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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 12 02 COURT FILE No.: 22-40003134 Toronto Region
BETWEEN:
HIS MAJESTY THE KING
— AND —
Jun-Feng ZHANG
Before: Justice C. Faria
Heard on: November 5, 2024 Oral Decision on: November 5, 2024 Reasons for Ruling #2 s.11(b) Charter Application released on: December 2, 2024
Counsel: Daniel DeSantis.................................................................................. counsel for the Crown Myles Anevich & Chen (Jake) Shen........ counsel for the accused Jun-Feng ZHANG
Faria J.:
I. Introduction
[1] Jun Feng Zhang is currently on trial on three counts of sexual assault contrary to s. 271 of the Criminal Code before me.
[2] On January 29, 2024, the applicant sought a stay of proceedings alleging his s.11(b) Charter right to a trial within a reasonable time had been breached. On February 5, 2024, I dismissed the application with reasons to follow released on February 20, 2024. [1]
[3] As scheduled, the trial began on May 27, 2024 but did not complete on May 29, 2024, as anticipated.
[4] On the first day of the continuation of the trial, November 5, 2024, I heard a second application alleging a s.11(b) violation and requesting a stay.
[5] Later the same day, I dismissed the application with reasons to follow, and the trial continued. These are my reasons for my ruling.
II. Analytical Framework
[6] The analytical framework to be applied is set out in Jordan [2]:
Step 1: Calculate the total delay. This is the period from the charge to the actual or anticipated end of the trial.
Step 2: Calculate the net delay. Subtract any defence delay from the total delay. Defence delay may arise from a defence waiver, and/or a delay caused solely by the defence conduct.
Step 3: Compare the net delay to the presumptive ceiling of 18 months in the Ontario Court of Justice. If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable.
Step 4: The Crown may rebut this presumption if it establishes exceptional circumstances such as complexity and/or discrete events.
Step 5: Calculate remaining delay. Subtract delay caused by any exceptional discrete events from the net delay. If the remaining delay exceeds the presumptive ceiling, it is unreasonable delay.
Step 6: If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable by demonstrating a sustained effort to expedite the proceedings and the case took markedly longer than it reasonably should have.
III. Issue
[7] As my February 2024 decision found, after deducting defence delay, the net delay was 526 days. [3] This delay was under the presumptive ceiling. This decision accounted for delay from June 29, 2022 until May 29, 2024.
[8] The sole issue in this application is the characterization of the 164-day delay from May 29, 2024, to the anticipated last date of the trial November 8, 2024.
IV. Evidence
[9] The relevant dates and events are as follows:
i. Wednesday, May 29, 2024
In response to a question in cross-examination about text messages she had sent to and received from the applicant, the complainant testified she did not understand why portions were redacted, asserted privacy was not involved, and that the redactions made it look “like you can only hear from one side”. (Applicant Record, Tab 6, Transcript, May 29, 2024, pgs. 19- 20)
The text exchange had been redacted pursuant to a motion for direction in February 2024.
The Crown applied for and was granted an adjournment for the complainant witness to obtain independent legal advice (ILA) about her reasonable expectation of privacy in the redacted messages, and to consider its position on making a s. 278/276 Criminal Code application. (Applicant Record, Tab 6, Transcript, May 29, 2024, pgs. 20- 29)
ii. Friday, June 7, 2024
The Crown had no update on counsel for the complainant witness. The Crown had not received a response to its May 29, 2024, email to Victim Witness Assistance Program (VWAP) to requesting assistance for the complainant witness to get ILA. Earlier in the week he made inquires, learned the VWAP worker was on vacation, the notification had gone to a subfolder he did not receive, and the worker was returning on Monday, June 10, 2024. He informed the court if the witness provided a waiver, there would be no need for a hearing, the trial could continue to a further evidence date. He requested a week to ensure the witness received ILA. (Applicant Record, Tab 7, Transcript, June 7, 2024, pgs. 1-2)
An agent for counsel, Mr. Rochester, requested two weeks to June 21, 2024, and the court was unavailable the following week. (Applicant Record, Tab 7, Transcript, June 7, 2024, pgs. 3- 4)
iii. Friday, June 21, 2024:
No transcript provided.
The Digital Information Recording (DIR) judicial endorsement attached to the Information states: “Csl for the complainant has been appointed: Lisa Leinveer. She is requesting two weeks to obtain instructions from complainant. NCD remote for those instructions to be provided.”
iv. Wednesday, July 3, 2024:
Counsel for the complainant informs the parties via email that the complainant consents to the messages being unredacted but for two. (Applicant Record, Tab 3)
v. Friday, July 5 and Saturday July 6, 2024
The Crown informs Counsel of the complainant’s position, the parties discuss further trial estimates and decide on 2.5 further dates. The Crown emails the parties’ availability to the Trial Co-Ordinator (TC) and requests further dates.
Counsel available: “September 30, October 1-4, November 4-8”
Crown available: “August 20-22, September 24-25, October – any date, November – any date”
(Applicant Record, Tab 3)
vi. Wednesday, July 10, 2024
The TC emails the parties offering November 5, 6, and 8, 2024. (Applicant Record, Tab 3)
vii. Friday, July 12, 2024
The parties confirm the further evidence dates via email. (Applicant Record, Tab 3)
viii. Tuesday, July 16, 2024:
No transcript provided.
DIR judicial endorsement: “New dates TR continuation dates of Nov. 5, 6, 8, 2024 in 705 put on the record.”
ix. November 5 to November 8, 2024: Trial ( 690 days
V. Position of the Parties [4]
[10] Put simply, the applicant submitted the Crown asked for and was granted an adjournment on May 29, 2024, and so the entirety of the additional 164 days to the end of the trial is Crown delay. When 164 days is added to 526 days, the total delay is 690 days, the 18-month ceiling is breached by 143 days, and a stay is warranted.
[11] In the alternative, in oral argument the applicant submitted that even if the court finds the delay caused by the adjournment to be an discrete exceptional circumstance, the delay from May 29, 2024 to June 21, 2024, 23 days, was the result of the VWAP worker vacation, and should be characterized as Crown delay. This would put the case at 1 day over the 18-month ceiling, and thus a stay is warranted.
[12] The Crown submitted the 164-day delay is the result of a discrete exceptional circumstance. The Crown acted reasonably to remedy the delay, so it should be deducted from the total delay, and the net delay remains at 526 days. This is below the 18-month ceiling and the application should be dismissed.
[13] During oral argument, the Crown submitted that even if the VWAP worker’s vacation issue were excluded from the discrete and exceptional circumstance, the maximum Crown delay would only be 9 days, from May 29, 2024, to June 7, 2024, which would still not exceed the 18-month ceiling for an Ontario Court of Justice trial.
VI. Analysis
[14] R. v. Jordan at para. 69 makes clear that exceptional circumstances are ones that lie outside the Crown’s control because they are:
i. Reasonably unforeseen or reasonably unavoidable, and ,
ii. The Crown cannot reasonably remedy the delays emanating from those circumstances once they arise.
Characterization of 164-day delay post May 29, 2024
[15] This trial was set for three days starting on May 27, 2024. On the third day, May 29, 2024, during cross-examination, the complainant witness articulated she needed to refer to the redacted portions of the text messages put to her, to answer counsel’s questions.
[16] Portions of the text messages between her and the applicant had been redacted because of a defence Motion for Directions filed by the applicant and heard on February 8, 2024. During that in-camera hearing, the parties worked together and agreed on which messages attracted a reasonable expectation of privacy because they contained intimate, and, or highly personal information integral to the complainant’s biographical core or lifestyle. The messages that warranted redaction were thus redacted. The applicant withdrew his request for the determination of one package of messages and re-submitted the motion with a redacted version of messages. The parties agreed the messages as redacted and re-filed, did not require s. 278.92 application.
[17] When the complainant testified, she wanted to in effect, “waive”, her privacy rights from the witness box and refer to the redacted messages. The Crown appropriately recognized she was entitled to independent legal advice before she waived her reasonable expectation in highly personal information. He requested and was granted an adjournment for that purpose.
[18] The applicant asserts the Crown’s adjournment request erroneously relied on the Crown’s intended use of these messages for re-examination through a s. 276, s. 278 hearing, which is not a use contemplated by the s. 276, s. 278 regimes. He asserts the adjournment delay is therefore Crown delay.
[19] Though the Crown did include needing to contemplate its position vis-à-vis the records regimes in its adjournment submissions, the principle and clear reason was to provide the complainant witness with the independent legal advice she is entitled to before she waived her right to privacy in the redacted messages to answer Defence Counsel’s cross-examination questions.
[20] Both parties had recognized the issues that could arise from the records in the possession of the applicant, and both parties made their best efforts before the trial began, to address and deal with the complainant witness’ right to privacy.
[21] An issue arose, nonetheless. I therefore find the delay caused by the adjournment to be a discrete exceptional circumstance.
Crown’s efforts to remedy the delay
[22] As the Ontario Court of Appeal stated in R. v. J.S., 2024 ONCA 794 at para. 69, the relevant inquiry is whether the Crown acted reasonably to remedy the delay once the unforeseen circumstances arose, Jordan, at paras. 69, 74.
[23] Once the adjournment was granted, the following steps had to be taken:
i. The Crown had to contact the Victim/Witness Assistance Program (VWAP) worker to assign counsel to the complainant witness.
ii. VWAP needed to contact and connect counsel with the complainant.
iii. Counsel needed to review the issue, meet with the witness, provide legal advice, get instructions, and provide the complainant’s position to the Crown.
iv. The Crown and the applicant had to convey their earliest availability to the Trial Co-Ordinator and obtain further dates.
[24] The Crown emailed the VWAP worker the same day the adjournment was granted with the name of the counsel the complainant witness was to contact.
[25] Within 9 days, May 29 to June 7, the Crown realized VWAP had not responded, he identified a technical email issue, he followed up with the VWAP office, he learned he had not received a message because the worker was on vacation, he inquired when the worker was returning, he consulted on the issue of the s. 276, 278 regime, he concluded if the complainant witness waived her privacy rights, the trial could continue without a hearing. The Crown requested a week for the complainant and her counsel to connect. An agent for the applicant requested two weeks.
[26] I disagree with the applicant’s submission that VWAP “should have a system to deal with worker vacations”. It does. The email bounces back advising the sender the intended worker is away on vacation. I also disagree that the email technical issue delay should fall to the Crown. The Crown realized he had not received a response. He identified why. He inquired when the worker was returning. He proceeded with the process. The Crown should not be faulted for an “Outlook” email message error that he found and rectified almost immediately. I find the Crown’s efforts were reasonable.
[27] Between June 7 and June 21, Counsel for the complainant was appointed and she requested two weeks to receive instructions. She obtained those instructions and informed the Crown of the complainant witness’ position on July 3, 2024, within the timeframe she requested. The Crown, and the complainant witness’ counsel acted reasonably. These 26 days are properly required by the discrete exceptional circumstance.
[28] The Crown advised the applicant of the complainant’s position, the same day he received the information on July 3, 2024.
[29] Two days later, on Friday July 5 and Saturday July 6, 2024, the Crown communicated with the counsel for the appellant to obtain his availability which he immediately provides to the Trial Co-Ordinator (TC) the same day of July 6, 2024. These are extraordinary Crown efforts made after business hours and on the weekend to minimize delay with corresponding efforts made by the applicant’s counsel.
[30] The TC responded to the parties on Wednesday, July 10, 2024. Dates were confirmed on July 12, 2024. Again, efficient and almost immediate efforts are made by all parties to set dates.
[31] Although neither party raised the issue, the court asked for submissions on whether the Crown should have done more to obtain earlier dates for the trial continuation from the TC. The Crown responsibly submitted in hindsight, which is not the lens of analysis, that he may have been able to make that additional effort.
[32] However, a review of the dates the Crown offered the TC, made the urgency of the matter clear. The Crown on July 6th offered 3 days in August, 2 days in September, all of October and all of November 2024. Counsel was only available one day in September, which was a day all courts are closed [5], 4 days in October and 4 days in November, the latter of which were taken. I do not fault counsel for its minimal availability; however, his schedule provided the TC [6] with few options.
[33] I find the Crown’s efforts to remedy the delay once the discrete exceptional circumstance arose were reasonable, efficient, consistent, and as effective as they could have been.
VII. Conclusion
[34] For these reasons, I find the 164-day delay from May 29, 2024 to November 8, 2024 to be a discrete exceptional event which the Crown made reasonable efforts to remedy. The total delay remains 526 days, which is under the 18-month ceiling. The 11(b) motion is thus dismissed.
Released: December 2, 2024 Signed: Justice Cidalia C. G. Faria
[1] R. v. Zhang, 2024 ONCJ 100.
[3] I stated it as 17.5 in my reported reasons, but it is more accurate to state 17.30 months.
[4] Both parties made submissions in their factums regarding the “pace” of cross-examination on May 27, 28, and 29, 2024, its characterization, and its role in the delay. Their positions were not sufficiently elaborated in oral argument. I need not characterize the cross-examination of the witness to determine the issue before me and decline to address it.
[5] September 30th is Truth and Reconciliation Day for Ontario Court of Justice and courts do not run.
[6] The judicial calendar showed the court was assigned a homicide preliminary hearing on counsel’s October dates.