Ontario Court of Justice
DATE: 2025 02 25
COURT FILE No.: Hamilton 23 47106254
Between:
His Majesty the King
— and —
Kyle Ellis
Before Justice Amanda J. Camara
Heard on January 23, 2025
Reasons for Judgment released on February 25, 2025
Matthew Moser .................................................................................... Counsel for the Crown
Katrina Friesen ............................................................. Counsel for the accused Kyle Ellis
Reasons for Judgment
CAMARA J.:
[1] Kyle Ellis seeks a stay of the proceedings pursuant to section 24(1) of the Charter of Rights and Freedoms arguing that his right to a trial within a reasonable time pursuant to section 11(b) has been breached.
[2] Mr. Ellis submits that the total delay in this matter is 18-months and 14-days from the date the information was sworn which is above the presumptive ceiling of 18-months as set out by the Supreme Court of Canada in R v Jordan [1]. Mr. Ellis submits that this delay is not reduced by defence delay or justified by exceptional circumstances.
[3] The Crown submits that there are 2 periods of time that ought to be deducted from the overall delay which would bring the time to trial under the 18-month ceiling. Furthermore, even if the total delay exceeds the 18-month ceiling, the Crown submits that exceptional circumstances contributed to the complexity of the case and which justify the time to trial.
[4] The issues I am to determine are:
- When does the 11(b) clock begin?
- Is there any delay attributable to the defence?
- Was this a complex case that would justify the delay?
Legal Framework
[5] The Supreme Court of Canada held in Jordan [2] that there is a presumptive ceiling on the time it should take to bring an accused to trial. In the Ontario Court of Justice, this presumptive ceiling is 18-months R v Wookey, 2021 ONCA 68, para 3 [3].
[6] How to apply the framework was summarized in R v Coulter, 2016 ONCA 704 [4] as follows:
i. Calculate the total delay, from the charge to the anticipated end of trial
ii. Subtract from this total delay any defence delay to get the net delay
iii. Compare this net delay to the presumptive 18-month ceiling
iv. If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. The Crown can rebut this presumption if it can establish the presence of exceptional circumstances. If it cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases
v. Subtract delay caused by discrete events from the net delay leaving the remaining delay for the purpose of determining whether the presumptive ceiling has been reached
vi. If the remaining delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable.
vii. If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.
When Does the 11(b) Clock Begin?
[7] In this case the information charging Mr. Ellis was sworn on October 24, 2023. Mr. Ellis was charged with break and enter of a non-dwelling and possession of property obtained by crime over $5000 with two co-accused: Joelle MacKay and Michael Mask. Mr. Ellis was not arrested until November 10, 2023.
[8] The Crown submits that the pre-arrest delay in this case ought to be deducted from the overall delay.
[9] The general rule is that the Jordan clock starts running from the date the person is charged. The SCC ruled in R v Kalanj, 1989 SCC 63 [5] that a person is charged upon the swearing of an information. The Ontario Court of Appeal affirmed this principle in Allison 2022 ONCA 329, paras 35-43 [6].
[10] The Crown submits that Allison and Kalanj are factually distinguishable from the case at bar. In Allison and Kalanj the arrest preceded the information being sworn. Mr. Ellis was arrested after the information was sworn. To support the proposition that the Jordan clock can start when the offender is arrested, the Crown relies upon Magiri 2017 ONSC 2818 [7], Millar 2016 BCSC 2144 [8] and JK [2020 OJ No 3518] [9] in which the courts found evidence that the accused had been evading arrest and that the police had taken a number of steps to effect an earlier arrest of the individual. Based upon the evidence that the police tried to arrest the offender sooner and that he had been evading arrest, the court held that the 11(b) clock started on the date of the arrest.
[11] The defence argues that the police in this case were not reasonably diligent in attempting to execute the arrest warrant before November 10, 2023. In fact, at the time the information was sworn and the arrest warrant issued, Mr. Ellis was bound by a house-arrest interim release order which listed his surety’s address and the address at which Mr. Ellis was to be residing. Despite that information, there is no evidence before me that the police ever attempted to execute the warrant at Mr. Ellis's residence or even communicate with Mr. Ellis or his surety to advise him of the warrant for his arrest. Rather, the police chose to attend the courthouse on November 10, 2023, a date that had been scheduled for Mr. Ellis’ trial on another matter, and execute the warrant as he entered the courthouse. Practically, that had a significant impact on Mr. Ellis and delayed the trial in another matter.
[12] In the case before me, I find that there is no evidence before me that would support the proposition that the police acted with reasonable diligence in executing an arrest warrant. It is expected that police make more than perfunctory efforts to locate an accused once they have an arrest warrant and in this case there is no evidence that the police made any efforts before November 10, 2023 to effect the arrest of Mr. Ellis.
[13] The pre-arrest delay will not be deducted from the overall delay. The 11(b) clock starts from the date the information was sworn.
Is There Any Delay Attributable to the Defence?
[14] The Supreme Court of Canada clarified what constitutes defence delay in R v Cody, 2017 SCC 31, paras 30-31 [10]:
Defence delay arises from a defence waiver or is caused solely by the conduct of defence. The only deductible defence delay under this component is, therefore, that which:
- Is solely or directly caused by the accused person; and
- Flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges.
As we said in Jordan, the most straightforward example is “deliberate and calculated defence tactics aimed at causing delay which include frivolous applications and requests (Jordan, at para 63). Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted (Jordan, at para 64). These examples were, however, just that – examples. They were not stated in Jordan, nor should they be taken now, as exhaustively defining deductible defence delay. Again, as we made clear in Jordan, it remains “open to trial judges to find that their other defence actions or conduct have caused delay” warranting a deduction (para 64).
The determination of whether defence conduct is legitimate is “by no means an exact science” and is something that “first instance judges are uniquely positioned to gauge” (Jordan, at para 65). It is highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. While trial judges should take care to not second-guess steps taken by defence for the purposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate to do so. [10]
[15] The Crown submits that the 36-day period between December 16, 2024 to January 21, 2025 is delay that ought to be attributed to the defence. The first set of trial dates offered were December 16-19, 2024; the Crown and Mr. Mask were available, Mr. Ellis's Counsel and Ms. Mackay's Counsel were not. The next set of dates offered were January 21, 23, 24, and 28, 2025. Both the Applicant, Mr. Mask and the Crown were available but Ms. MacKay’s Counsel was unavailable.
[16] Relying upon Gopie, 2017 ONCA 728, paras 128-136 [11], the defence argues that even if Counsel for Mr. Ellis had been available for the first offered trial dates, those dates were not available for Ms. Mackay's Counsel. Therefore, the delay that was caused was not solely or directly caused by Mr. Ellis and ought not be characterized as defence delay.
[17] Moreover, Mr. Ellis argues that trial scheduling did not begin until July 17, 2024 due to delay caused by the co-accused. Mr. Ellis had taken steps to move proactively through the justice system and was ready to set trial dates months before the co-accused were ready.
[18] I agree with the submissions made by the Applicant. On the record before me, Counsel for Mr. Ellis was diligent and proactive in moving the matter forward on a timely basis. Mr. Mask's actions, or inactions, caused the delay in arriving at the date to finally set the trial date which was months after Mr. Ellis was prepared to set the date for trial.
[19] The unavailability of Ms. MacKay's Counsel caused several months of delay in hearing the trial as evidenced from the trial scheduling form. Counsel for Ms. Mackay was unavailable for the trial dates offered in December 2024, the dates offered in Jan 2025, February 2025, and March 2025. The first date Counsel for Ms. Mackay was available was in April 2025. Even if Counsel for Mr. Ellis had been available for the dates offered in December 2024, those dates would have still been unavailable to Ms. MacKay's Counsel and the trial would not have been set to conclude within the Jordan time frame. Mr. Ellis did not solely cause that delay. Therefore, the 36-days between December 16, 2024 and January 21, 2025 will not be attributed to the defence.
Is This a Complex Case That Would Justify the Delay?
[20] The Crown argues that where the time to trial is above the 18-month ceiling, it falls to the Crown to show that the delay is reasonable because of the presence of exceptional circumstances. Exceptional circumstances fall under two categories: 1. discrete events and 2. particularly complex cases.
[21] In this case the Crown submits that the decision to proceed jointly against co-accused is justified as an exceptional circumstance which added to the complexity of the proceeding. I agree with the Crown when he submitted that there are strong policy reasons for accused persons charged with offences arising out of the same event or series of events to be tried jointly. Delays resulting from the fact that there are jointly charged accused are considered under the exceptional circumstances analysis Gopie, 2017 ONCA 728, para 142 [12].
[22] But the analysis does not end there.
[23] The SCC in Jordan cautioned that any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted Jordan, para 75 [13].
[24] In this case, Counsel for Mr. Ellis had proactively sought disclosure and conducted a crown pre-trial at an early stage. On March 18, 2024, Counsel for Mr. Ellis indicated that she was ready to set a judicial pre-trial. The other two accused had not yet retained counsel. And Mr. Ellis' matter was adjourned; his matter was waiting for the other two accused to retain lawyers. On April 9, 2024, Mr. Ellis was again ready to set a date for a judicial pre-trial. The court was advised one of the accused had retained counsel while the third, Mr. Mask, had not retained a lawyer. The matter was adjourned to May 7, 2024.
[25] On May 7, the Crown advised that Mr. Mask needed to have a crown pre-trial before the judicial pre-trial was set. The crown pre-trial was scheduled for May 21. The Crown at that point suggested that the lawyers create an email chain with the trial coordinator to obtain a judicial pre-trial date. The matter was adjourned to June 11.
[26] During these weeks, Counsel for Mr. Ellis communicated with the Crown’s office suggesting a judicial pre-trial be scheduled with counsel. There had been difficulty in communicating with Mr. Mask as he indicated he didn't have email. The Crown called him for his crown pre-trial but he did not answer his phone. Counsel for Mr. Ellis proactively brought the challenges with Mr Mask to the attention of the Crown via email during this time frame. In response to the concerns Counsel had communicated over email, the Crown’s office replied via email on June 5:
The CPT was scheduled for May 21st, but the accused did not answer and it does not appear that the CPT was rescheduled by the accused.
No other suggestions or steps were taken by the crown to mitigate the delay being occasioned by the self-represented litigant.
[27] On June 11, Mr. Mask explained to the presiding Justice of the Peace the challenges he had been facing and his understanding of what was to occur.
THE COURT: You’re self-representing?
MICHAEL MASK: I don’t – my phone got stolen, and my disclosures, and my video, they give me the video stuff, and went all the way back to Ajax to find out that you need a passcode. So it took me a week to get back here. And they gave it to, and when I went to sleep on the train to go home, someone grabbed my bag, my phone, so I missed my....
THE COURT: Have you applied for Legal Aid?
MICHAEL MASK: Don’t have a phone, can’t. I got a phone purposely just for this when I come....
THE COURT: What have you been doing in the last year? This – this didn’t happen yesterday. You had a year to obtain Legal Aid.
MICHAEL MASK: We’ve only been charged several months ago.
THE COURT: All right. So even – the – yes, the – the charges are for – from July – your first appearance was in - December the 5th, seven months. So this didn’t happen yesterday.
MICHAEL MASK: Yeah, so they...
THE COURT: You’ve had...
MICHAEL MASK: ...charged in December....
THE COURT: ...seven months to apply for Legal Aid. So you just got a phone that’s got stolen, I’m sorry to hear that, but what have you been doing all of the other months?
MICHAEL MASK: Well, I’ve been calling Legal Aid every second day and they don’t call you back. So, I just self-represent and just...
THE COURT: So, sir....
MICHAEL MASK: ...go for it.
THE COURT: Sir, with a great - great respect, that is absolute nonsense. Nonsense.
MICHAEL MASK: They don’t have an office anymore, so I don’t know. I haven’t done this in a while, but – I thought I was supposed to come do a – some sort of a pre-trial today. [14]
[28] The Crown explained its position during this proceeding:
M. LARRETT: Your Worship, Ms. Bezzina has not indicated yet - from my understanding, from both Ms. Goldlist and Ms. Stephenson’s offices, they have grave concern as Mr. Mask is essentially holding these matters up. A pre-trial was to be held May 21st, as an example, he was called by Ms. Ross, there was no answer, the voicemail doesn’t have any personal identifiers, so she’s unable to leave a voicemail....
MICHAEL MASK: No, today’s my pre-trial. That’s what I was told.
THE COURT: Okay. It’s rude to talk...
MICHAEL MASK: Sorry.
THE COURT: ...over people.
MICHAEL MASK: Sorry.
M. LARRETT: There is no email that he’s left. The email the Crown’s provided is “no email at no email dot com”. I know that email because I use that sometimes, myself, for superfluous junk mail. And in essence, counsel – senior counsel, Goldlist and Stephenson, are both ready to move for a joint pre-trial, a judicial, but yet Mr. Mask still has not had a Crown pre-trial to be able to move this matter forward. These charges are seven-plus months old. The court is correct, the arrest date was in or around November with an offence from last year. And Mr. Mask is indicating that he’s been unable to hear from duty counsel – he’s been unable to hear from Legal Aid. As I indicated with the last matter, that’s great; there’s a form right here with phone numbers. There’s 1-800 numbers there on it, and there’s pay phones, including at the back at the end of the hall, Your Worship. I’m content to stand this matter down while Mr. Mask sorts out what he’s doing.
THE COURT: No, I’m putting it into a judge’s court. You can tell the judge why you haven’t been doing anything in the last seven months, and see if – if...
MICHAEL MASK: I just...
THE COURT: ...his....
MICHAEL MASK: ...want to represent myself and I...
THE COURT: Yeah, okay. You can – you can do...
MICHAEL MASK: ...thought today was supposed to be a pre-trial.
THE COURT: ...whatever you want [15].
[29] The Justice of the Peace adjourned the matter into the Judge-led case management court on June 26, 2024 without requiring the parties to schedule a judicial pre-trial. This decision just added to the delay in this case because when the parties returned to court on June 26, 2024 in front of a Judge, the parties were no further ahead.
[30] On June 26, 2024, the Judge directed the parties to set a judicial pre-trial rather than continue to wait for the crown pre-trial to take place with Mr. Mask. The judicial pre-trial was conducted on July 9, 2024. The matter was adjourned to July 17, 2024 to set 3.5 days for trial.
[31] In my view, the time from March 18, 2024 to June 26, 2024 was a period of delay that ought to have been mitigated by the Court and the Crown. In this case, it was apparent to all that a judicial pre-trial was required. The Ontario Court of Justice Practice Direction issued by Chief Justice Nicklas effective November 1, 2023 directs:
- if the parties anticipate that a judicial pre-trial is going to be required in a case, the parties should schedule the judicial pre-trial within four months of the Information sworn date. A judicial pre-trial must be scheduled if substantial disclosure has not been received within four months of the Information sworn date. If necessary, the parties can schedule the judicial pre-trial before the Crown pre-trial has been conducted, if they undertake to conduct the Crown pre-trial before the date of the judicial pre-trial.
In this case, the purpose of the crown pre-trial was significantly diminished by the fact that the lawyers all recognized that a judicial pre-trial was required. Mr. Mask was struggling to manage as a self-represented litigant [16]. He claimed he didn't have email. On June 11, 2024, the Crown or the Court could have simply directed that the judicial pre-trial date be set right then and there. There was no need to schedule the matter in front of a judge to then set a judicial pre-trial. Once the matter reached the Judge-led case management court, the requirement for a crown pre-trial was dispensed with and the judicial pre-trial was set. Requiring a crown pre-trial to be conducted with Mr. Mask before setting a judicial pre-trial wasted 3-months of time.
[32] In my view, the Crown and Court had an obligation to move this matter forward in much more expeditious fashion and in accordance with Chief Justice Nicklas’ Practice Directive. The decision to dispense with the requirement of a crown pre-trial for Mr. Mask is one that ought to have been made much sooner in the process.
[33] The facts before me are distinguishable from the facts in Albinowski, 2018 ONCA 1084 [17] where the delay that ensued was the result of the collective actions of the defence. In Albinowski, all the accused presented a united front as they moved through the system. That is not the situation with Mr. Ellis and his co-accused.
[34] I find that joint trials can make a matter more complex than a charge against a single individual. That challenge does not absolve the Crown and the Court of their responsibilities to ensure that the matter is moving expeditiously through the system. To the contrary, there was a positive obligation on the Crown and Court to mitigate any delay.
[35] In this case, there are no other aspects of this prosecution that would make this a complex case.
[36] I find that any delay occasioned because of the complexity of this prosecution does not justify the time that this matter has taken to reach trial.
Conclusion
[37] The delay is presumptively unreasonable. The application is granted. The Applicant’s rights pursuant to section 11(b) of the Charter to be tried without reasonable delay have been breached and he is entitled to a remedy.
[38] In accordance with section 24(1) of the Charter, I impose a stay of proceedings of the charges against Mr. Ellis.
Released: February 25, 2025
Signed: Justice Amanda J. Camara
Footnotes
[1] 2016 SCC 27 (S.C.C.)
[2] R v. Jordan, at para 5
[3] R v. Wookey, 2021 ONCA 68 at para 3
[4] R v. Coulter, 2016 ONCA 704 in paragraphs 34-40
[5] R v. Kalanj, 1989 SCC 63, [1989] 1 S.C.R. 1594 at para 16
[6] Allison, 2022 ONCA 329 at paras 35-43
[7] Magiri, 2017 ONSC 2818
[8] Millar, 2016 BCSC 2144
[9] JK, 2020 OJ No 3518
[10] R v. Cody, 2017 SCC 31 at paras 30-31
[11] Gopie, 2017 ONCA 728, 2017 OJ NO 4963 at paras 128-136
[12] Gopie, 2017 ONCA 728 at para 142
[13] Jordan, para 75
[14] June 11, 2024 Transcript of Proceedings, pages 2-3
[15] June 11, 2024 Transcript of Proceedings, pages 3-4
[16] I do not have all the transcripts from Mr. Mask’s appearances but from the transcripts I do have it is apparent he was struggling to move his matter forward as a self-represented litigant.
[17] Albinowski, 2018 ONCA 1084