COURT OF APPEAL FOR ONTARIO
Trotter, George JJ.A. and Brown J. (ad hoc)
BETWEEN
His Majesty the King
Appellant
and
B.J.
Respondent
Tracy Kozlowski, for the appellant
Paul J.I. Alexander, for the respondent
Heard: November 20, 2024
On appeal from the stay of proceedings entered by Justice James A.S. Wilcox of the Superior Court of Justice on October 31, 2023.
A. Overview
1This is a Crown appeal from a stay of proceedings for unreasonable delay under s. 11(b) of the Charter. The respondent was charged on October 10, 2020 with historical sexual assault offences which are alleged to have occurred over many years. The proceedings were stayed by the application judge on October 31, 2023, before the scheduled trial date of November 14, 2023.
2The total delay to the anticipated end of the seven-day jury trial in the Superior Court of Justice was 1,139 days, or 37.4 months. The application judge found that the net delay was 1,005 days, or 33 months. Accordingly, applying the framework in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, he entered a stay of proceedings.
3The Crown submits that in doing so, the application judge erred by attributing too little delay to the defence with respect to three distinct periods of time. Correction of these errors, the Crown says, arrives at a net delay below the 30-month Jordan ceiling. In the alternative, the Crown suggests that the application judge erred in failing to attribute any remaining delay over the ceiling to the pandemic’s impact on the proceedings.
4I would allow the appeal for the reasons that follow.
B. DISPUTED PERIODS OF DELAY
5The Crown argues that the defence caused three distinct periods of delay, and that the application judge erred by failing to so conclude. First, the defence failed to promptly set a date for a preliminary inquiry, causing 59 days of delay from February 8 to April 9, 2021. Second, the defence was unavailable for a judicial pretrial (“JPT”), causing 43 days of delay from September 20 to November 2, 2021. Finally, the defence unreasonably required a second JPT, causing a further 29 days of delay from December 21, 2021 to January 19, 2022. As I have already mentioned, the Crown also contends that in the alternative, the pandemic caused enough delay to bring this case below the Jordan ceiling.
6I will deal with each period of delay in order.
(1) Defence Delay in Setting the Preliminary Inquiry: February 8-April 9, 2021 (59 days)
(a) Factual Background
7The parties concluded a JPT in the Ontario Court of Justice on February 8, 2021. The JPT was completed with the parties estimating one day for a preliminary inquiry. The parties agreed that the Crown would produce the complainant, her sister, and her mother as witnesses, that committal was not in issue, and that the preliminary inquiry would proceed virtually.
8Between February 12 and 13, emails between the parties show that the defence advised the Crown that he had to resile from their JPT discussions as his client wanted an in-person preliminary inquiry. The parties discussed this issue and whether the Crown would then refuse to make the additional witnesses available in person, if they were not necessary for committal. Defence counsel did not mention outstanding disclosure of DVD statements.
9During a court appearance on February 23, defence counsel indicated that the JPT had been completed and he would be setting a preliminary inquiry date soon, but that DVD statements were outstanding. The Crown in court was the same one who had engaged in the earlier JPT and email correspondence. She responded that she had “just found out” about the missing DVDs and asked if counsel had requested them. He indicated he had done so on February 11. Sometime that same day, the Crown offered the DVDs to the defence and he picked them up on February 26.
10Between March 29 and 30, defence counsel wrote to the Crown advising that he had received further instructions and could now confirm their original agreement to have a Zoom proceeding, with committal on consent. He advised “I have one more round of disclosure review but should be ready to pre-set a preliminary inquiry within a few weeks”. The Crown responded by indicating that her understanding was that they had been waiting for him to advise whether he was consenting to a Zoom hearing, and asked if he was now ready to set a date. On April 9, 2021, the defence requested a preliminary inquiry date.
(b) Ruling of the Application Judge
11The application judge declined to characterize this period of delay as defence delay. He found that the defence had attempted to expedite the matter by agreeing to hold the JPT prematurely, before it had full disclosure, and that time was needed to process that disclosure once it was received. He also found that there was no indication that the Crown was ready to set a preliminary inquiry date any sooner than the defence. He further found that the Crown and the defence were having continuing discussions up until March 30 about the preliminary inquiry, including whether committal was an issue, what witnesses would be needed, and whether they could appear remotely, given the prevailing COVID-19 situation. Therefore, the application judge concluded that it was not unreasonable that the defence only asked the trial coordinator for a preliminary inquiry date on April 9. He made no deduction for this period of delay.
(c) Arguments on Appeal
12The Crown submits that the application judge erred in finding that it was the outstanding DVDs of witness statements that prevented the parties from setting a preliminary hearing date. In so finding, the Crown argues that he erred in fact, and in failing to treat this delay as defence-caused, he erred in law.
13The Crown submits that at the JPT on February 8, 2021, the defence and the Crown had agreed upon a number of issues related to the preliminary inquiry. They had agreed that it would take place by way of Zoom, that committal was on consent, and that the Crown would call three witnesses at the request of the defence. Subsequently, on February 12, the defence advised the Crown that he would have to resile from their agreement to hold the hearing virtually on instructions from his client. It was not until March 30 that the defence advised the Crown that he could confirm the original agreement to hold the preliminary hearing with Zoom. Defence counsel then requested the dates for preliminary hearing on April 9.
14The Crown submits that the delay in setting the preliminary inquiry had nothing to do with the outstanding disclosure of the DVD statements. Instead, it resulted directly from defence counsel resiling from their agreement and taking nearly two months to ultimately return to what had been agreed upon in the first place. The Crown says that this was defence delay, as it was caused solely or directly by the conduct of the defence. The Crown submits that 59 days should have been deducted from the total delay count.
15The respondent argues that between February 8 (the date of the JPT) and April 9 (when the respondent requested a preliminary hearing date), important disclosure was outstanding and the parties were having continued discussions about the conduct of the preliminary inquiry. The respondent submits that the DVD statements were core disclosure. They remained outstanding for more than four months after the information was sworn, despite the fact that the defence requested them in its initial disclosure request letter in November of 2020. The respondent submits that the application judge correctly held that the respondent needed the disclosure before scheduling the preliminary inquiry.
(d) Analysis
16The standards of appellate review of a s. 11(b) Charter application are well established. The characterization of the various periods of delay, and the ultimate decision concerning whether the delay is unreasonable, are reviewed on a standard of correctness. However, the underlying findings of fact are reviewed on the standard of palpable and overriding error: R. v. Jurkus, 2018 ONCA 489, 363 C.C.C. (3d) 246, at para. 25.
17In my view the application judge made palpable and overriding errors in finding (i) that the outstanding DVD witness statements caused the delay in setting a preliminary inquiry date and (ii) that there was no indication that the Crown was ready to set a preliminary inquiry date any sooner than the defence. In so finding the application judge erred in fact, and in failing to characterize this period of delay as defence delay, he erred in law.
18The record is clear that defence counsel had to resile from his previous agreement with the Crown as to how the preliminary inquiry should proceed because the respondent was intent upon an in-person preliminary inquiry. In the email exchanges between the parties there was no mention at all that the need to review the DVD statements was the catalyst. Defence counsel was clear in an email on February 13 that he would go back and meet with the respondent. A month later, on March 29, he advised the Crown that he was able to return to the agreement they had arrived at on February 8. There was no mention of the DVDs.
19There was also no basis to find that the Crown was not ready to set the preliminary inquiry date any sooner than defence counsel. In an email on March 30, the Crown told defence counsel “I thought we were waiting for you to advise whether or not you are consenting to a Zoom hearing given that the witnesses all reside in southern Ontario? Are we now good to set a Zoom PH? That was the only basis upon which I would agree to produce all three witnesses”.
20It is true that there was outstanding disclosure of the DVDs of the witness statements, but once the Crown became aware of it on February 23, they were promptly provided by February 26. In any event, as I indicated earlier, the delay in providing the DVDs was never the reason for the delay in setting the preliminary inquiry date. The defence had the written statements of the witnesses, a trial date was not being set, and committal was not an issue. Incomplete disclosure on its own does not preclude the parties and the court from moving forward with the proceedings and scheduling a preliminary inquiry. Instead, there must be some causal connection between the incomplete disclosure and the delay: R. v. Kovacs-Tatar (2004), 2004 CanLII 42923 (ON CA), 73 O.R. (3d) 161 (C.A.), at para. 47; R. v Allison, 2022 ONCA 329, 414 C.C.C. (3d) 150, at para. 46. No such causal connection existed on this record.
21In my view the sole and direct cause of the delay in setting a date for a preliminary inquiry was defence counsel having to resile from the original agreement he had made with the Crown. There was nothing otherwise preventing the preliminary inquiry date from being set. The application judge erred in failing to characterize this period of delay as defence delay.
22I would deduct 59 days from the total delay count as defence delay.
(2) Defence Unavailability for Superior Court JPT: September 20-November 2, 2021 (43 days)
(a) Factual Background
23On August 6, 2021, defence counsel appeared for the respondent’s first appearance in the Superior Court and the matter was adjourned to schedule a JPT. The Superior Court trial coordinator emailed the parties a few days later, offering JPT dates of September 20, 21, and 22, and November 2, 2021. A staff member from defence counsel’s office replied indicating that counsel was available November 2. An administrative assistant from the Crown’s office then replied indicating that the Crown was available on that date as well. The trial coordinator then confirmed the JPT for November 2. The Crown was available on the September dates as well, but did not advise anyone until the s. 11(b) application, when it provided an affidavit to that effect.
(b) Ruling of the Application Judge
24The application judge declined to characterize the period between September 20 and November 2 as defence delay. Relying on the principles set out in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, the application judge held that the defence is not expected to be perpetually available. He also found that the period between September 22 and November 2 would be time in which the court was apparently not available either and, therefore, the delay could not be attributed to the defence. Further, the application judge observed that the Crown only indicated its availability for the September dates during the s. 11(b) application, as opposed to when the parties were scheduling the JPT. He held that this was too late to be of assistance in avoiding delay. The application judge made no deduction for this period of delay.
(c) Arguments on Appeal
25The Crown submits that it could have taken any of the dates offered had the defence been available, so the application judge erred in law in failing to treat the delay as defence caused. The Crown says that the application judge’s reliance on Godin was misplaced. Relying on Jordan, at para. 64, the Crown argues that since the Crown and the court were available for a JPT on September 20, but the defence was not, the resulting delay is attributable to the defence.
26The Crown accepts that some circumstances may justify apportioning responsibility for delay among the participants in the criminal justice system rather than attributing it all to the defence: R. v. Boulanger, 2022 SCC 2, [2022] 1 S.C.R. 9. But it submits that this contextual approach applies only in instances where the Crown caused the need for further dates. And that, the Crown says, is not this case.
27The Crown submits that here, defence counsel was not available for the three September dates which were offered by the Superior Court for a JPT. The Crown was not responsible for the need for such dates. They were simply needed. The delay in setting the JPT date was solely and directly attributable to the unavailability of defence counsel on the earlier dates.
28The Crown also argues that it was not required to indicate its availability for the September dates at the time they were offered. It is the Crown’s position that even if it would have been preferable to have done so, when it became clear that the respondent had taken the position on the application that the delay for defence counsel’s unavailability should not be attributed to the defence because the Crown was silent as to its availability, the Crown took steps to file an affidavit on the application which indicated that Crown counsel could have accepted any of the September dates. The Crown submits 43 days should have been deducted from the total delay count.
29The respondent submits that there is no bright line rule holding the defence responsible for all delay until the next available date after defence counsel declines a date offered by the court. Indeed, the application judge was required to apply a contextual approach: R. v. Hanan, 2023 SCC 12, 426 C.C.C. (3d) 1. The respondent submits that nothing in Hanan provides that this contextual approach is to be applied only where the Crown caused the need for rescheduled dates. Courts are to apply a contextual approach in all cases.
30The respondent submits that the application judge applied the contextual approach here, as Hanan directed him to. He considered that the defence reasonably had commitments in the three consecutive days in September that were offered by the court. He also considered that the court was unavailable for nearly all of this delay period. As the application judge recognized, this was a case in which the court offered only three consecutive days in a single week, followed by no availability for 40 days. The application judge considered the relevant circumstances and exercised his discretion. There is no basis to interfere with that discretion.
(d) Analysis
31In Jordan, the court observed that when calculating delay, the defence will have “directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence”. Jordan, at para. 64. See also R. v. Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741, at paras. 21-22; R. v. Mallozzi, 2017 ONCA 644, 390 C.R.R. (2d) 57, at para. 34. Recently, the Supreme Court modified this view in Hanan, and indicated that a more contextual approach is required. The court rejected a “bright-line rule” that all of the time until the next available date following defence counsel's rejection of a date offered by the court must be characterized as defence delay. Instead, all relevant circumstances should be considered to determine how delay should be apportioned among the participants rather than attributing the entire period to the defence.
32In my view the application judge erred in failing to characterize any portion of this delay as defence delay. While Hanan rejects a bright-line rule apportioning the defence with all of the delay after it rejects an available date, it did not adopt an inverse bright-line rule apportioning the defence with none of the delay. Instead, it directs courts to consider “all relevant circumstances” to apportion the delay among the parties: para. 9.
33The application judge failed to do this. He concluded that none of the period after the September dates could be attributed to the defence, solely because the court was also unavailable. That was an error in law. It amounts to the inverse of the bright-line rule Hanan rejected, and it is inconsistent with the contextual approach it set out instead.
34In my view the application judge also erred in holding that the Crown’s silence regarding its September availability precludes characterizing this period as defence delay. At the hearing of the application, and on this appeal, no one disputed that the Crown was available for the September dates as provided in the affidavit filed on the application. While it would have been preferable if the Crown had indicated its availability for the September dates at the time the dates were offered, its failure to do so until the application hearing itself is not fatal to its position on appeal. On the facts in this case, if the Crown had made that information available at the time the dates were set for the JPT, it would not have made the defence any more available to accept the September dates. Defence counsel simply could not accept them. He had commitments in other courts.
35This was not an instance where the Crown can be taken to have caused the need for additional dates such that it would be unfair to characterize the delay as defence-caused: R. v. Albinowski, 2018 ONCA 1084, 371 C.C.C. (3d) 190, at paras. 30-33. The Crown played no part in the need for JPT dates. As the Crown puts it, they were simply needed.
36On the one hand, defence counsel’s unavailability contributed to the delay until November 2. On the other hand, the court offered only three consecutive days in a single week, followed by no availability for 40 days for a JPT. Defence counsel are not required to hold themselves in a state of perpetual availability: Godin, at para. 23. These are the totality of circumstances whose consideration Hanan requires. In my view, on the particular facts in this case, a fair and reasonable apportionment of the delay is to attribute 21 days of this period to the defence, and 22 days as institutional delay which is factored in as part of the total delay in the Jordan framework.
37I would deduct 21 days from the total delay count as defence delay.
(3) Defence Adjournment of the Superior Court JPT: December 21, 2021-January 19, 2022 (29 days)
(a) Factual Background
38The first Superior Court JPT was held on November 2, 2021. It could not be completed because defence counsel needed to obtain instructions from the respondent about whether to bring a series of third-party records applications. The JPT judge indicated in his notes that a second JPT was required for the defence to obtain those instructions and that the adjournment of the JPT was attributable to the defence. This necessitated a second JPT which was scheduled for January 19, 2022. The JPT was completed on that date.
39The defence accepted responsibility for 49 days of delay from November 2, 2021, the first JPT, until December 21, 2021, when the defence was ready to schedule the second JPT date. The only issue was the further 29-day delay from December 21, 2021 until the second JPT on January 19, 2022.
(b) Ruling of the Application Judge
40The application judge declined to characterize the further 29-day period at issue as defence delay. The application judge accepted defence counsel’s description of the third-party records regime as extremely cumbersome. In this case it would involve up to seven record holders, four from southern Ontario, all having to gather records and appear in court in North Bay with their lawyers. The application judge found it was a very challenging cost benefit analysis for the respondent and a serious diligence obligation for defence counsel who had an enormous volume of material to assess. The application judge found that the defence had a lot of work to do regarding the multiple potential third-party records applications. Implicit in this finding was that a portion of the time between the two JPTs involved defence actions legitimately taken to respond to the charges. He agreed with the concession of the defence counsel of defence delay for a period of 49 days from November 2 to December 21, 2021. However, he made no deduction for the further period of delay of 29 days.
(c) Arguments on Appeal
41The Crown submits that the application judge erred in not deducting the whole period between the two JPTs as defence delay. The Crown argues that the defence heard the complainant’s testimony four months prior to the first JPT at the preliminary inquiry on July 9, 2021. Another JPT should not have been required to decide whether to pursue the third-party record applications. Indeed, the Crown points out that even after the second JPT on January 19, 2022, defence counsel requested a series of further adjournments for the same purpose, only indicating that he had definitely received instructions from the respondent and was prepared to set a trial date on April 21. The Crown submits that the defence was not prepared to conduct the first JPT, and ought to have been, thereby solely and directly causing further delay that ought to have attributed to the defence alone. The Crown submits that a further 29 days should have been deducted from the total delay count and the application judge erred in not doing so.
42The respondent submits that the application judge did not err in declining to attribute the whole period of delay to the defence. The application judge recognized that while the defence should have been ready to continue the JPT earlier, defence counsel had to give advice and receive instructions on a complicated and potentially costly set of strategic decisions. The defence needed to consider bringing third-party records applications involving seven different record holders.
43The respondent submits that while the application judge accepted the defence concession that this work should have been completed sooner, and that the defence was therefore responsible for most of the delay, the application judge also accepted that the work was complex, and that this was action legitimately taken to respond to the charges. Accordingly, he was not prepared to attribute the entire delay period to the defence. The respondent submits that the application judge was uniquely well-positioned to make that determination. This was a highly discretionary determination which is owed a correspondingly high degree of deference.
(d) Analysis
44I am of the view the application judge erred in failing to characterize the entire period between the first and second JPT as defence delay. The need for a second JPT was caused solely or directly by defence counsel because he was not prepared for the first JPT. The JPT judge recognized this himself when he noted that the adjournment of the first JPT was attributable to the defence. I appreciate that there was work to be done by defence counsel in regard to the third-party records applications, and counsel ought not to be discouraged from seeking a second JPT if they are unprepared to deal with all the issues in the first JPT. However, a JPT is an important procedural step. All participants must be prepared, organized and committed to the objectives of such a hearing: Jurkus, at para. 32; Judicial Pre-Trial Conferences (Re), 2016 ONSC 6398, 367 C.R.R. (2d) 1, at para. 12.
45The evidence that gave rise to the potential to pursue the third-party records applications arose from the testimony of the complainant at the preliminary inquiry on July 9, 2021, about four months prior to the first JPT. Even earlier, on December 9, 2020, the Crown had emailed defence counsel and told him that they were in receipt of medical records in relation to the complainant that constituted third-party records, and that if he wished disclosure of these records the appropriate application would have to be brought. Yet defence counsel had still not received instructions as to whether such applications would be pursued at the time of the first JPT, necessitating a second.
46Even after the second JPT on January 19, 2022, defence counsel requested a series of further adjournments for the same purpose. He only indicated that he had definitively received instructions and was prepared to set a trial date on April 21, 2022. In all the circumstances, the defence was not prepared to conduct the first JPT and ought to have been, thereby solely and directly causing further delay until the second JPT was held. In my view the entire period between the first and second JPT ought to have been attributed to the defence alone and characterized as defence delay. Anything else would permit the defence to benefit from its own delay-causing behaviour which is antithetical to the principles of Jordan: R. v Cody, 2017 SCC 31, [2017] S.C.R. 659, at para. 28.
47I would deduct 29 days from the total delay count as defence delay.
(4) Exceptional Circumstances – Pandemic
(a) Factual Background
48Delay caused by exceptional circumstances is subtracted from the delay left after accounting for defence delay to determine the remaining delay: Jordan, at para. 75. The COVID-19 pandemic, which affected Ontario courts for extended periods starting on March 17, 2020, has been held to be a compelling example of an exceptional circumstance: R. v. Agpoon, 2023 ONCA 449, 427 C.C.C. (3d) 417, at paras. 4, 19. The respondent was charged on October 10, 2020. The North Bay courts experienced significant pandemic-related disruptions in the months leading up to the selection of the respondent’s trial date. On March 1, 2022, jury selections resumed. The respondent sought a trial date on April 21, 2022. The trial date in this matter was set on November 25, 2022. The trial was set to begin as early as November 14, 2023.
(b) Reasons of the Application Judge
49The application judge declined to attribute any of the delay at issue to the pandemic. He held that the Crown had to first prove that the delay was caused discretely by the pandemic. Then it would have to show that it met its obligations to mitigate the delay. He found that the Crown proffered no evidence of a specific link between any delay in this case and the pandemic, nor did he see one. Nor did he see any evidence that the Crown took steps to avoid and address any delay before it exceeded the Jordan ceiling. He therefore made no deduction for delay caused by the exceptional circumstances of the pandemic.
(c) Arguments on Appeal
50The Crown submits that even if this court declined to characterize any, or all, of the three distinct periods of delay discussed above as defence delay, the appeal should still be allowed, because the application judge erred in failing to attribute any remnant over the 30-month ceiling to the pandemic. The Crown argues that the application judge ought to have attributed any remnant of the net delay count above the ceiling to pandemic backlog in light of the fact that the respondent elected to be tried by a jury in the midst of a global pandemic. The Crown submits that the defence was ready to set dates for trial in April 2022, a month after the two-year jury blackout period came to an end, and none could be immediately offered. Further, the Crown was in no position to mitigate the delay as no complaint was made by the defence until August 2023, nine months after the trial date was set in November 2022, and three months before the trial date. At that point, the Crown says, it was too late to mitigate the delay.
51The Crown submits that the application judge erred in holding that because the Crown proffered no evidence of a specific link between any delay in this case and the pandemic, no link existed. To have found that the delay in this case was unreasonable, though it only sat at 33 months by the application judge’s accounting, was to entirely ignore the circumstances in which the case was prosecuted. It ought to have been obvious that the COVID-19 suspension of trials caused a backlog, particularly for those matters that entered the system in the midst of the crisis and would have been further back in the queue than those that were previously scheduled to be heard and had to be rescheduled.
52The Crown submits that the application judge erred in requiring evidence to establish a link between the pandemic and the delay in question. The Crown argues that the application judge erred in failing to take a step back and take a bird's-eye view of the surrounding circumstances of the case and consider whether the remnant over the ceiling was reasonable, given that it took place in the midst of the pandemic and followed on the heels of a two-year blackout for jury trials. The Crown suggests that any remnant of time over the 30-month ceiling ought to have been deducted from the total count as an exceptional circumstance.
53The respondent submits that the application judge made no error in declining to treat the COVID-19 pandemic as an exceptional circumstance. The Crown offered no evidence of a link between the pandemic and the delay, and no evidence that it took steps to mitigate that delay. There is no basis to interfere with the application judge’s findings in that regard. The application judge’s decision is entitled to deference. This court has repeatedly emphasized the importance of deferring to judges’ expertise on local circumstances and practices when assessing pandemic-related delay. The application judge relied on his local expertise here.
54With no evidence that a pandemic-related backlog existed at the relevant time, no evidence that the pandemic affected the scheduling of this case, and no evidence that the Crown made any effort to mitigate any resulting delay, the respondent submits the application judge correctly declined to treat the pandemic as a discrete exceptional circumstance.
(d) Analysis
55The application judge did not err, on the basis of the record before him, in refusing to find that the impact of the pandemic was an exceptional circumstance as understood in Jordan. There is no per se rule that all delay coincident with the pandemic must be subtracted for purposes of s. 11(b): R. v. Kirkopoulos, 2024 ONCA 596, at para. 45. To be subtracted as exceptional, delay must be attributable to the pandemic in some articulable sense: Agpoon, at para 33; R. v. Kovacs, 2025 ONCA 49, at para. 14. That requirement was not met in this case.
56This court’s jurisprudence on trial delays arising from COVID-19 emphasizes the importance of deferring to trial judges’ expertise on local circumstances and practices. Trial judges, equipped with on-the-ground local expertise on the needs, practices, and culture of their own courts, are in the best position to determine whether an exceptional circumstance has contributed to delay: R. v. Coates, 2023 ONCA 856, at paras. 6, 44; Kirkopoulos, at para. 43.
57The application judge found that there was no evidence of a link between any delay in this case and the pandemic. He was entitled to make that finding, and this court must defer to it given his on-the-ground local expertise on the needs, practices, and culture of his own court. In the absence of evidence suggesting otherwise, there is no basis to disturb this finding of the application judge: R. v. L.L., 2023 ONCA 52, 166 O.R. (3d) 561, at para. 23.
58I would not deduct any time from the total delay as an exceptional circumstance due to the pandemic.
C. DISPOSITION
59For the above reasons the application judge erred in failing to deduct the following three distinct periods of defence delay from the total delay: 59 days; 21 days; and 29 days. Together, these periods amount to 109 days. Deducting this defence delay from the application judge’s finding of a net delay of 1,005 days reduces the net delay to 896 days or 29.4 months. This is below the 30-month Jordan ceiling.
60The respondent did not take the position that, even if the delay fell below the 30-month Jordan ceiling, it was nonetheless unreasonable.
61Accordingly, the appeal is allowed, the stay of proceedings set aside, and the matter remitted to the Superior Court of Justice for trial.
Released: February 14, 2025 “G.T.T.”
“M.F. Brown J. (ad hoc)”
“I agree. Gary Trotter J.A.”
“I agree. J. George J.A.”
Footnotes
- This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.
