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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 victim of the right to make an application for the order; and

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

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

Court Information

Ontario Court of Justice

Date: 2020-07-29

Court File No.: 19-22281

Parties

Between:

Her Majesty the Queen

— and —

Ahmed Elakrat

Before: Justice A. Dellandrea

Heard on: July 16, 2020

Reasons for Judgment released on: July 29, 2020

Counsel

Ms. Robin Prihar — counsel for the Crown

Ms. Christine Mainville — counsel for the defendant Ahmed Elakrat

Decision

DELLANDREA J.:

[1] Application for Stay of Proceedings

[1] This is an Application for a stay of proceedings on the basis that the Applicant's right as guaranteed by s. 11(b) of the Charter to be tried within a reasonable time has been breached.

[2] This is not a case in which the alleged delay, nor the circumstances leading up to it were complicated, prolonged, or arising from any purportedly glaring missteps by either party or surprises in the lead-up to trial scheduling.

[3] To the contrary, from a scheduling perspective this was among the most straightforward kind of cases in the criminal justice system: a single-complainant credibility case of alleged sexual touching, estimated to require three days for trial.

[4] Despite this, the trial will not be completed within the 18-month Jordan ceiling, absent any COVID-19 factors contributing to the delay. The anticipated conclusion of the trial on January 8, 2021 will be 18 months and 7 days from the commencement of the proceedings.

[5] The Applicant submits that there was neither defence delay nor exceptional circumstances which could operate to pull the net delay below the presumptive Jordan ceiling in this case. It is argued that the excess of 7 days' time, however nominal, makes the delay here presumptively unreasonable, and warranting of a stay. Moreover, Ms. Mainville submitted that even if the court were to assess the time-to-trial calculus to fall just below the ceiling, it took markedly longer than it reasonably should have for a trial of its kind to be scheduled – particularly in view of the consistent efforts of the defence to move the matter along expeditiously.

[6] The Crown agreed with the Applicant's calculus of total delay being 18 months, 7 days, but argued that net delay should be fixed at 17 months, 21 days. Since by this calculus the delay is below the presumptive ceiling, the Crown submits that the Applicant has failed to establish that this case took markedly longer than it reasonably should have to get to trial.

[7] In the alternative, the Crown submits that the complainant's unavailability for the earlier trial dates (May 13-15, 2020) was a "discrete event/exceptional circumstance" outside of the Crown's control, which should operate to make the selection of the next available trial date (January 6-8, 2021) considered reasonable.

[8] I have concluded that the net delay in this case does exceed the 18-month Jordan ceiling, and that the Crown has failed to establish any exceptional circumstances which could render this delay reasonable. A stay of proceedings is thereby mandated pursuant to s. 24(2) of the Charter.

Calculation of Net Delay

[9] The following is a summary of the significant dates within the case chronology:

Date	Event
July 1, 2019	Applicant is advised by police that there is a warrant for his arrest. Applicant immediately contacts legal counsel.
July 2, 2019	Applicant surrenders to police and is held for bail overnight.
July 3, 2019	Information sworn. Applicant is released on his own recognizance.
July 19, 2019	Counsel sends an initial disclosure request.
July 30, 2019	Applicant's first appearance. Counsel attends and is directed to disclosure hub to receive initial disclosure. Package did not include central witness statements. Adjourned to August 26.
August 20, 2019	A new Information was sworn and placed before the court, alleging an additional count of sexual assault.
August 26, 2019	Counsel receives additional disclosure which includes the central statements. Adjourned to September 23, 2019.
September 23, 2019	Counsel attends; Crown Pretrial ('CPT') is requested; adjourned to October 21, 2019 for scheduling of same.
October 15, 2019	CPT with (then) assigned Crown (#1). Trial estimate and outstanding disclosure issues discussed. Counsel requests withdrawal of duplicative Information and Crown's timely communication with complainant about a "list" which counsel requested by way of disclosure or by potential s. 278.3 application.
October 17, 2019	Crown advises counsel that it considers the "list" to be the subject of the s. 278.3 regime. Counsel responds the same day advising that an application would be brought and requesting that the Crown take steps to ensure the preservation of the item and to advise the complainant of the s. 278.3 process.
October 21, 2019	JPT was scheduled for December 12, 2019.
December 10, 2019	Counsel reiterates earlier disclosure request and asks for complainant's father's criminal record.
December 12, 2019	JPT. Testimonial aids discussed. Counsel requests that the Crown ask the complainant whether such aids were needed or desired, as well as for her position on the s. 278.3 issue to assess whether a hearing on the "list" was even required. Counsel attends the Trial Coordinator ("TC")'s office to set dates for application dates and trial dates. For TRIAL: December 16-18, 2020 – defence available; Crown unavailable; January 6-8, 2021 – accepted by both parties. For s. 278.3 Application the TC offered: October 7, 2020: defence was available, but advocated for an earlier date. TC offered August 26, 2020 which was accepted.
December 13, 2019	Counsel writes to Crown to reiterate outstanding disclosure requests.
January 20, 2020	Crown writes to counsel indicating she has requested the outstanding item(s) from the OIC whom she expected to hear back from "mid-February."
February 4, 2020	Counsel served and filed its s. 278.3 application.
February 5, 2020	Counsel writes to newly-assigned Crown (#2) to advise that application had been served and filed; asks Crown to confirm service on complainant, preservation of record in question, and complainant's position on issues.
February 6, 2020	Crown (#2) writes to counsel to advise that file had been re-assigned to another Crown (#3). Crown #3 follows up the same day, acknowledging receipt of counsel's correspondence and undertaking to facilitate service of application materials through OIC.
February 14, 2020	Counsel advises Crown in writing of the Applicant's anxiety in getting the matter to trial, and that an 11(b) application will be brought if earlier dates could not be found. Crown agrees to attend the TC's office with counsel on February 21st to request earlier dates.
February 21, 2020	Crown notifies counsel that she has a conflict and is unable to attend the TC's office to ask about earlier dates; undertakes to email the TC as a first step. Counsel agreeable.
February 28, 2020	Counsel has not heard from Crown. Writes to inquire on request of TC. Crown advises that TC is away until March 4th on vacation and that she will contact her then.
March 4, 2020	Crown emails TC to ask for earlier trial dates.
March 5, 2020	TC responds, offering two sets of dates in April and May 2020. Defence available and suggests taking both dates: April for Application and May for trial. Numerous additional April dates were also offered for the Application. Crown indicates she needs to check with her scheduler.
March 6, 2020	Crown writes to counsel and the TC to advise that the complainant is not available for the trial dates offered in May, and that she could therefore not accept those dates. Counsel requested that other potential dates for trial be sought, as well as 11(b) hearing dates if none could be found.
March 10, 2020	The TC indicated that no other trial dates were available. Dates were offered for the 11(b) in May and June, but the Crown was not available until the second July date offered. Motion scheduled for July 16, 2020.
July 16, 2020	11(b) motion via Zoom.

Applicable Legal Principles

[10] Four years ago in Jordan, the Supreme Court of Canada shone a spotlight on what it famously identified as the "culture of complacency" towards delay within our criminal justice system. The court made it clear that the collective habits which had contributed to the creation of this notorious culture needed to change.

[11] The Jordan framework for analyzing whether an accused person's right to a trial within a reasonable time has been breached centres on two presumptive ceilings: 18 months for cases tried in provincial courts, and 30 months for cases tried in superior courts. The first of these ceilings is engaged in this case.

[12] The application of the framework is now well-known, and seldom the subject of dispute. The parties agreed on its parameters. The first step in the analysis is the calculation of the total delay from the charge to the actual or anticipated end of the trial. Then defence delay is subtracted from this period to determine the net delay.

[13] If the net delay falls above the presumptive ceiling, the delay is presumptively unreasonable. A stay of proceedings will follow unless the Crown can rebut this presumption by establishing that there are exceptional circumstances which resulted in delay that can be subtracted from the calculation to rebut the presumption.

i) Calculation of Net Delay

[14] The parties in this case agreed that the delay "clock" began to run on July 1, 2019, when the Applicant was informed by Peel Police that there was a warrant out for his arrest for the offences of sexual assault and sexual exploitation. Although the Information was not sworn until two days later, it was agreed that the authorities support the calculation being made from the date of a defendant being charged, or subject to a legal obligation related to the allegation. Such was the case here.

[15] The total delay in this case is 18 months, 7 days.

a) Defence Delay

[16] The first step in the calculation of the constitutionally relevant period of delay for the Jordan analysis is to identify and subtract any defence delay from the total or gross delay.

[17] Defence delay can arise through waiver or conduct. However, not all delay caused by the defence should be deducted under this component. The Supreme Court of Canada has recognized that an accused's person's right to make full answer and defence requires that they and/or their counsel be permitted time to review disclosure, prepare and present its case. Therefore, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay and should not be subtracted. The only deductible defence delay is conduct which is either (1) solely or directly caused by the accused; or (2) the result of "illegitimate" conduct, insomuch as it is not taken to respond to the charges.

[18] The Crown submits that two weeks should be deducted for defence delay for the period between the second appearance (August 26, 2019) and third appearance (September 23, 2019). The Crown characterized counsel's request for a four-week adjournment between these dates as "excessive," and "atypical" for the stated purpose of reviewing the second parcel of disclosure.

[19] There is no merit to this argument.

[20] Counsel for the Applicant corresponded with the Crown to request disclosure even before his first appearance, on July 30th. On that date, counsel attended and was directed to the disclosure 'hub" outside the courtroom to collect disclosure. A package was provided. When the package was later opened at counsel's office, it was revealed that the primary Crown witness statements had not been included. Counsel was informed that the release of those statements required her signature on an undertaking – which was not provided for her to sign at the time of her attendance at the hub.

[21] As a result of this administrative oversight, counsel did not in fact receive the key statements until the second appearance on August 26th. The fact that summaries of these statements had been given in the initial package was of no moment as it remained counsel's obvious responsibility to comprehensively review the original statements themselves. Counsel's request of four weeks' time for her review of the substance of the Crown's case was an entirely reasonable and therefore "legitimate" action taken in contemplation of the defence. There will be no subtraction of time for defence delay for this adjournment.

[22] Since there is no defence delay to subtract from the total delay here, and the net delay exceeds the Jordan guidelines, the remaining analysis shifts to consideration of whether any exceptional circumstances exist which could operate to reduce, and make reasonable, the overall delay.

[23] Before moving to that portion of the analysis, however, I make the following observations about the defence conduct in this case, which I believe remain germane to the overall "bird's eye" view which Jordan invites trial judges to maintain in their consideration of 11(b) applications. In this case, it should be observed that beyond the wholesale absence of any "illegitimate" conduct which could be construed as defence delay, the record reveals that the Applicant made meaningful and sustained efforts to move the matter forward throughout. These steps included:

1. Retaining counsel before charges were even laid;
2. Requesting disclosure before the first appearance;
3. Reviewing initial disclosure immediately upon receipt, and writing a letter to the Crown detailing the outstanding items;
4. Participating in Crown and Judicial pre-trials quickly before disclosure was even complete;
5. Seeking the complainant's position (through the Crown) with respect to the procedural motions early, in an effort to potentially resolve or streamline issues;
6. Filing a Notice of Application for the s. 278.3 motion months before it was due;
7. Advising the Crown of the significant financial and social prejudice being experienced by the Applicant and actively seeking earlier trial dates;
8. Agreeing to the earlier trial and application dates offered (April and May 2020), even though such dates were only two months' time from when they were offered (March 6, 2020); and,
9. Seeking the earliest possible 11(b) motion dates, agreeing to the earliest dates offered (May and June 2020), and requesting the assignment of another Crown who might be available to argue the motion at the earliest opportunity.

[24] I point out these steps in order to illustrate the extent to which the Applicant clearly demonstrated a sustained and meaningful effort to expedite the proceedings from the very outset.

b) Exceptional Circumstances

[25] The Crown submits that the basis for its decision to decline the May 2020 trial dates, namely: the conflict with the dates of the complainant's high school exams should be considered a discrete "exceptional event" which should factor in to the Jordan calculus.

[26] Exceptional circumstances generally fall into two categories: discrete events and particularly complex cases. Discrete exceptional events may include (but are not limited to): medical or family emergencies, the recantation of a witness, the appointment of the accused's counsel to the bench. Exceptional circumstances need not be rare, but they must be either "reasonably unforeseen" or "reasonably unavoidable." The event must also be something which cannot be reasonably remedied by the Crown once it arises. The court in Jordan left the determination of exceptionality to trial judge's good sense and experience. Where found, the delay caused by such events is deducted from the net delay.

[27] I cannot accept the Crown's analysis and decline to characterize this event as an "exceptional circumstance" for the purpose of the Jordan analysis.

[28] Context is critical to the assessment of a case chronology for the purpose of a s. 11(b) analysis. The devil is in the details of the individual case. These include the more obvious factors such as the relative legal complexity of the case, the number and nature of witnesses expected to be called, and time requested for submissions. The corresponding calculus of this initial estimate is typically quite straightforward and is seldom the subject of much debate in the assessment of unreasonable delay.

[29] What follows are the more subtle, or nuanced factors that bear on the analysis of the case chronology as part of 11(b) analysis. The court's evaluation of whether a particular event qualifies as an "exceptional circumstance" which stops the 11(b) clock looks to these particular factors.

[30] The Supreme Court in Jordan acknowledged that trials "are not well-oiled machines." It is understood that unforeseeable or unavoidable breakdowns can happen, which bring the case to a halt and result in scheduling targets being exceeded.

[31] Trial judges are instructed to be alert to the practical realities of trials, which can include unpredictable events. However, to be considered an exceptional event for the purpose of 11(b) analysis, the court in Jordan emphasized that the circumstance must lie outside the Crown's control, in the sense that (1) they are reasonably unforeseen or reasonably unavoidable; and (2) Crown counsel can not reasonably remedy the delays emanating from those circumstances once they arise.

[32] To be sure, once the presumptive ceiling is breached, the Crown can no longer simply point to a past difficulty. Jordan makes it clear that this is "not enough".

[33] The three responsibilities which Jordan unmistakably identifies as incumbent on the Crown within its duty to bring a defendant to trial within a reasonable time are:

1. to anticipate potential scheduling problems;
2. to take reasonable steps to avoid them, when they occur; and
3. to address any problems promptly.

[34] In written submissions, the Crown indicated that it learned of the complainant's exam schedule on March 6, 2020, thereby leading to its rejection of the second set of earlier trial dates offered in response to the applicant's persistent requests. The Crown submits that this event should be characterized as "exceptional" as it could not have been anticipated or addressed. I disagree for the following two reasons.

[35] Firstly, the charges here include a count of sexual exploitation pursuant to s. 153(1)(a) of the Code. By definition, this offence applies to complainants who are of high school age. The Crown knew from the outset that its primary witness was a secondary school student, for which spring examinations are the rule, not the exception. This fact was known from the moment that the defendant was charged, in July 2019. It was therefore among the unique circumstances of this case which the Crown had the responsibility to account for.

[36] To be clear, this conclusion is in no sense to be read as a criticism of the complainant, whose culminating exams would undoubtedly have been a very important event on her scholastic calendar, which she was entitled to attend. In no sense was it her responsibility to anticipate the potential for a conflict between her exams, and the defendant's trial. That was the Crown's job, not hers. Regrettably, it does not appear that the scheduling issue arising from the complainant's exam dates was either anticipated (when it could have been), addressed or avoided by the Crown. Once the conflict was discovered (March 6) the record reveals no action by the Crown to inquire into any potential alternatives – such as the possibility of adjusting the complainant's exams or using some of the dates offered for the evidence of other witnesses. Instead, both blocks of time were rejected outright.

[37] Second, the Crown's conduct must be assessed in context. As of February 14, 2020, the Applicant's counsel had put the Crown on explicit notice that her client was experiencing significant financial and reputational damage arising from the delay of his trial, and anxiously wished for an earlier one. The trial date which had been already set (for January 2021) was already outside the presumptive 18-month Jordan ceiling. The record suggests that the Crown was either unaware, or unconcerned with this fact.

[38] In other words, although this point was not strenuously argued on this application in submissions, by December 12, 2019, when the trial date was set 13 months' away, in January of 2021, the 11(b) damage was already done.

[39] Ironically, it was the defence who then went on in a series of exchanges in February 2020 between she and the Crown to try to wrestle the case back to an earlier date, which theoretically could have rescued it from 11(b) peril. Yet these efforts proved to be futile when the Applicant's interest and impetus towards obtaining an earlier date went unmatched by the Crown.

[40] Counsel offered to attend the TC's office with the Crown in person to secure an alternative date. The Crown was unable to personally attend and offered to communicate with the TC by email instead. By the time the Crown communicated with the TC by email, the TC was unavailable due to a previously scheduled vacation.

[41] On March 5, 2020, the Crown and counsel were offered two sets of potential earlier trial dates by the TC (via email): April 29 and May 13th. Five (5) additional single dates were offered for the records application. Counsel for the applicant accepted all of the trial dates and four of the five days offered for the motion. The Crown indicated that she could not immediately commit to any of the dates offered but would respond shortly.

[42] The Crown's hesitation in committing to new dates on March 5th was at least partly due to ongoing uncertainty with respect to the complainant's position on the s. 278.3 application, and the necessity of testimonial aids or CCTV. The s. 278.3 Application had been filed a month earlier, and the request for prompt clarification of the complainant's position with respect to aids had been requested at the judicial pre-trial on December 12, 2019, and in subsequent correspondence from counsel.

[43] A clear response from the Crown on these issues was never received by the Applicant's counsel. Rather, the Crown simply indicated that a child-friendly courtroom was required and that neither the May trial dates or earlier application dates were acceptable. Notably, the Crown did not offer any alternative suggestions or make any apparent effort to move the matter forward. I conclude that the Crown fell short of its obligation to make efforts to mitigate the delay caused by the unavailability of its witnesses, particularly where the alternative was a presumptive breach of the Applicant's constitutional rights.

[44] Jordan offers a number of suggestions to Crowns of steps which can be taken to promptly address scheduling difficulties when they arise:

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.

[45] To the extent that the requirement of a child-friendly courtroom, and scheduling of the s. 278.3 motion added to the complexity of the case and may have compounded the scheduling issues, the record does not reveal any effort on the Crown's part to "streamline" these issues in advance. While it is true that the Crown cannot waive the procedural rights conferred in the Criminal Code to complainants, it was fairly conceded by Ms. Prihar in her submissions that the Crown has a duty to be "proactive" in the clarification of these issues. Components of the Crown's duty here include their responsibility to promptly inform complainants of their rights, encourage their consultation of independent legal counsel, and convey the complainant's position to the defendant's counsel (and the court) with dispatch. When this is not done, inevitable complications and unnecessary delays can follow. Such was the case here.

[46] Early clarification on the issue of whether testimonial aids (most notably CCTV) are required is essential to the effective scheduling of matters in Brampton. The reason for this is simple: there are but two courtrooms (out of approximately 20) for which this equipment is available. The Crown cannot "wait and see" if this equipment might be needed in their cases. They need to clarify this issue quickly, in order to make most efficient use of this limited technology rather than risk even more prolonged delays.

[47] The record remains unclear as to why the Crown did not accept the April 2020 dates offered for either the application, or potentially the trial. One obvious possibility is the complainant had not yet been prompted to seek and consult independent legal counsel in order to convey her position and prepare a response to any applications. The timeline between March and April or May was admittedly short – but it might not have been considered too tight, if the issues had been properly canvassed and prepared for in advance. These issues were explicitly placed on the Crown's radar back at the first pre-trial on October 15, 2019.

[48] I conclude that the scheduling issues in this case were not adequately anticipated, avoided or addressed by the Crown. The existence of secondary school exams falling in the spring of 2020 and potentially impacting the complainant's schedule could have, and should have been considered well in advance. So too should greater efforts have been made by the Crown to encourage a prompt assessment of the parameters of the pre-trial motions impacting on the complainant's procedural rights, and potentially expanding the scheduling complexity of the case. The Crown should consider itself a "primary actor" in finding solutions to potential sources of delay.

[49] The Applicant's counsel was urging early consideration and cooperative streamlining of these issues from the outset, and the Crown's responses to these inquiries were few, and less than forthcoming. It is precisely this tenor of complacency which the court in Jordan called on all justice system participants to change.

[50] The Crown was not the only contributor to the delay in this case, however. The three actors identified clearly by the court in Cody as sharing in the responsibility to bring matters to trial within a reasonable time: the Crown, the defence, and "the system". In this case, the system played an unfortunate part in the resulting delay.

[51] In her usual candor, Ms. Prihar responsibly conceded that the "scheduling situation in Brampton is problematic." Brampton is the largest and busiest criminal courthouse in the province, if not the country. The volume of incoming cases makes the scheduling of trials a necessarily complex and undoubtedly challenging task. However, for years trial courts at both levels in our jurisdiction have observed that the persistent pressure arising from the sheer volume of cases in our courts cannot excuse institutional delays which impede on litigants' constitutional rights to trial within a reasonable time.

[52] The reality flowing from the perilous institutional delay plaguing Peel was astutely and concisely summarized by Justice D. Harris in the opening lines of his recent decision Belle:

When mistakes do happen in Central West Region, immediate steps to contain the damage must be taken.

[53] The trial in this case was scheduled on December 12, 2019. The first dates offered were for December 16th, 2020: just over one year later. These first dates were accepted by the defence but rejected by the Crown. The next available dates of January 6-8, 2021 were accepted by both parties: thirteen (13) months from the date of scheduling, and seven days outside the presumptive 18-month Jordan limit.

[54] The Supreme Court in Jordan and Cody made it clear that the concepts of justice and efficiency are to be viewed as co-dependents, and that for progress to be realized, both "parties and courts" must be vigilant to prevent proceedings from being derailed or needlessly delayed.

[55] In this case, the first available date offered for a reasonably straightforward, two-witness credibility case with a single pretrial motion was over a year away, and outside the Supreme Court of Canada's presumptive ceiling for trials at the Ontario Court of Justice. This was so despite the early and unrelenting efforts by the Applicant to move the matter along and to obtain the earliest possible dates for trial. None of the delay here was caused by the defence. The result here was the denial by the system of the Applicant's right to his trial within a reasonable time.

Conclusion

[56] In Cody, the Supreme Court of Canada confirmed that the Jordan framework now governs the 11(b) analysis: it "must be followed and it cannot be lightly discarded or overruled".

[57] The Applicant has established that the net delay in this case falls above the presumptive ceiling of 18 months. The Crown has failed to discharge its onus of establishing that there are "exceptional circumstances" justifying the excess of time to trial.

[58] The Applicant has established that his right to trial within a reasonable time as guaranteed by s. 11(b) of the Charter was breached. The delay is unreasonable, and a stay must be granted pursuant to s. 24(2) of the Charter.

Released: July 29, 2020

Signed: Justice A. Dellandrea