Court File and Parties

COURT FILE NO.: CR-21-40000181-0000 DATE: 20241018 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – N.K.

COUNSEL: A. Leggett, for the Crown P. Rochman, for N.K.

HEARD: 18 July 2024

S.A.Q. AKHTAR J.

Factual Background and Overview

Introduction

[1] The applicant, N.K. stands charged with multiple counts of sexual assault in relation to his step daughter. The information alleging the offences was sworn on 14 September 2021. His trial date is scheduled to take place on 29 July 2024 and to end on 9 August 2024. The total time from the date of swearing the information till the end of trial is 34 months 27 days. The applicant submits that his right to a trial within a reasonable time under s. 11(b) of the Canadian Charter of Rights and Freedoms has been violated and asks that this court stay the proceedings.

[2] At the end of the hearing and submissions, I indicated that the application was to be dismissed with reasons to follow. These are those reasons.

The Timeline

14 September 2021

[3] Information sworn.

25 October 2021

[4] The case made its first court appearance with counsel, Mr Sutharsan, appearing on behalf of the applicant who did not attend. The matter was remanded to December 3rd for the applicant to receive and review disclosure.

28 October 2021

[5] Initial disclosure was given to counsel through the Crown’s Digital Disclosure Hub. The material included the complainant’s statements and audio of the accused’s arrest and release.

1 December 2021

[6] Mr. Sutharsan received further disclosure, including a Centre of Forensic Sciences report, Children’s Aid Society notes, and additional material.

3 December 2021

[7] Counsel, Mr. Sutharsan, appeared on the applicant’s behalf. The matter was remanded to 21 January 2022 so that counsel could review disclosure. The Crown indicated that a judicial pre-trial (JPT) might be set before the next court date and counsel agreed.

5 December 2021

[8] Further disclosure was provided. This included the complainant’s video statement.

21 January 2022

[9] Defence counsel again appeared on behalf of the absent applicant. He indicated that the defence had not received the videos of the complainant’s statement or her statement until 6 January and was now reviewing it. He stated that this was why there had not been a counsel pre-trial. The matter was adjourned to 18 February 2022.

18 February 2022

[10] A self-represented JPT was scheduled for 24 March 2022. Counsel had not yet been retained. However, counsel indicated that they wanted to keep moving the matter forward by discussing potential trial matters at a self-represented JPT.

24 March 2022

[11] A self-represented JPT was held with the applicant. The matter was put over to schedule Preliminary Inquiry dates. The Crown offered 1 April or 22 April but defence counsel requested 6 May.

6 May 2022

[12] Counsel asked for a further adjournment to complete the retainer. The matter was adjourned to 17 June 2022. The Crown indicated they had been in a position to set dates since 24 March 2022.

17 June 2022

[13] Counsel asked for a further adjournment on the applicant’s behalf to pursue a Rowbotham Application. The Crown repeated its request to set trial dates. The court acceded to the defence request. The matter was adjourned to 22 July 2022.

22 July 2022

[14] Defence counsel asked for a further adjournment to continue to pursue the Rowbotham Application. The Crown again indicated a desire to set trial dates as it had been ready to do since 24 March 2022. There was no suggestion to set dates on a with or without counsel basis. The matter was adjourned to 16 September 2022.

16 September 2022

[15] The applicant appeared without counsel. He told the court that he had applied for Legal Aid and requested an adjournment. The Crown expressed concerns about the delay but agreed on the basis that counsel might be retained. The matter was adjourned to 21 October 2022.

21 October 2022

[16] The applicant again appeared without counsel. The Crown informed the court that it was under the impression that a Rowbotham application was being pursued. However, the applicant stated that he was waiting to hear from Legal Aid. The Crown suggested adjourning the matter to 18 November 2022 and that if counsel was “appointed” a Crown pre-trial could be arranged in the interim.

18 November 18, 2022

[17] The applicant appeared without counsel. The Court was told that the Rowbotham Application was unsuccessful and that the applicant did not have a lawyer. Duty counsel requested to speak to the applicant in a “break-out” room to explain how he could obtain disclosure from counsel. The case was remanded to 16 December 2022.

16 December 2022

[18] The applicant again appeared without counsel and informed the court that he did not have the financial means to retain a lawyer. The Crown communicated with counsel who had appeared for the applicant by email and told the court that counsel was still working on a Rowbotham application. The applicant informed the court that because of his limited English he could not understand how to get the disclosure that had previously been given to counsel. He also indicated that his Legal Aid Application had been refused. The matter was remanded to 3 February 2023.

3 February 2023

[19] The Crown requested the matter be remanded to the self-represented JPT scheduled for 22 February 2023.

22 February 2023

[20] The applicant appears without counsel. The presiding judge remanded the matter to 27 April and directed the applicant to provide “documentation” from Legal Aid.

27 April 2023

[21] The Applicant appeared without counsel. The court held an inquiry into the applicant’s election and determined that the applicant had elected trial in the Ontario Court of Justice. That matter was adjourned to 1 May 2022 to set trial dates. The Crown contacted the Trial Co-ordinator to set dates for 12-15 September 2023. The court made an order appointing counsel to cross-examine the complainant under s. 486.3 of the Criminal Code, R.S.C. 1985, c. C-46.

1 May 2023

[22] (No transcript was provided to the court)

19 July 2023

[23] The Crown indicated that hearing dates were secured for 12 September 2023. The previous 486.3 order resulted in the appointment of counsel to cross-examine the complainant. The matter was remanded to 28 July 2023.

28 July 2023

[24] The hearing dates were confirmed and the applicant was remanded to 12 September 2023. The s. 486.3 counsel was appointed as amicus for the trial.

12-15 September 2023

[25] Even though the applicant was determined to have elected trial in the Ontario Court of Justice, the Crown did not object to the applicant re-electing trial by judge and jury in the Superior Court of Justice. The Preliminary Inquiry was heard and completed with the matter being committed to the Superior Court of Justice.

23 October 2023

[26] The applicant made his first appearance in the Superior Court of Justice.

17 November 2023

[27] A Judicial Pre-Trial was held on 17 November 2023.

11 December 2023 - 25 January 2024

[28] The applicant appeared in Practice Court to set trial dates.

29 February 2024

[29] Trial dates of 29 July 2024 were set.

Legal Principles

[30] In R. v. Jordan, 2016 SCC 27, [2016] S.C.J. No. 27, the Supreme Court of Canada fundamentally altered the application of the principles relating to s. 11(b) of the Charter, principles that had been in effect since the court’s decision in R. v. Morin, [1992] 1 S.C.R. 771.

[31] The Court set a new ceiling of 30 months for offences tried by indictment beyond which delay was presumptively unreasonable.

[32] Calculation of the time period requires the court to identify the time accruing from the date of charge to the end of the trial (“the total delay”) and subtract periods of delay attributable to the defence. This leaves a “net delay” figure.

[33] If the “net delay” exceeds 30 months, the Crown can only seek to justify the excess by demonstrating the existence of exceptional circumstances: Jordan, at paras. 47, 68-75. For cases commencing prior to Jordan, the Crown may rely on the “transitional period exception”, using the Morin standards to determine whether the delay was unreasonable.

[34] In R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-41, the Court of Appeal for Ontario set out the following step-by-step approach to determine whether an accused’s s. 11(b) rights had been breached:

(1) Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial.

(2) Subtract defence delay from the total delay, which results in the “net delay.”

(3) Compare the net delay to the presumptive ceiling.

(4) If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If it cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.

(5) Subtract delay caused by discrete events from the net delay (leaving the “remaining delay”) for the purpose of determining whether the presumptive ceiling has been reached.

(6) If the remaining delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable.

(7) If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.

[35] See also: R. v. Gordon, 2017 ONCA 436, 137 O.R. (3d) 776.

Analysis

[36] There is no dispute that the total delay in this case - from the swearing of the information to the presumed end of trial - totals 36 months and exceeds the Jordan threshold.

[37] The applicant argues that there are no exceptional circumstances: it cannot be described as complex and no other unforeseen factors impacted the time that it took to get to trial. The main point of dispute is what caused the delay. The applicant argues that the Crown was at fault by failing to set trial dates on a with or without counsel basis. The Crown, on the other hand, submits that the entire period of delay was caused by the applicant’s continuous requests for adjournments in order to obtain and arrange representation.

[38] As noted, any defence caused delay must be subtracted from the total delay. In Jordan, the court identified two components of defence delay: (1) delay waived by the defence and (2) delay caused solely by the conduct of the defence.

[39] As described in para. 63 of Jordan:

This kind of defence delay 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” (Askov, at pp. 1227-28). Deliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests, are the most straightforward examples of defence delay. Trial judges should generally dismiss such applications and requests the moment it becomes apparent they are frivolous.

[40] Several cases speak to defence caused delay in situations where an accused was seeking to arrange representation or seek funding: R. v. Faulkner, 2018 ONCA 174, 407 CRR (2d) 59, at paras. 164-168; R. v. Jurkus, 2018 ONCA 489, 363 CCC (3d) 246, at paras. 18-32; R. v. Stockton, 2019 ONCA 300, at para. 8; R. v. P.A., 2020 ONCA 673, at para. 2.

[41] The applicant argues that from mid February 2022 it “was clear that [he] would be self-represented”. He maintains that when he had no counsel the adjournments could not contribute to the delay. According to him, the Crown should have set with or without counsel dates as early as possible despite his requests for the case to be adjourned. The applicant has not provided any authorities for this proposition and I reject the argument.

[42] The applicant also submits that much of the delay in this case should be attributed to the lack of state funding to Legal Aid Ontario which has reduced the amount of duty counsel available to offer assistance to unrepresented accused. In such circumstances, the applicant argues that he simply “followed along” or acquiesced in the process. The applicant cites paras. 191-2, in Jordan where the court indicated that:

[W]hen the accused consents to a date for trial offered by the court or to an adjournment sought by the Crown, that consent, without more, does not amount to waiver. The onus is on the Crown to demonstrate that this period is waived, that is, that the accused’s conduct reveals something more than mere acquiescence in the inevitable, and that it meets the high bar of being clear, unequivocal, and informed acceptance....

All steps that are reasonably necessary to make full answer and defence are properly part of the inherent time requirements of the case and do not count against either the Crown or the accused. However, delay resulting from unreasonable actions solely attributable to the accused must be subtracted from the period for which the state is responsible.

I find this argument to be misconceived. The court in Jordan, at para. 191, was dealing with the principles relating to waiver when an accused accepted a trial date offered by the Crown or where the Crown sought an adjournment. This is not the case here. There is no suggestion that the applicant was merely acquiescing to the process. To the contrary, the transcripts show that the applicant was driving the narrative of the process by repeatedly asking for adjournments to seek either Legal Aid funding or commence a Rowbotham application.

[43] Nor is it the case, as is now argued, that the applicant was alone in the courtroom at all times and ignorant of the process. He appeared with counsel, Mr. Sutharsan, in his appearances from 25 October 2021 to 22 July 2022. On other occasions, duty counsel was on hand to provide legal advice, such as the appearance on 18 November 2022. The applicant did not set any dates even though this assistance continued over a lengthy period of time.

[44] Moreover, the question in this case is not whether the applicant was adequately represented but whether his actions were the sole or direct reason for delay. As previously described, the numerous adjournments in this case were the result of the applicant repeatedly asking the court for more time to either arrange a private retainer or obtain state funding. In other words, these adjournments were the sole and direct cause of the applicant’s conduct.

[45] As previously referenced, the applicant now complains that the Crown should be faulted for not opposing his adjournment requests more forcefully and setting hearing dates on a with or without counsel basis. This argument ignores a basic fact: it is the court that decides the setting of a trial date and not the Crown. Here, the court acceded to the applicant’s requests in order to ensure that he had counsel for his trial.

[46] In other words, the Crown’s failure to act more forcefully did not cause the delay: the applicant’s adjournment requests did. It is unreasonable for the applicant to ask for adjournments, have his requests granted by a sympathetic presiding justice, and then turn around and blame the Crown for not setting hearing dates that the applicant did not want set. This would warp the s. 11(b) process into an absurdity.

[47] Nor do I accept that the excess delay was caused by the lack of disclosure. The applicant was in possession of the contents of the complainant’s statement by 28 October 2021 and received incremental disclosure in the months that followed. The provision of disclosure did not significantly impact his case and its progress in the Ontario Court of Justice. By 24 March 2022, following a judicial pre-trial, the Crown was ready to set a preliminary inquiry date. However, the applicant was not and continued to ask for adjournments until the preliminary inquiry was finally set in July 2023.

[48] The Crown asks for a total of 352 days to be subtracted which encompasses the period, in large part, from 24 March 2022 to 27 April 2023. I agree with that calculation. This subtraction would result in a net delay of approximately 24 months and therefore fall below the Jordan ceiling.

[49] For these reasons, the application is dismissed.

S.A.Q. Akhtar J. Released: 18 October 2024