ONTARIO COURT OF JUSTICE
DATE: 2025-02-13
NEWMARKET
BETWEEN:
HIS MAJESTY THE KING
— AND —
MARK HARRIS
RULING ON s 11(b) APPLICATION
Heard: February 13, 2025
Delivered: February 13, 2025
Ms. Alice Pan — counsel for the Crown/Respondent
Mr. Barry Fox — counsel for the defendant/Applicant
KENKEL J.:
[1] Mr. Harris is charged with impaired operation of a conveyance and 80+, operating a conveyance with a blood alcohol level in excess of the legal limit.
[2] The first trial was adjourned at the request of the Crown. The second trial date is in March, just outside the Jordan limit. The Crown submits that the non-attendance of a witness was a discrete event that stopped the delay clock until the next trial date. The defence submits that the delay from September to March was unnecessary despite the problem with the witness. The delay should be attributed to the Crown. The fact that the defence was not available for the first trial date offered doesn’t reasonably convert the few weeks to the second date to defence delay.
[3] This case proceeded with dispatch at every stage. Counsel was retained before the first appearance. By the second appearance disclosure had been reviewed and a case management meeting had been held with the Crown. The matter was in Blitz Trial Scheduling Court less than six weeks from the first appearance. The defence took the first date offered – September 5, 2024 to continue the following day.
[4] On September 5, 2024, the Crown applied without notice for an adjournment of the trial. A civilian witness under subpoena had told the Crown the day before the trial that he was in London, Ontario working on a contract and couldn’t return to Newmarket. The Crown’s request for an adjournment was granted. New trial dates were set that day for March 13 and 14, 2025. One earlier date had been offered (February 20 and 21, 2025) but that one date was not available to the defence. Mr. Fox had other availability but took the next earliest date offered.
[5] I find that the Crown’s adjournment application caused significant delay in this case. There were two days for trial set aside and the Crown had four police officers who did attend. They could have proceeded with those witnesses over the two days scheduled, then scheduled an hour later before the same judge for the missing witness.
[6] The Crown chose instead to start another case and give that priority. That decision was likely based on a careful review of many factors. This ruling is not a criticism of that decision.
[7] Our criminal trial courts in York Region often have four or more trials scheduled for each courtroom. The “stacking” of lists maximizes the efficient use of trial time where so many defendants resolve at the last possible moment despite all efforts to conclude cases earlier in the process. At times, the expected average resolutions do not materialize on a given day and the Crown is faced with difficult choices.
[8] Most of this case could have been done as scheduled. The delay for the one witness to provide evidence related to the identity of the driver would have required an adjournment of a few weeks or months at most. The Crown could have considered applying for the use of remote testimony by Zoom for that witness. Even for an identification witness, remote testimony has proved successful for both parties in many cases. They call it Zoom for a reason.
[9] The resulting delay to March flows from the Crown’s decision to focus on another case. The discrete event – non-attendance of the witness – did not cause the adjournment of the trial to March. I find the Crown is responsible for the resulting delay. The fact that the defence was unavailable for one date offered in the months between September 2024 and March of 2025 does not reasonably relieve the Crown of that responsibility, particularly where the defence took the very next date offered.
[10] When the matter was re-scheduled it was not given priority. It was scheduled outside the Jordan guidelines.
[11] The total delay in this case is 18 months and 4 days to the last day of trial. That exceeds the Jordan limit by 4 days.
[12] The defence has not waived any period of delay. On the contrary they have repeatedly put the Crown and the court on notice that delay was an issue. There was no defence delay.
[13] This case is not complex. There are no exceptional circumstances that justify the delay. Had the trial proceeded as scheduled with the witnesses who did attend the trial the matter would have been completed well before Christmas.
[14] The defence took meaningful steps at every stage to expedite the proceedings. I agree with Mr. Fox that it is rare to complete all case management steps and be in the trial scheduling court within 42 days of the first appearance.
[15] An overall assessment of all of the relevant circumstances shows this case took longer than it should have. I find Mr. Harris’ s 11(b) Charter right to a trial within a reasonable time was breached. The proceedings must be stayed.
Delivered: February 13, 2025.
Justice Joseph F. Kenkel