486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of ( a ) any of the following offences: (i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or ( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) . (2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall ( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and ( b ) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: April 18, 2024 COURT FILE No.: 0711- 22-71100629-00
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
James McLeod
Before Justice Glen Donald
Heard on March 25, 2024 Reasons for Judgment released on April 18th, 2024
Counsel: S. Venne................................................................................................ counsel for the Crown W. Glover....................................................................... for the defendant James McLeod
DONALD, J.:
Introduction
[1] On July 5, 2022, Mr. James McLeod (‘the applicant’) was arrested on the charges that are the subject of this application.
[2] As a result of the ensuing police investigation a single nine count information alleging four counts of uttering threats, two counts of criminal harassment, one count of voyeurism, one count of transmitting an intimate image (without consent) and one count of sexual assault was sworn the next day (July 6, 2022).
[3] Mr. McLeod has elected to be tried in the Ontario Court of Justice. His matter is presently set for a two-day trial that is scheduled for April 29 and May 13, 2024. The total delay (the period between the date the information was sworn and the anticipated completion of him trial) is 677 days.
[4] According to the timelines provided for in R. v. Jordan 2016 SCC 27, the applicant’s trial ought to have been completed by January 6, 2024. His trial will conclude, should things go as presently planned, 129 days later. Accordingly, Mr. McLeod’s s. 11(b) rights will have been violated unless 129 days or more of delay is attributable to the defence; the Crown does not assert the existence of any exceptional circumstances.
[5] The defence submits that it is not responsible for any delay in this case.
[6] The Crown submits that the defence is responsible for half of the delay between December 8, 2022 and April 28, 2023: 70 days. The Crown also says that the defence is responsible for half of the delay between July 13, 2023 and August 15, 2023: 15 days. Finally, the Crown submits that the period from February 9th to April 29th, 2024 is entirely defence delay: 80 days.
[7] Aside from its complaint about the lack of notice about, and timing of the hearing for, this application the Crown does not suggest that the conduct of the defence delayed the trial. However, the Crown submits that notice provided by the defence restricted the Crown from being able to take steps that could have resulted in an earlier trial date being offered to the defence.
[8] To determine whether any of the delay is properly attributable to the defence I will review some of the key moments of the matter’s history before this court.
- October 6, 2022 represents the date by which the applicant had fully retained counsel and obtained initial disclosure.
- On December 8, 2022 the applicant had a meeting with an assistant Crown Attorney (‘ACA’). When this meeting concluded, the ACA advised defence counsel that she would seek input from the complainant and then provide him with a position on resolution. The applicant hoped that the ACA, after meeting with the complainant, would moderate its position in some fashion that would benefit the applicant [1].
- On December 13, 2022, defence counsel appeared before Justice of the Peace Hampson and stated, “I’d ask for an adjournment to January 24th, courtroom 101, 9 a.m. for a Crown response.” The Crown did not make any submissions.
- On January 24th, 2023 defence counsel again led the adjournment request stating, “I’d ask for an adjournment to March 7, courtroom 101, 9 a.m. for continuing resolution discussions.” The Crown then confirmed that “we’re still working on the resolution part of it.”
- On March 7th, 2023, defence counsel said “We’d ask for an adjournment to April 11th for continuing resolution discussions.” The Crown was not called on for submissions.
- On April 11th, 2023 again defence counsel made the only submissions on an adjournment request stating “We’re expecting a response from the Crown following the Crown pre-trial. I’d suggest an adjournment to May 16th…”
- On May 16th, 2023, the transcript of the proceeding reveals that the defence stated “Perhaps this matter should go into the judge’s court for a judge’s intensive case management. My client is quite anxious to make progress. I’m going to suggest this Friday, May 19th.” (The May 19th transcript was not provided for consideration on this application.)
- It is common ground that, the defence was not provided with the sought response until June 13, 2023.
- On June 20, 2023, the defence appeared in Court, confirmed that they had received a resolution proposal, explained that a “date setting JPT” had been scheduled for July 13th, and stated “I’d propose an adjournment to July 18th.”
- The application record does not contain a transcript of the July 18th appearance.
- On August 22, 2023 the Crown led the adjournment request by stating “I was getting some additional input from the complainant from the judicial pre-trial. I’ve received that, so now I will be in a position to prepare the trial readiness certificate. I know it’s gone over several times, but we were kind of going back and forth as to where the complainant is. The complainant is now prepared to testify on all charges. So I will prepare that trial readiness certificate and send that over to Mr. Glover, hopefully before Friday this week.”
- On August 22, 2023 the case was adjourned because the Crown needed to review the certificate it had filed with the Court.
- On September 12th, 2023 the Court was told that counsel had chosen the first available dates available to both the Court and the Crown – April 29 and May 13. After the trial dates were selected, two dates, February 15 and March 25, were provided by the trial coordinator for the defence to pursue an application under s. 278 of the Criminal Code.
- The defence first alerted the Crown on February 9, 2024 of its intention to abandon its s. 278 application and instead use March 25, 2024 to bring a s. 11(b) application. The Court was then advised about this on February 15th, the date set aside for hearing a portion of the s. 278 application.
The Law
[9] Jordan was written to address the culture of complacency regarding delay which had developed in the criminal justice system.
[10] To combat complacency, Jordan established presumptive ceilings, designed to invigorate, and animate an accused s. 11(b) rights and fulfill the Canadian public’s expectation for timely and expeditious trials. Trials in the Ontario Court of Justice, like the applicant’s, are to be completed within 18 months unless there has been defence delay or the Crown has proven the existence of exceptional circumstances [2].
[11] In discussing its decision to adopt presumptive ceilings the Court in Jordan held as follows at para 51:
While the presumptive ceiling will enhance analytical simplicity and foster constructive incentives, it is not the end of the exercise: as we will explain in greater detail, compelling case-specific factors remain relevant to assessing the reasonableness of a period of delay both above and below the ceiling. Obviously, reasonableness cannot be captured by a number alone, which is why the new framework is not solely a function of time.
[Added emphasis mine.]
[12] In Jordan, at paragraph 60 after borrowing a passage from R. v. Morin, [1992] 1 SCR 771 "The purpose of s. 11(b) is to expedite trials and minimize prejudice and not to avoid trials on the merits.” the Court went on to say – “the defence should not be allowed to benefit from its own delay-causing conduct.”
[13] The court then described two distinct forms of defence delay - “delay waived by the defence” and “delay caused solely by the conduct of the defence”. Waivers, the court went onto say, can be either explicit or implicit but must be clear and unequivocal in either case [3]. I am mindful that, in considering periods of waiver, that it is not the right itself that is being waived but merely the inclusion of specific time periods.
Analysis
Period December 8, 2022 to May 16, 2023
[14] I will begin my analysis surrounding the issue of defence delay by discussing the period beginning with December 8, 2022 – the date where the parties agree that a “Crown Pre-Trial” (‘CPT’) was held. Undoubtedly, long before they were assigned a formal name, these sorts of meetings have long been present in the criminal justice system. In fact, I strongly suspect that these meetings, and the decisions resulting from them have long been the lifeblood of the criminal justice system – a system that, as presently resourced, lacks the capacity to accommodate a trial on the merits for each accused person. Instead, ours is a system that has become reliant on a high-resolution rate. Thus, the CPT plays an instrumental role in the criminal justice system.
[15] In this case, the evidentiary record reveals that the parties, among other things, discussed a potential resolution of the applicant’s matters short of a trial. There is nothing at all surprising about this fact given the presence of litigation risk affecting both Crown and defence. The CPT concluded without the parties reaching a final agreement. While I have been provided with some information about the context of the discussions and outstanding issues, in my view, a holistic examination of the circumstances is warranted.
[16] The applicant was out of custody on bail facing a nine count Information. The allegations, which include a count of sexual assault, are matters involving allegations of personal violence. The Crown advised the defence that it needed input from the complainant before being able to conclude the discussions. The defence submits that it bears no responsibility for the period of delay following this meeting. While there is nothing in the record which would allow for a different conclusion, the more pertinent inquiry is whether the defence acquiesced to it.
[17] Several individual factors coalesce in a fashion where I can only conclude that the defence implicitly, but clearly and unequivocally, waived delay over a period beginning December 8th, 2022.
[18] First, at least as of this day, the applicant had disclosure, a Crown screening form (‘CSF’) and had retained counsel. Put differently he was well positioned to assess the case against him and appreciate the legal jeopardy he faced. There is no suggestion anywhere, either in evidence or submissions, that he was unable to responsibly set his matter for trial. This invites the inference that, over this period, he prioritized seeking a potential resolution (avoiding a trial) over asserting his right to be tried within a reasonable time.
[19] From my vantage point, there is nothing novel or surprising about the applicant’s behaviour during this period. Trials are fraught with uncertainty and the applicant, through counsel, was undoubtedly looking to mitigate the risks associated with one. He did so by embarking in negotiations with the Crown to obtain an outcome more favourable to him than the one set out on the CSF. In response to the defence request, the Crown indicated that they needed time to provide the applicant with an answer.
[20] While it would have been preferrable for the Crown to have been able to provide the defence a response more quickly than it did, it goes without saying that it was open to the defence, at any stage, to terminate the discussions and/or set the matter for trial. On this record, there is no suggestion that these options were mutually exclusive. I have been left to infer that the defence took the view that setting the matter for trial may, in some way, disadvantage them in their ongoing resolution focused discussion.
[21] Second, a review of the language used by the applicant’s counsel over the next several court appearances, as reviewed above, leaves no room for misinterpretation. On three occasions, including the one made on April 11, 2023, it was the defence who made the application for an adjournment. The other request was a joint request. In each instance, the adjournment was to allow for the discussion which began on December 8, 2022 to crystalize with an offer.
[22] In an email sent to the Crown on April 28 defence counsel writes “Mr. McLeod has been patiently awaiting a resolution proposal from the Crown since that date [December 8, 2022].” [Emphasis mine.] There is no mention in this email about 11(b) or of his interests of having a trial in a reasonable time. Therefore, I can only conclude that these interests were secondary to his interest in securing a favourable resolution without a trial.
[23] On May 16, 2023 there is a marked change in the applicant’s submissions in relation to the adjournment request. The submissions of counsel from court appearance, the very short (three day) adjournment and the transfer, at the request of the defence, to “the judge’s court” are such that beyond this date, I can no longer be satisfied that the defence was clearly and unequivocally waiving delay. Counsel’s submissions deliver the message that the applicant’s patience had waned significantly since April 28th.
[24] To be certain, I would be inclined to find that the implicit waiver continued until the defence was provided with a negative response from the Crown in June. However, after the May 16th, 2023 court appearance that picture becomes significantly less clear. The result, in my view, is that I can no longer find the implicit waiver to be clear and unequivocal.
[25] Third, the timing of defence counsel’s notice of a s. 11(b) argument, which did not come until after the matter’s Jordan date had passed, is a strong indication that the applicant’s right to a trial within a reasonable time had not been a concern for the applicant throughout the entirety of history before this Court on these allegations. This is especially so, given the affidavit evidence from Ms. Swales which indicates that in July of 2023 the pre-trial Judge, who was in no position to appreciate the existence of the implied s. 11(b) waiver, apparently suggested that a date needed to be set on an urgent basis [4]. That the defence, having heard the direction from a judge, for many months took no steps to advise the Court or the Crown of its intention to seek an 11(b) remedy is telling. In my view, the nearly seven-month delay between the reminder from the pre-trial judge and any notice of an intention to bring the delay application is itself strong evidence that the defence was aware, at least in those moments, that it had acquiesced to some delay earlier in the proceedings.
[26] In an affidavit filed on these proceedings, the applicant asserts “I have never been asked by anyone to waive delay in these proceedings and have never agreed to waive delay.” In the same affidavit, the applicant asserts his diligence with respect to retaining counsel and remaining in regular contact with his lawyer. His affidavit is silent with respect to his instructions to counsel related to resolution. He makes no complaint about his lawyer’s conduct, and he continues to use the lawyer he retained nearly immediately after his arrest in July 2022. Thus, while I accept that he never explicitly waived delay, I continue to be satisfied that his implicit waiver was clear and unequivocal for the majority of the time while he awaited a response to resolution of the matter that he viewed as favourable or acceptable.
[27] For all of these reasons, I conclude that the 159-day period from December 8, 2022 to May 16, 2023 was an implicit, clear and unequivocal, waiver that must be deducted from the total delay. While this finding alone is dispositive of this application, I will continue to examine the other time periods where the Crown has suggested the existence of a form of defence delay.
Period July 13 – August 15, 2023
[28] The Crown takes the view that the defence shares responsibility for the delay for the period of July 13, 2023 to August 15, 2023. Simply put, I disagree. I am unable to find an unequivocal implicit waiver by the defence and would not say that the defence caused this period of delay.
[29] I appreciate that defence counsel plays an important role in the preparation of the trial readiness certificate, a prerequisite to setting a trial date. However, the presumptive ceiling established in Jordan recognizes the applicant’s need to make full answer and defence and accounts for adjournments of this exact sort: procedural requirements.
Period September 12, 2023 – May 27, 2024
[30] Following the setting of a trial date, the defence did not provide any notice of its intention to bring an 11(b) application until February 9, 2024. The defence accepts that the timing of its application does not comply with the requirements of the Ontario Court of Justice’s November 1, 2023 “Jordan Compliant Trial Scheduling” practice direction. However, Ms. Swales’ affidavit highlights that the practice directive makes “no mention of a procedure for matters which had already been scheduled for trial”.
[31] Among its other laudable objectives this directive (as it relates to the scheduling of s. 11(b) applications) is plainly concerned and directed at optimizing the use of valuable court time. In my view, as it relates to the timing of s. 11(b) applications, it simply formalized core thematic components of the direction first given by the Supreme Court in Jordan which, at paragraph 113, “encourages the defence to be part of the solution” and, at paragraph 117 “encourage[es] all justice system participants to be more proactive”. [Emphasis mine.] This theme was repeated and developed the first paragraph of R. v. Cody 2017 SCC 31, [2017] SCJ No. 31, a decision which quickly followed Jordan, in which the Court stressed that “every actor in the justice system has a responsibility to ensure that criminal proceedings are carried out in a manner that is consistent with an accused person’s right to a trial within a reasonable time.”
[32] In 2022 the Supreme Court returned, yet again, to consider the issue of delay in R. v. J.F. [2022] SCC 17. This time in discussing the importance surrounding the timeliness of s. 11(b) applications, at paragraph 36 the Court held:
In short, a duty to act proactively also rests on the accused. As a result, the accused must indicate that their right to be tried within a reasonable time has not been respected and, where the circumstances require, bring a motion for a stay of proceedings in a timely manner. As a general rule this means before the trial is held. By the time the trial dates are set, the parties are generally in a position to know whether the trial delay will exceed the applicable presumptive ceiling, and the defence can raise any concerns it may have. However, it is not out of the question that, exceptionally, an infringement of the s. 11(b) right will reveal itself only once the trial has begun. In such a case, the accused must act proactively."
[33] Then at paragraph 56 the Court observed:
Lateness in taking action impedes the proper administration of justice and contributes to maintaining inefficient practices that have a negative impact on the justice system and its limited resources (Jordan, at paras. 41 and 116). Because the prospective approach adopted in Jordan allows the parties to know from the outset what time is reasonable for their proceedings, they have a responsibility to take proactive measures to prevent that time from being exceeded. This responsibility lies upon both the Crown and the defence. An accused who sees delay lengthening must act reasonably and expeditiously (Jordan, at para. 85).
[34] Jordan was designed to be a landmark decision. In many respects it has transformed the face of the criminal justice system since its release eight years ago. It has been revisited and refined several times by the Supreme Court of Canada alone. In this context, it is difficult to understand how defence might have been in a quandary because the practice direction from November 1, 2023 was silent as it related to a matter that had already been set for trial upon its release. There is nothing novel about a bring forward application.
[35] In this case, the inaction and failure to be proactive by defence prevented the Crown from being able to mitigate the delay by seeking an earlier trial date or alternatively by adding the matter onto an existing trial date in a process that is commonly known as “stacking”. I wish to be clear, I do not ascribe, suggest or impute any nefarious intent to the defence in the conduct of this case generally or in relation to this application. Not unusually, the defence strategy changed from resolution oriented to trial focused when the Crown rejected the defence resolution position. I cannot help but wonder whether this transition, from cooperative (resolution focused) to fully adversarial (trial preparation) along with the passage of time contributed to the applicant’s apparent revisionist history related to the periods of delay.
[36] The Crown points to a number of decisions, R. v. Kullab 2023 ONCJ 458, R. v. Nigro 2023 ONCJ 41, R. v. Wang 2023 ONCJ 177 which have held that where the defence does not raise the issue of delay when the trial date is set and thus prevents the Crown from being able to mitigate it, that a significant part of the delay is properly attributable as defence delay. I adopt the approach of my colleagues, which is entirely consistent with the clear theme established by the Supreme Court of Canada in the trilogy of cases referenced herein: The defence cannot derive a benefit from its own delay causing inaction (Jordan at para 112). In my view, the “fair and reasonable” approach is also the one adopted by my colleagues in these decisions. Therefore, I will apportion 50% of the time from date setting to the conclusion of the trial as defence delay.
[37] There are 259 days between September 12, 2023 and May 27, 2024 (inclusive). As a result, I find a further 129.5 days of defence day.
Summary
[38] The total delay is 677 days. I deduct 159 for the clear and unequivocal implied waiver of delay while the defence “patiently awaited” for a favourable resolution that did not materialize as they hoped. I also deduct 129 (rounded down) days for the failure of defence to raise s. 11(b) concerns in a timely way as required by Jordan, Cody and J.F..
[39] The “net delay” (Cody para 22) is 389 days, just slightly less than 13 months; a delay well below the presumptive ceiling.
[40] For all of these reasons this application is dismissed.
Released: April 18, 2024 Justice Glen S. Donald
Footnotes:
[1] During oral submissions, the defence expressed concern about the appropriateness of the Court having been advised that the defence sought a resolution that involved a guilty plea to some, but not all, of the charges but did not otherwise dispute the fact. Should this matter proceed to trial, like evidence that is sometimes excluded at trial, this fact will have no bearing on the outcome of this case.
[2] R. v. Jordan 2016 SCC 27, [2016] 1 S.C.R. 631 paras 46 and 47
[3] Ibid at para 61
[4] Affidavit of Jessica Swales at para a