Court File and Parties

ONTARIO COURT OF JUSTICE DATE: July 31, 2024 COURT FILE No.: BRAMPTON 016227

BETWEEN:

HIS MAJESTY THE KING

— AND —

Amarjeet CHOUHAN

Before Justice S. Caponecchia

Heard: July 24, 2024 Reasons Released: July 31, 2024

Counsel: J. Bellehumeur......................................................... counsel for the Crown / Respondent A. Nagpal ….............................................................. counsel for Mr. Chouhan/ Applicant

CAPONECCHIA J.:

Introduction

[1] Mr. Chouhan applies for a stay of proceedings pursuant to s. 11(b) of the Charter. The information in this case was sworn on November 5, 2021. At the time of this application a trial was scheduled for three days on July 29, 30, 31, 2024. The total delay is 999 days (or 2 years and 8 months and 26 days), well above the 18-month guideline established by the Supreme Court in Jordan [1] for trials held in the Ontario Court of Justice.

[2] Submissions were made on July 24, 2024. The application was dismissed with reason to follow. These are my reasons.

[3] My conclusion is that that after deducting time for defence delay and exceptional circumstances, the net delay is below the presumptive ceiling of 18 months. The defence did not argue that this case warrants a stay based on a sub-ceiling delay.

Relevant History

[4] The relevant facts upon which this application turns are:

• The Information alleging four domestic offences, including sexual assault, was sworn on November 5, 2021.
• The defendant retained counsel by the first appearance, December 14, 2021. A designation was filed.
• A Crown resolution meeting was held on January 4, 2022.
• A judicial pre-trial took place on April 11, 2022.
• The matter was adjourned eight times between April 26, 2022 and December 23, 2022. On the first of the eight dates, April 26, 2022, the defence explicitly waived their s. 11(b) rights. Counsel failed to attend on three subsequent dates: August 2, 2022, November 29, 2022, December 13, 2022. By December 23, 2022, defence counsel had yet to schedule a trial, nor make an election as to mode of trial.
• On December 23, 2022 a second judicial pre-trial was set by the defence for January 18, 2023.
• On February 1, 2023 a trial scheduling meeting was held. Trial dates were set for May 8, 9, 10, 2024.
• On March 28, 2023 counsel did not attend court to put the trial dates on the record or make his election.
• May 5, 2023 is the Jordan deadline for this case.
• On May 9, 2023 counsel attended court to put the trial dates on the record. The Crown asked the defence if s. 11(b) was in issue. The Crown offered to bring the matter forward and prioritize it over another case. The defence indicated s. 11(b) was not in issue.
• On the first day of trial, May 8, 2024, the assigned Crown was sick. The case was adjourned to the next day to see if counsel was well enough to proceed.
• On the second day of trial, May 9, 2024 the assigned crown appeared by video. She was still unwell. The case was moved from Justice Mackay’s court to Justice Cornelius’s court. Both judges acknowledged the Crown sounded unwell. The Crown was granted permission to appear remotely. The case began in the afternoon with the arraignment of the defendant. The Crown was unable to hear the proceedings. The accused was using an interpreter and the Crown predominantly heard the interpreter. Adjourned to the next day to see if the assigned Crown was well enough to appear in person.
• On the third day of trial, May 10, 2024, the assigned Crown was ill and unable to appear in person. The trial did not proceed.
• On May 15, 2024 a second trial date was set for July 17, 18, 19, 2024.
• On July 8, 2024 a JPT was held to discuss the scheduling of a s. 11(b) application. Parties agree that a s. 11(b) application will be heard on the first day of trial, July 17, 2024.
• On July 17, 2024 neither the s. 11(b), nor the trial, was heard. Transcripts for the s. 11(b) were incomplete. The assigned trial judge could only accommodate a two-day trial, not a three-day trial.
• On July 18, 2024 a third trial date was set for July 29, 30, 31, 2024. The s. 11(b) application was scheduled for July 24, 2024.
• This s. 11(b) application was heard on July 24, 2024.

Positions of the Parties

[5] The total delay in this case is 999 days.

[6] The defence concedes that 280 days constitutes defence delay and submits the net delay still exceeds the Jordan ceiling and a stay should follow.

[7] The Crown’s first position is the court should dismiss the application due to deficiencies in the application. The Crown’s alternative position is that the net delay in the case is below the presumptive ceiling of 18-months.

Analysis

1. Dismissal of the application

[8] After the first trial date did not proceed, a second trial date was set within 70 days and there was a small window for the defence to file this s. 11(b) application.

[9] This court finds that there were certain deficiencies with the s. 11(b) application. Material transcripts were not filed by the first hearing date on July 17, 2024. The transcripts were all made available to the defence on June 10 or 12, and July 5, 2024 and there is no evidence as to why the transcripts were not filed before July 17, 2024. In addition, the applicant’s written submission did not make clear what time period the defence was conceding constituted defence delay. I accept both deficiencies prevented the Crown from responding effectively in writing by the first hearing date, July 17, 2024. That said, the s. 11(b) application and trial did not proceed on July 17, 2024, because the trial judge was only available for two, not three days.

[10] By the second date set for this s. 11(b) hearing, July 24, 2024, all the transcripts were received by the Crown and the court, albeit late. The Crown had filed an application record, made effective oral submissions, and provided the court with succinct, and helpful informal written submission.

[11] This court concludes that the shortcomings in the original application prevented the Crown from submitting a formal written response in advance, however they did not prevent the Crown from making effective oral arguments on July 24, 2024. This court is satisfied that the irregularities in this application inconvenienced the Crown, but did not prejudice their ability to substantively respond on July 24, 2024. The Crown’s request to summarily dismiss the application is therefore denied.

2. Defence delay

[12] Defence delay has two components. The first is delay waived by the defence. The second is delay caused solely by the conduct of the defence. [2]

[13] I find two periods of defence delay in this case.

a) Delay caused solely by the defence.

[14] The defence concedes they caused 280 days of delay. Their written material does not indicate what time frame this concession covers.

[15] Having heard oral submissions on this point, this court finds that the defence caused 282 days (or 9 months and 7 days) of delay during the intake period. Specifically, the delay between the first JPT on April 11, 2022 the second JPT on January 18, 2023.

[16] I make this finding for three reasons:

i. The defence failed to set either a trial or preliminary hearing date after their first JPT and through out this entire time period. ii. The defence explicitly waived their s. 11(b) rights on April 26, 2022. Subsequently the defence either failed to attend court or otherwise move the matter forward on the subsequent set date appearances: July 5, 2022, August 2, 2022, October 11, 2022, November 29, 2022, December 13, 2022, December 19, 2022. iii. On December 23, 2022 the defence set a second JPT for January 18, 2023. There is no evidence as to why it was necessary to further delay the case in order to hold a second JPT.

[17] My conclusion is that a deduction of 282 days for defence caused delay is warranted. This reduces the total delay from 999 days to 717 days, still above the presumptive ceiling of 18 months for cases in the Ontario Court of Justice.

b) Delay waived by the defence.

[18] The Jordan the Supreme Court of Canada explained that a waiver can be explicit or implicit, but in either case, it must be clear and unequivocal. In considering the issue of waiver in the context of s. 11( b ), it must be remembered that it is not the right itself which is being waived, but merely the inclusion of specific periods in the overall assessment of reasonableness. [3]

[19] More recently, the Supreme Court of Canada recognized a duty to act proactively rests on the accused:

A n accused who sees delay lengthening must respond in a proactive manner. Like any other application made by an accused, an s. 11(b) motion must be brought "reasonably and expeditiously." Lateness in raising delay is contrary to the proper administration of justice, because such a practice serves to waste judicial resources… [4]

…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 . [5]

[20] In the same recent decision, the Supreme Court of Canada reiterated that waiver of delay cannot be inferred solely from the accused’s silence or failure to act and any waiver must be clear and unequivocal. [6]

[21] In this case, I am satisfied that the defence waived the delay between May 9, 2023, when they set the first trial date, and the end of the first trial date on May 10, 2024. I come to this finding for two reasons:

i. Defence counsel explicitly waived their s. 11(b) rights when they put the first trial date on the record on May 9, 2023. On May 9, 2023 the transcript reveals that the Crown specifically asked the defence if s. 11(b) was in issue. If so, the Crown advised the defence that the Crown would take steps to obtain earlier dates than the ones offered. Defence counsel responded: “No. Trial’s been scheduled, so s. 11(b) is not an issue, yes.” ii. Defence counsel did not make a s. 11(b) application prior to the first trial date. On May 8, 2023 a request was not made by the defence for a s. 11(b) hearing date when the first trial was scheduled well outside the Jordan guidelines. A s. 11(b) hearing was not requested at any time after May 8, 2023, and prior to the first trial date. A s. 11(b) application was not filed in accordance with The Rules of the Ontario Court of Justice prior to the first trial. The same defence counsel was retained from the beginning of these proceedings and therefore had knowledge of the history of the delay in this case.

[22] Based on the above two considerations, my conclusion is the defence waived 368 days (1 year and 2 days) of delay between May 9, 2023 and the end of the first trial date, May 10, 2024. This results in an additional reduction of the net delay from 717 to 349 days, below the Jordan ceiling.

3. Exceptional Circumstances

[23] In Jordan medical and family emergencies (whether on the part of the accused, important witnesses, counsel or the trial judge) were cited as examples of circumstances that would generally qualify as exceptional circumstances. [7]

[24] In this case, there is evidence that the assigned Crown was ill for the first trial. The transcript for May 8, 2024, makes it clear that but for her absence due to her illness, this case had priority and would have begun on May 8, 2024. Instead, the case was adjourned to the second day set aside for trial to see if the Crown was well enough to start the case.

[25] On the second day, May 9, 2024, the case was transferred in the afternoon from Justice Mackay’s court to Justice Cornelius’s court. The Crown requested, and was granted, permission by the court to appear remotely because she was ill. The assigned Crown advised the court, and I accept, that she was having difficulty speaking on account of a chest infection. She also advised the court that she had prepared the case and met with the complaint, who was present at court and ready to testify. After the defendant was arraigned, it quickly became apparent that the Crown could not hear the proceedings over the interpreter’s simultaneous interpretation. A decision was made to adjourn the case to the third day set for trial, May 10, 2024, to see if the Crown was well enough to attend in person and start the case.

[26] On May 10, 2024, the assigned Crown was too sick to attend in person.

[27] Defense submits that I should not consider the delay between the first and second trial dates as exceptional circumstances because on the second day of trial this case was not reached until the afternoon and could not proceed because the technology failed, preventing the Crown from appearing remotely from home.

[28] I cannot accede to this submission. The assigned Crown’s willingness to try and start the case remotely on the afternoon of the second day of trial does not detract from the fact that this case did not start on May 8, 2024 for one reason only. The Crown was unmistakably ill. Two judges commented on the assigned Crown’s presentation and obvious illness. This case could also not start on May 10, 2024 because the assigned Crown was still too ill to attend in person. The assigned Crown’s dedication and willingness to try and appear remotely on the second day of trial does not change the fact that the only reason this case did not proceed as planned for three days was due to the Crown’s illness.

[29] This court is also satisfied the Crown and the justice system proceeded to mitigate the delay resulting from this discrete exceptional circumstance. A JPT and new trial dates were set in very short order after the first trial did not proceed. The Crown agreed to short service of a s. 11(b) application and to a quick second trial date on July 17,18, 19, 2024. When the case could not be reached on July 17, 2024, the Crown agreed to another short turnaround time for trial less than two weeks later: July 29, 30, 31, 2024.

[30] My conclusion is that the 70 days of delay between the first and second trial dates (May 10, 2024 to July 19, 2024) qualify as exceptional circumstances. The net delay is further reduced from 349 days to 279 days.

4. Other delay

[31] There are four additional periods of delay for which there is no explanation in evidence:

• As of December 14, 2021, a Crown pre-trial was set for January 4, 2022. There is no evidence as to whether this was the first available time slot for a meeting with the Crown.
• Following the Crown pre-trial on January 4, 2022, a judicial pre-trial was not scheduled by the defence until February 22, 2022. There is no evidence regarding the reason for the delay in setting a JPT.
• As of February 22, 2022, the first judicial pre-trial was set for April 11, 2022. There is no evidence as to whether this was the earliest JPT offered by the trial co-ordinator.
• On December 23, 2022, the defence scheduled a second JPT for January 18, 2023. There is no evidence as to why a second judicial pre-trial was necessary, nor whether January 18, 2023, was the earliest available date offered by the trial-coordinator.

[32] Given my assessment that the net delay is well below the presumptive ceiling of 18 months, I decline to decide whether any further deduction is warranted based on the gap in evidence with respect of these additional four time periods.

Conclusion

[33] After making deductions from the total delay to account for defence delay and exceptional circumstances, this court finds the net delay in this case is 279 days, below the presumptive ceiling for trials in the Ontario Court of Justice. Quite appropriately, the defence did not suggest that this is a case which warrants a stay based on a sub-ceiling delay.

[34] This application is dismissed.

Released in Writing: July 31, 2024

Signed: Justice S. Caponecchia

[1] R. v. Jordan , 2016 SCC 27 [ Jordan ]. [2] Ibid, at para 61, 63. [3] Ibid , para. 71. [4] R v J.F. , 2022 SCC 17 , [2022] SCJ No 17 , para. 34 [ J.F. ] . [5] Ibid , para. 36. [6] Ibid , para. 44-48. [7] Supra, note 1 at para. 72.