Ontario Court of Justice

Date: 2024 04 18 Court File No.: Brampton 3111 998 22 3034

Between: HIS MAJESTY THE KING

— AND —

LOUIS ALOYSIUS

Before: Justice G.P. Renwick

Heard on: 18 April 2024 Reasons for Judgment released on: 18 April 2024

Counsel: A. Persad-Ford, for the Prosecution T. MacDonald, for the Defendant Louis Aloysius

Ruling on S. 11(b) Charter Application

RENWICK J.:

Introduction

[1] The Defendant is charged with impaired operation (s. 320.14(1)(a)) and failing to provide a breath sample (s. 320.15(1)). The prosecutor has elected to proceed summarily.

[2] The Defendant was arrested on 18 February 2022. Given the charges, the evidence gathered to prosecute the Defendant was likely available on the date of his arrest. The Information charging him was sworn on 15 March 2022. The Defendant’s trial is set to take place 09-10 May 2024, 788 days or almost 26 months post-charge.

[3] The Defendant asserts that his constitutional right to be tried within a reasonable period of time will have been breached by the date that his trial is set to conclude. The Defendant also submits that if the net delay is below the constitutional limit that this prosecution has taken markedly longer than it should have taken to complete.

[4] The prosecution does not seek to rely on any exceptional circumstance to justify any delay and professes timeliness and all appropriate alacrity. There are few facts in dispute between the parties. The parties agree on the total delay and the applicable law. At issue are deductions for any defence delay or a lack of timely notice of this Application.

Governing Jurisprudence

[5] In R. v. Jordan, the Supreme Court of Canada held that trials in provincial courts ought to be completed within 18 months. [2]

[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. [3] The next step is to subtract from the total delay any time periods which are “attributable to the defence.” [4]

[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. [5]

[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. [6] [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.” [7]

[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, 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, 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, the most straightforward example is "[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests" (Jordan, 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, 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, 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, at para. 138). [8]

[11] In R. v. Mallozzi, the 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. [9] 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. [10]

[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. [11] The Supreme Court has confirmed that courts are entitled to apportion responsibility for delay among the litigants. [12]

[13] In J.F., in the context of delay calculation when a re-trial was ordered, the Supreme Court reiterated the requirement of all parties to take a prospective approach to delay. [13]

Analysis

Total Delay and the Net Delay

[14] It is agreed that the total delay for this case is 788 days or 25 months and 25 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 are four days of delay directly attributable to the actions of the Defendant (17-21 October 2022). During argument, counsel for the Defendant also agreed that there may be attribution of other time periods where the Defendant did not move with any apparent haste once an anticipated guilty plea was aborted and trial estimate forms had to be forwarded to the Trial Coordinator to request a trial scheduling meeting (22 October 2022 until 25 January 2023).

[17] The prosecution submits that there are three discrete periods of defence delay (80 days from 24 May until 12 August 2022; 95 days from 22 October 2022 until 25 January 2023; and 152 or half of the 304 days from 23 March 2023 until 21 January 2024), which ought to be deducted from the total delay calculation. Accepting the prosecution’s argument would result in 327 days deducted from the overall delay (788 minus 327 = 461 days), resulting in a net delay of approximately only 15 months. [14] This net delay is well below the Jordan ceiling for a trial in the provincial court.

Calculation of Defence Delay

[18] 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.

[19] It is readily apparent that the prosecution created delays in making disclosure available to the Defendant. It appears that disclosure was not complete until 07 November 2022. However, the Defendant had initially brought forward the matter to 17 October 2022 to plead guilty. I am satisfied that by 17 October 2022 the Defendant had sufficient disclosure to make a decision respecting resolution. Despite the initial delays, disclosure became a non-issue some seven months after the Defendant was charged.

[20] What then occurred is unfortunate. It took almost five months to set the matter down for trial (17 October 2022 until 09 March 2023).

[21] On 17 October 2022, the Defendant indicated that he no longer wanted to plead guilty, and that he wanted to set the matter down for trial. Usually this would entail sending a trial time estimate form (“TTEF”) and a trial scheduling form to the Trial Coordinator. These forms are generally completed following a crown pre-trial. The crown pre-trial had taken place on 12 August 2022, well before disclosure was complete.

[22] In my view, it is not a coincidence that once full disclosure had been provided the Defendant changed course and sought to raise s. 10(b) of the Charter at trial.

[23] Through counsel, the Defendant attempted to contact the pre-trial crown by email to have another TTEF completed with the anticipated Charter Application noted. The matter was adjourned twice while this simple procedure remained outstanding (14 November 2022 and 16 January 2023). Finally, on 25 January 2023, the Defendant met with the crown again and the amended TTEF was completed.

[24] The parties eventually met with the Trial Coordinator and set the matter down for trial on 09 March 2023. The trial was set to occur some 14 months later (09-10 May 2024). The trial scheduling form clearly indicates that no pre-trial applications were anticipated to be brought when this trial was set.

[25] In terms of defence delay, I disagree with the prosecutor that the Defendant acted indifferently toward advancing the case after his first appearance on 24 March 2022 until the first crown pre-trial on 12 August 2022. Important disclosure was outstanding. Counsel had written to the prosecutor and made several specific requests for the disclosure during his first two appearances (24 May and 15 July 2022). The Defendant conducted a crown pre-trial before his third court appearance (16 August 2022). Although the justice presiding on the first appearance suggested conducting a crown pre-trial, it was not unreasonable to expect that the efforts already expended to that point might cure the disclosure issue without the need for a crown pre-trial meeting.

[26] For the second alleged period of defence delay, I agree with the prosecutor that the Defendant could have had the revised TTEF approved by a crown attorney well before 25 January 2023. The efforts made (sending emails) to contact the pre-trial crown, who was known to be occupied in a lengthy matter, were insufficient. This is especially true when the automated email responses of 17 November and 04 December 2022 indicated: “If your matter is urgent [my emphasis] please email the R#1 crown or contact reception at virtualcrownbrampton@ontario.ca.” Inexplicably, the Defendant waited until 19 December 2022 to follow up his earlier requests using the general crown email address. Then, it took until 25 January 2023 until the parties actually met to sign another TTEF.

[27] I find that the prosecutor was not blameless during this period. There is no indication that the pre-trial crown ever responded to the emails sent by counsel requesting approval to submit a revised TTEF. From 22 October 2022 until 25 January 2023 I would apportion 2/3 of the delay (63 days) to the Defendant for his lack of diligence in the matter.

[28] The prosecutor seeks an even apportionment of the 304 days of delay following a reasonable period (two weeks) after the trial was set until the Defendant made known his intention to claim that his s. 11(b) Charter right had been violated.

[29] Not only was he mute during the two court appearances following the trial scheduling meeting (15 May and 19 June 2023), the Defendant’s silence respecting his s. 11(b) concerns was maintained despite a well-publicized backlog reduction initiative in this jurisdiction in the autumn of 2023.

[30] By camouflaging his intention to assert his right to a trial within a reasonable period of time until 21 January 2024 (some 10 months after his trial was scheduled or 108 days before his trial was to start), the Defendant obscured the pending s. 11(b) crisis until the situation could no longer be remedied.

[31] Again, the prosecutor had a role to play in recognizing the problematic trial date. At the very least, when the matter was addressed in court on 19 June 2023, the Defendant should have been asked about s. 11(b) to determine the significance of the matter lumbering across the constitutional threshold.

[32] Bearing in mind that the entire delay from 09 March 2023 until 10 May 2024 is a result of the lack of institutional resources of which the Defendant owns no share, nonetheless, I am satisfied that is appropriate to apportion 50% responsibility to the Defendant for raising his s. 11(b) Charter concerns well after it was too late to cure.

[33] The gross defence delay in this case is calculated as follows: i. 4 days [15] – 17 October to 21 October 2022; plus ii. 63 days – 22 October 2022 until 25 January 2023; plus iii. 152 days – 23 March 2023 until 21 January 2024.

[34] The total defence delay is 219 days.

[35] The net delay from when the Defendant was charged until the anticipated completion of his trial is (788 minus 219) 569 days or 18.7 months. This exceeds the presumptive Jordan limit for trials in this level of court.

[36] The prosecutor did not seek to justify any delay above the constitutional limit.

Conclusion

[37] The Defendant’s s. 11(b) Charter right to be tried within a reasonable period of time will be breached if the trial completes as anticipated on 10 May 2024.

[38] Accordingly, the Application is granted and the charges are stayed.

Released: 18 April 2024 Justice G. Paul Renwick

Footnotes

[1] Canadian Charter of Rights and Freedoms, Being Part I of the Constitution Act, 1982, Enacted as Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (“Charter”).

[2] 2016 SCC 27 at para. 5.

[3] Jordan, supra, at para. 60.

[4] Ibid.

[5] Jordan, supra, at para. 47.

[6] Jordan, supra, at para. 48.

[7] R. v. Cody, 2017 SCC 31, [2017] S.C.J. No. 31, at para. 28; Jordan, supra, at para. 66.

[8] Cody, supra, at paras. 29-30 and 32-33, respectively.

[9] R. v. Mallozzi, 2018 ONCA 312, [2018] O.J. No. 1794 (C.A.) at para. 3.

[10] R. v. Boulanger, 2022 SCC 2 at para. 5.

[11] R. v. Albinowski, 2018 ONCA 1084 at para. 46.

[12] Boulanger, supra, at para. 8.

[13] 2022, SCC 17 at paras. 31 and 31.

[14] 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). 461 days divided by 30.417 equals 15.2 months.

[15] This was conceded by the Defendant in his written materials.