COURT FILE NO.: CR-05-000241-0000

DATE: 20210122

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

J.T.

Defendant

S. Reid and A. Khader, for the Crown

B. Greenspan and M. Biddulph, for the Defendant

HEARD: November 16, 2020

Pursuant to s. 486.4 of the Criminal Code, there is an order that any information that could identify the complainants shall not be published in any document or broadcast or transmitted in any way.

reasons on SECTION 11(b) application

H. mcarthur J.:

Introduction

1For almost eight years, J.T. repeatedly subjected his three young stepdaughters to forced vaginal, oral and anal intercourse. The sexual assaults ended in August 2001, when the girls finally disclosed the abuse they had suffered. On September 10, 2001, the police laid an information charging J.T. with numerous sexual offences.

2That was over 19 years ago. Since then, J.T.’s matter has taken many twists and turns.

3J.T. has been through three trials. At his first trial in February 2007, he was convicted of all counts.¹ The Crown brought a dangerous offender application and, in June 2008, J.T. was sentenced to 18 years in custody to be followed by a 10-year long-term supervision order. The conviction was overturned by the Court of Appeal on March 21, 2012: R. v. J.A.T., 2012 ONCA 177.

4J.T.’s second trial started in September 2013. On October 10, 2013, after the close of the Crown’s case, J.T. absconded. The trial judge continued the trial in J.T.’s absence, charged the jury and sent the jury to deliberate. On October 20, 2013, when the jury was unable to reach a unanimous verdict, the trial judge declared a mistrial.

5J.T. was apprehended in the spring of 2015 in British Columbia, where he had been living under an assumed name. He was brought back to Ontario to face his third trial. On August 25, 2015, J.T. made his first appearance at the Superior Court after absconding.

6J.T.’s trial started before me on November 20, 2017 and ended with final submissions on December 15, 2017. I reserved and found J.T. guilty of all counts on January 26, 2018.

7After I found J.T. guilty, the prosecution advised that it intended to bring a dangerous offender application. The Crown successfully brought an application for an assessment pursuant to s. 752.1 of the Criminal Code. The assessment report was filed in December 2018. The dangerous offender application was scheduled for five days and started in May 2019. The case did not finish in time and was adjourned to September 2019, when it was expected that defence counsel would continue her cross-examination of the court-ordered psychiatrist.

8In August 2019, the Crown had the matter brought forward to say that the prosecution no longer wished to rely on the opinion of the court-appointed psychiatrist. The Crown then sought permission to tender the report of a different psychiatrist, Dr. Treena Wilkie. After hearing submissions, I held that the Crown could call Dr. Wilkie as a witness. Since Dr. Wilkie was prepared to testify on the scheduled September dates, I reasoned that the addition of this witness would not unduly delay J.T.’s sentencing.

9After I ruled on this issue, J.T. stood up in court and abruptly fired his counsel. Despite being cautioned that this would cause further delay and that, if he kept his current lawyer, his matter would likely conclude by October 2019, J.T. persisted in discharging his counsel.²

10By September 13, 2019, defence counsel, Brian Greenspan, appeared before the court and advised that he was retained. The matter was adjourned for a month to allow Mr. Greenspan time to “catch up”. On October 10, 2019, the hearing was set for May 2020, in large part to accommodate Mr. Greenspan’s busy schedule and need to get up to speed on the brief.

11In March 2020, COVID-19 struck. The dangerous offender hearing did not go ahead as scheduled in May because of the pandemic. Over the summer months, defence counsel advised, for the first time, that he would be bringing an application for a stay of proceedings because of unreasonable delay pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms. Defence counsel also advised, for the first time, that he would be bringing an abuse of process motion in relation to the prosecution’s decision to forgo reliance on the court-ordered psychiatrist and call its own expert.

12The abuse of process motion was heard by way of Zoom on October 16, 2020. The s. 11(b) motion was heard over Zoom on November 16, 2020. The dangerous offender application then continued over Zoom on November 17, 2020 and proceeded over six days, with final submissions on November 23, 2020. I reserved my decision on the dangerous offender application proper until January 22, 2021: R. v. J.T., 2021 ONSC 366.

13With respect to the s. 11(b) application, defence counsel brings a three-pronged argument. First, he argues that J.T.’s right to be tried within a reasonable time has been violated as more than 30 months elapsed from the time the Court of Appeal ordered a new trial to the end of J.T.’s trial before me. Second, defence counsel asserts that there has been unreasonable post-verdict delay. Third, defence counsel argues that, looked at holistically, the more than 19 years that J.T. has had this matter hanging over his head is so unreasonable that it violates his rights pursuant to s. 11(b) of the Charter.

14I disagree with each argument advanced by the defence. Much of the delay in this matter was caused by J.T. In addition to the significant delay caused by J.T.’s actions, there have been several exceptional circumstances causing delay. The dangerous offender application itself. The mistrial, which could not have been anticipated. The COVID-19 pandemic. Looking at all of the circumstances, I conclude that J.T.’s trial and sentencing matters were completed within a constitutionally reasonable time.

15The reasons that follow set out in more detail why I have determined that J.T.’s s. 11(b) application must be dismissed. I have appended to these reasons, as Appendix “A”, a chart setting out a detailed chronology of events. I do not intend to repeat that chronology in the body of these reasons and will only refer to events, dates and timeframes as required in my analysis.

16I propose to start by briefly setting out the applicable legal framework. I will then turn to my analysis of the three arguments advanced by the defence.

Applicable Legal Framework

17Section 11(b) of the Charter provides that “[a]ny person charged with an offence has the right … to be tried within a reasonable time”. As recently confirmed by the Supreme Court in R. v. K.G.K., 2020 SCC 7, at para. 25, s. 11(b) protects both individual and societal interests. The individual dimension of s. 11(b) protects a defendant’s interests in liberty, security of the person and a fair trial. The societal dimension of s. 11(b) recognizes, among other things, that timely trials are beneficial to victims and witnesses, as well as to accused persons, and instill public confidence in the administration of justice.

Pre-Verdict Delay

18In R. v. Jordan, 2016 SCC 27, the Supreme Court set out a new framework for analyzing pre-verdict trial delay. The central feature of this framework is a ceiling beyond which delay is presumptively unreasonable. For cases tried at the Superior Court of Justice, the ceiling was set at 30 months from the date the charge was laid to the end of the evidence and submissions at trial. Time taken by the judge to write reasons does not count towards the 30 months, although judges are required to render reasons in a timely way; a marked delay in providing reasons could raise s. 11(b) concerns: K.G.K., at para. 54.

19When assessing pre-verdict delay, the first step is to calculate the total delay between the charges and the end of trial. Then, any defence delay should be deducted from that sum. Defence delay encompasses two situations: (i) delay that was either explicitly or implicitly waived by the defence; and (ii) delay that was caused solely by the defence. Actions legitimately taken to respond to the charges fall outside the ambit of defence delay.

20If the net delay, after subtracting any defence delay, exceeds 30 months, the burden shifts to the Crown to rebut the presumption of unreasonableness by arguing that there were exceptional circumstances causing delay. Exceptional circumstances can arise in two ways: (i) from discrete events; and (ii) from the complexity of the case. Exceptional circumstances lie outside the Crown’s control in that they are reasonably unforeseen or unavoidable and the Crown cannot reasonably remedy delays emanating from those circumstances once they arise. The period of delay caused by a discrete exceptional event will be subtracted from the total period of delay for the purpose of determining whether the Jordan ceiling has been exceeded. The court can then assess whether any delay was justified because of the complexity of the case: Jordan, at para. 80.

21If the total delay from the charge to the end of the trial, minus defence delay or delay caused by exceptional circumstances, exceeds 30 months, and the overall delay is not justified on the basis of case complexity, then the defendant’s s. 11(b) right to be tried within a reasonable time has been breached.

22If the total delay from the charge to the end of the trial, minus defence delay or delay caused by exceptional circumstances, does not exceed 30 months, the delay may still be unreasonable. To obtain a stay of proceedings in such a case, however, the defence must establish: (i) that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (ii) that the case took markedly longer than it reasonably should have.

Delay After an Appellate Order for a Retrial

23When a case has been sent back for a retrial by an appellate court, the Jordan clock begins to run from the date of the appellate court’s decision: R. v. MacIsaac, 2018 ONCA 650, at para. 31; R. v. Potvin, 1993 CanLII 113 (SCC), [1993] 2 S.C.R. 880, at p. 908.

24In MacIsaac, the court suggested that a lower presumptive ceiling may be appropriate for retrials following a successful appeal: at para. 27. Although the issue is not yet settled, in my view there is good reason to hold that a lower presumptive ceiling should apply in these circumstances. While there are certainly steps that need to be retraced in a retrial, the path has already been cleared once; retrials can generally be concluded more quickly than the first run. This case highlights that reality. Here, the Court of Appeal ordered a new trial on March 21, 2012 and J.T.’s second trial ended on October 20, 2013, just 19 months later. That is well under the 30-month ceiling for a trial at first instance.

25However, even if a lower presumptive ceiling does not apply to retrials, the Crown has a duty to retry cases as soon as possible. Matters sent back for retrial must be given priority in the system.

Delay After a Mistrial

26Several courts have found that delay flowing from a mistrial should be attributed to exceptional circumstances: R. v. Mallozzi, 2017 ONCA 644, at paras. 41-43, leave to appeal denied, [2017] S.C.C.A. No. 392; R. v. Christhurajah, 2019 BCCA 210, at paras. 116-117; R. v. Wu, 2017 BCSC 2373, at para. 91; R. v. Beckett, 2017 BCSC 1116, at para. 163; and R. v. Masilamany, 2018 ONSC 3171, at paras. 24-26.

27The Crown, relying on MacIsaac, urges me to find that, just as with retrials after a case is sent back by an appellate court, the Jordan clock also resets after a mistrial. I am unable to do so for two reasons.

28First, the cases cited above support the position that the proper approach is to view the time after a mistrial as exceptional, not as resetting the Jordan clock.

29Second, in my view there is good reason to approach delay after a mistrial differently than delay after an appellate order for a new trial. It can take a year (and often much longer) for an appeal to be heard. Once a new trial is ordered, numerous steps must be retraced. Trial counsel may have to be retained. New counsel will have to become familiar with the file. Even if former trial counsel can act again, they will need time to refamiliarize themselves with the file and get back up to speed. Witnesses may need to be located again. Issues may have been expanded or reduced because of the appellate ruling. New judicial pre-trials must be held to clarify the time required for the retrial. Motions argued at the first trial may need to be reargued. Many steps that had already been taken for the first trial will need to be retaken for the new trial.

30In contrast, after a mistrial, often the same lawyer will be available to conduct the next trial. No need to delay matters to retain new counsel. No need for new counsel to learn the file from scratch. No need for legal issues to be reargued; rulings rendered at the first trial usually apply. After a mistrial, the parties will often be ready to conduct the next trial in short order. Given this, in my view a complete reset of the Jordan clock is generally not warranted after a mistrial. Rather, delay flowing from a mistrial should usually be characterized as exceptional circumstances. I say ‘usually’ as each case must be assessed on its own facts. There may be instances where the Crown, having caused a mistrial, would be hard-pressed to claim exceptional circumstances. In the same vein, if the defence has caused the mistrial, it may be more appropriate to view the attending delay as defence delay.

Post-Verdict Delay

31As explained recently in R. v. Charley, 2019 ONCA 726, s. 11(b) applies throughout the trial process, including to the end of sentencing. However, the presumptive ceilings established in Jordan do not include post-verdict delay. Rather, post-verdict delay is subject to its own presumptive ceiling. The Ontario Court of Appeal set the ceiling at five months, at which point a delay in sentencing is sufficiently long that it should be regarded as presumptively unreasonable.

32In Charley, the court held that the time taken by the Crown to make an application for an assessment in furtherance of a dangerous offender application under s. 752.1 of the Criminal Code should be viewed as an exceptional circumstance that does not count towards the five-month ceiling: see also R. v. Flowers, 2020 ONSC 1532, at para. 28. In R. v. McLean, 2020 ONSC 1931, at para. 12, Hood J. rejected the argument that only the application for an assessment can be viewed as exceptional. Instead, he held that the entire dangerous offender proceeding should be viewed as an exceptional circumstance and refused to establish a fixed benchmark beyond which delay in such an application would be viewed as unreasonable. I agree with this approach. That said, as made clear in Charley, the Crown still has an obligation to mitigate any delay flowing from the prosecutorial pursuit of a dangerous offender designation.

Analysis

Issue One: Has J.T.’s right to be tried within a reasonable time been violated because more than 30 months elapsed from the time the Court of Appeal ordered a new trial to the end of his trial before me?

33The Court of Appeal ordered a new trial on March 21, 2012. The last day of J.T.’s trial before me was December 15, 2017. The delay of 2,096 days (approximately four years and seven months) clearly exceeds the Jordan ceiling. As set out below, though, when defence delay and exceptional circumstances are taken into account, the net delay is well below 30 months.

March 21, 2012 to October 10, 2013: Net Jordan Delay, 569 Days

34Following the order for a new trial, things moved fairly quickly. There was a delay of approximately one month because defence counsel failed to show for a judicial pre-trial. There was some suggestion by the Crown, however, that there had been an administrative error leading to defence counsel’s absence.

35By October 10, 2012, the trial was set to start on September 9, 2013 for four weeks. It is not clear from the record why the trial date was set for 11 months in the future, or whether earlier dates were available to the court but not open to counsel.

36The trial proceeded as scheduled on September 9, 2013. The Crown closed its case. Then, on October 10, 2013, J.T. failed to attend court and absconded to British Columbia.

37In my view, the 569 days from the day the Court of Appeal ordered a new trial to the day that J.T. absconded counts towards the Jordan ceiling. But as I set out below, once J.T. chose to flee his trial he caused cascading delays that should largely be laid at his feet.

October 10, 2013 to August 25, 2015: Defence Delay, 684 Days

38There is no dispute that J.T. is responsible for the 684-day delay between October 10, 2013, when he absconded, until August 25, 2015, when he had his first appearance at the Ontario Superior Court of Justice after being apprehended in British Columbia.

August 25, 2015 and November 20, 2015: Defence Delay, 87 Days

39On August 25, 2015, J.T. appeared at the Superior Court and asked for a two-week adjournment so he could retain counsel. It then took him about a month to secure a Legal Aid certificate.

40On October 19, 2015, J.T. had retained counsel Matthew Friedberg. Mr. Friedberg advised the court that he had obtained “about six bankers’ boxes” of material from previous counsel and would need “a good month to kind of dig into that.”

41As a result of defence counsel needing time to review disclosure, J.T.’s matter was adjourned to November 20, 2015 for a judicial pre-trial.

42The defence argues that this 87-day period between August 25, 2015 and November 20, 2015 is net delay that goes towards the Jordan ceiling. The Crown counters that this time should be viewed as defence delay or exceptional circumstances flowing from the mistrial that occurred on October 20, 2013. Either way, the Crown argues that this delay should be subtracted from the net delay.

43In my view, this timeframe is properly characterized as defence delay. But for J.T.’s action in fleeing from the jurisdiction, the delay associated with retaining counsel and new counsel reviewing the file would not have occurred.

44I assume for the sake of this analysis that the mistrial would have occurred even if J.T. had not absconded.³ But if J.T. had not fled there would have been no need for a new Legal Aid certificate; original counsel would still be covered, and he would not have needed a month to secure funding. Moreover, J.T.’s counsel would have been intimately familiar with the disclosure, having just done the trial. There would be no need for defence counsel to take a month to familiarize himself with the evidence.

45If I am incorrect, and this time is not properly characterized as defence delay, it should be viewed as flowing from an exceptional circumstance. It is time that was required because of the mistrial, which was not caused by and could not have been anticipated by the Crown.

November 20, 2015 to January 12, 2016: Defence Delay, 53 Days

46The defence concedes that J.T. is responsible for the 53-day delay between November 20, 2015 to January 12, 2016. I agree with this concession.

47On November 20, 2015, a judicial pre-trial was cancelled because of the defence. On December 18, 2015, another judicial pre-trial was cancelled because J.T. fired his lawyer. On December 21, 2015, defence counsel was formally removed from the record and J.T. asked for three weeks to retain new counsel. This represents a defence delay of 53 days.

January 12, 2016 to February 16, 2016: Defence Delay, 35 days

48On January 12, 2016, J.T. told the court that he had either retained Edward Royle or would retain him but was having difficulty contacting counsel because of issues at the institution where he was detained. On January 28, 2016, when J.T. returned to court, he was told that Mr. Royle was facing serious health issues. J.T. advised that he had not yet retained Mr. Royle and the matter was adjourned to February 16, 2016.

49Defence counsel argues that this 35-day period should be counted towards the Jordan ceiling. The Crown counters that this time should be viewed as either defence delay or exceptional circumstances.

50In my view, this time is properly viewed as defence delay. The 35 days between January 12, 2016 and February 16, 2016 elapsed solely as a result of J.T.’s decision to fire Mr. Friedberg and seek other counsel. While he may have had difficulties contacting counsel because of issues at the institution and Mr. Royle’s ill health during that time, the delay was necessitated by J.T.’s decision to seek new counsel.

51If I am incorrect that this is defence delay, then alternatively I find that this delay is properly characterized as being caused by exceptional circumstances. To the extent that any labour issues at the jail impeded J.T.’s ability to follow up with new counsel, that was out of the control of the Crown. To the extent that the lawyer that J.T. wished to retain had health issues that prevented him from speaking with J.T., that was also out of the Crown’s control.

February 16, 2016 to June 27, 2016: Defence Delay, 132 Days

52The parties agree that J.T. is responsible for the delay from February 16, 2016 to June 27, 2016. I concur with the position taken jointly by counsel. During this time, J.T. tried to secure funding for a change of counsel. Then he retained counsel. Then he changed his mind and tried for another new counsel certificate. Then, when Legal Aid denied his request for a change of counsel, J.T. sought to appeal that decision. J.T. is clearly responsible for this 132-day delay.

June 27, 2016 to February 13, 2017: Defence Delay/Exceptional Circumstances, 241 days

53On June 27, 2016, Mr. Aubin from Mr. Royle’s firm attended court and advised that J.T. had been “indecisive about who he wants to represent him”. J.T.’s matter was remanded to July 25, 2016 for a judicial pre-trial, which took place as scheduled.

54On July 29, 2016, Mr. Rippell attended as agent for Mr. Royle to speak to J.T.’s matter and the retrial was scheduled to start on April 3, 2017. The Crown had earlier dates available, but this was the first available date for Mr. Royle. The court set February 13, 2017 as the trial confirmation date.

55Unfortunately, Mr. Royle then suffered a serious accident. When J.T. returned to court for his trial confirmation on February 13, 2017, the court explained that Mr. Royle had been in the hospital for three to four months and would not be able to conduct the trial in April. The presiding justice canvassed with J.T. whether he would be content to have another lawyer from Mr. Royle’s firm conduct his trial, if he wanted to wait for Mr. Royle or if he wanted to find another lawyer altogether. J.T. was advised that the earliest Mr. Royle would be available to do the trial was July or August 2017.

56J.T. said, “[I]t’s not my fault, I’m not waiving my rights from, you know, having a speedy trial … over some accident”. In response, the presiding justice told J.T.:

[W]e can argue about it later. The reason the trial wouldn’t go is because the lawyer has had an accident and is unavailable. Another lawyer’s available, but you would like to have the lawyer that you retained do your trial, which is reasonable.

57J.T. then said that he wanted to find another lawyer but still wished to have his trial in April. The presiding justice said that he would give J.T. a day or two to think about it and proposed the following options:

So, you got three options, four options. One is you go with a lawyer from the firm that Mr. Royle’s at if you’re comfortable with that. It appears you’re not, but that’s one option. Two, if you want to get another lawyer, you can. The only think I’m telling you, [J.T.], the chances of getting a lawyer that’s going to be up to speed and ready to go in April probably isn’t great, but I’m going to give you that opportunity. Now, I’m not going to ask you to make that decision today because it’s a big decision for you, but the Crown’s ready to go, the Court’s ready to go and it’ll be your call.

58Despite being offered time to consider his options, J.T. asked that Mr. Royle be removed from the record immediately so he could ask Legal Aid for a new certificate. The court explained again that J.T. could have someone from Mr. Royle’s firm represent him at the scheduled trial, but J.T. still asked to have Mr. Royle removed as counsel.

59In my view, this time is properly characterized as either defence delay or exceptional circumstances, or some combination of the two.

60J.T. was faced with an unexpected situation because of the ill-health of his chosen counsel. As he said to the court, the situation was not his fault. That said, he had several options open to him, one of which included moving forward with his trial as scheduled in April with someone from Mr. Royle’s firm representing him. The Crown was ready. The court was ready. J.T. chose not to take this option.

61J.T. was entitled to make the choice that he did. But that decision had consequences in terms of delaying his case.

62In the alternative, in my view this should be characterized as exceptional circumstances. Defence counsel unexpectedly suffered a serious injury that prevented him from conducting the trial as scheduled. This is a discrete event that could not have been anticipated or controlled by the Crown.

February 13, 2017 to June 27, 2017: Exceptional Circumstances, 134 Days

63The parties agree that the 134-day delay between February 13, 2017 and June 27, 2017 should be seen as exceptional circumstances.⁴ I concur with the position taken jointly by counsel.

64Suffice to say that this timeframe was occupied with issues relating to Mr. Royle’s ill health, efforts to retain new counsel and applications for funding.

65On March 24, 2017, the court scheduled J.T.’s trial to commence on November 20, 2017 and proceed for four weeks. That was the earliest date available to the court, since at that time there were several judicial vacancies at the Superior Court.

66The trial was set with or without counsel, as J.T.’s proposed counsel, Charles Granek, was still waiting for funding through a Rowbotham order. Mr. Granek advised that he would have been available to conduct the trial anytime except from May 29, 2017 to June 16, 2017 and July 17, 2017 to July 21, 2017.

67Mr. Granek received Rowbotham funding as of April 18, 2017. At his request, a judicial pre-trial set for May 18, 2017 was adjourned to June 27, 2017.

June 27, 2017 to December 15, 2017: Exceptional Circumstances, 111 Days; Net Jordan Delay, 60 Days

68On June 27, 2017, the judicial pre-trial took place as scheduled. Mr. Granek asked for the matter to be remanded to July 17, 2017 for the return of the subpoena on a third-party records application he was bringing.

69The records were brought to court on July 17, 2017. A further judicial pre-trial was scheduled for September 7, 2017 and the third-party records application was set for October 6, 2017. The four-week trial set to commence on November 20, 2017 was confirmed.

70On September 7, 2017, the judicial pre-trial was rescheduled for September 29, 2017. On that date, the court again confirmed that October 6, 2017 was the date of the third-party records application and that the four-week trial would start on November 20, 2017. The application proceeded on October 6, 2017. The trial started before me on November 20, 2017 as scheduled. Final submissions took place on December 15, 2017.

71In my view, the bulk of this time should be viewed as exceptional circumstances. A third trial was required only because of the hung jury at the second trial. That could not have been anticipated or prevented by the Crown. The same ground had to be retread because of the mistrial.

72That said, the record is clear that there was some delay in setting the trial date because of limits on judicial resources. Given that, 60 days of this time should go towards the Jordan ceiling. The remaining delay of 111 days should be viewed as exceptional circumstances related to the mistrial.

December 15, 2017 to January 26, 2018: Time to Render Verdict, 42 Days

73I provided my reasons as scheduled on January 26, 2018. In their written submissions, both Crown and defence at times referred to January 26, 2018 as the last day of the trial. However, it is clear from K.G.K. that time required to write reasons is not part of the usual Jordan calculus.

74The time to render a verdict represented a delay of 42 days from the end of trial. That is well within the timeframe for rendering reasons set out by the Supreme Court in K.G.K.

75I will consider this 42-day period, however, when assessing the defence argument that the overall delay in J.T.’s matter is constitutionally unreasonable.

Calculation of Net Delay from Order for New Trial to End of Third Trial: 629 Days

76The Court of Appeal ordered a new trial on March 21, 2012. J.T.’s trial before me ended with final submissions on December 15, 2017. The overall delay is 2,096 days, which clearly exceeds the 30-month Jordan ceiling.

77However, as discussed above, there were significant periods of delay caused by the defence and by exceptional circumstances. The calculation below shows that a total of 1,467 days of delay relate either to actions taken by the defence and/or to exceptional circumstances. When those periods are subtracted from the overall elapsed time, the delay is 629 days. This is well below the Jordan ceiling.

Total Delay from Order for New Trial on March 21, 2012 to End of Trial on December 15, 2017

2,096 days

Defence Delay

991 days

Exceptional Circumstances Delay

245 days

Defence and/or Exceptional Circumstances Delay

231 days

Total Defence and Exceptional Circumstances Delay

1,467 days

Net Jordan Delay

629 days (2,096 minus 1,467)

78Given that the net delay from the time the new trial was ordered to the end of the third trial is below the Jordan ceiling, there is no need to consider the complexity of this matter.

79That said, in my view this case was more complex than the average sexual assault trial. The trial involved three complainants testifying about historical sexual abuse. Each complainant was testifying for the fourth time. J.T. was testifying for the second time. Each side had numerous transcripts with which to impeach witnesses. Even though this was J.T.’s third trial, numerous pre-trial motions were still litigated. There was a similar fact application. There was a disreputable conduct application. There was an application to exclude s. 715.1(1) videos. There was an application to exclude evidence of post-offence conduct. Legal issues surrounding the evidence of child witnesses, the import of delayed disclosure and prior consistent statements all had to be addressed. The complexity of this case justifies a lengthier period to get to the end of trial.

80I turn now to the argument that there has been unreasonable post-verdict delay.

Issue Two: Has there been unreasonable post-verdict delay?

81I convicted J.T. on January 26, 2018. I am sentencing him on January 22, 2021. Thus, it has taken just under three years for J.T. to be sentenced. This clearly exceeds the five-month ceiling set out in Charley.

82I find, however, that when the delays caused by the defence and exceptional circumstances are considered, J.T.’s right to be sentenced within a reasonable time has not been violated.

83I do not intend to go through every event that has occurred over the past three years. Instead, I will refer to three factors that, in my view, explain why, despite the length of time that transpired, J.T.’s sentencing took place within a constitutionally reasonable time.

84First, the Crown brought a dangerous offender application. Such applications are always complex and represent exceptional circumstance that justify delays above the ceiling set out in Charley. I agree with the defence that unreasonable delay in bringing a dangerous offender application could lead to a s. 11(b) breach. That said, I am not persuaded that there was unreasonable delay caused by the Crown or the court in J.T.’s dangerous offender application.

85Defence counsel argues that since this was J.T.’s second dangerous offender application, the Crown should have been ready to proceed almost immediately. But this submission ignores the fact that J.T. had spent years in custody serving sentence on this matter by the time the second dangerous offender application took place. The Crown had to gather, review and vet voluminous institutional records that did not exist at the first hearing. A significant amount of material had to be considered and compiled. The different factual landscape at the second dangerous offender application militates against the argument that the Crown should have been essentially ready to proceed to the dangerous offender hearing once I found J.T. guilty.

86I also find that, for similar reasons set out in K.G.K., the 60 days that it took to render reasons in the dangerous offender matter, given the particularly complex issues involved in J.T.’s historical case, was reasonable: see R. v. J.T., 2021 ONSC 366.

87Second, J.T. caused delay in his sentencing by changing his lawyer - twice. He fired his trial lawyer, Mr. Granek, and hired new counsel, Jennifer Penman, for sentencing. J.T. caused further delay by firing Ms. Penman in the middle of his dangerous offender hearing. While the Crown had taken the unusual step of seeking to call a new expert in the middle of the hearing, Dr. Wilkie was available to testify on the dates scheduled. Ms. Penman may have needed an adjournment, and that delay would have rested with the Crown. However, J.T.’s sudden decision to fire his lawyer caused the entire sentencing to go off the rails.

88Mr. Greenspan was retained quickly but needed time to get up to speed. He also had other commitments, which meant that he was not ready to proceed until March 2020. The Crown and the court, however, would have been able to continue the matter in September, as originally scheduled, or in the fall and early winter.

89It is true that once Mr. Greenspan became available in March 2020, the Crown had another court matter and was not available until two months later, in May 2020. However, as explained in R. v. N.N.M., 2006 CanLII 14957 (ON CA), [2006] O.J. No. 1802 (C.A.), at para. 23, “the party who causes an adjournment is responsible for the entire delay until the matter can be re-scheduled, unless the other party is unavailable for an unreasonable length of time.”

90Here, the Crown was not unavailable for an unreasonable time. J.T. caused the delay by firing his counsel and choosing to hire a busy lawyer who was not available until March 2020. The court and the Crown were ready to continue with his matter in the fall and winter. In my view, J.T. bears responsibility for the delay up to May 2020.

91Third, the COVID-19 pandemic was an exceptional circumstance that led to unavoidable delay. Defence counsel argues that the court was up and running as of July 2020 and thus that any delay after that time should be counted towards the Charley ceiling. I disagree. Indeed, in my view the argument advanced by defence counsel is divorced from reality.

92We are still in the middle of a global pandemic. The administration of justice has adapted as best as it can to the new realities forced upon us by COVID-19. Courts have been physically reconfigured. Court are operating as much as possible remotely. Bail hearings by phone. Trials on Zoom. Everyone doing their best to adapt to new technology. We are now deep into the second wave of the pandemic. Jury trials are still suspended. Ontario is again on lockdown. And the Superior Court of Justice is still dealing with the herculean task of addressing a huge backlog of cases, including many involving in-custody individuals presumed to be innocent, while trying to ensure the safety of all justice participants.

93Despite the many challenges faced by the court in scheduling cases during the COVID-19 pandemic, J.T.’s matter was allocated eight full court days, with his sentencing matter completed by November 23, 2020. In my view, the fact that J.T.’s dangerous offender matter completed in the time it did, despite all of the attendant challenges posed by the pandemic, is not only reasonable, it is remarkable.

94I conclude that the entire timeframe from May 2020 to November 2020 should be viewed as flowing from the exceptional circumstances of the COVID-19 pandemic. However, if I am wrong in so concluding, it bears repeating that J.T.’s sentencing would have been over long before the pandemic struck except for the fact that he fired his lawyer. Thus, if this time period is not properly viewed as being related to exceptional circumstances, then in my view it is defence delay.

95When the defence delay and exceptional circumstances are taken into consideration, I find that J.T.’s right to be sentenced in a reasonable time has not been violated.

96I turn now to the final argument advanced by the defence, which is that the almost 19 years it has taken to finally complete J.T.’s matter violates s. 11(b) of the Charter.

Issue Three: Looked at holistically, has the delay of over 19 years to get to the end of J.T.’s matter violated his right to be tried within a reasonable time?

97Defence counsel argues that, when viewed holistically, the delay of over 19 years to finally conclude J.T.’s matter violates his s. 11(b) right. This argument can be dispatched with quickly.

98I am not going to detail the various steps leading up to J.T.’s first trial and dangerous offender hearing. The chronology of events is set out in Appendix “A”. But suffice to say that J.T. also caused delay – repeatedly – in the time leading up to his first trial and sentencing.

99Although J.T. knew that the police had laid an information in September 2001, he did not turn himself in. He was not apprehended until May 2003. As such, J.T. cannot complain about the approximately one-year-and-eight-months delay in prosecuting his case that arose because he was evading arrest.

100Once he was arrested, J.T. continued to cause delay in his case. He went through at least three different lawyers. Judicial pre-trials were adjourned at J.T.’s behest several times. He adjourned his first preliminary hearing. He adjourned his first trial date. He twice waived s. 11(b).

101I also note that it took almost four years to complete J.T.’s appeal. This is part of the overall 19-year delay complained about by the defence. But in my view, the time it took J.T. to appeal his case should not be considered as part of the s. 11(b) analysis.

102In any event, at the time of J.T.’s first trial, defence counsel clearly did not have concerns about delay. No s. 11(b) argument was advanced. Similarly, when J.T.’s matter was appealed, the defence did not raise any issue about s. 11(b). That the defence raises concerns about delay at J.T.’s first trial only after the completion of his third trial underscores that such complaints are ill-founded.

103As set out above, I have determined that the delay that flowed after the Court of Appeal ordered a new trial was reasonable. I have also concluded that the post-verdict delay was reasonable.

104Thus, looked at cumulatively, I find that the delay from the date the information was first laid against J.T. in September 2001 to the end of his sentencing on January 22, 2021, while unique and lengthy, is not constitutionally unreasonable.

Conclusion

105J.T.’s right to be tried and sentenced within a reasonable time pursuant to s. 11(b) of the Charter has not been violated. The application is dismissed.

Justice Heather McArthur

Released: January 22, 2021

Appendix A: Detailed Chronology of Events

FIRST TRIAL

DATE

DESCRIPTION

September 10, 2001

Police lay an information charging J.T. with a number of sexual offences. J.T. is in Peru at the time.

December 2001

J.T. returns from Peru but does not turn himself in.

May 16, 2003

J.T. is arrested in Canada.

May 17, 2003

J.T. attends his first bail hearing.

May 30, 2003

J.T. is released on bail.

July 31, 2003

J.T. has his first appearance. The matter is adjourned to August 18, 2003 to allow counsel to review disclosure.

August 18, 2003

The matter is put over to September 17, 2003 to set a date for trial.

September 17, 2003

A JPT is conducted and a preliminary hearing is scheduled for August 19-20, 2004, with or without counsel. The confirmation date is set for January 26, 2004.

January 12, 2004

The August 2004 preliminary hearing dates are confirmed, and the matter is adjourned one week.

January 19, 2004

The defence does not appear. The Crown indicates that neither defence counsel nor the accused knew that there was an appearance scheduled.

August 19, 2004

The defence requests an adjournment on the first day of the preliminary hearing and waives s. 11(b).

November 26, 2004

The defence requests the matter be remanded until February. The court adjourns until January 4, 2005.

January 4, 2005

The defence requests the matter be put over to January 18, 2005 to deal with outstanding disclosure.

January 18, 2005

The defence requests the matter be put over for an adjournment application. The matter is adjourned until January 27, 2005.

February 2, 3, 10, and 25, 2005

The preliminary hearing goes ahead. J.T. is committed to the Superior Court for March 31, 2005.

March 31, 2005

J.T. appears in Superior Court. A JPT is set for May 12, 2005.

May 12, 2005

The JPT goes ahead. J.T. changes counsel to Ms. Locke and another JPT is set for June 9, 2005.

June 9, 2005

The scheduled JPT is adjourned to July 5, 2005.

July 5, 2005

The matter is adjourned to July 19, 2005.

July 19, 2005

The matter is adjourned to July 26, 2005.

July 26, 2005

The matter is adjourned to August 9, 2005. The indictment reads “to hire lawyer”.

August 9, 2005

The trial is set for April 24, 2006 for three to four weeks. December 13, 2005 is set as the trial confirmation date.

December 13, 2005

There is an appearance in court but J.T. is in custody elsewhere. The defence requests an adjournment. The matter is put over to December 16, 2005.

December 16, 2005

The matter is adjourned to January 18, 2006.

January 18, 2006

The matter is adjourned to February 16, 2006 to confirm the trial date with Ms. Locke as counsel.

February 16, 2006

Defence and Crown counsel agree to adjourn the matter to February 27, 2006 to allow for an adjournment application.

February 27, 2006

J.T. applies for an adjournment of the trial set to commence on April 24, 2006, citing difficulty in obtaining transcripts and issues with his retainer. The Crown raises concerns about delay. The trial target date is set for October 16, 2006 and the matter is adjourned to April 24, 2006.

April 24, 2006

J.T. applies to adjourn his trial dates again and waives 11(b). The target dates for trial are rescheduled for January 29, 2007. The matter is adjourned to May 10, 2006.

May 10, 2006

Ms. Locke for J.T. notes that her retainer is not complete and that there is a trial date with or without counsel. The matter is adjourned to July 20, 2006.

July 20, 2006

There is an appearance in court. The matter is adjourned to August 21, 2006 to confirm the January 29, 2007 trial dates.

August 21, 2006

There is an appearance in court. The matter is adjourned to November 16, 2006 to confirm the status of J.T.’s retainer and the trial dates.

November 16, 2006

J.T. appears in court. An agent for Ms. Locke appears for notes that she is not yet prepared to go on the record. The matter is adjourned to December 12, 2006.

December 12, 2006

J.T. does not appear and a discretionary warrant is issued. The matter is adjourned to December 14, 2006, on which date a third-party records application is returnable.

December 14, 2006

J.T. brings a third-party records application. The matter is adjourned to January 9, 2007.

January 9, 2007

The matter is adjourned to January 19, 2007.

January 19, 2007

The matter is adjourned to January 29, 2007.

January 30, 2007

J.T.’s trial commences.

February 12, 2007

J.T.’s trial concludes, and he is convicted on all counts. The matter is adjourned to March 5, 2007 for sentencing.

March 5, 2007

The sentencing judge does not attend. The defence requests an adjournment to March 9, 2007 to make an adjournment application for the sentencing hearing.

March 9, 2007

The matter is adjourned to May 26, 2007 to speak to the status of the dangerous offender application and J.T.’s immigration status.

March 26, 2007

Mr. Rosen appears as counsel of record for J.T.; Ms. Locke withdraws. The Crown asks for a s. 752.1 assessment and files the consent of the Crown Attorney and the delegation signed by the Attorney General. Mr. Rosen objects because he is newly retained and has not read the transcripts. Mr. Rosen advises that he is scheduled for another matter the next week. The matter is adjourned to April 10, 2007.

April 10, 2007

The Crown brings its application for a s. 752.1 assessment. The Court holds that the consent of the Attorney General through the delegation of the Crown Attorney is sufficient for this part of the application. The Crown and defence do not agree on the proposed psychiatrist. The matter is put over to April 13, 2007.

April 13, 2007

There is an appearance in court, but one of the proposed assessors is not available. The matter is put over to April 17, 2007 to discuss the choice of psychiatrist.

April 17, 2007

Counsel makes submissions on Dr. Woodside and Dr. Pallandi, the two psychiatrists put forward to potentially perform the assessment. The matter is put over to April 20, 2007.

April 20, 2007

Dr. Pallandi is selected as the assessor. The defence is unavailable in June and July 2007 and the Crown is unavailable for most of August 2007. The matter is put over to June 7, 2007, near the end of the assessment period, to check in with Dr. Pallandi regarding his report. Sentencing is scheduled for August 1, 2007.

June 7, 2007

Dr. Pallandi’s report is not finished but will be completed by August 1, 2007. The matter is adjourned to June 28, 2007 to review the status of the report.

June 28, 2007

The Crown confirms that the report is still outstanding. The matter is adjourned to July 25, 2007 to review the report and confirm the date for sentencing.

July 25, 2007

Dr. Pallandi’s report is completed. August 1, 2007 is confirmed for sentencing.

August 1, 2007

The Crown brings an adjournment application out of concern that the sentencing judge will become functus if J.T. is sentenced before the dangerous offender proceedings are initiated. The sentencing judge advises that she is unable to hear the matter until April 2008. Court is adjourned to September 17, 2007 to speak to the status of the dangerous offender application.

September 17, 2007

The consent of the Attorney General is filed with the court. The matter is set to return October 29, 2007 to set a date for the dangerous offender application.

October 29, 2007

The matter is put over to November 7, 2007 to schedule the dangerous offender hearing.

November 7, 2007

The matter is put over to November 28, 2007 to schedule the dangerous offender hearing.

November 28, 2007

The matter is put over to December 21, 2007 to schedule the dangerous offender hearing.

December 21, 2007

The Crown advises that defence counsel does not want to schedule the dangerous offender hearing until some time in February. Defence counsel is not present, and the matter is put over to January 9, 2008.

January 9, 2008

Defence counsel tells the court that he is working on another case that is expected to take six months. Additionally, Dr. Pallandi’s availability is not known. The matter is put over to February 8, 2008.

February 8, 2008

Target dates for the dangerous offender hearing are set for May 5-6, 2008. A confirmation date is set for April 15, 2008.

April 15, 2008

The dangerous offender hearing is scheduled to commence May 12, 2008 for an estimated three to five days. The matter is adjourned to April 29, 2008.

April 29, 2008

The May 12, 2008 dates for the dangerous offender hearings are confirmed.

May 12, 2008

The dangerous offender hearing commences.

May 15, 2008

The dangerous offender hearing concludes. The matter is adjourned to May 30, 2008 for an update on sentencing.

May 30, 2008

The court advises that the sentencing decision is not finalized. The matter is put over to June 6, 2008.

June 6, 2008

J.T. is sentenced to 18 years’ imprisonment. He is also declared a long-term offender and given a 10-year supervision order.

March 21, 2012

J.T.’s conviction is overturned by the Court of Appeal and a new trial is ordered.

SECOND AND THIRD TRIALS

DATE

DESCRIPTION

April 27, 2012

J.T. appears in the Superior Court. The matter is adjourned to May 4, 2012 for a bail pending re-trial application.

May 4, 2012

The bail application goes forward. Court is adjourned to May 7, 2012 for the decision on bail.

May 7, 2012

J.T. is released on bail. The matter is adjourned to May 28, 2012.

May 28, 2012

A JPT is set for June 26, 2012.

June 26, 2012

A JPT is held and the case is placed on the long trial list. The matter is put over to July 18, 2012.

July 18, 2012

Another JPT is scheduled for September 14, 2012.

September 14, 2012

Defence counsel does not appear, and the Crown suggests there was some administrative confusion. The matter is put over to October 5, 2012 for a JPT.

October 5, 2012

The JPT judge is unavailable. The matter is adjourned to October 10, 2012.

October 10, 2012

December 19, 2012 is set as the next court appearance and September 9, 2013 is marked as the first day of trial, estimated to last five or more weeks. June 19, 2013 is scheduled as the readiness date.

December 19, 2012

The matter is adjourned to February 20, 2013.

February 20, 2013

The court is advised that Crown counsel has been assigned to the case. The matter is put over to May 15, 2013 for trial readiness purposes.

May 15, 2013

Defence counsel does not appear. The Crown requests that the matter go to July for a readiness date. Court is adjourned to June 19, 2013.

June 19, 2013

Court is adjourned to August 13, 2013 to speak to readiness. Counsel advise the court that they are meeting on July 25, 2013 and will be able to either have a JPT or confirm it by August 13, 2013.

August 13, 2013

The matter is put over to August 21, 2013 to speak to readiness.

August 21, 2013

The September 9, 2013 trial date is vacated because Mr. Rosen has another matter in the Court of Appeal on that day. The trial is set to begin on September 10, 2013.

September 10, 2013

J.T.’s second trial commences. Motions are heard on September 10, 11, and 17, and the jury is empanelled on September 19.

October 10, 2013

The Crown closes its case. J.T. absconds and a warrant is issued for his arrest.

October 15, 2013

The trial proceeds in J.T.’s absence and the jury is charged.

October 20, 2013

The jury is unable to reach a unanimous verdict. A mistrial is declared.

April 7, 2015

J.T. is apprehended in British Columbia.

August 25, 2015

J.T. has his first appearance after absconding. He asks for a two-week adjournment to retain counsel. The court notes that his bail has been marked to be estreated. The matter is set over to September 8, 2015.

September 8, 2015

J.T. advises that he is in the process of applying for Legal Aid. The matter is adjourned to September 11, 2015 for an update on the status of his Legal Aid certificate.

September 11, 2015

J.T. is still waiting for a Legal Aid certificate. The matter is put over to September 18, 2015.

September 18, 2015

Ms. Peck of Caramanna Friedberg says that her firm expects to hear from Legal Aid in the next week or so and indicates that a JPT could be set at that time. The matter is adjourned to October 2, 2015.

October 2, 2015

J.T. instructs his previous counsel to transfer the file to his new counsel, Mr. Friedberg. The matter is adjourned to October 19, 2015.

October 19, 2015

Mr. Friedberg advises that he has received the file and will require about a month to review disclosure. The matter is adjourned to November 20, 2015 for a JPT.

November 20, 2015

The JPT is rescheduled for December 18, 2015.

December 10, 2015

J.T.’s bail application is scheduled but does not go ahead because it would have required a full day. It is remanded to January 28, 2016.

December 18, 2015

The JPT is cancelled because J.T. fires his lawyer. The matter is put to December 21, 2016.

December 21, 2015

Mr. Friedberg is formally removed from the record. The matter is put over to January 12, 2016 to allow J.T. to secure new counsel. The court notes that J.T.’s bail application is scheduled for January 28, 2016 and maintains that date in case J.T. is able to find and instruct new counsel by then.

January 12, 2016

J.T. tells the court he has selected Mr. Royle as his new counsel but is having trouble contacting him because of issues within the institution. The court asks the Crown to reach out to Mr. Royle. The matter is put over to January 28, 2016. J.T. says that he does not think Mr. Royle will proceed on his bail review scheduled for that day.

January 28, 2016

The court advises J.T. that Mr. Royle is facing health issues and will not be able to be in court for at least three weeks. J.T. says that he has not yet retained Mr. Royle. The matter is adjourned to February 16, 2016 to determine who J.T.’s new counsel is.

February 16, 2016

J.T. says that Legal Aid has not responded to him yet. It is not clear who J.T. intends to retain. The matter is put over to February 24, 2016 awaiting an update of J.T.’s Legal Aid status.

February 22, 2016

J.T. receives a certificate for change of solicitor from Legal Aid.

February 23, 2016

J.T. retains Mr. Royle.

February 24, 2016

J.T. confirms that Mr. Royle is retained. A JPT is set for March 14, 2016.

March 14, 2016

Ms. Chung from Mr. Royle’s office advises that J.T. wishes to discharge Mr. Royle and is considering retaining Mr. Giourgas. The court expresses concern that Legal Aid will not support another change of solicitor request and recommends that Mr. Giourgas request a transfer of the certificate. The matter is put over to March 30, 2016, when a Legal Aid representative will be present in court.

March 30, 2016

Ms. Guido from Mr. Giourgas’s office puts on the record that J.T. applied for a change of solicitor on March 11, 2016. Mr. Giourgas is not yet retained. The matter is put over to April 13, 2016 to deal with J.T.’s Legal Aid issues and to speak to bail. The October 31, 2016 trial date is confirmed.

April 10, 2016

J.T.’s change of solicitor application is denied by Legal Aid. J.T. says that he intends to appeal the refusal.

April 13, 2016

A representative from Legal Aid advises that an appeal takes two to three weeks. Ms. Guido says she is handling the appeal. The matter is put over to May 9, 2016 for an update on J.T.’s Legal Aid status.

May 9, 2016

The Legal Aid appeal is not complete. The matter is scheduled to return on May 25, 2016 for an update on the status of J.T.’s appeal and to speak to his bail application.

May 25, 2016

The defence communicates through the Crown that they have not yet received an update from Legal Aid and that the matter should go over for a few weeks. Court is adjourned to June 27, 2016.

June 27, 2016

Mr. Aubin from Mr. Royle’s office appears. A JPT is set for July 25, 2016. The bail application is also travelling with the JPT.

July 25, 2016

A JPT is held with Mr. Royle. The matter is put over to July 29, 2016 for scheduling.

July 29, 2016

Mr. Rippell from Mr. Royle’s office appears. The trial is scheduled for April 3, 2017 for five weeks, which is Mr. Royle’s earliest availability. The trial confirmation date is set for February 13, 2017.

February 13, 2017

The court explains that Mr. Royle has been in hospital for several months and is not able to conduct the trial in April. Mr. Aubin says that his firm is prepared to represent J.T. if he so chooses. J.T. requests that Mr. Royle be taken off the record, which the court obliges. The Court says it is unlikely that another lawyer will be up to speed by April, but that the court and the Crown are ready. J.T. confirms that he wants to ask for a Legal Aid certificate. The matter is put over to February 15, 2017.

February 15, 2017

Legal Aid advises that they will have a response to J.T.’s request in a week. The matter is put over to February 22, 2017 for an update on the status of J.T.’s counsel. The April 2017 trial dates are confirmed.

February 22, 2017

The court is advised that J.T.’s Legal Aid request has been denied. J.T. is appealing. He says that he has a few lawyers in mind but has not selected anyone. The Crown offers to speak to whichever lawyer J.T. chooses to get them up to speed. The matter is put over to March 1, 2017.

March 1, 2017

The Crown advises that the Area Committee has denied J.T.’s Legal Aid appeal. The matter is put over to March 8, 2017 to hear the results of J.T.’s Provincial Directors Appeal. The court advises J.T. of the Rowbotham process and that it is unlikely that the trial will go ahead in April. The Crown again offers to speak to the lawyer J.T. selects to provide background on the case.

March 8, 2017

J.T.’s final appeal is denied. J.T. advises that he has consulted with Mr. Granek, who has also been in touch with Crown. Mr. Granek has told the Crown that he is not yet able to represent J.T. but might be in a week or so, and that he is not able to start the trial on April 3, 2017. J.T. expresses doubt that Mr. Granek will be his lawyer because Mr. Granek is not following his instructions about s. 11(b). The matter is adjourned to March 15, 2017 to let J.T. consult with Mr. Granek, to pursue the Rowbotham pilot project, and to consider an adjournment.

March 15, 2017

Mr. Granek says that J.T. contacted him the previous day and asked him to represent him. Mr. Granek requests that the matter be put down to March 24, 2017. Mr. Granek advises that he cannot start the trial on April 3, 2017. J.T. says that he wishes to bring a Rowbotham application. He does not feel that he has ability to represent himself, but he also does not want to be responsible for an adjournment. The trial dates are adjourned from April 3 to April 17, 2017. The matter is put over to March 24, 2017 to set a date for the Rowbotham application.

March 24, 2017

Mr. Granek says he is assisting J.T. with the Rowbotham application but is not yet on the record. The April trial dates are vacated, and a trial is scheduled to commence on November 20, 2017 for four weeks, with or without counsel, which is the earliest date available to the court. Mr. Granek says that he can conduct the trial anytime except between May 29 - June 16, 2017 and July 17 - July 21, 2017. The matter is adjourned to April 7, 2017 for an update on the Rowbotham pilot project application status.

April 7, 2017

Mr. Granek advises that he has sent J.T.’s file to the Ministry of the Attorney General but has not received a response. The matter is adjourned to April 18, 2017.

April 18, 2017

Mr. Granek advises that the Crown Law Office Civil has consented to funding pursuant to the Rowbotham application. A JPT is scheduled for May 18, 2017.

May 18, 2017

Mr. Granek requests the JPT be adjourned to June 27, 2017.

June 27, 2017

The JPT takes place as scheduled. The matter is adjourned to July 17, 2017 for the return of subpoenas on the defence’s third-party records application.

July 17, 2017

Certain third-party records are brought to court. August 7, 2017 is set as the target date to have remaining records subpoenaed. October 6, 2017 is set for the third-party records application. A further JPT is scheduled for September 7, 2017.

August 8, 2017

The matter is adjourned to August 15, 2017 for the third-party records application. J.T.’s bail application is kept alive but not heard.

August 15, 2017

The third-party records application is confirmed for October 6, 2017. An application for subpoenas to be issued is to be heard on August 29, 2017.

August 29, 2017

An application for release of subpoenas is heard and the court releases the exhibits to counsel for the complainants. The matter is adjourned to September 20, 2017.

September 7, 2017

The JPT is rescheduled for September 29, 2017.

September 20, 2017

The matter is put over to September 29, 2017 for the JPT and to see the status of the third-party records application.

September 29, 2017

The third-party records application is confirmed for October 6, 2017 and the trial is confirmed to commence on November 20, 2017.

October 6, 2017

The third-party records application proceeds as scheduled. The matter is put over to October 30, 2017 for arguments on production and to allow the court time to review the documents.

October 30, 2017

Submissions are made on the third-party records. The court advises that a ruling will be released in a few days.

November 20, 2017

J.T.’s third trial commences.

December 15, 2017

J.T.’s third trial concludes. The matter is put over to January 26, 2018 for judgment.

January 26, 2018

J.T. is found guilty on all counts. The Crown advises that it will be bringing a dangerous offender application.

DANGEROUS OFFENDER AND SENTENCING PROCEEDINGS

DATE

DESCRIPTION

February 21, 2018

The Crown advises that it is seeking documents for the dangerous offender order and has contacted some doctors to canvass their availability. The Crown says that the s. 752.1 application would be served by March 16, 2018. The matter is put over to May 10, 2018.

April 30, 2018

The matter is brought forward so that J.T. can discharge Mr. Granek and retain Ms. Penman, who is representing him on another matter. Ms. Cass from Ms. Penman’s office advises that they are in the middle of the Rowbotham pilot project process. The May 10, 2018 dates are vacated. The matter is put over to May 14, 2018 for an update on J.T.’s retainer with Ms. Penman.

May 14, 2018

Ms. Penman’s retainer is confirmed. The Crown brings an application to unseal corrections records. The matter is put over to September 7, 2018.

August 1, 2018

The Crown files its application for a s. 752.1 assessment.

September 7, 2018

The Crown assessment order is granted and Dr. Kolla is appointed as the assessor. The matter is put over to September 21, 2018.

September 21, 2018

Appearances are scheduled for October 22, 2018, January 24, 2019, and February 25, 2019. The dangerous offender hearing is set down for May 13, 2019 for five days.

September 24, 2018

The 60-day assessment period commences.

October 22, 2018

There is a court appearance to confirm availability for the dangerous offender hearing. The matter is adjourned until January 24, 2019.

December 21, 2018

The assessment report of Dr. Kolla is filed.

January 24, 2019

It is confirmed that Dr. Kolla’s report has been produced. The matter is adjourned to February 25, 2019 to confirm the Attorney General’s consent for the application.

February 25, 2019

The consent of the Attorney General is received. May 13-17, 2019 is set down for the hearing.

April 26, 2019

The Crown files its notice of application pursuant to unseal documents obtained as a result of production orders.

April 29, 2019

The Crown files its notice of application under s. 754.

May 13, 2019

The dangerous offender application commences. The Crown expresses concern that five days is not enough time to conclude the matter.

May 16, 2019

It becomes clear that the dangerous offender hearing will not finish on time. Crown and defence counsel agree that it will take about three more days. The court is available to hear the matter the next week, but counsel is not. Further dates are set for September 3, 4, and 6, 2019.

May 17, 2019

Dr. Kolla’s evidence commences. It is confirmed that Dr. Kolla is available on September 4 and 6 to conclude his cross-examination.

August 6, 2019

J.T. is not present. The Crown brings the matter forward to advise that they no longer wish to rely on Dr. Kolla. The Crown has contacted Dr. Wilkie and provided her with the file, but no report has been produced yet. Dr. Wilkie is available on the scheduled September dates, although the Crown acknowledges that an adjournment may be necessary to allow the defence to prepare for cross-examination. The matter is put over to August 8, 2019.

August 8, 2019

The matter is set to return on August 22, 2019 for a half day to determine if the Crown will be permitted to bring an additional expert and to determine if Dr. Kolla will be required to return for further cross-examination.

August 22, 2019

The court holds that the Crown may tender the evidence of Dr. Wilkie. The court notes that Dr. Wilkie’s availability on the already scheduled September dates is relevant to this decision. J.T. fires Ms. Penman, despite being advised that this will cause delay, and she is removed from the record. The matter is set to return on August 23, 2019 to discuss J.T.’s counsel situation.

August 23, 2019

J.T. says that he wants to have counsel. The Crown advises that Ms. Penman is willing to entertain acting as amicus. The September 3 and 4, 2019 dates are vacated. The matter is adjourned to September 6, 2019 to permit J.T. to retain counsel.

September 13, 2019

Mr. Greenspan appears for J.T. and advises that he is retained but needs time to catch up. The matter is set to return October 10, 2019.

October 10, 2019

Mr. Greenspan says he is not available until mid-February or March 2020, by which time the Crown is not available until May 2020. Mr. Greenspan says a delay of two months is not of great significance in light of the larger timeframe. The hearing is scheduled for May 7, 8, and 11-15, 2020.

May 7, 2020

The dangerous offender hearing does not go ahead because of the COVID-19 pandemic.

June 8, 2020

Defence files its materials for the abuse of process motion.

June 19, 2020

Crown files its responding materials for the abuse of process motion.

June 2020

The parties agree to schedule the motion for October 16, 2020 and to hear the s. 11(b) motion in conjunction with sentencing between November 16-23, 2020.

October 16, 2020

The abuse of process motion is heard.

November 16, 2020

The s. 11(b) motion is heard.

November 17, 2020

The dangerous offender hearing commences.

November 23, 2020

The dangerous offender hearing concludes.

January 22, 2021

Reasons on dangerous offender hearing and for sentence delivered

Footnotes

1. 1At his first trial, J.T. was also convicted of sexual assault, sexual interference and sexual exploitation in relation a fourth stepdaughter. She also testified at his preliminary hearing and his second trial. She did not testify at his third trial before me.
2. 2I also held that if the defence needed an adjournment to prepare for cross-examination after Dr. Wilkie testified in chief, I would be inclined to grant one. That, of course, would have delayed J.T.’s matter and that delay would have rested at the feet of the Crown. But because of J.T.’s precipitous action in firing his lawyer, as I detail later in these reasons, the ensuing delay rests with him.
3. 3It is unknown why the jury failed to reach a unanimous verdict. That said, three complainants testified before me and they were compelling and credible witnesses. I have also seen the transcripts from the second trial, and the complainants’ evidence was largely unshaken in cross-examination. I suspect that there was one ‘rogue’ juror who would not convict J.T. because he was not in court. If this is correct, J.T. could be seen as causing the mistrial. But I cannot speculate. Thus, while I am inclined to believe that the mistrial resulted because J.T. absconded, I cannot find that as a fact.
4. 4The Crown argues that this timeframe could be viewed as either defence delay or exceptional circumstances. Given the defence concession that this time can be seen as exceptional, I proceed on that basis.