Ontario Court of Justice

DATE: 2023 09 12 COURT FILE No.: Toronto 4814-998-23-4001292

BETWEEN:

HIS MAJESTY THE KING

— AND —

JEROME KAELL

Before: Justice Christine Mainville

Heard on: September 7, 2023 Reasons for Judgment released on: September 12, 2023

Counsel: Paul M. Alexander.............................................................................. counsel for the Crown Craig Penney.................................................................................... counsel for the accused

Mainville J.:

[1] Mr. Kaell brings an application to stay the proceedings for unreasonable delay. He stands charged with possessing and accessing child pornography, making available an intimate image without consent, and communicating for the purpose of obtaining sexual services from a person under 18.

[2] The parties are in agreement that the central issue to be determined in this case is whether the presumptive ceiling beyond which delay to trial will be deemed unreasonable is 18 or 30 months.

[3] There is uncertainty in that regard given that Mr. Kaell first elected to be tried in the superior court of justice and re-elected to be tried in the provincial court only after having been committed to trial in the superior court. He did not have the benefit of a preliminary inquiry.

[4] Should I determine that the 30-month ceiling applies, Mr. Kaell is in agreement that there is no breach of his right to a trial within a reasonable time.

[5] The material facts relevant to that determination are as follows.

Facts

[6] Mr. Kaell was charged with two counts on March 11, 2021. Additional counts were added on a new information dated November 4, 2021. The parties are in agreement that the delay clock began ticking in March of 2021.

[7] The accused did not have the right to a preliminary inquiry after the Crown decided not to proceed on a charge of making child pornography available. This was stated on the record on May 5, 2022. On that same date, the accused elected to be tried by judge and jury and the matter was remanded to the Superior Court of Justice.

[8] A first appearance was held in the Superior Court on June 3, 2022. On August 12, 2022, following a superior court judicial pre-trial, the accused’s 5-7 day trial was scheduled to begin on October 2, 2023.

[9] In November of 2022, Mr. Kaell discharged his counsel. After new counsel was retained, he chose to re-elect to have his trial in the Ontario Court of Justice. In order to exercise this choice, Mr. Kaell needed the Crown’s consent. The Crown consented to the provincial court re-election on the condition that Mr. Kaell waive his 11(b) Charter right. Specifically, the waiver that was requested and agreed to by the accused was from the anticipated end of the trial scheduled in the Superior Court, to the new trial dates that would be scheduled in the provincial court. The timeline of the waiver request was clearly made in accordance with the 30-month Jordan ceiling.

[10] A new information was sworn in the Ontario Court of Justice and Mr. Kaell attorned to it on April 6, 2023. The accused put his new election and the 11(b) waiver on the record.

[11] The 5-day trial in this court is set to begin on April 15, 2024.

[12] The defence concedes two waiver periods and some defence delay. It is unnecessary to delve into the details of these time periods given that the issue of which ceiling applies to this case is dispositive.

The Jordan Framework

[13] In R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada set a ceiling of 18 months for trials in the provincial courts, beyond which delay will be presumptively unreasonable. The ceiling was set at 30 months for trials in the superior courts and for cases going to trial in the provincial court after a preliminary inquiry.

[14] The present analysis does not require me to set out the entire Jordan framework in any level of detail. Suffice it to say that after calculating the total delay from the time of charge to the end of trial, the court must deduct defence-caused delay. The resulting net delay must then be compared to the applicable presumptive ceiling. If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If it cannot rebut the presumption, a stay will follow.

[15] On the defence’s calculation, the net delay in this case currently stands at just over 29 months. It does not submit that a stay would be in order if the delay is found to be below the applicable ceiling.

Analysis

[16] The defence relies on the language in Jordan and on subsequent cases, including R. v. Shaikh, 2019 ONCA 895 and R. v. Wookey, 2021 ONCA 68, to argue that what matters in determining which presumptive ceiling applies where no preliminary inquiry is held, is the court in which the trial ultimately proceeds. If the trial proceeds in the provincial court, the 18-month provincial court ceiling applies, regardless of any detours taken to get there. It argues that it is only in cases where a preliminary inquiry is held, and the matter nevertheless proceeds to trial in the provincial court, that the 30-month ceiling would apply to a trial held in the provincial court.

[17] The Crown seeks to distinguish the above line of cases by arguing that committal to trial in the superior court is the functional equivalent of completing a preliminary inquiry. Indeed, following the completion of a preliminary inquiry, the accused who is headed to trial will generally be committed to trial in the superior court. The 30-month ceiling then kicks in.

[18] Both parties recognize that neither Jordan nor cases such as Shaikh and Wookey directly address the issue before me. They were unable to locate other cases where the issue involved a re-election to the provincial court after committal to trial in the superior court, where no preliminary inquiry was held.

[19] Indeed, Jordan did not specifically address the case of trials that were “going to trial in the superior court” following committal, but that ended up being returned to the provincial court following re-election. The Court in that case did note that “if the accused re-elects a trial in the provincial court following a preliminary inquiry”, the 30-month ceiling would apply: Jordan, at para. 49, footnote 3.

[20] Subsequent cases, including from the Ontario Court of Appeal, have made clear that if a case goes to trial in the provincial court before any preliminary inquiry is completed, the 18-month ceiling applies. In Shaikh, this was the case following a re-election by the accused mid-preliminary inquiry. In Wookey, it was following a re-election just prior to starting the scheduled preliminary inquiry. In both cases, the accused had a right to a preliminary inquiry.

[21] In those circumstances, the Court of Appeal deemed itself bound by the authority of Jordan, stating that it did “not feel at liberty to interpret the criterion specifically identified by the Jordan majority as a passing comment when it is manifest that the majority was delineating how its presumptive delay framework was to apply”: Shaikh, at para. 53. It reasoned in Shaikh that because “the re-election to provincial court did not occur after the preliminary inquiry, but before it commenced”, Jordan directed that the 18-month ceiling apply: Shaikh, at para. 52.

[22] The accused in this case did not have the benefit of a preliminary inquiry once the Crown decided not to proceed on the making available charge. There was, however, a committal to trial in the superior court following the accused’s election. Further, the matter was set for trial and was proceeding to trial in that court. It is not disputed that the 30-month ceiling applied to this case at least at that point in time. This is unlike cases such as Shaikh and Wookey, where the 30-month ceiling never in fact kicked in.

[23] In my view, once a case becomes governed by the 30-month ceiling, that ceiling continues to apply and it does not revert to a lower ceiling by virtue of a later change of course.

[24] It is true that the Supreme Court in Jordan used language that referred to whether a preliminary inquiry was held as opposed to whether committal to trial had occurred. However, in setting the presumptive ceilings, the Jordan majority did note that it was guided by the previously-applicable Morin guidelines, which “ set eight to ten months as a guide for institutional delay in the provincial court, and an additional six to eight months as a guide for institutional delay in the superior court following an accused's committal for trial .”: Jordan, at para. 52 [emphasis added].

[25] I note that in this passage, the Court referred to committal for trial as being the relevant demarcation point to determine the applicable 11(b) framework. Of course, what happens at the end of a preliminary inquiry is a committal to trial (should the accused not be discharged or the case otherwise resolved).

[26] The Crown submits that the phrase “after a preliminary inquiry” in Jordan could just as easily be replaced with “after the point of committal”. It is accurate to say that, at least in Ontario, nothing in the Jordan framework changes if one understands “after a preliminary inquiry” to mean “after committal to the superior court”. The point made in Shaikh and Wookey would stand.

[27] In my estimation, the Supreme Court likely decided to avoid the Morin language and refer to preliminary inquiries as opposed to committal to the superior court because in Quebec, it is common to proceed to trial in the provincial court following a preliminary inquiry in that same court. In other words, talk of committal could have led to some confusion.

[28] Using the end of the preliminary inquiry as the demarcating line typically denotes a demarcation between a trial in the provincial court, and a trial in the superior court. That is the true differentiating factor between the 18-month ceiling and the 30-month ceiling.

[29] Indeed, in cases where the right to a preliminary inquiry is waived, or the Crown prefers an indictment and no preliminary inquiry is held, a trial that finds itself in the superior court will still be subjected to the 30-month ceiling. In other words, the presumptive ceilings are not driven by whether time has been spent on scheduling, preparing for, and holding a preliminary inquiry or not: see R. v. Arthur, 2021 ONSC 6982, at paras. 58 and 59. That much Mr. Kaell agrees with. But he argues that they are – and ought to be – driven entirely by the court in which the trial is ultimately held.

[30] I agree that where no preliminary inquiry has been held, the focus should be on whether the case has in fact made its way to the superior court or not. I disagree, however, that once a case is in fact in the superior court, and the 30-month ceiling has crystallized, that it can be reversed back to 18 months by an eventual return to the provincial court.

[31] In the present case, the matter was “going to trial in the superior court” for 11 concrete months. Trial dates in the Superior Court had been set. These were unavailable to others. The Ontario Court of Justice no longer had jurisdiction over the matter. Following committal to the Superior Court, the 30-month ceiling had kicked in. Once the 30-month ceiling is set, and the Crown and court are operating not merely on the basis of an expectation that the matter will be headed to the superior court, but on the reality that the 30-month ceiling now applies, it cannot be that the ceiling can simply revert to 18-months by virtue of the case making an unusual return to the provincial court. An accused person cannot regain the benefit of having a trial within 18 months once he or she has formally decided to have a trial in the superior court, been committed to trial in that court, and had the case move forward in the superior court under its 30-month ceiling, to which he or she has acquiesced.

[32] I am aware that there are other ways to address the risk of gamesmanship that could arise should an accused decide to re-elect back into the 18-month ceiling after more than 18 months have passed. As the Court of Appeal observed in Shaikh, at paragraph 56, the Crown has the ability to simply refuse to consent to the accused’s re-election, or obtain a waiver for the time period lost in the superior court. Courts may also treat that time-period as defence-caused delay, and potentially as an implied waiver.

[33] It is telling that in discussing this option in Jordan, at paragraph 62, the Supreme Court only spoke of re-elections from a superior court trial to a provincial court trial “either before or during their preliminary hearing”. It did not address the case of a re-election following committal to the superior court.

[34] Courts that have contended with the 18/30-month issue have been rightly concerned about diluting Jordan’s bright-line preliminary inquiry rule, given that the Jordan Court had specifically wished to avoid a case-by-case approach.

[35] In Shaikh, the Crown’s submission was that “a case-by-case approach should be used to determine whether a re-election occurs late enough to warrant imposing the 30-month period of presumptive delay”: at para. 54. In rejecting this submission, the Court of Appeal acknowledged that its bright-line rule could lead to some seemingly incongruous results. But a bright-line rule was deemed more in keeping with the Supreme Court’s intent in Jordan:

The difference in substance between a re-election after a four-day preliminary inquiry, and a reelection during the scheduled dates but before the preliminary inquiry is completed does seem negligible. However, it would grate against the objective of Jordan to evaluate which presumptive ceiling applies on an after-the-fact, case-by-case basis during s. 11(b) motions. The Jordan majority was attempting to establish a bright line structure for s. 11(b) cases using a framework that “accounts for case-specific factors”: at para. 5. The Jordan majority established the regime it did to overcome the previous, “highly unpredictable”, “unduly complex”, and endlessly flexible approach that does little to prevent delay by giving clear guidance in advance: Jordan, at paras. 31-37. The formula thrice stated in Jordan for when the 30-month period applies to provincial court trials must therefore be taken at face value and used as the bright line measure. Since re-election occurred before and not after the preliminary inquiry, this case falls on the wrong side of that bright line for the Crown. [Shaikh, at para. 54. See also R. v. Uthayakumar, [2002] O.J. No. 3627 (C.J.), at para. 35]

[36] The scenario that presents itself in this case is different. There is a clear delineation between cases that are committed to trial in the superior court and those that are not. A rule that provides for a 30-month ceiling once a case is in the superior court, and to be tried in the superior court, irrespective of any later re-election, aligns with Jordan’s predictable bright-line framework.

[37] Ultimately, the distinguishing factor between cases such as Shaikh and Wookey and this case, is that in cases where the re-election occurs prior to the completion of the preliminary inquiry, the matter always remained in the provincial court. While the cases may have been treated as though they were heading to the superior court, following a preliminary inquiry, that never crystallized. That is not the case here.

[38] I note one previously unreported case of my colleague Justice Shandler that reached the same conclusion. In R. v. A.S., 2022 ONCJ 664, Shandler J. rejected the defence argument that the 30-month ceiling that kicked in once the accused was in the superior court should have reverted back to an 18-month ceiling following the accused’s re-election to the provincial court. He distinguished the Shaikh and Wookey line of cases on the basis that the issue in those cases “was whether the re-election occurred before and not after the preliminary inquiry, not whether the matter was in the provincial court or the superior court.”

[39] In that case, as here, the matter was in fact in the superior court. The ceiling thus changed to 30 months. Once elevated, it does not revert to a lower ceiling by virtue of re-election. Where there is no preliminary hearing, for instance because one is not required or because it is waived, committal to the superior court still establishes 30 months as the applicable Jordan ceiling.

[40] If I am wrong regarding the applicable ceiling, I would have no hesitation in attributing the delay from the time of the accused’s election to the superior court to his re-election to the provincial court as defence delay, based on the reasoning in R. v. Lai, 2021 SCC 52. As in Lai, the re-election was not a legitimate defence action intended to respond to the charges.

[41] Mr. Kaell argues that the delay occasioned by his re-election should be apportioned as between him and the Crown, given that the Crown had to consent to it. While it is true that the Crown had to consent to the re-election, none of the delay would have been occasioned had the accused not initially elected to be tried in the superior court, only to change his mind – albeit no doubt legitimately so – 11 months later. The detour to the superior court, in other words, was defence-caused.

[42] In Lai, the accused was faulted for not having re-elected earlier. The Court held that his tardiness in re-electing is what caused delay in that case. Here too, and while he did not have a right to re-elect as of right like Mr. Lai did, Mr. Kaell could have sought to re-elect much earlier. Indeed, he could have avoided electing a trial in the superior court altogether. While I do not fault him for seeking to re-elect, in my view, the delay was attributable to the conduct of the defence.

[43] As stated by Justice Goldstein in R. v. Shen, 2022 ONSC 3274, at paragraph 35, while it is true that the Crown did not obtain a waiver for the resulting delay, “the failure to do so ought not transform what is obviously seven months of defence delay into something else.”

[44] I therefore dismiss the application for a stay of these proceedings.

Released: September 12, 2023 Signed: Justice C. Mainville