R. v. B.S., 2025 ONCJ 34

Warning and Non-Publication Order

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Case Information

DATE: January 15, 2025
COURT FILE No: 23-37101330

ONTARIO COURT OF JUSTICE

BETWEEN:
HIS MAJESTY THE KING
Respondent

-AND-

B.S.
Applicant

Before Justice Michael G. March
Heard on November 20, 2024
Reasons for Decision on s. 11(b) Charter Application released on January 15, 2025

Counsel for the Crown: Goher Irfan
Counsel for the Accused: Dawn Dickinson

Introduction

1. This is a case about the propriety and timing of a section 11(b) application under the Canadian Charter of Rights and Freedoms (“the Charter”) post-verdict. Following two days of hearing of a prior sexual history, pre-trial application under s. 276 of the Criminal Code of Canada (the “Code”), and a seven-day trial, I found the offender, B.S., guilty on June 12, 2024 in respect of eight of the eighteen offences with which he was charged. All of the crimes committed by him were of a sexual nature. His main victim was his cousin, E.W., his junior by some ten years.

2. On July 17, 2024, B.S. first notified the Court through his new counsel of his intention to bring a s. 11(b) Charter application alleging that his right to be tried within a reasonable time had been infringed or denied. To that point in time, no whisper of complaint by the defence had been made about the pace of his proceedings.

3. At considerable expense to the publicly funded legal aid system, B.S. retained new counsel to argue this application before me, and transcripts were ordered of numerous appearances B.S. made in this Court to chronicle how his charges proceeded through to the end of trial.

4. B.S.’s counsel on the application, not his trial counsel, urged me to undertake a close examination of the Jordan factors to determine its outcome, and to refuse to summarily dismiss the application as requested by the Crown.

5. At first blush, the argument made by B.S.’s new counsel appeared compelling. The Information (“Info. No. 1”) alleging the first set of charges against him was sworn on March 5, 2021. However, two additional sets of charges were laid against B.S. complicating somewhat his combined trial on two of those sets, which ultimately ended on January 15, 2024.

6. While it is true his trial took over 34 months, or more precisely 1046 days, to complete in provincial court and therefore exceeded the presumptive ceiling of 18 months established by the Supreme Court of Canada (“SCC”) in its benchmark decision of R. v. Jordan, upon closer analysis, it is readily apparent that much of the delay was caused by the defence, or implicitly waived by the defence.

7. For the following reasons, I am compelled to dismiss this application primarily based on the principles of law articulated by the SCC in its decision of R. v. J.F..

8. In my view, post-verdict 11(b) Charter applications ought to be carefully considered by the defence and brought only in rare and exceptional circumstances. They cannot be concealed in defence counsel’s back pocket only to be resorted to at the 11th hour to attempt to avoid the consequences of their client’s criminal conviction.

Position of the Applicant

9. The defence submitted that one of the greatest factors causing B.S.’s trial to be delayed was the late disclosure of crucial materials to the defence, and Court unavailability.

10. The defence contended that B.S. did not waive his rights under section 11(b) of the Charter, either explicitly or implicitly.

11. Further, the defence argued that there were no exceptional circumstances, to which the Crown can point, to justify a refusal to stay the proceedings against B.S.

12. The Crown, it is advanced, failed to mitigate the delay it witnessed accruing, and B.S.’s trial became a symptom of “the complacency of delay” as referred to in Jordan. Accordingly, a stay is the only appropriate remedy to address the breach of B.S.’s right to trial within a reasonable time.

13. Regarding the failure by the defence to bring its 11(b) Charter application 60 days in advance of the trial date as required by the Rules of the Ontario Court of Justice, the defence submits that the rules are procedural in nature, meant to facilitate a fair and expeditious determination of Charter issues, by ensuring all parties have adequate notice of intended applications. Noncompliance with the Rules is not fatal. Rules are meant to be flexible.

14. Furthermore, the s. 11(b) Charter right is dynamic in nature. The Court must assess whether noncompliance with the Rules offends fairness, or unjustly disadvantages one party to the point of insurmountable prejudice.

15. Put otherwise, the failure to adhere to a procedural rule is not ideal; however, it cannot extinguish the importance of upholding a constitutional right.

16. This application, defence counsel submits, deserves consideration and determination in accordance with the factors specified for analyzing delay as set out in Jordan, and expounded upon by the Court of Appeal for Ontario in R. v. Coulter.

Position of the Respondent

17. Crown counsel countered that while there were no specific waivers of B.S.’s rights under section 11(b) of the Charter, there were periods of delay specifically caused or contributed to by the defence, or delay that was implicitly waived by the defence, as follows:

• a) 275 days between September 15, 2021 and June 17, 2022 on account of the defence failure to set trial dates,
• b) 102 days between June 17, 2022 and September 27, 2022 attributable to defence counsel’s consent to join previous charges with more recent ones in a new Information, and
• c) 226 days between December 16, 2022 and August 8, 2023 owing to defence counsel’s unavailability for the first date offered to try this case when the Crown and the Court were ready to commence.

18. Crown counsel further contended that two distinct periods of time were the result of exceptional circumstances causing delay, namely:

• a) the Covid 19 pandemic (which locally, the Crown submitted was worthy of a 180 day deduction), and
• b) Crown counsel’s illness on December 20, 2023, preventing oral submissions from being made at the conclusion of the hearing of trial evidence until January 15, 2024 (26 days).

19. Fatal to the application, the Crown argued, was the failure by B.S. through his counsel to raise the purported unreasonableness of the delays engendered in bringing his matters to trial until after his conviction on June 12, 2024. No exceptional circumstances existed to justify the application having been brought so late in the day.

20. Clearly, trial judges have the power to summarily dismiss Charter applications including those brought under section 11(b). The broader interests of justice are not solely informed by those of the accused’s. They include the need to conduct “all litigation in a fair, orderly and efficient manner” (see R. v. Cody, 2017 SCC 31 at para. 201; R. v. Allison 2022 ONCA 329 at paras. 57–70).

21. An accused is obliged to raise the unreasonableness of trial delay in a timely manner. When the anticipated end of trial is known and trial dates are set, the accused has a duty to raise the issue and bring the application before the trial.

22. The accused must act diligently. As was made clear by the SCC in J.F., “While an accused has no legal obligation to assert their right to be tried within a reasonable time in order for that right to exist, this does not entitle the accused to do nothing when they believe that their section 11(b) right is not being or will not be respected. The Court’s teachings are clear on this point: s. 11(b) does not allow an accused to benefit unduly from the lengthening of delay, notwithstanding the fact that it is the Crown that has a constitutional obligation to bring the accused to trial.” (see R. v. J.F., supra, at para. 58).

23. Inaction on the part of the defence does not constitute waiver of the period of delay in all instances; however, it is a relevant factor as to whether delay was indeed waived.

24. Further, delay caused as a result of a late s. 11(b) Charter application need not be classified as waiver, since in such circumstances, delay is more properly attributable to defence caused delay under the Jordan analysis.

25. As expressed by the SCC in J.F. as well, “as a general rule, in the context of a single trial, an accused who believes that the right to be tried within a reasonable time has been infringed must act diligently and apply for a remedy before the trial is held (see R. v. J.F., supra, at para. 3).

26. Unless there are exceptional circumstances justifying it, the application must be brought prior to the trial or prior to the trial’s end where the delay issue crystallized mid-trial. Failure to do so should be fatal to the claim (see R. v. Rabba, 1991 ONCA 7073 at para. 5; R. v. Cortes-Rivera, 2019 ABCA 62 at paras. 3–7; R. v. Yizhak, 2022 ONCJ 476 at paras. 16–35).

27. A failure to express any concern about delay on the record can lead to a finding that there was a consistent pattern of complacency on the part of the defence, depriving both the Crown and the Court from proactively addressing any such concern (see R. v. Kandeh, 2023 ONCJ 5000 at paras. 36–47).

28. Again, in J.F., the SCC was unequivocal as to the appropriate timing of a s. 11(b) Charter application. It ought to be brought pre-trial to allow the parties to know in advance the bounds of reasonableness, so proactive measures can be taken to remedy any delay (see R. v. J.F., supra at para. 35).

29. If the accused does not bring the application under section 11(b) of the Charter prior to trial, simply put, it is late. Flowing from its tardiness, the Court must then determine the following two issues:

• a) Are there circumstances in the case that justify the late application?
• b) If not, what are the consequences of the lateness?

(see R. v. Europe, 2024 ONSC 4867 at paras. 18–41)

30. Crown counsel argues that the defence in this case cannot point to any circumstances to justify its late application. Consequently, the Crown and Court were completely deprived of the opportunity to take immediate steps to remedy the delay.

31. Some twenty-five transcripts of B.S.’s appearances before this Court were filed in support of his s. 11(b) Charter application. Upon my review of them, the written facta prepared by, and oral submissions made by Crown and defence counsel, I find I need only consider the following dates to determine the outcome of this application:

Chart of Critical Dates

Dates	Action Taken	Cumulative Delay
March 5-6, 2021	B.S. was arrested and the Information (Info. No. 1) setting out his charges was sworn on March 5. He was released the following day on Crown consent.	1 day
March 11 – May 18, 2021	Disclosure: Request sent for the disclosure by defence and sent out by Crown on May 18, Counsel Pre-Trial (CPT) held.	68 days
August 13, 2021	Judicial Pre-Trial (JPT) held. Crown to provide updated synopsis. Police to interview a secondary witness. Defence to confirm whether a s. 276 application will be brought under the Code. Crown to provide an early guilty plea resolution offer.	153 days
September 15, 2021	Remand Court: Second JPT held off record. All outstanding issues addressed by counsel. Crown and defence counsel directed by the Court to secure hearing dates for the s. 276 application and trial dates as well on record by presiding judge.	186 days
October 19, 2021	Defence has not yet secured hearing dates for its s. 276 application. No trial dates have yet been set.	220 days
October 29, 2021	B.S. is charged with a second set of alleged offences as set out in a further Information (Info. No. 2).	230 days post sworn date for Info. No. 1 / 0 days for Info. No. 2
November 18, 2021	Second CPT held after disclosure was made of the second set of charges to the defence.	251 days post sworn date for Info. No. 1 / 21 days for Info. No. 2
December 14, 2021	Disclosure: Defence counsel advised that further disclosure was required to prepare its s. 276 application (Cell phone records of B.S. and complainant, roughly 1500 pp.)	277 days post sworn date for Info. No. 1 / 73 days for Info. No. 2
March 25, 2022	Disclosure: Crown provided 1200 pp. of disclosure; defence counsel needed time to review.	378 days post sworn date for Info. No. 1 / 148 days for Info. No. 2
April 13, 2022	B.S. is charged with a third set of alleged offences.	397 days post sworn date for Info. No. 1 / 167 days for Info. No. 2 / 0 days for Info. No. 3
August 23, 2022	Disclosure: Crown provided disclosure to defence on B.S.’s third set of charges.	529 days post sworn date for Info. No. 1 / 299 days for Info. No. 2 / 132 days for Info. No. 3
October 18, 2022	A third JPT was held and the Court approved two days for the s. 276 hearing and six days for trial. N.B.: The presumptive ceiling of 18 months or 547 days had already been surpassed by 38 days by this point with respect to B.S.’s first set of charges. In spite of the Court’s direction on Sept. 15, 2021 to set hearing dates for the s. 276 application and for the trial, this had still not been done.	585 days post sworn date for Info. No. 1 / 352 days for Info. No. 2 / 188 days for Info. No. 3
November 1, 2022	On record, s. 276 hearing dates were set for Aug. 8 and Sept. 28, 2023. Trial dates were reserved for Nov. 16, 17, 20, 21, 22 and 23. Two sets of B.S.’s charges were to be tried together in a relaid new Info. No concern is raised by defence as to length of delay already engendered for all sets of charges.	598 days post sworn date for Info. No. 1 / 365 days for Info. No. 2 / 201 days for Info. No. 3
August 8, 2023 - Nov. 27, 2023	The s. 276 application was heard on its scheduled dates, Aug. 8 and Sept. 28. It was granted. The trial later commenced as expected on November 16 and finished on Nov. 27. The Nov. 17 trial date was vacated and replaced with Nov. 27. Final submissions of counsel on the evidence called at trial adjourned to Dec. 14, 2023. N.B. Again, in spite of all of the court appearances made by B.S. during the hearing of the s. 276 application and the trial evidence, and the presumptive ceilings having been surpassed in respect of all three sets of charges, no concern is raised by the defence regarding the length of the delay.	999 days post sworn date for Info. No. 1 / 766 days for Info. No. 2 / 602 days for Info. No. 3
December 14, 2023	Court is unavailable to hear counsel submissions on evidence due to judge’s personal matters; case is adjourned to December 20, 2023	1016 days post sworn date for Info. No. 1 / 783 days for Info. No. 2 / 619 days for Info. No. 3
December 20, 2023	Crown is ill with Covid and cannot proceed with final submissions.	1022 days post sworn date for Info. No. 1 / 789 days for Info. No. 2 / 625 days for Info. No. 3
January 15, 2024	Final submissions of counsel heard on trial evidence.	1048 days post sworn date for Info. No. 1 / 815 days for Info. No. 2 / 651 days for Info. No. 3
June 12, 2024	Trial judgment rendered in writing (102 pp.) by the Court finding B.S. guilty on eight counts of an 18 count relaid, new Info. combining two of his outstanding sets of charges.	N/A
July 17, 2024	Defence notified the Court of its intention to bring a s. 11(b) Charter application post-verdict	N/A
November 20, 2024	Section 11(b) Charter application was heard	N/A
January 15, 2025	Application dismissed with written reasons herein	N/A

Issues

32. The history of the proceedings and counsel submissions raise the following issues for resolution:

• a) Are there legitimate circumstances in this case that justify the late date upon which the s. 11(b) application was brought?
• b) If not, what are the consequences of the lateness?
• c) Should the application be summarily dismissed?

The Law

33. In J.F., the SCC was dealing with an accused who was acquitted on all charges at his first trial. The Crown successfully appealed, and a re-trial was ordered. Only at the second trial did the accused raise the argument that his s. 11(b) Charter rights were violated.

34. Notwithstanding B.S. has only had one trial thus far, the general principles articulated by the SCC in J.F. are more than simply helpful and instructive to me in my deliberation over B.S.’s application before me, they guide me almost completely in my determination of its outcome.

35. As pointed out by Wagner C.J. in J.F.:

[30] While Jordan does not indicate the point in time when an accused must bring a s. 11(b) motion, the Court has nonetheless been clear about how it wishes all participants in the criminal justice system to act: at all stages of the trial process, everyone must take proactive measures to remedy any delay and to ensure that the accused is tried in a timely manner (Jordan, at paras. 137‑39; R. v. Thanabalasingham, 2020 SCC 18, [2020] 2 S.C.R. 413, at para. 9).

36. Further, the Chief Justice explained:

[33] Defence conduct is considered under the Jordan framework, since the delay attributable to the defence is subtracted from the gross total delay (para. 60). Defence delay has two components: (1) delay waived by the defence, and (2) delay caused solely or directly by the defence (Jordan, at paras. 61 and 63; Cody, 2017 SCC 31, at para. 26). Inaction may amount to illegitimate conduct on the part of the defence, because “[i]llegitimacy may extend to omissions as well as acts” (Cody, at para. 33). As this Court said in Cody, the defence may not benefit from its own inaction or lateness in taking action; it must act proactively:

Accused persons must bear in mind that a corollary of the s. 11 (b) right “to be tried within a reasonable time” is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to “actively advanc[e] their clients’ right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and . . . us[e] court time efficiently” (Jordan, at para. 138). [para. 33]

[34] An accused who sees delay lengthening must therefore respond in a proactive manner. Being proactive may mean filing a s. 11(b) motion where the accused believes that their right to be tried within a reasonable time is not being or will not be respected (Jordan, at para. 85). Like any other application made by an accused, a motion of this kind must be brought “reasonably and expeditiously” (para. 85). Lateness in raising delay is contrary to the proper administration of justice, because such a practice serves to waste judicial resources. Indeed, the Jordan framework is specifically designed to eliminate inefficient practices that impact on the justice system (paras. 41 and 116). Bringing a s. 11(b) motion before the end of the trial allows the accused to alert the Crown and the court to their concerns about delay. As a result, all parties can take proactive measures and cooperate to expedite the proceedings.

[35] It is generally recognized that an accused who raises the unreasonableness of delay after trial (R. v. Rabba, 1991 ONCA 7073, 64 C.C.C. (3d) 445 (Ont. C.A.)), and particularly after conviction (R. v. Warring, 2017 ABCA 128, 347 C.C.C. (3d) 391, at para. 11; R. v. C.D., 2014 ABCA 392, 588 A.R. 82), is not acting in a timely manner. In K.G.K., Moldaver J. interpreted the prospective approach adopted in Jordan as “encourag[ing] pre‑trial s. 11 (b) applications” (para. 43 (emphasis added)). The defence is in fact encouraged to act before the start of the trial, since the Jordan framework allows “the parties to know ‘in advance, the bounds of reasonableness so proactive measures can be taken to remedy any delay’” (K.G.K., at para. 43, quoting Jordan, at para. 108 (emphasis in original)).

[36] In short, a duty to act proactively also rests on the accused. As a result, the accused must indicate that their right to be tried within a reasonable time has not been respected and, where the circumstances require, bring a motion for a stay of proceedings in a timely manner. As a general rule, this means before the trial is held. By the time the trial dates are set, the parties are generally in a position to know whether the trial delay will exceed the applicable presumptive ceiling, and the defence can raise any concerns it may have. However, it is not out of the question that, exceptionally, an infringement of the s. 11(b) right will reveal itself only once the trial has begun. In such a case, the accused must also act proactively.

37. The SCC was careful to emphasize how mere silence on the part of the accused does not constitute waiver of his or her s. 11(b) Charter right. As stated by Wagner C.J. at para. 52:

An accused’s silence or inaction cannot in itself give rise to an inference that the accused has waived delay, although it may be a relevant and important factor in the waiver inquiry. This conclusion is an obvious one given the fact that any person charged with an offence has the right to be tried within a reasonable time without having to explicitly state their wish to be protected by this right (Rabba; see also Morin, at p. 802). An accused nonetheless has a duty to raise an infringement of their right to be tried within a reasonable time in a timely manner. At the risk of repeating myself, an accused may not benefit from their own inaction or lateness in taking action. The new framework sanctions an accused’s inaction or lateness in taking action. Inaction may be considered illegitimate conduct, and the delay associated with it may be attributed to the defence when the unreasonableness of delay is being determined (Jordan, at paras. 63, 113 and 121; Cody, at para. 33).

38. Further, at para. 58, the Chief Justice added:

While an accused has no legal obligation to assert their right to be tried within a reasonable time in order for that right to exist (Morin, at p. 802, cited by the Court of Appeal, at para. 60), this does not entitle the accused to do nothing when they believe that their s. 11(b) right is not being or will not be respected. The Court’s teachings are clear on this point: s. 11(b) does not allow an accused to benefit unduly from the lengthening of delay, notwithstanding the fact that it is the Crown that has a constitutional obligation to bring the accused to trial.

39. In R. v. Yizhak, 2022 ONCJ 476, my colleague, Band J. interpreted and synopsized some of these salient principles as follows:

[27] In J.F., supra, the Supreme Court addressed the timing of s. 11(b) applications. While Jordan did not indicate the point in time when a s. 11(b) application must be brought, “the [Supreme] Court has nonetheless been clear about how it wishes all participants in the criminal justice system to act: at all stages of the trial process, everyone must take proactive measures to remedy any delay and to ensure that the accused is tried in a timely manner” (para. 30). When an accused sees delay lengthening, they must “respond in a proactive manner” and bring a motion “reasonably and expeditiously” (para. 34). The Court accepted that “it is not out of the question that exceptionally, an infringement of the s. 11(b) right will reveal itself once the trial has begun” yet, even in such a case, “the accused must also act proactively.” (Para. 36. Emphasis added.) The accused’s duty to act proactively means that they “must indicate that their right to be tried within a reasonable time has not been respected”…. (Ibid.)

40. The facts in Yizhak were similar to those in the case before me. Mr. Yizhak, like B.S., did not bring his s. 11(b) Charter application until after he was found guilty at the conclusion of his trial. Only then did Mr. Yizhak announce his intention to proceed with the application. He did so despite knowing his trial date was set with the assistance of his lawyer on February 21, 2021, and with an anticipated end date of September 9, 2021. His charges were sworn to in the Information upon which he was tried before Band J. on September 25, 2019. Mr. Yizhak, through his counsel, accepted a trial date 17 months past the date the Information was sworn.

41. In B.S.’s case, the delay was even worse when the trial was set for him on November 1, 2022. His first set of charges were already 20 months old by that point (i.e. the sworn date for Info. No. 1 was March 5, 2021). Not a peep was heard from him or his counsel that his trial would take too long if it was not going to end until November 2023, in other words, a further year into the future.

42. Under the circumstances where the delay was certainly not waived by the defence explicitly, but at a minimum, acquiesced to, Band J. went on to dismiss Mr. Yizhak’s s. 11(b) application as follows:

[34] The defence failed to exercise its duty to raise concerns and to act proactively in February 2021, when the bounds of the trial became known. That failure prevented all parties from cooperating and taking steps to remedy the situation. Such inaction constituted illegitimate defence conduct in this case. The accused must not be permitted to run out the clock in silence, and then be rewarded for doing so after trial.

[35] This application should have been brought in the spring of 2021, not after trial when nothing could be done to ameliorate the delay. In the extraordinary circumstances of this case, the defence conduct in regard to this application is fatal because it is contrary to the proper administration of justice.

43. Later, in emphasizing the illegitimacy of the defence inaction, and using it as a basis for a ‘defence caused delay’ deduction under the usual Jordan rubric for calculating net delay, Band J. stated at para. 38:

[A]s the Supreme Court explained at para. 32 of Cody, supra, “[i]rrespective of merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay. (Emphasis added.)

44. In R. v. Kandeh, 2023 ONCJ 252, my colleague, Webber J. was faced with a s. 11(b) Charter application post-conviction as well. Mr. Kandeh, like B.S., was found guilty of serious offences. The findings of guilt following trial were made on July 21, 2022. On October 25, 2022, the day before sentencing was to proceed, the defence filed the application.

45. The defence argued that the Jordan presumptive ceiling of 18 months in provincial court had been exceeded. 22.66 months had elapsed between the swearing of the Information and the submissions of counsel made on the last day of the trial.

46. In stern language, Webber J. summarily dismissed the application as follows:

19 The application was not brought in a timely fashion. It was brought post-conviction. To complicate matters, the trial record is quite literally devoid of any expression of concern on the part of the applicant that delay was or was becoming a problem. While clearly an accused is not permitted to sit on his hands and do or say nothing about accruing delay until the ceiling has been breached, that is exactly what happened here. To be clear, I do not believe this to be a result of any subterfuge on the part of the Defence, but I do conclude that the Defence was quite content with, and at times endorsed, some of the delay that occurred, and that such behaviour amounted to at best a consistent pattern of complacency.

20 I have no reason to believe that a complaint of delay was even on the Applicant's radar until soon before sentencing submissions were to commence, months after convictions had been registered. If it was, he did not say or do anything to communicate as much to the Crown or Court.

21 The recognised problem with this behaviour is that it can understandably lead other players in the case to proceed on the basis that delay was not a concern. Thus, at the very least, the Crown, and for that matter the Court as well, were deprived of any right to proactively address the issue.

47. Webber J. also provided a succinct, but thorough review of the authorities allowing him to arrive at the conclusion he did. He stated:

33 As well, when I was initially asked or originally asked to summarily dismiss the 11(b) application, I did not have the benefit of the supporting jurisprudence that I do now. Firstly, I will refer to the Court of Appeal's decision in R. v. Kazman (2020) O.J. No. 136, Ontario Court of Appeal, there at paragraph 14 the Court wrote:

There can be no doubt that a trial judge has the authority to summarily dismiss motions brought at trial, including s. 11(b) motions. That power is recognized in Rule 34.03 of the Criminal Proceedings Rules for the Superior Court of Justice ...The case law from this court also acknowledges a trial judge's power to summarily dismiss motions. Without that power, trial judges could not properly control the proceedings before them..."

34 Justice Doherty thereafter cites R. v. Imola (2019) ONCA 556 at paragraph 17.

35 The Court also noted, at paragraph 15, that a trial judge, when asked to summarily dismiss a motion, must consider broader administration of justice concerns, including the need to conduct all litigation, including criminal litigation, in a fair, orderly and efficient manner. It falls to trial judges to decide where the interests of justice lie in a specific case.

36 When an 11(b) motion such as the one in this case is brought after a conviction, and the record is all but silent from the Applicant before such date, and thus has not highlighted 11(b) concerns, the administration of justice is done a disservice. The Crown and Court have been deprived their post-Jordan/Cody entitlement to timely notice of such grievance, and as well of their right to attempt to rectify the problem.

37 An untimely 11(b) application brought postconviction does not promote the fair, orderly, or efficient nature of the litigation, and can attract summary dismissal.

38 In R. v. J.F., the Supreme Court noted as follows, paragraph 31:

"The predictability of the new framework makes the parties more accountable and encourages them to be proactive about delay (Jordan, at para. 112; Cody, at para. 36)."

39 The decision goes on at paragraph 34:

"An accused who sees delay lengthening must [I emphasise must] therefore respond in a proactive manner. Being proactive may mean filing a s. 11(b) motion...Like any other application made by an accused, a motion of this kind must be brought 'reasonably and expeditiously'... Lateness in raising delay is contrary to the proper administration of justice, because such a practice serves to waste judicial resources. Indeed, the Jordan framework is specifically designed to eliminate inefficient practices that impact on the justice system... Bringing a s. 11(b) motion before the end of the trial allows the accused to alert the Crown and the court to their concerns about delay. As a result, all parties can take proactive measures and co-operate to expedite the proceedings."

40 The Crown and Court have clearly been deprived of this opportunity by the Applicant's inaction in this case.

41 Paragraph 35:

"It is generally recognized that an accused who raises the unreasonableness of delay after trial (R. v. Rabba, 1991 ONCA 7073, 64 C.C.C. (3d) 445 (Ont. C.A.)), and particularly after conviction (R. v. Warring, 2017 ABCA 128, 347 C.C.C. (3d) 391 ...[that] accused is not acting in a timely manner."

42 The Court emphasised that the accused must bring S.11(b) motions in a timely manner, but perhaps more to the point, the Court stressed that the current 11(b) culture demands timely proactiveness from the accused. It is an obligation that must be satisfied.

43 Obviously, there is nothing about the Applicant's motion here that could possibly satisfy the expectation that such applications be brought in a timely manner, nor that the Applicant displayed even an iota of proactivity.

44 Viewing expectations of the accused from another perspective, the Court noted specifically that an accused is simply not entitled to do nothing in the face of impugned delay. The Court further noted, at paragraph 58, as follows:

"While an accused has no legal obligation to assert their right to be tried within a reasonable time in order for that right to exist...this does not entitle the accused to do nothing when they believe that their s. 11(b) right is not being or will not be respected...s. 11(b) does not allow an accused to benefit unduly from the lengthening of delay..."

45 Contrary to this clearly stated expectation of the Supreme Court of Canada, the Applicant in this case did absolutely nothing about 11(b) until postconviction.

48. As I turn to the conclusion, I want to briefly return to the language of Justice Doherty in Kazman, at paragraph 15, where the Court said:

"When asked to summarily dismiss a motion, a Court must consider broader administration of justice concerns, including the need to conduct all litigation, including criminal litigation, in a fair, orderly, and efficient manner. It falls to trial judges to decide where the interests of justice lie in each specific case."

49. A post-trial S.11(b) application, such as we have in this case, threatens to frustrate each of the broader administration of justice concerns articulated in this passage. I believe that the interests of justice favour summarily dismissing this application.

50. I was, of course, guided by the decisions of the SCC and my colleagues as I come to my own conclusions on the application before me.

Analysis

Do any legitimate circumstances exist for the failure to bring the s. 11(b) Charter Application until more than five months post-verdict (June 12, 2024 – November 20, 2024), thirteen months following the setting of the s. 276 pre-trial application and trial dates (November 1, 2022 – November 27, 2023) and twenty-six months after the Court directed Crown and defence counsel to secure pre-trial application and trial dates (September 15, 2021 – November 27, 2023)?

49. On a careful review of the transcripts, I cannot conceive of a legitimate reason why the defence did not put the Crown and Court on notice of its intention to bring a section 11(b) Charter application before the conclusion of the trial, if this was a legitimate concern for the accused. When the trial dates were finally set on November 1, 2022, the bounds were certainly set, and in large part, adhered to.

50. Additionally, on November 1, 2022 when the s. 276 Code application hearing and trial dates were set, one very good, legitimate reason existed for why trial counsel remained silent as to B.S.’s s. 11(b) Charter rights. He kept getting charged making her task of defending him all the more difficult.

51. Over the span of his accruing charges, B.S.’s trial counsel agreed with Crown counsel that it made sense to have the allegations in Infos. No. 1 and No. 3 tried together. They involved one of the same complainants, the main one, B.S.’s younger cousin, E.W. It was a sensible, fair concession made by trial counsel for B.S. It allowed him to have one trial, not two.

52. B.S.’s counsel on the s. 11(b) Charter application ignores completely the effect B.S.’s accruing charges had on the intricacies of his case.

53. It must be remembered that after B.S. was originally charged on March 5, 2021, he was arrested and charged again on October 29, 2021 with offences involving the same complainant, E.W.

54. On April 13, 2022, he was charged yet a further time with more offences relating to E.W. and another complainant.

55. In an Agreed Statement of Facts filed on the hearing of that application, B.S.’s trial counsel and Crown counsel decided it would be “efficient” to proceed on one replacement Information joining the allegations set out in Infos. No. 1 and No. 3. To do so would save court resources, and the complainant, E.W., would only have to testify once.

56. The consequence of the agreement between counsel meant the trial on the replacement Information would take longer. It would require more witnesses to be called, and more issues to be resolved.

57. I can safely infer that experienced trial counsel, who has appeared before me on many occasions and from whose assistance B.S. greatly benefitted, would have discharged her ethical obligation to share those pros and cons of joinder with her client, B.S.

58. Ultimately, the point is... trial dates were agreed to by Crown and defence over a year into the future beyond their set date on November 1, 2022. The presumptive Jordan ceiling of 18 months had already been exceeded in respect of B.S.’s first set of charges. Yet the defence stood mute on the issue of delay. If the time was ripe to ever complain about that fact the trial would not start until over a year later, it was then and there.

Consequences of the Late s. 11(b) Charter Application

59. In answer to the question posed directly above, in my humble view, I would say the Court and Crown were literally hogtied by the defence when the complaint was only raised at the completion of trial. There were no means left to address the accused’s concern over delay. That ship had veritably sailed.

60. In a case I decided some eighteen months ago, R. v. K.D., 2023 ONCJ 252, I had this to say about the efforts I am prepared to go to in order to offer early trial time to those accused who truly desire it. I wrote:

63. As the local administrative judge, and taking a “bird’s-eye view” I have little hope of ever attempting to meet the demands placed on scarce judicial resources unless I direct my Trial Co-ordinator to double-book, triple-book and quadruple-book trial upon trial, each and every available, Court sitting day. I venture I give up more Chambers days than the vast majority of trial judges in the OCJ simply in an attempt to meet the ever-increasing demands for trial time.

61. I could have and would have given up Chambers days to have B.S.’s trial heard earlier if that is what he actually wanted. My colleague, Richardson J., would have done likewise, if the matter could have been brought on before him more quickly. I have seen him do so on numerous occasions in the past.

62. Later in K.D., I went on to say:

106. K.D.’s case was not an island. It was one of the many demanding the Court’s attention. The Court did what it could.

107. Had defence counsel drawn to the Court’s attention that K.D. was insisting on having his trial completed by April 20, 2022, the date upon which the presumptive ceiling was attained, I have no doubt whatsoever that the Court and the Crown would have made greater efforts to attempt to meet his wish.

108. To the contrary, it is clear to me that counsel for K.D. had his eye on the ball for when his charges would reach their supposed, ‘drop dead’ date. He was looking to use his section 11(b) Charter right as a positive defence. To do so was never the spirit or intent of the accused’s section 11(b) right. As explained by Moldaver J in Jordan:

[21] At the same time, we recognize that some accused persons who are in fact guilty of their charges are content to see their trials delayed for as long as possible. Indeed, there are incentives for them to remain passive in the face of delay. Accused persons may seek to avoid responsibility for their crimes by embracing delay, in the hope that the case against them will fall apart or they will obtain a stay of proceedings. This operates to the detriment of the public and of the system of justice as a whole. Section 11 (b) was not intended to be a sword to frustrate the ends of justice (Morin, at pp. 801-2).

109. While I accept that there were reasons why defence counsel could not have brought the section 11(b) application earlier than he did, given the nature of K.D.’s retainer and the need to seek the approval of Legal Aid Ontario to order transcripts of the proceedings, I find that he could have and should have said more about the intention to bring an 11(b) application before he agreed to seven days of trial in April 2022. On May 21, 2021, he accepted those dates. Further, on June 15, 2021, he was specifically informed that April 19, 20, 21 would be the first three dates reserved for K.D.’s trial. If he was so incensed with those dates being set that far into the future, he ought to have said so unequivocally, forcefully and loudly. That is the type of rancor I expect defence counsel to raise when asserting the s. 11(b) Charter right of a client. They are not to sit on their hands or lay in the weeds.

110. Instead, in this case on June 15, 2021, defence counsel stood mute regarding the proximity of the conclusion date for the trial to the presumptive ceiling. In my view, he ought to have spoken up. He did not.

111. This Court definitely would have done more to bring the trial to its conclusion, if properly placed on notice, that K.D. was insisting on strict adherence to the 18 month presumptive ceiling. Unfortunately, the Court received no clear warning the time allotted for completing the trial was taking too long.

112. If I did not state it plainly enough in K.D., I will now. Defence counsel cannot use s. 11(b) of the Charter like an ace up their sleeve or a secreted dagger under their robes. They cannot behave like a cheater at the poker table or a silent assassin.

113. The time is not to complain when the trial has ended. It is far too late.

114. Like Schreck J. in Europe, supra, at paras. 32–41, I would infer that the entire period:

• a) from when trial dates are set,
• b) to the point the trial is anticipated to end,

is a span of time implicitly waived by the defence. It is, or ought to be, apparent to the defence when trial dates are accepted beyond the Jordan presumptive limits in either provincial or superior court, when the bounds are known without a whisper of objection, it loses its right of complaint over that tract of time.

66. In B.S.’s case, with the assistance of counsel, he set trial dates into the future (i.e. Nov. 1, 2022) knowing his trial would not end for over a year (i.e. anticipated to be Nov. 23, 2023). I find he implicitly waived this period, when neither his counsel, nor he himself chose to voice any opposition to the wait. Alternatively, it must constitute defence caused delay.

Should this s. 11(b) Charter application be summarily dismissed?

67. It should. When one takes a holistic view of what happened in B.S.’s case, the answer is plain. His accruing charges added a layer of complexity to the proceedings. To be clear, none of what he faced in the way of charges involved intense rumination by the Court over complex legal issues. Like so many criminal trials, his turned on issues of credibility and reliability. Now, his new counsel on this application wants those findings brushed aside and his imminent sentencing halted on account of a purported s. 11(b) Charter violation.

68. On my watch, I cannot allow this to occur. I do not want to see, as my colleague Webber J. observed in Kandeh at para. 36, “the administration of justice... done a disservice”. Long ago, the barn doors were opened on this case. The horses were let out. It is far too late now to have them rounded up and put back in their stalls to start the day afresh. To permit the bringing of s. 11(b) Charter applications post-trial, except in rare and exceptional circumstances, condones illegitimate defence conduct.

69. Under the circumstances of this case, I must summarily dismiss this 11(b) Charter application brought by B.S.

Non-Standard or Modified Jordan Calculus

70. In the event I am wrong about my power to summarily dismiss this 11(b) Charter application, I will briefly consider the required Jordan timeline analysis with necessary modifications, as urged upon me by B.S.’s counsel on the application. Clearly, this case does not lend itself well to standard Jordan calculations to determine delay because of the three different sets of charges B.S. faced. Neither Crown nor defence counsel have assisted me with how I am to do the math in such a case.

71. Suffice to say, it is my view the Jordan timelines must be expanded where Crown and defence counsel have agreed, as they did here, that the allegations for the first and third sets of B.S.’s charges ought to be tried in the same proceeding. Given my finding that this application must be summarily dismissed for the reason I have earlier given, I need not turn my mind to exactly how much the timelines ought to be extended.

72. As far as the two prongs of complaint go (Crown and Court delay), as made by defence counsel on this application, I can offer that I am not at all pleased with the amount of time it took for the Crown to disclose the cell phone extractions. Their contents contained critical pieces of evidence, which greatly assisted me in making findings of fact and credibility at his trial. They included key electronic exchanges (e.g. texts and photos) shared between the accused and the complainants. More must be done to speed up this forensic disclosure process.

73. I am given to understand from other cases I have heard that most of these ‘cell phone dump’ requests, as they have colloquially become known, are handled at headquarters for the Ontario Provincial Police in Orillia. These requests end up in a queue to wait for those with the technical expertise and ‘know how’ to extract what is stored in the memories of the various devices they are asked to examine, once they have time to do so.

74. Clearly to my mind, more resources are needed to handle the demands placed on the ‘techies’. Perhaps more staff has to be hired. Or maybe both.

75. The fact is... so many criminal cases now turn on exchanges between the accused and the complainant, often over text, as was the case here. The police and Crown must be ever mindful of Jordan timelines. The delivery of this type of extraction disclosure has to happen far more quickly than it is occurring at present.

76. It took a long time for disclosure to be made by the Crown to the defence of the following items:

• a) initial disclosure on the first set of charges (Mar. 11 – May 18, 2021, 68 days),
• b) cell phone dumps (Dec. 14, 2021 – Mar. 25, 2022, 91 days), and
• c) initial disclosure including cell phone dumps on the third set of charges (Apr. 13 – Aug. 23, 2022, 132 days).

77. I therefore arrive at the sum of 191 days, which I would characterize as Crown delay in getting disclosure out to the defence.

78. Turning my mind to Court delay, the Court took some time, it appears, to provide a JPT date to Crown and defence counsel in the first instance (May 18 – August 13, 2021, 87 days). I offer this explanation as no excuse, but I note that in this period when the Court was emerging from the backlog caused by Covid, our ‘two judge jurisdiction’ could no longer afford ‘burning’ one of its judges by having him do a JPT and having the other do the trial. Justice Richardson and I had to seek outside help from mostly ‘per diem’ judges to handle our JPTs for us. All of our time as local Renfrew County provincial court judges was dedicated to doing trial after trial.

79. There were other delays owing to Court unavailability as well:

• a) May 18 – Aug. 13, 2021 – 87 days (i.e. to obtain a JPT, assuming one was requested by either Crown or defence at the earliest opportunity following the CPT; Crown and defence counsel directed to do certain things, e.g. police to interview secondary witness, Crown to provide position on early resolution offer, defence to confirm whether s. 276 application would be brought), and
• b) Aug. 13 - Sept. 15, 2021 – 33 days (i.e. to obtain 2nd JPT, Crown and defence counsel directed to secure s. 276 application and trial dates which both ignored).

80. I was the judge presiding on September 15, 2021. When I told counsel to secure pre-trial application and trial dates, I expected my direction to be acted upon. It was not. By that point, I was alive to the fact that B.S.’s first set of charges were 194 days, or six and a half months old. I ordered the matter to be moved along. That did not happen.

81. While I appreciate that B.S.’s matter was then complicated by a second set of charges laid against him on October 29, 2021, the problem of delay could have been nipped in the bud and avoided, if counsel had heeded what I told them to do. They did not. Counsel unilaterally took the matter off my radar.

82. More frustrating still is that as early as May 19, 2021, I was expecting counsel to set JPT and trial dates.

83. The sad reality is that after September 15, 2021, B.S.’s charges then went into a churn for an inordinately long period of time, which on my assessment, Crown and defence counsel share equal responsibility for. Ultimately, trial dates were not set until over a year later on November 1, 2022. I will attribute the delay engendered between September 15, 2021 to November 1, 2022 (412 days) as 206 days of defence caused delay, and 206 days as Crown caused delay.

84. I have already found that the period between November 1, 2022, the set date for the trial, and November 23, 2023, the anticipated end date for the trial, (i.e. 388 days) as a period implicitly waived or caused by the defence, when the defence failed to raise any complaint about the time it would take to conclude B.S.’s trial.

85. There was a further delay from November 23, 2023 to January 15, 2024 when the trial did not end on time as expected. I will characterize as Court delay the period of November 23 to December 20, 2023 (27 days).

86. The period of delay between December 20 and January 15, 2024 (26 days) arose due to an exceptional circumstance. Crown counsel fell ill with Covid.

87. Accordingly, under my Jordan calculus, without modification, total delay (sworn date of Info. No. 1, Mar. 5, 2021, to actual end date of trial, January 15, 2024) amounts to 1046 days.

88. Total delay (1046 days) minus defence caused delay (206 days), minus further delay implicitly waived or caused by the defence (388 days), leaves a net delay of 352 days.

89. Net delay (352 days) minus exceptional circumstance/discrete event delay (26 days) equates to 326 days. Those 326 days is just under 11 months on B.S.’s first set of charges. It does not exceed the Jordan presumptive ceiling for provincial court of 18 months. His s. 11(b) Charter application must therefore fail.

Conclusion

90. For the reasons above stated, I must deny the application brought on behalf of B.S. seeking the rare remedy of a stay of proceedings.

91. I find his right under s.11(b) of the Charter to trial within a reasonable time has not been infringed or denied, when all periods of delay are analyzed in accordance with the principles established in both J.F. and Jordan.

DATED: January 15, 2025
March, M.G., J.