Ontario Court of Justice
DATE: 2024 08 30 COURT FILE No.: Peel – Mississauga Information No. 7080
BETWEEN:
His Majesty The King
— AND —
Sarveswaran RATNASABAPATHY
Before: Justice of the Peace Natalia Krayzman
Heard on: December 11, 12, 2023, July 30, 2024 Reasons for Judgment released on: September 3, 2024
Counsel: S. Skoropada (Counsel) ......................................................... counsel for the prosecution R. Rowe (Licenced Paralegal) ……. for the defendant Sarveswaran Ratnasabapathy
JUSTICE OF THE PEACE N. KRAYZMAN (written reasons):
[1] This is an application for a stay of proceedings alleging unreasonable delay under s.11(b) of the Charter.
[2] The Applicant Sarveswaran Ratnasabapathy stands charged with making a right turn not in safety on March 17, 2019 contrary to s.142(1) of the Highway Traffic Act. The allegations involve the Applicant hitting a pedestrian with his motor vehicle and causing her death.
[3] This case took 5 years and 2 months to complete from the day the Information was laid on May 28, 2019 until July 30, 2024 when the trial was completed. That is 62 months (1891 days – including 2 additional days for the 2 leap years), and far above the 18-month ceiling established in R. v. Jordan, [2016] S.C.C. 27.
[4] The Applicant submits that the total delay attributable to the Defence in this case is just over 2 months and 13 days, and submits that only 2 months and 13 days should be subtracted from the total, making the delay nearly 5 years and presumptively unreasonable without any sufficient explanation from the Crown. In the Applicant’s factum, the Defendant has referred to all pandemic-related delay as “Institutional delay” and does not subtract it from the total delay. However, in oral submissions, Mr. Rowe for the Defendant conceded that all of 2021 could be “waived” by Defence due to the pandemic. The Defence also concedes that the period after the trial started in December, 2023 is, from their perspective, deductible as it included a number of adjournments due to illnesses.
[5] The Respondent submits that the Applicant’s rights under s.11(b) of the Charter have not been breached as the vast majority of the delay was defence delay and pandemic-related delay. The Crown submits that the remaining delay is 319 days which is just under 11 months and well below the ceiling established by the Supreme Court in R. v. Jordan, [2016] S.C.C. 27.
[6] The Applicant Sarveswaran Ratnasabapathy stands charged with making a right turn not in safety on March 17, 2019 contrary to s.142(1) of the Highway Traffic Act. The allegations involve the Applicant hitting a pedestrian with his motor vehicle and causing her death.
Timing of the Application Hearing
[7] This was an unusual case where the 11(b) motion materials were submitted at the start of trial but all parties agreed that the motion should be argued and decided at the end of trial. There were strong reasons for this decision. This matter was set for trial on 4 occasions, all of which saw numerous civilian and police witnesses attend. It repeatedly did not proceed for reasons I will explore later in this decision.
[8] December 11th, 2023 was scheduled by both parties to be the first day of the trial proper, where everyone agreed when it was set that witnesses would attend and testify. It was also the fourth trial scheduled in this matter. It was also nearly 5 years after the accident that allegedly caused the death of a pedestrian. The Defence did not reach out in advance of the December 11th date to seek out an earlier date to hear the 11(b) motion when schedule coordination with witnesses would not have been an issue. The 4 civilian witnesses and police witnesses were all present on December 11th, 2023 in the expectation that they would testify. This was the third time they all attended court over the last year and a half for trial.
[9] There was a great societal interest in not using up the first day of what was expected to be the trial proper on what everyone expected to be a lengthy set of Charter motions including this 11(b) motion. It made more sense to hear from the numerous witnesses that attended once again for this matter without further delay and without asking them to attend on yet another day, and the associated risk that they would not be available at the same time on the next dates available to the court, Defence and Crown.
[10] Therefore, while the written materials, including transcripts and case law were all presented to the court and available on December 11th, 2023, the oral submissions were heard after the completion of the trial on July 30, 2024.
Chronology
[11] The following is a chart summarizing the appearances:
Date (Trial dates highlighted) Appearance Details Deductible delay Included delay
May 28, 2019 Information sworn
July 4, 2019 First appearance. No disclosure available
August 14, 2019 Second appearance. No disclosure available. Disclosure to be provided on next court date. Defendant asks for an extended adjournment for travel plans. 79 days (May 28, 2019 – Aug 14, 2019)
November 7, 2019 Third appearance. Defendant received initial and substantial disclosure, though some items were outstanding 42.5 days (1/2 the time between Aug 15 – Nov 7, 2019) 42.5 days (1/2 the time between Aug 15 – Nov 7, 2019)
January 2, 2020: Fourth appearance. The Defendant still had not hired a legal representative.
February 6, 2020: Fifth appearance. The Defendant had still not hired a representative and was given one more week to do so.
February 13, 2020 6th appearance. The Defendant had still not hired a representative. The JPT was set for March 10, 2020. Neither party ready to set trial dates yet.
March 10, 2020: JPT - 7th appearance. Adjourned to April 7, 2020 to put trial dates on record. 124 days (Nov 8 – Mar 10, 2020)
March 16, 2020 Pandemic shut-down began 6 days (Mar 11 – 16, 2020)
February 5th, 2021 First appearance post-pandemic shut-down 326 days (Mar 17, 2020 – Feb 5, 2021)
April 27th, 2021 Matter adjourned in absence of Defendant/Representative
June 9th, 2021 Bench warrant issued
March 1, 2022 Defendant’s first court appearance after bench warrant executed. Adjourned at request of defence. 389 days (Feb 6, 2021 – Mar 1, 2022)
April 22, 2022 Further defence-requested adjournment.
May 5, 2022 Trial dates set for Dec 1st and 2nd, 2022. Prior to trial date, Defence informs Crown trial will be converted to a resolution and to call off trial witnesses. 65 days (Mar 2 – May 5, 2022)
Dec 1, 2022 Defendant Representative informs court that Defendant has suddenly changed his mind and will no longer be resolving today as expected. Neither trial, nor resolution could proceed due to Defence actions. 105 days (1/2 of the time between May 6 – Dec 1, 2022) 105 days (1/2 of the time between May 6 – Dec 1, 2022)
Dec 7, 2022 No one attended for the Defence.
Dec 13th, 2022 Second trial set (ex-parte) for April 12th, 2023.
April 12th, 2023 Trial started, mistrial declared. 132 days (Dec 2, 2022 – Apr 12, 2023)
May 16, 2023 Third trial date set for September 11th, 2023.
September 11, 2023 Trial date adjourned at Defence request (Defence Representative medical issue). Fourth trial date set for December 11th, 2023.
December 11 and 12, 2023 Trial commenced. Additional dates set for Charter motions of March 19, 25, and 26, 2024. 243 days (Apr 13 – Dec 11, 2023)
March 19, 2024 Trial Justice of the Peace ill – adjournment required.
March 25 and 26, 2024 Trial continuation. Adjournment required because Justice of the Peace and Defendant both ill.
May 28, 2024 Trial continuation. Adjournment requested by Defence due to illness of Paralegal.
June 11, 2024 Paralegal still ill. Matter adjourned to July 9th to be spoke to. Trial continuation date to be canvassed in interim.
July 9, 2024 Case Management Court appearance to confirm Defence Representative will be available for trial continuation date of July 30th, 2024.
July 30, 2024 Trial completed and Oral submissions on Charter applications completed. 232 days (Dec 23, 2023 – Jul 30, 2024)
TOTAL 1891 days (~ 62 months) 1658.5 days (54.53 months) 232.5 days (7.64 months)
Additional Comments on the Chronology:
[12] August 14, 2019: Second appearance. No disclosure available. The matter was adjourned from there to Nov 7, 2019 to provide disclosure. This was farther out than the Prosecutor had wanted and was meant to accommodate the Defendant who said he would not be available until then. Based on prior appearances, it seems that case management court is where Defendants obtained disclosure and there were fairly frequent case management dates available. As such, I find that of this 85-day period between August 14, 2019 and November 7, 2019, half (42.5 days) is deductible for Defence delay.
[13] November 7, 2019: Third appearance. Defendant received initial and substantial disclosure, though some items were outstanding. The Crown has a record of Mr. Ratnasabapathy picking up a large disclosure package of 92 pages, including the notes of 16 officers, photographic evidence, the Motor Vehicle Collision Report, the Vehicle Inspection Report, and a copy of the Information, Summons and Driving Record. The matter was adjourned for the Defendant to review disclosure and hire a legal representative and return to court ready to set a trial date.
[14] January 2, 2020: Fourth appearance. The Defendant still had not hired a legal representative. The Prosecution said that it was planning to move this to a Provincial Crown to take over the matter. This was something they already told the Defendant on an earlier date that they would do. The matter was adjourned to February 6, 2020 and since the Defendant had still not hired a legal representative but told the court he intended to, it seems the Crown suggested that he obtain a JPT date. The matter returned on Feb 13, 2020 for the sole purpose of giving Mr. Ratnasabapathy one final opportunity to get a legal representative prior to setting the JPT.
[15] February 13, 2020: Defendant still has not retained a representative. A JPT was set for March 10, 2020 to move the matter forward. The period between November 8, 2019 – March 10, 2020 is Defence delay because the matter was repeatedly adjourned for the Defendant to hire a legal representative.
[16] March 10, 2020: JPT/6th appearance. The Defendant had not decided whether to hire counsel until his JPT on March 10, 2020, when agent Mr. Alfano attended on his behalf as his representative and conducted the JPT. At the JPT, it was decided that 2 days of trial time would be required. This 124-day period between November 8, 2019 and March 10, 2020 is Defence delay.
[17] After the JPT, the matter was adjourned to April 7, 2020. The Crown says that April 7th was meant to be a trial date, but that is not my reading of the on-record portion of the JPT transcript where the Justice of the Peace said that the trial estimate is two days, but only adjourned the matter to a single day of April 7th and suggested the parties set a confirmation date up to 120 days in advance of the trial, which would not be possible if April 7th was meant to be a trial date, since it is only just over a month after the JPT date. The endorsement on the Information on the JPT date supports this interpretation as it says “TSD for 2 Day Trial” in relation to the April 7th adjournment, which I read as “To set date for 2-day trial”.
[18] March 16, 2020: Pandemic shut-down began. 6 days after the JPT on March 16, 2020, POA Courts were shut and did not reopen until Jan 26, 2021, making it effectively impossible to do anything to move any matter forward. As a result, the April 7th set date appearance could not occur. The first court appearance the Defendant was given, by letter mailed to his last-known address, was Feb 5, 2021. Out of this 332-day period between the JPT of March 10, 2020 and the first court date given to the Def after the courts re-opened of Feb 5, 2021, only 6 days between March 11th and March 16th are attributable to institutional delay in setting the matter down for trial. The remaining 326 day period from March 17th, 2020 until Feb 5th, 2021 is one I would characterize as a discrete event and would subtract it from the total.
[19] February 5th, 2021: First appearance post-pandemic shut-down. On February 5th, 2021, no one attended court for the Defendant and the court issued a bench summons at the request of the Crown that was returnable on April 27th, 2021. If the Defendant had attended court on Feb 5th, a trial date could have been set. The Defendant argues that he did not receive the numerous letters the court mailed to him telling him about that date, nor did he receive notice of the summons for April 27th, 2021. As a result, he did not know he had to attend court on either of these dates. I find this last argument lacks credibility since we have the commissioned Affidavit of Service attached to the Information confirming it was personally served upon the Defendant on March 16, 2021 for the April 27th, 2021 court date.
[20] April 27th, 2021: Adjournment On April 27th, the Defendant’s matter was adjourned, for reasons that are unclear, to June 9th, 2021, perhaps as a courtesy to the Defendant who did not attend in response to the summons personally served upon him for April 27th, given how serious the charge he faced was.
[21] June 9th, 2021: Bench warrant issued. On June 9th, a bench warrant was requested and then issued for the Defendant’s arrest, even though at no time did the Crown indicate on the record an intention to seek jail time if he was convicted. Even if they were seeking jail, there is certainly no requirement that a bench warrant be issued to take a person into custody in order to advise them that there is a possibility they would face custody if they were one day convicted.
[22] The court did, however, have jurisdiction to issue this bench warrant. The issuance of a bench warrant is governed by s.54(1)(b) of the Provincial Offences Act which states, in part, that where a defendant does not appear and the prosecutor proves that a summons was served, the court may adjourn the hearing and if it thinks fit, issue a summons to appear or issue a warrant in the prescribed form for the arrest of the defendant. There do not seem to be any other pre-requisites to issuing a bench warrant under the POA. In this case there were two summonses attached to the Information for two of the court dates, both personally served on the Defendant with proof of service attached. The Prosecutor pointed out the most recent one to the Court that day and its proof of service before requesting the bench warrant on the basis that the allegations were serious and involved a fatality. It was within the Court’s power to issue the bench warrant in those circumstances and the justification for it was discussed on the record.
[23] March 1, 2022: Defendant’s first court appearance after bench warrant executed. The Defendant was eventually picked up by the police on the bench warrant and given a new court date of March 1, 2022, when he and his representative, Mr. Alfano both appeared.
[24] I have two points to make about this last series of events between Feb 5, 2021 and March 1, 2022. Firstly, for the Defence to suggest that they were unaware of the court dates up until the Bench Warrant, is to suggest that all Defendants are absolved of all responsibility for following up with the court when they very well know that they have live matters before the courts, unless they are personally re-served with a new summons or a bench warrant is issued for their arrest. If I accepted the Defence position, I would be essentially saying, quite absurdly in my view, that the courts bear all the responsibility in making sure the Defendant is aware of all of their court dates, even when the Defendant was initially served properly with a summons, even when there is a pandemic that shuts down the courts temporarily, even when it is no secret that the courts have reopened, even when he knows that he has unresolved live matters before the court and the courts have started readdressing those matters post-pandemic shut-down, and if the attempts at making them aware via mail at the Defendant’s last known address and, in this case, proper service of a summons do not actually find their way before the Defendant’s eyes to their satisfaction, for reasons that are beyond the control of the courts, then the Defendant is free to assume that their matter has evaporated into thin air and he need not ever have to worry about it again. This is not so.
[25] Mr. Ratnasabapathy and his representative, Mr. Alfano very much knew he had a live, serious charge before the court. The fact of the pandemic did not change that. It is reasonable and expected that Defendants who know this, seeing time has passed without much action on the matter, reach out to the court and find out what is happening with their matter and when they might have an upcoming court date. It is reasonable and expected that they check their mail regularly at the address they provided to the court for service. It is also reasonable and expected that they review and respond to a summons personally served upon them, if they wish to participate in their proceedings in the POA court. If they choose not to do any of these things, as it appears the Defendant and his representative seemed to choose in this case, then he cannot blame the courts for this delay, particularly when one of the options available to the Court in these circumstances is to issue a bench warrant.
[26] It was no secret that POA courts were beginning to reopen in late January of 2021 and that trial dates were being set in Mississauga starting July 14, 2021. Even the most rudimentary diligence requires Defendants and their agents to take some basic proactive steps, starting with a simple phone call or email to find out how and when their live matters were continuing in court as pandemic restrictions began to ease. The Courts sent everyone mailings to let them know repeatedly, several of which are attached to the Defendant’s Information.
[27] I see nothing in the Defence materials to suggest that the Defence took any steps whatsoever. This demonstrated a lack of interest, to say the least, by the Defendant in having his matter move forward. How many different ways is the court expected to invite a Defendant to begin to express an interest in participating in their court case? This inaction stands in direct opposition to Mr. Rowe’s oral arguments on this Application where he said the Defendant “was always following up outside of court” and that he “kept buggin’ them…because he’s a consistent person.”
[28] Secondly, given that the Defendant was well aware that he had a live matter before the court, that several mailings were sent to the only address he provided to the court where he could be reached, and that a summons was even served upon him in this intervening time, it may be that these repeated adjournments and the bench warrant during this period were not necessary in order to conclude this matter. An ex parte trial date could have been set at some point during this period. That being said, I am also mindful of the Ontario Court of Appeal’s comments that while ex parte trials as permitted by the POA are constitutionally sound, they should not become the norm. In particular, the Court of Appeal stressed that there is a risk of a miscarriage of justice inherent in ex parte trials that does not exist when the defendant is present: R. v. Jenkins, 2010 ONCA 278 (Ont. C.A.). I agree. The case against Mr. Ratnasabapathy involved a fatality. The consequences would be serious if the Defendant were to be found guilty. It is my view that in a case such as this, the Court may understandably feel a greater duty to give a non-appearing Defendant additional opportunities to make their way back before the court before a trial proceeds in their absence. It is also important for society and the family of the deceased to know that the ultimate trial of the matter was fair, final and less exposed to appeal. The best way to do that is to have the Defendant present.
[29] That being said, the amount of time extended to the Defendant in this case was perhaps too much, given his seeming disinterest during this period in participating. This trial could have been completed at some point in that year with or without the Defendant being present. However, once the bench warrant was issued, the matter was held up from continuing until he was found by police and the warrant was executed. The time involved in this was not within the control of the Court.
[30] For these two reasons, I do not count this period of 389 days from Feb 6th, 2021 to March 1st, 2022 in the delay because it falls largely at the feet of Defence inaction and an inability to move the matter forward until the execution of the bench warrant.
[31] March 2, 2022 – May 5, 2022: Defence delay. On March 1st, 2022, the Defendant and his agent Mr. Alfano attended court and the Defendant’s representative asked for another JPT for reasons that are unclear since nothing had changed, except that time had passed. The Defendant says that it was the Crown asking for the JPT, but I do not see anything in the transcript of that appearance to say or suggest this. The matter was adjourned to April 22, 2022 at the request of the Defendant, rather than having a trial date set. This was clearly a defence delay of 52 days. The matter was then adjourned from April 22, 2022 to May 5th, 2022 for ongoing resolution discussions that the Defence wished to engage in, so this period of 13 days is also defence delay.
[32] May 5, 2022: new trial dates set for Dec 1st and 2nd, 2022.
[33] Dec 1, 2022: neither trial, nor resolution could proceed due to Defence actions. On May 5th, 2022, trial dates were set for Dec 1st and 2nd, 2022. This is a period of 210 days. However, I agree with the Crown that at least part of this delay is attributable to the inevitable backlog in setting matters down for trial that resulted from the pandemic shut downs.
[34] I also see the Defendant as being responsible for a significant portion of this delay because, even though the matter was set for trial, the Defendant’s Representative told the Crown in advance of the trial date to call off their witnesses as his client had decided to resolve the matter. The Crown relied on this and called off its trial witnesses. The Crown then attended on December 1st, with the family of the deceased to provide statements to the court for the expected resolution.
[35] Since Defence opted for a resolution on the trial date and spent part of that 210 days working toward it with the Crown, and indeed asked the Crown to cancel their trial witnesses, so sure they were that this would be resolving, it would seem that at least part of the 210 days had become Defence delay. This period takes on an additional dimension of Defence delay when we consider the fact that on the first day of trial, which Defence had assured the Crown would now be a guilty plea, the Defendant had apparently once again changed his mind, and decided he would no longer be resolving. However, as he had told the Crown to call off all the trial witnesses, he also prevented the court from proceeding with the trial. The Defendant also did not even attend court that day and his Representative asked to be removed from the record, without any proof of service of a removal application on his client and without the client present to speak to the issue.
[36] Effectively, the Defendant put the court in a position where it could do absolutely nothing that day and that was a course of action he had begun when he had first led the Crown to believe, at some point during that 210-day period, that he would be using the trial time to plead guilty and the time leading up to the trial to prepare for that guilty plea. When this moment crystalized during that 210-day period was never made clear to the court. What is clear, is that the Defendant is the cause of a significant expenditure of time and court resources with absolutely nothing to show for it during this period.
[37] I am prepared to conservatively only attribute 105 days of that period to a combination of Defence delay and backlog delay, although I could arguably deduct more of the 210 days for this. However, the Crown is only asking me to deduct 105 days and only for backlog. The other 105 days will be included in the delay. What followed was an adjournment for one week to Dec 7th, 2022, necessitated by the Defence.
[38] Dec 7, 2022: no one attended for the Defence. In the Defendant’s factum it says that the courtroom was changed without their knowledge, so the Defendant’s legal representative waited on the zoom line for an hour and a half for a zoom meeting that did not start. It says nothing of what that representative did to find out why he was in this peculiar situation of sitting in a courtroom where there were no proceedings commencing. However, rather than using his phone to call the courthouse to ask why court was not starting 15, 20, 30, 45, 60 or even 90 minutes in, it seems he opted to stay on the line where nothing was happening, hang up after this 90 minutes of nothing, without so much as a phone call on this odd silent court date, or on any day thereafter to find out what happened. This inaction by the Defence is not acceptable and in direct contradiction to Mr. Rowe’s comments about his client’s regular out-of-court follow-ups and consistency. My comments earlier on the expectations of some basic reasonable diligence on the part of Defence apply as much to this scenario on Dec 7th, as they do to the earlier period of 13 months of court dates when court resumed after the pandemic, when the Defendant seemingly took no steps whatsoever to follow-up with the court about his charge.
[39] At this point, on Dec 7th, 2022 with no one having attended for the Defendant, one would expect that the matter would be set for a trial in absentia. It was not. It was adjourned to Feb 28th, 2023 and a new summons was issued for the Defendant. I am not clear why this was in any way either necessary or beneficial to the forward movement of this case to trial. It appears that someone in the Crown’s office came to the same conclusion prior to Feb 28th, 2023 and brought the matter forward to Dec 13th, 2022 requesting trial dates be set in absentia.
[40] Dec 13th, 2022: ex-parte trial date set for April 12th, 2023. There was no further need to re-summons the Defendant for this Dec. 13th date or for the April 12th trial date that was set thereafter, as an ex parte trial date could have been set on December 7th, 2022 and the Defendant could have participated in the setting of that date if he chose to. He knew he had a matter before the court. Nothing whatsoever prevented the Defendant or his Representative from calling the court the very next day after the December 7th appearance, or any day thereafter to find out what happened. Choosing not to call is a willful denial by Defence that their matter can lawfully and properly move forward to an ex-parte trial as it can and should in this scenario under the POA. No one but the Defence prevented itself from participating in the court appearances or the trial in this scenario.
[41] As such, I attribute this need for additional trial dates and the delay of 132 days that flowed directly from Dec 2, 2022 to April 12th, 2023 entirely to the Defence.
[42] April 12th, 2023: Trial started, mistrial declared. On April 12th, 2023, the Defendant’s Representative, Mr. Rowe attended, the trial started, but the Court took issue with the Representative Mr. Rowe’s conduct toward the Court and removed him from further participation in the trial that day. The trial proceeded, but after most of the Crown witnesses completed their testimony, a mistrial was declared when the Defendant himself joined the trial and the Crown expressed concerns over fairness toward the Defendant who arrived late into the trial after his Representative was unexpectedly removed.
[43] This was an unforeseeable discrete event, necessitating a new set of trial dates to be set. Everyone had to pivot quickly to start moving the matter forward again. The only option once this unexpected event occurred was to set new trial dates. However, as the reason for the mistrial involved a dispute between Mr. Ratnasabapathy’s legal representative Mr. Rowe and the Court, causing the Court to decide to exclude Mr. Rowe from further participation in that trial date, a new date was set when everyone could be present to put pre-arranged new trial dates on the record. The Crown says that they sought new trial dates the very next day after the mistrial was declared. This was all that could be done.
[44] Whether the Court’s actions that day in removing Mr. Rowe from the Court were right or wrong is not an inquiry that I need to make. Whether the decision to declare a mistrial was right or wrong is also not an inquiry that I need to make. There were factors that day that led to the decision to declare a mistrial and what matters is that the circumstances that arose that day were not ones that could have possibly been anticipated and were beyond the control of the Crown. The court in R. v. Moreira, 2019 ONSC 2536, faced a similar situation
…I find that the declaration of the mistrial was a discrete event within the definition of Jordan and the delay resulting from that event should be deducted from the overall delay... .in finding the mistrial to be an exceptional circumstance, I do not express an opinion on the correctness of Forestell J.’s decision. The focus here is on whether the Crown would know that their actions would cause a mistrial (paras. 54 and 55).
[45] The mistrial was determined to be a discrete event and the time from the mistrial until the end of the second trial date were determined to be deductible delay (paras 72, 78, 80, 81) As in that case, the Crown here acted quickly to secure new trial dates.
[46] May 16, 2023: Appearance to set new Trial dates on the record. The matter was adjourned to May 16, 2023 and the new trial dates of September 11 and 12, 2023 were put on the record. However, the Crown and the court offered earlier trial dates commencing June 20th, 2023, which the Defence declined. The Defence requested September dates. As such, the period from the mistrial on April 12, 2023 to the first offered trial date of June 20, 2023, being a period of time that grew from exceptional circumstances, will be deducted. This amounts to 69 days.
[47] September 11, 2023: Trial date adjourned at Defence request. The new trial was scheduled for September 11th and 12th, 2023. However, on the first day of trial, Mr. Rowe requested an adjournment due to his own urgent medical issues that had to be attended to that day and that required a recovery period after. New trial dates were set immediately for December 11th and 12th, 2023 As such, the period from June 20, 2023 to Dec 11, 2023 is Defence delay and will be deducted. Even if Mr. Rowe’s medical issues were to be characterized as “exceptional circumstances”, they would still be deducted. This period from the April 12th 2023 mistrial to the 4th trial date of Dec 11th, 2023 is a period of period of 243 days of deductible delay as it all relates to the Defence or exceptional circumstances.
[48] December 11, 2023: Fourth trial scheduled in this matter. Trial commenced. The trial commenced on Dec 11, 2023, but I was alerted to there being two Charter motions that were not accounted for in the time set aside for trial that would apparently take another 3 days to argue, according to Defence. These additional dates should have been sought by Defence and set to be argued much earlier than the trial date of December 11th, since the Defendant knew these were issues he planned to raise and required extra time long before December 11th. Indeed, the Defence filed their 11(b) motion for the first time on the April 12th, 2023 trial date. It was dismissed due to filing errors, but proved that the Defence were certainly aware of 11(b) being an issue for a very long time. Since these extra needed days were not set earlier, we set 3 additional days for trial to accommodate these motions on March 19, 25, and 26, 2024. This amounts to a period of time requested by Defence to argue additional Charter issues of 106 days between December 11, 2023 and March 26, 2024.
[49] The trial concluded on July 30, 2024. There were, in the intervening months between December 11th, 2023 and the conclusion of trial, some additional delays due to illnesses of the Court, the Defendant, and the Defendant’s Representative that would be deducted from the total delay and were explicitly not advanced by Defence as per their oral submissions as being part of the delay being claimed in this Application. As such, those transcripts were not added to the Application materials. I would agree that these types of delays cannot be included in the claim.
Conclusion
[50] In conclusion, here are the mathematics of the delay as I see it:
[51] Total Delay: 1891 days (62 months or 5 years and 2 months applying the equation of number of days divided by 30.417 to approximate the time in months). This is far above the 18-month ceiling established in R. v. Jordan, [2016] S.C.C. 27.
[52] Deductible delay for reasons explained (Defence delay, joint delay, exceptional circumstances, discrete events, and time that is not in issue on this Application): 1658.5 days or 54.5 months
[53] Net Delay: 232.5 days or 7.6 months
[54] Despite this case having spanned this incredibly long period of time, I find that the actual time that is attributable to pure Crown or Institutional delay to be just under 8 months. If I am incorrect in deducting the 389 days of inaction by both sides from Feb 5, 2021 to March 1, 2022, and should instead, by that logic, split the time, apportioning half to each side, that would add 194.5 days to Crown or Institutional delay for a total of 427 days of net delay, or 14 months, which is still below the 18 month limit established in R. v. Jordan, [2016] S.C.C. 27.
[55] I would also describe this case as complex, involving a fatality, accident reconstruction, multiple officers, Voir Dires, expert testimony, multiple civilian witnesses, a large volume of disclosure, including some provided by Defence in the form of an expert report that was ultimately not used and two Defence Charter applications in addition to the trial. This case required more time than the vast majority of HTA cases, but is still one that should be able to be completed within 18 months. However, since the net delay remains under 18 months, the Application is dismissed.
Released: September 3, 2024 Signed: Justice of the Peace Natalia Krayzman