
• October 7, 2022 – Counsel sent an agent requesting an adjournment to set a “follow up” pre-trial with the Crown. [3]
• November 4, 2022 – Counsel sent an agent advising he “still needs disclosure” and requesting an adjournment.
• December 2, 2022 – Counsel sent an agent to adjourn the matter to January 6, 2023 with no reason provided.

[9] Behind the scenes, counsel sent 3 identical, generic, disclosure requests to the Crown’s Office, on September 19, October 6, and November 3, 2022.

[10] On November 10, 2022, the Applicant sent the Crown’s office a letter confirming receipt of initial disclosure and requesting two officer body-worn-cameras. Defence specifically noted he had received the complainant’s video audio recorded statement. [4]

December 2, 2022 to July 13, 2023

[11] During these 7 months, the Applicant appeared in court 7 times:

• January 6, 2023: Counsel appeared to advise he needed more time to review disclosure and set a Crown Pre-Trial by “in the next date”. He requested January 27.
• January 27, 2023: Counsel appeared, advised he had disclosure, and again asked to adjourn to February 24 to schedule a CPT.
• February 24, 2023: Counsel sent an agent to advise he had had a Crown Pre-Trial, and was waiting instructions. He asked to adjourn to March 24.
• March 24, 2023: Counsel sent an agent to advise he had tried to contact his client, had no response, and needed more time to re-establish contact. He asked to adjourn to May 5.
• May 5, 2023: Counsel asked for an adjournment because there was a new assigned crown.
• June 2, 2023: Counsel advised there had been a JPT that day, and both parties asked to return on June 30 for a trial estimate in the interim.
• June 30, 2023: Counsel sent an agent asking to adjourn to August 4 with no reason provided.

[12] Also, during this period, the following occurred:

• January 26, 2023 – Counsel emailed the assigned crown to set a CPT. On January 31, 2023 – the assigned Crown responded with a February 3 date, counsel was not available, and the parties settled on a CPT on February 7.
• February 7, 2023 – CPT conducted.
• May 4, 2023 – Counsel emailed the assigned crown, was advised the same day that the case was to be re-assigned, and the Crown’s office needed one week.
• May 12, 2023 – The new assigned crown emailed Counsel and provided JPT availability dates as early as May 23, 2023. Counsel selected June 2, 2023.
• June 2, 2023 – JPT conducted.
• June 26, 2023 – Counsel emailed the Crown that the Trial Co-Ordinator (TC) had not responded with motion and trial dates.
• July 3, 3023 – Assigned Crown emailed Counsel requesting Counsel advise of election, stating “we need to move this matter along” to set a meeting with the TC. That same day, Counsel advised of an Ontario Court of Justice election, and the Crown responded the same day with TC meeting times, the earliest of which was July 13, 2023.
• July 13, 2023 – Meeting with TC, February 8, 2024 set for Motion for Directions, March 8, 2024 set for Step 1 hearing and April 25, 2024 for Step 2 hearing of 278.92 application, and May 27, 28, 29, 2024 set for trial.

July 13, 2022 to May 29, 2024

[13] It took 3 court appearances for the Applicant to properly file his Election.

• August 4, 2023 – Counsel sent an agent asking the matter be adjourned directly to February 8, 2024 for a Motion for Directions. Neither counsel nor his client were present to make an Election and the matter was adjourned for that purpose.
• August 11, 2023 – Counsel sent an agent to advise the Notice of Election had been sent to the Crown and the TC, but the election needed to be addressed in a different courtroom. It was adjourned to August 14, 2023.
• August 14, 2023 – Counsel sent an agent to file the Notice of Election with the court. Matter was adjourned to the date set for the Motion for Direction, February 8, 2024.

[14] The Applicant filed his 11(b) Application on December 6, 2023, and the matter was heard on January 29, 2024, 11 days before the Motion for Directions was scheduled.

IV. Position of the Parties

[15] The Applicant concedes in his written materials, all but a possible 41 days, is caused entirely by the Crown. In oral submissions, the Applicant conceded defence delay could be as high as 89 or 90 days. Regardless, the delay to trial exceeds the 18-month Jordan ceiling and the charges should be stayed pursuant to s. 24(1) of the Charter.

[16] The Crown responds with a much higher calculation of defence delay and adds that the COVID-19 pandemic is a discrete event that must be considered an exceptional event, and a 90-day deduction should be made as a result. By that calculation, the delay to trial is under the Jordan ceiling, there has been no Charter violation and the Application should be dismissed.

V. Analysis

Step 1: Total Delay

[17] The parties agree that from the day the Information is sworn on June 29, 2022 to the last day when the trial is expected to be completed on May 29, 2024, is 701 days, or 23 months. This total delay is over the Jordan 18-month ceiling.

Step 2: Net Delay

Applicant

[18] The parties differ on what constitutes defence delay that should be deducted from the total delay to determine the net delay.

[19] The Applicant submits that on March 24, 2023 he erroneously put on the record that contact with the client had been lost and needed an adjournment to May 4, 2023 to re-establish contact. Although, in his view, the case did not stall as he met with the client that day, nonetheless, he appropriately conceded this 41-day delay is defence delay to be deducted from the total delay concluding the net delay is 660 days (701-41 days).

[20] However, during oral argument, defence conceded:

• He had erred when he advised the Crown’s office he had the victim’s statement in his letter of November 10, 2022. The Crown, as an officer of the court, advised defence did not receive it until December 1, 2022.
• A period of 20 days when he adjourned the case on January 6, 2023 to review disclosure and set a CPT, which he did not do, and then adjourned for the same purpose on January 27, 2023 is defence delay.
• A period of 28 days for not having obtained instructions from his client between February 24 and March 24, 2023 after the February 7, 2023, CPT is defence delay.

[21] Defence ultimately submitted that defence delay could be calculated as 89 days (41 days + 20 day + 28 days = 89 days, or 3 months). However, this still results in a net delay of 20 months, which is over the Jordan ceiling and thus a stay of the charges should be granted.

Respondent

[22] The Crown submits that in addition to the 41 days conceded by the defence, there should be an additional 105 days of defence delay, for a total delay of 146 days as follows:

• An additional 57 days from December 1, 2022, when the Applicant first received complete disclosure to January 27, 2023, as initial disclosure was provided on November 10, 2022, and should have been sufficient to be able to conduct a CPT.
• A further 48 days from February 7, 2023, the date of the CPT to March 24, 2023, because Counsel required further instructions from his client.

[23] The Crown therefore submits the net delay is 555 days, or just 10 days over the Jordan 18-month ceiling.

[24] During oral argument, the Crown conceded that some time was required for Counsel to consult with his client after the February 7, 2023 CPT and the clock cannot reasonably start ticking against the Applicant on that day.

Analysis of Net Delay

[25] It took 5 months for the Toronto Police Service to provide the Crown with the statement of the complainant on sexual assault charges. That is too long.

[26] The Crown has no explanation but to say that between June 2022 and December 2022, the criminal justice system, including the Toronto Police Service, were experiencing backlog because of the COVID-10 pandemic.

[27] That may be true, however, it is insufficient without more. This court has been repeatedly advised the Toronto Police Service is not providing timely disclosure of video evidence captured before or at the time of arrest to the Crown and that the Toronto Police Service has limited resources allocated to the production of such technological disclosure.

[28] The consequence of these choices made by the Toronto Police Service, as seen in this case, is delay that falls at the feet of the Crown.

[29] The Crown bears the obligation to make timely disclosure.

[30] At the same time, the Supreme Court has been clear that the defence is to be “part of the solution” required to change the culture of complacency. “The deduction of defence delay from total delay as a starting point in the analysis clearly indicates that the defence cannot benefit from its own delay-causing action or inaction” (emphasis added) [5].

[31] The Court stated:

… By encouraging all justice system participants to be more proactive, some resource issues will naturally be resolved because parties will be encouraged to eliminate or avoid inefficient practices. At the same time, the new framework implicates the sufficiency of resources by reminding legislators and ministers that unreasonable delay in bringing accused persons to trial is not merely contrary to the public interest: it is constitutionally impermissible and will be treated as such.

Real change will require the efforts and coordination of all participants in the criminal justice system.

For defence counsel, this means actively advancing their clients’ right to a trial within a reasonable time, collaborating with Crown counsel when appropriate and, like Crown counsel, using court time efficiently. Both parties should focus on making reasonable admissions, streamlining the evidence, and anticipating issues that need to be resolved in advance. (Emphasis added) [6]

[32] A year later the Supreme Court reiterated as follows:

… As we will explain, the Crown, the defence, and the system each contributed to that delay. This leads us to stress, as the Court did in Jordan, that every actor in the justice system has a responsibility to ensure that criminal proceedings are carried out in a manner that is consistent with an accused person’s right to a trial within a reasonable time. (Emphasis added). [7]

and

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. (Emphasis in original). [8]

[33] Delay will be attributed to the defence where there has been (1) an informed, clear, and unequivocal waiver of section 11(b); or (2) where delay is caused solely or directly by the conduct of the defence. [9] The focus in this case is on the second type of defence delay.

[34] On November 4, 2023, defence knew their client had been arrested over 4 months before, they had already been retained for months, and their client had not received a stitch of disclosure. [10]

[35] Between October 7 and December 1, 2022, a period of 55 days, not only was there defence inaction, in that defence made no effort to contact the assigned crown, conduct a CPT, schedule a JPT, and engage the system to facilitate disclosure, there was inaccurate information provided to both the court and the Crown.

[36] The defence was so misinformed about its own file, they advised the court that a pre-trial had been conducted before October 7, 2022 and a follow up was needed, when neither CPT had occurred nor had they sought one.

[37] The defence therefore lulled the court into the false belief the case was moving along when it was not.

[38] The defence then sent a further disclosure request to the Crown on November 10, 2023, that communicated it had the most salient piece of disclosure rather than communicating it was still outstanding, (the complainant’s video statement).

[39] Defence neither set a CPT nor set a JPT to deal with the disclosure problem.

[40] The Superior Court has stated that:

The judicial pre-trial, or JPT, is arguably the most important tool of modern case-management. When faced with a case like this with disclosure problems, an experienced and capable judge can do at least three things to move it forward: first, give the officer in charge fixed deadlines for producing missing disclosure and keep bringing the officer back to ongoing JPT appearances until the deadlines are met; second, advise and mediate between the parties as to which requests for further disclosure are reasonable (and are likely to be ordered by a court) and which requests are unreasonable (and are likely to be denied by a court); and finally, order the parties to set a date for trial or preliminary inquiry, even though some further disclosure may still be outstanding, once a certain point in the process has been reached. [11]

[41] In this case, the inaction of the defence deprived both the assigned Crown at first instance through a CPT, and then the judiciary, through a JPT, of the opportunity to address the Toronto Police Service disclosure delay for a period of 55 days during these first 5 months.

[42] During the subsequent 7 months between obtaining disclosure on December 1, 2023, and setting the hearing and trial dates on July 13, 2023, defence acknowledges a 3-month delay.

[43] In addition to those 3 months, defence advises both the jurist at the JPT on June 2, 2023, and the court that day that it will get a trial estimate.

[44] The JPT form filed by defence on the Application indicates the jurist noted:

“PI eligible charge(s): Defence likely to elect Ontario Court of Justice may change election to SCJ.” [12]

[45] Defence then did not elect until July 3, 2023 and only when it was pressed to do so in an email from the Crown advising that a meeting cannot be set with the TC unless and until defence decides. This is defence delay.

[46] During 11 court appearances, a CPT, a JPT and 3 court appearances after setting the trial date, defence never alerted any party it had any 11(b) concerns.

[47] This defence complacency was also evident on July 13, 2013 when all dates were set with the TC. Knowing his client’s 11(b) rights may be in jeopardy, defence chose to say nothing, and do nothing, for almost 5 months until December 6, 2023 when it filed its 11(b) materials.

[48] When asked by the court why defence did not alert any party to the issue, the response, in essence was that it did not have to. In my view, this constitutes defence inaction and delay that is not condoned by the Supreme Court. [13]

[49] I find defence delay is 175 days (5.8 months) as follows:

• 55 days from October 7, 2022 to December 1, 2022.
• 20 days from January 6, 2023 to January 26, 2023.
• 28 days from February 24, 2023 to March 24, 2023.
• 41 days from March 4, 2023 to May 4, 2023.
• 31 days from June 2, 2023 to July 3, 2023.

[50] The net delay is 526 days, or 17.5 months and is under the Jordan ceiling.

Step 3: Net delay comparison.

[51] The net delay of 526 days or 17.5 months. It is under the Jordan ceiling and so does not violate s. 11b of the Charter.

VI. Conclusion

[52] Both parties made submissions critiquing the other party’s conduct in the pursuit of eliminating the complacency Jordan aims to eliminate, and neither party fully accepted its own role in contributing to that end.

[53] In my view, on display is the continued lack of police resources put into providing disclosure in a timely manner, the Crown’s office not flagging every case that is set past the Jordan timeline as a priority, defence disregarding its duty to move the case forward, and waiting until the very last moment to notify the Crown and the court that their client’s right to a trial within a reasonable time is at issue well past the time either the Crown or the judiciary can ensure there is no violation.

[54] Despite the dissatisfaction with the police delay in providing the complainant’s statement in this case, as the net delay is below the Jordan ceiling, the application is dismissed.

[55] Both parties expended significant effort and time on submissions regarding whether the effect of the COVID-19 pandemic as a discrete and exceptional event, is still impacting cases before the courts now.

[56] I need not decide the issue but do make the observation that neither the Crown’s submission for an automatic 90-day deduction without an evidentiary basis relating to the case, the criminal legal system and the current status of the backlog in this jurisdiction, nor the defence submission that the criminal justice system is past the pandemic as though over 2 years of court closings, its cascading effects, and transformational change in the criminal justice system has no impact on the cases being heard today, were satisfactory.

[57] I thank both counsel for their very thorough material and able arguments.

Released: February 20, 2024 Signed: Justice Cidalia C. G. Faria