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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.

Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2024 02 11 COURT FILE No.: Brampton 3111 998 22 2475

BETWEEN:

HIS MAJESTY THE KING

— AND —

RANJIT SINGH

Before: Justice G.P. Renwick

Heard on: 07 February 2024 Reasons for Judgment released on: 11 February 2024

Counsel: C. Tarjan, for the Crown J. Sandhu and R. Sidhu, for the Defendant Ranjit Singh

RULING ON S. 11(B) [Canadian Charter of Rights and Freedoms](https://laws-lois.justice.gc.ca/eng/Const/page-15.html) APPLICATION

RENWICK J.:

INTRODUCTION

[1] The Defendant faces eight counts of assault, sexual assault, and forcible confinement. The prosecutor has proceeded by indictment. The Defendant has elected to have a trial in the Ontario Court of Justice.

[2] The Defendant was arrested on 02 March 2022. The Information was sworn 03 March 2022. The Defendant’s trial is set to take place 04-07 March 2024, some 24 months and 4 days post-charge.

[3] This Application is brought because the Defendant asserts that his constitutional right to be tried within a reasonable period of time will have been breached by the date that this trial is set to conclude. The Defendant also asserts that if the net delay is below the constitutional limit that this prosecution has taken markedly longer than it should have taken to complete. The prosecution does not seek to rely on any exceptional circumstance to justify any delay and professes timeliness and all appropriate alacrity.

[4] There are few facts in dispute between the parties. The parties agree on the calculation of the total delay and the applicable law. At issue are deductions for defence delay and any apportionment of responsibility for the trial date that was set.

GOVERNING JURISPRUDENCE

[5] In R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada held that trials in provincial courts ought to complete within 18 months.

[6] The first step under the Jordan analysis is to determine the total length of time between the date when the Defendant was charged and the completion of his trial. The next step is to subtract from the total delay any time periods which are “attributable to the defence.”

[7] If the net delay remains above the appropriate ceiling:

…then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.

[8] If, after subtracting defence delay, the net delay is below the 18-month ceiling:

…then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. …stays beneath the ceiling [will] be rare, and limited to clear cases. [Emphasis in the original.]

[9] What is “defence delay?” Time periods that may be deducted from the total delay are those “where the defence conduct has “ solely or directly ” caused the delay.”

[10] That said, not all delay caused by the defence should be counted as defence delay. Our Supreme Court clarified the definition of “defence delay” in R. v. Cody:

In setting the presumptive ceilings, this Court recognized that an accused person's right to make full answer and defence requires that the defence be permitted time to prepare and present its case. To this end, the presumptive ceilings of 30 months and 18 months have "already accounted for [the] procedural requirements" of an accused person's case (Jordan, 2016 SCC 27, at para. 65; see also paras. 53 and 83). For this reason, "defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay" and should not be deducted (Jordan, 2016 SCC 27, at para. 65).

The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. As we said in Jordan, 2016 SCC 27, the most straightforward example is "[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests" (Jordan, 2016 SCC 27, at para. 63). Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted (Jordan, 2016 SCC 27, at para. 64). These examples were, however, just that -- examples. They were not stated in Jordan, nor should they be taken now, as exhaustively defining deductible defence delay. Again, as was made clear in Jordan, it remains "open to trial judges to find that other defence actions or conduct have caused delay" warranting a deduction (para. 64).

Defence conduct encompasses both substance and procedure -- the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.

As well, inaction may amount to defence conduct that is not legitimate (Jordan, 2016 SCC 27, at paras. 113 and 121). Illegitimacy may extend to omissions as well as acts (see, for example in another context, R. v. Dixon, [1998] 1 S.C.R. 244, at para. 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, 2016 SCC 27, at para. 138).

[11] In R. v. Mallozzi, 2018 ONCA 312, our Court of Appeal confirmed that actions that are legitimately taken to respond to the charges will fall outside of defence delay and will not be subtracted from the total delay. However, legitimate defence action may still reduce overall delay if not taken in a timely way, or if the manner of proceeding has led to delay. (R. v. Boulanger, 2022 SCC 2 at para. 5).

[12] The calculation of defence delay is no longer simply a matter of measuring the time between refused and accepted trial dates. Our Court of Appeal has rejected this approach in favour of a contextual approach that considers the circumstances relevant to whether, in respect of a particular period of time, the defence refusal of a date is the “sole or direct” cause of the resulting delay. (R. v. Albinowski, 2018 ONCA 1084 at para. 46). The Supreme Court has confirmed that courts are entitled to apportion responsibility for delay among the litigants. (R. v. Boulanger, 2022 SCC 2 at para. 8).

[13] In J.F., 2022 SCC 17, in the context of delay calculation when a re-trial is ordered, the Supreme Court has affirmed the requirement of all parties to take a prospective approach to delay.

ANALYSIS

Total Delay and the Net Delay

[14] It is agreed that the total delay for this case is 724 days or 24 months and 4 days. Defence delay is to be subtracted from the total delay to arrive at the net delay. Defence delay can arise in two different ways.

[15] The first component is delay resulting from clear and unequivocal waiver of the Defendant’s s. 11(b) right. The parties agree that there has been no waiver of any periods of delay by the Defendant in this matter. The second component is delay caused solely by the conduct of the defence. This includes periods when the prosecution and the court are prepared to proceed and a defendant is not.

[16] The Defendant accepts that there have been three periods of defence delay:

i. 42 days – 03 November to 15 December 2022; ii. 12 days – 16 February to 28 February 2023; and iii. 19 days – 06 July to 25 July 2023.

[17] The prosecution submits that there are many other discrete periods of defence delay, which ought to be deducted from the total delay calculation. Accepting the prosecution’s argument would result in the following deductions to calculate the net delay of this case:

i. 35 days from 05 August to 09 September, for the missed crown pre-trial (“CPT”) until the next one was booked; ii. 20 days from the CPT until the next appearance on 29 September 2022; iii. 35 days from 29 September to 03 November 2022 for a JPT which did not take place; iv. 42 days from 20 December 2022 to 31 January 2023 for rejecting earlier JPT dates; v. 159 days from 31 January to 21 June 2023 (accounts for 12 days already conceded by the Defendant 16-28 February 2023); and vi. 62 days for dates rejected for trial from 02 January until 04 March 2024.

[18] Accepting the Respondent’s calculations would result in a net delay of (724 minus 353) 371 days, which is approximately 12 months. (I adopt the formula used by Paciocco J.A. in R. v. Shaikh, 2019 ONCA 895 at para. 33. To convert the total number of days to months, one must divide the total number of days by the average number of days in a month (365/12 = 30.417). 371 days divided by 30.417 equals 12.2 months). This net delay is well below the Jordan ceiling for a trial in the provincial court.

Calculation of Defence Delay

[19] Pursuant to the directions of higher courts, I have tried to take a wholistic view of the conduct of the parties in setting this matter down for trial. When considered from an atmospheric view, I find that some delay is appropriately attributed to the Defendant.

[20] It is readily apparent that this prosecution has created delays in making disclosure available to the Defendant. The parties agree that disclosure was not completed until October 2023, some 19 months post-charge. However, the parties also agree that by the time of the third JPT on 21 June 2023, the Defendant was in a position to set the matter down for trial.

[21] The Defendant has not been blameless in terms of moving this matter along. Unfortunately, the Defendant’s counsel was ill and the initial CPT had to be re-booked. This accounts for the delay from 05 August until 29 September 2022. I also note that during the appearance on 29 September the Defendant sought to adjourn the matter to seek client instructions and to book a JPT, but there had already been ample time from the completion of the CPT on 09 September until 29 September for both of these purposes.

[22] On the next appearance, 03 November 2022, the Defendant again sought an adjournment for essentially the same reason and then awaited until 14 December (the day before the return date) to book the JPT for 31 January 2023. On 14 December, records from the Trial Coordinator’s office (accepted by the Defendant) establish that the JPT could have been held on 20 December 2022.

[23] As a result, I accept the Respondent’s submissions respecting the delays in periods i. through iv. above; almost all delay from 05 August 2022 through 31 January 2023 was essentially waived by the Defendant. Of these 132 days, I would subtract 30 days to account for the necessary steps of seeking the Defendant’s instructions following the CPT and commencing the judicial pre-trial process.

[24] The matter went over from 28 February until 25 April 2023 essentially to continue the pre-trial process while awaiting disclosure. In fact, there was little gained by successive appearances until the third JPT on 21 June 2023. The delays through this period were not the Defendant’s, who kept pursuing the outstanding disclosure with a CPT on 24 March and a JPT on 01 June 2023.

[25] Initially, the trial had been set to occur in February 2025. On 18 September, the parties appeared before a judge with a Trial Coordinator present in order to re-book the trial for an earlier date. At that time it was anticipated that the Defendant would bring an application pursuant to s. 278 of the Criminal Code, respecting the sexual assault allegations. This was discussed and documented throughout the JPT process. For this reason, the Trial Coordinator could not offer dates until January 2024. It is difficult to assess the effect that this had and it is noteworthy that the Defendant is no longer seeking to pursue additional hearing dates prior to the trial.

[26] Counsel for the Defendant was unavailable for the following trial dates that were offered that day:

i. 02-05 January 2024; and ii. 22-24 January 2024.

[27] There were dates offered in February 2024, but the crown was unable to accept them due to officer unavailability for the entire month of February 2024. Ultimately, all parties agreed to the new trial dates: 04-07 March 2024.

[28] The Defendant has not suggested that the early dates offered in January 2024 are inappropriate given that they were only offered on 18 September 2023. The Defendant disputes responsibility for the entire delay until 04 March 2024 because he was available for all of the dates offered in February which were unavailable for the prosecution (29 January to 01 February, 12-15 February, and 20-23 February 2023).

[29] I find that it is appropriate to apportion 50% responsibility for delay to the Defendant from the earliest available new trial date until the date selected. Of this delay (02 January until 04 March = 62 days), I will apportion 31 days to the Defendant.

[30] The gross defence delay in this case is as follows:

i. 35 days - 05 August to 09 September; ii. 20 days - 09 to 29 September 2022; iii. 35 days - 29 September to 03 November 2022; iv. 42 days - 03 November to 15 December 2022; v. 42 days - 20 December 2022 to 31 January 2023; vi. 12 days - 16 February to 28 February 2023; vii. 19 days - 06 July to 25 July 2023; and viii. 31 days - 02 January to 04 March 2023.

[31] Again, of these 236 days, I am subtracting 30 days for steps legitimately taken by the Defendant. The total defence delay is 206 days, which will be subtracted from the total delay in this case.

[32] The net delay from when the Defendant was charged until the anticipated completion of his trial is (734 minus 206) 528 days or 17.4 months, which is below the presumptive Jordan limit for trials in this level of court.

[33] The Defendant suggests that this is an inordinate period of time and his matter has taken markedly longer than it should have to complete.

[34] The Defendant bears the onus to establish that the case is a clear example of unreasonable delay by meeting two criteria:

i. The Defendant took meaningful steps demonstrative of a sustained effort to expedite the proceedings; and ii. The case took markedly longer than it reasonably should have taken to end.

[35] I reject this argument on the first branch of this test.

The Defendant Did Not Take Meaningful Steps to Expedite the Proceedings

[36] As is obvious from the delays from August 2022 until the end of the year, the Defendant did not exhibit a sustained effort to expedite proceedings. As the record reflects on 03 November 2022:

Mr. Sidhu: …Your Worship, counsel would like to request to adjourn this matter to the December 15th date. We are aware that we were supposed to conduct a JPT from the last date, however, we had some issues getting in contact with our client and some issues regarding our fees. Those issues have been cleared. Counsel can now proceed with the judicial pretrial.

[37] Then, notwithstanding that the matter was to return on 15 December, counsel did not book the JPT (to occur on 31 January 2023) until 14 December 2022. There is no explanation for refusing 20 December 2022 to conduct the JPT.

[38] Moreover, in February 2023, there was confusion over how the Defendant was electing to have his mode of trial. This necessitated several adjournments. Also, on 21 February 2023, no one appeared and the matter had to be adjourned one week.

[39] The booking of crown and judicial pre-trials is no mere administrative step. They are important parts of a larger process to determine whether or not matters can be resolved short of a trial, or, alternatively, what the issues will be and how much trial time is required.

[40] For the reasons stated, I do not accept that this Defendant demonstrated the appropriate haste in moving this matter through the pre-trial process. As a consequence, it is unnecessary to decide whether the matter took markedly longer than it should have taken to come to trial.

CONCLUSION

[41] The Defendant’s s. 11(b) Charter right to be tried within a reasonable period of time will not be breached if the evidentiary phase of this trial completes as anticipated on 07 March 2024.

[42] Accordingly, this Application is dismissed.

Released: 11 February 2024 Justice G. Paul Renwick