Court File and Parties

COURT FILE NO.: CR-22-20 DATE: 2024 04 30 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: His Majesty the King J. Rice, for the Crown/ Respondent

– and –

H.S. R. Shankar, for the Accused/ Applicant H.S.

HEARD: April 25, 2024

REASONS FOR DECISION - SECTION 11(B) CHARTER APPLICATION

I. The Charges

[1] The accused/applicant, Mr. H.S. (the initials have been altered for publication purposes), is charged with some twenty criminal offences – multiple counts of assault, multiple counts of sexual assault, multiple counts of human trafficking, multiple counts of procuring, assault with a weapon, assault causing bodily harm, sexual assault causing bodily harm, and other offences.

[2] The alleged victims are the accused’s long-time domestic partner and her children, some of whom are the biological children of the accused as well.

II. The Application

[3] H.S. applies for an order staying all of the charges against him under section 24(1) of the Charter, on the basis that his right to be tried within a reasonable time, pursuant to section 11(b) of the Charter, has been infringed.

III. The Total Delay between the Charge and the Conclusion of the Trial

[4] H.S. was arrested on March 25, 2021. The Information was sworn on the same date.

[5] There is no fixed trial date scheduled in this case. H.S. has elected to be tried in the Superior Court of Justice with a judge and jury.

[6] In Grey and Bruce Counties, which include Owen Sound, criminal cases are not assigned fixed trial dates. This Court knows that because (i) outside Brampton, elsewhere in the Central West Region, which includes Grey and Bruce Counties, I conduct the judicial pretrials and manage the criminal cases, and (ii) between the end of 2011 and mid-2018, I was the Local Administrative Judge for the Superior Court of Justice in Grey and Bruce Counties.

[7] Rather than have fixed trial dates for criminal matters in the Superior Court of Justice in Grey and Bruce Counties, cases are placed on trial sittings – blocks of time throughout the year. Individual cases are targeted to be heard during a particular sittings, and the Crown is in control of calling the list for each sittings.

[8] Here, in the Jordan analysis, the two sides disagree on what date to use for the conclusion of the trial. The defence suggests that the end date should be January 15, 2025, although the materials filed by the defence and the oral submissions advanced by counsel for the accused do not explain why that date is suggested other than to say that it is “assumed” to be the completion date of the trial (see paragraph 3 of the defence factum). The Crown suggests that the end date should be October 25, 2024. In support of that date, the Crown has filed the calendar of criminal sittings for Superior Court of Justice matters in Owen Sound, which calendar includes a block of time between October 7 and October 25, 2024. I note that the said block of time is sufficient to try this case; I know that because my Endorsement from the judicial pretrial conducted on December 11, 2023 states that 10 days are estimated for the jury trial. The Crown states further that this case is targeted for the October 2024 sittings, and the Crown fully intends to try the case during those sittings so that it concludes by October 25th (see paragraph 6 of the Crown’s factum).

[9] In my view, the more appropriate date to use for the completion of the trial is that suggested by the Crown – October 25, 2024. I repeat, it is the Crown that calls the list.

[10] Thus, this Court finds that the period of total delay between the charge date (March 25, 2021) and the anticipated last day of trial (October 25, 2024) is 43.14 months (1312 days divided by 30.417).

[11] The period of total delay exceeds the presumptive ceiling (30 months) by more than 13 months. The presumptive Jordan date was September 25, 2023.

IV. The Positions of H.S. and the Crown

[12] H.S. takes the position that there is no defence delay in this case and no exceptional circumstances. In other words, the period of total delay is what governs the analysis. There is nothing to deduct to arrive at a calculation of the period of net delay or remaining delay.

[13] H.S. argues that the Crown is stuck with the position that it took in its pretrial conference report (Form 17) when the case was first pre-tried in the Superior Court of Justice. In that report, the Crown indicated that the net Jordan date was April 25, 2024.

[14] Finally, H.S. submits that court decisions like R. v. Agpoon, 2023 ONCA 449 are of very limited application in this case because much of the time period that has elapsed since March 25, 2021 has been after the height of the COVID-19 pandemic and the resulting shutdowns.

[15] The Crown, on the other hand, submits that the period of total delay in this case is 43.12 months; and from that should be deducted 180 days or 6 months on account of defence delay; and from that resulting figure should be deducted a further 14 months for exceptional circumstances; with a final figure of 23.22 months – well below the Jordan ceiling of 30 months.

[16] As for what appears to be the most significant argument made by the defence, repeated several times by counsel for the accused in his oral submissions on the application, that is the alleged binding nature of what the Crown indicated previously in a Form 17, the Crown submits that it cannot reasonably be bound by that position because that report pre-dated Agpoon, supra and because it is well-recognized by all concerned (and was recognized by the judge presiding at the judicial pretrial in question, Justice Durno) that the report was completed without the benefit of the official record including transcripts of the many court attendances in the Ontario Court of Justice.

V. The Questions to be Answered

[17] As is evident from the above, there are four questions to be answered:

(i) is the Crown bound by what it indicated previously in its Form 17, in terms of the net Jordan date; (ii) whether any defence delay ought to be deducted from the period of total delay; (iii) whether any further delay attributed to exceptional circumstances ought to be subtracted from the net delay; and (iv) whatever the final calculation of remaining delay is determined to be, whether that is unreasonable, keeping in mind the different onuses of proof depending on whether the remaining delay is above or below the presumptive 30-month ceiling.

[18] These last three questions are consistent with the approach set out by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, summarized at paragraphs 34-41 of the decision of the Court of Appeal for Ontario in R. v. Coulter, 2016 ONCA 704.

VI. Question Number One – the Form 17 Issue

[19] On this question, the Court agrees with the Crown.

[20] This Court has had occasion to rule on this type of argument previously, although in a very different context. The following is taken from this Court’s decision in Her Majesty the Queen v. Bemister, 2016 ONSC 6375, a case where the accused was facing numerous narcotics offences, at paragraphs 3 through 15 and paragraph 26.

[3] In September 2015, Durno J. and counsel conducted a pretrial conference. At that time, the Crown clearly took the recorded position that it would not be relying upon any statement/utterance made by the accused to the police as part of its case but rather would seek a ruling as to admissibility only for purposes of potential use in cross-examination of Mr. Bemister at trial.

[4] The Crown concedes that.

[5] On August 2, 2016, the Crown sent an email to Defence counsel which stated, in part, the following: “ I forgot about some of the utterances your client makes to police re his medication after his arrest. I wish to have those admitted and I know that I need to notify you about that. I have also reconsidered your client’s statement and wish to have that admitted as part of the Crown’s case. Do you want to have another JPT?”.

[6] The Crown cannot prove that Mr. Cugelman received that email. It was never responded to. Mr. Cugelman indicates that he never read it; if he had, he surely would have replied to such a significant change in the Crown’s position. I accept that.

[7] Should the Crown now be permitted to admit as part of its case at trial the utterances/statement made by Mr. Bemister to the police? That is the question that counsel argued at Court on October 12th.

II. Analysis

[8] I commend Ms. Barefoot for being candid with the Court.

[9] Clearly, the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) have not been complied with by the Crown. That is conceded.

[10] Subrules 28.04(11) and (12) provide as follows.

Changes of Position

(11) If either party changes any position taken and recorded on the pretrial conference report, the party must provide written notice of the change to the other parties and the Superior Court trial coordinator and arrange for a further pre-trial conference as soon as practicable, and serve and file any notices, records, facta, books of authorities or other materials required by these rules.

(12) Failure to comply with subrule 28.04(11) may result in any application resulting from a change in position not being heard by the trial judge.

[11] At most, the Crown met only one of the requirements outlined in subrule (11) – providing written notice of the change in position to opposing counsel. The trial coordinator was not advised. A further pretrial conference was not arranged. Nothing was filed by the Crown with the Court.

[12] All of that is conceded by Ms. Barefoot.

[13] The Crown, however, relies on the decision in R. v. S-R. (J.) (2008), 2008 ONSC 92004, 237 C.C.C. (3d) 326 (Ont. S.C.J.).

[14] With respect, that decision does not assist the Crown. That decision speaks about the potential for allowing the Crown to resile from a previously recorded position where there exists some compelling explanation for the change.

[15] No such compelling explanation exists here.

[26] For these reasons, after carefully balancing the competing interests, I ruled at Court on October 12, 2016 that the Crown must maintain its position as recorded at the pretrial conference and cannot now introduce the utterances/statement made by Mr. Bemister to the police as part of its case at trial.

[21] In our case, unlike in Bemister, supra, there are compelling reasons why the Crown ought not to be held to its position taken in a prior Form 17, in terms of the net Jordan date. That position was taken without the benefit of any court transcripts, which transcripts would have been crucial to determining whether there was any defence delay. That position was also taken without the benefit of the decision of the Court of Appeal for Ontario in Agpoon, supra, which decision is instructive on how to deal with the COVID-19 pandemic as an exceptional circumstance to be accounted for in the overall Jordan analysis.

[22] In addition, it would be grossly unfair to accept the defence argument on this point because this Court has found in the electronic court file the Form 17 completed by the defence in May 2023, which report, at section 6, is blank as to whether a stay application for a breach of section 11(b) of the Charter would be brought. And, further, this Court has found in the electronic court file the subsequent Form 17 completed by the defence in December 2023, which report, at section 6, answered “no” to the question of whether a stay application for a breach of section 11(b) would be brought.

[23] Finally, the point of the Criminal Proceedings Rules highlighted in the Bemister, supra decision is to avoid trial (or, in this case, application) by ambush. There could not have been any surprise here that the Crown was contesting the 11(b) application on the basis that the remaining delay fell below the 30-month ceiling. The specific issue of the 11(b) application was pre-tried before it was filed, and this Court’s Endorsement of December 11, 2023 clearly stated that the presumptive Jordan date (in September 2023) had expired, and thus, the defence, if it intended to bring an 11(b) application, could file that application as it saw fit. The Court’s Endorsement made no mention of any net Jordan date, and understandably so, as that would inevitably be a part of the debate on the hearing of the 11(b) application.

[24] The Criminal Proceedings Rules applicable here are about fairness. There has been no unfairness to H.S. as a result of the Crown taking a different view about the Jordan analysis than it appeared to take in the Form 17 relied upon by the accused.

[25] In fact, on the 11(b) application, as outlined above, both sides have changed their positions. Just as the accused would not want this Court to summarily dismiss the application because it was not always indicated previously that it would be brought, I am not about to grant the application simply because of what the Crown wrote on a pretrial conference report in terms of the net Jordan date.

VII. Question Number Two – Defence Delay

[26] On this question, the Court agrees with the Crown that some of the six-month period between February 28, 2022 and August 25, 2022 ought to be characterized as defence delay and should be deducted from the period of total delay.

[27] Some of that six-month period was, in my opinion, “delay caused solely by the conduct of the defence”, one of the two types of defence delay that must be deducted from the period of total delay in order to determine the period of net delay. Jordan, supra, at paragraphs 61 and 63; R. v. J.P., 2021 ONCA 866, at paragraph 7.

[28] Note that this Court has employed the words “some of that six-month period”. I do not agree with the Crown that the whole six months ought to be deducted as defence delay.

[29] Of those six months, the second block of time that will be deducted as defence delay is the period of time between June 1, 2022 and August 25, 2022. June 1, 2022 was the date that both the Ontario Court of Justice and the Crown were ready, willing, and able to complete the preliminary inquiry, but the defence was not available to even start the preliminary inquiry until after August 2022. August 25, 2022 was the date that the defence decided to waive the preliminary inquiry that had been scheduled to start on September 7, 2022 and consent to committal to stand trial in the Superior Court of Justice on all counts. On the basis of the decision of the Supreme Court of Canada in R. v. Thanabalasingham, 2020 SCC 18, at paragraph 9, the nearly 3 months of time between June 1 and August 25, 2022 must be characterized as defence delay.

[30] Of those six months, the earlier block of time that will be deducted as defence delay is the period of time between March 23, 2022 and May 31, 2022. That more than two-month period must also be characterized as defence delay. By March 23rd, the case had already been in the system for many months. There had already been several court attendances. There had already been a judicial pretrial conference in the Ontario Court of Justice (on February 25, 2022), at which time the defence confirmed that disclosure was complete and flagged a potential application under sections 276 and/or 278 of the Criminal Code. Yet, despite those facts, on March 23rd, when the preliminary inquiry dates were set, no mention was made by the defence of any 276/278 application. On May 19, 2022, Justice Morneau, a very experienced judge who has been sitting in the Ontario Court of Justice (criminal) in Owen Sound for a long time, was clearly frustrated that the defence was still unsure whether any such application would be brought. The court transcript from May 19, 2022 speaks for itself. Notwithstanding that frustration, a month later, on June 16, 2022, when the case was before a different judge in the Ontario Court of Justice, the defence was still unsure whether any such application would be brought.

[31] There was no legitimate reason for the defence waffling about the potential 276/278 application. The issue continued to persist even beyond June 16, 2022, leading to Justice Morneau complaining about the endless “churning, adjourning, and adjourning” of the case at the behest of the defence (court transcript from June 23, 2022), and then the defence missing a court-imposed filing deadline for the application, and then Justice Morneau summarily dismissing the application at court on July 7, 2022.

[32] As Justice Morneau observed at court on May 19, 2022, the whole business about the potential 276/278 application was critical to the scheduling of the preliminary inquiry because the application was intended to be argued before, and the fruits of it used by the defence at, the preliminary inquiry.

[33] Frankly, the defence ought to have known well before March 23, 2022 whether it was bringing the said application or not. At a minimum, commencing on March 23rd and continuing through to the last day before the next period of defence delay commencing on June 1, 2022, there was delay attributable solely to the inaction of the defence.

[34] In summary, June 1, 2022 to August 25, 2022 is nearly three months of time. March 23, 2022 to May 31, 2022 is more than two months of time. Combined, the two periods of time of defence delay total five months.

[35] Thus, this Court finds that the period of net delay in this case is 38.14 months (43.14 months of total delay minus 5 months of defence delay).

[36] That period of net delay is above the presumptive 30-month ceiling. The Crown has the onus to rebut the presumption that the said period of 38.14 months is unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances – generally, (i) discrete events and/or (ii) particularly complex cases. If the Crown cannot rebut the presumption, then a stay will follow. Jordan, supra, at paragraph 47; Coulter, supra, at paragraph 37.

[37] The Crown does not argue that our case is particularly complex as that applies to the question of exceptional circumstances.

VIII. Question Number Three – Exceptional Circumstances

[38] On this question, the Court agrees with the Crown. There were exceptional circumstances, discrete events, that must be taken into account. When they are taken into account, the period of remaining delay is below the 30-month Jordan ceiling.

[39] In my view, the period of remaining delay in this case is 24.14 months, well below the Jordan ceiling.

[40] The difference between the period of net delay and the period of remaining delay is 14 months. Those 14 months are attributable to the exceptional circumstance of the COVID-19 pandemic and the resulting backlog in the court system: Agpoon, supra.

[41] With respect, the defence is wrong to suggest that the rationale of the Court of Appeal for Ontario in Agpoon, supra is confined to some specific range of time, a range more commensurate with what one might describe as being the height of the pandemic when jury trials were suspended, and the courts were partially closed.

[42] That interpretation is not supported by anything in Agpoon, supra itself. It is not justified by the wealth of jurisprudence that has both pre-dated and post-dated the decision in Agpoon, supra, including the decision of Justice Nakatsuru in R. v. Simmons, 2020 ONSC 7209, at paragraphs 70 and 72, cited with approval by Justice Carroccia in R. v. Hanna et al, 2023 ONSC 454, at paragraph 43, and the decision of this Court in R. v. Simeu, 2024 ONSC 1031, beginning at paragraph 38, which decision I gave to counsel before the within application was argued, and, most notably, the very recent decision of Justice Sproat in R. v. T.D., 2024 ONSC 1985.

[43] T.D., supra is a decision out of Owen Sound, where our case is. It is a decision that was released very recently, in April 2024. It is a decision written by a very experienced judge who is also the Local Administrative Judge of the Superior Court of Justice in Grey and Bruce Counties. Justice Sproat has been in that role for many years now, after transferring from Brampton, Ontario.

[44] In T.D., supra, like our case, much of the period of time up to the date of the anticipated completion of the trial was after the height of the pandemic. Yet, in a most thorough decision, after quoting with approval from the decision of Justice Dunphy in R. v. Wiseman, 2023 ONSC 4484, Justice Sproat was prepared to deduct the full 14 months identified in Agpoon, supra as an exceptional circumstance (see, in particular, paragraph 17 of Sproat J.’s decision).

[45] Justice Sproat and Justice Morneau know better than anyone the current situation on the ground in Owen Sound. As the judge conducting the pretrials throughout the Central West Region, I also know just how busy the criminal list in Owen Sound currently is. I have never seen anything like it in Grey County since I was appointed in 2011.

[46] In our case, I have no hesitation in adopting the same position taken by Justice Sproat in T.D., supra.

IX. Question Number Four – is the Period of Remaining Delay Unreasonable?

[47] There is no argument by the defence that 24.14 months, or any period of remaining delay that falls below the 30-month ceiling, is unreasonable.

[48] The defence application is confined to an argument that the case exceeds the Jordan ceiling.

[49] For a case with some twenty criminal charges, many of them very serious in nature, approximately two years of remaining delay is not unreasonable.

X. Conclusion

[50] For all of these reasons, this Court concludes that there has been no violation of H.S.’s right to be tried within a reasonable time. After accounting for defence delay and exceptional circumstances, the period of remaining delay in this case falls below the presumptive Jordan ceiling, and that period of remaining delay is not unreasonable.

[51] The accused’s section 11(b) Charter application is, therefore, dismissed.

Conlan J. Released: April 30, 2024