ONTARIO COURT OF JUSTICE DATE: 2022 12 15 INFORMATION NUMBER: 21-4016
BETWEEN:
HIS MAJESTY THE KING
— AND —
MATTHEW FRASER
Before: Justice M.K. WENDL
Heard on: December 6, 2022 11(b) Ruling Released: December 15, 2022
Counsel: C. Sweeny, for the Provincial Crown A. Valeri, for Matthew Fraser
WENDL J.:
[1] Matthew Fraser is charged with the possession of child pornography. The Crown proceeded by indictment, and Mr. Fraser elected trial in the Ontario Court of Justice. His trial is scheduled to end on February 24, 2023, 21 months and 24 days after the Information was sworn.
[2] Mr. Fraser has brought an application to stay the charges for unreasonable delay pursuant to section 11(b) of the Charter.
POSITION OF THE PARTIES
[3] As the Supreme Court of Canada held in R. v. Jordan [^1], trial in the Ontario Court of Justice must occur within 18 months of the swearing of the Information. In calculating whether the time to trial breaches the Jordan ceiling, the Court must subtract all delay attributable to the defence.
[4] The following chart sets out the time Mr. Fraser’s matter has taken from offence date to trial:
Date Summary Delay (days)
- March 10th, 2017 – March 16th, 2017
- April 3rd, 2020 – December 18th, 2020
- April 22nd, 2021 Offence Dates 0
April 30th, 2021 Arrest Date 0
May 1st, 2021 Information Sworn 0
May 1st, 2021 Bail Hearing 0
June 8th, 2021 First Appearance After Release Counsel adjourned the matter to July 13th, 2021, to complete retainer and review disclosure. Initial disclosure was shared with counsel which included the CPS Report, file descriptions, P2P file names, and memo book notes of Officer M. Wilson. 39
June 10th, 2021 Further disclosure materials were shared with counsel. 41
July 7th, 2021 Further disclosure materials were shared with counsel. 68
July 13th, 2021 Second Appearance After Release Agent for Counsel adjourned the matter to August 17th, 2021, to conduct CPT and obtain instructions. 74
July 28th, 2021 Crown Pre-Trial was held 89
July 30th, 2021 Further disclosure was shared with counsel (accused video statement). 91
August 17th, 2021 Third Appearance After Release Counsel indicated she had a CPT and obtained instructions. A further disclosure request was made for the “extraction report.” Counsel advised she was waiting to receive that disclosure before setting a JPT. 109
September 21st, 2021 Fourth Appearance After Release A date for a JPT was not obtained. Counsel indicated she is still waiting on the “extraction report” but if it was not received in the next week or so would obtain a JPT date. 144
October 26th, 2021 Fifth Appearance After Release Counsel indicated she still has not received the “extraction report” but has scheduled a JPT for November 15th. 179
November 10th, 2021 Further action request submitted by the Crown to Hamilton Police Service for a copy of the “extraction report”. 194
November 15th, 2021 Judicial Pre-Trial Conducted. 180
November 30th, 2021 Sixth Appearance After Release Counsel indicated that she held a JPT and had obtained instructions to set trial dates. However, counsel was waiting to obtain the “extraction report” before setting trial dates. 214
January 11th, 2022 Seventh Appearance After Release Trial dates set on the record – February 22, 23 and 24, 2023. 257
January 11th, 2022 Further action request sent to Hamilton Police requesting “extraction report”. 257
January 12th, 2022 “Extraction Report” Received and Disclosed 258
November 24th, 2022 Earlier trial dates were sought from the trial coordinator by the Crown. Earlier dates of February 8th, 9th, and 10th were offered to defence. Defence was unavailable for the offered dates. 573
December 6th, 2022 11(b) Application 585
February 22nd – 24th, 2023 Trial 665 (21 months, 24 days)
[5] There are 4 time periods which the Crown asserts are defence delay, which, once subtracted, would bring the matter under the 18-month cap.
[6] The Crown submits that the periods from August 17, 2021, to September 21, 2021, September 21, 2021, to October 26, 2021, and November 30, 2021, to January 11, 2022, are defence delay. It was argued that these periods of time are defence delay since it was not necessary to wait for the extraction report to set the matter down for trial or a judicial pre-trial. Furthermore, they argue that the period from February 10 to February 24, 2023, is defence delay since the Crown obtained earlier trial dates and offered them to the defence on November 24, 2022, some two months before the trial was set to begin.
[7] Mr. Fraser contends that receiving the extraction report before scheduling a judicial pre-trial was necessary and therefore the delay should not fall at his feet. Mr. Fraser also argues that if I do find defence delay in waiting for the extraction report, it should be calculated until October 19, 2021 when the judicial pre-trial was set and January 6, 2022, when the trial was set, not the set dates of October 26, 2021 or January 11, 2022, as the Crown contends.
[8] Finally, Mr. Fraser submits that I should reject the argument that he is responsible for the final two weeks of delay, from February 10, 2023, to February 24, 2023, as suggested by the Crown. Simply put, Mr. Fraser’s position is that the Crown provided the earlier trial dates too late, and that defence counsel was already booked in another matter.
11(b) and DELAYED DISCLOSURE
[9] A defendant cannot delay moving a matter forward for nonessential disclosure. As Justice Code stated in Lahiry [^2]:
In any event, as I read the above line of binding authority, outstanding disclosure can often be significant and it still cannot be used to hold up the setting of dates for trial or preliminary inquiry. Sophisticated forensic testing and ongoing investigative steps often take time and they cannot be allowed to hold the process hostage by preventing the setting of timely trial dates. It is only when the missing disclosure is truly material to "crucial steps" in the process, like election and plea, that it will justify delay at these early stages. This is simply common sense. Lawyers can generally adapt and adjust their trial strategy to ongoing disclosure, received from the Crown while awaiting trial. If the Crown is not being diligent in providing disclosure sufficiently in advance of the trial date, then setting confirmation dates and target dates for trial will solve the problem. By bringing the case back to court, a month or two before the target trial date, defence counsel can create a check to prevent dilatory Crown disclosure practises. If the Crown has not completed all important disclosure by the confirmation date, the defence can then adjourn the target trial date and the Crown's actions will have caused the delay.
[10] To substantiate their argument the Crown points out that the extraction report was not available for the pre-trial or when the trial was set, and it did not alter the trial estimate when it was received.
[11] Mr. Fraser argues that, while the report did not alter the trial time estimate, based on the disclosure they received the report could have contained exculpatory evidence, it could have affected the way they proceeded.
[12] On this point I agree with Crown. The proof is in the pudding as they say. The matter proceeded to a judicial pre-trial, a trial date was set without the report, and when Mr. Fraser received the report, it did not alter trial time. Therefore, I find the defence position on this point simply speculative and the delay in setting the trial and pre-trial must count against the defendant.
[13] Ultimately, given the reasoning of Justice Code in Lahiry, a matter should almost always proceed to a judicial pre-trial even if disclosure is incomplete. Incomplete disclosure is an issue that can be discussed at the pre-trial and since most pre-trials in Hamilton are conducted in a court room, comments about missing disclosure and the impacts that has on assessing trial time can be put on the record after the pre-trial.
[14] As to whether the delay should be counted from the set date or the actual days the trial and pre-trial were set, I agree with Mr. Fraser that the delay should be counted from the date the pre-trial or trial was set and not from the set date appearance. To do otherwise would encourage defendants to set a trial or judicial pre-trial as late as possible vis-à-vis the set date appearance. The Crown’s proposed approach does not accord with the purpose of Jordan which is to displace the culture of complacency and not encourage it.
[15] However, the approach advocated by the defence cuts both ways. As a consequence of the defendant’s logic the Court must now also look to inactivity prior to the set date not only the positive steps an accused took in setting a trial or pre-trial time. In this case this involves two sets of time. The first period is when the Crown pre-trial took place on July 28, 2021, and the set date of August 17, 2021, where the defence adjourned the matter and chose not to set a judicial pre-trial to wait for the extraction report. The second period involves the time between the judicial pre-trial on November 15, 2021, and the set date of November 30, 2021, where the matter was adjourned again to obtain the extraction report prior to setting the trial.
[16] The defendant argues that time between the resolution meeting/judicial pre-trial and set dates was necessary to obtain instruction, fill out the trial scheduling form etc. On this point I agree only to a certain extent. I cannot accept the blanket statement of the applicant that all the time between a set date and a resolution meeting/pre-trial was required to complete necessary steps. The adoption of this reasoning encourages delay by pushing back set dates as far as possible vis-à-vis the resolution meetings or pre-trials. Again, the purpose of Jordan is to displace a culture of complacency. Therefore, in the circumstances of this case, I find that seven days should have been sufficient to complete necessary steps after a judicial pre-trial or resolution meeting. This is not a case where there are multiple accused or counsel, and no pre-trial motions are indicated on the trial scheduling form.
EARLIER TRIAL DATES
[17] On November 24th, 2022, Mr. Fraser’s counsel received an email advising of earlier trial dates: February 8, 9 and 10 of 2023. Those dates could not be accepted because Mr. Fraser’s counsel was not available. The Crown contends that these dates should be subtracted from the current end date of February 24, 2023.
[18] On this issue I have concerns with both the Crown and Defence conduct.
[19] First, Mr. Fraser did not advise the Crown of the 11(b) issue until July 2022, some 7 months after the date was set. The dates for trial were accepted on the record on January 11, 2022, without any mention of an 11(b) concern. It is incumbent on the defence to advise of an 11(b) issue as soon as possible, but that is not what happened here. That is not acceptable.
[20] Justice Band, whose comments I adopt, recently discussed this issue in Yizhak [^3]:
[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.
[21] On the other hand, the Crown is not without reproach either. The Crown has an obligation under Jordan to bring trials in provincial court within 18 months. The Crown did nothing to bring the matter forward until November 2022, almost 11 months after the date was set and four 4 months after it received notice of an 11(b) issue. As a result, since neither party acted with dispatch, I attribute half the delay between February 10, 2023, and February 24, 2023, to the Crown and half to the defence or 7 days to each party.
RIPPLE EFFECT
[22] Finally, the Crown argues that I should deduct an amount of time for the “ripple effect” from Covid. While I admit the concept of a ripple effect has a certain appeal, applying the concept in practice is significantly problematic.
[23] First, when the trial was set for this matter in January 2022, the courts had been open again for 15 months. How does the Court determine when the ripple is over?
[24] Second, while it is true that normal court operations were suspended for a period of time, it is equally true that the Crown’s office went on a resolution blitz to get rid of the backlog. How do I balance the two?
[25] I agree with Justice Fiorucci quoting with approval Justice Agro [^4]:
[78] In Mr. Ibrahim's case, the Crown simply points to the pandemic as a discrete exceptional event and seeks a deduction from the delay to account for the pandemic. The Jordan framework requires a quantification of periods of delay. When the Supreme Court of Canada drew the line in the sand at 18 months for cases in the provincial court beyond which delay is presumptively unreasonable, it created a mathematical formula to be applied by trial judges.
[79] Where there is a dispute about the apportionment and calculation of delay in a particular case, that dispute must be resolved, as all other factual disputes are resolved in a court of law, with evidence. As the authors of The Law of Evidence, Eight Edition, point out, "'evidence'...is the data factual decision-makers...use when resolving factual controversies".
[80] I adopt Agro J.'s words from R. v. Rubletz [^5], which apply in equal measure to Mr. Ibrahim's case: Even if I were to arbitrarily apportion some of the time to COVID-19 backlog, assessing that time ...would be akin to throwing darts at a board while blindfolded. A risky and inappropriate approach to the adjudication of Charter rights.
CONCLUSION
[26] I find that the total delay in this matter to be 537 days. I come to that number by subtracting from the aggregate delay of 665 days, 48 days from August 4, 2021 (7 days after the resolution meeting of July 28, 2021) to September 21, 2021, 28 days for the remand of September 21, 2022, to the setting of the judicial pre-trial on October 19, 2022, the delay of 45 days from November 22, 2021 (7 days after the November 15, 2022, pre-trial) to the January 6, 2022, setting of the trial and finally half of the delay between February 10, 2023, and February 24, 2023, or 7 days. I find the delay to be under the 18-month plateau. It was agreed by counsel for the purpose of this application 18 months is 548 days even though 549 days is the number of days from May 1, 2021, to October 31, 2022. 548 days is arrived at by either multiplying 365 days x 1.5 or by multiplying 18 months x 30.4 (30.4 being the average days in a month). 548 days represent a more equitable number in the view of the Court since the actual number of days in 18 months can differ based on when the accused was charged or whether it is a leap year.
[27] The application is dismissed.
POSTSCRIPT: INDICTABLE MATTERS IN THE OCJ
[28] I have not considered the following reasoning in this case. However, I wish to note that 95 percent of all criminal matters in Ontario resolve in the Ontario Court of Justice [^6]. In Hamilton, the Ontario Court of Justice deals with a significant amount of complex criminal litigation where the Crown is proceeding by indictment such as project cases, youth murder trials, Garofoli applications, child pornography and sexual assaults.
[29] On a sexual assault charge, where the maximum penalty is 10 years when the Crown proceeds by indictment, a preliminary hearing is not available. These types of matters often involve multiple days of trial preceded by pre-trial motions which can also take multiple days. The same applies for firearms offences which have a maximum of 10 years, they usually involve multiple days of trial and complex Charter applications. On these matters if the accused elects trial in the Superior Court, the delay ceiling is 30 months, while in the Ontario Court of Justice, the exact same case must proceed to trial in 18 months. There is nothing to account for the 12-month difference except for the defence election to either the Superior Court or the Ontario Court of Justice.
[30] Furthermore, even if a preliminary hearing was available and requested in matters such as this it would likely have proceeded by way of 540(7) application which would have added little time to no time in the matter.
[31] The reality is that Jordan, the streamlining of preliminary hearings under 540(7) and the elimination of preliminary hearings with respect to matters which have less than a 14-year maximum, is having the effect of increasing elections to the Ontario Court of Justice. It is simply a matter of common sense that the election of a complex matter to the Ontario Court now has a higher chance of being stayed for delay than an election to the Superior Court.
Released: December 15, 2022 Signed: Justice M.K. Wendl