R. v. Dhaliwal, 2019 ONCJ 761

ONTARIO COURT OF JUSTICE CITATION: R. v. Dhaliwal , 2019 ONCJ 761 DATE: 2019 10 22 COURT FILE No.: 18-4407 BETWEEN: HER MAJESTY THE QUEEN Respondent — AND — SUKHJINDER DHALIWAL Applicant Before Justice K.A. Wells Heard on October 2, 2019 Reasons for Judgment released on October 22, 2019 Ms. Helena Gluzman.......................................................................... counsel for the Crown Mr. David Locke………………………………………….counsel for Sukhjinder Dhaliwal WELLS J.: Introduction [ 1 ] On October 2, 2019, after receiving both written and oral argument from the parties, I granted the Applicant’s motion to stay the proceedings for unreasonable delay under s.11(

b) of the Charter , with reasons to follow. These are my reasons. Overview [ 2 ] This case is just one of many here in the Peel Region where the Ontario Court of Justice is left to resolve whether a defendant’s right to be tried within a reasonable time has been violated. Mr. Sukhjinder Dhaliwal (hereinafter the “Applicant”) was charged on April 13, 2018 with two counts each of assault, overcoming resistance and unlawful confinement, all with an alleged offence date of April 9, 2018.

He was released on a Promise to Appear with a first appearance date of April 25, 2018. [ 3 ] The Applicant filed transcripts from each appearance which demonstrate that he retained counsel prior to his first appearance, and through counsel, made every effort to expedite the proceedings. On July 24, 2018, three months from his first appearance, the Applicant’s trial was scheduled for January 24, 2019, for two consecutive days. When the Applicant appeared for his trial on January 24, 2019, his matter could not be accommodated due to the volume of other matters scheduled for that same date.

Counsel was advised to attend at the Trial Co-ordinator’s office and obtain new dates for trial – those dates were October 2 nd & 3 rd , 2019. [ 4 ] The total period of delay from the date the Applicant was arrested to the anticipated end of trial is 17 months and 21 days. The Applicant relies on the Supreme Court of Canada decision in R. v.

Jordan , 2016 SCC 27 , and submits that (1) there are no periods of delay attributable to the defence, and (2) notwithstanding the total delay is ten days under the 18 month “presumptive ceiling,” the Applicant took meaningful steps to expedite the proceedings which ultimately took far longer than they should have, resulting in a violation of his right to have his trial within a reasonable time, under s. 11(b).

[5] In response, the Crown submits that five months and two days of the total period of delay should be attributed to the defence,such that the “net” delay is 12 months and 19 days (well below the presumptive ceiling). Furthermore, the Crown argues that to theextent that the Applicant’s trial (on either calculation) is below the presumptive ceiling, the Applicant has failed to establish that heengaged in a sustained effort to expedite the proceedings, and that the case took markedly longer than it should have. Law & Analysis [6] There are two issues to be determined by me on this Application: (

i) Are there any time periods in this case attributable to defence delay? (ii) Has the Applicant discharged his onus of establishing a sustained effort to expedite the proceedings, and that the case has takenmarkedly longer than is reasonable? I.

Are there any time periods in this case attributable to defence delay? [7] The determination of this issue comes down to my assessment of the time period between the Applicant’s first scheduled trialdate on January 24, 2019, and the scheduled date for completion of his second trial date, which is October 3, 2019. [8] When trial or preliminary inquiry dates are set here in Brampton, counsel are provided with what is commonly referred to as a“Trial Verification Form” which lists all of the trial dates offered by the Trial Co-ordinator, and reflects Crown and defence availabilityin respect of each potential date.

Here, the Trial Verification Form dated January 24, 2019, reflects that counsel were offered two sets ofdates prior to the ones which were ultimately accepted. The two earlier dates were February 21 and 22, 2019, and May 1 and 2, 2019.

Both the Crown and defence were unavailable for the February dates, however the Crown was available for the May dates but thedefence was not. [9] It is the Crown’s position that because the defence was unavailable for the May set of dates, the period of delay between May1, 2019 and October 2, 2019 is “delay caused solely by the defence” and should therefore be deducted from the total delay. [10] Just days before I heard the Application herein, I released R. v. Shim, 2019 ONCJ 686, in which I considered the very issue to beresolved here.

As such, I have reproduced several paragraphs of that decision below dealing with the method of calculating defencedelay. Calculating Defence Delay [11] In Jordan, the Supreme Court of Canada reset the analytical framework for determining whether a violation of s.11(

b) hasoccurred. According to the new model, where the total delay in completing a case in the Ontario Court of Justice exceeds 18 months, thedelay will be presumptively unconstitutional subject to a consideration of any case-specific exceptional circumstances. [12] For the purpose of calculating the constitutionally relevant period of delay for the 11(

b) analysis, periods of “defence delay” areto be deducted from the total delay. What constitutes “defence delay” continues to be a matter of great debate. In Jordan, at paragraphs61 and 63 - 64, the Court stated as follows:

(61) Defence delay has two components. The first is delay waived by the defence (Askov, at pp.1228-29; Morin, at pp.790-791). Waivercan be explicit or implicit, but in either case, it must be clear and unequivocal. The accused must have full knowledge of his or herrights, as well as the effect waiver will have on those rights. However, as in the past, “[i]n considering the issue of ‘waiver’ in thecontext of s.11(b), it must be remembered that it is not the right itself which is being waived, but merely the inclusion of specific periodsin the overall assessment of reasonableness” (R. v. Conway, (SCC), [1989] 1 S.C.R. 1659 per L’Heureux-Dube J., atp.1686). …..

(63) The second component of defence delay is delay caused solely by the of the defence. This kind of delay comprises “those situationswhere the accused’s acts either directly caused the delay…or the acts of the accused are shown to be a deliberate and calculated tacticemployed to delay the trial: (Askov, at pp. 1227-28). Deliberate and calculated defence tactics aimed at causing delay, which includefrivolous applications and requests, are the most straightforward examples of defence delay. Trial judges should generally dismiss suchapplications and requests the moment it becomes apparent they are frivolous.

(64) As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but thedefence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time duringwhich the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. This shoulddiscourage unnecessary inquiries into defence counsel availability at each appearance.

Beyond defence unavailability, it will of course beopen to trial judges to find that other defence actions or conduct have caused delay (see, e.g. R. v. Elliott (2003), (ON CA), 114 C.R.R. (2d) 1 (Ont. C.A.), at paras. 175-82). [13] In R. v. Cody, 2017 SCC 31 , [2017] S.C.J. No. 31, the Supreme Court of Canada expanded its description of whatconstitutes “defence delay” under the new 11(

b) framework. At paragraphs 29 - 32 the Court said:

(29) However, not all delay caused by defence conduct should be deducted under this component. In setting the presumptive ceilings,this Court recognized that an accused person’s right to make full answer and defence requires that the defence be permitted time toprepare and present its case. To this end, the presumptive ceilings of 30 months and 18 months have “already accounted for [the]procedural requirements” of an accused person’s case (Jordan, at para. 65; see also paras. 53 and 83). For this reason, “defence actionslegitimately taken to respond to the charges fall outside the ambit of defence delay” and should not be deducted (Jordan, at para. 65).

(30) The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accusedperson; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. As we said in Jordan,the most straightforward example is “[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolousapplications and requests” (Jordan, at para. 63). Similarly, where the court and Crown are ready to proceed, but the defence is not, theresulting delay should also be deducted (Jordan, at para. 64).

(31) The determination of whether defence conduct is legitimate is “by no means an exact science” and is something that “first instancejudges are uniquely positioned to gauge” (Jordan, at para. 65). It is highly discretionary, and appellate courts must show acorrespondingly high level of deference thereto. While trial judges should take care to not second-guess steps taken by defence for thepurposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate todo so.

(32) Defence conduct encompasses both substance and procedure – the decision to take a step, as well as the manner in which it isconducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstancessurrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordanceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s.11(

b) application if it is designed to delay orif it exhibits marked inefficiency or marked indifference toward delay. [14] In the years since Jordan, there has been an unfortunate lack of clarity amongst trial courts as to how to interpret certain aspectsof the framework analysis. Germane to this Application is the phrase taken from paragraph 64 of Jordan wherein the Court states: As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence isnot. The period of delay resulting from that unavailability will be attributed to the defence.

The appropriate way to attribute time periods of defence unavailability (when otherwise available to the court and the Crown) isdeterminative of the “net delay” calculation in this case. The Applicability of Godin [15] In R. v. Godin, 2009 SCC 26 , [2009] S.C.J. No. 26, some seven years before Jordan, the Supreme Court of Canadahad occasion to consider, among other issues, the proper method of attributing time periods for the purpose of 11(

b) delay calculations. Writing for the Court, Cromwell J. specifically rejected a rigid and fixed approach for the calculation of delay. In that case, apreliminary inquiry was originally scheduled for September of 2006 but did not proceed. The earliest date offered to the defence toreschedule the preliminary inquiry was December 22, 2006, but the defence was unavailable. The preliminary inquiry was ultimately setfor February 5, 2007. At paragraph 23, Cromwell J. held that the one and a half month period between December 2, 2006 and February5, 2007, should not be attributed to the defence.

He stated as follows: Scheduling requires reasonable availability and reasonable cooperation; it does not, for s.11(

b) purposes, require defence counsel to holdthemselves in a state of perpetual availability. Here, there is no suggestion that defence counsel was unreasonable in rejecting the earlierdate. Indeed, his prior conduct in seeking earlier dates for the preliminary inquiry – efforts which were ignored – suggests that hewished to proceed expeditiously.

I respectfully agree with Glithero R.S.J., dissenting in the Court of Appeal, at para. 53, that: “To holdthat the delay clock stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crownis responsible for the case having to be rescheduled, is not reasonable.” [16] Post Jordan, courts have been divided on whether the comments of Justice Cromwell continue to apply. [17] In the Application before me, the Crown argues that the Ontario Court of Appeal’s Reasons for Decision in R. v. Mallozzi, 2018ONCA 312 , [2018] O.J.

No. 1794, are dispositive of the issue, and confirm that Godin is no longer applicable under the current11(

b) regime. Indeed, at least two of my colleagues on the Ontario Court of Justice have accepted this submission and found that Godinhas been overtaken by Jordan and that the previous method for calculating delay has been extinguished. In both R. v. Sookdeo, [2018]O.J. No.4341 and R. v. Francis, [2019] O.J. No. 1675, the Court held that the proverbial 11(

b) clock stops as soon as the defence isunavailable on a date open to both the Crown and the court. [18] In R. v. Dhillon, [2019] O.J. No. 3148, at paragraph 16, Duncan J. interpreted Mallozzi to have “confirmed that Jordan meantexactly what it said. The Jordan clock stops with the first set of dates that the Crown and the court are available for trial but the defenceis not: R. v. Jafour, 2019 ONCJ 175 at para 21.” He went on to address the Ontario Court of Appeal decision in R. v. Albinowski, 2018ONCA 1084 , [2018] O.J. No. 6892, which was released after Mallozzi, and said the following:

(17) However, more recently the Court has suggested that the clock stop “rule” may be more flexible. In R. v. Albinowski, 2018 ONCA1084 , [2018] O.J. No. 6892, the Court dealt with a Crown appeal from a stay entered at trial of three co-accused. The mainissue concerned the trial judge’s characterization of time from completion of pre-trial procedures (early October 2015) to the preliminaryinquiry in September 2016. Dates for the preliminary were offered in January, February, July and August but were declined due tounavailability of one or more defence counsel.

The trial judge characterized the time after the July dates as defence delay but not thetime from January. The Court of Appeal found this to be reversible error but at the same time rejected a strict, inflexible rule: 46. Crown counsel argues that all the delay following the very first date offered for the preliminary inquiry must be assessed as defencedelay. I disagree with such a categorical approach.

(18) However, on the facts, the Court held that it was error for the trial judge to have failed to characterize the unavailability of defencecounsel from January as being defence delay. The Court pointed out that the earliest dates (in January) were offered three months earlier“in the days leading up to the remand appearance on October 6, 2015 (para 20). The Court concluded: 50. While the dates [in January] may have been unexpected, the fact is that the court was able to offer dates allowing for a reasonable

time for the defence to prepare for and conduct the preliminary inquiry in this case…

(19) The principle I take from Albinowski is that defence unavailability will not stop the Jordan clock if the dates are so soon as to notallow sufficient time for the defence to prepare. [19] In R. v. Zikhali, [2019] O.J. No. 262, Burstein J. held that the Godin approach for apportioning responsibility for schedulingdelay remains good law, and cited Albinowski for that proposition. At paragraphs 19 and 20 he writes:

(19) There are a number of pre-Jordan cases which had addressed the issue of allocating delay where a trial had to be rescheduledbecause it was not completed when expected, such as R. v. Godin, 2009 SCC 26 , R. v. Brace (2010), 2010 ONCA 689, 261 C.C.C. (3d) 455 at paras. 14-16 (Ont. C.A.); R. v. Satkunanathan (2001), (ON CA), 152 C.C.C. (3d)321 at paras 43-5 and 54-5 (Ont. C.A.); R. v. M.(R.) (2003), (ON CA), 180 C.C.C (3d) 49 at paras. 6-9 (Ont. C.A.);R. v. W.(A.J.) (2009), 2009 ONCA 661 , 257 O.A.C. 11 at paras. 29-43; and R. v. Tran, 2012 ONCA 18 , [2012] O.J.No. 83 (C.A.).

Two principles seemed to emerge from this line of cases, beginning with the passage at paragraph 23 of the SupremeCourt of Canada’s decision in Godin. First, it would be unfair to fault a defendant for not having retained counsel with a wide open trialcalendar in the event that the trial could not be completed on the dates originally scheduled. To avoid being saddled with responsibilityfor delay when rescheduling a trial, the defence must have “reasonable availability,” not complete availability. Second, there is no setformula for apportioning responsibility for delays occasioned by an unexpected need to

schedule further time to complete a trial. Rather,the apportionment of responsibility for “rescheduling delay” involves an exercise of discretion premised on the specific features of acase.

(20) In the aftermath of Jordan, some have questioned whether the Godin approach to apportioning responsibility for scheduling delayremains good law. That issue was very recently considered by the Ontario Court of Appeal in R. v. Albinowski, 2018 ONCA 1084 (at paras. 28-35). Writing for the Court in Albinowski, Roberts J.A. refused to accept that the oft-cited passage in Godin hadbeen implicitly overtaken by the Supreme Court’s decision in Jordan.

Rather, Roberts J.A. recognized that the approach advanced inGodin was premised on two specific features of that case; namely, “the Crown’s responsibility for the need to reschedule and theattempts by the defence to expedite the proceedings.” In another very recent appellate decision, the Newfoundland Court of Appeal inR. v. King, [2018] N.J.

No. 366 (C.A.) (at para. 108), has held that the “common sense” approach to assessing responsibility forscheduling delays advanced by the Supreme Court in Godin “still applies after Jordan.” In view of these two recent appellate decisions, Iam satisfied that the Supreme Court’s approach in Godin continues to govern an assessment of responsibility for delays occasioned by“the need to reschedule” a case. [20] In R. v. Gundy, 2008 ONCA 284 , [2008] O.J. No. 1410, Justice Rosenberg said “I find it difficult to believe that theSupreme Court of Canada intended to overrule Rilling without referring to it” (para. 35).

The majority decision in Jordan makes only apassing reference to Godin, and in doing so at paragraph 37 reiterates Cromwell J.’s warning therein that “courts must avoid failing to seethe forest for the trees.” [21] In my view, had the Supreme Court intended to overrule Godin the Court would have expressly said so. Furthermore,attributing an entire period of delay to the defence due to defence unavailability on one date offered would be inconsistent with theoverall intention of Jordan to do away with the “finger pointing” method of calculating delay.

I adopt the succinct reasoning andapproach of Woollcombe J. in R. v. Ameerullah, 2019 ONSC 4537 , [2019] O.J. No. 3975, at paragraphs 28 & 29 wherein shestated:

(28) To summarize, the appellate authorities, including Mallozzi, Albinowski and R. v. Picard, 2017 ONCA 692; leave to appeal refused,[2018] S.C.C.A. No. 135 (S.C.C.) make clear that 11(

b) requires reasonable availability, flexibility and some level of cooperation. Clearly, when a single date or block of time is offered to the defence, and counsel is unavailable on that date, not all of the delay to thenext available date is necessarily defence delay. Rather than taking this sort of “categorical” approach, there needs to be consideration ofthe particular circumstances of a case, bearing in mind the Jordan call for a change in direction and break in the culture of complacency.

(29) However, when the Crown is available on numerous dates that are offered by the court, and the defence counsel is repeatedlyunavailable for any dates over a reasonable period, the delay that results is defence delay. The justification for this approach is that it isdefence counsel’s lack of availability that results in the matter being set further in the future than would otherwise be necessary. [22] After attending for trial on January 24, 2019, counsel for the Applicant was offered one option that was available to the Crownwhich was May 1 and 2, 2019.

There were no other dates offered between the May dates, and the dates ultimately set for trial of October2 and 3, 2019. In my view, it would be totally contrary to the spirit of Jordan to attribute any of that period to the Applicant, particularlywhere the evidence reveals that he wanted his trial within a reasonable time.

To do otherwise would amount to essentially blaming theApplicant for five months of delay in bringing him to trial, because his lawyer didn’t have availability on one date, notwithstanding thathe was by all accounts “ready to proceed.” I find that there are no periods of defence delay in this case and as such, the relevant timeperiod for constitutional consideration is 17 months and 20 days. II.

Has the Applicant discharged his onus of establishing a sustained effort to expedite the proceedings, and that the case has takenmarkedly longer than is reasonable? [23] In my view, the Applicant has discharged his onus in demonstrating that the case should be stayed notwithstanding the totaltime period is nine days below the presumptive ceiling of 18 months. [24] At paragraph 48 of Jordan, the majority wrote as follows: If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable toexceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable.

To do so, the defence must establish (1) it took meaningful steps to demonstrate a sustained effort to expedite the proceedings, and (2)the case took markedly longer than it reasonably should have. We expect stays beneath the ceiling to be rare, and limited to clear cases.

I will address both components of the sub-ceiling requisite analysis in turn.

i) Defence Steps to Expedite the Proceedings [ 25 ] There were a mere 12 days between the Applicant’s arrest and his first appearance in court. It is significant to me that in that short period of time the Applicant retained a lawyer who attended in person with a Designation of Counsel. The Applicant wasted no time in hiring a counsel, signifying that he was committed to moving his case forward. [ 26 ] As is customary on 11(

b) Applications, I have the benefit of the record from every appearance made by the Applicant and/or his counsel. That record reveals that counsel for the Applicant appeared on each occasion, making meaningful steps to move the case to trial. On July 24 th , 2018, the Applicant’s trial was set for January 24 and 25, 2019. The first available date offered was January 22 and 23, 2019, however the Crown was unavailable.

As of July 24 th , 2018, the Applicant was prepared for his trial and took the first available date offered. [ 27 ] The transcript of proceedings from January 24, 2019, reveals that the Applicant and his counsel attended on that date, ready to proceed to trial. At nearly 3:30 p.m. it became apparent that the matter was not going to be reached due to other ongoing matters, and counsel was instructed to obtain new dates for trial.

While addressing the matter in court, the Applicant’s counsel made clear that of the two earlier sets of dates offered (February 21 and 22, 2019 & May 1 and 2, 2019), he was available on the 1 st of each of the two sets of days (February 21, 2019 and May 1, 2019). Counsel also made clear that “my client is not waiving his 11(

b) rights, and in fact, he’s asserting them.” He went on to mention the significant expense to the Applicant of having to set new trial dates, as well as the stress of having the matter ongoing for a lengthy period of time. [ 28 ] In both written and oral argument, the Crown submits that the Applicant “cannot show any efforts to secure the earliest available date when the second trial date was being set.” The Crown also submits that the assertion of the Applicant’s 11(

b) rights on the record was inadequate and nothing more than a meaningless “pro-forma” assertion. The Crown argues that there should have been overt notice that an 11(

b) Application was being filed. In its factum at paragraph 45 the Crown writes as follows: Indeed, when the Crown enquired as to whether the matter was under the presumptive ceiling or not counsel simply stated “I haven’t checked the net dates.” The discussion ended there. Had counsel alerted the Court of an intention to file an 11(

b) application other steps may have been taken by the Court to try and secure earlier dates – such as calling the Trial Co-ordinator or sending the Crown to the Trial Co-ordinator’s office to see what could be negotiated. [emphasis added] [ 29 ] My

interpretation of the January 24, 2019 transcript is that the Applicant’s counsel made it abundantly clear that 11(

b) was a live issue. Indeed, the record also reveals that Crown counsel was well aware that the new trial dates were perilously close to the presumptive Jordan ceiling: Crown: Does this put us within Jordan time, Your Honour? Mr. Locke: I haven’t checked the net dates. The Court: So the offence date is April 9 th , 2018. It’s just within the 18 then, is it? Crown: Just. The Court: Yes. Crown: How nice, okay. Thank you. [ 30 ] In R. v. Belle, [2018] O.J.

No. 6809 , Justice Harris of the Superior Court of Justice stayed a case for unconstitutional delay notwithstanding the total delay was 28 months and 10 days (1 month and 20 days below the 30-month presumptive ceiling for indictable matters). In doing so he stated as follows at paragraph 44: The 30-month ceiling above them may have lured the Crown and defence into a false sense of security. It is perhaps understandable that there would be fixation on the bright-line cut-off date when a prosecution must presumptively be stayed. They may have assumed that delays below the ceiling were not a serious problem.

But the delay was only a little more than a month and a half under the ceiling. And the “below the ceiling” line of authority is a well-known part of the Jordan jurisprudence. Counsel should have recognized the problem. The culture of complacency was likely partially responsible for counsel’s lackadaisical attitude. [ 31 ] There is no question that the Ontario Court of Justice in Brampton is one of the busiest courts in Canada. It is inevitable that trial matters are often on “stacked” lists which sometimes result in not every matter being reached. It is also a local practice to

schedule consecutive trial days for multi-day matters. This local practice, I understand, is intended to prevent “continuation dates” which bind counsel to a Judge’s

schedule and can sometimes occasion further delay. [ 32 ] Ultimately, however, it is the Crown’s obligation to bring an accused to trial and to do so in a timely way. My reasons in this particular case are not meant to be read as suggesting that the mere fact of an initial trial date not being reached due to court resources should lead inevitably to a finding of unreasonable delay in every case.

The particular facts of each individual case must be carefully assessed with a view to determining whether unreasonable delay has been established. [ 33 ] Having considered the particulars of this specific application, I find that this case reflects a manifestation of the culture of complacency that unfortunately continues to plague the justice system. Counsel for the Applicant was the only justice system participant who showed any real concern for the Applicant’s 11(

b) rights: he was prepared to do the trial on January 24 and 25, 2019; he indicated

that of the limited dates offered, he was prepared to do the trial on February 21 and May 1, 2019. Where the Crown choses to prioritize one matter over another, consideration should be given to accommodating the defendant’s trial however possible, as soon as possible. Policies and procedures must give way to the constitutional rights of Canadians. The Crown must always concern itself with bringing an accused to trial in a timely fashion. [ 34 ] Finally, the Crown in oral submissions argued that the failure of the Applicant to properly

schedule the 11(

b) motion at the time he set new trial dates, served to frustrate efforts the Crown might have made to find earlier dates. The Applicant’s 11(

b) materials were served and filed on July 5, 2019, approximately two months before the rules require them. Unfortunately, it was due to a lack of resources that the Application could not be heard before the trial judge in advance of the date set for trial.

I am unable to accept the Crown’s contention that the Applicant has failed to demonstrate a sustained effort to move the case forward. ii) Markedly Excessive Delay [ 35 ] In determining whether a case has taken markedly longer than it should have, I am obliged to take a “bird’s eye view” of the case, as opposed to delving into the minutiae of each step in the process. [1] The inquiry at this stage of the sub-presumptive ceiling analysis demands that I address two questions: (1) how long should this case have reasonably taken to go to trial? and (2) is the delay “markedly” longer than the answer to question (1)? [ 36 ] The charges against the Applicant were “domestic” in nature.

During oral argument, Crown counsel indicated that she anticipated calling only one witness in the Crown’s case. While all cases of inter-familial violence present difficult issues, this was hardly a complex case. [ 37 ] In R. v. Belle , Harris J. at paragraph 8 remarked as follows: Dealing with the first issue, in a case with a missed first trial date like this one, we have a ready-made yardstick of the reasonable time requirements of the case: the delay to the first trial date. This is when the trial should have been heard and completed.

In this case, the time period in this court is from the first appearance – July 28, 2017 – to the aborted trial date of June 4, 2018. This delay is 10 months and one week. [ 38 ] In the Applicant’s case, the court’s inability to accommodate the originally scheduled trial resulted in an additional 8 months and 10 days of delay. This is nearly double the initial time frame from the Applicant’s arrest to the first scheduled trial date, which was 9 months and 12 days.

Accepting the analysis of Harris J. in Belle , the “ready-made yardstick” for when the Applicant’s case should have been heard is in or around 9 to 10 months. [ 39 ] As acknowledged earlier, the Brampton courthouse is one of the busiest in the country. My ruling in this case is in no way designed to impugn the hard work and dedication of the court scheduling staff, Crowns, and my judicial colleagues. My concern here, however, is with ensuring the Applicant’s constitutional right to a timely trial is upheld.

The presumptive ceiling was put in place “in order to give meaningful direction to the state on its constitutional obligations and to those who play an important role in ensuring that the trial concludes within a reasonable time: court administration, the police, Crown prosecutors, accused persons and their counsel, and judges. It is also intended to provide some assurance to accused persons, to victims and their families, to witnesses, and to the public that s. 11(

b) is not a hollow promise.” [2] [ 40 ] It has been more than three years since the Supreme Court of Canada released the Jordan decision. The system can and must do better to ensure that the presumptive ceilings are not in fact de-facto targets. [ 41 ] The Applicant has discharged his onus of demonstrating a breach of his right to a trial within a reasonable time. The charges against the Applicant are stayed. Released: October 22, 2019 Signed: Justice K.A. Wells