ONTARIO COURT OF JUSTICE
DATE: 2024 01 02
INFORMATION NUMBER: 21-4016
BETWEEN:
HIS MAJESTY THE KING
— AND —
DENNIS RHODES
Before Justice M.K. WENDL
Heard on December 15, 2023
Ruling Released January 2, 2024
E. Quinn........................................................................... Counsel for the Provincial Crown
S. Camara….……………………………...……..….…....……Counsel for Dennis Rhodes
WENDL J.:
[ 1 ] Dennis Rhodes is charged with a variety of offences which are set for trial on April 17 th , 2024. A remote testimony application is set for January 19 th , 2024. Mr. Rhodes’ charges date back to 2019. The trial date of April 17 th , 2024 was set on March 7 th 2023 after an adjournment request by the defendant of his previous trial dates set to begin on March 6 th , 2023.
[ 2 ] Ms. Camara, on behalf of Mr. Rhodes, would like to bring an 11(b) application. For some reason counsel did not set the 11(b) application date along with the trial dates, although they claim that it was their intention to do so all along. I pause to note here that the new practice direction, effective November 1, 2023, states that the 11(b) application date must be set at the time the trial date is set to avoid this very situation, which causes significant scheduling difficulties and the use of more court time. The Crown argues that Mr. Rhodes is in breach of the rules and cannot bring the application. They argue that the trial starts on January 19 th , 2024, with the remote testimony motions and as such Mr. Rhodes has not complied with the practice direction that 11(b) applications are to be heard 4 months before trial.
[ 3 ] Mr. Rhodes argues that the remote testimony application dates are not the start of the trial. The start of the trial is April 17, 2024. They also argue that since the practice direction conflicts with the rules about the timing of the application, either 60 days ahead of trial for the rules or 4 months ahead of trial for the practice direction, the rules apply, and Mr. Rhodes is in time to file his application.
WHEN DOES THE TRIAL BEGIN?
[ 4 ] In the context of determining the first day of trial for the purpose of a re-election notice under section 561(2) of the Criminal Code , Justice Burstein in Vella [1] adopted a contextual and purposive approach:
A functionally sound approach to the interpretation and application of the phrase "day first appointed for the trial" was set out by Paciocco J. (as he then was) in R. v. Brahaney, supra (at para. 16):
Case law makes clear that when it comes to interpreting the term "trial" in a statutory provision, a contextual and purposive approach is to be taken. Indeed, the term "trial" can mean different things in different contexts. As observed by Justice Ewaschuck in R. v. Curtis , [1991] O.J. No. 1070 (Ont. Gen. Div.) , this can even result in a "trial" commencing at different points in time for a judge and jury adjudicating the same matter. [2]
[ 5 ] Justice Burstein further noted that depending on the nature of the pre-trial motions and the way they are litigated they may or may not be characterized as part of the trial.
To take another example, provincial court trials of indictable offences may involve the scheduling of "pretrial motions" well in advance of the trial proper: see, for example, R. v. Brahaney , [2016] O.J. No. 3547 (O.C.J.) . As Paciocco J. observed in Brahaney , depending on their nature and the way they are litigated, those pretrial motions may or may not be characterized as part of the "trial" for the purposes of s. 561(2). [3]
[ 6 ] Although the analysis advanced in Vella deals with a re-election notice under section 561(2) , I am of the view that the analysis is equally appropriate for notice under the Criminal Rules of the Ontario Court of Justice . Simply put, the timing of notice is the core issue of both Vella and the case at bar, and, therefore, I adopt Justice Burstein’s reasoning.
[ 7 ] Here, the pre-trial motions consist of an application for remote testimony. No substantive evidence will be called. The motion will only have a bearing on how the evidence is called, whether by remote testimony or in person. This is not, for example, a Charter motion which would determine what evidence is called or where evidence called in the motion could apply to the trial. Therefore, I find for the purpose of compliance with the notice provisions of the Criminal Rules of the Ontario Court of Justice , the first day of trial is April, 17, 2024.
Notice: 4 months or 60 days?
[ 8 ] The new practice direction issued by the Ontario Court of Justice, effective as of November 1, 2023, mandates that 11(b) motions are to be heard 4 months prior to the trial, with material to be filed at least 30 days ahead of the hearing date. [4] However, rule 2.4(2)(e) of the Criminal Rules of the Ontario Court of Justice states that an 11(b) motion must be heard 60 days ahead of the trial. This is of significance on the facts of this case because if the 4 months’ notice provision is the operative one, Mr. Rhodes has not brought his application in compliance with the rules even though I have found the start date of the trial to be April 17 th , 2024.
[ 9 ] Rule 5 of the Criminal Rules of the Ontario Court of Justice states that practice directions may be issued by the Chief Justice, or their delegate, and it becomes operative when it is posted on the Ontario Court of Justice Website. However, rule 5.1(1) specifically states that the practice direction must be consistent with the rules. [5] Therefore, because of the conflict between the practice direction and the notice as to the timing of the motion I find that rule 2.4(2)(e) is the operative provision and the 11(b) application must be heard 60 days ahead of the trial and not 4 months.
[ 10 ] I will point out, however, that the practice direction stating that the 11(b) application dates are to be obtained at the same time as the trial dates is operative and does not conflict with the rules. Going forward, counsel who do not do so, risk their application not being heard.
[ 11 ] The application is allowed. Mr. Rhodes must obtain a hearing date 60 days ahead of trial and file their material 30 days prior to the motion date. In conformity with the practice direction the hearing is set for 1 hour.
Released: January 2, 2024
Signed: Justice M.K. Wendl
APPENDIX A
This practice direction is issued pursuant to rule 5 of the Criminal Rules of the Ontario Court of Justice . It replaces the Provincial Practice Direction regarding Time Limits for Oral Arguments on s.11(b) Charter Applications in Criminal Proceedings (issued July 1, 2019), which is hereby revoked).
The objective of this practice direction is to provide for fair, timely and efficient determination of s. 11(b) Charter applications. This includes hearing the applications at least four months before trial so that, if the application is granted and a stay of proceedings is imposed, the scheduled trial dates may be utilized for other matters.
The procedures set out in this practice direction apply to s. 11(b) Charter applications in the Ontario Court of Justice as of November 1, 2023.
Unless the Court directs otherwise, section 11(b) applications shall be heard at least four months before trial, to allow the scheduled trial dates to be utilized for other matters should the proceedings be stayed.
Section 11(b) applications will be scheduled at the same time the trial is set. To facilitate this procedure:
i.
i. s. 11(b) applications will be canvassed during judicial pre-trials and the defence (counsel, authorized agent or accused, if self-represented) is required to advise the pre-trial judge if they intend to bring a s. 11(b) application; and
ii. s. 11(b) applications will be canvassed when trial dates are canvassed in the trial scheduling court or in the Trial Coordinator’s office. If the trial date is more than 18 months from the Information sworn date, a s. 11(b) application date will be set unless the defence confirms on the record that they are not bringing a s. 11(b) application.
This procedure applies, with any necessary modifications, when a trial is adjourned and/or a new trial is being set.
The s. 11(b) Notice of Application (Form 1) and any supporting materials must be served and filed at least 30 days in advance of the application hearing date, in accordance with Rule 3.1 of the Criminal Rules of the Ontario Court of Justice .
Wherever possible, the s. 11(b) application will be heard by the judge who will preside over the applicant’s trial. However, given that the application and trial are heard months apart, there may be cases where it is necessary for the proper administration of justice for different judges to hear the application and trial. In such situations, the s. 11(b) application judge is appointed a case management judge under s. 551.1 of the Criminal Code for the purpose of hearing and determining the s. 11(b) application.
Unless directed otherwise by the Local Administrative Judge, the judicial pre-trial judge or the presiding judge, s. 11(b) applications shall be scheduled for up to one hour for oral argument, allocated as follows:
i. Applicant – 25 minutes
ii. Respondent – 25 minutes
iii. Applicant’s reply – 10 minutes.
- The s. 11(b) application should clearly identify any periods of delay within the case that the party submits should be characterized as attributable to the defence or to “exceptional circumstances”, as defined in R. v. Jordan . The information describing periods of delay must be set out in a chart (or charts) attached to the application setting out the history of the proceeding from the date of charge until the anticipated disposition of the proceeding.
Chief Justice Sharon M. Nicklas Ontario Court of Justice
[1] R v Vella , [2020] OJ No 3233
[2] Ibid at para 27
[3] Ibid at para 26
[4] See Appendix A, Practice Direction on 11(b) applications effective November 1, 2023
[5] 5.1 (1) The Chief Justice or his or her delegate may issue practice directions that are consistent with these rules.