ONTARIO COURT OF JUSTICE DATE: 2024 01 23 COURT FILE No.: Brampton 21-15161

BETWEEN:

HIS MAJESTY THE KING

— AND —

ANTON LOKUBALASURIYA

Before Justice Paul F. Monahan

Section 11(b) application heard on January 9, 2024 Reasons for Judgment released on January 23, 2024

S. Hopkins............................................................................................ counsel for the Crown S. Pieters and T. King............................ counsel for the accused Mr. Lokubalasuriya

MONAHAN J.:

Introduction

[ 1 ] The defendant brings this application for a stay under section 11(b) of the Charter.

[ 2 ] The charges relate to allegations arising in a domestic context which include three assaults, assault with a weapon (a wooden spoon) and assault by choking. While the information was sworn on October 10, 2021, the charges relate to historical allegations from 2016 to 2021.

[ 3 ] A four-day trial is scheduled to take place before me on April 15-18, 2024. The total delay from the date the information was sworn until the anticipated end of the trial on April 18, 2024 is 922 days.

The Jordan framework

[ 4 ] The Jordan framework is well known and may be summarized as follows:

1. A trial Court hearing an s.11 (b) application should calculate the total delay from the charge to the anticipated end of the trial (Jordan at para. 47);

2. From the total delay the Court should deduct defence delay (Jordan para. 66) and the delay associated with discrete exceptional circumstances (Jordan at paras. 75 and 82);

3. Defence delay has two components. The first is delay waived by the defence. The other is delay caused "solely or directly" by defence conduct including circumstances where the defence uses a deliberate tactic to delay the trial. Inaction by defence counsel that is illegitimate may also amount to defence delay.

4. If the delay is above the presumptive ceiling then it is presumptively unreasonable. The Crown can rebut this presumption by showing that the delay is reasonable on the basis of exceptional circumstances (Jordan para. 68). This is the only basis upon which the Crown can justify a delay above the ceiling and avoid a stay. The absence of prejudice in cases above the ceiling is irrelevant (Jordan para. 81);

5. Below the presumptive ceiling a stay may still issue if the defence can establish two things: (1) that 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. In the absence of these two factors, the stay application will fail (Jordan para. 82); and

6. The Supreme Court observed that they expected stays below the ceiling would be "rare" and should be limited to only in clear cases. In setting the ceiling, the Supreme Court factored in tolerance for reasonable institutional delay (Jordan para. 48 and 83).

Chronology

[ 5 ] An abbreviated chronology of this case is as follows:

(a) October 10, 2021-information sworn;

(b) February 20, 2022-initial disclosure provided;

(c) April 4, 2022-a CPT was held and Crown counsel request that the defence schedule a JPT;

(d) May 16, 2022-defence emails the trial coordinator in order to set up a JPT;

(e) July 21, 2022-JPT conducted and trial time estimate form completed;

(f) July 26, 2022-trial scheduling link sent by the Crown to the defence;

(g) September 21, 2022- the defence makes a request of the trial coordinator for a trial scheduling conference;

(h) October 21, 2022-a trial scheduling conference is held with the trial coordinator. The first date offered is April 15-18, 2024 which the defence accepts. No mention is made by the defence of any section 11(b) concerns;

(i) December 1, 2022-the trial dates are put on the record. No mention is made by the defence of any section 11(b) concerns;

(j) December 13, 2022- defence counsel advises Crown counsel in writing that “the dates available for this matter will potentially raise Jordan issues” and expresses concerns about having to wait until April 2024 to have a trial. Crown counsel responds the same day advising defence counsel how to schedule a s. 11(b) hearing;

(k) September 1, 2023-defence counsel writes to Crown counsel and states “I therefore want to put the Crown on notice again of the Jordan jeopardy of this case and the significant prejudice”;

(l) September 6, 2023-Crown counsel responds to defence counsel and states “I will have a look at the file and see if we can get some priority dates”;

(m) September 11, 2023 - Crown counsel advises defence counsel that “Unfortunately, we are unable to get prioritization dates that would be under the Jordan ceiling. You are more than welcome and I encourage canvassing the trial coordinator to see if there are dates prior to your current trial date to get sooner dates. You would just book your trial appointment like you previously did. The trial can be booked with just police leave dates using the trial time estimate form.”

(n) September 21, 2023 -defence counsel take steps to schedule a JPT in order to schedule a section 11(b) application; and

(o) October 24, 2023 - the trial coordinator communicates with the Crown and the defence and a section 11(b) application is scheduled for January 9, 2024.

[ 6 ] Based on the materials filed, my consideration of the record and the submissions of counsel I have identified the following time periods for consideration as to whether there is any defence delay or delay due to exceptional circumstances:

(a) April 4, 2022 to May 16, 2022 which represents the time when the Crown says the case was ready for a JPT until counsel booked a JPT (43 days);

(b) Trial Scheduling Issues including from July 26, 2022 to September 21, 2022 which represents the time between which the Crown advised the defence as to the trial scheduling procedure on July 26, 2022 until the defence requested a trial scheduling conference on September 21, 2002(58 days). The Court will also consider delays in the trial coordinator’s office associated with scheduling the trial scheduling date (14 days).

(c) October 21, 2022 until September 21, 2023 representing the time between when trial dates were set with the trial coordinator with no complaint being made about section 11(b) until clear steps were taken to schedule a s. 11(b) application (336 days); and

(d) Whether some further period of delay related to delays caused by the “ripple effect” associated with the Court closures and related delays caused by the Covid- 19 pandemic.

[ 7 ] I will turn now to examine the relevant time periods to determine whether any defence delay or delay due to exceptional circumstances.

a) April 4, 2022 to May 16, 2022 which represents the time when the Crown says the case was ready for a JPT until counsel booked a JPT (43 days)

[ 8 ] On my view of the record in this case, I agree with the Crown that defence counsel should have taken steps to set up a JPT after the CPT was conducted on April 4, 2022. This is defence delay of 43 days.

b) Trial Scheduling Issues including from June 26, 2022 to September 21, 2022 which represents the time between which the Crown advised the defence as to the trial scheduling procedure on July 26, 2022 until the defence requested a trial scheduling conference on September 21, 2022 (58 days). The Court will also consider delays in the trial coordinator’s office associated with scheduling the trial scheduling date (14 days).

[ 9 ] Once the JPT was completed on July 21, 2022 and the trial estimate done, defence counsel should have taken immediate steps to set up a trial scheduling conference with the trial coordinator. The Crown is requesting that this only start on July 26, 2022. In my view it could be driven back to July 21, 2022 but given the Crown submission on this point I will only treat as defence delay the 58 days until the trial scheduling conference was requested on September 21, 2022.

[ 10 ] In this case it took the trial coordinator one month to set up a trial scheduling conference after it was requested. The trial scheduling conference was requested on September 21 and not held until October 21, 2022. It could be argued that all of this time is due to the exceptional circumstance of the pandemic because prior to the pandemic trial dates could be scheduled in one day immediately upon completion of the JPT. During Covid, for public health reasons, in order to avoid defence counsel from having to attend in person to set a trial date, a local practice was developed that the trial coordinator began to schedule trial scheduling conferences with defence counsel to take place by zoom to set trial dates. The trial coordinator develops a schedule and has to contact defence counsel to set up dedicated Zoom meetings with them and a representative of Peel Regional Police who has the officers’ availability dates. This can take 2 to 4 weeks. Some judges including myself have allowed 2 weeks as a pandemic exceptional circumstance deduction (see Justice Duncan's decision in the R. v. Ambrose [2022] O.J. 4793 at para 20-21). I consider that it is appropriate in this case to deduct two weeks as an exceptional circumstance for the scheduling of the trial dates via this process as pandemic related delay as the pandemic was ongoing at the time of the trial scheduling in this matter.

[ 11 ] Accordingly, I will deduct 58 days as defence delay and 14 days as exceptional circumstance delay associated with the trial scheduling process. The total delay here is 72 days.

c) October 21, 2022 until September 21, 2023 representing the time between when trial dates were set with the trial coordinator with no complaint being made about section 11(b) until clear steps were taken to schedule a s. 11(b) application (336 days).

[ 12 ] As indicated above, the trial dates of April 15-18, 2024 were set on October 21, 2022 with the trial coordinator. They were put on the record on December 1, 2022. The defence said nothing about section 11(b) at either the October 21 or December 1, 2022 attendances. As I noted in the chronology above, defence counsel did put the Crown on notice in writing on December 13, 2022 that the trial dates “will potentially raise Jordan issues”. The Crown’s response was essentially to say that they are “doing everything possible to triage cases” and they advise defence counsel how to go about setting up a section 11(b) application in Brampton. The Crown submits that I should deduct 366 days as defence delay representing the time between when the dates were set with the trial coordinator on October 21, 2022 and the time when the defence took steps to schedule a section 11(b) application on September 21, 2023.

[ 13 ] Based on the Supreme Court of Canada rulings in Jordan and R. v. Cody, 2017 SCC 31 and R. v. J.F. 2022 SCC 17, a considerable body of law is developing at the Ontario Court of Justice (“OCJ”) level to the effect that the failure of defence to proactively assert their client’s section 11(b) rights may lead to having some defence delay attributed to the defence. Relying on Jordan, Cody and J.F., a number of OCJ Courts have held that where a defendant sets a trial date above the Jordan ceiling and says nothing about section 11(b) concerns, then some portion of time associated with the delay in raising these issues should be attributed as defence delay. In particular a number of OCJ judges have attributed as defence delay 50% of the time from when the dates are set until the trial date or, in some cases only until the Crown is put on notice that the defence intends to bring a section 11 (b) application: see R. v. Nigro 2023 ONCJ 41 (per Justice West); R. v. Ahmed (unreported per Justice Caponecchia); R. v. A.D. (unreported per Justice Lai); R v. MacDonald (unreported per Justice Daviau); R. v. Kullab 2023 ONCJ 458; and R. v. M.W. 2023 ONCJ 581. Courts have in some cases allowed defence counsel 2 to 4 weeks after the trial dates are set for defence to order transcripts of past court attendances in order to finalize the defence’s position on section 11(b) (see Ahmed and M.W.).

[ 14 ] I note that the obligation to notify the Crown in a timely way if the defendant intends to bring a s. 11(b) application has also been referred to by Justice Nakutsuru of the Superior Court in R. v. White 2023 ONSC 7 at paras. 42-45. I am aware that Justice Nakutsuru’s comments were made in the context of his examination of the practice direction in the Superior Court of Justice which captures the obligation in this regard.

[ 15 ] In order to determine whether any defence delay should be attributed to the defence in this case for a failure to clearly assert section 11(b) issues in a timely way, it is important to understand the legal theory behind why cases like Ahmed, A.D., Macdonald, Kullab and M.W and other cases have found significant defence delay in these cases. In my view, before deducting any amount as defence delay for failing to raise section 11(b) concerns in a timely way, the Court must be satisfied that had the defence acted promptly, the Crown could have and would have prioritized the case and had it heard under the Jordan ceiling: see Ahmad at para 30; Kullab at paras at 34 to 37 and M.W. at para 38. Formal evidence is not required in this regard and the Court can rely upon its knowledge of local practice and the circumstances in the case before the Court. Further, as I observed in Kullab, a finding of defence delay is not an “exact science” and is “highly discretionary”. The Court can, among other things, have regard to the public record which discloses that the Crown in Brampton has regularly prioritized serious cases including those involving allegations of sexual assault and possession of firearms to give but two examples (see Kullab at para 37).

[ 16 ] As indicated above, in the case at bar, the Crown seeks to have attributed as defence delay 100% of the time between when the trial dates were set on October 21, 2022 until the defence took concrete steps to set up the section 11(b) application on September 21, 2023. I am not aware of any case in which the Court has attributed 100% of the time during which the defence is silent on section 11(b) to the defence as defence delay. The Crown submitted in oral argument that in the alternative, the Court should attribute 50% of the time between October 21, 2022 and September 21, 2023 as defence delay.

[ 17 ] In my view, none of the time between October 21, 2022 and September 21, 2023 should be treated as defence delay. I say that because on this record it is clear to me that the Crown was not interested in prioritizing this case. I say that for three reasons.

[ 18 ] First, when the defence raised Jordan concerns on December 13, 2022, just two months after the trial dates had been set, the Crown did nothing more than tell defence counsel how they could schedule a section 11(b) application. The Crown must be taken to have known by this point in time that the trial date had been set 17 months and 29 days down the road and that this was the first available date. I say this because defence counsel told Crown counsel on December 13, 2022 that the trial dates “will potentially raise Jordan issues”. I agree with the Crown that the defence had an obligation to be more proactive and clearer in asserting their client’s section 11(b) rights but nevertheless, it cannot be said that the defence was completely silent. There was also no suggestion from the Crown that it was prepared to collaborate with the defence to get an earlier trial date.

[ 19 ] Second, on September 1, 2023 when defence counsel again raised Jordan concerns, the Crown said they would look into “priority dates” but then came back shortly thereafter and said “we are unable to get prioritization dates that would be under the Jordan ceiling”. I note that the trial date was still seven months away at this point in time.

[ 20 ] Third, it is well known in Brampton and is a matter of public record that Acting Regional Senior Justice Leitch issued a letter to justice system participants in Brampton on August 21, 2023 indicating that the Court would be convening a Court right away that would offer earlier trial dates due to the fact that three judges had been appointed in Brampton (see R. v. M.W. 2023 ONCJ 581 at para. 27). He indicated that the Crown would identify the cases to be given priority. I infer from the fact that there is no transcript of a court attendance before me concerning this earlier date Court that the Lokubalasuriya case was not identified by the Crown as a priority case. [1]

[ 21 ] The failure to prioritize this case is not a criticism of the Crown. The difficult reality is that there are simply not enough resources in Brampton to have all cases completed under the Jordan ceiling. As a result, the Crown has to make decisions as to which cases it wishes to prioritize and defence counsel and the Court need to cooperate in this regard. Having said that, not all cases can be prioritized. Some cases will be stayed for delay.

[ 22 ] My view of this case is that the defence counsel should have more plainly and clearly made the defendant’s section 11(b) concerns known earlier. It was not sufficient for the defence to say on December 13, 2022 only that the trial dates “will potentially raise Jordan issues”. Having said that, it is apparent to me on this record that even if the section 11(b) concerns had been more plainly raised on December 13, 2022, the Crown was not prepared to prioritize this case. The Crown was twice given the opportunity to prioritize this case (in December 2022 and again in September 2023) and twice the Crown declined. The Crown may have been influenced by the fact that the complainant wrote to the Crown in August 2022 asking that the Crown not proceed with the charges.

[ 23 ] To summarize on this point, I am not prepared to attribute any of the 336 days between October 21, 2022 and September 21, 2023 as defence delay.

Deduction for Covid-19 Pandemic

[ 24 ] The Crown requests that I deduct a period of time for the delay associated with the Covid-19 pandemic. In particular, the Crown points to the closure of all of the Ontario Court of Justice trial courts for 3.5 months in the spring/summer of 2020, the gradual reopening of the Courts thereafter over a period of many months, and a partial closure again in the May 2021 for 2 weeks as causing a “ripple effect” on the scheduling of cases including this one.

[ 25 ] Before considering the issue of a deduction for Covid-19, this case is at a net delay of 807 days or 26.5 months (this is 922 days less 43 days less 72 days).

[ 26 ] Some judges in Brampton have attributed as much as 4 months delay cause by Covid-19: see Justice Jaffe’s decision in R. v. Pessoa-Whitaker, [2023] 19-38210 (unreported) where she held that 4 months should be deducted as an exceptional circumstance delay associated with the pandemic. She relied, in particular, on the fact that the Court was closed for 3.5 months in 2020 and another two weeks in 2021. Justice F. Dawson of the Superior Court in the recent decision of The King vs. Al-Ramahi et al 2023 ONSC 7281 (unreported) at para 94 and following, agreed with Justice Jaffe’s approach and deducted two months for Covid-19 delay associated with the delays occurring prior to the preliminary inquiry in that case. He said that had he been persuaded that the dates for the preliminary inquiry had been delayed he would have likely attributed four months for Covid-19 just as Justice Jaffe did.

[ 27 ] In my own case of R. v. Toor 2022 ONCJ 8, I expressed the view, obiter, in a case involving facts different than this one, that the Covid delay could be at least 3.5 months depending on the circumstances.

[ 28 ] The case before me is at a net delay of 26.5 months before considering whether there should be an a deduction for Covid-19. Whatever the deduction might be for Covid-19, it would not be 8.5 months or more. Accordingly, even if there was a significant deduction for Covid-19 this case would still be above the Jordan ceiling of 18 months. Accordingly, I will leave for another day the question of whether there should be a general deduction for Covid-19 due to the Court closures and gradual reopening.

Conclusion

[ 29 ] For the reasons set out above and, in particular, my view that this case is well in excess of the Jordan ceiling even if there was a significant deduction for Covid-19, there will be a stay of proceedings under section 11(b) of the Charter.

Released: January 23, 2024

Signed: Justice Paul F. Monahan

[1] Compare this approach to that in M.W. at paras. 27 to 29, an alleged sexual assault case, where the Crown did bring it to the earlier date setting Court and offered an earlier date.