ONTARIO COURT OF JUSTICE DATE: 2024 09 27 COURT FILE No.: Central West – Brampton – 3111 998 23-31101881
BETWEEN:
HIS MAJESTY THE KING
— AND —
SABRINA SCOTT-WOLF
Before: Justice A. Neil Singh
Heard on: September 19, 2024 Reasons for Judgment on s.11(b) released on: September 27, 2024
Counsel: Lawrence Eikelboom, for the Respondent/Crown Scott Norton, for the defendant/Applicant Sabrina Scott-Wolf
Singh J.:
Introduction
[1] The Applicant brought a motion to have declared that their right to a trial within a reasonable time enshrined in s.11(b) of the Canadian Charter of Rights and Freedoms (Charter) has been infringed. The Applicant seeks a stay of proceedings under s.24(1) of the Charter. The Respondent opposes the application submitting that there has been no infringement of the Applicant’s s.11(b) Charter right.
[2] On January 14, 2023, The Applicant was arrested for allegedly refusing to comply with a breath demand contrary to s.320.15(1) of the Criminal Code. The information was sworn on February 16, 2022. The presumptive Jordan ceiling was August 16, 2024. The trial is scheduled to be completed on October 10, 2024.
[3] These are my reasons:
The Factual Background
[4] To properly assess whether there has been a breach of the Applicant’s s.11(b) Charter right, a summary of the factual background is necessary. There is also a factual dispute about when a key piece of disclosure, the breath room video, was provided to the defence and what delay, if any, flowed from this.
[5] The following are the key factual circumstances necessary to understand the issues and ultimate determination of this application:
(1) The Applicant was arrested on January 14, 2022. (2) By January 17, 2024, the Applicant had retained counsel who requested disclosure from the Crown on this date. (3) The information was sworn on February 16, 2022. (4) The first Court appearance was February 24, 2023. Disclosure was not available. The matter was adjourned. Counsel requested disclosure again on March 21, 2023, and April 18, 2023, respectively. (5) The second Court appearance was April 28, 2023. Disclosure was not available. The matter was adjourned. On May 1, 2023, counsel sent his fourth disclosure request to the Crown. (6) On May 17, 2023, initial disclosure was provided. Included were two zip folders. One of the folders purports to contain the breath room videos. There is a dispute about whether this was either (i) disclosed; or (ii) if it were disclosed, whether it was done in a usable form. (7) The third Court appearance was June 30, 2023. Nobody appeared on behalf of the defence. The matter was adjourned, and counsel was notified of the next Court date by the Crown’s office. (8) Between July 25, 2023, and July 28, 2023, a Crown Pretrial (CPT) was conducted via email with Crown counsel, Jacob Wilson. The Crown took the position that this was a two-day trial and did not require a Judicial Pretrial (JPT). There was further correspondence between counsel resulting in Mr. Wilson sending the instructions for scheduling a JPT if counsel thought more than two days were required. (9) The fourth Court appearance was September 4, 2023. The matter was adjourned for ongoing discussion and to potentially set a JPT. The Crown in Court reiterated their position that the trial estimate was two days, and scheduling a JPT was a defence request. The Crown did not see the need for a JPT. From their perspective, the trial was ready to be scheduled. (10) On October 18, 2023, counsel scheduled a JPT through the Brampton Trial Coordinator’s Office. The date secured was November 22, 2023. (11) The fifth Court appearance was on October 20, 2023. Counsel adjourned the matter to December 22, 2023, to allow for the JPT to be conducted. (12) On November 22, 2023, a JPT was conducted before Justice Blacklock. Crown counsel was Jelena Vlacic. The trial estimate of two days was confirmed. Later that day, Ms. Vlacic emailed counsel a link to download the trial scheduling form (TSF) and attached the trial time estimate form (TTEF). Embedded in the body of the email were the specific instructions required for counsel to set a trial date in Brampton by booking a trial scheduling conference (TSC) with the Trial Coordinator’s Office. (13) On December 4, 2023, counsel emailed the TSF and TTEF to the trial coordinator and Ms. Vlacic. This email did not follow the local protocol that Ms. Vlacic emailed counsel. When he didn’t receive a response, counsel followed up on December 20, 2023. (14) The sixth appearance was December 22, 2023. Counsel adjourned the matter to secure trial dates. On that same date, Ms. Vlacic responded to counsel, advising that he had not followed the local protocol for scheduling trial dates. Upon receiving Ms. Vlacic’s email, counsel immediately followed the local protocol and secured a TSC with the Trial Coordinator’s Office for January 3, 2024. This was the earliest date available. (15) On January 3, 2024, the TSC was conducted. The first dates offered were January 30 & 21, 2024. The Crown indicated that they were available. The defence did not accept these dates. According to counsel, the reason was two-fold. First, there was still outstanding disclosure. Second, counsel was not available. The next dates offered were October 9 and 10, 2024. They were accepted by all. (16) On February 16, 2024, the seventh appearance, the trial dates were confirmed on the record. (17) In May of 2024, counsel sent numerous requests regarding the purported missing video disclosure. In one of those requests, on May 25, 2024, counsel wrote to the Crown, “[t]rial is fast approaching and my client is considering an 11b. As this is core disclosure that has still not been provided the longer the delay on the disclosure of the video, the heavier it will factor into 11b Jordan apportioning of delay.” (18) On July 29, 2024, counsel in another request for the disclosure wrote, “Trial is in just over 2 months time. Defence has still not received the above-noted disclosure. 11b is an issue.” (19) On July 30, 2024, a member of the Crown Attorney’s Office responded that the purported video had been disclosed with the original package on May 17, 2023. In the email, they confirmed through screenshots that the videos were shared with counsel on May 17, 2023. They also confirmed the contents of one of the disclosed folders to contain the requested video disclosure. They noted that they had checked the files and found them to be functional. (20) Counsel for Ms. Scott-Wolf filed their application with respect to this matter on August 28, 2024. A date for the hearing of the motion was secured the next day, August 29, 2024.
The Jordan Framework
[6] In determining whether an Applicant’s right under s.11(b) of the Charter has been breached, Application Judges are required to employ the framework established by the Supreme Court of Canada in R v. Jordan, 2016 SCC 27. For a matter proceeding in the Ontario Court of Justice, the Supreme Court established a ceiling of 18 months from the swearing of the information, after which the delay is considered to be presumptively unreasonable.
[7] In R v. Coulter, 2016 ONCA 704, the Ontario Court of Appeal has helpfully distilled the framework down to the following steps:
(1) Calculate the total delay, which is the date of the swearing of the information to the actual end or anticipated end of trial (i.e., the end of the evidence and closing arguments). (2) To calculate the net delay, subtract defence delay, including delay that is waived by the defence, from the total delay. (3) Compare the net delay to the presumptive Jordan ceiling. (4) If the net delay exceeds the presumptive ceiling, the delay is presumptively unreasonable. The onus is on the Crown to rebut the presumption of unreasonable delay by establishing the presence of exceptional circumstances. If the Crown is unable to do so, a stay will follow. Exceptional circumstances fall under two categories: discrete events and particularly complex cases. (5) To calculate the remaining delay, subtract, from the net delay, delay caused by discrete events. (6) If the remaining delay exceeds the presumptive ceiling, consider whether the case was particularly complex, so as to justify the time the case has taken and lead to a conclusion that the delay is reasonable. (7) If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is, in any event, unreasonable.
[8] In order to establish a below-ceiling breach of an Applicant’s s.11(b) Charter right, the Applicant must satisfy both of the following criteria: (1) that the defence took meaningful steps demonstrating a sustained effort to expedite the proceedings; and (2) that the case took markedly longer than it reasonably should have (R v. Jordan, 2016 SCC 27, at paras 82-83).
[9] In the context of this application, I will also note the Supreme Court of Canada’s direction to defence counsel to actively pursue their clients’ s.11 (b) rights. In R v. J.F., 2022 SCC 17, the Supreme Court made clear that in the context of s.11(b) of the Charter, defence counsel has an obligation to actively pursue their client’s right to a trial within a reasonable time. At paragraphs 34 and 36 of their Judgment, the Court stated:
[34] An accused who sees delay lengthening must therefore respond in a proactive manner. Being proactive may mean filing a s. 11 (b) motion where the accused believes that their right to be tried within a reasonable time is not being or will not be respected (Jordan, 2016 SCC 27, at para. 85). Like any other application made by an accused, a motion of this kind must be brought "reasonably and expeditiously" (para. 85). Lateness in raising delay is contrary to the proper administration of justice, because such a practice serves to waste judicial resources. Indeed, the Jordan framework is specifically designed to eliminate inefficient practices that impact on the justice system (paras. 41 and 116). Bringing a s. 11(b) motion before the end of the trial allows the accused to alert the Crown and the court to their concerns about delay. As a result, all parties can take proactive measures and cooperate to expedite the proceedings…
[36] In short, a duty to act proactively also rests on the accused. As a result, 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. As a general rule, this means before the trial is held. By the time the trial dates are set, the parties are generally in a position to know whether the trial delay will exceed the applicable presumptive ceiling, and the defence can raise any concerns it may have. However, it is not out of the question that, exceptionally, an infringement of the s. 11(b) right will reveal itself only once the trial has begun. In such a case, the accused must also act proactively.
Positions of the Parties
[10] The Applicant submits that the total delay exceeds the presumptive Jordan ceiling for which there is no delay they are responsible for. The Applicant contends that the Respondent’s complacency regarding disclosure is responsible for the delay. There were no exceptional circumstances that required a deduction from the net delay. The Applicant submits that the Court must therefore enter a stay of proceedings. Alternatively, The Applicant submits that if the Court finds that the presumptive ceiling has not been breached, a stay of proceedings should still be entered when the Court applies the test for doing so as enumerated in Jordan, supra.
[11] The Respondent submits that while the total delay exceeds the presumptive Jordan ceiling, the net delay does not. The defence is responsible for a significant portion of the delay that brings the net delay below the presumptive ceiling. The Respondent submits that deductions from the net delay should result from the Applicant’s delay in (i) scheduling and conducting a CPT; (ii) scheduling and conducting an unnecessary JPT; (iii) scheduling a TSF; and (iv) raising their client’s s.11(b) concerns. The Crown further submits that this is not an appropriate matter for a below-the-ceiling stay.
Analysis & Discussion
Delayed Disclosure
[12] Before considering net delay, I will first deal with the disclosure issue the Applicant says is responsible for the delay. During submissions, there was a dispute surrounding when the breath room video was disclosed. This became an important consideration for a few reasons. First, the Applicant’s main submission is that the Crown’s complacency regarding the disclosure is solely responsible for the delay. Second, the Applicant submits that his dogged pursuit of this disclosure is evidence of the defence’s proactive approach to expediting this matter. Finally, in the context of an under-the-ceiling stay, the Crown’s complacency is evidence that the matter took markedly longer than it otherwise should have.
[13] The Crown contends that the video at issue was disclosed on May 17, 2023. Defence counsel submits that they did not receive the video until July 30, 2024. Their position is that they either did not have the video, or alternatively, did not have the video in a functional format.
[14] As it relates to the issues relevant to the presumptive Jordan ceiling, I find that the disclosure did not delay matters. Accepting defence counsel’s position for the moment, the record establishes that any lack of disclosure did not prevent them from moving the matter forward. They were able to schedule and conduct a CPT, JPT, and TSC without this disclosure.
[15] It is now trite law that defence counsel does not need every last piece of disclosure before moving a matter forward. Meaningful steps can be taken by counsel to advance their client’s case without complete disclosure. Indeed, that is what happened here.
[16] I also take note of my brother Justice Duncan’s comments in R v. Rehal, 2023 ONCJ 271 at paragraph 10:
Further, and importantly, the court hearing a pre-trial 11b application is not well positioned to determine issues of adequacy of disclosure - most basically because it cannot know what the state of disclosure will be at the time of trial. Deficiencies in disclosure 30 days out may well be cured by the time of trial. If they are not, that is an issue for an adjournment application at trial. It is not an issue for the 11b application. Attempting to deal with disclosure issues on an 11b application adds a significant level of tangential complexity and diverts from the already complex issue at hand.
[17] Irrespective of this, Counsel, in response to a direct question from the Court, confirmed that he is now in receipt of the breath room videos and is ready to proceed to trial on October 9 & 10, 2024.
[18] Taking a bird’s eye view of this issue, it is clear to the Court that the defence was able to move the case forward without the videos. Regardless of the date received, they have the videos and are ready to proceed to trial as scheduled. Consequently, I find that the breath room videos did not delay the matter.
[19] Having determined that the disclosure at issue did not delay the progression of this matter, I find that it is necessary to make a finding as to when the disclosure was made. I do so because it may be relevant to any assessment this Court makes in an under-the-ceiling stay argument.
[20] I find that the breath room videos were uploaded to the Crown’s Digital Disclosure Hub (DDH) on February 28, 2023. I find they were disclosed to counsel on May 17, 2023. They were disclosed to counsel for a second time on July 30, 2024.
[21] The DDH screenshots and materials before the Court demonstrate that the videos were disclosed on May 17, 2023. The folder, “E2300520070 0 SCOTT-WOLF.zip,” contained two video files: (i) MOBILE BREATH TECH VIDEO; and (ii) MOBILE BREATH TECH VIDEO pt2. The audit log from the Disclosure Hub shows that counsel downloaded this file on May 28, 2023.
[22] Counsel for the Applicant submitted to the Court that either (i) the video was not disclosed; or (ii) it was disclosed in a non-functional format. I struggle with this submission and do not accept it. Counsel should be able to articulate the specific deficiencies in the disclosure. Here, they were inexplicably unable to do so.
[23] Counsel during submissions pointed to an email from May 11, 2024, as evidence that the video was not functional. The email makes the following request:
“On page 94 of the initial disclosure, one requested audio file does appear to be missing:
- DVD – PMR – Prisoner Monitor Recording (pg 94 states that a .zip folder was sent to Brampton Crown Office via Enterprise Attachment Transfer Service (E.A.T.S.) on February 16, 2023, and that it can be accessed using “Smart Client Player.exe” , however I was not able to locate this folder nor this application. Neither did it seem to [be] present in the “E230052070 – R v SCOTT-WOLF audio” folder.
I do not accept this submission either. This is a different folder. While similarly named to the folder that contains the videos, it is not the same. The Application Record also demonstrates that the contents of the two similarly named folders are different. Counsel’s request also references a missing audio file, not a video. Further, the Crown’s office confirmed the functionality of the videos in an email to counsel on July 30, 2024. There was no mention that “Smart Client Player.exe” was required to play the videos, nor did counsel make any such assertion during their submissions on this matter.
[24] I am satisfied that functional videos were disclosed to counsel on May 17, 2023.
Total Delay
[25] The total delay from the swearing of the information (February 16, 2023) to the anticipated end of trial (October 10, 2024) is 602 days, or 19.8 months (R v. Shaikh, 2019 ONCA 895 at para 33). This is beyond the presumptive Jordan ceiling. A determination of net delay is therefore required.
Defence Delay
[26] The respondent submits several areas of purported defence delay that ought to be subtracted from the net delay. I will deal with each one accordingly.
(i) Delay in Scheduling a Crown Pretrial
[27] The Respondent submits that the Applicant inexplicably delayed the scheduling of a CPT. Disclosure was provided on May 17, 2023, and a CPT did not commence until July 25, 2023. The Crown submits that the defence should be permitted two weeks to review disclosure and be ready to schedule a CPT.
[28] I agree. This approach honours the sentiment in Jordan that requires all parties actively, and meaningfully combat the culture of complacency that has infected the Criminal Justice System. I did not hear any submissions to suggest that two weeks to review disclosure and conduct a CPT was insufficient. In fact, I was told that this was a straightforward “refuse” case. Unfortunately, absent from the Application Record is when counsel for the Applicant first reached out to the Crown to conduct a CPT. I note that the CPT was conducted via email and that counsel for the Applicant did not submit that there was any delay in conducting the CPT once he reached out to Mr. Wilson. I take this to mean that the CPT took place in short order after counsel for the Applicant reached out to the Crown.
[29] Accordingly, I find that the defence is responsible for 55 days of delay between May 31, 2023, and July 25, 2023.
(ii) Delay in Scheduling and Conducting a Judicial Pretrial
[30] The Respondent further submits that the defence delayed in scheduling the JPT. The CPT concluded on July 28, 2023. The JPT was not scheduled until October 18, 2023. The Crown takes the position that, allowing for a week for the defence to get instructions after the CPT, the remaining time until the JPT was scheduled is defence delay.
[31] Again, I agree. The defence believed the matter might take longer than two days, despite the Crown’s position. Proceeding to a JPT was entirely reasonable in the circumstances. However, to wait until October to schedule a JPT in these circumstances demonstrates complacency on the part of the defence in meaningfully moving the matter forward.
[32] The Respondent further submitted that the period between the scheduling of the JPT (October 28, 2023) and the end of the Pretrial (November 22, 2023) should be deducted as defence delay because the Crown’s position that the matter was a two-day trial was confirmed and thus a JPT was not required. I am not prepared to accept this submission. As stated above, there was some uncertainty as to the trial estimate. The Respondent believed a trial might take more than 2 days to complete. The Crown did not submit that the defence position was unreasonable or without foundation. This is precisely one of the reasons we have JPTs. Scheduling and conducting the JPT was a proper and conscientious decision. I decline to deduct any of this time as defence delay.
[33] Consequently, I have determined that the defence is responsible for 75 days of delay between August 4, 2023, and October 18, 2023. This deduction builds in a week after the conclusion of the CPT to allow counsel to obtain client instructions.
(iii) Delay in Scheduling a Trial Scheduling Conference
[34] The Respondent submits that the Applicant is responsible for a further delay in scheduling a TSC with the Trial Coordinator’s Office. The JPT was completed on November 22, 2023 and the TSC was not scheduled until December 22, 2023. The Respondent’s position allows for a week after the JPT to allow for counsel to obtain their client’s instructions.
[35] After the JPT, Crown counsel Ms. Vlacic sent an email to counsel for the Applicant. The email included the TTEF and a link to the provincial TSF. Included in the email, and specifically pointed out by Ms. Vlacic, were the instructions required for scheduling trial dates in this jurisdiction.
[36] Unfortunately, counsel for the Applicant did not follow the local instructions for setting a trial date. What he did do, however, was follow the instructions included in the provincial TSF by emailing the form to the Trial Coordinator’s Office on December 4, 2024, copying the Crown. Counsel followed up with the Trial Coordinator’s Office on December 20, 2024, as he had not heard back about scheduling a trial. Ultimately, on December 22, 2024, Ms. Vlacic reminded counsel of her earlier email and asked that he follow the local protocol for setting a trial date. Mr. Norton promptly did so and secured a TSC for January 3, 2024.
[37] While I am sympathetic to the situation defence counsel found themselves in, the delay still rests with them. The TSF is a well-known form that is used throughout the province. It is also well known that many, if not all, courthouses in Ontario have unique local protocols. The process for setting a trial date in Brampton was clearly included in Ms. Vlacic’s November 22, 2023, email. Notably, this local protocol had been in place for over a year by the time counsel completed the JPT. Justice O’Marra, our Local Administrative Justice, disseminated a Notice to the Profession and Public with these very instructions on September 22, 2022. Counsel are expected to familiarize themselves with and follow the local practice directions in the jurisdictions where they practice. In not doing so, the defence occasioned this delay.
[38] Accordingly, I find that the period from November 29, 2023, to December 22, 2023, constitutes 23 days of defence delay.
(iv) Late Notice of the s.11(b) Application
[39] Finally, the Respondent submits that the defence is responsible for half of the delay from the scheduling of the trial until the end of trial due to their failure to raise their client’s s.11(b) Charter right in a timely fashion. In doing so, the Respondent relies upon the growing line of cases that have found this approach appropriate, starting with my brother Justice West’s decision in R v. Nigro, 2023 ONCJ 41.
[40] I agree with the reasoning in these cases. As my brother Justice Falls stated in the unreported decision of R v. Cercasin, Central West Region – Brampton – 23-31106587 at para. 40:
Where it can be shown that the defence waited in notifying the Court of delay concerns leaving no time for mitigation, a portion of the time to trial may be deducted as defence delay. A portion may also be considered Crown delay because of the Crown’s concurrent responsibility to ensure a defendant is brought to trial in keeping with their 11(b) Charter rights.
[41] The key consideration in these circumstances is whether the Crown was denied the ability to mitigate the delay due to the late notice that the accused’s s.11(b) Charter right was in issue. As Justice West stated in Nigro, 2023 ONCJ 41:
It is my view conduct which allows the defence to hide in the weeds and not alert the Crown or the Court to their concerns about delay…until a point where no one could remedy or mitigate that delay in any meaningful way is entirely contrary to the new framework created in Jordan, which encourages proactive, collaborative participation by all participants in the administration of justice designed to prevent delay from occurring in the first place. When an accused sees delay lengthening, they equally have an obligation to “respond in a proactive manner” respecting their concern and bring a motion “reasonably and expeditiously” …It is my view, pursuant to Jordan, Cody, and J.F., the defence is not permitted to ambush the Crown by appearing to agree with trial dates offered without raising any concerns about delay and setting those dates.
[42] Several factors in this matter are worth noting:
(1) The TTEF made no mention that s.11(b) would be an issue even though there is a section on the form for counsel to indicate their anticipated Charter applications. Here, the defence indicated that other Charter motions would be brought. (2) When she sent counsel the TSF and TTEF, along with instructions on how to secure a TSC, Ms. Vlacic implored counsel to let her know when the trial date was set if it created an s.11(b) issue. Ms. Vlacic advised that their office could only mitigate delay if s.11(b) was raised in a timely way. (3) When the TSC was conducted, the dates of January 30 & 21, 2024 (some 27 days out) were offered and accepted by the Crown. The defence was not available. [10] (4) At the time the trial date was confirmed on the record, and in fact, at no point prior did the defence raise s.11(b) as an issue. (5) In an email to the Crown’s office on May 25, 2024, counsel raised s.11(b) for the first time, in the context of an outstanding disclosure request. Counsel stated, amongst other things, “[t]rial is fast approaching and my client is considering an 11b. As this is core disclosure that has still not been provided, the longer the delay on the disclosure of the video, the heavier it will factor into 11b Jordan apportioning of delay.” (6) On July 29, 2024, counsel stated in an email to the Crown’s office, “Trial is in just over 2 months time. Defence has still not received the above noted disclosure. 11b is an issue.”
[43] Mr. Eikelboom on behalf of the respondent acknowledges that an email to the Virtual Crown Brampton email, could be sufficient notice to the Crown that an accused’s s.11(b) Charter right is an issue. However, he submits that the defence must be unequivocal in any such correspondence. The Crown argues that the May 25, 2024, email was equivocal and did not trigger any corresponding responsibility requiring the Crown act to attempt to mitigate any delay. Mr. Eikelboom submits that the July 29, 2024, email was unequivocal, but too late to permit any meaningful mitigation with the presumptive Jordan just over two weeks away.
[44] In support of his position, Mr. Eikelboom pointed the Court to two cases, R. v. M.F., 2024 ONCJ 59 and R. v. Alsouki, 2024 ONCJ 9, where the Court noted in both cases that the defence’s raising of s.11(b) was not a clear indication that an actual breach of s.11(b) was going to be alleged. I do note that in both of these cases, s.11(b) was raised by the defence after the presumptive Jordan ceiling had already been breached.
[45] By contrast, I see my brother Justice Monahan’s decision in R v. Lokubalasuriya, [2024] O.J. No. 378 as more analogous where counsel raised s.11(b) in emails that stated the dates for trial “potentially raise Jordan issues” and later putting the Crown on notice of “the Jordan jeopardy of this case.” In that case, those equivocal emails to this very Crown’s office led them to jump into action to see if they could obtain a trial date under the Jordan ceiling.
[46] In adopting the “all-hands-on-deck” approach to delay that the Supreme Court instructed counsel to take, the Crown needs to be flexible and live to delay issues, no matter how they are raised. To require something unequivocal from the defence is unduly rigid and contrary to the spirit of Jordan. Further, the Crown must have known the trial dates here were set beyond the presumptive Jordan ceiling. The Application Record must be examined wholistically. Our common sense cannot simply be checked at the door.
[47] While I agree that counsel ought to have raised their client’s s.11(b) concerns more plainly and clearly, I find that in the context of this matter, the May 25, 2024, email was a sufficiently clear indication. This would be abundantly clear to anyone reviewing the email along with the rest of the Application Record that is replete with disclosure request after disclosure request. The May 25, 2024, email itself specifically discusses how a Jordan analysis might treat the delay as it related to late core disclosure.
[48] The question then becomes, whether raising the s.11(b) issue on May 25, 2024, was sufficient to permit the Crown the ability to mitigate the delay and secure trial dates under the presumptive Jordan ceiling. If I find that the notice was too late, I am inclined to apportion 50% of the delay from the setting of the trial to the anticipated end of trial as defence delay as many of my colleagues have done in the spirit of Nigro.
[49] I find that the Crown could have mitigated the delay here. The evidence that I have is that on January 3, 2024, dates were available within a month. The Crown accepted those dates. Implicit in that acceptance is that the Crown would waive compliance with the rules regarding the filing of and responding to pretrial motions. The Crown was prepared to be ready to proceed with this trial on an expedited timeline.
[50] When s.11(b) was raised in May 2024, I have no evidence that the Crown tried to secure earlier dates. I am view that the Crown cannot simply rely on the Nigro line of cases without showing some effort on their part where s.11(b) is raised by the defence prior to the presumptive Jordan ceiling being breached. Any submission that the notice on May 25, 2024, was too late to mitigate delay is without an evidentiary foundation, and contradicted by the dates offered in January 2024, 27 days from the TSC.
[51] Absent an effort from the Crown to prioritize or evidence that any such effort in late May would have been moot, I decline to apportion any of this delay to the defence.
Net Delay
[52] When subtracting defence delay (55 days, 75 days, and 23 days, respectively) from the total delay of 602 days, the net delay is 449 days or 14.8 months. This is clearly below the presumptive Jordan ceiling.
Delay Below the Presumptive Ceiling
[53] Counsel has argued that even if the presumptive Jordan ceiling hasn’t been breached by the net delay, that it should nevertheless be stayed.
[54] In these cases, the onus shifts to the Applicant to establish two things. First, that the Applicant took meaningful steps that demonstrate a sustained effort to expedite the proceedings. Second, that the case took markedly longer than it reasonably should have. Our Supreme Court has made clear that the granting of stays for cases that fall below the presumptive ceiling should only done in the clearest of cases.
[55] On the first part of the test, I find that the Applicant has failed. While I acknowledge that counsel undertook meaningful efforts to obtain disclosure, I find that ultimately, they did not take meaningful steps that demonstrated a sustained effort to expedite the proceedings. There were numerous areas where the defence did not move the matter forward when they should have.
[56] In coming to this finding, I rely on my findings of defence delays that I have discussed at paragraphs 27-39, above. These periods of defence delay rebut the defence submission that they took meaningful steps to expedite the proceedings. I also find that seeking outstanding disclosure on its own, is not sufficient to establish that the defence took meaningful steps as envisioned by the Supreme Court. While the defence is not to be held to a standard of perfection, they do need to move efficiently and proactively throughout the proceedings. This is not what happened here. The defence delayed setting the CPT, JPT, and the TSC. Beyond that, once trial dates were set, the defence did not raise their s.11(b) concerns at the earliest opportunity, nor did they seek earlier trial dates from the Court. Having not met their onus on the first prong of the test, the Applicant is not entitled to a below-the-ceiling stay.
[57] Before concluding, I feel obligated to comment on the second prong of the test, had the defence been able to meet their onus. While I need not determine the issue on this application, had I been required to, I would have almost certainly found that this case took markedly longer than it otherwise reasonably should have.
[58] The Crown was complacent in providing disclosure. The breath videos were uploaded to the DDH in late February 2023. Inexplicably, no disclosure was provided until mid-May 2023, four months after Ms. Scott-Wolf’s arrest. This is especially troublesome in a case such as this where the vast majority of disclosure has crystallized by the time of arrest, or shortly thereafter. This is inexcusable. The accused waited for over 15% of the presumptive Jordan timeframe without any disclosure.
[59] There is absolutely no excuse to make an accused person wait this long for disclosure without a good explanation. In fact, Mr. Eikelboom fairly conceded that there was no good reason for the delay in disclosure. I agree. This is not a complex case; no one argued otherwise. The disclosure should have been made available much sooner.
[60] The respective parties who bear responsibility for arresting, charging, and prosecuting individuals charged with criminal offences must take their disclosure obligations seriously. It is a constitutionally enshrined right fundamental to making full answer and defence. Let’s not forget that the use of technology was supposed to make the provisioning of disclosure to accused persons more efficient. Complacency has no place in this arena. The public deserves much better from the Crown.
Conclusion
[61] Before concluding, I would like to extend my sincere gratitude to counsel for the way in which they argued this motion. This was an expertly litigated application by two, clearly gifted, litigators. Although receiving strong, persuasive arguments from both parties made my job more difficult in deciding this matter, the criminal trial process works its best where counsel (both Crown and defence) are well prepared and diligent in the execution of their duties, as they were here. Although this decision did not go in her favour, Ms. Scott-Wolf can rest assured that she has been very well represented.
[62] The presumptive Jordan ceiling has not been breached. This is not an appropriate case for a below-the-ceiling stay. The s.11(b) Application is dismissed. The trial dates are confirmed.
Released: September 27, 2024 Signed: Justice A. Neil Singh