COURT FILE NO.: CR23-64
DATE: 20230804
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: H.M.K. v. Colleen Garrett
BEFORE: Garson J.
COUNSEL: Shane Wright, for the Crown Elizabeth Ferris, for the Applicant
HEARD: July 4, 2023
ruling - s. 11(b) charter application
Introduction
[1] Colleen Garrett, the applicant, stands charged with a single count of fraud exceeding $5000. She was formally charged on August 6, 2020 and is scheduled for a seven-day trial anticipated to conclude on October 18, 2023.
[2] The anticipated total delay will be 1168 days or 38.4 months.
[3] The parties primarily disagree on what portion of the delay can be properly categorized as defence delay and deducted from the total delay.
[4] The applicant submits that the net delay after any required deductions still exceeds the 30-month ceiling identified in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 (“Jordan”) and seeks a stay of proceedings because of the violation of her s. 11(b) Charter rights. Alternatively, the applicant suggests that if the delay falls shy of the 30-month ceiling, it is still unreasonable due to Crown delay in disclosure and should also result in a stay of proceedings.
[5] The Crown counters that the defence delay, comprised of both implicit waiver through the continuous pursuit of resolution discussions (as opposed to trial dates) coupled with some discrete exceptional circumstances due to the Covid-19 pandemic, is sufficient to bring the net delay well below the presumptive Jordan ceiling, and that the remaining delay is not unreasonable and does not entitle the applicant to a stay of proceedings.
[6] These reasons explain why I dismiss the application.
Background
[7] The applicant prepared, and I attach to these reasons, a helpful Schedule “A” that lists all the appearance dates and identifies the apparent purpose and the details of the endorsement along with some annotated notes and a calculation of the elapsed days between each appearance. I need not repeat all this content.
[8] Although the applicant did her initial calculations based on the July 2020 arrest date, she rightly concedes before me that the starting point for my analysis is the date the summons was deemed sworn: August 6, 2020.
[9] I will briefly highlight the many appearances and the primary reasons provided for adjournments.
[10] A first court appearance came almost ten weeks after the summons was issued and took place on October 13, 2020. It is not disputed that the initial return date was vacated due to Covid-19, and the matter was administratively adjourned to November 17, 2020.
[11] To the applicant’s credit, the initial disclosure request came on September 5, 2020. On November 17, 2020, the matter was put over to December 22, 2020, as disclosure remained in limbo, and a second disclosure request was sent by the applicant on December 13, 2020. A further adjournment followed on that day to February 2, 2021, as no Crown screen form had been prepared.
[12] It appears that a 977-page 3-set disclosure package was emailed to the applicant’s counsel on December 22, 2020, with a further disclosure package sent on January 5, 2021. A case management Crown was assigned on February 1, 2021.
[13] On February 2, 2021, the matter went over one month to allow for instructions and disclosure review. On March 2, 2021, it was adjourned to April 6, 2021 (a week later than requested by the applicant) to permit counsel to meet with the Duty Crown.
[14] On April 6, 2021, the matter went over again to May 25, 2021 for client instructions and a Crown resolution meeting. A third disclosure request was sent by the applicant’s counsel seeking 27 additional items, and the Crown provided the applicant with its screening form on April 8, 2021.
[15] On May 25, 2021, the matter went over to June 22, 2021, and the applicant’s counsel stated she could not move this matter forward until she had confirmation of the amount of the alleged fraud as well as receipt of a significant amount of outstanding disclosure. A fourth disclosure request followed on that same day, and a response to the third disclosure request was sent on June 21, 2021.
[16] On June 22, 2021, although the applicant’s counsel suggested a July 10 return date, the matter went over to August 10, 2021 for an update on disclosure and ongoing resolution discussions. A fourth set of disclosure was sent on August 2, 2021, with an indication that the Crown was not in possession of any further disclosure.
[17] On August 10, 2021, the matter went over to September 14, 2021 to permit the applicant’s counsel to have further discussions regarding outstanding disclosure and resolution. The applicant’s counsel explained that the assigned Crown agreed with her that significant outstanding disclosure issues remained.
[18] On September 14, 2021, the matter was adjourned to November 2, 2021 to address outstanding disclosure and further meet with the assigned Crown. A counsel pre-trial was held on October 7, 2021, which led to a November 18, 2021 Crown meeting with the assigned officer.
[19] On November 2, 2021, the matter was further adjourned to November 30, 2021 to permit the Crown to meet with the assigned officer, which led to further investigation. The applicant’s counsel again explained that assigned Crown counsel agreed that quite a bit of substantive disclosure remained outstanding.
[20] On November 30, 2021, the matter was further adjourned to December 21, 2021 to permit a follow up discussion between counsel and potentially set a date for resolution. After the court observed that the matter was getting quite dated, the applicant’s counsel clarified that the delay was caused by the outstanding disclosure.
[21] On December 21, 2021, the matter was adjourned to January 11, 2022 to allow for another resolution meeting. The applicant’s counsel remained hopeful the matter would resolve in the new year and put the matter over to confirm a resolution date.
[22] On January 11, 2022, the matter was briefly adjourned to January 25, 2022 to discuss follow-up information from police and allow counsel to continue working on resolving the matter. On January 25, 2022, the matter went over another week to February 1, 2022 to reschedule an earlier resolution meeting that the Crown was unable to attend. A final set of disclosure was provided to the applicant that same day, and a further counsel pre-trial was held on January 28, 2022.
[23] On February 1, 2022, the matter was adjourned to March 29, 2022 to permit the Crown to do some further digging based on new disclosure and finalize his position on that disclosure. On March 29, 2022, an agent appeared on behalf of the applicant, and the matter was further adjourned to April 26, 2022 to permit a Crown response confirming their position. At this point, the presiding Justice of the Peace transferred the matter to the case management court (presided over by an Ontario Court of Justice judge) due to the passage of time.
[24] On April 26, 2022, the matter went over to May 5, 2022 to allow the assigned Crown to take another look at the amounts being alleged, noting that counsel had been trying to resolve this matter for some time. A note from the assigned Crown shared with the court indicated that the matter would “likely resolve” once he solidified the amount of restitution sought. On May 5, 2022, the matter was adjourned to May 24, 2022, still awaiting a Crown response that had not yet been provided. On May 23, 2022, an excel spreadsheet with calculations and a position on restitution was sent to the applicant’s counsel.
[25] On May 24, 2022, the matter was adjourned to June 8, 2022, as the applicant’s counsel still required a final resolution number and follow up discussions with the assigned Crown. On June 8, 2022, the matter was adjourned to June 29, 2022, as counsel had now received a final restitution amount but still needed confirmation of the Crown’s resolution position before seeking final instructions.
[26] On June 29, 2022, the matter was adjourned to July 21, 2022 to allow counsel to meet with her client and then with the assigned Crown and then come back for an anticipated date for resolution, which was likely still on track. On July 21, 2022, the matter was adjourned to August 18, 2022 for client instructions and a follow up Crown meeting scheduled for August 5, 2022. Upon return, counsel would hopefully be able to set a date.
[27] On August 18, 2022, the matter was adjourned to September 6, 2022, pending further information from and discussions with the Crown, to then either set a date for resolution or move the matter along to trial. On September 6, 2022, the matter was adjourned to September 22, 2022, awaiting a response from the Crown regarding details of the Crown’s resolution proposal.
[28] On September 22, 2022, the matter was adjourned to October 13, 2022, when an agent appeared and indicated that the applicant’s counsel was awaiting a response from the Crown regarding details of his resolution proposal.
[29] On October 13, 2022, the matter was adjourned to November 8, 2022 to allow the applicant’s counsel to get instructions. On this occasion, the presiding Justice asked if matters were on a “resolution track” and expressed concerns regarding s. 11(b) and was advised by the applicant’s counsel that she had been working on resolution but still needed instructions given new information. She was “hopeful that yes” things remained on the resolution track.
[30] On November 8, 2022, the matter was adjourned to November 24, 2022 to permit counsel for the applicant to meet with her client on November 17, 2022 and hopefully confirm final instructions. At that point, counsel was anticipating either setting a date for a judicial pre-trial or for resolution.
[31] On November 24, 2022, the matter was adjourned to December 15, 2022, and counsel indicated that she received, a few days prior, a new financial document from the Crown that was relevant to potential resolution discussions and updated restitution calculations. She needed to have discussions with both the Crown and her client with the hope of returning to set a resolution date.
[32] On December 15, 2022, the matter was transferred by the Local Administrative Judge to the judicial intensive case management court, and the court sought an explanation for the delay. Counsel for the applicant referred to disclosure issues and the Crown’s position on resolution. Responding to a question from the court about whether the matter would be resolved short of a trial, the applicant’s counsel advised that they were working “towards a global resolution” but that amounts alleged were evolving and impacting potential resolution and restitution, both of which needed to be settled before final resolution. The matter was adjourned to January 30, 2023. The court offered the earlier date of January 16, 2023, but the applicant’s counsel was unavailable that day.
[33] On January 30, 2023, the applicant’s counsel explained that a family emergency prevented her from attending a January 12, 2023 follow-up resolution meeting with the Crown and that the Crown missed a rescheduled January 24, 2023 meeting, which was now rescheduled to February 1, 2023. The court then inquired as to whether the applicant was exploring possible resolution and counsel replied that they were but that if the matter was not resolved after these discussions, the matter would move to the Superior Court of Justice to “set an 11(b)”. Counsel went on to tell the court that she remained hopeful for further resolution discussions, which she hoped might be fruitful, and that she didn’t have instructions at that point to “waive directly”.
[34] The matter was adjourned to February 6, 2023 but came back on February 10, 2023, at which point the applicant consented to committal to trial by judge and jury, and the matter was adjourned to the next assignment court in the Superior Court on March 21, 2023, at which time a judicial pre-trial (“JPT”) was scheduled for April 12, 2023. The JPT was cancelled due the applicant’s counsel’s failure to file a completed Form 17, and it was rescheduled for May 12, 2023 (although the applicant’s counsel was available on an earlier offered date of April 27, 2023).
[35] The matter returned to the assignment court on May 16, 2023, when two sets of July dates were offered and available to the Crown and its witnesses but not to the applicant. Police witnesses were unavailable for August dates and the Crown unavailable for September dates. The matter was scheduled for a seven-day trial beginning October 10, 2023.
The Law
[36] Anyone charged with an offence has the constitutional right to be tried within a reasonable time: s. 11(b) of the Charter.
[37] In Jordan, the Supreme Court of Canada established a framework for how trial courts assess delay in determining whether the s. 11(b) Charter right has been violated.
[38] The Supreme Court established a 30-month ceiling for the period between the date the charge was laid and the conclusion of the trial for matters in the Superior Court, beyond which delay is presumptively unreasonable. The burden then falls to the Crown to demonstrate that “exceptional circumstances” exist to justify the net delay beyond this ceiling, failing which a stay of proceedings will issue. Exceptional circumstances include discrete events or case complexity that are beyond the Crown’s control to remedy: Jordan, at paras. 46-47 and 69-71 and 81.
[39] If the net delay falls below the 30-month ceiling, the burden falls on the applicant to demonstrate that the delay was unreasonable. A stay of proceedings in these circumstances will be rare and only granted in the clearest of cases, when the applicant establishes that they took meaningful steps to expedite proceedings and the matter took longer to conclude than reasonably expected. Examples of meaningful steps to expedite proceedings include defence requests for an earlier trial date and making the Crown and the court aware that delay is a problem: Jordan, at paras. 48 and 82-86.
[40] The mechanics for applying the Jordan framework were outlined by our Court of Appeal in R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-41. After calculating “total delay”, I must subtract “defence delay” and arrive at “net delay”. If greater than 30 months, the presumptively unreasonable delay can only be rebutted by the Crown establishing “exceptional circumstances”, failing which the matter is stayed for delay.
[41] Delay caused by exceptional discrete events is subtracted from net delay to arrive at “remaining delay”. If the remaining delay is still greater than the ceiling and the case lacks complexity, the matter is stayed for delay. If below the ceiling, the applicant now bears the onus of showing that the remaining delay is unreasonable.
[42] Defence delay, which does not count towards the ceiling, consists of delay arising from waiver, delay caused when the court and the Crown are ready to proceed and defence is not, and other delay caused solely by defence conduct which is deliberate in nature and calculated to delay the trial: Jordan, at paras. 61-64.
[43] All parties and participants have a role to play and a responsibility for avoiding unnecessary delay. This includes defence counsel actively advancing their client’s right to a trial within a reasonable time and working with the Crown to ensure the efficient use of court time: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at paras. 33 and 36.
Analysis
[44] I start with the agreed total delay: 38.4 months.
[45] I next move to subtract defence delay. The applicant concedes 3 months and 25 days of delay comprised of 4 adjournments as follows:
i. October 13-November 8, 2022 (26 days)
ii. November 8-November 24, 2022 (16 days)
iii. December 15, 2022-January 30, 2023 (46 days) and
iv. April 18-May 16, 2023 (28 days)
[46] The applicant argues that the bulk of the remaining delay lies at the feet of the Crown for lack of timely disclosure or timely responses from the investigating officer.
[47] The Crown argues that when the defence has chosen not to pursue a trial but rather focus entirely on resolution discussions with the intent of avoiding a trial, the defence will be found to have “implicitly waived” delay for that period of time: R. v. Chung, 2021 ONCA 188, 402 C.C.C. (3d) 145, at paras. 186-188, leave to appeal to SCC refused, 39705 (4 November 2021); R. v. Aly, 2021 ONSC 6753, at paras. 24-26; R. v. Dhindsa, 2022 ONSC 6782, at para. 23.
[48] At para. 99 of its factum, the Crown refers to 9 separate adjournments between June 8, 2022 and February 10, 2023 totalling 212 days, or just shy of 7 months, when they argue that the defence implicitly waived delay. The Crown argues that at this point disclosure was complete and the Crown had articulated its position on restitution and resolution.
[49] The Crown further argues that an additional 133 days between January 25, 2022 and June 8, 2022, or just over 4 months, should be apportioned between defence and Crown as the applicant was clearly content during these time periods to pursue resolution alone and not move the matter forward toward trial.
[50] I pause to remind myself that I am not required to parse out each day or week but rather I am permitted to take a step back and adopt a “bird’s-eye view” of the matter: Jordan, at para. 91.
[51] In assessing the forest from the trees, I make the following observations:
On several occasions and before both Justices of the Peace and Judges, the applicant’s counsel, even when directly questioned, repeatedly, consistently and without wavering made clear that this matter was on and remained on the resolution track. More specifically, when asked by the presiding Judge on October 13, 2022, more than two years from the date the information was sworn, whether the matter was on the resolution track and whether s. 11(b) was a concern, counsel responded that she was “hopeful” that the matter remained on the resolution track and expressed no concerns regarding s. 11(b). A second request from a presiding Judge on December 15, 2022, seeking an explanation for the delay, was met by the applicant’s counsel with an indication that she and the Crown were “working towards a global resolution” and without mention of s. 11(b).
The first time the applicant’s counsel even raised the spectre of s. 11(b) was on January 30, 2023, almost 30 months from the commencement of proceedings.
The applicant’s counsel made scant reference during the many appearances to fixing a trial date before setting dates in May 2023.
[52] The applicant should not benefit from engaging in protracted and lengthy negotiations with the Crown when those negotiations ultimately fail and the applicant suddenly pivots to request a timely trial.
[53] I am mindful that the Crown took a long time to receive and review and provide disclosure. It came in instalments. It triggered a 27-item follow-up disclosure request from the defence. I appreciate that the restitution owing appeared to be a moving target and may have changed often and in large increments from inception to today and clearly was an important variable in the resolution equation.
[54] There is nothing before me to show that the Crown deliberately dragged its feet or withheld information or failed to disclose what it possessed in a timely manner. I am not privy to why the restitution amounts kept changing, but what is clear to me is that it was in the applicant’s interests to permit these iterations to take place rather than accept or agree to early referenced amounts. I am also mindful that in cases of this nature there is often a gap between amounts alleged and amounts that can be proven.
[55] I do accept the applicant’s argument that she does not shoulder all this delay. The Crown neither sought out nor received any express waiver of delay. The Crown knew the clock was ticking. The Crown accepted that incremental pieces of relevant information remained elusive and that the restitution sought was a moving target. At some point, the Crown needed to do more. The Crown needed to seek an express waiver or insist on setting a date.
[56] Accordingly, I am not prepared to assign the entire 11 months referred to above to lie at the feet of the applicant. However, I do believe the bulk of this delay should fall at the applicant’s feet for the reasons referred to.
[57] Simply put, the defence cannot lay in the bushes waiting to pounce when resolution discussions fail and no indication whatsoever of a timely trial has been given or pursued. This is not what s. 11(b) of the Charter protects or promotes.
[58] In my view, both sides dropped the ball at various points. This matter languished in the Ontario Court of Justice for more than 30 months with more than 30 separate appearances. Although some Judges and Justices of the Peace raised concerns along the way, this did little to move the matter along. The Crown did not seek out the defence position nor raise any urgency concerns and should have been more proactive.
[59] This case was not what the Supreme Court of Canada had in mind when they pronounced a fundamental paradigm shift in behaviour. This was a lapse, a return to old habits and a return to a culture of complacency – a culture that undermines public confidence in the timely administration of justice.
[60] Accordingly, rather than assess each day or appearance, I will apportion roughly 75% or 8.25 months of the delay as defence delay due to implicit waiver (which includes the admitted 3 months and 25 days of delay caused solely by the conduct of the defence). This apportionment acknowledges that some of the delay should fall at the feet of the Crown for the length of time taken to provide the required disclosure information and restitution amounts.
[61] The total delay of 38.4 months minus the defence delay of 8.25 months leaves a net delay of 30.15 months, which slightly exceeds the presumptive ceiling and is thus presumptively unreasonable.
[62] The onus now shifts to the Crown to rebut this presumption by establishing the presence of exceptional circumstances. This includes discrete events such as the Covid-19 pandemic or whether this matter was particularly complex.
[63] The recent decision in R. v. Agpoon, 2023 ONCA 449 (Agpoon) squarely addresses how trial courts treat the disruptive effects of the Covid-19 pandemic in assessing delay and determining whether an individual’s s. 11(b) Charter right has been violated.
[64] The Court of Appeal in Agpoon made clear that the pandemic falls within the category of discrete exceptional circumstances contemplated in Jordan.
[65] At para. 22 of Agpoon, the court reiterated the point from Jordan that judges should not “parse each day or month” but rather adopt a “bird’s-eye” view of the matter. Agpoon also made clear that local practices and conditions are to be factored in and deference shown to the local decisions made as to how to address court backlogs during the pandemic.
[66] The Crown points to the 35 days or just over a month when the applicant’s matter was adjourned between October 13, 2020 and November 17, 2020 as a clear example of a discrete exceptional circumstance due to the pandemic. As conceded by the applicant in Schedule “A”, this adjournment was solely due to court closures arising from the pandemic.
[67] This reduction of roughly 1.15 months from the net delay of 30.15 months reduces the remaining delay to 29 months, which now falls below the presumptive ceiling. Although I will make reference to further delay later in these reasons, I need not do so now once I have reached a calculation that falls below the presumptive ceiling.
[68] For completeness, I reject the applicant’s argument that the delay in disclosure should somehow override this time as a discrete event.
[69] This is not a particularly complex case, nor has the Crown sought to have it characterized that way.
[70] The onus now shifts to the defence to show why this delay of less than 30 months is unreasonable.
[71] They have failed to do so.
[72] There is simply no factual foundation to support any meaningful steps taken by the applicant to expedite proceedings. In fact, she did the opposite. A leisurely and lengthy 30-month stroll through the Ontario Court of Justice with rarely a hint of concern for expediency or for a trial. No steps for the first 30 months to make the Crown or the court aware that the delay occasioned by ongoing resolution discussions was a problem or to actively advance the applicant’s right to a timely trial.
[73] The delay here is entirely reasonable. As I step back from an appearance-by-appearance analysis and adopt a “bird’s-eye” view of the history of this matter, what clearly emerges is a very lengthy, focussed and regrettably unsuccessful effort at resolution. This was the stated desire from the outset and was repeated time and again as the desired end goal. I am mindful of the critically important role resolution discussions play in ensuring our criminal justice system stays afloat. They are the lifeline to the ability of our heavily strained system to cope. They are to be encouraged enthusiastically at every stage.
[74] However, the fact that these resolution discussions failed many months down the road does not permit that lengthy period to somehow now be characterized or labelled as unreasonable or a violation of the right to be tried within a reasonable time. The applicant must raise the unreasonableness of delay in a timely manner. Silence and passivity are simply not enough.
[75] The first mention of s. 11(b) by the applicant is not until February 10, 2023. The record speaks for itself.
Conclusion and Final Thoughts
[76] The remaining delay falls below the presumptive 30-month ceiling and the applicant has not shown why this delay is unreasonable. The applicant failed to seek early possible hearing dates and failed to put the Crown or the court on timely notice that delay was becoming a problem.
[77] There are many additional periods of delay that I would have addressed had the Crown asked me to. They would have included, post Agpoon, a far longer period of time to be attributed to the pandemic, which, at a minimum, would have excluded the timeframe when jury trials were suspended by Order of the Chief Justice from November 21, 2020 to May 3, 2021 and, more likely, have gone further given the local situation as comprehensively outlined by my colleague Grace J. in R. v. Nawabi, 2022 ONSC 7258. I would have made clear that it is not open to counsel going forward to second guess local policy decisions made during the pandemic that restricted access to our criminal courts.
[78] I would have also deducted the delay resulting from the missed Pre-Trial in March 2023 due to the applicant’s failure to file a properly completed Form 17 Report as well as delay arising from applicant counsel’s availability for earlier trial dates offered.
[79] For the above reasons, the application is dismissed.
“Justice M.A. Garson”
Garson J.
Date: August 4, 2023