COURT FILE NO.: CR 4669/19
DATE: 2021-02-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
B. Moodie and F. McCracken for the Crown Attorney
Crown
- and -
MATTHEW BELZIL
E. Ghebrai, for the Applicant
Applicant
HEARD: December 21 and 22, 2020
RULING WITH RESPECT TO THE APPLICATION PURSUANT TO SECTION 11(B) OF THE CHARTER
A. J. GOODMAN J.:
[1] The applicant, Matthew Belzil (“Belzil”), is charged with seven offences including assault x2, utter threats to cause death x2, mischief x2 and sexual assault, contrary to their respective provisions in the Criminal Code R.S.C. 1985 c. C-46.
[2] These offences are alleged to have variously occurred between May 1, 2015 and September 7, 2017 in the City of Niagara Falls and elsewhere in Ontario.
[3] The applicant seeks a stay of proceedings pursuant to ss. 11(b) and 24(1) of the Charter for unreasonable delay.
[4] On January 8, 2021, I advised the parties that the application is dismissed with reasons to follow. These are my reasons.
Positions of the Parties:
[5] The applicant submits that a stay of proceedings is the only available remedy for the delay in this case. With the scheduled trial date, the matter would still have taken over 30 months to complete. In any event, the applicant submits that the overall delay far exceeds the Jordan timelines.
[6] The applicant says that the primary cause of delay in this case was a repeated failure on the part of the Crown to comply with their disclosure obligation, along with a lackadaisical approach on the part of the prosecution that resulted in several appearances where the assigned Crown did neither attend court nor provide instructions so that the matter could proceed. This culminated with a revelation that the prosecutor had failed to disclose critical evidence about communications between the lead investigating officer and the Crown attorney. This cavalier approach employed by the Crown has resulted in delay with four separate adjournments of the proceedings. Applicant’s counsel diligently worked to move this forward only to have the matter left unaddressed due to factors entirely beyond his control, with all but one adjournment squarely in the control of the prosecution.
[7] In addition, the applicant understands that some period of time was taken by another case in Hamilton (Hall), where the Crown had to argue an application for a material witness warrant. The motion was initially dismissed as a result of failures on the part of the issuing police to properly issue that subpoena. In addition to that delay, it appears that the Crown engaged in some five days of cross-examination of their own witness as well as an extensive K.G.B. application that had not been identified in advance as necessary. The applicant argues that it appears that the Crown had failed to accurately prepare and assess their case and consequently, was woefully inadequate in the estimated timelines to prosecute that case. The Hall case resulted in this court being unavailable to accommodate the applicant’s scheduled trial. None of the factors animating the delay in this case can be laid at the feet of the defence. In effect, the Crown prioritized that matter over this case.
[8] The applicant further submits that the lack of prospective dates for the completion of the trial make clear the inability of the Crown to ensure that he is tried within a reasonable time. Even if the net delay is below the threshold, the applicant says that he has met his burden for a stay of proceedings for matters under the 30-month presumptive ceiling for a trial in the Superior Court of Justice. Moreover, the applicant took meaningful steps to expedite the proceedings and the case took markedly longer than it reasonably should have. The applicant submits that the Crown cannot establish exceptional circumstances that justify a period of delay.
[9] The Crown responds that this is neither an abuse of process nor a disclosure motion. The narrower issue is whether the delay in proceeding to trial is unreasonable and the other issues identified by the applicant are merely a distraction.
[10] The Crown says that the applicant’s recurrent emphasis on untimely disclosure and alleged improprieties in both the investigation and prosecution of this case is irrelevant, beyond the obvious fact that late disclosure in this case has resulted in adjournments. This is not in dispute.
[11] The same can be said for prejudice. The Crown says that the recent appellate and Supreme Court of Canada authorities disavowed prejudice as an express factor in the s. 11(b) analysis. Instead, prejudice is now presumptively built into the Jordan ceilings. Only in transitional cases does it remain a formal consideration. In any event, the applicant’s enduring focus on prejudice is misplaced. Furthermore, prejudice cuts both ways: “[…] prolonged delays cause prejudice to not just specific accused persons, but also victims, witnesses, and the system of justice as a whole.”
[12] Accordingly, the Crown submits that when one examines the defence delay along with the exceptional circumstances that arose in this case, including the COVID-19 pandemic, this matter falls under the 30-month threshold according to the well-established s. 11(b) guidelines.
Legal Principles:
[13] Section 11(b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time. One of the two main purposes of s. 11(b) is the protection of an accused's rights to security of the person, liberty and a fair trial.
[14] In the seminal case of R. v. Jordan, 2016 SCC 7, [2016] 1 S.C.R. 631, Jordan, the Supreme Court of Canada reworked the entire rubric of delay and effectively overruled the previous analysis and procedure in R .v. Morin, [1992] 1 S.C.R. 771.
[15] The right to a speedy trial guaranteed by s. 11(b) of the Charter reflects the principle that “[t]imely justice is one of the hallmarks of a free and democratic society”: Jordan, at para. 1.
[16] Section 11(b) is also designed to protect the interests of society in the expeditious resolution of criminal proceedings. In Jordan, at para. 38, the Supreme Court noted that the pre-existing framework had become “too unpredictable, too confusing, and too complex,” and had “become a burden on already over-burdened trial courts.” According to the Supreme Court, a pervasive “culture of complacency” fostered delay throughout the system: at para. 4.
[17] The Supreme Court of Canada set a presumptive ceiling of 30 months for cases proceeding in the superior courts.
[18] In the post-Jordan era, courts are directed to undertake the following steps when considering a s. 11(b) Charter application. The first step is a calculation of the total length of time between the charge and the actual or anticipated end of trial. The next step is to determine whether any of the delay was waived by the defence or caused solely by defence conduct, and to subtract those portions from the total delay: R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-41, and R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, at para. 113. There are two types of defence delay: delay waived by the defence and delay caused solely by the conduct of the defence. Delay caused solely by the defence includes deliberate and calculated defence tactics aimed at causing delay and circumstances where the court and the Crown are ready to proceed, but the defence is not.
[19] If the net delay then exceeds the ceilings outlined in Jordan, it is presumptively unreasonable. Where the delay is presumptively unreasonable, the onus shifts to the Crown to demonstrate that the delay is nevertheless reasonable, considering any exceptional circumstances. In general, there are two categories of exceptional circumstances — discrete events and particularly complex cases. Exceptional circumstances have two subcomponents: “(1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise”: Jordan, at para. 69.
[20] Delay caused by exceptional circumstances may then be subtracted from the total delay to determine the remaining net delay. However, if the Crown could have reasonably mitigated the delay arising from a discrete event, it may result in only a partial amount of time being subtracted from the net delay. If the net delay remains above the 30-month ceiling, the court must determine if the case was particularly complex such that it justifies the length and renders the remaining delay reasonable.
[21] If the Crown is not able to rebut the presumption, the charges against the accused will be stayed: Jordan, at paras. 37-39. On the other hand, if the remaining delay falls below the presumptive ceiling, the onus is on the defence to prove that the delay is nevertheless unreasonable. To show that delay under the presumptive ceiling is unreasonable, the defence must demonstrate a sustained effort to expedite the proceedings and that the case took markedly longer than it reasonably should have. Stays for cases below the ceiling are rare: Jordan, at paras. 48, 82-83.
[22] On September 29, 2017, Belzil was charged after police had investigated allegations made by the complainant. Belzil was released and directed to attend next on October 10, 2017 for his first appearance.
[23] Belzil retained counsel prior to his first court appearance. On October 10, 2017 the matter was adjourned to November 6, 2017 for initial disclosure. Defence counsel contacted the Hamilton Crown Attorney’s office in order to determine the identity of the assigned Crown attorney. On October 12, 2017, Ms. Lepchuk of that office was designated.
[24] On November 6, 2017, disclosure was provided in court. The matter was adjourned to December 12, 2017, in order to complete an issue resolution meeting. A judicial pre-trial was scheduled for January 9, 2018.
[25] At the judicial pre-trial, the Crown took the position that they would call a single witness at the preliminary inquiry and would not call either young complainants or the former spouse. The defence identified three witnesses whose testimony was potentially necessary, subject to evidence heard at a preliminary inquiry. This potential evidence required three days with a child friendly courtroom. The defence also alerted the judicial pre-trial judge of the anticipated applications and agreed that any application would be filed in advance of the preliminary inquiry. The matter was then adjourned to the first available preliminary hearing date of August 1, 2018.
[26] On July 31, 2018, less than one day before the preliminary inquiry was to commence, the Crown advised the defence that there were some audio recordings on a seized phone belonging to the complainant that had not been disclosed. As a result of the late disclosure, the preliminary hearing had to be adjourned. The first available dates offered to accommodate the preliminary inquiry were January 2, 3, and 4, 2019. The matter was adjourned to August 28, 2018 for a further judicial pre-trial.
[27] In August 2018, additional disclosure was provided by the Crown. Unbeknownst to the Crown, one of the principal police officers in the case had inexplicably not provided numerous notes. At the defence request, three days were set aside in order to hear evidence of the complainant and argue the Clancey application and conduct examinations and cross-examination of witnesses called by the defence thereafter, if permitted.
[28] The preliminary inquiry commenced on January 2, 2019. At the conclusion of the complainant’s evidence, the defence took the position that the complainant’s evidence was sufficient for committal and it was no longer in the applicant’s interest to question additional witnesses, proceed with the Clancey application or make submissions on committal.
[29] A return date of January 21, 2019, in the Superior Court of Justice was offered and accepted in order to schedule a judicial pre-trial.
[30] On January 21, 2019, defence counsel’s colleague, Mr. Kaczmara, attended court with available dates in order to schedule a judicial pre-trial. The assigned Crown was not present, nor was there an instructed colleague with a list of the Crown counsel’s available dates. Defence counsel reiterated that “we were under the understanding that we would be setting a judicial pre-trial today. It’s unfortunate that the Crown does not have Mr. or Ms. Lepchuk’s dates, but if that’s what needs to be done.” The matter returned to the Superior Court on February 19, 2019. In the interim, a judicial pre-trial was conducted on February 6, 2019. On February 19, defence counsel attended court and scheduled motion dates for the first date offered; namely, May 2, 2019.
[31] On May 2, 2019, the change of venue motion was argued, and the matter was remitted to May 27, 2019, to schedule the trial and other Charter motions. Both defence and Crown advised that they would be prepared to schedule trial dates on May 27, 2019. Although both parties were prepared to set dates, the trial coordinator advised that the court could not accommodate the scheduling of dates, but that … “that can be done by email over the next week or so and we can book a date on the record at the next assignment court on June 24th”.
[32] On June 24th, the matter returned to court with Mr. Kaczmara present. The court posed questions to counsel based on the unavailability of Mr. Ghebrai and a protracted dialogue ensued regarding waiver of s. 11(b). Pre-trial motion dates were scheduled to commence October 22, 2019, for three days, (first dates offered were September 3, 2019), and trial dates were set to commence on February 18, 2020, (first dates offered were November 12, 2019).
[33] The pre-trial motions commenced on October 22, 2019. On the second day of evidence, it became apparent that the Crown was not in fact prepared to proceed as there was some outstanding disclosure that came to counsel’s attention. The Court returned on the third date scheduled for pre-trial motions, where it became evident that there was relevant disclosure still outstanding. As a result, another adjournment was necessary. The dates of December 12 and 23, 2019 were assigned for the purposes of completing the pre-trial motions. The Court noted explicitly that “the adjournment being granted does not fall at the feet of the defence whatsoever in this case… “
[34] Pre-trial motion submissions were completed on December 23, 2019, and the ruling on that application was reserved. The matter was adjourned to the trial date of February 18, 2020.
[35] The parties were notified in advance that the trial could not proceed due to the judge being seized of another matter in Hamilton going longer than scheduled. Belzil’s trial was further adjourned to commence on May 19, 2020. This was the only date offered by the trial coordinator, and the parties accepted the date.
[36] While Belzil’s trial was slated to commence on May 19, 2020 for two weeks with a jury, it had to be adjourned as a result of the COVID-19 pandemic. A new date for trial was set to begin on February 16, 2021.
Principles Applied to this Case:
[37] As mentioned, the Court of Appeal in Coulter, at paras. 34-40, set out the following steps which the court is required to analyze for s. 11(b) motions:
a) Calculate the total delay, which is the period from the laying of the charge to the actual or anticipated end of trial;
b) Subtract defence delay, including delay that is waived, from the total delay, which results in the “Net Delay”;
c) Compare the Net Delay to the presumptive ceiling;
d) If the Net Delay exceeds the presumptive ceiling, the Crown must establish the presence of exceptional circumstances, otherwise a stay will follow. Exceptional circumstances fall under two categories: discrete events and particularly complex cases;
e) Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”);
f) 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;
g) If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.
[38] The starting point for the Jordan analysis is calculating the Total Delay: the time between the charge laid on September 29, 2017 and the anticipated end of trial currently set for February 26, 2021. In this case, the total length of delay is 41 months.
[39] The next step is to subtract defence delay. It is now well-established that every actor in the justice system is responsible for ensuring that criminal proceedings are carried out within a reasonable time. Accused persons are not entitled to remain passive in the face of delay in the hopes of avoiding prosecution as the evidence in the cases against them grows stale over time. Where accused persons benefit from their own delay-causing conduct, such a result “operates to the detriment of the public and the system of justice as a whole”: Jordan, at para. 21.
[40] Accordingly, the conduct of the defence must be examined, and any delay attributable to that conduct or inaction subtracted from the total delay. Because the Charter governs state conduct, the conduct of the accused person or defence counsel that delays the trial does not count against the presumptive ceilings: Jordan, at paras. 21, 49, 60; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at paras. 1, 32-33.
[41] Defence caused delay comprises “those situations where the accused’s acts either directly caused the delay… or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial.” In situations where the Crown and the court are ready to proceed, “defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay”.
[42] Time needed for trial preparation will be classified as inherent delay within the Jordan framework. Examples of defence-caused delay include frivolous applications and requests, and periods during which the court and Crown are ready to proceed but the defence is not. However, these examples do not amount to an exhaustive list and it “…will of course be open to the trial judges to find that other defence actions or conduct have caused delay.” Such determinations are “highly discretionary”: Jordan, at paras. 60-66; Cody, at paras. 28-31.
[43] In determining whether a step taken by the defence is legitimate requires considerations of both substance and procedure. The decision to take a step as well as the manner in which it is conducted may attract scrutiny. Even where there is some merit, “a defence action may be deemed not legitimate […] if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay”: Cody, at paras. 31-32.
[44] In this way, defence inaction or omission may also render defence action illegitimate and excluded from the total delay. Such a finding need not amount to professional or ethical misconduct. Instead, the assessment of legitimacy “takes its meaning from the cultural change demanded in Jordan,” which requires that all justice system participants advance an accused’s right to a trial within a reasonable time: Cody at paras. 30-36.
[45] The Crown submits that there was the unnecessary scheduling of a three-day preliminary inquiry. In fact, only one day was required and the scheduling of the matter could have been completed much earlier had the defence provided an accurate estimate of time required. The Crown says that in this case, the delay to the defence equates to four months, 23 days (March 9, 2018 — when a one-day preliminary hearing could reasonably have been held to August 1, 2018, the first day of the original preliminary hearing dates).[^1] This ought to be deducted as defence delay stemming from the scheduling of the first preliminary hearing.
[46] Similarly, the Crown submits that two months, five days (October 28, 2018 — when a one-day preliminary hearing could reasonably have been held — to January 2, 2019, the first day of the subsequent preliminary hearing dates) should be deducted from the total delay as defence-caused delay.
[47] The Crown says that it clearly indicated its position that only one witness would be called at the preliminary hearing. Notwithstanding, the defence elected to schedule two additional days to examine the applicant’s two young children and cross-examine another witness not material to committal. Defence counsel chose to bring an application that was ultimately abandoned with no explanation. These decisions resulted in multiple days of unnecessarily scheduled court time and wasted resources, resulting in approximately six months of delay. The Crown says that where defence counsel underestimates, or grossly overestimates, the time required for a preliminary hearing or trial, the result should be treated as defence delay.
[48] The Crown says that the applicant chose not to call a single witness, leading to the preliminary hearing being completed in one-third of his time estimate. Despite having a full opportunity to exercise this important right by exposing the “fabrications” of the applicant’s former partner, counsel elected to call no further evidence and abandoned his Clancey application. The Crown submits that this choice certainly has bearing on the attribution of delay. With the benefit of hindsight, the Crown’s estimation of the time and witness requirements proved accurate. The applicant also asserts that the Crown’s agreeing to the cross-examination of a witness at the eventual trial somehow has bearing on the characterization of delay resulting from his overestimate of time required for the preliminary hearing. The Crown says that this argument is specious. Simply put, a trial and a preliminary hearing are entirely different forums serving distinct purposes.
[49] Finally, regarding the applicant’s reasons for not calling further evidence and abandoning his Clancey application, the Crown submits that the explanation provided at paragraphs 32-36 of his factum should be dismissed. The reasons provided are not fact and are merely argument and are not admissible.
[50] The applicant responds that no time should be deducted from the presumptive ceiling as defence delay. No segments of delay were expressly waived. Rather, at all times defence counsel was diligent in moving the matter forward and articulating disclosure concerns to the Crown attorney. This disclosure must be given prior to the scheduling of a preliminary inquiry or trial, to allow the party to take all aspects into consideration. The applicant argues that the failure of the police in complying with their disclosure obligations constitute ‘actions of the Crown’ and the Crown is at fault for that breakdown.[^2]
[51] The applicant responds that although a three-day preliminary hearing was appropriate when set, the defence was alive to its professional and ethical obligations and duty to the court. Counsel concluded the case at that time and did not waste court resources or unnecessarily question vulnerable witnesses. The applicant argues that to accept the Crown’s argument would be to conclude that either: defence counsel ought not alert the Court at judicial pre-trial proceedings of potential witnesses that may be foreseeably required, thereby regularly causing additional delay and adjournments to procure additional witnesses and secure further time down the road or; that the defence, upon hearing evidence that removes the necessity of witnesses or committal arguments, should nonetheless waste court time and resources to make unnecessary arguments, and potentially cause additional trauma for a young child to testify. All this to simply avoid being criticized at a later date for making completely proper decisions that benefit all judicial participants.
[52] I observe that the Crown relies, inter alia, on R. v. Makani¸ 2011 ONSC 4463. With respect, the case is distinguishable. In Makani, the defence waived the preliminary inquiry without hearing from or cross-examining any witnesses. No reasons were put on the record as to why the preliminary inquiry was waived at the last minute, after the passage of ten months of delay. The Crown requested that the trial judge infer that the defence was not ready to proceed. The defence submitted that the judge should infer that there was insufficient time to complete the two-witness preliminary hearing. Code J. adopted the reason in R, v, Taylor, 2010 ONSC 1632, [2010] O.J. No. 1086. That case stood for the proposition that where the preliminary inquiry is waived at the last minute, and where the record is silent as to why there was a last minute cancellation of the preliminary hearing, in that there were no expressed reasons for the waiver, the entire period of delay should be treated as neutral or inherent time requirements.
[53] In Makani, Code J. stated at para. 10, inter alia:…
I agree with Gray J. that it is unfair to treat all of the delay caused by scheduling a preliminary inquiry, that proves unnecessary, as institutional delay that weighs against the Crown. However, the fact remains that the Ontario Court's earliest available date was ten months away, which indicates a systemic problem. Furthermore, there are many reasons for a last-minute waiver of a preliminary inquiry and they appear to have been the subject of at least some discussion between counsel. Neither party chose to put those reasons on the record. The fairest way to deal with this issue is to divide the ten-month period and allocate five months to institutional delay and five months to the neutral or inherent time requirements of the case…
[54] Context is always important, too. As previously indicated, some of the time that made up the three-day estimate was due to the Crown refusing to call certain witnesses, and then opposing cross-examination. Nonetheless, counsel is entitled to re-assess the case as it unfolds or evolves. Here, during the proceedings, counsel made a tactical decision not to proceed with the Clancey application and to call further witnesses. I am persuaded that this decision was taken during the course of the preliminary inquiry and was not for any nefarious or delaying purpose. While, it is true that a one-day preliminary inquiry could have been scheduled expeditiously - with less delay at the time and down the road - I do not fault defence counsel for his tactical decision or the conduct at that stage of the proceedings.
[55] As the Court of Appeal for Ontario noted in R. v. R.S., 2019 ONCA 906, the primary purpose of the preliminary inquiry is to screen out meritless allegations. Indeed, “[a]n accused's right to obtain a timely judicial evaluation of the evidence offered by the Crown with a view to avoiding ‘a needless and, indeed, improper, exposure to public trial’ is a significant and substantive right”.
[56] On this issue, I accept applicant counsel’s submissions regarding the tactical approaches taken and the rational for not requiring additional days for the preliminary inquiry. I am satisfied that these decisions were made for legitimate reasons. At the same time, the Crown did not act unreasonably prior to and during the preliminary inquiry stage.
[57] The Crown also requests that if the preliminary hearing time overestimate is not a defence delay, that this time ought to be characterized as a discrete exceptional circumstance. I do not accept that argument as it is not supported in law or based on the prevailing jurisprudence.
[58] Thus, the overall time and delay due to the scheduling and aborted use of several days of court time at this proceeding is neutral.
Defence Delay – Unavailability of Defence Counsel
[59] Defence delay includes periods of time when the Crown and the court are ready to proceed, but defence counsel is not: Jordan, at para. 64 Cody, at para. 55.
[60] The applicant invokes the passage in the pre-Jordan decision R. v. Godin, 2009 SCC 26, holding that “s. 11(b) does not require defence counsel to hold themselves in a state of perpetual availability”.
[61] Whether or not Godin remains good law post-Jordan remains to be seen. I note that the case was acknowledged by the Ontario Court of Appeal in R. v. Albinowski, 2018 ONCA 1084. In Albinowski, the court refused to accept that the oft-cited passage in Godin had been implicitly overtaken by the Supreme Court’s decision in Jordan. Various courts have taken a myriad of approaches on the issue and have distinguished its impact. The question is also the subject of some recent commentary from the Court of Appeal.
[62] As I held in R. v. Safdar, 2018 ONSC 7067, at paras. 123 and 124:
There is a debate as to whether trial courts have read Jordan and Cody as implicitly overruling the Supreme Court’s previous position in Godin. In Godin, the Supreme Court stated defence counsel are not required to hold themselves in a perpetual state of availability, thus allowing some leeway in scheduling: R. v. Grewal, 2018 ONCJ 108, at para. 16; Sookdeo, at para. 18; St. Armand at para. 10; and Coulter at paras. 73-74.
It is trite to state that Jordan is the law of the land. Under the new framework, is there any latitude regarding counsels’ availability in circumstances where the Crown and the court are ready? Some jurists have determined that defence unavailability for a rescheduled trial date was not defence delay because of the reasons for adjournment. In that vein, I note that the case law emanating from British Columbia tends to differ somewhat from the general, albeit not universal, approach taken in Ontario.
[63] Although the case of Safdar differs from this case in that factual underpinnings are distinguishable. Importantly, the s. 11(b) application was brought at the very end of the trial and there were extensive efforts by all defence counsel to make themselves available in mid-trial with no adjournment requests due to ongoing disclosure issues.
[64] As the ceilings established in Jordan are intended as presumptive statements as to reasonable delays for which the state is responsible, actions that are not properly attributable to the state, such as those attributable to defence counsel or to the accused person, are excluded from the total calculation of delay. Where a date is available to the Crown and court, but refused by defence counsel, this is defence-caused delay.
[65] However, the words of Cromwell J. in Godin may have been supplanted by the Supreme Court decision in Jordan, Cody and, most recently, confirmed in the R. v. Thanabalasingham 2019 SCC 18 at para. 9: “[d]efence counsel must be aware that, aside from time legitimately taken to respond to the charges, they "will have directly caused the delay if the court and the Crown are ready to proceed, but [they are] not.” I accept that this may influence the comments of Cromwell J.’s earlier passage in Godin, at para. 23. See also R. v. Mallozzi, 2018 ONCA 312 at paras. 5-6, Albinowski, at paras. 28-38. R. v. Ameerullah, 2019 ONSC 4537 at paras. 28-30, R. v. Balogh, 2020 BCCA 96 at paras. 21-31.
[66] Again, as this evolving area of law makes clear, context is always important — not every single offer of a date for which the Crown and Court are both available, while the defence is not, will count as defence delay without further analysis. Each case turns on its facts.
[67] I appreciate that Jordan has created inherent time frames for trial. However, defence unavailability will not automatically be counted as defence delay, if the delay was not solely caused by the defence or the delay is legitimately taken to respond to the charges. There must be a balance between counsel remaining static in a state of perpetual availability and such unavailability causing delay.
[68] However, in this case, I return to the transcripts of June 24, 2019. I note the comments of defence counsel placed on the record.
[69] When queried by the court if the defence unavailability is an 11(b) waiver, Mr. Kaczmara responded: “I’m not sure if it’s an 11(b) wavier but the defence, it is attributable to the defence. After speaking with his principal Mr. Kaczmara stated:” [m]y position is that , as per Jordan, this isn’t an 11(b) waiver though but on the record, I’m fine to say this is defence delay, 100%. I can’t claim 11(b) waiver.”
[70] In my view, this segment of delay was completely attributable to the defence based on the specific and unqualified statements made by counsel at that time. There can be no other interpretation that places delay due to the unavailability of the defence.
[71] The transcripts reveal that the first pre-trial motion date offered was September 3, 2019, and the first available trial date was November 12, 2019. The Crown and Court were both available; defence counsel was not. The pre-trial motions were then scheduled to commence October 22, 2019, with the trial scheduled to commence February 18, 2020.
[72] Accordingly, I agree with the Crown that the time from November 12, 2019 to February 18, 2020 (three months, six days) is properly characterized as defence delay under the Jordan analysis. Indeed, I accept that counsel did not vigorously contest this period of time based on the record of the proceedings on June 24, 2019.
[73] In sum, the combined defence delay is three months and six days. For the sake of argument, the net delay in this case is 38 months.
Exceptional Circumstances:
[74] I next turn the area of analysis of exceptional circumstances applicable on the facts of this case. In instances where, after having deducted defence-caused delay, the time period remains above the applicable 18 or 30-month ceiling, it falls to the Crown to show that the delay is reasonable because of the presence of exceptional circumstances. Such circumstances lie outside the Crown’s control in that (1) they are reasonably unforeseen or reasonably unavoidable; and, (2) the Crown cannot reasonably remedy the delays emanating from those circumstances once they arise.
[75] As mentioned, to rely on such circumstances, the Crown needs to show that it took reasonable steps to avoid and address the problem where possible to have done so. It need not, however, prove that the steps taken were ultimately successful. Nor is the Crown required to “exhaust every conceivable option for redressing the event in question to satisfy the reasonable diligence requirement”: Jordan, at paras. 69-71; Cody, at paras. 44-46, 48, 54. The circumstances need not be “rare or entirely uncommon.” Jordan, at paras. 69-71, Cody, at paras. 44-46; 48; 54.
[76] Compelling case-specific factors remain relevant to assessing the reasonableness of periods of delay both above and below the ceiling: Jordan, at para. 51. It will be for the trial judge, relying on his/her good sense and experience, to determine whether a particular event is properly determined to be exceptional: Jordan, at paras. 73-4; Cody, at paras. 46, 48, 58-59, 163-165.
Exceptional Circumstances – Unavailability of Presiding Justice
[77] While the existence of presumptive ceilings should enhance analytical simplicity and foster constructive incentives, they are not “the end of the exercise.” Compelling case-specific factors remain relevant to assessing the reasonableness of periods of delay both above and below the ceiling. As stated by the majority in Jordan, “reasonableness cannot be captured by a number alone, which is why the new framework is not solely a function of time.” Jordan, at para. 51.
[78] While discrete events such as family or medical emergencies traditionally qualify as exceptional circumstances, so too will instances of unexpected and unavoidable developments in a case, including where a witness unexpectedly recants, or where a trial goes longer than reasonably expected despite best efforts to complete the trial in the time estimated in good faith by the parties. Jordan expressly contemplates this unpredictable reality at paras. 72, 73 and 81. See R. v. Gopie, 2017 ONCA 728, at paras. 163-164, R. v. Baron, 2017 ONCA 772 at para. 50.
[79] The Crown submits that in this case, the unavailability of the presiding judge is a discrete event. Generally speaking, delay caused by a shortage of judicial resources is not deductible from total delay. I observe that many of those cases comment negatively on the lack of judicial resources to commence the trial on the scheduled date. However, the analysis requires a more nuanced approach to the particular circumstances of each case.
[80] The applicant argues that the adjournment from February 18, 2020, to the second anticipated trial date of May 19, 2020, can also be squarely placed at the feet of the Crown. It was premised on the prosecuting police force in an unrelated case failing to properly issue a subpoena, and the prioritization of that case over Belzil’s by the Crown. This adjournment contributed to push the delay above the tolerable 30-month Jordan ceiling.
[81] Respectfully, I must disagree. I am persuaded that the continuation of a first-degree murder trial in Hamilton (Hall), for entirely legitimate reasons falls squarely within the ambit of discrete exceptional circumstances identified in Jordan. It is true that a material witness was chiefly the reason for the delay in Hall. As outlined in Detective Little’s (“Little”) affidavit, “Ms. Eaton’s testimony caused unexpected delay that, in turn, resulted in this Honourable Court being unable to commence the trial of this matter as scheduled in February 2020”.
[82] As the trial judge in Hall, I am in the best situation to understand the complexities of, and reasons for the delay. While the parties rely on Little’s affidavit to provide necessary context, I am positioned to reject outright the applicant’s commentary in his factum, wherein he alleges impropriety on the Crown in completing the Hall case first. In the same vein, I dismiss the applicant’s critique that the Crown somehow failed to disclose what it had no possibility of knowing beforehand; namely, that a central Crown witness would not attend court, leading to her eventual arrest with eight days of fraught testimony along with other applications that arose in that case. All of these considerations would never have been unanticipated by anyone.
[83] From an objective and dispassionate perspective, there was nothing wrong— and indeed, much right — in preferring and continuing the Hall re-trial. Any suggestion that the Court should have halted Hall to immediately shift to the applicant’s trial demonstrates a misapprehension of the intricacies of the criminal justice system and the competing pressures and burdens it faces. The oft-cited case of R. v. Allen, [1996] O.J. No. 3175 (C.A.) at para. 27 (C.A.) is instructive. “No case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around any one case but must try to accommodate the needs of all cases….” See also R. v. Brissett, 2017 ONSC 401 at paras. 29-30; aff’d 2019 ONCA 10, R. v. K.G.K., 2020 SCC 7 at para. 61.
[84] In sum, Hall was a high-profile retrial of a first-degree murder case. It had been in the system for a decade. The fact that the Hall case precluded the continuation of this matter was entirely unforeseen with no fault to attribute to the Crown attorney or the lack of judicial resources. It was not a matter where another available judge could continue with this trial.
[85] I find that not only was it reasonable, but as trial judge in both cases, it was imperative that the Hall trial continue, which unfortunately impacted this proceeding. Accordingly, I agree with the Crown. I find that this situation is an exceptional circumstance. As such, the delay from February 18, 2020 (the original trial commencement date) to the rescheduled trial dates commencing May 18, 2020 should be subtracted from the Jordan quantum. This equates to three months.
Exceptional Circumstances – COVID-19 is a Discrete Event
[86] Finally, and without any reservation, the current COVID-19 pandemic is the quintessential discrete exceptional circumstance as defined in Jordan. It could not be foreseen or avoided, and nothing could be done to reasonably remedy, or mitigate the ongoing court delays arising out of this crisis.
[87] I take judicial notice of the pandemic and its ongoing effects on the justice system, as well as the Government’s ongoing response, pursuant to ss. 17 and 22(1) of the Canada Evidence Act (R.S.C., 1985, c. C-5), ss 17, 22(1).
[88] One of the obvious impacts of the pandemic is the Superior Court of Justice’s ongoing inability to schedule jury trials. Pursuant to the Superior Court’s Notice to the Profession, Litigants, Accused, Media and Members of the Public (June 25, 2020), “[j]ury matters will continue to be deferred until at least September 2020.” The Central South Region’s Notice to the Profession Re: Civil, Family, Criminal Expansion (June 26, 2020) reiterated this estimation, adding: “A reminder to counsel that there are currently no jury trials being conducted until September 2020 at the earliest.”
[89] The applicant acknowledges that the pandemic is an exceptional circumstance. However, the applicant does not attribute the entire (and ongoing) period of delay to this issue. Instead, while acknowledging that the delay from the anticipated conclusion of the matter at the end of May 2020 until the resumption of court on July 6, 2020 can be fairly categorized as an exceptional circumstance, he take the position that from July 6, 2020, onward, the delay clock continues. I reject this submission and find that there is no basis in fact or law to support this abbreviated timeframe.
[90] The applicant elected to have his trial by a Superior Court judge sitting with a jury. That remains his constitutional right. However, the COVID-19 pandemic continues to preclude the parties from setting new trial dates. It is beyond dispute that this situation was completely unforeseeable and still cannot not be remedied by either of the parties, despite the Superior Court re-opening on a limited basis on July 6, 2020. In fact, that re-opening was short lived, in that jury trials are still suspended at the time of this writing.
[91] I adopt Nakatsuru J.’s detailed discussion and analysis on this very issue in the case of R. v. Simmonds, 2020 ONSC 7209 at paras. 67 – 76.
[92] Accordingly, it is beyond question that the pandemic creates an unfortunate situation whereby trials are delayed. During the time that jury trials are suspended, any delay falls under a discrete event.[^3]
[93] On this point, I agree entirely with the Crown. The timeframe from May 27, 2020 (the anticipated end of Belzil’s previously scheduled trial) to February 26, 2021, (the anticipated end of Belzil’s current scheduled trial), should be deducted.[^4] This period equates to nine months.
Summary of Delay in the Present Case
[94] The appropriate Jordan delay calculation in this case is as follows: Total Delay: 41 months. Subtract defence delay of three months – defence unavailability. The Net Delay is 38 months. Subtract discrete events of three months due to the unavailability of the court and nine months for the COVID-19 pandemic. The final result is 26 months, which is below the 30-month threshold in Jordan.
Delay Below the Presumptive Ceiling – The Applicant has not met his Onus
[95] Where the Jordan threshold is not exceeded, stays of proceeding will be “rare” and “limited to clear cases.” A stay will only be imposed if the accused establishes that the defence took “meaningful steps that demonstrate a sustained effort to expedite the proceedings and the case took markedly longer than it reasonably should have. “Meaningful steps” means more than token efforts, such as simply putting on the record that the defence had earlier dates. The defence must be proactive and must cooperate with the Crown and the Court to avoid delays and put the Crown on timely notice when issues arise that may delay the trial: Jordan at paras. 48, 82-91 K.J.M. at paras. 77-78, 83, 104.
[96] Despite the very able submissions of counsel, I am persuaded that the applicant has neither demonstrated meaningful steps nor a sustained effort to expedite these proceedings, at least at the Superior Court level. I accept the evidence adduced by the Crown and note that the record is principally silent on positive measures undertaken by the applicant to expedite the proceedings in this court to the pace he now demands. In fact, it was the Crown who took proactive steps to move the matter along, including numerous contacts with the trial coordinator during the hiatus in 2020.
[97] Finally, this case has not taken markedly longer than it should have; when considering the nature of the charges, expected evidence with a child witness, anticipated defences including collusion on the part of the applicant’s ex-partner, and the necessity of the pre-trial motions involving delayed disclosure and an abuse of process.
Conclusion:
[98] I am not satisfied that the applicant has demonstrated a breach of his s. 11(b) Charter rights warranting a stay of proceedings in this case.
[99] Given that the trial date may still be subject to further delays, this application is dismissed, without prejudice. The applicant may revisit the issue along with any collateral Charter relief at the conclusion of the trial.
A.J. Goodman J.
Released: February 1, 2021
DATE: 2021/02/01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Crown
- and -
MATTHEW BELZIL
Applicant
RULING WITH RESPECT TO THE APPLICATION PURSUANT TO SECTION 11(B) OF THE CHARTER
A. J. GOODMAN J.
Released: February 1, 2021
[^1] Affidavit of Stefanie Day containing emails from the trial coordinator, Andrea Rohaly, at the St. Catharines Ontario Court of Justice, in which she states that generally she would have been able to offer a one-day matter “in a month or two”. Unfortunately, there does not appear to be a paper record, but the Crown allows for the outside window of this estimate for this application.
[^2] I agree with the Crown that the applicant comingles his complaints of inadequate or delayed disclosure with this application. That issue was already addressed in the abuse of process application heard in December 2019.
[^3] It remains to be seen how any delay beyond the lifting of the suspension of proceedings and prioritizing jury trials will impact that analysis, but I leave that for another day.
[^4] In any event, I also note that the Crown and the Court were available for a three-week block at the end of November and beginning of December 2020, where the defence was not. However, this period of time is captured under the exceptional circumstances.