CITATION: R. v. W.H., 2017 ONSC 5014
COURT FILE NO.: CR-15-30000489-0000
DATE: 20170920
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
W.H.
Defendant/Applicant
COUNSEL: Dimitra Tsagaris and Levi Vandersteen (Articled-Student-at-Law), for the Crown Hilary Dudding, for the Defendant/Applicant
HEARD: Friday, June 2, 2017, at Toronto, Ontario
Michael G. Quigley J.
Reasons for Ruling
Re: Sections 11(b) and 24(1) of the Charter
[1] The Applicant, W.H., stands charged with two counts each of sexually touching a person under the age of 16, inviting a person under the age of 16 to sexual touching, and sexual assault.
[2] The Applicant is alleged to have sexually assaulted his stepdaughter, K.B., numerous times beginning when she was six. The assaults included vaginal penetration and fellatio. K.B. disclosed the assaults to family members when she was eleven. Her grandmother notified the Children’s Aid Society. They contacted the police. The Applicant was arrested and charged on January 17, 2014.
[3] On this application, the Applicant claims that his right to trial within a reasonable time has been breached. The total delay in this case from the date he was charged until his trial is scheduled to conclude on June 23, 2017 will be 41 months and 6 days. The Applicant concedes that at least 8 months and 27 days of this delay is not operative. Consequently, following the new analytical methodology mandated by the Supreme Court of Canada in R. v. Jordan[^1], he contends that there has been 32 months of operative non-defence delay. As such, he claims that his rights under section 11(b) of the Canadian Charter of Rights and Freedoms (“the Charter”) have been violated.
[4] Crown counsel argues that significant portions of these 41 months were caused by two discrete exceptional circumstances, events that required that not only the two preliminary inquiry dates, but also the original trial date had to be vacated. Crown counsel contends that retainer and unavailability issues on the part of the defence caused further delay.
[5] Once those periods of delay are subtracted, as mandated in R. v. Jordan, the Crown contends that the remaining delay in this case is not only well under the Jordan ceiling of 30 months, but also reasonable under a transitional application of the Morin framework. In particular, Crown counsel claims that the “remaining delay” of 27 months and 29 days is presumptively reasonable, that the Applicant has not rebutted the presumption of reasonableness, and that even if the remaining delay exceeds 30 months, it is justified by transitional exceptional circumstances.
[6] In the result, I have found that the total operative delay in this case does not exceed the Jordan threshold. Not only does the total operative delay not exceed the thirty-month Jordan limitation, but the Applicant has not rebutted the presumption of reasonableness of the delay of less than thirty months. It follows that the application is dismissed. There has been no violation of the Applicant’s s. 11(b) Charter rights.
Chronology of actions and dates relating to delay
[7] The Applicant was arrested on January 17, 2014 and the Information was sworn that day. He first appeared in the Ontario Court of Justice in Scarborough on January 20, 2014, assisted by counsel, Mr. Tom Shoniker. However, Mr. Shoniker was not yet retained. Initial disclosure had not yet been put together on that date so the matter was put over to February 27, 2014 for disclosure. Mr. W.H. was released on bail, subject to stringent conditions.
[8] On February 27, 2014, duty counsel assisted Mr. W.H. because he had still not retained counsel. However, he was provided on that day with the initial substantial disclosure package, including fifteen pages of detailed, typed summaries of police interviews with the four civilian witnesses.[^2] The Applicant was on his own that day. Mr. Shoniker did not attend at that time or pick up the initial substantial disclosure package. At Mr. Shoniker’s request, however, duty counsel did adjourn the matter to March 27, 2014 to permit Mr. Shoniker’s retainer to be confirmed.[^3]
[9] Mr. Shoniker attended and assisted the Applicant on March 27, 2014, but he had still not been retained and he would not go on the record as counsel.[^4] The record of that date’s appearance, a month after the last appearance, provides no indication that Mr. Shoniker had by that time either taken delivery of or reviewed the initial disclosure package that had been made available a month earlier. Further, no Crown pre-trial had yet been held. The days’ appearance ended with the court granting Mr. Shoniker’s request for a further adjournment to April 24, 2014 to confirm his retainer.
[10] At the April 24, 2014 appearance, three and a half months after the charges were laid, Mr. Shoniker finally formally went on the record as counsel for Mr. W.H., filed a designation, and acknowledged he had received the initial Crown disclosure package from the Applicant. However, there was further Crown disclosure provided that day. The matter was adjourned for a week to May 2, 2014 for a Crown pre-trial to be held.
[11] On May 2, 2014, Mr. Shoniker attended as retained counsel for Mr. W.H., a judicial pre-trial was scheduled, and the matter was adjourned to the pre-trial date of May 28, 2014.
[12] Regrettably, the previously-scheduled judicial pre-trial was not held because of a miscommunication in the Crown system. Consequently, Mr. Shoniker and the assigned Crown at that time, James Dunda, addressed the Court on May 28, 2014, and adjourned the matter for a further month to June 27, 2014 to reschedule the judicial pre-trial.
[13] On June 27, 2014, Mr. Shoniker appeared for the Applicant and he conducted a brief pre-trial with Mr. Dunda, who was in bail court that day, but the judicial pre-trial could not be accommodated and so was again re-scheduled for July 17, 2014 and adjourned to that date.
[14] A judicial pre-trial was finally commenced on July 17, 2014, but it did not conclude that day, so Mr. Shoniker scheduled a continuance of that pre-trial for August 13, 2014. On July 17, Justice Bloomenfeld asked Mr. Shoniker “[w]hat is supposed to happen in court on August 13th?” Mr. Shoniker replied, “[w]e are either going to have a resolution position that is agreeable to the defence, which is highly unlikely, or we will be setting a date for a preliminary inquiry.”[^5] Justice Bloomenfeld responded that “[h]ighly unlikely doesn’t sound very likely to me.” Mr. Shoniker replied “No, it’s not.”[^6] The matter was adjourned to August 13, 2014.
[15] When the matter returned on August 13, 2014, the continuing pre-trial was held before Justice Feldman and a preliminary inquiry was scheduled to begin on March 10, 2015. That was the earliest set of dates offered by the trial co-coordinator. Defence counsel accepted that date, but if he had earlier availability, he did not put it on the record. A preliminary inquiry confirmation date was scheduled for October 24, 2014.
[16] By October 24, 2014, Assistant Crown Attorney Eadit Rokach had been assigned as Crown counsel. At Mr. Shoniker’s request, a further judicial pre-trial was scheduled for November 12, 2014. By that time, the Crown had disclosed the audio and video statements of all anticipated witnesses.
[17] By the time the November 12 appearance took place, Assistant Crown Attorney Jackie Garrity has been assigned as Crown counsel. The parties advised the Court that day that they wished to schedule a further judicial pre-trial to “go over some old ground and make sure that we are all on the same page.”[^7] Ms. Garrity had provided the Assistant Crown Attorney in set-date court with her availability for that judicial pre-trial. Mr. Shoniker attended on the Trial Co-ordinator and attempted to schedule that further judicial pre-trial, but the matter was adjourned to November 17, 2014 to confirm that pre-trial.
[18] When he appeared on November 17, 2014, Mr. Shoniker advised the Court that the parties were scheduling a further additional pre-trial to resolve “some outstanding disclosure issues” and that “there also might be a third-party records application.”[^8] Ms. Kennedy appeared for the Crown. She advised that the telephone records, which Mr. Shoniker sought in the potential third-party records application, were in Ms. Garrity’s possession, and that she was in the process of vetting them and expected that they would be disclosed in short order.[^9] The matter was held down. Ms. Garrity then attended herself and scheduled the further judicial pre-trial for January 19, 2015. The matter was adjourned to that date.
[19] By the time the matter returned on January 19, 2015, one full year after the charges were laid, further disclosure had been provided to the defence, but the remaining outstanding disclosure was described as “very small bits and pieces,” which the parties did not believe would be useful for the preliminary inquiry.[^10] Justice Feldman conducted a further judicial pre-trial that day which resulted in the parties scheduling a third preliminary inquiry date for March 30, 2015. The matter was adjourned to the first preliminary inquiry date on March 10, 2015.
[20] On March 10, 2015, Deputy Crown Attorney Michal Sokolski appeared on behalf of the Crown. By that time, Justice Kelly had been assigned to preside over the preliminary inquiry. Although he was not yet formally seized of the matter, he had been administratively committed to preside, and his schedule altered given that he had been assigned to be the presiding judge.
[21] It was then that the first unfortunate and unexpected event occurred. Ms. Garrity was unable to attend the first two days of the preliminary inquiry scheduled for March 10 and 11, 2015 because of an unforeseen “personal emergency.”[^11] She advised Mr. Shoniker of that emergency the preceding afternoon. Mr. Sokolski described the adjournment request as a “mutual adjournment request,”[^12] and advised the Court that the Crown’s preference was to have the matter adjourned to March 30, 2015 when Ms. Garrity could continue. However, importantly, Mr. Sokolski also confirmed that if the Court was not prepared to adjourn the matter, the Crown “will make efforts to have the matter go.”[^13]
[22] Nevertheless, Mr. Shoniker clarified that day that the adjournment request was ‘mutual’, that he was not opposing it, and that he had told Ms. Garrity that he “would have no difficulty in proceeding with the matter on the 30th.”[^14] Specifically, and to his credit, he stated that:
I respect the fact that Ms. Garrity has a situation such that she is unable to attend, and I am not going to dress up the record trying to make the most of a difficult situation for a colleague.[^15]
He went on to state that he could not “imagine much will turn on just this adjournment to the 30th [of March].”[^16] He proposed to address scheduling additional preliminary inquiry dates once Ms. Garrity returned.[^17]
[23] The matter returned on March 30, 2015 and the preliminary inquiry commenced before Justice Kelly that day. Further preliminary inquiry dates were scheduled for May 27, 2015 and June 24, 2015 in the child-friendly courtroom. Importantly, while it is not known whether other dates might have been provided in other courtrooms, the need for a child-friendly courtroom for this matter and the availability of that courtroom itself may have contributed in a lesser way to the total delay.
[24] In any event, the preliminary inquiry continued on May 27, 2015. Justice Kelly was confident that the preliminary inquiry would conclude on the next following date “subject to cross-examination.”[^18] Both Ms. Garrity and Mr. Shoniker agreed with that estimate. However, for the first time, Mr. Shoniker also advised the Court of his intention to seek a bail variation at the conclusion of the preliminary inquiry on the next following date.[^19]
[25] Ms. Garrity responded with some concern. She advised the Court that, because of the ongoing family court matters involving Mr. W.H. and his spouse and children, one of whom is the alleged victim, a variation of his bail terms might “be a more complicated issue.” She specifically asked Mr. Shoniker to speak with her before the next date regarding any proposed bail variation for the Applicant.[^20]
[26] When the preliminary inquiry returned on June 24, 2015, only that one day was available. Ms. Garrity completed her direct examination of the final witness before lunch, but Mr. Shoniker then advised the Court that, “I think I’ll be at least a day, Your Honour, I may need another.”[^21] Over either the lunch break or the afternoon recess, Ms. Garrity and Mr. Shoniker attended the Trial Co-ordinator and scheduled a further continuation date.
[27] As the court day wound to a close on June 24, 2015, at 4:23 p.m., Mr. Shoniker advised the Court that he probably had “another 45 minutes to an hour of cross-examination of the witnesses”[^22], but as well, he announced that yet another full day would be required to accommodate the Applicant’s bail variation request.[^23] As a result, the continuation date was scheduled for August 21, 2015. It is important to the allocation of delay in this case, as I will explain below, that the Court offered dates on June 26 or June 30, 2015. The Crown was available for those dates, but defence counsel was not available.[^24] August 21 was set as the return date but there is no evidence of whether Mr. Shoniker had availability before that date, apart from the late June dates on which he was not available.
[28] All of the parties expected that a full court day would be available on August 21, 2015 when the preliminary inquiry was scheduled to return, but a further unforeseen circumstance arose. Due to the death of a court staff member at the Toronto East Courthouse, all courts in that location were closed that day until 2:15 p.m. to permit staff to attend the funeral.[^25] Nevertheless, once the proceedings got going, Ms. Garrity remained hopeful that the preliminary inquiry would be completed by the end of the day.[^26] Seemingly echoing that thinking, at least at that time, Mr. Shoniker advised the Court that he “can’t imagine” there will be submissions on committal, which he did not think would be “anything more than just an administrative necessity.”[^27]
[29] At the same time, despite the difficulties posed by the nature and source of the charges and Mr. W.H.’s restrictions from having contact with his own children under Family Court orders, Mr. Shoniker advised the Court that the Applicant would request that Justice Kelly conduct a bail variation to allow Mr. W.H. to have contact with children during the course of his employment at a daycare centre.[^28] Obviously, in the context of the nature of the charges against the accused, the scope of that bail variation request was going to take a considerable amount of time to be heard.
[30] Nonetheless, with no prior notice or warning relative to the time demands that he foresaw, Mr. Shoniker advised the Court that day that he “would be embarking on what would be essentially a full hearing with respect to bail and I don’t want to minimize the length of time it will take. I will call at least one witness.”[^29] This required the matter to be adjourned once again, this time to August 26th to hear the Applicant’s bail variation request.
[31] On August 26, 2015, Justice Kelly heard Mr. W.H.’s bail variation request, but he denied his request to delete conditions that prohibited him from being in the direct presence of children under the age of 16.[^30] At the same time, he committed the Applicant to stand trial on all of the charges in the Information[^31], and he remanded Mr. W.H. to appear in the Superior Court of Justice on September 24, 2015.
[32] Mr. W.H. made his first appearance at the Superior Court of Justice on September 24, 2015. By then, however, he had discharged Mr. Shoniker as counsel and instead Mr. Alan Glass went on the record as new counsel. A Superior Court judicial pre-trial was scheduled for October 16, 2015. Justice Croll conducted that pre-trial on October 16, 2015. She scheduled a three-week jury trial to commence on November 7, 2016. The Court offered dates beginning on October 3and October 10 of 2016. The Crown was available for those earlier dates but the defence was not.[^32]
[33] A further judicial pre-trial was scheduled for January 8, 2016 and the matter was adjourned to that date. On January 8, 2016, Justice Speyer held a continuing judicial pre-trial. Mr. Glass advised at that time that he anticipated he would be bringing a third-party records application. The matter was adjourned to February 1, 2016. On that date, the Applicant re-elected trial by judge-alone and the trial estimate was shortened to two weeks. The matter was adjourned to May 10, 2015 to subpoena the third-party records and schedule the motion.
[34] Mr. Glass had subpoenaed the relevant psychotherapy records by May 10, 2016, but he had not yet filed the third-party records application. Nevertheless, Counsel for the complainant was appointed in connection with that application, and the matter was adjourned to be heard on August 3, 2016. In a foreshadowing of what would occur, Mr. Glass did not appear that day. Instead Mr. McAdam appeared as his agent, but Mr. W.H. also abandoned his third-party records application, and the trial date was confirmed beginning on November 7, 2016.
[35] Then, regrettably, calamity struck again. Mr. Glass notified Ms. Garrity via voicemail and email on October 2, 2016 that he would be applying to be removed from the record owing to serious personal illness.[^33] Ms. Garrity replied to Mr. Glass, thanking him for providing her notice. However, she also requested that “if you are likely to be removed from the record, please advise Mr. W.H. to seek new counsel ASAP as I will be seeking to obtain the earliest possible trial date for this matter and would like to set that date when we speak to the matter at the Superior Court.”[^34]
[36] While it is not part of the chronology, I note that the Applicant concedes on this application that all delay subsequent to this date is either defence delay or delay owing to discrete exceptional circumstances.[^35]
[37] Returning to the chronology, on October 5, 2016 Mr. Glass filed notice of an application to be removed as counsel of record because the Applicant “lacks confidence in his ability to continue providing competent service to the Applicant due to physical symptoms having arisen which are incompatible with the proper delivery of those services.”[^36]
[38] The next appearance was on October 7, 2016, but it appears to have been put on the docket in error. Assistant Crown Attorney, Rosemarie Juginovic, appeared on behalf of the Crown and advised the Court that Mr. Glass was applying to be removed from the record. Mr. Glass’ request to be removed as counsel of record was granted on October 11, 2016.
[39] Having regard to his health issues, Mr. Glass’s application to be removed from the record was granted that day, and appropriately, Ms. Garrity did not oppose the application. Nevertheless, she did state that “this delay is causing great concern to the complainants” and “the Crown is very anxious to set a new date as quickly as possible.”[^37] As well, by that date, the Applicant had been committed to stand trial on other charges, but Ms. Garrity advised that the Crown was prepared to vacate the other matter to ensure an early date would remain available for these charges.[^38]
[40] By October 11, Mr. Glass had provided the Applicant with contact information for a new lawyer, but the Applicant had not yet contacted him/her.[^39] The original trial dates had to be vacated and the matter was adjourned to October 21, 2016, when the Applicant was scheduled to appear in practice court on the other charges. The Court advised the Applicant that he should attempt to retain counsel for that date to keep the case moving.[^40] By October 21, however, the Applicant had still not retained new counsel so the matter was adjourned to November 4, 2016 for the Applicant to retain counsel.
[41] On November 4, Ms. Dudding appeared and told the Court that she had agreed to represent the Applicant, but that she could not yet go on the record. The matter was adjourned for another judicial pre-trial scheduled for December 1, 2016 and to be spoken to thereafter.
[42] Ms. Dudding finally went on the record as the third counsel for Mr. W.H. on December 1, 2016. A further judicial pre-trial was held with Justice Croll. Ms. Juginovic advised the Court that the Applicant was bringing a severance application and that the Crown would be bringing a similar fact evidence application. Although there had not yet been any whiff of the Applicant bringing a s.11(b) Charter application by that time, being “cognizant of Jordan”, Ms. Juginovic was content that the two applications be heard on the same date.[^41] Due to retaining new counsel, the Applicant was not in a position to re-elect his mode of trial, so the matter was adjourned to December 5, 2016 to confirm the date for the two pre-trial applications to be heard.
[43] On December 5, 2016, Ms. Lao-Po-Hung appeared as agent for Ms. Dudding and filed a designation. A three-week jury trial was scheduled to commence on October 2, 2017. Pre-trial applications were scheduled to be heard on March 3, 2017. The trial co-coordinator offered earlier dates for the pre-trial motions in February of 2017. The Crown was available for those earlier dates, but the defence was not.[^42]
[44] By January 11, 2017, counsel had obtained earlier trial dates for three weeks beginning on May 23, 2017. However, Ms. Dudding then subsequently advised the Crown that she was unavailable for a portion of those three dates, and as a result, the current trial dates were scheduled, beginning on June 12, 2017. On March 3, 2017, the Crown conceded the severance issue and the matter was adjourned to March 31, 2017 for the new indictment on the other set of charges to be brought before the Court. On that date, the Crown withdrew the indictment with both sets of charges on it and the Applicant provided notice that he would re-elect to proceed on a judge-alone trial in this matter. The trial estimate on this new indictment was abridged to two weeks and a trial confirmation date was scheduled for May 1, 2017.
[45] Finally, on May 1, 2017 the Applicant formally re-elected his mode of trial, the trial date was confirmed, and he filed this s. 11(b) application. The trial was scheduled to commence on June 12, 2017 and it was to be completed by June 23, 2017.
[46] Against this chronology, the total delay from the date the Information was laid to the anticipated end of trial is 41 months and 6 days.
Framework for Analysis
[47] In R. v. Jordan, the Supreme Court established a new framework for determining whether there has been a breach of an accused’s s. 11(b) Charter right to be tried within a reasonable period of time. Under the Jordan framework, all delay not waived or caused by the defence is to be categorized as “non-defence delay.” For a case like this, being tried in the Superior Court after a preliminary inquiry, if the total non-defence delay exceeds the ceiling of thirty months, delay owing to “reasonably unforeseen or unforeseeable” discrete events is further subtracted, resulting in the amount of “remaining delay.” [^43]
[48] If the remaining delay falls below the ceiling, it will be reasonable unless the Applicant demonstrates this is one of the “clear cases” where the defence took “meaningful and sustained steps” to expedite the proceedings, but the case nevertheless took “markedly longer” than it reasonably should have. If the remaining delay exceeds the ceiling, the Applicant’s s. 11(b) Charter rights have been breached unless the Crown justifies the delay based on “exceptional circumstances.”[^44]
[49] Under Jordan, the steps for determining whether the delay in a given case is presumptively reasonable are as follows:
(i) First, calculate the total delay, which is the period extending from the laying of charges to the actual or anticipated end of the accused’s trial. Crown counsel acknowledges that the period of total delay amounts to 41 months and 6 days. This obviously exceeds the Jordan threshold.
(ii) Defence delay is then subtracted from the total delay, and the net remaining delay is what is categorized as non-defence delay. Crown counsel claims that the defence delay in this case amounts to 5 months and 19 days. In contrast, defence counsel claims that there are only 35 days, or roughly one month, of defence delay in this case. At this stage of the analysis, it is the Applicant who bears the onus of persuasion.
(iii) For a matter like this being tried in the Superior Court, the total amount of non-defence or net delay is then compared to the presumptive ceiling of 30 months. In Crown counsel’s submissions, the total non-defence delay is alleged to be 35 months and 17 days. In the submission of defence counsel, the net delay totals 40 months and one week.
(iv) In a case like this where both parties agree that the non-defence delay exceeds the presumptive 30-month ceiling, the burden of persuasion shifts to the respondent Crown. However, before the Crown is required to rebut the reasonableness of the period of non-defence delay, the Jordan formula also calls for the non-defence delay to be reduced by delay owing to discrete and extraordinary events.
(v) Both parties agree in this case that there were two significant periods of discrete event delay. In this case, Crown counsel claims that the amount of discrete and extraordinary delay totals 7 months and 18 days. Because of a differing characterization of the delay components, defence counsel is actually more generous in her estimation and calculates the amount of discrete or extraordinary event delay at 246 days, that is, 8 months and 6 days.
[50] Finally, I am called upon to compare the remaining operative delay to the presumptive thirty-month ceiling established in Jordan. If the remaining delay does not exceed the Jordan ceiling, the delay is presumptively reasonable. If the remaining delay does exceed the Jordan ceiling, the delay is unconstitutional and the charges must be stayed.[^45]
Analysis
(i) Defence delay
[51] Against this framework, it is plain that the result in this case will focus on the allegations of defence delay. Defence counsel claims that after reducing total net delay by her claim of 35 days or one month of admitted defence delay, the net remaining operative delay is 32 months. Since that is two months beyond the presumptive Jordan ceiling, the Applicant claims the delay is unconstitutional and that the charges must be stayed. However, Crown counsel contends that when the delay she attributes to the defence is applied to reduce total operative delay, the remaining delay is only 27 months and 29 days, two months inside of the Jordan limit and as such, that the delay is presumptively reasonable and the Applicant’s s. 11(b) Charter application must be dismissed.
[52] Defence delay consists of two components: periods that are waived by the defence and periods of delay caused solely by the conduct of the defence.[^46] In this case, the Crown has accepted that the Applicant has not “waived” any periods of delay.
[53] The controlling jurisprudence establishes that defence delay is delay “caused solely by the conduct of the defence.” One example of defence delay explicitly recognized by the majority in Jordan is “the period of delay resulting” from instances where “the court and Crown are ready to proceed, but the defence is not.” The majority stated that these periods “will be attributed to the defence.” This bright-line rule is meant to “discourage unnecessary inquiries into defence counsel availability at each appearance.”
[54] In this case, there are four distinct periods of time where the Court and Crown were ready to proceed, but where Crown counsel contends that the defence was not ready to proceed. These are the core delay issues in this proceeding:
(i) The Crown contends that the defence caused 1 month and 28 days of delay between February 27, 2014 and April 24, 2014, when substantial initial disclosure had been provided, but a Crown pre-trial could not be held because of unexplained delay in counsel, Mr. Shoniker, being retained. This situation was exacerbated because plainly, as the transcripts show, he had not yet reviewed the disclosure;
(ii) The Crown contends that the defence caused a further 2 months of delay from June 26, 2015 to August 26, 2015 because Mr. Shoniker was unavailable to continue the preliminary inquiry;
(iii) The Crown contends that the defence caused a further 1 month and 4 days of delay from October 14, 2016 to November 18, 2016 because Mr. Glass was unavailable to begin the trial; and finally
(iv) The Crown contends that the defence caused a further 17 days of delay from June 6, 2017 to June 23, 2017 because Ms. Dudding was unavailable to begin the two-week trial on May 23, 2017.
[55] As such, looking at the circumstances as a whole, Crown counsel argues that the total defence delay that must be subtracted under Jordan[^47]from the total non-operative delay totals 5 months and 19 days. Each of these periods is examined in the paragraphs that follow.
[56] The Crown contends that the first alleged period of defence delay of 1 month and 28 days occurred between February 27, 2014 and April 24, 2014. This was the period of time between the Applicant’s second appearance at the Ontario Court of Justice and the day on which Mr. Shoniker went on the record and adjourned the matter to conduct a Crown pre-trial. It is alleged to constitute defence delay because the Court and Crown were ready to proceed to the Crown pre-trial stage much earlier, but because of retainer issues, the defence was not. In my view, the transcripts plainly support the Crown’s position relative to this period.
[57] Although he was not yet retained, Mr. Shoniker did assist the Applicant on his first appearance on January 20, 2014, but he was not even present for the second appearance on February 27, 2014.[^48] Yet on that date, the Crown provided the Applicant with a substantial initial disclosure package. It included 15 pages of detailed, type-written summaries of interviews conducted with all four civilian witnesses. Then, a full month passed before the third appearance on March 27, 2014. Again, Mr. Shoniker assisted, but he had still not been retained, he was not prepared to go on the record, and he did not appear to have reviewed the initial disclosure package.
[58] The Applicant did not formally retain Mr. Shoniker until his fourth appearance on April 24, 2014, but on that day, Mr. Shoniker requested an adjournment to conduct a Crown pre-trial, so further delay inevitably resulted. The Crown pre-trial was ultimately held before the Applicant’s fifth appearance.[^49]
[59] The record shows that the Crown had been prepared to conduct a Crown pre-trial as early as February 27, 2014, and the initial substantial disclosure package arguably contained more than sufficient information for the defence to do so, yet a Crown pre-trial was not conducted until well after the Applicant’s fourth appearance on April 24, 2014. In my view, the sole cause of this delay was the fact that the Applicant had not yet retained Mr. Shoniker, who was obviously not willing to conduct a pre-trial before his retainer arrangements were perfected. This caused 1 month and 28 days of delay in this matter, and in my view, this delay can only be attributed to the defence.
[60] The second important period of delay in this case involves the two-month period between June 26, and August 26, 2015. This is the period between the day on which the preliminary inquiry would have concluded if Mr. Shoniker had been able to accept the final continuation date offered by the Trial Co-ordinator on June 24, 2015 (i.e. June 26, 2015) and the date on which the preliminary inquiry ultimately concluded (i.e. August 26, 2015). During this period of time, it is plain on the record that the Court and Crown were ready to proceed with the preliminary inquiry, but, because of the unavailability of counsel, the defence was not.[^50] As such, Crown counsel argues the entire period should be attributed to defence delay.
[61] Obviously, both Crown and defence counsel had worked together to schedule these matters and the amount of time they would consume when the initial dates for the preliminary inquiry were scheduled. However, it was only on June 24, 2015, the third day of the preliminary inquiry, when Mr. Shoniker advised the Court for the first time that he would require a fourth day to complete the “last segment” of cross-examination and to request a variation of Mr. W.H.’s conditions of bail.
[62] The Trial Co-ordinator’s Office offered continuation dates on June 26 and June 30, 2015, but Mr. Shoniker was not available on those dates. Nevertheless, defence counsel on this application chooses not to attribute the resulting delay to the defence because in her submission, “there is no indication on the record whether the Crown would have been available on those dates.”[^51]
[63] This position is unsupportable on the record. The record shows that the Crown was available to proceed on both June 26 and June 30, 2015. This is evident from a plain reading of the transcript, in which Ms. Garrity notified Justice Kelly that the Trial Co-ordinator offered those dates and that Mr. Shoniker was not available. The very reason that Ms. Garrity would have recorded those dates was obviously because the Crown was available. Common sense and experience in practice court shows that Ms. Garrity would not have and would have had no reason to make the Court aware of dates on which neither party was available.
[64] Further, the Verification of Trial Date Provided by Trial Co-ordinator’s Office form filled out by the Trial Co-ordinator on that date indicates that the Crown was available to proceed on both of the dates offered. There is no indication of defence unavailability or any reasons for unavailability on the part of the defence. [^52] As such, Crown counsel contends that the 2-month delay that resulted was caused solely by the defence.
[65] In my view, however, it would be excessively harsh to allocate the entire two months of delay to the defence. I accept that the source of the delay was the strategic decisions made by Mr. Shoniker to add a bail variation hearing into the preliminary inquiry mix, a defence decision which necessarily meant that the already scheduled dates would be inadequate to complete all of the remaining work that was required, but this does not mean that the entirety of that period should be blamed on the defence.
[66] The Trial Co-ordinator’s Office had offered continuation dates on June 26 and June 30, 2015. Crown counsel was available on those dates but Mr. Shoniker was not. However, the case law also shows that defence cannot be expected to have every possible date available just because the Court and Crown have availability. Apropos of this point, although decided under the Morin framework that is no longer operative, except transitionally, see: R. v. Tran[^53] and R. v. Lahiry.[^54]
[67] It may well be that Mr. Shoniker was unavailable on the two dates offered by the Court during which the Crown was available, but I find it difficult to imagine, given that only one further day of court time was required, that defence counsel would not have been able to find one available day during the two-month period. However, it is not known when he had availability, other than he was not available on the two offered dates. Neither is it known whether there were dates earlier than the August 26 date when one day of court time could have been found when all parties were available. Under these circumstances, in my view, the fairest way to allocate this two-month time period is to allocate one month to defence delay, and consider one month to be operative delay.[^55] It could also be, given the particular circumstances, that the one month I characterize as operative delay should properly be treated as extraordinary or discrete delay, but in the end, as these reasons and the final calculation shows, it does not affect the final outcome.
[68] The third period of delay amounted to one month and four days and ran from October 14 to November 18, 2016. This is the period between the day on which the trial would have concluded if Mr. Glass had accepted the earliest trial dates offered by the Trial Co-ordinator at the Superior Court of Justice on October 16, 2015 (October 14, 2016) and the date on which the trial would have concluded if Mr. Glass had not been removed from the record (November 18, 2016). During this period, the court and Crown were ready to proceed, but, because of the unavailability of defence counsel, the matter could not proceed.[^56]
[69] This is plainly defence delay, and indeed I note that the Applicant concedes on this application that this period of delay was caused solely by the defence, although she has calculated it slightly differently, from the beginning-of-trial-date to end-of-trial-date. Regardless of that minor difference, I accept and find that this period of one month and four days is to be characterized as defence delay.
[70] The final period of alleged defence delay is the 17-day period from June 6 to June 23, 2017. This is the period from the day on which trial would have concluded if Ms. Dudding had been able to accept the earliest date of June 6, 2017 that was offered by the Trial Co-ordinator on January 11, 2017, and the anticipated conclusion of the trial on June 23, 2017. During this period of time, the Court and Crown were ready to proceed, but because of the unavailability of counsel, the defence was not.[^57]
[71] It should be noted that the defence concedes that this period is not operative delay, but that is because she claims it is also attributable to discrete exceptional circumstances. Further to this point, this period of time is also subsumed in the discussion that follows about delay attributable to discrete events relative to the period from November 18, 2016 to June 6, 2017. In the result, while it could be categorized as defence delay, I have chosen to subsume this time in the period of delay attributable to the second extraordinary event, the need for Mr. Glass to be removed from the record. It strikes me as more properly being an incident and consequence of that delay than defence delay in the strict sense, but it matters not relative to the final result.
(i) Delay attributable to discrete and extraordinary events
[72] Arguably, there is little need here to analyze the delay due to discrete and extraordinary events, other than to record the sources of that delay. That follows because both parties appeared to agree at the hearing, even if not in their initial written materials, that these time components do constitute delay due to discrete and extraordinary events. It consisted of two components. The first was the period from May 27 to June 26, 2015. This was the period where the matter could not proceed owing to the personal family emergency that caused Ms. Garrity, the assigned Crown, to be unable to complete the first two days of the preliminary inquiry which resulted in it being adjourned to commence on June 24, 2015. The second period of extraordinary delay encompassed the period from November 28, 2016 to June 23, 2017, which resulted from prior defence counsel, Mr. Glass, being removed from the record owing to significant health issues that prevented him from continuing to act for the accused.
[73] However, insofar as the burden of persuasion to characterize these periods rests on the Crown, I think it appropriate to at least record some further detail of these events as they flavour the adjacent periods of time. This is also appropriate because in instances where the non-defence delay exceeds the relevant ceiling, it falls to the Crown to show that the delay is reasonable because of exceptional circumstances. Although the circumstances need not be “rare or entirely uncommon”, they must “lie outside the Crown’s control” in that they are reasonably unforeseen or reasonably unavoidable. Further, the Crown must be unable to reasonably remedy the delays emanating from those circumstances once they arise. The Crown needs only to show that it took reasonable steps to avoid and address the problem where possible to have done so. It need not prove that the steps taken were ultimately successful.[^58]
[74] One category of exceptional circumstances is discrete events. The list of discrete exceptional events remains open and whether a particular event constitutes an exceptional circumstance “will depend on the trial judge’s good sense and experience.”[^59] Generally, however, and not surprisingly, family and medical emergencies on the part of counsel will qualify although there will remain some obligation on the Crown and the courts to prioritize cases that “go off the rails” in this manner. However, where the Crown has made reasonable efforts in this regard, the resultant delay is properly deducted from the remaining delay.
[75] The first exceptional event delay here amounted to 30 days and arose when Ms. Garrity experienced a family emergency. It commenced on May 27, 2015, the day on which a four-day preliminary inquiry would have concluded absent Ms. Garrity’s family emergency and in my view ended on the day on which it would have concluded if Mr. Shoniker had been able to accept the earliest continuation date offered by the Trial Co-ordinator and that was available to the Crown on June 24, 2015. Both parties seemed to agree on this period.
[76] However, in her factum as initially filed, the defence not only extended this period of delay to 2 months and 25 days between May 27 and August 21, 2015, but also took the view that “regardless of the category, this period should not be deducted from the overall delay.” I disagree with that submission because it includes the period from June 26, 2015 to August 26, 2015 that in my view is more properly considered relative to defence delay, which under Jordan, would be subtracted before delay owing to discrete exceptional circumstances is calculated.
[77] I accept the Crown’s argument that the defence’s assertion that the duration of this period is 2 months and 25 days of discrete delay stems from two miscalculations. First, the Applicant did not attribute any defence delay to Mr. Shoniker’s unavailability to proceed on June 26, 2015 because “there is no indication on the record whether the Crown would have been available” on June 26 and June 30, 2015. As I concluded above, this submission was without merit. The plain wording of the transcript and the Trial Verification Form show that the Crown was prepared to proceed on those dates. Second, the defence has mistakenly stated that the accused was committed on August 21, rather than the actual date of August 26, 2015.[^60]
[78] The 30 days of delay resulting from Ms. Garrity’s family emergency is properly deducted from the remaining delay. The majority in Jordan stated that, “the period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded.” The caveat to this rule is that “any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted.” An unforeseen family emergency is one example of a discrete exceptional event explicitly contemplated by the majority in Jordan. The sole issue is therefore whether the Crown and system failed to take reasonable steps that could have mitigated any of the resulting 30 days of delay.[^61]
[79] Yet the record is plain on the steps that were taken. Once her family emergency arose, Ms. Garrity re-scheduled the continuation dates on March 30, 2015 and accepted all of the earliest dates offered by the court. In addition, the Crown went a step further as evidenced by Mr. Sokolski’s willingness to make efforts to have the preliminary inquiry proceed expeditiously and without undue delay if the Crown’s adjournment request was denied. In the circumstances, in my view, these steps were reasonable.
[80] The defence initially did not deduct any delay as a result of Ms. Garrity’s family emergency. She conceded on the hearing that 28 days should be deducted, but the thrust of her position appears to be that the Crown could reasonably have mitigated all of the resulting delay. This would have resulted in the preliminary inquiry having been completed on or before May 27, 2015. Effectively, the Applicant’s position was that, if Ms. Garrity and Mr. Shoniker had scheduled the continuing preliminary inquiry dates at some point between March 10 and March 30, 2015, the preliminary inquiry would have concluded on or before May 27, 2015, but I reject this position for the reasons outlined in the Crown’s argument.
[81] First, this position fails to acknowledge the scheduling restraints that were present in the circumstances. As of March 10, 2015, Kelly J. was seized of the matter, if not formally, at least from an administrative standpoint. Kelly J. had been assigned to the matter in advance of March 10, 2015. As such, this was not a case where any earlier dates for the preliminary inquiry would have been acceptable. Not only did any continuation dates have to fit in with Kelly J.’s schedule, but in addition the nature of the charges required a child-friendly courtroom. Courts have accepted that in busy jurisdictions like Scarborough, it may not be possible to immediately have access to the special court facilities required by vulnerable witnesses.[^62]
[82] Secondly, it would certainly not have been apparent when the parties were scheduling dates in March of 2015, that a fourth additional preliminary inquiry date would be required. That did not become apparent until Mr. Shoniker advised the Court on the Applicant’s bail variation request, midway through the third day. Therefore, even if the parties could have scheduled earlier dates if they had attended the Trial Co-ordinator’s Office in advance of March 30, they would have had to schedule the fourth day at a later date.[^63]
[83] Third, the decision in Jordan recognizes that “it is not fair to strictly judge participants in the criminal justice system against standards of which they had no notice” and it will “take time” for the parties to adapt to Jordan’s “constructive incentives,” such as the duty to mitigate delay arising from exceptional circumstances. Since this is a transitional case, Jordan requires that the parties’ actions must be considered “contextually and flexibly.”[^64]
[84] Indeed, it is plain on the face of the record that Mr. Shoniker had no intent to prejudice the Crown owing to Ms. Garrity’s family emergency. To his credit, as honourable counsel, Mr. Shoniker repeatedly stated that he “would not make the most of a difficult situation for a colleague” and could not imagine that “much [would] turn on just this adjournment.” Frankly, it would be highly inequitable to retroactively hold the Crown to both the novel standards of the Jordan framework and the Applicant’s new counsel’s new position on Ms. Garrity’s family emergency when Crown counsel had no notice of either.
[85] Neither was there any indication of any concern with the applicant’s s. 11(b) rights until mere weeks before the trial. As such, concerns with delay were not contemplated at the judicial pre-trials or when the trial date was set and during those periods the parties reasonably relied on pre-Jordan principles.[^65]
[86] Finally, but for Mr. Shoniker’s unavailability in June of 2015, the Court and Crown would have had the Applicant committed for trial on June 26, roughly 17 months after his arrest, which is under the ceiling for matters at the Ontario Court of Justice. But for the Applicant’s retainer issues, that figure would be roughly 15 months. The majority in Jordan commented on the duty to mitigate delay arising from exceptional circumstances, observing that “the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling.” Contrary to the position advanced by new defence counsel on this late day application, I find that the reality is that the Court and Crown progressed the Applicant’s matter through the Ontario Court of Justice in accordance with Jordan standards, despite a family emergency, retainer issues during the set-date phase, and having no notice of the impending Jordan-ceiling.[^66]
[87] In my view, the Crown and court system took reasonable steps in the circumstances of this case to mitigate the delay resulting from Ms. Garrity’s family emergency. Even if the Crown had taken additional steps, it is highly unlikely that the preliminary inquiry would have concluded prior to the period of defence delay commencing on June 26, 2015. Accordingly, in my view the 30 days between May 27 and June 26, 2015 should properly be deducted from the remaining delay.
[88] The second period of exceptional delay is less controversial. It is a period of 6 months and 18 days that ran from November 18, 2016 to June 6, 2017. That period is comprised of the time from the day on which the trial would have concluded if Mr. Glass had not been removed from the record on November 18, 2016, owing to personal health reasons, to the day on which the trial would have concluded if Ms. Dudding had been in a position to accept the earliest trial date of June 6, 2017 that was offered by the Court and available to the Crown on January 11, 2017. This discrete event may also be regarded as the trigger for the 17 days of immediate pre-trial defence delay alleged by the Crown. But regardless of its character, the defence concedes that this entire period of delay is properly deducted under discrete transitional exceptional circumstances, although she calculated the time differently, from the beginning of the first available trial date to the conclusion of the currently-scheduled trial.
[89] It remains to summarize the result of these findings. The total delay is 41 months and 6 days. In particular, I have accepted the submissions of Crown counsel relative to defence delay, but calculated the total defence delay as being approximately 6 weeks less. This follows from my treatment of the 17 days in June 2017 as non-defence delay, and my reduction of the defence delay attributable to the June to August 2015 period at one month rather than the two months contended by Crown counsel. As such, I find that total defence delay is 4 months and 2 days.
[90] 41 months and 6 days of total delay minus 4 months and 2 days of defence delay results in 37 months and 6 days of non-defence delay. This is above the 30-month ceiling for matters tried in the Superior Court of Justice following a preliminary inquiry. As a result, the Crown bore the onus of demonstrating the delay owing to discrete exceptional circumstances in order to permit the operative delay to be reduced by that exceptional delay.[^67]
[91] However, I have also found that the total delay owing to discrete exceptional circumstances is 8 months and 8 days. This follows from my treatment of the 17 days in June 2017 as non-defence delay, but rather as exceptional circumstances delay. 37 months and 6 days of non-defence delay reduced by 8 months and 8 days of discrete event or extraordinary circumstance delay results in 28 months and 27 days of remaining delay which is below the 30-month ceiling for matters tried at the Superior Court of Justice following a preliminary inquiry. The delay is therefore presumptively reasonable.[^68]
Has the Applicant rebutted the presumption of reasonableness?
[92] The defence bears the onus of demonstrating that, even though the remaining delay falls below the Jordan ceiling, that this is one of the “clear cases” of unreasonable delay. To rebut this presumption, the defence must satisfy both of the following criteria:
(i) that the defence took meaningful steps demonstrating a sustained effort to expedite the proceedings; and
(ii) that the case took “markedly longer” than it reasonably should have.
[93] Where the defence has not established both requirements, “the s. 11(b) application must fail.” [^69] For cases “in the system” prior to July 8, 2016, these two criteria must be applied “flexibly and contextually.”[^70]
[94] Under the first criterion, the defence must demonstrate “having taken meaningful and sustained steps to be tried quickly.” The trial judge “should consider what the defence could have done, and what it actually did, to get the case heard as quickly as possible.” Token or perfunctory efforts are insufficient.[^71] Looking at the circumstances of this case in its entirety, contextually and flexibly, I am not satisfied that the Applicant took meaningful and sustained steps to be tried quickly during the set-date or pre-trial phases at the Ontario Court of Justice.
[95] It took the Applicant over two months to retain counsel after initial substantial disclosure was provided, and then to hold a Crown pre-trial. On July 17, 2014, Mr. Shoniker insisted on an adjournment to get the Crown’s position rather than scheduling a preliminary inquiry, despite knowing it was “highly unlikely” that the matter would resolve. Mr. Shoniker was “quite content” that the matter be adjourned to 407, the set-date court, as opposed to 406 court for resolution, repeating again that it was “highly unlikely” the matter would resolve. Justice Bloomenfeld commented, “Highly unlikely doesn’t sound very potential to me.” Mr. Shoniker agreed, “No, it’s not.” [^72]
[96] The proper course of action in the circumstances was to set target preliminary inquiry dates with a confirmation date to address the remote possibility of resolution. If the Applicant had done so and the matter resolved, the dates could be vacated. If the Applicant had done so and the matter did not resolve (which is what happened), no delay would have resulted. In R. v. Teng, in similar circumstances, MacDonnell J. found that failure to set target dates when the Court and Crown are prepared to proceed constitutes defence delay under Jordan.
[97] I note that Crown counsel did not seek to attribute the resulting delay to the defence in this case, correctly in my view, because the parties had no notice of Jordan’s release and there is no record that the Crown pushed Mr. Shoniker to set preliminary inquiry dates on July 17, 2014. However, given Jordan’s emphasis on having all parties in the criminal justice system take positive steps to secure trials within a reasonable time, I accept the Crown’s submission that the Applicant cannot rebut the presumption of reasonableness after allowing his case to languish, merely because there is a “highly unlikely” possibility of resolution.[^73]
[98] Neither in my view did the Applicant act with reasonable diligence during the preliminary inquiry stage at the Ontario Court of Justice. On May 27, 2015, Mr. Shoniker advised the Court that he was confident the preliminary inquiry would conclude on the next day, June 24, 2015; however, by the lunch break on June 24, without any intervening events to explain the reversal, he informed the Court that he needed a full additional day to finish cross-examination and to request a bail variation. The Court offered two dates within the following week, but Mr. Shoniker was unavailable and the matter went over for two more months. Ultimately, the Applicant conceded committal and his bail variation was substantially denied because the Applicant, charged with repeatedly sexually assaulting a young child while in a position of trust, requested to be allowed to have direct, unaccompanied contact with young children.
[99] Nor did the Applicant take meaningful and sustained steps to be tried quickly at the Superior Court of Justice. Mr. Glass did not accept either of the earliest trial dates offered by the Court and available to the Crown on October 16, 2015. Mr. Glass informed the Court of his intention to bring a third-party records application as early as January 8, 2016, but did not bring that application on the next two appearances. The defence ultimately abandoned the application on August 3, 2016. Mr. Glass then had to be removed from the record the month before the trial was scheduled to begin. It took the Applicant from at least October 2, 2016 until November 4, 2016 to have legal representation moving the matter forward once again. Finally, Ms. Dudding was not able to accept the earliest dates offered by the Court and available to the Crown for either the pre-trial motions[^74] or the trial proper.[^75]
[100] The second criterion—whether the case at bar has taken markedly longer than it reasonably should have—involves such factors as case complexity, local considerations, and whether the Crown took reasonable steps to expedite the proceedings. Determining whether the time taken for a case markedly exceeds what was reasonably required is not a matter of precise calculation. In considering the case’s reasonable time requirements, trial judges should use the knowledge they have of their own jurisdiction, including how long a similar case typically takes to get to trial in light of relevant local and systemic circumstances.[^76]
[101] The Crown took reasonable steps to move this case along at the Ontario Court of Justice. Substantial initial disclosure, including detailed summaries of police statements from all potential civilian witnesses, was provided on the Applicant’s second appearance. The Crown diligently resolved all outstanding disclosure before the preliminary inquiry. When Ms. Garrity’s family issue precluded her attending the first day of the preliminary inquiry, Mr. Sokolski was prepared to “make all efforts” to proceed if Justice Kelly did not grant the adjournment request. The Crown re-scheduled and conducted the preliminary inquiry expeditiously. It was the defence who required two extra dates at the conclusion of the Crown’s evidence. As outlined above, but for defence delay, the preliminary inquiry would have concluded roughly 15 months after the Applicant was charged, well within both Jordan and Morin guidelines.
[102] At the Superior Court of Justice, the Crown was repeatedly available for earlier trial and pre-trial motion dates. When Mr. Glass notified Ms. Garrity that he would request to be removed from the record, she took all reasonable steps to mitigate the delay, which is subsumed in the Applicant’s concession that the resulting period is properly attributed to discrete exceptional circumstances. Following Jordan’s release, the Crown diligently met all of its requirements. Crown counsel, Ms. Juginovic, diligently pursued the earliest trial dates available and was content to argue the severance and similar fact applications on the same date in the interest of expeditiousness. The Applicant did not raise any concerns with respect to delay until very recently—indeed, it is apparent from previous counsel’s comments on the record that s. 11(b) was never previously anticipated to be an issue.[^77] In the Respondent’s submission, the only Crown delay in this case is roughly one month resulting from a miscommunication in the Crown system in advance of the first judicial pre-trial. There is no suggestion that this delay was the result of any negligence or bad faith on the part of the Crown.
[103] In summary, I find that the Applicant has not rebutted the presumption of reasonableness. Not only do his largely token efforts taken to move the case at bar through the courts not constitute meaningful and sustained steps, but in any event, this case has not taken markedly longer than it reasonably should have. Simply put, this is not a “clear case” of unreasonable delay.
Morin Analysis
[104] In light of my conclusion that the operative delay in this case does not exceed the threshold in Jordan and that the Applicant has failed to rebut the presumption of reasonableness, in my view there is no need in this case to engage in a transitional Morin analysis. Further, the amounts of delay in this case, even under a Morin analysis, would not be unreasonable, in my view.[^78] Nevertheless, in case I have erred in reaching the findings I have, while I do not intend to engage in the complete Morin analysis, I would indicate my views relative to the issues of prejudice to the accused caused by the delay, given that the applicant did testify on that issue at the commencement of the hearing, and also relative to the balancing of interests, both of which were necessary components of the former Morin analysis.
[105] Under Morin, prejudice was evaluated on a case-by-case basis and the Applicant bore the onus of establishing an evidentiary basis for the prejudice alleged. The existence or absence of prejudice was central to the s. 11(b) inquiry. Where the Applicant demonstrated no prejudice, his or her s. 11(b) application was “seriously undermined.”[^79] Under Morin, courts were only concerned with the prejudice flowing from a situation of “prolonged” delay, as opposed to hardship arising from the mere fact that the Applicant had been charged with a criminal offence. All accused persons will likely suffer hardship arising from having been charged with a criminal offence even where circumstances permit the accused to be tried within a reasonable time.[^80]
[106] The most serious forms of prejudice alleged by the Applicant—namely, his termination, inability to find work in early childhood education, and controlled visitation rights with his children—are plainly a result of the charges and the breakdown of his marriage. All of those results are a product of being charged with these kinds of offences, not a product of delay, although I will acknowledge that the weight of that reality may increasingly affect the accused with the passage of time. Nevertheless, in the circumstances of this case, I do not regard the experience of this prejudice over time as having been caused by prolonged delay on the part of the Crown or the criminal justice system and it would therefore be insufficient to weigh in favour of a stay in this case under the Morin analytical framework.
[107] Finally, it remains the case here that there is a strong societal interest in ensuring that an accused person charged with offences like these, allegedly against his own child, when he occupied a position of trust for young and vulnerable children, should be tried on the merits of the case. In Morin, Sopinka J. stated that an accused person’s interest in a trial within a reasonable time must be balanced against
… a societal interest that by its very nature [is] adverse to the interests of the accused. In Conway, a majority of this court recognized that the interests of the accused must be balanced by the interests of society in law enforcement. This theme was picked up in Askov in the reasons of Cory J. who referred to a “collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law” (p. 474). As the seriousness of the offence increases so does the societal demand that the accused be brought to trial.[^81] [My emphasis]
[108] Sexual assault is one of the most serious charges in the Criminal Code, with an overriding societal interest in adjudication on the merits of the evidence. When sexual assault is committed against a person under the age of 16, it is particularly egregious, as reflected by the maximum sentence of 14 years and Parliament’s implementation of a one-year mandatory minimum sentence. In my view, apart from the fact that the delay in this case does not cross the Jordan threshold, if the balancing of interests was a factor to be taken into account here, in my view it would weigh strongly in favour of the matter proceeding to trial.
[109] The application is dismissed.
Michael G. Quigley J.
Released: September 20, 2017
CITATION: R. v. W.H., 2017 ONSC 5014
COURT FILE NO.: CR-15-30000489-0000
DATE: 20170920
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
W.H.
Defendant/Applicant
REASONS FOR RULING
Re: Sections 11(b) and 24(1) of the Charter
Michael G. Quigley J.
Released: September 20, 2017
[^1]: 2016 SCC 27. [^2]: Disclosure Package Pick-Up Notification – February 26, 2014; Interview Summaries. [^3]: Ontario Court of Justice Transcript of Proceedings – February 27, 2014 at p. 3. [^4]: Ontario Court of Justice Transcript of Proceedings – March 27, 2014 at p. 3. [^5]: Ontario Court of Justice Transcript of Proceedings – July 17, 2014 at p. 3. [^6]: Ibid at p. 4. [^7]: Ontario Court of Justice Transcript of Proceedings – November 12, 2014 at p. 3. [^8]: Ontario Court of Justice Transcript of Proceedings – November 17, 2014 at pp. 3-4. [^9]: Ibid at p. 4. [^10]: Ontario Court of Justice Transcript of Proceedings – January 19, 2015 at p. 4. [^11]: Ibid., at p. 6. [^12]: Ibid., at p. 3. [^13]: Ibid., at p. 4. [^14]: Ibid., at p. 6. [^15]: Ibid. [^16]: Ibid. [^17]: Ibid. [^18]: Ontario Court of Justice Transcript of Proceedings – May 27, 2015 at p. 106. [^19]: Ibid., at p. 107. [^20]: Ibid. [^21]: Ontario Court of Justice Transcript of Proceedings – June 24, 2015 at p. 75. [^22]: Ibid., at p. 152. [^23]: Ibid., at p. 153. [^24]: Ibid., at p. 153; Verification of Trial Date Provided by Trial Co-ordinator’s Office – June 24, 2015. [^25]: Ontario Court of Justice Transcript of Proceedings – August 21, 2015 at p. 1. [^26]: Ibid., at p 2. [^27]: Ibid., at p. 3. [^28]: Ibid., at pp. 2, 53. [^29]: Ibid., at p. 2. [^30]: Ontario Court of Justice Transcript of Proceedings – August 26, 2015 at p. 91. [^31]: Ibid., at p. 99. The Applicant has mistakenly stated that he was committed to stand trial on August 21, 2015. [^32]: Superior Court of Justice Transcript of Proceedings – October 16, 2015 at p. 3. [^33]: Email Correspondence between Mr. Glass and Ms. Garrity – October 2 and 3, 2016. [^34]: Ibid. [^35]: Applicant’s Factum at paras 41, 44. [^36]: Notice of Application for an Order that Defence Counsel be Permitted to be Removed from the Record and for an Adjournment to Permit the Applicant to Retain New Counsel. [^37]: Superior Court of Justice Transcript of Proceedings – October 11, 2016 at pp. 3-4. [^38]: Ibid., at p. 4. [^39]: Ibid., at p. 5. [^40]: Ibid., at p. 7. [^41]: Superior Court of Justice Transcript of Proceedings – December 1, 2016 at p. 5. [^42]: Superior Court of Justice Transcript of Proceedings – December 5, 2016 at p. 5. [^43]: Jordan, above, at at paras. 5, 46-49, 75-76. See also R. v. Coulter, 2016 ONCA 704 at paras. 34-41. [^44]: Jordan, above, at paras. 84-91. [^45]: Jordan, above, at paras. 66-68, 75-76; Coulter, above, at paras. 34-41. [^46]: Jordan, above, at paras. 60-66. [^47]: Jordan, above, at paras. 63-64. [^48]: Disclosure Package Pick-Up Notification – February 26, 2014. [^49]: Ontario Court of Justice Transcript of Proceedings – January 20, 2014 through April 24, 2014. [^50]: Jordan, supra at para 64. [^51]: Applicant’s Factum at para 22, Ontario Court of Justice Transcript of Proceedings – June 24, 2014 at pp 152-53. [^52]: Verification of Trial Date Provided by Trial Co-ordinator’s Office. [^53]: 2012 ONCA 18 at paras. 32, 38-40. [^54]: 2011 ONSC 6780 at para 2. [^55]: See Lahiry, supra at para 60. [^56]: Jordan, supra at para 64. Superior Court of Justice Transcript of Proceedings – October 16, 2015. [^57]: Jordan, supra at para 64. Superior Court of Justice Transcript of Proceedings – January 11, 2017. [^58]: Jordan, supra at paras 69-75. [^59]: Ibid. [^60]: Ontario Court of Justice Transcripts of Proceedings – June 24, 2015 through August 26, 2015. [^61]: Jordan, supra at paras 69-75. [^62]: R. v. Brooks, 2017 ONSC 1063 at paras. 28-33. [^63]: Ontario Court of Justice Transcript of Proceedings – June 24, 2015. R. v. Brissett, 2017 ONSC 401 at para. 29 citing R. v. Allen, 1996 CanLII 4011 (ON CA), [1996] OJ No 3175 at 348 (CA). [^64]: Jordan, supra at para 94. [^65]: Ontario Court of Justice Transcript of Proceedings – March 10, 2015 (Tab 20 of Applicant’s Materials). R. v. Phan, 2017 ONSC 1308 at para 8. [^66]: Jordan, supra at para 74. [^67]: Jordan, supra at paras. 75-76. [^68]: Jordan, supra at para. 76. [^69]: Jordan, supra at paras. 82-83, 99. [^70]: Jordan, supra at paras. 92-99, 105; Coulter, supra at para. 89. [^71]: Jordan, supra at paras. 48, 82-86; Coulter, supra at paras. 92-96; R v Delangel-Chavira, 2016 ONCJ 501. [^72]: Ontario Court of Justice Transcript of Proceedings – July 17, 2014 at pp 3-4. [^73]: R. v. Teng, 2017 ONSC 568 at paras. 69-70. Jordan, supra at para. 86. [^74]: Superior Court of Justice Transcript of Proceedings – December 5, 2016. [^75]: Superior Court of Justice Transcript of Proceedings – January 11, 2016. [^76]: Jordan, supra at paras. 87-89, 91. [^77]: Jordan, supra at paras 69-75. Ontario Court of Justice Transcript of Proceedings – March 10, 2015 at p 6 (Tab 20 of Applicant’s Materials). [^78]: See R. v. Gordon, 2017 ONCA 436 at pras. 20-22 per Doherty J.A. [^79]: R. v. Campagnaro, [2005] O.J. No. 4880 at para. 4 (C.A.), Lahiry, supra at para. 151, Morin, supra at para. 61. [^80]: R. v. Kovacs-Tatar, 2004 CanLII 42923 (ON CA), [2004] O.J. No. 4756 (CA) at paras. 32-33. [^81]: Morin, supra at para 30.