DATE: September 11, 2024 Information No.: 0411-998-23- 11401201

ONTARIO COURT OF JUSTICE

HIS MAJESTY THE KING v. JEFFREY LAWRENCE

Ruling on Delay Application

DELIVERED BY THE HONOURABLE JUSTICE N.D. BOXALL on September 11, 2024, at OTTAWA, Ontario

APPEARANCES: T. Bobrovitz, Counsel for the Crown J. Davies, Agent for M. Johnston, Counsel for Jeffrey Lawrence

BOXALL J. (Orally):

This is yet another application pursuant to section 11(b) of the Charter seeking a stay for an alleged violation of the right to trial within a reasonable time. On the first scheduled trial dates, the Court was unable to hear the trial as it was occupied with other matters. A second trial date was required and this date is outside the presumptive Jordan ceiling.

Courts throughout Ontario are struggling to meet the constitutional requirements set down in R. v. Jordan, 2016 SCC 27. The issue of court delay is a complex problem and there are many reasons for it and equally many steps that need to be taken to address it. One of the main issues is the adequacy of court resources to deal with the volume of cases before the Ontario Court of Justice.

One of the steps to address court delay, and section 11(b) in particular, is the Ontario Court of Justice’s practice direction which sets out two timelines:

• a six-month period for case management and a trial date is to be set within this time;
• trial dates are to occur within 15 months.

This practice direction was not in existence at the time when the first date was set, but the importance of the practice direction, as illustrated in this case, the first trial date set was for June 19 to 21. This was 16 months after the swearing of the Information, one month longer than the period set out in the current practice direction.

When trial dates are set close to the Jordan ceiling, it leaves very little room for Jordan compliance in the event the trial does not proceed as scheduled.

Of necessity, the Ontario Court of Justice sets more trials per court day than ultimately will be heard if they all proceed. This means that not infrequently a trial may need to be rescheduled on fairly short notice.

The main issue in this case is to determine what, if any, amount of time between the ultimately obtained second trial date should be considered as defence delay if defence turns down an earlier date.

Very Briefly, the Facts

The alleged offence occurred on February 14, 2023. Mr. Lawrence was arrested and released that day. The Information was sworn on February 21, 2023. The first appearance was March 30, 2023. The trial scheduling conference was conducted on May 30, 2023. The first dates offered were June 19 to 21, 2024 and both Crown and defence were available and accepted these dates. On June 1, 2023, the trial was formally set for June 19 to 21, 2024.

The trial was unable to proceed on June 19 and June 20 as the Court was occupied hearing other matters. A new trial date was required. Counsel attended at Trial Coordination and new trial dates were offered, as set out below. Dates offered:

• July 3 and 4, 2024: Crown available, yes; defence available, no.
• July 8 to 10: Crown available, yes; defence, not available.
• July 23 to 25: Crown available, yes; defence, no.
• July 29 to 31: Crown available, yes; defence, no.
• August 12 to 14: Crown available; defence not.
• August 19 to 21: Crown available; defence not.
• August 26 to 28: Crown available; defence not.
• September 4 to 6: Crown not available; defence available September 4 only.
• September 10 to 12: Neither Crown nor defence were available.
• September 16 to 18, 2024: Crown available; defence available.

September 16 to 18, 2024 were the first set of trial dates that both defence and Crown are available. That date is next week and the trial is scheduled to proceed then.

The total delay from the swearing of the Information to the anticipated completion of the trial is 576 days. The Jordan presumptive ceiling is 547 days.

Issues

Is there any defence delay and, if so, does it bring the total delay under the Jordan ceiling?

Crown argues there are two periods in which some delay should be attributed to the defence. They are, first, the period from May 9, 2023 to June 1, 2023. The Crown argues the defence failed to advance the matter to a trial scheduling conference in a timely manner, despite the Crown being ready to do so on April 27, 2023. Thus, the Crown argues this is 23 days of defence delay that should be subtracted from the total delay.

Second, the Crown submits that, in this particular case, the contextual approach should be taken to evaluate availability of defence counsel and the ensuing delay where the Court and the Crown were available. Crown argues the delay between July 3, 2024 and September 8, 2024 should be apportioned equally between Crown and defence. This is a total of 78 days; splitting it equally, 39 days for the Crown and defence respectively.

The alleged delay in scheduling a trial scheduling conference

On April 27, 2023, the Crown emailed defence three potential dates for a trial scheduling conference: May 18, May 19, May 23. It was not until May 16, 2023, 20 days later, the defence responded to the Crown inquiring as to whether the May 19, 2023 trial scheduling conference date was still available. Defence acknowledged her late reply and indicates she thought she had responded earlier. Crown advised the dates were no longer available. Crown and defence settled on May 30, 2023 at 10:20 a.m. as the trial scheduling conference.

In oral argument, the Crown modified its position of the amount of potential defence delay, reducing it to 12 days, that being the period of May 18 to May 30, the first prospective trial scheduling conference and the one ultimately obtained, May 30.

I agree with the Crown that if the defence had promptly responded, the trial scheduling conference would have taken place 12 days earlier than it did and a possible inference is to attribute 12 days as defence delay. However, in my opinion, this would not be appropriate in this case when we take an overall look at the conduct of the case. I conclude this because the delay from the first appearance on March 30 until trial dates were secured on May 30 is only two months, which is very reasonable and well under the current practice direction to complete this in 12 weeks.

When examining defence conduct in the intake phase for an alleged 11(b) violation in excess of the Jordan ceiling, perfection on the part of the defence is not required. The defence is however required to proceed diligently in this period. Although the defence did not respond to the Crown email of April 27 until May 16, the Crown did not follow up in this period to ensure defence had received the email or responded.

In my opinion, this period is not defence delay and will not be deducted from the total delay. In my opinion, when the opposing party, be it Crown or defence, has not responded within a reasonable time to inquiry, the other party should follow up.

The period between the first trial date and the date now anticipated to the completion of the trial

Defence argues that none of this period should be attributed as defence delay as the law does not require Mr. Johnston to be perpetually available and it was unreasonable for him to be required to be available on such short notice as in this case. Alternatively, defence argues at the very least no delay should be attributed to the defence for two months subsequent to June 21 and consideration of defence delay should only commence on August 26 to 28, which is outside the Jordan ceiling.

Crown argues a contextual approach should be taken to evaluate the availability of defence counsel and, given defence unavailability, the delay between July 3 and September 18, 2024 should be apportioned equally between the Crown and defence. This is a total of 78 days, split equally it will be 39 days for the Crown and defence respectively. A reduction in the total delay of 39 days would reduce the total delay to 537 days, which is under the Jordan ceiling.

Although the issue of section 11(b), when trials do not complete, does not arise regularly, equally it is not infrequent. I have previously ruled on this issue in at least two prior cases I supplied to counsel: R. v. Hyderi, Moore, Omar, unreported, May 10, 2024, and R. v. Al-Naqueeb, unreported, April 8, 2024.

It is not necessary to repeat what I said in those cases about the stacking of court lists and the determination of responsibility for delay when matters are not reached on the first trial date. In those decisions, I discussed at length the stacking of court lists and the appropriateness and necessity to do so. In those cases nor this case do I have the necessary evidence nor submissions to elaborate further on the stacking of court lists and potential limits or constraints.

There are serious consequences to everyone, including the witnesses, complainants and of course the accused when a trial does not proceed as scheduled due to a lack of court resources. Excessive or repeated failure to commence trials has the potential to bring the administration of justice into disrepute.

Although stacking is an important tool in the scheduling of trials within the constitutionally mandated timeframe, there are limits. With an appropriate record in future cases, this could be examined and considered further, perhaps under the factor of local conditions.

Clearly, the delay to the first offered date is institutional delay. Clearly, defence counsel do not have to be perpetually available on short notice. Equally, defence counsel must have some availability within a reasonable time.

In those prior cases, I have set out a non-exhaustive list of factors to consider when assessing potential defence delay when defence declines an earlier date when a new date is being set because the first trial could not commence. Those factors:

• How much time is there between the matter not being reached and the offered new trial date?
• How much time is there between the declined date and the date offered that is available to defence counsel?
• Was there one or more than one declined date prior to the available and agreed-on continuation date?
• Did the Crown decline any dates and, if so, for what reason?
• Was the defence available on any earlier dates than the ones the defence declined?
• What is the reason for defence unavailability?
• How much time was lost and how much time needs to be accordingly re-set? Counsel can reasonably be expected to have more availability for a two-hour continuation than a two-day one.
• Local Conditions

In oral argument, both counsel accepted these factors as proper considerations. As always, it is often easier to state the factors than imply them.

Application of the Principles to this Case

How much time is there between the matter not being reached and the offered new trial dates? New trial dates were offered at 2, 3, 4, 5, 7, 8, 9, 10, 11 and 12 weeks after June 20. Defence counsel was unavailable for the first nine and Crown was available for the first seven.

How much time is there between the declined dates and the date offered that is available to defence counsel? The delay from the first declined date to the one ultimately accepted was two and a half months. However, it is important that there were many dates offered in between that were also declined.

Was there one or more than one declined date prior to the available and agreed-on continuation date? Yes, nine prospective dates were declined by the defence, and although two were declined by the Crown, the Crown was available for the first seven.

Did the Crown decline any dates and, if so, for what reason? Yes, the Crown declined two. No reason was given for why the Crown declined these dates so the reason is not known.

Was the defence available on any earlier dates than the ones the defence declined? Defence did not indicate any availability on any other days prior to the set trial date other than the one day, that being September 4.

What is the reason for defence unavailability? At the time the date was set, no reason was given for defence unavailability. No evidence or information was provided in the application to provide a reason for defence unavailability.

In oral argument, counsel for the Applicant, not counsel of record, indicated that counsel of record had other court commitments on every date declined. No evidence was provided of this, and Crown took objection to this information being supplied at this late time in this fashion, arising as it did during oral argument.

Further, on June 20 when the trial date was being set and the Crown put comments on the record regarding the dates declined by the defence, the Court inquired of defence counsel if he had any comments in regards to the comments of the Crown and defence replied:

“No, only I choose not to make them ‘cause I figure that document would be before the Court in any event and wish not to take any more time than necessary, sir.”

Defence counsel’s comments were unhelpful. In prior cases, I have indicated the importance of a proper record. Transcripts of all prior proceedings are required for section 11(b) hearings. Of course, transcripts are only as helpful as the information they contain. This transcript is of no assistance in knowing why defence counsel turned down the dates he declined. Was he in another court, doing preparation, on holiday, was there a witness problem, or did his client have other obligations or preferences, to name but a few possibilities.

Failure to put this information on the record at the time puts everyone, including the Court, in the unenviable position of not knowing the reason or attempting to go back in time to determine the reason. It also prevents the Crown and Court from taking proactive steps to address the issue.

Although defence counsel is not in every case required to advise the Court of their availability and inquire if the Court can accommodate their availability, in a case where defence counsel is turning down multiple Jordan-compliant dates and only accepting a date outside the Jordan ceiling, they may be required to do so as they too have a responsibility to ensure section 11(b) rights are complied with.

In these circumstances, failing to advise the Court if they have any availability is a factor the Court may consider in determining how to apportion delay.

How much time was lost and how much time needs to be accordingly re-set? The matter is a three-day trial and it was necessary to set all three days. The trial did not commence.

Local Conditions

There are no local conditions in this period that are relevant to the issues in this case.

In determining if any period should be attributed as defence delay

Defence counsel fairly pointed to my decision in R. v. Hyderi, Moore and Omar where I said:

“The offering of five different weeks in which the trial can be conducted over a period of two months makes reasonable allowance for defence unavailability. However, by the sixth offered, defence counsel can be expected to be available and delay following that needs to be considered as potential defence delay.”

There are factual and evidentiary differences between that case and this case. Notably, that case involved three accused and three counsel.

All accused individually had availability for one or more of the early dates but collectively they did not.

Furthermore, in that case, I note that the Crown was not available for the fourth-offered date. Most importantly, that case involved three counsel and the determination to be made was if that delay should be determined individually or collectively. It is certainly not authority that a single counsel can decline five dates over a two-month period and it will not be considered as defence delay in all the circumstances. Each case must be determined on its own facts.

The defence also relied heavily on Justice Webber’s decision in R. v. Hughes. I have cited his decision with approval and agree with it on the facts in that case. However, there are notable factual differences.

Principally, the Crown was not available for the second set of dates offered in Hughes, nor was defence. That is unlike the case at bar where the Crown and Court were available for seven sets of dates, six that would have seen this matter complete under the Jordan ceiling of 18 months, where defence was not.

Also, unlike the circumstances in this case, the dates offered in Hughes for which the defence was not available occurred over a 10-day stretch, which is a very short period of time. In the case at bar, the dates were offered over a much longer timeframe.

I further note that Justice Webber pointed out in that case, and I quote:

“At no point as far as I am aware was the defence simply asked to provide a complete list of their available dates between January 30th and the last court date that would comply with Jordan. At least, that would have enabled the Court to explore all options. The Court would have had all possibilities available for its consideration. This exercise would have had the additional benefit of better equipping the Court to assess the Applicant’s degree of cooperativeness in this late-breaking effort to avoid breaching the Jordan ceiling.”

On the facts of the case before me, I would go further and indicate when defence counsel turned down the number of dates they did, seven where the Crown was available, defence counsel should not have to be asked but should advise if they have any available dates. In the case at bar, counsel did not offer any available dates and counsel chose not to put on the record any reason for declining the dates.

Balancing the Factors

Given the number of dates declined by the defence over a significant period, with the defence providing no explanation at the time for declining the dates nor offering any dates that he was available, I find the Crown’s proposal to attribute the delay from July 5 to September 18 equally as very fair. This would result with one-half of 76 or 38 days as defence delay.

Absent the Crown’s position, I may well have attributed more as defence delay on the specific facts of this case.

In the result, a subtraction of 38 days as defence delay brings the total delay below the Jordan ceiling.

The application is dismissed.

FORM 3

CERTIFICATE OF TRANSCRIPT EVIDENCE ACT, subsection 5(2)

I, Lynn Carrière, Authorized Court Transcriptionist, ACT ID 2366775200, certify that this document is a true and accurate transcript, produced to the best of my skills and ability, of the recording of R. v. Jeffrey Lawrence in the Ontario Court of Justice held at 161 Elgin Street, Ottawa, Ontario, taken from Recording No. 0411_CR10_20240911_084513 6_BOXALLN, which has been certified in Form 1 by Delilah Haggar.

September 15, 2024 Date

Electronic signature of Lynn Carrière, ACT ID 2366775200 Ontario, Canada

* This certification does not apply to the Ruling which was judicially edited.

A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the certified recording of evidence and proceedings in the proceeding that is identified in the certificate.