His Majesty The King v. Richardson-James, Porter, and Brown, 2024 ONCJ 618

ONTARIO COURT OF JUSTICE

DATE: 2024 12 02 COURT FILE No.: BRAMPTON 23-31105278

BETWEEN:

HIS MAJESTY THE KING

— AND —

Trey RICHARDSON-JAMES Carlos PORTER Jaheim BROWN

Before: Justice S. Caponecchia

Heard on: November 8, 2024 Reasons Released on: December 2, 2024

Counsel: J. Vlacic, for the Crown / Respondent R. Gupta, for Mr. Richardson-James & Carlos Porter / Applicants J. Rabinovitch, for Jaheim BROWN / Applicant

CAPONECCHIA J.:

[1] The defendants jointly apply for a stay of proceedings pursuant to s. 11(b) of the Charter.

[2] The information charging them with robbery, use imitation firearm and wear disguise was sworn on May 17, 2023. A five-day trial is scheduled for January 20-24, 2025. The total delay is 618 days, or 20 months and 18 days.

[3] The Crown’s position is that the total delay should be reduced for defence delay, resulting in a net delay of 14 months and 13.5 days, below the 18-month ceiling for trials in the Ontario Court of Justice. The defence disagrees.

[4] For the reasons that follow, the application is dismissed.

[5] The facts upon which this application turns are as follows.

1. After the information was sworn on May 17, 2023, the case progressed through the bail and intake phase.
2. On June 13, 2023, substantial disclosure (435 pages) was made by the Crown. [1] The disclosure did not include a short surveillance video of the robbery, nor police body camera footage capturing each defendants’ arrest.
3. On August 18, 2023, defence was disclosed a 4-pg use of force report, as well as a memo from police which indicated that there were no search warrants, nor any statement taken from the defendants. [2]
4. Counsel for Mr. Richardson-James held a Crown resolution meeting on September 18, 2023. [3]
5. The defence scheduled a judicial pre-trial (JPT) for October 20, 2023. [4]
6. Crown counsel took steps to move the JPT forward from October 20, 2023, to September 25, 2023. [5]
7. On September 25, 2023, the Crown disclosed two witness statements, body camera footage, crime scene photos and a surveillance recording of the robbery. [6] A constructive JPT was not held due to the recent disclosure. Another JPT was scheduled for October 4, 2023. Later the same day, defence counsel for Mr. Richardson-James advised that she was not in fact available on October 4, 2023. [7]
8. On September 26, 2023, additional JPT dates were offered by the trial coordinator: October 11 and 13, 2023. The Crown was available, counsel for Mr. Richardson-James was not. [8]
9. On September 26, 2023, counsel for Mr. Brown (Mr. Tomlinson) advised the parties that he no longer acted for Mr. Brown. [9]
10. A JPT was set for November 17, 2023. [10] It did not proceed because Mr. Brown’s new lawyer (Mr. Rabinovitch) had been recently retained. [11] The other parties were prepared to proceed.
11. A final JPT was scheduled for November 28, 2023. [12] A trial time estimate form was completed the same day. The Crown emailed the defence the form and asked them to let the Crown know if the trial dates they set give rise to any s. 11(b) issues. The Crown advised the defence that the Crown’s office was prepared to change the trial dates if counsel would assist by raising the issue in a timely way. [13]
12. Defence counsel proceeded to schedule an appointment with the trial coordinator to set a trial date. The meeting was scheduled by the defence to take place on December 19, 2023.
13. On December 19, 2023, the first dates offered for a 5-day trial by the trial coordinator were March 18-24, 2024. The Crown and two of the three defence counsel were available. Counsel for Mr. Brown was not. The next trial date offered was 13-months away, January 20-24, 2025. All parties were available.
14. On February 29, 2024, defence counsel put the trial dates on the record. The Crown in court asked the defence to identify if s. 11(b) was in issue. If so, the Crown urged them to schedule a hearing date for the application as soon as possible. Defence waited until September 25, 2024, to do so.
15. On April 18, 2024, a backlog initiative was announced by the Regional Senior Justice for the Central West Region. Cases identified by the Crown in 11(b) jeopardy were brought forward and earlier dates were offered. The initiative took place over the course of several days: April 29, 2024, May 2, 6, 9, 13, 16, 28, 29, 2024 and June 4, 5, 13, 14, 17, 20, 24, 25, 26, 2024. [14]
16. This case was not included by the Crown in the backlog initiative even though it was set outside the Jordan deadline. Defence counsel for Mr. Brown and Mr. Richardson-James both received notices in relation to other clients. [15] The last paragraph of the notice they received reads: Finally, if you are not contacted with respect to any other matters which you would wish to have added to the Backlog Reduction Court for consideration of earlier trial dates, please feel free to direct such requests to the Trial Coordinator as soon as possible.
17. On September 25, 2024, defence asked the trial coordinator for a s. 11(b) hearing date. [16] The hearing date was set for November 8, 2024. The defence request for a s. 11(b) application date came approximately six weeks before the Jordan deadline on November 17, 2024. The hearing date chosen by the defence was less than four months before the trial was scheduled to commence. [17] On November 1, 2023, the Ontario Court of Justice issued a Practice Direction requiring s. 11(b) applications to be heard 4 months before the trial date. [18]
18. Ms Gupta submitted a factum and made fulsome submissions on behalf of Mr. Richardson-James and Mr. Porter. Mr. Rabinovich, on behalf of Mr. Brown, filed a Form 1 in which he adopted the written submission made by Ms. Gupta. Mr. Rabinovitch did not submit a factum, nor did he raise any issues specific to Mr. Brown.

The Law

[6] In R. v. Jordan, 2016 SCC 27 [Jordan], the Supreme Court of Canada detailed the following steps when determining the merits of an 11(b) application:

1. Calculate the total delay, which is the period from the laying of the charge to the actual or anticipated end of trial; [20]
2. Subtract defence delay from the total delay, which results in net delay;
3. Compare the net delay to the presumptive ceiling. If the net delay exceeds the presumptive ceiling, the Crown must establish the presence of exceptional circumstances, otherwise a stay will follow. Exceptional circumstances fall under two categories: discrete events, and particularly complex cases;
4. Subtract delay caused by any discrete events from the net delay, leaving the remaining delay;
5. If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable. [21]

[7] The law with respect to how to treat delay where there are multiple accused and competing availability of defence counsel was recently summarized in R. v. Al-Ramahi, 2023 ONSC 7281. [22] Briefly stated, two approaches have emerged since Jordan was decided. The first involves an analysis under defence delay. The second, under exceptional circumstances. The two different approaches originated from the Ontario Court of Appeal in a case called R. v. Gopie, 2017 ONCA 728, [2017] O.J. No. 4963.

[8] Gillese J.A. for the majority, held "...provided it is in the best interests of justice to proceed jointly against co-accused, delays resulting from the fact that there are jointly charged accused are considered under the exceptional circumstances analysis in Jordan." [23] Gillese J.A., summed up her analysis on this point as follows:

In my view, attributing to an accused the delay caused by the actions or inactions of a co-accused is inconsistent with the approach and language of Jordan. That does not mean, however, that delay caused because the matter proceeded jointly against multiple accused is irrelevant to the s. 11(b) assessment under Jordan. As I discuss below, delays arising in the case of jointly-charged accused can give rise to exceptional circumstances under the Jordan framework. [24]

[9] Gillese J.A. in Gopie also recognized that in determining whether any defence caused delay is attributable to an applicant in a joint prosecution, the starting point must be an individualized approach. [25]

[10] In a separate concurring opinion in Gopie, Brown J.A. agreed with the majority's conclusions but contended that considerations of delay caused by the actions of a co-accused are best handled under the defence-caused delay part of the Jordan framework. [26]

[11] In subsequent appellate cases, both approaches have been followed. In R. v. Tran, 2023 ONCA 532 the delay was dealt with as an exceptional circumstance. Four examples of appellate cases where the availability of multiple defence counsel was considered under the rubric of defence delay include R. v. Albinowski, 2018 ONCA 1084, R. v. Pauls, 2020 ONCA 220, R. v. Grant, 2022 ONCA 337, and R. v. Jaques-Taylor, 2024 ONCA 458.

[12] In R. v. Tran, 2023 ONCA 532 the delay was dealt with as an exceptional circumstance. The reason for the delay of a scheduled trial was that the appellant's two co-accused each changed counsel after the trial date had been set. That necessitated a rescheduling of the trial. Although new counsel for the co-accused had dates available within the Jordan allowable period, Mr. Tran's counsel did not, and the new trial was scheduled just beyond the presumptive Jordan date. Paciocco J.A. cited the majority judgment in Gopie and analysed the situation as an exceptional circumstance. Paciocco J.A. found that the prerequisites for exceptional circumstances had been met in that case because the Crown established that a joint trial was in the interests of justice, the change of counsel by Mr. Tran's co-accused was outside the Crown's control, and the delay due to the rescheduling of the original trial was not reasonably avoidable in the circumstances.

[13] Turning next to appellate cases where the availability of multiple defence counsel was considered under the rubric of defence delay.

[14] First, Albinowski. The Crown sought to characterize delay as defence-caused delay because it arose from the inability to co-ordinate the schedules of three defence counsel. [27] It was accepted in that case that joint proceedings were justified. [28] The court reviewed the scheduling difficulties in that case. [29] The delay due to difficulties co-ordinating the schedules of defence counsel was ultimately attributed to all three accused as defence delay. Roberts J.A. wrote:

How then is delay to be assessed in this joint trial? The trial judge did not have the benefit of this court's decision in R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, which sets out an analytical framework for the assessment of delay in joint trials with multiple accused. Gopie instructs that "an individualized approach must be taken to the attribution of defence-caused delay in cases of jointly-charged accused": Gopie, at para. 128. This approach avoids "attributing to an accused the delay caused by the actions or inactions of a co-accused [which] is inconsistent with the approach and language of Jordan": Gopie, at para. 136.

In my view, however, the individualized approach in Gopie does not apply in this case because the delay was common to all respondents who proceeded as a collective in this joint trial. Here, the actions or inactions of a co-accused did not cause the delay. Rather, the delay at issue was entirely due to scheduling challenges, which arose directly and inevitably from the respondents' joint situation. [30]

[15] Second, Pauls. The trial judge’s stay based on s. 11(b) was overturned. At issue on appeal was the trial judge’s treatment of defence delay for two jointly charged defendants. [31] The appellate court considered Jordan, Gopie and Albinowski and held that there may be circumstances where a communal approach to defence delay may be more appropriate than a consideration of exceptional circumstance where there are jointly charged defendants. [32] The Ontario Court of Appeal in Pauls concluded that a communal defence delay approach was appropriate for two periods of delay arising from Mr. Pauls’ counsel’s unavailability because his co-accused, Mr. Yusuf, agreed to trial dates acceptable to Mr. Pauls knowing that their counsel, the Crown and the court had earlier available dates and, more importantly, accepting that their trials should proceed with Pauls. [33] The balance of delay due to the unavailability of Mr. Pauls’ lawyer was deducted for other reasons, therefore it was unnecessary for the court to decide whether additional periods of delay could also be deducted based on the unavailability of co-accused counsel. [34]

[16] Third, Grant. The delay occasioned due to the unavailability of Mr. Grant’s lawyer following a successful adjournment application initiated by his co-accused, was treated as defence delay because Mr. Grant’s lawyer was unavailable for a new trial date for an unreasonable amount of time.

[17] Fourth and finally, the case of R. v. Jaques-Taylor, 2024 ONCA 458. On July 6, 2022, the parties attended Blitz Trial Scheduling Court to set a trial date. The trial coordinator offered August 8, 2023. Counsel for the co-accused was not available. September 2023 was considered but counsel for Mr. Jacques-Taylor was not available. The trial coordinator offered October 2, 2023, which all parties accepted. This date was 22 months and 2 weeks after the information was sworn and 55 days after the first trial date offered, August 8, 2023. [35] The trial judge deducted only the month of September 2023 as defence delay. At issue on appeal was the judge’s decision to not deduct the full 55 days from August 8, 2023, to October 2, 2023. [36] The appeal was denied. Central to the Ontario appeal court’s decision was the application judge’s finding that the co-accused did not proceed as a collective. The court also endorsed the trial judge’s reliance on the Supreme Court of Canada’s decision in R. v. Hanan, 2023 SCC 12 [Hanan] which held that all relevant circumstances should be considered to determine how delay should be apportioned. [38]

[18] In Hanan and R. v. Boulanger, 2022 SCC 2 [Boulanger] the Supreme Court of Canada held that delays due to the unavailability of defence counsel may be "reasonably apportioned" based on all the relevant circumstances. [40]

[19] In Hanan there was a change in the Crown’s case that prevented a jury trial from proceeding. The defence offered to proceed with a judge alone trial and the Crown refused to consent to a re-election. In these circumstances the ensuing delay based on defence counsel’s unavailability was attributed in part to the defence as well as the Crown. The delay was considered as a transitional exceptional circumstance because the parties reasonably relied upon the law as it had been before Jordan was decided. The trial judge also held that while the parties were aware of Jordan, they had not yet developed a full understanding of the lessons of Jordan.

[20] In Boulanger the relevant circumstances were that the need for additional trial time was identified by counsel approximately three months prior to the commencement of the trial and counsel requested additional time be set aside. The request was declined by the trial judge. Subsequently the trial judge in January 2019 agreed that additional time was required and insisted on continuing the case in September 2019, without considering the possibility of earlier dates when the parties were available, starting in June 2019. [41] The court apportioned the delay equally between the Crown and defence between June 2019 and September 2019. The delay was assessed under the rubric of defence delay.

[21] Returning to this case. This case is least analogous to the Tran case, and more analogous to Albinowski and Pauls. Having reviewed the binding case law, my conclusion in this case is that given this trial could not be held in March 2024 (before the Jordan ceiling) because one of the three defence counsels was not available, the ensuing delay is most properly assessed under defence delay, as opposed to exceptional circumstances. Accordingly, in assessing whether there should be any reduction of the total delay in this case to account for the actions of the defence, this court is required to:

a. decide whether a joint trial was justified; b. take an individualized approach to the attribution of any defence-caused delay; c. consider whether the defendants proceeded as a collective; and d. take into account all relevant circumstances.

Analysis

Step 1: Calculating Total Delay

[22] The parties agree that the total delay upon completion of the trial on January 24, 2025 is 618 days, or 20 months and 18 days, above the 18-month guideline established by the Supreme Court of Canada in Jordan for trials held in the Ontario Court of Justice.

[23] The delay is presumptively unreasonable. The onus is on the Crown to demonstrate otherwise.

Step 2: Defence Delay

[24] The Crown submits that the total delay in this case should be reduced over two periods based on the actions and inactions by all three defendants. The defence disagrees.

[25] I will first decide whether the Crown’s decision to proceeding against the defendants jointly was justified. Generally speaking, a joint prosecution is far more economical in terms of time and the expenditure of scarce judicial resources, and it minimizes the risk of inconsistent verdicts. [42] In this case the allegations are that all three defendants entered and robbed a Rogers cell phone store. All three are alleged to have concealed their identity while doing so. One person is alleged to have brandished an imitation firearm while demanding a Rogers employee open a safe. All three defendants are alleged to have fled in the same Acura with 31 stolen cell phones in blue and green shopping bags. One of the stolen phones was a decoy equipped with GPS monitoring. This feature permitted police to track the decoy phone, eight minutes after the robbery, to a location where police witnessed individuals exit the same Acura and enter an Infinity while carrying green and blue shopping bags. Police continued to track the parties until more units could be mobilized to effect an arrest. The three defendants were arrested approximately an hour after the robbery when the exited the Infinity. When the police blocked the Infinity, the driver tried to mount a curb to evade police. The three defendants were quickly apprehended by police after they tried to flee the Infinity. In all the circumstances of this case, I am satisfied that a joint prosecution is justified because all the defendants are out of custody, the evidence against each defendant is the same and it is far more economical in terms of time and the expenditure of scarce judicial resources. A joint trial also minimizes the risk of inconsistent verdicts.

[26] Next, I will decide whether the defendants acted as a collective. This court is satisfied that the defence acted as a collective based on the following:

1. Neither Mr. Richardson-James, nor Mr. Porter sought severance so that they could have a trial in March, or at any time before the Jordan deadline on November 17, 2024.
2. No counsel asked to have this case included in the backlog initiative in April-June 2024, notwithstanding counsel for Mr. Richardson-James and Mr. Porter received notices of same in respect of two other clients.
3. All three defendants waited until September 25, 2024, some nine months after the trial date was fixed, to request a date for a s. 11(b) hearing. In so doing, all three parties did not comply with a Practice Direction that had been in effect since November 1, 2023.
4. By collectively waiting until September 25, 2024, to raise s. 11(b), the action and inaction of all three parties guaranteed that this 5-day case would not be rescheduled before the Jordan deadline on November 17, 2024.
5. On the hearing date for this application, Ms. Gupta made oral and written submissions on behalf of both Mr. Richardson-James and Mr. Porter. Counsel for Mr. Porter did not appear. On behalf of Mr. Brown, Mr. Rabinovich adopted the position of the Ms. Gupta, filed a perfunctory Form 1 adopting Ms. Gupta’s position, did not submit an independent factum, nor raise any issues specific to Mr. Brown at the hearing.

[27] Turning next to an individualized approach to the attribution of any defence-caused delay.

1. October 4, 2023 – November 17, 2023 (44 days).

[28] The judicial pre-trial set for October 4, 2023, had to be rescheduled because counsel for Mr. Richardson-James was not available. The next JPT was scheduled for November 17, 2023. Mr. Richardson-James is solely responsible for the 44 days of delay between October 4, 2023, and November 17, 2023.

[29] The judicial pre-trial did not proceed on November 17, 2023, because Mr. Brown changed lawyers. The next available date to hold a JPT was November 28, 2023. Mr. Brown is solely responsible for the 11 days of delay between November 17, 2023, and November 28, 2023.

2. Half the period between December 19, 2023, and September 25, 2024

[30] This court is not persuaded that any of the delay between December 18, 2023, and March 18, 2024, should be borne by the defence because the court is not convinced that both the court and Crown were in a position to conduct a trial before March 18, 2024. Considering all the relevant circumstances in this case, the court is persuaded that half of the delay between the first trial date offered on March 18, 2024, and the day upon which the defence first notified the Crown that delay was an issue, should be divided between the defendants and the Crown.

[31] This apportionment of delay is consistent with Jordan, R. v. Cody, 2017 SCC 31, R. v. J.F., 2022 SCC 17, R. v. Vallotton, 2024 ONCA 459, Hanan and Boulanger.

[32] In Jordan the Supreme Court of Canada made it clear that it is incumbent on the defence to put the Crown on timely notice when delay is becoming a problem and conduct all applications, including s. 11(b) applications, reasonably and expeditiously. [43]

[33] In Cody the Supreme Court of Canada explained that defence action or inaction which exhibits a marked inefficiency or indifference towards delay can be attributable to the defence in the s. 11(b) calculus. [44] Defence conduct encompasses both substance and procedure—the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. [45] Trial judges should take care not to second-guess steps taken by defence for the purposes of responding to the charges, but they must also not be reticent about finding defence action to be illegitimate where it is appropriate to do so. [46]

[34] In J.F. the Supreme Court of Canada reiterated that an accused person has a duty to raise an infringement of their right to be tried within a reasonable time in a timely manner, and "[i]naction may be considered illegitimate conduct, and the delay associated with it may be attributed to the defence." [47] An accused who sees delay lengthening must respond in a proactive manner. [48]

[35] This court recognizes that a determination of whether defence conduct is legitimate is not an exact science. In all the circumstances of this case, I am satisfied that it was not legitimate for the defence to wait until September 25, 2024, to raise their 11(b) concerns given they were directly asked to turn their mind to delay three times: the first time by the assigned Crown in an by email dated November 28, 2023, the second time by the Crown in court on February 29, 2024 and a third time during the backlog initiative which started in April 2024.

[36] In R. v. Vallotton, 2024 ONCA 459 the court declined to apportion any delay to the defence because the record did not establish that defence counsel's tardy timing in bringing their s. 11(b) application deprived the Crown of the ability to mitigate the delay by obtaining earlier trial dates.

[37] Unlike in Vallotton, in this case there is evidence that the Crown was deprived of the ability to mitigate the delay due to the timing of the defence application. Had any one of the defendants raised s. 11(b) within a reasonable time after the trial was set on December 19, 2023, new trial dates would have been offered during the backlog initiative which started at the end of April 2024.

[38] A deduction of half of the 191 days between March 23, 2024, and September 25, 2024, is 95.5 days. This results in a net delay below the Jordan ceiling for all three defendants.

[39] This court also finds that the net delay falls below the presumptive ceiling for all three defendants for an alternative reason. Namely, all three defendants acted as a collective and therefore the delay that ensued due to the unavailability of Mr. Brown’s counsel for trial in March 2024 should be shared communally.

[40] On December 19, 2023, a trial date could have been fixed for March 2024, well before the Jordan deadline in November 2024, but for the unavailability of counsel for Mr. Brown. The next date offered and available to all the parties, January 20-24, 2025, was outside the Jordan deadline on November 17, 2024. Taking an individualized approach, Mr. Brown’s s. 11(b) must fail because he is solely responsible for his trial not being conducted within the Jordan time frame. I find that the Mr. Brown’s delay should be shared by Mr. Richardson-James and Mr. Porter for the same reason as in Pauls. Namely, Mr. Richardson-James and Mr. Porter agreed to trial dates acceptable to Mr. Brown, knowing that their counsel, the Crown and the court were available in March 2024, and accepting that their trials should proceed with Mr. Brown.

Step 3: Calculation of Net Delay

[41] The total delay is 618 days. The court calculates the net delay to be below the presumptive ceiling for two alternative reasons.

Reason #1

[42] I find that a deduction is warranted for 95.5 days (half of 191 days) based on the action and inaction of the defence between March 23, 2024, and September 25, 2024. This results in a net delay of 522.5 days for all three defendants, below the Jordan ceiling of 547 days for matters tried in the Ontario court of Justice. [49]

[43] In the case of Mr. Richardson-James, I would further reduce the net delay by 44 because he was directly responsible for the JPT not proceeding on October 4, 2023, and needing to be rescheduled for November 17, 2023. The net delay in Mr. Richardson-James case is 478.5 days.

[44] In the case of Mr. Brown, I would further reduce the net delay by 11 days because he was directly responsible for the JPT not proceeding on November 18, 2023, and needing to be rescheduled for November 18, 2024, as he had recently secured new counsel. The resulting net delay in Mr. Brown’s case is 511.5 days.

Alternate Reason #2

[45] Mr. Brown’s counsel was the only party unavailable for a trial before the Jordan deadline on March 18-23, 2024. He is directly responsible for 306 days (10 months) of delay between March 24, 2024, and the day this case is presently scheduled to conclude, January 24, 2025. Taking an individualized approach, Mr. Brown’s application fails because the net delay is 312, below the Jordan ceiling of 547 days for matters tried in the Ontario court of Justice.

[46] This court is satisfied that the defendants conducted themselves as a collective and therefore the 312 days should be communally shared.

[47] In the case of Mr. Richardson-James, his net delay calculation is further reduced by 44 days for the same reason in paragraph [43].

[48] In the case of Mr. Brown, his net delay is reduced by an additional 11 days for the same reasons given in paragraph [44].

Step 4: Exceptional Circumstances

[49] None of the parties submitted that exceptional circumstances apply in this case.

Step 5: Delay below the Presumptive Ceiling

[50] Where the net delay from the charge to the actual or anticipated end of trial falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that:

(1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. [50]

[51] In this case I am not satisfied on a balance of probabilities that the actions of the defence amount to meaningful steps that demonstrate a sustained effort to expedite the proceedings given:

a) After receiving substantial disclosure on June 13, 2023, the defence waited three months before holding a resolution meeting with the Crown; b) Neither Mr. Richardson-James, nor Mr. Porter applied for severance so that they might have a trial in March 2024, or at any other time before the Jordan deadline. c) On December 18, 2023, when the trial dates were set, it was clear to all counsel that the trial dates were set outside the Jordan deadline. Counsel had ample time to assess the history of the case, turn their minds to s. 11(b) and put the Crown on notice of their concerns prior to September 25, 2024. d) No counsel responded to the Crown’s request on November 28, 2023, to raise any s. 11(b) issues as soon as possible after the trial dates were set. e) Counsel ignored the Crown’s request made in court on February 28, 2024, to set a s. 11(b) hearing date as soon as possible if delay was an issue. f) Two counsel were notified of the backlog initiative in respect of other clients and neither requested to have this case included. g) All three defendants chose to wait until six weeks prior to the Jordan deadline to notify the Crown they were advancing a s. 11(b) application. In so doing, they all declined to take the necessary steps to comply with a Practice Direction which required this application be heard four months before the trial date.

[52] Turning to the second pre-requisite for a sub-ceiling delay. Reasonable time requirements of a case derive from a variety of factors, including the complexity of the case, local considerations and whether the Crown took reasonable steps to expedite the proceedings. [51]

[53] While this case is not complex, nor is it a “simple case.” Disclosure was completed by September 25, 2023, four months and 8 days after the charges were laid. The Crown and the court were available to hold a JPT on multiple days between October 4, 2023, and November 17, 2024. The trial could have taken place in March 2024, but for the unavailability of one of the three defence counsel. Earlier trial dates would have been offered if this case was included in the backlog initiative that started in April 2024.

[54] In Jordan the Supreme Court of Canada explained that it is no longer a matter of precise calculation when a court decides whether a case has taken markedly longer than it should. A court should not parse each day or month to determine whether each step was reasonably required. Rather, the exercise requires a trial judge to "step back from the minutiae and adopt a bird's-eye view of the case." [52] When I do so, this court is not satisfied that the net delay for this 5-day case supports a finding that the trial will take markedly longer than it should to complete.

[55] The onus for a stay based on a sub-ceiling delay has not been met by the defence.

Conclusion

[56] The 11(b) application is dismissed.

Released in Writing: December 2, 2024.

Signed: Justice S. Caponecchia

Footnotes:

[1] Exhibit 7, Respondent’s Application Materials, Tab 3. [2] Exhibit 7, Respondent’s Application Materials, Tab 8. [3] Exhibit 1, Affidavit of Simran Mann; Exhibit 4, Email from ACA Theo Serantis dated September 18, 2023 at 2:31pm. The resolution meeting was initiated by the defence approximately three months after receiving substantial discloser on June 13, 2023. [4] Exhibit 7, Respondent’s Application Materials, Tab 4, p. 6. [5] Exhibit 7, Respondent’s Application Materials, Tab 4, p. 6 and Tab 6, p. 4. [6] Exhibit 7, Respondent’s Application Materials, Tab 5. [7] Exhibit 7, Respondent’s Application Materials, Tab 7, p. 9 email from Ms. Gupta September 25, 2023 at 4:55PM. [8] Exhibit 7, Respondent’s Application Materials, Tab 7, p. 8 [9] See Exhibit 7, Tab 7, Respondent’s Application Materials, Email from Mr. Tomlinson dated September 26, 2023 at 5:35PM. [10] See Exhibit 1, Affidavit of Simran Mann; Exhibit 7, Tab 7, Respondent’s Application Materials, p. 3 Email from Trial Co-Ordinator dated October 26, 2024, 3:44PM [11] See Exhibit 7, Tab 7, Respondent’s Application Materials, p. 3 Email from ACA Ms. Vlacic dated November 19, 2023 at 10:18PM. [12] See Exhibit 1, Affidavit of Simran Mann; Exhibit 7, Tab 7, Email from Trial Co-Ordinator November 20, 2023, 2:40:23PM. [13] See Exhibit 7, Tab 7 p. 3 Email from Ms. Vlacic [14] See Exhibit 7, Respondent’s Application Materials, Tab 11 [15] See Exhibits 5 and 6. [16] See Exhibit 7, Tab 10, Respondent’s Application Materials, Email from Ms. Gupta dated September 25, 2024 at 1:49AM. [17] See Exhibit 7, Tab 10, Respondent’s Application Materials. [18] See the website for the Ontario Court of Justice: Ontario Court of Justice Practice Direction: Section 11(b) Charter Applications - Ontario Court of Justice and Practice Directions, Notices and Guidelines - Ontario Court of Justice. The latter reads, in part: The Court’s Practice Direction: Section 11(b) Charter Applications is intended to provide for fair, timely and efficient determination of s. 11(b) Charter applications. This includes hearing the application at least four months before trial so that, if the application is granted and a stay of proceedings is imposed, the scheduled trial dates may be utilized for other matters. To facilitate scheduling, the defence is required to advise, at the time a trial date is set, whether it intends to bring a s. 11(b) application; if a trial is scheduled to be heard beyond the Jordan timeline (i.e. more than 18 months from the Information sworn date), a s. 11(b) application will be scheduled unless the defence confirms on the record they are not bringing it. [19] R. v. Jordan, 2016 SCC 27 [Jordan]. [20] The end of trial does not include the period between the end of closing arguments to the verdict: R. v. K.G.K., 2020 SCC 7, at paras. 30 to 50. [21] R. v. Coulter, 2016 ONCA 704, at paras 34 to 41 [Coulter]. [22] At this 11(b) hearing, neither the Crown, nor the applicants, relied on any of the binding authorities which pertain to the treatment of delay involving jointly charged defendants. The parties were invited to make supplementary written submission based on a case referred to them by the court: R. v. Al-Ramahi, 2023 ONSC 7281. Only Ms. Gupta submitted additional written submissions. [23] R. v. Gopie, 2017 ONCA 728, [2017] O.J. No. 4963 (C.A.) at para 142 [Gopie]. [24] Ibid para 136 [25] Ibid at paras 128-136. [26] Ibid at para 193. [27] R. v. Albinowski, 2018 ONCA 1084 at para. 7 [Albinowksi]. [28] Ibid at para 39. [29] Ibid at paras 8-18. [30] Ibid at para 36-37 [31] R. v. Pauls, 2020 ONCA 220 at para 27 [Pauls]. [32] Ibid at para 52-53. [33] Ibid at para 54. [34] Ibid at para 50-51. [35] R. v. Jaques-Taylor, 2024 ONCA 458 at para 3 [Jaques-Taylor]. [36] Ibid at para 4-5. [37] R. v. Hanan, 2023 SCC 12, [2023] S.C.J. No. 101 [Hanan]. [38] Ibid at para 7. [39] R. v. Boulanger, 2022 SCC 2, [2022] S.C.J. No. 2 [Boulanger]. [40] Hanan, supra note 37 at para 9; Boulanger, supra note 39 at paras 8-10. [41] Boulanger, supra note 39 at para. 9. [42] R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146. [43] Jordan, supra note 19 at para 85. [44] R. v. Cody, 2017 SCC 31, at paras 32, 33 [Cody]. [45] Ibid. [46] Ibid at para 31. [47] R. v. J.F., 2022 SCC 17 at para 52 [J.F]. [48] Ibid at para 36. [49] 18 months x 30.41 = 547.36. See R. v. Shaikh, 2019 ONCA 895; R. v. Chung, 2021 ONCA 188; R. v. Charity, 2022 ONCA 226, at para. 17. [50] Ibid at para 48. [51] Ibid at paras 87, 88. [52] Ibid at para 91.