COURT FILE NOS.: CR-22-5/480
CR-22-5/481
DATE: 20230206
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
Respondent
– and –
KALIB RAHI
Applicant
Susan Orlando for the Crown
I. Loui Dallas for the Applicant
HEARD: October 17 and 18, 2022
reasons on application under s. 11(B) of the charter
Ducharme j.
PART I: STATEMENT OF THE CASE
[1] The applicant, Kalib Rahi, was arrested on November 28, 2018 and charged with numerous human trafficking-related offences with respect to two complainants. He currently stands indicted with the following:
a. With respect to complainant K.H.:
(i) Utter threats (264.1(1)(a))
(ii) Utter threats (264.1(1)(c))
(iii) Sexual Assault (271)
(iv) Sexual Assault (271)
(v) Exercise control (279.01(1))
(vi) Receive material benefits (279.02(1))
(vii) Procure (286.3(1))
(viii) Advertise sexual services (286.4)
(ix) Extortion (346(1.1)(b))
b. With respect to the complainant A.K.:
(i) Sexual assault (271)
(ii) Sexual assault (271)
(iii) Exercise control (279.01(1))
(iv) Receive material benefits (279.02(1))
(v) Procure (286.1(1))
(vi) Advertise sexual services (286.4)
(vii) Use imitation firearm while uttering threats (264.1(1)(a)).
[2] The information was sworn November 29, 2018. The applicant’s two trials are currently set to proceed in November 2022 and January 2023. The total delay is approximately 48 months and 11 days for K.H. (assuming an end date of Friday, December 9, 2022), and 50 months and 13 days for A.K. (assuming an end date of Friday, February 10, 2023).
[3] The applicant submits that his rights as guaranteed by the Charter of Rights and Freedoms under s. 11(b) have been violated, and a stay must follow.
PART II: SUMMARY OF THE FACTS
[4] The applicant made approximately 60 appearances in the Ontario and Superior Courts of Justice. The appearances are summarized in the table below.
OCJ Set Dates
| Date | Parties | Summary of Events |
|---|---|---|
| December 10, 2018 | Crown: S. Peterson Counsel: K. Sharma Justice: M. Fernandez | Counsel for the defence highlights that there has not yet been an information in court for the accused. Counsel for the Crown presents a copy of the information to Counsel for the defence, agreeing that the information will be physically present in court on the day of the accused’s bail hearing. Bail hearing date has not been confirmed but is tentatively set for the following Friday. |
| December 11, 2018 | Crown: F. Walji Duty Counsel: P. Bragg Justice: B. Hundal | Counsel is attempting to schedule a bail hearing. |
| December 12, 2018 | Crown: V. Nevin Duty Counsel: S. Senra Justice: B. Hundal | Counsel is still attempting to schedule a bail hearing and is concerned about the delay. |
| December 13, 2018 | Crown: V. Nevin Duty Counsel: S. Senra Justice: B. Hundal | Counsel is still attempting to schedule a bail hearing. |
| December 14, 2018 | Crown: F. Walji Duty Counsel: S. Senra Justice: M. Fernandez | Counsel is still attempting to schedule a bail hearing. Members of the Human Trafficking Team are still unavailable “until after next week”. |
| December 17, 2018 | Crown: V. Nervin Duty Counsel: S. Senra Justice: M. Ross- Hendriks | Counsel continues to attempt to schedule a bail hearing. |
| December 24, 2018 | Crown: Fawcett Duty Counsel: E. Flewelling Justice: W. Moniz | Duty counsel appears for the defence. A date for the bail hearing has still not been set, and counsel for the defence asks for the defendant to return by video for December 31. |
| December 31, 2018 | Crown: A. Ramnaraign Duty Counsel: E. Flewelling Justice: W. Moniz | Defendant shows up to court in person, rather than over video. The matter is adjourned to January 3, 2019. |
| December 31, 2018 | Crown: A. Ramnaraign Duty Counsel: E. Flewelling Justice: R. Rodrigues | Matter is in the wrong courtroom; defendant brought in person and traversed to above court. |
| January 3, 2019 | Crown: G. Gill Duty Counsel: E. Flewelling Justice: M. Ambrosi | Parties still trying to schedule a bail hearing. |
| January 4, 2019 | Crown: G. Gill Counsel: K. Sharma Justice: M. Avrich- Skapinker | Aspirational bail hearing set for January 9, but no courtroom assigned as of yet. |
| January 9, 2019 | Crown: C. Chorney Counsel: K. Sharma Justice: K. Premji | Bail hearing is once again postponed, and Counsel for the defence informs the court of the difficulties of setting a bail hearing for the defendant. The next available date for the bail hearing is the following Friday, and the court sets the bail hearing for Friday, January 11. |
| January 14, 2019 | Crown: S. Peterson Duty Counsel: Futerman Justice: J. Opalinski | Adjourned to January 17. |
| January 17, 2019 | Crown: V. Nevin Duty Counsel: S. Senra Justice: J. Opalinski | Apparently another special bail hearing is set for January 18; remanded to that date. Initial disclosure is set to be available. |
| February 14, 2019 | Crown: G. Gill Duty Counsel: E. Flewelling Justice: G. Fantino | A change of counsel for the defence. New lawyer is Jordan Weisz. Weisz is seeking disclosure from previous lawyer and asks that the matter be adjourned to February 28. The court informs defence that a pre-trial is needed. |
| February 28, 2019 | Crown: I. Gavran Duty Counsel: S. Senra Justice: B. Fatsis | Message in court stating that the disclosure that the defence’s new counsel has received from previous counsel lacks enough substance to properly go ahead with a pre-trial. The counsel for the defence asks that the matter be adjourned until no further than a week from today, to ensure that the issues of disclosure are properly addressed. The court adjourns the matter until March 7. |
| March 7, 2019 | Crown: G. Gill Duty Counsel: S. Senra Justice: M. Avrich- Skapinker | Counsel for the defence highlights that no attempts by the Crown have been made with respect to disclosure requests. Counsel for the defence asks the defendant to return to court in person on March 12, with hopes that further disclosure be provided. |
| March 12, 2019 | Crown: I. Gavran Counsel: D. Paton Justice: P. Robertson | Assigned Crown for the defendant’s case has switched from Ms. Orlando to Jennifer Strasberg. Intention of commencing JPT along with the presence of OIC once Ms. Strasberg is back from vacation, with a date set for March 21 by video. |
| March 21, 2019 | Crown: V. Nevin Duty Counsel: S. Senra Justice: S. Scarfe | Counsel has been told by Ms. Strasberg that more detailed disclosure is now made available. Defence counsel asks for an adjournment of two weeks, with a pre-trial taking place between now and then. |
| April 2, 2019 | Crown: S. Peterson Duty Counsel: C. Holdron Justice: L. Cruz | Pre-trial is scheduled for April 10, with additional disclosure being made available later in the day. Defence counsel asks for adjournment to April 11 on video. |
| April 11, 2019 | Crown: S. Peterson Duty Counsel: S. Senra Justice: J. Opalinski | Pre-trial with Mr. Paton & Ms. Strasberg occurred the day before. Another pre-trial is set for April 24, with a judicial pre-trial being discussed as well. Counsel for the defence requests an adjournment for April 25, by video. |
| April 25, 2019 | Crown: H. Freeman Duty Counsel: Bragg Justice: M. Ross-Hendriks | A second pre-trial has been conducted and certain items of disclosure are still missing; most important is the ITO. Defendant is asked to come back in 2 weeks’ time by video to make sure that the process for disclosure is kept up. |
| May 9, 2019 | Crown: V. Nevin Student at law: T. Singh Justice: J. Opalinski | Additional disclosure was given to counsel for the defence today; matter adjourned for a JPT. |
| June 3, 2019 | Crown: J. Strasberg Counsel: J. Weisz Justice: E.J. Kelly | Disclosure is not yet done; however, the date for a second JPT has been set for August 21. Crown counsel notes that they gave earlier available dates for JPT but that defence was not available. Dates for the preliminary hearing are set for March 23-27, March 30-April 3, April 6-9, and April 15-16. Matter remanded to June 20 otherwise. |
| June 20, 2019 | Crown: G. Gill Duty Counsel: S. Senra Justice: B. Hundal | Counsel for defence is putting together a bail review, and notes that a large portion of disclosure remains outstanding. Matter adjourned one week. |
| June 27, 2019 | Crown: G. Gill Counsel: D. Paton Justice: M. Avrich- Skapinker | Jurisdictional remand while awaiting a further JPT and bail review. |
| July 18, 2019 | Crown: M. Moreno Duty Counsel: S. Senra Justice: M. Ross-Hendriks | Jurisdictional remand awaiting further JPT. |
| August 8, 2019 | Crown: K. Stasiak Duty Counsel: E. Flewelling Justice: W. Moniz | Jurisdictional remand awaiting further JPT. |
| August 22, 2019 | Crown: A. Ramnaraign Duty Counsel: P. Bragg Justice: L. Cruz | JPT was conducted August 21, and a third JPT has been scheduled for October 22; a prelim date has been confirmed for March and April of 2020. Defendant to return in person to court September 5 for a possible consent release. |
| September 5, 2019 | Crown: V. Nevin Counsel: J. Weisz Justice: M. Ross- Hendriks | Defence counsel is seeking a consent release, which Crown has agreed to, to be carried out in the OCJ. Defendant is to return September 17 in court 204 for a possible bail. |
| October 22, 2019 | Crown: V. Nevin Counsel: J. Weisz Justice: L. Montague | The third JPT scheduled for this day was cancelled due to a lack of movement from the previous JPT. A new date for the third JPT has been set for December 9. |
| December 9, 2019 | Crown: Nash Counsel: J. Weisz Justice: A. Tuck- Jackson | Continuing disclosure issues lead to the cancellation of the third JPT. A new aspirational JPT date is set for January 21, 2020. |
| January 21, 2020 | Crown: J. Strasberg Counsel: J. Weisz Justice: E.J. Kelly | JPT continues with the next date set for February 26. The defendant will return to court March 10. |
| February 19, 2020 | Crown: A. Ramnaraign Counsel: D. Paton Justice: L. Montague | Crown counsel has decided to prefer a direct indictment to the Superior Court. The preliminary hearing dates are vacated. The defendant is to return to court in person February 25 to make his election. |
| February 25, 2020 | Crown: C. Barnes Agent for Counsel: B. Eberdt Justice: K. Erlick | Notice of Election is filed and matter is remanded to the Superior Court for March 17. |
| March 17, 2020 | No transcript seems to exist. Courts were shut down for the first time that week as a result of the COVID-19 pandemic. |
SCJ Set Dates
| Date | Parties | Summary of Events |
|---|---|---|
| June 2, 2020 | Crown: S. Lecce Counsel: None appearing Justice: B. O’Marra | First appearance in Superior Court. A JPT is scheduled for June 24 and the matter remanded to July 6. |
| July 6, 2020 | Crown: S. Lecce Duty Counsel: A. Ruffo Justice: S. Nakatsuru | A six week out of custody jury trial is set for October 4, 2021. Trial readiness date is set for April 30, 2021. Sections 276 and 278 applications to be scheduled in the interim. |
| April 30, 2021 | Crown: V. Culp Counsel: D. Paton Justice: K. Campbell | Trial readiness date. Counsel indicates they are still reviewing for outstanding disclosure, and the matter is remanded for a month. |
| May 28, 2021 | Crown: V. Culp Counsel: D. Paton Justice: K. Campbell | Defence continues to review outstanding issues and asks for the trial readiness to be adjourned. |
| July 9, 2021 | Crown: V. Culp Counsel: D. Paton Justice: K. Corrick | Trial dates are confirmed. |
| September 3, 2021 | Crown: D. Steinberg Counsel: J. Weisz & D. Paton Justice: W. Low | Defence counsel Mr. Weisz asks to be removed as the accused’s lawyer. The court grants Mr. Weisz’s motion and vacates the imminent trial dates. Court instructs the defendant to find a new lawyer, and the matter is adjourned to October 1. |
| October 1, 2021 | Crown: V. Culp Counsel: S. Lee Justice: B. O’Marra | Counsel from Loui Dallas’ office confirms that they are on record. Disclosure has been requested. Matter is adjourned one week. |
| October 8, 2021 | Crown: D. Steinberg Counsel: G. Dorsz Justice: S. Boucher | Disclosure received from former counsel two days prior. It is being reviewed prior to setting a JPT. |
| October 22, 2021 | Crown: S. Leece Counsel: S. Lee Justice: M. Brown | New counsel is ready to schedule a JPT. Matter adjourned for November 5 to allow that to happen. |
| November 5, 2021 | Crown: V. Culp Counsel: G. Dorsz Justice: P. Campbell | JPT set for November 8 and matter adjourned to November 12 to be spoken to. |
| November 12, 2021 | Crown: V. Culp Counsel: P. Amenta Justice: A. Schreck | A second JPT is scheduled for December 3, with the matter returning December 10 to be spoken to. |
| December 10, 2021 | Crown: V. Culp Counsel: P. Amenta Justice: K. Corrick | Another JPT has been scheduled for December 14. Matter adjourned to the same day. |
| December 14, 2021 | Counsel: A. Karapancev Justice: M. Forestell | Trial date set for May 23, 2022, to last for six weeks; trial to include a jury, with the first week reserved for pre-trial applications. Trial confirmation date set for April 29. |
| March 25, 2022 | Crown: D. Steinberg Counsel: L. Dallas & A. Karapancev Justice: B. Allen | Due to missing disclosure, defence brings an adjournment application of the trial. Adjourned to April 1, 2022. Gives Crown and Defence one week to discuss disclosure issues. |
| April 1, 2022 | Crown: D. Steinberg Counsel: L. Dallas Justice: B. Allen | Adjournment application is granted. Crown will be seeking to sever the two complainants into separate trials. Crown reconsidering RPC on charges involving A.K. Defence waives 11(b) with respect to new trials. Adjourned to May 6 to schedule a JPT. |
| April 8, 2022 | Crown: V. Culp Counsel: S. Lee Justice: W. Chalmers | Matter on in error. |
| May 6, 2022 | Crown: V. Culp Counsel: S. Lee Justice: B. Allen | JPT has not yet been conducted. Matter adjourned to May 27. |
| May 27, 2022 | Crown: V. Culp Justice: S. Boucher | Adjourned to June 17, 2022. JPT set for June 9. |
| June 17, 2022 | Crown: S. Leece Counsel: S. Lee Justice: P. Campbell | Adjourned to June 23, 2022 for case management before Justice Forestell. |
| June 23, 2022 | Crown: S. Orlando Counsel: L. Dallas Justice: M. Forestell | Adjourned to August 31, 2022 in long trial assignment court and split indictment issue is still unresolved. However, new trial dates are put on the record: October 17, 2022 for pre-trial motions; November 28, 2022 for the trial involving K.H.; and January 23, 2023 for the trial involving A.K. |
PART III: THE PROPER APPROACH TO DELAY POST-JORDAN
[5] In R. v. Jordan 2016 SCC 27, [2016] 1 S.C.R. 631, the Supreme Court of Canada set out the applicable guidelines that this court must follow when considering an allegation of a breach of s. 11(b). Jordan provides presumptive time periods within which an accused must be brought to trial – 18 months for cases in provincial court, and 30 months for cases tried in superior court or in provincial court following a preliminary inquiry.
[6] To calculate the appropriate delay, this court must:
a. Calculate the total delay from the charge date [November 29, 2018] to the scheduled end of the trial [December 9, 2022 and February 10, 2023];
(i) Subtract defence delay to determine “net delay”; and then,
(ii) Compare the net delay to the applicable presumptive ceiling.
[7] There are two types of “defence delay”:
a. Delay waived by the defence; and,
b. Delay caused solely by the conduct of the defence, for example, deliberate tactics aimed at causing delay and prolonging the proceedings.
[8] For matters that fall above the 30-month ceiling, the Crown must prove the existence of exceptional circumstances that were outside of their control. A failure to do so must result in a violation of the applicant’s s. 11(b) Charter rights and a stay of proceedings.
[9] For matters that fall below the 30-month ceiling, a breach may still be found if the defence can demonstrate that the delay is otherwise unreasonable. The defence must show that:
a. It took meaningful steps that demonstrate a sustained effort to expedite
proceedings; and,
b. The case took markedly longer than it should have.
[10] The only available remedy for a breach of s. 11(b) of the Charter is a stay of proceedings.
[11] In this case, the delays with respect to both trials are above the presumptive 30-month limit. In my view, the principal issue to be resolved is how to deal with the delay caused by the closing of the courts and the restriction of jury trials during the COVID-19 pandemic. However, there are some lesser issues relating to the withdrawal of counsel prior to the first trial date and other defence delay that will be discussed below.
PART IV: DEFENCE DELAY
A. General Principles About Defence Delay
[12] The delays to be subtracted at the outset consist of two components: (1) periods that are waived (waiver, as before, can be implicit or explicit, but must be clear and unequivocal); and (2) periods of defence-caused delay. Defence delay comprises those situations where the accused’s acts either directly caused the delay or the accused’s acts are shown to be a deliberate and calculated tactic employed to delay the trial. Examples of defence-caused delay include frivolous applications and requests, and periods during which the court and Crown are ready to proceed but the defence is not. However, these examples do not amount to an exhaustive list, and it will of course be open to trial judges to find that other defence actions or conduct have caused delay. Such determinations are highly discretionary and are entitled to a high degree of deference from appellate courts: see R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, at pp. 1228-1229; R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, at pp. 790-1; R. v. Jordan, at paras. 60-66; R. v. Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741, at paras. 21-22; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at paras. 28-31; R. v. D.C., 2017 ONCA 483, at paras. 2-5; R. v. Burke, 2018 ONCA 594, 47 C.R. (7th) 282, at paras. 4, 6-13; R. v. Patel, 2017 ONSC 5827, 399 C.R.R. (2d) 327, at paras. 9-20.
[13] Importantly, delay can be attributed to the defence where it is solely or directly caused by the defence. To attribute delay to the defence does not require that the entire period of delay at issue be caused by the defence. Instead, in some cases, it will be fair and reasonable to apportion delay as between the parties. For example, where both defence unavailability and a change in Crown strategy have caused some period of delay, or, where the Crown has made an error respecting disclosure, but the defence was not diligent in pursuing the issue: see R. v. Boulanger, 2022 SCC 2, 469 D.L.R. (4th) 63, at para. 10; R. v. K.J.M., 2019 SCC 55, 439 D.L.R. (4th) 607, at para. 96; R v. Zahor, 2022 ONCA 449, at paras. 95-103; R. v. Albinowski, 2018 ONCA 1084, 371 C.C.C. (3d) 190, at para. 46.
[14] Defence-caused delay under the Jordan framework does not include actions legitimately taken to respond to the charges, such as time for preparation and non-frivolous applications or requests. Determining whether some step taken by the defence is legitimate requires considerations of both substance and procedure. “The decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. Relevant to the assessment of whether some defence action is legitimate are the following factors:
• The overall number (of applications);
• Strength and importance;
• Proximity to the Jordan ceilings;
• Compliance with any notice or filing requirements; and
• Timeliness of defence applications.”
See R. v. Boulanger, R. v. Lai, 2021 SCC 52, 466 D.L.R. (4th) 419, R. v. Pauls, 2020 ONCA 220, 454 C.R.R. (2d) 138, at paras. 68-72; R. v. Cody, at paras. 31-32; R. v. Picard, 2017 ONCA 692, 137 O.R. (3d) 401, at para. 40, leave to appeal refused (without reasons), [2018] S.C.C.A. No. 135; R. v. Faulkner, 2018 ONCA 174, 407 C.R.R. (2d) 59, at para. 144; R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, at paras. 147-157; R. v. St. Amand, 2017 ONCA 913, 358 C.C.C. (3d) 226, at paras. 64-78; R. v. Chung, 2021 ONCA 188, 402 C.C.C. (3d) 145, at paras. 64-78.
[15] Even where an application has some merit, a defence action may be deemed not legitimate if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay. In this way, illegitimate defence inaction or omission may be excluded from the total delay. In this way, defence inaction or omission may also render defence action illegitimate and excluded from the total delay. Such a finding need not amount to professional or ethical misconduct. Instead, the assessment of legitimacy takes its meaning from the cultural change demanded in Jordan, which requires that all justice system participants advance an accused’s right to a trial within a reasonable time: see R. v. Cody, at paras. 33-36; R. v. Faulkner, at paras. 144, 156, 158-162, 164-173; R. v. Gopie, at paras. 147-157; R. v. Antic, 2017 SCC 27, [2017] 1 S.C.R. 509, at paras. 5-6.
[16] The ceilings established in Jordan are intended as presumptive statements as to reasonable delays for which the state is responsible. Therefore, actions that are not properly attributable to the state, such as those attributable to defence counsel or to the accused person, are excluded from the total calculation of delay. Where a date is available to the Crown and court, but refused by defence counsel, aside from time required to legitimately respond to the charges, this is defence-caused delay: see R. v. Boulanger; R. v. Thanabalasingham, 2020 SCC 18, 447 D.L.R. (4th) 310, at para. 9; R. v. Jordan, at paras. 63-5, 122; R. v. Williamson, at paras. 21-22; R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 72-77; R. v. Mallozzi, 2017 ONCA 644, 390 C.R.R. (2d) 57, at paras. 32-38, 41, leave to appeal dismissed (without reasons), [2017] S.C.C.A. No. 392; R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 23; R. v. Cowell, 2019 ONCA 972, 383 C.C.C. (3d) 131, at para. 32; R. v. Albinowski, at paras. 32, 37-40, 49. See contra: R. v. Safdar, 2021 ONCA 207, at paras. 49-51, affirmed on a different basis (no determination on the issue in question), 2022 SCC 21, 469 D.L.R. (4th) 444.
[17] The amount of delay deducted for defence unavailability will depend on the circumstances. A contextual approach should be applied. Only in instances where it can be said that there were additional causes of the delay besides defence unavailability will the delay be parsed out as between those causes. For example, in Boulanger, the Crown’s change in strategy, which led to the need for continuation dates, and the court’s lack of initiative in looking for dates when the need for a new date became apparent, as well as institutional delay, contributed to the delay. Accordingly, all of the delay to the next scheduled date was not properly characterized as having been defence-caused. As the defence was not the sole cause of the delay in that instance, it was appropriate to deduct only some of that delay. Similarly, in Hanan, because a last-minute adjournment request arose due to the unexpected refusal of the victim to testify and late Crown disclosure, and because the court could not reschedule the trial any sooner, only a portion of the delay was deducted as defence-caused: see R. v. Boulanger; R. v. Hanan, 2022 ONCA 229, 161 O.R. (3d) 161, at paras. 47-59.
B. Delay Resulting From Withdrawal of Previous Counsel
[18] When previous defence counsel applied to be removed from the record because of an ethical issue that could not be resolved one month before the first trial date of October 4, 2021, that directly impacted the dates of both trials, causing them not to proceed as scheduled. The second trial date was May 23, 2022 and the resulting delay was 7 months and 19 days.
[19] This delay was attributable to the defence even though the accused did not want his lawyer removed from the record. I reject the applicant’s argument that this time period should not be considered defence delay because it was defence counsel’s decision to get off the record, not the accused’s. In our criminal justice system an accused’s lawyer is an extension of the accused. I am supported in this conclusion by the fact that the jurisprudence regarding defence delay refers to “the defence”, not simply “the accused”. These two terms are interchangeable in the s. 11(b) framework.
[20] This period of time also qualifies as a discrete exceptional circumstance, which will be discussed further below, because it was a reasonably unforeseen development that was completely outside the Crown’s control.
[21] I conclude therefore that the total amount of delay caused by withdrawal of counsel, 7 months and 19 days, should be considered defence delay and deducted from the total delay.
C. Waiver of Delay Between the Second Trial Date and the New Trial Dates
[22] On April 1, 2022, Mr. Dallas made an application to adjourn the scheduled trial date of May 23, 2022. In doing so, he waived any reliance on the delay between that date and the new trial dates. The new trial date involving K.H. was set for November 28, 2022, a delay of six months and five days. This will be considered defence delay and will be deducted from the total delay.
[23] On my reading of the April 1, 2022 transcript, it appears that Mr. Dallas’ waiver applied to the trial involving A.K. as well. That trial date was eventually set for January 23, 2023, a delay of eight months. Based on Mr. Dallas’ waiver, I would consider this defence delay and it will be deducted from the total delay.
[24] However, if I am mistaken about the scope of Mr. Dallas’ waiver with respect to the second trial, I would nonetheless consider this defence delay because the defence sought the adjournment to allow them more time to conduct their own investigation of the complainant’s background. This was a strategic decision that they were entitled to make, but I reject any suggestion that this was necessitated by incomplete disclosure by the Crown. As such, this period of eight months will be considered defence delay and will be deducted from the total delay.
PART V: INITIAL CONCLUSION RE TOTAL DELAY
[25] As I mentioned at the outset, the total delay is approximately 48 months and 11 days for the trial involving K.H., and 50 months and 13 days for the trial involving A.K. Based on the foregoing analysis, I would deduct 13 months and 24 days from the total delay in the K.H. trial and 15 months and 19 days from this total delay in the A.K. trial. However, this still leaves the delay in each case above the presumptive ceiling set out in Jordan. Therefore, the Crown must satisfy the court that this delay resulted from exceptional circumstances beyond its control.
PART VI: DISCRETE EXCEPTIONAL CIRCUMSTANCES
[26] Where, after having deducted defence-caused delay, the time period remains above the 18 month/30 month ceiling set out in Jordan, the Crown must show that the delay is reasonable because of exceptional circumstances. Such circumstances must lie outside the Crown’s control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) the Crown cannot reasonably remedy the delays emanating from those circumstances once they arise. The circumstances need not be rare or entirely uncommon. To rely on such circumstances, the Crown must demonstrate that it took reasonable steps to avoid and address the problem where it was possible to have done so.
[27] It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt recourse to case management processes to enlist the assistance of the court, seeking assistance from the defence to streamline evidence or issues for trial, coordinating pre-trial applications or resorting to any other appropriate procedural means. However, the court in Jordan emphasized that the Crown is not required to show that the steps it took were ultimately successful, just that it took reasonable steps in an attempt to avoid the delay. Nor is the Crown required to exhaust every conceivable option for redressing the event in question to satisfy the reasonable diligence requirement. However, any and all delay will not be deducted as due to a discrete exceptional event where such delay is simply far too long, as to do so would be to foster the culture of complacency that Jordan was devised to address.
[28] Discrete, exceptional events such as family or medical emergencies will qualify as exceptional circumstances. Cases with an international dimension, such as those requiring extradition of an accused, may also meet the definition. So too will instances of unexpected and unavoidable developments in a case, including where a witness unexpectedly recants, where a mistrial is declared, or where a trial goes longer than reasonably expected despite best efforts to complete the trial in the time estimated in good faith by the parties. An inadvertent oversight by the Crown might also qualify as a discrete event, as there is no standard of perfection placed upon the Crown, and mistakes happen. So long as the Crown has made reasonable efforts to remediate the error and minimize the resultant delay, the time should be deducted as a discrete event. Where such issues arise close in time to the actual or estimated end of the trial, it will likely not be possible to mitigate the delay. It will be for the trial judge, relying on her good sense and experience, to determine whether a particular event is properly determined to be exceptional. Finally, it is for the trial judge to determine what amount of the delay arising from the exceptional circumstance ought to be deducted.
PART VII: DOES THE PANDEMIC QUALIFY AS A DISCRETE EXCEPTIONAL CIRCUMSTANCE
[29] That the COVID-19 pandemic amounts to a discrete exceptional circumstance is uncontroversial and has been confirmed and re-affirmed by courts throughout the province. In instances where the delay from either the first date of the declaration of the pandemic (March 15, 2020) or the anticipated end of the first scheduled trial to the anticipated end of the rescheduled trial was caused entirely by the pandemic, that whole period of delay will be deducted from the total delay count: see R. v. Drummond, 2020 ONSC 5495; R. v. Khattra, 2020 ONSC 7894; R. v. Simmons, 2020 ONSC 7209; R. v. Truong, 2020 ONCJ 613, R. v. Brooks, 2022 ONSC 115, at paras. 27-28; R. v. Buabeng, 2022 ONSC 2181, at paras. 92-110.
[30] Reliance on the pandemic as a discrete exceptional circumstance requires, as with any exceptional event, that the Crown have taken reasonable steps to mitigate the delay it caused. That said, the Crown is not obliged to prioritize one individual case over another where thousands of matters were adjourned and await trial. So long as the Crown can point to having made prompt resort to remote case management processes (established for most matters by April 6, 2020) to get the matter back on track and rescheduled, this will generally be sufficient to establish the reasonable diligence requirement: R. v. K.G.K., 2020 SCC 7, 443 D.L.R. (4th) 361, at para. 61; R. v. Allen (1996), 1996 CanLII 4011 (ON CA), 110 C.C.C. (3d) 331 (Ont. C.A.); R. v. Brissett, 2017 ONSC 401, at paras. 29-30, affirmed, 2019 ONCA 11; R. v. Benjamin, 2019 ONCA 10; R. v. Peltier, 2022 ONSC 1153, at para. 82.
[31] The impact of the pandemic will not always be readily quantifiable. Consideration ought to be given to the obvious fact that, in spite of all efforts, a backlog in scheduling and rescheduling cases will be inevitable and returning to normal will take longer than the actual course of the pandemic itself. In instances where there is some portion of delay that exceeds the ceiling, it may be reasonably deducted as attributable to backlog depending on the circumstances: see R. v. Simmons; R. v. Brooks, at paras. 20-25; R. v. Toor, 2022 ONCJ 8, 501 C.R.R. (2d) 316, at paras. 19-22; R. v. Sawh, 2022 ONCJ 15, at para. 26; R. v. K.L., 2022 ONCJ 60, at paras. 47-48, 56-58; R. v. Hyacinthe, 2022 ONSC 1444; R. v. Osei, 2022 ONSC 1607, at paras. 39-61; R. v. Buabeng, at paras. 105-106; R. v. Delves, 2022 ONCJ 141, at paras. 42-44; R. v. McCudden, 2022 ONCJ 138, at paras. 63-66; R. v. Cann, 2022 ONSC 2699; R. v. Hamidi (unreported decision of Chapman J. January 7, 2022).
[32] Importantly, the inquiry as to whether the Crown took reasonable steps to mitigate delay is fundamentally not about inquiry into whether sufficient resources were allocated to the province’s response to the pandemic, or to whether, in a given locality, the decisions as to when and whether particular matters (such as jury trials) could run were the best decisions in the circumstances. Pointing, for example, to low numbers of cases in a particular jurisdiction or to expert evidence that the courts could have safely done differently is not relevant to the inquiry under s. 11(b). The only issue for the court’s determination on the application is whether there was a discrete exceptional circumstance, and whether the Crown did what it could reasonably do to mitigate the delay that resulted: R. v. Shen, 2022 ONSC 3274; R. v. Redufe, 2021 ONSC 5176, 494 C.R.R. (2d) 235, at paras. 13-36.
PART VIII: THE IMPACT OF THE PANDEMIC ON THIS CASE
[33] This matter entered the Superior Court of Justice just days before it was closed due to the pandemic. It must be borne in mind that all criminal matters, save those heard on an urgent basis, had to be adjourned due to the crisis. The oft-quoted passage from the Court of Appeal for Ontario’s decision in R. v. Allen is apposite in these unique circumstances:
No case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around any one case, but must try to accommodate the needs of all cases. When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources.
[34] The timeline of COVID-19 Notices to the Profession and Emergency Orders made by the provincial government demonstrate that jury trials were suspended in Ontario almost exclusively for two years because of the pandemic. The applicant has always wanted a jury trial and never wavered from that decision. Even if a direct indictment had been obtained sooner and scheduled in the Superior Court of Justice in the summer or fall of 2020, the applicant could not have had a jury trial until February 2022 at the earliest. This is because on April 20, 2020 the court issued a Notice to the Profession advising that most jury trials would be suspended. Jury trials were only proceeding sporadically through the period that has followed to February 28, 2022, when jury trials were set to resume. Consequently, I reject the applicant’s submission that the pandemic had little to do with the delay in this case.
[35] In the circumstances of this case, where the applicant wanted a jury trial knowing that one would not be available during the pandemic, the delay to the date of the jury trial should be deducted from the net delay because the Crown was not able to mitigate the delay. This is because the Crown cannot force any accused to change their election from a jury trial to a judge-alone trial, nor is the Crown able to decide whether the suspension of jury trials ought to have been lifted so that jury trials could proceed during the pandemic.
[36] The relevant chronology of events that impacted the scheduling of preliminary hearings and jury trials in Ontario during the pandemic was as follows:
• On March 15, 2020, the Ontario Court of Justice adjourned all non-urgent criminal matters for out-of-custody accused scheduled up to the end of May to the summer months of June-August, 2020.
• On March 15, 2020, Morawetz C.J. closed the Superior Court of Justice in Ontario and adjourned all criminal matters scheduled in the Superior Court of Justice between March 17 and June 2, 2020, except urgent matters.
• On April 20, 2020, Morawetz C.J. issued a Notice to the Profession respecting jury trials indicating that given the ongoing public health situation, the Ontario Superior Court of Justice would not recommence criminal or civil jury selection or jury trials until September 2020 at the earliest.
• On May 11, 2020, the Ontario Court of Justice issued a Notice to Counsel and the public adjourning all out-of-custody matters scheduled to May 29, 2020. All criminal trials and preliminary hearings scheduled between Friday, March 20, 2020 and Friday, July 3, 2020, including trials and preliminary inquiries involving people in custody, were suspended, unless a judge seized with a continuing matter ordered otherwise and the Regional Senior Judge was satisfied that the necessary courthouse resources were in place.
• On May 13, 2020, the Superior Court of Justice issued an expansion memo which indicated there would be no in-court hearings until July 6, 2020 at the earliest, and no jury trials until September 2020.
• On August 12, 2020, the Ontario Court of Justice announced that it was ready to start scheduling trials and preliminary inquiries involving out-of-custody accused persons in all court locations starting August 17, 2020. Priority was given to trials and preliminary inquiries that were adjourned due to COVID-19, with priority based on the previously scheduled trial or continuation dates. Scheduling for out-of-custody hearings that were to have taken place between May 19 to June 5, 2020 began September 8, 2020.
• On October 29, 2022, Morawetz C.J. issued a further Notice to the Profession which followed the Premier’s announcement of a return to a modified Stage 2 in Toronto. The Chief Justice suspended all new jury selection in Toronto for the following 28 days.
• On November 9, 2020, Morawetz C.J. issued a further Notice to the Profession that jury selection and new jury proceedings were suspended until at least November 30, 2020 in Toronto and that jury trials currently in progress could proceed subject to the direction of the trial judge.
• On November 21, 2020, Morawetz C.J. issued a Notice to the Profession that, effective November 23, 2020, the court will not commence any new jury selection in any court location except in those in a Green Zone. This would remain in effect until at least January 4, 2021. At this time, Toronto was in lockdown and thus, not in a Green Zone.
• On December 14, 2020, Morawetz C.J. extended the suspension of jury trials until at least February 1, 2021 in all areas of the province except in “Green Zones”. Toronto was not in a Green Zone at that time.
• On January 12, 2021, Ontario declared its second state of emergency. The next day, the suspension of jury trials was extended to May 3, 2021, meaning that no new jury selection could commence during this period. It was only judge-alone, in progress matters that could continue at the discretion of the trial judge.
• On March 17, 2021, the court advised it anticipated resuming jury selection and jury trials on July 5, 2021 in Toronto, subject to further direction from the Regional Senior Justice.
• On May 12, 2021, Morawetz C.J. issued a Notice to the Profession advising that jury trials were not resuming in June but may resume in July, August, or September, and that counsel are to check locally.
• On December 17, 2021, Morawetz C.J. issued a Notice to the Profession advising that courts would not commence jury selection until at least February 7, 2022.
• On January 19, 2022, Morawetz C.J. issued a Notice to the Profession advising that the court would not commence any new jury selection in any court location until February 28, 2022.
[37] Of course, from the beginning of the two-year jury trial suspension, a growing backlog of jury trials in the Toronto Superior Court of Justice needed to be scheduled (for new matters entering the Superior Court of Justice) or re-scheduled (when matters set for trial did not proceed on their scheduled trial dates because of the suspension). It was an extremely uncertain time period. No one knew for certain when jury trials would be proceeding. Judge-along trials were proceeding more regularly.
[38] Where the accused has insisted on a jury trial notwithstanding the suspension of such trials, the whole of the delay to the end of the next scheduled jury trial dates ought to be deducted from the total delay. As was held by Harris J. in R. v. Hyacinthe, at para. 17:
I agree with the opinion voiced in the caselaw that generally the entire two[-]year period ought to be regarded as an exceptional circumstance even though, theoretically, a jury trial could have been heard if the timing was precisely right and all the stars magically aligned. Cognizance must be taken of the reality that only a select few of the multitude of backlogged jury trials could fit into the few spaces in the court docket that were available: see Khattra at paras. 62, 79-83. There was a significant domino effect which affected this case and the vast majority of other jury trials. The entire waiting period caused by COVID in my view constitutes exceptional delay.
[39] Woollcombe J. in R. v. Khattra, at paras. 82-83 reached the same conclusion:
[82] I agree with my colleagues that, in principle, in most cases that were adjourned because the pandemic precluded the commencement of jury trials, the entire period of the delay until the new trial is fairly characterized as attributable to the pandemic. This makes sense. It reflects the reality that the administration of justice could not instantly re-start all those many cases that had been delayed on the very first day jury trials resumed. The justice system must acknowledge and take account of the fact that it required, and will in the future require a reasonable time for trials to be re-scheduled, bearing in mind the significant challenges that this poses for both the courts and for counsel.
[83] One need only consider the huge number of cases that were adjourned, by the orders of the Chief Justice, from March to June to July and then to September 2020, to appreciate the weight put onto the administration of justice by the pandemic. It is unfathomable to think that they could all have proceeded to trial in September. This is particularly so when, in Brampton, as the RSJ’s Notice made clear, there were only a limited number of courtrooms that were properly configured, fitted and available to hear cases that were proceeding in the Superior Court.
[40] Accordingly, the entire two-year period of the pandemic should be deducted from the total delay because it was outside the control of the Crown and the Crown took reasonable steps to mitigate the delay. In this regard, I reject the applicant’s suggestion that the Crown’s decision to proceed by way of a direct indictment on February 19, 2020 contributed to delay or resulted in wasted time in the Court of Justice.
PART IX: CONCLUSION RE ACTIONABLE DELAY
[41] The total delay is approximately 48 months and 11 days for the trial involving K.H., and I would deduct 13 months and 24 days from the total delay, leaving a net delay of 34 months and 18 days. When I deduct the two-year delay caused by the COVID-19 pandemic that leaves a delay of 10 months and 18 days.
[42] The total delay is approximately 50 months and 13 days for the trial involving A.K., and I would deduct 15 months and 19 days from the total delay leaving a net delay of 34 months and 25 days. When I deduct the two-year delay caused by the COVID-19 pandemic that leaves a delay of 10 months and 25 days.
[43] Based on the foregoing analysis, the delay in each case is well below the presumptive ceiling set in Jordan. This is the case even if I were to deduct only some of the two-year period of delay caused by the pandemic. Indeed, if I only deducted six months of delay due to the pandemic, both cases would be under the presumptive Jordan ceilings.[^1]
PART X: ALTHOUGH THE DELAYS FALL BELOW THE CEILINGS IN JORDAN, SHOULD A STAY NONETHELESS BE GRANTED?
[44] When the actionable delay falls below the presumptive ceilings in Jordan, the defence bears the onus of demonstrating that the case is nonetheless a clear one of unreasonable delay. To establish this, the defence must satisfy both of the following criteria:
a. That the defence took meaningful steps demonstrating a sustained effort to expedite the proceedings; and
b. That the case took “markedly longer” than it reasonably should have.
See R. v. Jordan, at paras. 82-83.
[45] Where the presumptive ceilings have not been exceeded, a stay will be rare and granted “only in clear cases.” Where the defence has not established both requirements, the s. 11(b) application must fail: see R. v. Jordan, at paras. 82-83; R. v. R.D., 2020 ONCA 23, 460 C.C.R. (2d) 206, at paras. 38-42; R. v. Daponte, 478 C.R.R. (2d) 271, at paras. 25-37; R. v. Safdar, at para. 68; R. v. Campbell, 2022 ONCA 223, at paras. 20-23.
[46] The first criterion requires a consideration of “action or non-action by the accused that is inconsistent with a desire for a timely trial.” “Token efforts,” such as placing a statement on the record that an earlier date was wanted, will not suffice. The defence must demonstrate that it tried to set the earliest trial date, cooperated with the Crown and the court, put the Crown on timely notice when delay had become problematic, and conducted all applications (including the s. 11(b) application) reasonably and expeditiously. The defence need not demonstrate it took every possible step, however, in particular where to have done so would have been futile. For example, in Campbell, the accused was not obliged to bring a severance application to meet this criteria: see R. v. Jordan, at paras. 48, 82-86; R. v. Campbell, at paras. 20-23.
[47] The second criterion involves consideration of factors like case complexity, local circumstances, and whether the Crown took reasonable steps to expedite the proceedings. Determining whether the time taken for a case markedly exceeds what was reasonably required is not a matter of precise calculation. Instead of parsing each day or month to determine whether each step was reasonably required, trial judges should step back from the minutiae and adopt a “bird’s eye” view of the case. In considering the case’s reasonable time requirements, trial judges should use the knowledge they have of their own jurisdiction, including how long a similar case typically takes to get to trial in light of relevant local and systemic circumstances: see R. v. Jordan, at paras. 87-89, 91; R. v. Safdar, at para. 68.
[48] Neither Crown nor defence counsel are held to standards of perfection in the court’s review of their conduct. Where the Crown has done its part to ensure that the case proceeds expeditiously, it is unlikely that the reasonable time requirements of the case will be found to have been markedly exceeded. The first trial date set does not amount to a yardstick against which to measure how long the case ought to have taken to get to trial. The delay must markedly exceed the time requirements of the case: see R. v. Jordan, at paras. 85, 90; R. v. K.J.M., at paras. 68-84; R. v. Campbell, at paras. 24-37.
[49] In my view, the history of this matter demonstrates that efforts were made by the Crown at all stages of the proceedings to move the matter forward so that it could be completed within the Jordan framework. A number of factors, including the pandemic, prevented that from happening. Moreover, given the total actionable delay calculated above, it cannot be said that the case took “markedly longer” than it reasonably should have. Consequently, I find that the applicant has not met its onus to establish that the amount of time it took to get to trial is unreasonable in the circumstances of this case.
PART XI: CONCLUSION
[50] The total actionable delay in these two trials is well under the 30-month ceiling in Jordan, nor is the case one of unreasonable delay. As a result, the application is dismissed.
Ducharme J.
Released: February 6, 2023
COURT FILE NOS.: CR-22-5/480
CR-22-5/481
DATE: 20230206
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
Respondent
– and –
KALIB RAHI
Applicant
REASONS on application under s. 11(B) of the Charter
Ducharme J.
Released: February 6, 2023
[^1]: The applicant suggests that, at most, three months can be deleted for delay caused by the pandemic, which incredibly is referred to in his factum as “a minor intervening event”. Given the foregoing chronology I reject this submission.