COURT FILE NO.: CR-20-450

DATE: 2021 03 24

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Y. Brar, for the Crown

Respondent

– and –

MARIO BURI

Applicant

C. Slattery Cojocaru, for the Applicant

HEARD: February 19, 2021

RULING ON s. 11(b) CHARTER APPLICATION

J.M. Woollcombe J.

A. Introduction

1The applicant, Mario Buri, brings an application for a stay of proceedings under s. 24(1) of the Charter as a result of an alleged violation of his s. 11(b) right to a trial without unreasonable delay. I heard this application as the assigned case management judge.

2Mr. Buri was arrested on March 28, 2019. He is charged with sexual touching and sexual assault, contrary to ss. 151 and 271 of the Criminal Code. It is alleged that on two separate dates in November 2018, he engaged in sexual intercourse with the complainant. He was 21 years old at the time. She was 14.

3His judge-alone trial is scheduled for August 8 to 20, 2021. The total delay in the case is 28 months and 23 days, a delay under the presumptive ceiling of 30 months set out by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27 for matters tried in the Superior Court of Justice.

4The issues to be decided are:

i) Should any time be deducted from the total delay as defence delay?

ii) What is the net delay?

iii) If the net delay is less than 30 months, has the applicant met his onus of establishing a violation of s. 11(b)?

5For the reasons set out below, the application is dismissed.

B. The Chronology

6There is little need to review in detail the chronology of events.

7Following his March 28, 2019 arrest, the applicant was released on a promise to appear. His first appearance was on April 8, 2019. He had numerous appearances over the ensuing months, with a preliminary inquiry eventually being set on October 16, 2019 for September 22 and 23, 2020. The preliminary inquiry took place over September 22 and 23, 2020 and continued on October 1, 2020, at which time the applicant was committed for trial.

8On October 9, 2020, the applicant had his first appearance in the Superior Court. Defence counsel was ready to set a judicial pre-trial (“JPT”), which was scheduled for October 21, 2020. Counsel was also asked by Durno J. if she wished to set a trial date “at that time”, and indicated that she was going to need to meet with the applicant and to obtain instructions but that “I’ll be able to answer that question probably better on the next occasion”.

9On October 21, 2020, a JPT was held before Durno J. A trial date was not set and the case was adjourned to November 12, 2020 to set a trial date. While it is not clear from the transcript, it is agreed between counsel that at the time, the applicant was experiencing an unexpected medical issue, as a result of which defence counsel needed time to be able to speak to him and to obtain instructions, without which she could not set a trial.

10On November 12, 2020, the parties were agreed that two weeks would be set for a non-jury trial. The first date offered by the court was May 31, 2021, which was agreeable with both counsel. Shortly after, the matter was recalled because the Crown asked to re-schedule so she could accommodate another trial. The Court offered June 7, 2021, a date on which the defence was available but the Crown was unavailable. The Court offered July 26, 2021, a date on which the Crown was available but the defence was not. The defence was available August 2, 2021 onwards. The Court indicated that there were already a couple of in-custody matters and other matters the following week and offered September 27, 2021.

11The Crown raised with the court that September 28, 2021 was the Jordan date, a concern echoed by the defence. Durno J. said he could try to find something earlier and asked whether counsel wanted it on September 27, 2021. The defence indicated that the applicant was content with May 31, but the Crown selected the September dates. The trial was set for two weeks beginning on September 27, 2021. Defence counsel indicated that she would seek instructions on whether there were s. 11(b) concerns on her client’s part.

12The case was back before Durno J. on November 24, 2020 for a further pre-trial, by which point the applicant had filed a s 11(b) application. Durno J. indicated that the Crown had looked over the date and was content to leave the trial scheduled as it had been.

13The matter was back before Durno J. on December 7, 2020. While Durno J.’s initial comments were not recorded, it appears that he asked if the Crown wanted the trial moved forward. Ms. Brar, for the Crown, said she did not. The s. 11(b) motion was then scheduled for February 19, 2021.

14The matter returned before Durno J. on February 10, 2021. Although the transcript was not provided to me at the time the s. 11(b) application was argued, I directed that it was to be ordered by the applicant and provided to the court. Counsel did so. I was provided with that transcript and advised that counsel wished to provide further written submissions, which they both have now done.

15The transcript makes clear that the Crown requested the matter be brought before the court on February 10, 2021 in order to determine whether an earlier trial date could be set. Ms. Brar indicated that after reviewing the applicant’s s. 11(b) materials, she realized that while she had mistakenly believed that the applicant had turned down two earlier trial dates, in fact, counsel had declined only one. Ms. Brar indicated that in view of her error, her recognition that the defence had always wanted a speedy trial and the fact that the complainant is quite young, she had spoken to her Deputy Director for guidance. She indicated that she had been advised that a number of other cases had adjourned or been resolved and so she wanted to see whether the trial could be set earlier.

16Counsel for the applicant reminded the court that she had asked for earlier dates at multiple previous appearances and that had they been offered earlier dates previously, her availability would have been much greater. She asserted that the applicant still wanted the earliest possible date and that she would do the best she could, despite having less availability.

17It appears from Durno J.’s comments that the court was in a position to offer dates as early as February 19, 2021. He also suggested that the trial could start on March 15 or 22and that there would be time available in April. He was hesitant to offer dates in May, given the uncertainty as to whether jury cases would be resuming.

18Counsel for the applicant responded that she did not have two weeks available for the trial “at least in June onwards”. A two week trial starting on June 7, 2021 was offered, but counsel was not available as she had a trial starting on June 14, and going into the next week. Ultimately, counsel for the applicant said that she was not available until June 28 or later. When the June 28 date was offered to start, the Crown advised that she was available if the defence was. Defence counsel was not.

19Defence counsel then indicated that after that, her first available date was on August 3. Given the matters already on the list for that date, the Crown was not prepared to prioritize this case that week. The week of August 9, 2021 was tentatively offered to counsel and both were available. Justice Durno indicated that he would need to confirm the court’s availability on February 16. On February 16, 2021, the trial date was confirmed as commencing on August 9, 2021 for two weeks.

C. Legal Principles

20The Supreme Court of Canada’s decision in Jordan sets out the framework to apply when considering whether delay (from the date of charge to the anticipated completion of trial) is unreasonable. The framework creates a ceiling, beyond which delay is presumptively unreasonable.

21Gillese J.A., writing for the court in R. v. Coulter, 2016 ONCA 704, summarized the framework as follows at paras. 34-40:

34 Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).

35 Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, at para. 66).

36 Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).

37 If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

38 Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).

39 If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).

40 If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48). [emphasis in original]

22When considering cases in which the total net delay falls below the presumptive ceiling, the Supreme Court of Canada in Jordan held that stays would be granted only in clear cases. Establishing that the delay is unreasonable requires the defence to establish that: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. Absent these two factors, the s. 11(b) application must fail.

23The Court elaborated on each of these requirements. To establish that it took meaningful, sustained steps to expedite the proceedings, the trial judge is to consider both what the defence did and what it could have done to have the case heard more quickly. There must be a showing of more than token comments on the record, and that the defence took meaningful and sustained steps to have the case tried earlier: Jordan, at paras. 84-86.

24The Court also elaborated, at paras. 87-91 on what is needed to establish that the time taken for the case markedly exceeds that which was reasonable:

87… The reasonable time requirements of a case derive from a variety of factors, including the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite the proceedings.

88 The reasonable time requirements of the case will increase proportionally to a case's complexity. As Sopinka J. wrote in Morin : "All other factors being equal, the more complicated a case, the longer it will take counsel to prepare for trial and for the trial to be conducted once it begins" (pp. 791-92).

89 In considering the reasonable time requirements of the case, trial judges should also employ the knowledge they have of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances.

90 Where the Crown has done its part to ensure that the matter proceeds expeditiously — including genuinely responding to defence efforts, seeking opportunities to streamline the issues and evidence, and adapting to evolving circumstances as the case progresses — it is unlikely that the reasonable time requirements of the case will have been markedly exceeded. As with assessing the conduct of the defence, trial judges should not hold the Crown to a standard of perfection.

91 Determining whether the time the case has taken markedly exceeds what was reasonably required is not a matter of precise calculation. Trial judges should not parse each day or month, as has been the common practice since Morin , to determine whether each step was reasonably required. Instead, trial judges should step back from the minutiae and adopt a bird's-eye view of the case. All this said, this determination is a question of fact falling well within the expertise of the trial judge (Morin , per Sopinka J., at pp. 791-92).

D. Analysis

25The total delay in this case, from the date the applicant was charged (March 28, 2019) until what has been the anticipated completion of his trial (August 20, 2021) is 28 months and 23 days.

i) Has there been any “defence delay”?

26The Crown submits that there are a number of possible periods of defence delay.

27The first period of delay said by the Crown to be defence delay is from October 21, 2020 until November 12, 2020, a period of 3 weeks and 1 day. The Crown submits that the Crown and court were ready and wiling to set a trial date but that the defence was not because counsel needed to obtain instructions from the applicant and needed an adjournment to do so.

28The defence position is that it was entirely reasonable for counsel to have asked for a brief delay for preparation and to obtain instructions and that doing so does not mean that the delay should be characterized as “defence delay”. Counsel refers to the comments of Moldaver J. in Jordan at para 65:

65 To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused's right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions.

29I accept the defence position that there must be time allowed for preparation. However, I think the comments in this passage must be read in light of the preceding paragraph that: “… the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence”.

30By the October 21, 2020 JPT, almost nineteen months had elapsed since the applicant had been charged. There was a need, if the applicant wanted a trial without delay, to move quickly towards a trial in the Superior Court. Counsel for the applicant was specifically put on notice on October 9, 2020 that the trial could be set at the JPT on October 21, 2020. The parties agree that the court and Crown were willing to set the trial that day and that it was defence counsel who was not. While I make no criticism of counsel for not being in a position to set the trial date on October 21, 2020, in my view the delay in setting the trial until November 12, 2020 was as a result of defence counsel not being ready and able to set a trial, and is properly characterized as defence delay. This period of 3 weeks and 1 day should be deducted from the overall delay.

31The second period of delay said by the Crown to be defence delay arises from the fact that when trial dates were set on November 12, 2020, defence counsel was offered a trial on July 26, 2021 and was unavailable. This is two weeks earlier than the trial date was ultimately set. The Crown’s position, as I understand it, is given that defence counsel indicated that she was available the week of August 3, but not the week of July 26, the one week of delay is attributable to the defence.

32I am not prepared to find this one week of delay is attributable to the defence. While the Crown now says that this was one of two trial earlier dates for which the defence was not available, in making this submission, the Crown relies on dates that were offered by the court in February 2021, well after the November 12, 2020 scheduling. In my view, this is not the correct way to approach the issue and is not fair. Whether the defence caused specific periods of delay must be assessed from the perspective of what was known and available at the time particular dates were set, not on the basis of what ended up happening later.

33On November 12, 2020, the court initially offered May 31, 2021, a date on which the defence was available and that the Crown, while content at first, then wished to change. June 7, 2021 was offered. Again, the defence was available but the Crown was not. The court then offered July 26, 2021, a single week on which the defence was not available, although counsel was available any week after that. It is unreasonable to attribute the delay to the defence on the basis of having one date of unavailability. It is not the case that the defence turned down multiple dates on November. Counsel had many dates on which she was ready to set the trial. This delay should not be deducted as defence delay.

34The third period of potential defence delay arises as a result of the most recent JPT on February 10, 2021, when earlier trial dates were canvassed. At the hearing of the application, I raised the issue of whether the fact that the defence was unavailable for some of the dates offered for trial on February 10, 2021 would mean that a further period of delay was defence delay. While at the hearing there was no clarity on what dates had been offered and when counsel for the Crown and defence had, in fact been available, I have now reviewed the transcript of that appearance and the written submissions of counsel.

35As set out above, on February 10, 2021, the court offered to the applicant trial dates on February 19, March 15 or 22, 2021. Counsel indicated she was not available until June. The court then offered June 7 and 14, but counsel for the applicant had a previously scheduled trial starting on June 14 for two weeks, making those dates unworkable. The court offered a trial date of June 28, for which the Crown was available but the defence was not. Counsel for the applicant said her first available date was, in fact, August 3, 2021, six days before the trial was ultimately set. The Crown would not prioritize this trial for that date and so the date was set for August 9, 2021.

36Counsel for the applicant’s position is that the Crown deliberately chose not to seek earlier trial dates on November 12, 24 and December 7, 2020. Had it done so, counsel for the applicant would have been available. Instead, it was not until February 10, 2021, when counsel for the applicant was booked with other matters, that the Crown asked the court for earlier dates. While counsel for the applicant was not available for a trial until August 3, 2021, it is the applicant’s position that none of the delay is defence delay.

37The Crown’s position is that the defence caused the delay from the June 28, 2021 trial date that was offered until August 3, when the defence was available.

38In my view, the fact that counsel for the applicant was not, on February 10, 2021, available to start the trial in February or March 2021 is hardly surprising. At the hearing of the applicant, Crown counsel fairly acknowledged that she had not been available for some of the dates offered either, although she did not indicate which dates she was available and when she was not. The first date on which it is clear that the court and Crown were available, but the defence was not, was June 28, 2021.

39In her submissions, counsel for the applicant submitted, reasonably in my view, that she would have had far greater availability for trial had the case been scheduled in November or December. I accept this and do not think the delay over the period between February until June 28, 2021 can be properly understood as defence delay. I say this both because the record is not clear that the Crown was available and because it was reasonable for defence counsel to have re-scheduled other matters that had been delayed.

40However, counsel indicated that her availability for a two week trial was, as of February 10, 2021, in June or later. It was she who suggested to Durno J. that June was a reasonable period of time to accommodate her other cases. She was then offered June 7, 14 and 28. She was not available for any of them. While the Crown’s availability for the first dates was not put on the record, the Crown was available for June 28, 2021. Having asked for an early trial, and been unavailable for more than four months, and multiple trial dates, I find that the delay from the offered trial date of June 28 (the first date upon which the court and Crown were ready to proceed), and August 3 (the very first date after February 10 when the defence was available, despite being offered many other possible trial dates), is defence delay: R. v. Albinowski, 2018 ONCA 1084 at paras. 28-34; 45-49; R. v. Malozzi, 2018 ONCA 312.

41As a result, I deduct a further 36 days, or five weeks and one day.

ii) What is the net delay?

42The defence delay to be deducted is 58 days or eight weeks and two days. I conclude that the net delay, accounting for this defence delay, is 26 months and 21 days. This is under the Jordan ceiling and so not presumptively unreasonable. It falls to the defence, therefore to establish that the delay in this case is unreasonable.

iii) Did the defence take meaningful and sustained steps to expedite the proceedings?

43The Crown concedes, fairly in my view, that the defence took meaningful and sustained steps throughout the proceedings to expedite the proceedings. Having reviewed the transcripts of what occurred in both the Ontario Court of Justice and the Superior Court of Justice, as well as counsel’s factum. I agree with this concession. There is, therefore, no need to discuss this issue further.

iv) Does the time taken markedly exceed the reasonable time requirements for the case?

44This analysis requires taking a step back from the minutiae and viewing the case by adopting a bird’s eye view. The reasonable time requirements for a case assessment includes consideration of the complexity of the case, local considerations and whether the Crown took steps to expedite the proceedings.

45It is acknowledged that this is not a particularly complex case. The Crown called the complainant and her mother at the preliminary hearing. There is one pre-trial motion in progress accordance with ss. 276/278. I cannot characterize the case as complicated.

46Counsel differ as to whether the Crown has done its part to move this along and whether this has led to the case taking markedly longer than it should have.

47The proceedings in the Ontario Court of Justice spanned from the applicant’s March 28, 2019 arrest until his October 1, 2020 committal for trial. While this is a lengthy period, it is significant to observe that it was during this period, beginning in March 2020, that the COVID-19 pandemic began. The Ontario Court of Justice was closed from March until July 8, 2020, resulting in many cases having to be adjourned and re-scheduled. While there was no direct effect on the setting of the applicant’s preliminary inquiry, I think it is fair to say that the Crown would have been very hard pressed, during this period, to try to seek earlier dates for the preliminary inquiry. I note, as well, that concerns respecting s. 11(b) do not appear to have arisen during this period.

48The applicant submits that the Crown has been less than diligent in moving the case along in the Superior Court.

49It is the applicant’s position that the parties were offered a May 31, 2021 trial date on November 12, 2020, which the Crown rejected, and that after setting the September 2021 trial dates, the Crown failed to take steps to ensure a speedy trial, despite the fact that the Jordan date was looming. The defence points out that Durno J. repeatedly asked the Crown if it was seeking an earlier trial date and that Ms. Brar refused to prioritize the case. The defence says that the pandemic really did not affect the pace of this case and that, if anything, the court’s cessation of jury trials freed up more time for judge alone trials and should have enabled this case to move more quickly.

50The Crown position is that it did take steps to move the matter along. While it was not prepared to prioritize this case over others in the latter part of 2020, upon learning that there was available trial time in the spring of 2021, it actively sought to move the case forward.

51I accept the defence position that the Crown did not prioritize this case in November and December 2020. However, I am not persuaded that this was unreasonable in the circumstances, which included that the Crown had to balance the competing pressures of scheduling many cases that had been delayed by the pandemic. When, in February 2021, the strength of the s. 11(b) application became apparent to the Crown, and there was a potential for the trial date in this matter to be moved ahead, the Crown took the pro-active step of seeking earlier dates for trial.

52By February 2021, counsel for the applicant was not as available for trial as she would have been in November or December 2020. There were many dates upon which this trial could have been scheduled in, at least, February, March and June. While I accept that it was reasonable for the applicant to forego these trial dates, in view of counsel’s unavailability, I find that the Crown was responsive to the ongoing requests for an earlier trial date and took steps to seek one. Furthermore, ultimately, an earlier date was scheduled with a week of counsel’s first available date.

53Stepping back, and looking at this case overall, I do not find the total net delay of 26 months and 21 days was markedly longer than was reasonable in all of the circumstances, including the scheduling challenges caused to the court by the onset and continuing effects of the COVID-19 pandemic and the steps taken by the Crown to try to expedite the trial.

54The result of this finding is a conclusion that the applicant has not met his onus of establishing that the delay in this case was unreasonable.

E. Disposition

55The application is dismissed.

J.M. Woollcombe J.