Court File and Parties

COURT FILE NO.: CR-23-205 DATE: 2024/09/03 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – CODY LENARD Defendant

COUNSEL: M. Crystal, for the Crown R. Currie, for the Defendant

HEARD: August 1, 2024

Publication Restriction Notice

By court order made under subsection 517(1) of the Criminal Code, no evidence taken, information given, representation made, or reasons given by the court shall be published in any document, or broadcast or transmitted in any way until the accused is either discharged following a preliminary inquiry or his trial is ended.

ELLIES J.

Reasons for Decision

Overview

[1] Cody Lenard is accused of committing an aggravated assault in which he allegedly used a machete against the complainant, his brother.

[2] The Information charging the accused was sworn on November 23, 2021. The charges are scheduled for trial before a judge and jury beginning on February 3, 2025, and ending on February 7, 2025. If the trial ends on that date, the case will have taken 1,172 days from beginning to end. [1] That is 8.5 months longer than the presumptive ceiling of 30 months established in R. v. Jordan, 2016 SCC 27, [2006] 1 S.C.R. 631, at para. 46, for cases in the Superior Court. [2] The accused applies, therefore, for a stay of the proceedings under ss. 11(b) and 24(2) of the Canadian Charter of Rights and Freedoms.

[3] The Crown opposes the application. It submits that, once defence delay is deducted, the length of time from start to finish will be only 753 days, or 24.7 months. The defence concedes that it is responsible for 35 days of delay, but submits that the Crown is responsible for the remaining delay, which still exceeds the ceiling.

[4] The central issue in the application is the proper characterization of 6.7 months of delay between the date of the swearing of the Information and the date the accused turned himself into police custody, during which time the accused was outside of the Province of Ontario. The Crown contends that the accused was evading the police during this period of time and the delay is, therefore, defence delay. If so, taken together with the other defence delay, the trial will finish within the presumptive ceiling.

[5] For the following reasons, the application is granted, and the charge is stayed.

Legal Framework

[6] This area of the law is well-settled. The following summary of the Jordan framework employs the terminology used by Gillese J.A. in R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-50:

• The first step is to calculate the total delay from the date the information was sworn until the date the trial is expected to end: Jordan, at para 47.
• Defence delay is then deducted from the total delay, resulting in the “net delay”: Jordan, at para. 66.
• Defence delay is either: (1) delay that results from a defence waiver of s. 11(b), or (2) delay caused solely or directly by the conduct of the defence: Jordan, at paras. 61 and 63.
• If the net delay exceeds the ceiling, it is presumptively unreasonable. The Crown may rebut the presumption by establishing the presence of exceptional circumstances: Jordan, at para. 47.
• In general, exceptional circumstances are either (1) discrete events, or (2) particularly complex cases: Jordan, at para. 71. They lie outside the Crown's control because they are reasonably unforeseen or unavoidable and the delay they cause cannot be reasonably be remedied: Jordan, at para. 69.
• The delay caused by discrete events must be deducted from net delay to arrive at the “remaining delay”: Jordan, at para. 75.
• If the remaining delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time it has taken is justified and the delay is reasonable: Jordan, at para. 80.
• If the remaining delay falls below the ceiling (which I will call “sub-ceiling delay”), the onus is on the defence to show that it is unreasonable: Jordan, at para. 48. It may do this by demonstrating both (1) that it took meaningful, sustained steps to expedite the proceedings, and (2) that the time the case has taken markedly exceeds the reasonable time requirements of the case: Jordan, at paras. 82, and 87.

[7] With this framework in place, I will move to an analysis of the periods of time at issue in this application.

Analysis

Total Delay

[8] As mentioned earlier, the total delay from the date the accused was charged on November 23, 2021, until the projected end of the trial on February 7, 2025, is 1,172 days. This is the equivalent of roughly 38.5 months.

Defence Delay

[9] According to the Crown, there are four periods of time that should be deducted from the total delay as defence delay. One of them overlaps with the others. They are as follows:

(1) the period from the date the Information was sworn on November 23, 2021, until the accused surrendered himself into police custody on June 14, 2022; (2) the period from September 23, 2022, the date of the Crown Pre-trial Conference (“CPT”), until June 20, 2023, when the preliminary hearing date of November 29, 2023, was confirmed; (3) the period from November 8, 2022, until the Judicial Pre-trial Conference (“JPT”) was held in the Ontario Court of Justice (“OCJ”) on February 6, 2023; and (4) the period from February 14, 2023, the date of the first appearance in court after the JPT, until May 2, 2023, the date of the last court appearance in the OCJ before the accused was arrested on other matters.

[10] For reasons I will explain, I view things differently. However, I will use these periods for the purpose of my analysis.

The period from the date the Information was sworn on November 23, 2021, until the accused surrendered himself into police custody on June 14, 2022:

[11] The s. 11(b) clock begins to run from the date the Information is sworn, not from the date of an accused's arrest: R. v. Kalanj, [1989] 1 S.C.R. 1594, Jordan, at paras. 47-48; R. v. Allison, 2022 ONCA 329, at para 43. From the moment the s. 11(b) clock begins to tick, an accused has a right to be tried within a reasonable time and the Crown has a corresponding duty to bring the accused to trial: R. v. Beason (1983), 43 O.R. (2d) 65, at para. 63.

[12] The Information in this case was sworn on November 23, 2021. Nothing further occurred in the prosecution of the charge until after the accused surrendered into police custody on June 14, 2022, a period of 203 days, or 6.7 months. The Crown contends that the accused was evading arrest during this period and submits that the delay is, therefore, defence delay. I am unable to agree.

[13] Cases decided since Jordan have characterized periods of time during which an accused is out of the jurisdiction as either defence delay or a discrete exceptional circumstance: see, for e.g., R. v. Magiri, 2017 ONSC 2818; R. v. Thind, 2018 ONSC 1337. Where an accused actively evades arrest on the charges in question, the resulting delay is properly characterized as defence delay: R. v. Burke, 2018 ONCA 594. However, it is not clear upon whom the onus of proving such evasion falls. There is nothing about the onus of proving defence delay in Jordan, nor in any of the other Supreme Court of Canada cases decided since Jordan that I have consulted. In the only binding post-Jordan decision to which I have been referred dealing specifically with the issue, the accused admitted that he had evaded arrest: Burke, at para. 11.

[14] The Crown submits that the onus is on the accused “to prove that the police were not diligent in trying to execute the arrest”. Clearly, this submission is not correct where the Crown alleges that an accused's absence from the jurisdiction constitutes an exceptional discrete event. The Supreme Court in Jordan and subsequent cases was clear in placing the onus of proving exceptional circumstances squarely upon the Crown once the presumptive ceiling is reached: Jordan, at para. 47.

[15] Cases decided before Jordan have at least required that the Crown prove the accused knew about the charge or charges to constitute defence delay. In R. v. White (1997), 32 O.R. (3d) 722, [1997] O.J. No. 961 (Ont. C.A.), the accused was charged with defrauding the public of income tax by making false claims under a scientific research tax credit program. He moved to the United States about six months after his business premises were searched. Not long after the charges were laid under the Income Tax Act, he moved from Massachusetts to California. He also later read in a Canadian newspaper that the RCMP had obtained a warrant for his arrest.

[16] The Court of Appeal upheld the trial judge's finding that White was responsible for the delay from the date charges were laid under the Income Tax Act, upon which charges he could not be extradited, to the date charges were laid under the Criminal Code, upon which charges he could be extradited. At para. 37, Laskin and Charron JJ.A., wrote for the court:

Because White knew charges were outstanding against him yet refused to return to Canada, tell the Crown where he was or even contact the Crown through a third party, the delay must be attributable to him unless the Crown knew his whereabouts and deliberately delayed apprehending him or did not diligently bring him to trial. [Citations omitted.]

[17] Based on the decision in White, I believe that, at a minimum, the Crown must demonstrate that the accused knew about the aggravated assault charge. This requirement appears to have been accepted by other courts, as well: R. v. DeBruyn, 2019 ONCJ 818, at para. 31; R. v. Smith, 2023 ONCJ 222, at paras. 18 and 20.

[18] As I will now explain, the Crown has failed to do that.

[19] The Crown relies upon three pieces of evidence in support of its submission that the applicant was evading arrest.

[20] The first piece of evidence relied upon by the Crown relates to another charge. In 2019, the applicant was arrested and charged with failing or refusing to provide a sample of his breath under the provisions of the Criminal Code relating to impaired driving. He was released on a promise to appear on December 17, 2019. However, it is alleged that he failed to appear in answer to the charge and that, on December 22, 2020, a bench warrant was issued for his arrest. That warrant was outstanding at the time the Information in this case was sworn on November 23, 2021, and remained outstanding until the accused turned himself in on June 14, 2022.

[21] The second piece of evidence relied upon by the Crown as proof of evasion is a phone message left by the police on November 15, 2021, on an answering service allegedly belonging to the accused. According to an unsworn “Supplementary Occurrence Report” which appears to have been prepared in response to this application, a police officer spoke with the accused's former girlfriend on November 15, 2021, and then dialled a phone number and left a message on a voicemail system which was “in [the accused's] name” to “advise him of the charge and [ask] him to call back”, which the accused did not do.

[22] The third and final piece of evidence is found in the same unsworn occurrence report. According to the report, in May 2020, the complainant contacted the police to advise that the accused was “hiding out” in Newfoundland with a new girlfriend.

[23] None of this evidence, alone or in combination, is sufficient to satisfy me that the accused knew about the charge.

[24] The police were aware from the moment the complaint was made on September 7, 2021, that the accused was employed for extended periods of time outside of the Province of Ontario. They were told this at the time of the complaint and again on October 10, 2021. Indeed, they were told this again on November 15, 2021, by the accused's former girlfriend, who said that the accused was still out of the province with no known return date. Thus, the mere fact that the accused left the jurisdiction after the alleged assault is insufficient to infer that he was evading the police.

[25] Nor does the evidence allow me to infer that the phone message came to the accused's attention. The recent occurrence report does not even identify the number that was called. The only number identified in the evidence as belonging to the accused is one that was given to the police by the complainant on September 7, 2021. There is no indication that the phone number given at that time was a cell phone number (i.e. something which would travel with the accused) or a landline number (i.e. something which would not). However, given that the information provided by the complainant at that time also included the accused's residence address, I believe it would be safer to infer that the number was not a cell phone number.

[26] If the phone number called on November 15, 2021, was the accused's residence, it is not possible to infer that it came to his attention on that date or any other date before June 14, 2022. The Crown's evidence indicates that the police increased patrols in the area of the accused's residence during that period and were still unable to locate him.

[27] Finally, there is no evidence as to the source of the complainant's unsworn hearsay evidence that the accused was hiding out in Newfoundland in May 2022. Therefore, it is valueless as evidence.

[28] Without some evidence that the accused knew about the present charge, it is not possible to infer that he was evading arrest on it. For this reason, I would not characterize this period of time as defence delay. For reasons I will explain below, I would also not characterize it as a discrete event.

The period from September 23, 2022, the date of the CPT, until June 20, 2023, when the preliminary hearing date of November 29, 2023, was confirmed:

[29] In an argument that I must say I find as far-reaching as I do difficult to accept, the Crown submits that the entire period of time from the date a CPT was held until the date a preliminary inquiry date was confirmed should be characterized as defence delay.

[30] The Crown submits that it was obvious at or after the CPT that this case was headed to a preliminary inquiry and then to trial. It argues that the defence ought to have filed its Notice of Election and Statement of Issues for the preliminary hearing earlier, more diligently sought the accused's instructions, and prioritized resolving the aggravated assault charge over the other charges faced by the accused. While I do not disagree with these submissions, I cannot agree that the defence is responsible for all of the delay encompassed by this period of time.

[31] The presumptive ceilings set in Jordan incorporate the reasonable inherent time requirements of every case, including the need for defence counsel to prepare: Jordan, at para. 65; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 29. Contrary to the Crown's assertion, in my view, preparation time includes the time required to give advice and to obtain instructions. The Crown's submission would allow no time whatsoever for either of these two crucial aspects of defence preparation. As a result, I reject the submission that the defence is responsible for the entire period of delay encompassed by this period of time.

[32] Nonetheless, defence actions taken to respond to the charges must be “legitimate”: Jordan, at para. 65. As the decision in Cody made clear, inaction on the part of the defence may constitute defence conduct that is not legitimate. As the Supreme Court held in Cody, at para. 32:

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 … Accused persons must bear in mind that a corollary of the s. 11(b) right “to be tried within a reasonable time” is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to “actively advanc[e] their clients’ right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and ... us[e] court time efficiently” (Jordan, at para. 138).

[33] Thus, a court may refuse an adjournment request by the defence that would result in unreasonable delay: Cody, at para. 37; R. v. Thanabalasingham, 2020 SCC 18, [2020] 2 S.C.R. 413 at para. 9.

[34] To determine how much of the delay between September 23, 2022, and June 20, 2023, is defence delay, it is necessary to examine in detail what happened over that period of time. In this part of my reasons, I will examine the delay from September 23, 2022, until November 8, 2022. I will examine the delay after November 8, 2022, when I examine the next period of time raised as an issue by the Crown.

[35] The first court appearance after the CPT was on October 4, 2022. At that appearance, the defence indicated that they needed to obtain instructions from the accused. There were 11 days between the CPT and the first court appearance. Given what I have said about the accused working out of the province, I do not find it unreasonable that the defence was not able to obtain instructions over that period of time. To allow the defence to obtain those instructions, the matter was adjourned from October 4 to October 25, 2022.

[36] On October 25, the defence indicated that it had obtained instructions. However, it requested a further adjournment to November 8, 2022, “to action the next steps”. No explanation was offered by the defence as to why those next steps, which would ordinarily include scheduling a JPT, were not already completed. By that point, more than one month had passed since the CPT. In R. v. Loughlin, 2024 ONSC 2717, at para. 84, the court found that two weeks was sufficient to obtain instructions. In R. v. Lee, 2017 ONSC 4862, at para. 22, the court found that one week was sufficient and that one month was unreasonable. Considering these cases, I believe that the defence ought to have been able to obtain instructions and act on those instructions within the month between September 23 and October 25, 2022. For that reason, I attribute the delay between October 25, 2022, and November 8, 2022, to the defence. This comprises 13 days of delay.

The period from the November 8, 2022, until the JPT was held in the OCJ on February 6, 2023:

[37] By November 8, 2022, the defence had still not scheduled a JPT. Therefore, it requested a further adjournment to December 6, 2022, for that purpose. For the reasons expressed above, I also attribute this period 30 days delay to the defence.

[38] Unfortunately, by December 6, the defence had still not scheduled the JPT. Accordingly, it requested a further adjournment to January 10, 2023. The applicant concedes that this delay of 35 days is attributable to the defence.

[39] On January 10, 2023, a JPT date of February 6, 2023, was confirmed. This period of time between scheduling the JPT with the TC and confirming it on the record is part of the inherent time requirements and would have occurred at the October 25, 2022, appearance had the JPT been scheduled in a timely way. Therefore, I would not characterize this as defence delay.

The period from February 14, 2023, the date of the first appearance in court after the JPT, until May 2, 2023, the date of the last court appearance in the OJC before the accused was arrested on other matters:

[40] The first court appearance after the JPT was on February 14, 2023. On that date, the defence requested an adjournment to obtain instructions following the JPT. The request was granted, and the case was adjourned to February 28, 2023, for that purpose.

[41] The Crown maintains that the defence is responsible for the entire period of delay between the February 14 appearance and May 2, 2023. Again, this argument is based on the premise that the presumptive ceilings in Jordan do not allow any time for defence counsel to provide advice and obtain instructions, a position I have rejected for the reasons expressed above.

[42] In my view, the defence request for an adjournment on February 14, 2023, was legitimately made for the purpose of defending against the charge and, therefore, the period from February 14 to February 28, 2023, is not defence delay.

[43] However, the same cannot be said for the remainder of this period and for the period from May 2, 2023, to May 30, 2023, as I will explain.

[44] When this case was addressed again on February 28, 2023, the defence advised that the refusal charge from 2019 was going to resolve by way of a plea to a Highway Traffic Act offence, but that the accused was “still weighing his options” about the aggravated assault and a harassment charge. Accordingly, the defence asked for and was given an adjournment to March 21, 2023. In my view, the defence ought to have obtained instructions on the aggravated assault charge by February 28, which was three weeks after the JPT. Obviously, it had been able to obtain instructions on one of the three charges by then. While I can understand that an accused might want more time to consider matters, that time must be deducted as defence delay when it becomes unreasonable, as I believe it was. Therefore, I would characterize the delay of 21 days between February 28 and March 21, 2023, as defence delay.

[45] On March 21, 2023, the defence advised that the criminal harassment charge was going to be resolved by having the accused enter into a recognizance under s. 810 of the Criminal Code on March 30, 2023. The defence requested that the aggravated assault charge be adjourned again to April 11, 2023, for the purpose of filing a Notice of Election and that the defence would have “something substantive” on that charge by then. Again, in my view, this adjournment ought not to have been necessary and, therefore, was not legitimate. It added a further 21 days of defence delay to the total delay.

[46] In what was by then becoming a pattern, on April 11, the defence again requested an adjournment to obtain instructions, this time about the mode of trial. The defence advised that it had an appointment for that purpose with the accused on April 17, 2023. By now, both the Crown and the court were beginning to express concern about defence delay. However, the adjournment request was granted, and the matter went to May 2, 2023. For the reasons expressed earlier, I would characterize the 21 days of delay as defence delay.

[47] Notwithstanding all of the earlier adjournments to obtain instructions and act upon them, on April 11, 2023, the defence again requested an adjournment. The lawyer in attendance that day told the court that he believed that the aggravated assault charge would be the subject of a preliminary inquiry, but that he did not think that the forms had been filed yet. Therefore, he requested and was granted a further adjournment to May 30, 2023. For the same reason as the other delay arising after February 28, I characterize the 28 days to May 30, 2023, as defence delay.

[48] On May 18, before the case could be addressed again, the accused was arrested on a charge of breaching what I assume was the s. 810 recognizance he had recently entered into. During his court appearance on that charge, all of the charges were adjourned to June 13, 2023, rather than May 30. On June 13, the court was advised that the preliminary hearing forms had been filed on May 23, but the preliminary hearing date had not yet been set by the TC. The court adjourned the case one week to set the date and a date of November 29, 2023, was confirmed during the court appearance on June 30. Given the indication on June 13 that the defence had followed up with the TC shortly after filing the forms on May 23, I would not attribute any further delay in setting the preliminary inquiry date to the defence.

[49] In total, therefore, I find that the unnecessary requests for adjournments by the defence resulted in 169 days, or 5.5 months of defence delay.

Net Delay

[50] Under the Jordan framework, defence delay must be subtracted from total delay. Deducting the 5.5 months of defence delay leaves 33 months of net delay. This exceeds the presumptive ceiling by 3 months. I must, therefore, consider the issue of exceptional circumstances.

Exceptional Circumstances

Discrete Events

[51] Discrete events operate similarly to defence delay, except that the delay caused by discrete events is subtracted from the net delay, rather than the total delay: Jordan, at para. 75.

[52] As I noted above, in some cases, courts have characterized the delay resulting from the fact that an accused is out of the jurisdiction as a discrete event. The Crown urges me to do that in this case.

[53] To qualify as an exceptional circumstance, the Crown must demonstrate that the circumstances causing the delay were both: (1) unforeseen or reasonably unavoidable, and (2) could not reasonably be remedied: Jordan, at para. 69. The Crown is not required to show that it exhausted every conceivable option to satisfy the reasonable diligence requirement: Cody, at para. 54; Thind, at para. 79. However, even with that qualifier, the Crown has not satisfied the reasonable diligence requirement here.

[54] As I mentioned earlier, the police were aware from the moment the complaint was made on September 7, 2021, that the accused worked for extended periods of time out of the province. This was confirmed on October 10, 2021, when the police spoke to the accused's mother. Therefore, the police knew on November 29, 2021, when they obtained a warrant for the accused's arrest, that he was working elsewhere in Canada. In fact, the evidence is that the police continued to believe that the accused was out of the province at least until the end of May 2022. And yet, rather than apply to the Superior Court of Justice for a Canada-wide arrest warrant under s. 703(1), they applied only to a Justice of the Peace for a warrant limited to the Province of Ontario.

[55] The Crown relies on the fact that the police posted the arrest warrant on the Canadian Police Information Centre (“CPIC”) database. This is not enough: R. v. M.A., 2023 ONCJ 113, at para. 35. While posting the warrant on CPIC may have assisted in the event the accused was arrested in another province on a different charge, it did not give police in that province authority to arrest the accused on the aggravated assault charge.

[56] In addition to the information the police had concerning the accused's residence and telephone number, mentioned earlier, they also had his email address and the name of his employer. There is no evidence that the police attempted to contact the accused or to determine his whereabouts through either avenue.

[57] In fact, although the evidence is that the police stepped up patrols in the area of the accused's residence after charging him, it appears that no one bothered to knock on his residence door after November 15, 2021, until June 14, 2022, when they spoke to a female at that address. The accused turned himself in later that same day.

[58] In my view, the police did not exercise reasonable diligence in obtaining or executing the arrest warrant in this case. Therefore, the Crown has failed to satisfy me that the accused's absence from Ontario was an exceptional circumstance and the delay between November 23, 2021, when he was charged and June 14, 2022, when he surrendered into police custody is not, therefore, deductible from the net delay.

Complexity

[59] As an exceptional circumstance, the complexity of a case can operate to increase the permissible net delay, as opposed to reducing it the way that discrete events do: Jordan, at para. 80.

[60] Neither side argues that the presumptive ceiling should be raised because of the complexity of this case.

Conclusion

[61] For the foregoing reasons, I find that the defence is responsible for 5.5 months of total delay, leaving a net delay of 33 months. I also find that the 6.7 months of delay resulting from the fact that the accused was out of the province is neither defence delay nor a discrete exceptional circumstance. Therefore, it should not be deducted from either the total delay or the net delay.

[62] Because the delay remains above the presumptive ceiling, the application must be allowed. The charges are, therefore, stayed under ss. 11(b) and 24(2) of the Charter.

Footnotes

[1] In its factum, the Crown contends that the accused charts the total delay at 1,137 days, or 37.3 months. This is incorrect. The accused charts the delay exactly as I do, at 38.5 months.

[2] The overall time frame at issue in this case includes a leap year (2024), in which there is an extra day. Therefore, in order to convert days to months, I have taken the total number of days in four years, including one leap year (1,461), and divided that number by 48 months. In this way, I have arrived at a divisor of 30.44. The difference, if any, in using this number as opposed to the divisor for periods not including a leap year (30.42) is very small.

M.G. Ellies J. Released: September 3, 2024