WARNING

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

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

486.4 Order restricting publication — sexual offences

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

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

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

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

486.6 Offence

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

ONTARIO COURT OF JUSTICE

Date: 2019-11-19

Court File No.: Toronto 4817 998 18-75002498

Between:

Her Majesty the Queen

— and —

Douglas Stephens

Before: Justice Howard Borenstein

Heard on: November 6, 2019

Ruling on an Application for a Stay of Proceedings released on: November 19, 2019

Counsel:

• Ms. Catherine Glaister — counsel for the Crown
• Mr. John Erickson — counsel for the accused Douglas Stephens

BORENSTEIN, J.

Introduction

[1] Douglas Stephens is a registered massage therapist working in Toronto. Three clients allege that he sexually assaulted them when giving them massages. Three separate Informations were sworn in this case alleging sexual assault. The first two were sworn in January 2018 and the third was sworn in February 2018.

[2] The trial began in April 2019. However, it did not complete. It was supposed to continue in July, but the trial judge was on leave due to illness. The trial was then supposed to continue in September and October, but the trial judge had still not returned. The matter cannot be completed until the new year when the judge is expected to return. Crown counsel brought an application to strike the proceedings and commence a new trial in December of this year. That application was granted. Defence counsel applies to stay the proceedings for delay.

Background

[3] After a pre-trial hearing in May 2018, it was determined that a single trial involving all charges would occur that would take four days. The trial was scheduled for April 3, 4, 5 and 29th, 2019. The reason for the gap between April 5th and 29th was to allow for a similar fact ruling.

[4] Two days before the start of the trial, the Crown realized a witness statement had never been disclosed. The witness was someone to whom one of the complainants disclosed the alleged sexual assault. The Crown was in possession of that statement since December but, through inadvertence, it had not been disclosed until two days before the trial.

[5] Defence sought to adjourn the trial, but that request was refused. As a result, the trial began on April 3rd, but it was agreed that the Court would not sit on April 4th to allow defence to digest this new statement. The trial continued the 5th and 29th. On April 5th, both counsel went to the trial co-ordinator to select a new date to replace April 4th. The Court offered April 8th. The Crown was available, but defence indicated its first available date was June 17th. The Court was not available June 17th but was on July 4th or 5th. July 5th was selected, and July 29th was also secured as the new date for the similar act ruling.

[6] Prior to July 5th, the trial co-ordinator advised the Crown, who then advised defence counsel, that the trial judge was no longer presiding in July or August. Two new continuation dates were set for September and October. Just prior to the continuation in September, the trial co-ordinator advised both counsel that the trial judge was still not sitting due to illness and would not be back until the end of the year at the earliest. The trial judge is expected to return in December but his first available date to continue this trial is in January. Defence counsel is unavailable all of January and the matter would have to continue after that time. The Court was able to provide four dates in December for a new trial which coincided with counsel's availability. The Crown brought a motion to strike the earlier trial and set the December dates for a new trial. That motion was granted. Defence has brought this motion to stay proceedings for delay.

[7] The Supreme Court of Canada signaled a new approach in Jordan, 2016 SCC 27, that was affirmed in Cody, 2017 SCC 31. For reasons stated in those cases, a bright line approach was adopted with built in exceptions.

[8] The total period of time between the swearing of the Information and the anticipated end of trial is determined. From that period, defence delay is deducted; meaning any period where the delay was either waived by the defence or was caused solely by the defence. After deducting defence delay, if the remaining period – the net delay – is over 18 months, the delay is presumptively unreasonable unless the Crown shows that part of the delay was caused by "exceptional circumstances". Exceptional circumstances refer to either discrete events which were unavoidable and unforeseeable or to cases that are particularly complex case which required more time. In either exceptional situation, the Crown is still obliged to try to mitigate the effect of the exceptional circumstance and their failure to do so would disentitle it from deducting the delay caused by the exceptional circumstance. If exceptional circumstances do exist, that period will be deducted from the overall delay.

[9] Where the net delay is less than 18 months, the accused bears the burden to show it is unreasonable, which requires demonstrating that the defence took sustained efforts to expedite the matter and case took markedly longer than it should have.

Turning to this Case

[10] Three Informations were sworn. I will refer to each complainant by her first name only.

[11] This trial is anticipated to end December 17, 2019.

[12] The Information in relation to J. was sworn on January 16, 2018. Accordingly, the total delay from then until the anticipated end of the trial is 700 days.

[13] The Information in relation to the A. was sworn January 24, 2018. The total delay is 692 days.

[14] The Information in relation to L. was sworn February 25, 2018. The total delay is 660 days.

Defence Delay

[15] It is necessary to deduct defence delay from those periods.

[16] There was no waiver in this case. The issue is whether there was any delay caused solely by the defence that ought to be deducted.

[17] As already noted, the trial was initially scheduled for April 3, 4, 5 and 29th. For reasons stated, the trial did not proceed on April 4th. When counsel went to the trial co-ordinator to get a replacement date, the Court and Crown were available April 8th. Defence was not available and indicated its first available date was June 17th, some 70 days or two months and 9 days later. There was no court available that date. July 5th was selected as was July 29th.

[18] The Crown submits that the period from April 8th to June 17th should be considered defence delay as the Court and Crown were available but defence counsel was not.

[19] The defence submits this delay was not caused solely by the defence. It was ready for the preliminary hearing. The delay was caused by the failure to sit on April 4th which was caused by the Crown's late disclosure. The defence relies on Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, which was pre-Jordan, for the proposition that the defence cannot be expected to be in a state of perpetual readiness.

[20] While the logic of Godin remains sound, the approach of Godin and Askov itself were replaced by Jordan.

[21] In para 64 of Jordan, the majority 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. 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.

[22] Further, in the 2018 OCA decision in Mallozzi, 2018 ONCA 312, the Court of Appeal overturned a stay holding that the application judge failed to properly consider defence delay. The Court made clear that, post-Jordan, where the Court and Crown are ready to proceed on a date but defence cannot, that delay is defence delay. There were two examples of this in Mallozzi. At the scheduling of the first preliminary hearing, the Court and Crown could accommodate the preliminary hearing, but the defence was not available until 87 days later, even though the defence had earlier dates. The application judge did not consider those 87 days as defence delay. In holding that the judge erred, the Court of Appeal held:

First, there is an 87-day period of time during which the defence delayed the scheduling of the preliminary inquiry. Although the trial judge's reasons correctly note that earlier dates for the preliminary inquiry were provided, there is no analysis as to why the matter was not scheduled on those earlier dates. The evidence is clear that Crown counsel was available during the earlier dates.

[6] The respondent maintains that his trial counsel had dates earlier than those offered by the court and, therefore, though his counsel was not available on the later dates that were offered, he should not be required to absorb this time as defence delay. We disagree. Jordan is clear that defence delay will arise where the Crown and the court are ready to proceed, but the defence is not. Read contextually, and having regard to the trial verification form, the Crown and the court were ready to proceed. Defence counsel was not. The trial judge erred in failing to consider these 87 days as defence delay.

[23] More germane to the case at bar, just prior to Mallozzi's preliminary hearing, his co-accused decided to plead guilty and sought an adjournment of the preliminary hearing. The Crown opposed. Mallozzi took no position. The hearing was adjourned, and a new date had to be set. The Crown opened up its priority in-custody dates but Mallozzi was not available. He was available 84 days later, which was the date eventually set. The application judge did not consider those 84 days delay caused solely by the defence. The Court of Appeal held this was an error holding:

The record reveals that the earliest dates provided did not coincide with the respondent's trial counsel's schedule. The trial verification form demonstrates that there was almost three months between the earliest dates offered and when the respondent's counsel became available to conduct the rescheduled preliminary inquiry.

[10] The respondent maintains that he was ready to proceed on the first preliminary inquiry date and, therefore, his co-accused's request for an adjournment should not result in any defence delay to him. Multi-accused cases bring a level of complexity with them. All justice participants are required to work together in obtaining the earliest dates possible when matters cannot proceed. Although a co-accused caused the adjournment of the original preliminary inquiry date, something that could trigger an inquiry into exceptional circumstances under R. v. Gopie, 2017 ONCA 728, 356 C.C.C. (3d) 36, at para. 136, we need not resort to an analysis of this Jordan principle here. In the wake of the adjournment request, new dates were offered and the Crown and the court were ready to proceed. The defence was not. This was defence delay.

[24] Accordingly, post-Jordan, where it is time to set a date, or a subsequent date, and where the Crown and Court are in a position to proceed, but defence is not, that delay is delay caused by the defence. The Pyrek case referred to by the defence was a transitional case.

[25] In this case, the Crown caused the inability to use the April 4th date. It attempted to mitigate the situation. The Court and Crown could proceed on April 8th. Defence did not have a single date for 70 days.

[26] As in Mallozzi, and consistent with the post-Jordan approach which supersedes Godin, the period between April 4th and 8th is delay caused by the Crown, and the period between April 8th and June 17th was delay caused by the defence.

[27] However, when it comes time to attributing those periods, two things are apparent.

[28] First, while April 4th to 8th would ordinarily be considered delay caused by the defence, in this case, that timeframe has already been counted in the original trial delay as the trial was scheduled to end April 29th.

[29] Likewise, while the period from April 8th to June 17th was delay caused by the defence, it would be unfair to the defence to deduct the entire time period because, as just stated, the initial trial was expected to proceed until April 29th. It would be wrong to now convert and deduct the period between April 8th to April 29th as defence delay.

[30] I do consider and deduct April 30th to June 17th, 48 days, as delay caused by the defence.

[31] Accordingly, the net delay is as follows:

1. The Information in relation to J. is 700 days less 48 days defence delay for a net delay of 652 days.
2. The Information in relation to A. is 692 days less 48 days = 644 days
3. The Information in relation to L. is 660 days less 48 days for a net delay of 612 days.

[32] Those time periods exceed the Jordan timelines. The Crown bears the onus of establishing exceptional circumstances.

Exceptional Circumstances

[33] In Jordan, the Supreme Court defined exceptional circumstances as follows:

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.

[34] In my view, the delay from July 5th where the case could not proceed due to the trial judge's illness until the new anticipated end of the trial, December 17th was delay occasioned by an unexpected, unforeseen discrete event that was beyond the control of the Crown. This is the type of discrete event contemplated as an exceptional circumstances in Jordan.

[35] The illness was out of the control of the Crown. While the trial co-ordinator did not tell counsel prior to July that the absence was caused by illness, nothing turns on that failure. It was early in the trial judge's absence. It was an evolving situation as evidenced by the fact that they initially anticipated his return in September.

[36] I disagree with defence counsel's submission that had he been so told, he would then have tried to strike the trial then. When he was told in September, he did not seek to strike the trial. He took the dates offered and brought a motion to stay proceedings for delay. It was the Crown which brought the motion to strike the trial and set a new trial date to expedite the matter.

[37] Accordingly, it is necessary to deduct from the period of time the delay between July 5th and December 17th, a period of 165 days.

[38] The total net delay from the swearing of each Information to December 17, 2019, less delay caused by exceptional circumstances, is as follows:

• Information in relation to J.: 487 days or 16.23 months.
• Information in relation to A.: 479 days or just under 16 months and, finally;
• The Information in relation to L.: 447 days or just under 15 months.

[39] Given these calculations, consistent with Jordan, Cody, Mallozzi and the recent Shaikh decision, the application is dismissed.

Released: November 19, 2019

Signed: "Justice Borenstein"