WARNING
The Court hearing this matter directs that the following should be attached to the file:
An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:
486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.
(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.
(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.
486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.
COURT FILE NO.: CR39700-24-08
DATE: 20240606
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
J.J.C.
Defendant
Michelle Soucy, for the Crown
Audrey Dupras, for the Defendant
HEARD: May 31, 2024
Justice H. Desormeau
REasons for judgment on 11(b) pretrial application
Overview
[1] The accused brought an application for an order pursuant to s.24(1) of the Canadian Charter of Rights and Freedoms that the proceedings against him be stayed due to the breach of his right to be tried within a reasonable time as guaranteed by section 11(b) of the Charter.
[2] The Crown argued that the application should be dismissed as the net delay was significantly below the timeframes once the court properly accounted for the defence delay.
Summary of Timeline/ Court dates
[3] The accused was charged with two counts of assault, one count of unlawful confinement, one count of choking, one count of threats and one count of sexual assault against C.B., all arising from events from May 31, 2021. He was arrested on June 18, 2021. The information sworn that same day.
[4] The Crown elected by indictment on July 20, 2021, at the first appearance following bail. The accused represented himself on this date, and a Legal Aid referral was completed. The matter was adjourned for the Legal Aid application.
[5] On August 17, 2021, the accused was assisted by duty counsel, and the Legal Aid application was completed. The accused was awaiting perfection of the retainer with counsel of choice.
[6] On August 31, 2021, the accused was represented by then counsel, Me. José Gravel. Disclosure had been requested and received. The matter was adjourned for a CPT.
[7] On September 28, 2021, a CPT had been conducted. At that time, the accused requested a JPT in this matter. The first date offered was December 2nd, but defence counsel was unavailable. The JPT was scheduled for December 9th, 2021.
[8] On December 21, 2021, defence counsel, on behalf of the accused, requested to set trial dates for this matter in provincial court. The court provided the date of January 7, 2022, in an open trial scheduling call.
[9] On January 25, 2022, trial dates were set by the accused’s counsel for April 18 and 19, 2023, in provincial court.
[10] On March 17, 2023, counsel for the accused was removed from record. Counsel advised the court that he had not been able to reach his client since December 2021 [over 13 months prior], and that the Legal Aid certificate had been cancelled. The Provincial Crown outlined their concerns that the trial would proceed as scheduled with the accused as a self-represented individual. The court advised that any problem with readiness should be delt with at the commencement of trial. Trial dates were maintained.
[11] Between March 17, 2023, and April 18, 2023, the Crown made concerted efforts to find the accused and ensure he had access to the disclosure.
[12] On April 18, 2023, the accused attended court for the first day of trial. When asked by the court what was happening that day, the accused advised he didn’t have a lawyer and Legal Aid had cancelled his certificate due to his income. He was still calling around trying to get a lawyer. When asked if he was planning to represent himself, he told the court that “I’ve been advised not to.” The Crown indicated they needed to know if the accused was going to represent himself or retain counsel, as it was salient to the 486 application. The matter was stood down to allow Crown counsel to prepare said application. The Court impressed on the accused the importance of having counsel due to the seriousness and the nature of the allegations, stating that "worst case scenario", the accused would represent himself with the assistance of 486 counsel. The April 19, 2023, trial date was vacated.
[13] The matter returned on May 9, 2023, whereby the accused asked for more time to secure counsel, acknowledging that time was “running out.” Duty counsel advised that 486 counsel, Ms. Neha Chugh, had accepted the appointment. At duty counsel's request, a self-represented JPT was scheduled for July 19, 2023. The accused was reminded of the importance of getting counsel, otherwise he would be on his own for the JPT. Ms. Chugh was contacted by Legal Aid the day prior and her agent, Mr. Tahmassebipour confirmed on the record that someone from his office would be at the JPT.
[14] On July 19, 2023, the accused appeared as a self-represented individual. He advised the court that he did not have counsel and had been “talking with Legal Aid”, who was supposed to get back to him in five days or “something like that”. The court indicated they were going to set another trial date, but they needed Ms. Chugh’s availability, and she was not present. The matter was adjourned to later in the week for an update.
[15] On July 21, 2023, the accused advised he needed to provide Legal Aid Ontario (“LAO”) three bank statements. He indicated he would provide that information on that same day to LAO. Matter was adjourned to August 22, 2023.
[16] On August 22, 2023, the accused attended as a self-represented individual. He advised the court he had not sent in the requisite bank statements, indicating he had financial problems, his phone had been cut off and he had his son for two weeks vacation. The court was mindful of the Crown’s position, that there was some anxiety to get the matter going, and then stated, "[b]ut if I can link up [the accused] with counsel, it will be better for all concerned". The Crown indicated it was a 2021 offence date, and the Crown was ready to set dates. The court then indicated “yes, these delays, quite frankly, all fall at the feet of [the accused]. You understand that,[J.J.C.]?”, which the accused acknowledged with a yes. The matter was adjourned to September 6, 2023, for an update, and the court put on record that the accused was going to be there with an update or a self-represented trial date would be set.
[17] Matter then returned September 6, 2023, where the accused indicated he still did not have a lawyer and would represent himself. While the court was ready to set trial dates, the 486 order was in place and Ms. Neha Chugh’s availability was required to set dates. The accused advised he has never spoken to Ms. Chugh. The court told the accused he needed to get things sorted out, and that these delays were being caused by him. He was told to go see Ms. Chugh. When the court inquired as to an update on the accused having provided bank statements, the accused indicated “yeah, that was my next step with them, but then the connection was lost, and then my phone speaker was not good. So, I just figured – like….” The court indicated there seemed to be some disconnect, and that these were some serious charges, which the accused acknowledged. The court then indicated the accused would “struggle representing yourself on these charges." The matter was put over to set trial dates in the presence of 486 counsel.
[18] On September 11, 2023, the accused did not attend and 486 counsel was not present. Both Crown and the court acknowledged the accused had appeared numerous times before the court prior to this date. A warrant for his arrest was issued. The accused was released at bail court on September 14, 2023, on consent of the Crown. Matter was adjourned for another self-represented JPT.
[19] On November 22, 2023, a JPT was started. The accused explained that he did not miss the previous date willfully and his explanation was accepted as reasonable. The accused advised the court that Legal Aid no longer wanted three bank statements, they needed three months worth of statements now as well as information from when he was hit by a car. At the request of the court, the accused had reach out to 486 counsel, but counsel had not called him back. The court told him to go back again, that he needed to get the lawyers involved, and to go every day until he had a lawyer on board. The matter was adjourned to the next day to set dates for trial in the presence of 486 counsel as they were not present.
[20] On November 23, 2023, with 486 counsel present, a JPT was conducted. Matter was adjourned two weeks to permit 486 counsel to prepare themselves regarding potential applications and discuss the accused’s election. When asked about the election by 486 counsel, the court indicated that a trial had been set to proceed in provincial court, which for various reasons did not proceed. The Crown agreed with the accused’s request to be tried by the provincial court. Meanwhile, the court clerk alerted the parties that there was no election noted on the information. 486 counsel was not prepared to make an election on record on that date. The court then stated "it's my hope, in a case like this, that things have come - things happen so that [the accused] has full and adequate representation, which I know he would get on a 486. However, it - that can be a very uncomfortable exercise for all concerned, for so many reasons that I don't wish to get into right now." The Crown then put on record that it was of course up to the court to adjourn the matter but that it was a matter that was 29 months old, and the Crown wished to proceed as expeditiously as possible to ensure that the accused had a trial within the framework of the Charter. The court commented that “the record can reflect and should reflect that many of the adjournments, certainly leading immediately up to the original trial date, and then beyond to this point in time, November 23, 2023, that delay would fall at the feet of [the accused].”
[21] On December 13, 2023, a Legal Aid certificate was granted to the accused. The accused advised the court that he wished Ms. Chugh to represent him, and Ms. Chugh confirmed she was in a position to accept the certificate. The matter was adjourned to January 2, 2024, to permit a CPT to be conducted and for Ms. Chugh to obtain instructions on elections and other issues.
[22] On January 2, 2024, Ms. Chugh advised that the accused had not attended her office to sign the necessary paperwork and therefore her office was not prepared to go on record for him. The accused was not present in court, and a discretionary warrant was issued.
[23] The following day, on January 3, 2024, the accused was present, and Ms. Chugh was present as agent for Ms. Dupras, counsel for the accused. The accused elected for a judge alone trial in the Superior Court of Justice (“SCJ”). Matter was adjourned for a SCJ JPT, which was held on February 13, 2024.
[24] A second SCJ JPT with long forms was held February 21, 2024. At that time, dates for 11(b) motion were scheduled as well as trial dates. The trial was set for June 24, 25 and 28. The 11(b) application was set for April 26, 2024. Dates in March and April were offered, but it was agreed between all parties that it would not allow enough time to counsel to prepare for an 11(b) application, which ought to occur prior to commencing the trial proper.
[25] On February 23, 2024, a third SCJ JPT was conducted as the Crown made themselves available for trial dates in March 2024. Again, despite dates having been available for March and April, it was agreed between all parties that it would not allow enough time to counsel to prepare for an 11(b) application. All parties agreed that time was required to bring the 11(b) application and serve it on the Crown. All parties agreed that the delay from February 21, 2024, and the last trial date of June 28, 2024, was neutral time (being 4 months, 7 days).
[26] On April 26, 2024, the date for the 11(b) application to be heard, the accused was not present. The 11(b) motion was adjourned one week to be able to find the accused. Meanwhile, a warrant for his arrest was issued. On May 3, 2024, the accused and his counsel were present. The first date available to all parties was May 31, 2024, for the 11(b) application to be heard.
[27] It was not disputed that there have been 1107 days from the time the information was sworn until the last day of trial, being 36 months and 11 days (or 10 days), which is over the presumptive ceiling as set out in R. v. Jordan, 2016 SCC 27.
Position of the Parties
The accused’s argument:
[28] The accused argued that the total delay is 1107 days, or 36 months, 11 days. This was above presumptive ceiling of 30 months, and they were not responsible for any delay.
[29] Given the time is over 30 months, the burden is on the Crown to prove the delay is justified, therefore reasonable. It was argued the Crown was unable to justify the presumptively unreasonable delay in this matter, and accordingly the accused’s 11(b) rights have been infringed. It is in the interests of justice that a stay of proceedings be granted pursuant to s. 24(1) of the Charter.
[30] The accused argued that his first lawyer was removed from the record on March 17, 2023 “due to issues with [the accused’s] Legal Aid certificate.” Crown counsel made no attempts to request 486 counsel to be appointed until the first day set for trial: being April 18, 2023. As such, this failure to appoint 486 counsel prior to the first day of trial should not go against defence, but was the Crown delay.
[31] The accused advanced that when his counsel was removed from the record. he “immediately took steps to remedy the situation and went on to represent himself until he was appointed a new Legal Aid certificate.” Legal Aid requirements caused significant delays, and given the accused’s personal circumstances, that he is a vulnerable individual as a self-represented person, this was a difficult task.
[32] It was argued that Legal Aid, was an institution that runs parallel to the criminal justice system, as such any delay falls under institutional delays.
[33] The accused submitted that if the court were to attribute the time to defence from when 486 counsel ought to have been present at a self-represented JPT set for July 19, 2024, then the subtraction would be only 4 months and 24 days, from July 18, 2023, to December 13, 2023 when counsel was retained by the accused. That would bring the net delay to 31 months, 17 days.
[34] The accused presented as a complicating factor the election was not put to the accused until November 23, 2023, and was committed to trial in the Superior Court of Justice on January 3, 2024. However, it was not denied by defence that a trial date in provincial court had previously been scheduled by counsel.
The Crown
[35] The Crown took the position that they have been diligent throughout this file. Their view was the gross delay was 36 months 10 days, minus defence delay from the time prior counsel lost contact with the accused in December 2021, being 24 months and 11 days, resulted in a net delay of 7 months, significantly under the ceiling.
[36] The Crown argued that immediately following counsel getting off record for the accused, they took proactive steps to locate the accused and ensure his attendance at court. The accused informed their office on or about April 4, 2024, that he intended to retain counsel. Further, the Crown submitted that as of April 13, 2024, the accused had not yet accessed the disclosure.
[37] When addressing why the Crown did not bring forward the 486 application prior to the first day of trial, it was argued that the accused advised he wished to retain counsel, whereby 486 counsel would not be required. It was not appropriate for the Crown to interfere with the accused’s choice to retain counsel. Nevertheless, the 486 order was signed on the first day of trial.
Caselaw
[38] Between both parties, the court was provided over 45 cases to review. Suffice to say these cases were reviewed, but they will not all be cited within this decision.
[39] In Jordan, the Supreme Court of Canada (“SCC”) set out the framework within which to analyze s.11(b) applications. The court established a presumptive ceiling regarding the time it should take to bring an accused person to trial: 18 months for provincial court, 30 months for superior court.
[40] As the Supreme Court stated, trials within a reasonable time are an essential part of our criminal justice system's commitment to treating presumptively innocent accused persons in a manner that protects their interests in liberty, security of the person, and a fair trial. (Jordan, at para. 20). However, s.11(b) was not intended to be a sword to frustrate the ends of justice. (Jordan, at para 21)
[41] The presumptive ceiling considers those factors that contribute to the time it takes to prosecute a case, such as the reasonable time necessary for the defence to prepare and present its case to be able to make full answer and defence.
[42] Jordon establishes that if the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow: Jordan, at para. 47.
[43] Exceptional circumstances “lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional.”: Jordan, at para. 69. These circumstances, or discrete events, could include illness or an unexpected event at trial: Jordan, at para. 81. Once the ceiling is breached, the Crown must show it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. There is no closed list as to what would qualify as “exceptional” for the purpose of 11(b) applications. Exceptional circumstances are also cases that are particularly complex Jordan, at para. 77.
[44] The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded: Jordan, at para. 75. “To be clear, the presence of exceptional circumstances is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling: Jordan, at para. 81.
[45] As noted at paragraph 82 in Jordan: “A delay may be unreasonable even if it falls below the presumptive ceiling. If the total delay from the charge to the actual or anticipated end of trial (minus defence delay and delay attributable to exceptional circumstances that are discrete in nature) is less than 18 months for cases going to trial in the provincial court, or 30 months for cases going to trial in the superior court, then the defence bears the onus to show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. Absent these two factors, the s. 11(b) application must fail.” The court went on to state that they expect stays beneath the ceiling to be rare, and limited to clear cases: Jordan, at para. 48.
[46] If the remaining delay after the subtraction, above, falls below the ceiling, then the accused may still demonstrate that the delay is unreasonable. If, however the remaining delay exceeds the ceiling, the delay is unreasonable and a stay of proceedings must be entered: Jordan, at para. 76.
[47] Thus, under the Jordan analysis, the court must first calculate the total delay from the charge to the actual or anticipated end of trial.
[48] Then, delay attributable to the defence must be subtracted. As noted at paragraph 60 in Jordan, the defence should not be allowed to benefit from its own delay-causing conduct.
[49] Defence delay has two components, be it by waiver or delay caused soled by defence. The waiver can be explicit or implicit, but it must be unequivocal.
[50] Examples of defence delay that is caused solely by the conduct of defence were described in Jordan at paragraphs 63 and 64:
This kind of defence delay comprises “those situations where the accused’s acts either directly caused the delay ... or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial” (R. v. Askov, (1990), 1990 CanLII 45 (SCC), 59 C.C.C. (3d) 449], at pp. 1227-8). Deliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests, are the most straightforward examples of defence delay. Trial judges should generally dismiss such applications and requests the moment it becomes apparent they are frivolous.
As another example, 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. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. This should discourage unnecessary inquiries into defence counsel availability at each appearance. Beyond defence unavailability, it will of course be open to trial judges to find that other defence actions or conduct have caused delay.
[51] To establish meaningful, sustained steps, the court should consider what defence could have done, and what it actually did, to get the case heard as quickly as possible. It falls to the defence to “show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications (including the s. 11(b) application) reasonably and expeditiously.” (See Jordan, at para. 85). Then, defence must show that the time the case has taken markedly exceeds the reasonable time requirements of the case: Jordan, at para. 87.
[52] This court is guided by the following concept as set out in Jordan, at paragraph 91:
Determining whether the time the case has taken markedly exceeds what was reasonably required is not a matter of precise calculation. Trial judges should not parse each day or month, as has been the common practice since Morin, to determine whether each step was reasonably required. Instead, trial judges should step back from the minutiae and adopt a bird’s-eye view of the case. All this said, this determination is a question of fact falling well within the expertise of the trial judge (R. v. Morin, (1992), 1992 CanLII 89 (SCC), 12 C.R. (4th 1], per Sopinka J., at pp. 791-92).
[53] Thus, as summarized in Jordan at paragraph 105:
The new framework for s. 11(b) can be summarized as follows:
• There is a ceiling beyond which delay becomes presumptively unreasonable. The presumptive ceiling is 18 months for cases tried in the provincial court, and 30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry). Defence delay does not count towards the presumptive ceiling.
• Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. Exceptional circumstances lie outside the Crown’s control in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. If the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted. If the exceptional circumstance arises from the case’s complexity, the delay is reasonable.
• Below the presumptive ceiling, in clear cases, the defence may show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have.
• For cases currently in the system, the framework must be applied flexibly and contextually, with due sensitivity to the parties’ reliance on the previous state of the law.
[54] The accused advanced an argument that the time it took to secure a new Legal Aid certificate ought not count against the defence, but rather fall within the 30 months ceiling under Jordan. As noted in R. v. Isaacs, at paras. 86 - 89:
In R. v. Boateng, 2015 ONCA 857, 128 O.R. (3d) 372 (Ont. C.A.), the Court of Appeal considered the effect of a delay in processing a Legal Aid application on the Morin analysis. At paragraph 32, Doherty J.A. stated:
The Crown bears the responsibility of bringing an accused to trial within a reasonable time: R v. Godin, at para. 11; R v. Morin, at pp. 801-802. As the prosecutor, the Crown is best positioned to spot and react to potential delay-related problems caused when an institutional participant in the criminal justice system, like LAO, drags its feet and places the rights protected under s. 11(b) in jeopardy. If the Crown fails to react to these delays, it will bear responsibility for them in the s.11 (b) calculus. That responsibility exists regardless of whether the LAO is classified as part of the government or the prosecution: see R v. Neil, 2001 ABQB 474, at paras. 50-60; R v. Chang, [2005] O.J. No. 4381 (S.C.); see also R v. Dow,2012 MBQB 122, at paras. 35-47.
Under the Morin analysis, a similar conclusion would be supported with Rowbotham applications, which are similar to an application for Legal Aid in that they are also an application to fund the accused's defence.
The question is whether the analysis of the way to treat the delay resulting from these applications changes under Jordan. In my view, it does not. In Jordan, at paragraph 65, the Supreme Court states that, "defence applications and requests that are not frivolous will also generally not count against the defence." A Rowbotham application or an application to release funds are "defence applications." As a result, in my view, unless Rowbotham application or an application to release funds is without merit, the time spent between when it is brought and when it is adjudicated would not be defence delay within the meaning of Jordan. In other words, the time expended on this type of application would generally count towards the ceiling of 30 months.
In my view, however, a delay in LAO processing an application, or the Court adjudicating an application, is different than the delay in an accused bringing the application. Doherty J.A. acknowledges as much in the footnote to paragraph 32 in Boateng where he states:
My analysis would also support the conclusion that defence "foot dragging" during the Legal Aid process would count against the defence. Practically speaking, on a s. 11(b) application it may make little, if any, difference whether delay is treated as neutral or attributed to the defence: R. v. Isaacs, 2016 ONSC 6214, at paras. 86 - 89
[55] However, the court went on in R. v. Isaacs to indicate that:
In the post-Jordan world, however, the characterization of this delay matters. In my view, if the case cannot be moved forward because the accused has not retained a lawyer, and is unable or unwilling to bring a Rowbotham application, then that is defence delay. In other words, "defence foot-dragging" should be considered defence delay. If the Crown and Court are ready to proceed and the defence needs time to consider whether to bring this type of application, then the delay is solely defence delay.
There are a number of reasons to support this conclusion. First and foremost, if the delay in bringing a Rowbotham application is not defence delay, then an accused could simply decide not to bring the Rowbotham application for 30 months, seek continuing adjournments, and then claim that the case had been unreasonably delayed and should be stayed.
Second, the Court and the Crown have the responsibility to move cases forward. However, they must do so in a way that protects the rights of the accused. If Mr. Fahmy's argument was accepted, then Courts would be required to either say no very quickly to any accused who asked for a few weeks or a couple of months in order to consider bringing a Rowbotham application or to countenance the very culture of delay that Jordan is designed to eradicate: R. v. Isaacs, 2016 ONSC 6214, at paras. 90 - 92.
[56] In R. v. Isaacs, the court determined that the time between the first court date following the denial of the Legal Aid certificate for the accused to the date when the court was going to set dates with or without counsel were defence delay, based on the inaction of the accused when the Crown was ready to proceed.
[57] As this Court is aware, Crown counsel, as officers of the court, must ensure trial fairness and have a duty to consider the rights of all justice system participants, including the accused: R. v. Drummond, 2024 ONCJ 170, at para. 31.
Analysis
[58] This court notes that given the total delay is 36 months, 11 days, this delay is presumptively unreasonable. The onus is on the Crown to rebut the presumption of unreasonableness.
[59] The crux of the arguments advanced by both parties were how to calculate the timelines. Following submissions, below is a summary of the possible time calculations for consideration:
a. December 21, 2021, when defence counsel last had contact with his client to February 21, 2024 [26 months]; or
b. March 17, 2023, when defence counsel was removed from the record to February 21, 2024, when trial dates were set [11 months, 4 days]; or
c. April 18, 2023, the first day of trial until February 21, 2024, when dates were set [309 days, or 10 months, 3 days]; or
d. July 18, 2023, when the first self-represented JPT was set for and 486 counsel ought to have attended to set dates, to December 13, 2023 (bringing net delay to 31 months, 17 days) [148 days, or 4 months, 25 days]; or
e. July 18, 2023, when the first self-represented JPT was set for and 486 counsel ought to have attended to set dates, to January 3, 2024 when counsel was officially retained [net delay being 169 days, or 5 months, 16 days].
[60] This court recognizes that in Jordan, the Supreme Court indicated that “[w]aiver can be explicit or implicit, but in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights”: R v. Jordan, supra, at para. 61. However, the Supreme Court went on to indicate that “the second component of defence delay is delay caused solely by the conduct of the defence. This kind of defence delay comprises "those situations where the accused's acts either directly caused the delay ... or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial” (Askov, at pp. 1227-28): R. v. Jordan, ibid, at para. 63. In Jordan, another example provided is when the court and Crown are ready to proceed but the defence is not. This delay is attributed toward the defence.
[61] While the accused argued there were no delays as a result of his actions, that he did not waive his 11(b) rights at any stage and “made every effort to ensure the matter proceeded expeditiously to trial, the transcripts belie this assertion.
[62] This court, in adopting a bird’s eye view of the case, finds that the delay from the first day of trial, April 18, 2023, until new counsel was retained and ready to proceed with moving the matter forward, January 3, 2024, were defence delay. This delay falls solely at the feet of the accused based on his inactions or “foot dragging”. The court is not of the view that the accused “diligently” pursued representation thought Legal Aid, nor did he demonstrate a “sustained and meaningful effort to expedite the proceedings”.
[63] As such, this results in a net delay of 260 days (8 months, 16 days), resulting in a net delay of 27 months and 25 days. These inactions include:
a. Attending the first trial date seeking to retain legal counsel, after not communicating with his previous lawyer for over 13 months, which, coupled with the cancellation of the Legal Aid certificate, necessitated that counsel to get off record. The accused was not present for the motion to get off record brought March 17, 2023.
b. As of April 13, 2023, less than a week prior to the trial date, the accused still had not accessed his disclosure.
c. At the first trial date the accused advised the court he was still calling around trying to get a lawyer. When asked if he was planning to represent himself, he told the court that “I’ve been advised not to.” At that time, the accused indicated his belief that the door for Legal Aid was “closed” due to making too much money.
d. Several adjournments thereafter whereby the accused requested more time to secure counsel (May 19, 2023); had been talking with Legal Aid (July 19, 2023); needed to provide Legal Aid financial information (July 21, 2023) and then failing to do so until November 23, 2023. The accused did not attend the September 11, 2023, court date but provided a reasonable excuse for same.
e. While a Legal Aid certificate was granted to the accused on December 13, 2023, and the accused asked that the 486 counsel be his lawyer, the accused then failed to attend for his appointment with his lawyer, necessitating the January 2, 2024, date to be adjourned to January 3, 2024. Additionally, the accused did not attend the January 2, 2024, court date.
f. The accused was advised on several occasions by the presiding judge from April 18, 2023, to November 23, 2024, that the delays were as a result of his inactions and the importance of moving the matter forward.
[64] The evidence supports a finding that the Crown was proactive and attempted to ensure the trial would nevertheless go ahead, which included asking the police services to locate and advise the accused of the impending trial date. This court is not persuaded based on this evidence that the Crown ought to have obtained an order for 486 counsel in advance, in particular, given that the accused clearly wished to retain counsel and was not inclined to represent himself at trial.
[65] In the case at bar, the Crown provided the accused access to his disclosure, and followed up with this prior to the first day at trial. Further, from the first day set for trial, the accused repeated his desire to retain counsel. In an effort to mitigate any potential delay, the court suggested, and the Crown immediately provided a draft order for 486 counsel on the same day, despite the accused’s voiced first choice being private counsel. This showed a genuine commitment to rectify the problem.
[66] While this court agrees that the Jordan framework takes into account the factors that contribute to the time it takes to prosecute a case, such as the reasonable time necessary for the defence to prepare and present its case to be able to make full answer and defence, in this case, the first counsel for the accused lost touch with his client, necessitating being removed from the record. Thereafter, the accused attended several appearances and admittedly had not followed through with retaining counsel or providing Legal Aid the necessary financial documentation. His procrastination and inactions were the principal cause for the delay, and he ought not be permitted to benefit from same.
[67] The accused argued that it was open to the Crown to have set a trial date after 486 counsel between May 8, 2023 to December 13, 2023 “in the presence of 486 counsel”. However, the evidence shows that despite the court being advised on May 8, 2023, that 486 counsel would attend the JPT set for July 19, 2023, they in fact did not attend court on that date or any other date until November 23, 2023, which precluded trial dates from being set.
[68] This court finds that Crown counsel was diligent and proactive in attempting to have 486 counsel attend prior to November 23, 2023, without success. The Crown repeatedly tried to move the matter forward prior to when the new trial dates were finally set. To add to the delay, when 486 counsel was chosen by the accused as counsel of record on December 13, 2023, he failed to meet with his counsel as requested during the intervening period.
[69] As for the argument by the accused regarding the defence choice of election, again, this court is satisfied that prior counsel had instructions on the election and as such, a trial date had been set in provincial court. Any question about instructions from the accused to counsel as to the election was speculative.
[70] This court recognizes that the time period from February 21, 2024, to the last day of trial of June 28, 2024, do not constitute defence delay as they are a neutral time period for both parties. In the new Jordan framework this time period is, subject to exceptional circumstances, part of the 30-month ceiling. However, in the circumstances of this particular case, this could be considered by this court as a discrete event, resulting in a further deduction of 128 days (4 months, 7 days).
[71] Should this court be wrong as to the defence delay running from April 18, 2023, to January 3, 2024, this court would, in the alternative conclude that it was defence delay from July 18, 2023, when the self-represented trial dates ought to have been set but 486 counsel did not attend to January 3, 2024 (169 days). In addition, this court would view the timeframe from February 21, 2024 to the last day of trial of June 28, 2024 (128 days), constitutes a discrete event and in these circumstances, ought to be deducted from the 30 month ceiling. This would result in a net delay of 810 days, or 27 months.
[72] On these facts, this court is not of the view that it is appropriate to dismiss this case for the delay falling below the presumptive ceiling.
Disposition
[73] The accused’s application is dismissed.
Justice H. Desormeau
Released: June 6, 2024
COURT FILE NO.: CR39700-24-08
DATE: 20240606
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
J.J.C.
REASONS FOR JUDGMENT on 11(b) pretrial application
Justice H. Desormeau
Released: June 6, 2024