Court File and Parties

Court File No.: CR-22-10000052-0000
Date: 2025-01-17
Court: Ontario Superior Court of Justice
Between: His Majesty the King – and – Kenneth Hill

Applicant Counsel: Rick Frank and Sherif Foda
Respondent Counsel: Mark Rieger
Heard at Toronto: December 23, 2024

Ruling on s. 11(b) Application
Judge: J.K. Penman

A. Overview

[1] Mr. Kenneth Hill was charged on December 24, 2020, with a series of assault-related offences including aggravated assault. He was convicted by a jury on January 17, 2024, of aggravated assault, three counts of assault with a weapon, and mischief under $5,000. The Crown has brought an application to have Mr. Hill designated a long-term offender (“LTO”) under s. 753.1(1) of the Criminal Code (the “Code”). That hearing is scheduled to conclude on January 31, 2025.

[2] The time between Mr. Hill being arrested and charged and the conclusion of his trial was 36 months and 5 days. The delay post-verdict is 12 months and 14 days. Mr. Hill now brings an application to have his charges stayed for delay pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms (the “Charter”).

[3] The defence position is that the pre-trial delay of 36 months and 5 days was the fault of the Crown when Mr. Hill was inadvertently released from custody early, resulting in him missing his first trial date.

[4] Counsel also argues that the post-verdict delay of 12 months and 14 days is unreasonable and has been caused entirely by the Crown. They argue that the exceptional nature of a long-term offender proceeding does not justify the length of the proceedings because the Crown did not make efforts to mitigate the delay.

[5] The Crown opposes the application and submits that the pre-verdict delay was because of Mr. Hill not appearing for his trial. They argue that the post-verdict delay is reasonable given the complexity involved in bringing an LTO application.

[6] The question of whether the total delay in this case is unreasonable requires me to consider two discrete questions:

a. Where does the delay fall in getting Mr. Hill to trial after he was inadvertently released from custody?
b. Is the post-verdict delay unreasonable?

[7] I provided a ‘bottom line’ decision on January 10 dismissing the application. These are my reasons.

[8] The delay in having Mr. Hill brought to trial is because Mr. Hill did not appear for his trial date. Had Mr. Hill appeared for his first trial date, his trial would have been completed under the Jordan ceiling.

[9] The post-verdict delay of 12 months and 14 days is reasonable and because of the exceptional circumstances inherent in the application for Mr. Hill to be declared a long-term offender. Although 3 months and 11 days was undue delay caused by the Crown, it falls under the 5 months presumptive ceiling and is not a breach of Mr. Hill’s s. 11(b) right under the Charter.

B. Background Facts

i) Pre-Verdict Proceedings – December 24, 2021, to January 17, 2024

[10] The issue in this case really involves a consideration of what took place once Mr. Hill’s matter was in Superior Court. Mr. Hill was committed to stand trial on October 25, 2021, 9 months and 14 days after his arrest which it is agreed by both parties is not an unreasonable amount of time.

[11] On December 14, 2021, Mr. Hill sought and was granted bail by the preliminary hearing judge.

[12] On February 11, 2022, a judicial pre-trial was held and dates were scheduled for five days of pre-trial motions starting October 30, 2023, and a three-week jury trial beginning December 4, 2023.

[13] Counsel for Mr. Hill made efforts to obtain an earlier trial date and scheduled a s. 11(b) hearing. New trial dates were agreed upon of January 10, 2023, for 5 days of pre-trial motions followed by a 2 to 3-week trial scheduled to begin April 10, 2023. This timeline would have brought the case under the Jordan timeframe at just under 28 months.

[14] On November 10, 2022, Mr. Hill was arrested on other matters. No application under s. 524 of the Code was brought on any of the outstanding matters and Mr. Hill remained out of custody on these charges.

[15] Counsel for Mr. Hill took the position that it was the Crown’s responsibility to get Mr. Hill to court for his pre-trial motions. Mr. Rieger on behalf of the Crown sought a Judge’s Order for Mr. Hill’s attendance at the motions.

[16] Between January 31 and February 3, 2023, the pre-trial motions were heard by Justice Goldstein who adjourned them to March 17, 2023, for judgment.

[17] On March 8, 2023, Mr. Hill resolved his outstanding matters and was sentenced to 180 days less 171 pre-sentence custody, leaving 9 days to serve. With earned remission, this would have seen Mr. Hill released on or about March 14, 2023.

[18] During the sentencing hearing, Mr. Hill indicated to the Court that he would be going to a homeless shelter in Toronto on his release, and counsel (not Mr. Foda’s office) indicated that he was in communication with his family. In addition to the remaining period of custody, he was sentenced to two years’ probation and ordered to report within two working days of his release.

[19] On March 9, 2023, Mr. Hill was inadvertently released from custody a few days early.

[20] On March 17, 2023, Mr. Hill failed to appear before Justice Goldstein for judgment on the pre-trial motions. Justice Goldstein remanded the matter to April 3, 2023, for Mr. Hill to attend court.

[21] On April 3, 2023, Mr. Hill again failed to appear for court. The matter was adjourned to the first day of trial, April 11, 2023 (April 10 was Easter Monday).

[22] On the April 11, 2023, trial date, a bench warrant was issued for Mr. Hill’s arrest after he did not appear in court. The police had been attempting to locate Mr. Hill but were unsuccessful.

[23] By June 14, 2023, Mr. Hill was back in custody and a further judicial pre-trial was scheduled to discuss possible resolution, his right to jury trial given his failure to appear for court, and new trial dates.

[24] On July 10, 2023, trial dates were secured with the trial office for January 27 to February 4, 2025. Had the matter proceeded on these dates, the delay would have been well over the Jordan timeline, so counsel scheduled an s. 11(b) application to be heard January 5, 2024.

[25] On November 17, 2023, after efforts on the part of both Crown and defence, earlier trial dates were offered of January 2, 2024, for three weeks. Those dates were confirmed on the record on December 18, 2023. At that appearance the Crown advised that the s. 11(b) motion scheduled for January 5, 2024, was “vacated but not abandoned”.

ii) Post-Verdict Proceedings – January 17, 2024, to January 31, 2025

[26] Mr. Hill was convicted of five of the counts on the indictment on January 17, 2024. The Crown advised it was considering seeking an assessment under s. 752.1 of the Code. On consent the matter was adjourned to practice court on February 12 and then March 4, 2024.

[27] On March 4, 2024, a Gladue report was ordered at the request of both Crown and defence. The Crown indicated it would be seeking a s. 21 assessment under the Mental Health Act, R.S.O. 1990, c. M.7 (the “MHA”), to potentially ground an application for an assessment of criminal responsibility.

[28] The Gladue report was completed on April 24, 2024. The MHA assessment was granted on March 26, 2024, to be completed March 28, 2024, and the matter was adjourned to May 7, 2024.

[29] Prior to the verdict the Crown had sought and received approximately 4,000 pages of documents including more than 3,000 that related to Mr. Hill’s previous time in federal custody, and an additional 1,200 pages of other correctional records.

[30] After trial, several production orders were sought and granted for records from the Centre for Addiction and Mental Health (the “CAMH”), the Canada Revenue Agency (the “CRA”), Central North Correctional Centre, Children’s Aid Society, the Grand Erie District School Board, Maplehurst Correctional Centre, the Ontario Health Insurance Plan (“OHIP”), and the Toronto East Detention Centre. A further 2,400 pages of documents were received.

[31] On April 24, 2024, the Crown filed the s. 752.1 assessment application to be heard May 7, 2024.

[32] On May 7, 2024, at the commencement of the hearing, defence counsel indicated they were consenting to the application. Given the last-minute consent, the matter was adjourned to May 21, 2024, for counsel to discuss an agreeable assessor.

[33] On May 21, 2024, the draft order was not ready, and the matter was adjourned to May 24 at which time the assessment order was made commencing June 3, 2024. Dr. Kravtsnyuk provided her report on August 28, 2024, within the timelines set out in s. 752.1 of the Code.

[34] On September 3, 2024, a 5-day LTO hearing was arranged for January 27 to 31, 2025. Dates were offered the week of October 21, 2024, but the Crown was not available. The defence indicated that they would be bringing an s. 11(b) application.

C. Overall Delay Analysis

[35] In evaluating an application made under s. 11(b) of the Charter, a court must identify and characterize the periods of delay occasioned throughout the trial. This requires an application of the framework established in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, which involves calculating the total delay and subtracting any defence delay in determining net delay. The court must then consider any exceptional circumstances including any discrete exceptional circumstances: see paras. 47, 61-64, 69 and 75.

[36] The presumptive ceiling for post-verdict delay is 5 months. However, proceedings under Part XXIV of the Code to have an accused person designated as a dangerous offender (“DO”) or an LTO are characterized as exceptional circumstances in an 11(b) analysis: R. v. Charley, 2019 ONCA 726, 147 O.R. (3d) 497, at para. 100. This, however, does not relieve the Crown of their obligation to mitigate any resulting delay: R. v. K.C., 2022 ONCA 738, at para. 56.

[37] Time associated with a DO/LTO proceeding is to be deducted from the five-month presumptive ceiling: Charley, at paras. 98 and 100; R. v. Valle-Quintero, 2021 ONCA 390, at para. 24.

i) Where Does the Delay Fall in Mr. Hill’s Trial Having to be Rescheduled?

[38] Counsel for Mr. Hill argued that the pre-verdict delay is attributable to the Crown because Mr. Hill was inadvertently released from custody, and it was the Crown’s responsibility to bring Mr. Hill to court.

[39] The difficulty with this argument is that Mr. Hill was going to be released from custody prior to the return date of March 17, 2023, and certainly by the trial date on April 11, 2023, in any event. He would have been out of custody at the time of his first trial date, and it was Mr. Hill’s responsibility to come to court.

[40] There is no obligation on the Crown to make arrangements for an out of custody accused to attend court. The onus is on an out of custody accused to come to court when required – it is in fact a condition of their release.

[41] Mr. Foda argues that once Mr. Hill was released a few days early, counsel was deprived of the opportunity to communicate with his client or ensure his attendance at trial. There is no evidence before me as to why that is so, or what would have been done differently, had Mr. Hill been released on March 14, 2023, instead of March 9, 2023.

[42] While I appreciate that Mr. Hill has mental health issues, Mr. Foda’s office had no difficulty communicating with and receiving instructions from Mr. Hill through the entire period of December 14, 2021, up until his arrest on November 10, 2022. During that period there were multiple appearances, judicial pre-trials, and scheduling and rescheduling of trial dates.

[43] When Mr. Hill was before Justice Goldstein on February 3, 2023, he was remanded to March 17, 2023. Mr. Foda did not bring an application to get off the record on March 17, April 3, or the April 11, 2023, trial date when Mr. Hill did not appear.

[44] Counsel argued that the state has an obligation in the case of an accused person with mental health issues to put measures in place to ensure the accused’s attendance at court. Counsel drew the comparison with the police obligation to ensure accused persons with mental health issues understand their s. 10(b) Charter rights, and that this may require more diligence on the part of state actors. Counsel referred specifically to Justice Goldstein’s comments to this effect in relation to a Charter application brought by Mr. Hill: R. v. Hill, 2023 ONSC 5526.

[45] I am not persuaded by this submission. There is no obligation on the state to put measures in place to ensure an out of custody accused person comes to court, irrespective of whether they have mental health issues. This is not the same thing as the obligation on the police to comply with their Charter obligations.

[46] I am also not persuaded that this delay should be “divided” between the Crown and the defence. While I am sympathetic to Mr. Hill’s mental health issues, I am not of the view that any of the delay in getting Mr. Hill to court for his trial was the fault of the Crown. Mr. Hill was last before Justice Goldstein on February 3, 2023, and he was required to attend court again on March 17, just over a month later.

[47] According to Mr. Hill’s counsel, Mr. Hill was in communication with his family, he had previously been in regular contact with his Toronto counsel, he was aware of the March 17 court appearance and the April 11 trial date, and it was a condition of his release that he attend court when required to do so.

[48] Although Mr. Hill was inadvertently released from custody a few days earlier than expected, he was going to be out of custody for his trial date in any event. What caused the delay in these circumstances was Mr. Hill not coming to court.

[49] While there is no doubt that the defence was diligent in securing new trial dates once Mr. Hill was re-arrested, I am satisfied that the 8 months and 3 days delay between the first and second trial dates is attributable to the defence. Had Mr. Hill come to court on April 11, 2023, for his scheduled trial date, this matter would have been heard under the Jordan ceiling at 28 months and 3 days.

ii) Was the Post-Verdict Delay Unreasonable?

[50] Counsel for Mr. Hill takes the position that the post-verdict delay of just over 12 months is unreasonable in the circumstances of this case. They argue that portions of the time between verdict and the anticipated conclusion of the LTO hearing not be considered an exceptional circumstance because the Crown did not bring the s. 752.1 application in a timely fashion, they did not mitigate the delay and were not available for the first hearing dates offered.

[51] Counsel for Mr. Hill suggested that the two months from the verdict until March 26, 2024, not be apportioned as an exceptional circumstance because the Crown chose to pursue an MHA assessment as opposed to immediately bringing their s. 752.1 application.

[52] I accept that from the Crown’s perspective, Mr. Hill is a “complicated person” in terms of sentencing. The Crown did initially pursue an MHA assessment given Mr. Hill’s obvious mental health issue at the time of the offences and the question of whether there was an issue as to criminal responsibility. But the Crown was also in the process of obtaining the rest of the materials for the s. 752.1 application.

[53] Although Mr. Hill indicated he would not participate in the MHA assessment, the Crown erroneously believed that a report focused on Mr. Hill’s mental health issues would be provided and would be of assistance if an assessment as to criminal responsibility was pursued.

[54] I am satisfied, however, that the request for an MHA assessment was reasonable. The MHA assessment was ordered to be completed on March 28, 2024, two days after the application was made. A Gladue report had also been ordered on March 4, 2024, and was completed April 24, 2024. In my view, the Gladue report was necessary for the sentencing regardless of whether there was an LTO application.

[55] Regardless, in the interim the Crown was still pursuing the additional records required for the s. 752.1 application. These records had to be obtained, reviewed, vetted, and disclosed. The request for an MHA assessment did not cause any delay as the MHA assessment issue and the s. 752.1 application were in effect proceeding in tandem.

[56] The Court of Appeal in R. v. Adu-Bekoe, 2021 ONCA 136, 154 O.R. (3d) 424, at para. 25, has found that a reasonable time for the preparation of a s. 752.1 application falls between one and five months, depending on the circumstances of the case.

[57] In this case it took just under four months from the verdict until the s. 752.1 application, and in my view, this was a reasonable amount of time. The Crown obtained many of Mr. Hill’s records prior to conviction, and quickly made efforts to obtain the rest shortly after his conviction. In my view, it is not always reasonable or practicable for the Crown to obtain all records relating to a potential DO/LTO application prior to conviction.

[58] The materials in this case are also voluminous and cannot be characterized as “sparse”, as they were in Adu-Bekoe: at para. 25. In this case I am satisfied the Crown made sufficient efforts to obtain the materials pre- and post-verdict. The defence then needed a reasonable period to review this material and determine whether a contested hearing needed to be argued.

[59] On April 24, 2024, the Crown brought the s. 752.1 application to be heard on May 7, 2024. Counsel for Mr. Hill consented to the s. 752.1 application the day of the hearing which was just under 4 months post-verdict. The matter then had to be adjourned until May 21, 2024, for the purpose of counsel discussing an assessor. There was no point in the Crown engaging an assessor until it was clear the s. 752.1 order would be granted.

[60] Counsel for Mr. Hill pointed out that the Crown had been considering a potential DO/LTO application prior to the trial and verdict. In that vein, I understand that the s. 752.1 application did not come as a surprise to Mr. Hill. Although there is no obligation on the defence to consent, in this case they did so, but not until the morning of the hearing.

[61] While I am satisfied that the timeframe between the verdict on January 17, 2024, and the s. 752.1 application on May 7, 2024, was reasonable, had the defence consented earlier, the time elapsed would have been less and attempts to agree on and engage an assessor could have been pursued and potentially finalized by May 7.

[62] The s. 752.1 order was put in place on May 24, 2024, with the 60-day assessment order commencing June 3, 2024. The s. 752.1 report was completed on August 28, 2024, within the timeframe mandated by the Code.

[63] Counsel for Mr. Hill also argues that half of the timeframe between when the s. 752.1 order was made on May 24, 2024, and the anticipated conclusion of the LTO hearing on January 31, 2025, should be characterized as an exceptional circumstance. Counsel argues the Crown failed to mitigate the delay generally, and specifically when the Crown was not available for the October 21, 2024, dates offered for the hearing.

[64] This submission ignores the reality that Part XXIV applications are an exceptional circumstance, not just the events leading to an application under s. 752.1: see R. v. McLean, 2020 ONSC 1931, at para. 12. While this does not relieve the Crown of the obligation to responsibly move the matter forward, the nature of Part XXIV proceedings cannot be ignored.

[65] Secondly, s. 752.1 of the Code has built into it a period of 90 days for the assessment and report to be completed. The assessor has a large volume of material to review and issues to be addressed during such assessments, together with the complexity of the issues. Of note, and in recognition of the complexity of the assessment process, s. 752.1(3) permits an extension of 30 days for the report to be completed. That request was not made in this case.

[66] Once the report was obtained, all parties required time to review it. This inevitably involved the defence considering whether they now wished to retain their own expert.

[67] The Crown was then required to obtain the consent of the Attorney General pursuant to s. 754(1)(a) of the Code. In this case the consent obtained was for an LTO designation and was received on November 19, 2024.

[68] In the interim on September 3, 2024, the week of October 21, 2024, was offered for the LTO hearing, but the Crown was not available. The defence was prepared to take the October dates. I understand that the Crown himself was not available, but the Crown also argues that it was not realistic to expect the materials to have been prepared and provided in time for the defence to properly prepare and respond.

[69] While I do not entirely disagree with this submission, the issue of delay had been on the table in this case since July of 2023. Counsel for Mr. Hill worked diligently throughout the proceedings to have Mr. Hill brought to trial as quickly as possible. At the time the January 2024 trial dates were set a s. 11(b) motion had been scheduled. While it had been vacated, it was not abandoned.

[70] After the verdict, counsel for Mr. Hill again began raising 11(b) concerns as early as May 7, 2024, and indicated they wished the matter to move along as swiftly as possible. The Crown should have made efforts to have the matter prepared and heard the week of October 21, 2024. A fair amount of the preparation was done for the s. 752.1 application including the filing of a large application record which contains many of the records the Crown will be relying on for the LTO application.

[71] As the Supreme Court said in Jordan, “the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events” (see R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625). The obligation on the Crown to mitigate the delay requires that any undue delay of the LTO proceedings caused by the Crown not be deducted as an exceptional circumstance: Jordan at para. 75; K.C., at para. 58.

[72] I can also look to the length of the proceedings prior to verdict as a factor in determining whether the defence has established unreasonable delay post-verdict: Charley, at para. 82. While I have found that the delay in getting Mr. Hill to trial was due to defence delay, the trial was completed well over the Jordan ceiling at over 36 months.

[73] While I appreciate the tight turnaround in having an LTO hearing prepared and heard in just under 2 months, given how long this case had been before the court, I am satisfied that the delay from October 21, 2024, to January 31, 2025, is unreasonable post-verdict delay that should not be deducted from the 5-month presumptive ceiling.

[74] This timeframe of 3 months and 11 days, however, is below the presumptive Charley ceiling of 5 months post-verdict delay.

D. Conclusion

[75] Mr. Hill’s trial was completed over the Jordan ceiling at 36 months and 5 days. I am satisfied that just over 8 months of that delay is attributable to the defence when Mr. Hill failed to appear for his first trial date. Had Mr. Hill appeared for his first trial, it would have been completed under the Jordan ceiling.

[76] After Mr. Hill was convicted, the Crown began proceedings under Part XXIV of the Criminal Code to have Mr. Hill designated a Dangerous or Long-term offender. These applications have been recognized as exceptional circumstances that would necessarily add time to the 5-month post-verdict ceiling.

[77] I have found undue post-verdict delay that does not constitute an exceptional circumstance of 3 months and 11 days. This delay, however, is below the presumptive Charley ceiling, and therefore did not breach Mr. Hill’s s. 11(b) right.

[78] The application is dismissed.

J.K. Penman
Released: January 17, 2025
Revised: January 29, 2025