ONTARIO COURT OF JUSTICE

CITATION: R. v. Brett-Hughes, 2022 ONCJ 31

DATE: 2022 01 24

COURT FILE No.: Brampton 20-6078

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

— and —

JAIDEN BRETT-HUGHES

Applicant

Before Justice M.M. Rahman

Section 11(b) application heard December 31, 2021

Reasons for Ruling released on January 24, 2022

Amita Persad-Ford........................................... counsel for the Crown, respondent

Sherif Foda....................................................... counsel for the defendant, applicant

RAHMAN J.:

1. Overview

[1] The applicant is charged with assault and mischief. He applies for a stay of proceedings on the grounds that his right to a timely trial under s. 11(b) has been violated.

[2] The parties agree that the total delay in this matter is over the presumptive 18-month Jordan[^1] ceiling. The applicant was charged with these offences on July 4, 2020. His trial is currently scheduled for February 7 and 8, 2022, making the total delay from charge to trial 19 months and five days.

[3] The applicant says that he has not been responsible for any of the delay in this matter and is therefore entitled to have his charges stayed. The Crown argues that four periods of defence delay should be subtracted from the total delay. The Crown argues that once these periods of delay are subtracted from the total delay, the net delay is just under 15 months. Because the applicant does not argue that he can succeed if the delay is under the ceiling, the Crown says that the application should be dismissed.

[4] These reasons explain why I find that there was defence delay in this case, and why I am dismissing the application for a stay of proceedings.

2. The Jordan Analysis

2.1. Total Delay

[5] The total delay from the date that the applicant was charged (July 4, 2020) to the anticipated end of trial (February 8, 2022) is 19 months and five days.

2.2. Defence Delay

[6] Defence delay must be subtracted from the total delay to determine the net delay. If the net delay exceeds the 18-month Jordan ceiling, the delay is presumptively unreasonable.

[7] The Crown says that there are four periods of defence delay in this case.

(1) A 24-day period between October 13, 2020 and November 5, 2020

(2) A 33-day period between March 12, 2021 and April 13, 2021

(3) A 14-day period between April 15, 2021 and April 29, 2021

(4) A 56-day period between December 14, 2021 and February 7, 2022

[8] I will consider each of the foregoing periods in turn.

2.2.1. October 13, 2020 to November 5, 2020

[9] The Crown alleges that the defence is responsible for this period of delay because the defence did not request disclosure until November 5, 2020. The Crown notes that disclosure was ready in July but that, because the applicant was not represented, he may not have known how to access disclosure. However, the Crown says that the applicant clearly had counsel at his court appearance on October 13 and that counsel would have known to request disclosure on October 13. As it happens, because of difficulty with uploading disclosure to the online disclosure hub, disclosure was not available until December 29, 2020.

[10] I cannot agree with the Crown that this constitutes defence delay. The defence’s request for disclosure, even if it was not prompt or timely, did not cause any delay here. The Crown was unable to make disclosure accessible to the defence until December 29, 2020. Thus, the Crown cannot say it was ready to proceed until then. Delay can only count against the defence when the Crown and the court are ready to proceed, but the defence does something to slow the progression of the case.[^2] The defence’s delay in requesting disclosure did not cause any delay in moving the case forward. It was the Crown’s inability to make disclosure accessible until December 29 that delayed the case’s progression through the system. This period cannot be regarded as defence delay.

2.2.2. March 12, 2021 to April 13, 2021

[11] The Crown argues that the defence is responsible for this month-long period of delay because it did not contact the trial co-ordinator’s office to set up a scheduling meeting until the evening of April 12, 2021 (effectively April 13). The judicial pre-trial (JPT) in this matter took place on March 5, 2021 and the trial time estimate form (TTEF) was completed at that time. The Crown acknowledges that the defence would have had to get instructions after the JPT and submits that a week would be a reasonable period for this to happen.

[12] The applicant says that he is not responsible for this period of delay. Though he acknowledges not contacting the trial co-ordinator until April 12, he says that it was not his obligation to do so. The applicant says that it is the Crown’s obligation to bring him to trial, and there is no reason the onus should be on the defence to initiate the trial scheduling process. The applicant says that there is no evidence about Brampton’s trial scheduling practice, so there is no basis for the court to infer that the scheduling practice here requires the defence to contact the trial co-ordinator’s office. In any event, the applicant says even if he bears some responsibility for the delay it is a shared responsibility with the Crown. He says that since he is not solely responsible for the delay, this period cannot properly be considered defence delay.

[13] I cannot accept the applicant’s argument. I agree with the Crown that the applicant’s failure to contact the trial office caused this period of delay. I say that for the following reasons.

[14] First, a factual point about trial scheduling. As Crown counsel observed during her submissions, it is apparent from the TTEF itself that the defence must contact the trial office and send in the TTEF form to start the trial scheduling process. The top of the first page of the form has instructions, clearly directed at defence counsel, to complete the form and to submit the form to the trial co-ordinator’s office. Assuming the court required evidence of how trials get scheduled in Brampton, this is that evidence. It was the applicant’s responsibility, after the judicial pre-trial to get the ball rolling.

[15] Second, the applicant’s description of defence delay as involving acts “solely” caused by the defence is not completely correct. In summarizing the meaning of defence delay the court described it as delay “caused solely or directly by the defence’s conduct.”[^3] Similarly, in Cody, the Supreme Court refined the definition of defence delay as delay “(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 charges.”[^4] As I will explain below, the applicant’s failure to take the required steps to schedule his trial caused delay here.

[16] Third, the applicant’s submission that it is principally the Crown’s responsibility to bring an accused to trial is not consistent with either the letter or the spirit of Jordan. The Crown’s ultimate responsibility to bring a case to trial does not mean that the Crown bears sole responsibility for every individual step taken towards that goal. The Supreme Court made clear that Jordan represented a major change in the way courts should consider and calculate delay under s. 11(b) of the Charter. In Cody, the court explained that “inaction may amount to defence conduct that is not legitimate” and that “illegitimacy may extend to omissions as well as acts.”[^5] The court stressed that “illegitimacy in this context does not necessarily amount to professional or ethical misconduct on the part of defence counsel,” but rather, “legitimacy takes its meaning from the culture change demanded in Jordan.”[^6] The court noted that the right to a timely trial comes with a corresponding “responsibility to avoid causing unreasonable delay.” The court made clear that the job of getting a case to trial is no longer solely the Crown’s responsibility:

Defence counsel are therefore expected to “actively advanc[e] their clients’ right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and . . . us[e] court time efficiently” (Jordan, at para. 138).

[17] The Crown was ready to set a trial date after the judicial pre-trial. The applicant’s failure to take timely steps to schedule his trial, as he was required to do, directly delayed the progress of this case through the system because it delayed the scheduling process. It was illegitimate in the sense that it was inaction that was not in keeping with the culture change mandated by Jordan (though, to be clear, it was neither unprofessional nor unethical). Therefore, the applicant is responsible for the delay during this 33-day period.

2.2.3. April 15, 2021 to April 29, 2021

[18] The trial co-ordinator’s office responded to the applicant’s request for a trial scheduling meeting on April 15, 2021 and asked counsel to send the TTEF. The applicant’s counsel did not send the form for another two weeks, until April 29, 2021. The applicant again argues that this period does not constitute defence delay because the Crown took not steps to move the matter forward.

[19] Again, for the reasons mentioned above concerning the March 12 to April 13 period of delay, the applicant’s inaction here means that this 14-day period is also defence delay.

2.2.4. December 14, 2021 to February 7, 2022

[20] The final period of alleged defence delay concerns the scheduling of the trial itself. The trial scheduling conference took place on May 25, 2020. The first date that the Crown and the court were available to accommodate the applicant’s trial was December 14, 2021. The applicant was not available on that date. The first mutually available date after that was February 7, 2022. The Crown alleges that this 56-day period constitutes defence delay.

[21] The applicant says that this fourth period of delay is not defence delay for two reasons. First, he says that because he was available in June, before the first trial dates that the Crown was available, this period should not count as defence delay. He says that the Crown was not available for those dates and there is no explanation for that unavailability. Second, he says that, even putting aside the June date, the period between December and February is not defence delay because the defence is not required to be in a perpetual state of readiness. Relying on the Supreme Court’s pre-Jordan decision of R. v. Godin,[^7] he notes that the defence is not required to be “perpetually available.”

[22] I cannot accept the applicant’s position. The period between December 14, 2021 and February 7, 2022 is properly characterized as defence delay for the following reasons.

[23] First, the fact that the applicant was available in June is of no significance in these circumstances. The argument that the defence’s prior availability somehow mitigates defence delay was considered and rejected by the Court of Appeal in R. v. Mallozi.

[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.[^8]

[24] Second, even if one applies the less categorical and more flexible approach advocated in some cases,[^9] the applicant would still properly be responsible for this delay. This is not a case where the applicant was only offered a single date, but was available on multiple other subsequent dates that the Crown was not. Rather, the reverse is true. The applicant was unavailable for the six sets of dates offered after December 14, including January 5, 2022. The Crown was available for all of those dates. I see nothing unfair about attributing the delay after December 14 to the defence.[^10]

[25] Moreover, using the so-called “contextual approach” to calculating delay would have to consider that it was unrealistic to expect either party to have been available for the June 2021 trial dates. As Crown counsel explained in her submissions, setting a trial date only one week after the scheduling conference would create a serious scheduling problem for the Crown. The Crown itself requires some time to prepare itself for trial, most importantly by subpoenaing witnesses. While the Crown is not an ordinary litigant, it is still a party to the proceedings. The Crown’s significant institutional resources do not allow it to perform miracles. Although our law properly recognizes differences in the way the Crown and defence are treated, and what is expected from each side, that does not mean the Crown must accept consequences for being unable to meet unrealistic goals. Had the situation been reversed, and the defence had been offered a trial date a week away when the Crown and the court were available, it would not have been fair to stop the Jordan clock because accepting that date would have been unreasonable. The same reasoning should apply in the circumstances to the Crown.

[26] Finally, the applicant’s reliance on Godin is misplaced. Attributing this period of delay to the defence does not suggest that the defence must hold itself in a state of perpetual availability. As mentioned above, the applicant was provided with more than one set of dates. He was not available for any of these dates until February. His unavailability delayed the scheduling of the trial. Therefore, it is quite properly considered defence delay. I also note that the statement in Godin about the defence not having “to hold themselves in a state of perpetual availability” dealt with a very different situation than this case. In Godin, a trial date had to be re-scheduled as a preliminary hearing because the Crown re-elected to proceed by indictment after receiving some new information. When re-scheduling the matter, the defence had several earlier dates than the first date available to the Crown and the court. Cromwell J. found that it would not be reasonable to stop the clock “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.” [emphasis added]. In the applicant’s case, he was scheduling a first trial date. This was not a case where the Crown bore responsibility for re-scheduling. Assuming Godin has survived Jordan,[^11] this aspect of it does not apply here.

2.2.5. Conclusion regarding defence delay

[27] The total defence delay in this case is 103 days.

2.3. Net Delay

[28] The net delay in this case is 15 months and 19 days. Because that delay is under the 18-month ceiling, the applicant must demonstrate that the delay is unreasonable. Although the applicant’s notice of application said that a stay would be warranted even if the delay is under the ceiling, during oral submissions, applicant’s counsel said that he was not pursuing a stay of proceedings should the court find that the net delay is less than 18 months. That is a reasonable concession since the record would not have supported a finding that the defence took meaningful and sustained steps to have the matter tried quickly.[^12]

3. Conclusion

[29] The net delay in this case falls under the presumptive ceiling. The applicant acknowledges that he cannot otherwise establish that the delay is unreasonable.

[30] The application for a stay of proceedings is dismissed.

Released: January 24, 2022

Justice M.M. Rahman

[^1]: R. v. Jordan, 2016 SCC 27.

[^2]: Ibid. at para. 64, “the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not.”

[^3]: Jordan, at para. 66 (emphasis added).

[^4]: R. v. Cody, 2017 SCC 31, at para. 30 (emphasis added).

[^5]: Ibid., at para 33.

[^6]: Ibid., at para. 35.

[^7]: R. v. Godin, 2009 SCC 26.

[^8]: R. v. Mallozzi, 2018 ONCA 312 at para. 6 citing Jordan, para. 64.

[^9]: R. v. Ameerullah 2019 ONSC 4537 at para. 28; R. v. Betz, 2020 ONCJ 377 at para. 29; R. v. Mikhailov, 2020 ONCJ 507 at para. 32; R. v. Matthew, 2021 ONCJ 60 at para. 112.

[^10]: The defence’s availability for a very early date is not completely irrelevant for s. 11(b) purposes. For cases where the delay is under the ceiling, the defence’s early availability may be relevant in considering defence initiative as part of actions that the defence took to expedite the trial.

[^11]: Some cases have found it has not or expressed doubt about its continued application. See for example R. v. Bilachi, 2019 ONSC 5149, at para 32; R. v. Grewal, 2018 ONCJ 108, at para. 16; R. v. Brown, 2020 ONSC 6350, at para. 29; R. v. Perhinski, 2018 ONCJ 684, at para. 23; R. v. Tavafoghi, 2018 ONSC 2213, at para. 23.

[^12]: The acts which caused defence delay in this case would be enough to defeat any argument that the applicant took meaningful and sustained steps to expedite the matter.