R. v. Bazdar, 2018 ONCJ 318

Court Information

Court: Ontario Court of Justice Location: Toronto, Ontario Date: April 17, 2018

Parties:

• Applicant: Hooman Bazdar
• Respondent: Her Majesty the Queen

Counsel:

• J. Tashos, for the Applicant
• M. Rose, for the Respondent

Before: J. Opalinski J.P.

Heard: October 5, 2017 Delivered: April 17, 2018

Ruling on Application for Stay of Proceedings Pursuant to Sections 11(b) and 24(1) of the Charter of Rights and Freedoms

The Charges

1The Applicant is charged pursuant to Part 1 of the Provincial Offences Act, R.S.O. 1990, c. P.33 (the "POA") with the offence of Drive Hand Held Communication Device contrary to section 78.1(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8.

Motion

2Prior to entering a plea, the applicant has brought an application to stay the proceedings under section 24(1) of the Charter of Rights and Freedoms, Canada Act, 1982, c. 11 (U.K.) ("the Charter") on the grounds that the Applicant's right to be brought to trial within a reasonable time pursuant to section 11(b) of the Charter has been infringed.

Issue

3The issue before the court is: whether or not the applicant's right to be brought to trial in a timely manner has been infringed upon and the court as a result of this infringement should grant a stay of proceedings invoking section 24(1) of the Charter.

Arguments Made by the Applicant

4The applicant's argument in favour of a stay of proceedings may be summarized as follows:

(a) The agent for the applicant relied on the test and reasoning contained in R. v. Mastroianni, (2000) O.J. No. 3227, whereby he argued that the applicant has not at any time waived his right to a trial in a timely manner and the applicant did nothing to delay the matter from reaching the trial date in a timely manner.

(b) The agent for the applicant stated that the applicant was charged with the offence of Drive Handheld Communication Device on June 29th, 2016 under Part 1 of the Provincial Offences Act. The applicant filed his Notice of Intention to Appear within the time allowed and was given an original trial date of May 29, 2017. This date was subsequently adjourned to October 5, 2017.

(c) On that day the agent for the applicant requested clearly printed notes as the notes were not legible nor had more legible notes been previously provided. He was given an opportunity to have the officer clarify his notes on that day and discovered that there was also a video available. This video was subsequently requested and provided. Consequently, an adjournment was requested and granted. The next trial date given was October 5, 2017.

(d) The applicant's agent further argues that this matter and its investigation was not complicated. It is a simple matter involving no collision, where the defendant was stopped at the roadside, the investigation was completed at the roadside and an Offence Notice issued to the defendant.

(e) The agent further argued that as a result of this delay the applicant is prejudiced. The delay was systemic and the lack of court resources is not a justification for a lengthy delay. It has taken 15 months for the matter to get to the date of the motion, which is the trial date, that being from June 29, 2016 to October 5, 2017.

(f) The agent did not expand on the nature of the prejudice but merely requested that the matter be stayed.

Arguments Made by the Respondent

5The respondent's argument against a stay of proceedings may be summarized as follows:

(a) The respondent asserted that the Applicant's agent was arguing pursuant to old case law that was no longer binding upon the court. Now the court should turn its minds to the case of R. v. Jordan, 2016 SCC 27, which sets the new framework when dealing with applications for a stay of proceedings.

(b) The respondent pointed out that the agent did not set out any chronological notation of the events with regard to the request for disclosure and subsequent clarification. The first request for disclosure was sent on November 2, 2016 and on November 8, 2016 the agent was notified that the notes were available and were provided to the agent on November 22, 2016. It was not until April 19, 2017 that the agent requested further disclosure in the form of a request for legible or typed-written notes. This request was being made roughly one month prior to the first trial date, which the respondent argues was not made in a quick and timely fashion as the applicant had been in receipt of the disclosure for almost 5 months when this subsequent request was made.

(c) The respondent acknowledged that the clarified or typed notes were not received prior to May 29th and that they were clarified by the officer on that date. However, neither the notes nor the information is lengthy nor is there any dispute as to what the defendant was charged with.

(d) The respondent further argued that there was no argument made by the applicant's agent that he could not proceed once the notes were clarified and that he opted to adjourn the matter on his own volition so as to obtain the DVD. The DVD would have been only audio in this type of case and the agent provided no submissions with regard to how helpful this particular piece of disclosure would be.

(e) While the respondent acknowledged that the applicant is entitled to this disclosure, however, no case was put forth as to the usefulness of this particular piece of disclosure. On the contrary an assertion was made by the respondent that this request was done to delay the trial. As such the applicant should not be permitted to now assert that in some way he has been prejudiced by the prosecution when he has not adequately demonstrated why this is the case. The amount of time falls well below the Jordan threshold and consequently the motion for a stay of proceedings should be dismissed.

The Law

6Section 11(b) of the Charter provides that:

"Any person charged with an offence has the right to be tried within a reasonable time"

7Section 24(1) of the Charter states as follows:

"Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances."

8This court in the case of R. v. Islam, [2017] O.J. No. 2742 examined at length the circumstances which brought about on July 8, 2016, the Supreme Court of Canada's "the Supreme Court") judgment in Jordan. This case has had the effect of changing by updating the manner and way in which courts should be approaching 11(b) applications. It was determined that the framework in R. v. Morin, [1992] 1 S.C.R. 771 as it had evolved was complicated, convoluted and somewhat broken down and in need of simplicity, clarification and repair. The Supreme Court took the position that our system has come to tolerate excessive delays which in turn has fostered a culture of complacency. As a result, a change in direction was required. Responsibility should now rest upon all participants in the criminal justice system to focus on achieving 'reasonably prompt justice'. The new framework should foster and set out a methodology for all sides to follow that is 'more conducive to the spirit and intent of the Charter and give practical effect to this'. It should enhance accountability by fostering proactive and preventative problem solving (at para 112). The idea is that this new framework simplifies the approach to 11(b) applications so as to give it a more practical effect. This new approach represents a shift in the mindset that has prevailed since R. v. Askov, 75 O.R. (2d) 673. It addresses the critical point that accused persons should be tried within a reasonable time and that 'timely justice is one of the hallmarks of a free and democratic society'. (at para 1)

9The framework in Jordan attempts to do three things: first, be more prospective and as such should encourage pro-active measures to remedy delays; second, resolve the difficulties surrounding the concept of prejudice as it had been applied in the past. The concept of prejudice is the underpinning of the new framework as 'prolonged delays in and of themselves are prejudicial to the Accused, victims, witnesses and the system of justice as a whole'; third, reduce the complicated system of 'micro-counting' that has evolved (R. v. Islam at para 9).

10Both sides must demonstrate what steps they took to remedy the delay, whether they are claiming that the case took longer than the ceiling period mandates and that this period was reasonable or that it should have taken less time. This complicated system of micro-counting as it developed by the application of the framework established in R. v. Morin, supra, led to what Jordan has referred to as an inefficient methodology of 'micro-counting' which 'relies on judicial "guesstimations" and has been applied in a way that allows for tolerance of ever-increasing delay'. (at para 37) It has quite frankly 'lost its way and has given rise to both doctrinal and practical problems, contributing to a culture of delay and complacency towards it'. (at para 29) Its application is highly unpredictable, too confusing, requires a retrospective inquiry and is unduly complex. (at para 32, 33, 35, 37, 38)

11The Supreme Court did not want to create another situation that existed after R. v. Askov, supra, was rendered which led to an 'on mass stay of proceedings'. It was believed that such action brought the administration of justice into disrepute. The Supreme Court in Jordan wished to avoid such a situation and was cognizant of the need to recognize a 'transitional period' where there should be some consideration given to both sides during this time so that an appropriate ceiling can be reached. With regard to cases already in the system, the new framework should be applied flexibly and contextually with 'sensitivity to both parties' reliance on the previous state of the law'. (at para 94) Consequently, each case needs to be looked at individually on a 'case by case basis'. As change takes time, the framework set out in Jordan should be applied with some qualification to cases already in the system that predate July 8, 2016. It is hoped that this new framework will give some predictability to the application of section 11(b) of the Charter so that all parties will know what are the bounds of reasonableness so pro-active measures can be taken to remedy delay (R. v. Islam, supra, at para 11).

12The new framework created in Jordan may be described as follows:

First, the court created a PRESUMPTIVE CEILING of 18 months for Provincial Courts matters and 30 months for Superior Courts matters to be completed. This is the time period the court has indicated is reasonable or acceptable. Time begins to run from the date when the information was sworn to.

Second, once the presumptive ceiling has been exceeded, the burden shifts to the crown to rebut the presumption of unreasonableness 'on the basis of exceptional circumstances'. Exceptional circumstances constitute what is reasonably unforeseen or reasonably unavoidable and cannot be remedied. Exceptional circumstances relates to two situations: one a discrete event; and the other being the complexity of the case. If the delay can be reasonably attributable to the discrete event, this time is subtracted from the total time. If the delay arises due to the case's complexity, then this delay is reasonable and should also be subtracted from the total time. (at paras 69-73)

Third, if the net time falls below the presumptive ceiling, the onus is upon the accused to establish that two things occurred: a) the accused took meaningful steps that demonstrates a sustained effort to expedite proceedings; and b) the case took markedly longer than it reasonable should have.

Fourth, cases currently in the system require that the framework be applied with some flexibility and contextually, with the court being sensitive to the party's reliance on the previous state of the law.

13The test set out in the new framework of Jordan is as follows:

a) Calculate the total time that has elapsed from the charge date until the anticipated date when the trial will end (not the sentencing date). (TOTAL DELAY)

b) What portion of the delay can be attributed to the defendant? (EXPLICIT WAIVER BY DEFENDANT AND/OR CONDUCT OF DEFENDANT)

c) Subtract that portion from the total time. (NET DELAY)

d) Compare NET DELAY with PRESUMPTIVE CEILING.

e) Establish if the presumptive ceiling has been exceeded. (YES/NO)

f) If YES it is presumed, that the delay is unreasonable.

g) Then establish if there is any evidence of exceptional circumstances or complexity of the case that would justify the presumptive ceiling being exceeded. (CROWN ONUS TO PROVE)

h) The delay resulting from exceptional circumstances or complexity of the case is subtracted from the NET DELAY. (REMAINING DELAY)

i) If NO and the REMAINING DELAY has not exceeded the presumptive ceiling, the onus shifts to the defence to show why the delay is unreasonable by establishing that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings and (2) the case took markedly longer than it reasonably should have. (DEFENCE ONUS TO PROVE)

14What is crucial in understanding Jordan is that now all players in the criminal justice system, including the courts have an obligation to ensure that matters do not languish in the system beyond the presumptive ceiling and if they do then the onus shifts to the party responsible for the delay or wishing to benefit from the delay to show who is responsible for this delay (R. v. Islam at para 14).

15The application of Jordan has been considered by the courts in R. v. Ramsay, [2016] O.J. No. 4841, R. v. Gandhi, 2016 ONSC 5612, R. v. Coulter, 2016 ONCA 704, Mississauga (City) v. Uber Canada Inc., [2016] O.J. No. 6229, R. v. J.M., 2017 ONCJ 4, R. v. Warford, [2017] N.J. No. 132, R. v. Pyrek, [2017] O.J. No. 3024, R. v. Malik, [2017] O.J. No. 5011, R. v. Houle, 2017 ONCA 772, R. v. Leo, [2017] O.J. No. 5205, R. v. Beaulieu, [2017] O.J. No. 5737, York (Regional Municipality) v. Tomovski, 2017 ONCJ 785, York (Regional Municipality) v. Sood, [2017] O.J. No. 7013, and R. v. Faulkner, 2018 ONCA 174. Each of these decisions analyses and applies the framework set out in Jordan, to their given fact situation and timeline of events. York (Regional Municipality) v. Tomovski, supra, and York (Regional Municipality) v. Sood, supra, are appellate decisions of the Ontario Court of Justice sitting as an Appellate Court that deal with charges laid under Part 1 of the POA as Certificate of Offences. R. v. Ramsay, supra, and Mississauga (City) v. Uber Canada Inc., supra, both deal with informations laid under Part III of the POA, while R. v. Gandhi, supra, R. v. Coulter, supra, R. v. J.M, supra, R. v. Warford, supra, R. v. Pyrek, supra, R. v. Malik, supra, R. v. Houle, supra, R. v. Leo, supra and R. v. Beaulieu, supra, deal with criminal matters.

16However, the spirit echoed in all these decisions remains similar in that: change takes time; prejudice no longer plays an explicit role for delay in a section 11(b) analysis; the defence who is bringing a section 11(b) application must demonstrate to the court if and how the presumptive ceiling has been exceeded, and, if it has not been exceeded why the delay is still unreasonable; and Jordan applies to transitional cases that were already in the system when Jordan was released and supersedes the complex and flawed analysis as it had developed in the application of R. v. Morin, supra, to section 11(b) applications, however, the defence 'need not demonstrate having taken initiative to expedite matters for the period of delay' preceding Jordan.' (at para 99) With regard to cases already in the system prior to Jordan, both sides and the court cannot be expected to be bound by action that is now mandated by Jordan.

17'The presumptive ceiling marks the point at which the burden shifts from the defence to prove that the delay was unreasonable to the crown to justify the length of time the case has taken.' (at para 58) This concept of a presumptive ceiling was derived by the court which took into account different factors when arriving at the actual ceiling (18 months and 30 months) and 'reflects the realities we currently face'. (at para 57) This is key to understanding how the court in Jordan came to adopt the concept of the presumptive ceiling.

18When examining what constitutes exceptional circumstances, the court in Jordan stated that these circumstances lie outside of the crown's control and are reasonably unforeseen or reasonably unavoidable. These exceptional circumstances are either: discrete exceptional events or particularly complex cases. They need not be rare or uncommon. Some examples provided by the court of the discrete exceptional events are: medical or family emergencies on part of all those involved, including the trial judge, cases with an international dimension requiring extradition of an accused from a foreign jurisdiction and exceptional events arising at trial. (at paras 72-73) Cases that are particularly complex are of such a nature that the evidence or issues 'require an inordinate amount of trial or preparation time such that the delay is justified'. Examples of this include voluminous disclosure, a large number of witnesses, expert evidence, a large number of charges and pre-trial applications, a large number of charges in dispute and novel or complicated legal issues. (at para 77)

19The court in R. v. J.M., supra, recognized that section 11(b) applications are complex and time-consuming and will continue to be. The time required to bring such applications should be included in the remaining delay component of calculating the time, provided that such applications are not frivolous. (at paras 105, 108) The court in Jordan further recognized that even if the delay falls below the presumptive ceiling, it may be considered unreasonable if the defence can establish that it: (1) took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. (at para 82) If the defence cannot prove these two points, then the application must fail.

20The courts will look at the action and inaction of the defendant (if the crown and court are ready for trial and the defence is not), if they have brought frivolous applications and used deliberate tactics calculated to delay the proceeding. However, legitimate defence applications, resolution discussions or motions and delay caused by requests for legitimate defence preparation time do not constitute a defence delay. The Court of Appeal in R. v. Faulkner, supra, pointed out that defence delay includes not only acts but omissions, substance as well as procedure (at para 144). Also a relevant factor in assessing the reasonableness of any delay is the 'absence of any interest on the part of the defendant to move the case along'. (at para 145)

21In R. v. Leo, supra, the court held that while the case commenced before Jordan was released, the vast majority of the delay occurred after Jordan was released. As such, 'counsel had time to adapt to the new regime and Jordan applied. (at para 23) The issue the court had to examine was how much of the delay was a result of the Accused's conduct. In R. v. Houle, supra, the Court of Appeal further reiterated that while the trial judge made his decision based on R. v. Morin, supra, 'this court' must be decided based on the framework set out in Jordan.

22The Ontario Court of Justice sitting as an appellate court in York (Regional Municipality) v. Tomovski, supra, and York (Regional Municipality) v. Sood, supra, dealt with charges commenced pursuant to Part 1 of the POA. Both cases deal with situations that fall within the transitional period. In each case the municipality appealed the decision of the justice of the peace who granted the 11(b) application and stayed the proceeding and in each case the appellate court overturned the stay and ordered that the matter go back to trial.

23In York (Regional Municipality) v. Tomovski, supra, the court was asked to determine whether or not the 18 month presumptive ceiling should apply to POA Part 1 matters as they are more simple in nature and are not commenced by way of the swearing of an Information. The court held that when applying the analysis set out in Jordan the delay was 10 months and 22 days. The court was prepared to acknowledge that the Supreme Court set the presumptive ceiling for criminal proceedings and left open the possibility that a different ceiling would apply to regulatory matter. (at para 148) While the court believed that it had the jurisdiction to deal with this issue and that the ceiling for Part 1 matters should be in the range of 13 to 15 months and it believed that it should be set at 14 months for the purposed of this appeal, the court was not prepared to set a specific presumptive ceiling for all Part 1 cases. (at para 149)

24The rational for taking such an approach was that the court was not given enough institutional resources for conducting a jurisprudential policy-making exercise as the Supreme Court had in Jordan. Furthermore, the Attorney General for Ontario had not been present in the appeal and in their absence it was not appropriate to set a new presumptive ceiling for Part 1 matters. Moreover, at the heart of the hesitation in setting a new presumptive ceiling for all Part 1 cases was the overriding belief by the appellate court that such matters should remain in the purview of the higher courts, in particular the Supreme Court as it usually gives meaningful direction to the state on its 'constitutional obligations'. (at para 153) Ultimately, the court in York (Regional Municipality) v. Tomovski, supra, did not have to make a determination with regard to the 'new' presumptive ceiling as it ruled that the net delay fell below 18 months and 14 months and as such was presumptively reasonable.

25In the final analysis, the court in Jordan concluded that 'the analysis must always be contextual and we are relying on the good sense of trial judges to determine the reasonableness of the delay in the circumstances of each case'. (at para 98) It is incumbent upon trial judges to 'step back from the minutiae and adopt a bird's-eye view of the case'. (at para 91) This holds particularly true in cases decided during the transitional period as the courts should not be judging either side by a standard that did not previously exist and 'the parameters of which were unknown to all'. (at para 102)

The Chronology of Events – The Timeline

26The applicant is charged on June 29, 2016 at 4:46 pm with the offence of Drive Hand Held Communication device contrary to section 78.1(1) of the Highway Traffic Act, supra.

27The applicant applies for a trial by filing a Notice of Intention to Appear on July 18, 2016.

28A Notice of Trial was issued by the Ontario Court of Justice, Toronto West POA Court on October 12, 2016 for a trial date of May 29, 2017.

29On May 29, 2017 the matter is put over to October 5, 2017. The applicant's agent contends that full disclosure had not been provided as there was neither clarification of the officer's notes nor a type-written statement of the notes provided as was requested by the agent on April 19, 2017. On October 5, 2017 the agent became aware of a DVD. The adjournment was granted, giving the Defendant the opportunity to order the DVD. The notes were clarified on that day.

30On September 14, 2017 a Notice of Application and Constitutional Issue was filed with the court. The application was heard on October 5, 2017.

31Judgement with respect to the application was put over to January 17, 2018 and then to March 23, 2018 and subsequently to April 17, 2018.

Analysis in the Context of the Jordan Framework

32The applicant is charged pursuant to the Highway Traffic Act, supra, with an offence that was commenced by way of Certificate of Offence, which is governed by Part 1 of the POA. This court holds that the Charter does apply to Part 1 matters and that the framework as set out in Jordan also applies to the case at bar. The majority of the delay that occurred in the case at bar was after Jordan was released save and except for approximately a little over one week.

33Time commences to tick with regard to Part 1 matters on the date of the offence and this time should run to the date of the anticipated date of trial. This time would be from June 29, 2016 to April 17, 2018. The total delay is 21 months and 19 days.

34What portion of the delay can be attributed to the applicant either by his explicit waiver or by his conduct? A trial is set for May 29, 2016. The applicant never explicitly waived his right to a trial in a timely manner. The applicant's agent contends that he requested disclosure in a timely manner and was provided with illegible notes. The agent then requested clarification of these notes by way of legible type-written notes which were to have been provided. These notes were not provided prior to the trial date but clarification was sought on the trial date to the agent's satisfaction. On the trial date the agent alleges that he became aware of a DVD and requested an adjournment so that the DVD could be ordered and provided. The matter was put over from May 29, 2017 to October 5, 2017 at which time the Applicant's agent brought an 11(b) application.

35The respondent submits that disclosure was available on November 8, 2016 and picked up by the agent on November 22, 2016. It is not until April 19, 2017, approximately one month prior to the trial date that the applicant's agent seeks clarification of the illegible notes. The respondent contends that the matter is not complicated and that upon receiving clarification of the notes the applicant should have been able to proceed.

36While the applicant is entitled to full disclosure and the DVD is part of disclosure, the respondent asserts that the applicant's agent opted to adjourn the matter so that the DVD could be obtained. There was no evidence provided as to the usefulness of the DVD and whether or not it was necessary for the applicant to have proceeded to trial on May 29, 2016. The suggestion is that the time period from May 29, 2017 until October 5, 2017 should fall at the feet of the applicant as the request for the adjournment was the applicant's.

37What is more appropriate for this court to ask and probe into is what action did the applicant take to obtain full disclosure? He hired an agent who requested disclosure. This initial request was made on November 2, 2016 and was available for pick up on November 8, 2016. It was picked up on November 22, 2016. A further request for clarification of the notes was made by the applicant's agent on April 19, 2017. The issue of the DVD only came to light on the trial date, May 29, 2017. Yet when the agent requested disclosure he ought to have filled out a request form provided by the Municipality. This form has a specific box that should be ticked off to request Video/Audio Evidence.

38The court has heard that the applicant has been represented from the beginning by a trained legal representative. He is not an unrepresented defendant. As such whether by use of the form provided by the Municipality or in his own form whereby the agent requests disclosure, he ought to have made the request for video/audio evidence in his initial request for disclosure on November 2, 2016. The court has not heard any evidence from the agent with regard to what he did or did not specifically request at that time.

39R. v. Faulkner, supra, is clear that the court when ascribe the amount of time for which the applicant is responsible, it is not only acts but also acts of omission that are relevant. This is not a situation where a request for DVD evidence was made and not provided prior to the May 29, 2017 trial date, nor is it a situation where an unrepresented defendant is not aware or made aware of the procedure for obtaining disclosure and only becomes aware on the trial date of the existence of a DVD. The applicant's agent had an obligation to ask for full disclosure and this includes the presence of any potential DVD evidence. If he had done so the matter in all likelihood would have proceeded on May 29, 2017 and at that time the total time would have been 11 months, which falls well below the presumptive ceiling stated in Jordan.

40As a result of the adjournment of the trial, the applicant's agent was able to bring a constitutional application to have the matter stayed. While the motion record filed by the agent makes reference to Jordan and what the test for unreasonable delay is, the agent failed to make argument and representation using the test set out in Jordan in a systematic and analytical manner that Jordan mandates. On the contrary he has made reference to R. v. Mastroianni, supra. While no legitimate application and time required to prepare for trial should be counted against any defendant, any applications that are frivolous in their nature or are being brought by the defendant to provoke delay should be counted against a defendant who should not be allowed to benefit from this delay. The court needs to ask the question: Has the application that was brought by the applicant been frivolous in its nature? While the application may not necessarily appear to be frivolous in its nature, the granting of the adjournment on the original trial date so that the applicant's agent could request the DVD which he ought to have requested in his initial request for disclosure, allowed him to bring the Constitutional Application on October 5, 2017. The court finds that the time from May 29, 2017 to October 5, 2017 being 4 months and 6 days is attributable to the applicant.

41The court heard the Constitutional Application on October 5, 2017 and reserved judgment until January 17, 2018. This time, being 3 months and 12 days, is not attributable to the applicant.

42The matter was then adjourned from January 17, 2018 until March 23, 2018. This time, being 2 months and 6 days is also not attributable to the applicant. On March 23, 2018 the court was ready to render its judgment. The applicant's agent failed to appear before the court and consequently the matter was put over to April 17, 2018. This time of 25 days is attributable to the applicant. The total time attributable to the applicant is 5 months. When deducted from the total delay of 21 months and 19 days, we are left with a net delay of 16 months and 19 days.

43The presumptive ceiling established in Jordan is 18 months. The net delay does not exceed the presumptive ceiling and is prima facie presumptively reasonable. The onus rests upon the applicant to show why the delay is unreasonable by establishing that (1) he took meaningful steps that demonstrate a sustained effort to expedite the proceedings and (2) the case took markedly longer than it reasonably should have. Is there any evidence before the court that would justify the court adjusting this ceiling?

44The applicant's agent did nothing exceptional to expedite the proceedings. The proceedings moved along in the manner in which matters commenced pursuant to Part 1 of the POA proceed. On the contrary the court finds that the agent did not make all efforts to request full disclosure in that he ought to have requested all disclosure including any DVD evidence that was available. The charges are straightforward as is the disclosure and the respondent contends that the applicant could have proceeded to trial on the original trial date. On that day the total time for delay was 11 months which falls well below the presumptive ceiling set out in Jordan.

45Unlike the court in York (Regional Municipality) v. Tomovski, supra, this court was not asked to make a determination whether or not the presumptive ceiling of 18 months for Provincial Court matters should be lowered with regard to Part 1 POA cases as Jordan was silent with regard to this and as such left the door open for further discussion and determination of a new and lower presumptive ceiling given the fact that these charges may be characterized as being rather simple in their nature. Consequently, this court finds that the 18 month presumptive ceiling set by Jordan applies. The whole purpose of Jordan was to establish clarity, simplicity and certainty with regard to the issue of unreasonable delay. The analytical framework in Jordan applies to our case. The net delay of 16 months and 19 days falls below the presumptive ceiling and is presumptively reasonable when applying the test set out in Jordan.

Disposition

46For the reasons set out above, the court finds that the applicant's section 11(b) rights were not infringed and that the time from the date of the offence to the anticipated trial date was reasonable. The court denies the applicant's section 11(b) application and orders that the applicant proceed to trial.