WARNING The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and

( b ) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

DATE: 2024 06 06 COURT FILE No.: Brampton 22-103-58-75-000556

BETWEEN:

HIS MAJESTY THE KING

— AND —

LUKE EASTMAN

Before: Justice R. Wright

Heard on: May 10, 2024 Reasons for Judgment released on: June 6, 2024

Counsel: H. Apel................................................................................................... counsel for the Crown A. Sobcuff............................................................. counsel for the accused Luke Eastman

R. WRIGHT J.:

[1] On June 2 and 21, 2021, Informations were sworn charging Luke Eastman with four counts of assault, five counts of assault by choking, four counts of forcible confinement, two counts of uttering threats, one count of mischief under, one count of sexual assault, two counts of assault with a weapon and one count of assault causing bodily harm. These counts are alleged in relation to three different intimate partners who came forward to police on two separate dates in the same month. A seven-day trial is scheduled for all charges July 2-10, 2024.

[2] Mr. Eastman applies for a stay of proceedings under s. 24(1) of the Charter of Rights and Freedoms (“Charter”) on the basis that his right to be tried within a reasonable time, as guaranteed by s. 11(b) of the Charter, has been violated.

[3] In R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada set a ceiling of 18 months for trials in the Ontario Court of Justice (“OCJ”), not including delay attributable to the defence, beyond which delay will be presumptively unreasonable. I find it helpful to refer to the ceiling and the timeframes in my analysis by days rather than months. That means that there is a ceiling of 547 days, excepting any time that is appropriately deducted due to defence delay.

[4] The total period of time for consideration in this case amounts to 1133 days from the first Information (approx. 37 months). The parties depart in argument over three periods of what should be considered delay attributed to the defence:

(1) A period of time when the matter was adjourned to conduct a judicial pre-trial (“JPT”);

(2) The delay in setting the trial scheduling conference (“TSC”); and,

(3) Whether delay should be attributed to the defence for delay associated with the failure of defence counsel to advance their client’s s. 11(b) Charter interests in a timely way.

The Chronology of Events

[5] The total delay from the date the first Information was sworn to the anticipated completion of the trial is 1133 days.

[6] Mr. Eastman was charged June 2 and June 22, 2021. His first appearance after show cause was August 9, 2021. On that date an agent for counsel appeared. For the next several months, that agent for counsel spoke to the matter on behalf of counsel. However, as of January 31, 2022, that counsel advised that he would need to get off record. That was formally done on February 7, 2022, when counsel Mitch Engel came on record. The matter was adjourned one month to allow Mr. Engel to receive and review disclosure.

[7] On March 7, 2022, an agent for counsel appeared and asked that the matter be adjourned to allow a JPT to be conducted. The Crown in court sought confirmation that a crown pre-trial (“CPT”) had been conducted. The agent could not say for sure, but indicated he believed so given that his instructions were to adjourn the matter to have a JPT. The matter was adjourned eight weeks.

[8] On May 2, 2022, the agent for counsel appeared and sought a further adjournment of the matter for a CPT to be conducted (it appears that his prior statement of belief to the Court that a CPT had been conducted was not correct). The Crown in Court expressed concern about delay and asked that the matter go before a judge for case management at the next appearance. The matter was adjourned a month.

[9] On June 6, 2022, the matter appeared before a judge for case management. A JPT had been scheduled for June 28. The matter was adjourned to July 5, 2022. On that date, the defence asked that the matter be adjourned to July 19, 2022 to allow counsel to schedule a trial. At the July 19 appearance, the Crown spoke to the matter on behalf of counsel who was dealing with a medical emergency. The matter had to be adjourned a further two weeks.

[10] On August 4, 2022, the agent for counsel appeared and sought a further adjournment: counsel had advised that he had not yet received the “trial estimate form from the judge.” The agent asked for the earliest date they could return and was told October 6, 2022 (it is unclear on the record before me why they were told that October 6 was the “earliest date” they could come back).

[11] On October 6, 2022, the agent for counsel advised that a TSC was set for the next day. The matter was adjourned to October 27 to put trial dates on the record.

[12] The Crown failed to appear for the TSC. When the matter was next spoken to, October 27, it was adjourned to December 8 to allow for another TSC. A TSC was not conducted prior to December 8. On December 8, the matter was put over to February 9, 2023, with a TSC scheduled for December 19, 2022.

[13] At the December 19 TSC the trial dates of July 2-10, 2024 were selected. The trial coordinator had offered one earlier trial date (January 5, 6, and 23-27, 2024), but Mr. Engel was unavailable. Those trial dates were put on the record February 9, 2023. There was no complaint of delay nor was a date set for a s.11(b) application. Two earlier days were also scheduled for records-related pre-trial motions.

[14] On May 25, 2023, an agent for counsel appeared to speak to the matter. The Crown in court asked specifically if one of the pre-trial motion dates was for a s. 11(b) application. The agent was unable to confirm.

[15] On June 7, 2023, the Crown emailed counsel “just looking at the dates for this. Wanted to make sure there was no possibility of an 11(b) with the dates now as they’re set. If there is, I’m going to reach out to the TC to try to get earlier dates.” Mr. Engel responded on June 12, 2023, that 11(b) would be in issue (this appears to be the first date that the Crown was provided notice that s. 11(b) was in issue). A trial scheduling meeting was arranged to attempt to find earlier dates; Mr. Engel did not attend.

[16] On June 20, 2023, the Crown wrote to Mr. Engel asking for his available dates prior to December 2023. There was no response. The Crown followed up again on June 26, 2023, and also indicated that the case would be prioritized and that trial dates of August 10-18, 2023, or December 11-19, 2023, could be offered. On June 27, 2023, Mr. Engel replied that those dates were not available. He did not provide other available dates.

[17] The next time that the matter was addressed in court appears to be December 29, 2023, when it was brought forward to address the issue of counsel for the complainant and filing of materials on the pre-trial motions. Despite the fact that rescheduling of dates for pre-trial motions was discussed at this appearance, s. 11(b) was not. The Court does not appear to have been put on notice until the appearance on March 4, 2024, when an interim date was selected to allow counsel to schedule a s. 11(b) hearing date (although no such hearing date was ever scheduled; this motion was only scheduled to be heard May 10, 2024, after it became clear on April 12 that there would be no need for a second day of pre-trial motions on the records application).

The Analytical Framework

[18] The primary purpose of s.11(b) of the Charter is to protect the individual rights of accused persons, namely:

• the right to security of the person, which is protected by seeking to minimize the anxiety, concern and stigma of exposure to criminal charges;
• the right to liberty, which is protected by trying to minimize restrictions on liberty that result from pre-trial incarceration and restrictive bail conditions; and
• the right to a fair trial, which is protected by attempting to ensure that trials occur while evidence is available and fresh.

[19] The secondary purpose of s. 11(b) is to protect the interests of society. This includes seeing that citizens who are accused of crime are treated fairly, and the public interest in having those who break the law dealt with quickly on the merits of their cases. As the seriousness of the offence increases, so does the societal demand that an accused person be brought to trial.

[20] A decision as to whether s.11(b) has been violated “is not to be made by the application of a mathematical or administrative formula, but by a judicial determination” that takes a “bird’s eye view” of the proceedings.

[21] In R. v. Jordan, 2016 SCC 27, the Supreme Court provided the framework for assessing an Application under s. 11(b) of the Charter:

1. the total delay from the laying of the charge to the anticipated end of the trial must be calculated.
2. once that period is determined, any delay attributable to the defence must be subtracted to determine the net delay. Delay will be attributed to the defence where there has been an explicit waiver of s. 11(b) or where delay is caused solely or directly by the conduct of the defence. The determination of whether defence conduct amounts to defence delay is “by no means an exact science” but is something that “first instance judges are uniquely positioned to gauge” (R. v. Jordan, at para. 65). A further example of defence delay is where the Court and the Crown are ready to proceed and the defence is not (R. v. Jordan, at paras. 60-64; see also R. v. Cody, 2017 SCC 31, [2017] S.C.J. No 31, at paras. 28 to 35). There is no “bright line rule” that where dates are offered when the Court and the Crown are available but the defence is not, then all delay until the next date is defence delay. Rather, all of the relevant circumstances must be considered to determine how delay should be apportioned among the participants.
3. where the net delay in the Provincial Court is greater than the 18-month presumptive ceiling, the burden shifts to the Crown to establish that there were exceptional circumstances justifying the delay. In order to be exceptional, the circumstances must have been reasonably unforeseen or reasonably unavoidable. In general, exceptional circumstances fall into two broad categories: (1) discrete and exceptional events, or (2) particularly complex cases. However, the list of exceptional circumstances is not closed. In addition, the Crown must show that it could not reasonably remedy or prevent the delays from those exceptional circumstances.
4. If the Crown fails to establish both exceptional circumstances existed and that its/the system's response to the circumstances was reasonable, a stay must be entered. If the Crown meets these two hurdles, the Court must calculate the number of months of exceptional delay and subtract that from the remaining delay. If the result is above the 18-month ceiling, the delay is unreasonable, and a stay must be entered.
5. If the result is below the ceiling, the defence must meet the onus of showing that: (1) it took meaningful steps that demonstrated a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. If the defence succeeds in establishing both requirements, a stay must be granted. If not, there is no breach of s. 11(b) and the trial must proceed.

Application of the Framework

A. Total Delay From the Laying of the Charge to the Anticipated End of Trial

[22] The total delay in this case is 1133 days.

B. Subtracting Delay Attributable to the Defence

[23] Delay will be attributed to the defence where there has been an explicit waiver of s. 11(b) or where delay is caused solely or directly by the conduct of the defence.

[24] The defence cannot benefit from its own delay-making conduct. However, defence actions taken to legitimately respond to the charges do not constitute defence delay. In R. v. Jordan, 2016 SCC 27, the Supreme Court noted at para. 65:

To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused’s right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions.

[25] The defence concedes a period of the delay in this case as caused by the actions of the defence due to the change of counsel to Mr. Engel: as of February 7, 2022, when Mr. Engel came on record, those actions that had been taken to move the matter toward trial now had to be repeated. I agree with this concession. Deducting this period of time (250 days) results in 883 days remaining to be considered.

[26] The Crown submits that a further period of time from March 7 to May 2, 2022 (56 days), should be deducted as defence delay as the matter was adjourned and the defence took no steps to conduct a pre-trial. The Applicant submits that none of this period of time is attributable solely or directly to the actions of the defence.

[27] On March 7, the agent for counsel advised the Court that his instructions were to adjourn the matter for a JPT to be conducted. He could not say that a CPT had been conducted, but believed so given his instructions were to adjourn the matter to allow time for JPT. An eight-week adjournment was granted.

[28] As it turns out, a CPT had not been conducted. And, when the matter returned on May 2, a CPT had still not been scheduled, never mind conducted. The Crown asked that the matter be moved to judicial case management.

[29] In my view this time must be deducted as defence delay. This is simply an issue of the defence being unable to benefit from its own delay-making conduct. I have no doubt that the matter would not have been adjourned for nearly eight weeks if the Court had been told a CPT had yet to be conducted. I appreciate that it was a mistake on the part of the agent, but those eight weeks then passed without that CPT, or a JPT (which is what the Court had been told was to be the next step), even being scheduled. To not deduct this time would cause eight weeks that accrued due directly to a mistake of the defence agent to be considered as part of the net delay. It would further encourage this sort of mistake. Deducting this period of 56 days leaves 827 days to be considered.

[30] The Crown argues that a third period of time in the summer of 2022 is properly considered as defence delay and should be deducted. The period in issue is from when the JPT had been conducted to the first TSC. The defence concedes that 14 days of this period are defence delay due to counsel’s medical emergency but argues that the remaining time in this period is not defence delay.

[31] The JPT was conducted June 28, 2022. The next appearance was July 5. The matter was adjourned two weeks to allow the parties to get a trial date. The July 19 appearance was adjourned due to the medical emergency. The next date, August 4, the agent for counsel advised that a TSC had still not been set because the time estimate form had not been received from the JPT judge. More than five weeks had elapsed since the JPT. There is no indication of what steps to obtain that form, if any, had been taken. The matter was then adjourned to October 6 as the first date the Court had available. The first scheduled TSC was not until October 7. The Crown did not show up for that TSC.

[32] The record is sparse as to why there is this length of delay to the TSC. A portion, from July 19, was caused by counsel's medical emergency. But the approach of all parties, including the Court, demonstrates that no one was moving the matter toward the setting of trial dates in a timely manner. All participants have a duty to ensure compliance with the time limits in Jordan. This is 101 days of unexplained and inexcusable delay, part of which is entirely attributable to the defence, who control the process of having TSCs set, and who were not proactive in advising the Court of the missing form.

[33] In my view it is appropriate to consider a third of this time, or 33 days, as delay attributable to the defence. Deducting this portion leaves 794 days to be considered.

[34] The fourth portion of time argued as defence delay relates to the offer of trial dates and attempts by the Crown to secure earlier trial dates. In the course of submissions, I raised with counsel a related concern about the lack of notice to the Court and the Crown about delay being in issue. The trial dates in this case were more than 18-months from the date those very dates were selected.

[35] There are a number of trial judges, particularly in this jurisdiction, who have held that when the defence sets dates outside the Jordan framework but does not raise the issue of delay for a considerable period of time after the dates are set such that the delay cannot be mitigated, then some significant part of the delay may be attributed as defence delay (see: R. v. Nigro, 2023 ONCJ 41; R. v. Kullab, 2023 ONCJ 458; R. v. Alsouki, 2024 ONCJ 9; R. v. R.D., 2023 ONCJ 546; R. v. M.W., 2023 ONCJ 581; R. v. Robbins, 2024 ONCJ 12; R. v. Wang, 2024 ONCJ 177; R. v. M.F., 2024 ONCJ 59 (Toronto); R. v. Wright, 2024 ONSC 1893 (Toronto)).

[36] As of June 12, 2023, when the Crown became aware that an 11(b) application was contemplated, the Crown attempted to secure earlier trial dates. The Crown argues that a portion of the period of time following these offers must be deducted as defence delay—from the first of the new trial dates offered to the end of trial (August 18, 2023 to July 10, 2024). The defence concedes that part of this time would be defence delay, but only to the point where the Court and Crown were available but defence counsel was not.

[37] I do not agree with either the Crown or defence arguments about the apportioning of this period of time. In my view, the critical issue (and the factor that would have entirely changed the trajectory of the setting of a trial date in this case) is the lack of notice.

[38] When the trial dates of July 2-10, 2024, were offered at the TSC on December 19, 2022, no date was set for a s. 11(b) Application. Nothing was said by the defence on February 9, 2023, when those dates were placed on the record. While it would be preferable for the Court to have made inquiries given how far away the scheduled trial date was, no such inquiries into s. 11(b) were made. But it is not for the Court to give itself notice of a Charter application; the defence are uniquely situated to understand whether delay is in issue and whether an application will be brought. The Court and the Crown cannot tell from the mere passage of time whether there has been defence delay, nor whether periods of time have been waived.

[39] Nothing was said about s. 11(b) until June 12, 2023, after the Crown inquired whether delay was an issue. The Court does not appear to have been put on notice that a s. 11(b) application would be brought until March 4, 2024. I have no indication that counsel sought a date for a s. 11(b) hearing prior to April 12 when we completed the records motion freeing up May 10.

[40] When it was decided that May 10 would be used to hear this application, no materials had been filed. The application date was already less than 60-days away. On consent, I permitted short service of materials and fixed deadlines for filing, but the lack of served and filed materials and of a date for the argument of s. 11(b) is telling. It reflects the defence approach to 11(b) throughout the life of this case. It is obvious that this does not comply with the rules of the court which require that all pretrial hearings be heard 60 days in advance of trial, and material served 30 days before that. However, without meaning to be overly critical of counsel (in particular, of Mr. Sobcuff who stepped in for Mr. Engel at the point of the pre-trial motions), the failure of the defence here was much more than failing to comply with the proper scheduling of the s. 11(b) application; there was a complete failure to comply with the direction of Jordan, Cody and, more recently, R. v. J.F., 2022 SCC 17, to raise s. 11(b) concerns with the Crown and the Court in a timely way:

[33] … Inaction may amount to illegitimate conduct on the part of the defence, because “[i]llegitimacy may extend to omissions as well as acts” (Cody, at para. 33). As this Court said in Cody, the defence may not benefit from its own inaction or lateness in taking action; it must act proactively:

[37] Accused persons must bear in mind that a corollary of the s. 11(b) right “to be tried within a reasonable time” is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to “actively advanc[e] their clients’ right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and . . . us[e] court time efficiently” (Jordan, at para. 138) [para. 33].

[34] An accused who sees delay lengthening must therefore respond in a proactive manner. Being proactive may mean filing a s. 11(b) motion where the accused believes that their right to be tried within a reasonable time is not being or will not be respected (Jordan, at para. 85). Like any other application made by an accused, a motion of this kind must be brought “reasonably and expeditiously” (para. 85). Lateness in raising delay is contrary to the proper administration of justice, because such a practice serves to waste judicial resources. Indeed, the Jordan framework is specifically designed to eliminate inefficient practices that impact on the justice system (paras. 41 and 116). Bringing a s. 11(b) motion before the end of the trial allows the accused to alert the Crown and the court to their concerns about delay. As a result, all parties can take proactive measures and cooperate to expedite the proceedings.

[41] The Court in J.F. further clarified at para. 36 that “[b]y 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.” Here, the parties must have been aware on December 19, 2022, that the selected trial dates were more than 18-months from that date, never mind the swearing of the Informations.

[42] The cases I have cited for the proposition that when the defence sets dates outside the Jordan framework but does not raise the issue of delay for a considerable period of time after the dates are set such that the delay cannot be mitigated then delay may be attributed as defence delay are persuasive. I have no reason to depart from them. The facts are not distinguishable. As in Kullab, Mr. Engel did not alert the Court or the Crown that the selected trial dates would result in an application. No one was alerted until the Crown sought earlier dates, a process in which Mr. Engel did not meaningfully participate. In my view, the defence had an obligation to act proactively to advance Mr. Eastman’s right to a trial within a reasonable time, to collaborate with the Crown in this regard, and to participate in the Crown’s attempts to find earlier trial dates.

[43] The question then turns to the appropriate amount of time to apportion as defence delay. In R. v. Alsouki, 2024 ONCJ 9, Blacklock J. deducted 50 per cent of the time from when he found the defence should be in a position to provide notice to the end of the trial dates. In Alsouki, the trial dates were selected in early October and put on record on October 17. He held that 60 days (or possibly less) from the October 17 set appearance were reasonable to allow the defence to determine whether a s. 11(b) application would be pursued (see also R. v. M.W., 2023 ONCJ 581, where Monahan J. allowed 30-days from the setting of the trial to order transcripts and formulate a position on s. 11(b)).

[44] In my view, the appropriate period to allow the defence to consider this motion in the case before me is the period of time between the TSC (December 19, 2023), and when the trial dates were put on record (February 9, 2024). As of December 19, 2023, both parties knew what the trial date was. By the time those dates were put on record, almost six weeks later, the defence was, or should have been, in a position to know if an application would be brought. Notice to the Crown and the Court as of this date would have provided an opportunity for delay to be mitigated.

[45] In R. v. M.W., 2023 ONCJ 581, Monahan J. deducted 50 per cent of the time from 30-days after the trial dates were set to when the Crown was put on notice (a 9-month period). That notice was given more than five months prior to the trial date and the Crown made efforts to secure an earlier trial date (but only one earlier date was offered). Monahan J. held that this notice had been sufficient to allow the Crown time to mitigate and that the Crown could have done more to attempt mitigation.

[46] In my view, M.W. is distinguishable because the defence here did not meaningfully participate in the Crown’s attempts to secure earlier dates. The Crown was given notice that 11(b) was in issue June 12, 2023. The Crown sought and offered earlier trial dates. The Crown sent multiple requests to counsel asking counsel to provide other dates that he was available for trial, indicating that the Crown would prioritize this matter. Other than responding that he was unavailable the two dates that the Crown had offered, Mr. Engel never provided any other availability, even after the Crown indicated it would prioritize this matter.

[47] Following the decisions of my colleagues, and consistent with the direction of the Supreme Court in Jordan, Cody and J.F., I consider that 50 per cent of the time from the trial dates being set on the record (February 9, 2023) until the anticipated end of trial (July 10, 2024) is defence delay; that amounts to 258 days. I have no doubt that had the defence raised the delay as of February 9, or participated with the Crown once delay had been raised, that the Crown would have prioritized this serious case, as the Crown directly told counsel they would in their communications to secure an earlier trial date.

[48] Deducting this further 258 days leaves 536 days. This is below the presumptive ceiling of 547 days.

E. If the Result is Below the Ceiling

[49] The defence have not shown that: (1) it took meaningful steps that demonstrated a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. The defence must demonstrate both in order for a stay to be imposed where the time is below the ceiling.

[50] In my view, as I have set out above, the defence did not take any efforts to expedite these proceedings. Rather, the defence was content to let the matter languish repeatedly and for multiple court appearances to pass before any one step in the case was completed.

Conclusion

[51] The Applicant has not established a breach of s.11(b) of the Charter and the Application is dismissed.

Released: June 6, 2024