Case Information
DATE: 2025-01-14
COURT FILE No.: Toronto Region 4815 998 23 48108024
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
OLUWATOFUNMI OLA
Before Justice Peter Scrutton
Heard on September 25 and December 4, 2024
Reasons for Ruling released on January 14, 2025
C. Tsilingiris .......................................................................................................... for the Crown
N. Jackson ............................................................................................................ for the Accused
Scrutton J.:
Overview
[1] Mr. Oluwatofunmi Ola was arrested on June 14, 2023 and is charged with a number of firearms offences. The allegations are straightforward: he was believed to have stolen an item from a grocery store, was arrested by loss prevention officers, and found to be in possession of a firearm during a search incident to arrest. He seeks a stay of these proceedings, alleging that his s. 11(b) right to be tried within a reasonable time has been breached.
[2] There is no real dispute between the parties about the events contributing to the timeline in this case, only the proper legal characterization of key periods and whether, if some of the delay here can be attributed to the defence, the matter should be stayed notwithstanding that the net delay is under the 18-month Jordan ceiling.
[3] On January 2, 2024, the defence and Crown both accepted the first trial dates they were offered: April 9-11, 2024, approximately 10 months after the defendant’s arrest. The parties agreed three days were required notwithstanding the simple factual circumstances of the case because of a blended Charter application. Unfortunately, Mr. Ola’s trial did not begin on April 9, 2024, but was adjourned because, the day before, the Crown disclosed a substantial amount of video surveillance footage from the grocery store that the defence had no opportunity to review before trial. The record is silent as to whether the Crown or the police bear responsibility for this last-minute disclosure but the adjournment must be characterized as Crown delay. Mr. Ola’s trial was rescheduled to September 23-25, 2024, some 15½ months after his arrest. No potential s. 11(b) issue was raised at this time.
[4] Unfortunately, again, Mr. Ola’s trial did not begin on September 23, 2024, again because of a Crown-caused adjournment. When Mr. Ola attended for trial that day, he learned that the Crown had mis-diarized his trial as beginning two days later. The defendant and the court were available to begin as scheduled but no prosecutor or witness was available until September 25. The defendant’s trial began that day but, unsurprisingly, did not conclude. The parties obtained new dates – two days for further evidence needed to complete the trial and one day for a s. 11(b) application that Mr. Ola indicated he would bring.
[5] The total delay from charge to February 3, 2025, the anticipated date the matter will conclude, is 19 months and 20 days. Ultimately, whether this matter is over the presumptive ceiling turns on the attribution of potential defence delay to three periods – before a trial date was scheduled in this matter and after each trial date had to be rescheduled.
Relevant Chronology
- Jun. 15, 2023: Information is sworn; first appearance in bail court.
- Jul. 24, 2023: Initial disclosure is provided.
- Jul. 27, 2023: Defence counsel emails assigned Crown to schedule a Crown Pre-Trial (“CPT”).
- Aug. 2, 2023: CPT is conducted and a Judicial Pre Trial (JPT) is scheduled for Sept 15, 2023.
- Sep. 15, 2023: JPT is conducted and the parties obtain a 3-day trial time estimate.
- Sep. 29, 2023: No one appeared for the defence and the matter is adjourned.
- Oct. 27, 2023: No one appeared for the defence and the matter is adjourned.
- Nov. 6, 2023: Defence counsel requests trial scheduling call; the Crown advises it will assist.
- Nov. 29, 2023: Defence counsel follows up with the Crown about the trial scheduling call.
- Dec. 18-19, 2023: Defence counsel follows up about the trial scheduling call, which is scheduled by the Crown for Jan 2, 2024.
- Jan. 2, 2024: The parties accept the first trial dates offered: April 9-11, 2024.
- Apr. 8, 2024: The Crown makes substantial new disclosure.
- Apr. 9, 2024: The trial is adjourned to allow time to review disclosure.
- Sep. 23, 2024: The defence appears for trial but the Crown and witnesses are not available for the first two scheduled days.
- Sep. 25, 2024: Trial commences; the parties obtain continuation dates of Dec. 4, 2024, Jan. 22, and Feb. 3, 2025.
Legal Principles
[6] The key principles on this application are well understood.
[7] In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the Supreme Court of Canada set out the framework for analyzing whether a defendant's right to be tried within a reasonable time has been violated and established an 18-month ceiling for matters prosecuted in this court, above which any delay is presumptively unreasonable. The burden then shifts to the Crown to demonstrate exceptional circumstances that justify the delay. Understandably, the Crown does not rely on any such justification here.
[8] On a s. 11(b) application, the court must:
(i) calculate the total delay from the charge to the actual or anticipated end of trial;
(ii) subtract defence delay from the total delay, which results in the “Net Delay”;
(iii) compare the Net Delay to the presumptive ceiling;
(iv) if the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If it cannot rebut the presumption, a stay will follow;
(v) subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purposes 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.
[9] “Defence delay” has two components: (i) delay waived by the defence; and (ii) delay caused solely by the conduct of the defence: Jordan at paras. 61-63. In R. v. Cody, 2017 SCC 31, the Supreme Court clarified that the only defence delay that is deductible as “delay caused solely by the defence” is delay that is: (i) solely or directly caused by the accused person; and (ii) flows from defence action that is illegitimate in that it is not taken to respond to the charges. Inaction that is not legitimate may also amount to delay: Cody at paras. 32 and 42. Where the court and the Crown are ready to proceed but the defence is not, the resulting delay should also be deducted: Jordan at para. 64.
Attribution of Delay After the Judicial Pre-trial
[10] Within days of initial disclosure being provided, defence counsel proactively reached out to schedule a Crown Pre-Trial. The Crown offered time on August 15 but defence counsel successfully prevailed upon him to speak earlier, on August 2. The parties jointly scheduled a JPT for September 15. After it, the parties received a trial time estimate that authorized them to schedule a 3-day trial. In this courthouse, the next step is to obtain trial dates via a trial scheduling call with the trial coordinator, something that the Crown arranges through a shared calendar. Those calls are normally available within a week.
[11] For some reason, no steps were taken in this regard by either party until November 6, 2023, when defence counsel contacted the Crown and the trial coordinator attempting to arrange this call. The assigned Crown indicated that he would schedule it. Nothing happened in this regard. Defence counsel followed up on November 29, 2023. Again, nothing happened. Defence counsel followed up on December 18, 2023, asking to set the first available trial call. That day, the Crown scheduled the call on the first available day, January 2, 2024 (six business days later).
[12] The Crown argues that the two missed set date court appearances on September 29 and October 27 reflected in the chronology above should be deducted from the overall time period as defence delay. The problem with this submission is that the only party taking steps to move this matter forward in the intake period before trial dates were set was the defence. There is nothing in the record to suggest that the Crown was ready to set trial dates in the period it seeks to characterize as defence delay. The available inferences are either that no one was ready to set trial dates or that both parties were ready but content not to set trial dates. Even after the defence reached out on November 6, 2023, the Crown did not take steps to arrange for the trial scheduling call until December 19, 2023, six weeks later. In these circumstances, I do not see how any of the time between the September 15th JPT and the January 2nd trial scheduling call can be considered as delay “solely or directly” caused by the defence.
The Attribution of Delay from Rescheduling
[13] Recently, in R. v. A.(C.), 2024 ONSC 1603 (S.C.A.), Justice Harris, on appeal from summary conviction, considered the issue of the appropriate legal characterization of defence counsel’s unavailability in the context of a “bring forward” attempt to reschedule existing trial dates in a proactive effort to mitigate a clear Jordan issue. Following R. v. Hanan, 2023 SCC 12 and R. v. Boulanger, 2022 SCC 2, he concluded that this context is markedly different from that in which trial dates are initially set; the difference requires that defence counsel’s unavailability for the new dates be “reasonably apportioned” based on “all the relevant circumstances.”
[14] In this case, after the first trial was adjourned, the court offered dates well before those that were ultimately scheduled to begin on September 23, 2024:
- Apr. 15-17: the Crown was available, the defence was not.
- Apr. 22-24: neither party was available.
- Apr. 29-May 1: neither party was available.
- May 6-8: the Crown was available, the defence was not.
- May 13-15: the Crown was available, the defence was not.
- Jun. 3-5: neither party was available.
- Jun. 10-12: the Crown was available, the defence was not.
- Jun. 17-28: the Crown was available, the defence was not.
- Jul. 2-5: the Crown was available, the defence was not.
- Jul. 15-Aug. 31: the Crown was not available.
- Sep. 3-5: the Crown was available, the defence was not.
- Sep. 9-11: neither party was available.
- Sep. 16-18: the Crown was not available, the defence was.
[15] In my view, having regard to R. v. A.(C.) and the authorities cited therein, I do not think it is reasonable to apportion counsel’s understandable unavailability for the specific blocks of dates offered in the immediate aftermath of the April 9 day-of-trial adjournment as “defence delay.” The determination of how much time is reasonable to afford to the defence schedule after a Crown-caused adjournment is contextual. In this case, I draw June 12, 2024 as the line before which it would be unreasonable to expect defence counsel to have three clear days. It is commendable that the court and Crown were able to accommodate this proceeding at different times within two months of the first adjournment but unrealistic to expect defence counsel to be available so soon. To consider this period “defence delay” in these circumstances would ultimately mean that the Crown bore no responsibility for the delay flowing from the adjournment it caused.
[16] If the defence had remained unavailable in the face of the Crown’s and the court’s virtually unfettered availability thereafter, I would expect it to bear responsibility for some or potentially all of the delay flowing from its inability to accept earlier dates. However, as I read the April 9, 2024 transcript discussing the scheduling of new dates, the Crown was reading from a list of available dates the trial coordinator had offered the parties, which included the entire period from July 15 to August 31, 2024, for which the Crown was unavailable. This accords with my understanding of the local circumstances in this courthouse during the summer of 2024, as court time was readily available. I disagree with the Crown that the defence is responsible for causing all of the delay in rescheduling this matter. I attribute only the period from June 20 to July 15 (25 days) and September 3-11 (8 days) as defence delay during this time frame.
[17] The same holds true for the delay associated with rescheduling this matter after the trial did not conclude on September 25, 2024. The court offered the parties the following dates:
- Oct. 17, 2024: Crown was available, the defence was not.
- Nov. 5, 2024: neither party was available.
- Nov. 15, 2024: Crown was available, the defence was not.
- Dec. 4, 2024: both parties were available.
- Jan. 14, 2025: the Crown was available, the defence was not.
- Jan. 22, 2025: both parties were available and scheduled this date.
- Jan. 27, 2025: the Crown was available, the defence was not.
- Feb. 3, 2025: both parties were available.
[18] A few weeks after these dates were offered, on October 24, 2024, the trial coordinator notified the parties that the court was available on an additional seven days in November, an additional nine days in December, and an additional fourteen days in January. Defence counsel was unavailable for all of these dates except November 22, and provided the trial coordinator with a calendar of his matters indicating that, with the exception of five days in December when he would be out of the country, he was already scheduled to be in court on substantive matters on each of the dates offered. The Crown asked to hold November 22 as a target date.
[19] The following week, on October 30, defence counsel reached out to advise that his schedule had opened up and he was now available on November 12 and 13, some of the more recently released dates. The Crown was not available. At this time, the Crown indicated that he had asked the Officer-in-Charge of the investigation to canvass witness availability for November 22 and was waiting to confirm this. The Crown followed up on November 19 to ask whether November 22 was still being held as target date and indicated (for the first time since the matter was broached on October 24) that the Crown and witnesses were available. Defence counsel, in my view understandably, replied to say that he had not held that date because of the lack of confirmation and was no longer available.
[20] I accept that both parties were making real efforts to re-schedule the necessary dates. Because of this, in the context of the Crown-caused adjournment and the respective dates in question, I do not think that any time during this period should be characterized as “defence delay.” The delay to be deducted in this matter as attributable to the defence, then, is 33 days, making the net delay in bringing Mr. Ola’s matter to trial 18 months, 2 weeks and 2 days. There being no complexity or exceptional circumstances to justify this delay, the matter must be stayed.
[21] Alternatively, in the event that I am wrong about the delay that should be attributed to the defence after the respective trial dates were rescheduled, I would not stay this matter for unreasonable delay were the net delay properly found to be under the 18-month ceiling. Defence counsel submits that this matter ought to have concluded on April 11, 2024. But the defence did not identify a potential s. 11(b) issue when the second trial dates were secured. I expect, or at least would hope, that if delay had been flagged at that juncture, Crown resources would have been redeployed so as make a prosecutor available to take carriage of this straightforward yet serious prosecution on any date that the court could accommodate it.
[22] Clearly, this matter ought to have concluded on September 25, 2024, just under 16 months from the date the information was sworn. But it is more than a theoretical possibility that this matter could have concluded much earlier had delay been flagged after the first adjournment. Further, I have largely rejected the Crown submission that three discrete periods in this timeline ought to be characterized as defence delay. But that is very different from finding that the defence took meaningful steps to expedite this trial. The defence certainly took meaningful steps to expedite this matter during the early and latter portion of the intake period but both parties failed to secure trial dates in a timely manner after the JPT and the defence was (reasonably) unavailable in the near aftermath of both trial adjournments despite wide court availability.
[23] Stays of proceedings for cases that are under the Jordan ceiling “will occur only in rare cases where there is clearly unreasonable delay”: R. v. S.A. , 2024 ONCA 737 at para. 24. Based on the record before me, I would find that the defence has failed to rebut the presumption that under-the-ceiling delay was unreasonable here.
Dated: January 14, 2025
Justice Peter Scrutton