COURT FILE NO.: CR-20-40000282-0000

DATE: 20220602

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ZHUXI SHEN

Daniel DiSantis, for the Crown

Taro Inoue, for the Defence

HEARD: May 26, 2022

R.F. GOLDSTEIN J.

1Mr. Shen is charged with one count of sexual assault. The Crown alleges that that Mr. Shen sexually assaulted the complainant while she was incapable of consenting. Mr. Inoue, on behalf of Mr. Shen, has brought an application to stay the proceedings pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms.

2The trial is set for June 6, 2022. The filing deadline under the Criminal Proceedings Rules was Friday May 6, 2022. On Monday May 9, 2022 Mr. Inoue informed Crown counsel, Mr. DiSantis, that he would be filing an application under s. 11(b) of the Charter. On May 12, 2022 Mr. Inoue filed his material. Mr. Inoue was waiting for his last transcript before he filed. Crown counsel asked for a judicial pre-trial to discuss this late filing. As a result of that judicial pre-trial, I ordered that there be a hearing for me to determine whether the application should be struck for non-compliance with the Rules, and whether the application has a reasonable prospect of success. I ordered a hearing in my capacity as the administrative judge for criminal matters in the Toronto Region.

3The application not only failed to comply with the Criminal Proceedings Rules. The application also failed to comply with the province-wide Practice Direction. The Practice Direction mandates a judicial pre-trial where defence intends to bring a s. 11(b) Charter application where the original pre-trial did not consider a s. 11(b) application. A s. 11(b) application must be heard at least 60 days prior to the scheduled trial date.

4On May 26, 2022, I head submissions from counsel. On May 27, 2022 I dismissed the s. 11(b) application with reasons to follow. These are my reasons.

BACKGROUND

5The accused was charged on September 19, 2019. The presumptive Jordan date was March 19, 2022. The trial date is set for June 6, 2022. The accused initially elected trial in the Ontario Court of Justice. A trial date of November 4-10, 2020 was set on December 18, 2029. Mr. Shen changed counsel in July 2020. On July 16, 2020, With the Crown’s consent, new counsel re-elected trial by judge and jury in the Superior Court. First appearance was in the Superior Court on August 14, 2020. A trial date of September 14, 2021 was set.

6On September 9, 2021 Crown and defence counsel appeared in assignment court to confirm the trial date for the following week. I was the assignment court judge. I told counsel I expected to have a courtroom and a judge available. On September 14, 2021, the date set for trial, the matter was not reached. I was also the judge on that date, acting in my capacity as the administrative judge for criminal matters in Toronto. No judge was available, although I indicated that if the defence was prepared to re-elect to a judge-alone and the Crown consented a judge may have become available. The next day, September 15, 2022 the matter was again not reached. I stated:

Okay, good morning. So as I said, I think this is – it’s very – we’re just not going to be able to accommodate it this week. Unfortunately due to the pandemic we’ve had a, such a backlog and this is just not a matter we’re going to be able to accommodate so I’m going to have to ask you to speak to the trial coordinator and get a new trial date.

7The new trial date of June 6, 2022 was subsequently set.

ANALYSIS AND ISSUES

8An application shall not be heard without leave where the applicant has failed to comply with the Rules: Rule 34.03 of the Criminal Proceedings Rules. As well, the court may dismiss an application where it has no reasonable prospect of success: R. v. Kutynec (1992), 1992 CanLII 7751 (ON CA), 7 O.R. (3d) 277 (C.A.) at para. 31.

9As I have noted, I required defence counsel to explain why leave should be granted despite non-compliance with the Rules. I also required defence counsel to explain whether the s. 11(b) application had a reasonable prospect of success.

10Thus, there are three issues to be determined:

(a) Should the application be dismissed for non-compliance with the Rules?

(b) Does the application have a reasonable prospect of success?

(c) Do the broader interests of justice favour summarily dismissing the application?

(a) Should the application be dismissed for non-compliance with the Rules?

11The defence acknowledged that it failed to file its s. 11(b) Charter material on time. The defence argues that the failure was a minor one. The Crown was given notice only three days after the 30-day period – indeed, it was only the Monday after the Friday the material was due. The defence was waiting for the final transcript, and when it received that transcript the material was filed only 6 days after the deadline. The defence argued that this was merely a technical breach. It was only a few days beyond the deadline. Moreover, the issues on the s. 11(b) argument are simple. The Crown will not suffer any real prejudice.

12I cannot help but pause to note the irony of arguing that the deadline was missed by only 6 days (of 30) and not a serious breach, while at the same time arguing that missing the Jordan deadline by three months (of 30) is a serious breach.

13In any event, I cannot agree with the defence argument. The failure to file was more than a technical breach of the Rules. The defence application also did not comply with the Provincial Practice Direction /Amendment to the Criminal Proceedings Rules Regarding Criminal Proceedings. The Practice Direction mandates that s. 11(b) applications be heard – not just filed – at least 60 days in advance of trial. The reason for that is to prevent exactly what happened in this matter if the application is allowed to go ahead: it will create systemic issues with knock-on effects for other cases and increase overall delay in the system. If the application is allowed to proceed, it will likely take something like a day of court time. A judge will need some time to read the material and decide. This trial is set for two weeks with a judge and a jury. If two days (or more) are spent on this unanticipated preliminary matter, it may well cause the trial to go into a third week. That of course, would then take a judge and a courtroom away from matters scheduled to commence that week – thus creating the knock-on effect.

14Unanticipated events often happen in the courts: sometimes witnesses recant at a trial preparation meeting. The recanting generates new disclosure. That may generate new issues. Sometimes witnesses or counsel become ill. Sometimes new disclosure, previously thought lost or unavailable, becomes available shortly before or during trial. An issue previously thought to be minor turns out to be important in the light of new evidence.

15An application under s. 11(b), however, is not an unanticipated event. It was obvious after the trial wasn’t reached that the presumptive Jordan deadline would be breached. In the absence of any notice from defence, the Crown (and the court) were entitled to assume there would be no s. 11(b) application. Indeed, considering the pandemic backlog participants could have assumed that a s. 11(b) application was quite obviously without merit.

16I turn to the Rules and the Practice Direction.

17Rule 34.03 of the Criminal Proceedings Rules states:

34.03 Where an applicant has failed to comply with the rules governing an application, the application shall not be heard unless the presiding judge grants leave, after taking into account all the circumstances of the case, including but not limited to:

(a) the nature of the applicant’s non-compliance with these rules;

(b) the right of the applicant to raise issues, including issues relating to the admissibility of evidence and to have those issues determined on their merits;

(c) the right of other parties to have a reasonable opportunity to respond to any issues raised by an applicant;

(d) the need for an expeditious determination of pre-trial applications and the orderly conduct of trial proceedings;

(e) the history of the pre-trial applications and the proceedings;

(f) any notice given to other parties about the issues raised in the pre-trial applications;

(g) the apparent merits of the application as reflected in any materials filed and any submissions made in the proceeding;

(h) any prejudice to any other party in the proceeding;

(i) the nature of the issues raised and the extent of their impact on the course of the trial or other proceeding;

(j) any explanation advanced for failure to comply with these rules; and,

(k) any other factors the judge considers relevant to his or her determination.

18The Court also has the power under Rule 34.02 to summarily dismiss an application:

34.02 The presiding judge may conduct a preliminary assessment of the merits of any pre-trial or other application on the basis of the materials filed, and, if satisfied that there is no reasonable prospect that the application could succeed, may dismiss the application without further hearing or inquiry.

19The Practice Direction is issued by the Chief Justice. It is incorporated by reference into the Rules: s. 482(2) of the Criminal Code. It is a rule, not a guideline; it is mandatory. The current Practice Direction was issued on August 12, 2020, more than a year before this matter was dealt with in September 2021. The requirement of a notice, a judicial pre-trial, and a hearing date 60 days before trial is not new, however. It was also contained in previous practice directions, including the Practice Direction that was in force from May 2017 to August 2020.

20Part IV of the Practice Direction deals specifically with applications under s. 11(b) of the Charter. The key sections are these:

20. Where the defence (eg. an accused person or their counsel) intends to bring a s. 11(b) application but did not indicate this at the pre-trial conference, the defence must provide written notice of this change in position to the Crown, any other accused and the Superior Court trial coordinator, and arrange for a further pre-trial conference as soon as practicable, as required under rule 28.04(11).

21. The pre-trial conference judge will inquire about and discuss any matter that may promote a fair and expeditious hearing of the s. 11(b) application including, but not limited to, (i) the scheduling of the application; (ii) the parties’ positions as to the cause of any particular periods of delay in the case, including whether the delay is attributable to the defence or to “extraordinary circumstances”, as defined in v. Jordan, and (iii) the materials required to be filed in support of the application.

22. Unless otherwise directed by a judge, all s. 11(b) applications must be scheduled to be heard at least 60 days before the first scheduled day of trial or, where pre-trial applications are scheduled to be heard separately in advance of the trial, at least 60 days before the first scheduled day of pre-trial applications.

23. Before filing a s. 11(b) application, the applicant must obtain a hearing date from the court. Before seeking this date from the court, the applicant will be expected to consult with the Crown and any other accused to canvass all parties’ available dates and a reasonable time estimate for the hearing of the application.

21The Practice Direction anticipates that during the original Superior Court pre-trial defence counsel may not have raised s. 11(b). That is because delay may be generated after the form is filed. The Practice Direction mandates notice to the court and the Crown. The Practice Direction also mandates a judicial pre-trial, to ensure that what happened here does not happen. The Practice Direction mandates that the defence material be filed 30 days prior to the hearing of the s. 11(b) application. Thus, the actual filing deadline is not 30 days prior to trial, but at least 90 days.

22I am sympathetic to the notion that there are a multitude of practice directions, notices, and orders emanating from the Court and the different regions. I understand that it may be confusing figuring out which practice direction applies in which situation. That does not excuse counsel from the obligation of compliance, of course.

23Perhaps more importantly, as a matter of common sense it should be apparent to any criminal counsel that when they become aware that they will be filing an application that they must act. Counsel cannot just keep it to themselves and then spring it. Counsel shouldn’t need a practice direction to tell them that failing to alert Crown counsel and the court about a serious application will generate delay, complication, and other adverse consequences.

24Moreover, the Jordan framework, in place since 2016, takes account of defence conduct – and explicitly encourages cooperation. As Moldaver, Karakatsanis, and Brown state at para. 86 of Jordan:

… this requirement reflects the practical reality that a level of cooperation between the parties is necessary in planning and conducting a trial. Encouraging the defence to be part of the solution will have positive ramifications not only for individual cases but for the entire justice system, thereby enhancing - rather than diminishing - timely justice.

25As the Supreme Court noted in Cody at para. 36, “… all participants in the criminal justice system share this responsibility.”

26A section 11(b) application is a major undertaking. It requires ordering transcripts and often chasing them down. It requires the preparation of a significant application record. It isn’t a pro-forma application that can be generated in a few minutes. It takes time and resources for the court and the Crown to deal with. Even if an individual counsel somehow didn’t know the specifics of the Practice Direction, the responsible thing to have done was to have alerted the Crown. Defence counsel undoubtedly started the process of ordering transcripts months ago. That is when the Crown – at the least – should have been notified. That would undoubtedly have started the process of obtaining an early date for the hearing.

27It is also no excuse that transcripts were outstanding. Filing without all the transcripts and alerting the court and the Crown that some are ordered but not received is certainly preferrable to waiting for the last transcript before filing. Indeed, that is what counsel routinely do.

28When I apply the factors set out in R. 34.03, I make the following findings:

• The non-compliance with the Practice Direction and the Rules was not the type of ongoing or egregious conduct that calls for sanction. See, for example, R. v. Kazman, 2020 ONCA 22. That case involved repeated and flagrant failures. The failure here was not repeated and flagrant but it was also not a mere technical or trivial failure.

• I am sympathetic to the defence right to raise an important issue, but this application has no reasonable prospect of success, as I will explain.

• The way that this application developed did not allow for the orderly and expeditious conduct of the application, and if trial time is used it will not allow for the orderly conduct of the trial.

• The notice given to the Court and to the Crown was completely inadequate.

• The explanation for the failure to comply with the Practice Direction and the Rules is inadequate.

• One of the key factors here is systemic. As I keep repeating, there is a significant backlog in the Superior Court because of the Covid-19 pandemic. Court resources, particularly courtrooms and judicial time, are at a premium. At this moment in mid-2022, we are feeling significant effects from the pandemic, and will for some time. Jury trials in the Superior Court were suspended, cumulatively, for well over a year. In Toronto, where I sit as the administrative judge for criminal matters, we are struggling as we try to hear many serious cases. We also need to address cases where individuals may have been in custody for inordinate periods of time. We have made scheduling modifications to try and hear more cases more efficiently and demanded greater accountability from counsel. This, of course, is in accordance with comments in Jordan and Cody that judges should use their trial management powers to streamline cases and dispose of issues with little chance of success.

29No judge should be a martinet about enforcing the Rules. A zero-tolerance policy is obviously unworkable and unwise. This application, however, also has little merit. The knock-on effects encroaching on trial time for this and other matters is an important consideration. Leave is not granted to entertain the application.

(b) Does the application have a reasonable prospect of success?

30Even if I had granted leave to hear the application, I would still summarily dismiss it as having no reasonable prospect of success: Kutynec, supra. When I first reviewed the material, I indicated to counsel that I thought that it was not very likely to succeed. I also said, however, that at first glance it was not frivolous. Upon further reflection, and a more complete review of the material, I determined that my initial impression was wrong. The s. 11(b) application has no reasonable prospect of success.

31There were two key periods of delay: the first was the delay generated because of the decision to re-elect trial in the Superior Court. That is a period of delay attributable to the defence. The second was the period from the first trial date in Superior Court to the second trial date. That was a delay caused by a discrete event, namely the Covid pandemic. Subtracting either of these time periods from the total delay would bring the net delay well below the Jordan date: R. v. Coulter, 2016 ONCA 704 at paras. 34-39.

32I turn first to the re-election.

33As noted, trial in the Ontario Court of Justice was set for November 4-10, 2020. That was 14 months after arrest. Mr. Shen re-elected trial in the Superior Court on July 16, 2020. First appearance was in the Superior Court on August 14, 2020. A trial date of September 14, 2021 was set. The trial date was 24 months after the arrest date, well within the Jordan framework. The new trial date is June 6 – three months beyond the Jordan deadline of 30 months in the Superior Court.

34The decision to re-elect trial in the Superior Court after setting a trial date in the Ontario Court of Justice cannot be characterized as a deliberate tactic designed to create delay: Jordan at para. 63. I accept that it was a legitimate change of course. Nonetheless, the decision to re-elect carried with it an implicit waiver. Had the initial election for a Superior Court trial taken place in December 2019, the matter would have gone to an assignment court in January 2020 and a trial date in Superior Court set at that point, rather than in August of 2020. As Jordan emphasized at para. 60, the defence “should not be allowed to benefit from its own delay-causing conduct.” As MacDonnell J. observed in R. v. Browne, 2020 ONSC 5244 at paras. 51 and 53 it is not only “illegitimate” defence conduct that will generate delay.

35It is true that the Crown did not specifically ask defence to waive the delay arising from the decision to re-elect. I am not bound by that: Browne at para. 50. While it is certainly better practice to put everything on the record, the failure to do so ought not to transform what is obviously seven months of defence delay into something else.

36In my view, the decision to re-elect was also analogous to the decision to change counsel. There is nothing wrong – in the sense that it is an illegitimate tactic – for an accused person to change counsel. Such changes, however, almost always incur delay. That delay is incurred by the defence. In Cody, the accused changed counsel. The proposition was so obvious that the Supreme Court simply said this at para. 40:

… it was undisputed throughout the proceedings that the delay resulting from Mr. Cody's first change of counsel should be deducted as defence delay.

37I have seen no authority to the contrary and much in agreement. For example: R. v. Shaikh, 2019 ONSC 560; R. v. Phan, 2020 ABCA 370.

38In Browne, MacDonnell J. said the following about changes of counsel at paras. 54-55:

The pertinent question in this case is not whether the defence acted reasonably and with diligence in the steps that it took following the applicant's change of counsel. I accept that it did. The question, rather, is whether the delay that flowed from the taking of those steps was of the kind that the Supreme Court had factored into its determination of where the presumptive ceiling should be. If it was, it is not deductible. But, in my opinion, it was not. The delay of almost four months between January 25 and May 17 was not occasioned by the need to do things that undoubtedly are a legitimate component of preparing a defence but rather by a need to re-do them. It is not an answer to say that the defence acted with diligence in retracing steps that had already been taken by previous counsel. That may be true, but it misses the point. It misconceives why the delays inherent in those steps, although caused by the defence, are ordinarily not deductible — namely because in setting the presumptive ceiling the Jordan court took the delay that those steps could be expected to cause into account. It is the retaking of those steps that makes what would otherwise be non-deductible delay deductible. To fail to deduct it without a corresponding increase in the presumptive ceiling would not only be unfair to the prosecution, which is charged with responsibility for ensuring that the defendant is tried within a reasonable time, it would be illogical. It would, effectively, permit the defence to double count the delay flowing from legitimate defence conduct without a corresponding increase in the presumptive ceiling.

The defence position that the almost four months of delay occasioned by the applicant's change of counsel should not be deducted in determining whether the presumptive ceiling has been exceeded is virtually without support in the cases.

39Those paragraphs could equally apply to the decision to re-elect trial back to the Superior Court. This was not a defence action taken to respond to the charges. Rather, it would effectively re-do a step that had been taken. It would be double-counting the delay. See also: R. v. J.P., 2021 ONCA 866 at para. 7-9. That would hardly be fair to the Crown or to the public, which expects trials on the merits.

40I turn to the period from September 14, 2021, to June 6, 2022 – the period from the first to the second trial date.

41As noted, when I adjourned the trial in September 2021, I noted that the trial was not reached primarily because of the backlog of cases in the Superior Court of Justice. I was – and am – aware of the conditions in my capacity as administrative judge for criminal matters in the Toronto Region.

42Jury trials were suspended in the Toronto Region on the following dates:

• From March 17 to September 14, 2020, a period of 6 months;

• From November 21, 2020 to June 21, 2021, except for matters still in progress prior to November 21, 2020 (at the discretion of the court), a period of 7 months;

• From December 20, 2021 to February 28, 2022 except for matters still in progress prior to November 21, 2020 (at the discretion of the court), a period of 2 months.

43Four things are notable from this chronology: first, jury trials were suspended for a cumulative total of 15 months;.

44A second notable thing is that people who opted to continue with a jury had their trials adjourned during the suspension. The result is that since February 28, 2022 – a scant three months ago – there has been enormous pressure on the system. That pressure will continue for some time. The vast majority of cases that were in the system during the periods of suspension must still be dealt with.

45The notion that everything should have been immediately accommodated when the suspension was lifted is, frankly, simplistic, and facile. As Doherty J.A. observed in R. v. Allen, more than 25 years ago at para. 27:

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. When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources.

46A third notable thing is that cases continued to flow into the system during the periods that jury trials were suspended. Crime, arrests, and prosecutions did not stop simply because there was a pandemic. All those new jury cases that came into the Superior Court were adjourned during the period of suspension. These trials have obviously contributed to the backlog.

47A fourth notable thing is that jury trials were suspended for two of the nine months between Mr. Shen’s first and second trial date.

48Mr. Inoue argued that after the initial “panic” in March-April 2020, the system adjusted. In other words, the Covid-19 pandemic ought not to be factored into the analysis at all. With respect, is simply unrealistic to expect that the pandemic had no effect on scheduling, delays, and backlog.

49The authorities are virtually unanimous that the Covid-19 pandemic is a discrete event. Indeed, it is the ultimate discrete event: R. v. Drummond, 2020 ONSC 5495; R. v. Henry, 2020 ONSC 3303; R. v. Simmons, 2020 ONSC 7209; R. v. Metatawabin, 2021 ONSC 7168; R. v. Khattra, 2020 ONSC 7894. The delay from September 14, 2021 to June 6 is a direct result of the pandemic. It is therefore a discrete event under the Jordan analysis. The argument to the contrary has no reasonable prospect of success.

(c) Do the broader interests of justice favour summarily dismissing the application?

50In R. v. Cody, 2017 SCC 31, the Supreme Court emphasized that judges should use their trial management powers aggressively where necessary:

In addition, trial judges should use their case management powers to minimize delay. For example, before permitting an application to proceed, a trial judge should consider whether it has a reasonable prospect of success. This may entail asking defence counsel to summarize the evidence it anticipates eliciting in the voir dire and, where that summary reveals no basis upon which the application could succeed, dismissing the application summarily (R. v. Kutynec(1992), 1992 CanLII 7751 (ON CA), 7 O.R. (3d) 277 (Ont. C.A.), at pp. 287-89; R. v. Vukelich (1996), 1996 CanLII 1005 (BC CA), 108 C.C.C. (3d) 193 (B.C. C.A.)). And, even where an application is permitted to proceed, a trial judge's screening function subsists: trial judges should not hesitate to summarily dismiss "applications and requests the moment it becomes apparent they are frivolous" (Jordan, at para. 63). This screening function applies equally to Crown applications and requests. As a best practice, all counsel — Crown and defence — should take appropriate opportunities to ask trial judges to exercise such discretion.

51The Court of Appeal recently considered this issue in Kazman. In that case, Spies J. summarily dismissed an 11(b) application where the accused had repeatedly failed to comply with deadlines for filing materials. The Court of Appeal upheld the dismissal. In doing so, however, Doherty J.A. cautioned that courts should move carefully when dismissing constitutional claims. He also stated, at para. 15:

In deciding whether to dismiss a motion summarily, the trial judge must have regard to the interests of the accused. The trial judge’s focus cannot, however, be limited to the narrow specifics of the particular case. The trial judge must consider broader administration of justice concerns, including the need to conduct all litigation, including criminal litigation, in a fair, orderly, and efficient manner. It falls to trial judges to decide where the interests of justice lie in each specific case.

52R. v. Oliver, 2005 CanLII 3582 (ON CA), [2005] O.J. No. 596, 127 C.R.R. (2d) 215, 194 C.C.C. (3d) 92 (C.A.) turned on a request for an adjournment by one of the parties. The party had repeatedly breached a schedule set out by the trial judge. Doherty J.A. said this at para. 29:

Trial judges are charged with the responsibility of ensuring the orderly administration of criminal justice. This obligation includes setting schedules for the conduct of criminal trials. Counsel are expected to comply with the schedules set by the court. This is no less true in criminal matters than in civil matters. When, as sometimes happens, difficulties develop in meeting schedules, counsel are expected to bring those difficulties to the attention of the court and opposing counsel as soon as possible so that the court may amend the schedule, if deemed appropriate.

53The broader interests of justice require summarily dismissing the application. The application has little merit. The timing of the filing violated the Rules and the Practice Direction. It will use up trial time that has been set aside for the merits. It is reasonably foreseeable that the trial will go beyond the scheduled time. Other cases will be delayed because the start of this matter has been delayed. That is the cascading effect.

54Finally, the public no doubt understands that the pandemic has affected the criminal justice system, as it has affected so many other aspects of life; but given the pandemic-induced strain on resources, the public also has a right to expect that the courts will not waste valuable court time hearing meritless cases that have been filed in violation of the Rules. To do so would bring the administration of justice into disrepute.

DISPOSITION

55The s. 11(b) application is dismissed summarily.