ONTARIO COURT OF JUSTICE
DATE: 2025-04-23
COURT FILE No.: 23-31100474
BETWEEN:
HIS MAJESTY THE KING
— AND —
MORGAN LINDO
Before Justice A.R. Mackay
Heard on September 24, 2024
Oral reasons released on September 24, 2024
Written reasons released on April 23, 2025
Sydney Hopkins ......................................................... counsel for the Crown/Respondent
Jonah Parkin ............................................................ counsel for the Defendant/Applicant
A.R. MACKAY J.:
Ruling on s. 11(b) Application
Introduction
[1] The Applicant alleges her right to a trial within a reasonable time has been breached and requests a stay pursuant to ss. 11(b) and 24(2) of the Charter. Ms. Lindo is charged with impaired operation, possession of a controlled substance and failure to provide a breath sample, contrary to ss. 320.14(1)(a), 320.15(1) and 4(1) of the Criminal Code of Canada (the “Code”) and Controlled Drugs and Substances Act (“CDSA”), respectively.
[2] The chronology of events is laid out in the parties’ materials. For ease of reference, I refer to the Crown’s chart setting out a summary of the proceedings.[^1] It is attached as Appendix A.
[3] Section 11(b) of the Charter guarantees that any person charged with an offence has the right “to be tried within a reasonable time.” In [R. v. Jordan][2], the Supreme Court identified a presumptive ceiling of 18 months for trials to be completed in the Ontario Court of Justice.
[4] The Jordan framework for s. 11(b) can be summarized as follows:[3]
There is a ceiling beyond which delay becomes presumptively unreasonable. The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the Superior Court (or cases tried in the provincial court after a preliminary inquiry). Defence delay does not count towards the presumptive ceiling.
Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances lie outside the Crown’s control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted. If the exceptional circumstance arises from the case’s complexity, the delay is reasonable.
Below the presumptive ceiling, in clear cases, the defence may show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have.
For cases currently in the system, the framework must be applied flexibly and contextually, with due sensitivity to the parties’ reliance on the previous state of the law.
The Total Delay
[5] The period of delay in this case is from January 12, 2023 (the date the Information was sworn) until January 23, 2025 (the Applicant’s last trial date), which is 742 days or approximately 24 months and 11 days. The applicant concedes 83 days or 2 months and 22 days of defence delay, which brings the net delay to 659 days or 21 months and 21 days.
[6] The first step in determining whether the delay is unreasonable is to determine whether there is any defence delay. The following are four time periods in which the respondent alleges are the responsibility of the Applicant. I will now turn to each of those time periods.
Wrong Email
[7] There was some delay due to the Crown recording an incorrect email for counsel and as a result, notification of disclosure was not received. However, while this is true, the Crown did attempt to confirm counsel’s email at the following set date, but agent for counsel did not correct the Crown with respect to the correct email. It took the defence 57 days, from June 23, 2023, until August 18, 2023, to provide the correct email to the Crown. I will apportion the 57 days as defence delay. While the delay was inadvertent, it cannot be categorized as Crown or systemic delay.
Delay in Scheduling a Trial Scheduling Conference
[8] The defence conceded that there was some delay in setting a trial scheduling conference after the Crown Pre-trial (CPT). It is Mr. Parkin’s submission that half of this time period can be considered defence delay. The Crown pre-trial (CP) was held on October 27, 2023; however, the defence did not book a trial scheduling conference until February 16, 2024. This is a significant delay of 101 days. It likely was in part because defence was waiting for the cell video. However, they did not advise the Crown that they could not set a trial date without it. Once they received the trial estimate sheet on October 27, they emailed the trial coordinator’s office (TC), these were the instructions provided in the email. However, the Crown advised, and Mr. Parkin did not contest the following: once you email the Brampton TC’s office, an automated ‘bounce back’ email will inform counsel to go through the app to schedule a date with the TC’s office. Mr. Parkin’s office emailed the TC’s office on December 15, 2023. It is likely that they received a message that they had to go through the scheduling App.[4] Counsel eventually pursued the route set out in the automated email and ultimately scheduled the Trial Scheduling conference for February 26, 2024. I would allow defence two weeks to digest the discussions with the Crown and to get instructions from their client, and I would allow a further week to sort out the miscommunication about how to set a date. Defence delay would therefore be 80 days.
Delay in bringing an 11(b) Application
[9] Once the trial date was set, an 11(b) application was not filed until August 12, 2024, 5 months and 13 days after the trial date was set (169 days). The recent case law has held that where defence counsel waits to file an 11(b) and do not advise the Crown and the Court early in the proceedings, that they should then be responsible for part of this time period. The reasoning being that had they brought their 11(b) application sooner or set a date for an 11(b) at the time they set the trial date, the Crown would have had the opportunity to take steps to mitigate delay.[5]
[10] In this case I am of the view that it is reasonable to allow the defence two weeks to consider whether they would bring an 11(b) application. Mr. Parkin did meet with the Crown on April 9, 2024, and advised the Crown that they would be bringing an 11(b) application, however, there was no follow up for over 5 months by either party.
[11] Given the caseload the Brampton Crowns are dealing with, it is reasonable to assume their office will focus on those cases where in fact 11(b) applications have been brought. Still, I would grant the defence a further two weeks to await to hear from the Crown: 4 ½ months remain of the delay in bringing an 11(b) application. Both parties are at fault, therefore I would deduct as defence delay, 2 months and 15 days or 75 days.
Applicant not available for trial dates offered
[12] Defence counsel fairly acknowledged that 83 days should be deducted as defence delay as counsel was not available for trial when the Court and the Crown were on October 31, 2024, and November 1, 2024. Deducting the total defence delay of 295 days from the total delay of 742 leaves a net delay of 447 days or 14.7 months. This is just under the Jordan presumptive ceiling.
Delay under presumptive ceiling
[13] When the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.[6]
[14] The defence must establish two things to support a claim that the delay below the ceiling is unreasonable: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. Judicial stays beneath the ceiling are rare and will only be granted in “clear cases.”[7] Where the defence has not established both requirements, the s. 11(b) application must fail.[8]
[15] The Supreme Court in Jordan provided the following instruction regarding defence counsel’s obligation, at para. 85:
To satisfy this criterion, it is not enough for the defence to make token efforts such as to simply put on the record that it wanted an earlier trial date. Since the defence benefits from a strong presumption in favour of a stay once the ceiling is exceeded, it is incumbent on the defence, in order to justify a stay below the ceiling, to demonstrate having taken meaningful and sustained steps to be tried quickly. While the defence might not be able to resolve the Crown's or the trial court's challenges, it falls to the defence to show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications (including the s. 11(b) application) reasonably and expeditiously. At the same time, trial judges should not take this opportunity, with the benefit of hindsight, to question every decision made by the defence. The defence is required to act reasonably, not perfectly.
[16] I find that the defence did, at times, show an interest in moving the case along, however, they did not do so consistently. Counsel did send a letter to the Crown requesting an earlier trial date and Counsel Parkin had a Crown pre-trial where he advised he wanted to mitigate delay. While the defence did proceed to setting a trial date despite not having the cell video, they took over two months to schedule a trial scheduling conference date to set a trial date. In addition, they did not bring an 11(b) application for close to 5 months after the trial dates were set. Further, counsel did not take advantage of the Backlog Reduction Court initiative. Commencing on April 18, 2023, acting Regional Senior Justice Leitch disseminated an invitation to the criminal bar, to participate in the Backlog Reduction court whereby earlier trial dates could be obtained. On November 1, 2023, this Court issued a practice direction on section 11(b) applications requiring that 11(b) motions be scheduled at the same time the trial dates are set. In conclusion, looking at the defence action throughout I cannot find that they took meaningful and sustained efforts to ensure the trial was conducted in a reasonable time.
Markedly longer
[17] As the Applicant has failed to establish this first condition, I am not required to consider whether the case took markedly longer than it should have. However, I will review this issue briefly. This second criterion involves consideration of such factors as case complexity, local considerations, and whether the Crown took reasonable steps to expedite the proceedings. The case was not complex, given the backlog from COVID-19 back in 2023, this time frame for a two-day trial was not out of the ordinary.
[18] The Crown could have taken further steps to expedite the proceedings once they were alerted by defence. On April 8, 2024, Counsel Worsoff emailed the “Virtual Crown” indicating an interest in obtaining earlier trial dates. It should be noted that the ‘Virtual Crown” is manned by the administrative staff who mostly manage disclosure. I am of the view that such an email represents more of a “token effort.” Counsel Parkin attended a CPT on April 9, 2024, and advised that Ms. Lindo wanted an earlier trial date. Despite these communications, no Crown responded to their request. However, the procedure to seek earlier dates was to schedule another trial scheduling conference. The most effective way to get the Crown’s attention would be to schedule and file an 11(b) application.
[19] I find that in all the circumstances, that 15 months for a 2-day trial in Brampton while not ideal, was not markedly longer in all the circumstances. In the result, the application to stay the charges for unreasonable delay pursuant to s. 11(b) of the Charter is dismissed.
Released: April 23, 2025
Signed: Justice A. R. Mackay
APPENDIX A
Procedural History of R. v. Morgan Lindo [Information #23-31100474]
| Date | Adjournment Date | Description of Time | Delay and Attribution |
|---|---|---|---|
| January 1, 2023 | Offence date. | ||
| January 12, 2023 | Information Sworn. [Applicant's Record, Tab 2] Jordan Clock Starts. | ||
| February 14, 2023 | April 28, 2023 | First Appearance. Disclosure is not available. [Applicant's Record, Tab 6] | |
| May 29, 2023 | Disclosure shared with counsel. [Applicant's Record, Tab 8] [Respondent's Record, Tab I] | ||
| April 28, 2023 | June 23, 2023 | Second Appearance. Crown is in the process of reviewing disclosure. [Applicant's Record, Tab 7] | |
| June 23, 2023 | August 18, 2023 | Third Appearance. Crown advises that disclosure was shared with counsel on May 29, 2023 with email address Mitchell(a)Worsofflaw.ca. Counsel does not advise that the email was incorrect. Crown elects to proceed summarily. [Applicant’s Record, Tab 8] | Defence delay between June 23, 2023 and August 18, 2023 is a defence delay due to defence failing to promptly correct their contact information to receive disclosure. Discrete Event: 57 days |
| August 18, 2023 | October 13, 2023 | Fourth Appearance. Defence advises they do not have disclosure. Crown advises that disclosure was shared with counsel on May 29, 2023 with email address Mitchell@Worsofflaw.ca. Counsel advises that email address was not correct and further advises he would follow up with the Crown's office. Counsel changes his screen name to his email address to provide the correct email to counsel. Counsel advises that he will have a Crown pre-trial before next date. [Applicant's Record, Tab 9] Crown shares disclosure with correct email address as provided by counsel on record daniel@worsofflaw.ca [Respondent’s Record, Tab 2] | |
| September 1, 2023 | Defence counsel books CPT. | ||
| October 13, 2023 | December 15, 2023 | Fifth Appearance. Counsel confirm that they have received and reviewed disclosure and have scheduled a CPT for October 27, 2023. [Applicant's Record, Tab 10] | |
| October 27, 2023 | Crown pre-trial was conducted and a trial time estimate form was completed and sent to counsel. [Applicant's Record, Tab 5] [Respondent's Record, Tab 3] | ||
| November 7, 2023 | Earliest available trial scheduling conference date available as of October 31, 2023. [Respondent's Record, Tab 4] | ||
| December 15, 2023 | February 16, 2024 | Sixth Appearance. Defence counsel advises they have emailed the trial coordinator the trial estimate form and the scheduling form and are waiting to hear back. [Applicant's Record, Tab 11] | |
| February 16, 2024 | March 15, 2024 | Seventh Appearance. Counsel advises that trial scheduling conference has been set for February 26, 2024. [Applicant's Record, Tab 12] | |
| February 26, 2024 | Defence attended a trial scheduling meeting and obtained trial dates of January 22, 2025 to 23, 2025. [Applicant's Record, Tab 3 & 5] | Delay between November 7, 2023, to February 26, 2024, is defence delay due to failure to schedule a trial scheduling conference once Defence was in possession of the TTEF. Defence Delay: 112 days. | |
| March 12-13, 2024 | First set of trial dates offered by the trial coordinator on February 26, 2024. Neither Crown nor Defence available. [Applicant's Record, Tab 5] | ||
| March 15, 2024 | Eighth Appearance. Counsel placed trial dates on the record for January 22-23, 2025, in courtroom 303 at 10:00 am. The Crown requests that defence advise as soon as possible as to any issue with 11(b). Defence does not provide any comment. [Applicant's Record, Tab 13] | ||
| March 20-21, 2024 | Second set of trial dates offered by the trial coordinator on February 26, 2024. Neither Crown nor Defence available. [Applicant's Record, Tab 5] | ||
| April 8, 2024 | Defence emails the Crown's office requesting an earlier trial date. [Applicant's Record, Tab 14] | ||
| April 9, 2024 | Defence asserts that a pre-trial was conducted with Crown Mr. Michael Morris to request cell video and earlier trial dates. [Applicant's Record, Tab 3] | ||
| April 18, 2024 | Letter sent to all counsel from Justice Anthony F. Leitch, Acting Regional Senior Justice advising of the Backlog Reduction Court initiative to be scheduled commencing April 29, 2024, and ending June 26, 2024. [Respondent's Record, Tab 5] | ||
| June 26, 2024 | Final Backlog Reduction Court date as per Justice Anthony F. Leitch's letter of April 18, 2024. [Respondent's Record, Tab 5] | ||
| August 12, 2024 | Defence emails the trial coordinator to request a date for 11(b) motion. [Respondent's Record, Tab 6] | Delay between February 26, 2024 and August 12, 2024 is a defence delay due to defence failing to properly advise of the 11(b) issue. Defence Delay: 169 days. | |
| October 31, 2024 - November 1, 2024 | Third set of trial dates offered by the trial coordinator on February 26, 2024. Crown available. Defence not available. | ||
| January 22-23, 2025 | Trial dates scheduled. Fourth set of trial dates offered by the trial coordinator on February 26, 2024. [Applicant's Record, Tab 5] | Delay between November 1, 2024 and January 23, 2025 is defence delay due to defence unavailability. Defence concedes this delay. Defence Delay: 84 days. |
Total Delay: Information sworn date of January 12, 2023 to last day of scheduled trial of January 23, 2025: 743 days.
Defence Delay:
- June 23, 2023 to August 18, 2023 — Defence fail to provide Crown with correct contact information: 57 days.
- November 7, 2023 to February 26, 2024 — Defence did not schedule a trial scheduling conference: 112 days.
- February 26, 2024 to August 12, 2024 — Defence lay in weeds on 11(b) issue: 169 days.
- November 1, 2024 to January 23, 2025 — Conceded. Defence unable to accept earlier trial dates. [Applicant's Factum at paragraph 16]: 84 days.
Total Defence Delay: 422 days.
Net Delay: 321 days (10.55 months).
For the purposes of s. 11(b) calculations, to convert days to months, the following formula should be applied: Days ÷ 30.417* = months (*where 30.417 is approximately 365 ÷ 12) [R. v. Shaikh, 2019 ONCA 895][^Shaikh]; [R. v. Chung, 2021 ONCA 188][^Chung].
[^1]: Crown’s 11(b) Response Application Record, tab 7, pages 40 to 46: Appendix A - Procedural History of R. v. Morgan Lindo.
[2]: https://www.canlii.org/en/ca/scc/doc/2016/2016scc27/2016scc27.html
[3]: R. v. Coulter, 2016 ONCA 704 at paras. 34-41.
[4]: Appointment online tool that the trial coordinator uses to schedule trial scheduling conferences.
[5]: R. v. Kullab, 2023 ONCJ 458, at paragraph 2; R. v. Nigro, 2023 ONCJ 41, at paras 32-38; R. v. Yizhak, [2022] O.J. No 4624 (ONCJ), at para. 39.
[6]: Jordan, para. 48.
[7]: R. v. Jordan, at paras. 48, 82–83.
[8]: R. v. Jordan, 2016 SCC 27 at paras. 82-83.
[^Shaikh]: https://www.canlii.org/en/on/onca/doc/2019/2019onca895/2019onca895.html
[^Chung]: https://www.canlii.org/en/on/onca/doc/2021/2021onca188/2021onca188.html