Ontario Court of Justice

Date: November 12, 2024

The King v. AIPL Canada Holdings Inc.

Heard: May 10, 2024 Decision: May 14, 2024 Written Reasons: November 12, 2024

Counsel: E. Steiman, paralegal for the defendant C. Bendick, Solicitor, City of Toronto

Before: Her Worship Esther Daniel

Reasons for Judgment s. 11(b) Application

[1] The defendant is charged with the offences below and this hearing in relation to a pre-trial application to stay the proceedings for delay pursuant to section 11(b) of the Charter. The trial dates of June 6th and 7th 2024 have already been set.

[2] The defendant is charged that on the 2nd of November 2020 at 394 Dovercourt Road in the City of Toronto (information number 4860 999 21 21100143) did commit the offence of, being the owner, failed to comply with an order dated 25th August 2020 issued pursuant to section 15.2 of the Building Code Act S.O. 1992. C. 23 as amended, contrary to the Building Code Act, S.O. 1992, c. 23 as amended, Section 36(1)(b),

(information number 4860 999 21 21100144) that on the 14th of October 2020 in the City of Toronto, did committed the offence of, being an owner, failed to comply with an order dated August 25th, 2020 issued pursuant to section 15.2 of the Building Code Act S.O. 1992. C. 23 as amended,

(information number 4860 999 21 21100145) That on the 18 October 2020 in the City of Toronto, did commit the offence of, being an owner, failed to comply with an order dated, 12 March 2020 issued pursuant to section 15.2 of the Building Code Act S.O. 1992. C. 23 as amended, and

the (information number 4860 999 21 22100447 that on the 18th October 2020 in the City of Toronto, did commit the offence of, being an owner, failed to comply with an order dated 23 March 2020 issued pursuant to section 15.2 of the Building Code Act S.O. 1992. C. 23 as amended,

[3] The informations were sworn on the following dates:

• 4860 999 21 21100143: March 5, 2021
• 4860 999 21 21100144: February 22, 2021
• 4860 999 21 21100145: February 22, 2021
• 4860 999 21 22100447: February 22, 2021

The difference in time between the earliest sworn information and those sworn later is 11 days. The date from the earliest laid information to the last day of trial is 39 months and 17 days (1201 days).

[4] The relevant dates are as follows:

i) From May 14, 2021 (the first appearance) to February 9, 2024 (the date the trial date was set), there were 15 appearances, during which, 32 months and 26 days had elapsed. During this time disclosure was obtained and ongoing pre-trial discussions were held with the focus towards resolution.

ii) First appearance: May 14, 2021. The licensed paralegal of record attends. Electronic disclosure was provided the day before. The prosecutor indicates the matter will be adjourned so that they may have continuing discussions with the paralegal. The paralegal agrees.

iii) July 9, 2021 – The paralegal agrees with the prosecutor that more time is needed for discussions and that the company is 95% compliant.

iv) September 10, 2021 – A paralegal student in the company of a licenced paralegal agrees to postpone the matter to a later date as both parties are working towards a resolution.

v) November 12, 2021 – The prosecutor advises she has had a recent update from the inspector and the property is still not in compliance. The paralegal agrees to the adjournment.

vi) January 21, 2022 – The prosecutor and paralegal are both present. A pretrial was held the day before the paralegal informed they are looking into whether issues have been resolved and requests that a judicial pre-trial be set. The judicial pre-trial is set for March 24, 2022 (to be held in between court dates) and the matter was adjourned to next date in court.

vii) April 8, 2022 – The prosecutor confirms the judicial pre-trial was held, parties are going to continue discussing and she has not heard from the paralegal on record. The agent paralegal says he will follow up. The prosecutor indicates they wish to adjourn for a brief time to ensure the compliance issues are followed up with.

viii) May 20, 2022 – The prosecutor advised they had discussions with the paralegal of record and there is a landlord-tenant decision pending from the tribunal and they will wait to see the outcome regarding the compliance issues. The agent for the paralegal was present and agreed.

ix) August 25, 2022 – The prosecutor requests to set a second JPT as the matter is not progressing adequately. The agent of record was present and agreed to the adjournment with a JPT in the interim on October 25, 2022.

x) November 4, 2022 – No paralegal was present. The prosecutor spoke to the matter on behalf of the paralegal of record and advised she spoke to the agent of record the day before and she was advised by him that the entire office was under the weather and the JPT was put over for another on January 17, 2023.

xi) January 27, 2023 – The prosecutor advises that after two judicial pre-trials, progress is being made towards compliance and that the matter is moving in a positive direction to which the paralegal of record agrees.

xii) April 28, 2023 – The agent of record states they are moving towards hopefully compliance and then resolution and the prosecutor advises progress is being made.

xiii) June 9, 2023 - The prosecutor advises that discussions continue with the paralegal of record and the one remaining charge is yet to fall into compliance so a discussion will occur with the office and an adjournment is requested. The paralegal of record states that he does not object to it.

xiv) July 14, 2023 – The paralegal of record advises that many discussions with the prosecutors have occurred, and attempts were made to set up a meeting with one of the city inspectors. Also, some new issues came up so asking for an adjournment and the prosecutor agreed. Mr. Ciobotaru (paralegal of record) stated the following “we’re having lots of discussions with the prosecutor and we’re trying to set up a meeting with the City inspectors. I believe there’s two of them. Maybe just one of them because one of the orders has been complied. And there’s some new issues that came up so trying to get the parties together. So, I’m asking if the matter can be put over”.

xv) September 22, 2023 – The prosecutor indicates the matter is getting a little “long in the tooth” and requested a brief adjournment for him to continue the discussion with the licensed paralegal. The paralegal of record agreed and when asked by the Court if the next court date was agreeable indicated that it was.

xvi) November 3, 2023 - The prosecutor indicated that a) he had a discussion with an agent of record, that resolution was still possible for at least some of the counts b) indicated that the agent of record was seeking an adjournment to facilitate the continuation of resolution discussions c) the prosecutor was agreeable to this request for adjournment d) that the charges were quite dated and about 2 years old and e) expressed the paralegal of record that on the next court date something had to happen- either a resolution or a trial date had to be set. When asked by the Court if this was correct, the agent of record indicated that it was substantially correct.

xvii) December 8, 2023 – the prosecutor indicates the matters have been on the books for some time and they are seeking that a trial date be set and that a JPT be set for January 30, 2024 as the trial will exceed half a day and that a to be spoken to date be set. The paralegal of record responds” thank you”.

xviii) February 9, 2024 – the Crown acknowledged the matter was not “progressing” and insisted that a judicial pretrial and a trial date be set and it was.

[5] An 18-month presumptive ceiling (for provincial matters) was set out in R v Jordan 2016 SCC 27, [2016] 1 SCR 631. 18 months is presumptively unreasonable, and it falls to the Crown to demonstrate exceptional circumstances.

The Position of the Parties: Total Delay

[6] Both parties concede that the total delay from the swearing of the information February 22, 2021 to the last day of trial June 7, 2024 is (1201 days) or 39 months and 16 days of total delay. They also concede that no discreet event existed.

[7] The defence asserts that i) they made no express or explicit waiver neither did the Crown request any and therefore there should be no reduction ii) the periods where the Crown requested adjournments for resolution discussions should not be counted as against the defence despite the defence not objecting to those adjournments iii) the net delay exceeds the presumptive ceiling and therefore the application should be allowed and iv) the adjournment from July 14, 2023, to September 22, 2023 (70 days) was an adjournment for the purpose of meeting with the city inspectors who issued the charges- full answer and defence applies and the adjournment was beneficial to the prosecution as well.

[8] The prosecution asserts that i) from the first appearance the defence contemplated resolution discussions and the entirety of the delay period was for that purpose ii) the defence implicitly waived delay time from the first appearance on May 14, 2021 to December 8, 2023 ii) by agreeing to adjournments for the resolution discussions the defence was implicitly waiving the time period(s).

[9] The Crown further submits that when the defence delay is considered that the net delay is less than the presumptive ceiling of 18 months and if so, iii) the defence has not met their onus in proving the delay is unreasonable on a balance of probabilities.

Net Delay

[10] The appearances as outlined above show that from the first court appearance of May 14, 2021 the case was on the resolution track at least until February 9, 2024 (the setting of the trial dates) 32 months and 26 days (1001 days) when the Crown pointed out the matter was not progressing. The appearance leading up to February 9, 2024 were focused on adjournments, agreed to voluntarily by the defence, and on the track towards resolution.

[11] As per the transcripts, disclosure was provided before the first appearance therefore time for disclosure to be produced is not part of the calculation. The defence has argued that i) on April 8, 2022 the Crown suggested that the matter be adjourned to discuss Building Code orders, ii) that the Crown was still gathering information surrounding inquiries about the orders that they would not have been able to proceed to trial at that time iii) on May 20, 2022 that the tenant was not allowing the landlord access to the unit to conduct repairs which the Crown believed would impact the matter, and iv) the ongoing gathering of information could be characterized as full answer and defence.

The Law

[12] The prosecution also relied upon R v Busch 2021 ONCJ 200, a delay case regarding the criminal code charge of impaired driving and over 80 m.g, at paragraph 8 that:

8 I agree with the analysis in Lim. In my view significant time periods spent in trying to resolve criminal cases should generally be considered delay to trial that is implicitly waived.4 I am not suggesting that any day on which there is some conversation between counsel about resolution should be deducted. But where counsel have chosen to pursue a path to resolution, any significant time expended in that pursuit should not be considered against the Jordan ceiling if, as here, the attempt to resolve ultimately fails and the case changes direction.

[13] Case resolution is i) an essential part of the court process R v Busch 2020 ONCA 264, [2020] OJ, No. 1757 at para. 5 i) time in resolution discussions should be considered an implicit waiver and ii) time expended in pursuit of resolution should not be considered against the Jordan ceiling (at para. 8).

[14] The defence in their submissions referenced the purpose of some of the resolution discussions. These discussions were held off of the official court record and this Court considers them privileged conversations. The court appearances mention nothing of the details of such discussions as they should not.

[15] Much of the defence submissions rely upon discussions or positions that were taken and engaged in outside of court, however very little was placed on the court record. Often parties will preserve their Charter rights on the court record without going into the minutia of pretrial and/or resolution discussions. While specific reasons for the adjournments may have been discussed outside of court, the Court must consider what is part of the court record, namely the transcripts filed. While the Court considers the paralegal submissions as an officer of the court, in these circumstances the Court finds that the defence cannot demonstrate what it asserts.

[16] The Court finds that little reliance may be placed on the details of discussions that occurred off of the official court record. The Court is bound to what is included in the court transcripts in considering this delay application and not out-of-court statements or discussions. This is not necessarily a general rule however applicable to the circumstances of this case. The Court further finds considering the facts of the present case, that the bulk of adjournments were made for the purpose of resolution discussions that i) the time should be considered defence delay and ii) that this delay should be subtracted from the delay calculation.

Total Delay

[17] Both parties relied upon R v. Ally [2021] O.J. No. 5257 | 2021 ONSC 6753, a criminal code decision related to a charge of fraudulent personation), as being the test to apply regarding delay. At paragraph 12 it states:

12 The framework for the analysis of a s.11(b) application was revised and restated in the Jordan case at paras. 46-91. That framework was subsequently summarized in R. v. Coulter, 2016 ONCA 704; 133 O.R. (3d) 433, at paras. 34-40. Pursuant to those decisions, the procedural steps to be followed by a court in a s. 11(b) analysis are as follows:

1. Calculate the total delay, which is the period from the date of the charge to the anticipated end of the trial.
2. Subtract any defence delay, including any delay that is waived by the defence, from the total delay, to calculate the net delay.
3. Compare the net delay to the presumptive ceiling,
4. If the net delay exceeds the presumptive ceiling, the delay is presumptively unreasonable. The onus is then on the Crown to establish the presence of exceptional circumstances, otherwise a stay will follow. Exceptional circumstances fall under two categories: discrete events and particularly complex cases,
5. Subtract any delay caused by discrete events from the net delay to calculate the remaining delay.
6. If the remaining delay exceeds the presumptive ceiling, the onus is on the Crown to establish that the case was particularly complex such that the time the case has taken is justified and 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 unreasonable.

[18] The following principles are applicable:

i) Defence delay is comprised of delay waived by defence and delay that was caused by the defence (R. v. Jordan paras 61 and 63)

ii) If the defence were to waive delay it must an explicit or implicit waiver, an informed waiver as well as clear and unequivocal (Jordan para 61)

iii) The defence may not benefit from "its own delay-causing action or inaction" (Jordan, at para. 113) An assessment of whether the defence conduct has "solely or directly" caused the delay (Jordan, at para. 66).

Exceptional Circumstances

iv) 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. [Emphasis deleted; para. 69.] This Court finds that the Crown has not established neither does there exist exceptional circumstances do not exists in relation to these proceedings. If the delay is presumptively unreasonable, the Crown must then demonstrate exceptional circumstances (Jordan, at para. 68).

[19] This Court finds that the Crown has not established neither does there exist exceptional circumstances in relation to these proceedings.

[20] Again in Aly, at paragraphs 24 to 26, Henderson J stated that:

24 The pursuit of resolution discussions may constitute implicit waiver. Resolution discussions are an important part of the criminal law process and the parties should be encouraged to engage in attempts to resolve the case. I accept that if the Crown and the defendant engage in resolution discussions, they should not do so under the threat that any delay caused by the discussions would be held against the Crown.

25 In the case of R. v. Chung, 2021 ONCA 188, the Ontario Court of Appeal considered whether the trial judge was correct in finding that the time spent engaged in resolution discussions without scheduling a preliminary hearing should be deducted as defence delay. The court wrote at para. 188, "We see no error in the application judge's attribution of this period to defence delay. She found that during this period, both appellants were engaging in resolution discussions instead of setting preliminary inquiry dates while those discussions were ongoing."

26 Therefore, I find that if a defendant has unequivocally chosen, for a period of time, to adjourn or delay setting dates for a trial or for other procedural steps in favour of engaging in resolution discussions with the Crown, then the delay occasioned by that choice must be deducted from the total delay for the purpose of a s.11(b) analysis.

[21] The Crown also submits that the defendant is not permitted to wait in the weeds and benefit from the delay R v Garrett 2023 ONSC 4439. Regarding the August 25, 2022 appearance when the Crown indicated that the matter was “not progressing adequately” the defence argues the Crown should have set a trial date and that this date represented 549 days or 18 months from the date the charges were laid. This Court refers to paragraph 25 of Aly (quoted above) which cites the Ontario Court of Appeal case of R v Chung, 2021 ONCA 188, where that court found that time spent engaging in resolution discussions instead of setting a preliminary hearing date should be deducted as defence delay despite the fact that both parties were engaging in said ongoing discussions. The defence, said nothing about delay and did not address it or agree that it was also of concern to them that the matter was “not progressing”.

[22] This Court finds that despite the issue of delay, being one which all parties should have concern about, in light of R v. Garrett and the cases above, consenting to the adjournments was a choice made by the defence and should be deducted from the total delay.

[23] When considering implicit waiver by the defence, at para 61 of the Jordan decision the court wrote,

Waiver can be explicit or implicit, but in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights.

[24] The Court does not find any explicit or express waiver of delay. The defence had legal representation at each and every step of the proceedings and appeared at each court hearing, except for the November 4, 2022 appearance. The Court concludes that the defendant had full knowledge of their rights throughout the proceedings. It is important to note the court in para 24 of Aly uses the word “may” in relation to the pursuit of resolution discussions. While this Court agrees there was no express waiver of any delay by the defence, the Court also finds that agreeing to adjournments for resolution discussions and making no mention of any concern of delay may be interpreted as an implicant waiver on the part of the defence.

[25] After considering the cases above, the Court finds since the defence agreed to adjournments for resolution discussions these periods should be considered implicit waivers. The Court in these circumstances interprets the silence of the defence, despite being provided with an opportunity to document any concerns on the court record, as an implicit waiver. This is based upon an analysis of the certified transcripts produced in support of this application and not upon submissions of what occurred off the record as part of resolution discussions.

Analysis

[26] The Court has already outlined what transpired on the relevant court dates with reliance upon the transcripts produced. The Court finds that each adjournment was engaged to facilitate resolution discussions except for the December 8, 2023 date where a trial date was set.

[27] Considering what has been discussed above, The Court considers the periods of time as outlined above of this decision and calculates the day as follows:

i) Total delay from the swearing of the information February 22, 2021 to the last day of trial June 7, 2024 is (1201 days) or 39 months and 16 days of total delay

ii) Subtracted by Net delay includes delay waived by the defence. The defence in their Notice of Constitutional Question, concedes to delay attributed to the defence on the adjournment date July 9, 2021 to 8 days, January 27, 2023 to 28 days and November 3, 2023 to 35 days for a total of 71 days. The date the trial was set on December 8, 2023 and beyond were not adjournments for resolution discussions as the trial dates of June 6 and 7, 2024 were set after the December 8, 2023.

iii) The Court finds that from the first appearance of May 14, 2021 to the December 8, 2023 were adjournments exclusively for resolution discussions and amounted to 938 days which were of implicitly waived delay

iv) The Court finds the net delay is the total delay 1201 days minus the implicit delay of 938 days (30 months and 24 days) days, which then results in the net delay being 263 days which is below the presumptive ceiling of 18 months

v) As the net delay does NOT exceed 18 months the delay is reasonable

Order

[28] The onus is on the defendant to establish that the delay is unreasonable. The Court finds that the defence has not discharged their onus on a balance of probabilities and therefore the application must be dismissed. This decision is marked as the next exhibit in these proceedings.

Dated the 12th day of November 2024

___________________________________________________- Her Worship Esther Daniel