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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: January 9, 2024 Central West – Peel Region
BETWEEN:
HIS MAJESTY THE KING
- and -
PETER ROBBINS
S. 11(b) Charter Application
Heard before Justice S. Bernstein on December 1, 2023 Written Reasons for Judgment released on January 9, 2024
Counsel: Mr. T. McCann – counsel for the Respondent Mr. S. Balopoulos – counsel for the Applicant, Peter Robbins
S. Bernstein J:
Introduction
[1] Peter Robbins stands charged on an Information alleging one count of Assault simplicitor from October/November 2016, an allegation of a kick to the back when the complainant refused intimacy and four counts of sexual assault; one from December 2016 (forced vaginal penetration), one from April 2017 (forced vaginal intercourse), one from between November/December 2018, (forced vaginal and digital penetration), and finally an allegation stemming from sometime between May and June 2019 (forced anal penetration). The charges are historical and arise in a domestic context.
[2] Mr. Robbins has applied for a stay of proceedings on the basis that his right under s.11(B) of the Canadian Charter of Rights and Freedoms (the “Charter”) to be tried within a reasonable time has been violated.
[3] The applicant was arrested and charged with the offences on October 22, 2022. On October 5, 2023, the trial dates of May 6- May 10, 2024, with interim dates of January 19th, 2024, February 2, 2024, February 26, 2024 and March 13, 2024 for pre-trial motions.
[4] On October 16, 2023, defence counsel Ms. Scardicchio attended and obtained an 11(B)-motion date. Mr. Robbins has applied for a stay of proceedings on the basis that his right to be tried within a reasonable time pursuant to S. 11(B) of the Charter of Rights and Freedoms has been violated.
[5] The total delay from the date of the laying of the information to the anticipated end of the trial is 562 days, or 18 month and 14 days, just over the presumptive ceiling deemed appropriate in R. v. Jordan 2016 SCC 27, [2016] 1 S.C.R. 631.
[6] On December 1, 2023, the application proceeded, and I reserved my decision until today, January 9, 2024.
[7] This matter is relatively straight forward and can be summarized as follows:
(a) Mr. Robbins was arrested on October 22, 2022, and was released on an undertaking to appear for his first court Date on December 16, 2022.
(b) The information was sworn on October 26, 2022, and this is where the clock begins to tick.
(c) At the first set date on December 16, 2022, a designation of counsel was filed, and Ms. Netta appeared as agent, but there was no disclosure, though the Crown stated disclosure was imminent. It had been ordered by email on November 28, 2022, and responded to by the virtual crown by email the next day. Thus, the matter was adjourned to February 17, 2023, to receive it.
(d) Notice of available disclosure was obviously uploaded in the disclosure hub in an expeditious matter. I infer this because on February 8, 2023, a Judicial pre-trial was set for March 22, 2023.
(e) On February 17, 2023, Ms. Netta appeared and advised the court of the jpt date. The defence was awaiting the complainant’s criminal record and any disclosure regarding occurrences between the defendant and the complainant.
(f) On March 22, 2023, a Judicial pre-trial was held with Macpherson, J. Her Honour requested a schedule for booking the pre-trial motions 110, 90, 75 and 60 days before trial.
(g) On April 27, 2023, the motion and trial dates were scheduled with the assistance of the trial coordinator. Those dates were April 24, 2024, for motion one, July 10, 2024, for number 2, July 31, 2024 for the third motion, and September 11, 2024 for the final one. The trial date was set for November 18-22, 2024. It would have been obvious that 11B was in play with such a date being set. It was not indicated by the defence that 11(B) was in issue- see part 5 entry which mentions s. 278 and 276 motions, but not 11(B).
(h) When the matter appeared in court on April 28, 2023, the trial scheduling form was not in court, and so the matter was adjourned to June 30, 2023, to put the dates on the record. Meanwhile, the defence filed its notice of election on June 22, 2023.
(i) On June 30, 2023, Ms. Netta appeared as agent in court and put the above-mentioned dates on the record. The matter was then adjourned to the first motion date of April 24, 2024. 11(B) was not adverted to on the record at all. The matter was simply adjourned. There was nothing done by either party in the ensuing period between April and June, just over 60 days, to expedite the matter.
(j) In December 2022, 4 new Judges were appointed to preside in Brampton. Then, in Mid-July 2023, 3 more Judges were appointed. At the same time, per diem Judges continued to be available. This was due in part to the serious Covid 19 pandemic backlog that had accrued in Brampton.
(k) As a result, a covid backlog court was set up to deal with this backlog. The goal was to offer earlier dates to many cases that were in Jordan “jeopardy”. On September 7, 2023- an invitation was sent by the Crown’s office to defence counsel by email asking counsel to appear for a unilateral bring forward of the matter to September 14, 2023, to attempt to schedule earlier dates. At this time, defence counsel was off work.
(l) On September 14, 2023, agent for counsel Ms. Netta appeared in court. It is apparent that the defence firm had been told about the date where offers to set earlier dates were to be canvassed. Unfortunately, the associate in charge of the firm in Ms. Scardicchio’s absence did not have access to her schedule. Although there were multiple dates offered for the defence to appear to set a new date, the court was told that the matter had to be remanded to October 5, 2023, for counsel to appear. Justice Dellandrea, who was presiding on September 14th, opined that dates would be lost in the interim 3-week period. Although we cannot know what would have been offered, it is reasonable to assume that the earlier a date was set, the earlier the trial date could be. It was suggested by the court that someone get in touch with Ms. Scardicchio and get her dates so that the matter could be brought forward to a September date. This unfortunately did not happen.
(m) Ms. Scardicchio appeared on October 5, 2023, and indicated that she had been away on holidays, and this was her reason for not attending in September. The court offered several dates which were all within the 18-month Jordan guideline. These were January 29th-February 2nd, 2024 (No explanation), February 12-15th 2024 and March 21, 2024 (defence counsel on vacation), March 18-21, 25, 2024, March 27, 28 and April 8-10, 2024 (defence unavailable in April), and May 6-10, 2024 which was accepted by the defence, which preferred a five day block, thus not taking the March 27 and 28, 2024 dates. The defence felt that the pre-trial dates would be too tight if the March dates were set. The Crown was available for all dates offered and there was no indication that any of the dates were rejected because of a duty to another client.
(n) The original November trials dates of November 18-22, 2024 were vacated.
(o) The court offered several dates to fit in the four required motions. Ultimately, they were set for January 19, 2024, February 2, 2024, February 26, 2024, and March 13, 2024.
(p) On October 16, 2023, an 11(B)-date scheduled for December 1, 2023, was set. This motion was heard on the scheduled date and remanded to January 9, 2024, for the 11(B) judgement.
Legal Principles
[8] The applicable 11(b) framework is set out in R. v. Jordan, 2016 SCC 27. The Court of Appeal in R. v. Zahor, 2022 ONCA 449, at paras. 61-78, explained that applying the framework requires the court to identify and characterize the periods of delay. The steps are summarized below (citations omitted):
(1) Step 1: Calculate the total delay. The court must calculate the total delay, which extends from the laying of the charge to the actual or anticipated end of the trial;
(2) Step 2: Calculate the net delay. Net delay is calculated by subtracting defence delay from the total delay. There are two types of defence delay, each of which must be considered and, if present, subtracted.
(3) Step 2(a): Subtract delay that is waived by the defence. Delay that is clearly and unequivocally waived by the defence, either explicitly or implicitly, must be subtracted from the total delay;
(4) Step 2(b): Subtract delay that lies at the feet of the defence. Delay that is “caused solely or directly by the defence’s conduct” must also be subtracted from the total delay;
(5) Step 3: Compare the net delay to the applicable presumptive ceiling. The applicable presumptive ceiling is 18 months for cases tried in the provincial court. If the net delay is above the ceiling, the delay is presumptively unreasonable, and the Crown bears the burden of rebutting this presumption by demonstrating exceptional circumstances;
(6) Step 4: Consider exceptional circumstances. These circumstances do not need to be rare or uncommon; rather, they must lie beyond the Crown’s control, in that they are reasonably unforeseen or reasonably unavoidable and, in either case, result in delay that cannot be reasonably remedied by the Crown. In general, the Crown may satisfy its onus by relying on two categories of exceptional circumstances, being discrete events and particularly complex cases.
(7) Step 4(a): Consider discrete exceptional circumstances. Discrete exceptional circumstances are unexpected and uncontrollable happenings which lead to delay. They engage a quantitative analysis, in that the delay caused by discrete events is subtracted from the net delay for the purpose of determining whether the remaining delay continues to exceed the presumptive ceiling. Where the remaining delay continues to exceed the presumptive ceiling, even after accounting for discrete events that could not be reasonably mitigated by the Crown and the justice system, a stay will be entered unless the Crown can demonstrate that the remaining delay is justified in light of the particular complexity of the case.
(8) Step 4(b): Consider complexity. The remaining delay may be justified by the Crown where the case is “particularly complex”. It is worth stressing that the presumptive ceiling already accounts for the fact that criminal proceedings have become more complex over time. Therefore, in order to discharge its burden under this exceptional circumstance, the Crown must demonstrate that the case is particularly complex. Unlike the consideration of discrete events, an assessment of particular complexity engages a qualitative analysis. It demands an inquiry into whether the amount of remaining delay in excess of the presumptive ceiling is justified in light of the particular complexity of the case. For cases where the charges were laid after the release of the decision in Jordan, the analysis ends here. If the remaining delay cannot be justified based on the particular complexity of the case, a stay will be entered.
[9] If the remaining delay falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must show both that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and that the case took markedly longer than it reasonably should have. The Supreme Court in Jordan expressed an expectation that stays beneath the ceiling will be rare and limited to clear cases. See R. v. Jordan at paragraph 48.
[10] Every actor in the justice system is responsible for ensuring that criminal proceedings are carried out within a reasonable time. No party is permitted to remain passive in the face of delay. That is why defence waiver, inaction or tactics aimed at delaying a trial must be deducted from the total delay. (See Jordan at paras 63-64 and R v. Askov, [1990] 2 S.C.R. 1199 at pp. 1227-28)
[11] As Sopinka J. wrote in R. v. Morin, [1992] 1 S.C.R. 771: “The purpose of s. 11(b) is to expedite trials and minimize prejudice and not to avoid trials on the merits”.
[12] To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. This is because the Supreme Court accounted for procedural requirements in setting the ceiling. Such a deduction would run contrary to the accused’s right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions. (See Jordan at paras 65-66).
Issues to be Determined
[13] The total delay of 523 days, or 18.50 months is above the 18-month presumptive ceiling.
[14] The issue to be determined is whether there is defence delay that can reduce the total delay below the presumptive ceiling.
[15] The defence takes the position that there has been no defence delay and that the Crown languished in not taking action until the covid recovery court was established. This was from April 28, 2023, until September 14, 2023, a span of 4 months and 18 days.
[16] The Crown takes the position that there is three months and 29 days defence delay. The delay of three weeks between the first covid recovery date and the date counsel appeared, and the period from the final day of the first proposed dated, February 2, 2024, until the final day of the scheduled trial dates, ending May 10, 2024, equaling 3 months and 8 days. Thus, the crown argues that the net delay is far below the Jordan ceiling of 18 months.
Failure to Raise the Issue of Delay
[17] The initial trial was scheduled on April 26, 2023, and put on the record June 30, 2023. On the record before me, it appears clear that the first specific indication that the defence was concerned about the delay came when the defence set the 11(B) notice of motion on October 16, 2023, 203 days prior to the commencement of the trial and well within the rules.
[18] Recent case law suggests that it was incumbent on the defence to raise the possibility of the 11(b) much earlier, so that the Crown could take steps to ameliorate the delay. However, citing recent authorities, including J. West’s decision in R. v. Nigro 2023 ONCJ 41, and several from this jurisdiction including J. Caponecchia’s decision in R. v. Ahmed (unreported), J. Lai’s decision in R. v. A.D. (unreported), J. Daviau’s decision in in R. v. MacDonald (unreported) and J. Monahan in Kullab, 2023 ONCJ 458, it is apparent that both parties have a responsibility to ensure matters are brought to trial within the applicable time frame. The Crown also asserted that In this jurisdiction, courts have been apportioning the time as 50 percent Crown delay and 50 percent defence delay.
[19] The defence submits that the Crown bears the onus of ensuring accused’s persons are tried withing the 18-month time frame, so any delay should fall to the feet of the crown. He argues that Jordan speaks of the culture of complacency on both the Crown and defence sides. They argue that it was the crown’s duty to mitigate the delay post-haste and not wait 4 months and 18 days to do something about a November 2024 trial date that was way outside the covid ceiling. There is much force to this submission, as it is clear that the crown has a duty to mitigate cases where 11(B) is clearly in issue.
[20] However, it is problematic in the Court’s opinion, that the defence did not flag 11(B) as an issue either at the set date conference with the trial coordinator. This was after the brunt of the covid period, was no way of a time when it was nigh impossible to know when a trial date could reasonably be set. I do not find that covid 19 has had any impact on this case.
[21] The Supreme Court of Canada has made it clear that all participants in the justice system bear the responsibility of ensuring that accused persons are tried in a timely manner, see R. v. J.F. 2022 SCC 17:
[30] While Jordan does not indicate the point in time when an accused must bring a s. 11(b) motion, the Court has nonetheless been clear about how it wishes all participants in the criminal justice system to act: at all stages of the trial process, everyone must take proactive measures to remedy any delay and to ensure that the accused is tried in a timely manner (Jordan, at paras. 137-39; R. v. Thanabalasingham, 2020 SCC 18, at para. 9).
[31] The new framework marks a shift away from a retrospective approach and adopts a prospective standpoint that allows the various participants to know the bounds of reasonableness from the outset of the proceedings (Jordan, at para. 108; K.G.K., at para. 43). The predictability of the new framework makes the parties more accountable and encourages them to be proactive about delay (Jordan, at para. 112; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 36). In the case of the Crown, the prospective approach clarifies the content of its constitutional obligation to bring the accused to trial within a reasonable time (Jordan, at para. 112). As for the accused, the predictability provided by the new framework requires that they be an active part of the solution to the problem of delay in criminal cases (Jordan, at paras. 84-86 and 113).
[22] The Court in J.F. requires that an accused who sees delay ‘lengthening’ must respond proactively. The Court goes as far as to indicate that lateness in raising delay is contrary to the administration of Justice:
See paragraph [34] “An accused who sees delay lengthening must therefore respond in a proactive manner. Being proactive may mean filing a s. 11 (b) motion where the accused believes that their right to be tried within a reasonable time is not being or will not be respected (Jordan, at para. 85). Like any other application made by an accused, a motion of this kind must be brought "reasonably and expeditiously" (para. 85). Lateness in raising delay is contrary to the proper administration of justice, because such a practice serves to waste judicial resources. Indeed, the Jordan framework is specifically designed to eliminate inefficient practices that impact on the justice system (paras. 41 and 116). Bringing a s. 11 (b) motion before the end of the trial allows the accused to alert the Crown and the court to their concerns about delay. As a result, all parties can take proactive measures and cooperate to expedite the proceedings.”
And see paragraph [36] “In short, a duty to act proactively also rests on the accused. As a result, 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. As a general rule, this means before the trial is held. By the time the trial dates are set, the parties are generally in a position to know whether the trial delay will exceed the applicable presumptive ceiling, and the defence can raise any concerns it may have. However, it is not out of the question that, exceptionally, an infringement of the s. 11(b) right will reveal itself only once the trial has begun. In such a case, the accused must also act proactively. [emphasis added].”
R v JF, supra at para 34 and 36.
[23] I do not believe that J.F., or any of the authorities stand for the proposition that the Crown need not concern themselves further with their constitutional duty to bring matters to trial in a timely fashion. Rather, the clear instruction from the Court is that both parties must act proactively to ensure matters proceed to trial expeditiously. (Also see Jordan, at paras. 137-39 and R. v. Thanabalasingham, 2020 SCC 18, at para. 9). Thus, the Crown is required to prioritize which cases they will prosecute and respect the constitutional rights of each defendant.
[24] Defence counsel remaining silent and accepting a trial date past the Jordan ceiling cannot provide an inference of clear and informed waiver. It may, however, be a factor to consider in appropriate cases: see J.F. at paragraph 49 and R. v. Herman, 2023 ABCA 52 at paragraph 48, R. v. Hotaki (unreported) June 20, 2023 (Jones, J.)
[25] The question becomes when the defence should have reasonably been able to advise of their intent to bring the within application.
[26] This is a straightforward case with relatively few court appearances. Very quickly after the trial date was set, both parties would have recognized the first offered trial dates put this case far outside the presumptive ceiling. Unlike the case of Scott however, the motion was filed within the rules.
[27] At the time of the JPT, the matter was obviously well below the 18-month ceiling at 148 days or 4 months, 3 weeks and 4 days. Given the relatively expeditious pace of the case up until then, delay alarm bells would not be ringing as it would for cases whose Jpt’s occur close to or the 18-month ceiling. The real issue arises, on April 27, 2023, during the scheduling meeting with the trial coordinator. The Trial scheduling form, which is before this court on the motion, was completed. In the entry ‘pre-trial Motions/applications’, there is no mention of an 11(B)-charter motion. Therefore, it appears that an 11(B)-delay motion was not specifically flagged for the Crown at that time. Nor was it flagged by the defence the next day on the record in court, nor 2 months later. On June 30, 2023.
[28] I am willing to accept that the defence would have required some time to investigate the matter and seek instructions on whether to incur the added expense of bringing an 11(b) Application. This would only be prudent and professional. However, this, at the outside, should take no longer then 4-6 weeks. By that time, the defence should have been able to either review notes or receive at least some of the transcript, so that by July or mid August 2023, the defence should have been able to alert the Crown and the Court of their intention to protect the record and that an application would be forthcoming.
[29] Given that both parties did nothing to ameliorate the situation between April 28- September 14, 2023, how do I apportion that time? I find that this delay does not lay solely at the feet of the defence. The Crown could have taken steps to make it clear that the November 2024 trial was unacceptable. Unfortunately, it did not.do so.
[30] However, the Crown did flag this case to be included in matters which were to be eligible for the Covid backlog court. The matter was brought forward, albeit arbitrarily, to September 14, 2023. The system had taken steps to address the inadequacy of Judicial resources in Brampton by hiring many new Judges. As such, the system did not lay complacent.
[31] It is true that the defence is not expected to be perpetually available. Any successful defence practice will experience situations which make it impossible to do 2 cases at 1 time. Indeed, as case law suggests, one client’s interests should not have to be sacrificed for another’s.
[32] The problem there is nothing solid on the record to suggest that this was the case. Counsel is obviously entitled to take vacations and attend to other noncriminal law matters. We all need a vacation sometimes. However, I would have expected counsel to leave instructions with someone in her office – or at very least, an email address or phone number- where she could be contacted if urgent/important matters arose. This was not done, even though she has an excellent associate in Mr. Balopoulos and I am sure other helpful colleagues at the bar. As a result, precious time was wasted in an attempt to set up earlier dates as soon as possible. I agree that it is impossible to say if earlier dates were squandered as Justice Dellandrea suggested on September 14, 2023. However, it is certainly not speculation to suggest that if counsel would have communicated so that an earlier appearance in the backlog court could have been accommodated, then an earlier trial date may have been realistic. The defence chose not to avail itself of an earlier opportunity to set dates more in line with Mr. Robbins’ 11(B) rights.
[33] Be that as it may, Ms. Scardicchio did attend on October 5, 2023. Earlier trial dates in January, February and March were offered, but not accepted. The reasons were not to protect other client’s dates. It has been argued that there was not enough time to accommodate the four pre-trial motions required. Although I can see some merit to the first date, I do not share that opinion for the February 12-15, March 21, 2023 dates, nor the March 18-21, 25, 2023 dates. Given that counsel had been retained for many months and that there was over four months to February 12, 2024, and over 5 months to March 18, 2024, there was ample time for preparation and accommodation of the pre-trial motions. As a result, I find that given the crown was available for each of these dates and was willing to forego a key witness, thus jeopardizing the strength of their case for the March 18th, 2024, date Therefore, I find that these delays were clearly defence delay only.
[34] Therefore, I deduct the period of time between March 21, 2024, to May 10, 2024, a period of 50 days, or 1 month 2 weeks and 5 days from this period.
[35] I will deduct only 1 week from the September 14, 2023-October 5, 2023 period given the hasty circumstances of the way the covid 19 backlog court was set up. That adds 7 days to the 50 mention above.
Calculations
[36] The total delay in this case is 562 days. From that time, I find that the following amount of delay will be deducted:
(1) 57 days
[37] The result is a net delay of 507 days or 1 year 4 months, 2 weeks and 3 days or. 16.67 months
[38] In result the delay is slightly below the presumptive 18-months.
[39] In what is a very close call, the application is dismissed.
Released: January 9, 2024
S. R. Bernstein, J.