R. v. Kennedy, 2024 ONCJ 545

Court and Parties

ONTARIO COURT OF JUSTICE DATE: October 29, 2024

BETWEEN:

HIS MAJESTY THE KING

— AND —

TREVOR KENNEDY

Before: Justice Berg Released on: October 29, 2024

Counsel: C. Bouzane, counsel for the Crown B. Crawford, for the defendant

Berg J.:

Ruling on Application Pursuant to S. 11(B) Charter

[1] It is alleged that Trevor Kennedy has committed three offences: that he assaulted his conjugal partner at some time between February 1 and 5, 2022 (Count 1); that he assaulted her on another occasion at some time between April 17 and 20, 2022 (Count 2), and that during this latter period, he committed a mischief to her enjoyment of certain property. The Crown has elected to proceed by way of summary conviction. The trial has begun and now, mid-trial, Mr. Kennedy has brought an application for a stay of these proceedings due to an alleged breach of s. 11(b) Charter.

[2] Most of the facts that I must consider for this application are not contentious. Counsel agree that it will be decided on two very narrow issues. As stated in the Crown factum, they are:

a. Whether the Applicant’s failure to respond to the Respondent’s emails amounts to defence-caused delay such that the net delay ought to be reduced to under 18 months; and

b. Whether the JPT judge not authorizing sufficient trial time despite counsel indicating that what was approved was not enough is a discrete exceptional circumstance.

I will here provide a brief overview of the procedural history to date of R. v. Kennedy to place those issues in their context.

[3] The Applicant was arrested on the present matters on December 14, 2022. The first information was sworn on December 23, 2022 while the one before me was sworn on January 3, 2023, which was also the day of the first appearance. The defence had already requested the disclosure on December 21. A Crown pre-trial was held on February 24 and the required judicial pre-trial on March 13 and the trial scheduling conference on March 28. On April 6, 2023, a one-day trial was set for January 9, 2024 which had been the first date offered to the parties. On that day, I was required to set a trial continuation as only the examination-in-chief of the complainant was completed. The continuation was set for April 18, 2024. However, on that date, the defence did not complete its cross-examination of the complainant and further dates are required for trial continuation: October 29 and 30, 2024. On May 10, 2024, Ms. Bouzane sent an email to Mr. Crawford suggesting that they attend another trial scheduling conference to see if any earlier continuation dates had become available. He responded immediately and a conference was set for May 21, 2024. Despite these efforts, no earlier dates had become available. The defence has brought the present motion in anticipation of the October continuation dates.

Analysis

[4] The following analysis is guided by the decision of the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27 which established the current test to determine whether there has been a breach of an accused’s s. 11(b) rights. That test is well known. It has been summarized by the Ontario Court of Appeal in R. v. Coulter, 2016 ONCA 704 at paragraphs 34-40 as:

[34] Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial.

[35] Subtract defence delay from the total delay, which results in the “Net Delay”.

[36] Compare the Net Delay to the presumptive ceiling.

[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. If it cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.

[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.

[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.

[40] If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.

[5] The defence has pleaded that the delay from the date of the swearing of the information before me (January 3, 2023) until the anticipated last day of evidence and submissions (October 30, 2024) is 666 days. However, Ms. Bouzane for the Crown has fairly pointed out in her factum that the January 3 information was a replacement for one that had been sworn on December 23, 2022 and of whose existence I was hitherto unaware. Therefore, the total delay is actually 677 days or slightly over 22.5 months. To state the obvious, this would appear on its face to be in breach of the 18-month cap established for such cases in Jordan and thus is presumptively a case of unreasonable delay.

[6] However, as I indicated earlier, the Crown submits that I must consider the issue of any delay caused by the defence’s failure to respond to the Crown’s emails. To understand this submission, some further details of the procedural history of this case are required.

[7] As we have already noted, while both Crown and defence agreed that this trial would take more than one day, the judicial officer presiding over the JPT disagreed and authorized only a one-day trial. The date for the trial was formally set at an administrative appearance on April 6, 2023. Ms. Bouzane then sent an email to Mr. Crawford on April 18, 2023 indicating that she “tend[ed] to agree” that one day would not be sufficient to complete the trial. She asked whether the defence might concede the voluntariness of a statement made by the accused to the police and whether the injuries sustained by the complainant could be adduced by means of an admission. I pause to note that during submissions, I was advised that both these requests were ultimately complied with by the defence; I was not told when. Ms. Bouzane’s email continues: “If you are still of the view we might require another ½ or full day, perhaps we could see about tacking one on to the trial date we already have. Let me know what you think once you have had a chance to consider everything.” Ms. Bouzane received no response. Thus, she sent a further email on August 21, 2023 to Mr. Crawford which included the first one. This second email read simply “I just wanted to follow up.” There was no response.

[8] During submissions, Mr. Crawford accepted that the Crown had indeed sent these emails to him. He stated, however, that the first time he saw them was as part of the Crown materials. He could provide no definite explanation for this but noted that his office was having computer issues at the relevant time or times. Mr. Crawford disagreed with the Crown comment in her factum that due to this lack of response from the defence, the Crown was “barred from” mitigating the delay.

[9] Also during submissions, the defence realized that there had been further email correspondence that had not yet been made part of the record on this application. They were then permitted on consent to add that material to that record, there being no prejudice to the Crown. This material, which is not contested by the Crown, establishes that on October 12, 2023, Mr. Crawford sent an email to the Crown suggesting a resolution by way of a peace bond. The passage relevant to the present application reads “Given the value of court time, I thought I would reach out to see if the Crown would be amenable to resolving for an 810… Please let me know your thoughts.” Ms. Bouzane’s brief response came four days later. She did not believe that the matter could be resolved as suggested. She then asked, “Is there other counsel who is taking over for trial?” This question is obscure to me. However, it does show that the Crown had turned her mind to the issue of the trial. One notes the absence of any exploration by the Crown of the issues raised in the April 18 and August 21 emails. This fact does not mesh well with the Crown position at this application nor does the fact that the Crown, faced with radio silence from the defence after the emails of April 18 or August 21 not just pick up the phone and call defence counsel and ask “What are we going to do about this?”

[10] The Crown submits that the lack of response to their emails of April 18 and August 21 was the source of delay in that the Crown was unable to obtain a new estimate for the length of the trial and seek an earlier date. However, one must keep in mind that at the time the Crown sent those emails, a trial date had already been fixed and that there is no evidence before me that any continuation dates earlier than those that were ultimately obtained would have been available if the defence had responded in April or August of 2023. I cannot speculate as to what if anything would have been available. One must also keep in mind the very heavy workload at the Ontario Court of Justice in Ottawa. An example of this can be found in the present case where the parties set a trial scheduling conference on May 21, 2024 in the hope of obtaining continuation dates before me earlier than those in late October. Their efforts were to no avail.

[11] Neither party made a serious effort to mitigate the situation. The Crown recognizing this, submits that they share equal responsibility and the resulting delay should therefore be divided equally between them. There is nothing wrong with that approach where the parties do share responsibility. However, in the present case, I am of the view that neither the defence nor the Crown should bear any responsibility for the delay. The Court created the problem by refusing to accept counsel’s estimate of time that would be required for the trial. There does not appear to me to have existed any principled basis for the justice presiding at the judicial pretrial to have rejected that estimate; at least none appears in the evidentiary record upon which I must make this decision.

[12] It is to be remembered that for the purposes of s. 11(b), the Court’s role is not merely that of a passive adjudicator. It must be an active participant in the management of trial scheduling. As stated by the Supreme Court at paragraph 114 in Jordan:

Indeed, courts are important players in changing courtroom culture. Many courts have developed robust case management and trial scheduling processes, focusing attention on possible sources of delay (such as pre-trial applications or unrealistic estimates of trial length) and thereby seeking to avoid or minimize unnecessary delay. Some courts, however, have not. [emphasis added]

In the present case, the Court itself, in the person of a judge presiding over a judicial pre-trial, created the period of delay when for unknown reasons, they did not accept the time estimate proposed by the lawyers present. Their actions, in my view, created a situation in the present case akin to the Court actually not having anything more than a single day available for the trial.

[13] As I have not found that there was any delay caused by the defence, the net delay is the same as the total delay: 677 days or slightly over 22.5 months. Obviously, this is above the presumptive ceiling established by Jordan.

[14] Therefore, I must now deal with the second issue raised by the Crown namely, should I characterize the decision by the justice at the judicial pre-trial to authorize one day of trial time as an exceptional circumstance. To be clear, it has not been suggested that the matter at bar is a particularly complex case. The issue is whether or not what occurred at the judicial pre-trial was a discrete event and, as such, an exceptional circumstance that could allow the Crown to rebut the presumptively unreasonable net delay (see R. v. Coulter, 2016 ONCA 704 at para. 37).

[15] The Supreme Court in Jordan (paragraphs 69ff.) provided a definition of ‘exceptional circumstances”:

Exceptional circumstances lie outside the Crown’s control in the sense 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. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.

It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful — rather, just that it took reasonable steps in an attempt to avoid the delay.

It is obviously impossible to identify in advance all circumstances that may qualify as “exceptional” for the purposes of adjudicating a s. 11(b) application. Ultimately, the determination of whether circumstances are “exceptional” will depend on the trial judge’s good sense and experience. The list is not closed. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.

Commencing with the former, by way of illustration, it is to be expected that medical or family emergencies (whether on the part of the accused, important witnesses, counsel or the trial judge) would generally qualify. Cases with an international dimension, such as cases requiring the extradition of an accused from a foreign jurisdiction, may also meet the definition.

Discrete, exceptional events that arise at trial may also qualify and require some elaboration. Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. For example, a complainant might unexpectedly recant while testifying, requiring the Crown to change its case. In addition, if the trial goes longer than reasonably expected — even where the parties have made a good faith effort to establish realistic time estimates — then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance.

Trial judges should be alive to the practical realities of trials, especially when the trial was scheduled to conclude below the ceiling but, in the end, exceeded it. In such cases, the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling. Trial judges should also bear in mind that when an issue arises at trial close to the ceiling, it will be more difficult for the Crown and the court to respond with a timely solution. For this reason, it is likely that unforeseeable or unavoidable delays occurring during trials that are scheduled to wrap up close to the ceiling will qualify as presenting exceptional circumstances.

The Supreme Court further noted (at paragraph 81) that “To be clear, the presence of exceptional circumstances is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling. … Once so much time has elapsed, only circumstances that are genuinely outside the Crown’s control and ability to remedy may furnish a sufficient excuse for the prolonged delay.”

[16] This sentiment was reiterated at paragraph 112:

In addition, the new framework will help facilitate a much-needed shift in culture. In creating incentives for both sides, it seeks to enhance accountability by fostering proactive, preventative problem solving. From the Crown’s perspective, the framework clarifies the content of the Crown’s ever-present constitutional obligation to bring the accused to trial within a reasonable time. Above the ceiling, the Crown will only be able to discharge its burden if it can show that it should not be held accountable for the circumstances which caused the ceiling to be breached because they were genuinely outside its control. Crown counsel will be motivated to act proactively throughout the proceedings to preserve its ability to justify a delay that exceeds the ceiling, should the need arise.

There is no equivalent language establishing a similar duty on the defence in that circumstance.

[17] What occurred at the Judicial Pre-trial is not contentious. It was presided over by a justice who does not sit regularly or frequently in this jurisdiction. They were told by the defence that the trial would require more than one day as there was a likelihood that defence evidence would be called. The Crown did not disagree. The justice in question was willing to only authorize the setting of a single day for trial. With the consent of both Crown and defence, I obtained the pre-trial report that had been prepared by that justice after the meeting. It provides no further information as the only relevant portion states, “One day needed for trial” and nothing more. There is no reference to the fact that the lawyers did not think one day was sufficient nor is there any explanation why the jurist did not accept their joint submission.

[18] On the day that the matter was formally set down for the January 9, 2024 trial, the defence stated on the record that “the defence position at the JPT was that one day was not sufficient time but we were only authorized for one day.” The Crown (not Ms. Bouzane) responded that the justice who had presided over the JPT “doesn’t think anything should take more than a day.” It is unclear what was the basis for this remark by the Crown.

[19] Was this an exceptional circumstance in the sense of being a discrete event? With respect, it was not. I agree that it was outside of the control of the Crown as it would have been unforeseen that my colleague would reject the time estimate offered by the lawyers and only authorize a clearly insufficient amount of trial time. However, the second part of the test requires the Crown to make reasonable attempts to remedy the delay and it is here that I find that the Crown has failed to meet its onus. The emails sent by the Crown in April and August, as I have already discussed, were insufficient. While there was no available recourse to a higher level of court, the Crown could have sought to correct the error made by the pre-trial judge through seeking a remedy before the trial judge. [^1] This would have required asking the trial coordinator to identify who that would be and then bringing a pre-trial motion for direction before that jurist. The trial judge, having jurisdiction over their trial, could authorize further trial time. Even if they did not, the Crown would have reasonably attempted to remedy the delay caused by the Court. Remedial success is not required (see Jordan at paragraph 70).

Conclusion

[20] In conclusion, the Crown has not been able to establish the presence of a discrete event nor has it sought to characterize the present matter as particularly complex. Thus, the remaining delay is 677 days. This quantum is some four and a half months more than the permissible cap of eighteen months. Pursuant to s. 24(1) Charter, the remedy for this breach of Mr. Kennedy’s s. 11(b) Charter rights will be a stay of the charges against him.

Released: October 29, 2024 Signed: Justice Berg

[^1]: This is not to suggest that other possible remedies might not exist.