Court and Parties

DATE: June 1, 2023 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario

B E T W E E N :

HIS MAJESTY THE KING

-and-

ROHIT REHAL LIAM FORD MALCOLM ANDERSON

Reasons for Ruling

Duncan J.

Counsel: K Holmes for the Crown; A Edgar for defendant Rehal; R Timol for defendant Ford; K Wildman for defendant Anderson

[1] This is an 11B application.

[2] The defendants were jointly charged on May 25 2021 with several serious drug and gun offences. Their trial is scheduled to be held before me on October 30 – November 3 of this year (2023), almost 30 months since the charge was sworn.

[3] The important points in the chronology are as follows:

• May 25 2021 – charges sworn
• April 5 2022 – substantial disclosure complete – some outstanding – defence accepts that at this point sufficient disclosure had been made for the case to move forward
• May 10 2022 – first JPT held – possible resolution discussed
• June 1 2022 – second JPT – Five day trial [1] to be set. Forms completed
• June 29 2022 – Trial scheduling meeting - first dates offered by TC accepted by all parties - October 30-Nov 3 2023 (about 16 months away) – total delay would be far beyond presumptive ceiling.
• July 18 2022 – Trial dates above confirmed on record
• Sept 27 2022 – Crown identifies this case as one to prioritize - Crown offers one block of earlier dates of Oct 31 -Nov 4 2022. This date was almost exactly a year in advance of the date already set and just over 30 days away from the date of offer. Two defence counsel were not available but offered other dates. Third counsel did not respond
• October 28 2022 – Crown offers second block of priority dates November 21-25 2022 – just over 3 weeks away – two defence counsel were unavailable, one noting that the date is “only 3 weeks hence”. Third counsel did not respond
• November 25 2022 – Jordan presumptive ceiling (not including defence delay and exceptional circumstances) reached -549 days
• January 24 2023 – Further dates offered March 6-10 and others in April but rejected by the defence as not allowing time for pre-trial motions
• January 25 2023 – presumptive ceiling reached as per these reasons
• Feb 7-14 2023 – Further dates in May June and August offered – defence responded that May was already booked for 11b, June dates not sufficient turnaround for 11b decision. Two counsel available for August dates third was not. Crown gives up trying to re-schedule and says it will stay on original dates Oct 30-Nov 3 2023

Total Delay

[4] Total delay May 25 2021 – November 3 2023 is 892 days or 29.25 months. This is almost a year (343 days or 11.25 months) over the ceiling.

Defence Delay

[5] The Crown acknowledges that there was no defence delay before the point of substantial disclosure being provided on April 5 2022. The Crown submits that there was some defence delay/covid-caused delay in the date setting process – no more than one month. I agree. [2]

[6] The core issue on this application is whether the defence is responsible for the delay resulting from its rejection of the first two priority sets of dates in October and November 2022. Both blocks of dates were close to the dates when the offers were made – 4 weeks and 3 weeks respectively.

[7] Much of the argument before me on this application focused on whether the Crown had made sufficient disclosure at the time the priority dates were offered. The defence position was that they were not obliged to accept the priority dates (and therefore responsibility for all or any resulting delay) when there was still outstanding disclosure.

[8] The Crown did not contest that there was outstanding disclosure though it disagreed with the defence as to the importance of the outstanding material. The Crown submitted that the defence should have accepted the priority dates at which point the Crown would prioritize completing disclosure. If it failed in getting the disclosure to the defence within a reasonable time before trial, then the defence could obtain an adjournment and ensuing further delay would fall at the feet of the Crown.

[9] I think the Crown’s position is correct. It is consistent with the general rule that the defence is not entitled to wait for complete disclosure before setting a trial date: R v Kovacs-Tatar , [2004] OJ 4756 para 47 (CA). It follows that the defence argument that they were entitled to pass on the priority dates due to incomplete disclosure cannot be accepted where, as here, the defence had sufficient disclosure to set the original trial dates and did so.

[10] Further, and importantly, the court hearing a pre-trial 11b application is not well positioned to determine issues of adequacy of disclosure – most basically because it cannot know what the state of disclosure will be at the time of trial. Deficiencies in disclosure 30 days out may well be cured by the time of trial. If they are not, that is an issue for an adjournment application at trial. It is not an issue for the 11b application. Attempting to deal with disclosure issues on an 11b application adds a significant level of tangential complexity and diverts from the already complex issue at hand.

[11] There is another issue though. Trial dates must allow adequate time for preparation: R v Hanan 2022 ONCA 229 at para 56; if they do not, the defence is entitled to reject them without being responsible for ensuing delay: R v Qureshi 2023 ONCJ 189 , [2023] OJ 1903; R v Qureshi (No 2) [2023] OJ No 2180. There is more to trial preparation than obtaining disclosure – witnesses need to be interviewed, subpoenas issued, law briefed, strategy formulated, client prepped and so on. To complete this task, a certain minimum preparation time is required.

[12] In R v Dhillon [2019] OJ 3148 I reviewed cases dealing with time for trial preparation in the pre-Jordan 11b context:

22 One measure might be extracted from the pre-Jordan line of cases such as R. v. Lahiry, 2011 ONSC 6780 , [2011] O.J. No. 5071, where Code J. clarified that systemic delay is not the entire time from set date to trial but that the time to prepare and get ready for trial must be deducted. In the simple drink/drive cases before him, that period was estimated at around 2 months in one case (para 37), 4 months in another (para 61) and just under 2 months in a third (para 117-120). A similar observation was recently made by Burstein J in R. v. Zikhali, [2019] O.J. No. 262, at para 33 where he said that "... historically 1.5 months was commonly used as an estimate of time reasonably required for the defence to ready itself for trial once it has received disclosure in a straightforward summary conviction case."

[13] It can be seen that the approach in these cases was for the Court to use its experience to determine and apply an estimate of the preparation time required in a typical case of the kind that is before it. The same approach was applied by the Court of Appeal in the post-Jordan case of R v Albinowski 2018 ONCA 1084 paras 45-52.

[14] Following this approach and these examples, it is my view that the preparation time available for each of the blocks of priority dates offered (4 weeks and three weeks respectively) was inadequate. This was not a routine summary conviction matter but a five-day trial of serious indictable offences. Further, at the time the priority dates were offered, the trial dates that had been set were still a year away so it can be assumed that little if any preparation had already been accomplished.

[15] By this standard, both of these offered sets of dates were too soon, regardless of the state of disclosure. It is not necessary for me to decide how much preparation time would be adequate. It suffices to say that one month was not enough.

[16] The offered priority dates therefore were not viable. The defence was not required to accept those dates and is not responsible for the delay that followed their rejection: R v Quereshi supra. This is so regardless of whether the defence was otherwise available or unavailable for the offered dates.

[17] Later offers of priority dates made in January [3] and February 2023 are, in my view, irrelevant to the 11b issue in this case. The earliest dates then offered were March 6-10 2023; the ceiling for net delay had been reached over a month earlier, on January 25 2023 (see analysis and calculation below).

Exceptional Circumstances - Covid

[18] The Crown submitted that the cumbersome and time-consuming procedures for setting pre-trial and trial dates initiated by Covid accounted for approximately three weeks delay. This has already been included in the one month booked under defence/covid delay above (para 5) and should not be double counted.

[19] The Crown also initially suggested that there was Covid backlog to consider and that it should be assessed at 3 months. But as I understand it, during submissions the Crown eventually conceded that backlog did not actually affect this case because it was offered priority dates and therefore jumped the covid-swollen queue. As for the original trial dates given, the Crown also acknowledged that no Covid backlog could come close to justifying the extreme delay to those dates.

Exceptional Circumstances - Complexity

[20] The Crown submits that this case involving three co-accused and requiring a five-day trial is somewhat complex and its inherent time requirements justify a “slight” expansion of the presumptive ceiling. I agree.

[21] The Crown does not quantify “slight”. The typical difficulty presented by multiple defendants is finding trial dates to accommodate all counsel. But in this case all counsel were available on the first dates offered by the TC. With respect to the priority dates, both counsel that responded were unavailable and, in any event, as discussed above, these were not viable dates. Still, the case was simply bigger than most and merits an appropriate allowance for complexity of 30 days.

Conclusion

[22] The total delay is 29.5 months. The deduction for defence delay is 30 days and the deduction for exceptional circumstance is 30 days. The net delay is therefore 27.5 months. The defendants’ right to trial within a reasonable time has been infringed. I am required to stay the proceedings.

Endnote

[23] It may seem ironic that the Crown could lose an 11b application because it offered trial dates that were too soon. However, that view can be sustained only by isolating the last few months from the rest of the history of the case. Considered more broadly, the Crown put itself in a tight squeeze by taking almost a year to make sufficient disclosure to permit the case to move forward. The problem was then compounded by setting dates far outside the constitutionally acceptable period. There was then only a narrow window available to remedy the situation and then in the attempt, only limited dates were offered.

[24] Regrettably, the Court bears primary responsibility for these compounding factors. Offering and setting trial dates grossly outside the Jordan period not only invites 11b disaster but makes it almost inevitable. In my opinion the Court should adopt a practice of setting every case within 18 months from the date of charge, unless there has been obvious and indisputable defence delay or a waiver. And if over-Jordan dates have already been set, as has occurred with many cases now awaiting trial in our system, the Court should offer to re-schedule for any dates within the remaining Jordan period that the parties are available. We should not limit the re-scheduling options to the few openings in the schedule. And for longer trials, if consecutive dates cannot be found, they should be scheduled piecemeal. In short, if the Crown is serious about saving endangered cases and the Court is serious about ensuring 11b rights are maintained, both should pull out all the stops.

[25] If necessary – and it will be necessary at least for a while – cases should be stacked on top of existing lists. When the trial dates approach and arrive and there are too many cases for the available time, some prioritization decisions will have to made by the Crown. But often such decisions will not even be required as the usual last minute collapse rate (high) will serve to clear the track for the higher priority cases. As a collateral benefit, the system will not have to deal with 11b applications resulting in a saving of time and trial resources that can be applied to getting more trials heard within a reasonable time.

Released: June 1, 2023 B Duncan J.

Counsel: K Holmes for the Crown; A Edgar for defendant Rehal; R Timol for defendant Ford; K Wildman for defendant Anderson

Endnotes

[1] There was to be a Garofoli application on the first day of trial. The only pre-trial application was an application to cross-examine the affiant.

[2] I have combined these two because they both impacted the date setting process in the same way in the same segment of time in the chronology of the case. The Crown took the same approach: Cr factum para 27

[3] Three months had passed since the last offer of dates was made.