WARNING The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

( a ) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall

( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

( b ) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: 2024 01 31 Court File No.: Toronto 21-35004314

Between:

HIS MAJESTY THE KING

— AND —

M.F.

Before: Justice Derek Ishak

Heard on: December 7, 2023

Reasons for Decision released on: January 31, 2024

Counsel: Anita Kocula............................................................................. counsel for the Respondent Adam Goodman............................................................................ counsel for the Applicant

ISHAK J.:

I. Overview of the Application

[1] The Applicant was charged with numerous criminal offences in November 2021. His trial began on September 11, 2023, and though scheduled to be completed by September 15, it did not end until September 28, 2023. Prior to the end of the trial, the Applicant raised concerns regarding his right to be tried within a reasonable time and filed a section 11(b) application on September 20, 2023.

[2] Given the timing of the 11(b) application and that it had not yet been perfected, I provided my reasons for judgment on October 24, 2023. I found the Applicant guilty of assault with a weapon, two counts of assault, assault by choking, four counts of mischief, counts of possess, make, and distribute child pornography, and, lastly, the non-consensual sharing of intimate images.

[3] On October 31, 2023, the Applicant perfected his 11(b) application seeking a stay of proceedings pursuant to s. 24(1) of the Charter.

II. Principles and Framework

[4] The governing principles for an application under s. 11(b) are outlined in the Supreme Court of Canada’s decision of R. v. Jordan, 2016 SCC 27 (hereinafter "Jordan"). In Jordan, the Court established a presumptive ceiling of 18 months within which an accused must be brought to trial in the provincial court (see Jordan, at para. 49).

[5] As per Jordan, where the overall delay, less delays either waived or exclusively caused by the defence, exceeds the presumptive time period, the onus is on the Crown to demonstrate the delay was reasonable (see Jordan, at para. 56).

[6] Where the delay falls below the ceiling, the onus lies with the Applicant to demonstrate that it was unreasonable.

[7] The Ontario Court of Appeal, in R. v. Coulter, 2016 ONCA 704, summarized the way the delay is to be calculated:

a) Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial;

b) Subtract defence delay from the total delay, which results in the "net delay";

c) Compare the net delay to the relevant presumptive ceiling;

d) If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut that presumption, the Crown must establish the presence of exceptional circumstances. If it cannot do so, a stay should follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases; and

e) 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.

[8] A stay of a proceeding for delays below the presumptive time period will be rare and limited to the clearest of cases (see Jordan, at paras. 48 and 83).

III. The Position of the Parties

[9] The Applicant submits the remaining delay in this case is 20 months and 17 days – well above the presumptive Jordan ceiling. The Applicant notes the numerous disclosure issues leading up to the trial as well as the late disclosure on the morning of the trial as having unnecessarily delayed the conclusion of this case.

[10] The Applicant did not argue this matter should be stayed if I were to find the remaining delay to fall under the presumptive ceiling.

[11] The Respondent accepts responsibility for some of the delay and recognizes errors were made along the way in relation to late disclosure. However, the Respondent argues the remaining delay in this case is 9.5 months, which falls well under the presumptive ceiling.

[12] The parties agree, if I accept the Respondent’s submission that 50% of the time between the scheduling of the trial and the end of the trial is categorized as defence delay, then this application would fail.

IV. Analysis

[13] The total delay in this case, starting from when the Information was sworn on November 21, 2021, to the end of the trial on September 28, 2023, is 677 days or just over 22 months.

[14] As was conceded by the Applicant, the period from the end of the trial, to when my reasons for judgment were released on October 23, 2023, will not be considered as part of the 11(b) calculus (see R. v. K.G.K., 2020 SCC 7 and R. v. Safdar, 2021 ONCA 207).

[15] The Respondent submits, 50% of the delay between the scheduling of the trial and the end of the trial should be attributed as defence delay given their failure to raise their 11(b) concerns in a timely manner as required by Jordan, R. v. Cody, 2017 SCC 31, and R. v. J.F., 2022 SCC 17.

[16] In support of this position, the Respondent relies on the recent decisions of R. v. Kullab, 2023 ONCJ 458 (hereinafter “Kullab”), R. v. Nigro, 2023 ONCJ 41 (hereinafter “Nigro”) and the unreported decisions of R. v. A.D. by Justice Lai, R. v. MacDonald by Justice Daviau, and R. v. Ahmed by Justice Caponecchia (these unreported decisions were discussed by Justice Monahan in Kullab at paras. 28-30).

[17] The Applicant disagrees with these decisions, but fairly concedes that if I accept to apply the reasoning in those cases to the case at bar, his application would fail – regardless of any other apportioning of delay, even if beneficial to the defence.

A. Scheduling of Trial to End of Trial

[18] A trial scheduling meeting was held on January 10, 2023. Counsel accepted the first trial dates offered which were September 11-13, and 15, 2023. As of January 10, 2023, it would have been known, that the total delay at the end of trial, would be 664 days or nearly 22 months.

[19] Despite the total delay being almost four months above the presumptive ceiling, the Applicant did not raise any 11(b) concerns or request dates from the trial coordinator to argue an 11(b) application.

[20] The trial itself was then set on the record on January 12, 2023. Again, despite the apparent delay, no mention was made of any 11(b) concerns on this date, or during any of the interim appearances leading up to the start of the trial in September 2023.

[21] On July 21, 2023, counsel emailed the Crown regarding the trial. Within that email, defence, for the first time, raised a concern about 11(b):

Do you have an idea of where the complainant stands on this September trial? We will be at about 21.5 months. My quick review shows a 9 month delay between when we decided to set a trial and the trial date. There is also considerable delay dealing with the disclosure issues. My very preliminary assessment is this case might be an 11(b) problem. Do you think this is worth us having further discussion?

[22] When this email was sent, 53 days before the start of the trial, the total delay was just over 21 months – well over the presumptive ceiling.

[23] Similar to the situation in R. v. Alsouki, 2024 ONCJ 9 (hereinafter “Alsouki”), which I will discuss further on, I do not see defence’s email as a clear indication that an actual breach of 11(b) was going to be alleged prior to or during the trial (see Alsouki, at paras. 17-19).

[24] Though I am not privy to any discussions that may have occurred between the parties regarding an 11(b) application, at the outset of the trial no application had been filed. Furthermore, when the trial began, and I asked counsel about any motions or applications, counsel confirmed there would be none.

[25] On the last scheduled day of trial, it became clear a further day would be required to complete the matter. It was while attempting to schedule the further date that the Applicant, when prompted, confirmed 11(b) was an issue.

[26] It having now been formally raised on the record, attempts were made by both the Court and the Crown to prioritize the matter, including making myself available at counsel’s earliest convenience, and the Crown offering to provide written submissions within a short time.

[27] With all parties working together, the date of September 28, 2023, for closing submissions, was secured. On September 20, 2023, the Applicant filed his 11(b) application, and it was perfected on October 31, 2023.

[28] In Kullab, Justice Monahan cited numerous cases where courts have attributed 50% of the delay to defence between the scheduling of the trial date and the anticipated end of the trial given the defence’s failure to raise their 11(b) concerns in a timely manner:

(1) In R. v. Ahmed (unreported), trial dates were set outside the Jordan ceiling and the defence failed to raise 11(b) concerns until nine months later. Justice Caponecchia attributed 50% of this time as defence delay after allowing for two weeks to order transcripts;

(2) In R. v. A.D. (unreported), Justice Lai addressed the same type of conduct by the defence, namely a failure to raise any 11(b) concerns for 10 months after trial dates were set outside the presumptive ceiling. As a result, Justice Lai attributed 50% of this time as defence delay; and

(3) In R. v. MacDonald (unreported), there was 190 days of delay from the time the dates were set for trial to the time the defence notified the Crown that 11 (b) was an issue. Justice Daviau attributed 50% of the delay to the defence for reasons similar to the Nigro case.

[29] In Nigro, trial dates were set on January 28, 2022, with the trial scheduled to be completed in February 2023. The defence first raised their concerns regarding delay on October 15, 2022; roughly nine months after the trial dates were set. In that case, Justice West found that by their inaction, the defence had demonstrated “a marked indifference towards delay.”

[30] He further stated the defence should not be allowed 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.” (see Nigro, at para. 35).

[31] As a result, Justice West attributed 50% of the time from the trial date being set to the contemplated end of trial as defence delay.

[32] In Alsouki, which was released on January 8, 2024, Justice Blacklock found the approach taken in these prior cases was reasonable. He then applied that same reasoning to the case before him in which defence had waited more than 13 months, after the trial had been set, to file their 11(b) application.

[33] At paragraph 41 and following, Justice Blacklock stated:

[…] the Canadian authorities make it clear the defence does indeed have a certain degree of responsibility to ensure that cases come to trial within a reasonable time. This obligation has been recently underlined by some of the comments by the Supreme Court in R. v. JF 2022 SCC 17 para 31-34 as well as some of the authorities I have referred to above.

I do not think it is asking too much to require the defence in some fashion to clearly indicate in a timely way that it is the defence position that the dates set for trial involve a breach of section 11(b). Should they fail to give that clear indication for a protracted period until there is little that can be done about the situation they are fairly taken as running the risk that they will be found to be markedly indifferent to trial delay. Such a finding may rightly then potentially give rise to the allocation of some of the ensuing delay to the defence for 11(b) purposes.

[34] I agree with Justice Blacklock’s comments and accept the reasoning outlined by my colleagues in the other cases I have reviewed. I find steps could have been taken to address or mitigate the delay in this case if the Applicant had formally raised his 11(b) concerns in a timely manner.

[35] Furthermore, when considering this 11(b) application, I am entitled to draw on my knowledge of local conditions including, for example, delays caused by the pandemic or courtroom closures due to staff shortages (see Jordan, at para. 89, R. v. L.L., 2023 ONCA 52 at para. 21, R. v. Coates, 2023 ONCA 856, at para. 44 and R. v. C.L., 2023 ONCJ 381, at paras. 14-18).

[36] Like Alsouki and Kullab, the case before me was a multiday trial, which included a charge of sexual assault. It also included charges of child pornography, various assaults, and the unlawful sharing and posting of a minor’s intimate images online.

[37] Had the Applicant raised his 11(b) concerns in a timely fashion, it would have allowed the Crown to determine whether they wished to prioritize this case or stack it on top of other matters – a practice often seen in Toronto (see also Kullab, at para. 37 and Alsouki, at para. 31).

[38] The Respondent submits the end date for this 50% attribution should be the end of the trial which was September 28, 2023. I disagree. The late disclosure of the video surveillance, which occurred at the outset of the trial, resulted in trial time being lost to allow defence to review it prior to certain evidence being heard. But for this delay, the trial would likely have been completed as scheduled on September 15, 2023.

[39] Therefore, I will be attributing 50% of the 248 days that elapsed between January 10, 2023, and September 15, 2023, as defence delay – which would be 124 days.

[40] When I subtract these 124 days of defence delay from the total delay of 677 days, the net delay, barring any further review, is 553 days, or 18.18 months (I note, the formula used to convert days to months is the total number of days divided by 30.417. This is the formula the Court of Appeal applied in R. v. Shaikh, 2019 ONCA 895).

[41] Given we are still above the presumptive ceiling, despite the subtraction of this defence delay, I will turn to what other defence delay, if any, there may be in this case.

B. Judicial Pretrial to Election

[42] A judicial pretrial was held on September 8, 2022. Time estimates for both a trial and a preliminary hearing were obtained. On September 22, 2022, the matter went over to confirm instructions regarding the Applicant’s election. The same request was made on October 13, 2022, and once again on November 3, 2022. However, on November 3, 2022, the Applicant explicitly waived 11(b) to the next court date which was November 24, 2022.

[43] This 11(b) waiver constitutes a period of 21 days, which, when subtracted from the current net delay of 553 days, brings the revised net delay to 532 days, or 17.5 months – which is below the presumptive Jordan ceiling.

[44] Given my findings, it is unnecessary for me to consider any other potential periods of defence delay, discrete events or exceptional circumstances. However, I will note, despite the Applicant’s argument to the contrary, I would have found, at minimum, that the 42 days from September 22, 2022 (the first appearance after the judicial pretrial), to November 3, 2022 (the court appearance when 11(b) was waived), constituted further defence delay, which, in turn, would have been deducted from the current net delay of 17.5 months.

V. Conclusion

[45] As the net delay in this matter falls below the presumptive Jordan ceiling, the Applicant’s 11(b) application is dismissed.

Released: January 31, 2024 Signed: Justice Derek Ishak