COURT FILE NO.: CR-23-30000629-0000
DATE: 20240405
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
Respondent
– and –
GUO-XIONG LIU
Applicant
Ben Snow, Counsel for the Crown Respondent
Brian Brody, Counsel for the Applicant Liu
HEARD: March 22, 2024
M.A. CODE J.
Reasons for judgement on section 11(b) Charter Application
A. OVERVIEW
[1] The Applicant Guo-Xiong Liu (hereinafter, Liu) is charged in an Indictment alleging sexual interference, invitation to sexual touching, possession of child pornography, sexual assaults, and extortion. The information charging these offences was sworn on February 21, 2019 and the Indictment is presently set to be tried in this Court on June 10, 2024. The case is scheduled as a seven day jury trial which is anticipated to conclude on June 18, 2024.
[2] Liu brought a pre-trial Application seeking to stay the trial proceedings on the basis of an alleged violation of his s. 11(b) Charter right to trial within a reasonable time. It can be seen that the total delay in the case is 1944 days (or about 64 months, or five years and four months). Needless to say, this total delay is well beyond the Jordan presumptive ceiling of 30 months. See: R. v. Jordan (2016), 2016 SCC 27, 335 C.C.C. (3d) 403 (S.C.C.); R. v. Cody (2017), 2017 SCC 31, 349 C.C.C. (3d) 488 (S.C.C.).
[3] The parties substantially agreed that significant parts of the total delay which occurred in the Ontario Court of Justice must be deducted because of the Covid-19 pandemic, which is an “exceptional circumstance” under the Jordan framework. The parties also substantially agreed, by the end of oral argument, that some part of the delay that occurred in the Superior Court of Justice must be deducted as “defence delay” under the Jordan framework. In the result, the case ends up being very close to the 30 month presumptive ceiling.
[4] After hearing a full day of oral argument on March 22, 2024, I reserved judgement on the s. 11(b) Application. These are my reasons for judgement.
B. FACTS
[5] The parties filed a substantial documentary record which included all of the relevant transcripts, numerous emails between counsel and the Trial Coordinators, and other relevant documents such as the JPT form and the Trial Confirmation forms. The Crown also summarized the allegations against Liu as involving alleged sexual abuse of his niece, from a time when she was four or five years old until she was 16 years old. Liu was in his 20s and 30s at the time. He is alleged to have taken sexual photographs of her when she was six years old and then to have used the photographs to extort various sexual acts in the following years. The gravity of these allegations is relevant to the s. 11(b) Application only because it helps to explain why the case was given a “priority” designation when it was being scheduled in this Court.
[6] There are five specific periods of delay that are in dispute. The first two are relatively short. The last three are much longer. These five periods will be analysed in detail in the next section of these Reasons, when characterizing the cause of particular delays. By way of overview, the history of the proceedings can be summarized as falling into five broad blocks of time, as follows:
• First, there was an intake period of just over six months, from February 21, 2019 until August 27, 2019. During this period the Crown made disclosure, the accused retained counsel (and changed counsel), a Crown pre-trial was held, a Judicial Pre-Trial (JPT) was held, and a date was set for the preliminary inquiry. The only dispute concerning this initial period is whether the change in defence counsel caused any delay;
• Second, there was substantial delay in completing the preliminary inquiry because of the Covid-19 pandemic. The parties had scheduled a one day preliminary inquiry at the JPT on August 27, 2019. The scheduled date was April 14, 2020. This was about seven and a half months after the JPT, which is reasonably expeditious. Had the preliminary inquiry proceeded as scheduled, the Ontario Court of Justice part of the case would have concluded in less than 14 months (which is under the applicable 18 month Jordan presumptive ceiling for this stage of the proceedings). However, the Ontario Court of Justice closed on March 15, 2020, because of the pandemic. As a result, the preliminary inquiry did not proceed on its scheduled April 14, 2020 date. The Ontario Court of Justice slowly reopened later in the year, a new JPT was held on December 7, 2020, and new preliminary inquiry dates were set for September 15 and 16, 2021 (the anticipated length of the preliminary inquiry had now expanded to one and a half days). The preliminary inquiry proceeded as scheduled on the new dates, the complainant testified for two full days, and the accused was committed for trial. This entire second period of delay was just over two years, from the first JPT on August 27, 2019 until the committal for trial on September 16, 2021. The parties agree that most of this period should be characterized as a “discrete event” under the Jordan “exceptional circumstance” category, due to the pandemic. That “discrete event” extends from the first preliminary inquiry date on April 14, 2020 until the date of committal on September 16, 2021. The only dispute about this 17 month “discrete event” is whether there was 36 days of unreasonable Crown delay during this period when the parties were rescheduling a post-Covid JPT (the assigned Crown had been appointed a judge and the new assigned Crown rescheduled the JPT);
• Third, the first period of delay in the Superior Court of Justice was just over a year, extending from the committal on September 16, 2021 until the trial date on October 3, 2022. During this period, a JPT was held before Himel J. on October 14, 2021. Five days later, on October 19, 2021, the case was scheduled in Practise Court as a seven day jury trial starting on October 3, 2022. There is considerable dispute between the parties as to whether defence counsel’s unavailability contributed to this period of delay and, if so, by how much;
• Fourth, the second period of delay in the Superior Court of Justice was also a year, from October 5, 2022 when the first scheduled trial did not proceed, until October 3, 2023 which became the second scheduled trial date. The reason why the trial did not proceed is clear. The parties appeared on three consecutive days, from October 3 to 5, 2022, and Kelly J. advised that there were no judges available to preside over the trial that week. Considerable efforts were made to reschedule the case, including in the following week when the Court and Crown were both available. At this point, defence counsel’s unavailability became a significant issue, which will be discussed in some detail in the next section of these Reasons. In the end, a second trial date was set for October 3, 2023; and
• Fifth, the third and last period of delay in the Superior Court of Justice was just over eight months. This period extended from October 5, 2023, when the second scheduled trial did not proceed, until June 10, 2024 which now became the third scheduled trial date. Once again, the reason why the trial did not proceed is clear. The parties appeared on three consecutive days, from October 3 to 5, 2023, and Forestell J. advised that there were no judges available that week to preside at the trial. Once again, considerable efforts were made to reschedule the case, including in the following weeks and months when numerous dates were offered by the Crown and the Court. As on the prior occasion, defence counsel’s unavailability because a serious issue. The case is still scheduled as a seven day jury trial and so it is now anticipated to conclude on June 18, 2024.
C. ANALYSIS
[7] The Jordan framework for analysing s. 11(b) delay is well-known and I need not recite it in these Reasons. Each of the five periods of delay that are in dispute in this case raise discrete factual and legal issues. I will discuss those issues in the next five sub-sections of these Reasons. As noted previously, the first two disputed periods are relatively short. The last three periods are far more significant.
(i) The change in counsel during the intake period
[8] There were five court appearances during the initial six month intake period. Mr. Lee appeared as counsel for the Applicant Liu on the first three appearances. No disclosure was available on the first appearance. Mr. Lee picked up two packages of disclosure on the second and third appearances. He was in the process of reviewing the disclosure and scheduling a Crown pre-trial with the assigned Crown, Mr. Fraser, at the time of the third appearance. Shortly after this appearance, the Applicant Liu changed counsel and Mr. Brody was retained, prior to the fourth court appearance. At that fourth appearance, counsel from Mr. Brody’s office advised the Court that their firm was now on the record, that they had already conducted a Crown pre-trial with Mr. Fraser, and that they had already scheduled a JPT for August 27, 2019. The matter was then put over to the fifth court appearance, for the scheduled JPT. This was the last appearance during the six month intake period.
[9] The Crown submits that the change in counsel caused some delay and seeks to quantify that “defence delay” as 42 days. This is the time between the third appearance on May 16, 2019, when Mr. Lee last appeared on the record, and the fourth appearance on June 27, 2019, when Mr. Brody’s firm first appeared.
[10] It is well established in the s. 11(b) case law that a change in counsel can be a cause of delay, usually because it leads to an adjournment in order to allow the new counsel to prepare and/or to become available. In these circumstances, the period of this adjournment is deducted from the total delay and is characterized as “defence delay”. See, eg: R. v. Jordan, supra at para. 120; R. v. Cody, supra at para. 40; R. v. Gandhi, 2016 ONSC 5612 at paras. 42-45. I am not persuaded that the change in counsel in this case actually caused any delay. When Mr. Brody’s firm came on the record at the fourth appearance, he did not seek an adjournment in order to obtain the Crown disclosure from Mr. Lee’s file, in order to review that disclosure, or in order to arrange a Crown pre-trial. Indeed, Mr. Brody’s law firm had already taken all these steps and had taken the further step of scheduling a JPT. During oral argument, it became clear that the Crown’s real criticism of the initial intake process was that the first lawyer, Mr. Lee, had been unreasonably slow in picking up and reviewing disclosure and in scheduling a Crown pre-trial. I have read the transcripts of Mr. Lee’s three court appearances and I cannot properly assess this issue on the present record.
[11] In the result, there should be no deduction for “defence delay” due to the change in counsel. The entire six month intake period, although not a model of expedition, should be included in the 30 month Jordan presumptive ceiling.
(ii) Delay in scheduling the post-Covid JPT due to Mr. Fraser’s judicial appointment
[12] As summarized above, the parties are in substantial agreement as to the proper s. 11(b) characterization of the second block of time in the Ontario Court of Justice. It totals just over two years, from the August 27, 2019 date of the JPT until the September 16, 2021 date of the committal for trial. The first seven and a half months of this period, from the JPT until the initial April 14, 2020 date set for the preliminary inquiry, is undoubtedly part of the 30 month Jordan presumptive ceiling. However, the remaining 17 month period is a “discrete event” because the pandemic intervened and prevented the preliminary inquiry from proceeding, from its first scheduled date on April 14, 2020 until its second scheduled date on September 16, 2021. See: R. v. Agpoon, 2023 ONCA 449. The only dispute is whether 36 days should be carved out of this “discrete event” because the Crown unreasonably delayed the scheduling of the post-Covid JPT. Mr. Brody’s submission to this effect is factually detailed and it relates to the timing of Mr. Fraser’s judicial appointment and the timing of the post-Covid JPT.
[13] I have read the relevant emails between counsel. The Ontario Court of Justice required a new JPT for cases like the present one that had not proceeded during the pandemic and that had to be rescheduled. These were substantive post-Covid JPTs, and not just pro forma rescheduling JPTs. The Ontario Court of Justice now had a serious pandemic backlog and efforts were being made to either resolve the delayed cases or to shorten and streamline these cases. Mr. Fraser sent an email on October 5, 2020, suggesting dates for this new JPT. Mr. Brody replied the next day, on October 6, 2020. He accepted one of Mr. Fraser’s suggested dates, namely, October 27, 2020. Three days later, on October 9, 2020, Mr. Fraser was appointed to the Ontario Court of Justice. A series of emails ensued, between October 13 and 16, 2020, in which Mr. Fraser advised of his judicial appointment and the need to assign a new Crown, and the new assigned Crown advised that he was available to attend the JPT “in early December.” The parties then agreed on December 2, 2020 as the date for the post-Covid JPT.
[14] Mr. Brody submits that the 36 days between the October 27, 2020 JPT date, that counsel had agreed to prior to Mr. Fraser’s appointment, and the December 2, 2020 JPT date that counsel agreed to after Mr. Fraser’s appointment, is unreasonable or unjustified Crown delay. Mr. Brody submits that a new Crown should have been able to attend a JPT on the previously agreed October 27, 2020 date. The Crown, on the other hand, submits that Mr. Fraser’s judicial appointment was an unforeseen “discrete event” that justifies this 36 day period of delay. Mr. Snow, in his submissions on behalf of the Crown, stresses the importance of having an assigned Crown attend the new JPT, after first learning the file, in order to be able to engage in substantive resolution and/or streamlining discussions at the JPT.
[15] I agree with the Crown. The main premise of Mr. Brody’s position is that any Crown could and should have been prepared to attend an October 27 JPT on 18 days notice, after Mr. Fraser’s judicial appointment on October 9, 2020. In my view, it was necessary in the exigent circumstances of the pandemic backlog, to have an assigned Crown who was fully briefed on the case attend the JPT, in order to make substantive decisions about how to resolve or streamline the case. Mr. Fraser’s judicial appointment was an unforeseen “discrete event” that justified this short 36 day period of delay, by allowing sufficient time to assign a new Crown who could read the file and schedule the JPT on a reasonably early date that was available in the newly assigned Crown’s calendar. See: R. v. Cody, supra at paras. 48-49.
[16] In the result, the entire 17 month period from April 14, 2020 (the first scheduled preliminary inquiry date) until September 16, 2021 (the second scheduled preliminary inquiry date) should be characterized as an “exceptional circumstance”, due to the Covid-19 pandemic and due to Mr. Fraser’s judicial appointment. On the other hand, the period from February 21, 2019 (when the information was sworn) until April 14, 2020 (when the pandemic prevented the preliminary inquiry from proceeding), is all included in the 30 month Jordan presumptive ceiling. This period is approximately 13 months and three weeks. It means that the case was under the 18 month Jordan ceiling for Ontario Court of Justice proceedings at the time of committal.
(iii) The first period of delay in the Superior Court of Justice
[17] The parties initially proceeded expeditiously in this Court by arranging a JPT before Himel J. on October 14, 2021, which was less than a month after committal. It is noted on the JPT Form that the parties estimated there had been about 13 months of justifiable or deductible delay in the Ontario Court of Justice. Accordingly, they estimated that the normal 30 month Jordan presumptive ceiling (which would have ended on August 21, 2021, if there were no justifiable deductions) should be extended to September 21, 2022. It can be seen from my above analysis of delay in the Ontario Court of Justice that the period of “discrete event” delay caused by the pandemic and by Mr. Fraser’s judicial appointment was in fact 17 months. Counsel cannot be faulted for their conservative estimate of 13 months of justifiable or deductible delay, given that they did not have the benefit of the post-pandemic jurisprudence. In particular, R. v. Agpoon, supra was not decided until 2023. As a result of counsel’s conservative estimate, to the effect that September 21, 2022 was the “Net Jordan date”, Himel J. went on to note on the JPT Form that “depending on trial date, defence may bring s. 11(b).” In other words, it was known from the time of the JPT that the case was in potential s. 11(b) Charter jeopardy, depending on the scheduled trial date.
[18] The record is clear that the Crown took this potential s. 11(b) jeopardy seriously and sought a “priority date” from the Court, “given delay issues.” This is how Ms. Garrity put it, when scheduling the trial in Practise Court. Ms. Garrity is the Superior Court administrative Crown for the Scarborough Crown Office and her efforts in this matter were exemplary. She stated the above, on the record before Brown J. when setting the trial date. She went on to state that the Trial Coordinator’s Office had assigned “our priority slot” for the case, namely, March 14, 2022. However, Mr. Brody was not available on this date. His earliest available date was July 11, 2022. After that, he had availability from late September and into October 2022. I have reviewed the Trial Confirmation Form and the email correspondence between the Crown, Mr. Brody, and the Trial Coordinator’s Office and they all confirm the above statements made by Ms. Garrity. The emails also state that the Court’s earliest “non-priority slot would be December 5, 2022.” These references to “priority dates” and “priority slots” and “non-priority slots” reflect the scheduling practices that the Court adopted after the pandemic, in order to cope with the very significant post-pandemic backlog that had built up. It was a form of “triage” in which certain particularly serious cases, and/or particularly delayed cases, and/or in custody cases, were offered the earliest trial dates. The Court of Appeal referred to these practices with approval in R. v. Agpoon, supra at paras. 32-34. It is telling that the earliest “non-priority” date for the case was December 5, 2022, which was more than 14 months after Liu’s committal. This “non-priority” date was almost nine months later than the Court’s earliest “priority” date of March 14, 2022. In other words, the “triage” practice of offering early dates to certain “priority” cases had a dramatic impact on available trial dates.
[19] Mr. Brody’s earliest available date for a seven day jury trial was July 11, 2022. This was a date in the summer sittings, when fewer judges are available because of summer holidays. The Trial Coordinator’s Office advised that “the Court cannot offer a summer date for this matter”. The Trial Coordinator went on to state that, “The next available date in a priority slot that would be in line with the availability provided by counsel would be October 3, 2022 for seven days jury.” Accordingly, the trial date was set for October 3, 2022.
[20] The delay between committal on September 16, 2021 and the October 3, 2022 trial date is about 12 and a half months. During the course of oral argument on the s. 11(b) Application, Mr. Brody eventually conceded that some portion of this period should be characterized as “defence delay”, because of his unavailability on the early “priority” date of March 14, 2022, when the Court and the Crown were both ready to proceed. The only issue was how much of this period should be characterized as “defence delay”. I agree with this concession.
[21] The s. 11(b) law in this area, concerning defence unavailability, has become subtle and complex. In both Jordan and Cody, the Court stated the following: “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, supra at para. 64); and “where the Court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted” (Cody, supra at para. 30). In the subsequent case law, applying this principle, a line of authority held that defence counsel’s unavailability on an earlier date offered by the Court and the Crown meant that all of the ensuing delay until the date when all parties were available was “defence delay”. See, e.g. R. v. Mallozzi, 2018 ONCA 312; R. v. Safdar (2021), 2021 ONCA 207, 403 C.C.C. (3d) 91 at paras. 44-45 (Ont. C.A.). The simple logic of these authorities was that, but for defence counsel’s unavailability on the earlier date, none of the ensuing delay until the actual date when all parties were available would have occurred. It was, therefore, “resulting delay” pursuant to Jordan and Cody. In the present case, applying the principle from Mallozzi and Safdar, the approximately five and a half months of delay, from April 14, 2022 until October 3, 2022, would all be “defence delay”.
[22] In my view, the Mallozzi and Safdar approach to delay caused by defence counsel’s unavailability appears to have been overtaken by more recent authorities. A more nuanced “contextual approach” has developed in which, “All relevant circumstances should be considered to determine how delay should be apportioned.” It could be argued that this apparent change in the law detracts from the clarity, simplicity, and predictability that Jordan and Cody intended. See: R. v. Hanan (2023), 2023 SCC 12, 426 C.C.C. (3d) 1 at para. 9 (S.C.C.); R. v. Hanan (2022), 2022 ONCA 229, 412 C.C.C. (3d) 233 at paras. 47-59 (Ont. C.A.); R. v. Boulanger (2022), 2022 SCC 2, 411 C.C.C. (3d) 279 at paras. 8-10 (S.C.C.); R. v. Albinowski (2018), 2018 ONCA 1084, 371 C.C.C. (3d) 190 at para. 46 (Ont. C.A.); R. v. Bowen-Wright, 2024 ONSC 293 at paras. 38-43. In the latter case, my colleague Schreck J. helpfully summarized some of the more important factors to consider when assessing “resulting delay” caused by defence counsel’s unavailability, under this modern “contextual approach”.
[23] In this case, the March 14, 2022 “priority date” offered by the Crown and the Court was exactly five months after the JPT that was held before Himel J. on October 14, 2021. Defence counsel had advised Himel J. at the JPT that a s. 11(b) Application may be brought, “depending on the trial date”. As a result, the Crown and the Court made significant efforts to offer a “priority slot” to this case, which gave it real precedence in the pandemic backlog, because it was a serious case and because it was potentially in some s. 11(b) jeopardy. At the time of the JPT, in the fall of 2021, there were very few jury trials proceeding in the Superior Court in Toronto, because of pandemic restrictions. Indeed, jury trials were once again completely suspended on December 17. 2021. Over two months later, on February 28. 2022, jury trials resumed in Toronto. This was exactly two weeks before the “priority date” of March 14, 2022 that was offered to this case for a jury trial. See: R v. Agpoon, supra at paras.27-29 (and the attached Appendix); R. v. Buick and Marsh, 2023 ONSC 42 at paras. 39-36; R. v. Andrew, 2024 ONSC 607 at paras. 12-17; R. v. Nikiforos, 2024 ONSC 456 at paras. 12 and 20. All of these cases discuss the severely restricted access to jury trials in Toronto during this period, due to the pandemic. Mr. Brody’s earliest available date was July 11, 2022, during the summer sittings when fewer judges were available. There was nothing stated on the record by Mr. Brody as to why there was no availability in his calendar for this period of about nine months, from October 14, 2021 until July 11, 2022. Mr. Brody’s approach to “availability” in his calendar was to become clearer, once the October 3, 2022 trial date was reached, as will be discussed below. More importantly, Mr. Brody advised me that he is a member of a law firm in which there are three criminal litigators (some of whom appeared on this case from time to time in various roles). Nothing was stated on the record as to whether Mr. Brody and his law firm were willing to make efforts to rearrange their schedules in order to give this case priority, given its gravity and given its s. 11(b) jeopardy. As Schreck J. stated in Bowen-Wright, supra at para. 36, “Counsel’s calendars are not written in stone. Matters collapse and availability changes.” I agree with Schreck J. Especially in a law firm with three criminal litigators, there is usually flexibility between these three calendars, which often allows criminal defence firms to give a particular case priority. In my view, there is nothing in the record to indicate that Mr. Brody had understood and had incorporated the proactive, cooperative, and preventative change in culture that is expected and required in the post-Jordan world. See: R. v. Jordan, supra at paras. 5, 40-41, 86, and 137-139; R. v. Cody, supra at paras. 31-35; R. v. Albinowski, supra at para. 50; R. v. Bowen-Wright, supra at para. 22.
[24] In conclusion concerning this first period of delay in the Superior Court, the sole cause of the delay between March 14, 2022 (when the Court and the Crown were available on a “priority date”) and July 4, 2022 (when the summer sittings began and the Court had less availability), was defence counsel’s unavailability. During the July and August summer months, and during September 2022, the Court was unavailable. There was no explanation for Mr. Brody’s nine month period of unavailability or for his silence concerning the post-Jordan need to proactively cooperate and prevent delay by at least trying to rearrange the law firm’s calendars, especially given the challenges of the pandemic backlog and given the need to prioritize this case. In all the above circumstances, applying the approach set out in Hanan and Boulanger, I would characterize the three and a half month period from March 14, 2022 until July 4, 2022, as “defence delay”. The rest of the twelve and a half month period between committal on September 16, 2021 and the October 3, 2022 trial date should be included in the 30 month Jordan presumptive ceiling.
[25] In the result, by the time the case reached its first trial date on October 3, 2022, the total Jordan delay since the information was sworn on February 21, 2019 was approximately 43 and a half months. However, approximately 17 months was due to the “discrete event” delay in the Ontario Court of Justice and approximately three and a half months was due to “defence delay” in the Superior Court. These two periods must be deducted, leaving net Jordan delay of about 23 months. In other words, the case was still under the 30 month Jordan presumptive ceiling at this stage when it reached the first trial date on October 3, 2022.
(iv) The second period of delay in the Superior Court of Justice
[26] There is no ambiguity about what happened when this case reached its first scheduled trial date on October 3, 2022. The parties were both ready to proceed. They appeared in what has become known as “Trials in Holding Court”. Kelly J., a former leader of the criminal team, was presiding. The role of this Court is to assemble all the cases scheduled for trial in that week and determine which cases are ready for trial, which cases are discussing resolution, and which cases are not ready to proceed for any number of reasons (for example, due to unavailable witnesses, sickness of counsel, or the Crown simply reassessing its case). This phenomenon is known as the “collapse rate” and it has always existed in the criminal courts, at least in my experience over the last 45 to 50 years. After assessing the “collapse rate”, the usually experienced judge who is presiding in this Court (which starts at 9:00 a.m.) assigns those cases that are ready to proceed and that have not already been assigned to available judges, sends the cases that are discussing resolution to a further JPT, and orders the remaining cases to return the next day (when they may resolve or be unable to proceed, or when a further judge or judges may become available). This process repeats itself, usually over the first three days of every week.
[27] The corollary of the “collapse rate” on the day of trial, is that trial lists have historically been overbooked. There are almost always excess cases scheduled for trial in a given week because the reality is that a certain number of cases invariably “collapse”, either on the trial date, shortly before the trial date, or shortly after the trial date. As a result, trial scheduling involves some art and some science. Trial Coordinators and scheduling judges try to predict the likely “collapse rate”. In some weeks these predictions are accurate and in other weeks they are inaccurate. A properly functioning Court will have enough flexibility, in terms of available judges, so that a judge can be called upon to take up a case that has not collapsed and that has not been assigned. When the Court has no such flexibility, because of a shortage of judges, a case that is ready to proceed and that has not been assigned, will not be reached. In other words, the Court must have enough judges to try the cases that do not “collapse”.
[28] On Monday, October 3, 2022, Kelly J. inquired about “the Jordan status” of the Liu case and asked, “are there Jordan issues?” Mr. Brody replied, as follows: “As of right now, no … But they’re, Jordan is always an issue … But at the moment, we’re within the 30 months”. Kelly J. advised, “there’s not a judge available now” but asked the parties to return at 11:00 a.m. to see if other assigned cases had collapsed. When the parties returned later, Kelly J. advised, “There’s still no judge available for your matter” and asked the parties to return the next day.
[29] On Tuesday, October 4, 2022, the current criminal team leader, Forestell J. was presiding. She advised the parties as follows: “We do not yet have a judge for you, I’m afraid. We are doing our very best to see if someone can be located either in this jurisdiction or another. And so I apologize for the inconvenience to you, but I’m going to have you come back again tomorrow morning.”
[30] On Wednesday, October 5, 2022, Kelly J. was presiding. There were extensive discussions on the record on this date. I will set them out in some detail because they are important. Kelly J. advised that either she or Forestell J. could start the Liu trial if there was a re-election. Mr. Brody advised that there was no possibility of a re-election. Kelly J. then advised that “there is no court available today.” Mr. Snow stated, “The Crown is eager to have it proceed. I hope Mr. Brody is as well. Our witnesses were available. They will remain available next week even, if there were any hope.” Kelly J. asked the parties to speak to the Trial Coordinator “to see whether or not they can accommodate you starting [next week] on Tuesday.” At this point, Mr. Brody stated, “I have serious 11(b) concerns” and advised that the case was “42 months old”. Kelly J. asked, “Why weren’t these [s. 11(b) issues] raised on Monday, when things were being assigned?” Mr. Brody explained that he had simply stated that “as of right now, if the trial proceeds, we’re under the ceiling.” At this point, Kelly J. stated somewhat forcefully, “I think that maybe you should get in the queue for Tuesday then [next week], for a trial.” At this point, Mr. Brody stated that he had “other matters”. Kelly J. again intervened somewhat forcefully and told counsel to speak to the Trial Coordinator and see whether there was a judge available next week. She also asked Mr. Brody to “check your schedule and see if you can accommodate this … Let’s see if that’s available first [a judge next week]. And then we’ll talk about whether or not things can be rearranged on your schedule.” [Emphasis added].
[31] After speaking to the Trial Coordinator, the parties reappeared before Kelly J. On behalf of the Crown, Mr. Snow advised as follows: “We did hear back that they would be available to set this down again for seven days starting next Tuesday, October 11”. Mr. Snow stated that the Crown and its witnesses would be available next week. Mr. Brody then stated the following: “To start a seven day trial on the sixth day of the scheduled trial would cause a lot of chaos in my schedule. Specifically, I have a very serious sex assault at the end of this month involving two young complainants.” Kelly J. challenged Mr. Brody on this point, stating “What’s the end of the month though? If you start it [the Liu case] on October 11 … you’d be done by the 19.” Mr. Brody agreed but stated, “It’s a matter of preparation [of the case at the end of the month].” Mr. Brody also stated, “there’s no guarantee” the Liu trial would be reached next week. Kelly J. replied, “I’d make sure that you were given some priority.” Mr. Brody continued to stress concerns about preparing his other sexual assault case scheduled for the end of the month. He conceded that it was scheduled for trial on October 31st and if the Liu trial ended on October 19th there would still be eleven or twelve days to prepare for the next trial. His only other scheduled case during this period was a “drinking and driving” matter that “could certainly be rescheduled”. Nevertheless, he insisted that his preparation of the other sexual assault trial scheduled for October 31st would be prejudiced. He stated: “I have yet to even begin to prepare him or meet with him [the other client]. I have three scheduled prep meetings with him starting on the 12th, all the way up until his trial date … I would have to cancel essentially three preparation meetings with my client who has an incredibly serious matter at the end of the month … if I started this trial [the Liu matter], I’m afraid that I would be neglected in my preparation for a very important matter coming up at the end of the month. [Emphasis added].
[32] At this point, Kelly J. directed the parties to appear in Practice Court in order to obtain a new trial date. What immediately ensued was further efforts by the Crown to secure early trial dates. In a series of emails between October 5 and 7, 2022, Ms. Garrity obtained a number of “priority dates” from the other Superior Court administrative Crowns in the other Toronto boroughs. These dates were in October, November, and December 2022 and in February 2023. Mr. Brody responded by stating simply, “Not available for any of those dates.” He followed up by asking, “Is the court available for those dates?” Ms. Garrity responded, “To the best of my knowledge the dates are available to the court.” She also offered to explicitly confirm this for Mr. Brody and she received an email back from the Trial Coordinator confirming that the offered dates were available. There was nothing in Mr. Brody’s email explaining why he was unavailable or suggesting that he and his law firm were willing to try to rearrange their schedules, in order to accommodate an early trial date in the Liu case. [Emphasis added].
[33] On October 18, 2022, the parties appeared in Practice Court before Presser J. At this appearance, Ms. Garrity confirmed on the record that the early trial dates in October, November, and December of 2022 and February of 2023 had been offered to Mr. Brody but that the “earliest date … available to Mr. Brody’s schedule” was October 2, 2023. The Trial Confirmation Form similarly states that defence counsel’s “first available date” was October 2, 2023. The parties returned to Practice Court a month later, on November 15, 2022, to again address the possibility of earlier trial dates. Ms. Garrity stated, “I was in communication with Mr. Brody to see if he could provide earlier dates, because this October [2023] date was set based on his schedule, and he’s advised me that he does not have any earlier dates.” Counsel from Mr. Brody’s office confirmed, “my instructions are similar to what my friend stated, Mr. Brody does not have earlier dates currently.” On both of these appearances in Practice Court, there was once again no explanation for Mr. Brody’s unavailability and no suggestion made that Mr. Brody and his law firm would be willing to try to rearrange their schedules in order to accommodate an early trial date in the Liu case. [Emphasis added].
[34] On the above factual record, there are two legal issues in dispute: first, the characterization of delay due to a shortage of judges; and second, delay due to defence counsel’s unavailability. This second legal issue in dispute turns on whether any portion of the 12 month period of delay from October 5, 2022 (when the first trial date did not proceed) until October 2, 2023 (when the second trial date was scheduled to proceed) should be characterized as “defence delay”. The relevant legal principles relating to defence counsel’s unavailability during this period have already been set out above, based on more recent cases like Hanan, Boulanger, Albinowski, and Bowen-Wright. I need not repeat them.
[35] Many of the circumstances that are relevant to the assessment of defence counsel’s unavailability during this second period of delay in the Superior Court are similar to the circumstances previously discussed above in relation to the first period of delay in the Superior Court. However, there are also important differences. First of all, Mr. Brody’s earlier period of unavailability was for a somewhat shorter nine month period. On this subsequent occasion, his unavailability was for a longer twelve month period. In this regard, see R. v. Bowen-Wright, supra at para. 42. Second, Mr. Brody offered at least one date on the earlier occasion (July 11, 2022) that was within the 30 month Jordan presumptive ceiling, albeit the date offered was during the summer sittings and it was unavailable to the Court. On this subsequent occasion, Mr. Brody offered no dates that were within the 30 month ceiling. In other words, the case was now in greater s. 11(b) jeopardy and Mr. Brody’s lack of availability was becoming worse. Once again, there was no hint or suggestion that Mr. Brody and his law firm were willing to participate in the new post-Jordan culture of trying to proactively and cooperatively reduce and prevent delays in the justice system. In this regard, Mr. Brody’s conduct stands in marked contrast to the conduct of defence counsel in R. v. Bowen-Wright, supra at para. 46, of defence counsel in R. v. Alli, infra at paras. 5-6 and 11, and of defence counsel in R. v. Constantino, infra at paras. 58 and 143, who all actively made efforts to prevent looming trial delays in cases which similarly involved unavailable judges. Furthermore, the Court was now offering a significant number of early trial dates and Mr. Brody was unavailable on all of these dates, with no explanation for his unavailability. In this regard, see R. v. Albinowski, supra at paras. 31-35.
[36] The one new factor that is most damaging to the Applicant Liu is that there is now evidence in the record concerning the reasons for Mr. Brody’s unavailability (at least on the one occasion where he addressed this issue). Kelly J. and the Crown worked diligently to make a judge available to commence the Liu trial on October 11 and to conclude the trial by October 19, 2022. Mr. Brody rejected this offer because he was of the view that 11 or 12 days out of court after the anticipated end of the Liu trial would be insufficient time to prepare for his next sexual assault trial, which was scheduled to begin on October 31, 2022. Kelly J. did not accept this explanation, nor do I. Mr. Brody’s submissions before Kelly J. were patently unreasonable. He described the trial preparation schedule that would result from Kelly J.’s proposed new trial date for the Liu case as “chaos”. He also stated that he would have to “cancel” his preparation meetings with his client in the upcoming October 31 trial and that his trial preparation would be “neglected”. I challenged Mr. Brody, during oral argument, as to the good faith of the position he took before Kelly J. He could not add any new insight concerning why he claimed to be “unavailable” for the present trial, if it was rescheduled during the October 11 to 19, 2022 time period. I am satisfied that 11 or 12 full days out of court, after the conclusion of the Liu trial, would have allowed sufficient time to reschedule Mr. Brody’s three trial preparation meetings with his client and it would have allowed Mr. Brody to be fully prepared for his client’s sexual assault trial. There was simply no reasonable explanation for Mr. Brody’s refusal to accept the October 11, 2022 trial date offered by Kelly J. and the Crown.
[37] All of the above circumstances satisfy me that Mr. Brody’s conduct at this stage exhibited a “marked indifference toward delay” and amounted to “illegitimate defence conduct”, as those terms were explained by the unanimous Court in R. v. Cody, supra at paras. 31-35:
The determination of whether defence conduct is legitimate is “by no means an exact science” and is something that “first instance judges are uniquely positioned to gauge” (Jordan, at para. 65). It is highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. While trial judges should take care to not second-guess steps taken by defence for the purposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate to do so.
Defence conduct encompasses both substance and procedure — the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.
As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extend to omissions as well as acts (see, for example in another context, R. v. McQuaid, 1998 805 (SCC), [1998] 1 S.C.R. 244, at para. 37). Accused persons must bear in mind that a corollary of the s. 11(b) right “to be tried within a reasonable time” is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to “actively advanc[e] their clients’ right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and . . . us[e] court time efficiently” (Jordan, at para. 138).
This understanding of illegitimate defence conduct should not be taken as diminishing an accused person’s right to make full answer and defence. Defence counsel may still pursue all available substantive and procedural means to defend their clients. What defence counsel are not permitted to do is to engage in illegitimate conduct and then have it count towards the Jordan ceiling. In this regard, while we recognize the potential tension between the right to make full answer and defence and the right to be tried within a reasonable time — and the need to balance both — in our view, neither right is diminished by the deduction of delay caused by illegitimate defence conduct.
We stress that illegitimacy in this context does not necessarily amount to professional or ethical misconduct on the part of defence counsel. A finding of illegitimate defence conduct need not be tantamount to a finding of professional misconduct. Instead, legitimacy takes its meaning from the culture change demanded in Jordan. All justice system participants — defence counsel included — must now accept that many practices which were formerly commonplace or merely tolerated are no longer compatible with the right guaranteed by s. 11(b) of the Charter. [Italics in the original; underlining added for emphasis].
[38] Turning to the second legal issue in dispute in relation to this period of delay, namely, delay due to a shortage of judges, this is the one new factor that favours the Applicant Liu. In my view, the immediate precipitating cause of this second period of delay in the Superior Court was the lack of available judges in the week of October 3, 2022. There are unjustified systemic reasons for this shortage of judges. The failure of the federal government to fill vacancies on the Superior Court, in a timely way, has been discussed by my three colleagues Forestell J. in R. v. Alli, 2023 ONSC 5829, Schreck J. in R. v. Bowen-Wright, supra, and P. Campbell J. in R. v. Constantino, 2024 ONSC 491. I adopt their reasoning on this point and have little to add.
[39] The Supreme Court of Canada decided Jordan in 2016 and made it clear that the government’s neglect of essential “resource issues” related to s. 11(b) was “constitutionally impermissible”. As the majority of the Court put it (Jordan, supra at para. 117):
We are aware that resource issues are rarely far below the surface of most s. 11(b) applications. By encouraging all justice system participants to be more proactive, some resource issues will naturally be resolved because parties will be encouraged to eliminate or avoid inefficient practices. At the same time, the new framework implicates the sufficiency of resources by reminding legislators and ministers that unreasonable delay in bringing accused persons to trial is not merely contrary to the public interest: it is constitutionally impermissible, and will be treated as such. [Emphasis added].
[40] The Minister of Justice must have known that the new Jordan framework for s. 11(b) analysis was less flexible and less forgiving than the old Askov and Morin framework and that the new presumptive ceilings gave the courts much less margin for error. At the same time, rapid unprecedented population growth and increases in certain serious crimes placed increased demands on the Superior Court, particularly in large urban centres like Toronto. Finally, the significant pandemic backlog created an entirely new pressure on the workload of the court. The government must have been aware of these significant new pressures. In all these circumstances, the intransigent ongoing failure to fill judicial vacancies in a timely way is inexplicable and inexcusable. As stated above, the immediate precipitating cause of the delays that occurred from October 3 to 5, 2022, was the systemic failure of the federal Cabinet to appoint judges. As I understand the current state of the law, this one factor, standing alone, would require apportioning of responsibility for the 12 month period of delay from October 5, 2022 until October 2, 2023. See: R. v. Boulanger, supra at paras. 8-9; R. v. Hanan, supra at para. 7 (S.C.C.); and R. v. Hanan, supra at paras. 57-59 (Ont. C.A.). Having said that, Mr. Brody could have immediately mitigated almost all of this delay by reasonably agreeing to Kelly J.’s and the Crown’s efforts to reschedule the trial for October 11, 2022.
[41] In all the above circumstances, a “fair and reasonable” apportionment of this 12 month period of delay in the Superior Court, as required by Boulanger and Hanan, is to attribute one third or four months to the systemic failure of the federal government and two thirds or eight months to “defence delay”. In the result, by the time the case reached its second trial date on October 2, 2023, the total Jordan delay since the information was sworn on February 21, 2019 was now just over 55 months. However, the 17 month “discrete event” in the Ontario Court of Justice and the two periods of “defence delay” in the Superior Court (three and a half months and eight months), meant that the net Jordan delay was now approximately 27 months. In other words, the trial could still have proceeded within the 30 month Jordan presumptive ceiling at the time when it reached the second trial date on October 2, 2023.
(v) The third and last period of delay in the Superior Court of Justice
[42] The second trial date had originally been scheduled for Monday, October 2, 2023. However, judges of the Court were directed not to sit that day, in order to respect the National Day for Truth and Reconciliation. In addition, the following Monday, October 9, 2023 was Thanksgiving Day. As a result, both weeks scheduled for the Liu trial were short four day weeks. The seven day trial was effectively scheduled to run from Tuesday, October 3, 2023 until Thursday, October 12, 2023.
[43] The parties appeared on Tuesday, October 3, 2023 before Forestell J. who was presiding in “Trials in Holding Court”. She advised as follows: “as with the last matter, we do not have a judge for you today. We are hopeful that maybe we’ll have a judge by tomorrow.” She asked the parties to appear the next day.
[44] On Wednesday, October 4, 2023, Forestell J. advised the parties: “we do not have a judge for this case.” Mr. Brody then stated the following: “I can advise that this is the second time this matter’s been up … my perspective is that tomorrow [Thursday] would be sort of the cut-off date, being that it’s a seven day trial …. If it would start on Friday even at best, there’s no way that I think it would finish by the end of next week. And then I have trials the week after … I’m hoping that we can get a courtroom tomorrow.” On behalf of the Crown, Mr. Snow stated that he was “eager to have this matter heard … there is some delay jeopardy, given how outdated it’s become. It's a very serious matter with a complainant who wishes to have it heard in court.” Forestell J. replied that she was “very conscious of the delay and the impact it’s having on all the participants. Unfortunately, we simply don’t have enough judges to hear these cases.” She noted that there were three juries out deliberating in the Court House and she hoped that one of these judges might become available tomorrow. [Emphasis added].
[45] On Thursday, October 5, 2023, the parties again appeared before Forestell J. She advised: “we don’t have a judge available. I’m very sorry.” Mr. Brody advised that there would likely be a s. 11(b) Application because “this is now the second trial date that hasn’t been reached.” Mr. Snow stated that the Crown would “prioritize this” and was “prepared to go into the trials in holding … next Tuesday … we’ll do everything we can to offer dates this fall and to prioritize this.” Mr. Brody replied: “I’m going to try to do the same. Obviously, my goal is not to bring a s. 11(b) Application. My goal is to have this trial heard in a timely fashion. However … the courts have talked about perpetual availability. Obviously, I can’t be available in a week or two from now, I have a schedule that requires … my attention to other clients. However, again, I will do everything that I can to try and accommodate this trial as quickly as possible. And I guess that’s something that my friend and I can do between the two of us.” The case was then remanded to Tuesday, October 10, 2023 in Practice Court. [Emphasis added].
[46] Over the next three days, prior to the scheduled Practice Court appearance, the parties exchanged an important series of emails about the new trial date, as follows:
• On the afternoon of the final appearance before Forestell J., on October 5, 2023, Ms. Garrity advised Mr. Brody that the Crown was available during three large blocks of time in October to November 2023, in November to December of 2023, and in January of 2024. Each block of time was about a month. Ms. Garrity also stated, “I understand that there is court availability for all of these weeks” subject to “final approval” with the Trial Coordinator;
• Mr. Brody replied that same day: “I’m not available on any of those dates. Defence lawyers are not to be held in perpetual availability. We’ll have to canvass dates further down the road, as well as an 11(b) date” [Emphasis added];
• Mr. Brody followed up with another email that same day asking about Crown counsel’s availability: “Are you telling me that Ben Snow is available for all of those dates?”
• Ms. Garrity replied that Mr. Snow’s “schedule will be reorganized to accommodate the dates offered” and that the case “would be reassigned” for one particular December date if Mr. Snow was not available;
• Mr. Brody then replied, “I am not available for those dates.” This was the last email on October 5, 2023 [Emphasis added];
• The next day, October 6, 2023, Ms. Garrity sent an email to Mr. Brody advising of a large number of additional dates when the Crown was available. They were all “further down the road”, as Mr. Brody had requested. The five additional blocks of time were as follows: two weeks in early February 2024; two weeks in early March 2024; nine days in late April and early May 2024; two weeks in late May 2024; and 25 days in June 2024. Ms. Garrity stated: “To the best of my knowledge, there is court time available on all of these dates at this time”;
• Mr. Brody replied that same day asking the following: “Are you telling me that the Court has now been unavailable on two occasions to hear this matter and now will be available that many dates for the third trial? I want confirmation that the court is available for all of those dates” [Emphasis added];
• In response, Ms. Garrity exchanged emails the next day (October 7, 2023) with the Trial Coordinator confirming the Court’s availability in the five additional blocks of time between early February and late June 2024. These emails also confirmed the Court’s availability in the three earlier blocks of time between mid-October 2023 and late January 2024;
• Mr. Brody was copied on these October 7, 2023 emails. Although the emails were in response to his request for “confirmation” that the Court was available during the eight blocks of time being offered by the Crown, he did not respond during October 7, 8, or 9, 2023 [Emphasis added].
[47] On October 10, 2023, the parties appeared in Practice Court, pursuant to Forestell J.’s remand, in order to set a new date for trial. Spies J. was presiding. Ms. Garrity advised that she had confirmed with Mr. Brody, pursuant to his request, that “all of the dates that I had provided to him … were also available to the court.” She then stated, “we’re not in a position to be able to set the trial date today because we have not received Mr. Brody’s available dates.” Counsel appearing for Mr. Brody stated, “Yes, and that’s all correct.” Accordingly, the case was remanded for another week in order to obtain Mr. Brody’s available dates and then set the new trial date in Practice Court [Emphasis added].
[48] A further chain of emails ensued on October 10, 2023, shortly after the above appearance in Practice Court. The Trial Coordinator again offered an early trial date on November 14, 2023. Mr. Brody replied, “I’m available on August 26, 2024. I would also like an 11(b) date.” Ms. Garrity responded, stating that the Crown was available on Mr. Brody’s suggested August 26, 2024 date, although it was in the summer sittings. Ms. Garrity also offered a number of dates for the s. 11(b) Application. There was also discussion about potential dates in the fall of 2024. Finally, Mr. Brody sent an email stating, “I believe I will have the week of June 10th [2024] available.” This eventually led to an exchange of emails on October 17, 2023 in which both Mr. Brody and the Crown confirmed their availability for trial on June 10, 2024 as the new trial date [Emphasis added].
[49] The Trial Confirmation Form is generally consistent with the above history. It states that the Crown’s first available date was October 10, 2023, that the Court’s first available date was November 27, 2023, and that Mr. Brody’s first available date was June 10, 2024. [Emphasis added].
[50] This final period of delay in the Superior Court, from October 5, 2023 (when the second scheduled trial date did not proceed) until June 10, 2024 (the new trial date), is just over eight months. The legal principles that apply to the proper characterization of this period of delay have been set out above, when analysing the two previous periods of Superior Court delay. Many of the same circumstances that characterized the two earlier periods of Superior Court delay continued to apply. However, there were also some differences.
[51] The first important difference is that the systemic failure of the federal government to fill judicial vacancies in a timely way had now continued for another full year. In other words, the government had knowingly allowed the Court to continue without its full judicial complement during an unprecedented crisis of rapid population growth, increasing numbers of certain serious crimes, and a pandemic backlog. The judgement of Forestell J. in R. v. Alli, supra at paras. 18-25, was written in late 2023 and it was released on December 11, 2023. She described the situation in the Court between April and December 2023, that is, during this same final period of delay that is at issue in the Liu case. She stated the following, which I adopt:
This jurisdiction has a very high volume of serious and complex cases. The volume of cases in this jurisdiction has increased appreciably in recent years. As noted by Molloy J. in R. v. R.D., Toronto has a higher percentage of complex trials and long trials than other jurisdictions. There are more homicide trials in Toronto than in any other jurisdiction in Canada. There are also more large ‘project’ cases in Toronto than in other jurisdictions. The ‘project’ cases can involve hundreds of accused and multiple, complex applications. The length and complexity of trials has increased with no increase in the number of judges and no increase in the number of courtrooms.
In addition, this jurisdiction continues to deal with a backlog of cases created by the suspension of jury trials for a total of approximately 11 months during periods of the COVID-19 pandemic. While the last jury suspension ended about twenty months ago, the completion of backlogged trials in addition to the normal caseload has created ongoing systemic delay.
In April of 2023 when this trial was not reached because there was no judge available to hear it, this jurisdiction had seven judicial vacancies. There are still seven vacancies in this jurisdiction. The number of vacancies has remained essentially unchanged for at least a year.
On May 3, 2023, 20 days after this trial was not reached because of a lack of judicial resources, Chief Justice Wagner expressed his concern about the chronic shortage of federally appointed judges. He pointed out that courts were operating with 10 to 15 per cent of their judicial positions vacant. These comments are applicable to this jurisdiction.
Had the judicial positions in Toronto been filled, this case and others would not have been delayed.
Judges of this Court are working at capacity. It is common for judges on the criminal team in Toronto to work through scheduled non-sitting weeks and even through vacation weeks to attempt to ensure that trials are heard in a timely fashion. All participants in the process have done everything possible to avoid delay. This case has taken longer than it should have because this court lacked the judicial resources to hear the case in a timely manner. [Emphasis added].
[52] In my view, it was unacceptable for the federal government to have ignored the May 2023 written warning from the Chief Justice of Canada, set out above in R. v. Alli, supra. This kind of stubborn institutional refusal to respond to a crisis in the justice system is inexcusable and it is “constitutionally impermissible”, as the Supreme Court put it in Jordan, supra at para. 117.
[53] The second possible difference from the earlier periods of delay is that Mr. Brody was now using the language of the new post-Jordan culture, at least during one appearance before Forestell J. on October 5, 2023. I have underlined the more important passages above, for emphasis, where Mr. Brody agreed with the Crown to “prioritize” the case and to do “everything that I can to try to accommodate this trial as quickly as possible.” Unfortunately, Mr. Brody’s actions were not consistent with these words. The tone and content of his scheduling emails with the Crown was aggressive, adversarial, rigid, and uncooperative. They also give the appearance of a lawyer who was trying to build a s. 11(b) record, as opposed to a lawyer who was trying to prevent delay. He was preoccupied with proof or “confirmation” of the court’s availability. He was firmly “unavailable” on the numerous blocks of time that were offered by the Court and the Crown for an early trial. He never responded with a willingness to try to rearrange his schedule, for example, by working with the members of his law firm and with all their calendars, in order to give the Liu case priority. He never explained why he was consistently and firmly “unavailable” for another lengthy eight month period of time. The closest he came to any such explanation was when he told Forestell J., “I have trials the week after”, in reference to the week of October 16, 2023. He did not elaborate as to whether these “trials” were, for example, drinking and driving cases that could easily be adjourned if he had started a serious Superior Court jury trial on October 10, 2023 and that trial was continuing, which is what the Crown was suggesting. Once again, Mr. Brody’s conduct stands in stark contrast to those cases where defence counsel’s unavailability on a particular date has been found to be reasonable. For example, in R. v. Safdar, supra at para. 50, Feldman J.A. stated the following on behalf of the Court:
In my view, based on the trial judge’s factual findings, he was entitled to conclude that this period of delay was not solely or directly caused by the defence. First, and importantly, the April dates were offered as continuation dates in the midst of the ongoing trial. The inadequacy of the trial estimate was therefore part of the cause of the delay. Second, these dates were offered on relatively short notice. Third, as the trial judge found, defence counsel had agreed to all other dates that were offered, including other dates offered with little notice. The April dates were the only exception. Finally, defence counsel had legitimate reason to decline these continuation dates. One counsel was booked on a serious Superior Court matter for a client who was in custody, while another was scheduled for medical treatment. The trial judge appropriately recognized that counsel could not, in good faith, “compromise one client’s interests for another”. [Emphasis added].
[54] In my view, Mr. Brody’s conduct continued to display the kind of “marked inference to delay” and “illegitimate defence conduct”, as described by the Supreme Court in Cody, supra at paras. 31-35. That conduct contributed significantly to this final eight month period of delay in the Superior Court, together with the federal government’s ongoing and aggravated failure to appoint judges in a timely way.
[55] Applying the “contextual approach” to apportioning this period of delay, as described in Hanan and in Boulanger, I would divide it equally between the above two causes of delay. In other words, one half or about four months should be deducted from the total Jordan delay as “defence delay”. The remaining half or approximately four months of delay should be included when calculating compliance or non-compliance with the 30 month Jordan presumptive ceiling. As a result, the net Jordan delay when the presently scheduled trial concludes will be approximately 31 months.
D. CONCLUSION
[56] When analysing the above five periods of delay in this case, I have used rough approximations of the net Jordan delay, as each of the five periods progressed. These approximations have been expressed in months. It can be seen that the result of this analysis is that the net Jordan delay will be approximately 31 months when the presently scheduled trial concludes on June 18, 2024.
[57] Given that the approximate period of net delay is just over the 30 month Jordan ceiling, out of an abundance of caution, I have done a more detailed calculation of the net delay using days rather than months. That more detailed calculation is as follows:
• The first period of delay is the intake period. It extended from February 21 until August 27, 2019. As explained above (at paras. 8-11), this entire period is included in the 30 month Jordan ceiling. It is a total of 188 days;
• The second period of delay is the time spent in the Ontario Court of Justice, between the JPT on August 27, 2019 until committal for trial on September 16, 2021. As explained above (at paras. 12-16), this period of delay is separated into two distinct parts. The time from the JPT on August 27, 2019 until the April 14, 2020 date set for the preliminary inquiry is included in the 30 month Jordan presumptive ceiling. It is a total of 231 days. The remainder of this period, from April 14, 2020 (when the preliminary inquiry did not proceed) until the committal on September 16, 2021, is “discrete event” delay due to the pandemic and it is not included in the 30 month Jordan presumptive ceiling;
• The third period of delay is the time spent in the Superior Court of Justice, between the committal on September 16, 2021 and the first trial date on October 3, 2022. As explained above (at paras. 17-25), after deducting the “defence delay” between March 14, 2022 and July 4, 2022, this period should be included in the 30 month Jordan presumptive ceiling. It is a total of 271 days;
• The fourth period of delay is the time spent in the Superior Court of Justice between October 3, 2022 (when the first trial date did not proceed) and the second trial date on October 2, 2023. As explained above (at paras. 26-41), this 364 day period was apportioned such that two thirds was “defence delay”. As a result, one third of this period is included in the 30 month Jordan presumptive ceiling. It is a total of 121 days; and
• The fifth period of delay is the time spent in the Superior Court of Justice between October 3, 2023 (when the second trial date did not proceed) and June 18, 2024 (when it is anticipated the third scheduled trial period will conclude). As explained above (at paras. 42-55), this 260 day period was apportioned such that one half was “defence delay”. As a result, one half of this period is included in the 30 month Jordan presumptive ceiling. It is a total of 130 days.
[58] The five periods of delay set out above, that are included in the 30 month Jordan presumptive ceiling, total 941 days. This is clearly over the 30 month presumptive ceiling, which is 913 days. As a result, the s. 11(b) Application is allowed and the trial proceedings in this case are stayed pursuant to s. 24(1) of the Charter.
[59] I cannot leave this Application without saying, in conclusion, that it is an embarrassment to the administration of justice that this serious “priority” case, involving alleged sexual abuse of a child, cannot be tried in accordance with the constitutional standard of trial “within a reasonable time”.
M.A. Code J.
Released: April 5, 2024
COURT FILE NO.: CR-23-30000629-0000
DATE: 20240405
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
Respondent
– and –
GUO-XIONG LIU
Applicant
REASONS FOR JUDGMENT on section 11(b) charter application
M.A. Code J.
Released: April 5, 2024