Court File and Parties

Court File No.: CR-22-10000299-0000 Date: 2023-04-17 Superior Court of Justice - Ontario

Re: R. v. Shaqueme Martin

Before: Molloy J.

Counsel: Victoria Palermo, for the Applicant/Defendant Monica Gharabaway, for the Respondent/Crown

Heard: April 14, 2023 (remotely by Zoom)

Endorsement

Application to Dismiss for Delay

[1] Shaqueme Martin is charged with four human trafficking and sexual services offences involving the same complainant (B.V.). He applies to have those charges dismissed under s. 11(b) of the Charter, based on unreasonable delay.

Total Delay

[2] The information was sworn on April 1, 2020. [1] The trial date was set for seven days with a jury commencing January 16, 2023. The total time from the date the charges were laid to the conclusion of the trial is 1028 days (33 months and 24 days). That is 3 months and 24 days above the ceiling established in R. v. Jordan [2] and is presumptively unreasonable.

Deductions for Defence Waiver

There was no applicable waiver by the defence. This application was originally scheduled to be heard in December, 2022, but that date was abandoned by the defence. The trial did not proceed on its scheduled January 16, 2023 date as the defence still wished to bring this application. The trial date was adjourned and rescheduled for June 5, 2023 so that this application could be heard, with the defence waiving the time between the two trial dates. One way of calculating the time is to take June 13 as the end of the trial and deduct all the intervening time as waived by the defence. The applicant chose instead to calculate the time based on the original trial date, with no deduction for waiver. The end result is the same. I have chosen to follow the applicant’s method.

Deductions for Defence Delay

[3] The preliminary hearing was scheduled for January 11 and 12, 2022 and both counsel considered it would conclude in that time. The Crown’s case consisted entirely of the complainant’s testimony (and the video of her statement to police). The period of time covered by the four charges is from February 14, 2020 to March 31, 2020. Both counsel agree that this would be a straightforward trial, without complexity.

[4] At about noon on January 11, 2020, the Crown discovered that due to inadvertence she had failed to disclose to the defence approximately 150 text messages taken from the complainant’s phone. The text messages were in an awkward format consisting of several video recordings of someone scrolling through the complainant’s phone. This required considerable time for defence counsel to decipher. The texts were clearly relevant. Defence counsel sought an adjournment of the preliminary hearing, which was granted. That was completely appropriate and necessary. It was caused by the late disclosure. It is not defence delay.

[5] The preliminary hearing continued on May 17, 2022. At the end of that day, defence counsel indicated she needed about another two hours of cross-examination of the complainant, but that Mr. Martin would be consenting to his committal for trial. It was agreed that the committal would proceed so that the matter could be transferred to the Superior Court of Justice without delay and that defence counsel would proceed with further cross-examination of the complainant by way of discovery.

[6] A judicial pre-trial was conducted in this court July 8, 2022, and a trial date of August 8, 2022 was offered. This was available for the court and the Crown. However, the continued discovery was scheduled for July 18, 2022, and defence counsel objected to proceeding with the trial so quickly on the heels of the completion of the discovery. I find that to be reasonable. Counsel would need time to digest any new information obtained on July 18 and to confer with her client. Three weeks is a very short turnaround time. The failure to take the August 8 trial date does not constitute defence delay.

[7] The next date available for the court and the Crown was September 19, 2022. Defence counsel submits that it was reasonable to reject this date because there would have been insufficient time to prepare. I disagree. Disclosure had been complete since January 11, 2022 and the preliminary hearing was completed in May, 2022. On July 18, there was some continued discovery, which took under two hours. This is not the kind of case that would have taken a long time to prepare. Further, the defence had known since May that the appearance in the Superior Court was being expedited and that considerable efforts would be made to complete the trial before the looming October 1, 2022 Jordan date. In my view, there was ample time to prepare for a September 19 trial date.

[8] Defence counsel relies on my decision in R. v. Barrett [3] for the proposition that defence counsel is not required to hold themselves open indefinitely and cannot be expected to accept trial dates that are offered on very short notice. The factual context in which this arose in Barrett was very different from the facts now before me in this case. In Barrett, on December 13, 2021 a trial date was set for May 29, 2023, with clear s. 11(b) implications given that this would result in a total delay of 50.5 months. At the time this date was set, defence counsel had dates available in the spring of 2022, but the court did not. After the trial date was set, defence counsel brought an application for a stay, which was scheduled to be argued on April 22, 2022. Realizing the Jordan implications, the Crown attempted to find earlier trial dates to bring the case under the presumptive ceiling. In April, 2022 the Crown offered a trial date for May 30, 2022. Defence counsel was not available on that date, although the date had been available for the defence back in December 2021 when the trial was being scheduled. The Crown argued in that case that, because the defence was not available for the May 2022 trial date when offered in May 2022, the defence was now responsible for the entire one-year delay from May 2022 to the scheduled trial date in May 2023. It was in this context that I found that the short notice of this trial date was unreasonable and the defence inability to accommodate it did not constitute defence delay. The facts in the case now before me are completely different.

[9] The defence also relies on R. v. Dhillon, a decision of Duncan J. on the Ontario Court of Justice. Although this case is not binding on me, I take no issue with the general principles stated, including that “defence unavailability will not stop the Jordan clock if the dates are so soon as to not allow sufficient time for the defence to prepare.” [4] However, the question that follows is what is a sufficient time for the defence to prepare in the particular circumstances of a case. In Dhillon, the trial was to proceed in the Ontario Court of Justice and there was therefore no preliminary hearing. The charges in Dhillon included sexual assault, sexual interference, and showing sexually explicit images on the accused’s cellphone to a child, all involving the same eight-year-old victim. The cellphone was found to play an important role and there were initial delays in having the phone forensically examined. A trial date in October, 2018 had to be adjourned because the Crown’s forensic expert’s report was not yet available. The defence was not given the USB key containing the contents of the phone until December 21, 2018. The issue before Duncan J. was whether a trial date on January 22, 2019 (which would be under the presumptive ceiling) would provide enough time for the defence to prepare. Duncan J. referred to a number of decisions involving summary conviction trials in which a range of two to four months was found to be required for trial preparation, depending on the complexity of the case. He then concluded that a similar amount of time would have been required for the case before him except that much of the preparation would have been done for the aborted October trial date. He found that this was a “borderline call” but that he would not have found the January dates to be too soon, but for the factor of the expert witness. He ultimately found that the time required for the defence to retain an expert, for the expert to conduct the analysis, and the defence to consider the impact of the report made the January 22 trial date impossible for the defence. [5] No such issue arises in the case before me. There were no surprises, and no expert evidence to be considered. Further, there had been a recent preliminary hearing and discovery process allowing for full cross-examination of the only Crown witness. Two months was more than ample time to prepare.

[10] I also find the decision of Schreck J. in R. v. Aden [6] to be distinguishable on its facts. The delay in that case included preparation time required by the defence related to pre-trial motions the grounds for which only became apparent after the late disclosure of relevant material. This motion had not previously been contemplated, and also gave rise to a defence decision to proceed to trial before a jury rather than with a judge sitting alone, as had previously been planned. No such complication arose in this case.

[11] At a minimum, the period from November 21, 2022 to January 9, 2023 is attributable to defence delay. Having declined the September 19 trial date, the only date available to the defence was November 14, 2022, which was not available for the court. A November 21, 2022 date was offered, but declined because defence counsel had no further dates until January 9, 2023. Therefore, the 50 days from November 21 to January 9 are also properly classified as defence delay. However, that 50 days is within the period between September 19 and January 16, 2023 and therefore has no impact on the result.

[12] I have found that the delay after September 19 was entirely the responsibility of the defence. Had the trial started on September 19, 2022 the total time between the filing of the charges and the completion of the trial would have been within the Jordan presumptive ceiling. Therefore, the presumption of unreasonable delay warranting a stay does not arise.

Stay for Delay Below the Presumptive Ceiling

[13] In the alternative, the defence argued that if the delay in this case fell below the presumptive ceiling, it is nevertheless sufficiently unreasonable to warrant dismissing the charges. In Jordan, the Supreme Court of Canada held that a “in clear cases” a stay could be ordered for cases below the presumptive ceiling if the defence establishes two things: “ (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have.” [7]

[14] Up until the defence declined to proceed with a trial on September 19, 2022, I accept that the defence was diligent in attempting to move the matter forward and took active steps throughout to expedite the proceeding. Agreeing to the committal and transferring the matter to the Superior Court of Justice while continuing to complete further discovery in the Ontario Court of Justice is a good example of this approach. The record is also replete with examples of defence counsel urging the Crown to complete its disclosure obligations.

[15] I also agree that this matter took more time than it should have to get through the preliminary hearing process, particularly at the earlier stages of the proceeding. There was some delay in completing disclosure, but with the delivery of a viewable form of the complainant’s video-statement on March 29, 2021, disclosure was essentially complete. As I have already indicated, the failure to disclose the text messages until January 11, 2022 was due to inadvertence and not any “culture of complacency.” The Crown also took steps to expedite proceedings, including making multiple dates available at all stages, offering to sit long days to avoid the need for an adjournment in January 2022, and briefing another Crown to proceed with the preliminary hearing in May 2022 when the assigned Crown was suddenly unavailable due to a jury trial that ran longer than expected.

[16] Looked at as a whole, I cannot say this is a “clear case” warranting a stay. Although the initial stages took longer than was ideal, the overall delay cannot be said to be “markedly” longer than should have been the case.

[17] Accordingly, I find that the defence has failed to satisfy the test for a stay of proceedings.

Exceptional Circumstances

[18] In coming to this conclusion, it has not been necessary for me to consider whether a deduction would have been appropriate for two exceptional circumstances relied upon by the Crown. For the sake of completeness, however, I will deal with each of them briefly.

[19] When the defence sought and obtained an adjournment of the preliminary hearing on January 12, 2022, all parties took laudable steps to obtain early additional dates to continue the matter. Two dates were fixed by the preliminary hearing judge: January 25, and February 8, 2022.

[20] The Supreme Court ruled in Jordan that a deduction may be made from the total delay for exceptional circumstances, including discrete events that lie outside the control of the Crown in the sense that they are “reasonably unforeseen or reasonably unavoidable” and that the Crown cannot reasonably remedy. The onus is on the Crown to establish that these parameters are met. [8]

[21] The preliminary hearing could not proceed on January 25, 2022 because the complainant was unavailable. On the record for that date, the Court is advised that the complainant had a “prior engagement.” That is further amplified in the material as being “a specialist appointment that could not be changed.” In my view, this is not sufficient information to warrant deducting the resulting delay from the overall delay. It would appear that the complainant was not consulted about the January 25 date. There is no information about what kind of specialist this was or why the date could not be changed, or indeed if any efforts were made to change it. I would not deduct the time from July 25 to February 8.

[22] The delay from February 8 to May 17 is also problematic, mainly because there is very little information about why the adjournment was necessary. Unforeseen emergencies, medical or family issues, and things of that nature would clearly qualify. However, the only reason given was the preliminary hearing judge “was not sitting.” There can be many reasons for that situation which might not qualify as exceptional circumstances. For example, if this was a mix-up caused by court scheduling, or the judge could not sit because of the unavailability of court staff or courtroom space, or because it was decided to prioritize some other matter before the judge rather this one, then I would not deduct the resulting delay. In this situation, I simply do not know the reason and I prefer not to speculate or make assumptions. I would therefore say the crown has failed to meet its onus. However, in this case there is an additional reason for not making the deduction. The Crown was not available to continue the matter until May 17, 2022, even though the defence had many other dates available in that time period. Steps could have been taken by the Crown to remedy the delay short of adjourning from Feb 8 until May 17. Indeed, when the May 17 date was reached and the assigned Crown was still not available, steps were taken to have another Crown step in. The Crown could have done that when the February date was missed, thereby mitigating the delay.

[23] Accordingly, I would not have allowed any deduction for either of these events.

Conclusion

The application is dismissed.

Molloy J. Date: April 17, 2023

[1] Although Mr. Martin was not arrested until August 26, 2020, the Crown concedes that for the purposes of s. 11 (b) the time starts to run from April 1, 2020. [2] R. v. Jordan , 2016 SCC 27 , [2016] 1 S.C.R. 631. [3] R. v. Barrett , 2022 ONSC 6334 [4] R. v. Dhillon , 2019 ONCJ 404 at para. 19 . [5] Ibid at paras. 22-26. [6] R. v. Aden , 2023 ONSC 766 . [7] Jordan , at paras. 82-83 and 105 . [8] Jordan , paras. 69-71