Ontario Court of Justice

Date: 2023 03 06 Court File No.: BRAMPTON 20-12381 / 20-12382

Between:

HIS MAJESTY THE KING

— AND —

HARNEIL DHILLON

Before: Justice S. Caponecchia

Heard on: January 18 and February 22, 2023 Oral Reasons for Judgment released on: February 22, 2023 Written Reasons for Judgment released on: March 6, 2023

Counsel: Joshua White, counsel for the Crown / Respondent Antar Kahlon, counsel for the accused / Applicant Harneil Dhillon

CAPONECCHIA J.:

[1] On January 18, 2023, I heard oral submissions on a s. 11(b) Charter Application. On February 22, 2023, I dismissed the Application and indicated my reasons would follow. These are my reasons.

Issues

1. Should the application be summarily dismissed because defence did not file their application in compliance with the Rules of this court?
2. If not, should a stay of proceedings be granted based on s. 11(b) of the Charter?

[2] In order to provide some necessary context to the submissions and arguments, this decision begins with a summary of the relevant timeline of events as reflected from the record, transcripts, and submissions by counsel:

21 December 2020 Information was sworn

7 January 2021 First appearance after bail No disclosure available

21 January 2021 Matter adjourned No disclosure available

11 March 2021 Matter adjourned Disclosure provided

15 April 2021 Defence adjournment

3 June 2021 Defence adjournment Previous counsel removed New counsel on the record

28 July 2021 Adjourned for Crown Resolution meeting to occur Meeting scheduled for September 16, 2021

16 September 2021 Crown pre-trial Request for judicial pretrial (“JPT”) sent to Trial Co-ordinator

22 September 2021 Adjournment while awaiting JPT date

7 October 2021 Trial Co-ordinator offers, and defence accepts, first available JPT date of 1 November 2021

1 November 2021 JPT completed

17 November 2021 Defence adjournment to obtain instructions Defence sends Trial Time Estimate to Trial Co-ordinator but does not send Trial Scheduling Form

22 November 2021 Trial Co-ordinator asks defence for Trial Scheduling Form

26 January 2022 Defence sends the Trial Scheduling Form Case adjourned to 2 March 2022

9 February 2022 Trial Co-ordinator sets scheduling meeting on 28 February 2022

28 February 2022 Four-day trial dates scheduled for 27 February 2023 – 2 March 2023 (dates offered in March 2022 were rejected by both the Crown and defence)

8 December 2022 Defence orders a copy of the Informations

13 December 2022 Defence receives the Informations and orders transcripts Defence notifies the Crown of their intention to bring an 11(b) Application

16 December 2022 Defence contacts the Trial Co-ordinator to schedule a date for the application before the assigned trial judge The application is scheduled to be heard on 18 January 2023

19 December 2022 Transcripts are completed

2 January 2023 Crown is served with the 11(b) Application

18 January 2023 Application was argued

22 February 2023 Parties were notified that the application would be dismissed with reasons to follow

ISSUE 1 – Summary Dismissal for Failing to Comply with the Rules

[3] It is incumbent on the defence to put the Crown on timely notice when delay is becoming a problem and conduct all applications, including s. 11(b) applications, reasonably and expeditiously. [1]

[4] Rule 2.4(1) of the Criminal Rules of the Ontario Court of Justice provides that s. 11(b) applications must be heard 60 days in advance of the trial date unless a court orders otherwise. [2] This application was set 40 days in advance because the defence waited until December 16, 2022 to schedule the Application.

[5] Rule 3.1(1) requires that the Crown be served a copy of the Application 30 days prior to the application date. [3] Rule 3.1(3)(b) states that a Court may shorten or lengthen the time for service of applications. [4] In this case, the defence notified the Crown of their intention to bring this Application on December 13, 2022 and served the Crown with a formal application 16 days in advance of the scheduled hearing on January 18, 2022.

[6] The Crown seeks a summary dismissal of the Application for failure to comply with the Rules. The defence submits that I should exercise my discretion to abridge the time for service and the hearing because there is no prejudice to the Crown. The only explanation for the late filing was “issues with funds and retainer” for the 11(b) Application.

[7] Rule 1.1(1) sets out the fundamental objective of the Rules which is to ensure that proceedings are dealt with justly and efficiently. [5] Rule 1.1(3) obligates all counsel to act in accordance with the fundamental objective and to comply with the rules, practice directions, and orders of the court. [6]

[8] It is difficult to point to any prejudice to the Crown in entertaining the Application 40 days before the trial, save and except one important one. As a result of the delay in serving the Crown, the Crown was unable to take any meaningful steps to mitigate the delay by exploring earlier available trial dates.

[9] There are many good reasons to summarily dismiss this Application for failing to comply with the Rules:

1. The s. 11(b) issue did not arise suddenly. On February 28, 2022, the trial was set and it was apparent to all the parties that Mr. Dhillon’s trial was scheduled to be completed outside the Jordan timeline for trials in the Ontario Court of Justice.
2. Counsel was not recently retained. He was retained as of June 2, 2021, prior to the trial dates being set.
3. The late filing was not due to a delay in obtaining transcripts. The transcripts filed on this application were received within 3 days of having been ordered.
4. There was ample time to file the application in compliance with the Rules.

[10] The Rules require 11(b) applications to be heard more than 60 days prior to the trial and service of a Form 1 on the Crown 30 days prior to the hearing date for good reason. Advance rulings promote respect for the judicial process as civilian and professional witnesses are not required to attend court for trial unnecessarily in the event of a successful application. Successful applications heard in advance of the trial also promote the efficient and orderly use of judicial resources because counsel will not be required to prepare for trial unnecessarily if an application is granted. Compliance with the Rules also ensures the rights of all defendants are protected and judicial resources can be reallocated to accommodate other trials when an application is successful. Applying the Rules in a way that promotes the efficient use of court resources is all the more pressing in Peel as it works its way through the backlog created by the shutdown of courts during COVID-19 pandemic.

[11] I find this to be a close case. On the one hand, the reasons in favour of granting the abridgment of the Rules are not very compelling and there are many good reasons for dismissing the Application. On the other hand, the Crown was able to respond to this relatively straightforward Application, the Application involves only 11 short transcripts and the motion was able to be accommodated 40 days prior to trial (instead of 60). The Application, on its face, is not entirely frivolous. In all the circumstances of this particular case, this court is prepared to exercise its discretion and decide the Application on the merits.

ISSUE 2 – The Merits of the Application

The Legal Principles

[12] In Jordan, [7] the Supreme Court of Canada detailed the following steps when determining the merits of an 11(b) application:

1. Calculate the total delay, which is the period from the laying of the charge to the actual or anticipated end of trial; [8]
2. Subtract defence delay, including delay that is waived, from the total delay, which results in net delay;
3. Compare the net delay to the presumptive ceiling;
4. If the net delay exceeds the presumptive ceiling, the Crown must establish the presence of exceptional circumstances, otherwise a stay will follow. Exceptional circumstances fall under two categories: discrete events, and particularly complex cases;
5. Subtract delay caused by discrete events from the net delay, leaving the remaining delay;
6. If the remaining delay exceeds the presumptive ceiling of 18 months for a trial in the Ontario Court of Justice, 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; and
7. If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.

Findings and Analysis

1 Calculating Total Delay

[13] In this case, the total delay from the date the information was sworn to the anticipated end of trial on March 2, 2023 is 802 days, or 26 months and 10 days.

2 Defence Delay

[14] Delay will be attributed to the defence where there has been an explicit waiver of s. 11(b) or where delay is caused solely or directly by the conduct of the defence. [9] Defence-caused delay is comprised of situations where the acts of the defence either directly caused the delay or are shown to be a deliberate and calculated tactic employed to delay the trial. [10] Where the Crown and the court are ready to proceed but the defence is not, the defence will have directly caused the delay. [11] Defence action or inaction which exhibits a marked inefficiency or indifference towards delay will be attributable to the defence in the s. 11(b) calculus. [12]

[15] Defence conduct encompasses both substance and procedure—the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. [13] Defence counsel are expected to actively advance their client’s right to a trial within a reasonable time, collaborate with Crown counsel when appropriate and, like Crown counsel, use court time efficiently. [14] The determination of whether defence conduct is legitimate is not an exact science, and while trial judges should take care not to second-guess steps taken by defence for the purposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate to do so. [15]

[16] In this case it is the Applicant’s position that 164 days was defence delay brought about by the defendant’s decision to change counsel and the delay in giving counsel instructions after the JPT on November 1, 2021. The relevant time periods conceded as defence delay are:

a) 50 days between April 15, 2021 and June 3, 2021; b) 48 days between June 10, 2021 and July 28, 2021; and c) 66 days between November 22, 2021 and January 26, 2022.

[17] The Crown’s position is that defence delay extends beyond what is conceded.

[18] For the reasons that follow, it is my conclusion that defence delay is comprised of 209 days over the following two periods:

i) March 11, 2021 to July 28, 2021

[19] On March 11, 2021, the defendant’s first lawyer received disclosure. The lawyer did not take any steps to move the matter forward by scheduling a Crown resolution meeting before the next court appearance on April 15, 2021. Furthermore, between April 15, 2021 and July 28, 2021, neither the defendant’s first, nor second, counsel took any steps to schedule a resolution meeting with the Crown. I have no evidence as to why a Crown resolution meeting was not scheduled within a reasonable time after disclosure was provided to the Applicant’s first lawyer on March 11, 2021. I also have no evidence as to when the Applicant’s second lawyer took steps to schedule a meeting with the Crown. The only evidence before me is that on June 3, 2021, counsel indicated they were going to schedule a Crown resolution meeting and almost two months later, on July 28, 2021, a Crown meeting was put on the record and scheduled for September 16, 2021.

[20] The period between July 28, 2021 and September 16, 2021 is more than ample time for defence counsel to have familiarized themselves with disclosure that was provided on March 11, 2021 to the first lawyer. I am not prepared to consider any additional allowance to do so.

[21] In conclusion, I am satisfied that the conduct of the defence is solely responsible for not progressing the matter after disclosure was provided on March 11, 2021 because they did not schedule a Crown resolution meeting before July 28, 2021. I calculate 140 days (4 months and 18 days) of defence-caused delay during this first period.

ii) November 17, 2021 to January 26, 2022

[22] A JPT was completed on November 1, 2021. The Applicant was entitled to a reasonable amount of time to provide instructions to their second lawyer. On November 17, 2021, defence counsel sent a request to the Trial Co-ordinator to schedule a virtual meeting to set a trial date. However, the defence only submitted one of the two necessary documents required to schedule a trial date. The defence delayed submitting the Trial Scheduling Form until January 26, 2022. I conclude that defence conduct is responsible for the delay in setting a trial between November 17, 2021 and January 26, 2022, for a total of 71 days (2 months and 10 days).

3 Net Delay

[23] By my findings and calculations, the defence delay is 211 days (140 + 71), leaving a net delay of 591 days, which is 43 days greater than the presumptive ceiling of 548 days (or 18 months x 30.41) for matters heard in the Ontario Court of Justice.

4 Exceptional Circumstances

[24] The net delay exceeds the Jordan ceiling and is presumptively unreasonable. The onus is on the Crown to rebut the presumption of unreasonableness based on the presence of exceptional circumstances. It falls to the Crown to establish the presence of exceptional circumstances. [16] These generally fall into two categories: discrete events, and particularly complex cases. [17]

[25] Pursuant to the Jordan framework, exceptional circumstances lie outside the Crown’s control in the sense that:

i) they are reasonably unforeseen or reasonably unavoidable, and ii) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise.

[26] In this case there is no suggestion the case was complex. The Crown submits that three months must be deducted to account for the COVID-19 pandemic, a discrete exceptional event which caused an unprecedented backlog of cases in the system. The Crown submits that a three-month deduction takes into account the delay caused by the “ripple effects” brought about by two different shutdowns of the Ontario Court of Justice as result of the pandemic. The Crown did not point to any specific period of delay and instead urged the court to simply follow the reasoning in a decision arising out of a different jurisdiction, R v Korovchenko. [18]

[27] The defence urges me to follow the line of authorities that decline to adopt a blanket approach to the deduction of time to account for the “ripple effects” brought about by the shutdown of courts due to the COVID-19 pandemic. The defence submits that the Crown is required to provide evidence to support a three-month deduction and the Crown has not established that “but for” the pandemic this case would have proceeded any earlier.

Analysis

[28] The first shutdown of the Ontario Court of Justice was between March 16, 2020 and July 3, 2020. Starting July 6, 2020, the task of rescheduling all the trials and preliminary hearings that could not proceed began.

[29] The second shutdown took place during the intake phase of the Applicant’s case, between April 26, 2021 and May 7, 2021. The process of rescheduling trials and preliminary hearings followed the second shutdown.

[30] There can be no doubt that COVID created a backlog in the courts each time it closed and trials and preliminary hearings had to be rescheduled. The first shutdown of courts predates this case entering the system on December 21, 2020, but the second one does not. No trial dates in this case were adjourned as a direct result of either shutdown. That said, numerous courts have recognized that the delay caused by the adjournment of trials due to the pandemic is a discrete exceptional event which requires a deduction of a reasonable period of delay from net delay to account for the additional pressures and backlog arising out of the pandemic.

[31] The issue before me is how to fairly account for any backlog in the absence of any direct evidence as to what the state of that backlog was at the time under consideration in this case. It is left to be determined by judicial notice or inference.

[32] If the backlog created by either of the two shutdowns had an impact on the delay in this case, I would expect it to be revealed in the intake phase. I will begin my analysis here.

[33] Most of the disclosure in this case was made on March 11, 2021, approximately three months after the charges were laid. This part of the intake period does not persuade me that the disclosure process was impacted by the backlog created by the pandemic. The time it took to provide disclosure is consistent with pre-pandemic wait times for a case such as this one.

[34] Likewise, the wait time for a JPT does not suggest the backlog impacted this case. On October 6, 2021, the first available JPT offered was November 1, 2021. The delay is consistent with pre-pandemic delays for scheduling a JPT.

[35] By contrast, delays were incurred during three other parts of the intake phase of this case because of social distancing measures that were enacted that were not necessary prior to the COVID-19 pandemic.

i. The delay in obtaining a resolution meeting with the Crown. Prior to the outbreak of COVID and the first shutdown of courts in March of 2020, defence could have a Crown resolution meeting in person on the same day the case was in court. This option ceased to exist in this case. Social distancing protocols put in place after the first shutdown in March of 2020 made it necessary to book a virtual meeting with the Crown. It is agreed that when the defence progressed the matter by scheduling a Crown resolution meeting by July 28, 2021, the earliest available appointment for a virtual meeting with a Crown was September 16, 2021, 51 days later (or 1 month and 20 days later). Resolution positions were also being re-evaluated by the Crown as part of a province wide recovery plan during the relevant time period. [19] Throughout 2020 and 2021 the local Crown’s office was making concerted efforts to tackle the backlog with Highway Traffic Act resolutions in drinking and driving cases and peacebonds in other cases. For these backlog-reduction initiatives to be effected, additional Crown resolution meetings were necessary. The wait time for a Crown resolution meeting in this case persuades me that the backlog impacted this part of the intake phase.

ii. The time it took to obtain a JPT date. On September 16, 2021, a Crown resolution meeting was held and it was determined that a JPT was necessary. Prior to COVID, a request for a JPT could be made and scheduled the same day as the Crown resolution meeting by attending at the Trial Co-ordinator’s Office. After the shutdown of courts in March of 2020, social distancing protocols made it necessary for a request to be made by email to the Trial Co-ordinator’s Office. In this case the Crown initiated a requested for a JPT date after the resolution meeting on September 16, 2021. The Trial Co-ordinator responded to the request by email on October 7, 2021. The 21-day delay between September 16, 2021 and October 7, 2021 is a direct result of social distancing measures made necessary to prevent the spread of COVID-19.

iii. The time it took to schedule a meeting with the Trial Co-ordinator’s Office to schedule a trial date. Prior to COVID, following a JPT the defence could set a trial date by attending in person at the Trial Co-ordinator’s Office with the necessary paperwork. In this case it was not an option for the defence to attend in person at the Trial Co-ordinator’s Office with the paperwork to schedule a trial date. Social distancing measures in place made it necessary to schedule a virtual appointment with the Trial Co-ordinator’s Office to schedule a trial date. In this case, the defence filed their forms on January 26, 2022 and were given the earliest available date for a virtual meeting with the Trial Co-ordinator, February 28, 2022. The delay between January 26, 2022 and February 28, 2022 is 34 days (or one month and 3 days). The remote setting of judicial pre-trials and trial dates are just two of many new tasks imposed on the Trial Co-ordinator's Office after the first shut down in March 2020. The duties of the office evolved and grew as a direct result of the pandemic. Staff took on the added responsibility of organizing and scheduling remote appearance for bail hearings, guilty pleas and remote trials. In addition they were met with a daily deluge of electronic requests from the police, jail, defence counsel and the local Crown’s office.

[36] I am persuaded that “but for” the pandemic, which made social distancing measures and virtual meetings necessary, this case would have proceeded in person through the intake phase at least 106 days faster (51 + 21 + 34) and a deduction is warranted as exceptional circumstances. That said, I am not prepared to deduct the entire delay brought about by the necessary social distancing protocols because by the second half of 2021, the system had had time to react and mitigate, including providing for sufficient additional staffing and training in the Crown’s office and Trial Co-ordinator’s Office. I am therefore only prepared to deduct half of the delay, or 53 days, for exceptional circumstances brought about due to the pandemic. A deduction of 53 days has the effect of reducing the net delay from 591 to 538, below the presumptive ceiling of 548 days.

[37] There is one final deduction of time I consider an exceptional circumstance impacting this case. I am satisfied that an additional deduction of 10 days is warranted based on the second shutdown of courts between April 26, 2021 and May 7, 2021. The reason for this additional deduction is because I am satisfied that on February 28, 2022, when this four-day trial was scheduled for trial, available trial dates would have been reduced by the “ripple effects” of having to re-schedule 2 weeks worth of trials and preliminary hearings that were adjourned during the second shutdown in 2021. This results in a net delay of 528 days.

[38] As this court has arrived at a net delay below the presumptive ceiling for the reasons already indicated, I decline to embark on the task of deciding whether any further reduction is warranted in this case based on the “ripple effects” caused by either shutdown. On February 28, 2022, the first available dates (after the March 2022 dates were declined by both parties), was 12 months later: February 26 to March 2, 2023. This delay is consistent with wait times for a four-day trial in Peel prior to the first shutdown of courts due to the pandemic. Without evidence as to how many trials from either of the two shutdowns were still in the system when this case was scheduled for trial in February of 2022, it is difficult to infer whether the limited trial dates offered in this case was the result of the “ripple effect” of the shutdowns, or a lack of judicial resources in Peel, or both. There were multiple judicial vacancies in Peel in February of 2022 when this case was set for trial. Four positions were filled on November 21, 2022. [20] Two judicial vacancies remain outstanding. Wait times for trials persist in Peel after the last appointments, even with the backlog initiatives and pragmatic resolutions being placed before the court everyday.

Released in Writing: March 6, 2023.

Signed: Justice S. Caponecchia

[1] R v Jordan, 2016 SCC 27 at para 85 [Jordan]. [2] Criminal Rules of the Ontario Court of Justice, SI/2012-30, s 2.4(1) [“the Rules”]. [3] Ibid, s 3.1(1). [4] Ibid, s 3.1(3)(b). [5] Ibid, s 1.1(1). [6] Ibid, s 1.1(3). [7] See also R v Coulter, 2016 ONCA 704 at paras 34 to 41, which provides helpful guidance in applying the Jordan framework [Coulter]. [8] The relevant time period runs from the charge to the actual or anticipated end of trial. The end of trial does not include the period between the end of closing arguments to the verdict: R v KGK, 2020 SCC 7 at paras 30 to 50. [9] Jordan, supra note 1 at paras 61 and 63. [10] Ibid at para 61; Coulter, supra note 7 at para 44. [11] Jordan, supra note 1 at para 63; Coulter, supra note 7 at para 44. [12] R v Cody, 2017 SCC 31 at para 32 [Cody]. [13] Ibid. [14] Ibid at para 33; Jordan, supra note 1 at para 138. [15] Cody, supra note 12 at para 31. [16] Jordan, supra note 1 at para 47. [17] Ibid at para 71. [18] R v Korovchenko, 2022 ONCJ 388. [19] Crown Prosecution Manual: D. 38: COVID-19 Recovery | Ontario.ca [20] New Judges Appointed to the Ontario Court of Justice | Ontario Newsroom