COURT FILE NO.: CRIM J(F) 259-22 DATE: 2024 02 23

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – RENE SMITH Accused

Counsel: E. Taggart, for the Respondent (Crown) Self-Represented, Applicant M. Martin, Amicus

HEARD: February 16, 2024

Restriction on publication: Under subsection 648(1) of the Criminal Code, RSC 1985, c C-46, no information about this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict. This publication ban has expired on March 6, 2024.

rEASONS FOR DECISION The Honourable JUSTICE Ranjan K. AGARWAL

I. Introduction

[1] The accused Rene Smith, assisted by amicus, applies for a stay of proceedings under section 24(1) of the Canadian Charter of Rights and Freedoms. Smith argues that his right to be tried within a reasonable time under section 11(b) of the Charter has been infringed. The total delay from the charge to the anticipated end of the trial is over 31 months.

[2] Smith argues that he has caused no delay. The Crown responds that Smith’s conduct, which several judges have found to be disruptive and abusive, directly caused significant delay here. The Crown also points to short periods where it and the court were ready to proceed, but Smith or the amicus wasn’t. As discussed below, I find that there was no defence delay here. As a result, the delay is presumptively unreasonable.

[3] The Crown seeks to rebut that presumption by identifying three exceptional circumstances: (a) the court’s loss of disclosure; (b) the appointment of the amicus; and (c) a mistrial. Though I don’t accept that all these events are exceptional, the Crown has satisfied me that some delay lay outside its control. As a result, the delay falls below the presumptive ceiling. Smith hasn’t justified a stay below the ceiling. Thus, his application is dismissed.

II. Facts

[4] Smith is charged with possession of cannabis for the purpose of distributing it (Cannabis Act, SC 2018, c 16, s 9(2)) and possession of property obtained by crime (Criminal Code, s 354(1)(a)).

[5] The Crown alleges that Smith was a co-conspirator in an ongoing scheme to export multiple shipments of cannabis from Canada to Barbados. In July 2021, the police found 11kg of cannabis and $24,000 in cash in Smith’s home.

[6] For this application, the key dates are:

Date Event July 29, 2021: Smith is charged November 8, 2021: Smith apparently discharges his lawyer, demands disclosure through an agent April 26, 2022: the Crown’s application for an order that disclosure can be provided only to Smith or a licensed lawyer is granted May 31, 2022: Smith waives preliminary hearing; receives Crown disclosure March 29, 2023: amicus asks the Crown for missing disclosure May 19, 2023: Crown disclosure complete May 23, 2023: trial scheduled to start; adjourned to October 3, 2023 September 22, 2023: trial amicus appointed October 3, 2023: trial scheduled to start; adjourned to December 4, 2023 December 4, 2023: trial starts December 13, 2023: mistrial application granted February 26, 2024: trial to start

III. Legal Framework

[7] Any person charged with an offence has the right to be tried within a reasonable time. See Charter, s 11(b).

[8] In evaluating an application made under section 11(b) of the Charter, a court must identify and characterize the periods of delay occasioned throughout the trial. This requires an application of the framework from R v Jordan, 2016 SCC 27, which consists of the following steps summarized in R v Zahor, 2022 ONCA 449, at paras 61-74:

Step 1: Calculate the total delay. The court must calculate the total delay, which extends from the laying of the charge to the actual or anticipated end of the trial.

Step 2: Calculate the net delay. Net delay is calculated by subtracting defence delay from the total delay. Defence delay is subtracted because the “defence should not be allowed to benefit from its own delay-causing conduct”. See Jordan, at para 60. There are two types of defence delay, each of which must be considered and, if present, subtracted.

Step 2(a): Subtract delay that is waived by the defence. Delay that is clearly and unequivocally waived by the defence, either explicitly or implicitly, must be subtracted from the total delay.

Step 2(b): Subtract defence delay. Delay that is “caused solely or directly by the defence’s conduct” must also be subtracted from the total delay. See Jordan, at para 66. This includes tactical choices that delayed the trial, such as frivolous applications and requests, and periods of time during which the court and the Crown are prepared to proceed but the defence isn’t. See Jordan, at paras 63-64. Defence delay doesn’t include legitimate actions taken by the defence to respond to the charges, such as taking time to prepare, as well as non-frivolous applications and requests. Defence delay also doesn’t include defence actions taken in response to negligent Crown conduct, such as late disclosure, even where such conduct isn’t deliberate.

Step 3: Compare the net delay to the applicable presumptive ceiling. The applicable presumptive ceiling is 30 months for cases tried in the Superior Court. If the net delay is above the ceiling, the delay is presumptively unreasonable, and the Crown bears the burden of rebutting this presumption by demonstrating exceptional circumstances.

Step 4: Consider exceptional circumstances. These circumstances don’t need to be rare or uncommon. Instead, they must lie beyond the Crown’s control, in that they are reasonably unforeseen or reasonably unavoidable and, in either case, result in delay that can’t be reasonably remedied by the Crown. In general, the Crown may satisfy its onus by relying on two categories of exceptional circumstances: discrete events and particularly complex cases.

Step 4(a): Consider discrete exceptional circumstances. Discrete exceptional circumstances are unexpected and uncontrollable happenings which lead to delay. They engage a quantitative analysis, in that the delay caused by discrete events is subtracted from the net delay for the purpose of determining whether the remaining delay continues to exceed the presumptive ceiling. Discrete events include, for example, medical emergency or illness of criminal justice system participants, recanting witnesses, and elongated trials despite good faith timeline estimates.

Step 4(b): Consider complexity. The remaining delay may be justified by the Crown where the case is “particularly complex”. The presumptive ceiling already accounts for the fact that criminal proceedings have become more complex over time. Therefore, in order to discharge its burden under this exceptional circumstance, the Crown must demonstrate that the case is particularly complex. Unlike the consideration of discrete events, an assessment of particular complexity engages a qualitative analysis. That is, it demands an inquiry into whether the amount of remaining delay in excess of the presumptive ceiling is justified in light of the particular complexity of the case.

[9] Step 5 is inapplicable here because this case post-dates Jordan. I would add a step: Step 6: consider whether the delay is unreasonable. If the remaining delay is less than 30 months, has the defence established that: (a) it took meaningful steps that demonstrate a “sustained effort to expedite the proceedings”; and (b) the case took markedly longer than it reasonably should have? See Jordan, at para 48.

IV. Analysis and Disposition

[10] The parties agree that the total delay is 953 days, or 31 months and 8 days (Step 1). The Crown doesn’t assert that Mr. Smith waived any delay (Step 2(a)).

A. Step 2(b): Defence Delay

[11] Smith argues that no delay was caused by him. The Crown responds that Mr. Smith caused over 9 months of delay. I agree with Smith—I find that there has been no defence delay.

1. Smith Didn’t Delay Disclosure

[12] Smith was charged on July 29, 2021. The first appearance was on August 6, 2021. Smith was represented by a lawyer, Lawrence Ben-Eliezer. The Crown provided the first of several “waves” of disclosure to Ben-Eliezer on October 15, 2021. The matter was adjourned from October 22, 2021, to December 3, 2021.

[13] On November 8, 2021, Brian Sutton emailed the Crown: “need disclosure”. Smith discharged Ben-Eliezer because he wanted to be represented by Sutton, who isn’t a licensed lawyer. The Crown contended that it would only provide disclosure to a licensed lawyer representing Smith.

[14] The Crown applied for an order that, among other things, that Smith can’t show the disclosure to any person except a licensed Ontario lawyer. In response, Smith challenged the court’s jurisdiction on two grounds: (a) the presiding judge and the Crown’s counsel didn’t have a “British Accredited Bar Registry” number; and (b) Smith is immune from Canadian law as a Moorish sovereign. Justice Durno rightly dismissed these arguments. See R v Smith (26 April 2022), Brampton 74/2022 (ONSC), paras 8-18.

[15] Smith also argued that Sutton could represent him based on a notarized document from the Moorish Temple of America. Smith doesn’t dispute that Sutton isn’t a licensed lawyer. Justice Durno rightly found that, under the Criminal Code, only a licensed lawyer could represent Smith. As a result, Justice Durno granted the Crown’s application.

[16] On May 31, 2022, Justice MacLeod, who was case managing the proceeding in the Ontario Court of Justice, explained Justice Durno’s order to Smith. Smith agreed to comply, and received the disclosure. He also waived his right to a preliminary hearing.

[17] The Crown argues that the delay between Sutton’s email and Smith’s compliance with Justice Durno’s order was caused “solely or directly” by Smith’s conduct and, as a result, should be deducted from the total delay.

[18] In making this argument, the Crown points to several times when Smith’s and Sutton’s conduct was abusive towards the court, court staff, and lawyers. It characterizes Smith as an Organized Pseudolegal Commercial Argument litigant. See Meads v Meads, 2012 ABQB 571; Royal Bank of Canada v Francoeur, 2023 ONCA 837. The Crown argues that Smith’s insistence on sharing the disclosure with Sutton and his jurisdictional challenge were an intentional attempt to frustrate the court process, so the delay was caused solely by him. In Jordan, at para 63, the Supreme Court of Canada identified “frivolous applications and requests” as an example of defence delay.

[19] I don’t countenance Smith’s tactics. It’s improper to insult judges, court staff, or the lawyers, all of whom are doing their best to provide access to justice, including to Smith. Though Smith’s tactics appear to share some of the same characteristics as other OPCA litigants, I’m not prepared to label him as such for this hearing. His response to this proceeding isn’t dissimilar to that of other self-represented litigants—without advice from a lawyer, Smith is raising issues and making arguments that aren’t relevant to his defence and without an evidentiary basis. But I can’t conclude that he’s doing so to intentionally disrupt the proceedings.

[20] That said, Smith’s response to the Crown’s motion was frivolous. He adduced no evidence and made no cogent legal arguments to support any of his positions. Self-represented litigants can’t expect that baseless arguments, however much they may genuinely believe them, will allow them to use delay as a sword and a shield in their defence of the case.

[21] The amicus urges me to find that the Charter protects self-represented litigants and OPCA litigants the same as other litigants. I don’t disagree; indeed, I don’t think the Supreme Court of Canada does either. The question, for all litigants, is whether their defence strategy includes frivolous applications or requests. It’s one thing to throw a Hail Mary pass hoping to score; it’s another thing to insist on playing by a different set of rules.

[22] But, here, that’s not the end of the analysis. In Jordan, the Supreme Court identified a second example of defence delay: the court and the Crown are ready to proceed, but the defence isn’t. See Jordan, at para 64.

[23] Smith’s jurisdictional challenge happened concurrently with delayed disclosure by the Crown. Even after providing disclosure to Smith in May 2022, there was still significant disclosure outstanding—the Crown didn’t produce the CBSA searching officer notes, police notes of surveillance, and certificates of analyst until March 2023. And, as discussed below, the trial scheduled for May 2023 had to be adjourned to October 2023 because of delayed disclosure of an ITO.

[24] The Crown wasn’t ready to proceed by May 31, 2022. Indeed, it wasn’t ready to proceed until May 2023, when it finally produced the missing ITO. As a result, the delay between November 2021 and May 2022 wasn’t caused “solely” by Smith’s conduct. The Crown contributed to the delay by late disclosure.

2. Smith’s Unavailability Wasn’t Unreasonable

[25] “Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability.” See R v Godin, 2009 SCC 26, at para 23; R v Bowen-Wright, 2024 ONSC 293, at para 45.

[26] The Crown and court were available for the pretrial conference in the Superior Court on July 29, 2022. Smith requested dates in August because he didn’t have “full disclosure”. The pretrial conference was scheduled for August 16, 2022.

[27] As of July 2022, the Crown still hadn’t made full disclosure. Smith’s stated reason to delay the pretrial conference was so he could get “full disclosure”. It’s not unreasonable for a self-represented litigant to ask for an extra 18 days to ensure that he knows the case he has to meet.

[28] After the mistrial on December 13, 2023, the Crown, court, and amicus were available for assignment court on December 15th. Smith requested December 22nd, and the matter was scheduled for that day.

[29] Though Smith doesn’t state the reason for delaying assignment court by a week after the mistrial, context is important. The trial judge had, moments before seeking dates for assignment court, declared a mistrial. The Crown wanted an assignment court hearing less than 48 hours later. It’s not unreasonable for a self-represented litigant to ask for an extra week to consider his position given the significance of the event.

[30] As a result, these delays weren’t caused “solely” by Smith’s conduct.

3. Amicus’s Unavailability Wasn’t Unreasonable

[31] At the assignment court hearing, the Crown and the court were available for trial on January 8, 2024, January 15, 2024, February 12, 2024, and February 20, 2024. Amicus wasn’t available on these dates. Though Smith was available, he asked for dates when the amicus was also available. The Crown acknowledged that it would take a new amicus “at least a month to be able to get up to speed.” The trial was then scheduled for February 26th.

[32] The Crown acknowledges that section 11(b) doesn’t require defence counsel or amicus to be “perpetually available”.

[33] The delay here isn’t unreasonable. The amicus was scheduled to be in trial in January and February 2024. If new amicus had been appointed in late December, it’s unlikely they would’ve been ready to proceed by January 8th or January 15th (even if one were available that quickly). So the earliest the trial could’ve proceeded was February 12th. A two-week delay to allow this amicus, who knows about this matter, to participate isn’t unreasonable. As a result, this delay wasn’t caused “solely” by Smith’s conduct.

4. Step 3: The Net Delay Is 31 months and 8 days

[34] There’s no defence delay. As a result, the net delay is the same as the total delay: 31 months and 8 days, meaning that the delay is presumptively unreasonable.

B. Step 4(a): Exceptional Circumstances

[35] The Crown argues that exceptional circumstances delayed the trial by 6 months and 24 days. Smith responds that: (a) the circumstances identified by the Crown were within its control; and (b) the case isn’t “particularly complex”. I largely agree with the Crown—I find that exceptional circumstances delayed the trial by 4 months and 21 days.

1. The Missing ITO Was Beyond the Crown’s Control

[36] On March 30, 2023, David Butt, who was appointed as amicus to assist the court with section 8 Charter issues, advised the Crown that he didn’t have one of the ITOs. On April 4, 2023, the Crown asked court staff for a copy of the ITO. The court couldn’t find it.

[37] As a result, on April 11, 2023, Justice Durno adjourned the motions previously scheduled for that week to the week set aside for trial in May, and adjourned the trial to start on October 3, 2023.

[38] The court didn’t find the ITO until May 18, 2023. It was disclosed to Smith on May 19th. The pretrial applications scheduled for the week of May 23rd had to be adjourned again. The trial remained scheduled to begin in October.

[39] An “inadvertent oversight” may be a discrete event. “Mistakes happen. Indeed, they are an inevitable reality of a human criminal justice system and can lead to exceptional and reasonably unavoidable delay that should be deducted for the purpose of s. 11(b).” See R v Cody, 2017 SCC 31, at para 58.

[40] The evidence filed by the Crown shows that it took reasonable steps to avoid delay. It repeatedly followed up with the court. It suggested that court staff file an affidavit to explain the matter. The Crown updated Smith and the amicus. The trial was adjourned only a week after the Crown discovered the ITO was missing because the pretrial applications scheduled for April couldn’t proceed without the ITO. It wouldn’t have mattered if the court found the ITO on April 12th or on May 19th—the trial had already been adjourned to October. The delay here was exceptional and, as a result, 4 months and 10 days (the days between the May and the October trial dates) is subtracted from the net delay.

2. The Appointment of Amicus Isn’t Exceptional

[41] The Crown argues that Smith’s conduct at the pretrial applications demanded the appointment of an amicus. The Crown also relies on the release of the Supreme Court of Canada’s decision in R v Kahsai, 2023 SCC 20, in July 2023 as an interceding event. The court’s appointment of an amicus in September 2023 led to the adjournment of the trial from October 2023 to December 4, 2023.

[42] The Supreme Court of Canada, in Ontario v Criminal Lawyers’ Ass’n of Ontario, 2013 SCC 43, held that courts have the power to appoint an amicus where it is necessary to “permit a particular proceeding to be successfully and justly adjudicated” (at para 44). Kahsai builds on CLAO by defining the “limits” of the role of amicus. At paragraph 60, the Supreme Court listed several cases illustrating where courts have found it necessary to appoint an amicus, including where the accused was unwilling to retain a lawyer and didn’t actively participate, and where the accused was disruptive or abusive.

[43] In September 2023, after the pretrial applications were completed and Butt was discharged, Justice Dennison proposed appointing an amicus for trial. Justice Dennison’s reasons for appointing an amicus—Smith didn’t meaningfully participate in the trial process and was disruptive—were facts known to the Crown as early as November 2021, when Sutton advised that Ben-Eliezer had been fired and he started demanding disclosure on Smith’s behalf. The transcripts filed by the parties show that Smith didn’t meaningfully participate in most of the hearings and was often disruptive, either directly or indirectly through Sutton. The need for an amicus was surely known by August 2022, when Butt was appointed as amicus for the pretrial applications.

[44] If the Crown had identified the need for amicus any time before September 2023, the trial may not have been adjourned from October 2023 to December 2023. This circumstance wasn’t “unexpected and uncontrollable”.

3. The Mistrial Was Beyond the Crown’s Control

[45] The trial finally started on December 4, 2023. On December 14th, Justice Harris declared a mistrial. Towards the end of the Crown’s case, it withdrew four of the seven charges. But the jury had heard extensive evidence in relation to one of the counts, which presented a “strong case” against Smith, and was “quite similar” to the evidence for the other counts. See R v Smith, 2024 ONSC 318, at paras 14, 18. Ultimately, Justice Harris held that a curative instruction wouldn’t prevent a miscarriage of justice, and he declared a mistrial.

[46] The Crown has the discretion whether to bring the prosecution of a charge laid by the police and the discretion to withdraw. Prosecutorial discretion isn’t reviewable except in cases of “flagrant impropriety”. See Krieger v Law Soc’y of Alberta, 2002 SCC 65, at paras 46, 49.

[47] I haven’t been provided any caselaw that engages similar facts. In R v Way, 2022 ABCA 1, at paras 40-41, leave to appeal refused, , the Alberta Court of Appeal discussed several types of “foreseeable” mistrials:

• prosecutorial misconduct, such an inflammatory closing address by the Crown or prejudicial statements made by a Crown witness in front of the jury
• something done by defence counsel
• comments or actions of a trial judge giving rise to a reasonable apprehension of bias

[48] Smith urges me to find that the Crown, through the exercise of reasonable diligence, should have decided to withdraw the charges before trial, which would have avoided the prejudicial evidence and the mistrial. I disagree—there’s no evidence, on this record, that the Crown prosecuted the case in bad faith. The Crown’s discretion to prosecute the charges and then withdraw them is owed deference. As a result, 11 days (the length of the trial) is subtracted from the net delay.

4. Conclusion: The Remaining Delay Is 26 months and 17 days

[49] The remaining delay, when the two discrete events are subtracted from the net delay, is 26 months and 17 days. Given the remaining delay is below the presumptive ceiling, I need not consider whether this case is “particularly complex” (Step 4(b)).

C. Step 6: Unreasonable Delay

[50] Smith has been demanding a trial since his first appearances. He waived the preliminary inquiry. At the hearing, he said he opposed the appointment of an amicus to avoid further trial delay. At the same time, Smith wasn’t cooperative with the Crown and the court and he didn’t always conduct court hearings reasonably or expeditiously. Even if I accept that Smith tried to expedite this proceeding (keeping in mind that he is self-represented), I don’t find that this case “took markedly longer” than it reasonably should have. My “bird’s-eye view” of the case is that Smith’s conduct made this case more complex for everyone involved—the court’s and the Crown’s efforts to ensure that Smith’s rights were protected and to ensure a fair trial inevitably delayed the trial date, but not markedly so.

V. Conclusion

[51] Smith’s application for a stay of proceedings under section 24(1) of the Charter is dismissed. I find that his right to be tried within a reasonable time under section 11(b) wasn’t infringed.

Agarwal J. Released: February 23, 2024