COURT FILE NO.: CR-23-0067-00AP
DATE: 2024 03 21
ONTARIO
SUPERIOR COURT OF JUSTICE
(SUMMARY CONVICTION APPEAL COURT)
B E T W E E N:
HIS MAJESTY THE KING
Ryan Mullins for the Crown Appellant
Appellant
- and -
A.(C.)
Anne Marie Morphew for the Respondent
Respondent
HEARD: November 3, 2023
PUBLICATION BANNED OF ANY INFORMATION THAT WOULD REVEAL THE IDENTITY OF THE COMPLAINANT. THIS RULING CONFORMS WITH THIS BAN AND CAN BE PUBLISHED.
JUDGMENT ON SUMMARY CONVICTION APPEAL
[On appeal from the judgment of Justice Pugsley dated November 8, 2022 staying the prosecution against the Respondent for a violation of Section 11(b) of the Charter]
D. E. HARRIS J.
[1] At trial, Justice Pugsley stayed the sexual abuse prosecution against the respondent because the delay from charge to the time of trial exceeded the 18-month ceiling set in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. The Crown appeals the stay, arguing that it was erroneous not to attribute at least some of the overall delay to the defence.
[2] In this case, the original trial date was set well beyond the 18-month Jordan ceiling primarily because of delays in providing disclosure. The Crown, as the trial approached, on three separate occasions offered the respondent earlier dates to bring the matter forward and have the trial heard. Notice was short in each instance, not more than about one month to each proposed trial date. Ms. Morphew (who was also defence counsel at trial), because of her schedule, was not able to accept any of the three new dates. She did accept the fourth date offered, bringing the trial forward three and a half months. But it still exceeded the 18-month Jordan ceiling, although just barely.
[3] The Crown argues that the consequence of not taking the three proposed earlier dates is that the delay ought to be attributed to the defence. The net delay, employing this methodology, would fall below the 18-month ceiling.
[4] Ms. Morphew, in defending the appeal, insists that Justice Pugsley was right not to attribute any delay to the defence. The full delay should count. In the alternative, Ms. Morphew argues that the appeal should be dismissed on other grounds, an argument she is entitled to make as a matter of appellate law: R. v. Keegstra, 1995 91 (SCC), [1995] 2 S.C.R. 381 at para. 26. The alternative argument is that even if seen as a below the ceiling case, the delay which occurred “markedly exceed[ed] the reasonable time requirements” contrary to the standard set in Jordan. The s. 24(1) stay is justified for this reason as well.
[5] I agree with both the main and the alternative arguments made by the respondent defendant and would therefore dismiss the Crown appeal.
I. DID THE TRIAL JUDGE ERR IN FINDING THERE WAS NO DEFENCE DELAY?
The Pertinent Procedural History
[6] The information charging the respondent with sexual offences against a friend’s thirteen-year-old daughter was sworn May 9, 2021. On November 8, 2022, at the outset of the two-and-a-half-day trial which was to end on November 10, Justice Pugsley delivered oral reasons finding a violation of section 11(b) of the Charter and staying the prosecution under section 24(1).
[7] The trial judge found that the pandemic was not the cause of any of the delay. The main reason behind the delay was the serious difficulties in getting basic disclosure. It was not received until about December 31, 2021, more than seven and a half months after the charges were laid. The trial dates were finally set on April 27, 2022 when counsel appeared before the trial co-ordinator. This was already almost a year from when the charges were laid. The dates of January 18-20, 2023 were offered but neither counsel was available. The next days offered, February 21-23. 2023, were agreed upon. This date was over 21 months from the date the information was sworn, well above the Jordan 18-month ceiling. November 9, 2022 was set as the intermediate date to argue the Section 11(b) application.
[8] On July 15, 2022, 14.5 months after the charges were laid, Mr. Mullins advised Ms. Morphew by email that earlier trial dates of August 10-12, 2022, had become available. Ms. Morphew replied that she would be on vacation on August 12, 2022 and was unable to change her flights. She advised that had she been offered the dates when the trial was originally set, she would have been available. She also advised that she should be contacted if other dates became available.
[9] On September 19, 2022 Deputy Crown Attorney Colin Henderson emailed Ms. Morphew advising that earlier trial dates of October 4, 5 and 7, 2022 had become available. Ms. Morphew responded that she was unavailable for these dates as she would be out of the country for a personal commitment. She advised that she had other dates before the respondent’s trial date and asked to be advised should other dates become available.
[10] On September 30, 2022 Mr. Henderson emailed Ms. Morphew advising that earlier trial dates of November 1-4, 2022, had become available. Ms. Morphew said that she was available November 3-4 but at present was not available November 1-2. Ms. Morphew had other available dates in November, including the following week and the week after that.
[11] On October 13, 2022, Mr. Henderson advised that trial dates of November 7-10, 2022, had become available. Ms. Morphew was available November 8-10. Mr. Henderson responded that the November 1-4 dates were still available. Ms. Morphew said that she remained unavailable for the November 1-2 trial dates. The trial was set for November 8-10 and it was also agreed that the s. 11(b) application would be argued on the first day of trial. A further date of November 14, 2022 was scheduled on an as needed basis in the event that the trial exceeded its estimated time.
[12] The total delay was 18 months and two days from the swearing of the information to the end of the trial on November 10 or, if the case had required the extra day of November 14, 2022, it would have been six days over the 18-month ceiling.
Justice Pugsley’s Reasons for the Stay
[13] On the issue of whether there was defence delay that should be subtracted from the total delay, Justice Pugsley, after a thorough review of the facts, held that there was none. He said,
Here the Jordan limit has been exceeded albeit by a few days assuming the trial completes on the 14th of November. As noted earlier, the Crown seeks to attribute part of this time as defence created delay. I do not accept that characterization for any of the time between the laying of the information and the anticipated last day of the trial.
I do not characterize the defence not being available on a handful of late breaking trial dates offered ad hoc without the engagement of the trial coordinator's essential, neutral, role to be defence delay here. Indeed, no one ever asked what earlier dates the defendant was available on. In the end, dates were available albeit over the Jordan timeline. I find no defence delay here.
The Argument of the Crown with Respect to Defence Delay
[14] Referring to conclusions in several cases from the Ontario Court of Appeal and the Supreme Court of Canada, the Crown argues that it is very rare in s. 11(b) applications that no delay at all is attributed to the defence. With respect to this case, the Crown argues in their factum,
Counsel’s unavailability due to personal and professional commitments does not fall within “defence actions legitimately taken to respond to the charges”, such as “preparation time” and “defence applications and requests that are not frivolous”. To be clear, the Appellant is not criticizing the Respondent’s counsel for taking vacation time and maintaining her other professional obligations. However, the Jordan framework dictates that these sorts of scheduling conflicts, while understandable, should not be counted against the state, the entity that at all other times properly bears the full weight of the ticking clock. (Emphasis added)
The Respondent’s Position With Respect to Defence Delay
[15] The respondent’s position is that it is no longer the case that not agreeing to a trial date should necessarily count against the defence. The Supreme Court of Canada has now said, “all relevant circumstances should be considered to determine how delay should be apportioned among the participants”: R v Hanan, 2023 SCC 12, [2023] SCJ No 101 at para. 9; also see R v Boulanger, 2022 SCC 2, [2022] SCJ No 2. The respondent argues that in the context of this case, the three dates offered by the Crown “were not ‘viable’ as they did not reasonably allow defence counsel sufficient time to ‘clear the decks’ and prepare. The respondent was entitled to reject the dates without … [it] being attributed to defence delay”.
Should Any Delay be Attributed to the Defence?
[16] I agree with the trial judge and the respondent. There was no delay that ought to be attributed to the defence. The total delay therefore equals the net delay and exceeds the Jordan 18-month ceiling. The trial judge was correct to direct a stay.
[17] In arguing that the failure to take the bring forward dates should count as defence delay the Crown relies on Jordan where the majority held that “the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not” (paras. 64). On their analysis, that is what happened here. The three dates were offered to bring the trial forward but the defence was not ready to proceed.
[18] There are two problems with this. First, this statement from Jordan was never intended to apply to a situation in which dates are offered to move forward a trial which has previously been scheduled. This case cannot be analyzed under the framework established by the case law focussing on the parties’ respective positions at the time a trial date is initially set. None of the cases relied upon by the Crown directly address a situation analogous to that present here. In this factual situation, there is the extra element that does not arise when a trial date is initially set: the adequacy of the notice given to defence counsel.
[19] Second, the strictness and automatic operation of this bright-line rule from Jordan has now been reconsidered by the Supreme Court in the decisions in Hanan and Boulanger. These decisions require that unavailability of defence counsel and the ensuing delays be “reasonably apportioned” based on all the relevant circumstances: Hanan, para. 9; Boulanger, paras. 8-10.
[20] The new direction to apportion delay signals a return to a realistic and purely factual perspective, summarized by Justice Cromwell’s pithy pre- Jordan conclusion in R. v. Godin, 2009 SCC 26 at para. 23,
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. (Emphasis added)
[21] The judgments in Hanan and Boulanger serve to reinvigorate the Jordan holding with reference to defence delay,
65 To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. (Emphasis added)
[22] See also Cody at paras. 29-33.
[23] It is true that like other participants in the system, defence counsel have an obligation to fight the pervasive complacency which has led to chronic delays in criminal justice. Cooperation by defence counsel, a key participant in the system, is mandatory: Jordan, para. 5 and see para. 113; J.F., at para. 58; K.J.M, at para. 83.
[24] In this instance, Ms. Morphew was proactive and cooperated fully. When she was offered the earlier dates, in saying she was not available, she would give the reason she was not available and offer other proximate dates. She did what she could and was fully cooperative. Furthermore, the trial judge, as will be elaborated upon more fully below, made a reasonable and unchallenged finding of fact that Ms. Morphew moved the case along expeditiously and was fully cooperative. It cannot be forgotten that she did ultimately agree to a date cutting out over three and a half months of delay from the original trial date.
[25] Ms. Morphew’s conduct and position, as an officer of the court, was beyond reproach. Defence counsel, like the other participants in the system, have not only work commitments and obligations but they have their own personal commitments. Ms. Morphew’s circumstances which prevented her from taking the dates offered were legitimate. They could not be and were not impugned by the Crown at trial or upon appeal. To expect defence counsel to sacrifice her prior commitments upon what amounted to little more than a moment’s notice is not reasonable. No participant in the system, not the Crowns, defence counsel or even judges ought to be expected to make these types of sacrifices on such short notice. Any contrary conclusion would require a more or less total devotion to the system of criminal justice to the exclusion of everything else, including family commitments and personal lives, a troubling and clearly untenable prospect.
[26] Even if Ms. Morphew did not have scheduled vacation and a personal commitment standing in the way of an earlier trial date, the short notice was unlikely to allow her sufficient preparation time. A trial can be too speedy, not allowing for adequate preparation: Mills v. The Queen, 1986 17 (SCC), [1986] 1 S.C.R. 863, paras. 202, 269 per Lamer J. dissenting but not on this point. Various types of work are required for defence counsel to prepare for trial: R. v. Rehal, 2023 ONCJ 271 at para. 11; R. v. D.A., 2018 ONCA 96, at para. 13. Defence counsel, like Crown counsel, often have a heavy workload and have more than one case pending at a time. One would think that quite a lot of the preparation for a case, as for Crown counsel as well, takes place not long before the trial is to begin. Otherwise, amidst the welter of other cases and commitments, trial preparation may go stale. Notice of a new closer trial date and the underlying expectation that the defence must take virtually everything offered must be seen in this light: R. v. Qureshi [2023] O.J. No. 1903, 2023 ONCJ 189 at para. 19.
[27] In another three-day sexual assault trial in the Ontario Court of Justice, Justice Martins found that 75 days was the minimum preparation time to get ready for trial: R. v. Nguyen September 7, 2023 (unreported), at para. 15. That is more than twice the notice defence counsel was given in this instance.
[28] Justice Shreck recently said in R. v. Bowen-Wright, 2024 ONSC 293 at para. 53,
The remedy for ongoing systemic delay cannot be an expectation that the members of the defence bar will compensate for it by making themselves available on short notice. To do so would be to allow delay to become part of "business as usual": Jordan, at para. 107.
[29] What should have happened is that the crisis ought to have been recognized early on. Good options became more limited over time. There was a series of missed opportunities: 1. The Crown should have made efforts to hasten disclosure to the defence; 2. The time from full disclosure to the setting of the trial date should have been abbreviated; and 3. The trial date 10 months away and above the Jordan ceiling should not have simply been accepted. Instead of taking the date from the trial coordinator, the case should have gone before a judge to canvas all conceivable options to see if a closer date could be obtained. Once the trial date was set, the time for effective action was quickly slipping away.
[30] Wisely, the new Ontario Court of Justice Practice Direction dated November 1, 2023 requires the court to set a trial date “that complies with the timelines set out in Jordan.” The direction stipulates that the trial should be completed 15 months after the information was sworn. That would have precluded what happened in this case or, at the least, would have spurred serious triage efforts to save the case from a stay.
[31] Once the trial date was set, the only way to avert a s. 11(b) violation was to bring the matter forward. The Crown attempted to do so but their efforts failed because of the practical reality pointed out by the trial judge and the respondent: the defence cannot be expected to spring to attention in order to accommodate new proposed trial dates on such short notice. The longest notice given for an earlier trial was about 33 days.
[32] The move forward dates should likely have been offered earlier. It was not until mid-July, a little less than three months after the date was set, that the Crown’s office reached out to defence counsel to bring the trial forward. Counsel for the respondent argues that the Crown did not act promptly, referring to R. v. K.J.M., 2019 SCC 55, where the Supreme Court said,
81 Prosecutors cannot be content to wait until the 18-month mark is within eyesight before kicking into gear. That is precisely the sort of normalized indifference towards delay that prompted Jordan. Rather, they should take active steps from the outset to ensure the matter is dealt with promptly, even if the presumptive ceiling is still far on the horizon.
[33] It is hard to be definitive because there is no direct evidence indicating that there were available trial dates between April and July which could have been proposed by the Crown. But judging from the several bring forward dates that were offered starting in mid-July, it can be deduced that there were likely other dates that could have been offered immediately after the trial date was set. The Crown should not have waited three months before offering the earlier dates.
[34] Building in incentives to combat complacency was one of the express objectives behind the new Jordan regime. The Crown’s office must take “proactive, preventative problem solving” measures and not simply adopt a business-as-usual attitude (see Jordan, paras. 107, 112; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 36; R. v. Thanabalasingham, 2020 SCC 18 at para. 9). The bring forward proposals were proactive efforts as far as they went. But the main problem is that they were offered late in the game and well after the situation had gone into crisis mode. In R. c. J.F., 2022 SCC 17 at para. 58, the Supreme Court held,
56 Lateness in taking action impedes the proper administration of justice and contributes to maintaining inefficient practices that have a negative impact on the justice system and its limited resources (Jordan, at paras. 41 and 116).
[35] While there might be circumstances in which excuses or other stratagems are used by defence counsel or where the Crown has given counsel adequate notice, this is not one of them. The Crown does not argue otherwise. In this case, the first earlier date proposed was conveyed on July 15, 2022 for a trial on August 10-12, 2022, less than a month away. The next time an offer was made was September 19, 2022 for October 4, 5 and 7, 2022, three weeks away. On September 30, 2022 trial dates of November 1-4, 2022, had become available. Ms. Morphew was available November 3-4 but was not available November 1-2. On October 13, 2022, earlier trial dates of November 8-10, 2022 became available. By mutual agreement, these were set as trial dates.
[36] In similar circumstances in which short notice dates were offered to move forward trials, judges have not characterized the delay as defence delay: Rehal, at paras 6, 11-16; R. v. Kumar, (unreported), May 29, 2023, Ontario Court of Justice, at paras 27-29; R. v. Molloy, (unreported), June 14, 2023, Ontario Court of Justice, at p. 11-13.
[37] The Crown position places a legal burden on the defence to have accepted the short notice dates in the face of perfectly reasonable explanations why it was not possible. On the facts, this would not be a reasonable apportionment of the delay. It is important to remember that the delay problem is one for which the state is ultimately responsible. Defence counsel are not the cause of chronic institutional and transactional delay. In view of this reality, there is an irony in expecting defence counsel to move mountains and sacrifice their personal lives and prepare on short, insufficient notice because the state was not initially able to allocate sufficient resources and provide a timely trial. This is not a responsibility that ought to be shifted to the defence: Bowen-Wright, at para. 53.
[38] The Crown has failed to offer a cogent reason why any delay ought to be apportioned to the defence as opposed to be borne by the state. I agree with the trial judge that there was no defence delay in this case that should be subtracted from the total delay. The total delay is over the 18-month delay Jordan ceiling.
[39] The stay was required even though the net delay was only two days over the 18-month ceiling. The Jordan ceilings are strict and do not allow for any exceptions once the ceiling has been exceeded. In K.J.M. it was said at para. 69 that “Jordan marries uniformity [ceiling cases] with flexibility [below the ceiling cases] (emphasis added).” Uniformity is fundamental to the efficacy of the ceilings. Furthermore, along the same lines it was said, “..the presumptive ceiling provides a hard backstop that offers certainty, predictability, and simplicity”: (emphasis added, para. 75). The Jordan concept of ceilings does not permit of exceptions and no subsequent case law allows any. On the other hand, a delay of only two days over the ceiling, like the delay in this case, has been held to violate s. 11(b): see R. v. Husain, 2021 ONSC 2900 at paras. 46-49.
II. IF CONSTRUED AS DELAY UNDER THE JORDAN CEILING, WAS THE DELAY MARKEDLY EXCESSIVE?
In the Alternative Under the Ceiling Position, What is the Net Delay?
[40] While the rejection of the Crown’s defence delay argument is sufficient to dispose of this appeal, given that it was fully argued and that the delay was over the ceiling by only two days, the under the ceiling argument merits consideration.
[41] I have rejected the Crown’s primary position that some delay ought to be attributed to the defence as a result of not being available for the three bring forward trial dates offered. Nonetheless, in this alternative under the ceiling situation, it is necessary to take another look at the defence delay issue.
[42] The Crown argues that the entire time from the first bring forward trial date offered of August 12, 2022 to the end of the actual trial on November 10, 2022—a period of 91 days—is defence delay. Their fall-back position is half this time—46 days. These positions are undoubtably based on the Jordan statement that when the court and the Crown are ready but the defence is not, the ensuing delay is chargeable to the defence. But as discussed above, the Supreme Court of Canada has now reconsidered this rule and have concluded in Boulanger and Hanan that instead of this absolutist position, there ought to be “reasonable apportionment”. For this reason, I reject the Crown’s position on quantifying the defence delay.
[43] There is no entirely logical formulation that fits this situation. It was said in Jordan,
91 Determining whether the time the case has taken markedly exceeds what was reasonably required is not a matter of precise calculation. Trial judges should not parse each day or month, as has been the common practice since Morin, to determine whether each step was reasonably required. Instead, trial judges should step back from the minutiae and adopt a bird's-eye view of the case.
[44] However, totaling the time from the bring forward offers to the proposed trial dates is a practical solution to the attribution of defence delay. This would be approximately 55 days. Some apportionment of these 55 days between Crown and defence is required. In my view, given the short notice given to the defence, if any delay ought to be attributed to the defence, it ought to be no more than half of this total or about one month. This would bring down the net delay from 18 months to 17 months.
[45] In my opinion, if the net delay figure is set at 17 months, for the reasons that follow, a stay of proceedings would nonetheless have been required.
The Test for Under the Ceiling Delay
[46] The majority in Jordan set out the approach in the context of cases under the presumptive ceiling, saying that the defence must establish that: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took “markedly longer than it reasonably should have”: Jordan, para. 82.
[47] In any under the ceiling arguments, it should be kept in mind what was said in Jordan (para. 56):
We also make this observation about the presumptive ceiling. It is not an aspirational target. Rather, it is the point at which delay becomes presumptively unreasonable. The public should expect that most cases can and should be resolved before reaching the ceiling. (emphasis added)
The Reasons for the Delay
[48] Underlying the delay in this case was the long wait in providing basic disclosure to the defence. Disclosure delays are often a source of excessive delay in Peel and in other jurisdictions: e.g. R. v. Fonseca, 2022 ONCJ 119 at paras. 53-57; R. v. Belle, 2018 ONSC 7728; R. v. Adane, 2024 ONSC 888 at para. 9; R. v. Dawood, 2020 ONCJ 18 at para. 37. In Jordan, the Supreme Court said that forcing real change and ending complacency entails “Crown counsel… delivering on their disclosure obligations promptly with the cooperation of police”: para. 138. That did not happen in this case.
[49] The investigation was complete on the day the information was sworn, May 9, 2021. The police had by this point already obtained video statements from the complainant, her parents and the respondent. There was nothing else remaining. Yet it was not until December 30, 2021, seven and a half months later, that full disclosure was provided to the defence. Ms. Morphew in correspondence and during the respondent’s appearances in court, complained repeatedly that she did not yet have disclosure. No explanation for the delay was provided in the court below or upon this appeal. Nor does the Crown argue that the disclosure was trivial or that the defence ought not to have been permitted to wait for it before setting a trial date: R. v. Kovacs-Tatar, 2004 42923 (ON CA), 73 O.R. (3d) 161 (C.A.) at para. 47.
[50] The second portion of delay once disclosure was received is not so easily categorized but it was clearly not defence delay or exceptional circumstance delay. It counts towards the Jordan ceiling. The disclosure arrived at the end of 2021 but the trial date, even though it was clear that the case was in serious s. 11(b) peril, was not set for almost four months, not until April 27, 2022.
[51] A perusal of the record indicates that Ms. Morphew took the first Crown Pre-trial available, February 11, 2022. On February 16, 2022, a judicial pre-trial was booked for March 31, 2022. A conference with the trial coordinator was not held until April 27, 2022 to set the trial date.
[52] At trial and upon appeal in their factum, the Crown argued that defence counsel should have reached out to obtain an earlier Crown pre-trial in this period. But this argument was not accepted by the trail judge. In oral submissions on appeal, the Crown withdrew the argument.
Justice Pugsley’s Reasons with Respect to the Cause of the Delay
[53] Justice Pugsley said in his reasons that he was finding a s. 11(b) violation because the delay was over the ceiling, and expressly said that he would not have found a violation if the delay had been under the ceiling. He gave no reasons for this latter conclusion. It is therefore not owed deference. In my view, with respect, Justice Pugsley committed legal error in concluding as he did: R. v. Jurkus, 2018 ONCA 489, 363 C.C.C. (3d) 246, at para. 25, leave to appeal refused, [2018] S.C.C.A. No. 325.
[54] Despite what I view as legal error in his conclusion, Justice Pugsley made unchallenged and well-grounded factual findings which are important to the under the ceiling delay issue. Chief amongst those were the conclusions that: 1. Ms. Morphew did all she could to reduce delay and move the case along; and 2. The cause of delay was tardy disclosure. Justice Pugsley said,
From the start, the defendant has explored a timely trial with extreme vigour. Counsel was retained before the first appearance day and continuously pressed for disclosure in and out of court thereafter. The Crown, in the wider sense of the State, was unable to provide timely, important disclosure for many, many months. The defendant was absolutely entitled to wait to review and discuss with his counsel what the complainant and her parents and grandmother told the police had happened. When he had done so, counsel set the Crown pre-trial immediately.
The defence counsel’s job is to move the matter quickly and surely through the system set-up by the State to assess the case to be met, advise with the defendant [sic] and make decisions on what route to take through the court system. Here the defendant moved through that system as quickly as was possible.
I do observe, however, that I agree with the defence submission that the unnecessarily delayed disclosure is at the root of the delay here. The nature of these charges requires the defendant to see and hear the complainant's interview and those of the other family witnesses before he can estimate trial time or plan his defence. The nature of these charges should have made it clear from the start that there was g and it would not be resolved.
Defence counsel politely and regularly reminded the Crown that vital disclosure was missing and the Crown, presumably, dutifully prodded the police t respond. Perhaps more resources in the Peel Crown's office would have advanced this matter more quickly.(emphasis added)
- DID THE DEFENCE TAKE MEANINGFUL STEPS TO EXPEDITE THE TRIAL?
[55] The Crown agrees that the first pre-condition from Jordan has been satisfied, saying in their factum “The Appellant concedes that… the Respondent generally took sustained steps to move the matter forward”. Justice Pugsley made findings of fact that this was indeed the case, holding as quoted above, amongst other similar comments, that “From the start, the defendant has explored a timely trial with extreme vigour”. Findings of fact in the context of s. 11(b) are only reviewable for palpable and overriding error and none exists here: R. v. Schertzer, 2009 ONCA 742, at para. 71; leave refused [2010] S.C.C.A. No. 3. The first Jordan pre-condition for under the ceiling cases is satisfied.
- DID THE CASE TAKE MARKEDLY LONGER THAN IT REASONABLY SHOULD HAVE?
How Should the Reasonable Time Requirements be Determined?
[56] As held above, on this alternative scenario, from the laying of the charges to trial there was 17 months net delay. Using this figure, the task is to develop a reasonable time estimate for how long the delay should have been. In under the ceiling cases, Jordan mandates a comparative analysis between what was and what ought to have reasonably been. That is clear from the direction to determine whether “the case took markedly longer than it reasonably should have.” The first step is to determine how long the case should have taken. This involves additional considerations beyond just the numbers. As Jordan makes clear, in evaluating the reasonable time requirements of a case, there are several contextual factors which must be examined (para. 87):
The reasonable time requirements of a case derive from a variety of factors, including the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite the proceedings.
[57] The second step is to juxtapose how long the case should have taken with how long it actually took. If the difference between the two is that the delay was markedly excessive from what it should reasonably have been, then s. 11(b) has been violated.
[58] It is important to recognize that the exercise of determining what was a reasonable delay is case specific and depends on the particular circumstances of each individual matter. It is not about setting a generally applicable reasonable delay for sexual assault cases in the Brampton Ontario Court of Justice: see K.J.M. at para. 75.
[59] In Jordan, the majority emphasized the importance of a trial judge’s knowledge of his or her local jurisdiction (para. 89). Because I do not sit on the Ontario Court of Justice, it is difficult to give effect to that approach in this case.
[60] There are several factors that must be taken into account in determining how long a matter should have taken. First, a below the ceiling analysis must be premised on the total delay and whether it is markedly excessive. However, segments of particularly lengthy and unjustifiable delay are a legitimate focus in contemplating the overall delay. One method of ascertaining how long a case should have taken is to scrutinize the segments of unreasonable delay and determine how long they ought to have taken.
[61] Also, it should be noted that there is nothing in Jordan or the other authorities which require that to violate the Charter, the delay must necessarily approach the 18-month ceiling threshold. The only standard is that the delay must be markedly excessive from what it reasonably should have been. The two streams of over and under the ceiling although emanating from the same well spring, operate largely independently. That said, as a purely practical matter. the closer a delay comes to a ceiling, , the more likely is that it will be found to constitute a s. 11(b) violation.
[62] Applying these guidelines, I propose to first ascertain what the reasonable delay for disclosure and scheduling a date for trial should have been and then measure them up with the delay that actually occurred.
[63] In comparing what should have been to what was, it is clear that the disclosure could have been provided the day the respondent was charged. The videos had been taken by this time. All that was needed was for the police to convey them in electronic form to the Crown and the Crown to vet them and convey them to the defence. However, making allowance for the backlog of other cases in the system and for administrative procedures, a conservative estimate for disclosure in this case is one month.
[64] The four month delay to set the trial date was also far too long. Two months should have been sufficient. It should not take four months to schedule a trial once the parties are ready to go. This is especially true when a case has already been significantly delayed. A hurry-up process should have been initiated.
[65] In Jordan it was said,
139 For the courts, this means implementing more efficient procedures, including scheduling practices. Trial courts may wish to review their case management regimes to ensure that they provide the tools for parties to collaborate and conduct cases efficiently. Trial judges should make reasonable efforts to control and manage the conduct of trials.
[66] The new Ontario Court of Justice practice direction sets an expectation of six months from charge to the setting of a trial date. Although it is not retrospective and does not apply to this case, it is a helpful guideline. In this instance, the trial date was set almost one full year from the laying of the information.
[67] For the “should have taken” calculation, the excessive six and a half month wait for disclosure and the two months extra for trial scheduling caused the main part of the delay. Eight and a half months excessive delay in the context of a trial that would have otherwise taken place in around a year is a major proportion of the total. Marks must be given to the Crown’s office to expedite the trial and bring it forward. The Crown compensated to some degree for the delay that had occurred. It reduced the delay by three and a half months from what was originally scheduled.
[68] This, however, must be put into the context of the prior delays and the initial willingness to set a trial date such a long distance from the time of charge. There was expedition but it was to a significant extent in order to rectify the errors that had originally led to the delay in the first place.
[69] Within the net delay of 17 months, there was an unjustifiable delay of eight and a half months. This protracted delay, even with the bringing forward to attempt to compensate, still puts the case squarely into the excessive category from what it should have been. Was it markedly excessive? It is necessary to look at the additional Jordan factors with respect to the reasonable time requirements of the case: complexity, local considerations and whether the Crown took reasonable steps to expedite.
The Complexity of the Case
[70] In Jordan, the complexity of the case was one factor impacting on the reasonable time requirements of a case: para. 88. This trial was not complex or overly lengthy. It was a typical case of this nature, estimated to take two-and-a-half days of trial time.
The Effect of Local Circumstances
[71] Although it is one of the explicit factors in assessing the reasonable time requirements of a case, the Jordan judgment did not delve further into what impact “local considerations” ought to have in the calculation. In my view, the local circumstances in Brampton play a part in concluding that the delay in this case was markedly excessive.
[72] Hovering over this appeal is the notorious fact that Brampton has been a jurisdiction fraught with fundamental delay problems for decades now. Justice Pugsley, despite being a per diem judge at the time he stayed this prosecution, has a long history in the region. The findings he made in his ruling about Brampton delay are not challenged by the Crown. It is necessary to set them out in full. He held,
The only solution to the Askov era of delay was increased resources across the board at the Brampton courthouse, and the transfer of the north Peel cases, that is the Town of Caledon, to the overburdened Orangeville Provincial Court.
The issue of local conditions was referenced in the Crown submission. Brampton is a very busy court and currently is seven judges short of complementing [sic] the OCJ. With respect, however, this has not inured to the Crown's benefit in considering local conditions: rather I find the opposite.
In the context of the Jordan dialogue, the Crown is not just the Assistant Crown attorney in my courtroom, nor the Deputy Crown or the Crown attorney for Peel region. Rather, it is the Crown in the larger context of the State. This includes the Attorney General, who brings judicial appointments to cabinet on the appointment of provincial judges and justice of the peace. If Brampton is seven judges short, it is not Mr. A.'s doing, it is a decision of the province, and decisions have consequences.
Understandably, the government has many tasks and has to balance fiscal and other pressures when deciding whether to appoint judicial officers and where. The result is that Brampton is under resourced, as was the case in September [1986], when Brampton Senior District Court Judge Bolan observed in Askov, that there was a "Chronic shortage of institutional resources in the judicial district of Peel." Brampton might be on the verge of Askov mark two, but that remains to be seen. But in Mr. A.’ s case, I find that the Jordan timeline was exceeded, that the defence played no role in that process and that ultimately Jordan was exceeded because of a chronic shortage of institutional resources in the region of Peel.
In this regard, I add the following observations. Before I transferred to Orangeville in 2004, I was a Brampton OCJ judge. Before that, I practiced in the provincial court here as a student then counsel from 1980 on. After I moved to Orangeville in 2004, as a judge there, I was an outside observer. At times, I was the local administrative judge in Orangeville and participated in meetings with my regional counterparts, Brampton included. Brampton judicial resources have consistently, in my experience, struggled to stay one step ahead of the vastly increased population and case load of this area, even with the northern one third of the region being transferred to the Orangeville court.
Local administrators in the judiciary, in the Crown's office, in all levels of court staffing have struggled to keep up even before the pandemic with creative and countless efforts. And yet, dates today are being offered in the winter of 2024. Those officials locally have maxed out what they can do. They need more resources and soon it seems clear.
[73] This all accords with what is well known and accepted within the system of criminal justice. Brampton has a long standing, profound problem with trial delay starting at least from 1986, as Justice Bolan found sitting as the trial judge in Askov. While Justice Pugsley quoted Justice Bolan’s words, once the case got up to the Supreme Court, Justice Cory for the Court in an infamous statement, dubbed Peel, “the worst district not only in Canada but, so far as the studies indicate, anywhere north of the Rio Grande”: R. v. Askov et al. 1990 45 (SCC), [1990] 2 S.C.R. 1199 at para. 125. Two years later, in R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771, the Court said, “in Askov, we dealt with a case which came to us from the Court of Appeal for Ontario and originated in Brampton, Ontario, a notorious sore spot in relation to unreasonable delay” (emphasis added).
[74] These comments still apply with similar force. Former Regional Senior Justice Daley in a press conference held in a courtroom in the Brampton courthouse in November of 2018 criticized the chronic delays in Brampton albeit with an emphasis on Superior Court. He said that the Superior Court had “reached a breaking point”. He decried the inaction of the provincial and federal governments and the inadequate supply of the necessary resources including judges and courtrooms. Some cases were being sent to other jurisdictions to be heard as a result. There was a constant scramble to attempt to prevent cases from being stayed for unreasonable delay: “Cases are still being sent to outlying jurisdictions because of lack of court space”, The Globe and Mail, November 19, 2018:
[75] Furthermore, recent Brampton cases referring to the institutional delay in the jurisdiction abound: e.g. R. v. Jakovac, 2023 ONCJ 27 at para. 32; R. v. Sawh 2022 15 at para. 25; R. v. Ambrose [2022] O.J. No. 4793 (Ont. C.J.) at paras.23-27; R. v. Zahid, [2020] O.J. No. 4573, 474 CRR (2d) 168 (Ont.C.J.) at para. 39; R v. Simonelli, 2021 ONSC 354 at para. 98; R. v. Kevin Nyadu, 2023 ONSC 5452 at para. 70; R. v. Lokubalasuriya, 2024 ONCJ 4 at para. 21; R v. B.G., 2021 ONSC 2425 at para. 4; R. v. Williams, 2021 ONSC 3676 at para. 4; R v. Kandhai, 2020 ONSC 3580 at 86; R v. Collingwood Prime Realty Holding Corp. et.al., 2020 ONSC 2953 at 67; aff’d with no reference to this point 2021 ONCA 665; R. v. Allen, 2020 ONSC 665 at para. 31; R. v. Ny, 2016 ONSC 8031 at para. 46; R. v Isaacs and Hussain, 2016 ONSC 6214 at para. 199; R. v. Davis et al, 2012 ONSC 5526 at para. 22.
[76] Twenty years ago, Justice Dawson commented on the backlog in Peel in R. v. McDonald, 2004 42946 (Ont.S.C.),
52 Many courts on many occasions have expressed distress at the ongoing failure of those responsible in government to provide adequate resources to handle the volume of cases in Peel Region.
[77] The Crown concedes the obvious in their factum: Brampton is one of the busiest jurisdictions in the country: also see R. v. Holt, 2023 ONSC 412 at para. 44. But, more than this, Brampton is also chronically under-resourced. Just because a jurisdiction is busy does not necessarily mean that it will suffer from systemic delays. Theoretically, a busy jurisdiction can be fully served by its system of justice if sufficient resources are allocated. It is perhaps more difficult, as a practical matter, to siphon sufficient resources to a busy jurisdiction because of the higher demand and increased complexity of the work. Delays are more likely in a busy jurisdiction. Nonetheless, the crux of the problem in Brampton is not so much that the jurisdiction is busy, which it obviously is; it is that insufficient resources have been allocated to manage the heavy workload.
[78] The reasons behind the delays in Brampton are not always obvious. Justice Pugsley noted the seven vacancies on the Ontario Court of Justice at the time he stayed the charges. As of late, failure to fill vacancies has often been cited as a cause of unreasonable delay in Brampton and in Toronto: see R. v. Deslaurier, 2022 ONCJ 466 at fn. 26; Bowen-Wright, paras. 50-52; R. v. Alli, 2023 ONSC 5829 at paras. 21-25. But there are many other potential reasons including shortage of staff, Crown Attorneys and courtrooms. The judicial forum is not well-suited to exploring the precise cause of delay nor, in the end, does it matter a great deal: Mills, at para. 237 per Lamer J. It is the obligation of government to allocate sufficient resources to ensure that trials are heard promptly and within s. 11(b) boundaries: Mills, at paras. 250-251. If there is institutional delay, it must ultimately lay at the feet of the entity responsible for the prosecution of criminal cases: the government.
[79] In the circumstances, based on all the evidence, including the trial judge’s findings and judicial notice (R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, 33 C.R. (6th) 1, 202 C.C.C. (3d) 1 at para. 65), it is a well-established and notorious fact that there has been a multi-decade delay problem in Brampton. The question then is, what significance does this history have in assessing whether the delay in this case is markedly excessive?
The K.J.M. Case
[80] The appellate courts have thus far not provided much guidance on how the local considerations factor emphasized in Jordan enters into the reasonable time requirements of the under the ceiling s. 11(b) analysis. One notable exception is K.J.M. The K.J.M. judgment involved youth cases in Fort McMurray and whether the Jordan ceilings should be modified in the context of young persons. The majority answered that the same ceilings should apply. It then went on to consider the under the ceiling question of whether the time to trial had markedly exceeded a reasonable delay. The Court held that the case took longer than it ought to have. However, on the key question whether it took markedly longer, the Court held that most of the delay took place before Jordan was released. This rendered it a transitional case. Counsel reasonably relied on the pre-Jordan law in which there was a higher tolerance for delay. This, along with other factors, led to the net delay not violating s. 11(b): paras. 111-113.
[81] However, in the course of the transitional period analysis, Moldaver J. said the following pertinent to local considerations in under the ceiling cases,
113 Turning to the particular jurisdiction in question, while we lack sufficient data to draw general conclusions about how long similar youth cases in Fort McMurray were taking to complete in the pre-Jordan era, it is clear from the record that overbooking and systemic delay were endemic. While the various causes of these symptoms may be debated, they undoubtedly include the culture of complacency discussed in Jordan and the practical reality that many small centres like Fort McMurray face a caseload that outstrips their operational capacity. While Jordan set out to counteract the courtroom malaise and lack of institutional resources that produce patterns of systemic delay like that seen in this case, "[c]hange takes time" (Jordan, at para. 102). Change will not happen overnight. In sum, the systemic delays afflicting Fort McMurray — a "local consideratio[n]" under the Jordan framework — play a key role in assessing what can reasonably be expected in terms of timeliness.
[82] The passage in K.J.M. is the most in-depth application of the local consideration factor mentioned in Jordan. In my view, the treatment of systemic delays in this passage provides important assistance in orienting the local consideration factor for under the ceiling situations.
[83] I interpret the passage from K.J.M. to mean that although there were serious systemic delay issues in Fort McMurray, because most of the delay occurred before Jordan, it was appropriate to grant some leeway. There had been insufficient time to adapt to the new Jordan s. 11(b) directives. The institutional delay was ameliorated for this reason. But at the same time, the compelling implication to be drawn from K.J.M. is that were it not for the transitional nature of the case, the historic delay issues would have pointed the other way and led to a significantly lower tolerance for the delay.
[84] The case at bar is distinguishable from the facts of K.J.M. In contrast to K.J.M., the delay here began almost five years after Jordan was released. Transitional issues and reliance on the previous state of the s. 11(b) law ought not to enter significantly into the analysis. There is no transitional period to fall back on.
[85] There will always be delay in a system with finite resources. The ever-present question that s. 11(b) is engaged with is how much tolerance there ought to be for delay: Jordan, para. 30. The Jordan ceilings set a bright line over which delay will not be tolerated: Jordan, para. 114. For under the ceiling cases, in the transitional phase, Jordan holds that there should be tolerance similar to the old Askov\Morin regime for delays: Jordan, paras. 83, 101; K.J.M. paras. 5, 113, 117. But the purpose of Jordan past the transitional period was to herald with strong motivational pronouncements a new era of substantially less tolerance for delay. The primary objective of Jordan, heard loud and clear, is to upend the culture of complacency: Jordan, paras. 4, 29, 40-41. Commenting on the new regime, the Jordan Court said,
40 …a culture of complacency towards delay has emerged in the criminal justice system .. Unnecessary procedures and adjournments, inefficient practices, and inadequate institutional resources are accepted as the norm and give rise to ever-increasing delay. This culture of delay "causes great harm to public confidence in the justice system" (LeSage and Code, at p. 16). It "rewards the wrong behaviour, frustrates the well-intentioned, makes frequent users of the system cynical and disillusioned, and frustrates the rehabilitative goals of the system" (Cowper, at p. 48)
104 ..our framework has the potential to effect positive change within the justice system, rather than succumb to the culture of complacency we have described.
107 The ceiling is designed to encourage conduct and the allocation of resources that promote timely trials. The jurisprudence from the past decade demonstrates that the current approach to s. 11(b) does not encourage good behaviour. Finger pointing is more common than problem solving. This body of decisions makes it clear that the incentives inherent in the status quo fall short in the ways we have described. (citations omitted)
[86] In J.F., the Supreme Court characterized Jordan in this way:
26 In an effort to end the culture of complacency that had developed in the criminal justice system, which tolerated excessive delay in bringing accused persons to trial, this Court established a new framework in Jordan for the application of s. 11(b).
[87] In Thanabalasingham, the Court commenting on Jordan said at para. 9,
Jordan sought to put an end to an era where interminable delays were tolerated, and to the complacent, “anything goes” culture that had grown up in the criminal justice system.
[88] The judgment in K.J.M. added one additional item to the factors impacting on under the ceiling delay in Jordan, the importance of expedition in youth matters. While the case at bar is not a youth case, the comments of the Court have application beyond that area. The Court said,
75 This approach recognizes that while the presumptive ceiling remains the same whether the accused is a youth or an adult, the tolerance for delay differs. … By permitting a flexible, case-specific inquiry for cases falling below the ceiling, the Jordan framework recognizes that simply treating everyone alike is no solution. Context matters. … the test for a stay below the ceiling affords the necessary flexibility to ensure case-specific features — such as the age of the accused — are not lost in the analysis. Indeed, Jordan was not insensitive to the need for context-sensitivity.
[89] Having less tolerance for delay and requiring higher speed in young person trials is quite different from expecting improvement in jurisdictions beset with chronic delay. But it is important to acknowledge that the Supreme Court has emphasized a context-specific approach to under the ceiling delay. In my view, together with the direction that local circumstances are important, the context specific focus also supports careful scrutiny of delays specific to the pertinent jurisdiction. Jurisdictions with more serious and longer delay problems may, depending on timing and other circumstances, qualify for stricter, less forgiving treatment directed towards ridding the system of complacency.
[90] The chronic delay in our Brampton jurisdiction can be looked at in only one of two ways. It can be said to be neutral or even serve to excuse delay on the grounds that our jurisdiction is exceedingly busy and delay is a problem that has long plagued the movement of cases through the system. Sympathy for the plight of our jurisdiction and the dearth of resources ought to be uppermost: see e.g. R. v. A.B., 2023 ONCJ 459 at para. 32. This is the Crown position on this appeal. The vacancies and the busyness of the Brampton court mitigate the delay.
[91] Or, on the other hand, delay can be viewed as a problem of such stubborn and persistent longevity that it is now time, responding to the call to action in Jordan, to take real practical steps. All participants in the system, particularly government lying at the root of the problem, ought to work to reduce delays.
[92] The answer to this dilemma is found in Jordan. Between excusing delay and forcing change and the reduction of delay, Jordan unequivocally commands that arms be taken up against the pervasive stagnation clogging the system. The incontrovertible purpose of Jordon was to target complacency and, by attacking it, serve to finally break the inertia. The alternative is resignation to chronic delay and the certainty that we will be saddled with the status quo and the prospect of lengthy delays for the indefinite future. Busyness cannot be a permanent justification for the chronic delay which has beset Brampton. If a busy jurisdiction consistently receives greater allowance for delay, there will be no end to it.
[93] The historic toleration for delays in Brampton has been extraordinary. Excusing Brampton trial delays is directly contrary to the purpose and message of Jordan: see R. v. J.P. 2020 ONCJ 27 at para. 86. As Ms. Morphew put it in her factum,
The systemic failure to fund this jurisdiction does not excuse or justify the delay. It is the continuation of a culture of complacency.
[94] In our jurisdiction, delay is ever present and is a constant on the radar. The insufficient allocation of resources by government is at the bottom of it. All of the actors in the system—Crown attorneys, defence counsel, judges and staff—are attune to delay to some extent and must consistently work against it. Everyone keeps one eye on the s. 11(b) clock. If this were not the case, the system would have gone into total collapse a long time ago.
[95] In Superior Court, our files all list the Jordan date as a necessary warning as cases progress through the system. At appearances and particularly when trial dates are set, the delay question is always on everyone’s mind. There is a constant pressure to combat delay. The system--and its participants--has been under enormous stress for many years. The essence of the problem is insufficient allocation of resources. Unfortunately, that puts an onerous—and unfair--burden on everyone.
[96] But acknowledging the problem is only the first step. The fight against delay that Jordan instituted is a progressive long-term approach aimed at ridding excessive delay from the system. Brampton, as probably the most notorious jurisdictions suffering systemic delay in the country, cannot stand idle.
[97] Given the history, there should be less tolerance, not more tolerance, for the current delays in Brampton. Delays in Brampton, illustrated by the delay in this case, should be held to be more likely to precipitate violations of s. 11(b). Having said this, given the history of our jurisdiction, the pandemic and the time since Jordan that has elapsed, it is arguable that there should be some, albeit very limited allowance, for the shift in culture declared by Jordan back in 2016: Jordan, para. 94.
[98] I conclude that the principal local consideration in Brampton under Jordan is the seemingly immovable obstacle of trial delay that has darkened the system of criminal justice for decades now. The pandemic severely inhibited the implementation of the new Jordan mindset targeting complacency. However, we have moved beyond that. There has been enough time to make serious progress but there has not been enough. Apathy towards delay is no longer permissible after Jordan. It is now necessary to become less tolerant of the current delays in Brampton given the protracted history of delay.
[99] For these reasons, the local considerations pertinent to the Brampton court tend to add weight to the conclusion that the delay in this instance was markedly excessive from what it should have been even if seen as an under the Jordan ceiling case.
Did the Crown Take Reasonable Steps to Expedite the Proceedings?
[100] This is the last factor referred to in Jordan on the issue of the reasonable time requirements of a below the ceiling case. Jordan requires that proactive steps be taken across the board. Jordan holds on this issue:
90 Where the Crown has done its part to ensure that the matter proceeds expeditiously -- including genuinely responding to defence efforts, seeking opportunities to streamline the issues and evidence, and adapting to evolving circumstances as the case progresses -- it is unlikely that the reasonable time requirements of the case will have been markedly exceeded. As with assessing the conduct of the defence, trial judges should not hold the Crown to a standard of perfection. (emphasis added)
[101] It is clear that in this case the Crown did not live up to their obligations. There were significant lapses. I infer from the lack of explanation for the disclosure delay that it may well have been the dilatoriness of the police at the bottom of it. However, faced with this problem, although it cannot be known conclusively, the Crown could have done more to prod the police to deliver disclosure. After disclosure was finally provided. the Crown should also have sped up the four-month delay between disclosure and setting a trial date.
[102] Of fundamental importance, accepting a trial date well past the Jordan ceiling should not have occurred unless there was absolutely no alternative. It was clear at the set date on April 27, 2022 when the trial was set 10 months away for a time 21 months after charge that, as a result of slow disclosure, this case would inevitably be stayed for a s. 11(b) violation if an expedited date was not obtained. But nonetheless the trial date 10 months away was set. Either the Crown did not do enough at that stage to prioritize or the systemic and institutional problems were so serious as to not allow for any better, closer trial date. That is unlikely. Prioritization is usually possible to some degree. The lack of on the record attempts by the Crown to squeeze the trial into a much closer time frame suggests that the Crown did not take the emergency measures that were required.
[103] In Jordan it was said in the exceptional circumstances part of the judgment (para. 70),
[The Crown] 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 resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful -- rather, just that it took reasonable steps in an attempt to avoid the delay. (emphasis in original)
[104] There is no indication here that the Crown took any remedial steps before reaching out to Ms. Morphew in desperation to bring the case forward. The bring forward efforts, which with defence’s cooperation eliminated three and a half months of delay, had a significant impact. But these efforts must be seen in light of the initial complacency and lack of attention to delay apparent in setting a trial date that was 21 months from the charges being laid.
[105] It must be concluded that complacency towards trial delay exists in Brampton in various guises. Fundamentally, it starts with the insufficient allocation of resources by the two levels of government. That creates an unforgiving, pressure cooker environment which we all face almost daily in some form or another. It is so deeply entrenched and familiar that we often do not notice it. The result is that it puts the government’s agents in court, the Crown Attorneys, up against constant, unrelenting pressure to fight delay. Inevitably, prosecutorial discretion and core discretion--the decision to press charges, to enter a stay of proceedings, to enter into a plea bargain, to withdraw from proceedings and to take control of a private prosecution (Krieger v. Law Society (Alberta), 2002 SCC 65, [2002] 3 S.C.R. 372 (S.C.C.) at paras. 45-47)—will at times have to bow and cede precedence to urgent s. 11(b) concerns.
[106] It was said in Jordan at para. 138,
For Crown counsel, [the new regime] means making reasonable and responsible decisions regarding who to prosecute and for what, delivering on their disclosure obligations promptly with the cooperation of police, creating plans for complex prosecutions, and using court time efficiently. It may also require enhanced Crown discretion for resolving individual cases. (emphasis added)
[107] Also see Thanabalasingham at para. 9.
[108] There was also allusion in Jordan to the difficult decisions the prosecution has to make in order to conform to s., 11(b) dictates (para. 79),
…the Crown may wish to consider whether multiple charges for the same conduct, or trying multiple co-accused together, will unduly complicate a proceeding. While the court plays no supervisory role for such decisions, Crown counsel must be alive to the fact that any delay resulting from their prosecutorial discretion must conform to the accused's s. 11(b) right (see, e.g., Vassell). As this Court said in R. v. Rodgerson, 2015 SCC 38, [2015] 2 S.C.R. 760:
Certainly, it is within the Crown's discretion to prosecute charges where the evidence would permit a reasonable jury to convict. However, some semblance of a cost-benefit analysis would serve the justice system well… (emphasis added)
[109] These words from Jordan must be taken to heart. The extent of the trade-off between delay and Crown discretion in this jurisdiction, commensurate with the severity of our delay problem, is probably unique in this province and perhaps across Canada. As this case demonstrates, there is less room for error here than is the norm. This is unfortunate. Bold Crown discretion may often be necessary to separate the wheat from the chaff: R. v. Sciascia, 2017 SCC 57 at paras. 31-32. Difficult decisions have to be made. Minor cases should not occupy major amounts of court time. Trials need to be pared down if at all possible and compressed into smaller blocks of time. Prioritization of cases will continue to be vitally important.
[110] As Jordan emphasizes repeatedly, efficiency is vital: paras. 3, 40, 45, 138-139. That applies both to counsel and the judiciary. Efficiency is indispensable to ensure the best use of limited resources: paras. 116.
[111] In summary, in the course of this case from charge to trial, the Crown did not take the necessary steps to expedite until late in the process. Efficiency was not what it ought to have been. The effect of the lapses that occurred together with the lengthy history of chronic delay in Brampton support the finding that the delay in this case was markedly longer that it ought to have been.
III. CONCLUSION
[112] There has been some confusion with respect to the meaning of the admonition in Jordan that only in “clear cases” should under the ceiling cases be stayed: para. 83. It was held not long after Jordan was released in 2016 that clear cases will be “rare”: R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433 at para. 87. Also, there is a natural tendency to confuse the Jordan requirement of clear cases with the entirely different and exceptionally high “clearest of cases” standard for a stay in the context of abuse of process: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309 (S.C.C.).
[113] But the meaning of the clear cases standard in Jordan has since been clarified in K.J.M. (para. 78),
The restriction to “clear cases” was simply meant to ensure that borderline cases are not stayed, given the significant public interest in seeing a criminal matter resolved on the merits.
[114] This case is not borderline. Even if the delay were calculated to apportion about a month to the defence for not taking the bring forward dates initially offered, the delay was still markedly excessive from what it reasonably ought to have been. Inexcusable and unexplained disclosure delays lay at the heart of the problem. The case was not complex. The decades long chronic delay in Brampton exacerbated the situation and should lead not to greater tolerance for delay but rather to less. The Crown’s steps to expedite the matter came too late. In the end, the prosecution should be stayed even if the delay is characterized as under the ceiling.
[115] I would affirm the result below based on there being no defence delay and, in addition, based on the alternative under the ceiling position. For these reasons, the Crown appeal from the stay imposed at trial is dismissed.
___________________________ D. E. HARRIS J.
Released: March 21, 2024
COURT FILE NO.: CR-23-0067-00AP
DATE: 2024 03 21
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HIS MAJESTY THE KING
Appellant
- and -
A.(C.)
Respondent
JUDGMENT ON SUMMARY CONVICTION APPEAL
D. E. HARRIS J.
Released: March 21, 2024