Court and Parties

ONTARIO COURT OF JUSTICE

CITATION: R. v. Smith, 2023 ONCJ 406 DATE: 2023 09 25 COURT FILE No.: 19-15009160 Toronto Region

BETWEEN:

HIS MAJESTY THE KING

— AND —

ASHTEN SMITH

Before: Justice H. Pringle

Heard on: August 14, 2023 Reasons for Judgment released on: September 25, 2023

Counsel: Adrienne Samberg, counsel for the Crown Greg Dorsz, counsel for the accused

PRINGLE J.:

Summary of the Application

[1] The applicant sought the charges against him stayed, on the basis that his guarantee to trial in a constitutionally reasonable time had been breached.

[2] On September 13, 2023, I stayed the charges against him. Summary reasons were provided, with written reasons promised to follow.

Factual Overview

Pre-Pandemic Appearances

[3] Mr. Smith was arrested on December 23, 2019, and an information alleging three offences was sworn that same day.

[4] His first out-of-custody appearance was January 22, 2020. The applicant was self-represented. Disclosure was physically provided to him, and the Crown said he could review video disclosure in their office. The applicant said he wanted to retain counsel and his case was adjourned.

[5] The applicant was still self-represented at his next appearance. He had contacted an unnamed lawyer, who told him to request an adjournment. The applicant was given further disclosure in court, and the Crown reminded him about the video disclosure.

Pandemic Adjournments

[6] The third court appearance was March 18, 2020. Courts were closed to in-person appearances due to the pandemic. Matters were adjourned for months before the courts were directed to resume scheduling. Priority was then given to in-custody matters and trials that had been adjourned due to the shutdown.

[7] The applicant’s case was adjourned, with a discretionary bench warrant, from March 18, 2020 to May 27, 2020. The “COVID” adjournments and discretionary bench warrants continued on August 5, 2020; October 14, 2020; November 18, 2020; and December 23, 2020. Mr. Smith attended none of these appearances.

The Applicant’s Prolonged Absence from Court

[8] On January 18, 2021, the Crown said they were ready to move the applicant’s case to the pretrial stage. The applicant’s non-attendance at court had frustrated this, since the Crown had no contact information for him. A bench summons issued.

[9] The applicant failed to attend pursuant to the bench summons, and the case adjourned again without comment. A second bench summons issued on June 7, 2021. However, the applicant was not at the address he was supposed to be at, and thus attempts at service failed.

[10] On August 11, 2021, the Crown successfully sought a bench warrant.

The Applicant’s Case Begins Again

[11] That bench warrant was executed on January 1, 2022. The applicant was released on conditions, including a required court appearance of January 19, 2022.

[12] The applicant attended court as required and said he had contacted an unnamed lawyer. He asked for an adjournment to retain counsel and get another copy of disclosure. That second copy of disclosure was needed because he had given the first to an unnamed lawyer who then passed away.

[13] The Crown underscored the delay in his case, requested he have a pretrial before the next court appearance, and gave him a Crown email address to arrange that. The applicant emailed the Crown that same day.

[14] He received no reply. At the next court appearance, his email was found and forwarded to the assigned Crown so that a pretrial could be booked. The case adjourned again.

[15] A self-represented Crown pretrial was held on March 18, 2022. By April 6, the next court date after that pretrial, the applicant’s case headed towards resolution. But a guilty plea, scheduled for April 13, 2022, fell through due to disagreement on facts. [1]

[16] Duty counsel became involved with the applicant’s case. Their role was limited to reviewing disclosure and discussing the case with the applicant. Adjournments were granted to permit them to help.

[17] But by July 6, 2022, the applicant had neither resolved his case nor moved it towards trial. His case was addressed in case management court, where duty counsel confirmed LAO had granted funding but the applicant still needed to select a lawyer.

[18] The applicant sought an adjournment at his next appearance because he was waiting to hear back from an unnamed lawyer. But the case management judge, McLeod J., refused to accept this. He pressed the applicant to find that lawyer’s name. He then firmly instructed the applicant to call that lawyer, that same day, and to continue to follow up until there was a lawyer acting on the LAO certificate.

[19] This produced results. By August 3, 2022, the applicant had retained counsel, and an agent appeared at court to request disclosure. The Crown said that disclosure was available on the ‘hub’, and asked for defence to contact the assigned Crown for a pretrial. The case adjourned.

[20] Agent for counsel appeared at the next date and repeated the request for disclosure. The Crown then realized disclosure had been shared on the hub but with the wrong lawyer. She immediately remedied the problem. The Crown observed that defence could have contacted them for a pretrial or to communicate disclosure problems, but had not. The case adjourned to permit scheduling a Crown pretrial with counsel.

[21] By the next court appearance, a pretrial was scheduled for the “first offered date” of October 27 and the case adjourned to afterwards. Next, a Judicial Pretrial was scheduled for November 8 and then re-scheduled to January 10 due to a miscommunication [2] about which conference line to call into for the JPT.

[22] That JPT led to a trial time estimate of two days and an advance date for a s. 11(b) application. On January 18, 2023, the defence sought a one month adjournment to set up a trial scheduling date. The Crown objected. The presiding justice permitted an adjournment only to February 1, and with the direction that dates be scheduled before they returned to court.

[23] Trial dates had been offered by February 1, but the Crown sought and obtained an adjournment to February 8 in the hope of securing earlier ones. On February 8, trial dates were scheduled for September 21-22, 2023 [3]. The case continued to return in March, ostensibly to secure earlier dates: however, the record does not reveal what, if anything, steps were attempted.

[24] A total of 1369 days passed between December 23, 2019 and September 21, 2023.

Applicable Legal Principles

Jordan Framework

[25] The Jordan framework must be applied to assess the constitutionality of time to trial. As per Coroza J.A. at paras. 61-67 in R. v. Zahor, 2022 ONCA 449, this is:

Step 1: Calculate the total delay. The court must calculate the total delay, which extends from the laying of the charge to the actual or anticipated end of the trial: Jordan, at para. 47.

Step 2: Calculate the net delay. Net delay is calculated by subtracting defence delay from the total delay: Jordan, at para. 60. Defence delay is subtracted because "[t]he defence should not be allowed to benefit from its own delay-causing conduct": Jordan, at para. 60. There are two types of defence delay, each of which must be considered and, if present, subtracted.

Step 2(a): Subtract delay that is waived by the defence. Delay that is clearly and unequivocally waived by the defence, either explicitly or implicitly, must be subtracted from the total delay: Jordan, at para. 61.

Step 2(b): Subtract delay that lies at the feet of the defence. Delay that is "caused solely or directly by the defence's conduct" must also be subtracted from the total delay: Jordan, at para. 66. This includes tactical choices that delayed the trial, such as frivolous applications and requests, and also includes periods of time during which the court and the Crown are prepared to proceed but the defence is not: Jordan, at paras. 63-64.

Defence delay does not include legitimate actions taken by the defence to respond to the charges, such as taking time to prepare, as well as non-frivolous applications and requests: Jordan, at paras. 64-65. This court has also suggested that defence delay does not include defence actions taken in response to negligent Crown conduct, such as late disclosure, even where such conduct is not deliberate: see e.g., R. v. Pyrek, 2017 ONCA 476, 349 C.C.C. (3d) 554, at paras. 19-22; R. v. D.A., 2018 ONCA 96, 402 C.R.R. (2d) 303. at paras. 20-22.

Step 3: Compare the net delay to the applicable presumptive ceiling. The applicable presumptive ceiling is 18 months for cases tried in the provincial court and 30 months for cases tried in the superior court: Jordan, at para. 46. If the net delay is above the ceiling, the delay is presumptively unreasonable, and the Crown bears the burden of rebutting this presumption by demonstrating exceptional circumstances: Jordan, at para. 105.

Step 4: Consider exceptional circumstances. These circumstances do not need to be rare or uncommon; rather, they must lie beyond the Crown's control, in that they are reasonably unforeseen or reasonably unavoidable and, in either case, result in delay that cannot be reasonably remedied by the Crown: Jordan, at para. 69.

Factors Relevant to Defence Delay

[26] Defence delay is evidenced in two ways: i) delay waived by the defence; and ii) delay caused solely or directly by the conduct of the defence. This court’s focus is the latter category. R. v. Cody, 2017 SCC 31 at paras. 28-30, 32-33, and 35 applies:

In broad terms, the second component is concerned with defence conduct and is intended to prevent the defence from benefitting from "its own delay-causing action or inaction" (Jordan, at para. 113). It applies to any situation where the [page672] defence conduct has "solely or directly" caused the delay (Jordan, at para. 66).

However, not all delay caused by defence conduct should be deducted under this component. In setting the presumptive ceilings, this Court recognized that an accused person's right to make full answer and defence requires that the defence be permitted time to prepare and present its case. To this end, the presumptive ceilings of 30 months and 18 months have "already accounted for [the] procedural requirements" of an accused person's case (Jordan, at para. 65; see also paras. 53 and 83). For this reason, "defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay" and should not be deducted (Jordan, at para. 65).

The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. As we said in Jordan, the most straightforward example is "[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests" (Jordan, at para. 63). Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted (Jordan, at para. 64). These examples were, however, just that - examples. They were not stated in Jordan, nor should they be taken now, as exhaustively defining deductible defence delay. Again, as was made clear in Jordan, it remains "open to trial judges to find that other defence actions or conduct have caused delay" warranting a deduction (para. 64).

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. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.

As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extend to omissions as well as acts (see, for example in another context, R. v. Dixon, [1998] 1 S.C.R. 244, at para. 37). Accused persons must bear in mind that a corollary of the s. 11(b) right "to be tried within a reasonable time" is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to "actively advanc[e] their clients' right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and ... us[e] court time efficiently" (Jordan, at para. 138).

We stress that illegitimacy in this context does not necessarily amount to professional or ethical misconduct on the part of defence counsel. A finding of illegitimate defence conduct need not be tantamount to a finding of professional misconduct. Instead, legitimacy takes its meaning from the culture change demanded in Jordan. All justice system participants - defence counsel included - must now accept that many practices which were formerly commonplace or merely tolerated are no longer compatible with the right guaranteed by s. 11(b) of the Charter.

[27] In this case, I found periods of “illegitimate” defence delay that the Crown had not argued as defence delay. I am not bound by erroneous Crown concessions about delay: R. v. Tran, 2012 ONCA 18 at para. 31.

[28] I found defence delay actions/inactions fell into four general categories:

(i) the defendant’s prolonged non-attendance at court after the pandemic shut-downs; (ii) time spent re-doing procedural steps after the bench warrant was executed / marked inefficiency in retaining counsel; (iii) time spent pursuing resolution; (iv) defence counsel’s unavailability for trial.

[29] The following legal principles applied to each respective category.

Non-Attendance at Court

[30] This first category does not reference any time during the COVID courthouse shutdown period when the applicant failed to attend. That time period, I found, was an exceptional circumstance.

[31] However, the applicant also failed to attend court after court operations had meaningfully resumed. By January 18, 2021, the Crown was ready to move his case forward, but was frustrated by the applicant’s non-attendance.

[32] Where a defendant fails to attend court as required, that time is typically defence delay: R. v. Burke, 2018 ONCA 594 at para. 10. Exceptions may lie where, for example, the Crown inexplicably delayed executing a bench warrant despite knowing the accused’s whereabouts: see R. v. K.(J.), 2021 ONCA 256 at para. 43. No such exceptions applied here.

[33] Defence delay of 367 days (Jan. 18/21-Jan. 19/22) thus accrued, due to the applicant’s continuous non-attendance at court.

Retracing Procedural Steps

[34] Once the applicant was arrested on the bench warrant and returned to court, he began moving his case forward. He had to obtain a second, and later a third, copy of disclosure. He had to finish retaining counsel, a task left untouched since early 2020. The time these procedural steps took was defence delay.

[35] There was nothing “illegitimate”, in the layperson’s sense of the word, about tending to these tasks. The applicant needed disclosure to respond to the charges. He was entitled to retain counsel in defence of these charges.

[36] But the markedly inefficient manner in which he took these steps, and the connection between their late timing and the applicant’s prolonged failure to attend court, caused them to be labeled illegitimate defence delay. This is because a defendant should not benefit from “its own delay-causing conduct”: Jordan, at para. 60.

[37] As per Braid, J. at para. 37-38 [4] in R. v. Elliot [2019] O.J. No. 2868 (S.C.J.); upheld 2021 ONCA 909:

… the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay: see R. v. Cody.

[emphasis in original]

Inaction may also amount to defence conduct which is not legitimate because it is contrary to the culture change mandated by Jordan.

[38] After the bench warrant executed, the applicant received another copy of disclosure and needed time to contact counsel. These were not procedural steps taken to respond to the charges. His actions during this time were either a re-trace of steps already taken or necessary steps he ignored for far too long.

[39] R. v. Browne, 2020 ONSC 5244 at para. 54 applies:

The pertinent question in this case is not whether the defence acted reasonably and with diligence in the steps that it took following the applicant's change of counsel. I accept that it did. The question, rather, is whether the delay that flowed from the taking of those steps was of the kind that the Supreme Court had factored into its determination of where the presumptive ceiling should be. If it was, it is not deductible. But, in my opinion, it was not. The delay of almost four months between January 25 and May 17 was not occasioned by the need to do things that undoubtedly are a legitimate component of preparing a defence but rather by a need to re-do them. It is not an answer to say that the defence acted with diligence in retracing steps that had already been taken by previous counsel. That may be true, but it misses the point. It misconceives why the delays inherent in those steps, although caused by the defence, are ordinarily not deductible -- namely because in setting the presumptive ceiling the Jordan court took the delay that those steps could be expected to cause into account. It is the retaking of those steps that makes what would otherwise be non-deductible delay deductible. To fail to deduct it without a corresponding increase in the presumptive ceiling would not only be unfair to the prosecution, which is charged with responsibility for ensuring that the defendant is tried within a reasonable time, it would be illogical. It would, effectively, permit the defence to double count the delay flowing from legitimate defence conduct without a corresponding increase in the presumptive ceiling.

[Emphasis in original]

[40] I found 29 days (Jan. 19/22 to Feb. 16/22) to be defence delay as the applicant retraced procedural steps and initiated (apparently), the task of retaining counsel.

Time Spent Pursuing Resolution / Marked Inefficiency in Retaining Counsel

[41] Following a self-represented pretrial between Crown and the applicant, his case moved towards resolution. A guilty plea date was scheduled and attempted, but fell apart due to a factual disagreement. Subsequently, the applicant sought adjournments to obtain duty counsel advice.

[42] Time pursuing resolution, separate and apart from steps taken to move the case to trial, may constitute defence delay: R. v. Chung, 2021 ONCA 188 at para. 188 [5]. In this case, the applicant spent time pursuing resolution and then, when that fell apart, continued his belated efforts to retain counsel.

[43] I found 106 days (April 6/22-July 20/22) were a combination of pursuing resolution and the marked inefficiency the applicant brought to the task of retaining counsel. Pursuant to Chung and Browne, supra, this period constituted defence delay.

Defence Counsel Unavailability for Trial

[44] Finally, there were short periods of time where Crown and court were available for trial, but defence counsel was not. This engaged the question of whether the principle at para. 23 of R. v. Godin, 2009 SCC 26, survived Jordan.

[45] In my view, the judicial debate on this topic was settled by R. v. Hanan, 2022 ONCA 229 at paras. 55-56:

Once it is accepted that the reason for defence unavailability (other than legitimate defence preparation time) is not taken into account in determining defence delay, it does not necessarily follow, as the Crown urges this court to find, that there is a "bright-line" rule that, once the defence is unavailable, all of the delay until the next available date is characterized as defence delay. That would be inconsistent with the principle that the delay must be "solely or directly" caused by the defence, and the qualification that "periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable": Jordan, at para. 64.

Like Roberts J.A. in R. v. Albinowski, 2018 ONCA 1084, 371 C.C.C. (3d) 190, I would reject the "categorical approach" proposed by the Crown that all of the delay following the rejection of a date offered by the court must be characterized as defence delay, and I agree with her statement that "it is necessary to consider the circumstances of [the] case": at para. 46. The court must take a contextual approach that considers the circumstances relevant to whether, in respect of a particular period of time, the defence refusal of a date is the "sole or direct" cause of the resulting delay.

[46] In the case at bar, 17 days (March 21-29/23; Sept. 12-21/23) were purely due to defence unavailability for trial [6].

Exceptional Circumstances and the Pandemic

[47] The lifespan of this case was interrupted by the COVID-19 pandemic. The pandemic-related shutdown was the only exceptional circumstance argued by the Crown.

[48] The applicant’s third appearance was scheduled for March 18, 2020. By then, Ontario courts had shut down. Jurisdiction over all cases, including this one, was maintained by mass adjournments from a virtual court.

[49] The applicant’s failure to attend court, during this period, was not uncommon. Because pandemic-related challenges were being experienced by everyone, non-attendance at court was commonly addressed by discretionary bench warrants and bench summons. The evidentiary record reflects those accommodations being made for the applicant.

[50] As courts re-opened, cases were necessarily prioritized pursuant to directions from the Chief Justice. This case did not fall into any of those priority categories and the Crown did not seek to move it forward. But also, the applicant continued to be absent from court.

[51] By January 18, 2021, the Crown expressed readiness to have a pretrial. At this point, the applicant’s absence from court became the sole and direct cause of delay: see paras. 31-34 above.

[52] The pandemic’s effect on s. 11(b) rights was subject to clear and recent direction from our Court of Appeal. Firstly, the pandemic was the epitome of an exceptional circumstance, as per para. 19 of R. v. Agpoon, 2023 ONCA 449:

The pandemic falls within a category of "discrete exceptional circumstances" laid out in Jordan, which the court defined, at para. 69: "[e]xceptional circumstances lie outside the Crown's control in the sense 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" (emphasis in original). This is the "only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling": Jordan, at para. 81. The court acknowledged, at para. 72, that medical emergencies could qualify as a discrete exceptional circumstance. Although this comment was made in the context of individual medical emergencies, in our view it can be, and should be, generalized for the pandemic.

[53] Secondly, the Court in Agpoon instructed against second-guessing court policy decisions made during that ongoing state of emergency. As per paras. 21-22 and 33-34:

In our view, there is a systemic perspective within which the pandemic must be seen. The Jordan court said, at para. 103, "[t]he reasonableness of a period of time to prosecute a case takes its colour from the surrounding circumstances." The surrounding circumstances here are systemic.

We join with the Jordan court in discouraging "complicated micro-counting" in determining delay, particularly in the context of the pandemic: at para. 111. Indeed, "trial judges should not parse each day or month... [but] should step back from the minutiae and adopt a bird's-eye view of the case": Jordan, at para. 91.

Going forward, where access to courts has been limited in these ways, the attributable delays are to be treated by the reviewing court as discrete exceptional circumstances in assessing delay for Jordan purposes. Although the focus of this decision has been on jury trials, similar principles apply to the availability of judge-alone trials in the Superior Court of Justice, and, with necessary modifications, to the Ontario Court of Justice.

This approach is subject to the right of the defence to argue that the delay is unacceptable nonetheless as set out in Jordan. That said, it is not open to the defence to second-guess the policy decisions made that limited access to courts in the ways set out above on a case-by-case basis.

[54] Both Crown and defence agree the pandemic was an exceptional circumstance. Applying Agpoon, I allocated 280 days (March 18/20 to Dec. 23/20) as an exceptional circumstance.

Application of Legal Principles to Facts

[55] The total delay in the applicant’s case was 1369 days, or 45 months.

[56] The defence delay totaled 519 days, as per below:

Defence delay of 367 days or 12 months (Jan. 18/21 to Jan. 19/22) DF failing to appear at court

Defence delay of 29 days (Jan. 19/22 to Feb. 16/22) DF retracing steps/marked inefficiency in retaining counsel

Defence delay of 106 days (April 6/22 to July 20/22) DF pursuing resolution/marked inefficiency in retaining counsel

Defence delay of 17 days. (March 21-March 29/23; Sept. 12-Sept. 21/23) DF unavailability for trial

[57] The net delay (total delay less defence delay) was 850 days. This fell above the Jordan ceiling of 18 months (548 days).

[58] Exceptional circumstances must then be considered. The pandemic was a clear exceptional circumstance, which further reduced net delay by another 280 days (March 18, 2020 to Dec. 23, 2020).

[59] The remaining time in this case was 570 days. The Jordan ceiling is 548 days. The time it took to bring Mr. Smith to trial thus continues to exceed that ceiling by 22 days.

[60] The Crown conceded that resulting delay, after deductions for defence delay and exceptional circumstances, exceeded the Jordan ceiling [7]. But Ms. Samberg argued the analysis did not end there, and that the Crown’s efforts to move the case forward should factor in and militate against a stay.

[61] This approach misconstrues Jordan and seeks to revive the Morin approach. When the remaining time, after net delay calculated and exceptional circumstances considered, exceeds the Jordan ceiling, s. 11(b) is breached and the analysis ends. As per para. 81 of Jordan:

To be clear, the presence of exceptional circumstances is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling. As discussed, an exceptional circumstance can arise from a discrete event (such as an illness, extradition proceeding, or unexpected event at trial) or from a case's complexity. The seriousness or gravity of the offence cannot be relied on, although the more complex cases will often be those involving serious charges, such as terrorism, organized crime, and gang-related activity. Nor can chronic institutional delay be relied upon. Perhaps most significantly, the absence of prejudice can in no circumstances be used to justify delays after the ceiling is breached. Once so much time has elapsed, only circumstances that are genuinely outside the Crown's control and ability to remedy may furnish a sufficient excuse for the prolonged delay.

[emphasis added]

[62] In the case at bar, the Crown made significant efforts to move the case forward, such as invoking the assistance of case management court. This is commendable. But it cannot cure net delay in excess of the Jordan ceiling.

[63] The applicant has established his s. 11(b) Charter right was breached. The charges against Mr. Smith must be stayed.

Released: September 25, 2023 Signed: Justice H. Pringle

[1] No transcript was filed from this attempted plea date, to avoid placing prejudicial material before the trial court. Counsel agreed this time was spent pursuing resolution.

[2] On November 8, both counsel called into one conference line while the JPT judge called into a different conference line. It was thus not held.

[3] The record was not clear whether these were the same dates offered on February 1.

[4] See para. 40 for case-specific examples of delay in retaining counsel becoming defence delay.

[5] Leave to appeal to S.C.C. dismissed, Nov. 4, 2021.

[6] At first blush, it appeared defence delay was greater than this, because defence counsel was unavailable for a date offered in May 2023. However, as Mr. Dorsz pointed out, only one day in May had been offered for a two-day trial: thus, even if he had been available in May, the second day of trial would still need to be scheduled. The court did not have a date available for Day 2 of trial until August 14, 2023 (a date defence was available but the Crown was not). Defence unavailability on May 8, 2023, therefore, was not the sole or direct cause of delay between May 8 and August 14, 2023.

[7] The Crown’s factum submitted that net delay exceeded the Jordan ceiling by two months.