Court File and Parties

COURT FILE NO.: CR-21-00000068 DATE: 20230424

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – MARK TAYLOR Defendant

Counsel: Ms. Jenna Dafoe, for the Crown Ms. Jessica Zita, for the Defendant

HEARD: April 3, 2023

Reasons for Decision – Section 11(b) Application

M.L. EDWARDS, R.S.J.:

Overview

[1] Mr. Taylor was convicted of a number of human trafficking and related charges by the trial judge on February 14, 2023. At the completion of her reasons, counsel for Mr. Taylor advised the trial judge that he would be proceeding with an 11(b) application to stay the charges on the basis of the delay in the delivery of her reasons. I heard the 11(b) application as the trial judge recused herself from sitting in judgement on an issue that she believed might call into question her conduct. As these reasons will make clear there, was nothing in the conduct of the trial judge that warrants the intervention of this court.

The Facts

[2] Mr. Taylor was arrested on March 5, 2020 and charged with numerous offences as a result of operating an escort business. The charges involved allegations of human trafficking. There were five complainants in relation to the human trafficking charges and seven complainants in relation to the sex trade charges. Mr. Taylor was initially granted bail but was arrested again on September 25, 2020 for breaching his release order and for continuing to operate his escort business.

[3] The indictment that was before the trial judge included a total of 23 charges, two of which were ultimately withdrawn. After a 4-week trial, convictions were registered on 19 charges and there were two findings of not guilty. The charges included sexual assault (s. 271 of the Criminal Code); human trafficking (s. 279.01); obtaining sexual services for consideration (s. 286.3(1)); and procuring sexual services (s. 286.1(1)).

[4] Mr. Taylor was originally charged on an information, which included two co-accused. The co-accused entered pleas of guilty on October 15, 2021 and March 26, 2022. Both of the former co-accused were called as witnesses at Mr. Taylor’s trial.

[5] A joint preliminary hearing in the Ontario Court of Justice in Barrie started on April 26, 2021, and was conducted over 7 days with May 21, 2021 being the final date.

[6] On September 21, 2021, a judicial pre-trial was conducted with Fuerst J.

[7] The trial was scheduled to begin on May 30, 2022 for 4 weeks with a jury, and March 18, 2022 was scheduled for a s. 8 Charter challenge.

[8] On November 18, 2021, Mr. Taylor’s counsel removed himself from the record, and new counsel, Craig Zeeh, was affirmed as counsel of record. The matter was adjourned to December 16, 2021 so that a judicial pre-trial could be conducted with new counsel. After the judicial pre-trial, the matter was adjourned to March 9, 2022 for trial readiness.

[9] On February 17, 2022, Mr. Taylor’s matter was brought forward to vacate the March 18 pre-trial motion date. After the Information to Obtain for the search warrants and the Reports to Justice were disclosed, it was determined that there would be no Garofoli application. The matter was adjourned for a trial readiness appearance.

[10] On May 26, 2022, Mr. Taylor re-elected, with Crown consent, to a judge alone trial. The matter was adjourned to May 30, 2022 for the start of trial.

[11] On May 30, 2022, Mr. Taylor’s trial before the trial judge started. It is noteworthy that during the trial, the trial judge contracted the COVID virus. The trial adjourned for 3 days while the trial judge recovered. The evidence concluded on June 17, 2022. The matter was adjourned to August 4 and 5, 2022 for oral submissions. Written submissions were filed in advance of the oral submissions. On July 29, 2022, the Crown filed her written submissions, and Mr. Taylor filed his responding submissions on August 3, 2022.

[12] The oral submissions started on August 4 and concluded on August 5, 2022. The trial judge reserved her decision, but stated that she would need time to complete a decision. The matter was adjourned to October 28, 2022 for the trial judge to provide an update. She noted that the COVID backlog and her numerous court commitments made it difficult to determine a timeline for reasons.

[13] On October 28, 2022, the trial judge advised all parties that another check-in would be required and offered December 12 and 19, 2022. The matter was adjourned to December 12, 2022 for the trial judge to provide an update on a timeline for judgment.

[14] On December 12, 2022, prior to the court appearance, the trial coordinator e-mailed counsel dates of February 13, 14, and 17 for judgment. Mr. Taylor’s counsel was available on all three days, and ultimately February 14, 2023, was selected. During the court appearance, the matter was adjourned to February 14 for the trial judge to release reasons for judgment.

[15] On January 25, 2023, counsel for Mr. Taylor served his 11(b) application on the Crown at 5.30 pm. The application was not brought to the attention of the trial judge until after she had delivered her Reasons on February 14, 2023. The trial judge’s written reasons were read in open court over the course of many hours on February 14, 2023 and comprised in excess of 60 pages and 467 paragraphs.

[16] Mr. Taylor has remained in custody since the trial judge took her decision under reserve on August 5, 2022 and remains in custody. Sentencing submissions are scheduled to take place on June 2, 2023.

[17] It is agreed that the period of delay from the time the trial judge took this matter under reserve until she delivered her reasons is a period of 6 months and 9 days.

[18] In submissions, Ms. Zita suggested that the earliest Jordan date was September 5, 2022 and the latest Jordan date was March 25, 2023. Neither of these dates takes into consideration the “judicial deliberation time” of 6 months and 9 days, nor do these dates account for any deduction for “exceptional circumstances” attributable to the COVID pandemic when this court was not sitting.

[19] As it relates to what deduction should be made for the COVID delay, Ms. Zita suggested that a deduction of 5.5 months should be considered.

[20] If, hypothetically, the earliest Jordan date is September 5, 2022, and if the exceptional circumstance deduction for COVID is 5.5 months, then effectively the earliest Jordan date becomes, by my calculation, approximately February 19, 2023.

The Issue to be Decided

[21] Mr. Taylor seeks a stay of these proceedings on the basis of an infringement of s. 11(b) of the Canadian Charter of Rights and Freedoms (“Charter”). Mr. Taylor argues that the deliberation time of 6 months and 9 days was markedly longer than required for what is described as a case that was not exceptionally complicated. Mr. Taylor argues that even if the Jordan deadline was not exceeded, that this court can still consider the judicial deliberation time in the context of an 11(b) application. The issue to be decided is whether the judicial deliberation time took markedly longer than it reasonably should have in all of the circumstances.

Position of Mr. Taylor

[22] Ms. Zita argues that the judicial deliberation time of 6 months and 9 days (which I will for the balance of these reasons and for ease of convenience refer to as the judicial deliberation time) was markedly too long. Ms. Zita also argues that even if the ultimate decision was delivered within the Jordan deadline, this court can still exercise its discretion to grant a stay under 11(b) where the judicial deliberation time is seen to be markedly too long.

[23] In support of her position, Ms. Zita argues that this court should consider that Mr. Taylor has been in custody during the entirety of the judicial deliberation time, which should inform a trial judge’s timeline for the delivery of his or her reasons. It is also argued that, contrary to the position of the Crown, this case was not a complex trial that needed the judicial deliberation time taken.

Position of the Crown

[24] At its core, the Crown argues that this case was complex with multiple charges and multiple complainants and required the judicial deliberation time that it did, and, as such, the trial judge did not take markedly longer than what was required to render her decision.

The Legal Principles and Analysis

[25] This is the second 11(b) application that I have heard in as many months where an accused person seeks a stay of the charges on the basis of the period of time the trial judge had his or her reasons for judgement under reserve. In R. v. Ansari, 2023 ONSC 1858, I reviewed at length the law as it relates to judicial deliberation time. I intend to draw on that analysis, which is grounded in the Supreme Court of Canada decisions in R. v. K.G.K., 2020 SCC 7, [2020] 1 S.C.R. 364 and R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the Ethical Principles for Judges (“Ethical Principles”) published by the Canadian Judicial Council (“CJC”), and s. 123 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”).

[26] While there have been very few cases involving judicial deliberation time after a trial judge takes a case under reserve, the Supreme Court in K.G.K. has provided a useful analysis of the factors that must guide the court when faced with such an 11(b) application. In its ultimate determination, the Supreme Court held that a 9-month delay in the delivery of the judge’s reasons was not unreasonable for what could be described as a relatively straightforward case of minimal complexity. Moldaver J. at para. 65 of K.G.K. set forth the following test:

Where an accused claims that the trial judge’s verdict deliberation time breached their s. 11(b) right to be tried within a reasonable time, they must establish that the deliberations took markedly longer than they reasonably should have in all of the circumstances. This is — appropriately, in my view — a high bar. As indicated, the presumption of judicial integrity operates in this context to create a presumption that the trial judge balanced the need for timeliness, trial fairness considerations, and the practical constraints they faced, and took only as much time as was reasonably necessary in the circumstances to render a just verdict. Only where the trial judge’s verdict deliberation time is found to have taken markedly longer than it reasonably should have will this presumption be displaced. The reason the threshold is so high — “markedly longer” rather than just “longer” or some lesser standard — is because of the “considerable weight” that the presumption of integrity carries (Cojocaru, at para. 20). Stays in this context are significant and, although distinct from stays below the ceiling, they too are likely to be “rare” and limited to “clear cases” (Jordan, at para. 48). It bears repeating, however, that where a trial judge’s verdict deliberation time is found to have taken markedly longer than it reasonably should have in a particular case, this should not be taken as casting doubt on the judge’s overall competence or professionalism.

[27] The analysis in Ontario for when a judge’s reasons are required to be delivered begins with s. 123(5) of the CJA, which provides for timelines for the delivery of a judge’s reasons: for judgment it is 6 months, and for any other matter it is 3 months. It is important to note that the “chief judge may extend the time in which the decision may be given and, if necessary, relieve the judge of his or her duties until the decision is given.” The discretion to extend the deadline for a reserve decision is delegated by the Chief Justice to the Regional Senior Justice.

[28] Prima facie, the date from which “judicial delay” begins is the date when a case is completed in Court and the trial judge reserves his or her decision. On occasion, that date may not be the date when the case was completed in open court. Often a judge will require written submissions. The completion of a trial for the purposes of establishing judicial delay in the delivery of reasons begins when the evidence is completed, oral submissions have been made to the court, and when all written submissions, if any, are filed with the court. In this case, oral and written submissions were complete on August 5, 2022, and as such the calculation of the period of judicial reserve time begins on August 5, 2022.

[29] As I noted in Ansari, judges, in addition to the time constraints imposed by s. 123 of the CJA, are also expected to adhere to the CJC Ethical Principles (available on the CJC website). The Ethical Principles suggest a maximum of 6 months for the delivery of reasons as reflected below:

The preparation of judgments is frequently difficult and time consuming. Judges are expected to produce their decisions and reasons for judgment as soon as reasonably possible, having regard to the urgency of the matter and the length or complexity of the case. In this respect, the CJC has resolved those reserved judgments should be delivered within a maximum of six months after hearings, except in special circumstances. Judges must also comply with legal requirements associated with timeliness of judgments applicable in their jurisdiction. While judges strive to be diligent in the performance of their judicial duties, their ability to do so may be affected by various factors, including illness, exceptionally heavy burdens of work or the inadequacy of resources supporting their work.

[30] In Ansari, I observed that the 6-month timeline in both the Ethical Principles and s. 123(5) is not the equivalent of a constitutional limitation period. Unlike the situation with pre-trial delay in Jordan, the Supreme Court declined in K.G.K. to set a fixed date for the delivery of reasons post trial. The Ethical Principles and s. 123(5) reflect a considered determination of the outside time frame for the delivery of reasons in most criminal cases. They provide a useful guidepost for considering whether the “markedly longer” test is met.

[31] In Ansari, I declined to resolve the difference between the Ethical Principles and the CJA. No resolution is necessary as it is apparent to me that judges are expected to get their reasons completed in a timely fashion – especially a criminal matter where the liberty interest of the accused is at stake. In fixing a 6-month deadline, absent exceptional circumstances, the CJC Ethical Principles suggests judges should release their reasons as soon as reasonably possible, considering the urgency of the case and the length and complexity of the trial.

[32] In Ansari, I stated that a review of the decision in K.G.K. makes clear that an accused seeking to invoke 11(b) in relation to an argument based solely on the delay in a trial judge’s reasons has a heavy onus to meet. It is also worth pointing out that counsel cannot sit back and wait until the trial judge’s reasons may have reached the “point of no return” i.e., they are so overdue that 11(b) may result in a stay of proceedings. Counsel should be well versed in the deadlines imposed by s. 123(5) of the CJA. If reasons are overdue and/or dates set for the delivery of reasons are adjourned on numerous occasions, counsel might well consider the following practical suggestions offered by Moldaver J. at paras. 74-76:

Counsel often finds themselves in a difficult position when significant time has passed since the trial judge took the matter under reserve and they have not received any updates on its status. The Crown may be reluctant to probe for information on the status of the case, insofar as it could risk the appearance of inappropriate interference with the judicial process. For their part, the accused may understandably not wish to be seen as applying pressure to the person in whose hands their fate lies.

In Jordan, this Court stressed that all participants in the criminal justice system must work together to minimize delay and safeguard an accused person’s s. 11(b) interests. To that end, I see no reason why the parties cannot, in appropriate circumstances and through appropriate channels, communicate with the trial judge. This might entail meeting briefly in court or communicating through another procedure approved by the court. However, this may happen, counsel can and should expect judges to be sufficiently resolute to consider a re- quest for information without consequences to counsel, the accused, or the trial.

Indeed, some jurisdictions may find it useful to set out a standardized procedure through which counsel can inquire as to the status of a verdict. This may involve a practice guideline contemplating a joint communication from the parties to the trial judge themselves, or to the regional senior judge or another appropriate person, after a certain amount of time has passed. Ultimately, instituting these procedures could serve to attenuate the anxiety and concern that accompanies the inherent unknowability of a verdict date and delay more generally (MacDougall, at para. 19, quoting Rahey, at p. 610, per Lamer J.; see also R. v. Potvin, [1993] 2 S.C.R. 880, at p. 887). Additionally, where the communication is with the court administration or regional senior judge, it may provide information that assists the court in managing judicial workloads. It may also assist in developing the record for s. 11(b) purposes.

[33] I further observed in Ansari that the Supreme Court in Jordan has made it clear that everyone associated with the criminal judicial system has an obligation to ensure that a criminal case proceeds through the judicial system as quickly as is reasonably possible and now within the timelines that have been set in Jordan. The Court in Jordan and again in K.G.K. has stressed that there must be a “culture shift” in terms of how everyone, including trial judges, grapple with the exigencies of making sure a case proceeds through the system in a timely fashion. In that regard, the concluding words of Moldaver J. in Jordan at paras. 116-117 are worth repeating:

Ultimately, all participants in the justice system must work in concert to achieve speedier trials. After all, everyone stands to benefit from these efforts. As Sharpe J.A. wrote in R. v. Omar, 2007 ONCA 117, 84 O.R. (3d) 493:

The judicial system, like all other public institutions, has limited resources at its disposal, as do the litigants and legal aid. . . . It is in the interest of all constituencies — those accused of crimes, the police, Crown counsel, defence counsel, and judges both at trial and on appeal — to make the most of the limited resources at our disposal. [para. 32]

Sharpe J.A.’s reference to finite resources is an important point. We are aware that resource issues are rarely far below the surface of most s. 11(b) applications. By encouraging all justice system participants to be more proactive, some resource issues will naturally be resolved because parties will be encouraged to eliminate or avoid inefficient practices. At the same time, the new framework implicates the sufficiency of resources by reminding legislators and ministers that unreasonable delay in bringing accused persons to trial is not merely contrary to the public interest: it is constitutionally impermissible and will be treated as such.

The Legal Principles Applied

[34] In this case, the judicial deliberation time, being between when the case was taken under reserve and when the trial judge’ delivered her reasons, is a period of 6 months and 9 days. The ultimate question this court must decide is whether the deliberation time took markedly longer than it reasonably should have in all of the circumstances.

[35] In determining whether the deliberation time took markedly longer than what it reasonably should have, there are a number of factors referenced in K.G.K. that should guide the court. Those factors can be summarized as follows:

a. The length of verdict deliberation time; b. How close to the Jordan ceiling the case was before the trial judge reserved judgment; c. The complexity of the case; d. Anything the judge put on record, including reference to other obligations; e. The length of time a similar case in similar circumstances might require for deliberation.

[36] It is accepted that the judicial deliberation time in this case was just outside the maximum period of 6 months mandated by both the Ethical Principles and the CJA. It is also below the 9 months in K.G.K. and the 7 months in Ansari. As it relates to the Jordan ceiling, after taking into account the COVID deduction suggested by Ms. Zita, the delivery of the trial judge’s reasons on February 14, 2023 was prior to the Jordan ceiling of February 19, 2023. This alone weighs in favour of dismissing the application.

[37] If I am wrong as it relates to the Jordan ceiling, the one factor that militates most strongly against the remedy sought is the complexity of this case. The trial in this case lasted approximately 4 weeks and involved multiple counts of human trafficking, sexual assault, obtaining sexual services for consideration, and procuring sexual services. The charges involved the evidence of seven complainants and two former co-accused. The complexity of the case and the time needed for the trial judge to release her reasons can be demonstrated at least in part by the fact that she set aside two “check in appearances”. At neither appearance on October 28 nor December 12, 2022 did the defence take any position that the judicial deliberation time was unreasonable. The complexity of this case is also amply reflected in the lengthy written reasons released by the trial judge on February 14, 2023.

[38] The judicial deliberation time can also at least in part be seen as a reflection of the other competing judicial responsibilities that many, if not all, trial judges face when a case is taken under reserve. What happened in the 6 plus months this matter was under reserve reflected the realities that many trial judges face, which Moldaver J. commented on in his reasons in K.G.K. at para. 61 when he states:

Finally, a reasonable amount of verdict deliberation time must account for the practical constraints that trial judges face, both individually and institutionally. Reasonableness under s. 11(b) has always accounted for the reality that “[n]o case is an island to be treated as if it were the only case with a legitimate demand on court resources” (R. v. Allen (1996), 92 O.A.C. 345, at para. 27). Trial judges know all too well that this is a zero-sum proposition: verdict deliberation time that goes to one case can- not go to another. The appropriate division of time between cases therefore has regard to individual judges’ workloads, different approaches to reasons and reasoning, and the realities of their daily lives (see, e.g., K.J.M., at para. 102). That said, trial judges can and should consider proximity to the Jordan ceiling in determining how to prioritize cases in their workload.

[39] When this matter came back before the trial judge on October 28, 2022, she made brief comments about the COVID backlog and numerous court commitments that she had which made it difficult to determine a timeline for the delivery of her reasons. It was entirely appropriate to make those comments, which further reinforce why, applying the factors distilled from K.G.K., this court finds the judicial deliberation time was not markedly longer than what would be considered reasonable.

[40] The last factor to assess is what the court might consider as being a reasonable period of time for judicial deliberation in comparison to a similar case in similar circumstances. This is a much more difficult factor, as I have no evidence of what might be considered a “normal” reserve for this type of case. This was not a one complainant sexual assault trial. This was a complicated, multiple count, multiple complainant, human trafficking case. While trial judges must be guided by the CJA, the Ethical Principles, and K.G.K. in the period of time they take a case under reserve, I find it difficult to accept that a 6-month period of judicial deliberation time in this complex case was markedly unreasonable.

[41] The last factor that weighs heavily against the relief sought in this case was the failure of defence counsel to seek an earlier return date for this 11(b) application. Factually, the 11(b) application was served and filed on January 25, 2023. The return date for the trial judge’s reasons was February 14, 2023. In K.G.K., Moldaver J., at paras. 74-76 (referenced above), makes clear that there is an obligation on the defence to be proactive where the defence intends to rely on 11(b) and the late delivery of a judge’s reasons.

[42] Applying the admonition of Moldaver J. reflected in his reasons, it was incumbent in my view for the defence in this case to have alerted the court to the 11(b) application filed on January 25, 2023. One can only speculate whether the trial judge could have moved the February 14, 2023 date to an earlier date. The fact that no effort was made by the defence to seek an earlier date does, however, assist the court in its determination not to grant the relief sought by Mr. Taylor.

[43] In arriving at the ultimate conclusion that I have, I accept that an accused, particularly an accused in custody and who is awaiting judgement, will likely be going through periods of stress and uncertainty. It was open to Mr. Taylor, seeking the relief that he was on January 25, to have requested an earlier date so that he could learn his fate. In Mr. Taylor’s case he clearly was willing to wait another 3 weeks to ensure the judicial deliberation time exceeded 6 months.

[44] For the reasons set forth above, Mr. Taylor’s application for a stay of the proceedings is dismissed. This matter is adjourned to June 2, 2023 before the trial judge for sentencing submissions.

Justice M.L. Edwards, R.S.J. Released: April 24, 2023

ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – MARK TAYLOR Defendant REASONS FOR decision – section 11(b) application Justice M.L. Edwards, R.S.J.

Released: April 24, 2023