His Majesty the King v. Timothy Carl Toole
COURT FILE NO.: CR-21-44
DATE: 2023 12 22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
TIMOTHY CARL TOOLE
COUNSEL:
S. Hamilton, for the Crown
W. Gilmour and P. Dhaliwal, for the Accused
HEARD: November 22, 2023
Ruling on S.11(b) APPLICATION
CHOZIK J.
OVERVIEW:
[1] Mr. Toole applies pursuant to section 24(1) of the Canadian Charter for a stay of proceedings due to an alleged breach of his right to a trial within a reasonable time, as guaranteed by section 11(b) of the Charter. He argues that the net delay in this case exceeds the presumptive ceiling set in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.
[2] Mr. Toole was charged with sexually assaulting A.L. on June 3, 2020. The information was sworn on June 10, 2020. On September 27, 2023, following a six-day trial, Mr. Toole was found guilty of sexually assaulting A.L. by a jury.
[3] Mr. Toole initially sought to bring this s.11(b) application on the morning of the jury selection. However, the application was not served or filed within the timelines permitted by the rules. There was no affidavit in support of the application. The required transcripts were provided to the Crown on the eve of the jury selection. I declined to hear the application because it would have required adjourning the trial. No formal application to adjourn the trial had been brought. I indicated that if Mr. Toole wished to proceed with the s.11(b) application, I would hear it after the trial. Hence, this application was heard after the trial was completed and the jury had delivered a verdict.
[4] It is not disputed that the total delay from the time the information was laid until the completion of the trial is 39 months and 17 days (1204 days). The presumptive ceiling for cases in the Superior Court of Justice to reach trial is 30 months: R v. Jordan, at para. 5. It is conceded that defence delay is 3 months and 9 days (99 days) and is to be deducted from the total delay.
[5] The determination of this application turns on three questions:
a. Whether delay of 5 months and 18 days (168 days) arising from the adjournment of the first trial from June 13, 2022 until November 28, 2022 is defence delay;
b. Whether the mistrial declared on December 5, 2022 is an “exceptional circumstance” that can rebut the presumptive unreasonableness of the delay;
c. Whether the delay of 9 months and 26 days (296 days)[^1] from the date the mistrial was declared on December 5, 2022 to the conclusion of the trial on September 27, 2023 is reasonably attributed to that discrete event.
[6] In respect of these questions, I find that the delay arising from the adjournment of the first trial is not defence delay. Those 5 months and 18 days (168 days) are not to be deducted from the total delay. I find that the mistrial on December 5, 2022 was an exceptional circumstance. It was neither the fault of the defence nor the Crown. The mistrial was declared on the trial judge’s own motion for perceived scheduling reasons that arose during the trial. It was strenuously resisted by both the defence and the Crown. Delay reasonably attributable to this discrete event must be deduced from the net delay.
[7] The delay caused by the mistrial was 9 months and 26 days (296 days). Of this, I find that only 3 to 4 months can reasonably be attributed to the discrete event. The rest is unreasonable and attributable to a systemic failure to advance the accused’s right to a trial within a reasonable time.
[8] In the result, having regard to all the circumstances, I find Mr. Toole’s right to trial within a reasonable time was violated. The total delay was 39 months and 17 days (1204 days). Defence delay was 3 months and 9 days (99 days). The net delay was therefore 36 months and 25 days (1105 days) Only 3 to 4 months are reasonably attributable to the mistrial. The remaining delay exceeded the 30-months presumptive ceiling. I am not satisfied that the Crown has discharged its onus to demonstrate that the delay was reasonable in the circumstances.
[9] In the alternative, if I am wrong and the delay fell below the presumptive ceiling, I find that this is one of those rare “under the ceiling” cases that warrants a stay of proceedings. I find that Mr. Toole suffered significant prejudice specifically because of the delay caused by the mistrial. The defence has met its onus to establish that the delay was unreasonable.
[10] In all of the circumstances a stay of proceedings must be ordered
BACKGROUND:
The Offence:
[11] Evidence at trial established that on the afternoon of June 3, 2020 Mr. Toole attended at the residence of his acquaintance, A.L. They both consumed alcohol. It was not disputed at trial that they engaged in sexual activity. The issue at trial was whether she consented to that sexual activity and whether A.L. lacked the capacity to consent to sexual activity due to her intoxication.
[12] A.L. testified that she did not remember having sex with Mr. Toole. Her friend testified that she walked in to find Mr. Toole having sex with A.L., who appeared unconscious. Emergency personnel who responded to the friend’s 911 call gave various accounts of their observations of A.L. when they arrived on scene. In Mr. Toole’s testimony, he admitted to engaging in sexual activity with A.L. but claimed that she was fully conscious and consenting throughout.
[13] Mr. Toole was arrested and charged with sexual assault that same day, June 3, 2020. The information was laid on June 10, 2020.
[14] The trial in this matter commenced on September 19, 2023. Following six days of trial, on September 27, 2023, the jury found Mr. Toole guilty on the one count of the Indictment, sexual assault.
A Brief History of the Proceedings:
[15] It was conceded that the delay from May 28, 2021 until June 25, 2021 (29 days) is defence delay. It was also conceded that 70 days from April 4, 2022 to June 13, 2022 is defence delay. The total defence delay conceded is 99 days.
[16] From August 12, 2020 to May 21, 2021 the matter was in the Ontario Court of Justice. From the first appearance on August 12, 2020 until February 10, 2021, the defence was waiting for disclosure. A Crown pre-trial was conducted on March 16, 2021. A judicial pre-trial was conducted on May 6, 2021. On May 21, 2021 Mr. Toole appeared with counsel, Ms. Currie, and elected to be tried in the Superior Court of Justice composed of a judge and jury.
[17] The first date offered for Superior Court assignment court was May 28, 2021. June 25, 2021 was selected by defence. Mr. Toole’s first appearance in this court was on June 25, 2021. On that date, a judicial pretrial was scheduled. The first date offered for the judicial pretrial was July 27, 2021 and it was accepted.
[18] On July 27, 2021, the judicial pre-trial was conducted and trial dates were set for a 5-to-6-day jury trial. The trial was set to commence on June 13, 2022. April 19, 2022 was set for “stage one of third party records application and motion for directions on s.276”.
[19] On April 5, 2022, the defence served and filed a constitutional challenge to the s.278 regime returnable on April 19, 2022. On April 8, 2022, the Crown sought to have constitutional challenge dismissed summarily because it was not served with 30 days’ notice prior to the April 19, 2022 hearing date. I was presiding in assignment court that day and dismissed the Crown’s request. The argument of the constitutional challenge was set for May 20, 2022.
[20] On May 20, 2022, the constitutional challenge was adjourned because the argument on this application was the same as in R. v. J.J., 2022 SCC 28, 415 C.C.C. (3d) 285 which had been argued in the Supreme Court of Canada in October 2021 but was under reserve. The trial dates commencing June 13, 2022 were vacated to await that decision. New trial dates were set for November 28, 2022, for a 5-to-6-day jury trial.
[21] On June 24, 2022, the constitutional challenge was set for hearing on August 23, 2022. The Stage 1 of ss.276/278 application were set for hearing on October 14, 2022.
[22] On August 23, 2022, the Stage 1 hearing was held. The threshold was found to have been met and a Stage 2 hearing was set for October 14, 2022. On October 14, 2022, the Stage 2 hearing was held. The matter was adjourned to the trial confirmation date of November 18, 2022. On November 18, 2022 the counsel confirmed that they were ready to proceed to trial on November 28, 2022 as previously set.
The First Trial and Mistrial
[23] The first trial started on November 28, 2022. That day the jury was selected. The jury selection was completed in the morning. No evidence was called in the afternoon. On November 29, 2022, opening statements were made on evidence. The complainant testified in-chief. Her evidence-in-chief continued on November 30, 2022, and cross-examination by defence counsel started. Part way through the cross-examination, the Crown objected to some questions posed by defence counsel on the grounds that they ran afoul of the ss.276/278 ruling. The Crown advised that it may bring an application for a mistrial.
[24] To avoid the risk of a potential mistrial, the defence re-elected to be tried by judge alone. The Crown consented to the reelection, the jury was dismissed and the trial was adjourned to the next day for continuation.
[25] The next day, December 1, 2022, the Crown was ill and not able to continue until December 5, 2022. The trial was adjourned to December 5, 2022. On December 5, 2022 the defence counsel was ill. She advised that she anticipated being able to continue on December 7, 2022.
[26] After some discussion, Mandhane J. declared a mistrial. Mr. Toole was remanded to December 23, 2022 at 11:00 am to appear via Zoom, for the matter to be spoken to on the regular criminal scheduling list. There were 8 juridical days when the mistrial was declared that the matter could have been heard and continued on. Those dates were: December 7, 8, 9, 12, 13, 14, 15 and 16, 2022.
[27] Based on the discussions had, the reasons for the mistrial included:
a. Insufficient court rooms and available (resources) beyond the time for the trial;
b. Mandhane J.’s unavailability to conduct the trial after December 16, 2022;
c. Ms. Currie’s retirement on December 31, 2022 due to medical reasons.
[28] On December 23, 2022, Ms. Currie was removed as counsel of record and Mr. Gilmour went on record. The first available trial dates for what was now estimated by the parties to be a 14-day judge and jury trial were offered and accepted. Those new trial dates were set to commence on September 18, 2023, more than 9 months later.
[29] As I have already set out, the second trial commenced before meeting with a jury on September 18, 2023 and concluded on to September 27, 2023.
[30] In respect of the mistrial declared on December 5, 2022, the endorsement made by Mandhane J. on the Indictment is as follows:
While the Crown was ready to proceed today, defence counsel advised that she was ill and could not proceed. Defence counsel anticipated that she would be able to resume on Wednesday, December 7. Based on this revised schedule, the Crown advised that she would not be able to complete her case until Wednesday, December 14. It was anticipated that the Defence would be calling evidence, which would not be complete by Friday, December 16. This would not leave any time for closings or for any further unanticipated issues to be addressed. Moreover, I am not available after December 16 and Defence counsel is retiring from practice on December 31, 2022.
Given the scheduling issues, and bearing in mind in mind the prejudice to the Crown of the complainant being under cross-examination during a lengthy break in proceedings, I reluctantly declared a mistrial. The complainant’s evidence at the trial before me shall not be considered a prior statement and shall not be used to impeach her credibility at any future trial. Justice Miller’s ruling on the pre-trial applications will continue to apply at any future trial.
[31] No further reasons or explanations were given.
LEGAL PRINCIPLES:
[32] The legal principles applicable are not in dispute. To briefly restate, the Jordan analysis requires that first the “total delay” from the charge to the end of the trial be calculated. Next, “defence delay” is identified. The” total delay” minus “defence delay” leads to a figure of “net delay”: Jordan, at para. 66; R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at para. 35.
[33] If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If the Crown cannot rebut the presumption, a stay will follow: Jordan, at para. 47; Coulter, at para. 37.
[34] In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases. Discrete events are events that could not reasonably have been foreseen or controlled by the parties: R. v. Williams, 2021 ONSC 3676 at para. 5.
[35] The delay reasonably caused by discrete events is to be deducted from the net delay, leaving the “remaining delay” for the purpose of determining whether the presumptive ceiling has been reached: Jordan, at para. 75; Coulter, at para. 50.
[36] The presence of exceptional circumstances is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling: Jordan, at para. 81. The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay. Exceptional circumstances also cover cases that are particularly complex: Jordan, at paras. 75-81; Coulter, at paras. 34-39; Williams, at para. 5. Provided the Crown had taken all reasonable steps to mitigate the delay, events that no one can anticipate should simply be removed from the delay analysis: R. v. Locknick, 2019 ONCA 625, at para. 12. Where a trial is not completed within the scheduled time, all relevant circumstances must be considered in determining how to apportion delay: R v. Hanan, 2023 SCC 12 at para.9.
[37] Where the total time, less “defence delay”, exceeds the presumptive ceiling, the onus lies with the Crown to demonstrate that the delay was reasonable. Where the delay falls below the presumptive ceiling, the onus shifts to the defence to establish that the delay is, nevertheless, unreasonable. Stays of proceedings for delays that fall below the presumptive ceilings will be rare and limited the clearest of cases: Jordan, at para. 48.
[38] The determination of whether the delay in this case is below or above the presumptive ceiling, and whether it is reasonable, turns on the characterization of delay flowing from two events: (i) the adjournment of the first trial from June 13, 2022 to November 28, 2022; and (ii) the mistrial of December 5, 2022.
APPLICATION:
Question 1: Is the Delay from June 13, 2022 to November 29, 2022 “Defence Delay”?
[39] The Crown argued that the period from June 13, 2022 to November 28, 2022 (a total of 168 days or 5 months, 18 days) is defence delay that should be deducted from the total delay.
[40] Defence delay includes (i) clear and unequivocal waiver of section 11(b) and (ii) delay caused by the accused or that which can be shown to be a deliberate and calculated tactic aimed at causing delay, such as frivolous applications or requests: Hanan, at para. 9. It does not include reasonable requests or applications that are not frivolous: Jordan, at paras. 61-63. Defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay: Jordan, at paras. 64-65; R. v. Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741, at para. 22; Coulter, para. 73; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at paras. 32-35.
[41] Factors that may be relevant to the assessment of whether some defence action is legitimate are the overall number of applications, their strength and importance, proximity to the presumptive ceilings, compliance with any notice of filing requirements and the timeliness of the applications: Cody, at para. 32.
[42] The Crown argued that the defence caused the delay between June 13, 2022 and November 28, 2022 because it filed an application raising constitutional arguments about s.278 of the Criminal Code “last minute”.
[43] In my view, the constitutional challenge put forward by the defence to the legislation was not frivolous. The arguments were identified as being the same as in the appeal heard by the Supreme Court of Canada in J.J.
[44] The constitutionality of the legislation was a real issue and could have had important ramifications for the conduct of the defence. It was a live issue in many cases across the country: the Supreme Court of Canada’s decision on the constitutional questions raised were anxiously awaited by many.
[45] In Cody, at para. 34, the court emphasized the importance of the right to make full answer and defence and for the defence to pursue all available substantive and procedural means to defend their clients. This must not be considered illegitimate in terms of assessing delay.
[46] I am satisfied that the constitutional challenge was not intended to deliberately delay the proceedings. The defence filed materials on April 5, 2022 for an application to be heard on April 19, 2022. While this ran afoul of the 30 days’ notice requirement, it was not “last minute”. It could not have been brought earlier: it made sense to wait as long as possible for the decision in J.J. before bringing the constitutional challenge. Ultimately, the constitutional challenge could have been heard at the same time as Stage 1 of the defence ss.276/278 application. The June 13, 2022 trial dates were unaffected at that point by the timing of the defence application.
[47] On May 20, 2022 the defence application did not proceed. The Supreme Court of Canada had not yet released its ruling in J.J. The judge hearing the application determined that a decision should not be made on the questions raised about the scope and constitutionality of s.278 until the Supreme Court of Canada had released its decision. It was in all participants’ interest to have the constitutionality and scope of s.278 determined by Supreme Court of Canada in J.J. before proceeding with the application. The decision in J.J was released on June 30, 2022. The Stage 1 and 2 hearings in respect of ss.276/278 then proceeded on the merits, on August 23 and October 14, 2022 respectively.
[48] In my view, the delay resulting from the constitutional challenge to s.278 is not defence delay. It was a necessary step to make full answer and defence. It must not be deducted from the total delay.
Question 2: Is the mistrial an “exceptional circumstance” or discrete event?
[49] The Crown argued that the mistrial declared on December 5, 2022 was an exceptional circumstances. It was a discrete event. I agree.
[50] Exceptional circumstances are those that lie outside the Crown’s control, and are often described as those events that: (1) are reasonably unforeseen or unavoidable; and (2) cannot be easily remedied by the Crown: Jordan, at para. 69. The period of delay reasonably attributable to a discrete exceptional event must be subtracted from the total period of delay: Jordan, at para. 105.
[51] Mistrials have been treated as an exceptional circumstance and a discrete event, as long as they are not through the fault of the Crown or the defence: R. v. Wu, 2017 BCSC 2373, at para. 79; R. v. Beckett, 2017 BCSC 1116, at para. 163. Where a mistrial is not attributable to the conduct of the Crown, the resulting delay may be deductible under the Jordan framework when calculating overall delay: Wu, at para. 82, citing R. v. Batte (2000), 49 O.R. (3d) 321 and R. v. Mallozzi, 2017 ONCA 644.
[52] In Mallozzi, there were two mistrials that were both labelled as discrete, exceptional events that were reasonably unforeseeable. The court comments that they did not believe the second mistrial to be necessary, but still found it to be an exceptional event because it was unforeseeable and not contributed to by the Crown: Mallozzi, at para. 43.
[53] It is not clear why the trial judge chose to declare a mistrial for scheduling reasons on December 5, 2022 when there were 8 juridic days left within which to conclude the trial. The complainant’s evidence-in-chief was completed, and her cross-examination was underway. The initial trial estimate was 5 to 6 days, with a jury. As a judge alone trial, matters can often proceed more expeditiously. Even if the Crown closed its case on December 14, 2022 as stated, that left 2 more days to complete the evidence, and potentially hear submissions or proceed with written submissions.
[54] Nevertheless, I am satisfied that both the Crown and the defence did what they could to avert the mistrial. They offered to go to Orangeville to complete the trial, or to do it by zoom if courtroom space was an issue. Mr. Toole had already re-elected to proceed as a judge alone trial to avoid the risk of a mistrial earlier. The decision of the judge to declare a mistrial on her own motion because she did not think the trial would finish in time was outside the control of the Crown. It was an exceptional circumstance, a discrete event.
Question 3: Whether delay of 9 months and 13 days from the mistrial to the conclusion of the second trial is reasonably attributed to that discrete event?
[55] The Crown argued that all of the delay of 9 months and 13 days from December 5, 2022 (when the mistrial was declared) until the conclusion of the jury trial on September 27, 2023 must be deducted from the net delay. If these 9 months and 13 days (296 days) are deducted from the net delay, the remaining delay falls below the presumptive ceiling, and the onus shifts to the defence to establish that the delay is unreasonable.
[56] Delay resulting from a mistrial is usually subtracted from the net delay. However, there can be circumstances where fault for delay can fall on the Crown or “the system”. One such example is where the Crown, or the “system”, is not proactive in securing court appearances and getting the matter to trial within a reasonable time: Jordan, at paras. 112, 117, and 137; Cody, at para. 36; R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625 at paras. 7 and 12. This is such a case.
[57] In Jordan, the court held that if the exceptional circumstance relates to a discrete event (as opposed to the case’s complexity), then the “delay reasonably attributable to that event” is subtracted: Jordan, at para. 105. In my view, at this point this court is asked to assess the reasonableness of the delay that resulted from the discrete event, rather than mechanically subtract that time in its entirety.
[58] Justice D.E. Harris held in R. v. Williams, 2021 ONSC 3676 at para. 28, “[e]exceptional circumstances must be viewed in the context of the culture of complacency.” Would the way the discrete event is dealt with be indicative of a lax attitude towards delay? In my view, a lax attitude towards delay is apparent in how this case was dealt with after the mistrial was declared.
[59] The framework created in Jordan is intended to focus on the issues that matter and encourage all participants in the criminal justice system to cooperate in achieving reasonably prompt justice and to advance an accused’s right to a trial within a reasonable time (para. 5).
[60] The events that led up to the mistrial declared in this case were unforeseeable. The Crown’s illness, and then Ms. Currie’s illness were outside of the Crown’s control and could not be remedied by the Crown. The defence sought to avoid a mistrial by electing to proceed judge alone at the first whiff that a mistrial might be requested. As I have already indicated, both counsel pushed to conclude the trial. The Crown could not remedy the judge’s decision to end the trial before it could conclude.
[61] In my view it is not appropriate to simply designate all of the time between the mistrial and the verdict as neutral time attributable to a discrete event. As the Supreme Court said in Hanan (at para 9), in circumstances like this “[A]ll relevant circumstances should be considered to determine how delay should be apportioned among the participants” (citing to R. v. Boulanger, 2022 SCC 2, at para. 8).
[62] I am also not prepared to find that none of the delay arising from the mistrial should count toward the ceiling.
[63] It was due to the resources of the state and no other reason that the matter could not conclude prior to Ms. Currie’s retirement for medical reason. Ms. Currie was expected to undergo cardiac surgery in early 2023 and this was the last trial she was doing. It had to be completed by December 31, 2022. The trial judge stated that she was not available after December 16, 2022.
[64] No one averted to the fact that the case was already past the presumptive Jordan date. The presumptive Jordan date is indicated on the back of the Indictment. In this case, that date was October 12, 2022. No one inquired when a new trial could be accommodated. No one flagged that the matter should now have priority and go to the front of the line for a trial date. When a mistrial is declared, a new trial can immediately be scheduled: R. v. Williams, at paras. 33 and 43.
[65] While some events no one can anticipate, they should only be removed from the delay analysis if the Crown has taken all reasonable steps to mitigate the delay: R. v. Locknick, 2019 ONCA 625. In Jordan, at para. 75, the court said:
Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events (see R. v. Vassell, 2016 SCC 26 (S.C.C.)). Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e. it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events).
[66] In my view, the way this case was dealt with after the mistrial exhibits exactly the culture of complacency Jordan sought to eradicate. While the mistrial was a discrete event, the delay flowing from it was not reasonable and should and could have been prevented.
[67] The new dates, which were the first available dates offered for a 14-day judge and jury trial, were 9 ½ months way. The unavailability of trial dates for 9 ½ months for a case that ought to have been prioritized can only be categorized as a systemic delay.
[68] When the new trial dates were selected, the Crown was aware of the procedural history of the matter. The Crown was under an obligation to expedite the matter and prioritize it before other matters due to the time it was already in the system, the fact that the presumptive Jordan ceiling had passed and that this was a second trial after a mistrial. Yet nothing was said about delay when the new trial dates were set.
[69] The Crown must be prepared to take all reasonable steps to mitigate the delay resulting from a discrete event/exceptional circumstance. As was held in Vassell, at para. 7, “[I]n fulfilling its obligation to bring all accused to trial within a reasonable time, the Crown cannot close its eyes to the circumstances of an accused who has done everything possible to move the matter along, only to be held hostage by […] the inability of the system to provide earlier dates. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events”.
[70] I have considered that when the new trial dates were set, the original trial estimate jumped, for no apparent reason, from 5 to 6 days to 14 days. A 5 to 6-day trial can be more easily accommodated than a 14-day trial. In the end, this was a 6-day trial. When the trial was set, defence counsel (Mr. Gilmour) had just received the file, had had no opportunity to review it, or meet with Mr. Toole. He accepted the first offered date. He accepted the trial estimate. The Crown took no issue with either the trial estimate or the date for trial.
[71] I agree with the defence submission that where there is a re-trial, the Crown has an obligation to expedite the matter to trial. In this case, the Crown (who had full knowledge of all relevant dates, facts and circumstances) did not expedite the matter whatsoever nor bring it to the attention of the trial coordinator or the court: R. v. Creglia, 2018 ONCJ 262, at para. 45.
[72] While the mistrial was a discreet event, not foreseeable and outside of the control of the Crown, the resulting delay of 9 months and 17 days is not reasonably attributed to that event. It is entirely unreasonable that this trial was not accommodated for more than 9 months, although the presumptive ceiling had passed. There is no question that this was not a complex case. It did not demand extra time because of complexity. There is no evidence that the defence was not available if earlier dates had been offered. The delay in this case was the result of systemic shortfalls and the failure of all the criminal justice system participants to advance Mr. Toole’s right to a trial within a reasonable time.
[73] I conclude that all of the participants in the criminal justice system had an obligation to deal with the matter after the mistrial was declared in a way that was responsive to s.11(b) concerns. It should have been prioritized when the mistrial was declared. It should have been flagged as a priority when it came to scheduling to set the new trial dates and it should have been prioritized when trial dates offered were more than 9 months later.
[74] As a result, I am not satisfied that the entire 9 months and 26-day delay caused by the mistrial are reasonably attributed to that discreet event. Based on my experience as a judge in this jurisdiction, I am of the view that at most 4 months can reasonably be attributed to that discrete event: this is the time in which a second trial could and should have reasonably been accommodated. As a result, the remaining delay exceeds the 30 months presumptive ceiling. The Crown has not discharged its onus to establish that the delay was reasonable. A stay of proceedings must be entered.
Evidence of Specific Prejudice:
[75] If I am wrong, and the entire 9 months and 26-day (296 days) delay caused by the mistrial should be deducted, the remaining delay is 26 months and 29 days, under the presumptive ceiling. The onus shifts to the defence to show that the delay is unreasonable.
[76] In this case, I am satisfied that Mr. Toole suffered specific prejudice at a result of the delay occasioned by the mistrial in December 2022. He called evidence on this application to establish prejudice specifically arising from that 9-month delay. This evidence is largely uncontroverted. Mr. Toole gave affidavit and viva voce evidence that as a result of the mistrial, he suffered enormous financial pressure, his mental health deteriorated, and his marriage ended. His family physician and former wife testified and confirmed his evidence.
[77] Mr. Toole gave evidence that when he was first charged, he was suspended from his employment as a correctional officer at Maplehurst Correctional Centre, and now "due to the delay" that absence of income has deprived him or approx $69,166 over the 10 months since Dec 5, 2022. He was initially suspended with pay, but after a point, it became leave without pay.
[78] Mr. Toole also gave evidence that he incurred additional legal fees to engage the second lawyer. Ms. Currie had serious medical issues, but she intended to see the trial through to its end. She was unable to when the mistrial was declared. Mr. Toole then paid additional legal fees of approximately $150,000 (on top of the $250,000 he paid to his original counsel). These legal fees wiped out his savings, retirement and the equity he had in his home, which was mortgaged to secure payment for counsel.
[79] Mr. Toole gave evidence that the delay from December 5, 2022 to September 27, 2023 cost an aggregate of additional lost income of approximately $69,000, $150,000 and additional disbursements.
[80] Mr. Toole’s wife of 25 years, Sonya Toole, gave affidavit and viva voce evidence confirming that after the mistrial was declared, Mr. Toole’s mental health suffered. His personality changed. He had been an outgoing and social individual, but he became withdrawn and isolated. She thought he was depressed. He stopped participating in their marriage. In April, 2023 they decided to separate and told their children about their decision a short time later. Ms. Toole testified that the infidelity that gave rise to the charge did not end their marriage, rather the personality change Mr. Toole suffered after the trial was delayed for almost 10 months did.
[81] Mr. Toole’s family physician, Dr. Mahmud Ridha, testified that Mr. Toole had been his patient since 2018. He was aware of the criminal charges against Mr. Toole. In December 2022, after the mistrial was declared, Mr. Toole’s mental health deteriorated. Prior to that time, Mr. Toole had no mental health concerns though he saw Dr. Ridha for stress-related issues. In December 2022 Dr. Ridha could see anxiety and depression symptoms in Mr. Toole. They discussed treatment options, including counselling and therapy. By April 2023, Mr. Toole’s mental health deteriorated. His anxiety and depression intensified, and he agreed to take medication to ease his symptoms. However, he could not tolerate the side effects, and later stopped the medication.
[82] According to Dr. Ridha, Mr. Toole shared with him that he was under extreme financial stress, he was not working and his paid leave had run out. Mr. Toole’s wife came to see Dr. Ridha in September 2023. She advised that Mr. Toole had been vomiting and suffering panic attacks. He was isolating himself. Dr. Ridha testified that there was no physical reason for Mr. Toole to vomit. Ms. Toole told Dr. Ridha that there were problems in the marriage due to Mr. Toole’s mental health.
[83] I accept this evidence. It is not seriously controverted. All of the witnesses were unshaken in cross-examination and their credibility was not seriously challenged. I find that Mr. Toole suffered significant prejudice specifically because of the delay caused by the mistrial.
[84] Specific examples of actual prejudice to an accused’s security and fair trial rights are properly considered at the final stage of the analysis: Jordan, paras. 200-206. The evidence of the prejudice Mr. Toole suffered because of the delay occasioned by the mistrial was uncontroverted on this application. I find that the prejudice he suffered was specific to the delay caused by the mistrial, not prejudice to being charged generally.
[85] If the delay in this case falls below the presumptive ceiling, I am satisfied that the defence has met its burden, to establish that the delay in this case was not reasonable.
CONCLUSION:
[86] I find that the remaining delay after I deduct 99 days for defence delay and 4 months for delay reasonably attributable to the mistrial, is 32 months and 25 days. This is above the 30 months presumptive ceiling. I am not satisfied that the Crown has discharged its burden to demonstrate that the delay was reasonable in this case, despite the discrete event when Mandhane J. declared a mistrial.
[87] In the alternative, if the delay falls below the presumptive ceiling, I am satisfied that the defence has discharged its burden to demonstrate that the delay was not reasonable and that Mr. Toole’s right to be tried within a reasonable time has been violated.
[88] The remedy for a violation of s.11(b) is a stay of proceedings. Anything less would render meaningless a right enshrined in the Charter as the supreme law of the land: R. v. Askov, [1990] 2 S.C.R. 1199, at para. 91. The interests protected by the right to a trial within a reasonable time are liberty, security of the person, the presumption of innocence and the right to a fair trial. These rights are to be guarded zealously by the courts.
[89] The proceeding against Mr. Toole shall be stayed.
Chozik J.
Date: December 22, 2023
COURT FILE NO.: CR-21-44
DATE: 2023 12 22
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
TIMOTHY CARL TOOLE
RULING on S.11(b) application
Chozik J.
Released: December 22, 2023
[^1]: The Crown calculated this delay as 287 days or 9 months 13 days but my count from December 5, 2022 to September 27, 2023 inclusive is 296 days or 9 months and 26 days.