Court and Parties

DATE: April 30, 2024 ONTARIO COURT OF JUSTICE Toronto

BETWEEN: HIS MAJESTY THE KING — AND — MOHAMED OSMAN

For the Crown: C. McNeill For the Defendant: E. Sinclair Heard: April 18, 2024

REASONS for JUDGMENT on 11(b) APPLICATION

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

[1] On December 29, 2021, Mr. Osman was arrested for impaired operation of a motor vehicle and “over 80”. He was released on a promise to appear. Barbara Anderson swore the information against Mr. Osman on February 1, 2022.

[2] After several appearances, a Crown pretrial and a judicial pretrial, a 2-day trial date of June 14 and 15, 2023 was set.

[3] Because of a death in the prosecutor’s family, these trial dates were cancelled, and new dates were eventually scheduled for February 20 -21, 2024.

[4] The applicant’s case was not reached on February 20, 2024, and a third trial date of April 30, 2024, was scheduled that day.

[5] The total delay from the date of the swearing of the information to the anticipated end of the trial on May 1, 2024, is 822 days, or 27 months and 12 days.

[6] Mr. Osman brought an application for a stay of proceedings, before me, the scheduled trial judge, which was argued on April 18, 2024. On or about April 22, 2024, I emailed counsel and told them that I had decided to stay the proceedings and on April 30, 2024, I did so formally on the record. These are my reasons for doing so.

B. THE PROPER APPROACH TO 11(B) CLAIMS

[7] Our Court of Appeal has neatly summarized the modern, post- Jordan approach as follows in R. v. Coulter, 2016 ONCA 704 at paras. 34-40:

Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).

Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, at para. 66).

Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).

If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).

If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).

If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).

C. THE HISTORY OF THE PROCEEDINGS

(a) Introduction

What follows are what I believe to be the relevant milestones of this case’s progress. I will highlight the parties’ positions with respect to the delay occasioned along the way.

(b) From the swearing of the information to the judicial pretrial of August 4, 2022

[8] This period accounts for 184 days. The parties agree that the great majority of that delay contributes to net delay. Ms. McNeill argues that 10 of those 184 days are properly characterized as defence delay. Mr. Sinclair disagrees and argues that none of the 184 days is defence delay.

(c) From the judicial pretrial to the aborted first trial dates of June 14-15, 2023

[9] This period accounts for a further 314 days.

[10] Ms. McNeill argues that 92 of these 314 days are properly characterized as defence delay. Mr. Sinclair concedes that 8 of these 314 days are defence delay.

(d) The adjournment of the first trial date of June 14-15, 2023 to the second trial date of February 20-21, 2024

[11] This period accounts for a further 252 days.

[12] Ms. McNeill argues that 103 of these are defence delay and the balance, 149 days, are attributable to the death of her grandmother - a discrete unforeseeable event. Mr. Sinclair concedes that 30 days of this period are defence delay. He argues that only 30 days ought to be considered as delay attributable to the discrete event.

(e) The adjournment of the second trial date of February 20, 204 to the last day (May 1) of the third trial date of April 30, 2024

[13] This period accounts for a further 73 days of delay.

[14] Ms. McNeill argues that 21 of these days are defence delay. Mr. Sinclair argues that none of this delay is defence delay.

D. ANALYSIS

(a) What is not in dispute

[15] The parties quite correctly agree that the net delay is to be determined by calculating the total delay then deducting delay attributable to defence delay then deducting any delay attributable to the death in Ms. McNeill’s family. They also agree that this is not a “complex case”.

[16] The parties roughly agree that the total delay is 821 days. (Mr. Sinclair calls it 822 days. Ms. McNeill calls it 820 days. As will become apparent, this discrepancy is of no moment.)

(b) Defence delay

[17] “Defence delay” is defined in Jordan, 2016 SCC 27, in two paragraphs. At paragraph 63 it is defined as “delay caused solely by the conduct of defence” (emphasis added). Such conduct is further defined in that paragraph as “situations where the accused’s acts either directly caused the delay”…or “are shown to be a deliberate and calculated tactic employed to delay the trial” (emphasis added). At paragraph 66 it is defined anew as “delays waived by the defence, and delays caused solely or directly by the defence’s conduct” (emphasis added).

[18] Jordan speaks to the issue of how to characterize delay caused by defence’s unavailability when trial dates are set. At paragraph 64 the Court says: “…the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The delay resulting from this period of unavailability will be attributable to the defence.”

[19] R. v. Pyrek, 2017 ONCA 476 deals decisively with this issue. In Pyrek, the accused sought an adjournment of his first trial date after receiving late disclosure of a pertinent expert report that the Crown sought to rely on. The adjournment was granted and new dates were set. The Crown and the court were available on relatively early dates that were not available to defence counsel. The trial judge, albeit applying the law as it was pre- Jordan, attributed 1 ½ months of the ensuing delay to the defence and ultimately dismissed the accused’s 11(b) application. The accused appealed and the Court of Appeal reviewed the trial judge’s ruling in light of Jordan which had been released in the interim. Even though the Court of Appeal upheld the trial judge’s decision to dismiss the 11(b) application, the Court of Appeal held that the trial judge’s attribution of 1 ½ months of delay to the defence as a result of his counsel’s unavailability when the second trial dates were set did not accord with the new law as set out in Jordan. In the Court’s view, it could not be said that this delay was “defence delay” as defined in Jordan because it had not been caused “solely by the conduct of the defence”. Pyrek, supra, at para 21.

[20] Even though Pyrek was a “transition case” i.e., one decided by the Court of Appeal after Jordan, where the charges predated Jordan, the Court considered the very issue before me, viz, is defence counsel’s unavailability for an earlier date for a second trial “defence delay” as defined in Jordan, where the first trial dates were adjourned through no fault of the defence. The Court ruled that it was not.

[21] The Supreme Court of Canada in R. v. Godin, 2009 SCC 26, dealt with this very issue, albeit well before Jordan. It held that when it came to rescheduling dates for an aborted preliminary hearing, “scheduling requires reasonable availability and reasonable cooperation. It does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability.” Godin, supra, at paras. 21-23.

[22] Ms. McNeill argues that post Jordan, Godin is no longer good law. I disagree, for the reasons articulated by my brother Burstein J. in R. v. Zikhali, 2019 ONCJ 24, where he writes at paras. 19 - 20:

There are a number of pre- Jordan cases which had addressed the issue of allocating delay where a trial had to be rescheduled because it was not completed when expected, such as R. v. Godin, 2009 SCC 26, R. v. Brace (2010), 2010 ONCA 689, 261 C.C.C. (3d) 455 at paras. 14-16 (Ont. C.A.); R. v. Satkunanathan (2001), 152 C.C.C. (3d) 321 at paras 43-5 and 54-5 (Ont. C.A.); R. v. M.(R.) (2003), 180 C.C.C (3d) 49 at paras. 6-9 (Ont. C.A.); R. v. W.(A.J.) (2009), 2009 ONCA 661, 257 O.A.C. 11 at paras. 29-43; and R. v. Tran, 2012 ONCA 18, [2012] O.J. No. 83 (C.A.). Two principles seemed to emerge from this line of cases, beginning with the passage at paragraph 23 of the Supreme Court of Canada's decision in Godin. First, it would be unfair to fault a defendant for not having retained counsel with a wide open trial calendar in the event that the trial could not be completed on the dates originally scheduled. To avoid being saddled with responsibility for delay when rescheduling a trial, the defence must have "reasonable availability", not complete availability. Second, there is no set formula for apportioning responsibility for delays occasioned by an unexpected need to schedule further time to complete a trial. Rather, the apportionment of responsibility for "rescheduling delay" involves an exercise of discretion premised on the specific features of a case.

In the aftermath of Jordan, some have questioned whether the Godin approach to apportioning responsibility for scheduling delay remains good law. That issue was very recently considered by the Ontario Court of Appeal in R. v. Albinowski, 2018 ONCA 1084 (at paras. 28-35). Writ-ing for the Court in Albinowski, Roberts J.A. refused to accept that the oft-cited passage in Godin had been implicitly overtaken by the Supreme Court's decision in Jordan. Rather, Roberts J.A. recognized that the approach advanced in Godin was premised on two specific features of that case; namely, "the Crown's responsibility for the need to reschedule and the attempts by the defence to expedite the proceedings". In another very recent appellate decisions, the Newfoundland Court of Appeal in R. v. King, [2018] N.J. No. 366 (C.A.) (at para. 108), has held that the "common sense" approach to assessing responsibility for scheduling delays advanced by the Supreme Court in Godin "still applies after Jordan". In view of these two recent appellate decisions, I am satisfied that the Supreme Court's approach in Godin continues to govern an assessment of responsibility for delays occasioned by "the need to reschedule" a case.

[23] The modern approach to assessing to what degree the defence is responsible for delays in setting trial dates is found in R. v. Boulanger, 2022 SCC 2 and R. v. Hanan, 2023 SCC 12. At paragraph 9 of the latter case the Court states: “All relevant circumstances should be considered to determine how delay should be apportioned among the participants”.

[24] There is no doubt that defence counsel cannot lie in the weeds, saying nothing while hoping that the 18-month Jordan threshold is exceeded, only to pounce with an 11(b) application at the last minute. R. v. J.F., 2022 SCC 17. Ms. McNeill argues that Mt. Osman did just that by saying nothing about 11(b) until after his third trial date was set.

[25] I am not persuaded by this argument.

[26] Counsel for Mr. Osman did not set the second trial date in the knowledge that the chosen date would result in an 11(b) stay of proceedings. Proof of that is that he did not bring an 11(b) application prior to February 20, 2024, the second trial date. Rather, he simply came to court prepared for his trial. He must have believed that any such application would be dismissed. As concerns the setting of his third date, anything defence counsel might have said at that juncture would not have mattered. Early dates were set. And then, defence filed its 11(b) motion with alacrity. What’s more, as I discuss below, the Court and the Crown mishandled the February 20 trial date so badly, that it would be absurd to attribute any of the delay between the second and third trial to the defence.

(i) The setting of the first court date

[27] As concerns the setting of the first trial, scheduled for June 13, 2023, I must first deal with the brief delay in setting a judicial pretrial (10 days). On July 7, 2022 the Court offered July 25, 2022 for a judicial pretrial. The Crown was available yet defence counsel chose August 4, 2022, 10 days after the first available date for the judicial pretrial.

[28] According to Mr. Sinclair, and as reflected in the supporting material, this decision was made because defence counsel had not yet received the RIDE trailer video when the judicial pretrial date was chosen. They had made diligent efforts to secure this video which was not part of the initial disclosure package. They wanted to maximize the likelihood that the video, a key piece of disclosure, would be available before the judicial pretrial. As it turned out, the video was disclosed on July 18, 2022.

[29] In my opinion, defence counsel’s decision to take the later judicial pretrial date was a reasonable one in the circumstances and is not defence delay.

[30] On August 8, 2022, after the judicial pretrial, counsel for the defence and the Crown participated in a conference call with the trial coordinator with a view to scheduling the two-day trial. June 13 and 14, 2023 were chosen.

[31] What exactly occurred during this conference is difficult to discern. The only evidence before me is a somewhat cryptic, and incomplete Trial Scheduling Form prepared by the Trial Coordinator. Neither of the participants from either the Crown or defence testified.

[32] There are three relevant lines entered into this document in a box entitled “PART 6: TRIAL/PRELIMINARY INQUIRY SCHEDULING”. The first line, under the heading “Dates Suggested” says “March 13 & 14, 2023”. Under the next heading “Crown Available” it says “yes”. Under the third heading “Defence Available” there is an “x”.

[33] The second line says “March 20 &21, 2023….yes….x.

[34] There are no further notations under “Dates Suggested”, “Crown Available” or “Defence Available”. In a separate “Comments” section to the right of and below the two lines reference above one finds the following notation: “* n.b.: Csl. n/a until June 13, 2023”

[35] Mr. Sinclair and Ms. McNeill agree that I should infer that the first date offered by the Court was March 13, 2023, and that the Crown was available yet the defence was not. Likewise, re the next March dates.

[36] As concerns the period between March 20 and June 14, 2023 Ms. McNeill urges me to infer that the Trial Coordinator did not bother to offer or catalogue dates after March 20 because the defence representative pre-empted this by announcing that defence was unavailable until June 13, 2023. She also invites me to infer that the Crown was available throughout that period.

[37] Mr. Sinclair seems to concede that indeed the defence representative did signal their unavailability until June 13, 2023, but he submits that there is no support for the inference that the Crown was available throughout the period bounded by March 20 and June 14.

[38] In my opinion, the fairest way to deal with the ambiguity of this document is to attribute the delay between March 13 and March 20 (7 days) to the defence and 50% of the delay between March 20 and June 14 to the defence, i.e. a further 42 days for a total of 49 days.

(ii) The setting of the second trial date

[39] After the first trial was adjourned, the parties and the Trial Coordinator conferred on the phone on July 4, 2023, with a view to scheduling the second trial date.

[40] The only evidence as to what transpired during this call is another Trial Scheduling Form, much like the first one. This form supports the inference that the first date offered by the Court was November 9, 2023. The “x” under the heading “Crown Available” for the dates offered in November and December is ambiguous. Does it mean “yes” or “no”?

[41] In my opinion, because of the intervening Christmas break it is reasonable and fair to attribute 40% of the 10-week period between December 7, 2023 and February 20, 2024 to the defence, i.e. 4 weeks, or 28 days.

(iii) The setting of the third trial date

[42] No Trial Scheduling Form was entered into evidence as concerns the setting of the third trial date.

[43] Rather, there is an email sent to both parties by the Trial Coordinator that leads me to conclude that counsel were able to attend at the Trial Coordinator’s office in person on February 20, 2024. The Crown was not available until April 3, 2024. The defence was not available April 3-18. The Crown was not available for an April 18 trial offer although the defence was. The Crown was available for an April 24 - 26 trial offer, yet the defence was not. April 30, 2024 was agreed upon.

[44] In my opinion, it is unreasonable and unfair to attribute any of the delay between February 20 and May 1, 2024 to the defence. This period of delay is primarily because the Crown failed to call the case on February 20, presumably because it chose to prosecute other matters instead. The Court shares this blame for not providing sufficient court space.

[45] Defence counsel must be reasonably available in the selection of trial dates. It is not reasonable to expect defence counsel to be available so quickly after the lost February 20, 2024, trial date.

(c) Delay attributable to the discrete event

[46] Jordan makes clear that delay attributable to unforeseen events is to be deducted from the total delay where the Crown demonstrates that it took reasonable steps to avoid and address the problem where possible to have done so, even if those steps were not successful. Where the Crown could not have reasonably mitigated the delay caused by the exceptional event, that delay is to be subtracted from the total delay. R. v. Jordan, supra, at paras. 69-75.

[47] As a result of the death of Ms. McNeill’s grandmother, the trial could not proceed on June 14, 2023. Ms. McNeill tried her hardest to find another prosecutor, which demonstrates an attempt to mitigate the delay caused by this unforeseeable event, but there is no evidence that the Crown, or the Court took any steps to schedule the second trial date other than in the normal course. No priority was assigned to the case. One need only look to how quickly a third trial date was made available to see that it was within the power of the Crown and the Court to prioritize the case after the adjournment of the first trial date.

[48] Ms. McNeill argues that in June of 2023, there was still such a large COVID backlog that prioritizing the case was impossible without jeopardizing other defendants’ 11(b) rights. No evidence was called to support this proposition and I am not prepared to take judicial notice that COVID played a role in the delay in setting a 2024 date in the summer of 2023. Cf. R. v. Agpoon, 2023 ONCA 449

[49] In my estimation, a reasonable deduction for this discrete event is 70 days which is the gap between February 20, 2024, the second trial date, and April 30, 2024, the third trial date. I believe that proper mitigation of the discrete event would have given rise to a second trial date as close to the first trial date, as is the third trial date from the second trial date.

(d) What is the net delay?

[50] The net delay is thus 821 – 49 – 28 – 70 (days) = 674 days.

[51] This delay exceeds the 18-month Jordan threshold of 18 months (approximately 548 days), by 126 days.

E. CONCLUSION

[52] The charges against Mr. Osman are hereby stayed.

Released on April 30, 2024

Justice Russell Silverstein