Ontario Court of Justice

Date: 2023.09.26 Court File No.: Toronto # 20-550025600

Between:

HIS MAJESTY THE KING

— AND —

JOSE JULIEN MARIN

Reasons for Judgment

Section 11(b) of the Charter of Rights and Freedoms

Heard on: September 7, 2023 Released on: September 26, 2023

Counsel: Ms. A. Rourke ........................................................................................... Counsel for the Crown Mr. J. Glick.............................................................................................. Counsel for Mr. Marin

BAND J.:

I. Introduction

[1] The Information charging Mr. Marin with one count of sexual assault was sworn on September 13th, 2020. Since then, his matter has been set down for trial four times. The first two trial dates were adjourned at his counsel’s request, with s. 11(b) waivers for the intervening periods. The trial began in February 2023 before a different judge. Unfortunately, the parties agreed that comments made by that judge gave rise to a reasonable apprehension of bias and, on consent, a mistrial was declared. The trial is currently set to begin on October 3, 2023.

[2] On September 7th, 2023, the parties argued the s. 11(b) application before me. On September 19th, they were advised that the charge against Mr. Marin would be stayed, with reasons to follow.

[3] These are my reasons for finding that the net delay in this case exceeded the 18-month ceiling set by the Supreme Court of Canada in R. v. Jordan 2016 SCC 27.

II. Facts and Issues

[4] The parties’ written materials and oral arguments brought the key facts and issues into clear focus.

[5] During the first trial in February 2023, the parties ran out of time and required additional dates. The Trial Coordinator offered dates in early April. Mr. Glick was unavailable, as he was going to be out of the country for the first half of April. In the interim, he was instructed to bring a mistrial application. The mistrial was declared on April 23rd and the matter was put over to April 28th so that new trial dates could be obtained from the Trial Coordinator. On April 28th, new trial dates of October 3rd to 6th were set. Mr. Glick advised the Crown that delay was an issue. On June 2nd, Mr. Glick told the Crown that he had instructions to bring a s. 11(b) application.

[6] The parties agree that the total delay in this case is 36.7 months. They also agree that a 13-month (or 397-day) period was waived by the defence and is properly deductible. Mr. Glick argues that the net delay is 23.7 months. The Crown argues that the net delay is one or two weeks shy of 18 months. The disparate calculations are the result of the parties’ disagreement on two issues:

A. whether Mr. Glick’s unavailability during the first two weeks of April constitutes “defence delay”; and

B. whether the mistrial constitutes a discrete, exceptional circumstance?

II. Analysis

A. The first two weeks of April

[7] Given my conclusions concerning the delay engendered by the mistrial, nothing turns on this short period; nonetheless, I propose to resolve it as it was the subject of argument. Mr. Glick submitted that there is no evidence that the Court and the Crown were available in this period, and that to find otherwise would be to engage in speculation. The Crown relied on the transcript of February 16th, at p. 65, where the following exchange took place with the Trial Coordinator in court.

TRIAL COORDINATOR: Your Honour, I think we're leaning closer to April. The beginning of, I'm looking at April. THE COURT: Okay. MS. ROURKE: Okay. MR. GLICK: I'm gone the first two weeks of April, that's why I was hoping to get this done the end of March. THE COURT: Did, did you say the first two weeks of April? MR. GLICK: The first two weeks of April, I'm in a different country. THE COURT: Oh.

[8] The Crown argued that the Trial Coordinator would not have offered time during that period if the Court had not been available. In my experience, that is true. She also argued that she would not have said “okay” if she had not been available; when other dates were discussed, she indicated her unavailability. Mr. Glick did not respond to this submission or suggest an alternative interpretation of the transcript excerpt. I accept that it is more likely than not that the Crown was available to finish the trial during the first two weeks of April. Mr. Glick was not. In the circumstances of this case, those two weeks constitute defence delay as defined in Jordan at para. 64.

B. The mistrial and the delays it occasioned

[9] In Jordan, the Supreme Court explained defined circumstances.

[69] Exceptional 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. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.

[70] It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might 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. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful — rather, just that it took reasonable steps in an attempt to avoid the delay.

[71] It is obviously impossible to identify in advance all circumstances that may qualify as “exceptional” for the purposes of adjudicating a s. 11(b) application. Ultimately, the determination of whether circumstances are “exceptional” will depend on the trial judge’s good sense and experience. The list is not closed. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.

[10] Further, at para. 75, the Court instructed us as to how the delay caused by such an event must be treated.

The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events…. Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e., it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events) . (My emphasis; internal citations omitted.)

[11] In R. v. Mallozzi, 2017 ONCA 644, the Ontario Court of Appeal held that two mistrials had been exceptional circumstances. In regard to the delay between the second one and the subsequent trial date, the Court found that three months was a reasonable period to subtract from the total delay. It is noteworthy that the trial involved several co-accused and was expected to take more than three weeks before a jury.

[12] Not all mistrials qualify as exceptional circumstances. In R. v. Way, 2022 ABCA 1, the Alberta Court of Appeal cautioned that

[39] … it must be made perfectly clear that not every mistrial will justify a deduction of delay as an exceptional circumstance between the end of the first trial and the start of the second trial. Such a broad pronouncement would permit automatic deductions in favour of the Crown, and consign accused to almost certain failure in s 11(b) applications, a consequence which does not align with the constitutional principles laid down in Jordan.

[40] More specifically, we foresee situations involving prosecutorial misconduct leading to mistrial which could not meet the parameters of exceptional circumstances beyond the Crown’s control. Both Wu at para 79 and Beckett at para 163, discuss a mistrial resulting from an inflammatory closing address made by the Crown that could not be neutralized by an instruction to the jury. In R v JHT, 2016 BCSC 2382, prejudicial statements made by a Crown witness in front of the jury were found to be under the control of the Crown.

[41] Needless to say, these examples do not form an exhaustive list. Many other situations might result in mistrial, including something done by defence counsel, or comments or actions of a trial judge culminating in a successful application for a mistrial based on a reasonable apprehension of bias. We emphasize that each case is to be assessed on its own facts. Deduction of the gap between a retrial must never to be treated as invariable, or inevitable . (My emphasis.)

[13] In Mr. Marin’s case, the delay between the declaration of the mistrial and the fourth trial dates is five-and-a-half months. The parties accepted the first dates that were offered, but nothing more was done to attempt to secure earlier dates. In her oral argument, the Crown pointed out that the mistrial occurred at the end of April and that summer was around the corner. She submitted that, in her experience, trial dates are more difficult to secure in the summer and that I could draw the same conclusion based on my experience as a judge in this jurisdiction. In oral argument, Mr. Glick maintained that whether the mistrial had been reasonably foreseeable and avoidable was an open question; that said, he argued that the Crown ought to have done more in this case to try to secure earlier trial dates, particularly since he had raised concerns about delay in a timely fashion. At most, three months ought to be deducted in relation to the mistrial.

[14] I have no difficulty finding that a mistrial occasioned by a trial judge’s comments to counsel that raise a reasonable apprehension of bias in circumstances such as these, where counsel had no part in it, must constitute an exceptional circumstance. [1] The real issue in this case is whether the entire period that followed must be deducted from the total delay.

[15] Because many judges and counsel take time off during the summer, it is tempting to conclude that it is more difficult to obtain trial dates then than at another time of year. But I simply do not know whether that is so. To my knowledge, judicial vacation time is dealt with differently in the Ontario Court of Justice than it is in some of the higher courts. The Crown’s position may have been informed by her experience in the Superior Court of Justice. In any event, assuming that the Crown is correct, and that I am able to take judicial notice of the fact that trial time is harder to come by in the summer at the OCJ-T, the question is whether that state of affairs relieved the Crown of its obligation to attempt to mitigate the delay occasioned by the mistrial in this case.

[16] In my view, the answer must be “no”. The mistrial occurred in the context of the third trial dates, approximately 31 months after the Information was sworn. Mistrials ought to prompt the Crown to seek new trial dates in earnest. All the more so when they occur well after the 18-month mark. While the Crown is not expected to be able to remedy all delays, it must make reasonable efforts to do so. Accepting the first trial dates that were offered was a step in the right direction, but a posture of resignation in the face of those dates amounted to unacceptable complacency.

[17] By April of this year, this trial had been the subject of two adjournments and a mistrial. It was clearly faltering. Even if summer trial time is limited, it is not allotted to cases according to their relative degrees of seriousness. The least that the Crown ought to have done was to look at the matters that were occupying trial time in the ensuing several months to see if this one could take priority, and seek assistance from the Court as required. For these reasons, no more than three months ought to be attributed to the mistrial.

[18] The net delay, which is approximately 20 months, exceeds the Jordan ceiling.

III. Conclusion

[19] Mr. Marin is entitled to a stay of proceedings, which will be imposed on his appearance of October 3rd.

Released: September 26, 2023 Justice Patrice F. Band

[1] I reject out of hand Mr. Glick’s argument that the Crown ought to have obtained new trial dates when her decision to consent to the mistrial application had crystallized – before the application was heard. I agree with the Crown that to have done so would have been to put the cart before the horse.