ONTARIO COURT OF JUSTICE DATE: 2024 04 08 COURT FILE No.: BRAMPTON 22-2460

BETWEEN:

HIS MAJESTY THE KING

— AND —

JUN WANG

Before Justice A. R. Mackay Heard on December 19, 2023 Application dismissed Orally on December 19, 2023 with Written Reasons to Follow Reasons for Ruling on s. 11(b) Charter Application released on April 8, 2024

Devyn Noonan ......................................................... counsel for the Crown / Respondent Edward Sullivan………..……………………………….…. for the Defendant / Applicant

MACKAY J.:

Introduction

[1] Mr. Wang was charged with sexual assault on February 20, 2022. The Applicant has brought an 11(b) application alleging that his right to be tried within a reasonable time was breached and requests a stay of the proceedings. The Application was argued on December 19, 2023, and I gave an oral decision advising written reasons were to follow. These are those reasons.

[2] Section 11(b) of the Charter guarantees that any person charged with an offence has the right “to be tried within a reasonable time.” In R. v. Jordan, 2016 SCC 27, the Supreme Court identified a presumptive ceiling of 18 months for trials to be completed in the Ontario Court of Justice.

[3] The total period of delay from the date the Information was sworn - March 2, 2022 - to the last scheduled day of the trial date of May 10, 2024 - is 802 days or 26.35 months. The law is clear that the section 11(b) clock starts from the time the Information is sworn, not the date of the arrest. R. v. Allison, 2022 ONCA 329.

[4] The following is the history of the proceedings. On the first court date of April 8, 2022, initial disclosure was not provided. The Defence requested disclosure both before and after this date by using the ‘Virtual Crown’ email, an email manned by the administrative staff. Counsel requested the matter go over for 8 weeks.

[5] On June 10, 2022, on the second appearance, counsel advised that initial disclosure was still outstanding, and counsel requested the matter be adjourned to August 12, 2022. On June 22, 2022, initial disclosure was received.

[6] On the third appearance on August 12, 2022, counsel requested a 3-week adjournment to September 2, 2022 to conduct a Crown pre-trial (CPT). On the same date further disclosure was received.

[7] Defence counsel advised that on August 30, 2022, a CPT was held.

[8] On September 2, 2022, the fourth appearance, counsel requested an adjournment to schedule a judicial pre-trial (JPT); the matter was adjourned to November 18. Counsel, however, did not schedule a JPT until approximately a month later, on October 4th. It was originally scheduled for November 9, 2022 but on the same day it was rescheduled to December 6, 2022.

[9] Counsel attended on November 18, advised the court of the upcoming JPT and asked for the next available date, which was January 20, 2023.

[10] On December 6, 2022, the judicial pre-trial was held, and further disclosure was provided. The following day the trial time estimate form was forwarded to counsel, however, counsel waited approximately six weeks to book the trial scheduling conference.

[11] On January 20, 2023, counsel confirmed that a trial scheduling conference had been booked for February 1. The trial scheduling conference was held, and trial dates were scheduled for May 8 to May 10, 2024. Neither the Crown nor Defence were available for two earlier dates in February of 2023. Stage 1 and Stage 2 dates for a s. 278 Application were also scheduled with reference to the trial date.

[12] When the trial was set, the dates were approximately 15½ months away. Defence counsel at that time did not indicate that they would be bringing an 11(b) application, rather counsel advised he would seek instructions and notify the Crown.

[13] On September 18, 2023, seven months after the trial date was set, counsel advised the Crown that they would be bringing an 11(b) Charter application.

The Jordan Delay Analysis

[14] The Supreme Court set out the framework to apply when determining whether a s. 11(b) Charter violation has been established. (Jordan at paras. 63-64).

[15] In accordance with Jordan, I turn first to determine what amount of defence delay, if any, should be deducted from the total delay.

DEFENCE DELAY

[16] Defence delay consists of two components: (1) delays where the defence has explicitly or implicitly waived s.11(b), and (2) delays caused solely by the conduct of the defence. The latter consists of tactics deliberately employed to cause delay, or instances where the defence is unwilling or unable to proceed when the Court and Crown are ready to proceed. Defence actions taken to legitimately respond to charges do not constitute defence delay. (Jordan at paras. 60-65; R. v. Cody, 2017 SCC 31 at paras. 29-30).

[17] The following are time periods which I found to be defence delay. It took defence about five weeks to schedule a Crown pre-trial after receiving initial disclosure. I would apportion about three weeks to defence for not scheduling a Crown pre-trial sooner. Two weeks should be a sufficient amount of time to review disclosure.

[18] I am also deducting 30 days as defence delay for not scheduling the JPT following the Crown pre-trial. I am also deducting an additional six weeks for counsel’s delay in scheduling a trial scheduling conference. The trial scheduling conference was scheduled in and around January 20, 2022. The defence delay at this stage of the analysis amounts to 93 days.

Defence Duty to Advise of 11(b) Application

[19] The central period of delay on this application is from February 1, 2023 – the setting of the trial date – to the anticipated end of the trial, May 10, 2024: 464 days or 15 months and 9 days.

[20] I now turn to determine whether a portion of the time period after the trial date was set, up until the defence notified the Crown that 11(b) was in issue, should be deducted as defence delay. Defence did not advise the Crown for 7 months after the trial date was set that 11(b) was in issue on September 18, 2023. At this point in time 18 months had passed since the swearing of the Information. The Crown submits that the Applicant should be responsible for 50% of this delay.

[21] A set date took place after the trial date was scheduled and prior to September 18, 2023 and the Applicant did not voice any 11(b) concerns.

Related Caselaw

[22] I agree with Justice Monahan’s review of the law in R. v. Kullab, 2023 ONCJ 458 that the Supreme Court of Canada has been clear that defence counsel have an obligation to raise 11(b) concerns with the Crown and the Court in a timely fashion. (Jordan, Cody, and more recently, R. v. J.F., 2022 SCC 17).

The Supreme Court in J.F. observed that the Court in Cody held that “the defence may not benefit from its own inaction or lateness in taking action, it must act proactively.”

[23] In addition, the Supreme Court concluded that defence counsel are expected to actively advance their clients’ right to a trial within a reasonable time, “collaborate with Crown counsel were appropriate and… use court time efficiently”. (J.F. at para. 33, citing Cody at para. 33 and Jordan at para. 138).

[24] When it is clear that the time to trial in a particular case is approaching the presumptive ceiling, an accused person must respond in a ‘proactive manner’ and in some circumstances file an 11(b) motion. (J.F. at paras. 34 and 36).

[25] Recently in R. v. Nigro, 2023 ONCJ 41, Justice West held that the defence can no longer benefit from hiding “in the weeds” and sit silent about an 11(b) issue for months without raising it with the Crown and the Court at a point in time when it is too late for the Crown to rectify the situation. Such an approach “is entirely contrary to the new framework created in Jordan, which encourages proactive, collaborative participation by all participants in the administration of justice designed to prevent delay from occurring in the first place.” In Nigro, the Court found that failing to raise 11(b) until the 11(b) application was filed a few months before trial, demonstrated a marked indifference toward delay. Following R. v. Boulanger, 2022 SCC 2, the Court attributed half of this period as defence delay.

[26] There are a number of jurists in Brampton who have followed the reasoning in Nigro. In R. v. Ahmed (unreported), where trial dates were set outside the Jordan ceiling and the defence failed to raise section 11(b) concerns until nine months later, Justice Caponecchia attributed 50% of this time as defence delay.

[27] In R. v. A.D. (unreported), where the defence failed to raise any s. 11(b) concerns for 10 months after trial dates were set, Justice Lai attributed 50% of the time as defence delay. In R. v. MacDonald (unreported), counsel did not notify the Crown that 11(b) was in issue for 190 days following the setting of the trial dates. Based on similar reasoning in Nigro, Justice Daviau attributed 50% of the delay to the defence.

Application to the case before me

[28] I would agree with the Crown that had the Applicant attempted to seek an earlier trial date, the Respondent could have reached out to the Trial Co-ordinator to see if this was possible. However, once the Crown was notified, it did not make any effort to bring the matter forward.

[29] For the period in which the Applicant did not notify the Crown that they would be bringing an 11(b) application I apply the reasoning in Nigro: I am deducting half of the time period as defence delay, 231.4 days from the total delay, this will amount to 115 days. However, I will add back 14 days as this would be a reasonable period of time for the defence to review their file and seek instructions prior to deciding whether to bring an 11(b) application. Defence delay under this category is 101 days.

[30] Adding the two areas of defence delay, 93 days and 101 days, is 194 days. The total net delay would be 608 days or 19.98 months. This is above the presumptive ceiling.

Exceptional Circumstances

[31] I then turn to consider whether there has been delay caused by discrete exceptional circumstances. Delay caused for exceptional circumstances is to be deducted from the total delay to determine if the ceiling has been reached. (Jordan at paras. 46-48).

[32] The Crown and the justice system should attempt to mitigate, if possible, any delay resulting from a discrete exceptional circumstance. The Crown and the justice system need to prioritize cases delayed by unforeseen events. If that does not occur when it reasonably could have, then the entire period of delay occasioned by the discrete exceptional event may not be deducted from the total delay. (Jordan at para. 75).

[33] Reliance on the pandemic as a discrete exceptional circumstance requires that the Crown took reasonable steps to mitigate the delay it caused. That said, the Crown is not obliged to prioritize one individual case over another where thousands of matters were adjourned and await a trial. So long as the Crown can point to having made prompt resort to remote case management processes to get the matter back on track and rescheduled, this will generally be sufficient to establish the reasonable diligence requirement. (See: R. v. Simmons, 2020 ONSC 7209; R. v. Robinson, [2021] O.J. No. 1796).

[34] The Crown and Trial Co-ordinator’s Office have often prioritized more serious cases in the last few years when 11(b) issues were raised. (Kullab at para. 37).

[35] Most jurists have acknowledged that closing the courts during the pandemic resulted in a backlog in scheduling and rescheduling cases. In many instances courts characterized this delay as being part of the exceptional circumstance. It has been close to four years since the courts were first closed to combat the pandemic. I am aware that a number of processes were instituted to deal with the backlog. One included creating the “disclosure hub”. This enabled counsel to obtain disclosure online. In several cases this has resulted in disclosure being delayed. Another process instituted to deal with the backlog, was requiring counsel to book trial dates remotely at a trial scheduling conference.

[36] I have taken into account that some of the delay was the result of the backlog from the pandemic and that the above processes were necessary at the time they were instituted and have proven to work well for all the parties. In other cases, some judges including myself have deducted 14 days for this type of delay due to exceptional circumstances associated with the pandemic: see R. v. B.D., 2023 ONCJ 224; R. v. G.S., 2022 ONCJ 427; and R. v. S.C., 2022 ONCJ 486.

[37] While the Applicant should have notified the Crown that it would bring an 11(b) application much earlier in the proceedings, once the Crown was notified, no steps were taken by the Crown to see if earlier dates could be offered. Given these circumstances, I am of the view that the Crown cannot rely on the delay being attributable to the exceptional circumstance.

CONCLUSION

[38] Therefore, not deducting any further time as exceptional circumstance, the time to trial in this case is above the presumptive ceiling and as a result I find that the Applicant’s 11(b) Charter right to a trial within a reasonable time was breached. In the result the charge is stayed.

Released : April 8, 2024 Signed: Justice A.R. Mackay