Court File and Parties

Court File No.: CR-20-40000282-0000 Date: 2023-06-29 Superior Court of Justice - Ontario

Re: R. v. Zhuxi Shen

Before: Justice N. J. Spies

Counsel: Daniel DeSantis, for the Crown/Respondent Taro Inoue, for the Defendant/Applicant, Zhuxi Xi Shen

Heard: January 23, 2023

Ruling on Defence Application for a Stay of Proceedings for Unreasonable Delay

Sections 11(b) and 24(1) of Charter

SPIES J.

Overview

[1] Zhuxi Xi Shen was initially charged on September 20, 2019, with sexual assault and administering a noxious substance. His trial began before me on January 9, 2023. The trial was scheduled to take two weeks with a jury. By the commencement of the trial, Mr. Shen had already re-elected trial by judge alone. The only charge before me was the charge of sexual assault to which Mr. Shen pleaded not guilty. On May 23, 2023, I convicted Mr. Shen, see R. v. Shen, 2023 ONSC 2943.

[2] On January 9, 2023, following the opening of court and before I was seized of the trial, Mr. DeSantis, counsel for the Crown, advised that because of the unexpected death of the complainant’s grandmother, the complainant had to leave Canada in December 2022 and was still out of the country. She was expected back by January 19, 2023. A lengthy discussion with respect to scheduling ensued. Given the schedules of counsel, the trial could not be concluded in January after the complainant returned. I advised counsel that as a supernumerary judge, I would not be available to sit for a significant period in the months of February through April which would delay completion of the trial. I suggested that I ascertain if another judge was available to conduct the trial so it could be completed once the complainant returned later in January. Counsel advised that they wished to proceed before me notwithstanding the resulting delay in completing the trial. It was agreed that after hearing all the Crown witnesses save for the complainant, the trial would be adjourned to February 27, 2023, for seven days, to hear the evidence of the complainant, and any possible defence evidence.

[3] At the commencement of the trial, I was also advised by Mr. Inoue, counsel for Mr. Shen, that Mr. Shen had brought an application to stay the proceedings against him pursuant to ss. 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms. The application had been filed late so could not be heard in advance of the commencement of the trial. After the evidence of several Crown witnesses was heard, it was agreed that the 11(b) application would be argued on January 23, 2023, which was a date within the two-week period scheduled for the trial.

[4] This was the second time Mr. Inoue brought a s. 11 (b) application on behalf of Mr. Shen. His first was dismissed summarily by Goldstein J. on June 2, 2022; R. v. Shen, 2022 ONSC 3274 after hearing submissions from counsel for two reasons. First because of the applicant’s failure to comply with the Criminal Proceedings Rules (“Rules”) and second, because Goldstein J. found that the application had no reasonable prospect of success and the broader interests of justice required that it be summarily dismissed.

[5] Counsel agree that at the Judicial Pre-trial (“JPT”) on September 7, 2022, the issue of a s.11 (b) application was raised by Goldstein J. and in brief discussions between counsel that followed that JPT, Mr. DeSantis anticipated that Mr. Inoue intended to bring another s. 11 (b) application before the trial judge and that as such his application record would be filed in advance of the trial. At that time the trial was expected to proceed on October 12, 2022. No application was filed in advance of that trial date.

[6] For reasons I will come to, the trial was adjourned on October 4, 2022 to January 9, 2023. At the JPT conducted by Forestell J. on Monday, December 12, 2022, Mr. Inoue advised that he intended to file his application for an 11(b) application by the end of that week, December 16th. In the report to the trial judge Forestell J. wrote: “It will be up to the trial judge when or if to hear the application in light of the late filing”.

[7] On December 16, 2022, Mr. Inoue filed this application [1], well past the filing deadline under the Rules which requires these applications to be filed 90 days in advance of the commencement of the trial. The Provincial Practice Direction /Amendment to the Criminal Proceedings Rules Regarding Criminal Proceedings (“Practice Direction”) mandates that s. 11 (b) applications be heard – not just filed – at least 60 days in advance of trial.

[8] After hearing submissions on January 23, 2023, I advised counsel and Mr. Shen that the s.11 (b) application was summarily dismissed with written reasons to follow. These are those reasons.

Issues

[9] Surprisingly the applicant’s factum does not address the late filing and it makes absolutely no mention of the decision of Goldstein J. Instead, Mr. Inoue’s factum appears to presume the application would be argued on its merits as if this application should be heard de novo and that I should consider all the time from when Mr. Shen was charged on September 20, 2019.

[10] I determined that there were two issues that arose from the application before I could decide whether to hear it on the merits. Rule 34.03 provides that an application shall not be heard without leave where the applicant has failed to comply with the Rules. As a result, the first issue I considered was whether to grant leave to hear the application given that for the second time the applicant had filed his application late, disregarding the Rules and the Practice Direction.

[11] The second issue I considered, was, if leave were granted, should the application be dismissed because it had no reasonable prospect of success: Rule 34.02 and R. v. Kutynec (1992), 7 O.R. (3d) 277 (C.A.) at para. 31 [2], given the decision of Goldstein J. that dismissed an 11(b) application not quite eight months earlier.

Analysis

Should the applicant be granted leave to argue the application?

[12] Mr. Inoue admitted that he could not explain the reasons for or justify the late filing of his application, but he submitted that his decision to bring another s. 11 (b) application was not made at the last minute as an afterthought. He asked that notwithstanding the late filing that I hear the application and made the following submissions in support of that position:

a) the Crown was aware of his intention to bring a s. 11 (b) application since soon after the JPT on September 7, 2022;

b) Mr. Shen’s constitutional rights are at issue and if there has been a breach of s. 11 (b) this court has no jurisdiction over him;

c) there is no actual prejudice to the Crown given the application was argued after the Crown had time to respond and file a factum; and

d) the fact Mr. Shen re-elected trial by judge alone and the fact he cooperated in coming to various agreed facts shortened the length of the trial which would have allowed for the hearing of this application within the two weeks set aside for the trial even if the trial could have been completed as scheduled.

[13] In my view none of the submissions advanced by Mr. Inoue give me any reason to consider hearing this application on the merits.

[14] Counsel for Mr. Shen clearly did not learn anything from Goldstein J’s Reasons for Decision. Justice Goldstein gave comprehensive reasons for why he concluded that the initial s. 11 (b) application should be dismissed for non-compliance with the Rules and the Practice Direction. In my view Mr. Inoue’s conduct is a serious repetition of the same breach of the Rules when he filed Mr. Shen’s first s. 11 (b) application late. The filing of the application before me was technically not as late as the filing of the first s. 11 (b) application, but it was still late, particularly considering that the time for the Crown to respond was over the Christmas/New Year’s period. Furthermore, this application not only failed to comply with the Rules, but it also failed to comply with the province-wide Practice Direction that mandates a judicial pre-trial where the 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. There was no opportunity for a judicial pre-trial of this application or to have it heard in advance of trial.

[15] I agree with and rely on the reasons given by Justice Goldstein, which still apply now, for concluding that leave for the hearing of this application should not be granted. In addition to the reasons Goldstein J. gave and the findings he made as set out in paras. 28 and 29 of his decision, which all apply here, I add the following reasons specific to this application:

a) Although the conduct in this case is not yet as egregious as the conduct I dealt with in R. v. Kazman, 2020 ONCA 22, the breach of the Rules and the Practice Direction in this case has been repeated a second time by the same counsel for Mr. Shen and yet again there is no reasonable explanation for the breach.

b) This conduct can only be characterized as a flagrant disregard of not only the decision of Justice Goldstein but also the Rules and Practice Direction. Had it not been for the adjournment of this trial, this application could have derailed the completion of the trial in the time scheduled. Furthermore, the purpose of the Rules is to avoid precious trial time being used for these applications because if a s. 11 (b) application is successful, there is no trial. That is why these applications are to be argued well in advance of trial, not during or at the end of the trial.

[16] For these reasons I concluded that I should not grant the applicant leave and hear the application.

Does the application have a reasonable prospect of success given the decision of Goldstein J.?

[17] Notwithstanding my decision that leave to hear the application should not be granted, I heard argument and considered whether the application had any reasonable prospect of success.

[18] Mr. Inoue argued the application based on the time to the original expected completion date of the trial of January 20, 2023, a period of 40 months, had the complainant not become unavailable. Mr. DeSantis included an additional one and a half months to the new anticipated conclusion of the trial of March 8, 2023. Although it would not have made a difference to my decision, in my view the position Mr. Inoue took was the correct one. He reasonably did not include the additional time that was needed to complete the trial given the agreement of counsel to proceed before me, notwithstanding the delay that would result from that decision. Mr. Inoue conceded that the additional month and a half to complete the trial was an exceptional circumstance.

[19] Justice Goldstein gave cogent reasons for why he concluded that the first s. 11 (b) application that was brought before him and argued on May 26, 2022, had no reasonable prospect of success. Goldstein J. held that the fact the defence re-elected trial in the Superior Court a few months before Mr. Shen’s trial date in the Ontario Court of Justice resulted in a delay of seven months, which he characterized as defence delay. He found a second period of almost nine months, from September 14, 2021, to June 6, 2022, the date scheduled for trial, to be a direct result of the Covid-19 pandemic and as such a discrete event under the Jordan analysis.

[20] There is no fresh evidence that could be considered a material change for the period Justice Goldstein considered nor any changes to the legal principles that would merit a reconsideration of Justice Goldstein’s decision. Furthermore, I agree with his conclusion. I therefore focused on the time since the decision of Goldstein J. to determine if this second application has any merit.

[21] Deducting the two periods of delay considered by Goldstein J. totaling almost 16 months, from the period of 40 months, the time to the completion of this trial of 24 months is well within the presumptive ceiling set by R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 of 30 months. As a result, I pointed out to Mr. Inoue that even if the additional delay since the decision of Justice Goldstein was all attributed to the Crown, the case was still being tried well within the Jordan timeline. As I will come to, he then “shifted gears” and submitted that I still had residual discretion to grant the s. 11 (b) application.

(a) Time period: May 26, 2022 to June 23, 2022 – Hung jury/Mistrial

[22] After Justice Goldstein dismissed the first s. 11 (b) application, the first trial in this matter proceeded with a jury. On June 23, 2022, after more than a two-week trial, the jury was unable to come to a verdict, so a mistrial was declared. There is no evidence to suggest that the hung jury was because of the actions of the Crown, or the Court. The Crown presented its case in the usual course and the expectation was that a verdict would follow. In these circumstances Mr. Inoue did not dispute the Crown’s position that this was a discrete event and an exceptional circumstance.

(b) Time period: June 23, 2022 to October 11, 2022 – Rescheduling of the Trial

[23] After the mistrial, the matter was adjourned to July 8, 2022, and then to July 28, 2022, into the “Jordan Court” with the hope that early trial dates would be available. On July 28, 2022, a trial date of October 3, 2022 was offered for nine days, however, Mr. Inoue was not available for that week. The matter was adjourned to September 2, 2022, and the date of October 11, 2022 was set for a two-week jury trial. In my view this additional delay in securing a new trial date should be considered an exceptional circumstance as the court was still dealing with the pandemic backlog and cases were being prioritized in the Jordan Court where trials impacted by Jordan were being scheduled.

(c) Time period: October 11, 2022 to January 9, 2023 – Delay Caused by the Adjournment of the Trial

[24] On October 4, 2022, the trial was adjourned to January 9, 2023, following the granting of a motion brought by the defence requesting an adjournment due to delayed disclosure. The police had successfully unlocked a cellphone, alleged to belong to Mr. Shen, and an extraction of the download was provided to counsel for the applicant around the time of the first trial. However, due to its voluminous size it was not accessible on a computer with limited memory or storage capacity. In the period that followed police were able to provide a more accessible version of the extraction, which was disclosed. Also, during this period, Detective Constable Ken Lam reviewed the contents of the extraction for relevant material, and an expert report was prepared by Todd Morden in respect of some of the files found by D/C Lam. The report of Todd Morden was disclosed to the applicant on September 29, 2022. Unfortunately, due to the quick turnaround for a second trial, it left insufficient time to disclose the report in a timely manner. The motion for an adjournment by the defence was brought on the basis that Mr. Inoue needed time to have an expert review the physical phone. The Crown opposed the application but was prepared to have the phone released to a defence expert for analysis. A request for the phone to be released to an expert never happened.

[25] As this period was not argued orally by counsel, I will not set out how I would have characterized this period of three months as it would have made no difference to my decision.

(d) Time period: January 20, 2023 to March 7, 2023 - Unavailability of the Complainant

[26] On December 23, 2022, the Crown received information through the Victim/Witness Assistance Program worker that the complainant had to leave the country for a family emergency. Subsequent information was received that her grandmother had passed away in Russia. A death certificate was provided. The complainant chose not to return to Russia as she had concerns with being able to leave the country due to the ongoing war with Ukraine. She met up with her family in Thailand, where she remained until January 19, 2023. As a result, the complainant was unavailable to testify during the two-week trial commencing on January 9, 2023. As I have already stated, both Mr. DeSantis and Mr. Inoue agreed to continue the trial on February 27, 2023, for seven days, to hear the evidence of the complainant, and any possible defence evidence. Had counsel taken up my offer of ascertaining if another judge was available the trial possibly could have been concluded later in January. In any event, as already stated, Mr. Inoue reasonably conceded that this delay of approximately one- and one-half months should be considered a discrete exceptional event.

[27] For these reasons, the period from the time Mr. Shen was charged to the completion of the trial is well within the presumptive Jordan timeline.

Has the applicant shown that this proceeding should be stayed even though the delay falls below the presumptive Jordan timeline?

[28] Although I have found that the period from the time Mr. Shen was charged to the completion of the trial is well within the presumptive Jordan timeline, a defendant may still show it is unreasonable by demonstrating: i) the defence took meaningful steps that show a sustained effort to expedite the proceedings; and ii) the case took markedly longer than it should have.

[29] Mr. Inoue raised my residual discretion to stay these proceedings for these reasons but did not advance any argument in support in his factum nor in oral submissions, save to point out that I had this discretion. There is no evidence that the defence took meaningful steps that show a sustained effort to expedite the proceedings, nor could I conclude that this case took markedly longer than it should have. A stay of proceedings is especially difficult to obtain. It is a remedy reserved for the “clearest of cases.” This is not such a case.

[30] For these reasons there is no basis for me to exercise my residual discretion to stay these proceedings. I concluded that even if leave were granted to hear the application that it had no reasonable prospect of success.

Disposition

[31] For these reasons, the application for an order staying this proceeding pursuant to ss. 11(b) and 24(1) of the Charter was dismissed.

SPIES J. Date: June 29, 2023

[1] December 18th was the date Mr. Inoue advised me was the date of filing – I believe this is a reference to when he uploaded the application record to Caselines. Mr. DeSantis stated the filing date was Friday December 16th, which I presume is when the application was filed with the trial office. I will use the December 16th date for the purpose of my reasons.

[2] Kutynec was the case relied upon by counsel at time this application was argued. As I was preparing these written reasons, the Supreme Court of Canada released R. v. Haevischer, 2023 SCC 11. As I had already given my decision orally, I have not considered the Haevischer decision in preparing these reasons.