Court File and Parties

Court File No.: CR-21-200 Date: 2024/06/25 Superior Court of Justice - Ontario

Re: R. v. Travis Larose

Before: The Honourable Mr. Justice David Nadeau

Counsel: S. Hamilton, Counsel for the Applicant M. Crystal, for the Respondent

Heard: March 28, 2024

Decision on Charter s. 11(b)

Introduction and Context

[1] The accused seeks a stay of proceedings pursuant to s. 24(1) of the Charter on the grounds that his s. 11(b) right to be tried within a reasonable time has been infringed.

[2] The Applicant, Travis Larose stands charged with the following offences:

a. Sexual Assault, contrary to s. 271 of the Criminal Code.

b. Forcible Confinement, contrary to s. 279(2) of the Criminal Code.

[3] On March 15, 2020, at approximately 11:30 p.m., the Applicant allegedly prevented the victim from leaving the Applicant’s bedroom and allegedly forced her down onto his bed and began to remove his clothes. The Applicant, then, allegedly used electric tape, tied the victim to his bed and forced the victim to perform fellatio on him. It is further alleged that the Applicant then performed cunnilingus on the victim, which eventually led to unwanted vaginal intercourse. The victim attempted to call out several times for help, however, these cries were unheard. On March 16, 2020, at approximately 1:30 a.m., the Applicant allegedly untied the victim allowing her to leave his bedroom area. The victim contacted her boyfriend, who eventually drove her to the North Bay Regional Health Centre where a sexual assault examination kit was performed. That same day, the victim attended the North Bay Regional Health Centre to report the incident to the North Bay Police Service, where Detective Constable Jackson entered into an investigation. On October 13, 2020, Detective Constable Jackson received Centre of Forensic Science Report indicating that the accused’s DNA was located on a swab contained from the victim during her sexual assault examination.

[4] On November 4, 2020, at approximately 1:05 p.m., the Applicant attended the North Bay Police Headquarters, where he was placed under arrest for one count of Sexual Assault. He was provided rights to counsel and cautions, to which he understood and had an opportunity to speak with counsel of his choice. The Applicant was subsequently released on an Undertaking, with a court date of the 15th of December 2020. On December 3, 2020, at approximately 12:25 p.m., the accused attended the North Bay Police Service Headquarters, where he was placed under arrest for an additional charge of Forcible Confinement. He was provided his rights to counsel and cautions, which he understood. The accused was released on an Appearance Notice with the same court date of the 15th of December 2020.

[5] The Respondent agrees with the chronology submitted in the Applicant’s Factum with the following exceptions, clarifications, and/or additions. On December 7, 2020, the information was sworn, starting the Jordan clock. On December 14, 2020, the Crown Office received the designation of counsel. On January 18, 2021, disclosure was provided via Digital Disclosure Hub, and subsequently viewed by counsel on the same date. On January 25, 2021, counsel confirmed they have received initial disclosure, and requested additional disclosure of all audio or video disclosure generated during the investigation. On February 18, 2021, the Crown Attorney Office notified counsel via email that the requested disclosure material was available for pick-up.

[6] On March 9, 2021, the matter was adjourned for the purpose of allowing time for the Crown to provide counsel with the disclosure that had been requested on January 25, 2021. The Crown fulfilled this disclosure request, and counsel was notified of this availability on February 18, 2021. The inverse is true, the defense counsel remained idle, and offered no explanation for their delay and instead, blamed the Crown for the delay in receiving disclosure. On April 6, 2021, the Crown advised that the disclosure request was fulfilled and provided February 18, 2021. To resolve any confusion, or issue with outstanding disclosure, the Crown offered to schedule a Crown pre-trial to discuss the matter. However, defence counsel never availed themselves of the opportunity to discuss these issues with the Crown. On May 10, 2021, the Disclosure Package was picked up, and signed by Melanie Morin. On May 17, 2021, counsel requested written statements discovered in the disclosure material. On June 29, 2021, Killian May appeared as agent for counsel, requesting to adjourn the matter for the provision of the disclosure. The Crown advised that disclosure obligations have been fulfilled and suggested a pre-trial conference to sort out the issues. However, defense counsel never availed themselves of an opportunity to discuss these issues with the Crown. On October 25, 2021, Judicial Pre-Trial held with Pockele J: defense counsel advised that the matter was heading for the Superior Court of Justice via election. Defense counsel also advised that the Notice of Election will be filed before the next court date so the matter can proceed to the Superior Court of Justice. On November 16, 2021, counsel did not file the Notice of Election, unnecessarily delaying the proceeding a couple more months. On January 14, 2022, the Crown filed an indictment. On April 1, 2022, Judicial Pre-Trial was scheduled to be held with Koke J., from Parry Sound, but defense counsel did not show up and had to be rescheduled for May 30, 2022. On December 16, 2022, Killian May appeared as agent for counsel, requesting to adjourn the matter for a voluntariness voir dire application. The Crown reiterated their position to set trial dates, however, Mr. May was not provided with any dates of availability from defense counsel. The matter was adjourned, and unnecessarily delayed by the complacency of defense counsel. On January 13, 2023, the Crown requested to canvass possible dates for trial, advising they are available for trial at any point, as long as the pre-trial applications raised by the defense can be completed.

[7] For reasons as submitted in the Applicant’s Factum, Counsel for the Applicant outlines that in R. v. Jordan, the Supreme Court of Canada established framework to be applied when a violation of an accused’s rights as protected by both 7 and 11(b) of the Canadian Charter of Rights and Freedoms is violated or infringed upon. The framework sets out a presumptive ceiling of 30 months in Superior Court to be conclusion of trial. It is submitted that while R. v. Jordan provides criteria for the considerations under 11(b) with respect to delays, R. v. Morin establishes that delays stemming during the pre-charge period could constitute a violation of the accused’s rights as protected under s.7 of the Charter. If delay cannot be attributed to exceptional circumstances a stay should flow, according to Counsel for the Applicant.

The Jordan Framework

[8] The Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, set out a new framework for applying s. 11(b), having identified problems with the previous “Morin” framework. In the Jordan framework, there is a ceiling beyond which delay is presumed to be unreasonable. The ceiling is 30 months for cases that go to trial in the Superior Court of Justice. If the total time from the charge to the actual or anticipated end of the trial, less any delay attributed to the defence, exceeds the ceiling, the delay is presumed to be unreasonable. The onus is then on the Crown to rebut the presumption. To do so, it must show that there are exceptional circumstances, failing which the delay is unreasonable and there will be stay. On the other hand, where the delay falls below the ceiling, the burden is on the defence to show that the delay is nevertheless unreasonable.

[9] Defence delay was said to have two components, delay waived by the defence, and delay caused solely by the conduct of the defence. The latter includes acts of the defence which are shown to be deliberate and calculated tactics used to delay the trial, and periods resulting from the defence not being available to proceed when the courts and the crown are. It was left open to the courts to find that other defence actions have caused delay. However, the court recognised that legitimate time and actions taken by the defence to respond to the charges would not constitute defence delay.

[10] Exceptional circumstances were defined as ones being outside of the Crown’s control in that:

1. They are reasonably unforeseen or reasonably unforeseeable, and
2. Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise.

[11] There are two categories of exceptional circumstances: discreet events and particularly complex cases. The determination of whether circumstances are “exceptional” was left to the trial judges. A further consideration is whether the Crown made reasonable efforts to have the trial concluded under the ceiling. In Jordan, the SCC stated that “the Crown bears the onus of justifying delays that exceed the ceiling” (para. 56) and that “(it) must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling” (para. 70).

[12] The period of delay attributed to discreet exceptional events is to be subtracted from the total period of delay to ascertain whether the ceiling has been exceeded. On the other hand, if the time taken is justified by the complexity of the case, the delay will have been reasonable and there will be no need for a stay of proceedings.

[13] The absence of prejudice to the accused cannot be used to justify delays beyond the ceiling. The concept of prejudice was said to underline the framework and to have been accounted for in creating a ceiling.

[14] A useful summary of the Jordan Framework was provided by the Ontario Court of Appeal in R. v. Coulter, 2016 ONCA 704, which I will set out at length:

A. The New Framework Summarized

34 Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).

35 Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).

36 Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).

37 If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

38 Subtract delay caused by discrete events from the Net Delay (leaving the “remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).

39 If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).

40 If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).

41 The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the “Transitional Cases”) (Jordan, para. 96).

B. Key Elements in the New Framework

(1) Defence Delay

42 Defence delay has two components: (1) that arising from defence waiver, and (2) delay caused solely by the conduct of the defence (“defence-caused delay”) (Jordan, paras. 61 and 63).

43 Waiver 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 (Jordan, para. 61).

44 Defence-caused delay is comprised of situations where the acts of the defence either directly caused the delay or are shown to be a deliberate and calculated tactic employed to delay the trial. Frivolous applications and requests are the most straightforward examples of defence delay (Jordan, para. 63). Where the court and the Crown are ready to proceed but the defence is not, the defence will have directly caused the delay (Jordan, para. 64).

(2) Exceptional Circumstances

45 If the Net Delay exceeds the presumptive ceiling, the onus is on the Crown to rebut the presumption of unreasonableness based on the presence of exceptional circumstances.

46 Exceptional circumstances lie outside the Crown’s control in that: (1) they are reasonably unforeseen or reasonably unavoidable; and (2) Crown counsel cannot reasonably remedy the delays emanating from the circumstances once they arise. Such circumstances need not be rare or entirely uncommon (Jordan, para. 69).

47 An exceptional circumstance is the only basis upon which the Crown can discharge its burden to justify a Net Delay that exceeds the ceiling. The seriousness or gravity of the offence cannot be relied on. Nor can chronic institutional delay or the absence of prejudice to the accused (Jordan, para. 81).

48 The list of exceptional circumstances is not closed but, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

(a) Discrete Events

49 An illustration of a discrete event that will generally qualify is a medical or family emergency on the part of the accused, important witnesses, counsel or the trial judge (Jordan, at para. 72).

50 The period of delay caused by any discrete event must be subtracted from the Net Delay for the purpose of determining whether the presumptive ceiling has been reached. However, any portion of the delay caused by a discrete event that the Crown or system could reasonably have mitigated may not be subtracted (Jordan, para. 75).

(b) Particularly Complex Cases

51 Particularly complex cases are cases that, because of the nature of the evidence or issues (or both), require an inordinate amount of trial preparation time such that the delay is justified (Jordan, para. 77). The seriousness or gravity of the offence cannot be relied on to establish that the case is particularly complex (Jordan, para. 81).

52 Where the trial judge finds that the case was particularly complex such that the time the case has taken is justified, the delay is reasonable, and no stay will issue. No further analysis is required (Jordan, para. 80).

(3) Remaining Delay is Below the Presumptive Ceiling

53 If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48). To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings (“defence initiative”); and (2) the case took markedly longer than it reasonably should have. Absent both of these two factors, the s. 11(b) application must fail (Jordan, para. 82).

54 Stays beneath the presumptive ceiling should be granted only in clear cases (Jordan, para. 83).

[15] The courts have elaborated on defence delay. In Jordan, the Supreme Court said:

60 Application of this framework, as under the Morin framework, begins with calculating the total delay from the charge to the actual or anticipated end of trial. Once that is determined, delay attributable to the defence must be subtracted. The defence should not be allowed to benefit from its own delay-causing conduct. As Sopinka J. wrote in Morin: “The purpose of s. 11(b) is to expedite trials and minimize prejudice and not to avoid trials on the merits” (p. 802).

61 Defence delay has two components. The first is delay waived by the defence (Askov, at pp. 1228-29; Morin, at pp. 790-91). Waiver can be explicit or implicit but, in either case, it must be clear and [page 662] unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights. However, as in the past, “[i]n considering the issue of ‘waiver’ in the context of s. 11(b), it must be remembered that it is not the right itself which is being waived, but merely the inclusion of specific periods in the overall assessment of reasonableness” (R. v. Conway, [1989] 1 S.C.R. 1659, per L’Heureux-Dubé J., at p. 1686).

63 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). 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.

64 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 [page 663] unavailability, it will of course be open to trial judges to find that other defence actions or conduct have caused delay (see, e.g., R. v. Elliott (2003), 114 C.R.R. (2d) 1 (Ont. C.A.), at paras. 175-82).

65 To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused’s right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions.

[16] The Supreme Court acknowledged, as it had said in R. v. Godin, 2009 SCC 26, s. 11(b) does not require defence counsel to hold themselves in a state of perpetual availability (Jordan, para. 179).

[17] The Supreme Court in R. v. Cody expanded on its comments in Jordan about the second component of defence delay and, in particular, the concept of legitimacy in defence actions:

28 In broad terms, the second component is concerned with defence conduct and is intended to prevent the defence from benefitting from “its own delay-causing action or inaction” (Jordan, at para. 113). …

30 The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. …

31 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.

32 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. …

33 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. Dixon, [1998] 1 S.C.R. 244, at para. 37).

Position of the Parties

According to Counsel for the Applicant, the accused has been in a position of extreme jeopardy for 4 years 6 months and 18 days, and this, as described, constitutes a clear and obvious violation of 11(b) of the Charter. As defined in R. v. Jordan, reasonable is considered to be within the 30-month prescribed timeline. This matter is markedly beyond that, and any time period over the ceiling ought to rightfully be determined to be unreasonable. The clear and obvious delays emanating from the Crown and or the Courts with respect to disclosure and scheduling directly created both prejudice and unreasonable delays. As a result, this matter was pushed markedly beyond the threshold of presumed reasonable timelines, and breach the presumptive ceiling as set out in R. v. Jordan, of 30 months; This matter is devoid of any record of the Crown raising indications that the matter before the Honorable Court is of great complexity justifying the described delays. Absent same, the delays fall outside the realm of the ceiling and a stay ought to flow. The existing delays coupled with the anticipated delays should rightfully be categorized as unreasonable and directly define a clear and apparent violation and/or infringement of the rights as protected by both s. 7 and s. 11(b) of the Charter. Therefore, Mr. Larose asserts that his rights as guaranteed by both s. 7 and s. 11(b) of the Charter have been unjustly infringed upon and that a remedy pursuant to s. 24 of the Charter should rightfully be granted, namely that the charges be stayed.

[18] As outlined in the Respondent’s Factum, it is submitted that the Applicant incorrectly charts the total delay in this case to be 47 months and 26 days. The Respondent disagrees, and submits that the Applicant has failed to properly analyze the following events:

a. The Jordan clock starts the date the information was sworn, not the date of the offence, nor the date of arrest. Created a miscalculation of 8.6 months.

b. Initial period of delay in respect of disclosure, must be attributed to the defence, for their lack of diligence in pursuing disclosure. Created a miscalculation of 3.9 months.

c. Failure to elect in a timely manner must be attributed to the defence, as the alleged issues with disclosure had no bearing of their decision to elect. Created a miscalculation of 1.6 months.

d. Lack of urgency to set a date for trial, and the subsequent illegitimate actions of counsel to prolong the proceeding must be attributed to the defence. Created a miscalculation of 2.8 months.

e. Finally, there is a period of time where both parties bear some part of the responsibility of delay. Created a miscalculation of 2.1 months.

A proper 11(b) calculation, considering the aforementioned events lead to total delay of 26.4 months which is 3.6 months below the Jordan ceiling. Consequently, the Applicant has failed to satisfy this onus in establishing that the trial delay is in excess of the Jordan ceiling.

Analysis and Conclusion

[19] Upon my review of all of the Applicant’s materials, and upon my consideration of Counsel for the Applicant’s very focused argument on March 28, 2024 regarding the events from January 25, 2021 to May 10, 2021, I agree with the Respondent Crown that the total delay to the trial date which is scheduled to be heard by me for 4 consecutive days on October 1, 2024 at 10:00 a.m. is in fact no more than 26.4 months. This of course is 3.6 months below the Jordan ceiling.

[20] Consequently, the Applicant has failed to satisfy me in establishing his onus that the trial delay is in excess of the Jordan ceiling. This Application is therefore dismissed.

Date: June 25, 2024 The Honourable Mr. Justice David Nadeau