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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Ontario Court of Justice

Date: August 29, 2022 Court File No.: Toronto 20-75000434

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

M.K.

Before: Justice Hafeez S. Amarshi

Written reasons for judgment released on August 29, 2022

Counsel: P. Hamm, counsel for the Crown Y. Katodia, counsel for M.K.

H.S. Amarshi J.:

DELAY APPLICATION RULING

A. Introduction

[1] M.K. brings an application for a stay of proceedings under s. 24(1) of the Charter as a result of an alleged violation of his s. 11(b) right to a trial without unreasonable delay.

[2] It is not in dispute that the total period of delay in this matter is 858 days, equivalent to 28 months and 7 days. This period is inclusive from the date the Applicant was charged – January 25, 2020, until May 31, 2022 - the anticipated date the trial was to be completed. It exceeds the 18-month ceiling for proceedings in the Ontario Court of Justice established by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27.

[3] By way of a brief summary, the Applicant is charged with multiple assaults and one count sexual assault. The complainant is M.K.’s spouse of 11 years. The incidents were alleged to have occurred in October and December 2019, with the exception of one count of assault, which dates back to October 2015. The Crown proceeded by indictment.

Position of the Parties

[4] The Crown argues the net delay in this case is 17 months and 24 days. This takes into account both exceptional circumstances and defence delay. The Respondent reasonably concedes that this case is not particularly complex to justify delay above the presumptive ceiling if that is a finding of this court.

[5] Mr. Katodia submits a combination of institutional factors and delays in disclosure have contributed to this matter exceeding the Jordan timelines and that a stay of proceedings is warranted in the circumstances. He concedes that the COVID-19 pandemic impacted delay in this matter, but even with that consideration, the net delay was excessive. He disputes any time should be attributed to defence delay and that the Applicant was diligent in his efforts to have an expeditious trial. Mr. Katodia outlined what he deemed as significant prejudice suffered by M.K., who has a pending application for Canadian citizenship. Although I took note of the difficulties faced by the Applicant due to trial delay, the Court in Jordan is clear that prejudice is presumed once the delay has surpassed the presumptive ceiling and I need not consider this factor further.

B. Timeline

[6] The following is a summary of significant dates in these proceedings:

a. January 25, 2020 – the applicant is arrested on two counts of assault, assault with a weapon and sexual assault. The offences are alleged to have occurred in the context of a domestic relationship.

b. March 13, 2020 – the matter is adjourned for three weeks for the Applicant to confirm retainer and for a Crown pre-trial to be conducted. A charge screening form is made available on March 11, 2020. The Crown indicates they are proceeding by indictment and seeking jail upon conviction.

c. Automatic adjournment – the next appearance was cancelled due to the COVID-19 pandemic.

d. August 21, 2020 – neither counsel nor the applicant appeared. Matter was adjourned to October 30, 2020, pursuant to an Ontario Court of Justice pandemic-related directive.

e. October 30, 2020 – the matter is adjourned for disclosure. On the same day, counsel Yuvraj Katodia sends a disclosure request via e-mail to the College Park Virtual Crown. In the letter, Mr. Katodia confirms he is retained.

f. November 2, 2020 – disclosure is provided electronically, including the complainant’s video-taped statement to police. Of note, this same disclosure was first made available on February 11, 2020. It was picked up on March 11, 2020, by the Applicant’s previous counsel.

g. December 4, 2020 – Counsel for the Applicant indicates a Crown pre-trial had been conducted recently and that a judicial pre-trial (JPT) is to be held on January 14, 2021.

h. January 15, 2021 – Mr. Katodia confirms in set date court that a judicial pre-trial had been conducted and trial dates were to be scheduled.

i. February 5, 2021 - Agent for counsel advises that trial dates had not been scheduled. He seeks an eight-week adjournment. The matter is adjourned for a shorter period.

j. March 19, 2021 – Agent for counsel advises that trial dates have been selected for January 28 and 29, 2022. A second judicial pre-trial is scheduled for November 26, 2021.

k. November 26, 2021 - A “second event” judicial pre-trial is conducted, but counsel does not address the matter in set date court. A short adjournment follows.

l. November 30, 2021 – Neither counsel nor the Applicant attends court. Short adjournment.

m. December 3, 2021 - Neither counsel nor the Applicant attends court. The matter is adjourned to the trial date.

n. January 27, 2022 – The trial could not be reached in Courtroom 510. No other courts were available to provide assistance.

o. May 30 and 31, 2022 are identified as new trial dates.

C. Applicable Principles

[7] In R. v. Jordan, the Supreme Court outlined the analytical framework to determine whether delay in time to trial is unreasonable. Where total delay at the Ontario Court of Justice exceeds 18 months, the delay will be presumptively unreasonable, subject to a consideration of case-specific exceptional circumstances. As the Court explained at paragraph 40, “Unnecessary procedures and adjournments, inefficient practices, and inadequate institutional resources are accepted as the norm and give rise to ever-increasing delay. The culture of delay “causes great harm to public confidence in the justice system.”

[8] The framework in Jordan is summarized by the Ontario Court of Appeal in R. v. Coulter, 2016 ONCA 704. At paras. 34-40, Gillese J.A. provides the following summary:

34 Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).

35 Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, at para. 66).

36 Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).

37 If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

38 Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).

39 If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).

40 If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48). [emphasis in original]

D. Analysis

[9] This application turns in large part on whether I accept the Crown argument that a significant portion of the delay in this trial should be deducted as a result of defence caused delay. In addition, I am to consider the impact of exceptional circumstances in this case.

[10] This analysis requires a detailed review of certain time periods during these proceedings.

(1) January 25, 2020 – March 20, 2020, arrest to suspension of court operations (55 days)

[11] Initial disclosure is made available electronically to the Applicant’s previous lawyer on February 11, 2020, including the complainant’s video-taped statement. The first set date appearance occurs on March 15. On March 20, 2022, as a result of the COVID-19 pandemic, the Ontario Court of Justice begins the adjournment of all out of custody matters. Most court operations are suspended.

(2) March 20, 2020 – October 30, 2020, suspension to resumption of court operations (224 days)

[12] The defence concedes that this period of time be deemed an exceptional circumstance. It is a reasonable concession and this 7 ½ month period amounts to a discrete event and is to be subtracted from the total period of delay. [1]

(3) October 30, 2020 – January 14, 2021, set date to first judicial pre-trial dates (76 days)

[13] A Crown pre-trial is completed on December 3, 2022. A judicial pre-trial is conducted on January 14, 2021. [2]

(4) January 14, 2021 - March 5, 2021, defence delay in setting trial dates (50 days)

[14] Once a judicial pre-trial is conducted and the parties agree to a time estimate the defence is required to complete a “Trial Scheduling Form” which is to be provided electronically to the Trial Coordinator in order to identify dates for trial. Based on e-mail correspondence included in the defence application record, there seems to have been some confusion around this next step. On February 2, 2021. Mr. Katodia sends an e-mail to the assigned Crown at the time – Jennifer Armstrong, and to the College Park Trial Coordinator inquiring whether trial dates had been set. The Trial-Coordinator responds by stating that a trial scheduling form had not been received and directing counsel to contact the assigned Crown. As a result, Mr. Katodia’s associate – Arvind Biswal, follows up via e-mail to Ms. Armstrong on February 16, 2021, inquiring about next steps. Ms. Armstrong does not respond until February 26. She advises counsel that he is to complete the trial scheduling form and offers her assistance with any additional information that may be required to complete the form. Mr. Biswal responds the same day asking Ms. Armstrong to review additional documentation about the case that was sent earlier to the Crown’s Office. Although not explicit in the e-mail, the nature of the request suggests the defence wanted the Crown to reassess whether there remained a reasonable prospect of conviction in light of the additional defence documentation.

[15] One week later on March 5, 2021, Mr. Katodia sends the trial scheduling form via e-mail to the trial coordinator. Two days of trial are subsequently identified – January 27 and 28, 2022. These are the first dates offered by the Trial Coordinator. By March 10 both the Crown and defence have confirmed the January trial dates.

[16] The defence unnecessarily delayed the filing of a trial scheduling form for six weeks. The reasons are two-fold – a lack of familiarity by the defence with the process for setting trial dates at the College Park courthouse and a request that the assigned Crown reassess the viability of the prosecution. There was a clear lack of urgency or diligence on part of the defence in setting trial dates. I appreciate after a JPT is completed there may be some reasonable delay required in the setting of trial dates – for example, for the defence to canvass a resolution position discussed at the JPT. However, in this case the defence delay was unreasonable during this period. As the Court noted in Jordan at paragraph 64, where the court and Crown are ready to proceed but the defence is not, the defence will have directly caused the delay. That is the case here. Both court’s administration and the prosecution were prepared to proceed to the next step in the criminal proceedings, that is, the setting of trial dates once the January 14, 2021, JPT had been completed.

[17] As a result, 50 days are to be subtracted from the period of total delay. This is the period of time from the completion of the judicial pre-trial, when a trial time estimate was available, and the delayed electronic filing of the trial scheduling form by the defence.

(5) March 5, 2021 – January 27, 2022 – filing of the trial scheduling form to the first trial date (328 days)

[18] The January trial dates were formally put on the court record on March 19. A second event JPT takes place on November 26, 2021, where Crown and defence confirm that that they are prepared to proceed to trial.

(6) January 27, 2022 – May 31, 2022 – first trial dates to second scheduled trial dates (125 days)

[19] Although both parties were prepared to proceed, the trial could not be accommodated. On the afternoon of January 27, Peter Hamm, the newly assigned prosecutor, e-mailed the Trial Coordinator to advise of the need to identify new dates for trial. The Trial Coordinator offered March 3 and 4, 2022. The defence was available, the Crown was not. The Trial Coordinator subsequently offered May 30 and 31, 2022. Both Crown and defence are available. Mr. Katodia e-mails the Trial Coordinator to seek earlier dates if possible. He is advised that there are no earlier dates that can be offered. [3]

E. Additional considerations

Delayed disclosure

[20] In the end nothing of consequence turns on this issue, however I will address Mr. Katodia’s argument that the Crown was negligent in their disclosure obligations. I find this not to be the case. Mr. Katodia submits that the initial disclosure was not made available until November 2, 2020, some nine months after the Applicant was charged.

[21] However, this was not the case. A print-out from the Criminal Digital Disclosure Hub indicates disclosure was uploaded by the Crown’s Office on February 11, 2020. [4] Previous counsel for M.K., Nooruddin Waliani, picked up that disclosure on March 13, 2020, based on a signed undertaking that was contained in the Crown's application response materials. For reasons that remain unclear that disclosure was never obtained from Mr. Waliani. A second copy of disclosure was provided to Mr. Katodia on November 2, 2020, which he mischaracterized in his submissions as delayed initial disclosure.

[22] Further, the Crown provided additional disclosure on January 20, 2022, just a week prior to the first trial date. Counsel characterized this disclosure in his written materials as “new evidence before trial.” What the defence neglected to mention was that disclosure was generated as a result of additional materials the defence provided to the Crown on November 21, 2021, which included correspondence and documents related to a pending civil litigation matter between the Applicant and his spouse. Reasonably those materials were put to the complainant during witness preparation and her subsequent statement in response was disclosed to the defence. That context is important in assessing whether the Crown was negligent in their ongoing disclosure obligations. Indeed, I found the Crown’s office to have been diligent in meeting their disclosure responsibilities in this case, with initial substantial disclosure being made available to the defence within two weeks of M.K.’s arrest.

F. Conclusion

[23] The total period of delay in this case is 28 months and 7 days. With deductions to account for defence caused delay and discrete events the net delay is 19 months and 1 week (578 days). [5] This period exceeds the Jordan guidelines for trial in the Ontario Court of Justice and is presumptively unreasonable. The Crown has not rebutted the presumption of unreasonableness based on the presence of exceptional circumstances.

[24] I acknowledge the seriousness of these criminal charges. In the end it is the lack of institutional resources that weighs prominently as a cause for delay. The first trial dates in this matter were scheduled in January 2021, almost 11 months after the parties were prepared to proceed to trial in March 2020. When the matter did not proceed as scheduled, it would have been apparent to all of the criminal justice participants that this case was in jeopardy due to excessive delay. The Trial Coordinator was only able to identify one – two-day block of trial dates before the May 30 and 31 dates. [6] It demonstrates limited institutional flexibility to accommodate cases that are at risk. I further note the Crown could have prioritized this prosecution and agreed to accommodate this trial on top of other scheduled matters but never sought to do so.

[25] A stay of proceedings is warranted in this case.

H.S. Amarshi J.

[1] It is well accepted that the COVID-19 public health crisis is an unprecedented event and is to be considered an exceptional circumstance. See R. v. Simmons, 2020 ONSC 7209, for example.

[2] As outlined in the Applicant’s initial application record. Mr. Katodia filed a supplementary application record during submissions.

[3] Pages 61-63, Applicant’s initial application record.

[4] The Criminal Digital Disclosure Hub is a digital platform that enables the Crown Attorney’s Office to upload and share disclosure with defence lawyers through an online portal.

[5] This period is calculated based on the formula used in R. v. Shaikh, 2019 ONCA 895. Total days are divided by 30.417 to obtain months.

[6] I do not fault the assigned Crown for his lack of availability. Mr. Hamm was broadly available during the months of March and April, just not the early March dates offered by the Trial Coordinator.