Ontario Court of Justice

Date: November 28, 2023 Court File No.: Brampton 3111 998 21 11827

BETWEEN:

HIS MAJESTY THE KING

— AND —

JOSHUA KOWAL

Before: Justice G.P. Renwick

Heard on: 27 November 2023 Reasons for Judgment released on: 28 November 2023

Counsel: L. Rasmussen, counsel for the Crown K. Verma, counsel for the Defendant Joshua Kowal

RULING ON S. 11(B) CHARTER APPLICATION

RENWICK J.:

INTRODUCTION

[1] The Defendant faces two counts relating to driving while he was allegedly impaired by a drug and refusing to provide a bodily sample. The Defendant was arrested on 07 June 2021. The Information charging the Defendant was sworn on 12 July 2021. The parties agree that the global, post-charge delay until the completion of the Defendant’s upcoming trial (08-10 January 2024) is 27 months and 22 days.

[2] 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.

[3] 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, delays in the provision of disclosure of the investigation, and any apportionment of responsibility for the trial date that was set.

GOVERNING JURISPRUDENCE

[4] In R. v. Jordan, 2016 SCC 27, at para. 5, the Supreme Court of Canada held that trials in provincial courts ought to complete within 18 months.

[5] The first step under the R. v. Jordan, 2016 SCC 27, at para. 60 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.” R. v. Jordan, 2016 SCC 27, at para. 60

[6] 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. R. v. Jordan, 2016 SCC 27, at para. 47

[7] 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. R. v. Jordan, 2016 SCC 27, at para. 48 [Emphasis in the original.]

[8] 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.” R. v. Cody, 2017 SCC 31, at para. 28; R. v. Jordan, 2016 SCC 27, at para. 66

[9] 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, 2017 SCC 31, at paras. 29-30 and 32-33:

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 (R. v. Jordan, 2016 SCC 27, 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 (R. v. Jordan, 2016 SCC 27, 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 R. v. Jordan, 2016 SCC 27, the most straightforward example is "[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests" (R. v. Jordan, 2016 SCC 27, 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 (R. v. Jordan, 2016 SCC 27, at para. 64). These examples were, however, just that -- examples. They were not stated in R. v. Jordan, 2016 SCC 27, nor should they be taken now, as exhaustively defining deductible defence delay. Again, as was made clear in R. v. Jordan, 2016 SCC 27, it remains "open to trial judges to find that other defence actions or conduct have caused delay" warranting a deduction (R. v. Jordan, 2016 SCC 27, at 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 (R. v. Jordan, 2016 SCC 27, 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" (R. v. Jordan, 2016 SCC 27, at para. 138).

[10] In R. v. Mallozzi, 2018 ONCA 312, at para. 3, 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.

[11] 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. R. v. Boulanger, 2022 SCC 2, at para. 5

[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. R. v. Albinowski, 2018 ONCA 1084, at para. 46

[13] The Supreme Court has confirmed that courts are entitled to apportion responsibility for delay among the litigants. R. v. Boulanger, 2022 SCC 2, at para. 8

ANALYSIS

A. THE TOTAL DELAY

[12] It is agreed that the total delay is 27 months and 22 days (845 days).

B. THE NET DELAY

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

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

[15] 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.

[16] 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.

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

i. From 09 November 2021 (following the Defendant’s second court appearance) to 21 January 2022 (the third court appearance) in part: at least 52 days of 73 days; ii. From 21 January to 14 March 2022 (when the Defendant first requested a crown pre-trial): 52 days; iii. From 14 March to 13 April 2022 (the date of the crown pre-trial meeting): 30 days; iv. From 13 April to 03 May 2022 (the date the judicial pre-trial was set) in part: 10 days; v. From 19 June to 30 June 2022 (for mistakenly sending the Trial Time Estimate Form (“TTEF”) to the Trial Coordinator’s Office rather than seeking a trial date using the on-line portal): 11 days; and vi. Half of the period from 25 July 2022 (the date the trial dates were selected) until 03 November 2023 (the last day of the trial that was originally set) : 234 days.

[18] Accepting the prosecution’s argument would reduce the overall delay by (52 + 52 + 30 + 10 + 11 + 234) 389 days or almost 13 months. R. v. Shaikh, 2019 ONCA 895, at para. 33 This would result in a net delay of (845 minus 389) 456 days or (456 divided by 30.417 = 14.99) almost 15 months, which is well below the Jordan ceiling for a trial in the provincial court.

[19] The Defendant only accepts that one week of delay was solely attributable to the defence: the first trial date offered where the crown and the court were available but the defence was not (25-27 October 2023) was one week before the first trial date selected.

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

[21] The Defendant appears to have retained counsel before his first appearance on 13 August 2021. By that time the initial disclosure package was still unavailable. Counsel sought to adjourn the matter for 11 weeks “for receiving and reviewing initial disclosure and other pre-trial steps …” There can be no quibble that this was a legitimate step taken by the Defendant. By this point, the investigation had been completed for 9 weeks (the date of the alleged offence) and yet disclosure was not yet available.

[22] On the second appearance (05 November 2021), the Defendant advised that initial disclosure had just been received that day (5 months post-arrest, almost 4 months post-charge). The Defendant sought a ten-week adjournment until 21 January 2022, “for reviewing and for other pre-trial steps.” Given that no crown pre-trial meeting was set until 14 March 2022, during argument on this Application I inquired what those “pre-trial steps” entailed; the Defendant had little to say.

[23] Several days following the second court appearance (on 08 November 2021), the Defendant sent a focussed request for 11 items of disclosure that were not contained within the initial package. This request was re-iterated (less three items that had apparently been disclosed on 19 January 2022) on 20 January 2022, the day before the third appearance.

[24] During the third appearance, the Defendant indicated that some outstanding disclosure had been received, which appears to correspond with the Digital Disclosure Hub log produced by the Respondent. With respect to the outstanding disclosure, the court commented, “I’ll ask counsel to schedule a [crown pre-trial] and so that matter will be provided.” Counsel did not take issue with that suggestion. The matter was adjourned eight weeks (to 18 March 2022) at the Defendant’s request.

[25] On 10 March 2022, the last significant item of outstanding disclosure (the drug recognition expert officer’s notes) were received. On 14 March 2022, counsel booked a crown pre-trial, which was set for 13 April 2022.

[26] On the fourth appearance (18 March 2022), the Defendant sought to return on 20 May 2022, “in order to receive and review disclosure, and then set a [crown pre-trial] in the interim.”

[27] Following the crown pre-trial, a judicial pre-trial was set on 03 May to occur on 15 June 2022.

[28] During the fifth court appearance (20 May 2022), the Defendant sought an eight-week adjournment (to 22 July 2022) in order to conduct the judicial pre-trial.

[29] Following the judicial pre-trial on 15 June 2022, counsel sent the TTEF to the Trial Coordinator’s Office on 19 June 2022. When counsel had not heard back by 30 June, counsel wrote to the Trial Coordinator’s Office a second time to request a trial scheduling meeting. The Trial Coordinator’s Office responded on 30 June to advise counsel to use the on-line scheduling portal.

[30] On the sixth appearance (22 July 2022), counsel sought 10 weeks to hold the trial scheduling meeting. On the seventh and final appearance (07 October 2022), the trial dates were put on the record. There was no mention of s. 11(b) Charter concerns.

[31] In fact, the Defendant sat quietly until 31 July 2023 before seeking a date from the Trial Coordinator to hear this s. 11(b) Application.

Calculation of Defence Delay

[32] 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 an atmospheric view, I find that some delay is appropriately attributed to the Defendant.

[33] Initially the Defendant moved the matter along expeditiously through the first two court appearances. The Defendant had retained counsel, had sought disclosure, and within four days of the second appearance outlined in writing the necessary disclosure required to proceed meaningfully. Subsequently, I find that the Defendant was content with the pace of the production of disclosure and did not move efficiently to complete some of the pre-trial steps.

[34] For example, the Defendant consistently sought multi-week adjournments when speaking to the matter during routine appearances. It was appropriate to request specific items of disclosure and to hold-off moving things forward until receiving significant items. However, there is no satisfactory reason why the Defendant did not seek a crown pre-trial meeting after no less than three court appearances in order to attempt to resolve some of the outstanding disclosure complaints.

[35] Legitimate steps taken to discover the case against the Defendant, to review disclosure, and for counsel to receive client instructions were appropriate intake procedures that required some time to complete. What is not appropriate is to use outstanding disclosure to extend the proceedings or to avoid moving the matter along.

[36] Realistically, some four weeks after writing the prosecutor for missing items of disclosure (on 08 November 2021), the Defendant ought to have followed up. Delay from 07 December until 20 January 2022 (45 days) is deemed to have been accepted by the Defendant’s inaction.

[37] Further disclosure was received on 19 January, 24 February, and 10 March 2022. Thereafter, on 14 March 2022, the Defendant sought a crown pre-trial meeting. There is no explanation for why that meeting was set for 13 April 2022 and not sooner.

[38] I find that the Defendant could have held a crown pre-trial meeting with an “R1” prosecutor on any day following 10 March 2022 rather than choosing a date some four weeks later to meet. Accepting that it would have been reasonable to take a week to digest the recent disclosure and to hold a crown pre-trial meeting with an “R1” crown, I find that the delay from 17 March until 13 April 2022 is delay which is solely attributable to the conduct of the Defendant (27 days). This finding is especially warranted in light of defence representations on 13 August and 05 November 2021 that “pre-trial steps” were being taken as well as the Defendant’s acceptance of the court’s suggestion on 21 January 2022 to move the matter to a crown pre-trial.

[39] From the completion of the crown pre-trial on 13 April until the judicial pre-trial was set on 03 May 2022 there is an unexplained gap of time. By 20 April 2022, the Defendant could have been apprised of the prosecution’s position on resolution and instructions could have been obtained. I find that the 13 days of delay until the judicial pre-trial was arranged was inordinate, defence delay.

[40] Following the judicial pre-trial, the Defendant provided instructions to counsel and the TTEF was sent to the Trial Coordinator’s Office in a timely way. Unfortunately, the mechanism to request a trial scheduling meeting had changed and the Defendant failed to follow the new protocol. This delay amounted to 11 days (19 June until 30 June 2022), which was caused solely by the actions of the Defendant.

[41] The sixth period of alleged defence delay is the most significant. Both parties were unavailable to hold the trial some three weeks following the trial scheduling meeting on 25 July 2022. As well, the parties were both unavailable for the next dates offered (12-14 September 2022). The crown was available for the third set of dates offered by the Trial Coordinator: 25-27 October 2023. Counsel for the Defendant was not available and accepts the delay of one week until the next available date: 01-03 November 2023 (the dates initially chosen for the trial).

[42] The Trial Scheduling Form has “No” indicated for any Pre-trial Motions/Applications. Attached to that form is the TTEF which was completed during the judicial pre-trial on 15 June 2022. The box, “Charter Applications” only indicates “Charter 8, 9.” As indicated, if there were any concerns about the time the matter was taking to get to trial, they remained unexpressed until the Defendant sought a hearing date for this Application on 31 July 2023 (some 53 weeks after the trial scheduling meeting).

[43] The Defendant seeks to explain the delay in raising its s. 11(b) concerns for more than one year because the Defendant had to retain counsel to complete this step and time was required for that purpose. That does not explain the lack of timely notice that s. 11(b) was going to be made an issue. Waiting for over one year to advise of the situation deprived the prosecution of an opportunity to ameliorate the unanticipated predicament.

[44] I find that the Defendant waited too long to complain of delay in this case. In fact, the matter was only 54 weeks old when the trial date was set. At that time, knowing that the trial was not set to occur for another 15 months, it was appropriate to take one week to consider the Defendant’s position. Putting the prosecutor on notice by 01 August 2022 would have given the prosecutor almost five and one half months to schedule this trial before reaching the Jordan ceiling (11 January 2023).

[45] I agree with and adopt the words of Justice Monahan in R. v. Kullab, 2023 ONCJ 458, at para. 38:

…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.

[46] Accordingly, of the delay from setting the trial to reaching the trial date, I am prepared to apportion 50% responsibility to the Defendant. Of the 454 days from 01 August until 27 October 2023 (the first offered date when the trial could have ended), the Defendant is responsible for 227 days. The Defendant accepts the entire seven days of delay from 27 October until 03 November 2023, resulting from counsel’s unavailability.

[47] The total delay caused by the Defendant is (45 + 27 + 13 + 11 + 227 + 7) 330 days. When subtracted from the total delay, the net delay to trial is 515 days or 16 months and 27 days, which is below the presumptive Jordan limit for trials in this level of court.

C. THIS CASE SHOULD NOT BE STAYED FOR INORDINATE DELAY

[48] 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.

[49] 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.

[50] 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 16.9 months.

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

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

[53] 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.

[54] 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 December 2021, s. 11(b) never concerned the Defendant until the end of July 2023.

[55] 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 toward setting a trial date. 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.

[56] 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.

[57] 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.

[58] While this case falls toward the higher end of acceptable delay for a trial in this court, I am not satisfied that this reflects an inordinate or excessive period for a multi-day matter in this jurisdiction. Were it not for the global coronavirus pandemic, which existed throughout much of the life of this case, a shorter period of time may well have been excessive.

[59] 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. 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

[60] The Defendant’s s. 11(b) Canadian Charter of Rights and Freedoms 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 10 January 2024.

[61] Accordingly, this Application is dismissed.

Released: 28 November 2023 Justice G. Paul Renwick