Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: January 3, 2024 COURT FILE No.: BRAMPTON 22-3110-7683, 22-3110-7682

BETWEEN:

HIS MAJESTY THE KING

— AND —

Mikal RICHARDS

Before: Justice S. Caponecchia

Heard: December 4, 20, 2023 S. 11(b) Ruling Released: January 3, 2024

Counsel: J. Bellehumeur......................................................... counsel for the Crown / Respondent S. Kimberg................................................................ counsel for Mr. Richards/ Applicant

CAPONECCHIA J.:

[1] The defendant is charged with eight counts related to the possession and discharge of a firearm, possession of stolen property, failing to comply with a release order and possession for the purpose of trafficking. His trial is scheduled to take place over 4 days, March 11-14, 2024. A motion seeking leave to cross-examine the affiant of a search warrant is scheduled for January 3, 2024. The case will be 15 months and 26 days old (483 days) upon completion.

[2] It is the Applicant’s position that a stay is warranted because the case will take markedly longer than it reasonably should for a 5 day (4 +1) in-custody trial. The Crown disagrees.

[3] On December 4, 2023 I heard submissions on a s. 11(b) Charter application. On December 20, 2023 I invited the parties to make further submissions, including any comments based on three decisions the court shared in advance: R. v. Carman, 2017 O.J. No. 489, R. v. Barreiras, [2019] O.J. No. 4479 and R v. D.M.B., [2018] O.J. No. 418. The parties were notified on December 28, 2023, that the Application was dismissed and reasons would follow. These are those reasons.

Uncontested Facts

[4] This analysis will begin with the facts pertinent to this application that are not in dispute.

• The alleged offences are alleged to have occurred on October 21, 2022, and November 17, 2022. The defendant was arrested on November 17, 2022. He was held for bail and the Crown sought to revoke his release on outstanding charges.
• The Information before the court were sworn to on November 17, 2022.
• Between November 17, 2022, to January 5, 2023 the defendant adjourned his bail hearing repeatedly. To date he has never held a bail hearing and remains in custody.
• Initial requests for disclosure started as early as November 23, 2023.
• On December 1, 2022 initial disclosure was made available to the defence.
• On January 5, 2023, counsel was formally retained through Legal Aid. The defence requested a two week adjournment to organized a bail plan. Defence counsel renewed their request for outstanding disclosure.
• On January 24, 2023, a “special bailing hearing conference” was held between the defence, Crown and a Justice of The Peace. A bail hearing was subsequently never scheduled and defendant never sought his release.
• On February 8 and 13, 2023, a Crown resolution meeting took place.
• On February 16, 2023, defence counsel asked the Crown for instructions as to how to set an in-custody judicial pre-trial (JPT).
• On February 24, 2023, defence counsel advised the court that a JPT has been scheduled for February 28, 2022.

There is no evidence as to when the defence requested a JPT or whether February 28 was the earliest date offered by the Trial Co-Ordinator’s office

• On February 28, 2023, 4GB of additional disclosure was shared with the defence. The JPT could not proceed because of the volume of disclosure received the same day.
• On March 31, 2023, the defence adjourned the case. They indicated on the record that they were still awaiting outstanding disclosure items, including the ITO.
• On May 1, 2023, the defendant refused to attend court. The defence indicated they were still waiting for the ITO and some outstanding disclosure. The Justice and Crown urged the defence to schedule another JPT with the assigned Crown.
• On May 12, 2023, the defence scheduled a JPT for June 16, 2023.

There is no evidence as to whether May 12 and June 16 were the earliest dates available through the Trial Co-ordinator’s office.

• On May 23, 2023, the case was adjourned for the JPT to be conducted on June 16, 2023.
• On June 16, 2023, a JPT was held with the assigned Crown and a Trial Time Estimate Form (TTEF) was completed. Four days for trial was estimated. No pre-trial motions were anticipated as the ITO had still not been disclosed by the Crown.
• Following the JPT the assigned Crown began to communicate directly with the Office In Charge to sort out outstanding disclosure, including the ITO.
• On June 23, 2023, the case was adjourned. Defence counsel indicated that they were waiting to receive the TTEF from the Crown, as well as outstanding disclosure.
• On June 27, 2023, a trial scheduling meeting was held with the Trial Co-Ordinator. A 4-day trial was booked for March 11-14, 2024. A one-hour motion was also set for a s. 11(b) application to take place on December 4, 2023.

There is no evidence as to whether an earlier trial scheduling meeting was available before June 27, 2023

• On June 30, 2023, the trial dates were put on the record.
• On September 26, 2023, the search warrant, ITO and other additional disclosure was provided to the defence. A further JPT was arranged with the original JPT judge.
• On October 27, 2023, a continuing JPT took place. The defence advised they are seeking leave to cross-examine the affiant of the ITO. One additional day in advance of the trial was estimated to be necessary.
• On November 2, 2023, a further JPT takes place. The Crown asked the Trial Co-Ordinator for an additional day for a pre-trial motion.
• On December 4, 2023, the Crown and defence placed the pre-trial motion date on the record, January 3, 2024. The s. 11(b) motion was argued.

The Legal Principles

[5] In Jordan [1], 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; [2]
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.

Analysis

[6] It is agreed that the total delay in this case is 15 months and 26 days for a 5 day (4 + 1) in-custody trial. The Crown does not suggest that any delay should be deducted based on defence delay or exceptional circumstances. There is no dispute that the delay in this case is below the presumptive Jordan ceiling of 18 months for trials in the Ontario Court of Justice and the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish two things:

(1) The defence took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) The case took markedly longer than it reasonably should have. Stays beneath the ceiling are expected to be rare and limited to clear cases. [3]

ISSUE ONE – Did the defence take meaningful steps that demonstrate a sustained effort to expedite the proceedings?

[7] The Crown submits the defence established the first part of the test. The defence acknowledges that I am not bound by the Crown concession. Notwithstanding the Crown’s position, this court declines to find that the defence has satisfied the first part of the test for a sub-ceiling Jordan stay on a balance of probabilities.

[8] There is no question that the defence conducted themselves professionally throughout. They took numerous steps to advance their clients interests and were diligent in their immediate and repeated requests for disclosure, in particular the ITO. That said, there is also evidence that is inconsistent with a finding that the defence took sustained steps to expedite the proceedings.

1. The first is the defendant’s repeated postponement of his bail hearing.

[9] The Information demonstrates that for the first six weeks between November 17, 2022 and January 5, 2023 the defendant adjourned his case nine times. On January 5, 2023 his lawyer was retained though Legal Aid and the defendant adjourned the setting of his bail hearing for a further two weeks to formulate a plan. Subsequently the defendant has never scheduled a bail hearing, nor consented to his detention, even after a scheduling meeting was held on January 24, 2023.

2. Defence waited to set a second JPT after the first one did not proceed on February 28, 2023.

[10] In Peel, JPTs are required in cases that will take more than two days to complete. JPTs are scheduled when the defence takes the initiative to do so through the Trial Co-Ordinator’s office.

[11] On February 14, 2023 the defence took the initiative to schedule the first JPT in this case for February 28, 2023. The JPT could not proceed because 4GB of disclosure had been released to the defence the same day. The defence proceeded to wait two and half months, May 12, 2023, before taking any steps to schedule a second JPT. What is more, the defence only took the initiative to set the second JPT after the Crown and the court urged them to do so on the record on May 1, 2023.

[12] This court appreciates that the defence required a reasonable amount of time to review the disclosure they received on February 28, 2023 before being able to hold a productive JPT. The court also appreciates that the defence wanted the ITO prior to scheduling a second JPT. These two factors however do not reasonably account for the defence waiting 2.5 months before taking any steps to progress the case by scheduling a second JPT.

3. The date chosen for the second JPT.

[13] On May 12, 2023 the defence selected a second JPT date that was over a month later, June 16, 2023. The onus is on the defence to satisfy me that the date they chose for a second JPT is consistent with meaningful steps that demonstrate a sustained effort to expedite the proceedings. They have not done so.

[14] This court is permitted to consider local practices. In Peel, in-custody JPTs can be accommodated on very short notice and certainly do not require waiting a month. JPTs are held daily by two judges. There are JPT spots reserved for in-custody matters every day. If all the spots are full, it is common practice to add in-custody JPTs on top of full JPT lists. The affidavit in support of this application is silent as to whether the defence were offered earlier JPT dates.

[15] Based on the above three considerations, the defence has not satisfied me on a balance of probabilities that it made sustained efforts to expedite this case to trial. The first part of the test for a sub-ceiling delay pursuant to the Jordan guidelines has not been made out. This finding is fatal to the Application. I will nevertheless decide the second branch of the test given the Crown’s position was the opposite to this court’s finding.

ISSUE TWO – Is the case scheduled to take markedly longer than it reasonably should?

[16] Is 15 months and 26 days for a 5 day (4+1) in custody gun case markedly longer than is reasonable in Peel Region?

[17] In Jordan the Supreme Court of Canada provided the following guidance:

1. The defence must show that the time the case has taken markedly exceeds the reasonable time requirements of the case. The 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.
2. The reasonable time requirements of the case will increase proportionally to a case's complexity. As Sopinka J. wrote in Morin: "All other factors being equal, the more complicated a case, the longer it will take counsel to prepare for trial and for the trial to be conducted once it begins" (pp. 791-92).
3. In considering the reasonable time requirements of the case, trial judges should also employ the knowledge they have of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances.
4. Where the Crown has done its part to ensure that the matter proceeds expeditiously - including genuinely responding to defence efforts, seeking opportunities to streamline the issues and evidence, and adapting to evolving circumstances as the case progresses - it is unlikely that the reasonable time requirements of the case will have been markedly exceeded. As with assessing the conduct of the defence, trial judges should not hold the Crown to a standard of perfection.
5. Determining whether the time the case has taken markedly exceeds what was reasonably required is not a matter of precise calculation. Trial judges should not parse each day or month, as has [page672] been the common practice since Morin, to determine whether each step was reasonably required. Instead, trial judges should step back from the minutiae and adopt a bird's-eye view of the case. All this said, this determination is a question of fact falling well within the expertise of the trial judge (Morin, per Sopinka J., at pp. 791-92). [4]

[18] Subsequently the Supreme Court of Canada clarified that under this branch of the test, the issue is not whether the case should reasonably have been completed in less time. Rather, it is whether the case took markedly longer than it reasonably should have. [5]

[19] Firstly, I have considered the nature of the charges. They are serious. The investigation took place over the course of a month, between the date of the alleged discharge of a firearm on October 21, 2022 and the defendant’s arrest on November 17, 2022. The investigation included the preparation and execution of more than one search warrant. According to the TTEF, the Crown anticipates calling three civilian witnesses and eight police officers, as well as a Firearms Expert and a Drug Expert. The TTEF indicates the Crown expects to tender video surveillance, photographs, Health Canada Certificates and a certified copy of a release order. The trial will proceed as a blended voir dire in which ss. 8, 9 and 10(b) will be litigated. Only jurisdiction, date and time of the arrest are admitted. All to say, this is not complex case, but nor is it a simple one.

[20] Second, I have considered that as of November 17, 2022, when the defendant was charged, the investigation was essentially complete. As of November 17, 2022, the only outstanding pieces of evidence not already in existence were the Health Canada Certificates and the two expert reports (Firearm and Drugs). In Peel, it is customary for both expert reports to be generated after it is determined the case is going to trial so that resources are not utilized unnecessarily on matters that resolve. Except for the ITO, the bulk of existing disclosure was made available to the defence by February 28, 2023, three months after the charge was laid. It included 4GB of electronic disclosure.

[21] Third, the defendant had multiple JPTs when requested: February 28, 2023, June 16, 2023, October 27, 2023 and November 2, 2023. There is no evidence that there was any excessive delays between the request for a JPT and the JPTs.

[22] Fourth, following the JPT on June 16, 2023, a trial scheduling meeting was held within a reasonable amount of time, June 27, 2023. Again, I do not have any evidence as to whether June 27, 2023 was the earliest appointment date.

[23] Fifth, on June 27, 2023 a 4-day in-custody trial date was fixed on the earliest date offered, 8 months and 16 days later: March 11-14, 2024. The motion date for an anticipated s. 11(b) application was also fixed for December 4, 2023. The evidence establishes that the assigned Crown was aware of 11(b) motion date.

[24] Eight and half months is not an ideal amount of time in which to accommodate a 4-day in custody trial. Pursuant to Jordan, I am required to take into consideration local conditions. Peel Region is one of the busiest jurisdictions in the country. At the time this trial date was set in June 2023, the local Peel Crown’s office had made concentrated efforts over the previous two and half years to deal with the rippling effects of a Covid-backlog to ensure serious cases, such as this one, are reached in a timely way. The last such effort took place between August and October of 2023. During this period a backlog initiative took place and earlier trial dates were offered for cases in 11(b) jeopardy. This case was not identified by the Crown as part of the initiative, presumably because it was set under the 18-month Jordan guideline.

[25] Prior to Jordan the approach in Morin was to recognize that custody or strict bail conditions were to be accounted for by reducing the acceptable institutional delay to the lower end of the guideline range of 8 to 10 months or even below. [6] However, in Jordan the Supreme Court of Canada did not distinguish between different types of cases even though historically in-custody cases and youth matters were held to a more stringent standard. Since Jordan, the Supreme Court of Canada and the Ontario Court of Appeal have twice rejected the argument that certain types of trials should be completed in less than 18 months.

[26] The Ontario Court of Appeal held that the 18-month presumptive ceiling for single-stage provincial court proceedings established in Jordan applies to proceedings under Part 1. [7]

[27] In relation to youth criminal matters, Moldaver J in R. v. K.J.M., 2019 SCC 55 acknowledged the many reasons why youth matters should proceed expeditiously but found there was no need to introduce a lower presumptive ceiling for such matters. At para. 65 of K.J.M., Moldaver J. states that Jordan established uniform ceilings apply "irrespective of the varying degrees of prejudice that might be experienced by different groups and individuals." He explained that setting different ceilings would “quickly become impracticable.” Moreover, he concluded that setting different ceilings "would be incompatible with the uniform-ceiling approach adopted in Jordan and would undermine its objective of simplifying and streamlining the s. 11(b) framework."

[28] All to say, to date neither the Ontario Court of Appeal, nor the Supreme Court of Canada has been prepared to draw a distinction between different types of cases, including in-custody cases.

[29] Finally, at its core the defence position in this case is the delay is unreasonable because disclosure took too long. More specifically, it took an unreasonable amount of time for the Crown to sort out disclosure issues during the intake phase of this case and in particular, took too long to produce the ITO. I agree. The charges were laid on November 17, 2022. It was obvious from the beginning that a warrant had been obtained and executed. A specific Crown (not the Crown on this Application) was assigned to the case by March 2023. The assigned Crown did not reach out to the Officer in Charge to remedy outstanding disclosure issues until after the JPT in June 2023. After the Crown learned the warrant was unsealed on June 16, 2023, she proceeded not to disclose it until September. Three problems arise from the Crown’s conduct in this case:

1. The assigned Crown appears to have been operating under the mistaken notion that it was incumbent on the police to send the ITO to the Crown for disclosure, when in fact the material she was seeking is obtained by the Crown from the Clerk of the Court.
2. No reasonable explanation was provided for why the assigned Crown waited until September to disclose the ITO after she learned in June that it was with the Clerk of the Court. The warrant was unsealed and did not require any significant editing for confidential information. While it was open to both the Crown and the defence to obtain a copy of the ITO from the Clerk of the Court, I have no evidence that the Crown ever informed the defence that the warrant was unsealed.
3. There is no explanation for why the Crown, who was assigned to the case by March, waited until June to reach out to the officer to remedy the outstanding disclosure issues. Especially after repeated oral and written requests had been made by the defence.

According to email correspondence between the Crown and Officer-In-Charge, issues with the disclosure of a civilian witness statement taken June 24, 2023 was still unresolved as of October 30, 2023.

[30] The time it took the assigned Crown to disclose the ITO and sort out other outstanding essential disclosure is simply not defendable for this serious in-custody case.

[31] This court weighs the Crown’s failings in the intake phase of this case, against the following considerations:

1. Not every piece of disclosure must be received by the defence before the matter can be progressed and set down to trial. The longer the Crown waits, the greater the risk it runs of derailing trial dates, thereby prompting a possible s. 11(b) issue. When the Crown delays sorting out disclosure issues, they also run the risk that the original trial time estimate will be inaccurate, the case does not complete on schedule and further delay is incurred. In this case it is premature to say whether this will occur.
2. The late disclosure of the ITO in this case ultimately did not compromise the trial dates. After the first meaningful JPT on June 16, 2023, trial dates were set. Once the ITO and other outstanding disclosure was provided in September, two follow up-JPTs were held, and the Trial Co-Ordinator was able to accommodate time for a pre-trial motion for leave to cross-examine the affiant. The date of January 3, 2024 was secured, in ample time prior to the trial in March.
3. This trial date could have been set prior to June 27, 2023, if the defendant had not postponed the scheduling of his bail hearing repeatedly over the course of two and half months and had the defence scheduled a second JPT earlier than June 16, 2023.

[32] The test is not whether the case should reasonably be completed in less time, but whether it will take markedly longer than it reasonably should. In this case, the actions of both parties during the intake phase contributed to the total delay of 15 months and 26 for this in-custody case. To summarize:

a) The Crown took an unreasonable amount of time to sort out essential disclosure in this serious, but not overly complex in-custody case. The Crown’s delayed approach to the outstanding disclosure issues put the case at risk of being set for trial outside the 18-month Jordan guideline. Ultimately it did not. The delay in disclosing the ITO could have compromised the trial dates. It did not. b) Had the defendant decided to progress out of bail court sooner and had the defence scheduled a second JPT earlier than June 16, 2023, this case could have been set down for trial sooner.

[33] I find this to be a close case. While perfection is not the standard to be applied to the conduct of either the Crown or defence when deciding a sub-ceiling delay, the actions of both sides can make the difference between a finding that a case could have been completed earlier, as opposed to it taking markedly longer than it reasonably should. This court is not to parse out each day or month as was the practice prior to Jordan. Rather, the court is required to step back and take a “bird’s eye view” of the total delay in case. When the court does so in this case, it is satisfied that while this case could have been completed sooner, overall the court is not persuaded on a balance of probabilities that the case will take markedly longer than it reasonably should.

Final Note

[34] This court has considered the defence submissions based on the Ontario Court of Justice Practice Direction released on November 1, 2023. Briefly stated, trials are expected to be completed within 15 months. In-custody cases will continue to receive priority. All informations sworn after November 1, 2023, are expected to resolve or be set down for trial at the six month mark. Parties are expected to set a trial date after six months even though there is outstanding disclosure or retainer issues. In this case the matter was set down at the seventh month mark, not sixth. Trials are expected to be completed nine months after they are set, the Applicant’s trial date is anticipated to be completed less than 9 months after it was set. All this to say, the new practice direction was mostly complied with in this case, even though it was not in effect. The objective of the Practice Direction is to ensure trials are completed in compliance with the 18-month guideline in Jordan. This objective was achieved in this case.

Conclusion

[35] I am not satisfied on a balance or probabilities that this is a rare and clear case warranting a stay of proceedings for delay under the Jordan 18-month guideline. Neither of the two-part test has been made out.

[36] This s. 11(b) application based on a delay of 15 months and 26 days delay for a 5 day in-custody trial in Peel is dismissed.

Released in Writing: January 3, 2024.

Signed: Justice S. Caponecchia

[1] See also R v Coulter, 2016 ONCA 704, at paras. 34 to 41, which provides helpful guidance in applying the Jordan framework [Coulter]. [2] The relevant time period runs from the charge to the actual or anticipated end of trial. The end of trial does not include the period between the end of closing arguments to the verdict: R v KGK, 2020 SCC 7, at paras. 30 to 50. [3] R v Jordan, 2016 SCC 27, [2016] 1 SCR 631, at para. 48. [4] Ibid, para 87-92. [5] R v KJM, 2019 SCC 55, [2019] SCJ No 55 at para. 107 [6] R v Carman, [2017] OJ No 489 at para. 16. [7] R v Nguyen, [2020] OJ No 4165 at para 26.