Ontario Court of Justice

Date: February 28, 2024 Court File No.: BRAMPTON 22-1311

Between: His Majesty the King — And — Robert Gordon

Before: Justice S. Caponecchia

Heard: January 3, 2024 Written Reasons Released: February 28, 2024

Counsel: K. Holmes, counsel for the Crown / Respondent T. Brodie, counsel for Mr. Gordon / Applicant

Introduction

[1] The defendant was charged on January 31, 2022, with sexual assault. The information was sworn on February 3, 2022. A trial is scheduled on March 4-6, 2024. The total delay is 25 months and 1 day. The Applicant applies for a stay of proceedings pursuant to s. 11(b) of the Charter.

[2] I heard oral submissions on January 3, 2024. The Crown asked the court to summarily dismiss this application based on the Applicant’s failure to comply with the rules for service. The application materials were served on the Crown late, December 21, 2023. The Applicant opposed the Crown’s request.

[3] I dismissed the application after submissions were made. I indicated my reasons would follow. These are my reasons.

Relevant History

[4] On October 14, 2022, trial dates were selected. Trial dates were offered in February 2023 by the Trial Co-Ordinator. They were turned down because counsel were of the opinion that the February trial dates would not allow sufficient time for the pre-trial motions. The Crown intended to bring a motion related to the admissibility of cell phone evidence that had yet to be disclosed. The defence planned to bring a s. 276 application to introduce other sexual activity of the complainant. The next available date offered for trial was accepted, March 4-6, 2024. Pre-trial motions were scheduled for November 8, 2023, and January 3, 2024.

[5] On March 17, 2023, the Crown emailed the defence to notify them that the Crown would not be making a pre-trial application because, as it turned out, the Crown was not in possession of cell phone evidence. The Crown also asked the defence to confirm if they were still proceeding with a s. 276 application and canvassed the issue of delay. The defence did not respond to the Crown’s email.

[6] On November 1, 2023, the defence notified the Crown and Trial Co-ordinator that they would not be proceeding with a s. 276 application on November 8, 2023 (step 1) and January 3, 2024 (step 2). On November 8, 2023, the defence notified the Trial-Coordinator that they would like to use the date of January 3, 2024, for a s. 11(b) application.

[7] The defence filed their application materials with the court and Crown at 3:45 pm on December 21, 2023, 5 business days before the application was to be heard on January 3, 2024.

Analysis

[8] Appellate case law acknowledges a trial judge's power to summarily dismiss motions. Without that power, trial judges could not properly control the proceedings before them. [1] This court appreciates that dismissing a s. 11(b) application for failing to comply with the rules for service is a drastic step and a court should proceed cautiously.

[9] In the seminal decision of R v Blom, [2002] O.J. No. 3199 at para. 23 the Court of Appeal held:

Where a party complains of inadequate notice, it is crucial for the trial judge to consider the issue of prejudice: does the failure to provide adequate notice put the opposite party at some unfair disadvantage in meeting the case that is being presented? If there is no real prejudice, inadequate notice should not prevent consideration of the Charter application. If the inadequate notice does put the opposing party at a disadvantage, the court must consider whether something less drastic than refusing to consider the Charter argument, but still consistent with the goal of achieving "fairness in administration and the elimination of unjustifiable expense and delay", can be done to alleviate that prejudice. If so, that course should be followed in preference to an order refusing to entertain the Charter application.

[10] Since Blom and after R v Jordan, 2016 SCC 27 the Ontario Court of Appeal upheld a trial judge’s decision dismissing a s. 11(b) motion for failing to comply with the Rules of the Superior Court of Justice. In R v Kazman, [2020] OJ No 136 the court held:

15 The power to dismiss motions summarily, especially motions involving constitutional claims, must be exercised cautiously. Motions that advance constitutional claims should be addressed on their merits unless the broader interests of justice clearly demand otherwise: R. v. Loveman (1992), 8 O.R. (3d) 51, at pp. 55-56 (C.A.). In deciding whether to dismiss a motion summarily, the trial judge must have regard to the interests of the accused. The trial judge's focus cannot, however, be limited to the narrow specifics of the particular case. The trial judge must consider broader administration of justice concerns, including the need to conduct all litigation, including criminal litigation, in a fair, orderly, and efficient manner. It falls to trial judges to decide where the interests of justice lie in each specific case.

16 The broader administration of justice concerns were placed front and centre in the powerful reasons of the majority in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at paras. 137-141. Speaking specifically about the constitutional right to a trial within a reasonable time and the litigation that claims based on that right have spawned, Moldaver J. for the majority stressed that all participants in criminal litigation have a joint obligation to work co-operatively to effectively use limited available resources in order to bring cases to completion within a reasonable time: see also R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 1. No one, including self-represented accused, can be allowed to ignore court orders and deadlines while the constitutional clock runs down and valuable court resources are consumed. After Jordan, trial judges must engage in proactive case management of criminal trials. Litigants must cooperate in those case management efforts. Appellate courts must support those proactive steps by showing strong deference to case management decisions: Jordan, at paras. 138-139.

[11] Rule 2.4(1) of the Criminal Rules of the Ontario Court of Justice provides that s. 11(b) applications must be heard at least 60 days in advance of the trial date unless a court orders otherwise. [2] This rule was complied with. The application was heard on January 3, 2024, 61 days in advance of the trial on March 4-6, 2024. That said, this application was heard in accordance with this rule because the defence abandoned their pre-trial application and the time set aside for the second part of a s. 276 application was re-purposed for this s. 11(b) application.

[12] Rule 3.1(1) requires the Applicant to serve the application on the Crown and court 30 days prior to the application date. This rule was not complied with. The materials should have been filed by December 3, 2023. The defence filed their materials on December 22, 2023, 5 business days prior to the hearing date set on January 3, 2024.

[13] Rule 3.1(3)(b) states that a Court may shorten or lengthen the time for service of materials. I decline to abridge the time for service in this case for four reasons:

i. There is no evidence, nor any reasonable explanation provided during submissions, for the late filing of the application materials. ii. Abridging the time for service would be inconsistent with the fundamental objectives of the Rules and prejudicial to the Crown. iii. Abridging the time for service and entertaining the merits of this application would not be consistent with the Jordan decision. To do so would promote a culture of complacency. iv. This trial could have been conducted within the Jordan guidelines but for the change in positions by both parties.

Reason 1: No reasonable explanation for not following Rule 3.1(1)

[14] The absence of any reasonable explanation in evidence or submissions for the late filing in this case is highly determinative of the outcome of this ruling given the following relevant facts:

1. There was ample time for the application materials to be filed in accordance with the Rules. Specifically, there was over 14 months between the date when the trial was fixed on October 14, 2022, and the application on January 3, 2024.
2. On November 8, 2023, the defence notified the Crown and Trial co-ordinator of their intention to bring a s.11(b) motion on November 8, 2023. There was still time to file the necessary materials by December 3, 2023.
3. Transcripts were not a barrier to putting the Crown on notice of this application before November 2023.

Defence counsel was well positioned to decide whether to go forward with a s. 11(b) application before November 2023 because they were familiar with the history of this case. The same firm was retained from the first appearance on April 22, 2022, appeared on subsequent court dates, conducted a Crown resolution meeting and judicial pre-trial. On October 14, 2022, when the dates were fixed outside the Jordan guidelines, the defence could have scheduled a s. 11(b) motion date. Instead, they waited until November 8, 2023, to ask the Trial Co-ordinator for time for a s. 11(b) hearing and missed the deadline for filing their materials.

Also, when the defence contacted the Trial Co-ordinator on November 8, 2023, to arrange a time for a s. 11(b) hearing, they did not have any transcripts. Transcripts were ordered on November 30, 2023, 3 days before the application materials were due to be served.

[15] There was ample time to comply with the rules for service and no good reason for not doing so. The late service of the materials was entirely avoidable.

Reason 2: Abridging the time for service would be inconsistent with the fundamental objectives of the Rules and prejudicial to the Crown.

[16] Rule 1.1(3) obligates all counsel to act in accordance with the fundamental objective of the Rules, to comply with them, any practice directions, and orders of the court. Rule 1.1(1) and (2) sets out the fundamental objective of the Rules, which is to ensure that proceedings are dealt with justly and efficiently.

[17] The purpose of the rule with respect to service, is to facilitate the fair and expeditious determination of s. 11(b) Charter issues by ensuring that neither party is taken by surprise, both parties have adequate notice of the factual and legal basis of the Charter application, time to digest the materials and respond. That said, as the Court of Appeal stated in Blom, procedural rules are servants not masters. They are servants to the cause of the just and expeditious resolution of disputes. Procedural rules are important, but they are not to be rigidly applied without regard to their underlying purpose. [3]

[18] In this case I am satisfied that it would neither be fair, nor efficient, to abridge the time for filing the application materials.

[19] It would be unfair to abridge the time for service of materials because the Crown was prejudiced by the late service. The assigned Crown submitted, and I accept, that she was on holidays between Christmas and New Year’s and denied sufficient opportunity to respond in writing 15 days before the application as required by Rule 3.1(2). This court also accepts that the timing of the late service in this case deprived the Crown of adequate time to formulate a meaningful oral response because her first day back to work was the date of the hearing, January 3, 2024. This court is satisfied that the service of the Charter materials only 5 business days during the holiday season disadvantaged the Crown because it did not allow for sufficient time for the Crown to fully respond.

[20] Granting leave to abridge the time for service of materials in this case would also be inconsistent with the objective of efficiency. The Rules are meant to ensure matters proceed as scheduled, resources are used efficiently, not duplicated, and that matters are not adjourned. Late filings have the opposite effect. In a case such as this one, where there is no reasonable explanation for the late filing and there was ample time to comply with the Rules, the objective of efficiency weighs against granting the defence leave to abridge the time for service.

[21] In the course of submissions, the court was advised that the defence emailed the Crown on December 29, 2023, to inquire whether the Crown would be seeking an adjournment to respond to this application. An adjournment of a s.11(b) application due to late service is not an efficient use of resources. It requires the court and counsel to prepare more than once and additional court time to be set aside within the 60-day period before the trial. An adjournment in this case would impliedly require that this hearing be rescheduled less than 60 days before the trial, contrary to Rule 2.4(1). Section 11(b) applications are heard at least 60 days before trial and decided in advance of the trial for good reason. Successful applications heard in advance of the trial promotes the efficient and orderly use of judicial resources because when applications are successfully argued in advance, lawyers and defendants are spared from preparing for trials unnecessarily, witnesses are spared from attending court and court time can be re-allocated to accommodate other trials. [4] Entertaining this application after short service of the materials when there was ample time to follow the rules and no reasonable explanation for not having done so, would undermine respect for the court process and does not promote efficiency.

[22] As it happened, an adjournment of this application was also not practical. Unbeknownst to both the sides when the defence emailed the Crown on December 29, 2023, to canvass if the Crown would be asking for an adjournment, an adjournment was not feasible. This court was not sitting for a month between January 12 and February 13, 2024. A postponement of the application would have severely compromised this court’s ability to decide the application expeditiously in advance of the trial date.

Reason 3: Abridging the time for service and entertaining the merits of this application would not be consistent with the principles of Jordan. It promotes a culture of complacency.

[23] It is incumbent on the defence to put the Crown on timely notice when delay is becoming a problem and conduct all applications, including s. 11(b) applications, reasonably and expeditiously. [5] This did not occur.

[24] Most recently, the Supreme Court of Canada recognized a duty to act proactively also rests on the accused:

An accused who sees delay lengthening must respond in a proactive manner. Like any other application made by an accused, an s. 11(b) motion must be brought "reasonably and expeditiously." Lateness in raising delay is contrary to the proper administration of justice, because such a practice serves to waste judicial resources… [6]

The accused must indicate that their right to be tried within a reasonable time has not been respected and, where the circumstances require, bring a motion for a stay of proceedings in a timely manner. [7]

[25] In this case, the defence did not request a date for a s. 11(b) motion on October 14, 2022, when the trial dates were clearly scheduled after the Jordan deadline. Nor did the defence disabuse the Crown of the notion that delay was not in issue when the Crown emailed the defence on March 17, 2023. Had the defence requested a date for a s. 11(b) motion within a reasonable amount of time after the trial date was fixed, or responded to the Crown’s email, the Crown would have had time to mitigate the delay. The Crown could have taken steps to prioritize this sexual assault case over other cases to ensure it was tried by the Jordan deadline of August 3, 2023. The Crown could have included this case in a backlog initiative that took place between August and November 1, 2023. Instead, the defence did not respond to the Crown’s email and waited to schedule a s. 11(b) until November 8, 2023, well after the Jordan deadline had passed.

[26] The duty to act proactively is of particular importance in Peel, the busiest jurisdiction in the country. The late scheduling and filing of s. 11(b) motions in this jurisdiction is not the norm, however, nor is it rare. This case is not an anomaly. Abridging the time for service of the materials in this case would encourage a culture of complacency in Peel and would be contrary to the over-riding spirit of Jordan and cases that have followed.

Reason 4: This case could have been tried prior to the Jordan deadline.

[27] In deciding to dismiss this application for failing to comply with the Rule for service, I have also given consideration to the merits of this application. In particular, the conduct of both the defence and the Crown.

[28] No one suggested this case was complicated. Meaningful disclosure was made over the course of eight and a half months before the judicial pretrial on September 19, 2022. There was ample time before the judicial pre-trial for both sides to make fully informed decisions related to pre-trial motions.

[29] In March 2023, the Crown abandoned their pre-trial motion when they learned from police that they were not in possession of cell phone evidence. No reasonable explanation was given for why that information was not available before the judicial pre-trial. The Crown notified the defence in writing of their revised position on March 17, 2023 (prior to the Jordan deadline of August 3, 2023). The Crown also asked the defence to confirm they intended to bring a s. 276 application. The defence did not respond.

[30] The defence waited until November 1, 2023, the eve of the first stage of the s. 276 pre-trial motion scheduled for November 8, 2023, to notify the Crown that they were not bringing a s. 276 application. No explanation is before the court for the change in position. November 1, 2023, was well after the Jordan deadline had passed and the last day of the backlog initiative.

[31] This is all to say that had both parties taken the same positions they do today, at the judicial pre-trial held eight and half months after the charge was laid, I am confident that this 3-day sexual assault trial could have been accommodated within the Jordan guidelines. This court comes to this finding because on October 14, 2022, the Trial Co-Ordinator offered trial dates on February 21-23, 2023, and both sides declined them because the pre-trial motions they planned to pursue – and later abandoned -- could not be accomplished between October 14, 2022, and February 21, 2023. In other words, but for the Crown and defence’s change in positions, this case could have tried within the 18-month Jordan guidelines. This outcome underscores the necessity for both sides to come to a judicial pre-trial prepared and ready to make informed decisions about their case.

Conclusion

[32] There is no reasonable explanation before the court for not complying with the Rules, the Crown was prejudiced by the late service of this application and this case could have been tried within 18-months had counsel conducted themselves differently. For all these reasons, this s. 11(b) application is dismissed.

Released in Writing: February 28, 2024

Signed: Justice S. Caponecchia

Footnotes

[1] R v Kazman, [2020] OJ No 136 at para 14; R. v. Imola, 2019 ONCA 556, at para. 17; R. v. Blom (2002), 61 O.R. (3d) 51, at paras. 28-30 (C.A.) [Blom].

[2] Criminal Rules of the Ontario Court of Justice, SI/2012-30, s 2.4(1) [“the Rules”].

[3] R v Blom, 61 O.R. (3d) 51 (C.A.) at para. 21 [Blom].

[4] On November 1, 2023, a Practice Direction came into effect. It requires s. 11(b) applications to be heard at least four months before trial so that, if the application is granted and a stay of proceedings is imposed, the scheduled trial dates may be utilized for other matters. The objective of the Practice Directions is to provide for fair, timely and efficient determination of s. 11(b) Charter applications. See: Ontario Court of Justice Practice Direction: Section 11(b) Charter Applications - Ontario Court of Justice.

[5] R v Jordan, 2016 SCC 27, at para. 85.

[6] R v J.F., 2022 SCC 17, [2022] SCJ No 17, para. 34.

[7] Ibid, para. 36.