Court File and Parties
COURT FILE NO.: CR-23-50000298-0000 DATE: 20240115
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING Respondent – and – GIVONN BOWEN-WRIGHT Applicant
Counsel: I. Islow, for the respondent R. Handlarski, for the applicant
HEARD: December 5, 2023
RULING
(Application Pursuant to ss. 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms)
1On May 29, 2023, Givonn Bowen-Wright attended the Superior Court of Justice (“SCJ”) in Toronto to begin his trial on firearm possession charges. As is often the case in this jurisdiction, the trial could not proceed because no judge was available. Despite the best efforts of counsel for the Crown and Mr. Bowen-Wright, the trial could not be rescheduled until the first week of December, and was scheduled to end about 30 months and 43 days after Mr. Bowen-Wright was first charged. As this period exceeds the 30-month ceiling for trials in the SCJ established in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, Mr. Bowen-Wright has applied to have the proceedings stayed on the basis that his s. 11(b) Charter right to a trial within a reasonable time has been infringed.
2The Crown opposes the application and submits that there were periods of defence delay, in particular arising out of the defence counsel’s unavailability during the fall of 2023. Once the defence delay is deducted, the Crown submits, the net delay is below the ceiling. In the alternative, the Crown submits that any delay over the ceiling is justified on the basis that this was a particularly complex case.
3The central issue on this application is the treatment of defence unavailability where a trial has to be adjourned through no fault of the defence. In this case, both the Crown and the defence had availability at various periods between the end of May and December, but the December date was the earliest on which both parties and the court were available. Nonetheless, the Crown submits that because it was available as early as September, all subsequent delay should be attributed to the defence, even though the defence had available dates earlier than that.
4As the Supreme Court of Canada made clear in Jordan, at para. 111, the days of determining s. 11(b) applications by engaging in “complicated micro-counting” are over. Courts must instead conduct a global assessment based on a “bird’s eye-view” of the case: Jordan, at para. 97. In this case, the trial did not proceed as scheduled because, as is frequently the case in this jurisdiction, no judge was available. This is not an acceptable state of affairs which can be remedied by expecting defence counsel to make themselves available on short notice. Counsel for both parties did everything they could to protect Mr. Bowen-Wright’s s. 11(b) rights, which were imperilled solely because of institutional shortcomings. The fact that they were unable to do so is not the fault of the defence, nor was this a particularly complex case. The delay in this case was unreasonable. The charges are stayed.
I. FACTS
A. Arrest – The Murder Charge and Appearances in the Ontario Court of Justice
5The applicant was arrested on April 26, 2021 and charged together with three co-accused with second degree murder and various firearm possession charges. He appeared in the Ontario Court of Justice (“OCJ”) several times over the course of a few months while the defence awaited disclosure. A judicial pre-trial (“JPT”) was held on September 3, 2021. On September 23, 2021, the parties scheduled a preliminary inquiry to commence on May 30, 2022.
6On the first day of the preliminary inquiry, Crown counsel advised the court that he had concluded that there was no reasonable prospect of conviction on the murder charge or any of the other charges faced by the co-accused. As a result, those charges were withdrawn, leaving the applicant charged alone with the firearm possession offences. As he was no longer eligible to have a preliminary inquiry, the matter was adjourned to June 22, 2022 so that the applicant could consider how to elect his mode of trial. He ultimately elected to have his trial in the SCJ before a judge and jury.
B. Initial Appearances in the Superior Court
7The applicant’s first appearance in the SCJ was on July 15, 2022, at which time the matter was adjourned to August 12, 2022 as a JPT had been scheduled for July 22.
8On August 12, 2022, an agent appearing on behalf of the applicant’s counsel requested that the matter be adjourned for three weeks to seek instructions on whether to re-elect the mode of trial:
AGENT: Your Honour, [defence counsel] has been on vacation for the past two weeks. He needs to discuss the potential of the election. So I have instructions to request to adjourn this matter for three weeks to September 2nd to allow for that discussion.
CROWN COUNSEL: That’s agreeable, thank you.
The matter was accordingly adjourned to September 2, 2022. As will be seen, the respondent takes the position that this was not a legitimate request and that this period of time ought to be deducted as defence delay.
9On September 2, 2022, a seven-day trial before a judge and jury was scheduled to begin on May 29, 2023.
C. Adjournment of the May Trial
10On May 29, 2023, the parties appeared before Goldstein J., who advised the parties that there was no judge available to conduct the trial. The parties were advised that this was “the next matter in priority” and it was adjourned to the following day.
11On May 30, 2023, the parties advised Goldstein J. that the applicant was prepared to re-elect his mode of trial and that they had agreed on a number of facts and now believed that the trial could be done in three days. Goldstein J. advised them that there were still two trials for which no judge was available and that it was very unlikely that the matter would be reached. The matter was adjourned to June 2, 2023 on the understanding that the parties would be contacted if a judge became available that week. This did not occur.
D. Efforts to Find New Dates
12On the same day that the trial was adjourned, counsel began corresponding about finding new trial dates. Defence counsel advised the Crown that he expected another matter of his to resolve, in which case he would be available during the weeks of June 12 and June 19.
13Later that day, Crown counsel proposed the weeks of September 18 and October 2 and inquired whether defence counsel had any available dates in July or August. Defence counsel replied that he was unavailable during the weeks of September 18 and October 2, but was available the week of July 31. The Crown does not appear to have responded to the suggestion of the July date.
14On June 2, 2023, defence counsel advised the Crown that he was now available during the weeks of June 12 and 19. On June 6, Crown counsel responded in an e-mail as follows:
The TC [Trial Coordinator] will not permit us to set this matter the week of June 19-23/23. As I understand it has been very challenging getting matters on recently. Please advise whether you have any other dates in the fall. The previous dates provided (Sept 18/23 [7 days]; Oct 2/23 [5 days]) were specific to Toronto West but we will canvass with the other Boroughs if you have other dates to suggest. [1]
Defence counsel responded the same day:
I have no other dates in the fall. The next dates I have are February 5, 2024, to February 16, 2024. I am going to write an e-mail to the trial coordinator to explain the situation. I had a two-week trial that collapsed in that timeframe. Unless they have already filled that slot, it is difficult for me to understand why the trial cannot be that week.
I am not sure I mentioned this date before, but I can also do August 21, 2023 to August 25, 2023. Any chance this can work?
Crown counsel responded that the week of August 21 did not work because of “witness issues” and said, “I’m going to suggest we start canvassing other dates. If you get traction with the Trial Coordinator, we can circle back.” On June 6, 2023, the Trial Co-Ordinator confirmed that the June dates were not available.
15On June 15, 2023, Crown counsel advised defence counsel that she had checked the Etobicoke trial calendar and could offer the week of September 18, 2023 (which had been offered earlier) as well as weeks in late December 2023 and January to March 2024. Defence counsel responded that the only week he was available was February 19, 2024 and that “I currently do not have any availability in the fall, but will be in touch with you if anything collapses.”
16On June 16, 2023, the parties appeared before Presser J. and explained the efforts that had been made to find trial dates. Crown counsel stated:
So Ms. Culp [Crown counsel who had been corresponding with defence counsel] had indicated that she tried to make the summer dates work. Unfortunately, there was nothing that worked for the Crown’s schedule and Mr. Handlarksi’s [defence counsel] schedule. She is suggesting that we bring this back some time in the early fall, maybe early September to see whether anything has opened up. And the Crown will do their best to try and find earlier dates that work for everybody.
A trial was scheduled to begin on February 20, 2024 and the matter was adjourned to September 15, 2023 to canvass earlier dates.
E. Selection of the New Trial Date
17On September 13, 2023, Crown counsel advised defence counsel that the weeks of October 23, October 30, November 14 and December 4 (all of which would have the trial end after the Jordan ceiling date of October 26) had become available. Defence counsel responded that he had “just had a matter collapse” and was available on the week of December 4. The trial was accordingly scheduled to begin on that date on the next court appearance on September 15, 2023.
II. ANALYSIS
A. Overview of Applicable Legal Principles
(i) The Jordan Analysis
18Since 2016, applications pursuant to s. 11(b) of the Charter have been governed by the approach set out in R. v. Jordan, which is centred on the concept of a presumptive ceiling, that is, a period of time after which delay is presumably unreasonable unless the Crown can justify the length of time the case has taken to come to trial. In this court, that ceiling is 30 months. The period to which the ceiling must be compared is the time from when the charge is first laid until the end of the trial, less any defence delay: Jordan, at paras. 63-64.
19If the net delay after defence delay is deducted exceeds the ceiling, the delay is presumptively unreasonable unless the Crown can demonstrate that there are exceptional circumstances, which include discrete, unforeseen events and particularly complex cases: Jordan, at para. 71.
20If the net delay is below the ceiling, the delay is presumptively reasonable unless the defence can show that it took meaningful steps demonstrating a sustained effort to expedite the proceedings and that the case took markedly longer than it reasonably should have: Jordan, at paras. 82-91.
(ii) Shared Responsibility
21The Supreme Court of Canada had very specific objectives in establishing the new framework in Jordan. The Court wished to address a “culture of complacency towards delay” that permeated the criminal justice system, which had “come to tolerate excessive delays”: Jordan, at paras. 4, 40-41. It made it clear that the attitude and conduct of parties and courts had to change (at para. 107):
… [T]he ceiling will not permit the parties or the courts to operate business as usual. The ceiling is designed to encourage conduct and the allocation of resources that promote timely trials. The jurisprudence from the past decade demonstrates that the current approach to s. 11(b) does not encourage good behaviour. Finger pointing is more common than problem solving.
22Preventing delay is a shared responsibility. Crown counsel, defence counsel and the courts all have a role to play and are expected to cooperate with a view to ensuring that trials occur within a reasonable time: Jordan, at paras. 86, 137-139. The legislative and executive branches of government also have a role to play, as was made clear in Jordan, at para. 117:
We are aware that resource issues are rarely far below the surface of most s. 11(b) applications. 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.
(iii) Defence Delay
23As will be seen, the concept of defence delay plays a central role in this application. It was explained in R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at paras. 28-30:
In broad terms, the second component is concerned with defence conduct and is intended to prevent the defence from benefitting from “its own delay-causing action or inaction” (Jordan, at para. 113). It applies to any situation where the defence conduct has “solely or directly” caused the delay (Jordan, at para. 66).
However, not all delay caused by defence conduct should be deducted under this component. In setting the presumptive ceilings, this Court recognized that an accused person’s right to make full answer and defence requires that the defence be permitted time to prepare and present its case. To this end, the presumptive ceilings of 30 months and 18 months have “already accounted for [the] procedural requirements” of an accused person’s case (Jordan, at para. 65; see also paras. 53 and 83). For this reason, “defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay” and should not be deducted (Jordan, at para. 65).
The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. As we said in Jordan, the most straightforward example is “[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests” (Jordan, at para. 63). Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted (Jordan, at para. 64).
B. Overall Delay and Positions of the Parties
24The applicant was charged on April 26, 2021 and his trial was scheduled to end on December 8, 2021. The parties agree that the total delay is 956 days, which exceeds the 30-month ceiling by 1.4 months, or 43 days. [2]
25The parties do not agree on whether there was defence delay. The applicant takes the position that there was none. The respondent submits that there were two periods of defence delay: 21 days resulting from a defence adjournment request on August 9, 2022 for the applicant to consider whether to re-elect and 77 days following the rescheduling of the trial due to defence unavailability.
26If the applicant is correct, the net delay exceeds the ceiling. The Crown submits that if this is the case, the delay is justified based on the complexity of the case.
27If the respondent is correct, the net delay is below the ceiling. The applicant submits that if this is the case, the delay is nonetheless unreasonable because he made sustained efforts to expedite the proceedings and the matter took markedly longer than it reasonably should have.
C. Defence Delay – The Adjournment Request to Obtain Instructions
28As noted, the respondent submits that 21 days should be deducted for the period between August 9, 2022 and September 22, 2022, an adjournment requested by the defence in order to obtain instructions as to electing the mode of trial.
29The respondent’s submission that this was an illegitimate defence request appears to be based on a handwritten note made by the JPT judge on the JPT form that was completed on July 22, 2022. At the top corner of the first page of the form, the JPT judge had written and underlined “Practice Ct. Aug 12/22.” Immediately below this, she wrote, “will get instructions to elect 5 day judge or set 7 day jury.” The respondent submits that this should be taken to mean that defence counsel had undertaken to get instructions on the election prior to the August 12, 2022 practice court appearance and because he did not do so, the adjournment he requested for that purpose should be deducted as defence delay.
30There are two reasons why I do not accept the respondent’s submission. First, while the JPT judge noted that the next court appearance was on August 12 and also noted that the defence would obtain instructions on re-election, it is not clear that the two are related. I am not prepared to infer from these notations that defence counsel made an undertaking to obtain instructions by that date. The possibility of re-election is always discussed at JPTs because trials by judge alone are more expeditious and less time consuming than jury trials. The note on the JPT form indicates that the issue was discussed and counsel indicated that he would obtain instructions, but it is not clear that he said that he would do so by August 12.
31Second, it is not clear on this record that an earlier trial date would have been set if the defence had made a decision about the election earlier. The JPT notes suggest that the election had a bearing on the length of the trial, but it is not clear that it had any bearing on its timing.
32As discussed later in these reasons, the defence behaved responsibly throughout the proceedings and made repeated efforts to prevent delay. The adjournment was requested on the second appearance in the Superior Court in a case that had dramatically shifted from a murder charge to a firearm possession charge only a few months earlier. Given this history, I am not prepared to conclude that this request for a brief adjournment to consider the applicant’s election was not “defence actions legitimately taken to respond to the charges.” The election is an important step in the proceedings and an accused who takes times to consider it should not risk losing his right to a trial within a reasonable time: R. v. Barrett, 2022 ONSC 6334, at para. 30.
D. Defence Delay – Defence Unavailability Between September and December
(i) Overview of the Issue
33The second period that the respondent submits should be deducted as defence delay is between September 18, 2023, the first date offered by the Crown and the court after the trial did not proceed on May 29, and the trial date of December 4, 2023, a period of 77 days. The Crown submits that this entire period is defence delay based on dicta in Jordan and other cases that “the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not”: Jordan, at para. 64; R. v. Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741, at para. 22; R. v. Thanabalasingham, 2020 SCC 18, 447 D.L.R. (4th) 310, at para. 9; R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at para. 44; R. v. Mallozzi, 2017 ONCA 644, 390 C.R.R. (2d) 57, at para. 34.
34The respondent argues that because the trial would have been completed in the week of September 18 but for the defence’s unavailability, all of the subsequent delay was caused by the defence. There are several reasons why I cannot accept this submission.
(ii) Crown and Court Unavailability
35First, the portion in para. 65 of Jordan on which the respondent relies was immediately qualified by the observation that “[h]owever, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable.” The Crown submits that I should conclude that the Crown and the court were available for the entire period after September 18 because defence counsel had said that he did not have availability in the fall, so there would have been no point in the Crown looking for additional dates. In my view, that is not a reasonable inference on this record.
36The fact that defence counsel said that he was unavailable in the fall did not relieve the Crown of the responsibility of looking for new dates. Counsel’s calendars are not written in stone. Matters collapse and availability changes. Defence counsel had already offered two weeks because another matter had resolved, and eventually accepted the December 4 date for the same reason. The Crown has far greater access to court scheduling information than did the defence.
37In any event, the Crown did not stop looking for dates after defence counsel said that he had no availability in fall. Rather, in September the Crown offered four additional weeks that had not been offered earlier. It is reasonable to conclude that at the time the Crown offered those weeks, those were the only weeks that were available. As a result, I can and do infer that the Crown and/or the court were not available during the weeks of September 25, October 9, October 16, November 6, November 20 and November 27. It follows that it would be unfair to attribute the entire 77-day period to the defence.
(iii) The Need for a Contextual Approach
(a) No “Bright Line” Rule
38Second, the dicta in Jordan must be read in light of several recent authorities, the latest of which is R. v. Hanan, 2023 SCC 12, rev’g 2022 ONCA 229, 161 O.R. (3d) 161. There, the Court stated, at para. 9:
Like the majority and the dissent below, we reject the Crown’s proposed “bright-line” rule according to which all of the delay until the next available date following defence counsel’s rejection of a date offered by the court must be characterized as defence delay. We agree with van Rensburg J.A. and Tulloch J.A., as he then was, at para. 56, that this approach is inconsistent with this Court’s understanding of defence delay. Defence delay comprises “delays caused solely or directly by the defence’s conduct” or “delays waived by the defence” (Jordan, at para. 66). Furthermore, “periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable” (para. 64). All relevant circumstances should be considered to determine how delay should be apportioned among the participants (R. v. Boulanger, 2022 SCC 2, at para. 8). We share the view of the majority and dissenting judges in the Court of Appeal that, in the circumstances of this case, it is unfair and unreasonable to characterize the entire period between June and October 2019 as defence delay (paras. 59 and 136).
39It is now clear from Hanan and other cases that rather than apply a “bright line” rule, a “contextual approach” that considers all of the relevant circumstances of the case must be applied to determine how delay should be apportioned: R. v. Boulanger, 2022 SCC 2, 469 D.L.R. (4th) 63, at para. 8; R. v. Albinowski, 2018 ONCA 1084, 371 C.C.C. (3d) 190, at para. 46; Hanan (C.A.), at paras. 54-56, per van Rensburg J.A., at paras. 136-137, per Nordheimer J.A., dissenting; R. v. Zahor, 2022 ONCA 449, at paras. 101-102.
(b) Relevant Factors
40The factors that must be considered when applying the “contextual approach” will vary depending on the circumstances of each case. In determining what delay, if any, should be attributed to the defence because of defence unavailability, the following factors will usually be relevant:
- the reason for the need to reschedule and whether it was caused by the defence;
- the extent to which the defence was available;
- the reasons for defence unavailability;
- the extent of the notice given of the new available date.
(c) The Reasons for Rescheduling
41Why a trial had to be rescheduled will be important in determining how to apportion subsequent delay. Where the defence is responsible for the need to reschedule, it is more likely that delay caused by defence unavailability will be found to be “caused solely or directly by the defence’s conduct.”
42The principle established in R. v. M.(N.N.) (2006), 2006 ONCA 436, 209 C.C.C. (3d) 436 (Ont. C.A.), at para. 23, that “a party who causes an adjournment is responsible for the entire period of delay until the matter can be rescheduled, unless the other party is unavailable for an unreasonable length of time” continues to apply after Jordan: R. v. Picard, 2017 ONCA 692, 137 O.R. (3d) 401, at para. 117. There is no principled reason why the same approach should not be taken where the Crown or the court causes an adjournment. In such a case, the subsequent delay should not be attributed to the defence unless the defence is unavailable for an unreasonable length of time.
43In this case, the issue of the defence’s availability in the fall only arose because the trial did not proceed in May, an event for which the defence bears no responsibility: R. v. Bailey, 2023 ONSC 2814, at para. 39; R. v. Arth, 2022 ONCJ 216, 512 C.R.R. (2d) 233, at paras. 27-28.
(d) The Extent to Which the Defence Was Unavailable
44As the defence did not cause the adjournment, an application of the principle in M.(N.N.) results in the defence not being responsible for the subsequent delay unless the defence was “unavailable for an unreasonable length of time.”
45In R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 23, the court stated: “Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability.” The respondent submits that Godin, which was decided before Jordan, no longer represents the law. I do not agree. Nordheimer J.A. relied on Godin at para. 136 of his dissent in Hanan and the Supreme Court of Canada specifically adopted that paragraph: Hanan (S.C.C.), at para. 9. See also R. v. Safdar, 2021 ONCA 207, 469 D.L.R. (4th) 447, at paras. 49-50; R. v. Cohen, 2023 ONSC 5713, at paras. 30-33; R. v. Joseph, 2023 ONSC 2833, at para. 33, R. v. Aden, 2023 ONSC 766, 523 C.R.R. (2d) 28, at para. 99; Barrett, at paras. 52-53.
46In this case, the defence was available on four different weeks on which the Crown and/or court were not: the weeks of June 12, June 19, July 31 and August 21. The Crown and the court were available on five different weeks on which the defence was not: the weeks of September 18, October 2, October 23, October 30 and November 13. However, assuming the trial would take five days, only the first two of these would have resulted in the trial finishing before the 30-month ceiling. In my view, both parties were reasonably available, and it certainly cannot be said that the defence was “unavailable for an unreasonable length of time.”
(e) Reasons for Unavailability
47Although the record is not entirely clear, I am prepared to infer that defence counsel was unavailable throughout the fall because he had matters scheduled for other clients. When he was offered the December date, he accepted it because one of those matters had fallen through. As was observed in Safdar, at para. 50, counsel cannot be expected to “compromise one client’s interests for another.”
(f) Notice
48When determining the extent to which a party is reasonably available, regard must be had to the degree of notice given to that party: Barrett, at paras. 51-54. Counsel are much more likely to be booked up nearer in the future. In this case, immediately after the May trial was adjourned, the Crown offered only the weeks of September 18 and October 2. It was not until September 13, 2023 that the weeks of October 23, October 30 and November 14 were offered, at which point they were only a month or two in the future.
(iv) Systemic Institutional Issues
49Jordan requires the court to take a “bird’s eye view” of the case. That view reveals that the trial in this matter was scheduled to end on June 6, 2023, almost five months before the Jordan ceiling date, but did not proceed because of institutional issues over which the defence had no control and which plague this court on an ongoing basis. Subsequently, the defence suggested four different weeks on which it could conduct the trial, none of which were acceptable to the Crown and/or the court. The Crown initially offered only two weeks. While it later offered three more, none of them would have resulted in the trial finishing before the Jordan ceiling date.
50While both parties behaved reasonably and cooperated in attempting to reschedule the trial, the fact remains that the need to reschedule was not the fault of the defence but, rather, systemic problems which continue to plague this jurisdiction. In R. v. Alli, 2023 ONSC 5829, another case where the trial did not proceed because no judge was available, Forestell J. stated (at paras. 21-25):
In April of 2023 when this trial was not reached because there was no judge available to hear it, this jurisdiction had seven judicial vacancies. There are still seven vacancies in this jurisdiction. The number of vacancies has remained essentially unchanged for at least a year. [3]
On May 3, 2023, 20 days after this trial was not reached because of a lack of judicial resources, Chief Justice Wagner expressed his concern about the chronic shortage of federally appointed judges. He pointed out that courts were operating with 10 to 15 per cent of their judicial positions vacant. [4] These comments are applicable to this jurisdiction.
Had the judicial positions in Toronto been filled, this case and others would not have been delayed.
There is nothing in the nature of this simple case that could be said to justify an exceptional period of delay. The Crown and the defence acted responsibly and cooperatively to move the case forward. The judge who heard the applications ensured that the ruling was delivered in time for the trial to proceed on the first scheduled trial date.
Judges of this Court are working at capacity. It is common for judges on the criminal team in Toronto to work through scheduled non-sitting weeks and even through vacation weeks to attempt to ensure that trials are heard in a timely fashion. All participants in the process have done everything possible to avoid delay. This case has taken longer than it should have because this court lacked the judicial resources to hear the case in a timely manner.
51I am aware that Alli was not followed in R. v. Martins, 2024 ONSC 146, where the court concluded that an adjournment caused by judicial unavailability was an “unexpected discrete event” (at para. 31). That conclusion appears to have been based on an assumption that the Trial Coordinator intentionally scheduled more trials than there were judges available in order to “chip away at the backlog” caused by the COVID-19 pandemic: Martin, at para. 33. In doing so, the court noted that the number of judicial vacancies was approximately the same as it had been prior to the pandemic.
52I am respectfully unable to agree with the reasoning in Martins for two reasons. First, as noted, trials in this jurisdiction are routinely adjourned because of judicial unavailability, so it is difficult to see how this can be viewed as an “unexpected discrete event.” Second, the Crown and the justice system have a duty to mitigate delay caused by discrete events: Jordan, at para. 75; Cody, at para. 48. Regardless of how many judicial vacancies there were before the pandemic, one obvious way to reduce the backlog of cases is to make sure that judicial vacancies are filled so that trials do not get adjourned. The state has failed to do this. [5]
53In my view, in the circumstances of this case, it would be unfair to apportion the majority of the delay occasioned by these systemic problems to the defence, as the Crown submits I should. As noted in Jordan, at para. 117, delay caused by the insufficiency of resources “is not merely contrary to the public interest: it is constitutionally impermissible, and will be treated as such.” The remedy for ongoing systemic delay cannot be an expectation that the members of the defence bar will compensate for it by making themselves available on short notice. To do so would be to allow delay to become part of “business as usual”: Jordan, at para. 107.
(v) Apportioning the Delay
54I am not persuaded that any of the 77-day period between September 18 and December 8 should be apportioned to the defence because it was unavailable to conduct a trial within the following two and half months. If I am wrong and some portion should be apportioned to the defence, it should be no more than a third to a half of that period, or approximately 26 to 39 days. This would bring the net delay to between 30.2 and 30.6 months. On any of these scenarios, the delay exceeded the ceiling. As a result, the delay is presumptively unreasonable unless the Crown can demonstrate that there were exceptional circumstances.
E. Particularly Complex Case
55The Crown submits that any delay in excess of the ceiling was justified on the basis that this was a particularly complex case. Crown counsel acknowledges that there is nothing complex about the case now, but submits that it was complex in its early stages when there were four co-accused charged with second degree murder.
56The circumstances in which the complexity of a case creates an exceptional circumstance justifying delay in excess of the ceiling were described in Zahor, at para. 105:
A case may be particularly complex where it requires a great deal of trial time or preparation time “because of the nature of the evidence or the nature of the issues”: Jordan, at para. 77 (emphasis in original). Voluminous disclosure, a large number of witnesses, significant expert evidence, charges extending over a prolonged period of time, multiple charges, several pre-trial applications, novel or complicated legal issues, numerous significant issues in dispute, multiple co-accused tried together, and an international dimension to the case are all examples of particular complexity: Jordan, at para. 77; R. v. Bulhosen, 2019 ONCA 600, 377 C.C.C. (3d) 309, at para. 79, leave to appeal refused, [2019] S.C.C.A. No. 423 (Bulhosen), and [2019] S.C.C.A. No. 370 (Kompon).
57While complex cases often involve serious charges, the fact that a charge is serious does not, on its own, establish complexity: R. v. Bulhosen, 2019 ONCA 600, 377 C.C.C. (3d) 309, at para. 49. Indeed, as observed in Jordan, at para. 78, “[a] typical murder trial will not usually be sufficiently complex to comprise an exceptional circumstance.”
58The Crown bears the burden of rebutting the presumption that delay in excess of the ceiling was unreasonable. The Crown has attempted to do so in this case on the basis that there were initially four co-accused and that there was “voluminous disclosure.” When I asked Crown counsel during submissions to elaborate on this, she replied that “there would have been” expert reports and cell tower evidence and pointed out that it took some time for complete disclosure to be made.
59A mere assertion by the Crown that the disclosure was “voluminous” is not sufficient to establish complexity. There is nothing in the record before this court to indicate the volume of the disclosure, the number of anticipated witnesses, or whether there were any legal issues that required extensive preparation. It appears that the disclosure that was provided by September 9, 2021, a little over four months after the charge was laid, was sufficient to allow the parties to schedule a preliminary inquiry. The preliminary inquiry was scheduled to take only seven days, and did not actually take place as the Crown withdrew the murder charge.
60This case bears none of the hallmarks of complexity. As a result, the Crown has failed to justify the delay in excess of the ceiling.
F. Delay Below the Ceiling
61Given my conclusion that the delay in this case exceeded the ceiling, it is unnecessary for me to consider whether this was one of the rare and clear cases where delay below the ceiling was unreasonable. However, I would note that the defence did appear to make sustained efforts to expedite the proceedings, and but for the systemic issues, the trial would have proceeded on May 29, 2023: Alli, at para. 26.
III. DISPOSITION
62The application is granted. There will be an order pursuant to ss. 11(b) and 24(1) of the Charter staying the proceedings.
Justice P.A. Schreck
Released: January 15, 2024
COURT FILE NO.: CR-23-50000298-0000 DATE: 20240115 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – GIVONN BOWEN-WRIGHT RULING P.A. Schreck J.
Released: January 15, 2024
Footnotes:
1At the time, there were four Crown Attorney’s offices in Toronto: Etobicoke (which was prosecuting the applicant’s matter), North York, Scarborough and Downtown. Trial time in the SCJ was allotted to each, as well as the Federal Crown.
2In accordance with R. v. Shaikh, 2019 ONCA 895, 148 O.R. (3d) 369, at fn.1, I have converted days to months and vice versa by treating each month as consisting of 30.417 days, which is approximately 365 divided by 12. Month figures are rounded to one decimal point and days are rounded to whole days.
3There has been one judicial appointment to the Toronto Superior Court since the release of Alli on December 11, 2023.
4https://www.cbc.ca/news/politics/supreme-court-wagner-trudeau-judicial-vacancies-1.6836145
5Since both Alli and Martins were released after this application was argued, counsel were invited to and did provide written submissions with respect to the impact of those decisions.
