Court File and Parties

COURT FILE NO.: CR-23-30000605-0000 DATE: 20240731 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – MARCUS BRYAN Applicant

Counsel: Brigid McCallum, for the Respondent Maria Rosa Muia, for the Applicant

HEARD: April 19 and May 16, 2024

B. P. O’MARRA J.

RULING ON AN APPLICATION FOR A STAY

OVERVIEW

[1] On April 19, 2022, the applicant was arrested and charged with a series of offences related to human trafficking. As of that date he was in custody in Thunder Bay for an unrelated matter.

[2] After several appearances in the Ontario Court of Justice (OCJ), a direct indictment was preferred on September 13, 2023. The applicant elected to be tried by a judge without a jury. The trial is scheduled to start January 31, 2025. It is agreed that the total time from arrest to anticipated conclusion of trial is 33.3 months.

[3] The applicant has applied for a stay of proceedings based on a violation of s. 11 (b) of the Charter. Submissions were made on April 16, 2024. On May 16, 2024, I dismissed the application.

[4] These are my reasons.

THE LEGAL FRAMEWORK

[5] In R. v. Coulter, 2016 ONCA 704 at paras. 34-41, the court summarized the framework to be applied in such applications:

[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 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).

[6] In R. v. K.J.M., 2019 SCC 55 at paras. 80-84, the court stated that all participants in the criminal justice system must work together and take a proactive approach from day one. This applied to both Crown and defence.

[7] In R. v. Thanabalasingham, 2020 SCC 18 at para. 9, the court confirmed that defence counsel must be aware that, aside from time legitimately taken to respond to the charges, they “will have directly caused the delay if the court and Crown are ready to proceed, but [they are] not” (Jordan at paras. 64 and 65).

PROCEEDINGS IN THE OCJ

[8] By September 20, 2022, Crown disclosure was substantially completed, including statements of the complainant. Ms. Muia took over from prior counsel of record on October 11, 2022. The judicial pretrial (JPT) in the OCJ was not conducted until April 25, 2023. In the meantime, counsel for the applicant focused on resolving outstanding charges in another jurisdiction and presenting a bail review on the Toronto charges.

[9] Those two priorities at that time were perfectly understandable and appropriate in the circumstances. However, the decision to prioritize resolution of the outstanding charges and bringing a bail review led to some delay in the Toronto proceedings that must be attributable to the defence. That delay extended the time for the parties to attend the necessary JPT.

[10] By December 16, 2022, a bail review application had been filed with the Superior Court of Ontario (SCO) but was then abandoned. By February 1, 2023, the outstanding charges in another jurisdiction were resolved. On February 27, 2023, a bail review hearing proceeded. The application was dismissed on March 6, 2023. The applicant continued to be detained on the Toronto charges.

[11] In court appearances from October 2022 through February 2023, counsel for the applicant routinely referred to the process of perfecting a bail review. The only reference to outstanding disclosure was on November 17, 2022 when she again referred to presenting a bail review. On February 12, 2023, the Crown sent an email referring to the need to set a JPT. It was only on April 3, 2023 after the bail review application was dismissed that a date for the JPT was set.

[12] The applicant submits that the JPT could not be completed earlier due to incomplete disclosure. However, unlike preparation for trial, it is not necessary that there be complete disclosure for an effective JPT to be held. Any complaints about the nature and extent of disclosure are among the issues routinely canvassed at a JPT. By late September 2022, the applicant had sufficient disclosure to schedule a JPT earlier than April 2023.

[13] At the JPT on April 25, 2023, it was agreed that three days would be scheduled for a preliminary hearing. Counsel were to consult with the trial coordinator and return on May 23, 2023 to set the dates. The first available dates were July 17, 18 and 27, 2023. They were available to the applicant but not to the Crown. The preliminary hearing was set for October 30, 31 and November 2, 2023.

[14] Based on the record in this case, a JPT for an accused in custody could be scheduled within three weeks of a request. By the time the applicant had resolved his outstanding charges on February 1, 2023, he should have been in a position to set a JPT that could have proceeded by approximately February 25, 2023. Based on that I would apportion two months of defence delay to the date of the JPT on April 25, 2023.

[15] On September 13, 2023, a direct indictment was preferred. The first appearance in the SCO was set for September 26, 2023.

PROCEEDINGS IN THE SCO

[16] The JPT was set for October 19, 2023. The court and the Crown were available for October 3, 5, 6, 10, 12, 13, 16, 2023. The unavailability of the defence for the earlier dates amounts to two weeks that should be deducted from the overall time to trial.

[17] At the JPT it was agreed that the jury trial would require three weeks with three days for pretrial motions. The Crown advised that there might be dates available in the summer.

[18] On October 30, 2023, counsel for the applicant provided available dates commencing March 2024. The Crown submitted their available dates ten days later.

[19] On November 14, 2023, on consent of the Crown the applicant re-elected mode of trial to judge alone in an effort to secure earlier dates.

[20] The Crown offered summer dates as soon as defence re-elected. Counsel for the applicant advised they were not available for trial between June 2024 – October 2024 inclusive. The trial estimate for a judge alone trial was two weeks.

[21] On November 21, 2023, both counsel were advised that the first available date was January 20, 2025. That was beyond the Jordan ceiling. Pretrial motions were set to proceed on April 29, 2024. Those dates were available to both counsel. The trial confirmation date indicated that counsel for the applicant was not available from June 2024 – October 2024 inclusive.

[22] On December 5, 2023, a further JPT was held, and it was agreed that a half day would be set for an application pursuant to s. 11 (b) of the Charter.

[23] As of January 27, 2024 no summer dates had been offered by the court. The matter was adjourned to the “Jordan Court” to see if earlier dates were available.

[24] On February 12, 2024, the Crown advised counsel for the applicant that summer dates were not yet available. The Crown advised that it was available for trial July 8 – 19, 2024 if those dates became available. The Crown further advised that they may be available in August 2024, if offered by the court.

[25] On February 29, 2024, the court offered the following earlier trial dates:

• July 8 – 19, 2024
• August 9 – 30, 2024
• September 23 – October 4, 2024

The Crown was available for all of those dates. Counsel for the applicant was unavailable.

[26] On April 15, 2024, the Crown advised counsel for the applicant that the court offered two weeks for trial to commence September 23, 2024. The Crown was available for those dates. Counsel for the applicant responded that they were not available based on other trial commitments set for two weeks from September 23, 2024 and five days from October 2024.

[27] The applicant submits that with the pretrial motions set for April 29, 2024 that would be insufficient time for a July 2024 trial date in any event.

ANALYSIS

[28] The Crown does not assert that this is a complex case or that the COVID pandemic was an exceptional circumstance relevant to this application.

[29] The applicant submits that lack of judicial resources is a factor. However, this is not one of those cases where matters set for trial could not be reached due to a lack of judicial resources. Most of those cases were stayed under ss. 11 (b) and 24 (1) of the Charter since the new trial date was over the Jordan ceiling. That is not the situation on the current application.

[30] The fact that the applicant has been detained throughout (albeit that some of the time may relate to other outstanding matters now resolved), is a factor. The chronology and scheduling in this case demonstrate that the court and both counsel took meaningful steps for an accused under detention. The applicant re-elected to judge alone which shortened the trial estimate from three weeks to two weeks. The court and Crown offered trial dates in the summer of 2024, some six months earlier than the scheduled trial date in January 2025.

[31] Counsel for both the applicant and Crown faced challenges in setting reasonably early trial dates on charges such as human trafficking.

[32] Counsel for the applicant represented other clients awaiting trial, some of whom were also in pretrial detention. Counsel needed reasonable time to receive and review disclosure and prepare for pretrial motions and for trial.

[33] In cases such as human trafficking or other sexual related offences, counsel for the Crown is usually assigned to carry through the case start to finish. That is not always possible but that is the goal.

[34] I am satisfied that neither counsel took any actions, nor failed to take any actions, that led to unacceptable delays in the progress of the case through two levels of court. However, in this case where the applicant seeks a stay of these serious charges the court is obliged to consider the consequences of some actions of the defence as well as the availability of counsel for trial dates in the summer of 2024.

[35] I have earlier referred to some period of delay in the OCJ related to a delay in setting a date for the JPT. That time is attributed to the defence. In regard to the SCO there is a further time that must be so attributed to the defence.

[36] Aside from their unavailability for dates in the summer of 2024, counsel submits that pretrial motions set for April 2024 did not leave sufficient time for a trial in July 2024. I do not agree. The two-step process for an application pursuant to s. 276 of the Criminal Code could readily be completed and ruled upon in time for a trial in July 2024.

[37] I agree that the unavailability of counsel for the applicant for the period running from July 2024 does not automatically render the entire time thereafter attributable to the defence: R. v. Hanan, 2012 SCC 12 at para. 9. In all the circumstances it would be fair and reasonable to attribute half of that time, being approximately three months to the defence.

[38] The combined net time in the two levels of court then totals approximately 28.3 months which is below the Jordan ceiling.

[39] In R. v. Musclow, 2024 ONCA 565, at para. 2 the court referred to the situation where the delay falls below the Jordan ceiling.

In a case where delay falls below the ceiling after any relevant deductions are accounted for, Jordan holds that delay may still be unreasonable if the defence establishes 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. The majority in Jordan expected stays in below-ceiling cases to be “rare, and limited to clear cases”: Jordan, at para. 48.

[40] In a case involving human trafficking it cannot be said that this matter took markedly longer than it reasonably should have. It is also not such a clear case as should attract the remedy of a stay.

RESULT

The application is dismissed.

B.P. O’Marra J. Released: July 31, 2024