Court File and Parties

COURT FILE NO.: 159-24 DATE: 2024/10/21

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Respondent – and – JAMES DONNELLY Applicant

Counsel: A. Campbell, for the Crown W. Glover, for the Applicant

HEARD: September 11, 2024

Ruling (s. 11(b) Charter Application)

Justice A. K. Mitchell

Introduction

[1] The applicant was charged with four offences involving two complainants - two counts of sexual assault and two counts of touching for a sexual purpose, contrary to s. 271 and s. 151 of the Criminal Code of Canada, respectively. The Crown alleges these offences occurred between July 1st and 31st, 2005 with respect to the complainant, M.D., and between January 1st and September 30th, 2005 with respect to the complainant, J.C. The 4-day judge-alone trial is scheduled to commence on July 28, 2025 and expected to conclude on July 31, 2025.

[2] At the outset of the application there was some confusion surrounding the date on which Mr. Donnelly was formally charged and the informations sworn. Ultimately, it was acknowledged by counsel that the first information was sworn on October 15, 2022 (a second information was sworn November 17, 2022). Consequently, for purposes of calculating total delay, the parties agree the 30-month R. v. Jordan, 2016 SCC 7 period commences October 15, 2022 with a presumptive Jordan date of April 15, 2025.

[3] Total delay commencing October 15, 2022 and ending on the anticipated last day of trial, being July 31, 2025, is 1020 days (33 months and 16 days). Total delay exceeds the 30 month period of presumptively reasonable delay established in Jordan, by three months and 16 days (107 days).

[4] The applicant, James Donnelly, brings this application seeking a stay of proceedings by virtue of an alleged breach of s. 11(b) and pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms. Mr. Donnelly argues that his constitutional rights have been infringed due to the unreasonable delay in proceeding with his trial and asks that the charges against him be stayed.

Procedural Chronology

[5] On September 12, 2022, the applicant was arrested and charged with these offences and released on an undertaking to appear. His first court appearance was scheduled for November 21, 2022 in the Ontario Court of Justice (“OCJ”).

[6] On September 15, 2022, the applicant retained Mr. Glover. The following day Mr. Glover requested disclosure from the Crown’s office.

[7] On October 15, 2022 Mr. Donnelly was formally charged with these offences with the swearing of the first information and the “Jordan clock” began to run.

[8] On November 8, 2022, Mr. Glover made a follow-up request for disclosure of the Crown’s office.

[9] On November 21, 2022, Mr. Donnelly made his first court appearance.

[10] On December 8 and 21, 2022 and January 4, 2023, Mr. Glover repeated his request for disclosure from the Crown.

[11] On January 9, 2023, Mr. Donnelly attended in court and his matter was adjourned to February 27, 2023 because disclosure remained outstanding.

[12] On January 23, 2023, the Crown provided initial disclosure consisting of summaries of the complainants’ statements to police.

[13] On February 6, 2023, Mr. Glover requested the audio and video-recorded statements of the complainants.

[14] At the February 27, 2023 court attendance, Mr. Glover acknowledged receiving preliminary disclosure and instructions from his clients; however, requested an adjournment to April 3, 2023 for receipt of the video statements. Crown counsel did not oppose defence counsel’s adjournment request.

[15] On April 3, 2023, Mr. Glover again requested the audio and video-recorded statements of the complainants.

[16] At the April 3, 2023 court attendance, Mr. Glover requested an adjournment to May 9, 2023 advising the court that he was still awaiting video disclosure. Crown counsel did not oppose defence counsel counsel’s adjournment request.

[17] On May 1, 2023, Mr. Glover once again requested the audio and video-recorded statements of the complainants.

[18] At the May 9, 2023 court attendance, Crown counsel in attendance acknowledged video disclosure had not been made and the assigned Crown had not indicated when such disclosure would be provided. The matter was once again adjourned to June 13, 2023.

[19] On June 12, 2023, Crown counsel provided the audio and video-recorded statements of the complainants to defence counsel.

[20] At the June 13, 2023 court attendance, defence counsel requested a further adjournment to July 25, 2023 to allow time to review the recently provided video disclosure. Crown counsel did not oppose this request.

[21] On June 22, 2023, Mr. Glover requested the statement of the complainants’ mother. Crown counsel invited defence counsel to schedule a pretrial.

[22] On July 12, 2023 the complainants’ mother’s statement was provided to Mr. Glover. Defence counsel requested a resolution meeting with the Crown and August 24, 2023 was scheduled for a pretrial with the assigned Crown counsel.

[23] On July 25, 2023, counsel attended in court and, at Mr. Glover’s request, the matter was adjourned to September 5, 2023 to allow time to conduct the already-scheduled Crown pretrial and exchange trial readiness certificates. Crown counsel expressly stated their agreement with the adjournment request. The court noted: “We’re in a position hopefully to set a date on the next appearance.”

[24] On August 24, 2023, a Crown pretrial was conducted. The following day Crown counsel served their trial readiness certificate.

[25] On August 31, 2023, Mr. Glover’s offices responded by serving their trial readiness certificate and a judicial pretrial in the OCJ was scheduled for September 14, 2023.

[26] At the September 5, 2023 court attendance, the matter was once again adjourned to allow time for the judicial pretrial to be conducted.

[27] On September 14, 2023, the judicial pretrial in the OCJ was conducted being slightly in excess of one year since Mr. Donnelly’s arrest on these charges and one-day shy of 11 months since the first information was sworn.

[28] At the October 3, 2023 court attendance, based on counsel’s mutual availability, two days were set for the preliminary inquiry, namely February 29, 2024 and March 15, 2024.

[29] On February 29, 2024, the first day of the preliminary inquiry was conducted.

[30] On March 15, 2024, the preliminary inquiry was completed.

[31] On April 9, 2024, the matter appeared for the first time in the Superior Court of Justice (“SCJ”) assignment court following committal. A SCJ judicial pretrial was scheduled for April 26, 2024 with the matter adjourned to the May 14, 2024 assignment court for trial scheduling.

[32] On April 26, 2024, Crown counsel failed to attend the judicial pretrial.

[33] At the May 14, 2024 assignment court attendance, the judicial pretrial was rescheduled for May 27, 2024.

[34] On May 27, 2024, the judicial pretrial was conducted.

[35] On June 11, 2024, various, and in some cases multi-staged, defence pretrial motions were scheduled for September 11, 2024; November 13, 2024; January 15, 2025; and March 5, 2025. A four-day judge-alone trial was scheduled to commence July 28, 2025. A s. 11(b) judicial pretrial was scheduled for July 8, 2024.

[36] On July 9, 2024, this s. 11(b) application was scheduled for hearing on September 11, 2024.

Positions of the Parties

[37] The applicant submits that no portion of the total delay is attributable to him. Therefore, since the total delay exceeds the presumptive ceiling, such period of delay is unreasonable, a breach of his Charter rights and the appropriate remedy is a stay of these charges.

[38] The Crown disagrees with the applicant’s position and attributes 325 days (10 months and 23 days) to defence delay and 15 days to exceptional circumstances. With this delay deducted from the total delay, the remaining period of delay is 683 days (22 months and 17 days), well short of the presumptive ceiling of 30 months.

[39] The Crown argues the following periods of time are attributable to defence delay:

(a) January 23, 2023 to June 13, 2023 = 141 days (4 months, 19 days) a portion of this time should be attributed to defence delay on account of the defendant had a corresponding duty to move the proceedings forward and should have requested scheduling a Crown pretrial to discuss outstanding disclosure issues during this time period.

(b) June 13, 2023 to July 12, 2023 = 29 days on account of unnecessary delay attributable to the defendant’s non-substantive disclosure request relating to the complainants’ mother’s statement.

(c) August 25, 2023 to August 31, 2023 = 6 days on account of unnecessary delay attributable to defence counsel’s delay in responding to the Crown’s trial readiness certificate served August 25, 2023 and seeking a judicial pretrial.

(d) November 21, 2023 to March 15, 2024 = 115 days (3 months, 23 days) on account of unnecessary delay attributable to defence counsel being first available February 29, 2024 to conduct the second day of the preliminary inquiry whereas the Crown was first available on November 21, 2023 to conduct the second day of the preliminary inquiry.

(e) September 11, 2024 to March 5, 2025 = 175 days (5 months, 22 days) on account of unnecessary delay attributable to the defendant scheduling unmeritorious, multi-stage pretrial applications (s. 278.3 and s. 276 applications).

[40] With respect to delay attributable to exceptional circumstances, Crown counsel asks that 15 days, being a portion of the 28 day delay (May 14, 2024 to June 11, 2024) associated with having to reschedule the SCJ judicial pretrial due to Crown counsel’s failure to attend as a result of unforeseen personal circumstances, be characterized as exceptional circumstances.

Legal Principles

[41] Section 11(b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time. The two main purposes of s. 11(b) of the Charter are the protection of an accused’s rights to security and liberty of the person, and a fair trial. With its decision in Jordan, the Supreme Court of Canada did a complete overhaul of the existing framework and approach to analysing “delay” and set 30 months as the presumptive ceiling for cases proceeding in the SCJ.

[42] In this post-Jordan era, courts are directed to undertake the following steps when considering a s. 11(b) Charter application. The first step involves a calculation of the total length of time between the swearing of the information and the actual or anticipated end of trial. The second step involves a determination of delay attributable to the defence, whether by way of defence waiver or conduct, and to subtract those portions from the total delay.

[43] Should the net delay exceed the 30-month presumptive ceiling established in Jordan, it is presumptively unreasonable. At this stage the onus shifts to the Crown to demonstrate that the delay is nevertheless reasonable, taking into account any exceptional circumstances. In general, there are two categories of exceptional circumstances – discrete events and particularly complex cases. Exceptional circumstance has two components: (i) they are reasonably unforeseen or reasonably unavoidable, and (ii) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. R. v. Jordan, 2016 SCC 7, at para. 69.

[44] Delay caused by discrete, exceptional circumstances may then be subtracted from the total delay to determine the remaining net delay. However, if the Crown could have reasonably mitigated the delay arising from a discrete event, it may result in only a partial amount of time being subtracted from the net delay.

[45] If the net delay remains above the 30-month ceiling, the court must determine if the case was particularly complex such that it justified the length and rendered the remaining delay reasonable. If the Crown is not able to rebut the presumption, the charges against the accused will be stayed. R. v. Jordan, 2016 SCC 7, at paras. 37 – 39.

[46] On the other hand, if the remaining delay falls below the presumptive ceiling, the onus is on the defence to prove that the delay is nevertheless unreasonable. Stays for cases below the ceiling are rare. R. v. Jordan, 2016 SCC 7, at paras. 48, 82 – 83.

Analysis

Total Delay

[47] The starting point for the analysis is the delay calculated to the anticipated last day of trial as scheduled. In this case, that date is July 31, 2025. As noted above, total delay is 1020 days or 33 months, 16 days.

Defence Delay

(a) January 23, 2023 to June 13, 2023 = 141 days (4 months, 19 days)

[48] It is well-established that both Crown and defence counsel have an obligation in this post-Jordan era to move proceedings forward. As Mr. Campbell aptly described the principles in Jordan – they are to be used as a shield, not a sword.

[49] However, I am not satisfied that any portion of this delay should be attributable to the defendant. Crown counsel concedes that Mr. Glover repeatedly requested disclosure during this time period. At each court attendance, defence counsel advised the court that his client was awaiting outstanding disclosure. At each court attendance, Crown counsel acknowledged the audio-video statements of the complainants remained outstanding and agreed that an adjournment was necessary. Neither Crown counsel nor defence counsel endeavoured to schedule a Crown or judicial pretrial during this time. This conduct demonstrates complacency on both sides.

(b) June 13, 2023 to July 12, 2023 = 29 days

[50] At the June 13, 2023 court attendance, the matter was adjourned to July 25, 2024 to allow time for review of the audio-video statements of the complainants which the defendant had received the day prior. Following his review of the statements, on June 22, 2023 defence counsel requested the statement of the complainants’ mother.

[51] Later in the day on June 22, 2023, Mr. Campbell responded to Mr. Glover’s email stating:

I’ve urged that this disclosure be expedited to you again. I have reviewed the file and I am prepared to engage in a Crown pretrial to begin discussions regarding setting dates or resolution. You have the main complainants (sic) evidence, and at this stage I am of the view that our discussions can begin.

[52] Through inadvertence, Mr. Glover’s office did not respond to Crown counsel’s invitation to schedule a pretrial until July 12, 2023. Jessica Swales in her email of July 12, 2023 states: “I apologize, I thought I had responded to this email already...”

[53] Crown counsel immediately responded to Ms. Swales’ email and provided the dates of August 18 and 24, 2023. August 24th was selected by Ms. Swales.

[54] I find that, at a minimum, the 20 days of delay in responding to Crown counsel’s invitation to schedule a pretrial constitutes defence delay. Arguably, had defence counsel responded on June 22, 2023, a pretrial could have been conducted in advance of the July 25th court appearance. The cascading effect of a prompt response to the Crown’s June 22, 2023 invitation, would likely have resulted in the scheduling of an earlier judicial pretrial and earlier dates for the preliminary inquiry thereby materially reducing the total delay.

(c) August 25, 2023 to August 31, 2023 = 6 days

[55] The day following their pretrial discussions, Mr. Campbell served the Crown’s trial readiness certificate and invited Mr. Glover to send an email to the OCJ trial coordinator selecting a date for the judicial pretrial. Mr. Glover’s offices responded on August 31, 2023 by filing the defendant’s trial readiness certificate with the OCJ trial coordinator and requesting dates for a judicial pretrial.

[56] I find that the 6 days of delay in requesting a judicial pretrial date to be reasonable in the circumstances. This period of delay includes a weekend. Moreover, defence counsel required a reasonable amount of time to prepare his trial readiness certificate. Therefore, no portion of this six day period of delay constitutes defence delay.

(d) November 21, 2023 to March 15, 2024 = 115 days (3 months, 23 days)

[57] Counsel estimated the preliminary inquiry would require two days. The preliminary inquiry ultimately did take two days to complete. Counsel were provided with the court’s availability to conduct the preliminary inquiry in the form of a “Date-Setting Availability” chart as at September 21, 2023.

[58] Both defence counsel and Crown counsel indicated on the chart their availability on the nine (9) dates provided by the court. Of the dates provided by the court, Crown counsel had availability to conclude the preliminary inquiry by November 21, 2023. However, Mr. Glover was not available to conclude the 2-day preliminary inquiry until February 29, 2024.

[59] Where the court and the Crown are ready to proceed but the defence is not the resulting delay constitutes defence delay and should be deducted from the total delay. R. v. Jordan, 2016 SCC 7, at para. 64; and R. v. Cody, 2017 SCC 31, at para. 30. Therefore, the 100-day period of delay between November 21, 2023 and February 29, 2024 constitutes defence delay.

(e) September 11, 2024 to March 5, 2025 = 175 days (5 months, 22 days)

[60] At the June 11, 2024 SCJ assignment court, defence pretrial applications, including two multi-stage applications, and the trial were scheduled. On that date, the court (using the incorrect presumptive Jordan date set forth in the indictment of March 12, 2025), attempted at first instance to schedule the trial to commence February 24, 2025. Both Crown and defence counsel were available. However, the scheduling of multi-stage defence pretrial applications with sufficient time for the applications judge to write their ruling in advance of the next stage, rendered the February 24, 2025 date unworkable and, therefore, unavailable to the parties for the trial. I pause to mention that had this matter been scheduled for trial to commence February 24th, 2025, the trial would be expected to be completed by February 27, 2025, well before the presumptive Jordan date of April 15, 2025.

[61] Eventually, pretrial application dates of September 11 and November 13, 2024 and January 15 and March 5, 2025, and the current trial date of July 28, 2025, were scheduled.

[62] Having calculated defence delay totaling 120 days (3 months, 28 days), total net delay is reduced to 29 months, 2 days which falls below the presumptive 30-month ceiling. Accordingly, it is unnecessary to consider the Crown’s argument that defence delay should be attributed to the time scheduled for the defendant’s pretrial applications which the Crown argues are without merit.

[63] Furthermore, on September 11, 2024, both this s. 11(b) application and stage one of the defendant’s s. 278.3 third-party records application were argued. I reserved my decision on both applications. In my view, the Crown’s position with respect to the merit of the applications and its bearing on my assessment of defence delay was premature.

[64] I released my ruling on October 17, 2024, dismissing the s. 278.3 application at stage one. In light of this ruling, the balance of the time scheduled for stages two and three of the s. 278.3 application is no longer required. This ruling may also lead the defendant to abandon other applications currently scheduled.

[65] Counsel may contact the trial coordinator to arrange to have this matter added to the November 12, 2024 assignment court list to address issues of scheduling and, specifically, rescheduling the trial to an earlier date, if they wish.

Exceptional Circumstances

[66] Since the period of total delay is less than the presumptive ceiling, it is unnecessary to consider whether any period of delay is due to exceptional circumstances.

Unreasonable Delay – Under the Presumptive Ceiling

[67] The applicant now bears the onus of showing the delay was unreasonable. The applicant did not attempt to satisfy this burden and focussed his argument on the net delay exceeding the 30-month presumptive ceiling.

Disposition

[68] For the foregoing reasons and, specifically, after making a reduction for defence delay, I find that Mr. Donnelly’s trial (as currently scheduled) will be completed within a reasonable time.

[69] Application dismissed.

“Justice A.K. Mitchell”