Court and Parties

Date: April 4, 2021 Ontario Court of Justice Central West Region Brampton Ontario

Between:

HER MAJESTY THE QUEEN

-and-

TODD BUSCH

Reasons for Judgment

Duncan J.

[1] The defendant is charged with impaired and exceed 80, offence date March 19 2019. This is a pre-trial application to stay proceedings for delay under Charter section 11b.

[2] The evidence and relevant chronology are as follows: a) March 26 2019 – information sworn b) April 2 to June 11 – 4 appearances; getting disclosure; having Crown pre-trial discussions c) June 11 – Counsel attends in person. Says he has had a Crown pre-trial and wants a three-week adjournment and “in the interim will set a judicial pre-trial” – adjourned to July 9 – 11b waived – 28 days d) July 2 – Further Crown pre-trial conducted by e-mail: [1] - Crown writes to defence counsel that there have been multiple [Crown] pre-trials and Crown is waiting to hear from the defence whether it is going to be a trial or a plea. - Defence responds that the plan is to have client do up-front community service work and in-patient rehab with follow up treatment. Asks what Crown position is if that is done. - Crown responds that she thinks “ that in-patient counselling is a great idea. If you continue to waive 11b,then I can keep jail off the table” - It is also agreed that a Judicial pre-trial should be set to keep the matter moving along. e) July 9 – Law student attends and tells court that JPT date set for September 13 [2] – no waiver mentioned – adjourned to September 24. f) September 24 – Post JPT – student appears and asks for further adjournment to get instructions from client and “we would either firm up resolution discussions in the interim, or set trial dates – adjourned to October 8 g) October 8 – different student appears – court is told that case is “ on a resolution track” and “moving towards resolution” – remand sought to get client instructions on resolution – counsel asks for 3 weeks so “ideally the matter will resolve on the next appearance” – asked whether he will waive 11b student says he has “not received instructions to waive 11b” – adjourned to October 29 [3] h) October 29 – No one appeared for the defence i) November 5 – No one appeared for defence j) November 19 – Agent for defence counsel appears – another JPT set for January 14 – case adjourned to January 21 k) January 21 – JPT has been held – agent for counsel asks for short adjournment to confirm instructions – agent says that case “ appears to be on resolution track ” – adjourned to Feb 11 – 11b waived l) February 11 – trial date set for April 12- 14 2021. No mention is made of the months of resolution discussions.

Total Delay

[3] The information was sworn March 26 2019. The trial is set for April 12-14 2021. The total delay is 750 days or 25 months.

Net Delay

[4] The above chronology and summary establish that this case was on a resolution track from at least the email exchange of July 2 2019 to the setting of the trial dates on February 11 2020 – a period of 224 days. It then abruptly changed directions and headed for trial.

[5] Case resolution is essential for the system to function properly. Its importance is evidenced by the extensive analysis and recommendations of the issue by the Martin Committee Report which has been the blueprint for criminal practice in Ontario for decades. The proper characterization of delay while on a resolution track is important to the administration of justice.

[6] At any point in time there are dozens if not hundreds of cases in Peel that are focused more in reaching a resolution than in going to trial. The march to trial is paused by the voluntary choice of the defence in these cases. Most, I suspect, do resolve and therefore 11b considerations seldom if ever arise. But some, like the present case, fail in their resolution attempts and end up being set for trial. How should the time spent attempting resolution be factored into the Jordan analysis?

[7] There is little authority on this issue. In R v Lim [2017] OJ No 5977, a transitional case, Shamai J discussed the issue at some length. She discussed the importance of resolution discussions to the administration of justice and reviewed the pre-Jordan and the few post-Jordan cases. It was seen that all of the cases cited had carved out time periods in pursuit of case resolution from the 11b calculation of time to trial. In the result Shamai J found that the very lengthy time to trial in the Lim case was nevertheless constitutionally acceptable when the lengthy period of resolution negotiations was deducted: Paras 67 – 102. Her characterization of resolution discussions as periods of implicit waiver was succinctly summarized at para 44:

44 The key to the proper understanding of this case is the manner in which we characterize the discussions ongoing through many judicial pre-trials and ongoing correspondence between counsel with a view to resolution of the charges, short of trial. I acknowledge that there was no explicit waiver of the delay by either accused, but given the course of negotiation prior to setting a date in October 2016, the issue of waiver cannot be dismissed that simply. I can only conclude that this is a case of implicit waiver, waiver by conduct of informed, experienced counsel on behalf of their clients. My review of the law of waiver in the context of these plea negotiation follows.

[8] I agree with the analysis in Lim. In my view significant time periods spent in trying to resolve criminal cases should generally be considered delay to trial that is implicitly waived. [4] I am not suggesting that any day on which there is some conversation between counsel about resolution should be deducted. But where counsel have chosen to pursue a path to resolution, any significant time expended in that pursuit should not be considered against the Jordan ceiling if, as here, the attempt to resolve ultimately fails and the case changes direction.

[9] While explicit waiver at each remand might be preferable, in many cases such as this one, appearances are made by students or agents who have no specific instructions to waive and would be uncomfortable doing so. Is the Crown or the Court going to insist that they return the next day just to put a specific waiver on the record? Such a requirement would not be in keeping with the mutual trust and solution-oriented, cordial attitude and approach by counsel that characterizes resolution discussions in this jurisdiction. It would be inimical to that atmosphere for the Crown to always then demand that an explicit waiver be placed on the record.

[10] In any event, we are here dealing with a case where there was no stated explicit waiver. But its absence does not in any way resolve whether there was nonetheless an implicit waiver.

[11] The present case is in my opinion a clear example of implicit waiver – probably clearer than most – because a resolution had actually been reached. The email discussion of July 2 concluded with the Crown saying that if the defendant continues to waive 11b and takes treatment, the Crown will not seek a jail sentence – essentially agreeing with what the defence had just proposed as a resolution. Nothing more was said. Specifically, there was no defence objection to waiving 11b as part of the agreement. Having accepted the resolution offer, the defence must be taken to have accepted the condition that they would continue waiving 11b.

[12] A resolution had been reached and the defence spent the next several months trying to fulfill its part of the agreement – by getting the client to give the required instructions and/or to do the up-front rehab work. After the resolution was reached, the case was no longer going to trial. In my view, the defence was implicitly waiving delay as it attempted to close the deal. [5]

[13] To conclude: There were 224 days of implicitly waived delay. In addition, there were two further periods of specifically waived delay between June 11- July 9 and January 21 – February 11. But since I have already included 7 days of the first period and all of the second period in the implicit waiver, the additional specifically waived time is 21 days. So total waived delay is 224 + 21 = 245 days. Net delay is therefore 750 – 245 = 505 days or 16.8 months.

[14] The net delay is below the presumptive ceiling. No case is made for this case coming within the sub-ceiling exception.

[15] It follows that the application is dismissed.

Released: April 4 2021 B Duncan J

Counsel: R Singh Bal for the defendant R Raeesi for the Crown

Footnotes

[1] E Mail exchange, Affidavit of J Graham. Crown Application Record [2] Scheduling slip from TC reveals that JPT had been set that same day, July 9, almost a month after counsel had said, on June 11, that he was going to set a JPT [3] Defence has conceded that the entire time between Oct 8 and the set date on Feb 11 was defence delay. [4] Jordan para 61 recognizes implicit waiver. [5] At the 11b hearing of counsel conceded that all of the time between Oct 8 and Feb 11 was defence delay. The only period at issue then is July 9 to October 8.