Court File and Parties

Court File No.: CR-22-40000075-0000 Date: 20241211 Ontario Superior Court of Justice

Between: His Majesty The King – and – Jason Leslie Curnew, Defendant

Counsel: Abrahams, S., for the Crown Marinosyan, L as agent for Zekavica, D., for the Defendant/Applicant

Heard: August 6, 2024

P.T. Sugunasiri J.

Reasons for Decision on s. 11(b) Application

[1] Mr. Curnew is charged with one count of sexual assault that is alleged to have occurred between March 1 and July 3, 2020. He was arrested on July 14, 2021. Mr. Curnew was originally scheduled for a two-week jury trial commencing October 2, 2023. No judge was available that day or any day that week. The trial would have finished by October 13, 2023 if it proceeded according to schedule. From thereon in, defence counsel was largely unavailable despite multiple dates offered by the Crown and trial office. Mr. Curnew’s trial is scheduled to start on December 2, 2024. He applies to stay the proceedings pursuant to s. 11(b) of the Charter due to alleged unreasonable delay of 41 months. He argues that the Jordan ceiling was reached on January 14, 2024, and that all delay but for three weeks is institutional.

[2] For the reasons that follow, I dismissed his application in an oral ruling delivered September 13, 2024.

The Jordan Analysis

[3] The Supreme Court of Canada established in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 49 (“Jordan”) that the net delay from when an accused is charged to the anticipated end of trial cannot exceed 30 months (or 913 days). Net delay is understood as the total time from charge to the anticipated end of trial, less any delay attributed to or waived by the accused.

[4] In this case, the parties agree that the total delay between July 14, 2021, when Mr. Curnew was charged, and December 13, 2024, when his trial is anticipated to end, is 1249 days or 41 months and 2 days. The defence agrees that defence delay is 21 days (for the period from August 17-31, 2021 and the week of November 25, 2024). This however does not bring the matter below the Jordan ceiling. The Crown argues that defence-caused delay amounts to 407 days, bringing the net delay to 842 days or 27 months and 21 days.

[5] If the Crown’s calculation is correct, there is a presumption of reasonable delay. To successfully rebut this presumption, Mr. Curnew must demonstrate that this is one of the clear cases that should be stayed because he took meaningful steps that demonstrate a sustained effort to expedite his trial and that his matter has taken markedly longer than it reasonably should have: Jordan, at paras. 82-83, 97, and 101.

[6] If the defence’s position on the cause of delay is correct, the delay falls above the presumptive 30-month (913-day) ceiling and is presumed unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances.

[7] The defence relies on the recent line of cases where judges of this court took the bird’s eye view of delay urged in Jordan, at paragraphs 97 and 111, and stayed matters when a judge was not available on the assigned trial date: R. v. Downey, 2024 ONSC 2157, 2024 CarswellOnt 6089; R. v. Bowen-Wright, 2024 ONSC 293, 545 C.R.R. (2d) 237, at para. 4 (“Bowen-Wright”); and R. v. Alli, 2023 ONSC 5829, 2023 CarswellOnt 19405, at para. 28 [1]. I would add R. v. Liu, 2024 ONSC 2022, 2024 CarswellOnt 5197 (“Liu”) to that line of cases.

[8] The defence argues that because a judge was not available on the first assigned trial date, all other delay is institutional. That argument is not persuasive in this case. First, the parties had a judicial pre-trial with Forestell J. on October 5, 2023 to try and reduce the number of trial days to five so that the parties could use the second week of allocated trial time. The defence believed they could not proceed in the second week because the Crown failed to call a witness they were interested in hearing from. This issue does not fall at the feet of the Crown nor of the institution. I have no evidence that the Crown undertook to call this witness and that the defence found out at the last minute that the Crown decided against it. If the defence needed this witness, it was up to the defence to call her. This also suggests that the defence would not have been ready to proceed on October 2, 2023 even if a judge had been available, because they had not subpoenaed the witness.

[9] Second, defence counsel was unavailable for large blocks of time with little to no explanation. I have no evidence to demonstrate that defence counsel “understood and had incorporated the proactive, cooperative, and preventative change in culture that is expected and required in the post-Jordan world”: Liu, at para. 23. Preventing delay is a shared responsibility. The sparse application record does not provide any evidence, other than the email exchange at Crown Exhibit 11, to take a contextual approach to counsel unavailability, as described by Schreck J. in Bowen-Wright, at paras. 39-40. The reason for defence unavailability and any efforts by defence to try and make themselves, or someone, available, is largely absent.

[10] Taking a bird’s eye view of the little evidence that I do have, I find that the defence banked on the success of this Charter application and prioritized other cases after they found out that they could not proceed on October 2, 2023. This is not the preventive change in culture expected of the defence nor is block unavailability a free ticket to a stay of proceedings.

Delay Period 1: August 17-31, 2021 = 14 days (deduct)

[11] The parties agree that this delay is attributable to the defence and is therefore deductible from the total delay.

Delay Period 2: October 9-April 8, 2024 = 182 days (deduct)

[12] When the trial date of October 2, 2023 came around, the court advised that no judge was available. The parties then attended a judicial pre-trial on October 5, 2023 to attempt to shorten the trial so that it could start on October 9 and end on October 13, 2023. A law clerk for the defence, who did not attend the pre-trial but relies on her review of the file, states that the shorter trial would not have worked because it was the position of the Crown that the defence had to subpoena the sister of the complainant.

[13] I have no evidence on this issue other than the unreliable evidence of the law clerk. In theory however, even if true, the Crown is under no obligation to the defence to call any witnesses. There is no evidence that the Crown misled the defence about calling the sister as a witness. If the sister was an important witness for the defence, it is something team Curnew would and should have sorted out earlier. I do not accept that it was any failure on the Crown’s part that the trial could not proceed in the second week. The Crown was ready to proceed with the trial on October 9, 2023. The defence was not. The Crown also offered the trial to occur in November of 2023, on December 4, 2023, or on January 2, 2024. Defence counsel advised that he was not available until April 8, 2024.

[14] For this period, I also have no evidence to demonstrate that defence counsel fulfilled his obligation to try and prioritize this trial so that it could proceed as early as possible. I accept that defence counsel are not expected to hold their calendars in perpetuity to accommodate trials close to the Jordan ceiling. Perhaps the November dates were too close to change defence counsel’s schedule. However, I have no such evidence other than Mr. Zekavica’s general unavailability until April of 2024. I have no evidence on his circumstances, the reason for the unavailability, or any options defence counsel considered to try and be available. Defence delay is delay caused solely or directly by defence conduct and can include inaction: Jordan, at paras. 64 and 66. I attribute this entire delay period to the defence.

Delay Period 3: April 15-May 17, 2024 = 32 days (no deduction for defence delay)

[15] On October 10, 2023 at 1:33 p.m., Mr. Zekavica’s office offered April 8-23, 2024, June 24-July 12, 2024, and September 30-October 18, 2024 as trial dates. This was in response to the Crown proposal offering April 22-May 3, May 27-June 7, and June 3-14, 2024.

[16] On October 12, 2023, Mr. Zekavica’s office followed up. Crown counsel was on vacation but responded on October 12, 2023 to advise that she was attempting to confirm either the April or fall dates offered. On October 16, 2023, Ms. Marinosyan wrote that she needed the Crown to confirm one of the offered dates by noon on October 17, 2023, so that she could schedule other matters. I have no evidence of the Crown’s response. I do not attribute the inability to schedule a trial as defence delay because I am satisfied that the defence made efforts to accommodate a trial.

[17] By the time the parties appeared before Goldstein J. on November 30, 2023, the trial scheduling office had no availability for a two-week trial between April 8 and April 23, 2024. This period is not defence delay.

[18] When the parties appeared before Kelly J. on March 28, 2024, Mr. Zekavica had four weeks in May available starting April 29, 2024. The focus for this period however was to set a date for Mr. Curnew’s s. 11(b) application, therefore putting the scheduling of a trial date on hold. Justice Kelly scheduled the s. 11(b) application for May 17, 2024. Bringing a s. 11(b) application is a legitimate exercise of Mr. Curnew’s right to make full answer and defence and should not be deducted: Jordan, at para. 65. This is not defence delay.

Delay Period 4: May 17-August 6, 2024 = 81 days (deduct 81 days)

[19] The Charter application scheduled for May 17, 2024 did not proceed because the defence failed to obtain transcripts and file materials as required because they inadvertently forgot to order transcripts for the hearing. Upon ordering the transcripts, the defence ran into some Legal Aid problems which they resolved. The parties attended practice court to reschedule it for August 6, 2024, partly because of counsel availability and partly because of the 4-6 weeks defence counsel needed to receive the transcripts.

[20] While Mr. Curnew is entitled to bring a s. 11(b) application, I find that the failure to file materials causing delay in scheduling the trial amounts to illegitimate defence conduct or waiver. In April of 2024, the Crown and court were still trying to find dates to expedite the trial. The Crown had offered trial dates for May 27, June 3, July 22, and July 29 and August 19, 2024. Mr. Zekavica was not available for any of those dates, nor do I have evidence on the record of any attempts to prioritize and accommodate this trial and try to move it up from December 2, 2024.

[21] Mr. Zekavica had four weeks in May that were available but lost due to the legitimate exercise of Mr. Curnew’s right to bring his s. 11(b) application. That said, it appears from discussions with the court in addressing the s. 11(b) application that Mr. Zekavica believed that his client would succeed. In this context, I infer from the lack of evidence on defence steps taken that they lost a sense of urgency in advancing Mr. Curnew’s trial, thinking it would go away. This entire period was caused by the defence’s unreasonable procedural delay or was an implicit waiver of delay: R. v. Cody, 2017 SCC 2, [2017] 1 S.C.R. 659, at paras. 32-35.

Delay Period 5: August 17-November 25, 2024 = 100 days (deduct 100 days)

[22] In May of 2024, Mr. Curnew was offered two trial dates: August 19 and September 9, 2024. Mr. Zekavica was not available until November 25, 2024. In the absence of any explanation for counsel unavailability other than he had other Superior Court matters, I agree with the Crown that Mr. Curnew can be taken to have waived this period of delay or caused it.

The Total Delay is 865 Days

[23] The Crown calculates, and the defence agrees, that if all periods noted above are caused by the defence, the delay is 842 days, putting the case below the presumptive ceiling. I agree with the Crown that all the above periods of delay are attributable to the defence, except April 15 to May 17. This removes 32 days from the Crown’s calculus. That said, the defence agrees that it caused the delay from November 25 to December 2, 2024 and from August 17 to August 31, 2024. The Crown had only included August 19, 2024. That adds 9 days to the defence delay.

[24] With these adjustments, the final delay calculation is 865 days – a number close to, but under the presumptive ceiling. It is therefore presumptively reasonable. To rebut the presumption, Mr. Curnew must show that he took meaningful steps demonstrating a sustained effort to expedite the proceedings and that his case has taken markedly longer to proceed to trial than it reasonably should have.

Defence Counsel Did Not Demonstrate a Sustained Effort to Expedite the Trial

[25] As I indicated earlier, the defence’s only argument was that the lack of a judge on October 2, 2023 is the reason for all ensuing delay in this trial. They have not demonstrated by evidence nor argument, a sustained and meaningful defence effort to expedite Mr. Curnew’s trial.

The Defence Did Not Argue That the Proceeding Has Taken Longer Than It Reasonably Should Have

[26] The onus was on Mr. Curnew to persuade me that his case has taken longer than it reasonably should have. No such arguments were made. In this case, both the Crown and the criminal trial office made repeated attempts to prioritize Mr. Curnew’s trial and were met with block unavailability by defence counsel.

Conclusion

[27] This is not the case to stay due to judge’s unavailability.

P.T. Sugunasiri J. Released: December 11, 2024

Footnote:

[1] This was recently overturned in R. v. S.A., 2024 ONCA 737, 2024 CarswellOnt 14981 but not considered in rendering this decision because the reversal post-dates the oral ruling made on September 13, 2024.