Non-Publication and Non-Broadcast Order Warning

WARNING The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2023 10 27 COURT FILE No.: Brampton 3111 998 21 14044

BETWEEN:

HIS MAJESTY THE KING

— AND —

P.B.

Before: Justice G.P. Renwick Heard on: 26 October 2023 Reasons for Judgment released on: 27 October 2023

Counsel: R. Mullins, counsel for the Crown C. Geeta, counsel for the Defendant

Ruling on S. 11(B) Charter Application

RENWICK J.:

Introduction

[1] The Defendant faces four charges relating to two complainants, each alleging a sexual assault and unlawful confinement in June 2021. The Defendant was arrested on 03 August 2021. The Information charging the Defendant was sworn on 10 September 2021. The parties agree that the global, post-charge delay until the completion of the Defendant’s upcoming trial (11-13 December 2023) is 27 months and 3 days.

[2] The trial was initially set to occur from 21 through 23 February 2024, some 29.5 months post-charge. However, the prosecution has made many attempts to set an earlier trial date and recently the Defendant was offered the new trial dates that have been set.

[3] This Application is brought because the Defendant asserts that his constitutional right to be tried within a reasonable period of time will have been breached by the date that this trial is set to conclude. Alternatively, if any delay is attributable to the Defendant, thus reducing the overall delay, the case took markedly longer than it should have taken.

[4] There are few facts in dispute between the parties. The parties agree on the calculation of the total delay and the applicable law. At issue are deductions for defence delay and the effect of initial delays in the provision of disclosure of the investigation.

Governing Jurisprudence

[5] In R. v. Jordan, the Supreme Court of Canada held that trials in provincial courts ought to complete within 18 months.

[6] The first step under the Jordan analysis is to determine the total length of time between the date when the Defendant was charged and the completion of his trial. The next step is to subtract from the total delay any time periods which are “attributable to the defence.”

[7] If the net delay remains above the appropriate ceiling:

…then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.

[8] If, after subtracting defence delay, the net delay is below the 18-month ceiling:

…then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) 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. …stays beneath the ceiling [will] be rare, and limited to clear cases. [Emphasis in the original.]

[9] What is “defence delay?” Time periods that may be deducted from the total delay are those “where the defence conduct has “solely or directly” caused the delay.”

[10] That said, not all delay caused by the defence should be counted as defence delay. Our Supreme Court clarified the definition of “defence delay” in R. v. Cody:

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).

[11] In R. v. Mallozzi, our Court of Appeal confirmed that actions that are legitimately taken to respond to the charges will fall outside of defence delay and will not be subtracted from the total delay. However, legitimate defence action may still reduce overall delay if not taken in a timely way, or if the manner of proceeding has led to delay.

[12] The calculation of defence delay is no longer simply a matter of measuring the time between refused and accepted trial dates. Our Court of Appeal has rejected this approach in favour of 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. The Supreme Court has confirmed that courts are entitled to apportion responsibility for delay among the litigants.

Analysis

A. The Total Delay

[13] The Defendant was charged on 10 September 2021 and his trial is set to end on 13 December 2023. It is agreed that the total delay is 27 months and 3 days (825 days).

B. The Net Delay

[14] Defence delay is to be subtracted from the total delay to arrive at the net delay.

[15] Defence delay can arise in two different ways.

[16] The first component is delay resulting from clear and unequivocal waiver of the Defendant’s s. 11(b) right. The parties agree that there has been no waiver of any periods of delay by the Defendant in this matter.

[17] The second component is delay caused solely by the conduct of the defence. This includes periods when the prosecution and the court are prepared to proceed and a defendant is not.

[18] The prosecution alleges that the Defendant was solely responsible for four periods of delay in this case:

i. From 22 November 2021 (the Defendant’s second court appearance) to 05 April 2022 (crown pre-trial date): 19 weeks and 1 day (134 days); ii. From 12 April 2022 (one week after the crown pre-trial) to 17 June 2022 (when the Defendant first requested a judicial pre-trial): 9 weeks and 3 days (66 days); iii. From 16 August 2022 (one week after the judicial pre-trial) to 08 September 2022 (when the Defendant first requested a trial scheduling meeting): 3 weeks and 2 days (23 days); and iv. From 23 February 2023 (the last day of the first reasonable and available trial date offered to accommodate the trial) to 13 December 2023 (the anticipated last day of the new trial date): 42 weeks less 1 day (293 days).

[19] Accepting the prosecution’s argument would reduce the overall delay by 516 days (134 + 66 + 23 + 293 = 516) or 17 months. [13] This would result in a net delay of just over 10 months, which is well below the Jordan ceiling for a trial in the provincial court.

[20] The Defendant does not accept that there has been any delay solely attributable to the Defendant.

[21] It will be helpful to briefly review some of the background events that led to the trial date ultimately selected.

[22] Although the Defendant’s first appearance was not until 25 October 2021, the Defendant wasted no time in retaining counsel, following his arrest on 03 August 2021.

[23] By 16 August 2021, counsel made the first written request for disclosure. In fact, the first package of disclosure was received by the Defendant on 21 October 2021, four days in advance of his first court appearance. The matter was adjourned for four weeks at the Defendant’s request, “for [defence counsel] to either request additional disclosure or, if complete, schedule a crown pre-trial.”

[24] The very next day, on 26 October 2021, counsel wrote to the prosecutor seeking among other things:

4. A copy of all texts, emails, videos and pictures in relation to the allegations as provided and/or discussed by the complainants;
5. A copy of all texts, videos, pictures, notes in relation to the allegations as provided and/or discussed with witnesses [J.D.] and [D.C.]; and
6. A copy of the Warrant and Information to Obtain the Warrant to search the accused’s phone.

[25] At the second appearance (22 November 2021), counsel’s representative advised:

Counsel’s received some disclosure. Has requested additional material. Be happy to put the matter over to January 24th for counsel to receive additional material and schedule a pre-trial in the meantime.

[26] The court confirmed the request:

Okay. That’s nine weeks away so hopefully it’ll, you’ll be able to have the pre-trial and maybe get some instructions before that date as well…

[27] On the next appearance, counsel’s representative repeated the discussion respecting outstanding disclosure and accepted the court’s suggestion for an 8-week adjournment:

[Counsel] has sent an additional disclosure request for some text messages and a recording [of] her client’s statement as well as some other items. We could adjourn to – I was going, going to say four or five weeks from now but if your Worship wants the March 21st date, that’s fine with me as well.

[28] On the fourth appearance, the Defendant’s agent advised:

…counsel just received a witness statement and some text messages that she’d like to review and then schedule a pre-trial. We’d like to adjourn five weeks to April 25th for all that to happen.

[29] The prosecutor of the day advised that there was an assigned crown and invited:

…so counsel can, if they feel so inclined, reach back out to the assigned Crown and so it can be marked to have [a] CPT and scheduled JPT if required.

[30] Shortly after this appearance, counsel sent an email to the prosecutor re-iterating the outstanding disclosure request from the 26 October 2021 correspondence. They eventually held the crown pre-trial on 05 April 2022.

[31] Also on 05 April 2022, a Trial Time Estimate Form (“TTEF”) was completed by the prosecutor and sent to counsel to complete before seeking a judicial pre-trial. The prosecutor advised that the police had not yet sought a warrant to search the Defendant’s cell phone (seized during his arrest), but this was anticipated to occur “in the near future.”

[32] Email correspondence also establishes that a third package of disclosure was received by counsel on 21 April 2022 and counsel wanted time to consider that. Counsel sent a copy of the TTEF to the prosecutor with defence input on 21 April 2022.

[33] On 25 April, 2022 the Defendant had his fifth court appearance. Counsel’s representative stated:

…counsel’s had some discussions with the Crown and we will schedule a JPT. She’s content on returning on the next available date, which I understand is June 20th.

[34] Nothing apparently took place in the intervening almost eight weeks until 17 June 2022, three days before the sixth court appearance. On 17 June, defence counsel wrote to the Trial Coordinator to seek a judicial pre-trial. Perhaps unsurprisingly, on 20 June 2022, counsel’s representative advised the court:

…counsel has contacted the trial coordinator, excuse me, trial coordinator and is scheduling a JPT.

[35] The judicial pre-trial was held on 09 August 2022. The TTEF produced in the Application Record indicates the pre-trial justice’s name and apparent agreement for the necessity of a three-day trial. I note that the date at the top continues to note 05 April 2022. Also noteworthy, there is no mention of outstanding disclosure, a request to return the Defendant’s cell phone, or any anticipated s. 11(b) Charter application. The only material note on the Defendant’s side of the TTEF reads, “Possible challenge to warrant, but has not been provided or executed yet.”

[36] When the matter returned to court on 22 August 2022, counsel’s representative indicated:

…counsel had a judicial pre-trial and is, and is canvassing trial dates, and would like to adjourn for a month to confirm trial dates and, and believes there’s a designation on file.

[37] The matter was adjourned at the court’s suggestion to 17 October 2022. On that eighth and final court appearance, the original trial date was set (21-23 October 2024).

[38] A copy of the Trial Scheduling Form completed by the Trial Coordinator indicates that the first two dates offered for the Defendant’s trial were 07-09 November 2022 and 21-23 February 2023. Both dates were refused by both the prosecutor and the Defendant, although the police witnesses were available for the latter date. Both parties accepted the third trial date offered: 21-23 February 2024. The “Time Estimate” is recorded as “3 days” and the “No” box is checked for “Pre-trial Motions/Applications.”

[39] Within two hours of the trial scheduling meeting with the Trial Coordinator on 14 October 2022, the prosecutor wrote to counsel for the Defendant to indicate that he had received managerial approval to transfer the file to another prosecutor in order to accept the February 2023 trial dates if counsel could become available. The prosecutor who spoke to the matter on 17 October 2022 also confirmed that the prosecution was now agreeable to accepting the earlier trial date. Unfortunately, counsel for the Defendant advised that she was already booked for a Superior Court matter and could not accept the February 2023 dates.

[40] By some time in November 2022, counsel for the Defendant responded to the prosecutor’s email from 14 October 2022 and indicated that s. 11(b) was in issue. The prosecution then made several efforts to arrange earlier trial dates. Meetings were held with the Trial Coordinator on 02 December 2022 and 17 March 2023. Earlier acceptable trial dates offered were 28 June 2023 and 24 January 2024, respectively. However, neither set of dates was available for defence counsel. The prosecution also wrote to counsel on 20 April 2023 with 10 additional 3-day trial blocks from 29 May through 30 October 2023.

[41] On 22 September 2023, the Trial Coordinator wrote to counsel on behalf of the Regional Senior Judge to require a court appearance on 28 September 2023 to address s. 11(b) concerns and to offer earlier trial dates. Through this process, the new trial date (11-13 December 2023) was ultimately fixed for this matter.

Calculation of Defence Delay

[42] Pursuant to the directions of higher courts, I have tried to take a wholistic view of the conduct of the parties in setting this matter down for trial. When considered from a celestial view, I find that some delay is appropriately attributed to the Defendant in this matter.

[43] The prosecutor suggests that all delay after the second court appearance (22 November 2021) until the crown pre-trial (05 April 2022) should count against the Defendant in any delay calculation.

[44] Respectfully, I disagree. Legitimate steps taken to discover the case against the Defendant, to review disclosure, and for counsel to receive client instructions are appropriate intake procedures that require some time to complete.

[45] Over the course of the first four court appearances, from 25 October 2021 until 21 March 2022, the Defendant had retained counsel, requested disclosure in writing twice (with specific requests on 26 October 2021), and the bulk of disclosure had been provided. By the fifth appearance on 25 April 2022, the third batch of disclosure had been provided.

[46] Leading up until the crown pre-trial, it was appropriate for the Defendant to seek and await disclosure. I do not disagree that the second and third adjournments were lengthy, however, the prosecution never took issue with the suggestion that disclosure was on-going, nor did it suggest that the adjournments were inappropriate, or that the Defendant was stalling. Inexplicably, the prosecution remained silent when the Defendant complained about outstanding disclosure related to a search warrant for his cell phone which had not yet been sought, let alone, executed.

[47] After this point, however, although several key pieces of disclosure remained outstanding (audio of the witness statement received on 05 August 2021, video recordings of discussions between the complainant and the Defendant, the results of the eventual search of the Defendant’s cell phone, and “further police notes”), there was and remains no complaint whatsoever that incomplete disclosure had any bearing on the setting or completion of the judicial pre-trial that took place on 09 August 2022 or the setting of the trial.

[48] The prosecutor also suggested that after the crown pre-trial, the delay until the judicial pre-trial was requested was solely caused by defence inactivity. I accept that in addition to the on-going email correspondence about the completion of the TTEF the Defendant had to be advised and provide instructions to counsel. However, after 25 April 2022, there is no reason why the defence did not submit the TTEF to the Trial Coordinator until 17 June 2022. Accordingly, I am prepared to deduct 7 weeks and 4 days (or 53 days) from the total delay to account for this period.

[49] The Defendant offered no explanation for the third period of alleged defence delay: one week following the judicial pre-trial (16 August 2022) until the TTEF was sent to the Trial Coordinator (08 September 2022) to seek a trial scheduling meeting. I find that this period (23 days) is also solely attributable to the Defendant.

[50] The fourth period of alleged defence delay is the most significant. The prosecutor submits that although it initially declined the February 2023 trial dates, within two hours of the trial scheduling meeting the prosecution was prepared to accept the earlier trial dates by re-assigning the prosecutor with carriage of the matter. While that is uncontested, it is not clear that the February 2023 dates were still available two hours after the prosecution had declined them. I am also troubled that the final batch of disclosure was not produced until 07 and 17 March 2023. [14]

[51] The Defendant has argued that it is unreasonable to expect counsel to accept any of the dates offered to conduct the trial before the final dates offered and accepted (11-13 December 2023) because none of the dates after 21-23 February 2023 were offered on 14 October 2022, when the initial trial scheduling meeting took place. Additionally, initially only three sets of trial dates were offered within 15 months of that meeting.

[52] I agree that it is inappropriate to expect the Defendant to have accepted the first trial dates offered: 07-09 November 2022. That block was less than one month after the trial scheduling meeting. However, the next block of dates were more than four months after that meeting. The refusal of the February 2023 trial dates was solely a result of counsel’s unavailability. Without being critical, the refusal of these dates created a risk to the Defendant’s s. 11(b) Charter right that he is presumed to have accepted.

[53] Nonetheless, in all of the circumstances, it is appropriate to apportion some responsibility for the eventual trial date to both parties. In coming to this conclusion, I have taken the following circumstances into account:

i. Initially, the prosecution refused the February 2023 trial dates. There is no ambiguity to the indication provided to the Trial Coordinator as recorded on the Trial Scheduling Form; ii. Within two hours of selecting proposed trial dates with the Trial Coordinator, the prosecution immediately recognized that a trial in February 2024 may infringe the Defendant’s right to a trial within a reasonable period of time; iii. At no time prior to November 2022 did the Defendant ever indicate that there was any concern for the pace of the proceedings; to the contrary, adjournments during the intake process (which includes the disclosure and pre-trial stages) were often accepted well in excess of periods initially sought by the defence agent; iv. The prosecution made successive genuine efforts to obtain earlier trial dates once it became known that the Defendant’s s. 11(b) right would be engaged. In all, 13 additional possible trial dates (acceptable to the prosecution) were offered before 11-13 December 2023 was set; and v. Counsel for the Defendant tried to re-arrange her schedule to accommodate earlier trial dates offered after the scheduling meeting on 14 October 2022.

[54] I find that it is appropriate to attribute 80% of the delay from 23 February 2023 until 13 December 2023 to the Defendant and 20% of the delay to the prosecution. On this basis, I will attribute 234 days (80% of 293 days) of delay to the Defendant for the ultimate trial date that was set.

[55] As a result, I find that the Defendant was responsible for 310 days (53 + 23 + 234) of delay, which ought to be subtracted from the total delay of 825 days. The net delay is 515 days (825 minus 310) or 16 months and 28 days.

[56] This is below the presumptive Jordan limit for trials in this level of court.

C. This Case Should Not Be Stayed for Inordinate Delay

[57] Cases where the net delay falls below the presumptive ceiling may still be stayed for unreasonable delay when:

i. The defendant has taken meaningful steps demonstrative of a sustained effort to expedite proceedings; and ii. The case has taken “markedly longer” than it reasonably should have to complete.

[58] Neither party made oral submissions respecting inordinate delay and s. 11(b) prejudice occasioned below the 18-month ceiling. The Defendant’s written submissions were minimal.

[59] The Defendant argues that by the time this trial ends, this matter will have taken markedly longer than it should have to come to completion. The net delay until the trial completes is 16 months and 28 days.

[60] The Defendant submits that he was diligent in reviewing disclosure, making appropriate additional requests, and continuing to move the matter forward throughout.

[61] The Defendant’s efforts to retain counsel and request disclosure were extremely timely. These efforts reflect an interest in expediting the proceedings. However, after 26 October 2021, the opposite seems apparent.

[62] I am unable to conclude on a balance of probabilities that the actions of the Defendant reflect a sustained effort throughout to expedite these proceedings.

[63] During the many court appearances until the trial date was set, the prosecutor took no issue with the Defendant’s efforts to move the matter along. Now, the prosecution suggests that the Defendant’s silence (respecting s. 11(b) concerns) on every court appearance, on the TTEF, and during the initial trial scheduling meeting undermines the Defendant’s argument that there have been meaningful and sustained steps taken to expedite the proceedings. I agree that from all outward appearances, after 26 October 2021, s. 11(b) never concerned the Defendant until some time in November 2022, when counsel finally responded to the prosecution’s email queries about delay.

[64] It appears that the Defendant was content with lengthy adjournments, acted with no apparent haste throughout the proceedings, and took no meaningful steps to move the matter along besides conducting the required pre-trials without insisting on complete disclosure. To be frank, the Defendant seemed content with the pace of things in correspondence with the prosecutor, during all court appearances, during pre-trial proceedings, and when the initial trial date was set. In fact, there was no mention of s. 11(b) for almost 14 months after the Defendant was charged until early November 2022.

[65] In respect of the second branch (has the prosecution taken markedly longer than it reasonably should have taken), there is no evidence to establish the level of complexity (or simplicity) of this case, nor how long this matter should reasonably take to complete.

[66] It would seem that aside from a search of the Defendant’s cell phone, all items of disclosure relate to potential pieces of evidence that existed prior to the laying of the Information charging the Defendant. This finding assists the Defendant to some extent: there was no apparent on-going investigation that prevented the matter from moving quickly through the intake and pre-trial process.

[67] While I agree that there were delays in moving this matter along and the length of time taken to complete this prosecution is close to the presumptive ceiling, I do not accept that the case has taken an inordinate amount of time to complete or that the matter has taken markedly longer than it should reasonably have taken to end.

[68] I note that the ultimate trial completion date (13 December 2023) is exactly 14 months after the initial trial scheduling meeting took place (14 October 2022).

[69] I have been presiding in this jurisdiction since 2017. Prior to the global pandemic, trials were routinely set within 12-14 months of the trial set date. While this case falls toward the higher end of that range, the delay from the setting of the trial until its completion is not inordinate or excessive for a multi-day matter in this jurisdiction. If this were not one of the busiest trial courts in the country, a shorter timeframe may well be found to be inordinate.

[70] At this point, and in the absence of any evidence or submissions on the point, I am unable to conclude on a balance of probabilities that the trial has been prosecuted without reasonable haste.

[71] In the end, I do not find that the case has taken markedly longer than it should have nor that the Defendant has always taken meaningful, sustained steps to expedite the proceedings.

Conclusion

[72] The Defendant’s s. 11(b) Charter right to be tried within a reasonable period of time is not anticipated to be violated if the evidentiary portion of this trial ends on 13 December 2023.

[73] Accordingly, this Application is dismissed.

Released: 27 October 2023 Justice G. Paul Renwick

Footnotes

[13] I adopt the formula used by Paciocco J.A. in R. v. Shaikh, 2019 ONCA 895 at para. 33. To convert total number of days to months, one must divide the total number of days by the average number of days in a month (365/12 = 30.417). Thus, 516 days is equivalent to 17 months (516/30.417 = 16.96). [14] To be fair, it is unknown whether this disclosure might have been available sooner, if the February 2023 trial dates had been chosen. For this reason, I have given this circumstance little weight.