ONTARIO COURT OF JUSTICE
CITATION: R. v. Hartman, 2019 ONCJ 147
DATE: 2019 03 20
COURT FILE No.: Brockville 11-0341
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
RYAN HARTMAN
Before Justice Kimberly E.M. Moore
Heard on March 4, 2019
Reasons for Judgment released on March 20, 2019
C. Breault ............................................................................................ counsel for the Crown
M. Bojanowska .................................................. counsel for the accused Ryan Hartman
MOORE J.:
INTRODUCTION
[1] Although this was a re-trial, it was no ordinary re-trial.
[2] In granting Ryan Hartman a new trial on July 6, 2015, the Ontario Court of Appeal stated as follows:
The appellant, Ryan Hartman, was charged with sexually assaulting R.C.[^1] The Crown proceeded summarily. The appellant testified and denied that he had sexually assaulted R.C. The trial judge convicted. The appellant appealed to the Summary Conviction Appeal Court alleging various errors in the trial judge's reasons. That court dismissed the appeal. The appellant was subsequently sentenced to 14 months' imprisonment and 3 years' probation by the trial judge.
The appellant seeks leave to appeal the decision of the Summary Conviction Appeal Court. His position has changed dramatically. He now admits, contrary to his evidence at trial, that he sexually assaulted R.C. as she alleged, but contends that he was asleep when it happened. Relying on expert evidence developed by new counsel retained after the failed first appeal, the appellant submits that he was in a parasomnic state when he sexually assaulted R.C. and should be found not criminally responsible on account of mental disorder ("NCR-MD").
New defences advanced years after the relevant events, only when other defences have been tried and failed and the convicted offender stands at the prison gate, must be viewed with considerable judicial suspicion. However, there will be cases in which the interests of justice require that an appellant be allowed to present a new defence on appeal. For the reasons that follow, this is one of those rare cases. I would grant leave to appeal, admit the fresh evidence, allow the appeal and order a new trial. I would direct that the new trial be limited to a determination of whether the appellant is NCR-MD or guilty.[^2]
[3] Mr. Hartman’s first court date after the re-trial was ordered was that of July 31, 2015. Mr. Hartman’s trial before me began on April 10, 2017. On November 19, 2018 this Court found Mr. Hartman guilty of sexual assault. The date of January 24, 2019 was scheduled for sentencing.
[4] Mr. Hartman has made an application under section 11(b) of the Charter of Rights and Freedoms, alleging that his right to be tried within a reasonable time has been infringed. As such, Mr. Hartman seeks a stay of proceedings.
[5] Both counsel agree that the relevant time period to be assessed on this Application exceeds the 18-month presumptive ceiling set out in R. v. Jordan, 2016 SCC 27, [2016] S.C.J. No. 27. In fact, Ms. Bojanowska submits that the presumptive ceiling in Mr. Hartman’s case ought to be that of 12 months given that this is a re-trial.
[6] For the reasons that follow, I dismiss the application.
JORDAN PRINCIPLES
[7] Prior to the decision of Jordan on July 8, 2016, the seminal case pertaining to 11(b) applications was that of R. v. Morin, 1992 CanLII 89 (SCC), [1992] S.C.J. No. 25. In that case, the Court held that an acceptable period of institutional delay in the Provincial Courts (now the Ontario Court of Justice) was that of 8-10 months. Thus, once the Crown and Defence were ready to proceed to trial, it was expected that the trial would proceed within 8-10 months. The majority in Morin then set out the approach to assessing whether delay is unreasonable. The Court held that delay must be assessed considering the following:
- The length of the delay;
- Waiver of time periods;
- The reasons for the delay (which include the inherent time requirements of the case, the actions of the accused, the actions of the Crown, limits on institutional resources, and other unspecified reasons); and
- Prejudice to the accused
[8] Almost 25 years later the Court in Jordan held that this framework quite simply did not work, and a new framework was put in place.
[9] This new framework is set out succinctly by Jaffe, J. in R. v. Calabrese, [2018] O.J. No. 4635 (O.C.J.):
- Calculate the total delay from the laying of the charge to the actual or anticipated end of trial;
- Determine the "net" delay by subtracting defence delay from the total delay;
- Compare the net delay to the presumptive ceiling which in cases tried in provincial court, is eighteen months;
- If the net delay exceeds the ceiling, it is presumptively unreasonable and can only be rebutted by the Crown establishing the presence of exceptional circumstances;
- If the exceptional circumstance consisted of a discrete event, the delay caused by the event is deducted from the net delay;
- If the exceptional circumstance is due to the complexity of the case, determine whether, in light of the complexity, the time required to complete the case is justified and reasonable;
- If the net delay falls below the presumptive ceiling, the onus is on the defence to demonstrate that it is unreasonable.(para 3)
[10] In Jordan, the Court also held that cases which were already before the Court prior to July 6, 2018, are deemed to be transitional cases, and the Court clearly set out how the new framework is to be applied to those cases.
[11] Mr. Hartman’s matter was before the Court for exactly one year prior to the release of Jordan, and as such is a transitional case. By the time the trial actually commenced, on April 10, 2017, all parties, including the Court, Crown and defence, should have been well aware of the Jordan framework. Even if I was to apply the Morin framework to the period of July 6, 2015 to April 15, 2016, the conclusions as to the reason for delay would have been the same.
POSITIONS OF THE PARTIES
[12] Both counsel agree that the starting date for the Jordan analysis is the date that Mr. Hartman was granted a new trial. Thus the Jordan clock starts to tick on July 6, 2015.
[13] Ms. Bojanowska submitted that the end date for the analysis under s. 11(b) is January 24, 2019, as this was the anticipated date of sentencing. Ms. Breault had prepared her factum based on a miscommunication with Ms. Bojanowska, but did not seem to object that the date of sentencing is the appropriate end date for my analysis. As such, I will find that this is date when the Jordan clock stops ticking.
[14] Thus, the relevant time period is that of July 6, 2015 to January 24, 2019. This is a period of 42 months and three weeks.
Defence
[15] Ms. Bojanowska submitted that there was one period of waiver of s. 11(b), that being from April 15, 2016 until April 10, 2017. This is a period of 11 months and 3 weeks.
[16] Ms. Bojanowska submitted that there was only two other time periods of defence delay. The first pertains to the unavailability of Ms. Danielle Robitaille for a judicial pre-trial until October 13, 2015, despite dates being offered in September. As such, it is submitted that two weeks (September 30-October 13) should be deducted. The second time period is that of April 13, 2017. Ms. Bojanowska submits that one day of delay should be attributed to her unavailability on this date that had been scheduled for trial.
[17] Thus, 12 months and 1 week is attributable to the waiver and defence delay. As such, the total delay of 42 months and 3 weeks is reduced to a net delay of approximately 30 months and 2 weeks.
[18] As to the issue of exceptional circumstances, Ms. Bojanowska submitted that there were two time periods that should be deducted. The first is that of May 16, 2018 to July 25, 2018 (70 days) as Ms. Bojanowska was unavailable due to illness. The second is the time period of July 25 to August 10, 2018 (16 days), due to Ms. Breault’s family emergency.
[19] Once the 86 days of exceptional circumstances is deducted, this reduces the delay to that of approximately 27 months and 2 weeks.
[20] Ms. Bojanowska submits that not only does this significantly exceed the presumptive ceiling of 18 months, but that is also inconsistent with the direction of the Court of Appeal in R. v. MacIsaac, 2018 ONCA 650, [2018] O.J. No. 3893, as it pertains to re-trials. Ms. Bojanowska submits that the appropriate presumptive ceiling for Mr. Hartman’s re-trial is that of 12 months.
[21] Ms. Bojanowska further submitted that there was significant prejudice to Mr. Hartman, and in particular the impact on his health. Mr. Hartman’s evidence was also that the media exposure had detrimentally affected him, and caused stress for him and his family.
Crown
[22] Ms. Breault had been under the impression, based on an email exchange with Ms. Bojanowska on January 21, 2019, that she need not address the period following July 25, 2018. Ms. Breault had inquired via email about missing transcripts when preparing her factum, and Ms. Bojanowska responded, stating that, “[t]he transcripts end on July 25, 2018 as nothing after that is in issue – we were before Her Honour in October briefly to answer questions and then the decision on November 19, 2018.”
[23] Due to this misunderstanding, Ms. Breault’s submissions were less fulsome than they would otherwise have been. However, she did her best to address the total time frame.
[24] Ms. Breault agreed that there was only one explicit waiver of delay in this case, that being April 15, 2016 until April 10, 2017.
[25] In addressing the period of October 13, 2015 until April 15, 2016, Ms. Breault submitted that this is clear defence delay in that Mr. Hartman had not retained counsel. This is a period of six months.
[26] Ms. Breault submitted that as the email from Ms. Robitaille pertaining to the setting of the judicial pre-trial did not specify whether the September judicial pre-trial dates were in early, mid or late September, it was difficult to assess how much of this time should be attributed to defence delay. As such, Ms. Breault suggested “splitting the difference” essentially, and as such three weeks should be attributed to the defence.
[27] Ms. Breault indicated in her factum that between June 22, 2017 and May 17, 2018 there are six months and two weeks of delay attributable to the defence due to defence and/or expert unavailability.
[28] As such, Ms. Breault submitted that the defence delay in this case is that of just over 25 months.
[29] Thus, prior to addressing exceptional circumstances, the net delay was one of 17 months and 3 weeks, which is just under the Jordan ceiling of 18 months.
[30] Ms. Breault submitted that there were two periods of exceptional circumstances, those of Ms. Bojanowska’s illness and her family emergency, and these periods of time would further reduce the delay by a number of months. It was unclear how much time specifically Ms. Breault was asking that I attribute to her family emergency, but the period of May 16 to July 25, 2018 (when Ms. Bojanowska was ill) was that of just over two months.
[31] Ms. Breault submitted that the Crown had done everything possible to move this matter along, and that the delay in this case was caused primarily due to the expert witness, and his unavailability as well as the manner in which he testified.
COURT APPEARANCES
[32] In order to accurately reflect the chronology of events in this matter, I will address each court appearance as well as the interim events that took place, including, inter alia, correspondence between counsel, and correspondence between counsel and the Court.
July 6, 2015
[33] On July 6, 2015 the Court of Appeal ordered a re-trial. Mr. Hartman was ordered to attend before the Court on July 31, 2015.
July 31, 2015
[34] Ms. J. Thurber appeared on behalf of Ms. Danielle Robitaille[^3], and filed a designation on behalf of Mr. Hartman. There was no indication made on the record that Ms. Robitaille was retained. The designation of counsel that was filed does not address the issue of retainer.
[35] Ms. Thurber advised that Ms. Robitaille had been speaking to the Crown, and requested a four-week adjournment. No reasons were put on the record as to the request for the adjournment.
[36] The matter was adjourned to August 28, 2015.
Interim Events
[37] On August 13, 2015 Ms. Robitaille sent an email to Ms. Breault advising that she was going to be sending two volumes of materials from the fresh evidence filed at the Court of Appeal, and that she hoped that she and Ms. Breault could begin to discuss next steps once Ms. Breault had a chance to review the information. Ms. Robitaille advised that she would be away on vacation from August 14 to 29.
[38] Ms. Breault returned from Crown School on August 17, 2015 and replied that she had received the materials and they could speak when Ms. Robitaille returned from holidays.
[39] Ms. Robitaille responded (while on her vacation) and asked Ms. Breault if they should set a judicial pre-trial to keep the matter moving, and Ms. Breault agreed.
[40] Ms. Robitaille followed up with the trial coordinator, and sent Ms. Breault an email stating as follows, “Trial coordinator has offered Oct 13th for JPT – earlier dates in Sept. are available but I am not. Shall we set the 13th on Friday then?”
[41] Prior to the return date Ms. Breault responded to advise that while she could not attend the judicial pre-trial as she was in Superior Court for trial, Mr. Curt Flanagan (the Crown Attorney for Brockville at the time), would appear at the judicial pre-trial.
August 28, 2015
[42] Ms. Thurber appeared on behalf of Ms. Robitaille and advised that a judicial pre-trial date had been set for October 13, 2015.
[43] The matter was adjourned accordingly.
October 13, 2015
[44] Ms. Robitaille appeared before Justice R.T. Knott on this date, and put on the record that she and Mr. Flanagan had conducted a judicial pre-trial that morning with His Honour, and further stated that following the judicial pre-trial they attended at the trial coordinator’s office and were provided dates of April 26-28 and May 2-5, 2016.
[45] Ms. Robitaille requested that they return on another date for a continuing judicial pre-trial.
[46] No comments were put on the record pertaining to why the matter was being adjourned for a continuing judicial pre-trial. There was no discussions as to whether Ms. Robitaille was, or was not, retained.
November 30, 2015
[47] No counsel and no agent appeared on behalf of Mr. Hartman. Mr. Hartman was not in attendance.
[48] This was to be the date for the continuation of the judicial pre-trial. Ms. Breault was in attendance and advised that she understood that Ms. Robitaille was not attending and that the dates were just to be confirmed. Ms. Breault also stated that Mr. Flanagan wished to have a status check date of January 8, 2016 as he understood that Ms. Robitaille was getting off the record.
[49] Justice Knott advised that he recalled the original judicial pre-trial on this matter and stated that, “Ms. Robitaille was counsel on the appeal and she wasn’t sure whether they’d be able to get her retained for the trial.”
[50] Justice Knott then advised that if there was to be an application to be removed from the record, he wanted this to proceed on or before January 8, 2016, noting that there was a seven-day trial scheduled and that this was “cutting it close.” Ms. Breault agreed to let the defence know of this.
[51] The matter was adjourned to January 8, 2016.
January 8, 2016
[52] Ms. Robitaille did not attend. Mr. Hartman was not in attendance. Mr. Flanagan appeared and advised that he had spoken to Ms. Robitaille the previous day and had agreed to act as her agent.
[53] Mr. Flanagan stated as follows, “Ms. Robitaille advises me that if in fact it is going to trial like a full trial, she will probably not be able to represent him and in the meantime, she is seeing if she can secure counsel that can either appear that date, or to change the date to another date. So she – we’re asking the matter on consent to go over two weeks to the 22nd of January.”
[54] The matter was adjourned to January 22, 2016.
January 22, 2016
[55] Ms. Robitaille did not attend. Mr. Hartman was not in attendance. The Assistant Crown Attorney in Court had no information to provide to the Court, and suggested the matter be adjourned for one week.
[56] The matter was adjourned to January 29, 2016.
Interim Events
[57] On January 25, 2016 Ms. Robitaille filed a Form 1 Application with the Court, seeking to remove the law firm of Henein Hutchison LLP as counsel of record for Mr. Hartman, due to non-payment of fees. This Application was served upon Mr. Hartman via electronic mail on January 25, 2016. Proof of service was attached to the Application.
[58] This Application included an affidavit, which states as follows:
I, Daniela Giaimo, of the City of Mississauga, in the Province of Ontario, make oath and say:
I am a law clerk with the law firm of Henein Hutchinson LLP and as such I have direct knowledge of the matters to which I hereinafter depose, except where from the context it appears that I have received the information from a third party, in which case I verily believe such information to be true.
Lawyers from the Applicant firm Henein Hutchinson LLP have appeared on behalf of the Respondent, Ryan Hartman, on several dates as Solicitor of Record. A Judicial Pre-Trial was conducted before Justice Knott on October 13, 2015 at which time trial dates were set.
The Respondent, Ryan Hartman, is presently charged with sexual assault. A trial in the Ontario Court of Justice at Brockville is currently set to proceed on April 26, 27, 28 May 2, 3, 4, 5, 2016.
Various pre-trial discussions were held between counsel and the Crown in an attempt to narrow the issues and abridge the time required for re-trial. Crown counsel was given notice throughout that the outcome of the discussions may necessitate a change in counsel of record. Those discussions finally completed on January 7, 2016.
Mr. Hartman has not paid the legal fees. I am advised and do verily believe that the firm has had various communications with Mr. Hartman advising him of the deficiency and the fact that if he does not complete the financial retainer then the firm would be obliged to remove itself from the record.
[59] I note that the Affidavit filed by Mr. Hartman to support his 11(b) Application stated that the re-trial that had been set for April 2016 had to be re-scheduled so that he could hire counsel who would accept Legal Aid.
January 29, 2016
[60] Mr. Hartman was present in Court. This was his first appearance in Court on this re-trial. Mr. Flanagan appeared for the Crown. Ms. O'Hara appeared on behalf of Ms. Robitaille. The Form 1 Application was before the Court.
[61] Ms. O'Hara advised the Court that Ms. Robitaille was making an application to be removed as counsel of record. Ms. O'Hara also advised that her understanding was that Mr. Hartman had now retained Ms. Bojanowska. Ms. O'Hara also advised that it was her understanding that Ms. Bojanowska was not available for the trial dates currently set, and was requesting an adjournment until mid-March to permit her to obtain disclosure and review it prior to setting new trial dates.
[62] Mr. Flanagan responded as follows:
I think adjourning it to mid-March is too long quite frankly…this was a matter that was tried in OCJ in our jurisdiction, went to the Court of Appeal. The Court of Appeal has sent it back for a retrial. I met with Danielle Robitaille, counsel, who indicated to me at the onset that it may very well be that will not be able to continue. So in fairness to her, that was put to me. In addition to that however, we did set seven days for trial in relation to that. I think the intent was to get somebody for the accused that would be able to do the – those trial dates. I can understand that it may not accord to other person’s schedules, so I’m not going to press the issue necessarily, but I would like to be in a position at least to set a date within a month as opposed to going into March.
[63] I inquired whether new counsel had in fact been confirmed, and whether that new counsel had been retained. Ms. O'Hara advised that she had correspondence from Ms. Robitaille stating that she was aware that Ms. Bojanowska was going on the record that day, and Mr. Hartman confirmed to Ms. O'Hara that Ms. Bojanowska was prepared to go on the record.
[64] There was no suggestion that Ms. Bojanowska had sent any correspondence. Nor was there any suggestion that Ms. Bojanowska had instructed Ms. O'Hara to appear on her behalf. This is important as Ms. Bojanowska indicates to the Court on April 15, 2016, that she is coming on the record that date.
[65] Mr. Flanagan agreed that he was content that Ms. Robitaille provide the disclosure directly to new counsel, rather than it being returned to the Crown and then require it to be requested by new counsel. Ms. O'Hara agreed to relay that to Ms. Robitaille.
[66] The Court adjourned the matter for new counsel to review the disclosure and to discuss setting new trial dates with the Crown. The trial dates set for April and May, 2016 were not cancelled.
[67] The matter was adjourned to February 26, 2016.
February 26, 2016
[68] Mr. Hartman appeared with the assistance of Duty Counsel, Mr. George Mather. No instructions had been sent from any counsel on this matter.
[69] Mr. Mather advised that Mr. Hartman had applied for Legal Aid and provided all of the necessary documentation. Mr. Mather advised that Mr. Hartman was just waiting for the certificate, and asked for four weeks.
[70] The matter was adjourned to March 18, 2016
March 18, 2016
[71] Mr. Hartman appeared with the assistance of Duty Counsel, Ms. Thurber. No instructions had been sent from any counsel on this matter.
[72] Ms. Thurber advised that she understood that Mr. Hartman has Legal Aid, and is hiring counsel. She suggested the matter return in two weeks. Mr. Hartman asked for a return date of April 15th as, “April 1st is pretty booked.”
[73] The matter was adjourned to April 15, 2016.
April 15, 2016
[74] This was Ms. Bojanowska’s first appearance on this matter. Mr. Harry Clarke appeared for the Crown.
[75] Ms. Bojanowska attended in the set-date court with Mr. Hartman and stated, “I am coming on the record today, Your Worship. I have been formally retained, and I did attend upstairs to set a trial date.”
[76] The following exchange then took place:
MS. BOJANOWSKA: Mr. Hartman is before the Court. So we have scheduled a trial date, Your Worship, and the dates for that are April the 10th to the 13th, and then the 18th to the 20th of 2017.
MR. CLARKE: 2017?
MS. BOJANOWSKA: 2017. We’ve just scheduled those dates today.
MR. CLARKE: I’m sorry? That’s a year from now.
MS. BOJANOWSKA: It is, yes.
MR. CLARKE: What’s the issue with s. 11(b)?
MS. BOJANOWSKA: No, there is no issue.
THE COURT: So s. 11(b) is waived.
MS. BOJANOWSKA: It is.
THE COURT: Thank you.
MS. BOJANOWSKA: We discussed that upstairs. This is not a concern.
MR. CLARKE: Well, we want it on the record. The conversations one had in the conference room[^4] don’t record very well on the record.
MS. BOJANOWSKA: No.
THE COURT: Well, the record will show that you are waiving s. 11(b).
MS. BOJANOWSKA: Waiving s. 11(b). It’s a re-trial, Your Worship. It’s really s. 11(b) is not an issue.
THE COURT: Thank you.
[77] Ms. Bojanowska then reiterated that she was coming on board for Mr. Hartman, and spelled her name for the benefit of the record.
[78] The matter was adjourned directly to April 10, 2017. No status check date was set.
Interim Events
[79] On March 21, 2017 Ms. Bojanowska sent the curriculum vitae of Dr. Colin Shapiro to Ms. Breault by facsimile.
[80] On Saturday, April 8, 2017, at 9:15 a.m., Ms. Bojanowska sent an email to Ms. Breault stating as follows, “Please find attached the report of Dr. Shapiro as well as sleep testing results. I have a number of video clips which I will attempt to forward in separate emails due to size.”
April 10, 2017
[81] This was the first day of trial. At the outset, Ms. Bojanowska addressed the Court and stated that there were a number of issues that needed to be addressed.
[82] First, consent was being sought to not sit on April 13, 2017 as Ms. Bojanowska had a personal / professional commitment that required her to be elsewhere. This was a matter that had just come up recently. The Form 1 Application was filed on March 27, 2017, returnable on April 10, 2017. This Application states that “Counsel for the Applicant is confident that the matter will conclude by April 20th, 2017 even if the Court does not sit on April 13th, 2017.” The Crown had already alerted the trial coordinator to this, and advised that she would be consenting. Given the nature of this commitment, I had no difficulty agreeing that we would not sit on April 13, 2017.
[83] Second, I was advised that all of the exhibits from the first trial, would be admitted on consent for this trial.
[84] Third, Ms. Bojanowska stated that the transcripts of the evidence of all of the civilian witnesses, except of course for Mr. Hartman, would be filed as exhibits on consent in this matter. This would alleviate the need to call the civilian witnesses at this trial.
[85] Fourth, the Crown would call Rebekah Church briefly to address issues not covered in the first trial.
[86] Fifth, Ms. Bojanowska advised that an adjournment may be required to permit the Crown an opportunity to consult with an expert. Ms. Bojanowska stated as follows:
The next issue I wanted to raise with Your Honour is the following. I do expect I will be calling expert evidence in relation to this case. The defence has retained Dr. Colin Shapiro. He is a sleep expert.
I had originally tentatively just scheduled for his attendance on Wednesday of this week. Although, timing is never obviously perfect with these things, but that’s when I had originally scheduled for him to be here.
After providing the report to my friend and some data from Dr. Shapiro, my friend advises me that she wishes to consult with a Crown expert in relation to it, and, in effect, we will be asking for an adjournment.
We’re not sure of what duration the adjournment will be because we are still waiting to hear back from the Crown's expert as to how quickly he can look at the materials. But I just wanted to alert Your Honour that there may be a bit of a break in between.
I’ve already consulted with Dr. Shapiro and asked him, sent him an email, asking if he’s available next week the Tuesday, the Wednesday.
If the Crown’s expert can respond relatively quickly in relation to these issues, that the matter can continue next week. But I don’t think we have all of the answers yet for Your Honour to alert Your Honour in that regard.
[87] Ms. Breault advised that she had received the report two days ago, and stated as follows, “[b]ut I have sent out an email this morning with the expert on the matter, and I’m hoping he will get back to me sometime today. But it’s out of my depth, because it’s medical to put to him, I don’t have the ability to read these particular reports.”
[88] Sixth, Ms. Bojanowska advised that there was a final issue that she wished to raise. Ms. Bojanowska indicated, “[w]e are going to be asking Your Honour for one ruling before I can call any defence evidence.” The ruling sought was as to whether the Crown could cross-examine Mr. Hartman on the transcript of his evidence at the Court of Appeal, as well as a number of documents that had been filed at the Court of Appeal. One of the documents was handwritten notes that Mr. Hartman had made within days of the incident, and which he had provided to his counsel.
[89] We determined that it would be the best use of court time if we completed Ms. Church’s evidence, and then dealt with the request for a ruling.
[90] Ms. Church then testified. Examination-in-chief and cross-examination went extremely expeditiously. As such, the entire Crown’s case was completed before the morning recess.
[91] I was then provided copies of the documents from the Court of Appeal to review, and I heard submissions until mid-afternoon. I advised that I would adjourn the matter to the following day to give my decision. Ms. Bojanowska then commented as follows, “[o]f course, Your Honour, that’s perfectly understandable, and if Your Honour needs some time, we’d discussed that we would simply wait whenever Your Honour was able to rule on that issue.”
Interim Events
[92] Ms. Breault filed an email on the 11(b) Application to confirm that she had sent the report and video clips received from Ms. Bojanowska on April 8, 2017 to Dr. Mark Pressman. This was sent on April 11, 2017 at 8:35 a.m., and indicated that she did not have approval yet to retain him, but was providing the information in advance.
April 11, 2017
[93] I gave my ruling on the permissible scope of cross-examination of Mr. Hartman. I permitted the Crown to cross-examine on Mr. Hartman’s Affidavit for Bail Pending Appeal, but not on any of the other documents or evidence that had been tendered before the Court of Appeal. I found that those other documents were privileged, and had only been provided to the Crown at the appeal as one of the issues advanced on appeal was ineffective assistance of counsel.[^5]
[94] At the time I made this ruling, I was unaware that these materials had been provided to Dr. Shapiro, and were listed in Dr. Shapiro’s report as materials he had reviewed in preparing his report.
[95] Ms. Bojanowska then called her client as the first defence witness. His evidence in examination-in-chief was concluded late morning. Cross-examination began, and continued throughout the day.
[96] We also addressed the issue of Dr. Shapiro’s evidence. Ms. Bojanowska advised that she had cancelled Dr. Shapiro for April 13, 2017 as the Crown was waiting for approval for funding to consult with a Crown expert. Ms. Breault advised she had submitted the request for funding that day, and was now just waiting. Ms. Breault also inquired whether Dr. Shapiro would be available the following week. Ms. Bojanowska advised she would need to check with Dr. Shapiro as to his availability, given his very busy practice in Toronto. She advised she would know by the next day if he would be available, or if we needed to canvass for other dates.
April 12, 2017
[97] Cross-examination of Mr. Hartman continued. There was very brief re-examination. Mr. Hartman’s evidence was completed by late afternoon.
[98] We then discussed the issue of timing and Dr. Shapiro’s evidence. The following exchange took place:
MS. BOJANOWSKA: I have consulted with Dr. Shapiro in relation to dates. He has given me two available dates in May when he could attend.
Unfortunately, as I understand it, my friend, due to a personal issue[^6], apparently is not here throughout May and then, when she returns in June, is in a two-week-long trial. Is that correct?
THE CROWN NON-VERBALLY RESPONDS
Okay. So I did not go with Dr. Shapiro to canvass dates as far as the middle of June. I have not done that, and I will do that. We just had this discussion, Your Honour, this afternoon.
THE COURT: All right. So would it assist if I provide dates to my trial coordinator to send to both of you as to when my availability mid-June and onwards would be?
MS. BOJANOWSKA: Yes, Your Honour.
MS. BREAULT: Yeah, the other aspect is I’d like to see this moved on as quickly as possible.
MS. BOJANOWSKA: Yes.
MS. BREAULT: If he’s available next week, if I can get...I should know, by the end of the day, if I have approval.
THE COURT: Is he available next week or he is not available next week?
MS. BOJANOWSKA: He’s indicated he’s not available next week. I haven’t pressed him very much on that, because I know my friend doesn’t even have approval yet to retain her expert. So I wasn’t sure if the approval would come through or if we would even have what we needed before next week.
But I’ve asked my friend if she could let me know by tomorrow, for example, if the approval comes through and Dr. Pressman can speak with my friend, I would try to press Dr. Shapiro perhaps to just accommodate us in some way, if possible. I don’t know if that’s possible. He’s told me thus far that he’s otherwise occupied, but I certainly would like to move the matter along, even for Mr. Hartman’s interests, as quickly possible.
THE COURT: All right. Is it a matter, Ms. Breault, where you are going to want your experts to have an opportunity to come and see Dr. Shapiro’s evidence or are you content that we would go ahead with Dr. Shapiro and that you would then...?
MS. BREAULT: Yeah, depending what...and it would be Dr. Pressman that I’m trying to retain.
THE COURT: Okay.
MS. BREAULT: But a lot of it would depend on what he has to say.
THE COURT: Right.
MS. BREAULT: But at least he could explain to me the documentation that I....
THE COURT: Before you can even do your cross-examination.
MS. BREAULT: Yeah, and that shouldn’t take that long, because, obviously, he’s very familiar with it. He can teach me quite quickly.
THE COURT: So I guess the unfortunate part is that we are kind of in a bit of a waiting....
MS. BOJANOWSKA: Yes, Your Honour.
THE COURT: All right. So I can indicate again that we will try, if we can, to move matters and so forth. (emphasis added)
[99] We then adjourned to April 18th as we were not sitting on April 13th due to Ms. Bojanowska’s unavailability.
April 18, 2017
[100] Ms. Bojanowska advised that she had spoken to Dr. Shapiro and that he had agreed to move some things around to be able to attend this week. However, he was only available for a half day on April 19th (afternoon) and a half-day on April 20th (morning).
[101] The defence then called two further witnesses – Mr. Hartman’s fiancé and Mr. Hartman’s mother. This evidence was completed before the lunch break.
[102] The matter was then adjourned to the following day at 1:30 to start Dr. Shapiro’s evidence.
Interim Events
[103] Ms. Breault sent an email to Ms. Bojanowska after court had completed on April 18, 2017, stating as follows, “[c]an you ensure that the Doctor has all of the material he relied on in preparing the report and his notes of the interviews he conducted. Thanks.”
[104] Ms. Bojanowska replied within minutes, indicating, “[w]ill do.”
April 19, 2017
[105] Court commenced shortly after 1:30 p.m.
[106] The Crown took no issue with Dr. Shapiro’s qualifications. As such, Ms. Bojanowska was able to expedite the inquiry into same on the voir dire.
[107] Examination-in-chief was completed very expeditiously.
[108] Cross-examination commenced shortly after 4:00 p.m.
[109] The matter was adjourned at 4:45 p.m. to the following day.
April 20, 2017
[110] Cross-examination continued at 10:00 a.m. Everyone was mindful of the fact that Dr. Shapiro had to leave at 1:15 p.m. so that he could catch his train back to Toronto. The investigating officer had agreed to drive Dr. Shapiro to the train station.
[111] After the morning recess, the following exchange took place:
MS. BREAULT: Your Honour, I think we when we finish, we’re going to have to leave very quickly. We were canvassing potential continuation possibilities.
THE COURT: Yes.
MS. BREAULT: The date that was available to the witness was June 23rd. I forgot already.
MS. BOJANOWSKA: It was the 22nd.
MS. BREAULT: June 22nd.
MS. BOJANOWSKA: Although Dr. Shapiro still has to confirm that, but we’re wondering if the Court is available on the 22nd?
THE WITNESS: I’m hoping we’ll finish this morning.
THE COURT: Why don’t we address it perhaps at the end of the evidence?
MS. BOJANOWSKA: Okay.
THE COURT: At this point, I am not available, but we might be able to make myself available.
[112] During cross-examination Ms. Breault asked Dr. Shapiro questions about Dr. Julian Gojer’s report, a report that had been provided to Dr. Shapiro for review, and which he referred to extensively within his report. Dr. Shapiro advised that he did not have that report with him. Inquiries were made as to why he did not have this with him:
Q. Where you not asked to bring all of your material?
A. The stuff that I.... No, I don’t recall being asked to do that.
Q. Hmm.
A. I would need another suitcase.
[113] Dr. Shapiro’s evidence in cross-examination was not completed by the time he had to leave to catch his train. The following exchange then took place prior to his departure:
THE COURT: So just to confirm June 22nd is a date that was suggested and that is a date that was agreeable to everyone.
MS. BREAULT: I believe so.
MS. BOJANOWSKA: Yes, Your Honour.
THE WITNESS: Can I ask, please, how much time is it likely that I need to be here? Because I’m going to have to confirm with my calendar.
THE COURT: Well, we are not going to set it.
THE WITNESS: No, I realize that.
THE COURT: Yes.
THE WITNESS: I’m going to look into that and hope to make it work, if it works for everyone else.
But it makes a difference...it may make a difference if I have to be here the previous evening to start at nine o’clock or I have to be here only half the day and do the afternoon, like I did yesterday. I don’t know if someone would need to comment on what they anticipate.
THE COURT: There is no exact science.
THE WITNESS: Yeah, I know it’s no exact science.
THE COURT: Yes.
THE WITNESS: But I was hoping.
MS. BREAULT: I would prepare for the day.
THE WITNESS: I exerted myself very strenuously to be here for the half day, yesterday and today, with commitments at either side, to try and make it happen sooner. That hasn’t worked out, and I understand.
THE COURT: Yes, we appreciate the efforts that you have made. It is not....
THE WITNESS: And it’s beyond control, you know.
THE COURT: Yes, it is not uncommon though for an expert to testify for a period of days, and we have had a half day, each day.
THE WITNESS: No, that’s fine.
THE COURT: Okay.
THE WITNESS: I don’t mind that. I just need to have some sense to be able to plan. If I can plan better, then it’s obviously easier for me. With best guesses....
MS. BREAULT: I would plan for the day.
THE COURT: Thank you. All right.
THE WITNESS: Okay. So then I’ll look into it, and I’ll let the defence attorney know.
THE COURT: Okay. What I am going to indicate at this point is that, at this point, I am not available that day. I will see if I can arrange for another judge to come from another jurisdiction to cover my cases so that I can make myself available.
MS. BOJANOWSKA: Okay.
THE COURT: Dr. Shapiro is going to look into whether or not he can make himself available.
Ms. Breault, are you content that Dr. Shapiro correspond with Ms. Bojanowska about scheduling? I am just always cautious when the witness is in the midst of cross-examination. So I always seek consent.
MS. BREAULT: Yeah, I have no issues.
THE COURT: Okay, and I do not have any concerns whatsoever.
MS. BOJANOWSKA: Thank you.
THE COURT: So what I will ask then is I will have my assistant look into it, tomorrow is a busy day, but early next week.
If Dr. Shapiro can look at his schedule and let you know, Ms. Bojanowska, then perhaps we can speak to it in court again next Friday just in our regular court. I do not expect you to be here that day. You can have an agent speak to it, obviously.
MS. BOJANOWSKA: Thank you, Your Honour.
THE COURT: We could speak to it next Friday the 28th to confirm whether the 22nd is going to be agreeable for Dr. Shapiro and for myself. If it is not, then we will start the process of looking for another date.
MS. BOJANOWSKA: Yes.
THE COURT: Perhaps actually we can let Dr. Shapiro go ahead and leave.
MS. BOJANOWSKA: Yes.
THE COURT: But I would like to have some further discussion about scheduling of other matters then.
[114] We then continued discussions and agreed to set one further day for Dr. Shapiro’s evidence.
[115] The Crown also advised that she would be calling a toxicologist in reply but no other expert evidence.
[116] We discussed whether this be accomplished on the same day as Dr. Shapiro’s evidence and Ms. Breault advised that, “I think a lot of it depends on the questions and answers and how long. I’d be quite honest that I thought I could finish today, but, obviously, I was terribly wrong.”
[117] Counsel then both advised that they were available on June 23rd. I advised that I was on a non-presiding day but would be available to continue that day. It was agreed that I would have my Judicial Assistant[^7] look into whether we could get coverage for my Court on June 22nd. Ms. Bojanowska advised that she would liaise with Dr. Shapiro to see if he was available on June 22nd.
[118] Ms. Bojanowska then also indicated that Dr. Shapiro was completely free on July 13th. I was scheduled for day two of a two-day trial on July 13th and Ms. Breault advised that she was scheduled to be at Crown School.
[119] The matter was adjourned to April 28, 2017 to set the continuation dates.
Interim Events
[120] On April 25, 2017 Ms. Breault sent an email to Ms. Bojanowska to ask that she contact Dr. Shapiro to request a copy of the transcript of Dr. Shapiro’s interview with Mr. Hartman. Ms. Bojanowska advised that Dr. Shapiro did not make notes, but rather typed it directly into the report.
April 28, 2017
[121] Continuation dates of June 22 and 23, 2017 were set in court, with an indication by duty counsel that Dr. Shapiro was specifically confirmed for the June 22nd date.
Interim Events
[122] On June 19, 2017 Ms. Breault sent a copy of the report prepared by the toxicologist, Daryl Mayers to Ms. Bojanowska. This report had been completed based on the evidence contained within Dr. Shapiro’s report, and was prepared in anticipation of his evidence on June 23, 2017. Ms. Breault also advised that she had not received anything from the expert. Ms. Bojanowska replied that she hoped to have the materials to her for the following day. On June 21, 2017 Ms. Bojanowska provided Ms. Breault with further video clips pertaining to Mr. Hartman’s sleep testing.
June 22, 2017
[123] Dr. Shapiro’s cross-examination continued.
[124] During the cross-examination, while Dr. Shapiro was out of the court-room, Ms. Breault advised the Court that she was going to be making an application to cross-examine Dr. Shapiro on the handwritten notes that had been prepared by Mr. Hartman for his counsel at his first trial. The basis for this application was that Dr. Shapiro had indicated in his report that he had reviewed these notes in preparing his report. Ms. Bojanowska took the position that the same finding I had made previously, that these handwritten notes were privileged, applied to cross-examination of Dr. Shapiro also. It was clear that we were not going to finish Dr. Shapiro’s evidence, and thus I suggested we continue with the evidence and address this issue at the end of the day, after Dr. Shapiro had left to catch his train.
[125] The cross-examination did not complete. In fact, at the end of the day Ms. Breault advised the Court that based on the questioning that day, and the answers given by Dr. Shapiro, she may have to consider calling an expert in reply. It was agreed that two further days should be scheduled for Dr. Shapiro’s evidence. Ms. Bojanowska agreed to contact Dr. Shapiro to determine his availability.
[126] In regards to the issue of whether the Crown could cross-examine Dr. Shapiro on the handwritten notes, I advised that I could hear those submissions the following day (June 23rd) as the day had been set aside for this case but Dr. Shapiro was not available. The following exchange took place as it pertained to scheduling:
So anyways, I will need to hear submissions on that, and I will ultimately need to give you a ruling on that. As far as we do still have tomorrow, so we could do that, if you wanted to. We could argue that issue tomorrow, and then I could ultimately give you my decision.
But I am worried about time on this case and about moving it along. So we are going to need one to two days perhaps for Dr. Shapiro. I am going to hope that maybe we can get it done in less time and that maybe.... Anyways, it is what it is. Cross-examination, I am not going to limit the cross-examination. As long as it is relevant, I am not going to limit it. So if it takes two days, it takes two days.
I am going to hope though that maybe the Crown’s office could look at whether there is anything that is currently set that would not have the same priority, that we could move or shift to make sure that this case gets priority in this.
MS. BREAULT: Okay. Just for the assistance of my friend, I should be looking at starting the end of August.
MS. BOJANOWSKA: Yeah, Your Honour, my schedule runs into great difficulty.
THE COURT: Okay, it is, yes.
MS. BOJANOWSKA: I’m away for a significant chunk of the summer, and I have other case commitments.
THE COURT: You have other cases and obligations. No, and you are entitled to that. But cases have this way of unfolding.
MS. BOJANOWSKA: Yeah.
THE COURT: I do not even know how many continuations I am in the midst of now.
MS. BOJANOWSKA: Yeah.
THE COURT: All right. But just looking generally at time, so if we were to set two days for Dr. Shapiro, and I take it, Ms. Bojanowska, it is your position that we should finish with this witness before there is any reply evidence.
MS. BOJANOWSKA: Yes, Your Honour.
THE COURT: Because you are certainly entitled to decide if you would like to call additional evidence also. At this point, do you expect to call additional evidence, without committing yourself at this point? I am looking at it from a time perspective, because I want to....
MS. BOJANOWSKA: At this point, I don’t expect.
THE COURT: Okay.
MS. BOJANOWSKA: However.
THE COURT: I am not asking you to commit.
MS. BOJANOWSKA: I can’t commit. I have to contemplate whether I would need to call Dr. Gojer to flesh out....
THE COURT: All right. That is on my list of things that I want to address briefly in a moment too.
MS. BOJANOWSKA: Right.
THE COURT: Then at this point, you know for sure that you are calling a toxicologist. We do not anticipate the toxicologist will be more than a half day. Would that be safe?
MS. BREAULT: Yeah, I wouldn’t be very long with him.
THE COURT: For in chief and cross, half a day?
MS. BOJANOWSKA: Probably not even, I would say.
THE COURT: Okay. I am not even going to get to submissions yet, because I will canvass that part in a minute.
You have indicated that you do not know yet, but there is a possibility that you may also need to call reply evidence in regards to the issues of sexsomnia.
MS. BREAULT: Yeah.
THE COURT: Okay. So if at this point we were to set two days, with an additional day, because it might help... And I can tell you that I am going to continue to order transcripts anytime. So that will assist you, if you would like. Would it help though to then have a period of time between when the evidence ends and submissions start?
Because let’s say we had finished today and you immediately had to go into submissions tomorrow afternoon, that might have in fact been.... I am not going to say “unfair,” because you are both very experienced counsel, but it would have been challenging, with having several days of expert witnesses, to then all of a sudden have to formulate your thoughts and make final submissions.
MS. BOJANOWSKA: Yes, Your Honour. Thank you for that.
THE COURT: All right.
MS. BOJANOWSKA: That would be helpful if there was even a bit of a break.
THE COURT: Yes, and that give us time to order the transcripts. I know that the last transcripts, Ms. Johnson was able to prepare those very, very quickly for us. We had them within a week or two. So we could do the same.
So why don’t we look at setting two days for a continuation, at this point, and then setting an additional day for submissions at least two weeks down the road from there. The first step, of course, is finding out when Dr. Shapiro is available.
So your availability starts then the end of August.
MS. BOJANOWSKA: Hmm, hmm.
THE COURT: So as in August or as in starting in September? Actually, I am off the last week of August.
MS. BOJANOWSKA: If Your Honour is off the last week of August, then we’re probably looking at the beginning of September.
THE COURT: So what if I was to ask, counsel, if you could contact Dr. Shapiro and just basically ask him to send you a list of dates he is available, September onwards?
MS. BOJANOWSKA: Yes.
THE COURT: Then you and the Crown and Ms. Leeder could work together to see if there are any dates that were already available.
I can tell you it is not like I know that there is a block of time that I am available, but we have two things. One, I will make myself available. So even if I am on a chamber’s day or not here, I will make myself available to come in to finish this. Two, we are going to have additional judicial resources coming, starting in October. So that will also assist.
But we will do everything we can to make sure that the case moves along as quickly as possible. That is really all I can say on that.
[127] I suggested two options for addressing the application to cross-examine Dr. Shapiro on the handwritten notes – the submissions could be done on June 23rd as we now had that date available, or counsel could do written submissions. Ms. Bojanowska advised that she would like some time to consider her position, and advised that written submissions would be agreeable. Ms. Breault agreed. I advised that I was content that they determine the timelines for exchanging same. There was no objection to that by either counsel.
[128] The matter was adjourned to June 30, 2017 to set continuation dates.
Interim Events
[129] On June 28, 2017, Ms. Bojanowska sent Ms. Breault an affidavit of her law clerk. Included with this affidavit was a letter from Ms. Bojanowska to Dr. Colin Shapiro dated March 1, 2017. This letter was sent to Dr. Shapiro in anticipation of his meeting with Mr. Hartman and to assist with preparing the report.
[130] On June 29, 2017 my judicial assistant sent an email to counsel, which stated as follows: “Justice Moore has reviewed her vacation schedule, and we have also confirmed court-room availability. Justice Moore has advised that she would make herself available for two days on August 28, 29 or 30 if this was agreeable to your schedules as well as Dr. Shapiro’s schedule.”
[131] On June 30, 2017, Ms. Bojanowska sent correspondence indicating that Dr. Shapiro was not available on the August dates that had been offered by my judicial assistant the previous day. Ms. Bojanowska advised that Dr. Shapiro is available as follows: October 26 and 27; November 9, 10, 16 and 17; December 21 and 22. Ms. Bojanowska also advised that she was fully booked in January and her schedule from February 5th and onward was open.
June 30, 2017
[132] Ms. O'Hara appeared as agent for Ms. Bojanowska on this date. Ms. O'Hara advised the Justice of the Peace that four further dates were to be set, but that defence had not sent enough dates, and thus counsel agreed to adjourn it to July 7th before me.
[133] Ms. Breault put on the record various dates that had been offered. Specifically the following was set out:
- July 12th and 13th were available to the Crown and to the Court, but not to the defence.[^8]
- August 28th, 29th and 30th were available to the Court, Crown and defence but the expert was not available.
- October 26th was available for the defence, but not for the Crown, and it was unknown if the Court was available.
- October 27th was available for the Crown and defence, and they were looking into Court availability.
- November 9th and 10th were available for the Crown and defence, but not for the Court.
- November 16th was available for the defence, but not the Crown. There was no indication as to whether it was available to the Court.
- November 17th was available for the Crown and defence and they were going to look into Court availability.
- December 21st and 22nd were offered by the defence, and they were going to look into Court availability.
[134] The matter was adjourned to July 7, 2017.
Interim Events
[135] Correspondence was exchanged between Ms. Bojanowska, the trial coordinator and the office administrator for the Crown as they continued to discuss dates. The date of October 27th had been confirmed as available to all parties. It was clear that Ms. Bojanowska had hoped that December 22, 2017 would be an agreeable date for Dr. Shapiro’s second-day of cross-examination, but she was advised that I was scheduled for vacation. Ms. Bojanowska confirmed that she was not available in January due to a trial, and that her expert was not available in February. Thus, they would need to look at March dates.
July 7, 2017
[136] Ms. O'Hara appeared on behalf of Ms. Bojanowska. Ms. Breault was not present, and another Assistant Crown Attorney spoke to the matter.
[137] Ms. O'Hara advised that the dates of October 27, 2017 and March 22-23, 2018 had been reserved.
[138] There were comments made by counsel on this matter that were not ad idem with the comments made on the last occasion, as to the availability of counsel.
[139] I advised that I would like the matter back before me on July 21st to be spoken to so that I could see if there was a way of moving things around to accommodate earlier dates.
Interim Events
[140] On July 12, 2017 Ms. Breault sent correspondence to Ms. Bojanowska stating as follows, “I am in Crown School this week. I was hoping to get you a factum[^9] before you left but I won’t be able to. I shall get it to you by end of August as I see that we are back in October. Enjoy your holidays if that is where you are off to.”
[141] I have no record of requesting that my judicial assistant contact counsel in the interim, and thus must presume I did not do so.
July 21, 2017
[142] Mr. Francois Dulude appeared for Ms. Bojanowska on this date.
[143] The dates of October 27, 2017 and March 22-23, 2018 were confirmed.
[144] I indicated again on July 21st that I would probably have contact with counsel prior to the October date to see if there was anything that could be done to ensure the matter proceeded more quickly.
Interim Events
[145] I have no record of requesting that my judicial assistant contact counsel in the interim, and thus must presume I did not do so.
[146] Ms. Breault provided written submissions pertaining to the cross-examination of Dr. Shapiro on Mr. Hartman’s handwritten notes on August 15, 2017. Ms. Bojanowska provided written submissions on September 13, 2017. I sent a written decision to counsel on October 24, 2017.
[147] On October 4, 2017 Ms. Breault sent correspondence to Ms. Bojanowska advising that she still had not received any of the disclosure from the expert. The correspondence does not indicate what had been requested, or when.
[148] On October 20, 2017 Ms. Bojanowska sent correspondence as follows, “[a]ttached please find the questionnaires and notes pertaining to Mr. Hartman’s matter as well as the abstract referenced in Court. I have the sleep testing recordings and they are too large to e-mail so I will send a courier out to you with the CD’s. You should receive that on Monday.”
October 27, 2017
[149] Dr. Shapiro continued his cross-examination. It was adjourned to the pre-scheduled date of March 22, 2018 to complete his evidence.
March 22, 2018
[150] Dr. Shapiro completed his cross-examination. Ms. Bojanowska then advised that the defence was not calling any further evidence.
[151] Ms. Breault advised that the only evidence to be called for the Crown in reply was the toxicologist.
[152] The following exchange then took place as it pertained to scheduling submissions:
THE COURT: Okay. Is the expectation that you would want to do submissions tomorrow or is the expectation that you would want to put those over to another day? I can indicate that I have ordered the transcript of today’s evidence also.
MS. BREAULT: Oh, okay.
MS. BOJANOWSKA: I would be asking Your Honour’s indulgence not to do submissions tomorrow, given how much information was covered today. I would really appreciate even a couple of weeks.
THE COURT: Yes, I realize there has been a waiver of delay in the past, and if delay is not an issue.
MS. BOJANOWSKA: Right.
THE COURT: I know the volume of material that we have had.
MS. BOJANOWSKA: Right.
[153] I asked counsel to bring their calendars with them the following day, and noted that as Ms. Bojanowska is from out of jurisdiction, we could actually set both the date for submissions and the date for my decision.
[154] The matter was adjourned to the following day.
March 23, 2018
[155] The Crown called Daryl Mayers, a toxicologist with the Centre of Forensic Sciences.
[156] Ms. Bojanowska took no issues with Mr. Mayers’ qualifications. His evidence was completed in the morning.
[157] Ms. Breault then advised that she may need to call a police officer in reply based on the evidence of Dr. Shapiro from the previous day, pertaining to a very discrete issue. Counsel agreed that it would not change the preparation for submissions in any significant way.
[158] I offered two dates for submissions - April 17th and 20th. Ms. Bojanowska was not available on April 17th and Mr. Hartman was not available on April 20th. I asked Ms. Bojanowska if there was any need to canvass Crown availability on those dates, and Ms. Bojanowska advised that there was not.
[159] I then advised that a dangerous offender hearing I was scheduled to hear may be streamlined, and thus not require all of the court time allotted to it. Thus, we tentatively scheduled May 17, 2018 for submissions. I suggested we set the date for my decision while we were there, indicating I would need 6-8 weeks to prepare the decision
[160] Defence had availability up until June 8th, but this would have been a very tight turn-around for me as I was scheduled to be away at a judicial conference the week of May 22-25, 2018. Ms. Bojanowska was then not available after June 8th until July 17th.
[161] Ms. Breault was not available the week of July 16-20, 2018 as she would be at Crown school. Thus, we set July 24th as the date for my decision.
[162] The matter was adjourned to May 17, 2018
Interim Events
[163] On May 16, 2018 Ms. Bojanowska sent correspondence to the Crown and the Court advising that she was very ill, and would not be able to attend for submissions on May 17th.
[164] Ms. Breault responded to suggest that we just use the date of July 24th as this date was already scheduled for my decision.
[165] My judicial assistant sent a reply that July 24th was not the best option as only 1.5 hours had been set aside for the decision, and the submissions on the trial would take longer than that. I offered the following days, which were scheduled non-presiding days: June 5, 8, 14 and 22; July 19, 23 and 26.
[166] The only date that Ms. Bojanowska was available from these dates was July 26th.
[167] The information was brought forward from May 17th so that it could be spoken to.
May 16, 2018
[168] Ms. Breault spoke to this matter on behalf of the Crown, and as agent for Ms. Bojanowska.
[169] The matter was adjourned to July 26, 2018 for submissions.
Interim Events
[170] Ms. Breault sent an email to my judicial assistant, copied to Ms. Bojanowska, on July 23, 2018 to advise that she had a family emergency and as such she was not available on July 26th. Ms. Breault advised that she had already spoken to Ms. Bojanowska and that Ms. Bojanowska had agreed the matter could be adjourned.
[171] My judicial assistant then sent correspondence to counsel on July 23, 2018, as follows:
In light of the circumstances, Her Honour has asked that I contact you to inquire what time frame we should be looking at for setting the submissions to? Please note that Her Honour is away from August 10th-September 10th inclusive.
Her Honour has also asked that I inquire whether you would like to consider written submissions? She realizes that this is onerous, but she also knows that everyone would like to move the matter forward.
[172] Ms. Breault responded that she and Ms. Bojanowska had discussed the matter and they had agreed to do written submissions. Counsel agreed that Ms. Bojanowska would provide her written submissions to the Crown by September 7th and Ms. Breault would provide her submissions by September 14th. Ms. Breault then advised that she and Ms. Bojanowska also thought it would be prudent to set aside some time in Court in case I had questions arising from the written submissions. They requested dates in October. My judicial assistant offered October 15 and 16.
[173] Ms. Breault was only available on October 16th, and Ms. Bojanowska was available on both dates. Thus, October 16th was selected.
July 25, 2018
[174] The matter was brought forward from July 26th to be spoken to on this date.
[175] Mr. Findlay spoke to this matter on behalf of all parties.
[176] I advised that I would have my judicial assistant contact counsel to see about setting a date for my decision in this case, prior to coming back to court on October 16th.
[177] The matter was adjourned to October 16, 2018 for oral submissions.
Interim Events
[178] On August 28, 2018 I had my judicial assistant contact counsel to suggest that they pre-schedule the date for my decision. I advised that I would need 4-6 weeks to from the date of submissions (October 16th) to prepare my decision.
[179] On September 6, 2018 the dates of November 14, 19, 20, 21 and December 12 were offered. Ms. Bojanowska was available on all but one of those dates. Ms. Breault was available on all but two of those dates.
[180] The date of November 19, 2018 was reserved and placed on my calendar.
October 16, 2018
[181] Counsel attended and I advised them that I did have questions arising from their written submissions. Both counsel were able to address a number of those questions in Court. However, there were some questions that they wished to consider further. As such, I suggested they submit their further comments in writing.
[182] The matter was adjourned to November 19, 2018 for my decision.
Interim Events
[183] Counsel made further brief written submissions in this matter following the October 16th appearance.
November 19, 2018
[184] I found Mr. Hartman guilty of sexually assaulting Ms. Church.
[185] Ms. Breault advised that there would be an updated Victim Impact Statement. Ms. Bojanowska advised that she was not requesting a pre-sentence report and stated, “I believe I will be in a position to gather materials on behalf of Mr. Hartman and to present them to the Court, as opposed to requesting to an updated PSR. I will simply provide documentation to Your Honour.”
[186] Ms. Breault advised she would be an hour or less in submissions and Ms. Bojanowska advised she would be about two hours in submissions.
[187] I advised counsel that we could consider setting a date for the sentencing hearing and also set a date for my decision. I then advised that if it would be of assistance, especially as Ms. Bojanowska travels from Toronto, we could set the matter to a date that I had absolutely nothing scheduled and start early. I would then try to give my decision on the same date. I advised that this may depend on counsel providing their caselaw and materials in advance for me to review.
[188] I suggested adjourning the matter to November 23rd to set the sentencing date. Ms. Bojanowska asked if the matter could return on November 30th for that purpose and I agreed.
[189] The matter was adjourned to November 30, 2018 to set a date for a full-day sentencing.
[190] Ms. Bojanowska did not advise the Court on November 19, 2018 that an 11(b) Application was being contemplated in this matter.
Interim Events
[191] Ms. Bojanowska sent correspondence to the Court and Ms. Breault on November 23, 2018 to inquire whether we could look into dates for sentencing prior to the November 30th court date.
[192] My judicial assistant sent correspondence to offer two non-presiding dates in January, those being January 18 and 24, 2019. Ms. Breault was not available on January 18, 2019. Both counsel were available on January 24, 2019.
[193] This date was thus reserved in my calendar.
November 30, 2018
[194] Ms. O'Hara appeared on behalf of Ms. Bojanowska and confirmed the sentencing date of January 24, 2019.
[195] There was no indication during this brief Court appearance that an 11(b) Application was being contemplated.
Interim Events
[196] On January 8, 2019 my judicial assistant sent correspondence to both counsel to request that any materials and case law that would be relied upon at the sentencing hearing be provided to the Court no later than January 17, 2019 so that the sentencing hearing would proceed more expeditiously on January 24, 2019.
[197] On January 16, 2019 Ms. Bojanowska sent a Form 1 Application advising that Mr. Hartman was making an application under s. 11(b) of the Charter of Rights and Freedoms. This application was returnable on the date set for sentencing, that being January 24, 2019.
[198] Ms. Breault submitted the caselaw that she would be relying upon for sentence to both Ms. Bojanowska and the Court on January 17, 2019.
[199] The materials supporting the 11(b) Application, and the Applicant’s factum, were received at the end of the day on January 21, 2019.
[200] The Crown filed a factum on January 23, 2019, and then a revised factum on January 24, 2019.
January 24, 2019
[201] This date had been scheduled for the sentencing of Mr. Hartman. Obviously, given the late service of the 11(b) Application, the sentencing would not proceed.
[202] The 11(b) Application did not in fact proceed on January 24, 2019 as Ms. Bojanowska was unable to attend in Brockville due to the inclement weather. Although she had left Toronto that morning, intending on being present in court, she pulled over enroute to send an email to the Crown and myself to advise of her predicament and that she would not be able to attend.
[203] Ms. Bojanowska provided numerous dates in her email of when she could attend for the 11(b) Application: January 30, 31; February 1, 4, 14, 15; March 4, 15, 18-22, 27-29.
[204] Ms. Breault advised that she was not available January 30-February 4 as she was in Superior Court of Justice on a trial matter. I advised that I would have been available on January 30 and February 4, but not on January 31 or February 1.
[205] Ms. Breault was available on February 12 and 13. I was not available the week of February 11-15 as I was on vacation.
[206] Ms. Breault advised that she had made inquiries about the March 4th date, and consulted with the Federal Crown who had carriage of the trial scheduled for that day before me. The Federal Crown was agreeable to that matter being stood down on March 4th to accommodate the 11(b) Application on Mr. Hartman’s matter.
[207] In regards to setting the date for my decision, I was asked if I would be willing to forfeit a non-presiding day on March 20th, and I advised that I was.
[208] Thus, the submissions on the 11(b) Application were scheduled for March 4, 2019 and the date of March 20, 2019 was confirmed for my decision, and for sentencing if the application was not granted.
ASSESSMENT OF TIME PERIODS
[209] I will now address the periods of time as set out in the framework in Jordan.
Total Delay
[210] Counsel agree that the total period of delay is that of 42 months and 3 weeks. This period of time certainly warrants an inquiry.
Defence Delay
[211] Defence delay may only be established in one of two ways – (1) waiver, whether it is explicit or implicit, but as stated in Jordan, “it must be clear and unequivocal” (para 60), or (2) delay that is caused solely by the conduct of the defence.
[212] The law as it pertains to waiver, and what constitutes actual waiver has not changed in any significant way with the release of Jordan. In Mr. Hartman’s case, both parties agree on the one period of waiver, and as such it requires no discussion.
[213] However, the second component of defence delay requires a more careful exploration. This was set out as follows by Jordan:
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.
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), 2003 CanLII 24447 (ON CA), 114 C.R.R. (2d) 1 (Ont. C.A.), at paras. 175-82).
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.(para 63-65)
[214] In Mr. Hartman’s case there were a number of time periods where the Court and the Crown were ready to proceed, but Mr. Hartman was not. As such, these time periods will be deducted from the total delay.
[215] I find that these time periods are the following:
September 30, 2015 to October 13, 2015 (2 weeks defence delay)
[216] It was clear from Ms. Robitaille’s correspondence to Ms. Breault that she had been offered judicial pre-trial dates in September. We do not know if those dates were in early, mid or late September.
[217] Ms. Bojanowska submits that only a 2-week period should be attributed to this defence delay. Ms. Breault submits that a 3-week period is a more fair approach.
[218] Given the lack of certainty as to what dates were offered, I find that the appropriate period of defence delay is that of 2 weeks.
October 13, 2015 to April 15, 2016 (6 months defence delay)
[219] Ms. Bojanowska submitted that the defence was ready to proceed on day one, and Ms. Robitaille went on the record. Ms. Bojanowska submitted that, “[w]hen trial dates are scheduled, whether we look at it under the Morin framework or whether we look at it under the Jordan framework, under Morin, that’s institutional. Once trial dates are set, the clock stops ticking, so to speak.”
[220] Ms. Bojanowska advised that the waiver of 11(b) that occurred on April 15, 2016 was due to the change in counsel that was required, but this did not affect the earlier dates.
[221] I cannot accept this submission. It is clear that the Crown was ready to set a date from the outset. There was no disclosure to provide. In fact, given the unique nature of this case, Ms. Robitaille provided materials for the Crown to review in the early stages of this matter. The Court was clearly available on the dates set for trial in April and May 2016. However, Mr. Hartman did not have counsel retained. That is clear from the comments made on the record and from the Form 1 Application filed by Ms. Robitaille. He was thus not ready to proceed. As Jordan states,”the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not” (para 64).
[222] I understand Ms. Bojanowska’s position essentially to be that the waiver of 11(b) on April 15, 2016 was premised on the fact that Mr. Hartman had to change counsel and was thus causing delay, and otherwise there would have been no waiver. This, however, is not the sole issue of concern. It was not put on the record what dates had been offered to Ms. Bojanowska for trial in this matter in April 2016. However, I note that on October 13, 2015 dates were set for April, 2016 (a period of six months). I also note that if one was to set a 2-week trial in the Ontario Court of Justice in Brockville today, that trial could be accommodated as early as October 7, 2019 (a period of six and one half months). Thus, Mr. Clarke’s incredulity when the dates were set in April 2016 for April 2017 may very well have been due to the fact that lengthy trials in the Ontario Court of Justice can typically be accommodated in 6-7 months in Brockville.
[223] Further, Mr. Hartman had already had one period of intake – from July 6, 2015 – a time when no disclosure was required and he already had counsel ready to represent him. He was not then entitled to a further period of intake from the end of January until mid-April, after Ms. Robitaille was removed from the record.
[224] I find that during the period of October 13, 2015 and April 15, 2016, the Court and the Crown were ready to proceed. Mr. Hartman was not prepared to proceed. He had already had three months to retain counsel (July 6, 2015 to September 30, 2015). There was no disclosure to provide. The same counsel who had represented him on the appeal was prepared to act for him at trial if retained. Ms. Robitaille was removed from the record at the end of January, and Mr. Hartman did not have counsel retained until April 15, 2016.
[225] I find that this 6-month period is defence delay.
April 15, 2016 to April 10, 2017 (11 months and 3 weeks defence delay)
[226] There was a clear waiver of 11(b) for this time period.
[227] Thus, this period of just under 12 months is defence delay.
April 20, 2017 to June 22, 2017 (2 months)
[228] There were no frivolous applications in this case. There were no deliberate choices made by the defence to cause the matter to be delayed. However, I do find that the defence made choices in preparing for this trial that failed to advance Mr. Hartman’s right to a trial within a reasonable time. Most specifically, the defence decision to retain Dr. Shapiro in the month prior to the trial, and then provide his report (as well as other accompanying materials) to the Crown on a Saturday morning, two days before trial, is very concerning. I found the defence decision to only schedule Dr. Shapiro on one day, that of April 12, 2017, with no further dates arranged, to be equally concerning.
[229] Mr. Hartman had every right to choose which expert he was going to call, but he also had a responsibility, one that existed under Morin as well as Jordan, to ensure that his decisions did not result in the trial being derailed.
[230] This retrial was ordered on a very limited basis. The sole issue to be determined by me was whether Mr. Hartman was guilty or whether he was NCR-MD. In R. v. Stone, 1999 CanLII 688 (SCC), [1999] S.C.J. No. 27 the Supreme Court of Canada set out the expectations upon an accused who is claiming to have acted involuntarily as a result of an automatism. The Court held that accused must claim that his actions were involuntary, and further held that the accused must present psychiatric evidence to confirm the accused’s claim.
[231] In the very early stages of this re-trial, when Ms. Robitaille was counsel, there was discussion as to the scheduling of the doctors being considered. It was clear to all that expert evidence was a necessity.
[232] On April 10, 2017 Ms. Bojanowska addressed the court and spoke for both counsel, stating that the matter may need to be adjourned so that the Crown may consult with an expert due to the report being provided two days earlier. This was presented as joint request, or as an assumption of fact. Ms. Bojanowska did not suggest that she could call Dr. Shapiro in examination-in-chief and then adjourn his cross-examination until the Crown had an opportunity to consult with an expert.
[233] In Ms. Bojanowska’s submissions on the 11(b) Application she stated that the Crown should not have required time to prepare for the cross-examination of Dr. Shapiro, as Ms. Breault should have known that this evidence would be called. Ms. Bojanowska stated as follows, “[i]t was certainly no mystery to my friend that there was going to be expert evidence, that it was going to be Dr. Shapiro, and there’s preparation that ought to have been, in my submission, done in advance.”
[234] In fact, it was a mystery, until March 21, 2017 (20 days before the trial was to start) that the defence would be calling Dr. Shapiro as a witness.
[235] Ms. Breault advised in her submissions that she had been under the assumption that Dr. Julian Gojer would be called as the expert for the defence, as he had testified at the appeal. She had already decided that she would not be calling an expert on behalf of the Crown as she felt that was able to cross-examine Dr. Gojer based on the report that she had. Ms. Breault further advised that the reason she required funding approval to consult Dr. Mark Pressman once she received the report from Dr. Shapiro, was due to the sleep testing and video clips she received on April 8th. Unlike the report itself, which she could prepare for, she was not able to interpret these sleep tests and video clips, and cross-examine properly on same.
[236] One of the aspects of this case that I was most significantly impressed with was the collaboration of counsel, to almost always work together to streamline matters. Ms. Breault did not object to the failure of Ms. Bojanowska to provide 30 days’ notice of calling Dr. Shapiro as witness. Ms. Breault did not even object to the receipt of the report on April 8th. She merely advised that she would need time to consult with an expert, and quickly acted to get the approval for same. At no time during this trial did the Crown ever seek an adjournment for the purpose of cross-examining Dr. Shapiro. Dr. Shapiro’s attendances on numerous occasions were due to the fact that the cross-examination could not be completed in the time allocated, and not to permit the Crown an opportunity to consult with her expert.
[237] Ms. Bojanowska submitted that Ms. Breault’s failure to prepare in advance for the expert evidence, was one of the significant causes of delay in this matter.
[238] Although section 657.3(3)(c) of the Code provides that the defence does not have to provide any expert report until the close of the Crown’s case, I make the following comments:
[239] It was known by all parties that the Crown’s case was being admitted, except for the calling of the complainant to address issues that related to the new defence being advanced. Thus, it was clear that the vast majority of this case was to be defence evidence. Also, this was not a situation where the defence may wish to wait and see how the Crown’s witnesses do, and then make a determination as to whether they wish to even call expert evidence. There was no choice but to call an expert witness.
[240] Further, section 657.3(5) provides that the Court may grant an adjournment of the proceedings if the party receiving the report, even one provided according to the rules, requires time to prepare. Knowing this, the defence should have made this report available much earlier. Unfortunately, the defence only received the report on April 6th, and then provided it on April 8th. There should have been consultation, initiated by the defence, with the Crown as to whether the Crown would be in a position to proceed, or whether additional dates should be considered. I also find that there should have been a discussion with the Crown as to the proposed date for calling Dr. Shapiro. I find that it was very risky to choose to have Dr. Shapiro attend on April 12th, not knowing how long the cross-examination would be with Mr. Hartman, and especially as the Crown had just received Dr. Shapiro’s report (which was absolutely necessary for the proper cross-examination of Mr. Hartman) days before. Given the costs involved in bring expert witnesses to court, it is very common for the Crown and defence to have a discussion about scheduling in advance. While things may still go awry, these discussions can prevent many scheduling problems from occurring.
[241] Ms. Bojanowska advised that she had not told Ms. Breault of the intention to call Dr. Shapiro on April 12th until she arrived at Court on April 10th. I also inquired as to whether April 12th was the only date that Dr. Shapiro had been scheduled for, or whether he had also been scheduled for April 13th but then cancelled when Ms. Bojanowska was not going to be available. Ms. Bojanowska advised that Legal Aid would only approve scheduling one day at a time. As such, April 12th was the only date that Dr. Shapiro had been booked for. In addition, Ms. Bojanowska confirmed on April 12th that Dr. Shapiro was not available the following week. Thus, one of the main witnesses, and the only witness who could provide the necessary psychiatric opinion to the court, had been booked for only one of seven days of trial time. It was clear from what took place that the defence had made no efforts, prior to this trial starting, to ensure that Dr. Shapiro would be available beyond that one day. That Dr. Shapiro made himself available for two half days the following week was good fortune rather than good planning.
[242] Ms. Bojanowska chose to schedule Dr. Shapiro for the third day of trial. The cross-examination of the accused was not completed until the end of the day on April 12th. Had Dr. Shapiro been in attendance, he would not have been reached. By the time Dr. Shapiro was available, on April 19th, Ms. Breault was prepared to cross-examine Dr. Shapiro.
[243] The Court in Jordan refers to the legitimacy of defence actions when considering whether they should be found to be “defence delay.” In R. v. Cody, 2017 SCC 31, [2017] S.C.J. No. 31, the Court expanded upon how this legitimacy should be approached:
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.
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.
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 CanLII 805 (SCC), [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).
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.
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. (para. 31-35)
[244] I find that the delay in providing the expert report in the matter (provided on the Saturday before the trial was to commence), the failure to communicate with the Crown as it pertained to scheduling of the expert who authored this report, and the failure to adequately schedule the expert for sufficient time, played a significant role in the length of time this trial took to complete. These choices made by the defence did not adequately advance Mr. Hartman’s right to a trial within a reasonable time.
[245] In addition, I must address Ms. Bojanowska’s submission that the defence is only responsible for one day of delay due to her unavailability to attend court on April 13th.
[246] I cannot accept this. It was clear that the case could not proceed on April 13th solely due to the unavailability of the defence. This is clear defence delay. It is the consequences of the delay that must be considered, not only the day itself (R. v. Ghandi, 2016 ONSC 5612, [2016], O.J. No. 4638 (S.C.J.).
[247] This case had been scheduled for 7 days of trial. Ironically, despite the number of adjournments to complete the evidence of Dr. Shapiro, the evidence in this case only required 8 days of court time.[^10] Thus, the estimate of time of 7 days was a fairly accurate one – if we had been able to sit on each of these days for full days.
[248] The matter could not complete during the 7 days originally set as Ms. Bojanowska was unavailable on one day, and Dr. Shapiro was only available for two half-days during the second week.
[249] As such, I find that the need to adjourn the matter to June 22 and 23, 2017 to complete the evidence was due to defence delay. During the submissions I was reminded by Ms. Breault that she had scheduled surgery in May 2017 and thus was unavailable in May. I recall her still being in recovery when she was in court in June 2017. I have no information as to whether Dr. Shapiro, the defence or the Court had earlier dates than the June 22 and 23 dates that the matter was adjourned to. I do know that I arranged for judicial coverage for my court on June 22nd and agreed to open a court on a non-presiding day so that we could complete this matter.
[250] The failure of the defence to adequately schedule Dr. Shapiro is the cause of this period of delay. If I am wrong on my interpretation of the defence responsibility, I would clearly find that this period of time falls under exceptional circumstances. The Crown had nothing to do with the defence counsel being unavailable on April 13th and no control over the scheduling of Dr. Shapiro. This was completely out of the control of the Crown. In addition, due to Ms. Breault’s surgery and pre-scheduled 2-week trial, she could not remedy her unavailability. The Court made arrangements to accommodate this delay as expeditiously as possible.
[251] As such, I find that the period of April 20 to June 22, 2017 is defence delay.
[252] Thus, the total period of defence delay in this case is that of 20 months and 1 week.
[253] Thus, the net delay is that of 22 months and 2 weeks.
Exceptional Circumstances
[254] This period of time of 22 months and 2 weeks clearly exceeds the presumptive ceiling. As such I must consider whether there are any exceptional circumstances.
[255] The issue of whether the time required for me to write my decision (a period of 5 weeks) or the period of time between conviction and anticipated sentencing (a period of 2 months) was not relied upon as exceptional circumstances by the Crown. Thus, fulsome submissions were not made on these issues. As such, I will make no finding as to whether this time should be considered as exceptional circumstances.
[256] The Court in Jordan sets out two ways the Crown may establish exceptional circumstances. One is by asking the Court to find that the case was particularly complex and thus required additional time. This was not relied upon in this case. Nor would I have found that this case was complex.
[257] The other refers to discrete, exceptional events.
[258] The following passages from Jordan set out the position on exceptional circumstances:
Exceptional circumstances lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.
It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful -- rather, just that it took reasonable steps in an attempt to avoid the delay.
It is obviously impossible to identify in advance all circumstances that may qualify as "exceptional" for the purposes of adjudicating a s. 11(b) application. Ultimately, the determination of whether circumstances are "exceptional" will depend on the trial judge's good sense and experience. The list is not closed. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.
Commencing with the former, by way of illustration, it is to be expected that medical or family emergencies (whether on the part of the accused, important witnesses, counsel or the trial judge) would generally qualify. Cases with an international dimension, such as cases requiring the extradition of an accused from a foreign jurisdiction, may also meet the definition.
Discrete, exceptional events that arise at trial may also qualify and require some elaboration. Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. For example, a complainant might unexpectedly recant while testifying, requiring the Crown to change its case. In addition, if the trial goes longer than reasonably expected -- even where the parties have made a good faith effort to establish realistic time estimates -- then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance.
Trial judges should be alive to the practical realities of trials, especially when the trial was scheduled to conclude below the ceiling but, in the end, exceeded it. In such cases, the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling. Trial judges should also bear in mind that when an issue arises at trial close to the ceiling, it will be more difficult for the Crown and the court to respond with a timely solution. For this reason, it is likely that unforeseeable or unavoidable delays occurring during trials that are scheduled to wrap up close to the ceiling will qualify as presenting exceptional circumstances.
The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events (see R. v. Vassell, 2016 SCC 26). Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e., it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events). (para 69-75)
[259] It is important to note that it not sufficient for the discrete event simply to occur, and then automatically transform the event into an exceptional circumstance. When a discrete event occurs, the Crown must be able to demonstrate that the event was reasonably unforeseen or reasonably unavoidable, and then must also establish that all reasonable steps to mitigate the delay were taken.
May 16, 2018 to July 25, 2018 (2 months and 1 week)
[260] Both counsel agree that this period of time, when Ms. Bojanowska was not available for closing submissions due to illness, is an exceptional circumstance.
[261] I offered numerous dates prior to July 25th. It is unknown whether the Crown was available on those dates. However, this was the earliest date that Ms. Bojanowska was available. As such, there was no opportunity for the Crown to mitigate the delay.
July 25, 2018 to August 10, 2018 (2 weeks)
[262] Both counsel agree that this time period, when Ms. Breault was not available for closing submissions due to a family emergency, is an exceptional circumstance.
[263] Ms. Bojanowska submits that these are the only periods of exceptional circumstances that are present in this case.
[264] Ms. Bojanowska specifically submits that the adjournments to complete Dr. Shapiro’s evidence are not exceptional circumstances, and that this is delay caused specifically by the Crown.
[265] As I will set out below, I find that there are clear exceptional circumstances caused by the continuations of Dr. Shapiro evidence.
Period of June 22, 2017 to March 22, 2018 (6 months and 1 week exceptional circumstances; 2 months and 3 weeks are not exceptional circumstances)
[266] As indicated above, the Court in Jordan held that, “if the trial goes longer than reasonably expected -- even where the parties have made a good faith effort to establish realistic time estimates -- then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance.”
[267] This trial was scheduled for 7 days. The evidence was heard on 10 different days, but required only 8 full days as Dr. Shapiro was only available half days on April 19 and 20, 2017 and the defence only took a half day to call Mr. Hartman’s mother and fiancé, and the Crown’s reply evidence only required a half day. Thus, this is not a situation where the time estimate itself was inaccurate. However, those 7 days of court time could not be used as defence counsel was unavailable for one day, and Dr. Shapiro could only attend for two half days. Thus, we used only five of the available days, and in fact ended at lunch the day that Mr. Hartman’s fiancé and mother testified.
[268] I find that there were many factors that caused the evidence portion of the trial to continue after the original trial dates of April, 2017, all relating to the issue of the expert witness, and in particular:
a) the failure of the defence to communicate with the Crown as it pertained to scheduling of Dr. Shapiro;
b) the failure to adequately schedule Dr. Shapiro for sufficient time during the trial;
c) Dr. Shapiro’s manner of answering questions. I agree with Ms. Bojanowska that the cross-examination was lengthy. However the cross-examination was relevant and Dr. Shapiro was a very challenging witness. As I stated in my Reasons for Judgment on November 19, 2018, Dr. Shapiro acted more as an advocate than a witness on occasion, and actually tried to redirect the Crown to areas that he wished to address, rather than answering the questions asked. Further, Dr. Shapiro’s responses were often lengthy when a simple response would have sufficed. Dr. Shapiro made his displeasure known when we would discuss further scheduling, and then would comment that he would try to keep his answers brief, but this was not so easily accomplished. Dr. Shapiro’s evidence was heard on five days, but the first two of those days he was only available for half days. Further, due to the train schedule that Dr. Shapiro selected, we always had to ensure that he was able to leave in time to catch this train, rather than being able to sit later. Ms. Bojanowska also submitted that the Crown kept changing her estimate of how long she would require to cross-examination Dr. Shapiro. I do not accept this. On April 20, 2017 we set one further day as Ms. Breault believed that she could finish in this amount of time. It was clear on that return date of June 22, 2017 that the cross-examination would not finish and thus Ms. Breault suggested two additional days. The evidence was, in fact, completed within those two additional days;
d) Dr. Shapiro’s failure to bring all of his materials with him when he came to court. Ms. Breault sent an email to Ms. Bojanowska prior to Dr. Shapiro attending to testify, stating, “[c]an you ensure that the Doctor has all of the material he relied on in preparing the report and his notes of the interviews he conducted.” Ms. Bojanowska replied she would do so. Yet, on April 20th, when Ms. Breault was cross-examining Dr. Shapiro on Dr. Gojer’s report (a report which Dr. Shapiro referred to extensively within his own report), Dr. Shapiro advised he did not have it with him. He said he had not been asked to bring his materials, and that he would need another suitcase to do so. Ms. Bojanowska submitted that the Crown kept changing her position as to the materials she was requesting, and also submitted that perhaps Dr. Shapiro was not clear on what Ms. Breault was requesting. Ms. Bojanowska submitted that, “I believe he brought what he relied on in preparing the report. Because the Crown’s request is “bring what you relied on in preparing the report,” as opposed to all of the materials he had in respect of the file, and maybe that’s what he referenced.” Even if Dr. Shapiro had brought what he relied upon in preparing the report, he would have then brought the questionnaires that were referred to during his evidence and most certainly would have brought Dr. Gojer’s report as Dr. Shapiro actually quoted from it within his own report.
e) The manner in which the continued evidence of Dr. Shapiro was scheduled. The usual process in scheduling trials is for the trial coordinator to offer dates, and for Crown and defence to advise whether they (and the accused and witnesses) are available. If trials were set with counsel identifying the best dates for them and their witnesses and the Court then responding as to Court availability, this would be a most unwieldy process. In this case, all parties – the Court, the Crown and the defence – were content to set the schedule around the availability of the expert witness. It also cannot be forgotten that, although the continuations were for cross-examination, this was still a defence witness.
[269] I find that it was reasonably unforeseen and reasonably unavoidable that Dr. Shapiro’s cross-examination would not be completed in the time scheduled for this trial, for the reasons given above.
[270] I then must consider whether there were time periods in which the Crown could have taken steps to mitigate the delay. I find that there are two time periods where this could have, and should have, been done.
[271] The first of these is the period between June 22, 2017 and July 13, 2017. Ms. Bojanowska offered the July date when we were in court on April 20th. Ms. Breault advised that she was unavailable due to Crown school. I noted that I was on a two-day trial. Crown counsel have the right, and the professional responsibility, of engaging in continuing education. There are, however, times when attending these events cannot take place, or where one might choose to attend a different week. When we spoke to the matter again on June 30th, Ms. Breault advised that she was now available on July 13th. Defence counsel was no longer available, and of course is not expected to keep her calendar open when she has many other clients to represent.
[272] I find that Ms. Breault could have made inquiries in April, 2017 as to whether she could attend a different week of Crown school. I also find that efforts could have been made by the Crown, and by the Court, to see if my two-day trial scheduled for July 12-13 would in fact require the full two days. This period of June 22, 2017 to July 13, 2017 (3 weeks) cannot be considered as an exceptional circumstance.
[273] Dr. Shapiro was then not available until October 26, 2017. The Crown has no way of changing Dr. Shapiro’s availability. As such, the period from July 13, 2017 to October 26, 2017 (3 months and 2 weeks) is clearly exceptional circumstances.
[274] I find that the period of October 26, 2017 to December 21, 2017 is a time period in which both the Crown and the Court ought to have taken steps to determine if any of the matters scheduled before me, on dates when Dr. Shapiro was available, could be rescheduled without affecting someone else’s 11(b) rights. Both the Crown and Court could have, and should have, done this. I do not find that I should have been expected to give up my vacation day of December 22, 2017. As such, the period of time from October 26 to December 21, 2017 (2 months) cannot be considered as exceptional circumstances.
[275] Defence counsel was not available in January 2018. Dr. Shapiro was not available in February 2018. Thus, the next available date Dr. Shapiro could be accommodated was March 22, 2018. I find that there was nothing the Court nor the Crown could have done to mitigate this period of time. As such, the period from December 21, 2017 to March 22, 2018 (3 months) is clearly exceptional circumstances.
[276] Dr. Shapiro was a defence witness. If the defence was concerned about the passage of time, between June, 2017 and March, 2018, the defence had every opportunity to ask the Court and Crown to offer additional dates (as it was clear throughout that I was not adverse to giving up non-presiding days), and then to determine if Dr. Shapiro was available. Instead, defence simply presented the dates that Dr. Shapiro was available, and was content to leave it at that.
[277] The total period of time between June 22, 2017 and March 22, 2018 is that of 9 months. I find that 2 months and 3 weeks of that time cannot be considered exceptional circumstance. The remaining 6 months and 1 week are clear exceptional circumstances.
[278] I find that the net delay of 22.5 months is reduced by 9 months due to exceptional circumstances. Thus, the delay in Mr. Hartman’s case is that of 13.5 months.
[279] This is clearly far below the presumptive ceiling set out in Jordan. However, the defence submits that the presumptive ceiling in this case should be lower than 18 months as this is a re-trial.
Re-Trials and the Presumptive Ceiling
[280] Ms. Bojanowska relies upon the principles set out in MacIsaac, and submits that although the Court in MacIsaac did not set out guidance by way of a numerical threshold, there are factors that support a lower presumptive ceiling in Mr. Hartman’s case. These factors include:
- No frivolous applications by the defence;
- The defence taking steps to expedite the matter by agreeing to do written submissions rather than coming back for further court appearances;
- The Crown’s failure to accurately estimate the amount of time that the cross-examination of Dr. Shapiro would take. Ms. Bojanowska submitted as follows,
…had the Crown turned her mind to the realities of this case and, in effect, given a more realistic estimate [in April, 2017] of how long her cross-examination would last, this would have significantly reduced the time required for this trial.
[281] The decision in MacIsaac was released in July, 2018. In addressing the need for the Crown to ensure that re-trials are dealt with expeditiously, the Court held that,
This duty is not new. It was underscored by this court in R. v. Yakymiw (1993), 68 O.A.C. 237 (C.A.), at para. 4, in which the court referred to "an obligation to bring the matter to trial expeditiously" following a decision setting aside a stay; in R. v. Satkunananthan (2001), 2001 CanLII 24061 (ON CA), 152 C.C.C. (3d) 321 (Ont. C.A.), at para. 55, in which the court said that it was "incumbent on the Crown to take all necessary steps to ensure that [a] third trial commenced without further delay" following a mistrial at the first re-trial; and in R. v. Brace, 2010 ONCA 689, 104 O.R. (3d) 32, at para. 16, in which the court emphasized the need to be cognizant of an accused's s. 11(b) rights when setting a re-trial date following a mistrial.
[282] In R. v. Fitts, [2015] O.J. No. 6941 (O.C.J.), Paciocco, J. (as he then was) addressed the need for re-trials to proceed more expeditiously, and indicated that the intake time will generally be shorter for a re-trial as the disclosure has previously been provided, counsel may require less time to prepare, and fewer number of appearances should typically be required.[^11] The Court held that for a second trial, applying the Morin guidelines that were in place at the time, it would be inappropriate to simply double the 8-10 month guideline for inherent delay. The Court relied upon the decision in R. v. Follows, [2013] O.J. No. 5790 (O.C.J.), wherein Andre, J., held that a more appropriate framework would be that of 6-8 months for the re-trial.
[283] In the Fitts case, Paciocco, J. provided the rationale for requiring that re-trials proceed more expeditiously, stating:
Put more simply, section 11(b) recognizes that individuals who are being prosecuted are presumed to be innocent, and that the prosecution process can have significant adverse impact on the liberty interests and personal well-being of those who are charged. Since an accused person facing a retrial will have experienced the adverse effects of the prosecution from the time the charge was initially laid, that entire period should, in my view, be taken into account. This is particularly so given that accused persons are not ordinarily responsible for the need for a second trial. A second trial becomes necessary because of judicial error, or extenuating circumstances requiring a mistrial at the first hearing. Accused persons should not, in my view, be expected to undergo unacknowledged subjection to the stress and challenges of delay simply because, through no fault of their own, the first trial failed to dispose of the matter (para 5).
[284] Thus, although the decision in MacIsaac was not released until July, 2018, the principle that re-trials need to be expedited is not a novel one.
[285] I find that while there are certainly cases where the presumptive ceiling must be lower for a re-trial, Mr. Hartman’s case is not one of them. I agree with Ms. Bojanowska that there were no frivolous motions and I agree that the defence did agree to written submissions which thus expedited the proceedings. I further accept that the defence consented to the admission of the Crown’s case which resulted in the Crown’s case thus taking not even half a day, although this concession does not have the same weight as it would in a case where an acquittal was an available option to the trial judge at the end of trial.
[286] I rely upon the following in finding that no lower presumptive ceiling is appropriate in Mr. Hartman’s case:
The nature of the re-trial
[287] The 11(b) cases that address re-trial typically deal with second, or subsequent, trials resulting in actions such as a mis-trial, a new trial ordered due to errors made at the first trial, or successful conviction appeals by the Crown. In addition, the re-trial is most often a “do-over”, where the Crown will call the same, or similar evidence, and the trial will proceed, hopefully to unfold without the errors made during the first trial. Mr. Hartman’s re-trial is a completely different situation. Mr. Hartman’s first trial was two days in the Ontario Court of Justice, with the Crown calling the bulk of the evidence, and carrying the burden of proving beyond a reasonable doubt that Mr. Hartman was guilty of sexual assault. This re-trial was scheduled for 7 days, not 2. The burden in this re-trial is on the defence, not the Crown. The Crown’s case was in before the morning recess on the first day of trial. Most significantly, the Crown had absolutely no control over the remaining witnesses, and when they would be scheduled. Unlike the accused referred to in Fitts, where the accused was referred as “not ordinarily responsible for the need for a second trial”, this re-trial was completely the responsibility of Mr. Hartman. Let me be clear. Mr. Hartman had every right to appeal to the court for a new trial, to request that he be permitted to change his defence and call fresh evidence. He cannot, however, now assert that his decision, and the significant change in circumstances is such that this trial is like the re-trials referred to in similar 11(b) re-trial cases.
[288] The irony in the case at bar, is that despite the fact that the re-trial was scheduled to take significantly longer, it was still accommodated in a very expeditious manner. Mr. Hartman was granted a new trial on July 6, 2015. Had he retained Ms. Robitaille as he was intending, this re-trial could have been completed ten months later.
The failure to retain counsel in a timely manner
[289] Most accused persons have no advance warning that they may have to proceed to trial, and thus should look into funding for same. Mr. Hartman had a trial, and a summary conviction appeal. He then appealed to the Court of Appeal. Although he did not know if the appeal would be granted, he should have been planning for his trial. Had he done so, his re-trial could have been completed in the spring of 2016.
The manner in which the expert witness was scheduled and the timing of the disclosure of the report
[290] Ms. Bojanowska submits that it was the Crown who was unprepared in this matter, and that the Crown failure to prepare in advance caused much of the delay.
[291] The defence controlled the timing of when the report was obtained and then disclosed. Further, only the defence had the ability to schedule defence witnesses.
Other words or actions of the defence, which were either contradictory to an interest in a trial within a reasonable time, or expressed that delay was not an issue
[292] When Ms. Bojanowska attended to schedule the re-trial on April 15, 2016, and the Crown expressed concern about the passage of time until the trial date, Ms. Bojanowska stated as follows:, “[w]aiving s. 11(b). It’s a re-trial, Your Worship. It’s really s. 11(b) is not an issue.” This does not suggest that the defence is of the view that re-trials are more pressing than trials in the first instance, but rather that they are less pressing.
[293] On day of trial, that being April 10, 2017 it was Ms. Bojanowska who addressed the Court to set out six different issues for the Court. Ms. Bojanowska was clearly taking the lead, and given the nature of this re-trial, that made eminent sense. Ms. Bojanowska set out a number of issues, including that the Crown now needed to consult with an expert. There was no indication that the defence was concerned about delay. In fact, the comments to the Court suggested that both counsel were on the same page as to how the matter should proceed.
[294] On March 22, 2018 I made inquiries of counsel as to when they would be available for submissions.
THE COURT: Okay. Is the expectation that you would want to do submissions tomorrow or is the expectation that you would want to put those over to another day? I can indicate that I have ordered the transcript of today’s evidence also.
MS. BREAULT: Oh, okay.
MS. BOJANOWSKA: I would be asking Your Honour’s indulgence not to do submissions tomorrow, given how much information was covered today. I would really appreciate even a couple of weeks.
THE COURT: Yes, I realize there has been a waiver of delay in the past, and if delay is not an issue.
MS. BOJANOWSKA: Right.
THE COURT: I know the volume of material that we have had.
MS. BOJANOWSKA: Right.
[295] Ms. Bojanowska submits that when she said “right” after I made the comment above, she was simply agreeing that there had been a waiver in the past, and was not waiving Mr. Hartman’s 11(b) rights at that time. Ms. Bojanowska advised that her use of the word “right” was not an acceptance that delay was not an issue. I accept that it is not a waiver, but if delay was in fact an issue, this would have been the time for Ms. Bojanowska to advise that I was mistaken.
[296] On March 23, 2018 I suggested the dates of April 17 and 20 for submissions. Ms. Bojanowska and/or her client were not available. I asked if there was a need to inquire as to the Crown availability and Ms. Bojanowska said there was not. I obviously do not find this to be defence delay, as I do not know if the Crown was available, but it is clear that delay was not a concern for Mr. Hartman at this stage, despite the lengthy period of time that it took for Dr. Shapiro to complete his evidence, a time period that I am now asked to find was caused solely by the Crown.
Timing of the 11(b) Application
[297] I must address the manner in which the 11(b) Application was filed. The defence filed the Form 1 Application 8 days before the date scheduled for sentencing. This clearly does not comply with Criminal Rules of the Ontario Court of Justice. Further, the actual Application record, containing more than 40 transcripts, was not filed until the end of the day on January 21, 2019. Despite this non-compliance, the Crown did not seek a dismissal of the application on this basis. Rather, the Crown worked diligently to prepare a response. Late service of these materials also meant that I had to make time to review the transcripts. Almost all of the transcripts had been ordered prior to November 30th, the date when the January 24th sentencing had been scheduled. When I inquired about the decision not to notify the Court in a more timely manner, Ms. Bojanowska advised that there had not been a final decision yet on whether the 11(b) Application would be advanced. Only Mr. Hartman could make the choice as to whether to file this Application. I agree with Ms. Bojanowska that such applications are in fact sometimes brought after conviction. I find however, that where an accused person wishes to file an 11(b) Application at this late stage, it is when that same accused has consistently demonstrated a desire for a trial within a reasonable time. How can Mr. Hartman say that not only was his right to a trial within a reasonable time violated, but also that his trial should have been completed in 12 months, rather than 18, and then make a decision which could have resulted in the Crown (quite appropriately) seeking an adjournment to prepare a response, or the Court advising that time would be required to review the materials?
[298] Not only did the defence not put the Court on notice throughout this trial that 11(b) was a concern, the timing of the 11(b) Application itself failed to adequately demonstrate a sincere concern that delay was an issue.
[299] For all of these reasons, I find that there is no basis to find that the presumptive ceiling should be decreased for Mr. Hartman’s matter.
Delay Below the Presumptive Ceiling
[300] Where the delay falls below the presumptive ceiling, the defence may still show that the delay is unreasonable.
[301] I accept that Mr. Hartman has suffered prejudice due to the time that this matter has been before the Court, and that there has been an impact on his health and relationships. However, I find that the defence had many opportunities to ameliorate the impact on this prejudice, and did not do so.
[302] As held in Jordan, “the defence bears the onus to show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. Absent these two factors, the s. 11(b) application must fail (para 82).” The Court also stated that, “[w]e expect stays beneath the ceiling to be granted only in clear cases (para 83).”
[303] I agree that the case took longer than it reasonably should have, but for all of the reasons referred to in this judgment, I find that there was a failure of the defence to take meaningful steps to expedite the proceedings. As stated in Cody, “[d]efence 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 (para 33)." The decisions made by the defence in this case were not consistent with this direction.
CONCLUSION
[304] Mr. Hartman stands, yet again, at the prison gates, and makes this application at the final hour.
[305] I find that Mr. Hartman’s right to a trial within a reasonable time, as guaranteed by section 11 of the Charter of Rights and Freedoms, was not infringed.
[306] The Application is dismissed.
Released: March 20, 2019
Signed: Justice Kimberly E.M. Moore
[^1]: On March 4, 2019, at the request of Rebekah Church, the ban of publication was lifted. [^2]: R. v. Hartman, [2015] O.J. No. 3554 (C.A.), at paragraphs 1-3. [^3]: Ms. Robitaille had been counsel for Mr. Hartman for his appeal before the Court of Appeal, but she had not represented Mr. Hartman at his first trial. [^4]: In Brockville, trial dates are set weekly in a conference room, prior to the set-date court commencing, with all parties present – the trial coordinator, the Crown, the office administrator and scheduler for the Crown, court officers for each police service, and defence counsel (or duty counsel with unrepresented accused). [^5]: This ground of appeal was dismissed by the Court of Appeal. [^6]: Scheduled surgery. [^7]: The Judicial Assistant in Brockville is also the Trial Coordinator for the Ontario Court of Justice. [^8]: During submissions on the 11(b) Application Ms. Bojanowska objected to the Court considering this time period, as Ms. Bojanowska had been available on these dates in April, but Ms. Breault advised that she was not available due to Crown school. Since the court appearance in April, Ms. Bojanowska had scheduled other trial matters on the July 13th date. [^9]: Pertaining to the cross-examination of Dr. Shapiro on Mr. Hartman’s handwritten notes. [^10]: Of the ten days that we set on this matter, on four of those days we only sat for half days. [^11]: See also R. v. Crant, 2018 ONSC 1479, [2018] O.J. No. 1644 (S.C.J.).