Court File and Parties

COURT FILE No.: 0611-998-21-510 DATE: March 12, 2024 ONTARIO COURT OF JUSTICE Central West Region

BETWEEN: HIS MAJESTY THE KING — AND — peter de pinto

Heard Before: Mr. Justice Richard H.K. Schwarzl on February 26, 2024 Reasons released on: March 12, 2024

Counsel: Mr. Robert Levan................................................................................................... for the Crown Mr. Douglas Lent............................................................................................. for the Defendant

SCHWARZL, J.:

REASONS FOR 11(b) CHARTER RULING

1.0: INTRODUCTION

[1] The Defendant, Peter De Pinto, stands charged with three driving-related offences that are presently scheduled for trial on March 26 and November 8, 2024, in Orangeville.

[2] Justice Chaffe is the assigned trial judge, but I dealt with this application in my capacity as a case management judge as authorized by s. 551.1 of the Criminal Code.

[3] What follows are my reasons for dismissing this Application.

2.0: LEGAL FRAMEWORK

[4] Applications made under section 11(b) of the Canadian Charter of Rights and Freedoms must be considered using the principles set out in R. v. Jordan, 2016 SCC 27 as interpreted by appellate courts since that time. Jordan states that in a trial in provincial court must be completed within 18 months after the charge is laid to avoid a stay of proceedings for want of prosecution.

[5] In R. v. Coulter, 2016 ONCA 704, the Ontario Court of Appeal created a helpful step-by-step analytical framework, namely:

Step	Action
1.	Calculate the Total Delay, being the time between the laying of the Information and the scheduled last trial date.
2.	From the total delay, subtract defence delay, which includes both defence waivers and defence-caused delay. The result of this arithmetic is known as Net Delay.
3.	Compare the Net Delay to the presumptive ceiling (in this case, 18 months).
4.	If the Net Delay exceeds the presumptive ceiling, the Crown must establish the presence of any Exceptional Circumstances (either discrete events or a particularly complex case) to avoid a stay.
5.	Subtract any Exceptional Circumstances from the Net Delay, leaving Remaining Delay.
6.	If the Remaining Delay exceeds the presumptive ceiling, the court must consider if the case was particularly complex to justify the delay.
7.	If the Remaining Delay falls below the presumptive ceiling, the onus is on the applicant to show the delay is unreasonable.

3.0: ANALYSIS

3.1: What is the Total Delay?

[6] The Information in this case was sworn on May 11, 2021. The last trial date is November 8, 2024. The total delay in this matter is 1,277 days or 42 months. [1]

3.2: What Is the Net Delay?

[7] Both sides agree that time must be subtracted from the Total Delay to account for defence delay.

[8] Mr. De Pinto made the submission that defence delay in this case comes from an explicit waiver of the period from when the Information was sworn on May 11, 2021, until his release on Bail on November 17, 2022, or 18.25 months.

[9] During the hearing of this application, Mr. Lent on behalf Mr. De Pinto stated that the period between January 5, 2024 (one of the original two trial dates) and March 26, 2024 (the replacement for one of the original two trial dates) was also being waived. This is 82 days or 2.7 months.

[10] Therefore, the total waiver in this case is 20.95 months.

[11] The applicant submits that other than this waiver, there are no other acts or omissions on his part that can be described as defence-caused delay. The applicant submits that the Net Delay is therefore 21.05 months.

[12] The Crown submits that in addition to the periods waived, 7.7 months should also be subtracted due to defence-caused delay for a Net Delay of 13.25 months.

[13] The Crown broke down its submission of 7.7 months of defence-caused delay into two phases. They say the first phase was a one-month period between December 5, 2023, and January 5, 2024, and that the second phase was a 6.7 month period between April 18, 2024 and the last trial date of November 8, 2024.

[14] I will focus my analysis concerning Net Delay on whether the Crown has satisfied me that defence-caused delay exists in the manner they described.

[15] Like most things, background and context are important. I will briefly describe the context of the trial scheduling in this case. For this, I rely on the Information, the transcripts, and the three Trial Inquiry Schedule Forms (TISF) completed by the Orangeville Trial Coordinator in consultation with representatives of both parties. Part 6 of each TISF details the dates the court offered and those that each side accepted or rejected.

[16] Following a Judicial Pre-Trial Conference held with me on February 14, 2023, both parties agreed that the trial would take one and a-half days to complete.

[17] The first TISF was created on April 12, 2023. Part 6 [2] reads as follows:

Dates Suggested	Crown Available	Defence Available	Comments [3]
May 26, 2023	No	No
October 16, 2023	No	No
December 27, 2023	Yes	Yes
January 5, 2024	Yes	Yes

[18] On April 20, 2023, trial dates of December 27, 2023, and January 5, 2024, were set in court. The scheduled trial judge was Mr. Justice G. Wakefield.

[19] On November 2, 2023, the matter was in court to confirm the trial dates. The defence was ready to proceed as scheduled. The parties were told that the December 27, 2023, date was being vacated because the trial judge was no longer available that day. [4] The second day, January 5, 2024, was preserved. The parties were instructed to meet the Trial Coordinator and return with a replacement for the now-vacated first trial date.

[20] On November 23, 2023, the second TISF was created. Part 6 states:

Dates Suggested	Crown Available	Defence Available	Comments
December 5, 2023	Yes	No	December 5 & 6 were with a different judge so counsel would have to take both dates. Counsel not bringing an 11B App.
December 6, 2023	Yes	Yes
January 9, 2024	Yes	No
January 29, 2024	Yes	No
February 1, 2024	No	Yes
March 26, 2024	Yes	Yes

[21] As a result of meeting with the Trial Coordinator on November 23, 2023, the replacement trial dates were fixed for January 5, 2024, and March 26, 2024. The Court and the Crown were ready to deal with the trial on all dates offered between December 5, 2023, and January 5, 2024. The defence was only available on December 6, but that would have required them to be available the day before as the judicial resource [5] was available only on the 5th and 6th. When these dates were being offered, the Court and the Crown were ready to start and finish the trial before both original dates. As a result, I assess the period between December 5, 2023, and January 5, 2024, being 31 days or 1 month as defence-caused delay.

[22] As mentioned above, Mr. Lent agreed in submissions on this application that he told the Trial Coordinator that 11(b) was not an issue between January 5, 2024, and March 26, 2024. Mr. Lent went on to submit that the “problem period” in this application is the period between March 26, 2024, and November 8, 2024, being 228 days or 7.5 months.

[23] When the parties met with the Trial Coordinator on November 23, 2023, nobody knew that on November 30, 2023, Justice Wakefield would die unexpectedly and suddenly. This tragic event (the impact of which will be discussed below under the topic of Exceptional Circumstances) forced another rescheduling of the trial. On January 5, 2024, I addressed the matter in court, informing the parties that Justice Wakefield had passed and that the trial could not begin that day. I suggested that the parties preserve the March 26 date and secure a replacement for the January 5, 2024, date.

[24] On January 17, 2024, the parties met with the Trial Coordinator at which time the third (and final) TISF was created. Part 6 of that TISF reads:

Dates Suggested	Crown Available	Defence Available	Comments
February 1, 27, 29	No, No, No	No, No, Yes	11B Hearing February 26
April 11, 18, 19	No, Yes, Yes	No, No, No
May 16, 28, 31	Yes, Yes, No	No, No, Yes
August 23, 26	No, No	No, No
October 31	Yes	No
November 8	Yes	Yes

[25] The parties maintained March 26, 2024 as the first trial date. The second trial date was scheduled for November 8 resulting in the 7.5 month period that Mr. Lent characterized as the “problem period.” Given the defence waiver between January 5 and March 26, 2024, the dates offered by the Court between February 1 and 29 have no relevance to my analysis, leaving me to consider the dates starting in April.

[26] On behalf of the Crown, Mr. Levan argued that once both the Court and the Crown were ready on April 18, 2024, all delay up November 8 should be counted as defence-caused delay. I disagree, especially since the defence was available on May 31 but the Crown was not. That said, the defence was not available between April 18 until May 31, a period of 18 days or 0.6 months for which they are solely responsible. Equally, the defence was not available on October 31, which was 8 days or 0.25 months.

[27] I therefore calculate defence-caused delay between March 26 and November 8, 2024, as 0.85 months. This plus the 1 month between December and January yields a total of 1.85 months for defence-caused delay.

[28] Deducting waivers of 20.95 months and other defence-caused delay of 1.85 months, the total delay attributable to the defence is 22.8 months. Deducting this from the Total Delay of 42 months, the Net Delay in this case is 19.2 months, which is above the presumptive ceiling.

3.3: Are there any Exceptional Circumstances to Deduct from the Net Delay?

[29] Exceptional circumstances are those that lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.

[30] In the case at bar, there is no suggestion that it is a particularly complex case, being a routine drink-drive prosecution. On the other hand, I must consider whether the sudden death of the trial judge was an exceptional discrete event, and if so whether there ought to be a deduction from the Net Delay.

[31] I find that the death of the trial judge was an exceptional circumstance that I must take into consideration. No one, let alone the Crown, could reasonably foresee or avoid Justice Wakefield’s sudden passing. Nor could the Crown do anything to remedy any the caused by the event trial scheduling and judicial resources are not something over which the Crown has control. However, where there is a discrete event, mitigation of its impact on a defendant must be undertaken by the justice system, including by the judiciary. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events. Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted from the Net Delay.

[32] The impacts of His Honour’s death on this case viz-a-vis scheduling are several. First, in the circumstances it would not have mattered that His Honour cancelled the first trial date of December 27, 2023 in favour of a Chambers Day because had he not cancelled it, he still would not have been available as events later revealed. Second, if His Honour had not died, then he would have been available for both the January 5 and March 26, 2024, dates and it is reasonable to believe the trial would have concluded in the time alotted.

[33] It was submitted by the applicant that the Ontario Court of Justice should have a contingency plan for when the sudden loss of a trial judge (by death, illness, accident, or other reason) occurs. January 5, 2024 was only six weeks after Justice Wakefield died with the Christmas Holidays in between. The applicant submits that by the time of the final trial scheduling meeting on January 17, 2024, sufficient time had passed for the Court to organize itself.

[34] For the Crown, Mr. Levan submitted that is not reasonable to expect the Court to find available judges on short notice. He correctly pointed out that schedules of provincial court judges in Ontario, both full and part-time, are filled many, many months in advance. As he said, “It is not reasonable to go to the Judge Store and find a judge on such short notice.” Mr. Levan noted that Orangeville lost 50% of its judicial complement literally overnight upon the death of Justice Wakefield. I agree with crown counsel that (a) it is unreasonable to expect the court to have instant judges on immediate standby and (b) that no one should be surprised that trial dates may not be readily available on short notice in such a (thankfully) rare occasion such as this.

[35] The root cause of the delay between March 26, 2024 and November 8, 2024 is the fact that on January 5, 2024 the trial could not proceed because Justice Wakefield died only a few weeks earlier. Had there been a different reason for cancelling that date, such as a scheduling conflict with other duties of the trial judge, or some other reason peculiar to the significantly under-resourced provincial court bench in Orangeville, this delay would not have fallen under the heading of a discrete and exceptional event. Having a judge die suddenly in a two-judge jurisdiction is an altogether different situation that is clearly exceptional.

[36] The significant delay in obtaining the other trial date that had to be rescheduled following the inability to proceed on January 5, 2024, is an example of a tremendous calamity that impacted the entire legal community in Orangeville. Since Justice Wakefield’s death, the system has done its best to fill his vacancy, initially utilizing the most readily available resources, namely per diem judges but those people already had their own schedules, making it hard to find many days to offer the parties. His Honour’s position has been filled by the transfer of Justice Chaffe from Toronto commencing April 1, 2024, but, like every other judge in the province, he has obligations elsewhere that must be considered in setting trial dates here.

[37] The mitigation required because of the discrete event did not have to be perfect or lightning quick, but rather reasonable in all the circumstances. I find in the circumstances of this case that the exceptional event of the trial judge’s sudden death was one which the Court attempted to mitigate as reasonably and as soon as it could. There is no sign of a “culture of complacency” in Orangeville in the period between March 26 and November 8, 2024, when the Court and the Crown was responding to the sudden loss of half the judicial complement in a small jurisdiction. I am satisfied on this record that all parties – Crown, Court, and Defence – did what they reasonably could to preserve Ms. De Pinto’s right to be tried in a reasonable time. Therefore, I will make a deduction from the Net Delay of 6.65 months between March 26 to November 8, 2024, being 7.5 months less the defence caused delay of 0.85 months in that same time period.

[38] I therefore conclude that the Remaining Delay in this case is 12.55 months which is below the presumptive 18-month ceiling.

4.0: CONCLUSION

[39] My findings are summarized as follows:

Total Delay:	42 months
Waiver and defence-caused delay:	(22.8 months)
Net Delay:	19.2 months
Exceptional Circumstances:	(6.65 months)
REMAINING DELAY:	12.55 months

[40] The Remaining Delay is below the presumptive ceiling. The applicant did not make submissions on whether he could meet his onus should the matter fall below the presumptive ceiling.

[41] In the circumstances, the 11(b) Application is dismissed. The trial will proceed as scheduled.

Richard H.K. Schwarzl, Justice of the Ontario Court of Justice

Footnotes

[1] As per R. v. Shaikh, 2019 ONCA 895 at para. 33, the total delay is calculated in months by dividing the total number of days by 30.417.

[2] I have marked in bold those dates from each TISF where a party indicated they were available.

[3] “Comments” are notes made the Trial Coordinator while scheduling the matter with each party.

[4] During the hearing of this application, I told the parties that as Local Administrative Judge I was able to inform them that the first date was cancelled because the trial judge decided to take a Chambers Day that was owing to him.

[5] Not Justice Wakefield.