Ruling on Application to Stay Proceedings Under Section 11(b) of the Charter

Court File and Parties

Court File No.: CR-22-10000107-AP Date: 2024-04-02 Ontario Superior Court of Justice

Between: His Majesty the King – and – Claudius Wright

Counsel: C. Sweeney, for the Crown C. Pearce, for Mr. Wright

Heard:

Before: S.A.Q. Akhtar J.

Factual Background and Overview

Introduction

[1] The applicant, Claudius Wright, is charged with four counts of sexual assault and sexual interference against a six-year-old girl. He was charged on 1 March 2021 and was due to stand trial on 5 February 2024. On 6 November 2023, the applicant filed a notice of application alleging his s. 11(b) Charter rights had been violated.

[2] At this hearing, the parties agreed that the period of delay exceeded the presumptive ceiling of 30 months set out in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. However, they contested whether any deductions should be made from that time due to defence caused delay.

[3] After hearing submissions, I indicated that I would allow the application and stay the case with reasons to follow. I now produce those reasons.

Background Facts

[4] Between 2010 and 2016, the applicant was involved in a romantic relationship with the complainant’s aunt. The Crown alleges that the applicant drove the complainant, then six years old, and her younger brother to karate lessons and on two occasions, whilst the applicant was alone with the complainant, touched her vagina and breasts. The complainant reported these incidents in January 2021 when she had turned 11 years old.

[5] On 1 March 2021, the applicant was arrested and charged with four counts of sexual assault and sexual interference relating to the two alleged incidents. He was released on 2 March 2021 on his own recognisance.

The Timeline

• 1 March 2021: The applicant is arrested.
• 16 April 2021: The applicant made his first appearance at the Ontario Court of Justice.
• 21 May 2021: The applicant appears in the set date court represented by counsel.
• 25 May 2021: Counsel contacted the Crown’s office to schedule a Crown pre-trial but no response was received.
• 2 July 2021: The matter appeared at the Ontario Court of Justice but defence counsel did not appear as he was apparently unable to join the Zoom hearing. Ultimately, a date of 24 August 2021 was set for a counsel pre-trial.
• 24 August 2021: A counsel pre-trial was held and the Crown offered dates for a judicial pre-trial at the end of August or in September. A judicial pre-trial was set for 13 September 2021.
• 13 September 2021: The judicial pre-trial was held with MacLeod J. of the Ontario Court of Justice in which the parties agreed that the preliminary inquiry in this matter would require two days.
• 16 September 2021: Dates were made available for the preliminary inquiry hearing. Both parties agreed on 9-10 February 2022 which was thereafter set in court.
• 7 January 2022: The Crown wrote to the defence indicating that they were seeking to prefer a direct indictment and asked the defence to consider a re-election so that the applicant could be tried at the Ontario Court of Justice. The defence re-affirmed its intention to trial by jury at the Superior Court.
• 7 February 2022: The matter was formally placed on record as having been transferred to the Superior Court by way of direct indictment with the first appearance scheduled for 14 February 2022.
• 14 February 2022: The applicant made his first appearance at the Superior Court of Justice. A judicial pre-trial had already been arranged for 10 March 2022 and the matter was adjourned to 21 March 2022.
• 8 March 2022: The Crown indicated that the assigned Crown counsel could not attend the 10 March 2022 date and offered new dates. A new date was set for 29 March 2022.
• 29 March 2022: A judicial pre-trial was held in front of Boucher J. and the parties estimated that the Superior Court trial would last seven days. Boucher J. identified 23 November 2023 as the 30-month threshold date after deductions for defence delay and exceptional circumstances.

[6] Following the judicial pre-trial, the parties sought to obtain a trial date. The Trial Co-ordinator’s office provided a date of 6 March 2023, a date also available to the Crown. However, defence counsel indicated he was not available and provided dates that he would be able to conduct the trial: August 2022 to October 2022, 16 to 27 January 2023, and any date after 3 April 2023.

[7] The court provided its next available trial date to be 5 February 2024. On 25 April 2022, that date was set in court.

[8] On 13 May 2022, the Crown contacted the defence to discuss the possibility of setting an earlier trial date as there was availability on 20 June, 4 July, and 19 September 2022. The Crown told the defence that “saying yes doesn’t guarantee us a spot but I can start the conversation once I know”. The Crown added, “I will keep looking as dates become available”.

[9] Defence counsel responded on 16 May 2022 by saying “of the dates you've offered, I'd try to make myself available for September 19. The other dates I'm booked for. And yes, delay is live with this file”.

[10] No further communications appeared to take place until 6 November 2023 - over a year later - when the defence served notice that they would be bringing an application to stay the proceedings alleging a violation of the applicant’s s. 11(b) rights.

Legal Principles

[11] In Jordan, the Supreme Court of Canada fundamentally changed the law relating to s. 11(b) Charter applications set out in its previous decision in R. v. Morin, [1992] 1 S.C.R. 771.

[12] The Court imposed strict timelines for the completion of criminal cases: 30 months for cases going to trial in the superior court and provincial court trials after a preliminary inquiry and 18 months for cases going to trial in the provincial court. Any delay beyond these time limits was presumed unreasonable.

[13] Jordan also introduced a new method of calculating delay periods. The time accruing from the date of charge to the end of the trial is “the total delay”. Any delay periods attributable to the defence (“defence caused delay”) must be subtracted from that total leaving a “net delay” figure.

[14] If the “net delay” exceeds 30 months, the Crown can only seek to justify the excess by demonstrating the existence of exceptional circumstances: Jordan, at paras. 47, 68-75. For cases commencing prior to Jordan, the Crown may rely on the “transitional period exception”, using the Morin standards to determine whether the delay was unreasonable.

[15] In R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 451, at paras. 34-41, the Court of Appeal for Ontario, set out the following step-by-step approach to determine whether an accused’s s. 11(b) rights had been breached:

(1) Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial. (2) Subtract defence delay from the total delay, which results in the “Net Delay”. (3) Compare the Net Delay to the presumptive ceiling. (4) If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If it cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases. (5) Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached. (6) If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable. (7) If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.

[16] The total delay in this case from 1 March 2021 to 5 February 2024 amounts to 35 and 5 days. There is an agreement that 2 months and 21 days should be deducted from the total to account for the time it took the applicant to retain counsel. This would bring the net delay to approximately 32 months.

Analysis

The Positions

[17] Here, both parties seek to place blame on each other for the delay that persisted throughout the process of bringing this matter to trial.

[18] The Crown submits that it sought to mitigate delay by offering the applicant an opportunity to convert his preliminary inquiry to a trial in the Ontario Court of Justice. It also points out that the earliest date on which the Crown and the court were both ready - 6 March 2022 - was rejected by the defence. The Crown also submits that the defence failed to bring its application in a timely fashion and did nothing until it was too late to remedy the situation.

[19] In contrast, the applicant submits that his counsel raised the issue of delay throughout the proceedings and that the Crown bore the onus of ensuring that a trial date be set within the presumptive ceiling. The applicant argues that no such action was taken even though it was abundantly clear that the trial date exceeded the Jordan stipulated timeline. The applicant points to his counsel’s response when notified of the potential February 2024 date by exclaiming, “[o]h wow..So the court couldn’t accommodate anything after April 23, 2023 [sic] until February 5, 2024?”.

Should the Case be Stayed?

[20] In Jordan, the court observed that when calculating delay, the defence will have “directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence”: Jordan, at para. 64; R. v. Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741, at paras. 21-22; R. v. Mallozzi, 2017 ONCA 644, 390 C.R.R. (2d) 57, at para. 34. This view has been modified in R. v. Hanan, 2023 SCC 12, 426 C.C.C. (3d) 1, where the court indicated that a more contextual approach is required where “all relevant circumstances should be considered to determine how delay should be apportioned among the participants”: at para. 9, citing R. v. Boulanger, 2022 SCC 2, 411 C.C.C. (3d) 279, at para. 8.

[21] In this case, the defence argues that none of the delay between 6 March 2023 and the trial date of 5 February 2024 should be characterised as defence induced delay. It says that the defence acted diligently throughout the proceedings and none of the delay was caused by them. They also argue that there were no exceptional circumstances in this case to justify a period exceeding the Jordan presumptive threshold. The fact that only one date was offered cannot under Hanan be sufficient to “stop the clock” when the next date offered was almost a year later.

[22] The Crown agrees that some type of apportionment is necessary and concedes its role in contributing to the delay. However, it also argues that the defence failure to bring its s. 11(b) application in a timely manner must also be counted as a significant contributing factor. The Crown submits that half of the delay between 6 March 2023 and the trial date of 5 February 2024 - approximately five and a half months - should be attributed to the defence. Following that deduction, the delay period would fall within the Jordan presumptive ceiling.

[23] Turning to this issue, I note that after the May 2022 correspondence (referred to above), there was no further communication between the parties until 6 November 2023 when the defence notified the Crown of its impending s. 11(b) application.

[24] This vacuum of information leads to the inference that the Crown lost sight of the case until the defence filed its s. 11(b) application. The Crown acknowledges this deficiency and asks that the heavy workload of its office should be taken into account when considering the reason for its failure to continue its efforts to secure earlier trial dates. I cannot accept this argument. The Crown knew that the 5 February 2024 trial date breached the 30 month ceiling and caused potential s. 11(b) jeopardy. Accordingly, it was under an obligation to ensure that this case be prioritised to avoid a stay of proceedings. Instead, the case appears to have been forgotten and only re-emerged in the Crown consciousness when the defence filed its Charter notice.

[25] This brings me to the conduct of the defence. As noted, the defence argues that it acted “diligently” during the course of proceedings.

[26] I disagree and find the defence conduct to constitute the exact opposite.

[27] In R. v. J.F., 2022 SCC 17, 79 C.R. (7th) 281, at para. 3, the Court discussed the timing of a s. 11(b) application:

The first question requires this Court to determine when an accused must indicate that their right to be tried within a reasonable time has not been respected. Given that the Jordan framework offers greater predictability and clarity and encourages all parties to act proactively, it follows, in my view, that an accused must raise the unreasonableness of trial delay in a timely manner. As a general rule, in the context of a single trial, an accused who believes that their right to be tried within a reasonable time has been infringed must act diligently and apply for a remedy before their trial is held.

[28] The Court went on to explain, at paras. 34 and 36:

An accused who sees delay lengthening must therefore respond in a proactive manner. Being proactive may mean filing a s. 11(b) motion where the accused believes that their right to be tried within a reasonable time is not being or will not be respected (Jordan, at para. 85). Like any other application made by an accused, a motion of this kind must be brought “reasonably and expeditiously” (para. 85). Lateness in raising delay is contrary to the proper administration of justice, because such a practice serves to waste judicial resources. Indeed, the Jordan framework is specifically designed to eliminate inefficient practices that impact on the justice system (paras. 41 and 116).

In short, a duty to act proactively also rests on the accused. As a result, the accused must indicate that their right to be tried within a reasonable time has not been respected and, where the circumstances require, bring a motion for a stay of proceedings in a timely manner. As a general rule, this means before the trial is held. By the time the trial dates are set, the parties are generally in a position to know whether the trial delay will exceed the applicable presumptive ceiling, and the defence can raise any concerns it may have. However, it is not out of the question that, exceptionally, an infringement of the s. 11(b) right will reveal itself only once the trial has begun. In such a case, the accused must also act proactively. [Emphasis added.]

See also R. v. Kullab, 2023 ONCJ 458, at paras. 21-32.

[29] As was pointed out in R. v. Nigro, 2023 ONCJ 41, 524 C.R.R. (2d) 1, defence failure to take action when it knows a trial date exceeds the presumptive ceiling has significant consequences. By simply waiting to file an application close to or on the trial date results in the Crown being unable to mitigate delay. It also means the court cannot remedy the situation by finding earlier trial dates. In this regard, I agree with West J.’s comments, at para. 35:

[C]onduct which allows the defence to hide in the weeds and not alert the Crown or the Court to their concerns about delay (as indicated in para. 34) until a point where no one could remedy or mitigate that delay in any meaningful way is entirely contrary to the new framework created in Jordan, which encourages proactive, collaborative participation by all participants in the administration of justice designed to prevent delay from occurring in the first place. When an accused sees delay lengthening, they equally have an obligation to "respond in a proactive manner" respecting their concern and bring a motion "reasonably and expeditiously" (J.F., para. 34). It is my view, pursuant to Jordan, Cody, and J.F., the defence is not permitted to ambush the Crown by appearing to agree with trial dates offered without raising any concerns about delay and setting those dates.

[30] Here, the defence knew the 5 February 2024 trial date went well beyond the presumptive ceiling. As the defence itself points out, its response was one of disbelief. When defence counsel informed the Crown on 16 May 2022 that he would “try and make [himself] available” on 19 September 2022, that should not have been the end point of the defence’s responsibilities. Somewhat ironically, in the very same email, counsel indicated that “delay is live with this file”.

[31] When the defence received no reply, it was incumbent upon them to further press the matter with the Crown and if it did not receive a suitable response, file a s. 11(b) application immediately thereafter and well before the trial date.

[32] Had that been done, the Crown would have been forced to turn its mind to securing a new date, prioritising this matter over another case or bringing the applicant’s matter forward to be spoken to in the Assignment Court so that an earlier date could be found.

[33] Instead, the defence did nothing and remained silent for almost 17 months before filing its application. This type of conduct is unacceptable and irreconcilable with the principles set out in Jordan and J.F. which make clear that both the Crown and the defence have a responsibility to work together to ensure an accused’s right to have a trial within a reasonable time is protected.

[34] In normal circumstances I would accept the Crown’s submissions that the delay be apportioned equally between the parties because of the manner of the defence conduct. However, this is an unusual case. There was clearly a sufficiently significant amount of delay in the Ontario Court of Justice for the Crown to decide to prefer a direct indictment. Doing so demonstrated the Crown’s awareness that the case had foundered and that a proactive approach was needed to avoid a s. 11(b) violation. Having preferred the indictment, the Crown should have been far more careful in ensuring that the matter stayed on track.

[35] The Crown appeared to do just that when it initially contacted the defence after the February 2024 date was set. However, even though the signposts for unreasonable delay were all too apparent, the Crown appears to have allowed this case to disappear from view.

[36] The vacuum in the record is telling. I have criticised the defence for remaining silent and sitting on its hands until it filed its s. 11(b) application. There can only be an equal criticism with respect to the Crown’s behaviour in allowing a serious sexual assault allegation to fall by the scheduling wayside. Had the Crown persisted with its efforts to secure an earlier trial date and the defence rejected those dates, the clock would have stopped on 6 March 2023. However, like the defence the Crown did nothing.

[37] Neither party has emerged from these proceedings with much credit. However, it is my view that the preferment of the direct indictment and the circumstances of this case placed a higher onus on the Crown to make efforts to ensure that the trial stayed within the 30-month limit. It failed to do so and for this reason I find the greater portion of the delay to be attributed to the Crown and that even when deducting defence caused delay, I find that the ceiling has been breached.

[38] With great reluctance, I find that the applicant’s right to be tried within a reasonable time has been violated. The matter is accordingly stayed.

S.A.Q. Akhtar J. Released: 2 April 2024