Court File and Parties

Ontario Court of Justice

Date: 2018-04-27

Court File No.: Ottawa 16-RD19639

Between:

Her Majesty the Queen

— and —

Kyle Sullivan

Before: Justice P.K. Doody

Heard on: April 4-5, 2018

Reasons for Decision on s. 11(b) Application released on: April 27, 2018

Counsel:

• M. Holmes, counsel for the Crown
• M. Reesink, counsel for the defendant

DOODY J.:

Overview

[1] Kyle Sullivan was originally charged with 8 separate counts. One count was dismissed at the beginning of trial at the request of the Crown. One count was dismissed at the end of the Crown's case at the request of the Crown. The defendant pled guilty to three counts at the beginning of the defence case. On April 5, 2018, after the trial concluded, I gave an oral judgment dismissing one count of assault on March 17, 2016 and convicting him of two counts of breach of recognizance on the same date.

[2] The trial commenced on April 4, 2018 and concluded, as it had been scheduled to do, on April 5, 2018. One information, charging offences alleged to have occurred on June 24, 2016, was sworn on the same day, June 24, 2016. A second information, charging offences alleged to have occurred on March 17, 2016, and June 10, 2016, was sworn some 3 months later, on Sept. 19, 2016. Those 2 informations were replaced by the 1 information before me, which was sworn on Nov. 9, 2016.

[3] The total delay between June 24, 2016, the date of the swearing of the first information, and April 5, 2018 (the last day of the trial) was 21 months and 12 days, or 3 months and 12 days beyond the 18 month limit established by R. v. Jordan, 2016 SCC 27.

[4] On February 6, 2018, Mr. Reesink, defence counsel, served and filed a Notice of Application seeking an order staying these charges on the grounds that Mr. Sullivan's right to a trial within a reasonable time, as guaranteed by s. 11(b) of the Charter of Rights and Freedoms, had been infringed. I heard submissions on the application before trial began on April 4, 2018. At the conclusion of submissions I reserved my decision so the trial could be completed within the time allotted to it. When I found the defendant guilty of 2 counts on April 5, 2018, I indicated that I would deliver my decision on this application on this date and that, if I granted the application, I would stay the proceedings before entering a conviction.

Part 2: Chronology

[5] The following chart sets out the relevant chronology:

June 24, 2016

First information (16-DV6662) was sworn, charging 2 breaches of recognizance, 1 count of dangerous driving, and 1 count of breach of probation all alleged to have occurred on June 24, 2016; defendant appeared before justice represented by duty counsel; adjourned to June 27 with the anticipation that he may have spoken to counsel in the interim and a plan will have been developed to consider his release.

June 27, 2016

Defendant was released on bail on consent; defendant represented by duty counsel and remanded to July 15 before Justice Perkins-McVey along with another unrelated information with which she was seized.

July 15, 2016

Defendant advised the court that, with respect to Legal Aid, he has been "legally approved; I'm still waiting on the financial part." Set to July 28, 2016 to allow for self-represented judicial pre-trial; Mr. Reesink was not on the record but was told to be available for a judicial pre-trial on July 28.

July 28, 2016

Remanded to Sept. 8, 2016, "to be spoken to"; unrelated information set to the same date for a trial.

Sept. 8, 2016

The other information before the court that date was set over to Sept. 28, 2016 for decision; information 16-DV6662 remanded to Sept. 15, 2016 "to have that proceed in the normal course".

Sept. 15, 2016

Mr. Reesink spoke to the matter and advised court that Mr. Sullivan has been denied Legal Aid, which had to be "sorted out". Mr. Sullivan agreed to "pursue some sort of remedy for Legal Aid." Remanded to Sept. 30. Crown counsel noted that disclosure was available for pickup by Mr. Reesink.

Sept. 19, 2016

Second information (16-DV6872) was sworn, charging a breach of recognizance, assault, and breach of probation all alleged to have occurred on March 17, 2016 and a breach of recognizance alleged to have occurred on June 10, 2016. Mr. Reesink appeared with defendant and these charges remanded to Sept. 28, 2016.

September 28, 2016

Information 16-DV6872 remanded to Sept. 30, 2016.

Sept. 30, 2016

Both informations were together, and both remanded to October 28, 2016 "so that his lawyer may conduct a counsel pre-trial in these two matters."

October 28, 2016

Mr. Reesink appeared for defendant and both informations were remanded at his request to Nov. 25 so he could conduct a counsel pre-trial in the meantime.

November 7, 2016

Counsel pre-trial was conducted on both informations.

November 9, 2016

New information (16-RD19639) was sworn, combining all of the counts from the first two informations.

November 25, 2016

Mr. Reesink's agent advised court that (a) defendant had been cut off Legal Aid but that "he had just been cut off EI" and Legal Aid was now considering his application; and (b) a counsel pre-trial had been conducted on Nov. 7 and (c) disclosure had been received and reviewed; she asked for a 2 week remand so the retainer could be confirmed; remanded to Nov. 9 "for Legal Aid and retaining counsel".

Dec. 8, 2016

Legal Aid confirmed that Legal Aid had been approved by posting information online.

Dec. 9, 2016

The transcript shows the following exchange between counsel: Mr. Reesink: On October 3rd, 2016 Mr. Sullivan's Unemployment Insurance was provided to Legal Aid. On the 31st of October my office re-sent that information to Legal Aid. On the 7th of November there was no Legal Aid. I held a CPT with Ms. Dobec [Crown counsel]. I requested to set up a JPT but there's still no Legal Aid. I don't want this to be delayed. I'm not waiving any 11(b), but I'd like a JPT, please. Ms. Dobec: Your Worship, I understand there's a possibility this may be set for trial. If there's no Legal Aid I'm assuming Mr. Reesink is not going on pro bono. So, I would suggest we do it as a self-rep JPT. If Legal Aid comes in that point it can still be done as a JPT in that Court, but at least that will move it forward. Mr. Reesink: That works for me, Your Worship. Courtroom clerk: I think the accused has to be here to set a self-rep JPT. The Court: Yeah, and we don't know of his availability. Mr. Reesink: Can we return to this Court and I'll provide him the date? Courtroom clerk: Did you want to hold it down so you can get a date today from her? Mr. Reesink: No, I have an appointment at the jail this morning. The Court: So, you want it over a week, Mr. Reesink, or what would you like? Mr. Reesink: How about this, how about we put it to mid-January and in the meantime, hopefully, the Legal Aid will have come through? The Court: January 13, is that – would that be a day that's suitable? Ms. Dobec: Well, Your Worship, it's just then, January 13th, then we might be adjourning just to set a self-rep JPT. So, perhaps just during the week so we can get the dates? Mr. Reesink: Yes. So, a week brings us to next Friday. The Court: December 16th, yeah. Mr. Reesink: That's fine, thank you. The Court: All right. Kyle Sullivan adjourned to December 16, number 5 court, 8:30 to seek dates for judicial pre-trial.

December 16, 2016

Mr. Reesink's agent appeared and advised court that he was seeking a remand to January 23, 2017, that she could not advise the court of anything further and that she could not speak to Mr. Reesink to get further instructions. An unidentified voice from the courtroom stated that he or she thinks it was for disclosure review. Crown counsel advised court that Mr. Reesink had had disclosure for quite a long time; that she had had a CPT with Mr. Reesink on Nov. 7, 2016; that he needed a further CPT and he can contact the Crown to set one up; and that if there is any further disclosure that is outstanding, he would have to send a letter; matter was remanded to Jan. 27, 2017.

January 27, 2017

Mr. Reesink requested a judicial pre-trial date, and one was set for Feb. 5th. Information was remanded to Feb. 10, 2017.

Feb. 5, 2017

Judicial pre-trial was held. Parties agreed that a 1.5 day trial could be set.

Feb. 10, 2017

Mr. Reesink advised court that he had received another disc of disclosure which he needed to review before he could commit to a trial date, and he had not had a chance to look at it yet. He asked for a week to do so and sought a remand to Feb. 17, 2017, waiving Mr. Sullivan's s. 11(b) rights for the intervening week.

Feb. 17, 2017

Mr. Reesink's articled student sought to set a date for a one and a half day trial. Crown counsel advised court that there was a warrant for Mr. Sullivan's arrest, of which Mr. Reesink's student was unaware. Information was remanded one week to Feb. 24, 2017. Mr. Reesink's student advised that they had requested a 911 call disclosure in October, 2016 and had not yet received it. Crown counsel checked system and stated "it looks like the 911 call has been here for quite some time. Do you know if Mr. Reesink has attended the audio visual office to pick it up?". Mr. Reesink's student advised that she does not know, but she would check.

February 24, 2017

Mr. Sullivan appeared personally with Mr. Reesink's articled student. Crown counsel advised that warrant for arrest of Mr. Sullivan was "not in the system" although it had been a week before. Mr. Reesink's student asked for a one week remand for disclosure purposes because Mr. Reesink picked up some disclosure a week earlier, on Feb. 17, and he would like some time to review it. Crown counsel advised that the 911 call had been available for a few months for pickup. Mr. Reesink's student refused to waive Mr. Sullivan's s. 11(b) rights. Matter was remanded one week to March 3, 2017, with trial dates to be set at that time.

March 3, 2017

Trial set for 1.5 days on April 4 and 5, 2018.

January 15, 2018

The Crown brought the charges forward to set a new trial date to avoid a potential stay on the basis of s. 11(b) of the Charter. The following exchange occured between Crown counsel and Ms. Ilie-Draga, Mr. Reesink's articled student: The Court: This is an application to bring the matter forward, I take it, Mr. Holmes? Mr. Holmes, Crown counsel: Yes. Right, so right now, I think it's, I mean, the overall delay is 22 months. I don't have enough of an informed understanding of this to know how much of that might be attributable to defence. We're prepared to move it up. It's a two-day matter, that's the only thing, and we're already set to go in April. If my friend has any information about 11(b) and whether that's a live issue, that will motivate us to bring it up. If it's not an issue at all, then we'll just leave it as is. Ms. Ilie-Draga: I don't have any instructions from Mr. Reesink on the 11(b) matter, but I can advise that April 4th and 5th should be good to to as they're already set. I don't have any information on bringing that matter of – further. So, I think it's probably best if we leave it for what it's been set as. I mean, I can always go back and get instructions, but we'd have to adjourn to speak to that, because I don't have those instructions at this moment. Mr. Holmes: I think – expect that we have some availability in February, and so, then, the 22 months of delay would overall – would be reduced by two months, leaving us with 20. I mean, I don't know if that's going to make a difference or not. I wonder if my friend has Mr. Reesink's availability and can we even do that today? Ms. Ilie-Draga: I don't have that today. I can advise that he has several upcoming trials and, unfortunately, he is out sick today, so I'm trying to cover for everything and, unfortunately, I don't have those – that information. Mr. Holmes: I wonder, then, if we could put the matter into COR court this Friday at 2:30, and in the intervening period we can look into earlier availability and whether 11(b) is a genuine issue or not an issue at all? The Court: That seems like a good suggestion. The matter was remanded to January 19th after Ms. Ilie-Draga agreed to that suggestion.

Jan. 19, 2018

The following statements were made by counsel: Mr. Holmes: The other reason for the case's appearance here today was to determine if 11(b) was likely to be a problem. Because if it, plainly, isn't a problem, then we leave it as is, and if it is a problem, we make efforts to move it up by, practically speaking, you know, three weeks or four weeks or a month as the case may be. The Court: Okay. Mr. Holmes: And so I don't mean to put Mr. Reesink on the spot, but I don't know what his plans are with respect to any 11(b) litigation involving this matter. Mr. Reesink: I ordered the requested permission form Legal Aid on the 18th for the transcripts, there are only 8. To answer the Crown's question, I think it's unlikely, but I have to read those transcripts and see whether Defence is responsible for any delays, etcetera. So, I suggest we leave the dates as is for the 4th and 5th, and if there is a Jordan application when I receive the transcripts I'll undertake to tell that Crown in court as soon I have an application ready. But in terms of percentages, I think it's less than 50 percent. Mr. Holmes: I'm prepared to proceed on that basis. I, ultimately, when Mr. Reesink gets other transcripts he's going to discover there are some 11(b) waivers, and there's a period of time, from my calculation, from December until late – or from November until January where the matter stalled in the Remand Court because counsel wasn't retained and Legal Aid was being pursued, and meanwhile, the clock kept ticking. So, although we're at 22 months, that would bring us back to 19 on that alone. It's also a transition case, I mean the charges here pre-date Jordan by about a month, or so. So I'm content with the April trial dates, and let's just leave it as is. The trial date was not changed.

Part 3: The Law

[6] The Supreme Court extensively changed the law about how to apply s. 11(b) of the Charter in R. v. Jordan, 2016 SCC 27, released on July 8, 2016. As the Court of Appeal explained in R. v. Coulter, 2016 ONCA 704, s. 11(b) applications are to be analyzed by the following framework:

(1) Calculate the total delay, which is the period from the charge until the actual or anticipated end of trial;

(2) Subtract defence delay, which results in the net delay;

(3) Compare the net delay to the presumptive ceiling (18 months for trials in this court);

(4) If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. Exceptional circumstances generally fall under two categories: discrete events and particularly complex cases.

(5) Subtract delay caused by discrete events from the net delay, leaving the remaining delay, to determine whether the presumptive ceiling has been reached.

(6) If the remaining delay exceeds the presumptive ceiling, the court must consider whether

(a) the case was particularly complex so that the time the case has taken is justified and the delay is reasonable; or

(b) whether, if the charges were laid before July 8, 2016, a transitional exceptional circumstance has been established. This has been established when Crown satisfies the court that

(i) the time the case took is justified because of the parties' reasonable reliance on the law as it previously existed; this requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and to the fact that the parties' behaviour cannot be judged strictly against a standard of which they had no notice; considerations of prejudice and the seriousness of the offence can inform whether the parties' reliance on the previous state of the law was reasonable; or

(ii) the case is of moderate complexity in a jurisdiction with significant institutional delay.

[7] The concept of "defence delay" includes both periods of time waived by the defence and delay caused solely by actions of the defence. The latter concept was described by Justice Moldaver, writing for the majority of the Court, at paragraphs 63 through 67 of Jordan:

63 The second component of defence delay is delay caused solely by the conduct of the defence. This kind of defence delay comprises "those situations where the accused's acts either directly caused the delay ... or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial" (Askov, at pp. 1227-28). Deliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests, are the most straightforward examples of defence delay. Trial judges should generally dismiss such applications and requests the moment it becomes apparent they are frivolous.

64 As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. This should discourage unnecessary inquiries into defence counsel availability at each appearance. Beyond defence unavailability, it will of course be open to trial judges to find that other defence actions or conduct have caused delay (see, e.g., R. v. Elliott (2003), 114 C.R.R. (2d) 1 (Ont. C.A.), at paras. 175-82).

65 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. We have already accounted for procedural requirements in setting the ceiling. And 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.

66 To summarize, as a first step, total delay must be calculated, and defence delay must be deducted. Defence delay comprises delays waived by the defence, and delays caused solely or directly by the defence's conduct. Defence actions legitimately taken to respond to the charges do not constitute defence delay.

[8] The Supreme Court returned to this subject in its decision in R. v. Cody, 2017 SCC 31. It wrote:

28 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).

29 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).

30 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). These examples were, however, just that -- examples. They were not stated in Jordan, nor should they be taken now, as exhaustively defining deductible defence delay. Again, as was made clear in Jordan, it remains "open to trial judges to find that other defence actions or conduct have caused delay" warranting a deduction (para. 64).

31 The determination of whether defence conduct is legitimate is "by no means an exact science" and is something that "first instance judges are uniquely positioned to gauge" (Jordan, at para. 65). It is highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. While trial judges should take care to not second-guess steps taken by defence for the purposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate to do so.

32 Defence conduct encompasses both substance and procedure -- the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.

33 As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extend to omissions as well as acts (see, for example in another context, R. v. Dixon, [1998] 1 S.C.R. 244, at para. 37). Accused persons must bear in mind that a corollary of the s. 11(b) right "to be tried within a reasonable time" is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to "actively advanc[e] their clients' right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and ... us[e] court time efficiently" (Jordan, at para. 138).

34 This understanding of illegitimate defence conduct should not be taken as diminishing an accused person's right to make full answer and defence. Defence counsel may still pursue all available substantive and procedural means to defend their clients. What defence counsel are not permitted to do is to engage in illegitimate conduct and then have it count towards the Jordan ceiling. In this regard, while we recognize the potential tension between the right to make full answer and defence and the right to be tried within a reasonable time -- and the need to balance both -- in our view, neither right is diminished by the deduction of delay caused by illegitimate defence conduct.

35 We stress that illegitimacy in this context does not necessarily amount to professional or ethical misconduct on the part of defence counsel. A finding of illegitimate defence conduct need not be tantamount to a finding of professional misconduct. Instead, legitimacy takes its meaning from the culture change demanded in Jordan. All justice system participants -- defence counsel included -- must now accept that many practices which were formerly commonplace or merely tolerated are no longer compatible with the right guaranteed by s. 11(b) of the Charter.

Part 4: Analysis

[9] The Crown concedes that the transitional exception principle does not apply in this case, the first information having been sworn on June 24, 2016 and all relevant matters having transpired well after Jordan was released on July 8, 2016.

[10] Nor does the Crown submit that exceptional circumstances apply in this case.

[11] My decision therefore turns on whether I conclude that defence delay accounts for at least 3 months and 12 days of the delay between the swearing of the first information and the conclusion of trial.

[12] The Crown also submits that time did not begin to run with respect to the charges laid on Sept. 19, when the second information 16-DV6872 was laid, until that date. The Crown relies on the decision of Paciocco J. (as he then was) in R. v. J.M., 2017 ONCJ 4, for that proposition. I agree. The total delay for those charges is 18 months, 2 weeks, and 1 day.

[13] Crown counsel submits that defence delay occurred in the following time periods, which together amount to over 4 months:

(1) Between Sept. 30, 2016 and Oct. 28, 2016;

(2) Between Nov. 25, 2016 and Jan. 27, 2017; and

(3) Between Feb. 10, 2017 and March 3, 2017; and

(4) A month when the defence was provided earlier this year with an opportunity to bring the charges forward for an earlier trial and declined.

[14] I will review each of those periods of time.

(a) Between Sept. 30, 2016 and Oct. 28, 2016

[15] On September 30, 2016, Mr. Reesink asked that the charges be remanded until October 28, 2016 so he could conduct a counsel pre-trial. On October 28, 2016 he advised the court that he had not yet conducted a counsel pre-trial. The matters were adjourned until Nov. 25, 2016 so a counsel pre-trial was conducted. A counsel pre-trial was held Nov. 7, 2016.

[16] Crown counsel submitted that a month was wasted by Mr. Reesink not conducting a counsel pre-trial during the month that he had said he would. Mr. Reesink responded to this submission by saying that he had no evidence as to why a counsel pre-trial was not held during this time but said that it only amounted to a two-week delay, since the pre-trial was held Nov. 7, only ten days after October 28.

[17] I agree with Crown counsel that this amounted to a 1 month (less 2 days) delay. Mr. Reesink undertook to have a pre-trial in the period between September 30, 2016 and October 28, 2016. He did not do so. As a result, he asked for a further 4 week remand for the same purpose. It does not matter when in that period of time the pre-trial was held. The effect was a one month delay.

[18] This was defence delay. As the Supreme Court characterized it, this shows marked inefficiency or marked indifference toward delay on the part of defence counsel. It results in a reduction of the total delay by one month less two days.

(b) Between Nov. 25, 2016 and Jan. 27, 2017

[19] Crown counsel submits that by November 25, 2016 disclosure had been received and reviewed, but nothing was accomplished until January 27, 2017 when Mr. Reesink requested a judicial pre-trial be set and he was given the date of Feb. 5 for that purpose.

[20] Mr. Reesink responds that, as he told the court on December 9, legal aid had not yet been finalized for his client so he could not set a judicial pre-trial at that date. I pointed out to him that his own materials included a print-out from Legal Aid's on-line information that showed that Legal Aid had been approved on December 8, the day before he told the court that it had not yet been approved. He responded that he had not checked the website before telling the court that it had not been approved.

[21] Even if that was a valid excuse, Mr. Reesink had no explanation for why he did not have his agent seek to set a judicial pre-trial date on Dec. 16, when the matter was next in court.

[22] In any event, it is not a valid excuse and it was not reasonable that Mr. Reesink had not checked the website before telling the court on December 9 that Legal Aid had not yet been approved. Had he done so, he would have known that it had been approved the day before. He would have been able to set a judicial pre-trial that day instead of on January 27. His failure to do so resulted in his providing inaccurate information to the court on December 9, information upon which the court relied. He failed to advance his client's right to trial within a reasonable time and failed to use court time efficiently. He continued this on Dec. 16 when he asked for a further adjournment of 1 month and 11 days until January 27, 2017. This was defence delay. It results in a reduction of the total delay by the time between December 9 and January 27, a further 1 month and 18 days.

(c) Feb. 10, 2017 to March 3, 2017

[23] On February 5, 2017 a judicial pre-trial was conducted. This is required for any case expected to exceed 1 day of trial time. The "salmon sheet" attached to the information shows that the parties agreed that a 1.5 day trial could be set. Yet on Feb. 10, defence counsel asked for a one week remand so he could review further disclosure. He waived s. 11(b) for that week. On Feb. 17, defence counsel advised the court that he had not yet received the 911 call disclosure and asked for a further week to do so. On Feb. 24, Mr. Reesink's articled student asked for a further one week to review the 911 call disclosure. The trial date was not set until March 3, 2017.

[24] Crown counsel has submitted that the 911 disclosure had been available for some time, and Mr. Reesink must have neglected to pick it up. That factual dispute is difficult for me to resolve. However, the Crown is not obliged to disclose every last bit of evidence before a trial date is set. (R. v. Kovacs-Tator, [2004] O.J. No. 4756 (C.A.); R. v. M. (N.N.), [2006] O.J. No. 1802 (C.A.))

[25] Furthermore, Mr. Reesink conceded that, since he had asked for the 911 call disclosure in October 2016 and was prepared to set a trial date at the judicial pre-trial on Feb. 5, 2017 when he knew that he did not yet have it, the late disclosure did not affect the setting of the trial date. As he said, he took the risk and when he got it, nothing much turned on it. This matter is of no consequence.

[26] Had the trial date been set on Feb. 10, 2017, 3 weeks would have been saved. This time was wasted because of defence delay. This reduces the total delay by a further 3 weeks.

(d) January 15, 2018 to April 5, 2018

[27] On January 15, 2018 defence counsel was asked to set an earlier date for the trial, which had been set for April 4 and 5, 2018 on March 3, 2017. Mr. Reesink's articled student attended without Mr. Reesink's schedule and with no instructions. Mr. Reesink was ill that day. It was put over for 4 days and when Mr. Reesink attended that day, he told the court he had not even ordered the transcripts of the prior court attendances (needed for a s. 11(b) application) until the day before, 3 days after the Crown brought to his attention the possibility of a s. 11(b) application. He told the court that it was unlikely that he would apply for a stay of proceedings, and asked that the trial dates remain unchanged.

[28] Three weeks later, on Feb. 6, 2018, this application was served and filed. It was returnable on April 4, 2018, the first day of the trial.

[29] Rule 2.4 of Criminal Rules of the Ontario Court of Justice requires that pre-trial applications be heard 60 days before the commencement of trial. This requirement exists because, among other reasons, it allows the court to efficiently use court time which would be unused if a pre-trial application such as this one resulted in proceedings being stayed and a trial not going ahead. If the court has adequate notice, the court time can be used. Without adequate notice, such time goes unused. The result is that defendants may be denied their right to a trial within a reasonable time.

[30] Rule 3.1 of the Criminal Rules requires that the Application be served and filed at least 30 days before the hearing. This is so the respondent has adequate time to prepare and file its response.

[31] The effect of these two rules is that an application, including one seeking a stay on the basis of a s. 11(b) breach, must be served and filed at least 90 days before trial. In this case, that means that the application should have been served and filed no later than January 2, 2018. Instead, it was served on Feb. 6, some 35 days later. Had it been served on January 2 as required, the Crown would have been able to ask that the trial be rescheduled for an earlier date. Since time was apparently available in February to hold the 1.5 day trial, and the Crown was ready to proceed during February, at least one month and 4 days would have been saved by serving the notice then.

[32] Instead of complying with his obligations to give such notice, defence counsel did not even address the issue until Crown counsel brought it to his attention by bringing the charges forward.

[33] The defendant, through his counsel, engaged in illegitimate defence conduct in two ways. Defence counsel did not take advantage of the opportunity for an earlier trial date when it was offered to him; instead, he let the Crown and the court believe that an application was unlikely. And by serving the application some 1 month and 4 days late, he prevented steps being taken to have the trial occur earlier. Counsel has an obligation to consider whether grounds exist and bring an application for a s. 11(b) stay in a timely manner. Mr. Reesink did not do so.

[34] Acting in this way is incompatible with the right guaranteed by s. 11(b). The result is defence delay of at least the 1 month and 4 days between the date the application should have been served and the date it was served, or the 1 month and 4 days between the end of February (during which month the trial could apparently have been held, based on Crown counsel's statements in court on January 15, 2018) and April 5, 2018, the end of the trial. This reduces the total delay by at least that time.

(e) Time taken to hear this application

[35] This application was argued on April 4, 2018, before trial began. That did not delay the trial. Had it been served in a timely manner, it could have been heard and decided before the trial began on April 4. Without deciding whether the time taken to hear such an application extends the total delay if doing so delays the completion of the trial, it is clear that any delay in deciding this application in this case arises solely from the late notice. That is defence delay.

Part 5: Conclusion

[36] Net delay is calculated by deducting from the total delay of 21 months and 12 days the defence delay of 4 months 13 days (comprised of 1 month less 2 days between Sept. 30, 2016 and Oct. 28, 2016; 1 month and 18 days between December 9, 2016 and January 27, 2017; 3 weeks between February 10, 2017 and March 3, 2017; and at least 1 month and 4 days between January 2, 2018 and Feb. 6, 2018 or between March 1, 2018 and April 5, 2018).

[37] The result of that calculation is a net delay of 16 months and 30 days. The net delay is less than 18 months. The application for a stay of proceedings is dismissed.

Released April 27, 2018

Signed: Justice P.K. Doody