CITATION: R. v. Aguilar-Lopez, 2023 ONSC 5868
COURT FILE NO.: 22-70000023-0000
DATE: 20231018
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
FRANCISCO AGUILAR-LOPEZ
Applicant/Defendant
Counsel: Foreman, J., for the Respondent/Crown Wigderson, O., for the Applicant/Defendant
HEARD: August 23, 2023
REasons on application to stay proceedings pursuant to s. 11(b) OF THE CHARTER
H. mcarthur J.:
Introduction
[1] On June 29, 2021, Francisco Aguilar-Lopez (the “applicant”) was charged with one count of sexual assault. His jury trial is anticipated to be completed on October 24, 2023, which is a total delay of 841 days. There is no dispute that the defence is responsible for 28 days’ delay.[^1] Thus, the net delay in this matter—before looking at any exceptional circumstances—is 813 days, or 26.7 months.
[2] This net delay is below the 30-month ceiling set for trials proceeding in the Superior Court by the Supreme Court in R. v. Jordan, 2016 SCC 27. Defence counsel nonetheless argues that the applicant’s right to be tried within a reasonable time pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms has been infringed. He does not argue that this is one of the clear cases where, applying the Jordan framework, the defence can establish that the delay is unreasonable even though it falls below the presumptive ceiling. Nor does he assert that the defence took meaningful steps that demonstrate a sustained effort to expedite the proceedings, or that the case took markedly longer than it reasonably should have.
[3] Instead, defence counsel argues that the time has come to set a new presumptive ceiling for matters that proceed to trial at the Superior Court without first having a preliminary hearing. Defence counsel points out that three years after Jordan was decided, Parliament enacted Bill C-75 and abolished preliminary hearings for every indictable offence except for those punishable by imprisonment for 14 years or life.[^2] He argues that for cases proceeding to trial at the Superior Court where there has been no right to a preliminary hearing, there should be a lower presumptive ceiling. He further submits that the new constitutional cut-off for delay in cases such as the applicant’s should be 22 months. Since the applicant’s case took longer than the proposed new ceiling, defence counsel argues his matter should be stayed.
[4] For the following reasons, I am not persuaded that there should be a new constitutional ceiling for trials at the Superior Court when there has been no preliminary hearing. The record does not support the contention that these types of cases are not getting to trial in a reasonable time frame, especially considering that cases in the system currently are still being impacted by pandemic-related delay. I am satisfied that the Jordan framework is flexible enough to address unreasonable delay in a myriad of situations, including whether a matter did or did not qualify for a preliminary hearing, as well as any cases involving pandemic delay issues.
The Jordan Framework
[5] The central feature of the analytical framework for assessing delay articulated by the court in Jordan is a ceiling beyond which delay is presumptively unreasonable. For cases tried at the Superior Court of Justice, the ceiling was set at 30 months from the date the charge was laid to the end of the evidence and submissions at trial: see Jordan, at paras. 5, 46, 49.
[6] When assessing pre-verdict delay, the first step is to calculate the total delay between the charges and the end of trial. Then, any defence delay should be deducted from that sum. Defence delay encompasses two situations: (i) delay that was either explicitly or implicitly waived by the defence; and (ii) delay that was caused solely by the defence. Actions legitimately taken to respond to the charges fall outside the ambit of defence delay.
[7] If the net delay, after subtracting any defence delay, exceeds 30 months, the burden shifts to the Crown to rebut the presumption of unreasonableness by arguing that there were exceptional circumstances causing delay. Exceptional circumstances can arise in two ways: (i) from discrete events; and (ii) from the complexity of the case: Jordan, at paras. 69-71.
[8] Exceptional circumstances lie outside the Crown’s control in that they are reasonably unforeseen or unavoidable and the Crown cannot reasonably remedy delays emanating from those circumstances once they arise. The period of delay caused by a discrete exceptional event will be subtracted from the total period of delay for the purpose of determining whether the Jordan ceiling has been exceeded. The court can then assess whether any delay was justified because of the complexity of the case: Jordan, at para. 80.
[9] If the total delay from the charge to the end of the trial, minus defence delay or delay caused by exceptional circumstances, exceeds 30 months, and the overall delay is not justified based on case complexity, then the defendant’s s. 11(b) right to be tried within a reasonable time has been breached.
[10] If the total delay from the charge to the end of the trial, minus defence delay or delay caused by exceptional circumstances, does not exceed 30 months, the delay may still be unreasonable. To obtain a stay of proceedings in such a case, however, the defence must establish: (i) that 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: Jordan, at paras. 82-83.
[11] The court in Jordan stressed that the 30-month ceiling for trials at the Superior Court was not “an aspirational target” and that “most cases” could and should be completed before reaching the ceiling: Jordan, at para. 56. That is why, in clear cases, a defendant can still demonstrate that their right to be tried within a reasonable time has been infringed, even before the ceiling has been breached.
[12] The court in Jordan emphasised that 30 months for a trial at the Superior Court was a “long time to wait for justice.” However, the ceiling chosen reflected the realities of the justice system at that time. The court warned it might have to revisit the numbers set in Jordan and the considerations that inform those numbers at some point in the future: Jordan, at para. 57.
Position of the Defence
[13] Defence counsel argues that the time has now come for a reconsideration of the ceiling for individuals who are charged with offences for which they have no right to a preliminary hearing. As a matter of logic and fairness, he says, someone such as the applicant, who does not have the right to a preliminary hearing, should be tried more expeditiously than someone who has had a preliminary hearing.
[14] He points out that the court in Jordan also set a ceiling of 30 months for matters tried at the provincial court after a preliminary hearing: Jordan, at paras. 46, 49. Why, he asks, would the court specify a 30-month ceiling for cases tried at the provincial level after a preliminary hearing, if the ceiling was based exclusively on what level of court the case proceeds in? The clear inference to be drawn from the court in Jordan allowing for a 30-month ceiling for such cases tried at the lower court, he argues, is that the time required to have a preliminary hearing was a key factor in setting the applicable 30-month ceiling, for any matters that had a preliminary hearing.
[15] The defence argues that several of the cases referred to by the Crown did not consider the import of the Jordan court setting a 30-month ceiling for cases at the provincial court following a preliminary hearing. For example, in R. v. Bulhosen, 2019 ONCA 600, the court held that the 30-month ceiling applied to the defendant’s case even though the Crown preferred the indictment before he had a preliminary hearing. At para. 69, Strathy C.J.O. for the court stated, “Nowhere in Jordan did the court speak of a one-step or two-step proceeding or suggest that different rules apply when an indictment is preferred in a superior court.” The court in Bulhosen, the defence argues, ignores the clear import of the conclusion in Jordan that the same ceiling applies to matters tried at the provincial court if there has been a preliminary hearing. The only reason the same ceiling would apply, he argues, is if the time required for a preliminary hearing was factored into the ceiling.
[16] Moreover, he notes out that in the cases referred to by the Crown, the defence argued that there should be an 18-month presumptive ceiling for matters going to trial at the Superior Court where no preliminary hearing was permitted. He argues that the present case can be distinguished from the ones relied upon by the Crown as he is urging that the presumptive cut-off for delay should be set at 22 months. This ceiling acknowledges that matters will take longer at the Superior Court than at the provincial court, even where there has been no preliminary hearing.
[17] The defence comes to this number by looking back to the case of R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771. There, the court set eight to ten months as a guide for institutional delay in the provincial court: see also Jordan, at para. 52. The proposed new constitutional ceiling of 22 months was reached by starting with the 30-month ceiling from Jordan, then subtracting eight months on account of the non-existence of provincial court institutional delay.
Position of the Crown
[18] The Crown highlights several cases where courts have held that the presumptive 30-month ceiling applies to cases where the Crown preferred the indictment, even though the defendants in those cases did not have a preliminary hearing: see for example, R. v. Nyznik, 2017 ONSC 69; R. v. Maone, 2017 ONSC 3537; and Bulhosen. While these cases all predate Bill C-75, he submits that the analysis in these decisions is helpful in assessing the defence argument that a new ceiling should be set for matters where a preliminary hearing is no longer available.
[19] The Crown notes that a similar argument to the one being advanced in the present case was rejected in R. v. Arthur, 2021 ONSC 6982. As with the applicant here, Mr. Arthur was charged with sexual assault after Bill C-75 removed the availability of a preliminary hearing for that offence. Justice Boswell held that he did not have jurisdiction to revisit the Jordan timelines. He also laid out several reasons for his conclusion that the ceiling did not need to be re-evaluated for cases without preliminary hearings. He held that the determinative factor for the applicable ceiling is whether the trial proceeds in provincial court or in superior court.
[20] Moreover, the Crown points out that the Supreme Court declined to set a new presumptive ceiling for youth court matters in R. v. KJM, 2019 SCC 55. There, the court commented at para. 65 that setting new ceilings for different groups would be “incompatible with the uniform-ceiling approach adopted in Jordan and would undermine its objective of simplifying and streamlining the s. 11(b) framework.”
[21] The Crown argues that the framework in Jordan is flexible enough to account for case-specific circumstances, including charges that are not eligible for a preliminary hearing. He highlights that it is always open to the defence to ask for earlier trial dates where there is no preliminary hearing and to argue that the defendant’s right to be tried within a reasonable time has been infringed, even when the ceiling has not been reached.
Analysis
[22] There is some logic to the defence position that matters proceeding to trial at the Superior Court, where the defendant has no right to a preliminary hearing, should get to trial more quickly than matters where there has been such a hearing. As stressed in Jordan, the ceiling is not aspirational, and the public should expect that most cases will be resolved before reaching the ceiling. The public might also reasonably expect that matters that proceed to trial at the Superior Court without a preliminary hearing should proceed more quickly than cases where such a hearing took place.
[23] Defence counsel argues that a new presumptive ceiling is required to “light a fire” and ensure that matters such as his, where there was no right to a preliminary hearing, are tried in a reasonable time frame. The issue I have with this submission is that I have no evidence to suggest that matters such as his are not being tried more quickly than cases where there has been a preliminary hearing. To paraphrase the Supreme Court in KJM, it has not been shown that there is a problem regarding delay for matters proceeding to trial at the Superior Court without having a preliminary hearing, let alone one that warrants the imposition of a new constitutional standard.
[24] As the court in KJM explained at para. 63 when rejecting the call for a lower ceiling for youth matters:
It bears emphasis that constitutionalizing a lower presumptive ceiling would be no small step. While ordinary statutory requirements come and go, constitutional requirements are meant to be more lasting. At this time, and on the record before me, it has not been demonstrated that the Jordan framework needs to be revisited in its application to youth matters.
[25] In my view, a similar analysis applies to the argument that a new lower ceiling is required for matters which proceed directly to trial at the Superior Court. I have no evidence that individuals who proactively request an expedited trial are not being accommodated in the post-Jordan and post-Bill C-75 world. Nor do I have evidence that individuals who fail to take proactive steps are not getting timely trials.
[26] In the present case, the defence did not take proactive steps to try to obtain an earlier date. Despite not taking such steps, and after accounting for defence delay, the net delay of 26.7 months is below the Jordan ceiling by almost three and a half months. But there were also exceptional circumstances that caused delay in the applicant’s case. While the defence argues that there were “no unforeseen or unavoidable events that caused delay”, that position fails entirely to account for the delay caused by the Covid pandemic.
[27] The defence also argues strenuously that any pandemic-related delays are irrelevant to the issue of whether there should be a new constitutional ceiling. I disagree.
[28] A key argument advanced by the defence is that at the time Jordan was decided, Bill C-75 had not been enacted. But, in the same way, Jordan was decided before the pandemic struck. As the court noted in R. v. Agpoon, 2023 ONCA 449, the Jordan principles are adaptable and can thus account for the delays caused by the pandemic. However, as the court explained, at para. 21, “there is a systemic perspective within which the pandemic must be seen.”
[29] Prevailing circumstances inform what amounts to unreasonable delay. In my view, it makes little sense to set a new constitutional ceiling at this time, when cases in the system waiting for trial have been and continue to be affected by systemic pandemic delay.
[30] I will use the present case to illustrate. Even on the most generous view to the applicant, after accounting for defence delay and exceptional circumstances, his case will be completed below his new proposed ceiling.
[31] The court in Jordan cautioned against “complicated micro-counting” and urged courts to step back and take a “bird’s-eye view” of the case: Jordan, at paras. 111 and 91; see also Agpoon, at para. 22. Given that direction, I will not delve deeply into all the pandemic-related delay in the applicant’s case.
[32] However, in brief, on the date the applicant was charged, Ontario was slowly emerging from the second pandemic state of emergency. Jury matters were suspended. Indeed, on June 29, 2021, the date the applicant was charged, juries had been suspended for approximately nine months. Some jury trials began to proceed in Toronto in the summer months of 2021. But, as of December 20, 2021, jury selections were again suspended. The applicant adjourned his case to the Superior Court of Justice on December 6, 2021, just 14 days before this moratorium on jury trials.
[33] On January 19, 2022, the ban on jury trials was extended until February 28, 2022. The applicant’s first appearance and two judicial pre-trials took place while jury trials were suspended. The date selected for the jury trial was selected while jury trials were suspended. Looking only at the time that the applicant was under the jurisdiction of the Superior Court, approximately two and a half months directly coincided with times when jury trials could not proceed.
[34] But the exceptional circumstances impacting on delay in the applicant’s case encompass far more than the precise jury moratoriums during his time under the jurisdiction of the Superior Court. The reality is that there had been a prohibition on juries for about nine months before the applicant was charged. The reality is that there were further months of jury suspensions both before and after the applicant elected for trial at the Superior Court. And the reality is that there were countless cases in the queue ahead of the applicant, jostling for trial dates.
[35] Cases in the justice system can be analogized to cars travelling to a destination. The prudent driver will budget 30 minutes for the drive because of the anticipated volume of traffic and construction. On good days the drive will be much quicker. But a serious accident can cause all traffic to come to a complete standstill, except for emergency vehicles. It becomes apparent to the driver that it will take more than 30 minutes to get to the destination. It can take considerable time and effort to clear things up after a crash. When traffic finally does start to move again, the cars at the back of the line must wait for those closer to the accident to get through first. And when cars arrive newly on the scene, they are inevitably delayed in getting to their destination because of the huge backlog of traffic already there and waiting to get through.
[36] There have been ongoing systemic issues related to the pandemic plaguing the court during the applicant’s time here. Each time jury trials were suspended the court accumulated more cases waiting to get to trial. The Superior Court in Toronto continues to grapple with a substantial backlog related to the pandemic. The effects of the pandemic are still rippling through the justice system.
[37] Looking at the systemic issues, and taking a “bird’s-eye view”, it strikes me that at least five months should be deducted from the net delay calculation in the applicant’s matter. Thus, taking into consideration the systemic impact of the pandemic, the applicant’s matter will come to trial below the ceiling he proposes.
[38] The applicant’s case highlights why, in my view, it is problematic to set a new constitutional ceiling when cases are still being impacted by pandemic delay. It seems futile to set a new presumptive ceiling, knowing at the outset that most cases in the queue at this time will exceed the new ceiling because of the systemic impact of the pandemic. That is, if there is ever to be a time to reconsider whether a new ceiling is warranted, that time is not now.
Conclusion
[39] On the record before me, I am not persuaded that it is necessary or appropriate to set a new constitutional ceiling of 22 months’ delay for cases proceeding to trial at the Superior Court where there has been no right to a preliminary hearing.
[40] Nor am I satisfied that the applicant’s right to be tried within a reasonable time pursuant to s. 11(b) of the Charter has been breached. The defence did not take meaningful steps that demonstrate a sustained effort to expedite the proceedings. Nor does the defence argue that the case took markedly longer than it reasonably should have.
[41] Before taking into consideration any exceptional circumstances, the net delay is 26.7 months, below the Jordan ceiling. Taking into consideration the delay caused by the pandemic, the applicant’s case will be completed well below the Jordan ceiling and below the new ceiling proposed by the defence.
[42] The application to stay the proceedings pursuant to s. 11(b) of the Charter is dismissed.
Justice Heather McArthur
Released: October 18, 2023
CITATION: R. v. Aguilar-Lopez, 2023 ONSC 5868
COURT FILE NO.: 22-70000023-0000
DATE: 20231018
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
FRANCISCO AGUILAR-LOPEZ
REasons on application to stay proceedings pursuant to s. 11(b) OF THE CHARTER
Justice Heather McArthur
Released: October 18, 2023
[^1]: The defence caused delay when it agreed to schedule a judicial pre-trial in the provincial court, which became unnecessary when the applicant decided that rather than having a trial at the Court of Justice, he would elect to have a jury trial at the Superior Court. As a result, the applicant’s matter was remanded to the Superior Court on December 6, 2021, rather than November 8, 2021. The defence concedes that it is thus responsible for 28 days of delay.
[^2]: On June 21, 2019, Bill C-75 received Royal assent. The Bill amended parts of the Criminal Code, including Part XVIII, which regulates the conduct of preliminary inquiries. The amendments to Part XVIII came into force on September 19, 2019. The amendments removed from the provincial court the jurisdiction to conduct a preliminary inquiry on indictable charges that are punishable by less than 14 years' imprisonment.