ONTARIO COURT OF JUSTICE
DATE: 2024 02 16 COURT FILE No.: Toronto 22 500003842
BETWEEN:
HIS MAJESTY THE KING
— AND —
BENJAMIN CHARLTON
Before: Justice Peter N. Fraser
Heard on: December 13, 2023 Reasons for Judgment released on: February 16, 2024
Counsel: B. Donohue, counsel for the Crown A. Richter, counsel for the accused Benjamin Charlton
Fraser J.:
[1] The applicant, Benjamin Charlton, stands charged with accessing and possessing child pornography. He was arrested, and an information was sworn, on August 24, 2022. The anticipated end date for his trial is January 10, 2024. This is a period of approximately 16 ½ months.
[2] The applicant claims his right to a trial within a reasonable time, as guaranteed by s. 11(b) of the Canadian Charter of Rights and Freedoms, has been violated and applies for a stay of proceedings under s. 24(1).
[3] On December 13, 2023, I ruled there was no breach of the applicant’s rights and dismissed the application with reasons to follow. These are the reasons.
Legal Framework
[4] According to s. 11(b) of the Charter, any person charged with an offence has the right to be tried within a reasonable time. The Supreme Court of Canada has long emphasized the importance of this right, stating in R. v. Jordan, 2016 SCC 27, at para. 19:
[T]he right to be tried within a reasonable time is central to the administration of Canada's system of criminal justice. It finds expression in the familiar maxim: ‘Justice delayed is justice denied.’ An unreasonable delay denies justice to the accused, victims and their families, and the public as a whole.
[5] The Supreme Court has directed that trials in the provincial courts should be held within 18 months. In R. v. Jordan, at paras. 46-47, the framework for assessing a claim under s.11(b) of the Charter was summarized in the following terms:
46 At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry).
47 If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.
[6] Courts deciding an 11(b) claim should first deduct defence delay and waivers from the total period of delay from the laying of the information to the end of the trial. If the net delay exceeds the presumptive ceiling, the burden shifts to the Crown to demonstrate exceptional circumstances. R. v. Coulter, 2016 ONCA 704 at paras 34-41.
[7] For cases above the ceiling, the Crown must show the delay was “reasonably unforeseen or reasonably unavoidable” and Crown counsel could not reasonably remedy the delays emanating from the circumstances: R. v. Jordan, supra, at para. 69; R. v. Perreault, 2016 ONCA 704 at para. 46. It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show it took reasonable, available steps to avoid and address the problem before the delay exceeded the ceiling. The Supreme Court has explained that “in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases”: R. v. Jordan, supra, para. 71.
[8] For cases falling below the 18 month ceiling, as the Supreme Court explained in Jordan, supra, at para. 48, the analysis is different:
If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) 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 establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. We expect stays beneath the ceiling to be rare, and limited to clear cases.
Application to the Present Case
[9] In the present case the applicant was arrested, and the information sworn, on August 24, 2022. The anticipated end date for his trial is January 10, 2024. The total period of time taken to bring this matter to trial is approximately 16 ½ months. There were no waivers. There are no periods of time that I would characterize as defence delay. The application turns on whether the defence has met its onus of showing the delay to be unreasonable, despite falling under the 18 month ceiling.
Sustained Effort to Expedite the Proceedings
[10] At the first branch of the test, the defence must show it took meaningful steps that demonstrate a sustained effort to expedite the proceedings. The conduct of the defence is not measured against a standard of perfection, nor should trial judges second guess every decision made with the benefit of hindsight: R. v. Jordan, supra, at para. 84-85.
[11] In this case, it is useful to divide the proceedings into three time periods. The first period runs from the laying of the charge to the time when the first trial dates were set. The second period runs from the setting of the first trial dates to the time of the trial confirmation date. And the third period runs from the confirmation date to the end of the trial.
First Time Period
[12] The information was laid on August 24, 2022. By October 13, 2022, the first appearance after show cause proceedings, Mr. Richter had been retained and had already received initial disclosure. By October 31, 2022, a Crown pre-trial had been held and counsel had requested additional items of disclosure, including the LACE report (indicating the number of items alleged to be child pornography on the two seized phones) and the Cellebrite report (containing a download of the complete contents of the devices).
[13] Counsel agreed to schedule a judicial pre-trial conference (JPT) before the outstanding disclosure had been provided. The JPT was set for January 5, 2023, but had to be adjourned as the material was not provided in time. Another JPT was scheduled for January 31, 2023. By that date the LACE report had been provided to counsel, but the Cellebrite report remained outstanding. The applicant could not take a position as to whether any Charter issues would be raised given the missing material. The JPT was conducted anyway, and a time estimate for trial was established.
[14] On March 28, 2023, counsel for the applicant agreed to set trial dates of September 28 & 29, 2023, even though significant items of disclosure were outstanding, including the Cellebrite report and an anticipated statement from the applicant’s roommate. To this point in time, I find the applicant’s actions did represent a sustained effort to expedite the proceedings.
Second Time Period
[15] For more than four months after the trial dates were set, the applicant does not appear to have taken any active steps to pursue the missing disclosure. The assigned Crown Attorney wrote to counsel on April 5, 2023 inquiring about the possibility of resolution, seeking clarification as to whether Charter issues would be raised, and offering more generally to be of assistance in the matter. Counsel for the applicant did not respond. There does not appear to have been any meaningful action taken by either side from that point up until the trial confirmation hearing of August 10, 2023. On that date, an agent for counsel advised the Court that critical disclosure was still missing.
[16] I would not characterize the applicant’s conduct during this four-month period of time as part of a sustained effort to expedite proceedings. It was clearly the Crown’s responsibility to provide the outstanding material. But where the defence seeks a stay of proceedings below the presumptive ceiling, it must demonstrate that it took a pro-active approach to advancing the case and avoiding foreseeable causes of delay. In this case, the outstanding disclosure was an obvious problem that loomed larger as the September 2023 trial dates approached. The defence waited more than four months to raise this issue with the Court or the Crown. By the time of the trial confirmation date on August 10, 2023, the trial date was already imperiled. I find the defence failed to take pro-active steps to secure the missing disclosure, and thereby protect the September trial dates, and could no longer be said to be making a sustained effort to expedite the proceedings.
Third Time Period
[17] In my view, what followed the trial confirmation hearing of August 10, 2023 did represent a sustained effort (by both sides) to expedite the proceedings. On August 14, 2023, the assigned Crown advised counsel for the applicant that police had categorized a significant number of additional images from the seized phones as child pornography. The total number of images had risen from under 20 to over 500. An updated LACE report was couriered to the defence that same day. The Crown also supplied the long awaited Cellebrite report. The applicant sought an adjournment of the September trial dates on account of this late disclosure. The Crown consented to the adjournment request, but advocated for a new judicial pre-trial conference on an expedited basis. Both counsel participated in the JPT while on their respective summer vacations. The Crown advised that the case would be given priority and she had been authorized by the head Crown Attorney to offer any date over the ensuing six months to conduct the trial. The new trial dates were set for January 9-10, 2024.
Markedly Longer Than Necessary
[18] At the second branch of the test, the defence must demonstrate the case took markedly longer than it reasonably should have. As the Supreme Court explained in Jordan, para. 91:
Determining whether the time the case has taken markedly exceeds what was reasonably required is not a matter of precise calculation. Trial judges should not parse each day or month, as has been the common practice since Morin, to determine whether each step was reasonably required. Instead, trial judges should step back from the minutiae and adopt a bird's-eye view of the case. All this said, this determination is a question of fact falling well within the expertise of the trial judge.
[19] The applicant argues the first trial dates, which were adjourned on account of late disclosure, should serve as a benchmark for what is a reasonable time to trial for this matter. The first trial dates were September 28 & 29, 2023, which was about 13 months after the information was sworn. The applicant argues the additional 3 ½ months to the expected completion of the trial is a markedly longer time, thereby justifying a stay of proceedings.
[20] It is well established that judges may draw on their knowledge of local conditions in evaluating a section 11(b) Charter claim: R. v. Jordan, supra, at para. 89; R. v. L.L., 2023 ONCA 52 at para. 21; R. v. Coates, 2023 ONCA 856 at paras. 4-6, 37-46 & 64; R. v. L.H., 2023 ONSC 5442 at paras. 15-24.
[21] In my view, a trial date at the 13-month mark is unusually fast. Toronto is a very busy jurisdiction and trials are commonly scheduled close to, or even after, the 18 month ceiling. Over the years, the Ontario Court of Justice in Toronto has put in place procedures to address the high volume of cases, including a robust judicial pre-trial process aimed at narrowing issues, facilitating the resolution of cases, and ensuring trial readiness. On November 1, 2023, the Court issued a province-wide practice direction entitled, “Jordan-Compliant Trial Scheduling” in response to the continuing problem of delay. The direction creates the expectation that matters will be resolved or set down for trial within 6 months. Trial dates are to be offered within 15 months. It is to be emphasized that these timelines were designed to reduce the time that matters were regularly taking to get to trial.
[22] The applicant relies on the decision of R. v. Belle, 2018 ONSC 7728, wherein Harris J. said this at para. 8:
[I]n a case with a missed first trial date like this one, we have a ready-made yardstick of the reasonable time requirements of the case: the delay to the first trial date. This is when the trial should have been heard and completed.
[23] The Court of Appeal considered this point in R. v. Campbell, 2022 ONCA 223 at paras. 24-28, where the decision in Belle was addressed directly in the following terms:
With respect, I do not agree that the first trial date necessarily provides a marker for the reasonable time requirements of the case. The practical reality is that first trial dates are often set optimistically when it is not certain that the parties will, in fact, be ready for trial. Indeed, that was the situation in this case in light of the issues with the co-accused. It must be recognized, given the pressures on the parties to set dates in order to keep the case moving forward, that a first trial date may be more aspirational as to timing than it is realistic.
[24] In my view this was such a case. The first trial dates were set with significant pieces of disclosure outstanding, including the Cellebrite report (containing the complete download of the contents of the seized phones). The defence took the position it could not indicate whether any Charter motions would be brought in the absence of that report. At that time the parties also anticipated a witness statement would be forthcoming from the applicant’s roommate (though police were never ultimately able to interview him). It should also be observed that child pornography cases typically involve a significant amount of post-arrest investigation: R. v. C.M., [2022] O.J. No. 5984 at para. 20. In the present case, the preparation of the LACE report required the lead investigator to personally view and categorize over 160,000 images and 4,800 videos. That work continued after the first trial dates were set, as evidenced by the updated LACE report that was disclosed in August 2023 (increasing the number of images by a significant margin). Clearly, much remained unsettled when the first trial dates were set.
[25] This is not to say the Crown should be excused for its failure to provide disclosure well enough in advance of the trial to allow it to proceed. Once the first trial dates were set, a viable timeframe should have been established with the police for the provision of the outstanding material. The delay flowing from the adjournment falls at the feet of the Crown. However, this does not in and of itself establish the first trial dates as the appropriate measure of a reasonable time to trial, nor make the total delay “markedly longer” than was reasonably required to complete the case.
[26] In declining to treat a first trial date as an appropriate measure of the reasonable time to trial, the Court of Appeal stressed that trial scheduling is an amalgam of several factors, and observed the difference between when a trial might be happen to be completed and when it should be completed as a matter of constitutional law: R. v. Campbell, supra, at para. 27-28. The Court found support for this proposition in the following passage from Jordan, supra, at paragraph 88:
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.
[27] More generally, I would observe that time to trial depends on a great many constantly shifting variables, including: the total number of cases in the system at any given time [1]; the number of cases proceeding to trial as opposed to being resolved [2]; the number of court dates being consumed by trial continuations; the number of in-custody matters receiving priority; whether the practice of double-booking trials is employed in anticipation of some collapsing [3]; the availability of Crown and defence counsel on the specific trial dates offered [4]; annual leave dates of police witnesses; and reasonable fluctuations in staffing levels among Crown attorneys and the judiciary.
[28] The stars may well align on occasion to yield early trial dates for certain cases. However, in light of the numerous and highly variable factors influencing the time to trial, it would be short-sighted and unrealistic to treat such cases as a benchmark by which all other trials should be measured.
[29] The expected end date for this matter is 16 ½ months after the laying of the charge, which is well under the presumptive ceiling of 18 months. In a busy jurisdiction like Toronto, that timeframe is not unreasonable. In all the circumstances, I do not find the matter took markedly longer than it reasonably should have.
Conclusion
[30] The Supreme Court has expressed that stays of proceedings under the presumptive ceiling are expected to be rare. I find the applicant has failed to meet his burden under both branches of the test set out in Jordan. I am not satisfied the defence took meaningful steps that demonstrate a sustained effort to expedite proceedings. And I do not find the matter took markedly longer it reasonably should have.
[31] I find no breach of the applicant’s right to a trial within a reasonable time under s. 11(b) of the Charter. The application is dismissed.
Released: February 16, 2024 Peter Fraser Signed: Justice Peter N. Fraser
Footnotes
[1] R. v. Titus, 2022 ONSC 3484 at paras. 13-18. [2] R. v. R.D., 2020 ONCA 23 at paras. 39 & 42. [3] R. v. Murley, [2006] O.J. No. 1063 at para. 13-14. [4] R. v. Coates, supra, at para. 62.
