ONTARIO COURT OF JUSTICE DATE: September 19, 2024 COURT FILE No.: Toronto 4810 998 21 75004588

BETWEEN:

HIS MAJESTY THE KING

— AND —

AQUILLE MALCOLM

Before: Justice Hafeez S. Amarshi Written reasons for judgment released on September 19, 2024

Counsel: K. Hebert................................................................................................... counsel for the Crown H. Deasy......................................................................................... counsel for Aquille Malcolm

H.S. Amarshi J.:

DELAY APPLICATION RULING

A. Introduction

[1] Aquille Malcom brings an application for a stay of proceedings under s. 24(1) of the Charter as a result of an alleged violation of his s. 11(b) right to a trial without unreasonable delay.

[2] The total delay in this case is approximately 35 ½ months (1078 days). A period that encompasses the date when the information was sworn – September 30, 2021, until the completion of trial on September 11, 2024. It exceeds the 18-month ceiling for proceedings in the Ontario Court of Justice established by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27.

[3] The Crown submits the total delay in this matter is 13 ½ months when defence delay is subtracted and the date of arrest is used as the starting point for the calculation of delay.

[4] By way of a brief summary, the Applicant is charged with two counts of assault causing bodily harm alleged to have occurred on October 8, 2020. The Crown proceeded summarily.

[5] Two young women were punched in the head by an unknown male at a Toronto Community Housing building. The victims did not know the assailant. Surveillance video depicts the suspect of the attacks associated with a light-coloured Mercedes at the time of the offence. Police were provided with a phone number for a woman known to be associated with the assailant and commenced an investigation.

[6] An information was sworn on September 30, 2021, almost a year after the assault. Mr. Malcolm was not arrested until December 29, 2022, while in custody on unrelated charges.

B. Position of the Parties

[7] The Crown argues the net delay in this case is under the Jordan threshold when both exceptional circumstances and defence delay are considered. Ms. Hebert submits the Jordan timeline should start at the time of the defendant’s arrest instead of the date the information was laid.

[8] In the alternative, if this Court determines that the Jordan timeline does commence at the earliest of the two dates – September 30, 2021, then this period of pre-arrest delay be deemed exceptional circumstances.

[9] The defence counters that this Court should consider for the purposes of calculating total delay the period starting from the date when the information was sworn. That the police did not exercise diligence in locating and arresting Mr. Malcom. Further, there are no exceptional circumstances present to justify the significant delay in this case.

C. Timeline

[10] The following is a summary of significant dates in these proceedings: [1]

a. October 8, 2020 - Two young women - Hanna Epp and Maria Dizaji were punched in the head by an unknown male at an apartment complex at 133 Wilton Street in Toronto. Police were provided a phone number for a woman known to be associated with the suspect by her employer. b. October 9 & 13, 2020 - Further investigation of the incident by police, including obtaining victim statements and surveillance capture. c. October 23, 2020 - Police applied for a production order from Rogers Communications for the phone number of the woman associated with the suspect. d. December 1, 2020 - Rogers provided information for a Shani Armstrong. The phone records showed that at 4:57 p.m. on the date of the offence Ms. Armstrong placed a call to an unknown number. e. January 4 & February 7, 2021 - Police applied for a production order for the records of the unknown number. [2] f. March 2, 2021 - Phone records were received for Aquille Malcolm, the suspected unknown caller. g. June 1, 10 & 13, 2021 - Police attempted to schedule an interview with Ms. Armstrong without success. h. September 12, 2021 - Police attended Mr. Malcolm’s residence. He was not present. Police spoke with the defendant’s surety and were given an updated phone number. Police called and left a voicemail. i. September 29, 2021 - Police were still unable to contact Mr. Malcolm and put out a warrant for his arrest. j. Detective Constable Christopher Skelton called the defendant’s lawyer to inform him of the arrest warrant. There is follow-up correspondence by e-mail. k. September 30, 2021 - An information was laid. l. October 8, 2021 - DC Skelton advised counsel that a show cause hearing would be required. Counsel confirmed receipt of the e-mail. There was no success in locating Mr. Malcolm. m. September 2022 - A CPIC printout was left on the officer’s desk at 51 Division, advising him that the applicant had been arrested in Thunder Bay on unrelated charges and was being held in-custody. n. December 29, 2022 – Aquille Malcolm was arrested at a correctional centre in Penetanguishene on these charges. o. A judicial pre-trial was held on May 29, 2023, and a time estimate completed. p. On June 15, 2023, the trial coordinator indicated the earliest trial dates were starting February 12, 2024. The defence was not available. The Crown was available. q. The defence had limited availability for many months. September 9-11, 2024, was ultimately identified for trial.

D. Applicable Principles

[11] In R. v. Jordan, the Supreme Court outlined the analytical framework to determine whether delay in time to trial is unreasonable. Where total delay at the Ontario Court of Justice exceeds 18 months, the delay will be presumptively unreasonable, subject to a consideration of case-specific exceptional circumstances. As the Court explained at paragraph 40, “Unnecessary procedures and adjournments, inefficient practices, and inadequate institutional resources are accepted as the norm and give rise to ever-increasing delay. The culture of delay “causes great harm to public confidence in the justice system.”

[12] The framework in Jordan is summarized by the Ontario Court of Appeal in R. v. Coulter, 2016 ONCA 704. At paras. 34-40, Gillese J.A. provides the following summary:

34 Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).

35 Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, at para. 66).

36 Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).

37 If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

38 Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).

39 If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).

40 If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48). [emphasis in original]

Exceptional Circumstances

[13] Exceptional circumstances as the Supreme Court in R. v. Jordan explained, “lie outside the Crown's control” in that “(1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise.” The Court goes on to note that the circumstances need not be "rare or entirely uncommon." [3]

[14] In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases. [4]

[15] The period of delay caused by any discrete exceptional events is to be subtracted from the total period of delay. [5]

E. Analysis

(i) The Jordan “clock” commences at the time the information is sworn

[16] This application turns in large part on when I determine the Jordan clock to have commenced – either the date the information was sworn (or charge date) or the date of arrest. In most cases, an information is sworn in proximity to the date of arrest of an accused. In that way, the Jordan clock is unaffected by any differences between arrest and an information being sworn. The Crown submits, however that in unique cases such as this where an accused is charged first and the arrest occurs after some duration then a case-by-case analysis is required.

[17] The Crown relies on R. v. J.K. 2020 ONSC 4936, a case that has factual similarities to this matter. In J.K., an information was sworn on October 2, 2017, and the accused was arrested on April 26, 2018, almost seven months later. Three years and 25 days had passed from the swearing of the information to the conclusion of trial. The Crown argued that this period of pre-charge delay should not be counted towards the Jordan threshold or in the alternative it be deducted as an exceptional circumstance.

[18] Justice Kurke determined the interests described in Jordan, are not engaged when the accused is unaware of the criminal charges he faces. The “delay clock” the court determined begins to run when a charging document is sworn, and the charges are made known to an accused person through arrest or summons. At paragraph 31, the court stated:

“… the law concerning delay requires the preparation of a charging document as a necessary, but not a sufficient, precondition for the s. 11(b) clock to start running …. Where, as here, there is no evidence that the applicant was aware that he was facing charges until his actual arrest close to seven months after the laying of the criminal information, no legitimate purpose is served by starting the s. 11(b) clock with the information. Indeed, to do so would simply encourage those persons who would seek to convert the s. 11(b) shield into a sword to conceal themselves for as long as possible, to improve the odds of a remedy for breach of the s. 11(b) right.”

[19] The court further outlined the policy and practical implications of a narrow reading of Jordan. If the calculation of delay is always determined by the moment when the information is charged, it would result in two undesirable outcomes. First, the potential accused could attempt to have their charges dismissed by purposely avoiding arrest and second, police would then be inclined to delay laying charges until they were able to arrest an accused. Neither of these circumstances align with the proper administration of justice.

[20] Despite the holding in J.K., the preponderance of the caselaw supports the defence position. In R. v. Allison, 2022 ONCA 329, the Court of Appeal addressed the inverse fact scenario – arrest, followed by a delay before the accused was charged. The Appellant argued that the trial judge erred by using the date the information was sworn as the start date for calculating the delay rather than the date of his arrest. This argument was dismissed. The Court of Appeal reiterated that for the purposes of calculating the s. 11(b) timeframe, time starts to run from the date of the charge and not the date of the arrest. [6]

[21] The current fact scenario was addressed in R. v. Virk, 2019 BCCA 298, where the application judge included in net delay the 140 days between the laying of the information against the accused on April 13, 2011, and his arrest on September 1, 2011. The Crown argued that it does not have control over when police execute process on an accused person, and as a result that period should have been deducted from total delay. In short reasons on this issue, the British Columbia Court of Appeal explicitly dismissed the Crown’s argument that the Jordan clock should begin at the time of arrest citing the Supreme Court’s decision in R. v. K.J.M., 2019 SCC 55, in which the court at para. 88 described “the laying of the charges” as “the point at which the Jordan clock starts ticking.”

[22] Decisions at the trial level in Ontario, with some exceptions, have largely applied the view expressed in Virk. [7]

[23] The Crown made a compelling argument citing the policy challenges if this Court were to accept the defence position, including the potential that accused persons would escape criminal liability by avoiding arrest and purposely increasing delay. It is a reasonable concern. However, the Jordan framework has analytical flexibility, and the factual context is important. Even where the 11(b) clock is found to begin at the point of laying the information, the Jordan analysis can account for the intervening period until arrest as either (1) defence delay, (2) a discrete event as an exceptional circumstance, or (3) by noting it as a feature of the complexity of the file. Where an accused is actively avoiding arrest, it is a relevant factor that can support the deduction of a period of delay as an exceptional circumstance.

[24] Upon review of the caselaw, I have concluded there is ample and binding authority to support the conclusion that the Jordan clock commences at the time police lay the information.

[25] As a result of this conclusion the total period of delay at issue is 35 ½ months.

[26] Although, I have concluded that the consideration of total delay commences at the time the information is sworn and not the point of arrest, the analysis outlined by the Supreme Court in Jordan provides guidance on how to account for delays between these periods.

[27] In Virk, the British Columbia Court of Appeal’s having ruled that the clock begins with the laying of the information, the court added as follows:

“That is not to say that the time between the laying of the information and arrest could never be deducted from total delay as a discrete event—for example, where there is evidence that the police were diligent in their efforts to serve process but unable to locate the accused, the accused was evading service, or other matters in the public interest reasonably necessitated a delay in effecting an arrest.”

[28] The court noted three possible forms of discrete events: (i) diligence but inability to find the accused; (ii) the accused actively evading service, or (iii) other matters in the public interest.

[29] In R. v. Khiar, 2021 ONSC 4677, the court characterized this pre-arrest period as defence delay in circumstances where the accused was actively evading service as opposed to a discrete event. [8] Justice Code also suggested at para. 55, that gaps between the laying of the information and arresting the accused could also be attributed to the complexity of the proceedings and exceptional circumstance would apply.

[30] In this case the delay exceeds the presumptive ceiling, and the Crown bears the onus of demonstrating that Mr. Malcolm’s conduct or avoidance of the criminal process constitutes a discrete event or has contributed to defence delay in this case.

(ii) Evidence of efforts to locate the defendant

[31] The Crown called Detective Constable Chris Skelton at the application hearing to outline police efforts in locating Mr. Malcolm. The officer further testified about his investigatory steps in identifying Aquille Malcolm as the suspect of the attacks at 133 Wilton Street. The officer testified that on October 9, 2020, he was assigned the case manager of the assault investigation. At the time he been an officer for ten years and was assigned to the criminal investigations bureau (CIB).

[32] The detective constable reviewed reports from the two officers that attended the call. At the time no suspect had been identified.

[33] He viewed a surveillance video from the Toronto Community Housing complex and identified a potential female witness. The suspect in the assaults, a male, was observed getting into a vehicle driven by the female. That same female is observed sometime later in the complex speaking on her cell phone. He was able to identify the female as Shani Armstrong and drafted a production order for her phone which was granted.

[34] The phone records were received on March 2, 2021. The officer determined that Ms. Armstrong had called a male by the name of Aquille Malcolm. He had a photo of Mr. Malcom on file and compared it to the surveillance video. He concluded there was a likeness between the suspect of the assaults and Mr. Malcolm, although he queried at the time whether that identification was sufficient to support grounds for arrest.

[35] He sought to speak to Ms. Armstrong to confirm the identification. She was 17 at the time. He was ultimately unsuccessful despite repeated attempts to speak to her and her mother.

[36] On September 12, 2021, DC Skelton upon a further review of the evidence concluded he had grounds to arrest Mr. Malcolm for the assaults on the two women.

[37] Based on a Canadian Police Information Centre (CPIC) check, the officer learned the defendant had outstanding drug related charges. As part of his recognizance, he was to live with his surety in Scarborough. [9]

[38] Two officers from 43 Division were tasked with attending at the surety’s address. The defendant was not home.

[39] DC Skelton was provided with a possible phone number for Mr. Malcolm. He was not able to reach him but left two voicemails on September 15. The officer did not speak to the surety.

[40] On September 29, 2021, Officer Skelton sought a warrant in the first for the arrest of the defendant. On that day he learned Mr. Malcolm had a lawyer – Joel Hechter. The officer spoke to counsel to advise him the defendant was “arrestable” and that he make arrangements to surrender. The officer followed up with an e-mail to counsel to which Mr. Hechter responded inquiring about the type of release. The officer responded on October 8, 2021, advising that Mr. Malcolm would be held for a show cause hearing.

[41] On September 30, 2021, an information was sworn.

[42] DC Skelton further testified that a copy of the signed warrant was uploaded to the Versadex and CPIC systems meaning every police force in Canada would have access to the warrant information and could arrest the defendant. The radius for the warrant was the province of Ontario.

[43] The officer stated, however, if Mr. Malcolm was arrested in another jurisdiction, he would not be necessarily notified.

[44] The Crown inquired whether a message could be put on either or both police databases advising outside police forces inform the TPS upon contact with the defendant. DC Skelton explained that a message could be added to CPIC using a Form 227, which alerts police to flag an individual and/or motor vehicle.

[45] The officer did not complete a Form 227 in this case saying that despite the form being uploaded, police as a general rule are not obligated to respond to the request for contact.

[46] On two occasions in December 2021 and February 2022, DC Skelton conducted a CPIC check and learned that the warrant in the first was still outstanding.

[47] The investigating officer testified that he did not look into whether Mr. Malcolm had upcoming court appearances believing his efforts at contacting counsel were sufficient.

[48] In September 2022, the officer testified that a CPIC printout was left on his desk at 51 Division, advising him that the defendant had been arrested and was being held in-custody. [10]

[49] The officer understood the next step was to arrange a judge’s order to compel Mr. Malcolm to appear before a court in Toronto.

[50] DC Skelton explained that he had only been at the CIB for two years and had never arranged a judge’s order before.

[51] The officer attempted to coordinate with the Thunder Bay Police Service to affect an arrest but was advised the applicant had been transferred to a correctional centre in Penetanguishene.

[52] In December 2022, the officer sought the assistance of a detective constable working in the warrant office of the TPS. As a result, a judge’s order was obtained and Mr. Malcolm was arrested on December 29, 2022, in Penetanguishene.

(iii) Police efforts did not constitute due diligence

[53] The issue that remains is how to characterize police efforts to locate Mr. Malcolm once the information was sworn.

[54] Ms. Hebert submits that by the time the defendant became a suspect, he had disappeared and was unreachable by police. She points to the various efforts made by police including attending at the surety’s address, leaving voicemails on Mr. Malcolm’s cell phone and contacting his lawyer. She argues his absconding conduct be deemed an exceptional circumstance or discrete event and therefore should be subtracted from net delay.

[55] I accept, as the defence argued, that an accused does not have a duty to voluntarily turn himself in in order to assert his rights under s. 11 (b) of the Charter. [11] Indeed, there is a duty on the state to exercise diligence and to locate, apprehend and bring an accused to trial.

[56] That said, accused persons cannot benefit from deliberately avoiding the criminal process. The accused’s conduct in the period prior to his or her arrest is an important factor in determining whether the delay was justified.

[57] In this case, I was impressed by DC Skelton’s efforts in investigating the suspect of the attacks on October 8, 2020. The officer made meaningful and persistent efforts to identify an assailant culminating in a production order for a cell phone number. He eventually identified Aquille Malcolm and an information was sworn. It is from this point (period of pre-arrest), that police due diligence is evaluated.

[58] Some efforts were made by law enforcement to locate Mr. Malcolm at the outset. However, over a 12-month period that followed DC Skelton’s only efforts consisted of two CPIC checks to confirm the arrest warrant remained outstanding. [12]

[59] Most concerning, however, were the efforts that followed when DC Skelton became aware that Mr. Malcolm was in-custody in Thunder Bay in September 2022. DC Skelton testified that he was aware that he required a judge’s order to affect the arrest of Mr. Malcolm. He candidly admitted he was having challenges, specifically testifying, “In December of 2022, I realized I wasn't very good at what I was trying to coordinate. I was having difficulty. So, I sought help from our warrant office. The warrant office includes a detective constable who does this on a routine basis.”

[60] The fact that the officer was having difficulty obtaining a judge’s order is not the pressing issue in this analysis, it is that DC Skelton waited an approximate two-month period to seek assistance. It was neither a timely nor diligent effort in the circumstances. I acknowledge that DC Skelton was working on multiple concurrent files in a busy police division, but his efforts were insufficient, especially given the straightforward solution he identified to his challenge of securing a judge’s order.

[61] In addition, now that the applicant was in-custody on new charges the officer would have been able to access information about future court dates. I further note he could have contacted counsel to facilitate an arrest. I appreciate his initial efforts to work with Mr. Hechter to facilitate an arrest were unsuccessful, but the circumstances in the fall of 2022 were different - Mr. Malcolm’s location was known.

[62] Section 511(1) (c) of the Criminal Code makes clear that from the point of charge, the police are obligated to act on an arrest warrant issued pursuant to that section “forthwith.” That was not the case here.

[63] DC Skelton also testified that Mr. Malcolm was subject to a recent probation order. I accept, as the defence suggested, that the probation officer may have had updated contact information for the defendant. Further, many probation orders have a reporting condition. It is unclear whether DC Skelton reviewed the terms of that order.

[64] Although the applicant’s conduct was concerning, given the fact that the defendant was required to be living with his surety as part of a previous release on drug charges, I cannot with sufficient certainty conclude that Mr. Malcolm was aware of the warrant for his arrest.

[65] In order to be exceptional, the circumstances must have been reasonably unforeseen or reasonably unavoidable. The Crown must demonstrate that it took reasonable steps to avoid and address the problem where it was possible to have done so. It need not prove that the steps taken were ultimately successful. Nor is the Crown required to “exhaust every conceivable option for redressing the event in question to satisfy the reasonable diligence requirement.” [13]

[66] In this case, after considering the totality of the actions of law enforcement to locate Mr. Malcolm, I am not satisfied the efforts were sufficiently reasonable nor did the police act with the necessary due diligence. As a result of this conclusion there is no discrete event that would reduce the net delay below the presumptive ceiling. Nor can this period be characterized as attributable to defence delay.

F. Conclusion

[67] I have deducted from the total delay, the period from February 12, 2024, until September 11, 2024 – a seven-month period (213 days). This was the first trial date offered by the trial coordinator but the defence was not available. [14] Indeed, the defence had limited availability and could not accommodate pre-trial motions until mid-July (the date of the Garofoli). This period of delay is attributable to the defence. No further deductions are warranted.

[68] The net delay in this case is therefore 28 ¾ months (865 days). This period exceeds the Jordan guidelines for trial in the Ontario Court of Justice and is presumptively unreasonable. The Crown has not rebutted the presumption of unreasonableness based on the presence of exceptional circumstances.

[69] A stay of proceedings is warranted.

H.S. Amarshi J.

[1] This timeline was derived from the Crown’s materials with some amendments. [2] The order needed to be corrected and police sought a second order on February 7, 2021. [3] Jordan, 2016 SCC 27, [2016] 1 SCR 631 at para. 69. [4] R. v. Coulter, 2016 ONCA 704 at para. 37. [5] Jordan, supra at para. 75. [6] See also discussion in R. v. Wookey, 2021 ONCA 68, at para 22 (as referenced in R. v. Allison, 2022 ONCA 329). [7] The courts in R. v. Smith, 2023 ONCJ 222; R. v. M.A., 2023 ONCJ 113; R. v. Khiar, 2021 ONSC 4677; R. v. Rea, 2018 ONCJ 425; R. v. Thind, 2018 ONSC 1337 and R. v. Sundralingam, 2017 ONCJ 400, have all held the Jordan clock commences on the date the information is sworn. [8] The court cited as authority R. v. Burke, 2018 ONCA 594, where the Court of Appeal held that where an accused fled the country to avoid capture and prosecution, the period was attributable as defence delay and not a discrete event. [9] There was no curfew or house arrest condition. [10] The defendant had been arrested on serious charges and he was unlikely to be released in short order. [11] See R. v. MacIntosh, 2011 NSCA 11, aff'd 2013 SCC 23. [12] I did not attach significant weight to the officer’s failure to file a Form 227. Ideally it would have been completed, but I accepted the officer’s evidence that the form is principally used when a suspect is still being investigated. Once a warrant in the first is issued, as was the case here, an outside police force is required to respond to the warrant. [13] Rea, supra at para. 25. See also discussion in R. v. Smith, 2023 ONCJ 222. [14] Where the court and the Crown are ready to proceed but the defence is not, the resulting delay is attributable to the defence – Jordan, supra at para. 64. The Supreme Court acknowledged in R. v. Boulanger, 2022 SCC 2, that in some cases, the circumstances may justify apportioning responsibility for this type of delay among the participants rather than attributing the entire delay to the defence. That is not the case here.