WARNING

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

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

112. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

( a ) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

( b ) is guilty of an offence punishable on summary conviction.

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2023 01 10 COURT FILE No: 22-Y4710144

BETWEEN:

HIS MAJESTY THE KING

— AND —

M.W., a young person

Before: Justice Anthony F. Leitch

Heard on: January 21, March 16&21, 2022

Reasons for 11(b) Judgment released on: January 10, 2023

Counsel: Alannah Grady & Sheena MacDougall.......................................... counsel for the crown Lauren M. Wilhelm & Caroline A. McKenna........................... counsel for the accused

Reasons for 11(b) Judgment

Leitch J.:

[1] The defendant is a young person charged with second-degree murder, two counts of aggravated assault and assault with a weapon. I previously ruled orally that the defendant’s application for a stay of proceedings for a violation of his constitutional right to be tried within a reasonable time under section 11(b) of the Charter of Rights and Freedoms was denied. These are the written reasons for that decision.

[2] By the time M. W.’s trial is complete 624 days or 20.8 months will have passed. This exceeds the Jordan presumptive ceiling of 18 months by 2.8 months. The setting of trial dates in this case was complicated by a Crown decision joining the defendant’s case with two other youths who were arrested earlier who had already obtained trial dates. Counsel for the defendant were not available for approximately half of those previously scheduled dates. The Crown sought new dates to accommodate counsel for all three defendants now charged together. The dates offered put the two originally charged defendants well over the 18-month Jordan ceiling. As a result, the Crown chose to sever the defendant’s case and try him alone, thereby preserving a trial for the two other defendants within constitutional limits. That trial has been held resulting in manslaughter convictions as a lesser offence of murder and convictions on all other counts they faced.

[3] After the severance a further judicial pretrial was conducted to estimate the time required for M.W.’s trial alone. The judicial pretrial judge authorized 5 days for a pretrial motion concerning the admissibility of the statements to the police and 15 days for the trial proper. The dates offered to the defence were accepted (but not set until sometime later) and are the dates on which the trial commenced and continued. Completion of the evidence and submissions is expected by January 26, 2023.

[4] Recognizing the presumptive delay with the current trial dates the Crown sought earlier dates within constitutional limits. Two blocks of earlier dates were offered. The first block was rejected by the crown because it overlapped with the trial dates for the trial set for the now severed co-accused. Reasonably, the crown took the position that they could not run two trials of this complexity at the same time before two different judges with the same witnesses overlapping. The second block offered included five days for pretrial motions and 13 days for trial in a continuous block, two days short of the judicial pretrial judges estimate. The Crown urged these dates be chosen despite this shortfall to ensure the defendant’s trial was held within constitutional limits. Their position was two additional days could be found to complete the trial under the Jordan ceiling if the trial took longer than 13 days, though they maintained the trial could be completed in that 13 day block.

[5] The defence emailed the trial coordinator on November 9, 2021, and wrote: “ Unfortunately those dates do not work for us. At some point today I will put together a list of dates that work for Lauren and I [the two defence counsel] in case that assists at all in getting earlier dates.” The list of dates alluded to in that email was never sent. As a result, the dates set were the original dates offered and will result in a trial completion 20.8 months after charge.

[6] The main issue is whether this rejection of dates without further explanation or offer of additional dates by the defence is defence caused delay which must be subtracted from the time to trial. The secondary issue is whether, if such a subtraction occurs and results in a completion time under the Jordan limit, the delay under the Jordan ceiling is unreasonable justifying a stay of proceedings.

The Law on Defence Caused Delay

[7] I adopt the succinct summary of the law by Justice Camara in defining defence delay and how delay to trial is calculated under the Jordan principles:

9 The Applicant's right to a trial within a reasonable time is guaranteed by Section 11(b) of the Charter of Rights and Freedoms.

10 The Supreme Court of Canada held in Jordan that there is a presumptive ceiling on the time it should take to bring an accused to trial. In the Ontario Court of Justice, this presumptive ceiling is 18-months.

11 How to apply the framework was summarized in Coulter as follows:

i) Calculate the total delay, from the charge to the anticipated end of trial

ii) Subtract from this total delay any defence delay to get the net delay

iii) Compare this net delay to the presumptive 18-month ceiling

iv) If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. The Crown can rebut this presumption if it can establish the presence of exceptional circumstances. If it cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases

v) Subtract delay caused by discrete events from the net delay leaving the remaining delay for the purpose of determining whether the presumptive ceiling has been reached

vi) If the remaining delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable.

vii) If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.

12 The Supreme Court of Canada clarified what constitutes defence delay in R v. Cody:

30 Defence delay arises from a defence waiver or is caused solely by the conduct of defence. 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 "deliberate 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 we made clear in Jordan, it remains "open to trial judges to find that their other defence actions or conduct have caused delay" warranting a deduction (para 64).”

31 The determination of whether defence conduct is legitimate is "by no means an exact science" and is something that "first instance judges are uniquely positioned to gauge" (Jordan, at para 65). It is highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. While trial judges should take care to not second-guess steps taken by defence for the purposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate to do so. ”

R v Delves, [2022] OJ No 1464

Analysis

[8] Defence caused delay was defined in Jordan and reiterated in Cody. A trilogy of cases from the Ontario court of Appeal have applied and confirmed that Jordan meant what it said: when the Crown and the Court are prepared to proceed with dates offered and the defence is not this constitutes delay solely caused by the defence. [1]

[9] As Justice Brown observed in R. v. Matthew Valters (September 21, 2021) OCJ at paragraph 46-48:

46 There are competing lines of authority from the Superior Court of Justice and the Ontario Court of Justice on the question of how to characterize defence unavailability. Respectfully, those lower court decisions that do not count defence unavailability as defence delay are contrary to the binding jurisprudence from the Supreme Court of Canada and the Ontario Court of Appeal.

47 In addition, these cases undermine the purpose of Jordan: to eliminate uncertainty and endless flexibility from 11(b) analysis. As Justice Akhtar explained in Brown, “seeking to apply Godin in post-Jordan cases would undermine the court’s decision for clarity and its recognition that the Morin framework had been interpreted so as to permit endless flexibility making it more difficult to determine whether a breach occurred.” [2]

48 Finally, allowing the Jordan clock to run when the Court and crown are ready to proceed but the defence is unavailable risks unfairness to the public and a loss of confidence in the administration of justice. As noted in Brown, “when an accused alleges their s.11(b) rights have been violated, they seek one of the most draconian remedies in the criminal justice system: a stay of charges without trial. That remedy cannot be justified when the court and the Crown have provided a date for trial which is inconvenient to the defence.” [3]

[10] The defence were unavailable for half the dates already selected when this defendant was joined with two other defendants who already had trial dates. This is unsurprising and has no bearing on the result of this application. I find that the first block of earlier dates offered by the trial coordinator were reasonably rejected by the crown as they overlapped with the trial for the two accused previously joined with the defendant for trial. The fact that the defence were available for the dates rejected by the crown does not alter the fact that they rejected dates where the court and the Crown were ready within constitutional limits. All parties were acting reasonably in trying to achieve earlier dates as the defence had put the crown on notice that the delay application would be brought if the trial completed 20.8 months after charges were laid. The turning point occurred when the defence stopped participating in the attempt to set earlier dates and advised the 13 days available to complete the trial (along with 5 earlier days for a motion) did not work for them, thereby rejecting dates for trial when the Court and the Crown were ready to proceed.

[11] Inexplicably defence counsel for the defendant never delivered the promised dates of availability for trial in their last email to the trial coordinator. As a result, the additional 2 days to bring 13 days to 15 days were never searched for, and there is no evidence as a result of whether they would have been or could have been added to achieve a full 15 days either during or shortly after the 13 days offered. On this record there is no explanation for their unavailability, although I assume for the purpose of this application that professional commitments created their unavailability. Jordan was aimed at eliminating complacency to delay in the criminal justice system. It demands the full participation of all parties to achieve earlier dates when dates above the presumptive ceiling are either set or provided by the trial coordinator. The defence chose to stop participating in finding earlier dates and in so doing were the sole cause of the delay after April 19, 2022 when the trial would have completed had they accepted dates for trial when the court and the Crown were ready to proceed.

Calculating Defence Delay

[12] The total delay in this case is 20.8 months or 624 days. Defence delay from April 19, 2022 to the expected completion of the trial on January 26, 2023 is 291 days or nine months 16 days. Net delay is therefore 333 days or 11 months and three days, well below the Jordan presumptive ceiling of 18 months.

Delay Below the Presumptive Ceiling

[13] Where the delay to trial is below the presumptive ceiling the defence must establish they took meaningful steps that demonstrate:

1. a sustained effort to expedite the proceedings: showing defence initiative and,
2. that the case markedly exceeded its reasonable time requirements.

[14] The defence rejected dates where the Court and crown were ready to proceed to trial within constitutional limits. They stopped participating in the date setting process though they promised the provision of further dates of availability when they were offered trial dates 9.5 months earlier than those set. Although they demonstrated meaningful participation in finding earlier dates for trial when the process started that participation was not sustained.

[15] The Crown argued that the defence moved slowly in setting a crown meeting (CPT) and Judicial pre-trial (JPT). After the bail hearing for M.H. was completed on July 6, 2021, the crown sent an e-mail advising the defence of the joinder of the three accused and offering to set an almost immediate CPT and JPT. The defence waited 51 days to respond with what their election would be and advising that they were only available for half the dates already set for the pre-existing trial dates for the now joined co-accused I.A. and S.G. They did not conduct a CPT or attempt to set a JPT in this period. They had substantial disclosure at this time and had seen the case for the crown substantially laid out at a bail hearing held before this Court. There was no reason for this delay to set a CPT and JPT on the record filed on this motion.

[16] I do not find that this period of 51 days represents delay solely caused by the defence, as part of the time was required by the defence to analyse the ongoing disclosure and to get instructions concerning an election for trial from M. W. However, a meaningful CPT could have been conducted and a judicial pretrial set. The failure to take the steps certainly contributed to the delay in setting trial dates and is illustrative of the failure of the defence initiative to advance the case in a timely way. It was inconsistent with the desire for a speedy trial.

[17] The onus rests on the defence to show the delay below the presumptive ceiling of 18 months qualifies as unreasonable delay. The combination of the failure to conduct a timely CPT after the bail hearing, the failure to set the timely JPT, and the refusal to accept earlier dates for trial all contribute to their failure to meet their onus to show the 11 month delay to trial was unreasonable.

[18] I find 11 months 3 days of delay does not markedly exceed the reasonable time requirements for a 20-day youth murder trial with over 25 witnesses. Bail hearings were run, several tranches of disclosure were made and complex decisions of joinder and severance because of the different arrest timings of M. W. and the previously joined co-accused made this case have significant inherent time requirements. The court attempted to ameliorate the delay by offering much earlier dates than originally provided and although the trial could have been held before the 11 month mark I cannot say the time requirements were markedly exceeded.

Conclusion

[19] For these reasons the defence application for a stay of proceedings under section 11(b) of the Charter of Rights and Freedoms is denied.

Released January 10, 2023 Justice Anthony F. Leitch

Footnotes

[1] R. v. Mallozzi, 2018 ONCA 312 at paras. 3-9; R. v. Albinowski, 2018 ONCA 1084 at Paras. 30-35; R. v. Safdar, 2021 ONCA 207 at paras. 44-45

[2] R. v. Brown, 2020 ONSC 6350 at para. 29

[3] R. v. Brown, 2020 ONSC 6350 at para. 30