Court Information

Ontario Court of Justice

Date: August 27, 2020

Information Number: 19-3533

Parties

Between:

Her Majesty the Queen

— And —

Robert Betz

Before the Court

Justice: A.J. Camara

Heard: July 29, 2020

Reasons for Judgment Released: August 27, 2020

Counsel

For the Crown: Rose Branton

For the Accused: Jeffrey Manishen

Reasons for Judgment

Introduction and Position of the Parties

[1] This is an application by Mr. Betz for a finding that his right to a trial within a reasonable time under s. 11(b) of the Charter was breached, and for a stay of the proceedings pursuant to s. 24(1).

[2] The Applicant is charged with sexual assault contrary to section 271 of the Criminal Code. The information was sworn and laid before the court on April 12, 2019.

[3] Mr. Betz's trial dates were scheduled as follows: July 29, Oct 19, Nov 2, 2020 were set for pretrial motions and December 4-10, 2020 were set for the trial proper.

[4] The total delay in this matter is 19 months and 29 days or 608 days. The Applicant's position is that there ought not be any defence delay subtracted from this figure. But even if there are portions of time attributed as defence delay, the resulting net delay still exceeds the 18-month ceiling and inverts the onus onto the Crown to justify the presumptively unreasonable delay.

[5] The Crown's position is that there are 98 days that ought to be attributed to the defence and deducted from the overall delay which would bring the net delay below the Jordan ceiling. Further, the Crown submits that the Applicant cannot establish that he took meaningful steps to demonstrate a sustained effort to expedite the proceedings, or that the case took markedly longer than it should have.

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

Date	Event
12 April 2019	Information sworn
24 April 2019	Arrest
25 April 2019	Released on bail
9 May 2019	Defence requested disclosure
14 May 2019	Case screened and additional disclosure requested by Crown
15 May 2019	Initial disclosure is available
15 May 2019	More witnesses are interviewed (6 in total)
17 May 2019	First Appearance. Initial disclosure provided to defence. Defence requested return date of June 14, 2019 to review the disclosure
22 May 2019	Defence requests further disclosure
23 May 2019	Face Book posts from a witness received by police
28 May 2019	DPN – further disclosure including DVD statements available
29 May 2019	Defence picks-up disclosure and sends a request for further disclosure
4 June 2019	Witness provides a second statement to police and provides information he left out of the first statement
13 June 2019	Crown Emails defence indicating that they have requested the outstanding disclosure and that further disclosure is available
14 June 2019	2nd appearance in Set date court. Defence requests adjournment as they were awaiting further disclosure. Matter adjourned to July 12, 2019
26 June 2019	DPN that further disclosure is available
July 2, 2019	Disclosure is picked-up
July 11, 2019	Portal disclosure is available
July 12, 2019	3rd appearance in set date court. Defence requests adjournment to review a large amount of disclosure. Requests a 4-week adjournment.
August 9, 2019	4th Appearance. Defence indicates they have reviewed the disclosure and requests an adjournment to schedule and conduct a CPT
August 28, 2019	CPT held. It is agreed a JPT is required
Sept 4, 2019	Defence counsel emails the TC to schedule the JPT.
Sept 6, 2019	5th Appearance. Defence requests 1 week to schedule the JPT
Sept 8, 2019	Email correspondence with the TC. The first date available for JPT is Oct 1. Defence is unavailable because it is a religious holiday and takes second date available Oct 15
Oct 4, 2019	6th appearance. Defence requests an adjournment to a date following the JPT.
Oct 15, 2019	JPT conducted. Trial time approved. 3 staggered days for motions and 5 days for trial proper
Oct 25, 2019	7th appearance. Crown ready to set dates. Defence is not ready and requests adjournment to Nov 22, 2019 for final instructions.
Nov 22, 2019	8th appearance. Trial dates set.
Dec 5, 2019	Follow up request made to the police for further disclosure
Jan 28, 2020	Second audio statement of witness who provided statement in June 2019 is available for defence to pick up
Feb 5, 2020	Defence picks up the second audio statement
May 14, 2020	Follow up disclosure request made by the crown to the police
May 26, 2020	Email from defence to trial coordinator requesting date for 11(b) application
June 4, 2020	Accused DVD statement available and picked up by the defence.
July 29, Oct 19, Nov 2, 2020	Motion dates
December 4-10, 2020	Trial dates

The 11(b) Analytical Framework

[7] The Applicant's right to a trial within a reasonable time is guaranteed by section 11(b) of the Charter of Rights and Freedoms.

[8] The SCC held in Jordan that there is a presumptive ceiling on the time it should take to bring an accused to trial. In the Ontario Court of Justice, this presumptive ceiling is 18-months.

[9] The total delay from the date the information is sworn to the actual or anticipated end of trial, subtracting defence delay, exceeds the 18-month ceiling then the delay is presumptively unreasonable, subject to consideration of case-specific exceptional circumstances. If the Crown cannot rebut this presumption, the delay is unreasonable, and a stay will follow.

[10] Once the total delay is calculated, defence delay is then subtracted from it, resulting in net delay.

Defence delay arises from a defence waiver or is caused solely by the conduct of defence. 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 "deliberate 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). These examples were, however, just that – examples. They were not stated in Jordan, nor should they be taken now, as exhaustively defining deductible defence delay. Again, as we made clear in Jordan, it remains "open to trial judges to find that their other defence actions or conduct have caused delay" warranting a deduction (para 64).

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.

[11] Understanding of this illegitimate defence conduct should not be taken as diminishing an accused person's right to make full answer and defence. Illegitimate in the Jordan context is not tantamount to a finding of professional misconduct. Indeed, defence counsel may still pursue all available substantive and procedural means to defend their clients. What defence counsel are not permitted to do is engage in illegitimate conduct and then have it count towards the Jordan ceiling.

The Applicability of Jordan Principles for the Calculation of Defence Delay

[12] The Applicant's position is that the defence acted proactively in their efforts to obtain all the disclosure in this matter. They moved the matter through the court process as quickly as they could given the delay in receiving the disclosure.

[13] The Crown's position is that there are 5 periods of time in which the Crown argues the delay is either attributable to a discrete event or to the defence. Once those periods of delay are deducted from the overall delay, the net delay is within the Jordan time lines and the stay therefore ought not be granted.

1. Period from June 13, 2019 to July 12, 2019

[14] The Crown submits that this period of time ought to be characterized as defence delay because although there were some outstanding pieces of disclosure, the defence was in receipt of a sufficient amount of disclosure to schedule a Crown pretrial to move the matter forward. Furthermore, it was submitted by the Crown that on June 13 that the defence did not know that they were missing the statement of a similar fact witness. That based on what the Crown and defence knew on that date – they were in receipt of substantial disclosure. It matters not, says the Crown, that what was disclosed the next month was significant disclosure and necessary for the defence to review before making necessary decisions to move the matter forward.

[15] The defence takes the position that the disclosure that was missing was important in their assessment of the file and that they needed time to review the material to be able to make the determination about whether it was appropriate to, for instance, waive the limitation period so that the Crown could proceed summarily.

[16] Furthermore, the defence argues, at no point in this time period did the Crown dispute the importance of the missing disclosure, nor propose setting a date for a Crown or Judicial Pretrial on a more expedited basis.

[17] In my view, this period of time ought not be attributed as defence delay. There were significant pieces of disclosure that were being given to counsel that did require review and consideration to be able to properly make decisions before moving the case forward. It would be improper for the court to look at what the defence had received and say because they didn't know they were missing other witness statements, they ought to have moved their matter forward. When in fact, the witness statements that were subsequently disclosed were important as those witnessed form the basis of the Crown's similar fact application.

[18] Like in R v. McIllquham: "Full disclosure was essential so that considered and proper decisions could be made by the defence in terms of how to proceed. Until this disclosure, as requested by the defence, was made, the defence was not in a position to make decisions as to mode of trial, pre-trial motions or to participate meaningfully in trial length estimates".

[19] Moreover, the Crown was largely silent during this time frame and at no point attempted to push defence into setting a date for a crown pretrial nor challenge the defence on the importance of the particular items of disclosure that were missing.

[20] This period of time will count towards the Jordan ceiling.

2. Period from August 9, 2019 – September 6, 2019 (28 days)

[21] The Crown submits that this period of time ought to be attributed to the defence. Having received the outstanding disclosure on July 11, the Crown takes the position that the defence ought to have taken the steps to have at least scheduled a Crown pretrial before attending court on August 9.

[22] Furthermore, the Crown says if I am not inclined to agree with their submission about the entirety of this period, then I ought to at least attribute the period from August 28-September 4 to the defence. The Crown pretrial was held on August 28 where it was determined that a Judicial pretrial was required. The defence did not attempt to set the Judicial pretrial until September 4 some 7 days later.

[23] The defence takes the position, that they were moving this matter along expeditiously and at no time did the Crown complain.

[24] While I agree that during this time frame, the Crown did little to express any urgency in getting the matter moving faster – neither did the defence. There was certainly opportunity to move the matter more quickly. I do not agree with the Crown that the entire 28-days is attributable to the defence, nor is it entirely attributable to the Jordan ceiling.

[25] In my view, it is appropriate to attribute 14-days during this period to defence delay; 7-days attributed for the delay in setting of the crown pretrial and 7-days from August 28-September 4 for the delay in setting the Judicial pretrial.

3. Period from October 1, 2019 – October 15, 2019 (14 days)

[26] The first available date offered to the defence for the Judicial Pretrial was October 1, 2019. The defence was unavailable and agreed to the second date offered by the trial coordinator of October 15, 2019. This period of delay, says the Crown, ought to be attributed to the defence. The Crown argues that when the Court and the Crown are available but the defence is not, that period of delay ought to be attributed to the defence.

[27] The defence disagrees and cites R v. Gill, 2020 ONCJ 124 at para 12-20 for the proposition that the calculus of delay under s. 11(b) must remain a contextual one which is sensitive of the particular circumstances of the individual case, including the reasons prompting the need for the case to be rescheduled. In other words, it is not an all or nothing proposition that the delay counting against the Jordan clock stops the moment a date is offered that the Crown is available, and the defence is not.

[28] In this circumstance, the reason the defence was unavailable for October 1, 2019 was that it was a religious holiday for counsel.

[29] The analysis is not black and white without consideration of the context of the case. Rather, the calculus of delay is a contextual one which is sensitive of the particular circumstances of the individual case. Justice Woollcombe stated in Ameerullah:

To summarize, the appellate authorities, including R. v. Picard, 2017 ONCA 692 (Ont. C.A.); leave to appeal refused, [2018] S.C.C.A. No. 135 (S.C.C.) make clear that s. 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.

[30] Defence was not available for the first date the Judicial Pretrial was offered because October 1, 2019 was a religious holiday. That factor is significant to this analysis. This is not a case of the defence dragging its feet or acting in a manner to intentionally delay the matter moving forward. Rather it was one date that counsel was unavailable. The defence conduct during this period is not illegitimate. The 14-days of delay that resulted from that time frame will not be calculated as defence delay and will count towards the Jordan ceiling.

4. October 25, 2019 to Nov 22, 2019 (28 days)

[31] The Crown argues that this period of time ought to be attributed to the defence. Indeed, the Judicial Pretrial was complete and the time estimates were established. The Crown indicated that they were ready to proceed with setting dates for trial. The defence requested the time to seek final instructions from their client. That adjournment, or delay, was appropriate for defence to make before setting a significant number of days for trial.

[32] That being said, this period of time (28 days) ought to be calculated as defence delay as both the Crown and the court were in a position to set trial dates.

5. Discrete Event: Delay between the swearing of the information and the arrest of the accused

[33] Twelve days passed between the day the information was sworn and when the accused was arrested. The Crown submits that time ought to classify as a discrete event since the police made "reasonable efforts" to locate the accused.

[34] Indeed, like the accuseds in Magiri and Thind, Mr. Betz was seemingly out of the country when the information was sworn. He was arrested upon his return to Canada on April 24, 2019.

[35] There is no suggestion at all that the accused was evading the charge. What these days reflect is a delay in effecting the arrest because the accused was in fact out of the country. The police were reasonably diligent in attempting to affect the arrest of Mr. Betz.

[36] In my view, these 12-days ought to be viewed as a discrete event and will be deducted from the overall delay.

Calculation

[37] The total delay in this case, from the date the information was sworn to the date anticipated to be the last day for trial, is 608 days.

[38] From this total, the portions of defence delay must be subtracted.

[39] Defence delay in this case includes the following:

(1) 14-days for the for the delay in setting of the crown pretrial and the delay in setting the Judicial pretrial

(2) 28-days for the delay when the court and Crown were ready to set trials and defence requested more time for instructions.

[40] The total defence delay is 42 days.

[41] I have calculated the deduction for the discrete event to be 12 days which is the time from the date the information was sworn to the date of arrest. Those 12 days will also be subtracted from the overall delay.

[42] The "net delay" is 554 days; 7 days past the 18-month ceiling.

Exceptional Circumstances

[43] The net delay exceeds the presumptive ceiling. The remaining analysis shifts to a consideration of whether any exceptional circumstances exist, beyond the discrete event already discussed, which could operate to reduce and make reasonable the overall delay.

[44] The seriousness of the offence is not part of the analysis.

[45] Although this case is serious, it is not complex. This is a sexual assault trial with a 276/278 application and a similar fact application. The trial was estimated to be complete in 5-days.

[46] Trial judges are instructed to be alert to the practical realities of trials, which can include unpredictable events. It is understood that unforeseeable or unavoidable breakdowns can happen, which bring the case to a halt and result in scheduling targets being exceeded.

[47] That is not the case here. Nothing occurred that was unforeseen nor unavoidable. The bulk of the delay in this case – some 13-months - was as a result of trial time availability. The system played an unfortunate part in the resulting delay.

[48] That being said, 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. Jordan identifies three responsibilities as incumbent on the Crown within its duty to bring a defendant to trial within a reasonable time. They are:

(1) To anticipate potential scheduling problems;

(2) To take reasonable steps to avoid them; and

(3) To address any problems promptly.

[49] The trial date in this matter was set outside the presumptive 18-month Jordan ceiling. The record suggests that the Crown was either unaware, or unconcerned with this fact.

[50] Jordan offers several suggestions to Crowns of steps which can be taken to promptly address scheduling difficulties.

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.

[51] The Crown took no steps to address this situation. No attempt was made to secure earlier dates. No attempt was made to put the case before the Local Administrative Judge to obtain earlier dates.

[52] As Justice Dellandrea stated in R v. Elakrat:

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.

[53] In this case, the first date offered for a straightforward sexual assault trial with two pretrial motions that were reasonably anticipated from the outset, was over a year away and outside Canada's presumptive ceiling for trials at the Ontario Court of Justice.

Conclusion

[54] The delay is presumptively unreasonable. The application is granted. The Applicant's rights pursuant to s. 11(b) of the Charter to be tried without reasonable delay have been breached and he is entitled to a remedy.

[55] In accordance with s. 24(1) of the Charter, I impose a stay of proceedings.

Released: August 27, 2020

Signed: Justice Amanda J. Camara

At: Hamilton, Ontario