WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2018-10-25

Court File No.: Toronto 4817 998 16-75005886

Between:

Her Majesty the Queen

— and —

Cong Thanh Pham

Before: Justice William B. Horkins

Application for a Stay of Proceedings heard on: September 24, 2018

Ruling released on: October 25, 2018

Counsel:

• Ms. Meghan Scott — counsel for the Crown
• Ms. Lindsay Daviau — counsel for the accused Cong Thanh Pham

Decision

W. B. HORKINS, J.:

[1] Cong Pham is charged with sexual assault and other related allegations with respect to a former girlfriend. The charges were laid in December 2016, and the trial is set to proceed before me in December 2018; almost two years to the day after the Information was sworn. On September 24th, 2018, the accused brought an application for a Stay of the proceedings pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms, based on a claimed violation of his right to be tried within a reasonable period of time, contrary to section 11(b).

[2] Jordan mandates that time to trial delay in the provincial court is presumptively unreasonable where the delay exceeds 18 months.

[3] In Coulter, the Ontario Court of Appeal clearly articulated the appropriate framework of analysis in 11(b) applications:

A. The New Framework Summarized

34. Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).

35. Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, at para. 66).

36. Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).

37. 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 (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

38. Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached (Jordan, at para. 75).

39. If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).

40. If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).

41. The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the "Transitional Cases") (Jordan, para. 96).

B. Key Elements in the New Framework

(1) Defence Delay

42. Defence delay has two components: (1) that arising from defence waiver; and (2) delay caused solely by the conduct of the defence ("defence-caused delay") (Jordan, paras. 61 and 63).

43. Waiver can be explicit or implicit but, in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights (Jordan, para. 61).

44. Defence-caused delay is comprised of situations where the acts of the defence either directly caused the delay or are shown to be a deliberate and calculated tactic employed to delay the trial. Frivolous applications and requests are the most straightforward examples of defence delay (Jordan, para. 63). Where the court and the Crown are ready to proceed but the defence is not, the defence will have directly caused the delay (Jordan, para. 64).

(2) Exceptional Circumstances

45. If the Net Delay exceeds the presumptive ceiling, the onus is on the Crown to rebut the presumption of unreasonableness based on the presence of exceptional circumstances.

46. Exceptional circumstances lie outside the Crown's control in that: (1) they are reasonably unforeseen or reasonably unavoidable; and (2) Crown counsel cannot reasonably remedy the delays emanating from the circumstances once they arise. Such circumstances need not be rare or entirely uncommon (Jordan, para. 69).

[4] The total delay in this case is 24 months.

[5] Counsel have, helpfully, jointly isolated four specific periods in the chronology of this case over which they join issue as to whether those periods of time are deductible defence delay. The Crown submits that the appropriate calculation brings the net delay under the presumptive 18 months ceiling. The applicant submits that the appropriate calculation brings the net delay in well over the 18 months presumptive ceiling. The appropriate characterization of these four specific periods of time will determine whether the net delay is presumptively unreasonable or not.

[6] The four isolated periods of time are easily identified in the application materials:

• From May 12, 2017 to June 6, 2017. At the initial Judicial Pre-trial conference counsel for the accused would not make the election as to whether this would be a trial or preliminary hearing. The case management judge would not allow a hearing date to be scheduled prior to an election being made. The conference had to be adjourned for 25 days to permit counsel to obtain instructions.

• The second time gap focused on involves a delay of 62 days from April 3, 2018 to June 4, 2018. This is the difference between the date set for trial (June 4, 2018) and the earlier date offered (April 3, 2018) when the Court and Crown were available and the defence was not.

• The third timeframe isolated by counsel is a delay of 112 days, from June 4, 2018, when the first trial date had to be adjourned, through September 24, 2018. This delay was necessary to deal with a s. 278.1 third party records application. The Crown submits that the application was "frivolous".

• The fourth specific timeframe isolated by counsel is a period of 79 days from September 25, 2018, to December 12, 2018. This delay is from a date that the Crown says the trial could have commenced, accept for the unavailability of defence counsel, to a date that could have been set except for the unavailability of the complainant. The presently set trial date of December 17, 2018 was agreed upon to accommodate the exam schedule of the complainant.

ANALYSIS

Date	Event	Defence Delay
December 2016	16th – Charges laid	1
January 2017		2
		3
		4
April	13th – Crown Pre-trial	5
May	12th – Judicial Pre-trial – adjourned for election to be made	6
June	6th – Judicial Pre-trial #2 – trial date set for June 4, 2018	5 > 6 = 1
		7
		8
		9
		10
		11
		12
		13
January 2018		14
		15
		16
April	3rd – Court and Crown available – defence not	17
		18
June	1st – Disclosure given 4th – First trial date – adjourned	16 > 18 = 2
		19
		20
August	2nd – Third party application heard and records produced	21
		22
October	15th – Court and Crown available – defence not	23
		24
December 2018	12th – Defence and Court available – complainant not 17th – Trial date	22 > 24 = 2
	2 years	Net 19 months

CASE MANAGEMENT DELAY

[7] When this case was about five months into the intake process counsel met with Justice Wolski for a judicial pre-trial, a case management meeting. Case management meetings are mandatory, and are held with a view to facilitating the early resolution of cases. If a matter is not to be resolved, then the parties are expected to agree to a reliable time estimate for the matter to be heard and in effect, create a blueprint for the proceeding so that it can be properly scheduled into the court calendar.

[8] One of the clear directives from the Supreme Court in Jordan was that all parties, including the judiciary be proactive in moving criminal cases forward without unreasonable delay. Having a reliable blueprint for the future proceedings is essential in order to manage heavily booked trial lists. Trial continuations resulting from inaccurate trial time estimates are one of the most serious, chronic case management challenges in our court.

[9] The trial coordinator will not assign a trial date without the approval of the case management judge. In this case, the pre-trial judge advised counsel that he would not approve setting a hearing date until the accused decided whether he was electing for a trial or a preliminary hearing. Defence counsel was not prepared to make the election without instructions from her client. The meeting had to be adjourned until June 6 when the election for a trial in the Ontario Court of Justice was made and a trial date was set.

[10] Counsel must attend judicial pre-trials in a position to make fundamental decisions such as the election for mode of trial. It was entirely reasonable for the case management judge to insist on knowing the election prior to allowing a hearing date to be set. A period of approximately one month is a reasonable turnaround time to continue a judicial pre-trial. I have no hesitation in finding that this delay was caused by, and was for the benefit of the accused. This delay of approximately one month is deductible "defence delay" for the purposes of the Jordan calculation.

TRIAL DATE SCHEDULING DELAYS

Defence Delay prior to the first trial date

[11] The judicial pre-trial was completed on June 6, 2017. The accused elected to proceed directly to trial. All parties signed off on the established plan and time estimate, and the trial was set down to commence on June 4, 2018, almost 12 months into the future.

[12] The trial coordinator was able to offer the parties an earlier trial date of April 3, 2018; 62 days earlier than the trial date that was set. The later date was agreed upon to accommodate defence counsel's schedule.

[13] One of the somewhat arbitrary rules emanating from Jordan effectively overrules the approach in Godin, which offered more accommodation to the prior commitments of defence counsel. Jordan directs that any delay resulting from the unavailability of the defence when the Court and the Crown are available will be categorized as "defence delay". The only qualification that seems to have developed in the case law following Jordan with respect to this issue is that the date offered and declined has to have been a reasonable date. April 3, 2018 was nine months in the future when offered; essentially the standard time to trial at the College Park Court. That date was declined by defence and resulted in 62 days, or two months, of what is therefore, clearly, deductible "defence delay".

Defence Delay prior to the second trial date

[14] The initial trial date of June 4, 2018 was adjourned to permit defence counsel time to review disclosure materials produced just prior to the trial date. The need to review those materials not only precipitated an adjournment of the June 4th, 2018 trial date, but provided information requiring defence counsel to bring an application seeking production of third party counselling records. The Crown has no authority or ability to disclose such records, except following a judicial consideration involving the complainant. Both counsel did all that they could to expedite the third party records application. The adjournment and rescheduling of the trial date resulted in a new trial date of December 17, 2018 being set.

[15] There are many aspects of this six-month delay that need to be assessed.

[16] First of all, Crown counsel concedes that the late disclosure of materials to the defence was the Crown's fault. The adjournment of the initial trial date was only necessary as a result of this failure of the Crown's disclosure obligations. However, the Crown submits that the third party records application triggered by the late disclosure was itself "frivolous". It was not, and I reject that submission.

[17] On the basis of the information contained in the late disclosure, defence counsel was professionally compelled to bring the application. Section 278 applications cannot be done "on consent" of the parties; it involves the participation of the complainant, whose privacy interests are at stake. The ultimate value of the application to the defence case should not be judged retrospectively, and could not be determined in advance of bringing the application itself. One of the counselling offices whose records were subpoenaed, purported to give assurances that there was nothing of value in their records. This may or may not have been largely true, but defence counsel cannot be expected to rely on the opinion of the custodian of the records as to the value in the records to the case for the accused. It is impossible even now to pre-judge the value of what was obtained prior to hearing the evidence at trial.

[18] The application was not "frivolous" within the meaning of Jordan.

[19] In the face of the obvious delay concerns arising from the application, Crown counsel made valiant efforts to expedite the proceedings. She arranged for the complainant to be able to immediately retain counsel Ms. D. Way; an expert in complainants' rights issues. Ms. Way's involvement and her experience in these issues resulted in a very quick turnaround in completing the application without any further delays.

[20] Crown counsel, Ms. Scott, also endeavoured to expedite the proceedings by urging numerous proposals to get the evidence started prior to the records application being heard. She suggested that we take the evidence of the complainant and then adjourn and if needed, recall the complainant for further examination and cross-examination. She also suggested that if that procedure was unacceptable, we could have the complainant give her evidence in-chief and that we then adjourn for the records application. Defence counsel resisted these proposals, as did I.

[21] I acknowledge the efforts of Crown counsel trying to find a fair way to reduce the delay caused by the late disclosure. However, none of those proposed procedures would have necessarily reduced the delay. It would not be either fair or efficient to force defence counsel to cross-examine the complainant without knowing what might be discovered by the third party records application.

[22] Breaking up a criminal trial to proceed a little bit one day, then another bit a few days later, and then more evidence perhaps a week or a month later produces a very substandard process. I rely on my twenty years' experience as a trial judge to state as a fact that scattering a criminal trial intermittently across the calendar is an extremely unsatisfactory way of trying a case, and should be avoided at all costs.

[23] After the June 4th trial date was adjourned, the earliest next date available for trial was October 15th, 2018. The Crown submits that the case could have proceeded during the weeks of September 25th, October 1st or October 15th. Those dates became available on the court calendar due to other previously scheduled trials collapsing and the trial time being vacated.

[24] On September 7th, in a continuing effort to mitigate further delay, Ms. Scott contacted defence counsel to advise her that earlier trial time had opened up. Counsel was not available due to her other commitments.

[25] Those dates were never actually canvased directly with me, the trial judge. Due to my own prior commitments, it would have been difficult, if not impossible, for me to squeeze a three-day trial of such sensitivity into either the week of September 25th or October 1st. It would therefore be completely unfair and dishonest of me in this analysis to categorize the failure to proceed during those first two weeks offered to the accused as "defence delay". The trial judge, "the Court", was not in fact available. However, I do accept that the trial coordinator could have made me available for this trial during the week of October 15th for three days.

[26] At one time it was accepted that it is unreasonable to expect experienced trial lawyers to hold themselves constantly available for rescheduling trials like this on short notice. It is unreasonable to expect busy counsel to drop commitments made to other courts and other clients on two or three weeks' notice. It is especially unreasonable when the underlying need to reschedule in the first place is not their fault. Having said that, it is unclear to me whether the Jordan framework permits me to still take that approach, and so I will take the approach factually most favourable to the Crown but at the same time note that a different approach, as was once permitted in Godin, would not lay all of the time from October 15th to December 12th at the feet of the accused.

[27] The accused declined the trial time made available during the week of October 15th when the Court and Crown were available. Therefore, the two months from October 15th to December 12th is "defence delay".

[28] The December 12th date was pushed to December 17th to accommodate the complainant's exam schedule.

CONCLUSIONS

[29] The total "defence delay" is five months: one month due to the delay at the judicial pre-trial; two months due to unavailability in scheduling prior to the first trial date; and two months due to unavailability in rescheduling the second trial date. Subtracting five months from the total time to trial of 24 months, leaves a net time to trial of 19 months. The delay therefore exceeds the presumptive 18 months ceiling for constitutionally tolerable delay.

EXCEPTIONAL CIRCUMSTANCES

[30] Once a case exceeds the presumptive ceiling a Stay will result unless the Crown can establish that exceptional circumstances or the complexity of the case caused the delay.

[31] The Crown very fairly acknowledges in this case that the failure to make timely disclosure of certain email communications by the original officer-in-charge of the case rests at the feet of the Crown. But for that failure, this trial would presumably have proceeded as scheduled on June 4th, 2018. On that date it would have been 18 months old less "defence delay" of three months, resulting in a net "Jordan" age of 15 months. It would have been under the presumptive ceiling.

[32] The disclosure deficiency had already taken place before the departure of the original officer-in-charge from the Toronto Police Service. Also, replacement of an officer-in-charge is not an "exceptional circumstance" within the meaning of Jordan. From my experience it is rare in our jurisdiction to ever have the same officer-in-charge from the beginning to the end of any case.

[33] The Crown submits that it did everything it could to mitigate the delay occasioned by the late disclosure which triggered the third party records application, and the resulting necessary adjournment of the initial trial date. I agree. Crown counsel offered several optional approaches to getting the evidence started. None of the suggested approaches were ultimately acceptable. She expedited the retaining of counsel for the complainant, who in turn assisted the Court in dealing with the records application. Those applications typically involve two to three separate hearings, often spread over a few weeks. Through the assistance of counsel, including, in fairness, defence counsel, this hearing, the ruling and production of the redacted records was completed very quickly. I have no hesitation in finding that without the efforts of Crown counsel this matter would have been dragged even farther over the 18 months presumptive ceiling.

DISCRETION

[34] The Crown submits that the accused is "gaming" the system in order to run out the clock because he hopes that the complainant, a visa student, will have to return to Japan when her visa expires. During the 11(b) hearing I was told by the Crown that the accused has twice before been accused of sexually abusing Japanese visa students, and twice before those charges were withdrawn because the complainants returned home and were unavailable for trial. In the materials disclosed on the third party records application there is a purported statement of the accused telling this complainant that he intended to delay things until her visa expired. However, in fact, her visa has been renewed.

[35] These submissions certainly raise the spectre of a miscarriage of justice from the perspective, not only of this complainant, but also, of the public should this prosecution be Stayed for unreasonable delay. On the other hand, I am not in a position to declare that the "history" of this accused is one of escaping justice by means of delay. The presumption of innocence extends to those allegations and to these. I am persuaded that defence counsel has done nothing to "game the system". She has assisted in moving things forward as much as she could, while at the same time protecting the fair trial rights of her client.

[36] In Jordan, the Supreme Court elaborated a new analytical framework for s. 11(b) claims, jettisoning the framework it had previously provided in Morin as being too unpredictable, confusing and complex. The presumptive ceiling of 18 months was established and the only relief for the Crown, once the ceiling is exceeded, is through establishing exceptional circumstances or complexity justifying the particular delay. Neither exist in this case.

[37] Ironically, in this jurisdiction the normal time from the setting of a trial date to the selected trial date has been around nine months for many years. Prior to Jordan, cases in the range of 13 to 15 months old were regularly Stayed in this courthouse. The usual cause of Charter-infringing delay in this jurisdiction has always been deficiencies and delays in the disclosure process. In this jurisdiction the Jordan presumptive ceiling of 18 months effectively gave the Crown a more generous licence in moving cases through to their conclusion. Stays granted for 11(b) violations in this courthouse have become remarkably scarce since Jordan.

[38] In this case, the root cause of the delay was a failure to disclose obviously relevant material in a timely fashion. The steps taken by the Crown to try to remedy the situation once it became apparent are commendable. The steps taken by the defence in response to the material it had sought and the information disclosed at the 11th hour were all necessary, and pursued with due diligence.

[39] Terminating a prosecution without regard to the merits is always unpalatable, especially serious charges such as these. In the simplified Jordan analytical framework the seriousness of the charges has not maintained a meaningful place in the new 11(b) equation.

[40] Applying the Jordan framework of analysis leads to the conclusion that the delay in this case is unreasonable and constitutionally intolerable.

[41] The application for a Stay is granted.

Released: October 25, 2018

Justice W. B. Horkins