Ontario Court of Justice
Date: 2024 10 23 Court File No.: 998 22 12102078
Between:
HIS MAJESTY THE KING
— AND —
ISMET BAJCINCA
Before: Justice Scott Latimer
Heard on: September 23 & October 1, 2024 Reasons for Decision released on: October 23, 2024
Counsel: Haejun Rim........................................................................................... counsel for the Crown Jag Virk & Samantha Smith....................................................... counsel for the applicant
LATIMER J.:
[1] On October 1, 2024, I stayed Ismet Bajcinca’s criminal proceedings for unconstitutional delay. I did so with reasons to follow in order to re-purpose the December trial dates for other matters in the busy Halton provincial court system. What follows are my reasons reduced to writing.
[2] Summarily stated, the applicant’s case was unduly delayed due to a complacent approach to disclosure and case management. Almost twenty-seven months passed between the laying of the charge and the anticipated end of trial. While a certain lack of concern is evident in the defence approach to disclosure in this case, a more significant criticism of the same kind can be visited upon the Crown. Both parties allowed this case to drift through the set date process and, when the time finally came to set the matter down for trial, too much time had passed to salvage the case as s. 11(b) Charter-compliant.
[3] In my view, the best way to analyze this case is to review the history of the matter and identify the relevant causes of delay before moving to the Jordan [1] “net delay” calculation.
[4] Mr. Bajcinca was charged on September 21, 2022, with multiple counts of possession of stolen property. As the Crown advised during submissions, the investigation at that point was complete and almost all the disclosure was in state possession at the time of arrest. The only ongoing investigation related to cell phone analysis.
[5] This case is best analyzed by breaking the total delay into three time periods:
(1) Period 1 – September 21/22 to March 22/23 (What would have been a reasonable intake period [2]) (2) Period 2 – March 22/23 to July 3/24 (How long disclosure and case management actually took) (3) Period 3 – July 3/24 to December 16/24 (set date to anticipated end of trial)
Period 1 – September 21/22 to March 22/23 (What would have been a reasonable intake period)
[6] The following relevant events occurred during this time period:
(1) The applicant was released at a bail hearing. (2) Counsel was retained and filed a designation almost immediately. (3) Initial disclosure was not provided until mid-December, almost three months after charge. (4) In February 2023, further video disclosure was provided. (5) In March 2023, occurrence reports and officer notes were provided. (6) On March 22, 2023, the parties set a pre-trial meeting between counsel and the Crown. The first date the assigned Crown was available was May 10, almost two months later.
[7] There is no explanation in this record for why the assigned Crown counsel was unavailable to discuss the case for such a lengthy period of time. Certainly, given the disclosure concerns frequently brought up in set date court by the defence, sooner would have been better to address those concerns and keep the case moving forward. The respondent’s submission that another Crown would have been available to address the case on a “drop in” basis may be an option in simpler cases, such as the summary conviction proceedings that historically populated the Ontario Court of Justice, but the record in this case demonstrates that the attention of a Crown with ongoing ownership over the file was necessary to address the disclosure concerns of this indictable prosecution. This case was not “particularly complex”, as Jordan defines that term, but neither was it a straightforward summary conviction proceeding. A sustained effort by an assigned Crown was necessary to properly address the file’s disclosure problems. That could not occur during a “drop in” appearance with another Crown on a random Wednesday.
[8] Defence counsel in this case was retained early and took steps to identify outstanding disclosure and bring it to the Crown’s attention. The topic was regularly flagged in set date court and multiple letters were sent to the Crown’s Office. It has not escaped my attention that defence counsel’s approach was, to a degree, leisurely, in the sense that immediate resolution of their concerns was never really sought. A cynic might say that counsel, and his agents, were content to simply write letters and let the case age in the busy set date court. While I appreciate that it is the Crown who bears the constitutional burden of bringing the applicant to trial and not the other way around, in a different case, with different facts, such leisurely conduct may be worthy of greater s. 11(b) scrutiny. However, in this case, I am not inclined to the cynical approach as it is plain that the predominant reason for the inordinate delay in this proceeding was the Crown’s complacent approach to disclosure and the resulting delay in the intake process.
[9] Disclosure in this case should have been largely complete by March 22, 2023. [3] This would have permitted this case – at the time a joint prosecution – to productively move forward through the pre-trial process and eventually trial. As can be seen in the next section of this judgment, however, disclosure problems continued to plague this proceeding well beyond March 2023.
Period 2 – March 22/23 to July 3/24 (how long disclosure and case management actually took)
[10] The following relevant events took place during this time period:
(1) Following the May 2023 pre-trial meeting with the Crown, applicant’s counsel identified nineteen outstanding pieces of disclosure. The case was adjourned to June 27 for a further pre-trial meeting. (2) On June 28, the defence received additional disclosure, specifically officer notes, photographs, and occurrence reports. (3) On July 12, the Crown recommended on the record that a joint judicial pre-trial be set with the applicant’s co-accused. Agent for the applicant advised the court that, while some disclosure has been received, a “substantial amount” was still outstanding, and a further letter has been sent to the Crown’s Office identifying their specific concerns. (4) On August 21, police occurrence reports from York and Niagara were provided, as was a use-of-force report. Further items were identified as still outstanding. (5) On September 20, both defence and Crown agree that outstanding disclosure necessitated an adjournment to October 25. (6) On November 29, a joint JPT was scheduled for February 29, 2024. The scheduling process was memorialized in emails between the Trial Coordinator’s Office and the parties. The date setting process was delayed because of a number of factors, including the co-accused’s lawyer’s schedule. (7) On February 29, 2024, the JPT process began in front of Justice Calsavara, and was adjourned to March 18 to continue. Defence counsel stated on the record that they were hoping to have certain outstanding disclosure by the March date, as well as the attendance of the assigned Crown. The Assistant Crown Attorney appearing on February 29 expressed a desire to set the matter down for preliminary inquiry or trial, while at the same time agreeing with the defence that disclosure was still outstanding. (8) On March 18, the assigned Crown advised counsel that use of force reports were available to be disclosed, and that it was likely that the Crown would be withdrawing the charges against the co-accused. A further JPT was set for April 9. (9) On April 9, applicant’s counsel renewed his request for phone extraction disclosure (more on this later) and the co-accused’s statutory declaration. The assigned Crown did not challenge Mr. Virk’s on the record statement that he did not have the phone extraction material. (10) On April 30, the assigned Crown emailed Mr. Virk to ask if he received the phone extraction material in June 2023, as the Crown disclosure logs suggest. No answer was provided in writing or on the August 30 transcript. The JPT is adjourned to continue on May 15. (11) On May 15, the co-accused’s charges were withdrawn. There was also some confusion regarding whether the proper forms had been sent to the Trial Coordinator’s Office in order to book the trial dates. (12) On June 12, staff shortages in the Trial Coordinator’s Office prevent dates from being set. [4] (13) On July 3, trial dates were set for December 9-16, 2024, with an 11b application to be heard in September.
[11] This chronology makes plain that disclosure continued to lag throughout 2023 and well into 2024, slowing the case management process and preventing the Crown from making tactical decisions such as whether to withdraw charges against the co-accused. Had this withdrawal occurred sooner the JPT process would have begun sooner, as it was the co-accused’s lawyer’s dates that initially complicated the JPT date-setting process.
[12] What occurred in this case is what is regrettably still common in the criminal courts, even post-Jordan. The parties seemed to discuss the case only by letter or in short, monthly bursts in heavily burdened set date courts, where there is insufficient time to deal with outstanding issues in any substantive way. The parties would then be told by a busy judicial officer to speak outside of court, or write a letter, and a subsequent date would be set, only to have the cycle renew again.
[13] In Jordan, the Supreme Court advocated for real change in the criminal justice system and provided practical examples to all stakeholders, including the courts: paras. 138-141. Some of that change has been enacted very recently – too late for this proceeding, but perhaps soon enough for others. Judge-led Intensive Case Management Courts now operate in the OCJ specifically to address cases that are languishing in set-date court and require judicial intervention to move forward. The late 2023 adoption of this approach in Halton Region will hopefully assist in moving cases through the case management process with greater dispatch than occurred here.
[14] In this case, a judge first became involved on February 29, 2024. The JPT process in this case appears to have been successful in identifying issues in this case and focusing attention on the outstanding disclosure issues. That process, however, began too late (the first JPT occurred over seventeen months after the charges were laid) and took too long (five JPTs occurred over ten weeks).
[15] Based on the application record filed in this case, many pieces of disclosure were outstanding for considerable periods of time. While there is no dispute that much of this disclosure was reasonably requested and addressed late, there is disagreement regarding one piece of disclosure, the cell phone extraction report. The respondent’s position is that an assessment of the entirety of the application record demonstrates that a file with the same file name as the cell phone extraction disclosure was made available on the e-disclosure hub on June 28, 2023. On reflection however, I do not believe I can find that the defence were reasonably provided the material at that time. I say so for the following reasons:
(1) Defence counsel consistently indicated that they did not have the extraction analysis, only the notes of the officer who did the extraction. (2) The Crown’s Office acted as if this material had not been disclosed until April 30, 2024, when the assigned Crown emailed Mr. Virk to discuss the issue. (3) It is possible that, while the file name was the same, different material was provided on different dates. I cannot reject that possibility on this record and note that it would be consistent with the Crown’s honest belief on this application that the material was disclosed in June 2023, and the applicant’s position that it was not actually received until 2024.
[16] Overall, I conclude that I am satisfied, on a balance of probabilities, that this material was either not disclosed or not identified to the applicant as disclosed until April 30, 2024. The confusion surrounding this item of disclosure contributed to the delay in this case, but it was not a primary reason for delay. It was simply part of a larger pattern of piecemeal disclosure being provided in an unhurried manner over a great number of months.
Period 3 – July 3/24 to December 16/24 (set date to anticipated end of trial)
[17] On July 3, 2024, a five-day provincial court trial was set for December 9-12, and 16. The court offered multiple dates in October and November, but defence counsel was unavailable. The parties do not agree on how this time period should be characterized. The Crown submits that all time following the first block of trial dates offered is defence delay, as the court and Crown were available to conduct a trial. The applicant suggests that none of the time is defence delay or, in the alternative, a lesser period than the Crown submits, as the court system was not reasonably available for this five-day matter until December 2024.
[18] In this case, I am satisfied that the OCJ Trial Coordinator and the Crown made reasonable efforts to provide dates as quickly as possible. While this ‘last ditch’ effort to stave off a successful s. 11(b) application is commendable, it was already much too late in this case – over 21 months after the charge was laid – to prevent a stay of proceedings. However, for the sake of completeness, I will continue with my assessment of this time period.
[19] In R. v. Hanan, 2023 SCC 12, at para. 9, the Court rejected a “bright-line rule” that all delay until the next available date following defence counsel’s rejection of a date offered by the Court must be characterized as defence delay. Instead, all relevant circumstances should be considered.
[20] In R. v. Nyadu, 2024 ONSC 3822, at para. 25, Justice Mirza wrote, “when earlier dates are offered by the court and accepted by the Crown to proactively keep the case below the ceiling, defence unavailability and counsel’s decisions to prioritize other cases is relevant to the determination of delay.” I agree with that statement and apply it to the present circumstances. Multiple blocks of time were offered. All were available to the Crown; none to the defence. In the circumstances, I am satisfied that the Crown and the court were reasonably available to conduct this trial much sooner than December, and that the passage of time beyond October 15 amounts to defence delay. This is two months.
The “net delay” calculation
[21] For trials in the Ontario Court of Justice, an eighteen-month ceiling exists. The relevant total time for consideration is total delay minus defence delay. This creates what is referred to as “net delay”. If net delay is below eighteen months, the time to trial is presumptively reasonable and it is for an applicant to otherwise convince a court that it is nevertheless unreasonable. If the net delay exceeds eighteen months, a stay of proceedings must follow unless the Crown can convince the court that the delay is reasonable in light of the existence of exceptional circumstances: R. v. Coulter, 2016 ONCA 704, at paras. 34-40; Jordan, supra, at paras. 68-80.
[22] In Mr. Bajcinca’s case, the total delay (September 21, 2022, to December 16, 2024) is 818 days, or 26 months, 26 days. I have identified two months of defence delay between October 15 and December 16, 2024. This leaves 24 months, 25 days of net delay. That is well above the ceiling. The Crown properly does not try and justify this case as exceptional. A stay of proceedings is the only available remedy.
Disposition
[23] The charges are stayed for delay under s. 11(b) of the Canadian Charter of Rights and Freedoms.
Released: October 23, 2024 Justice Scott Latimer
Footnotes
[2] I appreciate “intake period” is language from Morin, not Jordan. My point in using it is illustrative – this case exceeded the Jordan ceiling because of the extraordinary time it languished in set date court.
[3] Consider the intake timelines discussed pre-Jordan in cases like R. v. Steele, 2012 ONCA 383, at paras. 14-17, and R. v. Mahmood, 2012 ONSC 383, at para. 38. Disclosure in the present case took much too long to provide.
[4] As discussed with counsel during submissions, staff shortages are a common occurrence in Halton’s two OCJ courthouses. Staff are too thinly dispersed for the system to be able to address routine illnesses. Contrary to the Crown’s initial submissions, this is not an exceptional occurrence; it is much closer to routine.