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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 08 14 Court File No.: 3111-998-22-31102801-00

BETWEEN:

HIS MAJESTY THE KING

— AND —

Avardeep Soni

Before: Justice A. R. Mackay

Heard on: June 24, 2024

Oral Reasons for Judgment released on: June 24, 2024. Written reasons released on: August 14, 2024

Counsel: Nazampal Jaswal ............................................................................... counsel for the Crown Gagandeep Pannu ...................................................... for the defendant Avardeep Soni

Mackay J.:

Overview

[1] Mr. Soni is charged with two counts of assault and two counts of sexual assault upon S.K. The Applicant’s trial is scheduled to be completed on July 25, 2024, 742 days after the information was sworn.

[2] Mr. Soni has brought an application to stay the proceedings alleging an unreasonable delay in bringing him to trial pursuant to s. 11(b) of the Charter.

[3] The history of the proceedings is not disputed and is set out in the Applicant’s factum.

[4] After trial dates were set, the matter was brought forward to the Back Log Recovery court. The defence however rejected earlier dates offered because his retainer would not be completed until 7 months later in July 2024. As a result, counsel conceded that the delay in question would be 18 months and 10 days.

[5] The Respondent, Ms. Jaswal, submitted that a further 5 days should be deducted if I consider that when the matter was first set for trial that the defence did not accept the first date the Court and the Crown were available of January 15-18, 2024. Given this was just one set of dates offered within this time period and the next one not being until October 28 to 31, 2024. I am of the view it would be unreasonable to find that the defence should be available on this specific date and then categorize this as defence delay. The Supreme Court has instructed trial judges to take a contextual approach.

[6] Both parties agree that between a Crown pre-trial (“CPT”) on November 2, 2022, and the Judicial pre-trial (“JPT”) held on January 25, 2023, the defence wanted the Crown to consider transcripts to assess whether there was a reasonable prospect of conviction. However, Mr. Pannu decided to set the JPT on December 8. I do not know if he chose a later date for a JPT or the first available JPT provided to him. If he chooses the first available, then the delay would be 36 days.

[7] The parties disagree on how this time should be apportioned. Mr. Pannu argues it is neutral and the Crown argues it is defence delay. The parties also disagree on whether any delay can be attributed to exceptional delay.

[8] The two issues I must determine is whether a defence postponement by a month of scheduling a JPT when agreed to by the Crown should be defence delay and two, whether any delay can be attributed to the court closures from the Pandemic. I have applied the framework set out in R. v. Jordan, 2016 SCC 27 at paras. 5; 46-8; 49; 60.

Defence Delay to Pursue a Resolution

[9] While the defence cannot be faulted for pursuing a resolution in this matter, delaying the case to do so should not form part of the institutional delay. It is clearly an implicit waiver especially when the accused is represented by experienced counsel: R. v. Busch, 2021 ONCJ 200, at para. 8; R v Lim [2017] OJ No 5977, at para. 44. In this case both parties agreed that the holding of a judicial pre-trial should be delayed. I would in the result deduct as defence delay, half of the time period where the setting of a JPT was delayed; this amounts to 18 days. This would therefore bring the delay just under 18 months or to 534 days. In case I am wrong in my assessment of defence delay I will turn to consider whether there were exceptional circumstances.

Exceptional Circumstances

[10] Exceptional circumstances lie outside the Crown’s control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) the Crown cannot reasonably remedy the delays emanating from those circumstances once they arise. To rely on such circumstances, the Crown needs to show that it took reasonable steps to avoid and address the problem where possible to have done so. It has been widely accepted by courts in Ontario that the Covid-19 pandemic amounted to a discrete exceptional circumstance (See, for example, the cases cited in R. v. Sandhu, 2022 ONSC 3910, at para. 38; R. v. Long 2023 ONCA 679, at para. 75).

[11] When Mr. Soni’s matter entered the judicial system on July 14, 2021, (the date the information was sworn), we were clearly dealing with the ripple effect caused by the court closures which occurred approximately 16 months before. Our court has been playing catch up in terms of dealing not only with the cases that were continuously entering the system but in addressing trials that were adjourned during COVID.

[12] Without question the pandemic cannot become a blanket excuse, shielding complacency about delay.

[13] While there is no direct evidence before me as to what specific amount of the delay in this case can be attributed to the pandemic, it is clear to me that at the very least one month can be attributed to the backlog created from the court closures. The Court of Appeal has recognized that trial judges can take judicial notice of the impact of COVID-19 on delays in the courts where they are sitting. In R. v. Agpoon, 2023 ONCA 449, at para. 26, the court held that the Supreme Court's direction in Jordan for trial judges "to employ the knowledge they have of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances" is applicable (with necessary modifications) to the assessment of pandemic-related delay for purposes of the s. 11(b) analysis. (Also see R v Georgopoulos, 2024 ONSC 2962 at para 26: R v Balasubramaniam, 2024 ONCA 403 at para. 4).

[14] The new scheduling process which was instituted to deal with the backlog is still in place and causes some delay in bringing matters to trial. Prior to COVID, trial dates could be set on the same day as Crown pre-trials or JPT, now counsel must have a trial scheduling conference with the trial coordinator. In this case, counsel received the trial estimate form on January 15, 2023, however, a trial scheduling conference was not scheduled until Feb 18, 2023. Approximately 25 days later.

[15] In this particular case trying to compare how long things took to come to trial prior to the pandemic and now, for a 4-day trial is difficult to do. Firstly, the Crown’s office has resolved scores of cases and has participated in the Back Log recovery court for several months. In all the circumstances, when I count the 25 days for the new scheduling procedure, I find that at the very least 30 days, can easily be attributed to exceptional circumstances. This is a conservative estimate.

[16] To rely on exceptional circumstances, the Crown needs to show that it took reasonable steps to avoid and address the problem where it was possible to have done so. In this case, the Crown could have attempted to act sooner to obtain an earlier date, but it did so on September 7, 2023, 6 months after the trial dates were put on the record. The Applicant declined to accept offers of dates that were significantly earlier because Mr. Soni would not be able to fully retain counsel in this time frame. There was no significant delay in disclosure, it was provided on the same day as the first set date. Therefore, I find that I can deduct a further 30 days for exceptional circumstances, this would then bring the net delay to 504 days or 16.56 months.

Delay Below the Ceiling, Defense onus

[17] Where a delay falls below the ceiling, the onus is on the applicant to demonstrate that his s. 11(b) rights were violated by delay. This will be done by demonstrating that:

1. the defence took meaningful steps that demonstrate a sustained effort to expedite the Proceedings: and
2. the case took markedly longer than it reasonably should have:

R. v. Jordan, 2016 SCC 27 at paras. 82-83.

[18] Where the presumptive ceilings have not been exceeded, a stay will be rare and granted only in “clear cases.” Where the defence has not established both requirements, the s. 11(b) application must fail: R. v. Jordan, 2016 SCC 27 at paras. 82-83.

[19] On this issue, the Supreme Court, provided the following instruction: The defence is required to take meaningful and sustained steps to expedite proceedings and “it falls to the defence to show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the Court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications (including the s. 11(b) Charter application), reasonably and expeditiously”. Neither Crown nor defence counsel are held to standards of perfection in courts’ reviews of their conduct: Jordan, at paras. 84-86, 90.

[20] In this case, Counsel for the Applicant initially took steps to move the case along. The Applicant had retained counsel prior to his first court date and prior to the next court date a Crown pre-trial was held. There was some delay to pursue a resolution but the defence could not be faulted for this; I find even during this time period the defence continued to move the case along. After the JPT was held counsel scheduled an appointment with the TC’s office to schedule trial dates. About 6 weeks after the trial dates where set, counsel wrote the TC’s office to request earlier dates. However, one date was too early and the next was close to the original trial date. Up to this point in time counsel took meaningful and sustained steps to expedite the trial.

[21] However, it became clear that the Applicant was not pursuing an early trial date at the Back log recovery court. While earlier dates were offered to the defence, the Applicant declined these dates to afford him more time to retain his lawyer. It cannot be said in these circumstances that the Applicant’s conduct has been consistent with a desire for a timely trial.

[22] I must next consider whether the time taken for a trial markedly exceeded what was reasonably required. Trial judges are entitled to take into account their knowledge of the time to trial in their jurisdiction and how long a case of similar complexity should take. Jordan instructs trial judges to step back from the minutiae and adopt a “bird’s eye” view of the case: Jordan, at para. 91.

[23] This is not a complex case, however, the trial required 4 days of court time and two separate half days or less to argue a stage one and stage two of a s. 278 application. Typically, judges at the Judicial pre-trial ask that these applications are heard between 45 and 90 days before the trial. All of this must be factored in when considering whether this trial markedly exceeded what was reasonably required.

Conclusion

[24] In considering the exceptional circumstances, the length of the proceedings with the s. 278 application requiring at minimum a 45-day gap between the application and the trial, I have determined that while not ideal, 16.5 months to complete this trial will reach a reasonable timeline. In the result, the application is dismissed.

Released: August 14, 2024 Signed: Justice A. R. Mackay