Court File and Parties

COURT FILE NO.: SCA(P) 22-266 DATE: 2023 01 18

ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL

BETWEEN:

HIS MAJESTY THE KING Appellant

– and –

R. H. Respondent

COUNSEL: Amita Persad-Ford, for the Crown / Appellant Gary Grill, for the Respondent

HEARD: January 13, 2023

REASONS FOR JUDGMENT

[On Appeal from the Oral Decision of Justice D.F. McLeod, dated April 29, 2022 and the Written Reasons released October 18, 2022]

RESTRICTION ON PUBLICATION

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

J.M. WOOLLCOMBE J.

Introduction

[1] The Crown appeals the decision of McLeod J. to stay this case for unreasonable delay.

[2] The respondent, R. H., was arrested on November 26, 2020. He faced three sexual offences charges relating to a 15 year old: invitation to sexual touching, sexual assault and sexual interference. His trial in the Ontario Court of Justice was scheduled for 5 days, ending on May 20, 2022. His application to stay the charges for unreasonable delay was allowed by Justice D.F. McLeod on April 29, 2022. The application judge’s written reasons were released almost 6 months later, on October 18, 2022.

[3] The total delay from arrest to the expected completion of the trial was 541 days, or 17 months and 25 days, below the presumptive 18 month ceiling set out by the Supreme Court of Canada in R. v. Jordan 2016 SCC 27 for cases tried in the Ontario Court of Justice.

[4] Before the application judge, the parties disagreed about two periods that the Crown submitted were defence delay. The application judge found there were 7 days of defence delay, leading him to find net delay of 17 months and 18 days. He did not accept the Crown’s position that there was a further 42 day period of defence delay.

[5] The application judge was satisfied that the defence had met its onus of establishing that this delay was unreasonable, as a result of which he found a s. 11(b) breach and stayed the charges.

[6] The Crown submits that the application judge erred both in failing to find a further 42 days of defence delay and in his “under the ceiling” assessment as to whether the delay was unreasonable. The Crown submits that the stay order should be set aside and the matter remitted for trial.

[7] The respondent submits that the application judge correctly concluded that there had been unreasonable delay in bringing this case to trial, flowing from the fact that disclosure took from the November 26, 2020 arrest date until June 17, 2021. The defence says that in these circumstances, the trial judge was correct to find it had met its onus of showing that the delay was unreasonable.

Analysis

The Standard of Review

[8] The standard of review on appeals from s. 11(b) decisions is well established. It was recently set out by the Court of Appeal in R. v. Hanan, 2022 ONCA 229 as follows:

[41] The standard of review of a decision on a s. 11(b) application is well-established. Deference is owed to a trial judge's underlying findings of fact. The correctness standard applies to the trial judge's characterization of periods of delay, and to the determination of whether the delay was unreasonable: R. v. Jurkus, 2018 ONCA 489, 363 C.C.C. (3d) 246, at para. 25, leave to appeal refused, [2018] S.C.C.A. No. 325. Trial judges are generally in the best position to determine whether exceptional circumstances exist (including in the assessment of the transitional exceptional circumstance): Jordan, at para. 98. While typically deference is owed to such a determination, a clear legal error would justify interference: R. v. Picard, 2017 ONCA 692, 137 O.R. (3d) 401, at para. 137, leave to appeal refused, [2018] S.C.C.A. No. 135.

[9] See also: R. v. Zahor, 2022 ONCA 449 at para. 79; R. v. Safdar, 2021 ONCA 207 at para. 37; R. v. Pauls, 2020 ONCA 220 at para. 40, aff'd 2021 SCC 2.

Did the application judge err in failing to include the period from April 4 to May 16, 2022 as defence delay?

[10] The Crown submits that the application judge erred in not finding that there were 42 days of defence delay from April 4 to May 16, 2022.

[11] On September 14, 2021, the trial was scheduled for 5 days: May 16 to 20, 2022. Less than a month later, on October 8, 2021, Crown counsel contacted defence counsel to advise that earlier dates had become available for the trial. The Crown offered to the defence the possibility of having the 5 day trial on any of: April 4-8, April 11-14 and 19, April 19-22 and 25 or April 25-29. On October 14, 2021, defence counsel indicated that he was “solidly booked” until the trial, but that he would let the Crown know if anything opened up. On February 3, 2022, defence counsel advised the Crown that he was confident that he would be available for an earlier trial date and asked whether the dates she had proposed in October were available. Counsel received no response from the Crown.[^1]

[12] The application judge considered this delay at paras. 37-42 of his decision. After setting out how these dates came to be offered, he explained why this period should not be considered defence delay:

[41] In Morin, Sopinka J. noted that the courts must take account of the fact that "counsel for the prosecution and the defence cannot be expected to devote their time exclusively to one case": p. 792. Or, as I put it in Godin, s. 11(b) does not require counsel to "hold themselves in a state of perpetual availability": para. 23. The court should estimate the reasonable amount of time required for Crown and defence counsel to prepare and to make themselves available in the type of case before them. This estimation is objective, and does not include an analysis of the record which may demonstrate that counsel [page702] was available before or after this estimated time period. - R v Jordan, [2016] 1 SCR 631, 2016 SCC 27, [2016] 1 RCS 631, [2016] SCJ No 27, [2016] ACS no 27

[42] The court does not agree with the crown submission that these dates should be placed on the applicant’s side of the ledger. It is clear from the case law that the courts have taken into account the realities that defence counsel face many times on a regular basis. Many times, defence counsel have smaller offices with fewer counsel and support staff. These smaller “shops” do not have the resources or capacity to leave open multiple dates. To expect defence counsel to have multiple dates open for a protracted period of time would not be realistic and in many respects would have an adverse impact on defence counsel.

[13] The defence says that the respondent accepted the first available trial date. Mr. Grill says that the fact that he was not available for the earlier dates that were subsequently offered by the Crown does not mean that the delay from the newly offered dates to the original trial date is defence delay. It is the defence position that once the defence had accepted the first available trial dates, the fact that earlier trial dates later became available cannot mean that the defence unavailability for those dates results in defence delay.

[14] The Crown, relying on Jordan, submits that the application judge erred in not finding all of this delay defence delay.

[15] In Jordan, at paras. 61-64, the Court explained that defence delay is that caused solely by the conduct of the defence. The defence will have caused the delay if the court and Crown are ready to proceed but the defence is not. As a result, the period of delay resulting from that unavailability will be attributed to the defence.

[16] This issue is not as simple as it might at first appear. There has been some debate in the jurisprudence relating to the issue of whether, when the defence is unavailable for earlier dates, all of the delay between the first date offered to the defence, and the date that the matter ultimately is scheduled to take place on, is necessarily defence delay. The Court of Appeal has rejected such a “categorical approach” in favour of considering the circumstances of the case: R. v. Albinowski, 2018 ONCA 1084, at para. 46; Hanan at para. 56. As a result, the court is to take a “contextual approach that considers the circumstances relevant to whether, in respect of a particular period of time, the defence refusal of a date is the “sole or direct” cause of the resulting delay”.

[17] This may mean that the entire period of the delay is defence delay. Or, it may meant that it is “fair and reasonable” to apportion delay so that only part of it is defence delay: R. v. Boulanger, 2022 SCC 2 at para. 10.

[18] In this case, in dismissing the Crown’s argument that the delay from the rejected earlier trial dates until the trial date was defence delay, the application judge relied on the oft-quoted dicta in R. v. Godin, 2009 SCC 26 that defence counsel are not required to “hold themselves in a state of perpetual availability”, and are thus not required to accept the first date offered.

[19] I think the application judge’s reliance on Godin was misplaced and in error.

[20] In R. v. Picard, 2017 ONCA 692, the Court of Appeal observed at para. 113 that in Godin, “the court held that it was an error to attribute delay to the defence as soon as a single available date is offered to defence counsel and not accepted.” The court noted that s. 11(b) requires reasonable availability and cooperation, but does not require defence counsel to "hold themselves in a state of perpetual availability.”

[21] Following this, in R. v. Albinowski, 2018 ONCA 1084, the Court of Appeal considered the Crown’s argument that the trial judge mischaracterized delay caused by the defence as institutional delay because he erroneously relied on Godin:

31 The Godin principles applied by the trial judge appear in para. 23 of the Supreme Court's decision, as excerpted below:

Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11 (b) purposes, require defence counsel to hold themselves in a state of perpetual availability. Here, there is no suggestion that defence counsel was unreasonable in rejecting the earlier date. Indeed, his prior conduct in seeking earlier dates for the preliminary inquiry — efforts which were ignored — suggests that he wished to proceed expeditiously. I respectfully agree with Glithero R.S.J., dissenting in the Court of Appeal, at para. 53, that: "To hold that the delay clock stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable." [Emphasis added.]

32 It is important to recall the circumstances under which Cromwell J. for the Supreme Court made these statements. The determination in Godin, that defence counsel was not responsible for one month and a half of delay because he was not available on the earliest date offered for the rescheduled preliminary inquiry, was grounded firmly in the circumstances of that case — specifically, the Crown's responsibility for the need to reschedule and the attempts by the defence to expedite the proceedings.

33 That is not the present case. Here, defence counsel rejected multiple dates offered for the scheduling of the judicial pre-trials and the preliminary inquiry. The reason for their unavailability was clear: they were engaged with previously scheduled professional commitments. Their unavailability was not related to "defence actions legitimately taken to respond to the charges", such as "preparation time" and "defence applications and requests that are not frivolous": Jordan, at para. 65. Thus, as Jordan further directs, at para. 64, their unavailability, when the Crown and court were available, fell squarely within the category of delay that counts against the defence:

As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence.

[22] I conclude that the application judge failed to undertake the analysis of defence delay required by Jordan and, erroneously, applied the Godin principles, which are not applicable when the defence are offered and reject four separate dates for a 5 week trial. As a result, the applicant judge’s analysis is not owed deference and must be taken anew: Albinowski, at para. 35.

[23] In this case, a 5 day trial in May 2022 had been scheduled on September 14, 2021. The defence had accepted the first available trial date, but had made clear that there were concerns about delay and a date was set for a s. 11(b) application to be heard. Less than four weeks later, on October 8, 2021, the Crown was able to offer to the defence four earlier, separate start dates for a 5 day trial in April 2022. The Crown and court were both available for trial. These new trial dates were close to or over 6 months away.

[24] Defence counsel was not available. The reason for defence unavailability is not taken into account in determining defence delay (unless it is for defence preparation time): Hanan, at para. 56. This was not a case in which a single earlier trial date was offered. It was four separate possible trial weeks over the month of April, 2022. Nor is it a case in which the dates were so close that there would be insufficient time to prepare for trial. In my view, given that the court and Crown were available for trial starting on April 4, 2022, and defence counsel was not, due to professional commitments and not because of an inability to prepare for trial, the delay was solely or directly caused by the defence. Accordingly, the period from April 4 to May 16, 2022 is defence delay and should be deducted from the total delay: R. v. Hassan, 2022 ONSC 6369 at paras. 31-50; R. v. Brown, 2021 ONSC 6298 at paras. 78-82.

[25] Counsel for the respondent suggested during oral argument that were I to re-consider the application judge’s conclusions for this 42 day period, I should also consider whether he was correct to conclude that there were 7 days of defence delay from August 19 to 26, 2021. This defence delay resulted from the defence having been offered August 19 for the pretrial and not having been available. Having reflected on this, I see no error in the application judge’s conclusion that this was defence delay.

[26] The result of a correct determination of defence delay is that there were a total of 49 days of defence delay. This means that the net delay was 492 days, or 16 months and 13 days. This is further under the presumptive ceiling than the application judge held.

Did the application judge err in his under-the-ceiling analysis?

[27] The application judge’s under-the-ceiling assessment was based on a longer net delay that I have concluded it should have been. As a result, his analysis must be re-considered.

[28] In cases in which the delay is under the presumptive ceiling, the onus is on the defence to show that the delay was unreasonable. The defence must establish both that (i) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (ii) that the case took markedly longer than it reasonably should have. The majority in Jordan stated that stays beneath the ceiling were expected to be granted “only in clear cases”: Jordan, at paras. 48, 82-83.

[29] At the outset of his analysis under the heading “Considerations for those matters under the presumptive ceiling”, the application judge correctly set out the legal test, making clear, at paras. 45-47, that the onus to establish unreasonable delay was on the defence. No issue can be taken with this.

Meaningful and sustained steps

[30] The meaningful and sustained steps inquiry looks at what the defence did and could have done to have the case heard more quickly.

[31] The applicant judge’s analysis of this issue began with an excerpt of the relevant passage of Jordan. He found that respondent took meaningful and sustained steps to have the matter tried quickly. More specifically, he noted that counsel diligently pursued disclosure and, once it was received, continued to seek early dates for a pre-trial.

[32] The Crown position on the application was that there were steps the defence did not take that would have amounted to sustained efforts to expedite the trial. The Crown submitted that while the respondent made multiple assertions about missing disclosure, more could and should have been done, and that efforts should have been made to schedule a Crown pre-trial to address the missing disclosure.

[33] While his analysis on this issue is under the heading “How should the court reconcile the period concerning initial disclosure?”, the application judge firmly rejected the Crown’s position that the defence could and should have done more to move the case along when the Crown did not produce the disclosure. I see no basis to interfere with his findings at paras. 28 to 36.

Markedly longer

[34] The application judge correctly recognized that deciding whether a case has markedly exceeded the reasonable time requirements requires consideration of a variety of factors including the complexity of the case, local considerations and whether the Crown took reasonable steps to expedite the proceedings.

[35] In assessing the reasonable time for a case to be completed, trial judges are to “employ the knowledge they have of their own jurisdictions, including how long a case of that nature typically takes to get to trial in light of relevant local and systemic circumstances”. When the Crown has done its part, including genuinely responding to defence efforts, seeking opportunities to streamline the issues and evidence and adapting to evolving circumstances as the case progresses, it is unlikely that a case will have markedly exceeded reasonable time requirements. The approach to take is to step back from the minutiae and adopt a bird’s eye view of the case: Jordan, at paras. 89-91.

[36] Under this branch of the test, the question to ask is not whether the case should reasonably have been completed in less time. It is whether the case took markedly longer than it reasonably should have: R. v. K.J.M., 2019 SCC at para. 107.

[37] The application judge agreed with the Crown that “while this case is perhaps not on the highest peak of complexities it cannot be said to be “not complex””. Under the “case complexity” analysis, the application judge found that the delay in the case was as a result of disclosure taking almost 7 months, rather than the complexity of the case.

[38] Under his second heading “markedly longer”, the application judge found that it was as a result of the late disclosure that the case had markedly exceeded reasonable time requirements. This conclusion seems to be grounded in his view that disclosure took 7 months and thus delayed the setting of the trial by 5 months, which he found was not reasonable.

[39] As I have indicated, the failure of the application judge to consider the markedly longer issue from the perspective of net delay being 16 months and 13 days (rather than the 17 months and 18 days he calculated as net delay) means that the analysis must be re-assessed. I see a genuine difference in starting point when the net delay is reduced by the additional 42 days. Forty-two less days of delay means that the case was not just under the presumptive ceiling, it was well under it.

[40] Moreover, I see other difficulties with the application judge’s analysis.

[41] The application judge does not appear to me to have taken a bird’s eye view to the issue. His sole focus was on the fact that disclosure took too long. He was entitled to conclude that disclosure should have been made 5 months earlier. But, the focus at the markedly longer analysis stage is a broader inquiry and mandates consideration of factors that the application judge appears to have ignored or misunderstood.

[42] First, there is a requirement to consider relevant local circumstances.

[43] The application judge’s only reference to local considerations was that Brampton is arguably one of the busiest courthouses in Canada. He said nothing about how that affected his analysis.

[44] The fact that Brampton is one of the busiest jurisdictions in Canada is relevant to the markedly longer analysis. As Rahman J. recently observed in R. v. Dhindsa, 2022 ONSC 6782 at para. 44:

44 Local conditions also matter. Brampton is the busiest jurisdiction in the country, at both levels of court[^2]. What is markedly longer in some jurisdictions may not be markedly longer elsewhere. That is not to say that a court should simply forgive excessive delay in busier jurisdictions, because such an approach would undermine the purpose behind s. 11(b). Nonetheless, local conditions are part of the markedly longer calculus. Considering how busy both levels of trial court are in Brampton, the time that this case took to move through the system, while lengthy, is not unusual.

[45] I agree with these comments. Markedly longer is affected by how busy a jurisdiction is. Given how busy Brampton is, what is reasonable may be closer to the presumptive ceiling than it might be in other jurisdictions: R. v. Brown, 2021 ONSC 6298 at para. 113. The application judge did not seem to consider this.

[46] Second, in my view, the application judge failed to properly factor the pandemic into his markedly longer analysis. One of the systemic circumstances that was present in this case was the fact of the COVID-19 pandemic and its well-established impact on the courts. The application judge’s assessment of the pandemic strongly suggests that he reversed the onus of proof and improperly discounted its relevance. I say this for the following reasons.

[47] In its factum in the court below, the Crown argued that had the presumptive ceiling been exceeded, the pandemic would have been considered a discrete exceptional circumstance. The Crown relied on the fact that the pandemic meant that new protocols for disclosure had been necessary. The Crown also relied on the fact that the pandemic’s far reaching impact had created a backlog of cases to accommodate. In support of its position, the factum cited a passage of Nakatsuro J.’s decision in R. v. Simmons, 2020 ONSC 7209. The application judge quoted this passage in his decision at para. 48.

[48] However, the application judge went on from Simmons to say, at paras. 49-50:

[49] The mere existence of a pandemic does not automatically entitle the Crown to assert that a discrete exceptional event has delayed a case. For the pandemic to be considered, there must be evidence that the pandemic directly affected the case in question. R v Brown, 2021 ONCJ 663.

[50] There is no doubt that the pandemic had a significant impact on the criminal justice system particularly with respect to scheduling. That being said, there is no evidence as to what or how that impact manifested itself in the matter before me. There was no internal correspondence or local manifesto brought to this courts attention as to how matters of this type would be dealt with or what the process was that would be undertaken to remedy any issues that were pandemic related. This court does agree that new, general protocols, were put in place as a result of the pandemic, this fact is patently obvious. However, no information or submission was provided to this court to show the direct impact on the disclosure process in general or with respect to the Holt matter specifically. No information was forthcoming that would have enlightened the court as to the reasonable steps that were taken by the crown to address the difficulties that were present due to COVID 19.

[49] In this analysis, the application judge adopted the “discrete exceptional event” language that is applicable only where the Crown seeks to justify delay that is over the presumptive ceiling. He also cited R. v. Brown, 2021 ONCJ 663, a case in which the presumptive ceiling was exceeded by almost 6 months, and where Bhabha J. declined to permit the Crown to rely on the pandemic as a discrete exceptional circumstance because there was no evidence that the pandemic had caused the delay.

[50] I think the application judge’s approach to the pandemic reveals error. First, in rejecting that the Crown could rely on the pandemic as a discrete exceptional event, he misunderstood the Crown’s position. The Crown was not arguing discrete exceptional circumstances, nor would it have when the delay was under the presumptive ceiling. Second, he failed to appreciate that in the circumstances of this case, there was no onus on the Crown to demonstrate that the pandemic caused the delay. The defence had the onus of demonstrating that the delay was unreasonable in the circumstances. Third, because he held that the Crown had failed to adduce evidence as to precisely how the pandemic caused the delay, he improperly disregarded the impact of the pandemic where it was relevant, which was in his assessment as to whether the case took markedly longer than was reasonable.

[51] In my view, there was obligation, when considering whether the delay in this case was markedly longer than was reasonable, to factor into the analysis that the charges, disclosure, and setting trial dates all occurred when the courts were trying to work within and respond to the effects and pressures of the pandemic. The Crown filed evidence in support of its position. The application judge improperly rejected the pandemic as a relevant systemic circumstance: R. v. Brown 2021 ONSC 6298, at para. 114. Stepping back and putting this case in its proper context required factoring in the pandemic.

[52] Third, the application judge’s assessment of the markedly longer issue did not take account of the fact that the Crown had adapted to the evolving situation in precisely the manner that Jordan contemplates. Knowing that the trial date was in May 2022 and that there was an application under s. 11(b), the Crown succeeded in proactively securing earlier trial dates, even though the net delay for the first trial was also under the presumptive ceiling. In his analysis on this issue, the application judge failed to consider this important step taken by the Crown.

[53] Finally, in my view, the application judge placed undue emphasis on the late disclosure. I accept the application judge’s factual finding that disclosure should have been made 5 months earlier. The respondent submits that, on this basis, it was open to the application judge to find, as he did, that the case necessarily took markedly longer than was reasonable.

[54] The difficulty in this position is that this branch of the test is not about whether the trial should have been completed in less time. Nor is it solely about whether one stage of the proceedings took too long. The analysis requires a step back and an overall assessment of the time taken to decide if the entire delay to trial was markedly longer than was reasonable.

[55] In making this assessment, as I must given that the net delay is 42 days shorter than the application judge found it to be, I consider the following factors to be important:

• This was a 5 day relatively straight-forward trial;
• Disclosure took much longer than it reasonably should have and resulted in a 5 month delay in setting a JPT;
• The trial was scheduled in Brampton, one of the country’s busiest jurisdictions;
• The trial was set during a pandemic, at a time when the court was working out new disclosure protocols and was also trying to accommodate trials for a significant number of cases that had been delayed and had to be scheduled or re-scheduled as a result of the pandemic;
• After the trial was set, and knowing that there was a s. 11(b) application scheduled, even though the total delay was under the presumptive ceiling, the Crown was able to obtain four earlier trial dates, none of which were available to the defence;
• The net delay was 16 months and 13 days, well under the presumptive ceiling.

[56] In all of these circumstances, stepping back from the minutiae, I find that the respondent has not met his onus of establishing that the case took markedly longer than was reasonable.

[57] As a result, the stay order must be set aside. The case is remitted to the Brampton Ontario Court of Justice for trial. The matter will be spoken to at 9:00 a.m. on January 27, 2023 in courtroom #104 so that a date may be set for trial.

Woollcombe J.

Released: January 18, 2023

[^1]: In its factum in the court below, the Crown invited the application judge to take judicial notice of the fact that trial dates are not held infinitely and that this late email by the defence, almost 4 months after the April dates had been offered, was of no consequence in this application. The application judge appears to have agreed with the Crown as he stated, at para. 40, that by the time of the defence email, “the proposed dates were no longer available”. There is no basis to interfere with this factual finding that these dates were no longer available.

[^2]: R. v. Toor, 2022 ONCJ 8, at para. 19; R. v. Aggarwal, 2022 ONSC 6213, at para. 48; R. v. Khattra, 2020 ONSC 7894, at para. 62.