Court File and Parties

COURT FILE NO.: CR-20-50000131 DATE: 20240903

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – JUSTIN EUROPE

Counsel: S. Rothman, for the Crown M. Hayworth, for Mr. Europe

HEARD: July 26, 2024

RULING

(Application Pursuant to ss. 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms)

SCHRECK J.:

[1] Justin Europe was charged with human trafficking offences in January 2019. His first scheduled trial date in this court did not proceed because of the COVID-19 pandemic. His second scheduled trial date did not proceed because of issues respecting the complainant’s attendance and because no judge was available to hear it. His third trial date was scheduled to begin on September 11, 2023, over 55 months after he was charged.

[2] Prior to his third trial date, Mr. Europe advised the Crown and the court that he intended to bring an application pursuant to s. 11(b) of the Charter. Then he decided not to do so. His trial took place and he was convicted. A sentencing hearing was scheduled, adjourned and then re-scheduled to take place on August 19, 2024. Less than a month before it was to take place, Mr. Europe brought a s. 11(b) application.

[3] The central issue on this application is the effect, if any, of an applicant’s failure to bring a s. 11(b) application prior to trial. The Crown submits that the lateness of the application is fatal to its success. The defence submits that the lateness may justify attributing some delay to the defence, but the overall net delay still exceeds the 30-month ceiling established in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 and is therefore unreasonable.

[4] For the reasons that follow, I conclude that the lateness of the application is not per se fatal, but that in the circumstances of this case it leads to an inference that a significant amount of the delay has been waived and that the net delay is below the ceiling. The application is accordingly dismissed.

I. FACTS

A. Charge and Proceedings in the Ontario Court of Justice

[5] The applicant was arrested on January 24, 2019 and charged with human trafficking and a number of related offences. After having a bail hearing at which he was released and receiving disclosure, he scheduled a preliminary inquiry to begin on January 8, 2020.

[6] The applicant specifically waived the period between January 9, 2020 and February 4, 2020, a total of 26 days, for the purpose of engaging in resolution discussions.

B. The First Trial Date

[7] The applicant was committed for trial on February 4, 2020. After conducting a judicial pre-trial, the applicant scheduled a jury trial in the Superior Court which was to begin on May 17, 2021 and last 10 days.

[8] On April 9, 2021, the applicant’s trial was rescheduled to June 20, 2022 because jury trials had been suspended due to the COVID-19 pandemic.

C. The Second Trial Date

[9] The trial did not proceed on June 20, 2022 because the complainant did not attend court despite having been subpoenaed and because no judge was available to conduct the trial. A material witness warrant was issued for the complainant and the matter was adjourned to June 21, 2022. On that date, Crown counsel advised the court that the complainant had been located but he was requesting an adjournment because she was unable to testify because of a medical issue.

[10] Although there was still no judge available to conduct the trial, defence counsel opposed the adjournment request and said the following:

You know, the adjournment is problematic because Mr. Europe has been – Your Honour knows the date that the Information was sworn, when he was arrested, to now.

But notwithstanding the accommodations from the Crown’s office, again you know, it’s been a long haul for everyone including Mr. Europe has three children. And so, naturally, I would, you know, under the circumstances I cannot disagree with my friend with regards to an adjournment, however, from a defence perspective, I would, I would essentially say, do not grant the adjournment. You know we’ve reached that point. We’ve had issues with the complainant. He is entitled to a speedier trial than he’s gotten.

[11] The presiding judge, Goldstein J., granted the adjournment:

Well, I’m going to adjourn it over. I am aware that there are other remedies that the defence may choose to try and take, and that’s fine. And [defence counsel] certainly knows the process. But I think it’s in the interest of justice. These are serious charges.

[12] Further adjournments took place while the parties had a judicial pre-trial in order to obtain new time estimates for trial and attempted to find trial dates on which counsel for both parties were available. On September 9, 2022, dates were set for a five-to-seven-day jury trial scheduled to begin on September 11, 2023.

D. The Aborted Section 11(b) Application

[13] On July 19, 2023, counsel for the applicant contacted the Trial Coordinator’s office to request a judicial pre-trial for the purpose of obtaining court time for an application pursuant to s. 11(b) of the Charter. The judicial pre-trial was held on July 25, 2023 before Croll J., who released an endorsement which stated:

A JPT was held this morning as defence now want to bring an 11(b) application. The trial is already set for September 11, 2023 and although I allowed the defence to bring the application, I pointed out that it was very late and not how things should be done. Counsel will contact the criminal office to obtain a ½ day slot for an 11(b) application, hopefully in mid-late August. There is some urgency here because of the pending trial date.

[14] The following day, a s. 11(b) application was scheduled to be heard on August 21, 2023. On August 17, 2023, counsel for the applicant advised the Crown and the Trial Co-Ordinator by e-mail that he would not be proceeding with the application.

E. The Third Trial Date

[15] The applicant’s trial began on September 11, 2023 and he re-elected his mode of trial. The trial ended on September 14, 2023, at which time judgment was reserved until September 29, 2023. On that date, the applicant was found guilty on some of the counts in the Indictment and not guilty on others.

[16] A sentencing hearing was scheduled to take place on April 4, 2024 but was adjourned at the applicant’s request. He expressly waived any delay resulting from the adjournment. A new sentencing hearing was scheduled for August 19, 2024.

[17] This application was brought by way of a Notice of Application filed on July 22, 2024 and was argued on July 26, 2024.

II. ANALYSIS

A. Section 11(b) and the Duty of Proactivity

[18] The Supreme Court of Canada’s decision in R. v. Jordan represented a dramatic change in how criminal trials in Canada were litigated. It brought to an end the “culture of complacency” that was all too common in our courts and replaced it with an approach based on predictability, transparency and fairness. Criminal defendants are no longer left to wonder how long is too long and know that unless the defence causes delay or there are exceptional circumstances, their trial must take place within a specified time frame or else the charges will be stayed.

[19] Effecting the culture shift required by Jordan has not always been easy and did not happen overnight. Like weeds in a garden, complacency will quickly return if efforts to remove it are not sustained. Preventing this imposes a duty on all who play a role in the administration of justice. As recently affirmed in R. v. J.F., 2022 SCC 17, 468 D.L.R. (4th) 216, at para. 1, “everyone must take proactive measures to prevent delay and to uphold the right to be tried within a reasonable time guaranteed to an accused by s. 11(b) of the Canadian Charter of Rights and Freedoms.” This includes the defence.

[20] The duty of proactivity requires all parties, including the defence, to actively avoid creating delay and make efforts to rectify it when it occurs. But as it is the defendant’s constitutionally-protected rights that are ultimately at issue, there is an additional duty on the defence, as explained in J.F., at para. 3:

Given that the Jordan framework offers greater predictability and clarity and encourages all parties to act proactively, it follows, in my view, that an accused must raise the unreasonableness of trial delay in a timely manner. As a general rule, in the context of a single trial, an accused who believes that their right to be tried within a reasonable time has been infringed must act diligently and apply for a remedy before their trial is held.

Later in the judgment, at paras. 34-35, the court stated:

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.

It is generally recognized that an accused who raises the unreasonableness of delay after trial (R. v. Rabba (1991), 64 C.C.C. (3d) 445 (Ont. C.A.)), and particularly after conviction (R. v. Warring, 2017 ABCA 128, 347 C.C.C. (3d) 391, at para. 11; R. v. C.D., 2014 ABCA 392, 588 A.R. 82), is not acting in a timely manner.

[21] Despite these pronouncements, the Court expressly recognized that “an accused may in some circumstances be justified in bringing such an application later”: J.F., at paras. 3, 36.

[22] In this case, the applicant did not bring his s. 11(b) application before trial. He brought it after he was convicted. It is clear from J.F. that the application is “late.” Two issues arise from this: (1) Are there circumstances in this case that justify the lateness of the application? (2) If not, what are the consequences of the lateness?

B. Is the Lateness of the Application Justified?

[23] As noted, the requirement that a s. 11(b) application be brought before trial is not an inviolable rule and is subject to exceptions. One example of such an exception, mentioned in J.F., at para. 26, is where the infringement of s. 11(b) only becomes apparent after the trial has begun. Another example may be where counsel made an error in calculating the relevant time periods (e.g. R. v Jama, 2021 ABQB 290, 486 C.R.R. (2d) 186, at para. 22). In some cases, a timely indication by counsel of an intention to file an application may be sufficient (e.g. R. v. Virk, 2021 BCCA 58, 403 C.C.C. (3d) 492, at para. 27).

[24] In this case, the only explanation given for the timing of the application was during submissions when counsel suggested that the legal landscape changed after the applicant’s trial because of two decisions from this court, R. v. Alli, 2023 ONSC 5829 and R. v. Bowen-Wright, 2024 ONSC 293, 545 C.R.R. (2d) 237, in which proceedings were stayed after trials had been rescheduled because no judge was available to hear them. In my view, while a significant change in the law might justify a late application, Alli and Bowen-Wright did not create such a change. They are trial level decisions which applied well-established principles. The applicant could have advanced the argument that was made in those cases but chose not to. This was a tactical decision.

C. The Consequence of Lateness

(i) Lateness Alone Does Not Constitute Waiver

[25] The more difficult question is what consequences flow from the lateness of the application. Long ago, Arbour J.A. (as she then was) held in R. v. Rabba (1991), 64 C.C.C. (3d) 445 (Ont. C.A.), at p. 447 that “the failure to move for a stay of proceedings, either before or at trial, would, in most cases, be fatal. The failure to move for a stay of proceedings would normally amount to a waiver of any claim which may arise under s. 11(b) of the Charter.” While the Court in J.F. cited Rabba, it also made it clear that “waiver of the delay cannot be inferred solely from the accused’s silence or failure to act”: J.F., at para. 44.

[26] Furthermore, while Rabba arguably suggests that the failure to act amounts to a waiver of the entire right to a trial within a reasonable time, J.F. at para. 46 clarifies that this cannot be correct:

Section 11(b) of the Charter states that any person charged with an offence has the right to be tried within a reasonable time. Such a person may waive a given delay, which will then be subtracted from the total delay (Jordan, at para. 61). It is important to note that, where “waiver” concerns the right set out in s. 11(b) of the Charter, “it is not the right itself which is being waived but merely the inclusion of specific periods in the overall assessment of reasonableness” (R. v. Conway, [1989] 1 S.C.R. 1659, at p. 1686, quoted in Jordan, at para. 61).

[27] It is therefore clear that a failure to act cannot, by itself, constitute waiver and even if it does, it cannot constitute waiver of the right itself, only specific periods of delay. This raises two issues in this case: (1) Does the lateness of the application constitute waiver? (2) If so, what time period has been waived?

(ii) The Circumstances in Which Waiver Can Be Inferred

[28] As noted, J.F. makes it clear that waiver cannot be inferred solely from an accused’s silence or failure to act. The Court explained what more is required for waiver to be inferred (at paras. 47-48):

Waiver “can be explicit or implicit, but in either case, it must be clear and unequivocal” (Jordan, at para. 61; see also Morin, [1992] 1 S.C.R. 771], at p. 790; Askov, [1990] 2 S.C.R. 1199], at p. 1228). In this sense, as the Court stated in Askov, an accused’s mere silence or inaction cannot indicate a waiver of delay:

The failure of an accused to assert the right does not give the Crown licence to proceed with an unfair trial. Failure to assert the right would be insufficient in itself to impugn the motives of the accused as might be the case with regard to other s. 11 rights. Rather there must be something in the conduct of the accused that is sufficient to give rise to an inference that the accused has understood that he or she had a s. 11(b) guarantee, understood its nature and has waived the right provided by that guarantee. Although no particular magical incantation of words is required to waive a right, nevertheless the waiver must be expressed in some manner. Silence or lack of objection cannot constitute a lawful waiver. [Emphasis added; pp. 1228-29.]

(See also Mills v. The Queen, [1986] 1 S.C.R. 863, at p. 929.)

Waiver must be proved by the prosecution (Askov, at p. 1229). For a court to find that delay has been waived, the accused must therefore take “some direct action from which a consent to delay can be properly inferred” (Askov, at p. 1229). The “mere silence of the accused is not sufficient to indicate a waiver of a Charter right” (Askov, at p. 1229; see also Mills, at p. 929). To be inferable, implicit waiver “requires advertence to the act of release rather than mere inadvertence. If the mind of the accused or his or her counsel is not turned to the issue of waiver and is not aware of what his or her conduct signifies, then this conduct does not constitute waiver” (Morin, at p. 790).

Citing Rabba, the Court went on in para. 49 to add that “Lateness in bringing a s. 11(b) motion for a stay of proceedings nonetheless remains an important factor in determining whether an accused has waived delay.”

D. Application to the Case at Bar

(i) Was There Implicit Waiver?

[29] In this case, is there “something in the conduct of the accused that is sufficient to give rise to an inference that the accused has understood that he or she had a s. 11(b) guarantee, understood its nature and has waived the right provided by that guarantee”? In my view there is.

[30] First, when the Crown sought to adjourn the trial on June 21, 2022, the applicant’s counsel opposed the request on the basis that the matter had taken too long to get to trial and asserted that the applicant was “entitled to a speedier trial than he’s gotten.” In granting the adjournment, Goldstein J. noted that that “there are other remedies that the defence may choose to try and take, and that’s fine,” which is a clear reference to the possibility of a s. 11(b) application. It is clear that by June 21, 2022, the defence was aware that the applicant’s s. 11(b) rights were in jeopardy.

[31] Second, and more importantly, in July 2023, the applicant’s counsel sought and was granted leave to bring a s. 11(b) application and court time was set aside for that purpose. Counsel then decided not to bring the application. This was clearly “advertence to the act of release.” The defence was aware of the potential s. 11(b) violation, considered the option of seeking a remedy, took steps to do so, and then decided not to. The only reasonable inference in these circumstances is that there was a waiver.

(ii) What Was Waived?

(a) R. v. Nigro

[32] But what did the defence waive? As noted, it could not have been the right itself. There have been several decisions since J.F. where courts have considered the effect of a late s. 11(b) application, although none of them involve applications brought after the trial, as in this case. In R. v. Nigro, 2023 ONCJ 41, 524 C.R.R. (2d) 1, the defence brought a s. 11(b) application nine months after trial dates were set and only four months prior to trial. West J. was of the view that the late filing of the application was “illegitimate conduct” and that the entire period from the setting of the trial date to the end of the trial “could be viewed as defence-caused delay”: Nigro, at para. 38. However, because he was of the view that the Crown also bore some responsibility for the delay, he apportioned half of the period to the defence.

[33] Several cases have followed Nigro in attributing to the defence 50% of the period between the setting of the trial date and the end of the trial where the defence failed to bring a s. 11(b) application in a timely fashion: R. v. Kullab, 2023 ONCJ 458, at para. 38; R. v. M.F., 2024 ONCJ 59, at paras. 34-39; R. v. Wang, 2023 ONCJ 177, at para. 29; R. v. McLeod, 2023 ONCJ 195, at para. 36; R. v. Eastman, 2024 ONCJ 277, at para. 47. See also R. v. Osei-Bekoe, 2024 ONSC 3490, at para. 26; R. v. Liu, 2024 ONSC 2022, at para. 55; R. v. Durant, 2024 ONSC 3341, at para. 26. The respondent submits that I should adopt the same approach in this case.

[34] In my view, the reasoning in Nigro and other cases does not apply in this case. In all of those cases, the s. 11(b) applications, while late, were brought prior to trial. Regardless of what waiver could be inferred from the lateness of the applications, it was clear that the defence was not content to have the delayed trial and took steps, however tardy, to seek a remedy for the anticipated Charter breach. This would have been the case had the applicant proceeded with the scheduled s. 11(b) application on August 21, 2023. But that is not what occurred.

[35] Furthermore, in Nigro and the cases that followed it, the delay was attributed to the defence not because of waiver, but based on the theory that if the defence had raised the issue earlier, steps could have been taken by the Crown to mitigate the delay. Whether or not it would have been feasible for the Crown to do so will depend on the facts of each case: R. v. Vallotton, 2024 ONCA 492, at paras. 30-31.

(b) R. v. Warring

[36] Another case dealing with a late s. 11(b) application is R. v. Warring, 2017 ABCA 128, 347 C.C.C. (3d) 391, which was cited with approval in J.F. In Warring, the accused did not bring a s. 11(b) application until after he was convicted. In paras. 11-13 (which are specifically cited in J.F., at para. 49), the Court stated:

The appellant failed to properly assert his 11(b) rights on a timely basis. The record clearly establishes that the appellant sat on these rights until after he was convicted, changed lawyers, and discovered that two other co-accuseds had successfully obtained stays of proceedings in the circumstances of their cases. We find support in this view in R. v. Rabba, [1991] OJ No 883, 3 OR (3d) 238, where Arbour J.A. (as she then was) made the following point when dismissing an 11(b) argument made for the first time on appeal:

In my view, the failure to move for a stay of proceedings, either before trial or at trial, would, in most cases, be fatal. The failure to move for a stay of proceedings would normally amount to a waiver of any claim which may arise under s. 11(b) of the Charter. To hold otherwise would amount to imposing a duty on the trial judge to examine, in each case, the entire history of the proceedings, on his or her own motion, in order to ascertain whether or not the trial was ready to proceed within a reasonable time. ... [E]ven if the accused need not assert that he wishes to exercise his right to be tried within a reasonable time, he must, at some relevant point, assert explicitly that his right has been infringed and seek the appropriate remedy.

We agree with the respondent that the trial judge made key findings of fact against the appellant that support the conclusion that he waived the delay or passage of time for the entire period from the laying of the charge to the filing of his motion after conviction but before sentencing. Jordan confirms that waiver in the context of inclusion of a specific period in the overall assessment of delay can be either explicit or implicit so long as it is unequivocal, meaning the accused has full knowledge of his or her rights, including the effect the waiver will have on those rights: Jordan at para 61.

The trial judge’s findings are also supported by the appellant’s trial counsel’s comments following conviction. Those comments support the inference that counsel was aware that delay was an issue and must have considered that delay had not prejudiced his client because he proceeded to trial without ever raising an issue about delay. His counsel’s comments further support the inference that he only considered that delay might be relevant as a factor to be considered in the appellant’s sentencing process. Those findings were reasonable in the circumstances. The trial judge’s conclusion also finds support in Rabba and, to a lesser extent, R. v C.D., 2014 ABCA 392, 588 AR 82.

[37] This case bears many similarities to Warring. However, I would not find that the applicant waived the entire period of time from the laying of the charge for several reasons. First, as noted earlier, J.F. makes it clear that waiver in the s. 11(b) context applies to specific periods of time and not to “the right itself.” I see no practical difference between deeming the entire period from charge to trial as being waived and waiver of the right itself.

[38] Second, on this record, it is simply not fair to infer that the entire period of time was waived. Much of the delay was caused by the COVID-19 pandemic and there was nothing the parties could do about it.

[39] Third, despite what was said in the passage from Warring quoted above, it appears that the Alberta Court of Appeal did not ultimately conclude that the entire period of time from charge to trial had been waived: Warring, at paras. 14-15.

(c) Waiver in This Case

[40] I would, however, infer that the entire period of time from September 9, 2022, when the trial dates were set, to September 14, 2023, when the trial ended, has been waived. Up to this point, the parties had been working together to try to obtain earlier dates but had been unsuccessful. Once the trial date was set, however, it would have been apparent to the applicant that there would be a s. 11(b) violation. The prospect of such a violation had clearly been in the minds of the parties at the time Goldstein J. adjourned the second trial date on July 21, 2022. By that point, it was incumbent on the applicant to “respond in a proactive manner” and to do so “reasonably and expeditiously”: J.F., at para. 34. As noted, the applicant later did express an intention to bring an application but then decided not to.

[41] In these circumstances, I infer that when the trial date was set on September 9, 2022, the applicant was fully aware that his s. 11(b) rights were in jeopardy and made a decision not to take any steps to obtain a remedy. He has therefore waived his s. 11(b) rights with respect to this period, a total of 370 days.

E. Other Potential Reasons for Delay

(i) Defence Unavailability

[42] To be clear, inferred waiver is the reason the period after the third trial date was set is being attributed to the defence. The respondent submits that since the Crown and the court were available to commence a trial on October 24, 2022 and the defence was not, the entire period from October 24, 2022 until when the trial actually took place in September 2023 should be considered defence delay. I would not find defence delay for this reason. As was noted in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 23, defence counsel are not required to “hold themselves in a state of perpetual availability” in order to protect their clients’ s. 11(b) rights. While there was at one some uncertainty about whether Godin continues to be good law after Jordan, it is now clear that it does: Bowen-Wright, at para. 45.

(ii) “COVID backlog”

[43] Nor would I attribute any delay to “COVID backlog,” as the respondent submits that I should. I appreciate that when he adjourned the trial on July 21, 2022, Goldstein J. made comments about ongoing delay caused by “COVID hangover.” However, the reality is that the trial could have proceeded if a judge had been available and a judge could have been available if the numerous judicial vacancies in existence at the time had been filled: R. v. Constantine, 2024 ONSC 2626, at paras. 62-68; R. v. Downey, 2024 ONSC 2157, at paras. 41-46; R. v. Shaikh, 2024 ONSC 774, at para. 56; Liu, at paras. 51-52; Alli, at paras. 21-25; Bowen-Wright, at para. 50. Fortunately, the Superior Court in Toronto is now at full complement, so this issue is unlikely to arise again.

F. Calculating Net Delay

[44] The analytic framework to applied to a s. 11(b) claim is well established. The court must determine the total delay from the time the charge was laid to the end of the trial and deduct from that any delay attributable to the defence as well as any delay attributable to exceptional circumstances, including discrete events. The net delay is then compared to the applicable ceiling, which in this case is 30 months: R. v. Musclow, 2023 ONCA 565, at para. 22; R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-40.

[45] In this case, the parties agree that the total delay is 1696 days and that 26 days were waived prior to committal. They agree that 399 days of delay are attributable to the COVID-19 pandemic, which is an exceptional circumstance. This leaves 1271 days, or 41.8 months. For the reasons outlined earlier, I would attribute a further 370 days to the defence on the basis of inferred waiver. This leaves a net delay of 901 days, or 29.6 months, which is below the 30-month ceiling. The applicant does not submit that this is a case where delay below the ceiling amounts to a s. 11(b) violation.

III. DISPOSITION

[46] The application is dismissed.

Justice P.A. Schreck

Released: September 03, 2024