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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 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

CITATION: R. v. Hill, 2023 ONCJ 117

DATE: March 9, 2023

COURT FILE No.: Central East Region: Oshawa Courthouse File #20-DV22782

BETWEEN:

HIS MAJESTY THE KING

Respondent

— AND —

ALLAN HILL

Applicant

Before Justice Peter C. West

Trial Evidence Heard on September 7, 8, 9, 12, 13, 28, 2022

Written Submissions Filed by Defence May 6, 2022 and Response by Crown September 1, 2022,

Reasons for Ruling on s. 11(b) Charter Application Dated March 9, 2023

Ms. M. Allan and ................................................................................ counsel for the Crown

Mr. M. Capotosto.................................................... counsel for the defendant, Allan Hill

WEST J.:

[1] On, November 21, 2022, I advised counsel I did not need to hear oral submissions respecting the Applicant’s s. 11(b) Application, given that I had received extensive written factums and submissions from the Applicant and the Crown, as well as the Applicant’s Reply to Crown’s Response, in respect of the Applicant’s s. 11(b) Charter Application. These are my Reasons on the defence application.

Introduction

[2] Justice Cory in R. v. Askov, [1990] 2 S.C.R. 1199, at paragraph 43, outlined the significance of s. 11(b) of the Charter as follows:

...There could be no greater frustration imaginable for innocent persons charged with an offence than to be denied the opportunity of demonstrating their innocence for an unconscionable time as a result of unreasonable delays in their trial. The time awaiting trial must be exquisite agony for accused persons and their immediate family. It is a fundamental precept of our criminal law that every individual is presumed to be innocent until proven guilty. It follows that on the same fundamental level of importance, all accused persons, each one of whom is presumed to be innocent, should be given the opportunity to defend themselves against the charges they face and to have their name cleared and reputation re-established at the earliest possible time.

[3] Two years later, in R. v. Morin, [1992] 1 S.C.R 771, the Supreme Court of Canada provided direction in the form of an analytical framework for assessing the issue of what was termed "unreasonable delay". The Morin framework was revisited by the Supreme Court in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. A new framework was created, which focused on net delay and whether it breached a presumptive ceiling. The prejudice suffered by a litigant was now subsumed into the presumptive ceilings. For matters in the Superior Court of Justice ("SCJ"), the presumptive ceiling is 30 months and for matters in the Ontario Court of Justice ("OCJ"), the ceiling is 18 months. If the period of delay to the end of the trial and submissions exceeds the presumptive ceiling, the delay may be considered to be "unreasonable" as far as s. 11(b) of the Charter is concerned. In these circumstances, a court may direct that a Charter remedy issue staying the proceedings.

[4] On December 7, 2020, Allan Hill was arrested and charged with the following charges:

1. Between the 1^st day of March 2020 to 31^st day of March 2020, at the City of Oshawa in the Central East Region Allan Hill did commit a sexual assault on JG;

2. Between the 1^st day of March 2020 to 31^st day of March 2020, at the City of Oshawa in the Central East Region Allan Hill did commit an assault on JG;

3. Between the 1^st day of March 2020 to 31^st day of March 2020, at the City of Oshawa in the Central East Region Allan Hill did commit an assault on JG;

4. On or about the 8^th day of May 2020, at the City of Oshawa in the Central East Region Allan Hill did commit an assault on JH; and

5. On or about the 16^th day of November 2020, at the Municipality of Clarington in the Central East Region Allan Hill did commit an assault on AS.

[5] The Information was sworn on December 8, 2020.

[6] By his Notice of Application dated May 6, 2022,[^1] the Applicant seeks a determination that his right to be tried within a reasonable time pursuant to s.11(b) of the Canadian Charter of Rights and Freedoms has been infringed, and an Order staying the charges pursuant to s. 24(1) of the Charter.

[7] I am providing a chart summarizing the relevant timeline of events as reflected from the record, transcripts and submissions by counsel, which will provide some necessary context to the submissions and arguments.

December 9, 2020

Applicant appeared in bail court initially on December 8, 2020, the matter was adjourned to December 9, 2020, and on that date the Applicant was released and the matter was adjourned to December 17, 2020, for the first appearance out of custody.

December 17, 2020

Applicant indicated he wanted to retain counsel and needed time to do this and the matter was adjourned to January 28, 2021.

January 28, 2021

Mr. Capotosto had been retained and he advised he had received initial disclosure and requested an adjournment for 5 weeks to March 4, 2021 to review the disclosure with his client.

March 4, 2021

Mr. Capotosto advised he had received two further important pieces of disclosure he had requested. He advised he “hopefully” will have had a Crown pre-trial (CPT) prior to the next appearance. Matter was adjourned 6 weeks to April 15, 2021, at Mr. Capotosto’s request.

April 15, 2021

Mr. Capotosto advised he “hadn’t had a chance to get around” to meeting with the Crown for a CPT. He advised he would “probably write the Crown that day” and he “hoped” to have a discussion with the Crown. He requested the matter be adjourned to May 13, 2021.

May 13, 2021

Mr. Capotosto advised he had a CPT scheduled for the next day (May 14, 2021) but he wanted the matter adjourned for a further five weeks to June 17, 2021.

June 17, 2021

Mr. Capotosto advised he had just recently received the SAEK Kit. He still had outstanding disclosure requests and requested a further 4 week adjournment as he needed this disclosure to get instructions whether to do the trial in the Ontario Court of Justice or the Superior Court of Justice. The matter was adjourned at his request to July 15, 2021.

NOTE: The Crown, Greg Black, requested by email to the Trial Coordinator, on June 17, 2021, with a copy to Mr. Capotosto, that she provide available Judicial Pre-trial (JPT) dates for this serious sexual assault. The Trial Coordinator sent an email to the Crown and Mr. Capotosto on June 17, 2021. TC offered July 6 and 27 and August 3 and 10, 2021. See email chain in Crown’s Application Record, Tab 5.

July 15, 2021

Mr. Capotosto advised he was still waiting for disclosure respecting one of the complainants making an initial call to police months before the charges were reported. He advised two CPTs had been held. Mr. Capotosto advised the JPT was scheduled for August 3, 2021, and he requested the matter return on August 12, 2021.

NOTE: Two earlier dates were offered for a Judicial Pre-trial by the Trial Coordinator, Ms. Freeman, for July 6 and 27, 2021. The Crown was available but Mr. Capotosto was not available until August 3, 2021, Crown’s Application Record, Tab 5.

August 12, 2021

Mr. Capotosto advised he was “still trying to firm up instructions to go to trial” and hoped he would be scheduling trial dates in the interim. A Judicial Pre-trial had been conducted with trial estimates. Requested September 2, 2021, and advised this was a “defence request” when Crown advised they were in a position to set dates at that time. When the Court asked if Mr. Capotosto was on the record he advised, “Yes, for the moment, yes.”

September 2, 2021

Mr. Capotosto worked with the Trial Coordinator and the Crown to set dates for the defence pre-trial applications and trial dates on September 2, 2022. (See email from Ms. Lajoie, dated September 2, 2022 in Defence Materials) Mr. Capotosto advised several applications in the trial of this matter had been scheduled. A Defence Severance Application was scheduled for a half day on February 3, 2022. One of the s. 278 applications was scheduled for May 10, 2022 for a full day. The second stage of s. 278 was scheduled for a half day on June 14, 2021 and the trial was scheduled for 6 days, September 7, 8, 9, 12, 13 and 14, 2022.

February 3, 2022 February 10, 2022 April 1, 2022

The Severance Application could not proceed as the assigned Crown was ill. The matter was adjourned to February 10, 2022.

The Severance Application could not proceed on February 10, 2022, because the Applicant was ill.

Severance application finally proceeded; counsel made oral submissions in addition to previously filed written submissions. Judgment was released on May 9, 2022, dismissing the Severance Application.

May 10, 2022

s. 278.93 application heard and Motion for Directions respecting social media texts admissibility.

June 14, 2022

s. 278.94 application heard

September 7, 2022

Crown Application respecting ss. 714(1) and 486.2(2) was heard on the first day of trial, which took all but one hour when the Crown called her first witness, JG.

September 13, 2022

Crown’s case ends in morning. Defence case commenced, with the Defendant testifying in chief in the morning. After the lunch recess the Crown advised she was feeling ill and her cross examination was adjourned to the next day, September 14, 2022.

September 14, 2022

The Defendant advised he was feeling ill; matter was adjourned to September 28, 2022 when the evidence was completed. Submissions were adjourned to November 14 and 15, 2022.

November 14,15, and 21, 2022

Submissions heard on September 14 and 15, 2022, and completed on September 15, 2022, (personal issue arose for Crown). Submissions completed on November 21, 2022. Judgment was reserved and adjourned to December 19, 2022, when matter was adjourned to February 17, 2023, when Judgment on Similar Fact Application provided.

February 17, 2023

Reasons for Judgment on the Crown’s Similar Fact Application in Writing were released. The Trial Judgment was adjourned to March 3, 2023, when written reasons were provided. The written reasons on the s. 11(b) Application were provided on March 9, 2023.

The Legal Principles

[8] In Jordan, the Supreme Court of Canada detailed the following steps when determining the time for trial:

1. Calculate the total delay, which is the period from the laying of the charge to the actual or anticipated end of trial – that is, the end of evidence and argument;

2. Subtract defence delay, including delay that is waived, from the total delay, which results in the 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, 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.

See also R. v. Coulter, 2016 ONCA 704, at paragraphs 35 to 41, which provides helpful guidance in applying the Jordan framework.

[9] The relevant time period runs from the date the Information setting out the charges is sworn to the actual or anticipated end of the trial. The end of trial does not include the period between the end of closing arguments to the verdict: R. v. K.G.K., 2020 SCC 7, [2020] S.C.J. No. 7, at paras. 30-50.

Findings and Analysis

1. Calculating Total Delay

[10] The total delay from the date the information was sworn (December 8, 2020) to the agreed end date of the trial (November 21, 2022, last day of submissions) for purposes of this application is 713 days, or 1 year and 348 days.

2. Defence Delay

[11] Delay will be attributed to the defence where there has been an explicit waiver of s. 11(b) or where the delay is caused solely or directly by the conduct of the defence, R. v. Jordan, at paras. 61 and 63. 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": see Jordan, at para. 61; Coulter, at para. 44. Where the Crown and the court "are ready to proceed but the defence is not, the defence will have directly caused the delay": see Jordan, at para. 63; Coulter, at para. 44. Where the Crown and the court are not available and the defence is also not available, the time will not be characterized as defence caused delay: see Jordan, at para. 64; and R. v. Manasseri, 2016 ONCA 703, at para. 304. 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, see R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para 32.

[12] In Cody, at para. 30, the Supreme Court makes it clear however that these are just examples, and should not be taken as exhaustively defining deductible defence delay. As indicated in Jordan, at para. 64, it remains “open to trial judges to find that other defence actions or conduct have caused delay” warranting a deduction. 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": Cody, supra, at para. 31.

[13] In Cody, at para. 32, the Supreme Court made it clear that 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. 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,” see Jordan, at para. 138; Cody, at para 33.

[14] It is the defence position that the only period of defence delay was after the Judicial Pre-trial on August 3, 2021, when the Crown and the Court were ready to set dates for trial on August 12, 2021, but Mr. Capotosto wanted the matter adjourned for a further 4 weeks, although the actual number of days it was adjourned was only 22 days to September 2, 2021.

[15] The Crown takes a different view of the time periods where it is submitted that delay was caused by the actions of the defence and submits there are two time periods of defence delay that should be deducted from the total delay.

a) The first period of delay was from March 4, 2021 to April 20, 2021, a period of 47 days, as a result of Mr. Capotosto not scheduling a Crown pre-trial despite having been provided sufficient disclosure by the Crown to conduct one.

b) The second period of delay was from May 14, 2021 to September 2, 2021, a period of 111 days, where the defence refused to elect mode of trial in order to move the matter forward to schedule a Judicial pre-trial in either OCJ or SCJ, depending on the Defendant’s election as to mode of trial.

[16] The first period of delay relates to Mr. Capotosto’s scheduling of a Crown pre-trial to discuss the case with the Crown. On his first appearance on the record as counsel, January 28, 2021, he advised he had received initial disclosure and would be writing the Crown for some additional disclosure and requested the matter be adjourned for five weeks to March 4, 2021, to accomplish those things. It is my view this was an appropriate request to review disclosure and possibly make further disclosure requests. On March 4^th he advised he had “actually received two pieces of very important disclosure recently”, which he had not had a chance to review yet but he was going to be reviewing them and then he would set up a Crown pre-trial before the next appearance. He requested the matter be adjourned for 6 weeks to April 15, 2021.

[17] On April 15, 2021, Mr. Capotosto advised he was going to “probably be calling the Crown” that day to schedule a Crown pre-trial. He said “[He] was sorry – he hadn’t had a chance to get around to it, there were some statements [he] had to review and [he is] still finishing reviewing those statements, and [he] hope[d] to have a discussion with the Crown. [He is] going to be writing to them today.” He then requested a further 4 week adjournment. He did not contact the Crown until 5 days later.

[18] It is my view the transcripts clearly indicate that Mr. Capotosto did not seem to appreciate his responsibility to be proactive and diligent in moving his client’s trial along, which includes setting a Crown pre-trial in a timely fashion. Jordan is clear that defence actions taken to legitimately respond to the charges do not constitute defence delay, at para. 65:

To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused's right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions.

[19] However, it is equally clear that where the defence advises a court they have received disclosure, as well as “important” additional disclosure they have requested and they will be contacting the Crown to set up a Crown pre-trial (CPT), they must follow through. It is my view the defence cannot delay the proceedings for a long period of time, not following through and not doing what they advise the Court they intend to do (in this case Mr. Capotosto adjourned the Applicant’s matter for 15 weeks or almost 4 months and had yet to schedule a CPT), and then relies on this delay to argue that his client’s s. 11(b) rights have been infringed. It is my view that this was not what was contemplated by the Supreme Court in Jordan as “procedural requirements.” If this were so, this would be counter to the statement in Jordan, at para. 116, that the court, Crown and defence all have to “work in concert to achieve speedier trials.” The Crown advised in the Respondent’s Factum (Section 11(b) of the Charter) that despite Mr. Capotosto advising the Court he would write the Crown that day on April 15, 2021, he did not request a CPT until April 20, 2021, and the CPT was not able to be scheduled until May 14, 2021.[^2] It is my view Mr. Capotosto advised the court on March 4, 2021, he would set up a CPT before the next appearance, which he did not do, which in my view demonstrates an indifference to his obligation to be proactive to move the matter forward and to collaborate and cooperate with the other participants involved in the administration of criminal justice. Further, a factor that must be taken into account and considered when looking at the conduct of the parties playing their parts in the procedural components of the administration of criminal justice is the impact the prior seven months of court closures and lockdowns and resulting backlogs due to COVID-19 world-wide pandemic.

[20] It must be remembered that the the Chief Justice of the Ontario Court of Justice issued a directive on March 16, 2020, that all out-of-custody appearances should be adjourned for 10 weeks from the appearance date, arising as a result of the Premier's declaration of a state of emergency in the province due to the pandemic. These presumptive adjournments continued until July 6, 2020. Scheduled trials and preliminary hearings during this period were also adjourned and added to the new cases being adjourned. Throughout this period, March 6 to July 6, 2020, in-custody matters, involving both bail hearings and guilty pleas took precedence.

[21] On July 2, 2020, the Chief Justice of the Ontario Court of Justice published a "Notice to the Profession and to the Public Re Criminal Case Management Appearances and Setting Trial and Preliminary Inquiry Dates." The Notice set out a scheduling plan that included a priority order and timeline for setting trial and preliminary inquiry dates with the initial focus on in-custody cases. Consequently, trials adjourned because of COVID-19, trials that were already scheduled to proceed after July 6, 2020, and new in-custody cases were all competing for limited court time as the Ontario Court of Justice began to reopen its courtrooms dependent on the priority set by the Chief Justice’s Notice. Out of custody matters continued to be adjourned throughout the fall of 2020, because of the priority order, which caused further delays. This resulted in a trial backlog as well as delays in setting CPTs and JPTs that continues to the present time.

[22] It is my view this gradual rescheduling of trials and preliminaries was necessary to protect all participants involved in the administration of criminal justice. The pandemic and its impact and effects have continued. Further delays occurred, particularly as this related to individuals out of custody whose trials had been adjourned or individuals who were out of custody facing new charges. This created what has been termed a “ripple effect” directly caused by the COVID-19 pandemic (R. v. Simmonds, 2020 ONSC 7209, [2020] O.J. No. 5183 (SCJ, Nakatsuru), at para. 70), which has resulted in procedural requirements like Crown pre-trials and Judicial pre-trials taking longer to schedule. It is my view this is one of the circumstances I must consider when looking at Mr. Capotosto’s conduct surrounding his neglect of following through with contacting the Crown to schedule a CPT during the spring of 2021. As the Supreme Court recognized in R. v. K.G.K., supra, at para. 61, “Reasonableness under s. 11(b) has always accounted for the reality that ‘[n]o case is an island to be treated as if it were the only case with a legitimate demand on court resources’" (citing R. v. Allen (1996), 92 O.A.C. 345, at para. 27).”

[23] The Crown is requesting the entire period between March 4 and April 20, 2021, be assessed as defence-caused delay (47 days). Mr. Capotosto clearly wrote the Crown for further disclosure to be provided sometime between January 28 and March 4, 2021, because on March 4, 2021, he advised the Court he had received the disclosure he requested. However, he did not request a CPT, although he advised he hoped he would between March 4 and the next appearance April 15, (6 weeks away), which regrettably he did not. I find Mr. Capotosto, through his inaction and indifference to his responsibility to be diligent and proactive in moving the matter forward, was responsible for the delay this caused. He had received the disclosure he had requested and if he had requested a CPT either before March 4 or right after this appearance, the CPT would likely have been set at the beginning of April. Instead, because of his indifference towards the procedural requirements, the CPT was not set until May 14, 2021. In my view this resulted in a delay of, at the very least, 35 days. As will be seen when I address the next period of delay submitted by the Crown, Mr. Capotosto’s lackadaisical indifference to being proactive in respect of moving this matter forward to trial continued.

[24] The second period of delay relates to the period after the CPT was held on May 14, 2021, until the trial dates were set on September 2, 2021. At the CPT the Crown advised Mr. Capotosto that he needed to determine whether his client was electing trial in the Ontario Court of Justice or the Superior Court of Justice prior to scheduling a Judicial pre-trial. The reason for this was because the defence election would determine in which court the JPT would be held. The Crown took the position this was the appropriate time to set a Judicial pre-trial in order to move the matter forward. It was the Crown’s position that because the charges facing the Applicant were not eligible for a preliminary hearing any outstanding disclosure had no bearing on the defence position as to which court the trial occurred in. It was Mr. Capotosto’s position that he could not elect mode of trial without the outstanding disclosure, which according to the materials filed before me related to (1) the SAEK Kit respecting the complainant A.S. and (2) whether J.H. had gone to police and complained about the Applicant months before she provided her police statement in November 2020.

[25] On May 13, 2021, Mr. Capotosto appeared and requested a further five week adjournment as he had a CPT the next day on May 14, 2021. On June 16, 2021, Mr. Capotosto was provided the SAEK Kit respecting A.S. but he believed he was still missing some of the results. During the Court appearance on June 17, 2021, Mr. Capotosto maintained he needed this additional disclosure in order to make the election as to where the trial would take place and requested the matter be adjourned a further four weeks to July 15, 2021. The Justice of the Peace adjourned the matter as requested by Mr. Capotosto.[^3] As it turned out there was no further disclosure respecting the SAEK Kit and J.H. had not actually filed a complaint when she tried to go to the police in May 2020, because of police stations being closed due to COVID, before she ultimately made her report on November 27, 2020, and then provided her formal video-taped police statement.

[26] The materials disclose that on June 17, 2021, it was the Crown, Greg Black, who contacted the Trial Coordinator and requested a JPT be scheduled in the Allan Hill matter, as the matter needed to move forward. The Trial Coordinator responded to both counsel that same day and suggested the following dates for a JPT to be scheduled: July 6, July 27, August 3 and August 10. The Crown was available on all dates but Mr. Capotosto was only available on August 3, 2021. This was the date set for the JPT, which was held before Justice L. Crawford. R. v. Jordan, at para. 64, dealt directly with situations where the Crown and the Court are available but the defence is not:

…the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence.

[27] It is my view therefore that the delay between July 6, 2021, and August 3, 2021, which is 28 days, should be viewed as defence-caused delay. This should be added to the 22 days (August 12, 2021 to September 2, 2021) conceded by Mr. Capotosto as defence-caused delay for a total defence-caused delay of 50 days.

[28] It is my view Mr. Capotosto’s position that he did not have to make his election until he received the two pieces of outstanding disclosure he identified and I set out above, is not in accordance with the judgments referred to in the Crown Response, namely, R. v. Kovacs-Tatar, [2004] O.J. No. 4756, at para. 47; R. v. Allison 2022 ONCA 329, at paras. 46-47; R. v. Gandhi, 2016 ONSC 5612 (Code J.), at para. 34. Justice Code continued in para. 35 of Gandhi:

The Court of Appeal has held, in Kovacs-Tator, M. (N.N.), and Schetzer, that it is wrong to refuse to set a date for trial or preliminary inquiry until the Crown has disclosed “every last bit of evidence.” A fortiori, it is wrong to refuse to set a date for a JPT because counsel is waiting for one “final piece of disclosure.”

[29] I agree with the Crown that there is no basis for refusing the making of an election in order to obtain every last piece of disclosure, which resulted in delaying the scheduling of a Judicial Pre-trial. The Crown’s position of having Mr. Capotosto make his election would have determined where the JPT would occur. If he elected a Superior Court trial then a JPT in the Ontario Court of Justice was a complete waste of time, on the other hand, it the trial was to be in the OCJ then the JPT was extremely important and necessary. I view the Crown position as being in complete compliance with the direction in Jordan that all parties should work in concert to achieve speedier trials. The Crown’s position and Mr. Black’s actions in my view demonstrated an effort to streamline the proceedings and move the matter forward in a timely manner. As a result there is a further period of defence-caused delay from May 14, 2021 to June 17, 2021, a period of 34 days.

[30] It is my view therefore that this second period of delay (May 14 to June 17, 2021: 34 days and July 6 to September 2, 2021: 50 days) totals 84 days of defence-caused delay.

[31] It is my view that there is also a third period of delay, which relates to the setting of the trial dates in this matter on September 2, 2022, and the fact that throughout the numerous appearances on this matter, including the JPT held on August 3, 2021, the defence at no time raised any s. 11(b) concerns. This third period of delay relates to the period of time from the date the trial dates were set, September 2, 2021, to the last day of the trial; namely, November 21, 2022,[^4] a period of 445 days, where no concern respecting delay or s. 11(b) was expressed by any of the parties until it was too late for anything to be done to obtain earlier trial dates.

[32] For the purpose of addressing this period of time from September 2, 2022, to November 21, 2022, the end of the Applicant’s trial[^5], the issue in my view relates to whether some period of this time should be considered as defence-caused delay. At the point in time that the JPT was held with Justice Crawford on August 3, 2021, approximately 8 months had already elapsed. Pre-trial motions were discussed during the JPT with Justice Crawford; relating to the defence bringing a Severance Application as well as ss. 278.92 and 278.93 and 278.94 Applications and a Motion for Directions. At no time did the defence advise the Crown or Justice Crawford there would be a Charter Application alleging the Applicant’s s. 11(b) rights had been infringed.

[33] It was determined by the defence and the Crown and Justice Crawford the estimated length of time required to complete the pre-trial motions and the evidence in this serious matter. Given the nature of the charges facing the Applicant this was a moderately complex proceeding involving a Similar Fact Application by the Crown and the defence pre-trial motions indicated. When the Trial Coordinator offered dates based on the time estimations required, dates for the pre-trial applications were provided in February 2022 (for the Severance Application), May 2022 (for the first stage of the s. 278 application and Motion for Directions), and June 2022 (for the second stage of the s. 278 application) and six further days in September 2022 for the trial, which were accepted and scheduled by both the defence and the Crown.

[34] These dates were accepted despite it being clear that the final day of trial to be scheduled (September 14, 2021) was 98 days beyond the presumptive ceiling imposed by Jordan. If Mr. Capotosto had advised the Crown and Justice Crawford at the JPT there would be a s. 11(b) Application brought because of being outside the presumptive ceiling then the Crown and the Trial Coordinator and Mr. Capotosto could have investigated and determined whether giving priority to this serious matter could result in the setting of earlier dates, within the Jordan presumptive ceiling, and the issue of delay would have been avoided. However, this did not occur. Instead, the defence did not provide the Crown with any opportunity to remedy or mitigate the delay, particularly given the Defence Application was not filed until May 6, 2022 (approximately 4 months before the start date of the trial), and where the two s. 278 Applications and Motion for Directions were still to be dealt with.

[35] In a recent decision in the Ontario Court of Appeal, R. v. Zahor, 2022 ONCA 449, [2022] O.J. No. 2628 (C.A.), in a case dealing with both the Morin and Jordan regimes, the Court dealt with the defence responsibility to move matters forward and this case supports my finding that Mr. Capotosto should have raised s. 11(b) concerns at the JPT before the trial dates were set. The Court in that case, on facts similar to the facts here made these observations:

158 The defence efforts, if any, to move the case along:

Although the Crown bore the onus on disclosure, the defence did very little to assist in the resolution of that issue, and made it difficult for the Crown to discharge its disclosure obligation. In addition, the defence delayed bringing a s. 11(b) application for reasons unknown and unknowable. Finally, the defence introduced a flurry of investigations, applications, and requests at the tail end of this protracted litigation. The defence conduct, both before and after Jordan, cannot be viewed as moving the case along. Instead, the defence was largely complacent in the delay that accrued. While defence counsel raised concerns about the delay throughout the proceeding, he did very little to mitigate or address those concerns in a timely manner.

[36] It is my view, the defence cannot sit silent and give the impression to the Crown and the Court that s. 11(b) is not an issue when trial dates are being offered by the Trial Coordinator and ultimately set in Court. All participants in the administration of criminal justice are expected to work together in a “proactive approach” to prevent unnecessary delay by targeting its root causes and all participants share this responsibility (Jordan, at para. 137; Cody, at para. 36). A recent decision in the Supreme Court of R. v. J.F., 2022 SCC 17, [2022] S.C.J. No. 17 has numerous passages which clearly indicate the defence must act diligently and proactively. In para. 3, Chief Justice Wagner, for the majority, held: “As a general rule, in the context of a single trial, an accused who believes their right to be tried within a reasonable time has been infringed must act diligently and apply for a remedy before their trial is held.” He continues at para. 34 and 36:

34 An accused who sees delay lengthening must therefore respond in a proactive manner. Being proactive may mean filing a s. 11(b) motion where the accused believes that their right to be tried within a reasonable time is not being or will not be respected (Jordan, at para. 85). Like any other application made by an accused, a motion of this kind must be brought "reasonably and expeditiously" (para. 85). Lateness in raising delay is contrary to the proper administration of justice, because such a practice serves to waste judicial resources. Indeed, the Jordan framework is specifically designed to eliminate inefficient practices that impact on the justice system (paras. 41 and 116). Bringing a s. 11(b) motion before the end of the 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.

36 …a duty to act proactively also rests on the accused. As a result, the accused must indicate that their right to be tried within a reasonable time has not been respected and, where the circumstances require, bring a motion for a stay of proceedings in a timely manner. As a general rule, this means before the trial is held. By the time the trial dates are set, the parties are generally in a position to know whether the trial delay will exceed the applicable presumptive ceiling, and the defence can raise any concerns it may have. However, it is not out of the question that, exceptionally, an infringement of the s. 11(b) right will reveal itself only once the trial has begun. In such a case, the accused must also act proactively.

[37] It is my view that all of the parties were aware that the Jordan presumptive ceiling had been surpassed when these trial dates were set. In J.F. the Supreme Court continued to make it very clear “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 the accused is tried in a timely manner.” (para. 30). It hardly seems fair that the defence could agree to trial dates, which are clearly beyond the presumptive ceiling (in this case 98 days), remain silent about their intentions to bring a s. 11(b) application, until it is too late for the Crown to mitigate or remedy in any possible way the delay by having the trial take place earlier. It is my view conduct which allows the defence to hide in the weeds and not alert the Crown or the Court to their concerns about delay (as indicated in para. 34 of this judgment) until at a point in time where no one could possibly remedy or mitigate that delay in any meaningful way is entirely contrary to the new framework created in Jordan, which encourages proactive, collaborative participation by all participants in the administration of criminal justice designed to prevent delay from occurring in the first place. When the defence sees delay lengthening, they equally have an obligation to “respond in a proactive manner” respecting their concern and bring a motion “reasonably and expeditiously” (J.F., para. 34). It is my view, pursuant to Jordan, Cody, and J.F., the defence is not permitted to ambush the Crown by appearing to agree with trial dates offered without raising any concerns about delay and setting those dates. A case which recently dealt with a similar circumstances, where the defence did not raise s. 11(b) as an issue until eight months after the trial dates were set is R. v. Botsford, [2022] O.J. No. 1634 (SCJ, Tranquill).

[38] For Mr. Capotosto to now point to the fact that the trial date originally was not going to complete until 21 months and 6 days after the Information was sworn on December 8, 2020, with an additional 68 days because submissions did not complete until November 21, 2022,[^6] when 369 days (September 2, 2021 to September 14, 2022) of that total delay was caused by both the Defence and the Crown agreeing to the first dates offered by the Trial Coordinator with no concern being raised about delay.

[39] As indicated in Cody, at para. 32, “defence conduct encompasses both substance and procedure - the decision to take a step, as well as the manner in which it is conducted,...” The circumstances surrounding the defence conduct, action or inaction are to be considered. In this case the trial dates offered were over 12 ½ months into the future. In my view it is not surprising that no one – not the Crown, or the defence or the Court – raised any concern when these dates were set on September 2, 2021, about the presumptive ceiling being exceeded and as a result s. 11(b) being infringed. When one considers the fact that the administration of criminal justice was basically completely shut down for over 7 months (March 16, 2020 to the end of October, 2020), as a result of the COVID-19 pandemic and with the continued impact on limited resources caused by the initial pandemic closures and a further closure of the courts because of a second wave in the spring of 2021, particularly for defendants out of custody, this in my view is completely understandable and logical. Additionally, new cases continued to come before the courts creating increasing difficulty and complexity in the scheduling and completion of both existing and new trials. This has caused what has been termed a “ripple effect” causing continuing delays as a result of the pandemic, which I referred to above. It is my view the COVID-19 pandemic has created delays to many of the procedural requirements involved in dealing with criminal charges, which in turn has lengthened the time it takes to get matters to the point of setting trial dates.

[40] All of the steps taken by the administration of criminal justice to address the pandemic led to an exponential increase in a backlog of cases, which was unavoidable. In my view Justice Dunphy, in R. v. Titus, 2022 ONSC 3484, [2022] O.J. No. 2648, at paras. 17-19, best articulated the result of all of the extraordinary measures undertaken by the various participants involved in the administration of criminal justice to address the COVID-19 pandemic. While she is speaking to issues facing the Ontario Superior Court of Justice, there can be no doubt these comments are equally, if not more so, applicable to the Ontario Court of Justice, where up to 90 per cent of criminal cases are dealt with:

17 The current backlog in cases awaiting a hearing cannot in any way be attributed to a re-emerging culture of complacency that Jordan directed all justice system participants to work diligently to eliminate. The backlog is the mathematical result of the cascading systemic impact of cancelled scheduled hearing dates and deferred scheduling of future hearing dates occurring during the periods of total physical closures of court operations plus other periods of only partial re-opening where fewer hearings than normal were able to be processed. The resulting backlog is in the process of being worked through but, like the proverbial pig in the python, it will take some time before it can be considered to be fully digested.

18 The simple fact of the matter is that the justice system cannot expand and contract at will and without limit to accommodate every contingency. There has never been an emergency in the history of the administration of justice in this country that has resulted in this degree of court closures lasting for anything close to this amount of time. Ever.

19 The Charter requires the Crown to provide everyone with a trial within a reasonable time and Jordan was designed to ensure the validation of that right by wringing out of the system the culture of complacency that tolerated needless impediments to the realization of that guaranteed right. Obviously, the pandemic emergency is not a "get out of Jordan free" card to be played at will by the Crown for months or years to come. Even unprecedented emergencies must be responded to and must be responded to reasonably with diligence and efficiency. To this point in the unwinding phase of this emergency, there is no reason to suspect a systemic failure to respond reasonably or efficiently. I cannot of course exclude the prospect of unreasonable delay arising in the context of a particular case notwithstanding the backdrop of exceptional systemic delay that is being otherwise reasonably addressed….

[41] I adopt Justice Dunphy’s analysis and find that there has never been an emergency of the magnitude or impact on the administration of criminal justice as COVID-19 and its aftermath. The Supreme Court could not have imagined or predicated such an emergency might occur when the Jordan framework was established. Its effects and impact are continuing to the present time almost three years after the Chief Justice closed all courts, with no indication of when it will completely end in the near future.

[42] The defence failure to raise the fact that the end of the trial was beyond the presumptive ceiling in my view clearly amounts to illegitimate defence conduct, particularly when their inaction in raising this as a concern is equally part of the reason these particular pre-trial application dates and trial dates were selected, as well as the other participants (the Crown and the court), (Jordan, at para. 138; Cody, at paras. 33 to 35). Just as the Crown bears responsibility to ensure a defendant’s right to trial occurs within a reasonable time it is my view defence counsel, as indicated in Cody, at para. 33, are expected to “actively advanc[e] their clients’ right to a trial within a reasonable time, collaborate[e] with Crown counsel when appropriate and us[e] court time efficiently” (Jordan, at para. 138). As stated in Jordan the defence should not be allowed to benefit from its own delay-causing conduct (para. 60) In Cody (at para. 33) the Supreme Court described how “inaction may amount to defence conduct that is not legitimate” and that “illegitimacy may extend to omissions as well as acts” (para. 33). “Illegitimacy takes its meaning from the culture change demanded in Jordan (Para. 35).

[43] It is my view this period of delay demonstrates a marked indifference toward delay and some portion of this period (September 2, 2022 to September 14, 2022: 369 days) should be viewed as defence-caused delay. It is also my view the Crown bears some responsibility for this delay. It is appropriate that some portion of this period should be considered as defence-caused delay, given the s. 11(b) application was not filed until May 6, 2022, at a point in time where it was impossible for the Crown to be able to do anything to remedy or ameliorate any amount of the delay. It is my view and I find that the 369 days should be apportioned equally between the defence and Crown as per R. v. Boulanger, 2022 SCC 2, [2022] S.C.J. No. 2.

[44] Consequently, it is my view both the Crown and the defence bear responsibility for some portion of this period of 369 days, which resulted in the end of the Applicant’s trial to be beyond the presumptive ceiling. Although the Crown in her written submissions did not even look to this period of time when discussing defence-caused delay, as I have indicated the defence cannot lie in the weeds and raise delay as a concern only at a point in time when nothing can be done to remedy or mitigate that delay, particularly given the continuing impact the COVID-19 pandemic is having on the administration of criminal justice. In this case the s. 11(b) application was not filed until May 6, 2022, at a point in time where it was completely impossible for the Crown to be able to do anything to remedy or ameliorate any amount of the delay, two of the pre-trial motions were still to be argued, some portion of this period of time should be considered defence-caused delay. It is my view that the 369 days should be apportioned equally between the defence and Crown as per R. v. Boulanger, at para 8, where the Supreme Court held:

This Court did of course explain in Jordan that where the court and the Crown are ready to proceed but the defence is not, the resulting delay is attributable to the defence (para. 64). All participants in the criminal justice system, including the defence, must take a proactive approach in order to prevent unnecessary delay by targeting its root causes (Cody, at para. 36). That being said, in some cases, the circumstances may justify apportioning responsibility for delay among these participants rather than attributing the entire delay to the defence. [Emphasis added]

[45] As a result, I find there are an additional 184 days of defence-caused delay respecting this period of time, which amounts to a total defence-caused delay of 303 (35+84+184) days from the total delay of 713 days.

3. Net Delay

[46] By my findings and calculations, the defence-caused delay is 303 days, leaving a net delay of 410 days, which is less than the presumptive ceiling established in Jordan of 548 days or 18 months for matters heard in the Ontario Court of Justice.

4. Exceptional Circumstances

[47] Although I have found the net delay does not exceed the Jordan ceiling and so is not presumptively unreasonable, it is my view that the period of time beyond September 14, 2022, the scheduled completion date of the trial, was caused by events that qualify as “exceptional circumstances”. It usually falls to the Crown to establish the presence of exceptional circumstances (Jordan, para. 47) to justify delay beyond the presumptive ceiling; however, in this case the net delay is clearly below the presumptive ceiling. Exceptional circumstances generally fall into two categories: "discrete events" and "particularly complex cases" (Jordan, para. 71).

[48] Exceptional circumstances (Jordan, para. 69) lie outside the Crown's control in that:

1. they are reasonably unforeseen or reasonably unavoidable, and

2. Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise.

[49] When an unforeseen event occurs, there is an obligation on the Crown to take reasonable steps to try to avoid and address it before the presumptive ceiling is reached. Some examples of the sorts of steps include: "prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means" (Jordan at para. 70).

[50] The Information setting out the charges faced by the Applicant was dated December 8, 2020. The final day of submissions was November 21, 2022, which is 1 year and 348 days. The original final day for submissions was on September 14, 2022, however, two events occurred, which extended the time period by a further 68 days. It is my opinion these two events should be deducted from the net delay because they clearly fall within the description of an exceptional circumstance in Jordan.

[51] The first event related to the Crown bringing an application pursuant to sections 714(1) and 486.2(2) for the three complainants to testify by video because of changes in the location of their living arrangements: J.H. had moved to Newfoundland and she cared for her children and her aging grandmother who lived there and A.S. moved to Bracebridge, Ontario, she had child care responsibilities and also suffered from anxiety and PTSD arising from the allegations in the case, and J.G. suffered from mental health issues relating to anxiety and panic attacks caused in part by what she alleged occurred, as evidence by a medical letter from her doctor, which indicated if she testified in person it could detrimentally affect her mental health. Arrangements had been made for J.H. to testify using a computer in a separate room where she resided in Gander, Newfoundland (the local Crown’s office did not have the space to assist); arrangements were made for A.S. to testify with a VWAP worker in the VWAP office in Bracebridge and arrangements were made for J.G. to testify from the CCTV room at the Oshawa Courthouse. The Crown only became aware of the need for this application a few weeks prior to the first day of trial when contacting each of the complainants. Mr. Capotosto vigorously opposed the Crown’s application. It was impossible to schedule Court time when both counsel and the Court were all available for this application to be heard prior to the start of the trial. As a result, it was argued on September 7, 2022, the first day of the trial. It took three quarters of the first day to hear submissions by counsel and I delivered a ruling permitting all three complainants to testify by video, having regard to the unusual circumstances disclosed in the materials filed by the Crown. J.G.’s evidence in chief was able to commence after the afternoon recess on September 7, 2022, for approximately an hour. This application was not discussed at the JPT as it was completely unexpected that two of the complainants would move and that J.G.’s mental health issues would affect her ability to appear in person. In my view the time taken to address this issue that arose only just prior to the start of the trial qualifies as an exceptional circumstance.

[52] The second event involved the illness of two of the participants in these proceedings, the Crown on September 13, 2022, in the afternoon, was unable to commence her cross-examination of the Defendant because of illness and the matter was adjourned to September 14, 2022, with Mr. Capotosto’s consent. On September 14, the Defendant advised he believed he had strep throat and could not continue with his testimony because of the pain he was experiencing. I was able to find a day on September 28, 2022, when all parties were available and the Defendant’s evidence was completed. The Crown and Mr. Capotosto were able to come to an agreement as to an agreed statement of fact pertaining to a witness intended to be called by the defence, which saved time and as a result the evidence was completed on November 21, 2022. Again, the illness of the Crown and the Defendant was not something the Crown could have anticipated and was completely beyond the Crown’s control.

[53] A further complicating circumstance that was not something that could be anticipated or was controllable was my becoming a per diem Ontario Court of Justice Judge on October 31, 2022. Again, all parties were able to schedule the final submissions on the Crown’s similar fact application and respecting the trial proper for November 14 and 15, 2022. Again, on November 15, 2022, a third event occurred where the Crown received a call from one of her children’s school advising she had to attend that morning because of her child becoming ill. The matter had to be further adjourned for submissions to be completed on November 21, 2022. This was another unexpected event over which the Crown had no control.

[54] It should be noted that Mr. Capotosto and the Crown had filed written submissions respecting the s. 11(b) application served by Mr. Capotosto on May 6, 2022. When Mr. Capotosto first advised he was thinking of bringing a s. 11(b) application I advised counsel this application would be argued at the end of the trial, if necessary, given its late filing. Mr. Capotosto attempted to have the s. 11(b) application set down for the same day the second s. 278 application was to be heard on June 14, 2022, however, the Crown had not filed a response by that date and I re-iterated my earlier ruling that I would address the s. 11(b) application if necessary at the end of the trial. Counsel also advised they were content for their written submissions to be relied upon.

[55] It is my view therefore, the delay respecting these additional 68 days from September 14 to November 21, 2022, when submissions were completed amount to exceptional circumstances and should be deducted from the total net delay indicated above of 411 days, which results in a total net delay of 343 days from the swearing of the Information to the end of the trial, which is less than the presumptive ceiling of 548 days or 18 months.

[56] As I have also discussed above, the COVID-19 pandemic has created and led to continuing delays, which in my view also qualify as “exceptional circumstances” over which the Crown and Court had no ability to anticipate and which were completely unexpected and over which the Crown had no control. It is my view that some portion of the time between September 2, 2021, when the pre-trial motions and trial dates were set and the original completion date of the trial, September 14, 2022, was directly related to the “ripple effect” referred to above caused by the shutting down of the Courts in March 2020, and the measures taken to ensure the safety of all of the participants in the administration of criminal justice. Given the net delay I have determined I do not need to put a number on this exceptional circumstance, although it is my view that some portion of the 369 days (September 2, 2021 to September 14, 2022) would be related to the COVID measures. A further consideration I do not have to deal with in detail is the complexity demonstrated by the defence pre-trial motions as well as the Crown’s Similar Fact application. This was not a typical impaired operation of a conveyance case that would take two or three days with a multitude of Charter applications to be dealt with by blended hearing.

[57] Finally, it is my view the defence has not established that the completion of this somewhat complex and serious case in 343 days was unreasonable.

[58] The Applicant’s s. 11(b) Charter application is therefore dismissed.

Released: March 9, 2023

Signed: Justice Peter C. West

[^1]: The Notice of Application appears to be dated May 6, 2021; however, this date is incorrect as the Notice references an Affidavit from Alice Chuang, articling student, dated May 6, 2022, which was filed with the Notice of Application. [^2]: Crown Response, paragraph 23. [^3]: Defence Factum, paras. 17-21. [^4]: November 21, 2022 was the final day of the submissions on the trial, which was later than the original ending date of the trial September 14, 2022. I will discuss this further period of delay later in my reasons; however, suffice it to say now this extension was caused by delay caused by an unforeseen Crown Application for the complainants to testify by CCTV and the unforeseen illness of the Crown and the Defendant and a personal emergency affecting the Crown. [^5]: The original scheduled last day of trial was September 14, 2021; however some of the trial days were lost due to a Crown s. 714.1; s. 486.2(2) and s. 486.1(2) motion respecting the testimony of the three complainants and the illness of the Crown on September 13 and the illness of the defendant on September 14 and additional dates to complete the evidence and hear submissions had to be scheduled. I will address this delay later in my reasons when I discuss exceptional circumstances. [^6]: As I will discuss it is my view that this 68 additional days was a direct result of exceptional circumstances that could not have been anticipated by the Crown as it related to illness of the Crown, where a half day was lost and the illness of the accused where a full day was lost. The defence also requested that the trial be adjourned just after the lunch recess on September 12, 2020, in order to prepare the defence, which lost a further half day. Further, the Crown could not have anticipated that she would have to bring an application pursuant to ss. 714.1 and 486.2(2) or that Mr. Capotosto would oppose this application. As I will discuss later in my reasons these were exceptional circumstances.