Court File and Parties

COURT FILE NO.: CR-24-00016441-0000 DATE: 20241029

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – CHARD BASIL PATRICK Defendant

COUNSEL: Taran Boodoosingh and Agapi Mavridis, for the Crown Enzo M. Battigaglia, for the Defendant

HEARD: August 29, 2024

Reasons for Decision

REGIONAL SENIOR JUSTICE EDWARDS

Overview

[1] Mr. Patrick is charged with one count of second degree murder. Mr. Patrick seeks an order staying the proceedings pursuant to s. 11(b) of the Charter. The total delay from the laying of the Information to the anticipated end of trial asserted by the defence is 29 months and 3 days. The Crown argues that the presumptive deadline for this matter is May 22, 2025, where the anticipated completion date for the trial is 69 days prior and thus well within the 30-month ceiling imposed by the Supreme Court of Canada in R v Jordan, 2016 SCC 27.

The Facts

[2] Mr. Patrick was charged with second degree murder on October 15, 2022. The Information was sworn on October 16, 2022. A judicial pretrial was to have taken place on April 26, 2023, before Johnstone J. of the Ontario Court of Justice but was postponed because of the judge’s illness. A judicial pretrial was conducted on May 31, 2023.

[3] Mr. Patrick was committed for trial in the Superior Court on February 20, 2024. A judicial pretrial was conducted before Fuerst J. on April 22, 2024, at which time a trial was fixed to commence on February 3, 2025, with an anticipated completion date of March 14, 2025.

[4] As it relates to the timeline set forth above, the defence argues that there are no exceptional circumstances that would require a deduction from the net delay calculated by the defence as 29 months plus 3 days. The Crown argues that the postponement of the judicial pretrial on April 26, 2023, until May 31, 2023, a period of 35 days should be deducted as the illness of the presiding justice constitutes exceptional circumstances.

[5] Whether the delay is 29 months or 28 months, there is no issue that the total delay falls below the 30 months prescribed by the Supreme Court of Canada in Jordan.

Position of the Defence

[6] Counsel for Mr. Patrick argues that despite the timeline for this case being below the 30-month presumptive ceiling set by the Supreme Court in Jordan, the defence has made sustained efforts to expedite this matter and that it will have taken markedly longer than it should have to complete the trial.

[7] At the root of the argument is the suggestion that the Crown’s office in this case engaged in what is described as a “culture of complacency” that is evidenced by the tardiness in the manner in which the Crown provided disclosure to the defence in what was described in argument before this Court as a piecemeal attempt to fulfill the Crown’s Stinchcombe obligations.

[8] The defence argues that while this is a homicide it is nonetheless not a “particularly complex” matter and was well within what is described as a “straightforward murder case” that is specifically excluded as meeting the “particularly complex” standard.

[9] Counsel for Mr. Patrick argues that when a “bird’s eye view” is taken that a s. 11(b) stay is the inevitable result.

[10] Counsel for Mr. Patrick argues that he has made sustained efforts to expedite the proceedings and that the case has taken markedly longer than it should have to reach trial.

Position of the Crown

[11] Crown counsel argues that Mr. Patrick has not met his onus to show that he made sustained efforts to expedite the proceedings, nor has he established that the case has taken markedly longer than it should have, and as such, the application must fail.

[12] The Crown argues that the evidence does not establish that the defence took meaningful steps to expedite these proceedings nor has the defence established that the net delay in this matter was unreasonable.

[13] The Crown notes in its argument that the first available dates that were suggested for a preliminary hearing and the trial were accepted by Mr. Patrick. As well the Crown argues that the anticipated length of trial and pretrial motions (approximately 6 weeks) demonstrates that this is a homicide of at least moderate complexity.

Analysis

[14] The total delay in this case is acknowledged by Mr. Patrick as falling below the Jordan ceiling (29 months and 3 days). The Crown argues in calculating the total delay the 35 days between the initial judicial pretrial and the ultimate judicial pretrial in the Ontario Court of Justice should be deducted as an exceptional circumstance. Where a judge becomes ill necessitating a delay in a judicial pretrial no one can suggest that such delay was caused by either of the parties. The illness of the judicial pretrial judge was unanticipated and, in my view, an exceptional circumstance. The 35 days caused by this unfortunate situation must therefore be deducted from the total delay in this matter. With a deduction of an additional 35 days due to exceptional circumstances the total delay in this case is in fact approximately 28 months. Regardless, as previously noted, the total delay falls below the presumptive Jordan guidelines.

[15] Where the presumptive ceiling has not been exceeded the onus shifts to the defence to establish that the delay is unreasonable. To establish that the delay is unreasonable, the defence must establish two things: 1) that it took meaningful steps to demonstrate a sustained effort to expedite the proceedings, and 2) that the case took markedly longer than it reasonably should have – see Jordan at paras. 82-83. Of equal importance is the guidance provided by the Supreme Court at para. 83 as follows:

[83] We expect stays beneath the ceiling to be granted only in clear cases. As we have said, in setting the ceiling, we factored in the tolerance for reasonable institutional delay established in Morin, as well as the inherent needs and the increased complexity of most cases.(emphasis added)

[16] Both counsel conceded in response to questions from the bench that they were unaware of any jurisprudence in this country where a stay of proceedings had been granted in a homicide case where the net delay was below the Jordan ceiling. For the reasons that follow this will not be the first such case. As the Supreme Court confirmed in Jordan, it will be a rare case where a matter under the ceiling will be granted a judicial stay of proceedings. This is not one of those rare cases.

[17] Recently, the Ontario Court of Appeal in R. v. Musclow, 2024 ONCA 565, dealt with this issue. The total delay in Musclow was approximately 59.5 months. The application judge had deducted 18.5 months for defence delay and attributed 20 months delay to exceptional circumstances arising out of the illness of a police officer whose testimony which were required by both parties. The remaining delay of 20 months was thus well under the 30-month presumptive ceiling for cases being tried in the Superior Court. While the remaining delay was under the presumptive ceiling, the application judge found that the delay was unreasonable and entered a stay of proceedings.

[18] Of particular guidance in terms of how the Court must take a bird’s eye view of the case, the comments made by the Court of Appeal at para. 29 of Musclow are important to repeat:

Nor do I accept the application judge’s view that the direction by the majority in Jordan for judges to take a “bird’s-eye view” of the case permits a reconsideration of the entire proceeding at this stage of the analysis. Rather, Jordan urges judges to approach the reasonableness of delay in a qualitative manner and not by way of mechanical calculations.

[19] At paragraph 32 of Musclow guidance is also provided to judges dealing with cases that fall below the presumptive guidelines. Specifically, it is noted that Jordan directs the application judge to consider case specific factors including the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite proceedings.

[20] On the facts before me, I accept that defence counsel conducted himself in a manner that in no way can be said to have obstructed the course of the proceedings. There was no defence delay that resulted in the net delay of 28 months. That said, there is equally no evidence in my view that the defence made the sustained type of efforts to expedite proceedings to meet its onus as reflected in decisions like R. v. Patel, 2017 ONSC 5827 and R. v. H., 2023 ONSC 5442.

[21] Examples of how the applicant could demonstrate sustained efforts to expedite proceedings might include the applicant reaching out to bring forward the matter to set earlier dates. The applicant might provide evidence where concessions were made to streamline the trial time estimate in the Superior Court or a request for a judge alone trial to expedite trial dates. There is no evidence in this case that the applicant made any of the aforesaid attempts that might demonstrate meaningful steps reflecting a sustained effort to expedite the proceedings.

[22] As for the second part of the test requiring the applicant to establish that this case took markedly longer than it reasonably should have the evidence confirms that both the applicant and the Crown were available for the first dates that were provided by the trial coordinator for both the preliminary inquiry and the trial. I do not agree that this case is a simple case as it has been characterized by the applicant. This is after all a homicide case and one where the court has set aside 6 weeks for trial and pretrial motions. The length of the trial and pretrial motions assists the court in coming to its conclusion that this case is one of moderate complexity.

[23] I am required to take a bird’s eye view of how long this case has taken and will take to its ultimate conclusion. Whether the delay is 28 months or 29 months, in my capacity as the Regional Senior Justice for the Central East Region of the Superior Court of Justice, I am in a unique position to reflect upon whether or not the facts of this homicide reflect a situation where this case has taken markedly longer than it should have. Taking that bird’s eye view, and with the knowledge of all of the demands imposed on both the defence and the Crown, in terms of insuring that this matter is tried within a reasonable period of time, I am satisfied that this case has not taken markedly longer than it should have to complete. As such, this application is dismissed.

EDWARDS, R.S.J. Released: October 29, 2024