R. v. S.K., 2022 ONCJ 637

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (

b) on application made by the victim, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. S.K., 2022 ONCJ 637 DATE: 2022 11 29 COURT FILE No.: Brampton 3111 998 20 6980 BETWEEN: HIS MAJESTY THE KING — AND — S.K.

Before Justice G.P. Renwick Heard on 25 November 2022 Reasons for Judgment released on 29 November 2022 S. Burton............................................................................................... counsel for the Crown S.K., the Defendant............................................................................... representing himself RULING ON S. 11(

b) CHARTER APPLICATION RENWICK J.: INTRODUCTION [ 1 ] The Defendant faces two counts (sexual assault and sexual exploitation) relating to an alleged hug and kiss of a young person when he was her high school principal. [ 2 ] Earlier this year, the Defendant, who was represented by counsel at the time, unsuccessfully applied for a stay of proceedings for an alleged breach of his s. 11(

b) Charter right. On the first appearance following the dismissal of the Defendant’s Application, the Defendant terminated his counsel and sought an adjournment of his trial. [ 3 ] The matter was initially adjourned for four weeks, with an explicit s. 11(

b) waiver, to permit the Defendant time to retain new counsel. On the return date, the Defendant advised that he was having difficulty retaining counsel and the court suggested putting the matter over for a few days to permit the attendance of the Trial Coordinator, in order to set the matter down for trial on a “with or without counsel” basis. The Defendant agreed to proceed as the court had suggested. [ 4 ] The matter is now set to begin on 02 December and end on 09 December 2022. When the new trial date was chosen, the Trial Coordinator advised that this period was the first available set of dates in accordance with my

schedule as the trial judge. [ 5 ] The Defendant has renewed his Application for s. 24(1) Charter relief given the delay from the setting of the trial until its anticipated completion. [ 6 ] The prosecutor opposes the Application in light of the Defendant’s actions (terminating his counsel and seeking a trial adjournment) and explicit waiver of delay. [ 7 ] Neither party has directly asked the court to reconsider the findings made during the earlier decision s. 11(

b) decision. However, implicit in the Defendant’s submissions, is a request to reconsider the finding respecting when the calculation of delay begins. [ 8 ] During submissions, it also became clear that the Defendant seeks s. 24(1) relief (a stay of proceedings) for the lack of timely disclosure.

However, neither party was prepared to complete its submissions respecting an alleged s. 7 Charter violation, and that Application has been deferred until the start of the trial later this week. [1] [ 9 ] At the outset, it should be said that the ultimate trial dates selected to complete this matter had nothing to do with the state of disclosure. Rather, given my role as the arbiter of the earlier s. 11(

b) Application, the parties have always accepted that I was seized of the matter and the trial would have to be set in accordance with my schedule. [ 10 ] Given the history, I do not propose to revisit my earlier conclusions, except the finding relating to the commencement of the s. 11(

b) clock. [ 11 ] At issue on this Application are the following questions: i. When does the s. 11(

b) Charter clock begin to run; ii. Did the Defendant waive or solely cause any delay; and iii. If the net delay does not exceed 18 months, was there an unacceptable delay in bringing this matter to trial. GOVERNING JURISPRUDENCE [ 12 ] In R . v. Jordan , the Supreme Court of Canada held that trials in this level of court ought to complete within 18 months. [2] [ 13 ] I do not propose to re-iterate the law respecting the calculation of delay for trials in the provincial court. I rely upon my earlier decision at paragraphs 6-13 for the law that governs the calculation of delay in these types of Applications. The s. 11(

b) Clock Begins When Someone is Charged [ 14 ] The parties disagree when the Jordan clock first begins to tick.

[ 15 ] In this matter, there was a delay of more than six weeks (48 days) from the date of the Defendant’s arrest (10 June 2020), until the Information was sworn (27 July 2020). [ 16 ] The Defendant relies upon the common-sense inference that he was “charged” when he was arrested, advised that he was “charged” by police, and given a release (an Undertaking with Conditions) with a first appearance court date of 24 August 2020. [ 17 ] On 10 June 2020, the Defendant temporarily lost his liberty while being processed by investigators, he was searched, his school video surveillance system was seized, and he was released with paperwork requiring him to notify any changes of address, to have no contact with the child complainant, to refrain from attending his place of employment (his school), and to appear for fingerprinting. [ 18 ] On this Application, the investigating officer testified that he “charged” the Defendant on the date of arrest.

That evidence was supported by a press release that was produced to the witness indicating that the Defendant had been “charged” on or about 10 June 2020. Around this time, major media outlets also reported that the Defendant had been “charged” with these alleged offences. This evidence was uncontested. [ 19 ] Moreover, it is not contested that on 27 July 2020, the Defendant was denied the opportunity to swear his Oath of Citizenship because it was learned that he had been “charged” with criminal offences. [ 20 ] There are several points to note here.

First, the Defendant’s Oath of Citizenship would have taken place on 24 March 2020 (months before the investigation at issue began), but for the global pandemic. The Defendant’s citizenship ceremony was adjourned from 24 March to occur remotely by a video-appearance on 27 July 2020 solely as a result of the pandemic.

Second, the Oath required the Defendant to “confirm that [he had] not been subject to any criminal or immigration proceedings since [filing his] application for Canadian citizenship.” [3] Third, the Information containing the allegations which are now before the court was sworn on the same date that the Defendant was to become a citizen of Canada (27 July 2020). [ 21 ] Though the consequences of having been arrested and told of the charges were immediate and significant for the Defendant, the prosecutor submits that the Supreme Court and other courts have been clear that the charges only came into existence for s. 11(

b) purposes once the charging document, the Information, was sworn. [4] [ 22 ] Since the release of my earlier s. 11(

b) decision, the Ontario Court of Appeal has revisited this issue in R. v . Allison . [5] [ 23 ] In Allison , the Defendant was arrested for several fraud allegations on 17 October 2014, but the Information was not sworn for some 54 days until 09 December 2014. In short order (10 sentences in five paragraphs), the Court of Appeal rejected the claim that the ancillary consequences of arrest are dispositive of being “charged.” Instead, the Court of Appeal relied upon its earlier decision in R . v. Wookey 2021 ONCA 68 , in re-iterating: …for s. 11(

b) purposes, ‘[t]he period, to be scrutinized is the time elapsed from the date of the charge to the end of the trial. In this context, ‘charge’ means the date on which an information is sworn or an indictment is preferred. [6] [ 24 ] As I explained to the Defendant on several occasions prior to and during the submissions on this Application, I am bound by appellate decisions, unless they are clearly distinguishable. [ 25 ] The defendant in Allison , was subject to arrest and release conditions for a longer period of time than this Defendant before the charges were formally laid in that case. Nonetheless, Mr.

Allison was not “charged” until the charges appeared on a sworn Information. [ 26 ] Absent any compelling reason why I should not follow governing precedent, which does not exist in this case, I consider myself bound to follow the law clearly articulated in Kalanj , Wookey , and Allison . The Calculation of Total Delay in This Case [ 27 ] Save for the argument of when the Defendant was “charged,” I have not been asked to revisit any of the factual findings I made in the earlier decision.

I have adopted the prior analysis to determine that the net delay from the date when the Information was sworn until the initially-anticipated completion of the first trial date was 425 days or 14 months (see paragraphs 20 through 49 of my earlier ruling). [ 28 ] The remaining issues on this Application are how much delay was waived by the Defendant, whether the actions of the Defendant implicitly waived any further periods of delay, and whether there should be any recognition of delay caused by keeping the same justice seized of the Defendant’s trial. [ 29 ] On 25 February 2022, the Defendant’s former lawyers were removed from the record by the court.

The Defendant, through his former counsel and directly, requested an adjournment of his trial and waived delay. [ 30 ] Former counsel put the request this way: We, we have been discharged, Your Honour, and so I would like to do two things today. Firstly to get off the record and secondly, although Mr. [K.] wants to have his day in court as soon as possible I have advised him that it’s unlikely he’s going to find someone, you know, quite frankly someone who can take this on for March 14 th . I’m going to do my best to assist him in finding new counsel, although the choice of counsel is ultimately up to him.

My preliminary inquiries suggest that my suspicion is right that certainly folks who we have in mind to take over this file would not be in a position to be ready for March 14 th , so Mr. [K.] has asked me, as his agent, as my last act for him on this matter, if I could request that the Court vacate today’s motion date and vacate the trial dates also. … This is a defence request, and so, you know, while, while we made, I would say, forceful arguments that delays up until now were not

defence caused, this is clearly a defence request , when the Crown is telling us it is ready to proceed, and on that basis any delay caused by this adjournment would, would clearly be defence caused delay. There is no issue whatsoever with respect to that . [7] [my emphasis] [ 31 ] After having had the opportunity to speak to his former counsel in a breakout room for several minutes, the Defendant was asked by the court if he wanted an adjournment of the trial: THE COURT: Just, may I just ask your, Mr. [K.], we’re really speaking at this point of the fact that you want an adjournment.

And so I haven’t even heard from you that that’s what you want. So really I want to address that issue. That’s really what I want to hear. [S.K.]: Yes. Your Honour, I would waive that 11(

b) delay caused by this adjournment.

And I want to bring to the attention of Honourable Court, my reasons for discharging my lawyer because I want those to be on the record. [8] [ 32 ] When asked how much time the Defendant required for the adjournment the following took place: THE COURT: …So what I’d like to do is maybe ask you, Mr. [K.], if I gave you two weeks or three weeks or four weeks – you tell me, how much time do you think it would take for you to get a better understanding of whether or not you’ll represent yourself or you’re going to hire a lawyer? [S.K.]: I think around four weeks I can apply and make decision because I will have to bring the application myself, for my moral self.

I know it’s a lot of difficulty for me, considering I don’t have legal background and I’m old, 56 (ph) year and my typing speed is so poor that it will take me one [ indiscernible ] what my own secretary can do in 15 minutes, I will take 15 hours. [9] [ 33 ] In oral argument, the Defendant submitted that he only waived four weeks of delay when his trial was first adjourned at his request from 25 February until 28 March 2022. He is fortified in this

interpretation by the comments of the prosecutor (not Ms. Burton) who appeared on 25 February 2022: MR. JACKSON: Thank you, Your Honour. Given the comments that my friend and given the comments of Mr. [K.] it is a clear defence request from today to the next day . The Crown’s position was on record. I wasn’t going to belabour the point. Given all the comments on record today Crown’s withdrawing its opposition [to the adjournment]. Given Mr. [K.’s], I understand he also waived the

section 11(

b) as well. [10] [Defendant’s emphasis] [ 34 ] From the Defendant’s perspective, this is also supported by the following comments: THE COURT: Yes. So you, you understand that, you know, by adjourning your trial you’ve, you’ve, you’re waiving some delay. You’re accepting that there will be some delay until you get your new trial date. You understand that? [S.K.]: Yes. [11] [ 35 ] On 28 March 2022, the Defendant outlined his difficulties hiring counsel for his trial. He had not yet determined whether he would be self-represented for this matter.

There was a brief discussion about having the matter return in two or three weeks to permit a meeting between the Defendant, the prosecutor, and the Trial Coordinator, for the purpose of selecting four or five days for trial. At this point in the discussion, the following took place: THE COURT: All right. Mr. [K.], can you come back to court on Friday this week? [S.K.]: Friday this week? THE COURT: Yes, I will arrange to have the trial coordinator in my court, Ms.

Burton [the prosecutor] if you are here that would be great, and if you are not maybe one of your colleagues could step in, we will address this matter this Friday at 10:00 a.m. and we will set your trail date at that time. [S.K.]: Your Honour, I am fine [with that]. [12] [ 36 ] On the following appearance (01 April 2022), the Trial Coordinator attended the court and initially offered 19-23 September 2022 as the first available trial date for five consecutive days, for this trial. [13] The prosecution was unavailable and requested the next available set of dates.

The parties were then offered 17-21 October 2022 by the Trial Coordinator. [14] Both parties initially accepted these dates, at which point the following discussion took place: THE COURT: All right. Let’s take that block, [Trial Coordinator] Ms. Crawford, 17, 18, 19, 20 and 21 October 2022, which court? MS. CRAWFORD: Your Honour, are you seized of this matter or is this – oh you are seized, okay. THE COURT: Yes, 11(

b) application. … THE COURT: I heard the 11(

b) application, so I think by rights that makes me the trial judge. MS. CRAWFORD: So, I will have to withdraw my offer for October 17 through 21, those dates are not available to the court. So, the court’s first available dates would be December 5 through 9 of 2022. … MS. CRAWFORD: Yes, Your Honour, I am going to withdraw my offer of September 19 through 23 as well, those were offered with another judge, not Your Honour’s dates.

… [S.K.]: Ah, Your Honour, there is no problem in the dates, but there is again 11(

b) issue here because ah – ah I will be almost waiting for two and a half years for my trial, so there will be a potential 11(

b) application. I can put the court and the crown attorney on the notice. THE COURT: Okay. Thank you. MS. BURTON: And so just um in that case just I want to confirm with Ms. Crawford those are the earliest available dates with His Honour’s schedule, yes? MS. CRAWFORD: They are, yes, even the dates that I did offer with another judge, His Honour is seized on the days that I had offered, so I can’t make any sort of switches to make His Honour become available unfortunately. [15] [ 37 ] I should pause to note at this point that there was some discussion on an earlier occasion about whether as the judge that heard the initial s. 11(

b) Application I would remain seized of this matter. On 25 February 2022, former counsel interrupted the Defendant with the following remark: Hold, hold on, sorry, Mr. [K.]. I, I, I don’t want to – I have to cut you off here, because you’re going to get into solicitor/client privilege communications. I don’t want you to say anything that could prejudice yourself. His Honour is the trial judge … [16] [my emphasis] [ 38 ] The court echoed those comments that day: THE COURT: …Let me, let me reiterate what your lawyer, what your former lawyer’s just said.

He’s concerned that before you start to tell me anything that you’re mindful of the fact that I never need to hear – I’m your trial judge . I’m expected to be the trial judge whether or not the matter goes ahead on March 14 th or not. The matter’s been assigned to me. I’ve already heard a pre-trial motion.

There may be other motions that I’m, that I could hear, so you have to keep that in mind. [17] [my emphasis] [ 39 ] When I consider the matter of waiver I find that the Defendant explicitly waived the delay caused by adjourning his trial from 25 February until 28 March 2022. [ 40 ] For the delay from 28 March until the anticipated completion of this trial on 09 December 2022, I find that the Defendant did not expressly waive any period of delay. [ 41 ] However, the Defendant must accept the additional delay caused from the earlier trial date until the anticipated completion of his trial for the following reasons: i.

The Defendant was solely responsible for the delay caused by terminating his counsel and seeking to adjourn the trial; ii. The Defendant was made aware that the prosecution took the position that he was waiving at least “some” of the ensuing delay. iii. The Defendant’s former counsel indicated “any delay” caused by the trial adjournment was accepted by the Defendant; iv. The Defendant was made aware when he adjourned his trial that I was the “trial judge,” given that I had heard the initial s. 11(

b) Application; v. The Defendant never complained when the Trial Coordinator mentioned that the dates for the new trial would have to be set with my schedule; vi. The trial dates ultimately set (02-09 December 2022) were the first available dates for me after 01 April 2022; and vii. Were it otherwise, any defendant could manufacture a stay of proceedings once a trial judge was seized by seeking an adjournment and failing to waive the delay until the trial judge’s first available date to resume the trial/pre-trial motions (unless the judge’s

schedule permitted an almost immediate continuation). [ 42 ] Given that the Trial Coordinator could have been requested to offer trial dates on 28 March 2022, I am prepared to add to the total delay the days from that date until the trial was set on 01 April 2022 (4 days). [ 43 ] The net delay in this case is (425 + 4) 429 days or 14 months and 4 days. This is well below the presumptive Jordan limit for trials in this level of court. HAS THIS PROSECUTION TAKEN TOO LONG?

Initially the Defendant Took Meaningful Steps to Proceed to Trial [ 44 ] At this stage of the inquiry, the onus is on the Defendant to show that the delay is unreasonable. To do so, the defence must establish that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and the case took markedly longer than it reasonably should have.

The Supreme Court has made it clear that stays beneath the presumptive ceiling [will] be rare, and limited to clear cases. [18] [ 45 ] My review of the steps taken by the Defendant leads to a conclusion that he took meaningful steps demonstrative of a sustained effort to expedite the proceedings until the first trial was adjourned (see paragraphs 55-61 of my earlier ruling). [ 46 ] However, by seeking an adjournment of the trial, the Defendant caused a delay of 8 months and two weeks (from 18 March until 09 December 2022 - less four days from 28 March until 01 April 2022).

This additional delay is greater than half of the total delay until

the matter was specifically adjourned at the Defendant’s request. In light of the Defendant’s actions in terminating his former counsel and seeking to adjourn the trial, he cannot now complain that the trial will take markedly longer to complete than it should. [ 47 ] As a result, I remain unpersuaded on a balance of probabilities that the Defendant’s s. 11(

b) Charter right has been breached. CONCLUSION [ 48 ] The Defendant’s s. 11(

b) Charter right is not anticipated to be violated if the evidentiary phase of his trial ends on 09 December 2022. [ 49 ] Accordingly, this Application is dismissed. Released: 29 November 2022 Justice G. Paul Renwick