Ontario Court of Justice

Date: 2024 02 21 Court File No.: Brampton 22-3368-00

Between: His Majesty The King — And — Milan Mikovic

Before: Justice Paul F. Monahan Heard on: January 30, 2024 Reasons for Judgment released on: February 21, 2024

Counsel: J. Bellehumeur, for the Crown R. Auger, for the defendant

Monahan J.:

Introduction

[1] The defendant brings an application for a stay of proceedings for an alleged violation of section 11(b) of the Charter.

[2] On February 4, 2022, the defendant was arrested for having 80 or more milligrams of alcohol in 100 mL of blood in his body within two hours after operating a motor vehicle contrary to section 320.14(1)(a) of the Criminal Code. The information was sworn on March 23, 2022.

Chronology

[3] A brief chronology of this matter is as follows:

• February 4, 2022: the defendant was arrested for at or over 80;
• February 7, 2022: Defence counsel was partially retained. He was not retained for trial.
• March 15, 2022: disclosure is requested by the defence;
• March 23, 2022: the information is sworn;
• April 8, 2022: a first appearance takes place. Agent for counsel Mr. Auger appears;
• May 2 to June 17, 2022: various requests for disclosure are made by the defence. Initial disclosure is provided June 17, 2022;
• August 26, 2022: agent for counsel appears and advises that a CPT is set for September 2, 2021 and counsel’s “instructions are to set a trial date”;
• September 2, 2022: a CPT is held. Crown counsel advises defence counsel as to how to set up a JPT;
• September 20, 2022: further disclosure is provided which includes the breath room video;
• October 3, 2022: defence counsel takes steps to set up a JPT. The JPT is to be held October 13, 2022.
• October 13, 2022: a JPT is held. A trial time estimate form for a two day trial is prepared. Further disclosure is provided from the Crown.
• October 21, 2022: agent for counsel advises the court that a JPT has been held and the defence counsel is “looking for client instructions”. Adjourned to January 6, 2023;
• January 6, 2023: agent for counsel appears in court saying that the client wants a trial. Counsel requests an adjournment until March 3, 2023. The Court asks counsel why they need until March 3, 2023. Agent for counsel indicates that the trial will need to be set “with or without counsel”. Agent for counsel is advised to go to courtroom 302 where self represented JPTs are held and where self represented trial dates are set. The Crown advises that they have been ready to set a trial date since October 13, 2022;
• February 27, 2023: the defence makes a request from the trial coordinator for a trial scheduling conference in order to set a trial date. The trial scheduling conference is to be held March 6, 2023;
• March 3, 2023: counsel appears in court and indicates that a trial scheduling conference will be held March 6, 2023. Counsel says that they have not been retained;
• March 6, 2023: agent for counsel appears at a trial scheduling conference March 6, 2023. The Court offers March 30 and 31, 2023 for trial. The defendant states that they are available but the Crown is not. Then the trial coordinator offers May 9 and 10, 2023. Both the Crown and the defence advise that there are available and agree to the trial dates of May 9 and 10, 2023 in courtroom 210;
• March 28, 2023: Agent for counsel appears in court and seeks to put the case into a self represented JPT court to set new trial dates. As concerns the trial dates of May 9 and 10, 2023 that have already been set, Agent for counsel says “counsel is not available. Mr. Auger may be retained at the end of the day, but right now were not fully retained for trial, that’s why we [indecipherable]”. The case is remanded to March 30, 2023 into the self represented JPT court;
• March 30, 2023: Agent for counsel and counsel appear in self represented JPT court. Agent for counsel advises “the issue is essentially that Mr. Auger is not formally retained for trial and not available”. Defence counsel wants to adjourn the trial dates of May 9 and 10, 2023. Because counsel was not available May 9 and 10, 2023, the dates are vacated. New dates were offered as follows: April 17 and 18, 2023: the Crown and defence were both not available; May 1 and 2, 2023: the Crown was available but the defence was not; May 30 and 31, 2024: both the Crown and the defence were available. The new trial dates of May 30 and 31, 2024 are confirmed on the record. No mention was made of section 11(b) concerns by either party;
• December 13, 2023: the defence sends a notice of application alleging a section 11(b) violation; and
• January 30, 2024: the section 11(b) application is heard.

The Jordan Framework

[4] The Jordan framework is well known and may be summarized as follows:

1. A trial court hearing a section 11(b) application should calculate the total delay from the charge to the anticipated end of the trial (Jordan at para. 47).
2. From the total delay the Court should deduct defence delay (Jordan para. 66) and the delay associated with discrete exceptional circumstances (Jordan at paras. 75 and 82).
3. Defence delay has two components. The first is delay waived by the defence. The other is delay caused "solely or directly" by defence conduct including circumstances where the defence uses a deliberate tactic to delay the trial. A further example of defence delay will occur where the Court and the Crown are ready to proceed and the defence is not (Jordan paras. 60-64; see also R. v. Cody, 2017 SCC 31 at paras. 28 to 35).
4. The determination of whether defence conduct amounts to defence delay is “by no means an exact science” but is something that “first instance judges are uniquely positioned to gauge” (see Jordan para 65). It is “highly discretionary” (see Cody at para. 31).
5. If the delay is above the presumptive ceiling then it is presumptively unreasonable. The Crown can rebut this presumption by showing that the delay is reasonable on the basis of exceptional circumstances (Jordan para. 68). This is the only basis upon which the Crown can justify a delay above the ceiling and avoid a stay. The absence of prejudice in cases above the ceiling is irrelevant (Jordan para. 81).
6. Below the presumptive ceiling a stay may still issue if the defence can establish two things: (1) that 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. In the absence of these two factors, the stay application will fail (Jordan para. 82). The Supreme Court observed that they expected stays below the ceiling would be "rare" and should be limited to only in clear cases. In setting the ceiling, the Supreme Court factored in tolerance for reasonable institutional delay (Jordan para. 48 and 83).

Overall Delay and Time Periods in Issue

[5] The overall delay in this case is from March 23, 2022 until May 31, 2024. That is 26 months and 8 days. This is 800 days.

[6] By reason of the written materials before me filed on the section 11(b) application and by reason of the submissions of counsel, I have determined that the following time periods should be examined to determine if there is any defence delay or exceptional circumstance delay: (i) October 13, 2022 to March 30, 2023; and (ii) May 10, 2023 until May 31, 2024:

[7] The Crown also submits that if the Court finds the net delay is above 18 months that the Court should consider a deduction for the so-called “ripple effect” due to Covid.

Discussion and Analysis

October 13, 2022 to March 30, 2023

[8] A JPT was completed on October 13, 2022. A two day trial estimate was obtained.

[9] Let me begin by noting that no JPT was required in this case for trial setting purposes. It is a routine two day over 80 trial with a Charter application alleging section 8, 9 and 10(b) violations. This is the type of case that is heard in the Brampton OCJ every day. The local practice, which is well known in Brampton, is that if the Crown and the defence agree that the trial will take two days or less, then no JPT is required. In my view, a trial date could have been requested on or shortly after September 20, 2022 when the breath room video was provided. The fact that further disclosure was provided on October 13, 2022 is of no moment. I have seen the disclosure provided on that day which was a motor vehicle collision report, and it would not be required in order to set a trial date.

[10] However, in this case, defence counsel went ahead and booked a JPT which took place on October 13, 2022. To be fair to defence counsel, there is nothing in the record to show that the Crown told defence counsel, whose office is in Ottawa, that a JPT was not necessary at least based on the record that I have seen. It could be that the defence was seeking judicial input on resolution at a JPT in which case the time would not go towards the Jordan ceiling. I will not fault defence counsel for not being aware of the local practice in Brampton. However, as of October 13, 2022, the JPT was completed and the defence could have and should have proceeded to set a trial date. Defence counsel said in Court on October 21, 2022 that they were “looking for client instructions”. Client instructions should not have been required and, if they were, any delay in receiving them is on the defence. I note that on August 26, 2022, agent for counsel advised that the client’s instructions were to set a trial date. I would not allow any further delay for obtaining client instructions once the JPT was complete on October 13, 2022. The defence did not take any steps to set a trial until February 27, 2023. This is 137 days or four months and 14 days and it my view that this is all defence delay.

[11] As explained in the chronology above, the trial date setting took place with the trial coordinator on March 6, 2023. The trial date was set on March 6, 2023 with agent for counsel as well as the trial coordinator and a Peel Police representative who had the officers’ available dates. Police officers are often the main witnesses for the Crown in over 80 cases.

[12] On March 6, 2023, the parties were offered March 30 and 31, 2023 for trial. The defence advised that they were available but the Crown was not. The parties were then offered May 9 and 10, 2023. The defence and the Crown were both available and as a result the trial dates of May 9 and 10, 2023 were set. Because both parties were available, the parties did not seek further dates from the trial coordinator so it is not known what the next available date would have been after May 9 and 10, 2023.

[13] On March 28, 2023, agent for counsel and the Crown appeared before a Justice of the Peace. As concerns the trial dates of May 9 and 10, 2023 that had already been set, Agent for counsel said “counsel is not available. Mr. Auger may be retained at the end of the day, but right now were not fully retained for trial, that’s why we [indecipherable]”. The trial dates remained set and the case was remanded to March 30, 2023 into the self represented JPT court. Agent for counsel and counsel appeared on March 30, 2022 to seek to vacate the previously agreed to dates of May 9 and 10, 2023 and to set new trial dates. Agent for counsel stated on March 30, 2022 said that “the issue is essentially that Mr. Auger is not formally retained for trial and not available”. As a result, the Crown and the Court agreed to vacate the May 9 and 10, 2023 trial dates because counsel was not available even though counsel was not retained. New dates were offered as follows: April 17 and 18, 2023: both the Crown and defence were not available; May 1 and 2, 2023: the Crown is available but the defence is not; May 30 and 31, 2024: both the Crown and the defence are available. The new trial dates of May 30 and 31, 2024 were confirmed on the record. No mention was made of any section 11(b) concerns by either party.

[14] As I have already said, the time from October 13, 2022 when the defence should have taken steps to set a trial date until February 27, 2023 when they finally did take steps to set up a trial setting meeting, is all defence delay. This is four months and 14 days or 137 days. Further, the time from March 6, 2023 when the trial dates were set until March 30, 2023 when the trial dates had to be vacated is also defence delay because defence counsel made an error when they said they were available for the May 9 and 10, 2023 trial dates when they were not. This is a further 24 days.

[15] Therefore, the total defence delay from October 13, 2022 to March 30, 2023 is 161 days (137 days plus 24 days).

May 10, 2023 until May 31, 2024

[16] The question under this time period is who should be responsible for the time from the originally scheduled trial date of May 9 and 10, 2023 until the end of the new trial date on May 31, 2024. This is 12 months and 21 days or 386 days.

[17] The defendant submits that all of this delay should be on the Crown. The Crown submits that all of this delay should be on the defence.

[18] The Supreme Court of Canada has made it clear that there is no "bright line rule" requiring that where dates are offered when the Court and the Crown are available but the defence is not, then all delay until the next date is defence delay. Rather, all of the relevant circumstances must be considered to determine how delay should be apportioned among the participants: R. v. Hanan 2023 SCC 12 at para 9 and R. v. Boulanger 2022 SCC 2 at para 8.

[19] Defence counsel submits that all of the time during this time period should be on the Crown. Defence counsel argued in oral argument on the section 11(b) application, surprisingly, that the just over 60 days preparation time from the time the original trial dates were set on March 6, 2023 until May 9 and 10, 2023 was not enough time to prepare for trial even though it is their position they were not available for the May 9 and 10, 2023 dates. I note as well that in its adjournment appearances on March 28 and 30, 2023, the defence never took the position that the May 9 and 10, 2023 trial dates were too soon to allow for adequate trial preparation. Rather, the defence simply took the position that that they were not available and that they were not retained. In my view, 60 days was more than enough time to prepare for this routine 2 day trial and I would note that trial preparation should have been well underway prior to March 6, 2023.

[20] Hanan directs Courts to look at all of the relevant circumstances in order to determine who should be responsible for the delay. In this case there are two principal reasons which led to the just over 12 month delay from May 10, 2023 until May 31, 2024. The first reason was the unavailability of non-retained defence counsel and this fault falls on the defence. The second reason was the unavailability of the Court to offer dates earlier than May 31, 2024 and this fault falls on the Court.

[21] In my view, a significant part of the delay between May 9 and 10, 2023 and May 30 and 31, 2024 should be attributed to the defence. Let me explain. When the trial dates were set on March 6, 2023, the defence’s actions caused the trial coordinator not to provide any dates past May 9 and 10, 2023 because defence counsel advised, incorrectly, that they were available. Accordingly, we don’t know what dates would have been offered after May 9 and 10, 2023 had the defence properly advised that they were not available on May 9 and 10, 2023.

[22] Further, if one steps back and looks at what happened here, the Crown, the Court and the defendant were all available for the May 9 and 10, 2023 trial. The only person who was not available was defence counsel who was not even retained. As a result, the case went over to May 2024 with section 11(b) not being mentioned until December 13, 2023.

[23] I also note that the Crown and the Court were available for trial on May 1 and 2, 2023 when these dates were offered on March 30, 2023. The defence takes the position that these dates were too soon. I note that this conflicts with the fact that on March 6, 2023, when the defence was offered March 30 and 31, 2023, the defence said they were available but the Crown was not. In other words, on an earlier date setting, the defence said they were available to do this trial at a date only 25 days a way. Now on the section 11(b) application, they take a different position. Perhaps the statement by agent for defence counsel on March 6, 2023 that they were available for March 30 and 31, 2023 was just a mistake. I agree that 30 days trial preparation for a trial like this one would not normally be enough. However, the situation here was little bit different. In this case, there already was a scheduled trial date of May 9 and 10, 2023 with more than 60 days trial preparation time. The offer of May 1 and 2, 2023 came on March 30, 2023 when the defence should have been well underway in terms of their trial preparation. The offer of May 1 and 2, 2023 was just a slight adjustment to the scheduled trial dates of May 9 and 10, 2023 and it was another date when the Court and the Crown were available but the defence was not. Moreover, there was still time to serve the Charter application that would typically be served in these cases and even if it needed to be served on short service, which would not be a problem in my view given the routine nature of these Charter applications.

[24] It is clear that the sole cause of the need to delay the May 9 and 10, 2023 trial dates was non-retained defence counsel’s unavailability. However, the defence was not the sole cause of all of the time that then became part of the delay in this case until May 31, 2024.

[25] The Court should have been in a position on March 30, 2023 to offer more dates between May 11, 2023 and May 30 and 31, 2024. A more than 12 month delay in offering a two day time slot for a straightforward two day trial is unacceptable.

[26] The period from May 9 and 10, 2023 until May 30 and 31, 2024 is 386 days. In my view, 50% of this time should be attributed to the defence and 50% of this time should be on the Crown. This is 193 days delay to each of them. This allocation of defence and Crown delay takes into account that the only reason the case did not proceed on May 9 and 10, 2023 was the unavailability of non-retained defence counsel. It also takes into account the fact that the May 1 and 2, 2023 dates were also offered to the defence and both the Crown and the Court were available on these dates but the defence was not. If the case had proceeded on either the May 1 and 2, 2023 or May 9 and 10, 2023 dates, the trial would have been completed in 13.5 months or under. On the other hand, the 50/50 allocation recognizes that the Court should have been able to offer earlier dates for trial than May 30 and 31, 2024.

[27] I also agree with the Crown that the defence failed to give timely notice of their intention to bring a section 11(b) application. The defence was silent on this point from March 30, 2023 to December 13, 2023. The Crown sought a deduction for 50% of the time for the delay from March 30, 2023 to December 13, 2023. This was an alternative submission. They also made a further alternative submission requesting a deduction for the alleged “ripple effect” due to Covid. I decline to decide both of these points given my view of the other delays in this case.

Summary

[28] For the reasons outlined above, the net delay is 800 days less 161 days less 193 days which is equal to 446 days. This is approximately 14.6 months. This is well under the Jordan ceiling.

[29] I did not understand the defence to argue that if the net delay was under 18 months that a stay should nevertheless issue. In my view, this is not one of the clear cases in which a stay under the ceiling should be granted. This is not meant as a criticism of defence counsel but the defence cannot demonstrate a sustained effort to expedite this case given a number of facts in the history of this case including the delays in setting a trial date after the JPT. Nor do I consider that this is a case which took markedly longer than it should have.

[30] For the reasons outlined above, the 11(b) application will be dismissed.

Released: February 21, 2024 Signed: Justice Paul F. Monahan