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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 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 subsections 486.4(1) to (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

DATE: 2022 09 14 Toronto

BETWEEN:

HIS MAJESTY THE KING

— AND —

A.S.

Before: Justice Riun Shandler Heard on: July 26, 2022 Ruling on 11(b) Application released on: September 14, 2022

Counsel: Khader, A.............................................................................................. counsel for the Crown Martin, M................................................................................... counsel for the accused A.S.

SHANDLER J.:

I. Overview

1Mr. A.S. is charged with three counts of sexual assault and one count of voyeurism, all relating to his daughter, S.S., in a time period between May 31 and June 5, 2019. These charges arose after S.S. disclosed to school officials and police that her father had touched her sexually and taken pictures of her.

2Mr. S. has brought an application for a stay of proceedings as a s. 24(1) Charter remedy, arguing a violation of his right to be tried within a reasonable time. He was originally charged with these offences on June 6, 2019 and his trial is set for four days with an anticipated completion date of October 20, 2022. The parties agree that the total delay in this matter is 40 months and 15 days.

3Mr. S. argues that the presumptive ceiling in this matter is 18 months as his trial is scheduled in the Ontario Court. The defence argues further that there was no defence-caused delay, and that the case was neither complex nor substantially impacted by the COVID-19 pandemic so as to amount to exceptional circumstances justifying this delay.

4The Crown’s position is that the presumptive ceiling for this matter is 30 months because the matter moved to the Superior Court and only then returned to the Ontario Court of Justice. The Crown argues that there was defence delay and procedural complexity exacerbated by the impact of the COVID-19 pandemic that amounts to exceptional circumstances justifying the delay in this matter.

5As these Reasons will set out, the presumptive ceiling in this matter is 30 months. The defence-caused delay is 3 months and 27 days. The remaining delay of 36 months and 18 days exceeds the presumptive ceiling and is not justified by the exceptional circumstances arising from the COVID-19 pandemic.

II. Background

6As will become clear, there were two significant factors that caused delay in this matter. The first was the Crown’s decision to add indictable charges that resulted in Mr. S.’s charges moving to the Superior Court of Justice. The second is the impact of the COVID-19 pandemic.

7I will set out a brief review of the matter and then set out the significant procedural steps in a chart format, noting the delay at various stages.

8This matter began as a relatively straightforward trial in the provincial court on three counts of sexual assault and one count of voyeurism. The Crown elected to proceed summarily. There was a judicial pre-trial within 3.5 months of the information being sworn and a three-day trial was set for July, 2020 along with third-party records application brought by the defence. The stage 1 hearing on the records application was completed on February 27, 2020 and a stage 2 hearing was set for May 5, 2020.

9On March 15, 2020, the Ontario Court of Justice suspended normal operations due to the COVID-19 pandemic. All non-urgent criminal matters involving out-of-custody accused were presumptively adjourned for 10 weeks from the date of the next scheduled court appearance. The practical result was that Mr. S.’s stage 2 hearing was presumptively adjourned to July 14, 2020 which would also impact the secured trial dates.

10On April 29, 2020, the parties were invited to conduct the stage 2 hearing in an alternative fashion. By this time, however, the police had searched Mr. S.’s earlier seized cellphone and found videos of S.S. On April 5, 2020, the Crown advised the defence of the results of the police search and that they would proceed by indictment on additional charges of making and possessing child pornography.

11The defence elected to have a preliminary hearing. The Crown received a direct indictment on August 31, 2020. The charges went to the Superior Court and the Crown withdrew the original provincial court information.

12The trial was scheduled in Superior Court for October 2021, but on June 1, 2021, Goldstein J. excluded the evidence found by the police on Mr. S.’s cellphone. Goldstein J. found that the police failed to make full, fair, and frank disclosure of information and that they conducted warrantless searches. In excluding the evidence under s. 24(2), Goldstein J. concluded:

Regrettably, I find that the balance favours exclusion of the digital media seized from A.S.’s cell phone. The evidence is inadmissible at trial. The accumulation of Charter violations, and the approach to full, fair, and frank disclosure leads me to that conclusion, even in the face of real evidence of a serious crime.

The case for the Crown will not entirely collapse. The Crown is still free to pursue the other charges. [1]

13The Crown did pursue the remaining charges and consented to the defence re-election to the Ontario Court of Justice.

14A new information was sworn on August 16 and the matter was first spoken to in the Ontario Court of Justice on 19, 2021. The parties did not, however, alert anyone to the history of the matter, including that a judge was previously seized, when scheduling the matter for a third-party records motion in May, 2022 and a trial before another judge in June, 2022.

15On May 24, 2022, defence counsel sought to adjourn the motion in order to wait the pending decision of the Supreme Court of Canada on the constitutionality of the s. 276 / 278 provisions. The motions judge adjourned the matter and ordered that it be scheduled with the judge originally seized. The matter was then rescheduled for a motion and trial in October, 2022.

16The defence subsequently brought an application for a stay based on delay.

Date	Event	Comments	Total Delay
June 6, 2019	Original information sworn
Aug 27, 2019	First Appearance	Initial Disclosure made on July 31, 2019	2 months, 22 days
Sept 6, 2019	First search warrant	Police obtain warrant to conduct search of Mr. S.’s cellphone for subscriber information
Sept 10, 2019	Crown elects summary proceedings		3 months, 5 days
Sept 19, 2019	Judicial Pre-trial – 278 motion and trial dates set	276/278 motion dates set for February 27 and March 30, 2020. Trial scheduled for July 6 – 7, 2020	3 months, 14 days
December 13, 2019	New Trial dates set	Trial scheduled for July 15 – 17, 2020
Feb 27, 2020	278 first stage motion heard	First stage hearing completed in front of Shandler J. Second stage hearing scheduled for May 5, 2020	8 months, 22 days
March 15, 2020	COVID-19 pandemic	OCJ adjourns all non-urgent criminal matters scheduled up to the end of May
April 5, 2020	Crown advises defence of new disclosure from search of Mr. S.’s cellphone that will result in added charges	Crown intends to proceed by indictment on additional charges of making and possessing child pornography	10 months
May 4, 2020	COVID-19 pandemic	OCJ advises that no trials or preliminary inquiries will be conducted until July 6, 2020, unless a judge seized with continuing matter orders otherwise
July 14, 2020	Second search warrant	Police obtain warrant to search contents of Mr. S.’s cellphone
July 22, 2020	Judicial pre-trial	Mr. S. advises he will elect a preliminary hearing
August 11, 2020	Judicial pre-trial	Crown advises they will seek direct indictment
August 31, 2020	Direct Indictment	Crown advises defence that request for direct indictment approved	14 months, 26 days
October 9, 2020	Superior Court	Defence elects trial by judge and jury. Two-week trial set for starting on October 19, 2021	16 months
October 15, 2020	Provincial Court	Crown withdraws provincial court information
June 1, 2021	Goldstein, J. releases s. 8 ruling, excluding the evidence seized from Mr. S.’s cell phone	From hearing on May 18, 2021	23 months, 27 days
August 19, 2021	Matter returns to Provincial Court	Crown consents to Mr. S.’s re-election to the provincial court. No 11 (b) waiver obtained	26 months, 14 days
September 17, 2021	278 motion dates and trial dates set	2nd stage 276/278 motion and trial scheduled for May 24, 2022, and June 14 – 17, 2022 in front of Bellmore, J.	27 months, 12 days
May 24, 2022	278 motion	Parties advised that Shandler J. seized of the matter	35 months, 19 days
New motion and trial dates set	276/278 application rescheduled for September 14, 2022, and trial rescheduled for October 13, 14, 19, 20, 2022
October 20, 2022	Last day of rescheduled trial		40 months, 15 days

III. The Jordan Framework

17The resolution of these issues is to be determined following the Jordan framework established by the Supreme Court of Canada. Our Court of Appeal has set out a helpful summary of the process as follows:

1. Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).
2. Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, at para. 66). Defence delay is subtracted because “[t]he defence should not be allowed to benefit from its own delay-causing conduct”: Jordan, at para. 60. There are two types of defence delay, each of which must be considered and, if present, subtracted. a. Subtract delay that is waived by the defence. Delay that is clearly and unequivocally waived by the defence, either explicitly or implicitly, must be subtracted from the total delay: Jordan, at para. 61. b. Subtract delay that lies at the feet of the defence. Delay that is “caused solely or directly by the defence’s conduct” must also be subtracted from the total delay: Jordan, at para. 66. This includes tactical choices that delayed the trial, such as frivolous applications and requests, and also includes periods of time during which the court and the Crown are prepared to proceed but the defence is not: Jordan, at paras. 63 – 64.
3. Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66). If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). The Crown cannot rely on anything beyond exceptional circumstances to discharge its burden; not the seriousness of the offence, not the absence of prejudice, nor institutional delay: Jordan, at para. 81. Absent exceptional circumstances, the Crown will not be able to satisfy its burden, and a stay will follow (Jordan, para. 47).
4. Consider exceptional circumstances. These circumstances do not need to be rare or uncommon; rather, they must lie beyond the Crown’s control, in that they are reasonably unforeseen or reasonable unavoidable and, in either case, result in delay that cannot be reasonably remedied by the Crown. Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75). a. Consider discrete exceptional circumstances. Discrete exceptional circumstances are unexpected and uncontrollable happenings which lead to delay. Discrete events include, for example, medical emergency or illness of criminal justice system participants, recanting witnesses, and elongated trials despite good faith timeline estimates: Jordan, at paras. 72 – 73. b. Consider complexity. The remaining delay may be justified by the Crown where the case is “particularly complex”: Jordan, at para. 77. It is worth stressing that the presumptive ceiling already accounts for the fact that criminal proceedings have become more complex over time. Therefore, in order to discharge its burden under these exceptional circumstances, the Crown must demonstrate that the case is particularly complex: R. v. Cody, 2017 SCC 31 at para. 63, referring to Jordan, at paras. 42, 53. [2]

IV. Application of the Jordan Framework

A. The Applicable Presumptive Ceiling

18The starting point in this matter is to determine the presumptive ceiling. The Crown’s position is that the ceiling is 30 months as this was a Superior Court trial that returned to the provincial court only after a re-election. The defence argues that the presumptive ceiling is 18 months as Mr. S. re-elected to be tried in the provincial court before having had his preliminary hearing. The defence relies on a line of authority from our Court of Appeal applying a “bright line” approach to the Jordan framework and setting an 18-month ceiling where the re-election occurs before the preliminary inquiry is “completed.”

19I would not accede to the defence argument. In R. v. Bulhosen, [3] our Court of Appeal rejected the argument that the 18-month ceiling applies where an indictment is preferred in a superior court. The Court relied, in part, on Jordan in which a distinction was clearly drawn between trials in the provincial courts and trials in the superior court.

20Mr. S.’s matter had been in the Superior Court for some 9 months and his scheduled trial was only 4 months away when he re-elected. The cases relied on by the defence can be distinguished on that basis alone as each of the accused made his re-election while the matter still remained in provincial court. [4] The issue was whether the re-election occurred before and not after the preliminary inquiry, not whether the matter was in the provincial court or the superior court.

21As a matter that was in Superior Court, the Crown receives the benefit of the 30-month presumptive ceiling. I would note, however, that this does not change the outcome in this case. At the point the Crown consented to the defence re-election to have the remaining original charges return to the Ontario Court of Justice, the matter was almost 24 months old and there was a scheduled Superior Court trial four months away.

22The Crown should have foreseen that giving up the trial dates and returning the matter to the Ontario Court of Justice would cause real 11(b) problems and expressly deal with the issue of delay at the time they consented to the defence re-election, as cautioned by our Court of Appeal:

The bright line approach that I consider myself compelled to follow does not enable the defence to manufacture a s. 11(b) delay by re-electing into a shorter presumptive period of delay. Section 561(1) of the Criminal Code requires Crown consent before the accused can re-elect to a trial by a provincial court judge. Where re-election would create the risk of s. 11(b) problems, the Crown has the authority to, and should, refuse consent, absent a s. 11(b) waiver. [5] [emphasis added]

23The presumptive ceiling is 30 months.

B. Total Delay

24The parties agree that the total delay in this matter is 40 months and 15 days, from the swearing of the original information on June 6, 2019 to the anticipated final day of trial on October 20, 2022. [6]

C. Subtract Defence Delay

1. Waived Delay

25The Crown does not contest the defence position that there were no waived periods of delay. I find that there are no waived periods of delay by the defence.

2. Delay that lies at the feet of the defence

26The Crown argues that four months and 27 days, from May 24, 2022 to October 20, 2022 ought to be subtracted from the total delay for defence caused delay. The Crown argues this on two separate bases:

1. The Crown and the court were ready to proceed on May 24, 2022 and the trial was adjourned due to the defence application to await the pending decision of the Supreme Court on the constitutionality of the ss. 276 / 278 provisions; and,
2. The third-party records application brought by the defence are, in any event, illegitimate.

27The Crown’s first argument – that the adjournment on May 24, 2022 was attributable to a defence adjournment – is only partially borne out by the record. It is correct that the defence sought an adjournment to await the decision of the Supreme Court of Canada on the constitutionality of the 276 / 278 provisions. [7] Equally significant, however, was that the parties were in front of the wrong judge.

28As noted, I had earlier issued a stage 1 ruling on the defence s. 278 application. That was prior to the Crown’s decision to lay additional charges and proceed by indictment, resulting in the matter moving to the superior court. When the matter returned to the provincial court, neither the Crown nor the defence raised this issue at either the judicial pre-trial or with the trial coordinators when scheduling the matter. As a result, the matter was scheduled before a different jurist who was not prepared to deal with the matter because another judge was already seized. The transcript is clear on this point. Bellmore J. ruled as follows:

I am not prepared to hear the 278 – the second stage of an application that’s already been started in front of a different judge in respect that that other judge has already rendered a decision on the stage one, whether it was on consent or not. I understand there were written Reasons that I’ve been provided. So I am not prepared, absent some authority for my ability to do so, to step in, in the middle of an application that was already started. So the 278 application is not going to continue before me today. [8]

29It is therefore simply incorrect to say that “the court was ready to proceed” on May 24, 2022.

30It should have been obvious to both parties when this matter returned to the Ontario Court of Justice that it had to be returned to the judge who ruled on the initial stage one hearing. It was incumbent on both parties to advise the trial coordinators and pre-trial judge that this was a continuation of a matter, not a brand-new matter, with a seized judge. Had the parties done so, this matter would not have been scheduled in front of another judge, resulting in further delay. In light of their joint failure to advert to this at any time, the responsibility for this delay should be shared equally by them. [9]

31Crown counsel also raises concerns about the “legitimacy” of the defence records application. The Crown relies on the evidence found on Mr. S.’s cellphone to argue that there is no good faith basis for the defence to continue in these applications.

This argument is doubly concerning.

32First, it would require me to prejudge the third-party records application without having had the benefit of materials and full argument on the application itself. Second, it would allow the Crown to rely on evidence obtained by the police in violation of Mr. S.’s Charter rights that have already been excluded from the trial by Goldstein, J. The Crown has provided no authority for either of these propositions and I am not prepared to accede to either of them.

33It might have been possible to salvage the June trial dates but the defence position was clear. They wanted the trial adjourned until after the release of the Supreme Court of Canada’s decision on the constitutionality of the 276 / 278 provisions. In light of that position, the trial dates of June 2022 could not have been salvaged as the decision was not released until June 30, 2022.

34In my view, the delay from the scheduled trial ending June 17, 2022 to the rescheduled trial ending October 20, 2022 is attributable to defence delay. That is a total of 3 months and 27 days. Accordingly, I will subtract that period from the total delay for defence-caused delay, leaving a net delay of 36 months and eighteen days.

D. Compare the net delay to the applicable presumptive ceiling

35As previously noted, the presumptive ceiling for this matter is 30 months. The net delay of 36 months and 18 days exceeds the presumptive ceiling. The Crown bears the burden of establishing exceptional circumstances.

E. Exceptional circumstances

1. Discrete exceptional circumstances

36The Crown argues that three events amount to discrete exceptional circumstances:

1. The Ontario Court of Justice stopped hearing matters as a result of the COVID-19 pandemic starting in March of 2020. This cancelled the original 2nd stage of the 278 application and the July, 2020 trial dates.
2. The COVID-19 pandemic created a significant backlog in both the Ontario and Superior Courts of Justice. As a result, obtaining a date in either level of court has been, and continues to be, delayed. There were stretches of time where matters were simply not being heard.
3. Transitioning the matter to [the] Superior Court of Justice and then back to the Ontario Court of Justice is not a routine procedure that was contemplated when the Supreme Court considered the 18-month timeline in Jordan.

37There is no dispute that the COVID-19 pandemic is an exceptional circumstance that resulted in the courts being shut down. While it is necessarily somewhat speculative to attribute delay due to the COVID-19 pandemic when it was the Crown’s change in strategy that resulted in the adjournment of the stage 2 hearing and original trial, I accept that the impact of the COVID-19 pandemic did cause delay.

38On March 15, 2020, as a result of the COVID-19 pandemic, the Ontario Court of Justice suspended normal operations. All out-of-custody matters between March 16, 2020 and April 3, 2020 were presumptively adjourned to a date 10 weeks from the scheduled appearance. [10] Mr. S.’s matter was presumptively adjourned to July 14, 2020. [11]

39The investigation into Mr. S.’s matter continued, however, with the police searching Mr. S.’s cellphone and providing that information to the Crown. On April 5, 2020, the Crown advised the defence of the new disclosure and their decision to lay additional charges and proceed by indictment. [12] On April 29, 2020, when the court advised the parties that the stage 2 application, scheduled for May 5, 2020, could proceed in an alternative fashion, through an audio or video conference, Ms. Martin responded to that invitation as follows:

A few weeks ago I was advised of further disclosure that may impact the way this matter proceeds. …The matter is currently scheduled to return June 27 for a judicial pretrial with Justice Chaffe, at which time I hope to have seen the disclosure and gotten instructions from my client about how he would like to proceed.

Had we not had this new development I would have been happy to proceed with the motion remotely. [13]

40On May 4, 2020, the Ontario Court of Justice issued a new directive regarding scheduling of criminal matters advising that no trial or preliminary inquiries would be conducted until July 6, 2020 at the earliest “unless a judge seized with a continuing matter orders otherwise.” [14] On June 17, 2020, the Ontario Court of Justice released a notice advising that criminal trials and preliminary hearings would resume as of July 6, 2020.

41However, it was clear well before those announcements that Mr. S.’s trial was not going to proceed in the Ontario Court of Justice. There was no attempt by the parties to preserve the trial dates in July, 2020 for Mr. S.’s preliminary hearing. Rather, the Crown advised the court on July 22, 2020 that the defence was electing to have a preliminary hearing:

[T]here has been a new charge…. added to the information. There is now a charge of making child pornography….Mr. [S], it seems like he’s going to be having a preliminary hearing And Ms. Martin will likely not be pursuing those application at the preliminary hearing. [15]

42On August 31, 2020, the Crown’s application for a direct indictment was approved and trial dates were set in the Superior Court commencing October 19, 2021. As earlier noted, the Superior Court trial was set to commence within 27 months of the original information being sworn, well within the presumptive ceiling of 30 months.

43In the end, however, the trial did not proceed because the defence successfully applied for the exclusion of the evidence from the police search of Mr. S.’s cellphone. The Crown – now constrained to the evidence that they had before the search of the cellphone – consented to the defence re-election so as to allow the matter to continue back in the Ontario Court of Justice. The implications of that decision are addressed in the next section.

44The defence submits that a 3-month period from May 2020 to July 2020 can be deducted as an exceptional circumstance due to the COVID-19 pandemic. [16] The Crown submits that 5 months and 27 days – between March 15, 2020 and September 10, 2020 - should be deducted due to the COVID-19 pandemic. [17]

45In my view, 3 months and 5 days - the period from July 15, 2020 to October 9, 2020 – should be deducted due to the impact of the COVID-19 pandemic. Had it not been for the impact of the COVID-19 pandemic on court operations, Mr. S.’s trial dates would have likely been converted to preliminary inquiry dates and Mr. S.’s matter would have been remanded to Superior Court. As court resources were scarce, the Crown preferred a direct indictment but that did result in delay.

46When Mr. S.’s matter actually came to Superior Court on October 9, 2020, he was able to set trial dates to commence within 27 months of the original information being sworn. There was reason to believe that his matter would be completed within the Jordan timelines, despite the impact of the COVID-19 pandemic.

2. Complexity

47The Crown submits that this is a complex case, such that the delay is justified.

48In relation to the decision to proceed on indictable charges, the Crown argues that the entire time that this matter was in the Superior Court – from September 11, 2020 to August 31, 2021 — a total of 11 months and 21 days should be deducted as an exceptional circumstance. The Crown argues as follows:

Upon finding undisputable proof that [Mr. S.] made child pornography, the [Crown] was obliged to add a count of making child pornography to the information. Procedurally, it complicated matters significantly. COVID prevented matters from being heard at the Ontario Court of Justice so the Respondent had to apply for a direct indictment, the indictment had to be filed, a judicial pretrial had to be set and conducted in Superior Court, and new dates had to be selected. This is not the type of delay that was envisioned by the Supreme Court when drafting the timelines in Jordan. [18]

49It was the Crown’s theory from the outset that Mr. S. had both sexually assaulted S.S. on multiple occasions and recorded images of S.S., albeit as photographs. [19] On the basis of that information, the Crown elected to proceed summarily. Pre-trial motion dates were set and the trial itself was scheduled for two days. It was anticipated that the Crown would call the complainant and two police officers.

50When the police searched and found videos on Mr. S.’s cellphone, the Crown chose to add charges of making child pornography and proceed by indictment. In my view, that did not change the nature of the case as being relatively straight-forward, involving a minimal number of witnesses and court time. Moreover, when the Crown’s evidence from Mr. S.’s cell phone was excluded, and the matter returned to provincial court, it remained a straightforward case that could be heard in four days.

51Quite apart from whether the nature of the Crown’s case had changed in any substantive manner, the Crown chose to proceed on child pornography charges despite the deficiencies in the warrant and the police misconduct noted by Goldstein, J. As the chart sets out, the Crown made this decision on April 5, 2020, some three months before the police obtained the second warrant to search the contents of Mr. S.’s cellphone.

52That decision by the Crown resulted in delay of 16.5 months, from April 5, 2020 to August 19, 2021. In my view, it is that delay that resulted in this matter being in jeopardy. Mr. S.’s matter was almost 24 months in the system when the Crown consented to his re-election. There was a trial scheduled in four months in Superior Court.

53There is nothing in the record to indicate that the Crown concerned itself the with delay. They consented to the matter returning to the Ontario Court of Justice, giving up the scheduled trial, without demanding any waiver from the defence. Moreover, there is no evidence that the Crown took steps to expedite the matter on its return to the Ontario Court of Justice.

54It took almost 2 and a half months – from Goldstein J.’s ruling on June 1, 2021 to August 19, 2021 – for the matter to be first addressed in the Ontario Court of Justice. Neither the pre-trial judge or the trial coordinators appear to have been advised of the history of this matter in order to have it back before the seized judge and/or scheduled in an expeditious fashion. Rather, motion dates and new trial dates were scheduled for several months down the road in front of a trial judge who ultimately was unable to deal with the matter because the parties failed to ensure the matter returned before the seized judge.

55In my view, the Crown simply failed to mitigate the fallout from the loss of evidence that was crucial to their trial. There were a number of steps they could have taken, as noted by the Court in Jordan, including:

…prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. [20]

56Moreover, as aptly pointed out by the defence, there were a number of alternative steps the Crown could have taken, including:

• Declining to charge Mr. S. with the child pornography offences given the clear deficiencies in the warrants and police misconduct in searching Mr. S.’s phones outside of the periods allowed by the warrant; [21]
• Laying a new information and proceeding with the child pornography charges separately from the sexual assault and voyeurism charges; and,
• Either refusing to consent to Mr. S.’s re-election to trial in the provincial court or requiring an express waiver of delay.

57There is no delay deducted for complexity.

F. Whether the Remaining Delay is Unreasonable

58I will deduct 3 months and 5 days due to the exceptional circumstances arising from the COVID-19 pandemic, leaving a remaining delay of 33 months and 13 days.

59I find that there is nothing exceptional about the case, its complexity or any other special circumstance that would make this presumptively unreasonable delay reasonable.

V. Conclusion

60In all the circumstances, I find that Mr. S. has shown that the delay to trial in his case is unreasonable. The delay violates Mr. S.’s s. 11(b) Charter rights. His application for a stay is granted.

Released: September 14, 2022 Signed: Justice Shandler

[1] R. v. A.S., 2021 ONSC 3848 at paras. 63 – 64. [2] R. v. Zahor, 2022 ONCA 449 at paras. 60 – 67; R. v. Coulter, 2016 ONCA 704 at paras. 34 - 41. [3] R. v. Bulhosen, 2019 ONCA 600 at paras. 68 - 72; R. v. Jordan, 2016 SCC 27 at para. 46. [4] R. v. Shaikh, 2019 ONCA 895 at paras. 50 – 57. See also R. v. Wookey, 2021 ONCA 68 at para. 68; R. v. Charity, 2022 ONCA 226 at paras. 8, 17; R. v. Uthayakumar, 2022 O.J. No. 3627 (O.C.J.) at para. 37. [5] R. v. Shaikh, supra at para. 57. [6] The current information was sworn on August 16, 2021 but the parties accept that the time for calculating delay for s. 11(b) purposes begins on the day the original information was sworn, not the replacement information. [7] The Supreme Court released their decision on June 30, 2022: R. v. J.J, 2022 SCC 28. [8] Application Record, Vol. 1, p. 144. [9] R. v. Zahor, supra at para. 102. [10] Ontario Court of Justice Notice, March 16, 2020. [11] Application Record, Vol. 2, Affidavit of Evelyne Ibula, para. 11, Ex. I. [12] E-mail from Mr. Khader to Ms. Martin dated April 5, 2020, Ex. G, Application Record, Vol 2, p. 143. [13] E-mail from Ms. Martin dated April 29, 2020, Ex. I, Application Record, Vol. 2, p. 151. [14] COVID-19 Pandemic – Scheduling of Criminal Matters in the Ontario Court of Justice (Updated May 4, 2020). [15] Proceedings on July 22, 2020, Application Record, Vol. 1, p. 50. [16] Applicant’s Factum, para. 84. [17] Respondent’s Factum, para. 61. [18] Respondent’s Factum, para. 80. [19] The original information charged Mr. S. with “surreptitiously observe and record by taking photographs…” [20] R. v. Jordan, supra at para. 70. [21] R. v. A.S., 2021 ONSC 3848 at paras. 37 – 39, 51 – 53, and 63.