Ontario Court of Justice
Date: 2022.10.20 Court File No.: Toronto 19-21017
Between:
HER MAJESTY THE QUEEN Respondent
— AND —
ALEX YIZHAK Applicant
Before Justice Patrice F. Band
Ruling on s. 11(b) Charter Application
Counsel: Ms. L. Kromm........................................................................................... counsel for the Crown Mr. G. Lafontaine & Ms. J. Kushnir..................................................... counsel for Mr. Yizhak
BAND J.:
Jordan encourages pre-trial s. 11(b) applications. It marked a shift away from the retrospective, reactive approach taken to excessive delay in Morin, preferring instead an approach that allows the parties to know "in advance, the bounds of reasonableness so proactive measures can be taken to remedy any delay."
R. v. K.G.K., [2020] SCC 7 at para. 43, citing R. v. Jordan, [2016] SCC 27 at para 108 (emphasis in original).
I. Introduction
[1] Mr. Yizhak brought a s. 11(b) application after I found him guilty of the firearms related charges he faced. On that date, according to his calculations, the Jordan ceiling had been exceeded by 17 days.
[2] I am compelled to dismiss his application for two separate, but equally sufficient reasons. First, because of its timing in the context of the way this matter proceeded. The Information was sworn on September 25, 2019. Mr. Yizhak’s trial ended on September 9, 2021. That date had been confirmed on February 18, 2021. Mr. Yizhak knew everything he needed to know about the outer bounds of his trial almost seven months in advance. Yet, he did not raise concerns about s. 11(b) to anyone until exactly one year later – the date on which I found him guilty of the offences he faced. In the circumstances of this case, Mr. Yizhak’s inaction deprived the Crown and the Court of the ability to take proactive measures to remedy any delay. This approach is a throw-back to the worst days of the Morin era. It has had a negative impact on the justice system and its limited resources. To paraphrase Jordan at para. 40, to allow it would reward the wrong behaviour, frustrate the well-intentioned, make frequent users of the system cynical and disillusioned, and frustrate the rehabilitative goals of the system. It must be discouraged in the strongest possible terms.
[3] Second, Mr. Yizhak’s application fails to account for delay caused solely by the defence in the period between January 26 and September 9, 2021, which was also marked by defence inaction and inefficiency and must be deducted. No matter which way you slice it, that delay greatly exceeds the 17 days that Mr. Yizhak complains of.
II. Background and Factual Matrix
[4] The matter has had a tortuous history. Mr. Yizhak was charged with firearms-related offences on September 25, 2019. His trial was first set to take place on September 1-4, 2020, well within the Jordan ceiling. He sought and was granted an adjournment of that trial date because motions were ongoing in the “Project” within which his charges arose. He waived his s. 11(b) rights regarding the intervening period of approximately five months until his second trial date, which was set for January 25-28, 2021. Again, that date was within the Jordan guidelines. As it turned out, the matter took a different course because Mr. Lafontaine, Mr. Yizhak’s counsel, added a motion mid-trial. While the motion was legitimate, its tardiness was the result of inefficiency caused by Mr. Lafontaine’s failure to review a part of the disclosure. Scheduling thereafter became difficult, and the trial did not conclude until September 9, 2021. The total delay, from the date on which the Information was sworn to the end of evidence and argument, is over 23 months.
[5] After the trial concluded, I took the matter under reserve until mid-October 2021. However, due to a medical leave that took place between October 2021 and January 2022, I was unable to provide my Reasons for Judgment until February 17, 2022. On that date, matters took an unusual turn. On behalf of Mr. Yizhak, for the first time, Mr. Lafontaine raised concerns about delay and sought a brief adjournment to receive instructions. During that brief adjournment, I instructed the Trial Coordinator to send an email to the parties advising them that I had been on a medical leave, a fact that they had no easy way of knowing without my input. In response, Mr. Lafontaine brought a motion for a mistrial, alleging reasonable apprehension of bias regarding the not-yet-filed s. 11(b) application. Mr. Lafontaine also confirmed that he would also be bringing a s. 11(b) application. He wished for the applications to be heard separately, with the mistrial application going first. He maintained that stance over my questioning in court as well as the Crown’s in correspondence. On March 8, dates were set for the applications: June 15 for the mistrial application and July 4 for the s. 11(b) application.
[6] By May 18, Mr. Lafontaine had not filed any materials in support of the mistrial application. The Crown sought and was granted an adjournment on consent. As a result, the mistrial application was heard on July 4, and a new date was set for the s. 11(b) application: August 12. Things did not go as planned. The mistrial application went ahead on July 4, and on August 10, I released my Reasons for Judgement denying it. However, on August 12 – the date set aside for the s. 11(b) argument – Mr. Lafontaine sought an adjournment, as he wanted to pose some probing questions to me concerning my medical leave. He had not filed them in advance. Fairness dictated that I grant his adjournment request. When I asked him what impact this adjournment would have on the s. 11(b) application, Mr. Lafontaine indicated that he had not turned his mind to that issue. He then indicated that it would amount to defence delay. On August 22, I provided an Endorsement explaining why I declined to answer any of Mr. Lafontaine’s questions. The s. 11(b) application was set down for September 26, and on that date the parties made their submissions.
[7] These Reasons ought to be read in conjunction with my Reasons for Judgment regarding the mistrial application and my Endorsement regarding Mr. Lafontaine’s inquiries, reported at 2022 ONCJ 360 and 2022 ONCJ 377, respectively.
[8] With respect to the attribution of delay, the parties’ dispute centers on what happened between January 25 and September 8, 2021. The original plan was that the four-day trial starting on January 25, 2021 would involve a s. 8 challenge to the warrant that led the police to find a firearm in Mr. Yizhak’s condo as well as the trial proper. Because the sole issue at trial was possession, the time estimate was reasonable.
[9] Mr. Lafontaine did not file his s. 8 materials until January 19, 2021, but the Crown was content to begin the trial on January 25 as anticipated. However, during the s. 8 application, Mr. Lafontaine sought a copy of a PDF document that appeared in the Information to Obtain the Warrant (ITO). The ITO included a WhatsApp chat that made reference to Mr. Yizhak. It had been extracted from the cell phone of a person accused in the same “Project.” In that chat as rendered in the ITO, one can see an icon representing a PDF document. By January 26, Mr. Lafontaine realized that he had never seen the actual document. He asked the Crown for assistance, and it was given to him. It was a Crown Synopsis involving a third party. Having reviewed it, Mr. Lafontaine indicated that he now wished an adjournment to bring a motion for leave to cross-examine the affiant of the ITO. While that motion was not illegitimate, it derailed the proceedings.
[10] At para. 22 and footnote 3 of his factum, Mr. Lafontaine states that the adjournment was occasioned “inter alia, due to the receipt of disclosure that impacted counsel’s approach to which pre-trial motions had been contemplated at the judicial pre-trial stage.” The corresponding footnote indicates that the full extract of the phone data had not been disclosed until October 2021. However, as the Crown correctly pointed out, the ITO depicting the PDF icon had been disclosed in January 2020. More importantly, the full extract of the phone containing the WhatsApp chat had been disclosed in May 2020 – eight and a half months before trial. According to the evidence filed on this application, accessing the PDF document was a simple matter of running the appropriate software (Cellebrite) and double-clicking on the PDF icon. At no time prior to trial did Mr. Lafontaine contact the Crown about that document or how to access it.
[11] The only reasonable conclusion is that Mr. Lafontaine failed to look at it before trial. Disclosure of this sort can be extremely voluminous, and counsel are only human. Mistakes happen. But when they cause delay, the party who is responsible must bear the consequences.
[12] Setting new dates led to a series of emails between the parties and the Trial Coordinator and, at times, me. They are included in the Crown’s Responding Application Record. Mr. Lafontaine declined dates between March 1 and 4, 2021, for his new application. He felt he would not have time to draft his materials in time to give the Crown a chance to respond. When the Crown suggested that the parties reach out to me for my views on how quickly I might turn around a ruling on the application for leave to cross-examine the affiant if it was scheduled in early March, Mr. Lafontaine told her that he preferred not to. This is despite what K.G.K., supra, at para. 75 teaches us about such communications when delay becomes a concern. In any event, I wrote to the parties that I could make a ruling between March 1 and 4.
[13] The Crown also suggested that the s. 8 argument could be heard together with the trial. Mr. Lafontaine disagreed, seeking instead four separate “islands of time,” and the Crown went along with him. Mr. Lafontaine was available on only four days in May and was unavailable for a 7-week period in June and July. For her part, the Crown indicated that she could move things around to make herself available for the entire month of March. Of the period offered by the Court, she was unavailable for a three-week period in August. On February 18, 2021 the matter was scheduled as follows:
- May 7, 2021: Application for Leave to Cross-Examine the Affiant.
- May 25, 2021: Cross-examination of the Affiant (if permitted).
- July 30, 2021: Argument re. s. 8.
- September 8-10, 2021: Trial Proper.
[14] As it turned out, the Court closed due to COVID from April 26 to May 7. The Crown does not argue that this period should be deducted or that the pandemic was otherwise responsible for any of the delays in this case. Mr. Lafontaine was ill in the days surrounding May 25. Thereafter, the parties cooperated and resolved the motion for leave to cross-examine the affiant. Mr. Lafontaine asked two questions, one of which was about the PDF document, and both were answered. As a result, the s. 8 argument went ahead on July 30. I provided my Reasons for Judgment dismissing that application on September 7, and the trial continued on September 8 and 9. In all, the trial took five days – which is consistent with the original estimate plus the motion for leave to cross-examine (which ultimately did not proceed).
[15] Before February 17, 2022, the only time Mr. Lafontaine mentioned s. 11(b) was on January 27, 2021, when the parties agreed to adjourn the matter for the application for leave to cross-examine the affiant. On that date, Ms. Kromm referred to s. 11(b) and Mr. Lafontaine’s response began with “With respect to 11(b), I mean, I don’t presently see it ever becoming an issue, if it ever did.” He then explained that the chips would fall where they may if the issue ever came to pass. I agreed with him that there was no point in arguing about attribution at that stage. In my view, it is sufficient for the parties to put each other (and the Court) on notice as to their position, if any. On that date, both indicated that they did not believe s. 11(b) would become an issue. While I will return to this below, I pause here to indicate that such language should be avoided by counsel in criminal proceedings not only because of the unpredictable nature of litigation, but more precisely because it can foster complacency, or lull participants into acceding to certain inefficiencies when they otherwise might not.
III. The Positions of the Parties
A. As to the Timing of the Application
[16] In her written materials, the Crown relied on passages from the governing authorities, including Jordan, supra, R. v. Cody, [2017] SCC 31 and R. v. J.F., [2022] SCC 17 (which was also filed by Mr. Yizhak). While Jordan does not address the question of when an accused person must bring a motion for relief pursuant to s. 11(b), the Supreme Court stated in J.F., at para. 30, that “the Court has nonetheless been clear about how it wishes all participants in the criminal justice system to act: at all stages of the trial process, everyone must take proactive measures to remedy any delay and ensure that the accused is tried in a timely manner.” The following guidance from J.F. was also excerpted in her factum:
It is generally recognized that an accused who raises the unreasonableness of delay after trial (R. v. Rabba (1991), , 64 C.C.C. (3d) 445 (Ont. C.A.)), and particularly after conviction (R. v. Warring, 2017 ABCA 128 … at para. 11; R. v. C.D., 2014 ABCA 392 …), is not acting in a timely manner. In K.G.K., Moldaver J. interpreted the prospective approach adopted in Jordan as “encourage[ing] pre-trial s. 11(b) applications.” The defence is in fact encouraged to act before the start of the trial, since the Jordan framework allows “the parties to know ‘in advance, the bounds of reasonableness so proactive measures can be taken to remedy any delay.’” (Redundant citations omitted.)
[17] It was a novel issue for me, so I asked Ms. Kromm during argument how to put these teachings into effect when the applicant alleges only that the Jordan ceiling was exceeded. Ms. Kromm was unable to say more than what the Supreme Court had in J.F. For his part, Mr. Lafontaine submitted that J.F. was released in May 2022 – after the facts in this case had crystallized.
[18] To be clear, this issue is not and cannot be about waiver in these circumstances: see J.F., supra, at paras. 43-44.
B. As to the Jordan Framework
[19] Mr. Lafontaine filed his s. 11(b) materials on July 12, 2021. [1] That was before the mistrial application had been argued. His position was that the Jordan ceiling had been exceeded by 17 days. Even though he quite correctly submitted that the case was not complex, he did not argue the alternative; that is, if the net delay fell below the ceiling, the case took markedly too long and the defence took meaningful steps that demonstrate a sustained effort to expedite the proceedings.
[20] He submitted that, aside from the initial waiver between the first and second trial dates, no time should be deducted. Rather, by agreeing to proceed with the application for leave to cross-examine in writing, and then resolving it, he had saved time that would have otherwise been used up by the timelines surrounding the filing of materials. In oral argument, he explained that, had that occurred, and in light of how busy he was that summer, the motion would have been argued at the end of July, causing further knock-on effects.
[21] My “verdict deliberation delay,” as the parties have referred to my medical leave, occupied an important position in Mr. Yizhak’s written materials. Mr. Lafontaine wrote that it was to be addressed in a manner distinct from the Jordan ceilings: see K.G.K., supra, at para. 3. He did not argue that it was markedly unreasonable. Rather, it ought to be treated as an aggravating factor based on what he termed an “intersectionality” argument. As his factum put it, it was “unreasonable in the circumstances of this case, and serves to aggravate the breach of s. 11(b) established per the Jordan analysis outlined above”: see paras. 66 and 67.
[22] Ms. Kromm submitted that Mr. Lafontaine’s mid-trial decision to add a (legitimate) motion to cross-examine the affiant, compounded by Mr. Lafontaine’s unavailability, was the cause of the ensuing delays. According to her, the entire period between January 27 and September 9, 2021 ought to be deducted. This would result in a net delay of approximately 16 months. In the alternative, she argued that the period from March 1 to September 9 should be deducted because the Court and the Crown were ready to proceed with the matter in March, but Mr. Lafontaine did not feel able to provide his materials in time. In that case, the net delay would have been approximately 17 months. In the further alternative, the Crown submitted that some of the period between March 1 and September 9 ought to be deducted. She suggested the seven weeks in June and July during which Mr. Lafontaine was unavailable. Doing so would, once again, bring the net delay below 18 months.
[23] Because the “verdict deliberation delay” was less than half of what was at issue in K.G.K., the Crown argued that it was not “markedly unreasonable.” She also pointed to the fact that, had it occurred during the trial, it would have amounted to a discrete, exceptional circumstance pursuant to Jordan.
[24] In oral argument, Mr. Lafontaine maintained his position with respect to the Jordan ceiling but abandoned the argument that my medical leave was an “aggravating factor.” Instead, he argued that, should I conclude that the net delay was slightly below the ceiling, my “verdict deliberation delay” should bump the delay beyond the ceiling. He acknowledged that that argument is without precedent in law. However, he pointed to the fact that s. 11(b) encompasses the entire trial, including sentencing, and that judges should consider a case’s proximity to the Jordan ceiling when prioritizing their workloads: K.G.K., supra, at para. 69. That said, Mr. Lafontaine takes no issue with the mid-October date that I had initially set for judgment in 2021.
IV. Analysis
A. The Application is out of Time
[25] In Jordan, the Supreme Court set out to change a culture of complacency that had taken root in the criminal justice system. Under the Morin regime, “courts and parties were operating within a framework that [was] designed not to prevent delay, but only to redress (or not redress) it” (para. 35). Jordan jettisoned that regime in favour of one that enhances accountability and imposes an obligation on all participants to act proactively to reduce delay. “For defence counsel, this means actively advancing their client’s right to a trial within a reasonable time, collaborating with the Crown when appropriate and, like Crown counsel, using court time efficiently” (para. 138). Importantly, the Court stated that “[t]he defence should not be allowed to benefit from its own delay-causing conduct” (para. 60). Delays caused solely by defence conduct are to be deducted from the overall delay.
[26] In Cody, supra, the Supreme Court explained that “inaction may amount to defence conduct that is not legitimate” and that “illegitimacy may extend to omissions as well as acts” (para. 33). “[I]llegitimacy takes its meaning from the culture change demanded in Jordan (para. 35).
[27] In J.F., supra, the Supreme Court addressed the timing of s. 11(b) applications. While Jordan did not indicate the point in time when a s. 11(b) application must be brought, “the [Supreme] Court has nonetheless been clear about how it wishes all participants in the criminal justice system to act: at all stages of the trial process, everyone must take proactive measures to remedy any delay and to ensure that the accused is tried in a timely manner” (para. 30). When an accused sees delay lengthening, they must “respond in a proactive manner” and bring a motion “reasonably and expeditiously” (para. 34). The Court accepted that “it is not out of the question that exceptionally, an infringement of the s. 11(b) right will reveal itself once the trial has begun” yet, even in such a case, “the accused must also act proactively.” (Para. 36. Emphasis added.) The accused’s duty to act proactively means that they “must indicate that their right to be tried within a reasonable time has not been respected”…. (Ibid.)
[28] At para. 34, the Court explained that the failure to do so is contrary to the proper administration of justice, because such practice serves to waste judicial resources. Indeed, the Jordan framework is specifically designed to eliminate inefficient practices that impact on the justice system…. Bringing a s. 11(b) motion before the end of trial allows the accused to alert the Crown and the court to their concerns about delay. As a result, all parties can take proactive measures and cooperate to expedite the proceedings. (Internal citations omitted. See also para. 56.)
[29] At para. 52, the Court also spelled out the consequences of failure to act proactively in this regard:
…an accused may not benefit from their own inaction or lateness in taking action. The new framework sanctions an accused’s inaction or lateness in taking action. Inaction may be considered illegitimate conduct, and the delay associated with it may be attributed to the defence when the unreasonableness of delay is being determined. (Emphasis added).
[30] At para. 58, the Court added:
While an accused has no legal obligation to assert their right to be tried within a reasonable time in order for that right to exist (…), this does not entitle the accused to do nothing when they believe that their s. 11b right is not being or will not be respected. The Court’s teachings are clear on this point: s 11(b) does not allow an accused to benefit unduly from the lengthening delay, notwithstanding the fact that it is the Crown that has the constitutional obligation to bring the accused to trial. (Internal citation omitted.)
[31] During the time I have had to consider the matter, I have realized that my question to the Crown – how these principles work within the context of an allegation that the ceiling has been breached – was the wrong question. These principles are part of the fabric of the Jordan decision, whose goal was to change the culture of complacency into one of proactivity and accountability out of concern for the rights of the accused and the interests of others, including the public, in a system with limited resources. They transcend the particulars of the Jordan framework. What is more, they are not new. Rabba and Warring, cited in J.F. in the paragraph excerpted above, were decided in 1991 and 2017, respectively.
[32] As I stated at the outset, Mr. Yizhak knew everything he needed to know about the temporal bounds of his trial in February 2021, yet he failed to raise any concerns about delay, much less act proactively to be part of the solution. In January 2021, Mr. Lafontaine stated that he did not “see 11(b) ever becoming an issue.” Of course, that does not constitute a waiver, and he cannot be faulted for not having a crystal ball. But the fact remains that the defence did not alert the Crown and the Court to any concerns.
[33] It is true that my medical leave, which delayed my verdict and reasons in this case, could not have been predicted by Mr. Lafontaine or anyone else in February 2021. However, that delay played no legitimate role in Mr. Yizhak’s s. 11(b) application. Mr. Lafontaine never argued that it was markedly unreasonable, and he abandoned his written argument that it constituted an “aggravating factor.” This left him with his intersectionality, or bump-up argument. Not only is there no precedent for that argument, but it is also flawed as a matter of law and logic, and must be rejected. First, if a medical leave constitutes “verdict deliberation delay,” K.G.K. requires that it be treated as a separate entity to be assessed against its own standard, independently of the Jordan ceiling. Second, it seems to me that a judge’s medical leave should not be characterized as “deliberation delay” simply because it happens to take place after the conclusion. It is entirely consistent with the language and spirit of Jordan to characterize such a period as an exceptional circumstance. In fact, it would be illogical, if not absurd, to treat a similar period as a discrete event if it happened during the trial but as actionable delay if it took place after closing arguments. In passing, I note that the Criminal Code contemplates remedies where a judge becomes unable to continue a trial at any stage: see s. 669.2. There is no reason why such a leave should be used to somehow pull the net delay up beyond the ceiling. In fact, to do so would be inconsistent with Jordan. To succeed on a delay below the ceiling, the accused bears the burden to demonstrate that they took meaningful and sustained steps to expedite the proceedings. The point that Mr. Lafontaine relies on from K.G.K. is nothing more than a recognition of the reality that s. 11(b) concerns do not vanish at the close of argument and that the Jordan ceilings are not aspirational.
[34] The defence failed to exercise its duty to raise concerns and to act proactively in February 2021, when the bounds of the trial became known. That failure prevented all parties from cooperating and taking steps to remedy the situation. Such inaction constituted illegitimate defence conduct in this case. The accused must not be permitted to run out the clock in silence, and then be rewarded for doing so after trial.
[35] This application should have been brought in the spring of 2021, not after trial when nothing could be done to ameliorate the delay. In the extraordinary circumstances of this case, the defence conduct in regard to this application is fatal because it is contrary to the proper administration of justice.
B. The Jordan Ceiling has not been Breached
[36] Based on the principles I have cited above, the defence conduct in relation to delay beginning in January 2021 is also fatal to the application, because it warrants the deduction of a significant period of time as a sanction.
[37] In addition, I agree with the Crown that the delay caused by Mr. Lafontaine’s discovery of the PDF document, which had been disclosed to him many months before trial, warrants the deduction of a significant period of time between January and September 2021. Simply put, the delays it occasioned were caused solely by the conduct of the defence.
[38] Of course, time taken up by legitimate defence actions is not to be deducted. However, as the Supreme Court explained at para. 32 of Cody, supra, “[i]irrespective of merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay. (Emphasis added.) Seen in combination with his lack of availability and his inaction regarding s. 11(b) concerns, Mr. Lafontaine’s decision to seek an adjournment to file a mid-trial motion based on disclosure that had been overlooked constituted marked inefficiency and marked indifference toward delay.
[39] I would deduct the entire period between January 27, 2021 and September 9, 2022, less a reasonable period for the preparation of the motion for leave to cross-examine the affiant. Given its nature and the two questions at issue, 30 days would have been more than enough time.
[40] The net delay falls well below the Jordan ceiling in this case.
V. Conclusion
[41] The application is dismissed.
Released: October 20, 2022 Justice Patrice F. Band
[1] This was a day later than I had directed.