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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
Ontario Court of Justice
DATE: 2025-02-21
INFORMATION NUMBER: 21-4016
Between:
His Majesty the King
— AND —
Dennis Rhodes
Before Justice M.K. Wendl
Heard on February 14, 2025
Ruling Released February 21, 2025
E. Quinn — Counsel for the Provincial Crown
S. Camara — Counsel for Dennis Rhodes
Reasons for Decision
WENDL J.:
[1] On November 29, 2024, I found Dennis Rhodes guilty on a multi-count information, including charges of break and enter and sexual assault on two victims. While awaiting sentencing, currently scheduled for March 10, 2025, Mr. Rhodes has brought an application seeking leave to renew his section 11(b) application. To be clear, the impugned delay is not between the verdict and the sentence but the delay in finishing the trial I have already rendered my verdict on.
Analysis
[1] To begin, I rely on the comments of Justice Dunphy:
At this late stage, such an application must at the very least be treated as exceptional, requiring the applicants to demonstrate cogent reasons why it would be in the interests of justice to grant an order permitting the application to be brought.
[2] Next is the history of this proceeding as it relates to the claim for unreasonable delay pursuant to section 11(b).
[3] Mr. Rhodes initially sought permission to bring an 11(b) application 60 days prior to trial as a result of the conflict with the then new Ontario Court of Justice practice direction and rules about the timing of 11(b) applications (4 months v. 60 days). I granted the application.
[4] However, I dismissed that 11(b) application on February 13, 2024, because the transcripts were incomplete.
[5] To ensure proper use of Court time and as a part of my trial management function, when Mr. Rhodes asked if this dismissal was with or without prejudice, I indicated that he would be required to bring an application to the Court before he could renew the 11(b) application.
[6] An application to renew the 11(b) motion was heard on March 28, 2024. That application was only filed on March 27, 2024 and I dismissed it given the proximity to trial, there was insufficient time to hear the application before trial, and that some transcripts were still missing. I also raised concerns that the application to renew was itself only filed the day before.
[7] The trial began on April 17, 2024. Due to Court unavailability on April 30, May 1, 2 and 3, 2024, the matter was adjourned, and the Crown and defence had to obtain new days. Those dates were September 17, 18, 19, October 2, 4 and 15, 2024.
[8] On September 17, 2024, Mr. Rhodes attempted to renew the application for a second time. However, the application was again dismissed because it did not comply with the practice direction insofar as the requirement for the defence to advise of any 11(b) application at the time of setting new dates for trial.
[9] Evidence in the trial finished on October 15, 2024 and the matter was put over to November 7, 2024 for written and further oral submissions.
[10] On November 29, 2024, I found Mr. Rhodes guilty on all counts.
[11] Mr. Rhodes’ submissions for leave to bring a renewed 11(b) this time rely largely on the Supreme Court’s decision in Haevischer. The crux of his submissions is that the 11(b) application is not frivolous and should not be summarily dismissed in the name of efficiency. However, nothing in Mr. Rhodes' written or oral submissions directly address the timing of the application (being after a verdict was rendered) or why this Court should allow a renewed application given the history of this matter. Therefore, I requested case law from the defence on this issue of post-conviction 11(b) applications and I allowed for further submissions on today’s date.
[12] For the following reasons I would dismiss the application to renew his s. 11(b) application.
[13] First, I have concerns that a renewal of the 11(b) application was only raised by email to the trial coordinator on January 28, 2025. On December 5, 2024, when the matter was set for sentencing no mention was made of renewing the 11(b) application. On November 29, 2024 when I rendered the verdict, it was Mr. Rhodes who sought an adjournment to prepare for sentencing. While agreeing to put the matter over to December 5, 2024, I specifically identified the issue of 11(b) in relation to sentencing and the presumptive cap of 5 months. It was in response to this direct question, the question about sentencing delay, not trial delay, that Mr. Rhodes indicated that 11(b) was an issue.
[14] For the sake of specificity, I reference the exchange from November 29, 2024:
THE COURT: Okay. So, next week I’m in Burlington on Tuesday, so December 4th or 5th to be spoken to. Obviously, I’d like to – unless 11(b) is in issue, we have to do it within the timelines set out by the Court of Appeal, I think it’s five months. I’d like to get it done sooner rather than later, but the 4th or the 5th of December, Ms. Camara?
S. CAMARA: Yes, so the 5th is agreeable. Obviously, 11(b) is in issue, but, yeah, we can come back on the 5th to possibly confirm that date.
[15] Again, the court did not take this exchange to raise the 11(b) issue regarding trial delay, it is clear that the Court was referencing the 5 months cap in relation to sentencing delay.
[16] The whole purpose of the practice direction regarding 11(b) applications from the Chief Justice of the Ontario Court of Justice is to ensure that proper notice is given. Proper and timely notice is essential. This cannot be understated. It allows for potential mitigation of 11(b) issues by all parties, including the Crown and Court. It ensures that time is not taken away from other matters to hear an 11(b), and if matters are stayed that the Court time can be backfilled and used efficiently. It is consistent with the direction from the Supreme Court of Canada in Jordan that a change of culture is required. This is why 11(b) dates must be obtained at the time of trial or at the time of adjournment.
[17] Moreover, it is unclear whether this matter would be ready to proceed even if I were to grant the application. At paragraph 36 of Mr. Rhodes’ application, he states:
There are no controversies with respect to the facts and timeline of the matter since February 13, 2024. The parties could very easily provide an agreed statement of facts with respect to the timeline of the matter since February 2024.
[18] This assertion is concerning. While it may be possible to reach an agreed statement of facts, that is not the same as having one in place or even having an agreement in principle with the Crown. In other words, it remains unclear whether Mr. Rhodes has all the necessary materials to proceed. This concern is heightened by the fact that I previously dismissed his first application due to his failure to obtain all the required material.
[19] As the Court of Appeal noted recently in Leonard the burden on the Ontario Court of Justice is heavier than ever.
I am well aware of the heavy workload carried by judges of the Ontario Court of Justice. In recent years that workload has only increased. Amendments to the Criminal Code have resulted in more trials and trials for more serious offences in the OCJ, as well as increased procedural complexity of trials. Layered on top of those challenges is the systemic impact of delays due to the COVID pandemic.
[20] Ultimately, the Court can only meet the increased challenges if materials are properly filed, matters are scheduled appropriately, and the rules are followed.
[21] Regrettably, the history of this case demonstrates a consistent lack of preparedness and failure to comply with the rules. I am not satisfied that allowing a renewed 11(b) after conviction is justified in the circumstances. While I acknowledge the rules are servants and not masters, I again agree with Justice Dunphy:
We shall never succeed in conquering the culture of delay that has infected our criminal justice system by turning a blind eye to clear violation of simple rules whose purpose is to vouchsafe the very right the applications seek to vindicate. Post-verdict s. 11(b) applications ought to occur only in exceptional circumstances and no such circumstances have been alleged or demonstrated.
[22] The application to renew the 11(b) is dismissed.
Released: February 21, 2025
Signed: Justice M.K. Wendl
Footnotes and References
[1] R. v. Charley, 2019 ONCA 726
[2] R. v. Hobeika, 2018 ONSC 85 at para. 2
[3] R. v. Rhodes, 2024 ONCJ 1
[4] R. v. Rhodes, 2024 ONCJ 88
[5] R. v. Samaniego, 2022 SCC 9 at paras. 19-26
[6] R. v. Haevischer, 2023 SCC 11
[7] R. v. Charley, 2019 ONCA 726 at para. 128
[8] R. v. Jordan, 2016 SCC 27
[9] R. v. Allison, 2022 ONCA 329 at paras. 63-66
[10] Rhodes, supra note 3
[11] R. v. Leonard, 2025 ONCA 386 at para. 20
[12] Hobeika, supra note 2 at para. 55