Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2024 07 22 INFORMATION NUMBER: 22-47100994

BETWEEN:

HIS MAJESTY THE KING

— AND —

BRUCE CAVEY

Before: Justice M.K. WENDL

Heard on: July 19, 2024 Ruling on 11(b) application dated: July 22, 2024

Counsel: E. Quinn, for Crown M. Savard, for Bruce Cavey

Ruling

WENDL J.:

[1] Bruce Cavey brought an application to stay his sexual assault charge for delay. The current aggregate delay stands at 911 days (29 months and 27 days). The information was sworn in June of 2022 and the case is slated to end in November of 2024.

[2] The applicant contends that, even when the defence delay is subtracted from the aggregate, the net delay is still well over the Jordan ceiling. The Crown argues that even though the net delay is still over the Jordan ceiling (they argue that the defence delay is 250 days leaving a net delay of 661 days) a mix of exceptional circumstances/discrete event and complications make a stay inappropriate in the circumstances.

Contested Times and Issues

OCTOBER 20, 2022 TO NOVEMBER 21, 2022

[3] The information against Mr. Cavey was sworn June 2, 2022. He initially retained counsel other than Ms. Savard. The initial pre-trial was set for October 20, 2022. Ms. Savard attended even though she became counsel of record only days prior. As a result, only tentative positions were taken at this JPT and a second JPT was needed to confirm the positions taken in October. Ms. Savard concedes that the time between the first and second JPT, even though the second one was not ultimately conducted, is defence delay of 31 days.

AUGUST 8, 2022 TO MARCH 10, 2023

[4] Even though the trial dates were selected on November 25, 2022, for a trial ending on February 27, 2024, the Crown submits that half the time between August 8, 2022 and March 10, 2023 should be attributed to defence delay. I disagree. While the third JPT, held on March 10, 2023, was necessary to clarify issues relating to the scope of the trial, took place after the trial dates were set and did add days to the trial estimate, it did not add time to the end of trial. The completion of the trial was still estimated to be on February 27, 2024.

AUGUST 31, 2023 TO FEBRUARY 27, 2024

[5] After the trial dates were selected and approved of by defence on November 25, 2022, on January 3, 2023, the trial coordinator offered new trial dates starting on August 17, 2023, and ending on August 31, 2023. Defence was unavailable for those dates but did indicate in an email to the trial coordinator that they wished to be advised if any other earlier dates became available.

[6] Further complicating the analysis of this timeframe, the Crown admits that they were not ready to proceed on July 27, 2023, because they had not obtained complainant’s counsel. The matter therefore had to be adjourned from July 27, 2023, to September 21, 2023, on the February 27, 2024, trial timeline.

[7] The Crown is asking the court to deduct 91 days as defence delay (the time between the August 2023 trial timeline and February 2024 trial timeline minus the crown delay between July 27, 2023, and September 21, 2023). I do not accept this submission. The Court of Appeal noted in R. v. Zahor, 2022 ONCA 449, relying on R. v. Jordan, 2016 SCC 27, that "courts must avoid failing to see the forest for the trees" on a s. 11(b) application, instead endorsing an approach that takes "a bird's-eye view of the case". [1]

[8] The following paragraphs from Jordan are worth reproducing in their entirety:

Finally, the Morin framework is unduly complex. The minute accounting it requires might fairly be considered the bane of every trial judge's existence. Although Cromwell J. warned in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, that courts must avoid failing to see the forest for the trees (para. 18), courts and litigants have often done just that. Each day of the proceedings from charge to trial is argued about, accounted for, and explained away. This micro-counting is inefficient, relies on judicial "guesstimations", and has been applied in a way that allows for tolerance of ever-increasing delay… .

Determining whether the time the case has taken markedly exceeds what was reasonably required is not a matter of precise calculation. Trial judges should not parse each day or month, as has been the common practice since Morin, to determine whether each step was reasonably required. Instead, trial judges should step back from the minutiae and adopt a bird's-eye view of the case. [2]

[9] Here two factors weigh against deducting the August trial as defence delay. First, these dates were given out six weeks after the initial trial dates were provided and accepted by counsel on November 25, 2022. Second, the Crown was not yet ready to proceed as of July of 2023. [3]

[10] I am not saying that providing dates after the fact will never result in defence delay but in this instance only one block of dates was provided, counsel while noting their unavailability for August, did indicate that should other days become available to advise them and they also aggressively pushed for earlier motion dates throughout the process. Also as of July 27, 2023, the Crown was simply not ready to go for pre-trial motions. In this context I cannot find that the Crown would have been ready for the August 2023 trial dates, to do so would simply be speculative.

Cascading series of events: Volume of Material/Toronto Star involvement, delay in starting the motions and late Seaboyer

[11] In my view, a cascading series of events led to the final delay in the trial, from February 27, 2024, to November 29, 2024.

[12] There can be no doubt that the volume of material disclosed in the third-party records and the advent of the Toronto Star’s participation in the trial was a cause for delay.

[13] While I appreciate the defence pushed for earlier motion dates, the reality is that additional court time and counsel preparation time was necessary to determine how over 6000 pages of third-party disclosure would be used during the trial. Court time was also needed to determine journalistic privilege, which was not anticipated at either of the pre-trials. I view these as exceptional circumstances/discrete events which account for part of the delay in starting the trial in February.

[14] However, I agree with the defence that the adjournment of the first motion dates by the Crown to obtain complainant’s counsel and the late Seaboyer application by the Crown were also factors contributing to the final delay in starting the trial.

[15] Therefore, since half the factors contributing to the delay in the start of trial are exceptional circumstances, I will deduct half the time from the February trial timeline (February 27, 2024) to the final day of the new trial dates (November 29, 2024). Again, I find that the other half of the delay was caused by the late start to the motions due of the delay in appointing complainant’s counsel and the Crown’s late Seaboyer application. That delay is attributable to the Crown. [4]

COMPLEX CASE

[16] As for the argument that this is a complex case, it is not. First, the facts and issues did not require inordinate preparation time, as evidenced by a comparison with other significant but non-complex cases. The Applicant’s case is a 12-day trial involving one charge, one defendant, one complainant/anticipated Crown witness, one disputed legal issue on the merits, 4 to 5 motions, 6000 pages of production, and 5 to 15 defence witnesses. As the following list of other time-consuming but non-complex cases shows, it does not even approach the exceptional level of complexity required to justify an above-ceiling delay:

a. R v. Picard, 2017 ONCA 692, was a first-degree murder case involving the forensic analysis of 53 cellphones, including text messages and reams of data about GPS locations and call records. It encompassed six months of investigation, involved two police services, 30,000 pages of disclosure, 2800 photographs, dozens of video-recorded witness statements, 6800 pages of cellphone records, 25,000 text messages with content, 103,000 lines in Excel of subscriber records from the accused’s phone, 78 witness interviews, 60 judicial authorizations, and eight separate areas of expert evidence. It was a jury trial with 43 anticipated Crown witnesses. Nonetheless, it did not rise to the level of “particular complexity.”

b. In R. v. Thanabalasingham, 2020 SCC 18, [2020] 2 SCR 413, the Supreme Court of Canada upheld the trial judge’s finding that a seven-week murder trial was ‘typical’, and not ‘particularly complex.’

c. In R. v. Gharibzada, 2022 ONSC 4667, Goodman J. concluded that this unusually serious and extensive fraud case – although it had" “acquired” some complicated features over the life of the prosecution – was nonetheless not “particularly complex” for Jordan purposes. The case involved 1 defendant (initially more), 51 counts spanning a 2-year period, 3 investigating police services, “significant” disclosure (dozens of statements, device analyses, search warrants, and surveillance footage), a three-week preliminary inquiry with 16 to 20 Crown witnesses, a severance application, a similar fact application, a special motion regarding a claim of solicitor-client privilege, applications to be removed from the record, two bail review application, and a five-week jury trial involving multiple contested legal issues, including jurisdiction, identity, mens rea, and party status.

d. In R. v. Amero, 2017 QCCQ 17971, a criminal organization prosecution, the trial judge held that the defendant’s trial was “not particularly complex”. This case involved two defendants, nine counts, covering 18 months’ worth of conduct (originally part of a much larger project), an eight-week trial, an expert witness, multiple Charter applications, and voluminous disclosure, including surveillance footage.

e. In R. v. Schardt – a sexual assault prosecution with five different complainants, a lost evidence application, and a preliminary hearing, the parties agreed the case was not particularly complex; the Crown did not attempt to argue otherwise.

[17] Even if the case were particularly complex, the Crown would still be required to show that it attempted to develop and execute a plan to minimize delay in order to benefit from the s. 11(b) complexity exception. While the Crown did her best to minimize the delay in this case, I cannot find that a plan was put into place, there is simply no evidence of that.

COVID DELAY

[18] As to the COVID delay, I rely on my own comments in R. v. Fraser, 2022 ONCJ 580 [5] with the appropriate modifications.

[19] The Crown argues that I should deduct an amount of time for the “ripple effect” from COVID. While I admit the concept of a ripple effect has a certain appeal, applying the concept in practice is significantly problematic. When dates were selected in November of 2022, the courts had been open again for over two years. How does the Court determine when the ripple is over?

[20] Second, while it is true that normal court operations were suspended for a period of time, it is equally true that the Crown’s office went on a resolution blitz to get rid of the backlog. How do I balance the two?

[21] I agree with Justice Fiorucci quoting with approval Justice Agro:

[78] In Mr. Ibrahim's case, the Crown simply points to the pandemic as a discrete exceptional event and seeks a deduction from the delay to account for the pandemic. The Jordan framework requires a quantification of periods of delay. When the Supreme Court of Canada drew the line in the sand at 18 months for cases in the provincial court beyond which delay is presumptively unreasonable, it created a mathematical formula to be applied by trial judges.

[79] Where there is a dispute about the apportionment and calculation of delay in a particular case, that dispute must be resolved, as all other factual disputes are resolved in a court of law, with evidence. As the authors of The Law of Evidence, Eight Edition, point out, "'evidence'...is the data factual decision-makers...use when resolving factual controversies". [6]

[80] I adopt Agro J.'s words from R. v. Rubletz, which apply in equal measure to Mr. Ibrahim's case: Even if I were to arbitrarily apportion some of the time to COVID-19 backlog, assessing that time ...would be akin to throwing darts at a board while blindfolded. A risky and inappropriate approach to the adjudication of Charter rights. [7]

LITIGIOUS MANNER OF THE CASE

[22] Finally, the Crown would like me to deduct delay because of the litigious nature of this case. In response to this argument, I feel compelled to point out that Ms. Quinn and Ms. Savard are both thorough, hard-working and smart counsel. The manner in which this case was litigated is simply the new reality of sexual assault trials. Neither Crown nor the defence took frivolous litigation positions, raised vexatious issues or made untenable legal arguments. Ultimately, 11(b) cannot be used as a sword to attack the litigation strategy of either the Crown or defence and seek to have the Court second guess tactical decisions made by counsel in furtherance of their case. I cannot fault either counsel for being thorough and hardworking, nor will I deduct any time because they did their job well.

CONCLUSION

[23] I find the total delay to be 742 days. [8] The charge is stayed for delay.

Released: July 22, 2024

Signed: Justice M.K. Wendl

Footnotes

[1] R v Zahor, 2022 ONCA 449, [2022] OJ No 2628 (ONCA) [2] R v Jordan, 2016 SCC 27, [2016] 1 SCR 631 [3] I would like to note here that many specific days of delay have been conceded by the defence or sought by the crown. I have not included many of these days in my calculation since it goes against the approach dictated by the court in Jordan and Zahor. [4] The total time between the two trial timelines is 276 days. Therefore, half that time is 138 days. [5] R. v. Fraser, 2022 ONCJ 580 [6] R. v. Ibrahim, [2022] OJ No 4363 (ONCJ) [7] R. v. Rubletz, (March 30, 2022), Hamilton, 20-3205 (ONCJ, Agro J.), at para. 74. This matter was upheld on summary conviction appeal by Skarica J. [8] I come to 742 days by subtracting 31 and 138 from 911.