Jessica E. Sickinger

This decision addresses two applications for a stay of proceedings under section 11(b) of the Charter for unreasonable delay, brought by two co-accused charged with sexual assault.

The court determined that the 18-month presumptive ceiling for provincial court matters applied, rather than the 30-month ceiling for cases with a preliminary inquiry, because the scheduled preliminary inquiry was not completed due to the Crown withdrawing preliminary inquiry-eligible counts and consenting to re-election to the Ontario Court of Justice.

The court found that the Crown's tactical decision not to seek an 11(b) waiver at the time of re-election was significant.

After calculating the total delay and deducting periods attributable to defence counsel unavailability and a specific period of COVID-19 related backlog (92 days for trial scheduling and judicial pre-trial scheduling), the net delay for both accused exceeded the 18-month ceiling (19.75 months for one, 20 months for the other).

Consequently, the court ordered a stay of proceedings for both accused.

The applicant, Mohamed Mohamed, sought a stay of proceedings under ss. 11(b) and 24(1) of the Charter due to unreasonable delay.

The total delay from charge to anticipated trial end was 26 months and 12 days.

The defence conceded 3.5 months of delay.

The court found the Crown's failure to disclose the Information to Obtain (ITO) for 17.5 months was the primary cause of delay, as it was integral disclosure necessary for the defence to prepare.

The Crown's request for a blanket 4-month deduction for COVID-19 backlog was denied due to lack of evidentiary support demonstrating a causal link and mitigation efforts.

The net delay of approximately 23 months exceeded the 18-month Jordan ceiling for provincial court matters.

The application for a stay of proceedings was granted.

The applicant, S.M., charged with two counts of sexual assault, brought an application for a stay of proceedings under sections 11(b) and 24(1) of the Charter due to unreasonable delay.

The total delay from charge to anticipated trial end was 19 months and 26 days, exceeding the 18-month presumptive ceiling for provincial court matters established in R. v. Jordan.

The Crown sought to deduct 3 months for COVID-19 backlog, relying on R. v. Korovchenko, but failed to provide an evidentiary record demonstrating a causal link between the pandemic and the delay or mitigation efforts.

The court found no defence delay and, without sufficient evidence from the Crown to quantify COVID-19 related delay, declined to make any deduction.

Consequently, the delay remained above the Jordan ceiling, and a stay of proceedings was ordered.

This preliminary inquiry addressed charges of possession for the purpose of trafficking against three accused.

The Crown sought to admit evidence via a s.540(7) application, primarily relying on police notebook notes.

The court found significant issues with the admissibility and trustworthiness of much of the Crown's evidence, particularly hearsay statements within officer notes, which prevented the defence from cross-examining critical witnesses.

While some drug trafficking activity was inferred, the court found insufficient evidence to establish constructive possession for most charges against Bogdan Butean and Justin David Gurley.

Natalie Tovah Abuhav was committed to stand trial only on the charge of Possession for the Purpose of Trafficking Percocet, as her identification was found with those specific drugs.

The other charges against her, and all charges against Butean and Gurley, were not committed for trial due to lack of sufficient evidence for committal.