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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct 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 complainant of the right to make an application for the order; and
(b) on application made by the complainant, 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. Kullab, 2023 ONCJ 458
DATE: 2023 10 03
COURT FILE No.: Brampton 21-014043
BETWEEN:
HIS MAJESTY THE KING
— AND —
GHASSAN KULLAB
Before Justice Paul F. Monahan
Heard on September 18, 2023
Oral Reasons for Judgment released on October 3, 2023
Written reasons for Judgment released on October 3, 2023
A. Mountjoy......................................................................................... Counsel for the Crown
M. Engel.......................................................... Counsel for the defendant Ghassan Kullab
MONAHAN J.:
Introduction
[1] The defendant brings an application for a stay of proceedings for an alleged violation of section 11(b) of the Charter.
[2] This case raises important questions as to the role of defence counsel when they consider that their client’s section 11(b) Charter rights have been infringed. Can the defence set a date for trial outside the ceilings provided for in R. v. Jordan 2016 SCC 27 and say nothing to the Trial Coordinator (“TC”), the Crown or the Court about the delay when the date is set and then more than a year later complain about the delay? Can the defence wait to complain about delay until the delay is locked in and the Crown can do nothing to mitigate the delay? In my view, the law is clear that the defence cannot act in this way and that when they do so, it will be open to the Court to find a considerable period of defence delay.
[3] For the reasons set out below, this section 11(b) application is dismissed.
The Allegations against the Defendant
[4] The defendant faces one charge of sexual assault contrary to section 271 of the Criminal Code. The offence is alleged to have taken place on or about July 24, 2021.
[5] According to the Crown’s factum on this application, on July 24, 2021, the complainant reported to police that she had been sexually assaulted by a male Lyft driver. It is alleged that the driver exited his vehicle and came into the back seat area of the vehicle where the complainant was sitting. It is alleged that he sexually assaulted her by touching her legs, thighs, chest and neck area and by groping her breasts and then attempting to digitally penetrate her vagina.
[6] A sexual assault examination was conducted and it is anticipated that the Court will hear evidence at trial that the defendant cannot be excluded as a contributor to the DNA located on or in the complainant’s body.
[7] A five day trial is scheduled to take place before me on October 23 to 27, 2023.
Chronology
[8] A brief chronology of this case is as follows:
(a) The defendant was arrested for sexual assault on August 3, 2021;
(b) The information was sworn on September 10, 2021;
(c) A crown pre-trial was held on January 14, 2022;
(d) The first judicial pretrial was held on February 24, 2022 but as there was outstanding disclosure, no trial time estimate form could be completed. Later that same day, the outstanding disclosure was provided to the defence;
(e) A second judicial pretrial was held on May 13, 2022 and a trial time estimate form was completed;
(f) On June 5, 2022, a trial scheduling conference with the TC was booked by defence counsel for June 28, 2022;
(g) On June 28, 2022, a trial scheduling conference was held with the TC. No representative was present from the Crown’s office but there was someone present from Peel Regional Police. The first dates offered for a five day trial were October 23-27, 2023. Both the Crown and the defence were available and the dates were set. The trial scheduling forms make no mention of a contemplated section 11(b) application and it appears common ground that nothing was said by the defence about a section 11 (b) application at the time of the trial scheduling;
(h) On July 18, 2022, the trial dates were confirmed on the record before Justice of the Peace Brar. An assistant Crown attorney was present as was agent for defence counsel. Neither party said anything about section 11 (b) concerns; and
(i) On September 1, 2023, about 14 months after the trial date was set and about seven weeks before the trial was scheduled to commence, defence counsel emailed the TC seeking to schedule a section 11(b) application to be held prior to trial. Defence counsel delivered his factum on or about September 11, 2023 and the notice of application was made returnable on the first day of trial namely October 23, 2023. The Crown filed its responding factum on September 15, 2023. The Court was able to accommodate the defence’s request for a section 11(b) application prior to trial and the application was heard by me on September 18, 2023.
The Jordan framework
[9] The Jordan framework is well known and may be summarized as follows:
A trial court hearing an s.11 (b) application should calculate the total delay from the charge to the anticipated end of the trial (Jordan at para. 47).
From the total delay the Court should deduct defence delay (Jordan para. 66) and the delay associated with discrete exceptional circumstances (Jordan at paras. 75 and 82).
Defence delay has two components. The first is delay waived by the defence. The other is delay caused "solely or directly" by defence conduct including circumstances where the defence uses a deliberate tactic to delay the trial. A further example of defence delay will occur where the Court and the Crown are ready to proceed and the defence is not (Jordan paras. 60 -64; see also R. v. Cody, 2017 SCC 31, [2017] S.C.J. No 31 at paras. 28 to 35). However, there is no "bright line rule" requiring that where dates are offered when the Court and the Crown are available but the defence is not, then all delay until the next date is defence delay. Rather, all of the relevant circumstances must be considered to determine how delay should be apportioned among the participants: R. v. Hanan 2023 SCC 12 at para 9 and R. v. Boulanger 2022 SCC 2 at para 8.
The determination of whether defence conduct amounts to defence delay is “by no means an exact science” but is something that “first instance judges are uniquely positioned to gauge” (see Jordan para 65). It is “highly discretionary” (see R. v. Cody 2017 SCC 31 at para. 31)
If the delay is above the presumptive ceiling then it is presumptively unreasonable. The Crown can rebut this presumption by showing that the delay is reasonable on the basis of exceptional circumstances (Jordan para. 68). This is the only basis upon which the Crown can justify a delay above the ceiling and avoid a stay. The absence of prejudice in cases above the ceiling is irrelevant (Jordan para. 81).
As indicated above, delay caused by discrete exceptional circumstances is to be deducted from the total delay to determine if the ceiling has been reached. The Crown and the justice system should attempt to mitigate if possible any delay resulting from a discrete exceptional circumstance. The Crown and the justice system need to prioritize cases delayed by unforeseen events. If that does not occur when it reasonably could have, then the entire period of delay occasioned by the discrete exceptional event may not be deducted from the total delay (Jordan para. 75).
Discrete exceptional circumstances may be an illness, an extradition proceeding or an unexpected event in the trial. An unexpected event at trial might include a recanting witness which causes the Crown to need to change course. Further, if a trial goes longer than expected despite good faith efforts on both sides to estimate the time required, this too my amount to an exceptional circumstance resulting from an unavoidable delay. The categories of exceptional circumstances are not closed. Trial judges are to be alive to the practical realities of trials and are to use their good sense and experience in determining what will constitute a discrete exceptional circumstance (Jordan paras. 69, 71-74 and 81).
Exceptional circumstances cover a second category other than discrete events: namely cases that are particularly complex. These are cases that due to the nature of the evidence or the issues require an inordinate amount of trial or preparation time such that the delay is justified (Jordan para. 77).
Below the presumptive ceiling a stay may still issue if the defence can establish two things: (1) that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. In the absence of both of these two factors, the stay application will fail (Jordan para. 82).
As concerns defence initiative constituting meaningful and sustained steps, the Court should consider what the defence could have done and what it did. It is a matter of substance rather than form. It is not enough to put on the record that the defence wanted an early trial date. Having said that, the defence must act reasonably and not perfectly (Jordan paras. 84-85)
As to whether the time took markedly longer than it should have, this will require a consideration of the reasonable time requirements of a case which derive from a variety of factors, including the complexity of the case, local considerations, whether the Crown took steps to expedite the proceedings and other factors (Jordan para. 87).
The Supreme Court observed that they expected stays below the ceiling would be "rare" and should be limited to only in clear cases. In setting the ceiling, the Supreme Court factored in tolerance for reasonable institutional delay (Jordan para. 48 and 83).
Discussion and Analysis
Application of the Law to the Facts in This Case
[10] Despite defence counsel’s submission otherwise, the law is clear that the section 11(b) clock starts from the time the information is sworn, not the date of the arrest. See R. v. Allison 2022 ONCA 329 at paras 35 to 43.
[11] Accordingly, the overall delay in this case runs from September 10, 2021 through to the anticipated end of trial on October 27, 2023. This is 778 days.
[12] Based upon the submissions of both parties I have identified two potential areas of defence delay as follows:
(a) April 1, 2022 to June 5, 2022- the delay associated with setting of the second JPT and scheduling a trial date setting conference (65 days);
(b) June 28, 2022 to October 27, 2023 - potential defence delay associated with the failure of defence counsel to advance their client’s section 11(b) interests in a timely way (486 days).
[13] I turn now to examine each time period.
(a) April 1, 2022 to June 5, 2022-delay associated with setting of the second JPT and scheduling a trial date setting conference (65 days)
[14] The defence acknowledges that there was 65 days of defence delay associated with setting up and conducting the second JPT and requesting a trial scheduling conference with the TC. I accept this concession. Therefore, 65 days will be deducted from the overall delay.
[15] I note that there was also 23 days of delay between the time the trial scheduling conference with the TC was scheduled on June 5, 2022 and the time it took place on June 28, 2022. In other cases, some judges including me have deducted 14 days for this type of delay due to exceptional circumstances associated with the pandemic: see R. v. B.D. 2023 ONCJ 224 at para 18 and 19 and R. v. Ambrose [2023] O.J. 4793 at para 20-21. In those cases, the delay occurred because of the practice developed by the TC during the pandemic only to hold trial scheduling conferences remotely and the associated delay related to setting these conferences up. I will not deduct 14 days here because I am uncertain if June 28, 2022 was the first date offered.
(b) June 28, 2022 to October 27, 2023 - potential defence delay associated with the failure of defence counsel to advance their client’s section 11(b) interests in a timely way (486 days).
[16] This period of delay is the most significant one in this case and it is the issue upon which this section 11(b) application rises or falls. As I’ve already stated above, it is my view that the application should be dismissed and I will explain why.
[17] As indicated in the chronology above, when the trial dates of October 23-27, 2023 were set on June 28, 2022, nothing was said by the defence or the Crown as to the fact that the dates were being set outside the Jordan ceiling of 18 months. The same is true when the dates were put on the record in the Justice of the Peace Court on July 18, 2022. Nothing was said until September 1, 2023 when defence counsel sought a date for the section 11(b) hearing, just 7 weeks before the trial was scheduled to begin. The defendant’s application was initially returnable on the first day of trial but the TC moved it up to September 18, 2023.
[18] As indicated above, defence delay occurs where there is express waiver or there is delay that is caused solely by the conduct of the defence (see Jordan at para 61 and 63).
[19] It is obvious that the defence did not comply with the rules of the court which require that all pretrial hearings be heard 60 days in advance of trial, and material served 30 days before that. However, without meaning to be overly critical of defence counsel, the failure of the defence here was much more than failing to comply with the scheduling of the section 11(b) application. There was an abject failure to comply with the directions from the Supreme Court of Canada in Jordan, Cody and, more recently, R. v. J.F. 2022 SCC 17, to raise section 11(b) concerns with the Crown and the Court in a timely way.
[20] The Supreme Court in J.F. observed that the Court in Cody said that “the defence may not benefit from its own inaction or lateness in taking action, it must act proactively” (J.F. para 33). The Court in J.F. citing Cody at para 33 and Jordan at para 138 said “defence counsel are therefore expected to actively advance their clients’ right to a trial within a reasonable time, collaborate with Crown counsel were appropriate and… use court time efficiently”.
[21] In R. v. J.F., the Supreme Court of Canada made it clear that an accused person “who sees delay lengthening must therefore respond in a proactive manner. Being proactive may mean filing a section 11 (b) motion”(J.F para 34). The Court noted that “the predictability provided by the new framework requires that [the accused] be an active part of the solution to the problem of delay in criminal cases”(J.F. para 31).
[22] Defence counsel in the case before me argues that J.F. requires no more than that an accused person must bring his application before the trial is held. He relies upon the following passage at paragraph 36 of J.F.
In short, 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 act proactively.” (my emphasis)
[23] The defence before me focuses on the words of Chief Justice Wagner above “before the trial is held”. In my view, this argument gives much too narrow a reading to J.F. and makes no sense. In J.F., the Court was dealing with a situation where one trial had already been held and, on appeal, a retrial ordered. The defence sought to raise delay, for the first time, after the retrial was ordered and they wanted to rely upon delay during the first trial. In J.F., the Supreme Court was saying, among other things, that the defendant could not wait to complain about delay with trial number one until trial number two had been ordered.
[24] The Supreme Court in J.F. made it clear in the passage above at para 36 that “[b]y 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” (my emphasis).
[25] There are a number of trial judges of this Court who have held that when the defence sets dates outside the Jordan framework but does not raise the issue of delay for a considerable period of time after the dates are set such that the delay cannot be mitigated by the Crown, then some significant part of the delay may be attributed to the defence as defence delay.
[26] In R. v. Nigro 2023 ONCJ 41, Justice Peter West dealt with a case where trial dates were set on January 28, 2022 with the trial scheduled to be completed in February 2023. The defence did not make their section 11(b) concerns known until October 15, 2022, about nine months after the trial dates were set. Like defence counsel in the case before me, defence counsel before Justice West also argued, relying on Chief Justice Wagner’s reference to the “before the trial is held”, that to comply with their obligations, the defence need only bring their section 11(b) application before the trial. Justice West rejected this argument as “entirely contrary to the new framework created in Jordan”. He said such an approach would allow “the defence to hide in the weeds and not alert the Crown or the Court to their concerns about delay until a point where no one could remedy or mitigate that delay in any meaningful way” (Nigro at para 35). He emphasized that the defence should not be allowed to benefit from its own delay causing conduct and called such actions “illegitimate” (see Nigro at para 37). Like the Supreme Court in J.F., he observed that the defence was expected to “actively advance their client’s right to a trial within a reasonable time, collaborate with Crown counsel when appropriate and use court time efficiently.”
[27] Justice West in Nigro found that by their inaction, the defence had demonstrated “a marked indifference towards delay”. He attributed 50% of the time from the trial date setting until the contemplated end of trial being defence delay. This was 382 days divided by two which amounted to 191 days of defence delay on this issue.
[28] To a similar effect, and based on similar reasoning, is Justice Caponecchia’s decision in R. v. Ahmed (unreported), where trial dates were set outside the Jordan ceiling and the defence failed to raise section 11(b) concerns until nine months later. Justice Caponecchia attributed 50% of this time as defence delay after allowing for two weeks to order transcripts.
[29] In R. v. A.D. (unreported) Justice Lai addressed the same type of conduct by the defence namely a failure to raise any s. 11(b) concerns for 10 months after trial dates were set outside the Jordan ceiling. Justice Lai attributed 50% of the time as defence delay for reasons similar to the Nigro case. The defence delay on this issue was 155 days in that case.
[30] In R v. MacDonald (unreported), Justice Daviau dealt with a case where there was 190 days of delay from the time the dates were set for trial to the time the defence notified the Crown that section 11 (b) was an issue. Justice Daviau attributed 50% of the delay to the defence as defence delay for reasons similar to the Nigro case.
[31] Defence counsel before me advances only one argument in response to the decisions in Nigro, Ahmed, A.D. and MacDonald. He argues that they are all wrongly decided. He cites no case in his favour dealing with a similar fact situation.
[32] I accept as correct the decisions of my colleagues in Nigro, Ahmed, A.D. and MacDonald that defence delay maybe found where there has been a lack of timely notice to the Crown and to the Court that the defence is taking the position that section 11(b) has been breached and particularly where by the time the defence raises the issue there is no time for the Crown to mitigate.
[33] In the course of oral argument, I understood defence counsel to argue in this case that the Crown could not prove the delay associated with any defence failure to raise section 11(b) concerns in a timely way and that therefore none should be deducted. He points to Justice Di Luca’s decision in the R. v. Gonsalves 2022 ONSC 6004 and my own decision in R. v. Greenidge 2021 ONCJ 57. Both these cases held that in order to find delay associated with the exceptional circumstance of the pandemic, the delay must be proved.
[34] I agree that the Court must be satisfied that the failure of the defence to properly raise section 11(b) in a timely way actually caused the delay sought to be deducted from the overall delay. However, no formal evidence is required in this case when it is clear that the defence has failed to meet its obligations to the Court and the Crown over an extended period of time and that delay resulted and it is “fair and reasonable” to treat some of the time as defence delay. As the Supreme Court said in Cody, the finding of defence delay is not an “exact science” and is “highly discretionary” and that the Court should not be reticent about finding defence action to be illegitimate where it is appropriate to do so. I note further that the Supreme Court itself in Boulanger found 50% of a certain time period should be treated as defence delay. There was clearly no formal evidence in support of this specific finding but the Supreme Court apportioned the time because it was “fair and reasonable” to do so (see para 10).
[35] In my view, the Court can have regard to local practice in determining the fair and reasonable apportionment of a specific time period as being defence delay.
[36] In this case, we are dealing with a five-day sexual assault case. It involves serious allegations as previously outlined. I accept Crown counsel’s submissions in argument before me that if the Crown had been provided with timely notice by the defence that section 11(b) was in issue, the Crown would have prioritized this case and been in a position to have the case heard under the Jordan ceiling. It is well-known in Brampton and elsewhere in the Ontario Court of Justice that the Crown always has the option to “stack” cases on top of one another and then call the newly stacked case ahead of the previously scheduled case. See R. v. Tran 2022 ONCJ 182 at footnote 6 (per Justice Rahman as he then was). See also R. v. Ahmad (unreported) at para 31 where Justice Caponecchia makes a similar observation.
[37] The public record discloses that the Crown in Brampton has regularly prioritized serious cases in the last two years by offering priority dates when section 11(b) issues were raised. See R. v. Qureshi 2023 ONCJ 189 (a gun case heard by Justice Duncan); my own decision in R. v. B.D. 2023 ONCJ 224 (a case involving allegations of sexual assault and sexual interference) ; R. v. S.C. 2022 ONCJ 486 (a case involving allegations of sexual assault heard by Justice MacKay); and R. v. Edwards 2023 ONCJ 221 (a case involving allegations of impaired operation causing bodily harm heard by Justice Daviau). In each of these cases which involved serious allegations, trial dates were set outside of the Jordan ceiling and multiple earlier trial dates were offered once s. 11(b) concerns were raised by the defence.
[38] There are 486 days between the time the trial was set on June 28, 2022 to the anticipated end of trial. I understand, of course, that not all of this delay was caused by the defence. The Crown is equally to blame for not noting and mitigating the problem earlier. On the other hand, the defence was uniquely in the position to say if delay was a problem. Simply because dates were set outside the Jordan ceiling would not necessarily signal to the Crown that there was a section 11(b) problem. For example, the defence may have been content with the delay for whatever reason. Accordingly, both the defence and the Crown were to blame. Like the Supreme Court in Boulanger, and like my colleagues have done in Nigro, Ahmed, A.D. and Macdonald, I attribute 50% of the elapsed time to the defence as defence delay. In other words, 50% of the delay was caused solely by the defence and the other 50% was caused by the Crown. The time to be attributed as defence delay on this issue is 243 days.
Summary
[39] The Court will not permit the defence to as Justice West put it, “lay in the weeds” and not mention section 11(b) concerns for 14 months when they know there is a section 11(b) problem.
[40] The total delay here is 778 days. I deduct 65 days of defence delay relating to the delay in the JPT and trial date setting as discussed above and 243 days as defence delay for failure to raise s. 11(b) concerns in timely way as required by Jordan, Cody and J.F.
[41] Therefore, the total net delay is 470 days which is just under 15.5 months. This is well under the Jordan ceiling. I did not understand defence counsel to submit that if the delay was under the Jordan ceiling that a stay should nevertheless issue. This is not one of the clear and rare cases in which a stay should issue for a case under 18 months.
[42] For the reasons set out above, the section 11(b) application is dismissed.
Released: October 3, 2023
Signed: Justice Paul F. Monahan