Court File and Parties

Ontario Court of Justice

Date: 2019-09-27

Court File No.: 17-13560

Between:

Her Majesty the Queen

— and —

Jae Shim

Before: Justice K.A. Wells

Heard on: August 20, 2019

Reasons for Judgment released on: September 27, 2019

Counsel

Mr. Patrick Quilty — counsel for the Crown

Mr. Adam Little — counsel for the accused, Jae Shim

Introduction & Overview

[1] Jae Shim was charged with the offences of "Over 80" and impaired driving on November 3, 2017. The information was sworn and laid before the court on November 9, 2017.

[2] The trial for this matter is currently scheduled to commence before me on October 21, 2019 for two consecutive days. This is the second scheduled trial date as the matter was not reached on the initial dates for trial.

[3] This is an application by Mr. Shim to stay the charges pursuant to s.11(b) of the Charter for unreasonable delay.

[4] The total period of delay from the date the Applicant was arrested to the anticipated end of the trial is 23 months and 19 days. The Applicant relies on the Supreme Court of Canada decision in R. v. Jordan, 2016 SCC 27, and submits that the delay is unreasonable because it exceeds the 18-month presumptive ceiling for constitutionally tolerable delay.[1]

[5] It is the Applicant's position that after deducting approximately 3 months of defence delay from the total time-period, the "net delay" of more than 20 months is presumptively unreasonable and violates his rights under s. 11(b) of the Charter.

[6] The Crown submits that in fact 9 months of the overall delay should be attributed to the defence such that the "net delay" falls well below the presumptive ceiling and there is no violation of the Applicant's rights under 11(b).

[7] The determination of this Application essentially comes down to my assessment of two key time periods, namely, the period between the setting of both trial dates (June 5th, 2018 – March 4th, 2019 and March 4th, 2019 to October 22, 2019). However, to place those periods in context, an overview of the manner in which this case played out is helpful.

Chronology of Events

November 3, 2017 Applicant arrested and released on a promise to appear

November 9, 2017 Information sworn and placed before the court

November 17, 2017 Applicant makes his first appearance in court assisted by duty counsel – no disclosure available.

December 15, 2017 Applicant makes his second appearance in court assisted by duty counsel – some disclosure available but Crown requires more time to make full disclosure (it is unclear if the Applicant actually received any disclosure on this date).

January 19, 2018 Applicant makes his third appearance in court assisted by duty counsel – disclosure provided in court and matter adjourned for consultation with private counsel.

January 30, 2018 Counsel for the Applicant sends a letter to the Crown requesting twelve items of further disclosure and raising concerns regarding delay.

February 16, 2018 Counsel appears on record for the Applicant – further disclosure not yet available.

March 9, 2018 Articling student for counsel appears on record for the Applicant – Crown indicates that some further disclosure has been received but not yet vetted.

March 11, 2018 Counsel for the Applicant sends a second letter to the Crown requesting eleven outstanding items of further disclosure out of the twelve requested in the January 30th letter – concerns are once again raised regarding delay.

April 5, 2018 Counsel for the Applicant sends a third letter to the Crown requesting ten of the twelve outstanding items of further disclosure initially requested on January 30th – delay once again raised.

April 6, 2018 Articling student for counsel appears on record for the Applicant and indicates several items of disclosure remain outstanding.

April 27, 2018 Agent for counsel appears on record for the Applicant and indicates disclosure to be picked up that day and Crown pre-trial to be scheduled.

May 18, 2018 Law student for counsel appears on record for the Applicant and indicates a Crown pre-trial is set for May 29th, 2018.

June 1, 2018 Law student for counsel appears on record for the Applicant – attempted to set a trial date.

June 5, 2018 Law student for counsel appears on record for the Applicant – first trial dates set for March 4 & 5, 2019.

March 4, 2019 Counsel and Applicant appear for trial – matter not reached – second trial dates set for October 21 & 22, 2019.

The 11(b) Framework for Analysis

[8] In Jordan, the Supreme Court of Canada reset the analytical framework for determining whether a violation of s.11(b) has occurred. According to the new model, where the total delay in completing a case in the Ontario Court of Justice exceeds 18 months, the delay will be presumptively unconstitutional subject to a consideration of any case-specific exceptional circumstances.

[9] For the purpose of calculating the constitutionally relevant period of delay for the 11(b) analysis, periods of "defence delay" are to be deducted from the total delay. What constitutes "defence delay" continues to be a matter of great debate. In Jordan, at paragraphs 61 and 63-64, the Court stated as follows:

(61) Defence delay has two components. The first is delay waived by the defence (Askov, at pp.1228-29; Morin, at pp.790-791). Waiver can be explicit or implicit, but in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights. However, as in the past, "[i]n considering the issue of 'waiver' in the context of s.11(b), it must be remembered that it is not the right itself which is being waived, but merely the inclusion of specific periods in the overall assessment of reasonableness" (R. v. Conway, [1989] 1 S.C.R. 1659 per L'Heureux-Dube J., at p.1686).

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

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

[10] In R. v. Cody, 2017 SCC 31, the Supreme Court of Canada expanded its description of what constitutes "defence delay" under the new 11(b) framework. At paragraphs 29–32 the Court said:

(29) However, not all delay caused by defence conduct should be deducted under this component. In setting the presumptive ceilings, this Court recognized that an accused person's right to make full answer and defence requires that the defence be permitted time to prepare and present its case. To this end, the presumptive ceilings of 30 months and 18 months have "already accounted for [the] procedural requirements" of an accused person's case (Jordan, at para.65; see also paras. 53 and 83). For this reason, "defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay" and should not be deducted (Jordan, at para. 65).

(30) The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. As we said in Jordan, the most straightforward example is "[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests" (Jordan, at para.63). Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted (Jordan, at para.64).

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

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

[11] In the years since Jordan, there has been an unfortunate lack of clarity amongst trial courts as to how to interpret certain aspects of the framework analysis. Germane to this Application is the phrase taken from paragraph 64 of Jordan wherein the Court states:

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.

The appropriate way to attribute time periods of defence unavailability (when otherwise available to the court and the Crown), with interspersed periods of defence availability (when otherwise unavailable to the court and/or the Crown) is the determinative issue in the Application herein.

Calculating Delay and the Applicability of Godin

[12] In R. v. Godin, 2009 SCC 26, some seven years before Jordan, the Supreme Court of Canada had occasion to consider, among other issues, the proper method of attributing time periods for the purpose of 11(b) delay calculations. Writing for the Court, Cromwell J. specifically rejected a rigid and fixed approach for the calculation of delay. In that case, a preliminary inquiry was originally scheduled for September of 2006 but did not proceed. The earliest date offered to the defence to reschedule the preliminary inquiry was December 22, 2006, but the defence was unavailable. The preliminary inquiry was ultimately set for February 5, 2007. At paragraph 23, Cromwell J. held that the one and a half period between December 2, 2006 and February 5, 2007, should not be attributed to the defence. He stated as follows:

Scheduling requires reasonable availability and reasonable cooperation; it does not, for s.11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability. Here, there is no suggestion that defence counsel was unreasonable in rejecting the earlier date. Indeed, his prior conduct in seeking earlier dates for the preliminary inquiry – efforts which were ignored- suggests that he wished to proceed expeditiously. I respectfully agree with Glithero R.S.J., dissenting in the Court of Appeal, at para. 53, that: "To hold that the delay clock stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable."

[13] Post Jordan, courts have been divided on whether the comments of Justice Cromwell continue to apply.

[14] In the Application before me, the Crown argues that the Ontario Court of Appeal's Reasons for Decision in R. v. Mallozzi, 2018 ONCA 312, are dispositive of the issue, and confirm that Godin is no longer applicable under the current 11(b) regime. Indeed, at least two of my colleagues on the Ontario Court of Justice have accepted this submission and found that Godin has been overtaken by Jordan and that the previous method for calculating delay has been abandoned. In both R. v. Sookdeo, [2018] O.J. No. 4341, and R. v. Francis, [2019] O.J. No. 1675, the Court held that that proverbial 11(b) clock stops as soon as the defence is unavailable on a date open to both the Crown and the court.

[15] In R. v. Dhillon, [2019] O.J. No. 3148, at paragraph 16, Duncan J. interpreted Mallozzi to have "confirmed that Jordan meant exactly what it said. The Jordan clock stops with the first set of dates that the Crown and the court are available for trial but the defence is not: R. v. Jafour, 2019 ONCJ 175 at para 21." He went on to address the Ontario Court of Appeal decision in R. v. Albinowski, 2018 ONCA 1084, which was released after Mallozzi, and said the following:

(17) However, more recently the Court has suggested that the clock stop "rule" may be more flexible. In R. v. Albinowski, 2018 ONCA 1084, [2018] O.J. No. 6892, the Court dealt with a Crown appeal from a stay entered at trial of three co-accused. The main issue concerned the trial judge's characterization of time from completion of pre-trial procedures (early October 2015) to the preliminary inquiry in September 2016. Dates for the preliminary were offered in January, February, July and August but were declined due to unavailability of one or more defence counsel. The trial judge characterized the time after the July dates as defence delay but not the time from January. The Court of Appeal found this to be reversible error but at the same time rejected a strict, inflexible rule:

46. Crown counsel argues that all the delay following the very first date offered for the preliminary inquiry must be assessed as defence delay. I disagree with such a categorical approach.

(18) However, on the facts, the Court held that it was error for the trial judge to have failed to characterize the unavailability of defence counsel from January as being defence delay. The Court pointed out that the earliest dates (in January) were offered three months earlier "in the days leading up to the remand appearance on October 6, 2015 (para 20). The Court concluded:

50. While the dates [in January] may have been unexpected, the fact is that the court was able to offer dates allowing for a reasonable time for the defence to prepare for and conduct the preliminary inquiry in this case…

(19) The principle I take from Albinowski is that defence unavailability will not stop the Jordan clock if the dates are so soon as to not allow sufficient time for the defence to prepare.

[16] In R. v. Zikhali, [2019] O.J. No. 262, Burstein J. held that the Godin approach for apportioning responsibility for scheduling delay remains good law, and cited Albinowski for that proposition. At paragraphs 19 and 20 he writes:

(19) There are a number of pre-Jordan cases which had addressed the issue of allocating delay where a trial had to be rescheduled because it was not completed when expected, such as R. v. Godin, 2009 SCC 26, R. v. Brace (2010), 2010 ONCA 689, 261 C.C.C. (3d) 455 at paras. 14-16 (Ont. C.A.); R. v. Satkunanathan (2001), 152 C.C.C. (3d) 321 at paras 43-5 and 54-5 (Ont. C.A.); R. v. M.(R.) (2003), 180 C.C.C (3d) 49 at paras. 6-9 (Ont. C.A.); R. v. W.(A.J.) (2009), 2009 ONCA 661, 257 O.A.C. 11 at paras. 29-43; and R. v. Tran, 2012 ONCA 18, [2012] O.J. No. 83 (C.A.). Two principles seemed to emerge from this line of cases, beginning with the passage at paragraph 23 of the Supreme Court of Canada's decision in Godin. First, it would be unfair to fault a defendant for not having retained counsel with a wide open trial calendar in the event that the trial could not be completed on the dates originally scheduled. To avoid being saddled with responsibility for delay when rescheduling a trial, the defence must have "reasonable availability", not complete availability. Second, there is no set formula for apportioning responsibility for delays occasioned by an unexpected need to schedule further time to complete a trial. Rather, the apportionment of responsibility for "rescheduling delay" involves an exercise of discretion premised on the specific features of a case.

(20) In the aftermath of Jordan, some have questioned whether the Godin approach to apportioning responsibility for scheduling delay remains good law. That issue was very recently considered by the Ontario Court of Appeal in R. v. Albinowski, 2018 ONCA 1084 (at paras. 28-35). Writing for the Court in Albinowski, Roberts J.A. refused to accept that the oft-cited passage in Godin had been implicitly overtaken by the Supreme Court's decision in Jordan. Rather, Roberts J.A. recognized that the approach advanced in Godin was premised on two specific features of that case; namely, "the Crown's responsibility for the need to reschedule and the attempts by the defence to expedite the proceedings." In another very recent appellate decisions, the Newfoundland Court of Appeal in R. v. King, [2018] N.J. No. 366 (C.A.) (at para. 108), has held that the "common sense" approach to assessing responsibility for scheduling delays advanced by the Supreme Court in Godin "still applies after Jordan". In view of these two recent appellate decisions, I am satisfied that the Supreme Court's approach in Godin continues to govern an assessment of responsibility for delays occasioned by "the need to reschedule" a case.

[17] In R. v. Gundy, 2008 ONCA 284, Justice Rosenberg said "I find it difficult to believe that the Supreme Court of Canada intended to overrule Rilling without referring to it" (para.35). The majority decision in Jordan makes only a passing reference to Godin, and in doing so at paragraph 37 reiterates Cromwell J.'s warning therein that "courts must avoid failing to see the forest for the trees."

[18] In my view, had the Supreme Court intended to overrule Godin the Court would have expressly said so. Furthermore, attributing an entire period of delay to the defence due to defence unavailability on one date offered would be inconsistent with the overall intention of Jordan to do away with the "finger pointing" method of calculating delay. I adopt the succinct reasoning and approach of Woollcombe J. in R. v. Ameerullah, 2019 ONSC 4537, at paragraphs 28 & 29 wherein she stated:

(28) To summarize, the appellate authorities, including Mallozzi, Albinowski and R. v. Picard, 2017 ONCA 692; leave to appeal refused, [2018] S.C.C.A. No. 135 (S.C.C.) make clear that 11(b) requires reasonable availability, flexibility and some level of cooperation. Clearly, when a single date or block of time is offered to the defence, and counsel is unavailable on that date, not all of the delay to the next available date is necessarily defence delay. Rather than taking this sort of "categorical" approach, there needs to be consideration of the particular circumstances of a case, bearing in mind the Jordan call for a change in direction and break in the culture of complacency.

(29) However, when the Crown is available on numerous dates that are offered by the court, and the defence counsel is repeatedly unavailable for any dates over a reasonable period, the delay that results is defence delay. The justification for this approach is that it is defence counsel's lack of availability that results in the matter being set further in the future than would otherwise be necessary.

Is there a breach of 11(b) in this case?

[19] As stated above, there are two time periods at issue in this case for the purpose of the so-called "11(b) calculation." However, before turning to those two distinct periods, I am obliged by Jordan to take a "step back from the minutiae and adopt a bird's-eye view of the case."[2] Doing so in this case reveals that the Applicant did everything he could to efficiently move his case to trial. He attended as required, retained counsel, and pursued disclosure diligently. The record demonstrates that the Applicant wanted his trial within a reasonable time.[3]

Attribution of Delay – June 5, 2018 to March 4, 2019

[20] The evidence filed on this Application reveals that on June 5, 2018, the parties attended the trial co-ordinator's office to set dates for trial. The first available dates offered were August 8–9, 2018, but neither party was available. The next available dates offered were October 1–2, 2018, which were available to the Crown, but not available to the defence. The dates of October 1–2, 2018, were the only set of dates between August 8–9, 2018 and January 28–29, 2019, where either party was available. It is also important to note that after the dates of October 1–2, 2018, the next available dates offered to the parties were January 8–9, 2019. January 30–31, 2019 was available to the defence, but not to the Crown. Of the seven sets of dates offered in February of 2019, the Crown was available for two of them, but the defence was not. Both parties were available for the first available set of dates in March (4–5, 2019).

[21] In my view, 1 month of the time-period between June 5, 2018 to March 4, 2019 (approximately 9 months), should be attributed to defence delay. This fairly reflects the fact that the defence essentially had little to no availability in the month of February 2019 while the court and the Crown were in a position to proceed on more than one set of dates. I believe this determination to be consistent with the authorities cited above.

Attribution of Delay - March 4, 2019 – October 22, 2019

[22] The Applicant attended court with counsel ready for trial on March 4, 2019. Due to the volume of cases before the court, the Applicant's trial was not reached and counsel was instructed to obtain new dates for trial. The first available dates offered were June 11–12, 2019 and the second set of dates were June 17–18, 2019. The defence was available for both of these, but the Crown was not. The third set of dates was June 25–26, 2019, where the Crown was available but the defence was not. The Trial Verification Form filed as part of the Applicant's Application Record reveals that 22 sets of trial dates were offered by the trial co-ordinator. The Crown was available for 11 of the 22 sets of dates, and the defence was available for 8 of the 22 sets of dates.

[23] Of the 7-month and 19-day period between the original trial date and the scheduled completion date for trial, I find that two months of time is attributable to defence delay. In the months of June–August, 2019, the defence had reasonable availability to conduct the Applicant's trial which could be accommodated by the Court, but not the Crown. Throughout September and October, the evidence reveals that the defence had limited availability to accommodate the Applicant's trial, while the Crown and Court were available.

Conclusion

[24] After subtracting three months of defence delay, the "net" delay in bringing Mr. Shim to trial is 20 months and 20 days. As set out in Jordan, for cases going to trial in the provincial court, the presumptive ceiling is 18 months from the charge to the actual or anticipated end of trial. This presumptive ceiling was put in place "in order to give meaningful direction to the state on its constitutional obligations and to those who play an important role in ensuring that the trial concludes within a reasonable time: court administration, the police, Crown prosecutors, accused persons and their counsel, and judges. It is also intended to provide some assurance to accused persons, to victims and their families, to witnesses, and to the public that s. 11(b) is not a hollow promise."

[25] The charges against the Applicant are stayed.

Released: September 27, 2019

Signed: Justice K.A. Wells

Footnotes

[1] At paragraph 46 of Jordan, supra, the Court speaks of the total delay calculation being "from the charge to the actual or anticipated end of trial". Throughout these reasons I have used November 3, 2017, as the starting point for the delay calculation.

[2] Jordan, supra, at para. 91.

[3] In both written and oral argument the Crown conceded that there are no other periods of time at issue, and there is no suggestion that the defence "waived" any time period, or caused delay through its conduct. Similarly, the Crown conceded that there are no exceptional circumstances or discreet events in this case that could justify a time period above the presumptive ceiling.