COURT FILE NO.: CR-23-49-MO
DATE: 2024/08/29
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
Respondent
– and –
C.M.
Applicant
COUNSEL:
Greg Skerkowski, for the Crown
Mark Ertel and Michelle O’Doherty, for the Applicant
HEARD: July 24 and 26, 2024 (By videoconference)
RULING ON APPLICATION
CORTHORN J.
Introduction
[1] C.M. is charged with three counts of sexual assault and one count of extortion. There are three complainants. The charges against C.M. in relation to two of the three complainants were laid on January 31, 2022. The charges in relation to the third complainant were laid on January 24, 2022. The Jordan[^1] dates are not in dispute; they are July 21, 2024 and July 24, 2024.
[2] The trial dates were set at two assignment court appearances in the fall of 2023. Initially the trial was scheduled to be completed in two blocks of time in August 2024. In the end, the trial is scheduled for one block of time in August 2024 (the 12th to the 16th) and a second block of time in September 2024 (the 23rd to the 26th).
[3] As of the date of these reasons, the trial is scheduled to be completed on September 26, 2024. That date is 65 and 68 days after the two Jordan dates previously mentioned. In the spring of 2024, the defence informed the Crown of C.M.’s intention to bring the Jordan application now before the court. Notice in that regard was given on May 27, 2024.
[4] The notice of application is dated June 3, 2024. The return date for the application is identified therein as August 7, 2024. The application was heard over two half-days – on July 24 and 26, 2024.
[5] C.M. asserts that the delay in bringing the charges against him to trial (a) has been unreasonable, and (b) constitutes a breach of his s. 11(b) Charter right to be tried within a reasonable time. C.M. asks the court to stay the proceedings against him.
[6] The Crown acknowledges that the total delay in this proceeding exceeds the 30-month presumptive time frame for a trial and, as a result, merits an inquiry.
[7] The Crown’s position is that there are two time periods that can be characterized as defence delay and two discrete events that can be characterized as exceptional circumstances. By the Crown’s calculation, after accounting for defence delay and exceptional circumstances, the resulting net delay is under the 30-month presumptive ceiling. The Crown asks the court to dismiss the s. 11(b) application.
[8] On August 1, 2024, the court delivered its decision orally, with written reasons to follow. The application is dismissed for the reasons given in this ruling.
Summary of the Jordan Framework
[9] The framework for the analysis to be carried out by the court on a s. 11(b) application, with the Jordan principles in mind, is set out in paras. 34-42 of the decision of the Court of Appeal for Ontario in R v. Coulter, 2016 ONCA 704, 133 W.C.B. (2d) 125:
• Calculate the total delay, which is the period from the swearing of the information to the actual or anticipated end of trial (i.e., the end of the evidence and closing argument).
• To calculate the net delay, subtract defence delay, including delay that is waived by the defence, from the total delay.
• Compare the net delay to the presumptive Jordan ceiling.
• If the net delay exceeds the presumptive ceiling, the delay is presumptively unreasonable. The onus is on the Crown to rebut the presumption of unreasonable delay by establishing the presence of exceptional circumstances. If the Crown is unable to do so, a stay will follow. Exceptional circumstances fall under two categories: discrete events and particularly complex cases.
• To calculate the remaining delay, subtract, from the net delay, delay caused by discrete events.
• If the remaining delay exceeds the presumptive ceiling, consider whether the case was particularly complex, so as to justify the time the case has taken and lead to a conclusion that the delay is reasonable.
• If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is, in any event, unreasonable.
[10] I apply the Jordan framework in accordance with the steps summarized in the preceding paragraph.
Step One – Total Delay
[11] The presumptive ceiling is exceeded by 68 days for the charges related to two of the three complainants and by 65 days for the charges related to one of the complainants.
Step Two – Identify and Subtract Defence Delay
[12] The Crown submits that there are two periods of defence delay. The first period relates to the scheduling of trial dates; the second period relates to the timing of the notice given by the defence of the s. 11(b) application. I deal with the two periods of alleged defence delay in that order.
a) The August and September 2024 Trial Dates
[13] The appearances before this court and other events in August, September, and November 2023 relate to setting the trial dates.
[14] At the judicial pre-trial (“JPT”) conducted on August 25, 2023, the court approved of setting eight days for the trial. The court also identified that two dates were required for a two-stage application related to the admissibility of the employment records of one of the complainants. The matter was adjourned to the September 22, 2023 assignment court to set the trial and application dates.
[15] In keeping with the practice in Kingston, on September 15, 2023, the Trial Co-ordinator met with counsel for the parties to identify trial dates. Working with the Trial Co-ordinator, counsel for the parties agreed to trial dates of August 12-16 and 20-22, 2024. The intention was to confirm the trial dates at the September 22, 2023 assignment court.
[16] At the September 22, 2023 assignment court, an agent for defence counsel informed the court that an error had been made during the September 15, 2023 meeting. One of the two defence counsel would not be available for the August 20-22, 2024 block of time. The matter was put over to the November 3, 2023 assignment court to permit counsel for the parties to consult with the Trial Co-ordinator and identify a different block of time for the final three days of the trial.
[17] A new three-day block of time was identified. At the November 3, 2023 assignment court, the trial dates were confirmed as August 12-16, 2024 and September 23-26, 2024. In addition, the two-stage records application was scheduled for May 3, 2024 and June 7, 2024.
[18] The delay from the original completion date agreed upon (August 22, 2024) to the completion date now anticipated (September 26, 2024) is 35 days. The Crown asks the court to characterize that period as defence delay.
[19] I agree with the Crown that requiring the defence to be available on August 20-22, 2024 –eleven months after those dates were proposed and agreed upon – does not equate to requiring the defence to be perpetually available. My agreement with the Crown in that regard does not, however, lead automatically to the result that the 35 days are characterized as defence delay.
[20] In paras. 61 and 63 of Jordan, the Supreme Court of Canada explains the two components of defence delay. The first component is delay waived by the defence. In the matter before this court, there is no suggestion that the defence waived any of the delay.
[21] The second component is “delay caused solely by the defence”: at para. 63. To define that type of delay, the Court relies on the decision in R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, at pp. 1227-28: “[it] 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’”.
[22] In R. v. M.W., 2023 ONCJ 581, Monahan J. was required to consider whether the defence turning down an offer of a trial date commencing earlier than the set trial date constituted defence delay. The offer of the earlier trial date was made approximately four months prior to the set trial date. The offer, if accepted, would have advanced the trial date by approximately four weeks.
[23] Monahan J. concluded that the period between the set trial date and the earlier trial date offered did not constitute defence delay: at para. 30. In support of that conclusion, Monahan J. relied on the decision of the Supreme Court of Canada in R. v. Hanan, 2023 SCC 12.
[24] In Hanan, the Supreme Court made it clear that there is no “bright-line rule”, when the court and the Crown are available and the defence is not, requiring the time to the next available date to be treated as defence delay: at para. 9. Summarizing Hanan, Monahan J., at para. 31 of M.W. says, “The Court must consider all of the circumstances including whether the Crown and the Court were available during the subsequent period of time [the Crown seeks] to have characterized as defence delay.”
[25] In Hanan, the defence was unavailable for a June 2019 trial date offered by the court and for which the Crown was available. The court, the Crown, and defence were available for an alternate trial date offered of October 28, 2019. The Supreme Court agreed with the treatment by the Court of Appeal for Ontario of the delay from June to October 2019. Upon consideration of all the circumstances, it was not defence delay: at para. 9.
[26] The circumstances in Hanan are analogous to those in the matter before this court. First, in both Hanan and this court, for reasons beyond the control of the defence, the trial did not proceed on the first set trial date. In Hanan, the trial was adjourned because of eve-of-trial developments which changed the Crown’s case. As discussed later in these reasons, in the matter before this court, the trial did not proceed on the original May 2023 date because of a lack of judicial resources in the Ontario Court of Justice.
[27] Second, in Hanan, the defence rejected the first, and accepted the alternate trial date offered. In the matter before this court, the defence accepted the first set of dates for the first block of trial time; rejected the first set of dates offered for the second block of trial time; and accepted the second set of dates offered for the second block of trial time.
[28] Considering all of the relevant circumstances, I do not apportion any of the 35 days between August 22, 2024 and September 26, 2024 to defence delay.
[29] I move on to the second form of defence delay alleged by the Crown.
b) Late Notice of the s. 11(b) Application
[30] At the November 2023 assignment court, dates were set and for the trial, and for a two-part application related to the admissibility of employment records for one of the complainants (“the records application”). It is undisputed that the defence made no mention at that assignment court, or at any stage of the proceeding prior to it, of a possible or intended s. 11(b) application.
[31] The index to the application record lists partial or complete transcripts for sixteen appearances between February 10, 2022 and November 3, 2023.
[32] As of the date on which the s. 11(b) application record was filed, the transcript for the November 3, 2023 assignment court appearance was not available. The lack of inclusion of a copy of that transcript in the record does not impact the outcome of this application.
[33] On April 10, 2024, the defence ordered thirteen of the fifteen transcripts included in the application record. The defence ordered the other two transcripts on May 24, 2024. The latter date falls between the two dates on which the records application was heard (May 3, 2024 and June 7, 2024).
[34] The defence first gave the Crown notice on May 27, 2024 of the defence’s intention to bring a s. 11(b) application. That notice was given in the form of an email to the court and to the Crown. In the email, the defence inquired about the possibility of scheduling a half-day hearing for the s. 11(b) application.
[35] The Crown asks the court to characterize a portion of the time between November 3, 2023 and May 27, 2024 as defence delay. Specifically, the Crown asks the court to (a) find that the defence is responsible for 50 per cent of the 206 days in that period (i.e., 103 days of defence delay), (b) allow a grace period of 30 days, and (c) conclude that, with a reduction for the grace period, the defence delay is 73 days (i.e., 103 minus 30 days).
[36] The Crown highlights that the defence has offered no explanation as to why they waited until almost seven months had passed, after both the trial and records application dates were set, before providing notice of their intention to proceed with a s. 11(b) application. That notice was given six weeks after the majority of the transcripts were ordered and 2.5 months prior to the date on which the trial is scheduled to commence.
[37] In response, the defence position is that there is no evidence as to steps the Crown could have taken to mitigate the delay to the completion of trial, had earlier notice of the s. 11(b) application been given. In addition, the defence submits that the Crown’s arithmetic approach to the calculation of this component of alleged defence delay has not been endorsed by the Court of Appeal for Ontario. The defence submits that, in any event, it would constitute an error for the court to apply the Crown’s arithmetic approach in the circumstances of this case.
[38] In support of its arithmetic approach, the Crown relies on two decisions from the Ontario Court of Justice and one decision from this court: M.W., at paras. 33-44; R. v. Nigro, 2023 ONCJ 41, at paras. 35-38; and R. v. W.S., 2024 ONSC 1668, at paras. 106-119. In each of those decisions, the court applies an arithmetic approach similar to that proposed by the Crown before this court. The minor variations in the approaches are not relevant to the outcome of the application before this court.
[39] Not surprisingly, the three decisions upon which the Crown relies are distinguishable, on their facts, from the matter before this court. The distinguishing features include one or more of,
• the number of months that passed, after trial dates were set, before notice was given by the defence of the intention to bring a s. 11(b) application;
• the amount of time between the date upon which trial dates were set and the set trial dates;
• the number of months between the date on which notice of the s. 11(b) application was given and the set trial dates;
• whether any delay could be attributed to COVID-19; and
• whether, by the date on which the trial dates were set, the applicable presumptive ceiling had been reached.
[40] These factual distinctions do not preclude the court from considering the arithmetic approach applied and the reasons why such an approach was applied in each of the decisions.
[41] The defence before this court submits that there exists another distinguishing feature between the three decisions upon which the Crown relies and the matter before this court. The defence submits that in one or more of those three decisions, the record before the court included evidence as to the steps the Crown could have taken in an effort to remedy delay had it received earlier notice of the s. 11(b) application.
[42] I reject that submission. For example, in W.S., Rasaiah J. considered the timing of notice of the application relative to the date on which the trial dates were set and relative to the set trial dates: at paras. 115-16. In addition, Rasaiah J. considered the circumstances specific to the administration of justice in the location where the trial would proceed: at para. 116.
[43] Based on the timing of the application and the circumstances of the case, Rasaiah J. concluded that “there would be little, if anything, the Crown could have done after [the date on which the trial dates were first set], to mitigate and seek an earlier [trial date]”. The nature and content of the record before the court in W.S. are similar to the nature and content of the record before this court.
[44] In the matter before this court, the defence, in an effort to bolster their submission regarding the significance of evidence as to ability to mitigate, relies on the decision of Trotter J.A. in R. v. Vallotton, 2024 ONCA 492. I agree with the defence that the decision in Vallotton does not constitute either an endorsement or a rejection of an arithmetic approach to address alleged defence delays for the purpose of a s. 11(b) application.
[45] For two reasons, I reject the defence submission that Vallotton is authority for the proposition that, where the Crown relies on delay in giving notice of a s. 11(b) application, evidence is required of specific steps the Crown would have taken to remedy delay had earlier notice been given.
[46] First, in Vallotton, the motion judge dismissed the s. 11(b) application solely on the basis of implicit waiver, by the defence, of delay.
[47] In Vallotton, the defence filed a s. 11(b) application two months after agreeing on the record, to trial dates for which the completion date fell outside the presumptive 18-month ceiling for a trial on one of the two sets of charges against Vallotton. Vallotton appealed from his conviction on both sets of charges and from the decision of the motion judge (who was not the trial judge) dismissing the s. 11(b) application.
[48] The motion judge concluded that, because Vallotton did not complain about the pace of proceeding when the trial dates were set, he implicitly waived the delay between the date when the trial dates were set and the date on which the trial was scheduled to proceed. On the appeal, the Crown conceded that the motion judge erred in concluding that Vallotton waived this period of delay.
[49] On the appeal, the Crown proposed an arithmetic approach to the alleged delay in giving notice of the s. 11(b) application, which is similar to the approach proposed by the Crown before this court. In Vallotton, the Crown had not proposed that arithmetic approach when appearing at first instance before the motion judge.
[50] On appeal, the Crown proposed that the end date for the calculation of the period of defence delay be the date on which the trial was scheduled to commence (i.e., not the date on which notice was given of the s. 11(b) application – as proposed by the Crown before this court). In Vallotton, as before this court, a 30-day grace period was proposed.
[51] At para. 30, Trotter J.A. reviews the theory behind such an approach: “The theory behind this approach is that delays in initiating s. 11(b) proceedings hamper the Crown’s ability to respond to the complaint and work towards expediting the trial. I also note that it may deprive trial courts from utilizing previously set trial dates that may not be used.” I take the latter sentence as related to trial dates that go unused when a s. 11(b) application is granted.
[52] I am mindful of the fact that the Crown in Vallotton did not propose an arithmetic approach at first instance. That context is important when considering the decision in Vallotton and the findings of Trotter J.A. about the state of the record.
[53] For example, at para. 30, Trotter J.A. says, “In this case, there was never any indication that earlier trial dates could have been arranged had notice been provided sooner. The Crown and defence had just recently set out mutually agreeable trial dates. Presumably, had earlier dates been available, subject to counsel availability, they would have been captured.” As another example, at para. 31, Trotter J.A. says, “However, the record does not support the conclusion there was any ‘illegitimate conduct’ on the part of the defence in initiating his s. 11(b) motion. Nor does the record establish that defence counsel’s timing deprived the Crown of the ability to mitigate the delay by obtaining earlier trial dates.”
[54] I also consider the findings of Trotter J.A. in the context of the two-month delay from the date on which the trial dates in Vallotton were set on the record, to the date on which the s. 11(b) application was filed (as opposed to the analogous seven-month delay in the matter before this court).
[55] I agree with defence counsel that there is no evidence as to how the Crown would specifically have attempted to remedy or mitigate the delay had it received timelier notice of the s. 11(b) application. The circumstances are, however, different from those in Vallotton. For example, as of November 2023, the parties before this court were successful in identifying two dates, prior to the presumptive ceiling, on which to proceed with the records application.
[56] The record also supports a finding that, when necessary, a file can be re-assigned within the Crown’s office (as occurred in the spring of 2022). The record does not support an inference being drawn that, if the defence had been proactive in bringing the s. 11(b) application, there were no dates available on which both the court and an assistant crown attorney were available to proceed with the trial to completion prior to the Jordan dates.
[57] In support of their submission as to the significance of a factual record regarding the Crown’s opportunity to mitigate delay, the defence relies on the July 19, 2024 decision of the Court of Appeal for Ontario in R. v. Mengistu, 2024 ONCA 575. That decision was released a matter of days prior to the dates on which the application before this court was heard.
[58] The decision in Mengistu is on a Crown appeal from the decision of the application judge granting Mengistu’s s. 11(b) application. Failure to give timely notice of s. 11(b) concerns was one of two new matters raised on the appeal that were not raised by the Crown before the application judge: at paras. 2-3.
[59] At para. 41, Monahan J.A. refuses to permit the Crown to raise, on the appeal, the issue of the timing of the s. 11(b) notice. Monahan J.A. concludes that the record was insufficient. The court would not be in a position to determine whether a failure, if established, to raise s. 11(b) concerns in a timely way contributed to the delay in bringing the matter to trial within the presumptive Jordan ceiling: at para. 41.
[60] The conclusion regarding the insufficiency of the record is based, at least in part, on the court’s acceptance of the application judge’s finding regarding the insufficiency of the record on the issue of COVID-19 as an exceptional circumstance. At paras. 42-43, Monahan J.A. says the following:
[42] This absence of a sufficient factual record is underscored by the application judge’s consideration of whether the period from April 20, 2020 to the initial trial date of May 10, 2021 should be deducted on account of the exceptional circumstance of the COVID-19 pandemic. The application judge rejected the Crown’s argument on the basis that there was no evidence as to what steps the Crown would have taken, “but for” the pandemic, to secure an earlier date. The Crown does not appeal this aspect of the application judge’s ruling.
[43] It necessarily follows that, even assuming without deciding that defence counsel failed to raise s. 11(b) concerns in a timely way, we lack sufficient evidence as to what steps the Crown might have taken to reschedule the trial had it been made aware of the delay concerns at an earlier time.
[61] I am not convinced that the decision in Mengistu, including as it relates to the state of the record, is of assistance of the defence before this court.
[62] More compelling are the analyses in M.W. and in Nigro regarding the obligation on both the Crown and defence to be mindful of the presumptive ceiling and to be proactive, specifically when it becomes known that the date set for the completion of trial falls outside the presumptive ceiling. That is not to say that, in every proceeding, the Crown shall be taken to know there is a s. 11(b) problem. absent some indication from the defence in that regard. Both parties are required to be proactive in addressing delay; it is therefore fair to both parties to allocate between them, a period of delay related to the timing of the s. 11(b) notice.
[63] I agree with the arithmetic approach proposed by the Crown before this court. I pause to note that the Crown relies on the shorter of the three possible periods of alleged defence delay (i.e., ending on the date s. 11(b) notice was given, rather than on either the set start date for or the set end date of the trial).
[64] In addition, the proposed approach allows for a grace period. In M.W., Monahan J. allowed a 30-day grace period for the defence to order the necessary transcripts and “determine their position on defence delay and exceptional circumstances delay”, before putting the Crown on notice of a s. 11(b) application: at para. 40.
[65] I am satisfied on the record before this court that, in all the circumstances, 50 per cent of the 206 days between December 2023 and May 2024 (i.e., 103 days) constitutes defence delay. I allow a 30-day grace period, and allocate 73 days for defence delay.
Step Three – Compare the Net Delay to Presumptive Ceiling
[66] I concluded that there are 73 days of defence delay. When the defence delay is deducted from 65 days and 68 days of total delay in excess of the presumptive 30-month ceiling, the net delay for each set of charges falls below the 30-month presumptive ceiling.
[67] Regardless of the outcome on the issue of defence delay alone, I move on to the next step in the analytical framework and deal with the alleged exceptional circumstances.
Step Four – Identify Exceptional Circumstances
[68] Where the net delay exceeds the presumptive ceiling, the onus is on the Crown to establish the existence of exceptional circumstances; otherwise, the proceeding will be stayed.
[69] Exceptional circumstances fall into two categories: (a) discrete events, and (b) particularly complex cases. The Crown before this court relies on two discrete events; it does not rely on complexity of the case.
a) March 2022 – The Crown Conflict
[70] The first discrete event the Crown asks the court to characterize as an exceptional circumstance occurred in relation to the first Crown pre-trial conference (“CPT”). A CPT was originally scheduled for March 10, 2022. As of that date, the proceedings against C.M. remained in the Ontario Court of Justice.
[71] On March 9, 2022, the assistant crown attorney assigned for the CPT identified that he had a conflict in relation to C.M. As a result, the CPT scheduled for March 10, 2022 was adjourned and the file was re-assigned within the Crown’s office. The assistant crown attorney next assigned to the matter arranged with the defence for a CPT to proceed on May 25, 2022.
[72] The Crown asks the court to characterize the Crown conflict identified in March 2022 as an exceptional circumstance. On that basis, the Crown asks the court to reduce the net delay by 30 days (out of the 77 days between March 9, 2022 and May 25, 2022).
[73] The defence submits that the jurisprudence does not support characterizing the conflict which arose in the Crown’s office as a discrete event or as an exceptional circumstance. The defence position is that the ordinary steps within the evolution of a proceeding, such as pre-trial conferences, are taken into account in the 30-month presumptive ceiling.
[74] The record includes emails relevant to the CPTs scheduled for March 2022 and May 2022. On March 9, 2022, the assistant crown attorney then assigned to the file, identified internally, that the matter “needs to be assigned because [he has] a conflict with the accused.” This internal email concludes with the following statement: “Counsel would like a call from whomever is assigned”.
[75] On May 20, 2022, the assistant crown attorney to whom the matter is transferred sends an email to defence counsel. The assistant crown attorney who sends that email is the assistant crown attorney who appears on behalf of the Crown on this application.
[76] In its entirety, the May 2022 email reads as follows: “I’m a Crown in Kingston. I have been assigned to the above matter and was asked to schedule a CPT with you. Are you available sometime next week? Perhaps during the usual lunch hour for the courts? 1-2 pm?” From the emails exchanged thereafter, it is clear that a CPT was conducted no later than May 25, 2022.
[77] I am unable to conclude that the Crown conflict identified in March 2022 is a discrete event for the purpose of the Jordan analysis. First, I consider the definition of “exceptional circumstances” set out at para. 69 of Jordan:
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. They need not meet a further hurdle of being rare or entirely uncommon.
[78] The identification of the first assistant crown attorney’s conflict with C.M. is not a matter which lies “outside the Crown’s control”:
• There is no evidence to support a finding that conflicts of the kind which arose on March 9, 2022 are so infrequent as to be “reasonably unforeseen”.
• There is no evidence to support a finding that one or both of a conflict check mechanism and the timely assignment of files would not have prevented the identification of the conflict at an earlier stage of the proceeding. The Crown has failed to demonstrate that the timing of the identification of the conflict was “reasonably unavoidable”.
[79] The two bullet points listed above address the first element of the Supreme Court’s definition of “exceptional circumstances”. I turn to the second component of that definition – assessment of the Crown’s ability to remedy the delays emanating from the subject event once it arises.
[80] Even if the Crown had satisfied me on the first component of the definition, which it has not, the Crown does not, in any event, satisfy me that it could not have reasonably remedied the delay once it arose.
[81] There is no explanation before this court as to why it took from March 9, 2022 until May 20, 2022, for the second assistant crown attorney to reach out to the defence in an effort to re-schedule the CPT. In making that statement, I intend no criticism of the assistant crown attorney appearing before the court on this application. There is no evidence as to when he was assigned to the file. Nor is there any evidence to suggest that, once the file was assigned to him, there was any delay in communicating with the defence.
[82] The Crown has not explained why there was a delay of more than 70 days, before any attempt was made to remedy the situation arising from the conflict which arose in March 2022.
[83] I also consider what happened once the Crown reached out to the defence in May 2022. Within five days of the Crown reaching out, the parties participated in a CPT. I draw an inference and find that if a second assistant crown attorney had been assigned to the file and reached out to the defence, both in a timely manner, the delay emanating from the conflict would have been fewer than 77 days. Based on what transpired in May 2022, the number of days of delay could well have been reduced to a single digit number. I make no finding in that regard, however, as it is not necessary for me to do so.
[84] The Crown’s conduct is not measured against a standard of perfection: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 58. On the other hand, the failure to identify, in a timely manner, the conflict which arose in March 2022, is not “an inadvertent oversight [that] may well qualify as a discrete event”: at para. 58. Nor is the assignment of the matter, initially, to an assistant crown attorney who has a conflict with the accused a “mistake” within the meaning intended by the Supreme Court at para. 58 of Cody.
[85] At para. 75 of Jordan, the Supreme Court highlights that “the Crown must always be prepared to mitigate the delay resulting from discrete exceptional circumstances.” In the matter before this court, the Crown failed to mitigate the delay which arose from the conflict identified in March 2022. It would be unreasonable to subtract from the net delay any portion of the 77 days from March 9, 2022 to May 25, 2022.
[86] The Crown relies on the decision of the Court of Appeal for Ontario in R. v. Carbone, 2020 ONCA 394, 150 O.R. (3d) 758. On the appeal, Carbone accepted that an adjournment, necessitated when the trial judge realized she had a conflict of interest, qualified as an exceptional circumstance. As a result of that circumstance, the trial was delayed by 4.5 months. Carbone took issue with the trial judge’s attribution of the entire 4.5-month delay to an exceptional circumstance. Carbone submitted that it would have been reasonable to attribute a two or three-month delay to the exceptional circumstance.
[87] At para. 57, Doherty J.A. says, “In the absence of any specific evidence directed at this specific adjournment, the trial judge was entitled to look to his own experiences in the jurisdiction in deciding how to properly characterize the delay of 4 ½ months.” Doherty J.A. concludes the trial judge made no error in his s. 11(b) analysis: at para. 58.
[88] I distinguish a conflict in the Crown’s office which arises during the ordinary evolution of the proceeding from conflicts which arise in the allocation of judicial resources.
[89] In summary, the conflict identified is not a discrete event which qualifies as an exceptional circumstance for the purpose of the Jordan analysis.
[90] Last, I will deal with the events in May 2023, when the matter was scheduled to proceed to trial in the Ontario Court of Justice.
b) May 2023 – The OCJ Trial Dates
[91] C.M. originally elected to be tried in the Ontario Court of Justice. The trial was scheduled to commence on May 23, 2023 and be completed by June 9, 2023. That completion date was fewer than 17 months from the date on which each of the informations was sworn; it was within the 18-month presumptive ceiling for trials in the Ontario Court of Justice.
[92] Prior to May 2023, a trial judge was assigned to the matter (“Judge No.1”). As required, Judge No. 1 presided over the records application pursuant to s. 278.3 of the Criminal Code; Judge No. 1 was seized of the matter.
[93] Judge No. 1 was ultimately not available for all of the scheduled trial dates. Another judge (“Judge No. 2”), was assigned to preside over the trial. Judge No. 2 was unavailable for the first two days initially scheduled for the trial (May 23 and 24, 2023). The trial was therefore re-scheduled to commence on May 25, 2023.
[94] On the morning of May 25, 2023, a member of the court’s administrative staff notified the defence, for the first time, that (a) Judge No.1 would not be the trial judge, and (b) Judge No.2 would be presiding over the trial. On May 25, 2023, when the parties appeared before Judge No. 2, C.M. chose to re-elect to be tried in this court, by a judge alone. The Crown consented to the re-election. C.M. consented to a committal to trial on the only charge for which he was entitled to a preliminary hearing (extortion).
[95] In addition, the parties informed Judge No. 2 that they had made arrangements for a JPT in this court. As noted in an earlier section of this ruling, a JPT was conducted in this court on August 23, 2023.
[96] The Crown’s position is that the adjournment of the trial in the Ontario Court of Justice is the result of an exceptional circumstance. The Crown submits that when the delay associated with that adjournment is subtracted from the total delay, the net delay is well under the 30-month presumptive ceiling for trials in this court.
[97] The defence position is based on the options available to C.M. on May 25, 2023, after learning, with fewer than two hours notice, that Judge No.1 was no longer the assigned trial judge:
• First, C.M. could have insisted on proceeding before Judge No. 1. Had C.M. done so, it is possible that the completion date for the trial, if re-scheduled before Judge No. 1, would have fallen outside the 18-month presumptive ceiling.
• Second, C.M. could have agreed to proceed before Judge No. 2. By May 25, 2023, the parties had already lost the first two set trial dates (May 23-24, 2023). It is possible that, by adding two days at the latter end of the trial, the completion date for the trial before Judge No. 2 would have fallen outside the 18-month presumptive ceiling.
• Third, C.M. could have chosen, as he did, to re-elect to a trial before a judge alone in this court. By making that choice, and with the Crown consenting to the re-election, the presumptive ceiling was increased from 18 to 30 months.
[98] Both the Crown and defence made detailed submissions about how the change from Judge No. 1 to Judge No. 2 occurred. The parties also made submissions about whether there was anything suspicious in the conduct of Judge No. 1, the Crown, or the court’s administrative staff regarding the re-assignment of the matter from Judge No. 1 to Judge No. 2. For example, the re-assignment was made without notice to the defence, other than on the morning of May 25, 2023. For the purpose of the s. 11(b) application, I need not make any findings in that regard.
[99] Returning to the defence position, it is that, in all of the circumstances, it was entirely reasonable for C.M. to decide that he did want the proceeding to remain in the Ontario Court of Justice. The defence submits that his s. 11(b) rights should not be prejudiced because of a reasonable step taken by the defence and to which the Crown consented. I agree that the consequence of the re-election in these circumstances should not be to the prejudice of C.M.
c) Summary – Exceptional Circumstances
[100] Neither of the discrete events upon which the Crown relies are characterized as exceptional circumstances.
Step Five – Subtract Delay From Discrete Events
[101] The net delay is not reduced because of any delay arising from discrete events. As calculated in para. 66, above, the net delay for each set of charges falls below the 30-month presumptive ceiling.
Step Six – Assess the Reasonableness of the Net Delay
[102] At the outset of the hearing, the defence informed the court that if it determined the net delay falls below the presumptive ceiling, the defence does not take the position that the net delay is, in any event, unreasonable.
Conclusion
[103] For the reasons set out above, the court dismisses the s. 11(b) application.
Corthorn J.
Released: August 29, 2024
COURT FILE NO.: CR-23-49-MO
DATE: 2024/08/29
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Respondent
– and –
C.M.
Applicant
RULING ON APPLICATION
Corthorn J.
Released: August 29, 2024
[^1]: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.