Ontario Court of Justice

Date: 2024 02 28 Court File No.: Central West Region - Brampton – 21-14395

Between: His Majesty the King — And — S.T.

Before: Justice Andrew F. Falls Heard on: February 27, 2024 11(b) Ruling released on: February 28, 2024

Counsel: S. Skully................................................................................................ counsel for the Crown S. Hinkson............................................................................ counsel for the defendant, S.T.

Restriction on Publication By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner.

Falls, J.:

Introduction

[1] This is an application brought by S.T. seeking a declaration that his right to be tried within a reasonable time under s.11(b) of the Charter of Rights and Freedoms has been violated. Mr. S.T. seeks a stay of these proceedings pursuant to s. 24(1) of the Charter.

[2] On August 13, 2021, Mr. S.T. was charged with three offences in relation to a young complainant. It is alleged that over a two-and-a-half-year period, Mr. S.T. engaged in inappropriate sexual conduct with his daughter.

[3] Mr. S.T. has elected to proceed to trial in the Ontario Court of Justice. The trial is set to proceed between April 24-May 1, 2024.

[4] The following are my reasons dismissing the application.

The Jordan Framework

[5] The Supreme Court of Canada set out the applicable framework when analyzing delay in R. v. Jordan, 2016 SCC 27.

[6] In applying the Jordan framework, a court is required to identify and analyze periods of delay that may be present. R v Zahor, 2022 ONCA 449 at paras. 61-78; R v Coulter, 2016 ONCA 704 at paras. 34-41.

[7] After determining the total delay, a conclusion regarding net delay is arrived at by subtracting defence delay from the total delay.

[8] A court should then compare the net delay to the 18-month presumptive ceiling established for cases tried in the Ontario Court of Justice. If the net delay is above the ceiling, the delay is presumptively unreasonable.

[9] The Crown may then rebut this presumption by demonstrating exceptional circumstances.

[10] After deducting any applicable time for exceptional circumstances, a stay will be entered if the remaining delay exceeds the presumptive ceiling, unless the Crown can demonstrate that the remaining delay is justified in light of case complexity.

[11] If the remaining delay cannot be justified based on the complexity of the case, a stay will be entered.

[12] If the remaining delay falls below the presumptive ceiling, the onus is on the defence to establish the delay is unreasonable.

Positions of the Parties

[13] Counsel for Mr. S.T. argues that the total delay in this matter is 31 months and 12 days. Counsel submits that there is no defence delay. If I do find any defence delay, it does not bring the remaining delay below the presumptive ceiling.

[14] Counsel points to delayed disclosure as the primary reason for the total delay.

[15] The Crown argues three distinct periods of time ought to be attributed as defence delay totaling 468 days. Subtracting this amount from the total delay, the net delay is below the presumptive ceiling.

Total Delay

[16] The calculation of total delay starts from the date on which the Information was sworn. R. v. J.F., 2022 SCC 17, at paras. 23 and 27, applying R. v. Kalanj, [1989] 1 S.C.R. 1594, at p. 1602 and R. v. Potvin, [1993] 2 S.C.R. 880, at pp. 908-910; R. v. Kanda, 2021 BCCA 267, at paras. 104-115; R. c. Poitras, 2022 QCCA 1561, at paras. 44-67; R. v. Doak, 2022 NBCA 48, at paras. 18-39; R. v. Allison, 2022 ONCA 329, at paras. 35-43.

[17] The Information was sworn on September 20, 2021. A calculation of the time from September 20th to the anticipated end of the trial on May 1, 2024 is 955 days, or 31 months and 12 days.

[18] Thus, the total delay in this matter is 955 days, or 31 months and 12 days. Following the formula applied by the Ontario Court of Appeal in R. v. Shaikh, 2019 ONCA 895, 148 O.R. (3d) 369, and R. v. Charity, 2022 ONCA 226, 412 C.C.C. (3d) 356.

Defence Delay

[19] The Crown’s position is that the defence delay amounts to 468 days. The Crown’s argument places the net delay below the presumptive ceiling at 487 days or 16.01 months. The Crown’s written materials noted a net delay of 468 days (15.38 months). Based on the Crown’s argued defence delay of 468 days, this was either a typographical or mathematical error. 955 days total delay minus 468 days defence delay equals 487 days net delay.

[20] The defence argues that there is no defence delay. During oral submissions, counsel fairly conceded that maybe two months in the period after earlier trial dates were offered could be considered defence delay.

[21] Based on my review of the record, the issues raised in this application can be resolved by analyzing the following periods of defence delay.

January 2 – February 7, 2022 (36 days)

[22] The first court appearance for these proceedings was on November 1, 2021. Initial disclosure was provided to the defence on December 2, 2021. At some point prior to January 10, 2022, a Crown Pre-trial (“CPT”) was scheduled for February 18, 2022 via the Crown’s online electronic scheduling system. Subsequent correspondence took place between Defence Counsel and the assigned crown. Ultimately, a CPT was conducted on February 17, 2022.

[23] The Crown argues that a period of delay ought to be attributed to the defence for this period of time. The defence was provided with initial disclosure on December 2, 2021. Allowing 30 days to review the disclosure, the defence ought to have scheduled a pre-trial with the Crown earlier. The failure to do so resulted in unnecessary delay. The defence is not entitled to wait for complete disclosure before taking preliminary steps to advance the case.

[24] Counsel for the Applicant argues that a CPT was not possible because disclosure of the videotaped statements of the civilian witnesses had not been provided.

[25] As I will expand more fully in the next section of my judgment, I am of the view that the Crown’s position is in keeping with the Court of Appeal’s decision in R v Kovacs-Tatar, [2004] OJ No 4756 at para. 47. Following this reasoning, the defence argument that they were entitled to delay conducting a CPT cannot be accepted, as here, the defence had sufficient disclosure to conduct a CPT. I note further that the defence did schedule and conduct a CPT prior to the receipt of further disclosure.

[26] I will attribute 36 days during this time period as defence delay.

April 4 – September 26, 2022 (175 days)

[27] The Crown anticipates calling three civilian witnesses to prove their case. These witnesses consist of the Complainant, the Complainant’s Mother and Brother. All three provided videotaped statements to the police on August 12, 2021. A review of the Mother’s and Brother’s statements illustrate that their proposed evidence is more than that of a disclosure witness.

[28] Though it appears that the Crown had these statements in their possession, due to a clerical error, the videotaped statements were not disclosed until April 4, 2022. A detailed summary of the Complainant’s statement was disclosed with initial disclosure on December 2, 2021. On January 28, 2022, unofficial transcribed statements of the Mother and Brother’s statements were provided to the defence.

[29] The first Judicial Pre-trial (“JPT”) was scheduled for April 4, 2022. The defence did not proceed with the JPT citing an inability to do so because of missing videotaped disclosure. This triggered the Crown to investigate the missing disclosure and release the videos on the same day. The Applicant’s videotaped statement was also provided on April 4, 2022.

[30] The defence argues that a significant period of delay is the result of delayed disclosure. In contrast, the Crown argues that the disclosure requested by the defence was not required to move the case forward.

[31] Interestingly, I am not being asked to consider the period of time where this argument would otherwise be relevant as defence delay. That is from December 2, 2021 to January 1, 2022 and February 7 to April 3, 2022. The importance of this argument is relevant to how I attribute the time following the first scheduled JPT on April 4, 2022 to the second scheduled JPT on September 26, 2022.

[32] The Crown asks me to consider all this time as defence delay. The Crown argues that it was not necessary to adjourn the first JPT. The defence had sufficient disclosure to move the case forward. Even if there was insufficient disclosure, a JPT would have assisted in sorting out disclosure issues.

[33] The defence argues that none of this time should be considered as defence delay. The defence points out that there is a material difference between assessing the strength of the Crown’s case based on a review of a transcription and viewing the recorded video. The video allows the defence to assess the demeanour of the witness. They argue that, because they did not receive the videotaped disclosure until April 4, 2022, that JPT could not have proceeded. Further the defence was required to wait from the date the second JPT was scheduled on August 2, 2022 to September 26, 2022 to conduct the JPT. September 26th was the date provided to them by the Trial Coordinator.

[34] With respect, I do not accept the Defence argument. I appreciate the distinction the Defence raises in the differences between a transcript and a videotape. I had the benefit of reviewing the detailed synopsis and unofficial transcripts included in the Respondent’s materials. In my view, they contain sufficient details to assist the defence in taking preliminary steps to move the case forward. Accordingly, I find that substantial disclosure had been provided by January 28, 2022. At least, enough to proceed with the first scheduled JPT on April 4, 2022.

[35] It is well-established that the defence cannot wait for every last piece of disclosure before moving ahead to the CPT or JPT stage. Both a CPT and a JPT can be useful tools to advance a defendant’s case, for example highlighting issues such as missing disclosure. As noted by Justice Code in R. v. Richards, 2010 ONSC 6202 at para. 22,

22 It must also be remembered that the Ontario Court of Appeal has repeatedly stated that the Crown's obligation to provide full and complete disclosure by the time of trial does not justify the defence in refusing to take preliminary steps, such as attending pre-trials and setting dates for trial or for preliminary inquiry, until "every last bit of evidence" has been disclosed. The Stinchcombe obligation is to complete "initial disclosure", prior to election, and to then provide "continuing" disclosure "when additional information is received" during the period leading up to trial. See: R. v. Kovacs-Tator (2004), 192 C.C.C. (3d) 91 at para. 47 (Ont. C.A.); R. v. M.(N.N.) (2006), 209 C.C.C. (3d) 436 at para. 37 (Ont. C.A.); R. v. Schertzer et al, supra at paras. 93 and 131; R. v. Stinchcombe (1991), 68 C.C.C. (3d) 1 at pp. 13-14 (S.C.C.).

[36] Further, I take note of Justice Duncan’s comments in R. v. Rehal, 2023 ONCJ 271 at para. 10,

Further, and importantly, the court hearing a pre-trial 11b application is not well positioned to determine issues of adequacy of disclosure - most basically because it cannot know what the state of disclosure will be at the time of trial. Deficiencies in disclosure 30 days out may well be cured by the time of trial. If they are not, that is an issue for an adjournment application at trial. It is not an issue for the 11b application. Attempting to deal with disclosure issues on an 11b application adds a significant level of tangential complexity and diverts from the already complex issue at hand.

[37] In my view, this time period is to be considered defence delay. The record is clear that both the Court and the Crown were prepared to proceed. The delay in the proceedings was caused solely or directly by the defence conduct or inaction.

[38] Accordingly, I attribute 175 days from April 4, 2022 to September 26, 2022 as defence delay.

August 11, 2023 – April 24, 2024 (257 days)

[39] On December 14, 2022, trial dates were scheduled for April 24 to May 1, 2024.

[40] I want to take a moment to summarize my conclusions of what transpired during the court appearances following the setting of trial dates.

[41] From a review of the court record, the Applicant’s 11(b) Charter rights were first raised by the Crown, urging the defence to advise if delay was an issue as soon as possible so earlier trial dates may be canvassed. The Crown voiced concern initially during the December 14, 2022 court proceedings. Five court appearances follow waiting for the Defence to file a notice of election and advise if delay is an issue. I note the Defence did not appear for three of these appearances. On the fourth of these appearances the Crown requested the matter be remanded before a judge for case management. On the fifth appearance, May 16, 2023, the defence advised of their intention to bring a delay application, however because transcripts had not yet been ordered, the defence argued they were unable to schedule the application.

[42] The court record demonstrates consistent attempts by the Crown to move the case forward.

[43] On June 2, 2023 and June 19, 2023, the Crown corresponded with Counsel offering earlier trial dates. Two sets of dates were respectively offered:

1st set August 11 & 14-18, 2023 September 11-15 & 21, 2023 September 18-22 & October 3, 2023, and October 3-6 & 30-31, 2023

2nd set November 27-December 4, 2023 December 11-18, 2023 January 29-February 2 & February 8, 2024

[44] Counsel for the Applicant advised that he was not available for any of the dates offered.

[45] The Crown argues that 257 days for this time period should be attributed as defence delay. The defence was not available for the August 11, 2023 trial sittings. Because the Court and the Crown were available from those dates moving forward, the resulting delay falls at the feet of the defence.

[46] In contrast, the defence argues that none of the time after August 11, 2023 should be considered defence delay. Counsel for the applicant was involved in other court matters and should not be expected to keep his schedule open for this case.

[47] This issue was considered by the Supreme Court of Canada in R v Hanan, 2023 SCC 12 and Justice Duncan in R v Qureshi, 2023 ONCJ 189 and R v Qureshi, [2023] OJ No 2180.

[48] Jordan is clear that defence unavailability for trial will be considered as defence delay. However, as noted in Hanan and Qureshi, this is not a bright-line rule. Trial dates offered cannot leave inadequate time for defence preparation. R. v. Albinowski, 2018 ONCA 1084, [2018] O.J. No. 6892 (CA) R v Dhillon, [2019] O.J. No. 3148; R v Dhindsa, [2022] OJ No 5285 para 31. The circumstances of each case will guide this analysis. R v Hanan, supra at para. 9.

[49] In oral submissions, the Defence fairly conceded that there were no other factors, other than defence unavailability, that prevented this matter from proceeding on the earlier dates offered by the Crown.

[50] Though not argued by the Applicant, I include in my analysis a consideration of the timing of the earlier trial dates offered. In my view, it is appropriate to do so as sufficient preparation time was a factor for other courts in analyzing this issue.

[51] In Rehal, supra at paras. 11-14, Justice Duncan provided a helpful review of the case law on the amount of time required for trial preparation.

[52] In R. v. B.D., 2023 ONCJ 224 at para. 52, a factually similar case, Justice Monahan found that 6 weeks was an appropriate amount of time for defence preparation.

[53] On June 2, 2023, the Crown offered the earlier trial dates noted above. The first was 10 weeks or 70 days from the offering date.

[54] Following His Honour’s approach in Rehal, in my view, the first set of trial dates offered provided adequate time for trial preparation. This is not a complex case as envisioned by Jordan. Mr. S.T. is charged with sexual assault and invitation to sexual touching. It appears that the credibility and reliability of the witnesses will be a central issue at trial. I am advised there are no pre-trial motions.

[55] The August 11, 2023 offerings provided sufficient time for counsel to prepare for the trial. This allowed counsel 10 weeks for preparation. I have noted previously that other cases, including to some extent His Honour in Rehal, supra at para. 11, have taken a perspective that an assessment of trial preparation commences when trial dates are offered. I appreciate the logic of this approach and the practicalities of a litigation practice. I would observe this approach in some measure diminishes the file time invested by counsel prior to setting the matter for trial. Issue identification, case specific research, legal and strategic advice, client instructions, crown pre-trial and judicial pre-trials are all completed prior to scheduling a trial. All time legitimately invested by counsel. In this case, all this was completed prior to December 14, 2022 when the original trial dates were placed on the record. In my view, in the context of a s.11(b) analysis, this time ought to be considered.

[56] As noted by Justice Duncan, tighter timelines for preparation are “the price that all participants sometimes must pay to provide defendants with their right to trial in a reasonable time”. R v Qureshi, 2023 ONCJ 189 at para. 24. Given live delay concerns, all litigants should be turning their attentions to ways to mitigate delay.

[57] Aside from allowing adequate preparation time, there were no intervening factors in this case that would argue in favour of deviating from the general rule in Jordan regarding defence unavailability.

[58] Considering all the circumstances, I find that the sole reason this matter did not proceed on the previously offered trial dates was the unavailability of the defence.

[59] I pause to acknowledge Defence Counsel’s argument that I do not have any evidence that the Crown’s witnesses were available for the earlier trial dates. I make two findings with respect to this argument. First, a plain reading of the Crown’s correspondence to counsel clearly demonstrates that the Crown was offering the new dates as available trial dates, not proposed dates to be confirmed at a subsequent trial scheduling conference. The Crown’s language was clear in their intention to mitigate delay and offer earlier trial dates. I note the Trial Coordinator, Michelle Crawford, was copied on both emails. Second, I have observed that this was a practice employed by the Crown in the spring/summer of 2023 to mitigate delay in other cases. In other cases, the dates offered by the Crown were intended to be and were acted upon as confirmed trial dates that could be accepted by the defence.

[60] Accordingly, I conclude that the defence was required to accept trial dates offered as early as August 11, 2023, or accept the resulting delay. I consider 257 days from August 11, 2023 to the end of the trial as defence delay.

Summary of Defence Delay

[61] In summary, I find the following time periods to be defence delay:

Period	Days
January 2 – February 7, 2022	36
April 4 – September 26, 2022	175
August 11, 2023 – April 24, 2024	257
Total Defence Delay	468

[62] Subtracting the defence delay from the total delay provides a net delay of 487 days or 16.01 months.

Delay Below the Presumptive Ceiling

[63] I did not understand the defence submissions to include an argument that if the net delay is below the presumptive ceiling, the Applicant’s 11(b) rights were nevertheless infringed. Notwithstanding, I find that the defence cannot establish the requirements for a stay below the presumptive ceiling. I find that the defence has not established that they took meaningful steps to demonstrate a sustained effort to expedite the proceedings. As noted above, the court record is peppered with requests by the Crown to move the case forward, followed by inaction by the defence. I accept Defence Counsel’s submissions that the four missed court appearances were the result of required attendances in other proceedings. That noted, I cannot conclude that missing these appearances demonstrated a sustained effort to expedite the proceedings.

Conclusion

[64] Comparing the net delay to the presumptive ceiling established in R. v. Jordan, the net delay falls below 18 months.

[65] This below the ceiling delay is reasonable in the circumstances of this case.

[66] The application is dismissed.

Released: February 28, 2024 Signed: Justice Andrew F. Falls