Court File and Parties

ONTARIO COURT OF JUSTICE DATE: December 11, 2023 COURT FILE No.: 23-82300057

BETWEEN:

HIS MAJESTY THE KING

— AND —

ROHAN HANDY

s.11(B) APPLICATION DECISION

Before: Justice Angela L. McLeod

Heard: November 30, 2023

Counsel: JULIE JANIUK, counsel for the Crown ASHLEY DRESSER, counsel for the Applicant

McLeod J.:

Overview

[1] The applicant seeks an order under s. 24(1) of the Charter, staying the criminal proceeding against him on account of delay and asserts that his rights under s.11(b) of the Charter have been breached.

[2] The parties agree on the case chronology that appears as Appendix ‘A ’ hereto.

[3] Mr. Handy was arrested January 5, 2023. The information was sworn January 20, 2023. His trial is set to complete on October 29, 2024. The total delay is 649 days.

[4] The Jordan, 2016 SCC 27 ceiling date of 18 months (547 days) is July 20, 2024 (R. v. Desjardins, 2023 ONCJ 244, para. 35).

[5] The case is not complex. There are no exceptional circumstances.

[6] The issue for consideration is what delay, if any, is attributable to the defence and whether that delay brings the total net delay below the Jordan ceiling.

The Jordan Framework

[7] In R. v. Harrison, 2023 ONCJ 392, Justice Richardson summarized the framework as follows:

55 In R. v. Zahor, 2022 ONCA 449, at paragraphs 60 through 78, Justice Coroza of the Court of Appeal set out the approach to be taken by the court to the Jordan framework which is applicable in this case:

[60] In evaluating an application made under s. 11(b) of the Charter, a court must identify and characterize the periods of delay occasioned throughout the trial. This requires an application of the Jordan framework, consisting of the following steps.

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

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

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

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

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

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

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

[68] The Crown must do more than simply identify difficulties in conducting a timely prosecution. The Crown must demonstrate that it took reasonable steps — even if ultimately unsuccessful — to circumvent and adapt to problems before the delay exceeded the presumptive ceiling: Jordan, at para. 70; R. v. Morash, 2021 ONCA 335, 405 C.C.C. (3d) 468, at para. 12.

[69] In general, the Crown may satisfy its onus by relying on two categories of exceptional circumstances, being discrete events and particularly complex cases: Jordan, at para. 71. The Crown cannot rely on anything beyond exceptional circumstances to discharge its burden; not the seriousness of the offence, nor the absence of prejudice, nor institutional delay: Jordan, at para. 81. Absent exceptional circumstances, the Crown will not be able to satisfy its burden, and a stay will be entered: Jordan, at para. 47.

[70] Step 4(a): Consider discrete exceptional circumstances. Discrete exceptional circumstances are unexpected and uncontrollable happenings which lead to delay: Jordan, at para. 73. They engage a quantitative analysis, in that the delay caused by discrete events is subtracted from the net delay for the purpose of determining whether the remaining delay continues to exceed the presumptive ceiling: Jordan, at para. 75.

[71] Discrete events include, for example, medical emergency or illness of criminal justice system participants, recanting witnesses, and elongated trials despite good faith timeline estimates: Jordan, at paras. 72-73; R. v. MacIsaac, 2018 ONCA 650, 141 O.R. (3d) 721, at para. 44.

[72] Where the remaining delay continues to exceed the presumptive ceiling, even after accounting for discrete events that could not be reasonably mitigated by the Crown and the justice system, a stay will be entered unless the Crown can demonstrate that the remaining delay is justified in light of the particular complexity of the case: Jordan, at paras. 75-77.

[73] Step 4(b): Consider complexity. The remaining delay may be justified by the Crown where the case is "particularly complex": Jordan, at para. 77. It is worth stressing that the presumptive ceiling already accounts for the fact that criminal proceedings have become more complex over time. Therefore, in order to discharge its burden under this exceptional circumstance, the Crown must demonstrate that the case is particularly complex: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 63, referring to Jordan, at paras. 42, 53.

[74] Unlike the consideration of discrete events, an assessment of particular complexity engages a qualitative analysis: Cody, at para. 64. That is, it demands an inquiry into whether the amount of remaining delay in excess of the presumptive ceiling is justified in light of the particular complexity of the case: Cody, at para. 64.

[75] For cases where the charges were laid after the release of the decision in Jordan, the analysis ends here. If the remaining delay cannot be justified based on the particular complexity of the case, a stay will be entered: Jordan, at para. 47. However, for charges that were laid before the release of Jordan, the court must go on to determine whether the delay has been justified by the Crown as a result of transitional considerations, which is a third type of exceptional circumstance: Jordan, at para. 96; Cody, at paras. 46, 67.

[Emphasis Coroza, J.A.'s]

Step 1 – Calculate Total Delay

[8] As noted above, the total delay from the date of the swearing of the Information to the conclusion of the trial is 649 days, which is 102 days over the Jordan ceiling.

Step 2 – Calculate Net Delay

A. Step 2A – Subtract delay waived by the defence.

[9] There is no delay that was waived by the defence.

B. Step 2B – Subtract delay that is caused by the defence.

[10] There are four areas where the Crown asserts the defence action or inaction caused delay: (1) The retaining of counsel (2) The setting of a Crown pretrial meeting (3) The conduct of the judicial pretrial (4) The setting of trial dates

[11] The defence takes the position that they did not cause any delay (in oral submissions, the defence made an alternate argument which will be addressed later, if necessary).

[12] The retaining of counsel – Mr. Handy was arrested on January 5, 2023. He appeared in court on four occasions, advising that he was trying to retain private counsel. Neither the Court nor the Crown raised concerns about s. 11(b) until the 3rd appearance on April 6, 2023, when the Crown consented to the requested defence adjournment, and said, “but I would urge the gentleman to get counsel sooner than later. These are very serious charges.”

[13] On May 23, 2023, counsel had been retained and wrote to the Crown for outstanding disclosure. Two days later, May 25, 2023, counsel appeared in court, a summary election was noted on the Information and a designation of counsel was filed. The defence noted that there was outstanding disclosure, including the statements of the complainant, which had not been provided directly to the accused as the substantive offences are alleged sexual interference et al. The additional disclosure was provided to counsel on May 26, 2023.

[14] Counsel was retained and communicating with the Crown within 124 days from the swearing of the information.

[15] In R. v. Abdullatif, [2019] O.J. No. 3754, the Court and Crown agreed that a period of almost 3 months was considered part of the usual intake process and not defence delay. In R. v. Park, 2016 SKPC 137, the Court found that 2 months was an appropriate amount of time to retain counsel.

[16] In the case at bar, Mr. Handy advised the court that he was saving money to retain a lawyer privately. He had met with some lawyers for advice and to discuss retainer. I find that he was actively attempting to retain counsel and that the 124 days was not unreasonable in the circumstances.

[17] There is no delay attributable to the defence in the retaining of counsel.

[18] The setting of a Crown pretrial meeting – counsel was retained and communicating with the Crown as of May 23, 2023. Counsel submits that they needed to obtain all disclosure, review same and review same with client in order to obtain instructions prior to the setting of the Crown pretrial. I disagree.

[19] Disclosure should be received and reviewed and reviewed with the client prior to the conduct of a Crown pretrial, but not the setting of the pretrial.

[20] Defence counsel scheduled the Crown pretrial on June 7, 2023. It was held on June 28th, 2023. I find the defence is accountable for the delay between May 23, 2023, and June 7, 2023, a total of 15 days.

[21] The conduct of the judicial pretrial - The judicial pretrial was set for August 14, 2023, at 9:30am. On August 1, 2023, the trial coordinator emailed defence counsel to advise that the meeting needed to be rescheduled and offered 2pm on the same date. Defence counsel was not available, and the matter was then set for August 21, 2023.

[22] Defence counsel cannot be held to a standard which requires them to be in a position to change schedules at moments notice.

[23] The delay in the judicial pretrial is not attributable to the defence.

[24] The setting of trial dates – The matter was estimated to require 3.5 days of trial time. Following the judicial pretrial, the first available trial scheduling meeting was set for August 30, 2023.

[25] The trial coordinator offered 3 days of trial time on September 11, 16 and 20, 2024, undertaking to ‘find’ a half day at some other point. That point is unknown. Defence counsel was not available on the three days offered. Alternate dates of October 22, 23, 28 and 29, 2024 were offered and accepted. Pretrial motions were also set for May 17 and July 10, 2024. The defence alerted all parties that a s. 11(b) motion may be brought.

[26] On the next court of September 14, 2023, the October 2024 trial dates were set along with a date for a s. 11(b) motion.

[27] At no point, between September 14, 2023, and the hearing of the s. 11(b) motion on November 30, 2023, did either the Crown nor the trial coordinator suggest that the matter be brought forward or that earlier trial dates be sought.

[28] On the morning of the s. 11(b) application, this court noted on the record that a conversation with the trial coordinator clarified that no earlier trial dates were possible.

[29] What is clear is that the court was not available between September 20, 2024, and October 22, 2024, as no dates were offered in that time frame.

[30] As the court noted in Harrison, 2023 ONCJ 392, supra:

73 The majority of the Court of Appeal, led by Justice van Rensburg 2022 ONCA 229 stated at paragraphs 56 through 59:

[56] Once it is accepted that the reason for defence unavailability (other than legitimate defence preparation time) is not taken into account in determining defence delay, it does not necessarily follow, as the Crown urges this court to find, that there is a "bright-line" rule that, once the defence is unavailable, all of the delay until the next available date is characterized as defence delay. That would be inconsistent with the principle that the delay must be "solely or directly" caused by the defence, and the qualification that "periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable": Jordan, at para. 64. Like Roberts J.A. in R. v. Albinowski, 2018 ONCA 1084, 371 C.C.C. (3d) 190, I would reject the "categorical approach" proposed by the Crown that all of the delay following the rejection of a date offered by the court must be characterized as defence delay, and I agree with her statement that "it is necessary to consider the circumstances of [the] case": at para. 46. The court must take a contextual approach that considers the circumstances relevant to whether, in respect of a particular period of time, the defence refusal of a date is the "sole or direct" cause of the resulting delay.

[31] The delay in setting the trial dates cannot be attributable solely to the defence.

Step 3 – Compare the Net Delay to the Jordan Ceiling

[32] The total delay is 649 days. The defence is accountable for 15 days of delay, resulting in a net delay of 634 days. This is 87 days above the Jordan ceiling.

Step 4A – Discrete Events; Step 4B Case Complexity

[33] As noted above, there are no discrete events, nor case complexity to consider and none was argued.

Conclusion

[34] The delay in this matter remains above the Jordan ceiling, the Crown has not met its onus and the s. 11(b) application is granted, and pursuant to s. 24(1), the proceedings are stayed.

Released: December 11, 2023. Signed: Justice Angela L. McLeod