His Majesty The King v. B.D.
ONTARIO COURT OF JUSTICE
DATE: 2023 05 31 COURT FILE No.: Brampton 21-14413
BETWEEN:
HIS MAJESTY THE KING
— AND —
B.D.
Before: Justice Paul F. Monahan
Section 11(b) application heard on May 2, 2023 Reasons for Judgment on the s. 11(b) application released on May 31, 2023
Counsel: J. Ng....................................................................................................... counsel for the Crown P. Locke................................................................................. counsel for the accused B.D.
Introduction
1Mr. B.D. is charged with sexual assault and sexual interference. He was arrested on September 15, 2021 and the information was sworn on September 20, 2021.
2The case is currently scheduled for a three-day trial from November 20 to 22, 2023. The anticipated delay from the time of the information being laid to the end of the trial is 793 days or approximately 26 months. The defence has brought an application for a stay of proceedings pursuant to s. 11(b) of the Charter.
3As will be further discussed below, the defence acknowledges 49 days in defence delay but submits that the case remains well over the Jordan ceiling and must be stayed.
4The Crown submits that there are further significant periods of defence delay bringing the case down to approximately 15 months net delay. The Crown submits that the defence has not met their onus of showing that the delay under the Jordan ceiling is unreasonable and therefore the application should be dismissed.
5Based on the materials filed, my consideration of the record and the submissions of counsel I have identified the following time periods for consideration as to whether there is any defence delay or delay due to exceptional circumstances:
(a) February 3, 2022 to May 16, 2022 (96 net days after deducting one week for the defence to get instructions);
(b) June 3, 2022 to July 25, 2022 (45 net days after deducting one week for the defence to get instructions);
(c) July 25 to August 10, 2021 (14 days)
(d) August 10, 2022 to August 31, 2022 (21 days); and
(e) April 26, 2023 to November 22, 2023 (210 days)
6As a separate point, the Crown also submits that the Court can, if necessary, deduct some time for the so-called "ripple effect" of the Covid backlog.
The Jordan framework
7The Jordan framework is well known and may be summarized as follows:
A trial court hearing an s.11 (b) application should calculate the total delay from the charge to the anticipated end of the trial (Jordan at para. 47).
From the total delay the Court should deduct defence delay (Jordan para. 66) and the delay associated with discrete exceptional circumstances (Jordan at paras. 75 and 82).
Defence delay has two components. The first is delay waived by the defence. The other is delay caused "solely or directly" by defence conduct including circumstances where the defence uses a deliberate tactic to delay the trial. A further example of defence delay will occur where the Court and the Crown are ready to proceed and the defence is not (Jordan paras. 60 -64; see also R. v. Cody, 2017 SCC 31, [2017] S.C.J. No 31 at paras. 28 to 35). However, there is no "bright line rule" requiring that where dates are offered when the Court and the Crown are available but the defence is not, then all delay until the next date is defence delay. Rather, all of the relevant circumstances must be considered to determine how delay should be apportioned among the participants: R. v. Hanan 2023 SCC 12 at para 9 and R. v. Boulanger 2022 SCC 2 at para 8.
If the delay is above the presumptive ceiling then it is presumptively unreasonable. The Crown can rebut this presumption by showing that the delay is reasonable on the basis of exceptional circumstances (Jordan para. 68). This is the only basis upon which the Crown can justify a delay above the ceiling and avoid a stay. The absence of prejudice in cases above the ceiling is irrelevant (Jordan para. 81).
As indicated above, delay caused by discrete exceptional circumstances is to be deducted from the total delay to determine if the ceiling has been reached. The Crown and the justice system should attempt to mitigate if possible any delay resulting from a discrete exceptional circumstance. The Crown and the justice system need to prioritize cases delayed by unforeseen events. If that does not occur when it reasonably could have, then the entire period of delay occasioned by the discrete exceptional event may not be deducted from the total delay (Jordan para. 75).
Discrete exceptional circumstances may be an illness, an extradition proceeding or an unexpected event in the trial. An unexpected event at trial might include a recanting witness which causes the Crown to need to change course. Further, if a trial goes longer than expected despite good faith efforts on both sides to estimate the time required, this too my amount to an exceptional circumstance resulting from an unavoidable delay. The categories of exceptional circumstances are not closed. Trial judges are to be alive to the practical realities of trials and are to use their good sense and experience in determining what will constitute a discrete exceptional circumstance (Jordan paras. 69, 71-74 and 81).
Exceptional circumstances covers a second category other than discrete events: namely cases that are particularly complex. These are cases that due to the nature of the evidence or the issues require an inordinate amount of trial or preparation time such that the delay is justified (Jordan para. 77).
Below the presumptive ceiling a stay may still issue if the defence can establish two things: (1) that 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. In the absence of these two factors, the stay application will fail (Jordan para. 82).
As concerns defence initiative constituting meaningful and sustained steps, the Court should consider what the defence could have done and what it did. It is a matter of substance rather than form. It is not enough to put on the record that the defence wanted an early trial date. Having said that, the defence must act reasonably and not perfectly (Jordan paras. 84-85)
As to whether the time took markedly longer than it should have, this will require a consideration of the reasonable time requirements of a case which derive from a variety of factors, including the complexity of the case, local considerations, whether the Crown took steps to expedite the proceedings and other factors (Jordan para. 87).
The Supreme Court observed that they expected stays below the ceiling would be "rare" and should be limited to only in clear cases. In setting the ceiling, the Supreme Court factored in tolerance for reasonable institutional delay (Jordan para. 48 and 83).
8I will turn now to examine the relevant time periods to determine whether any defence delay or delay due to exceptional circumstances has been established.
a) February 3, 2022 to May 16, 2022 (96 net days after deducting one week for the defence to get instructions)
9A Crown pre-trial ("CPT") was held on February 2, 2022. Following the CPT it was understood by both the Crown and the defence that a judicial pretrial ("JPT") was required: see paragraph 5 of the defence's factum. The Crown submits that the defence delayed in setting up the JPT until May 16, 2022 when the defence set it up for June 3, 2022. The Crown therefore submits that the period from February 3 to May 16, 2022 less two weeks to allow the defence to get instructions is all defence delay and this is comprised of 89 net days.
10The accused submits that they were waiting an important piece of disclosure and that this absence of disclosure justified part of the delay in setting up the JPT. As indicated above, this is a sexual assault/sexual interference case. It is clear from the accused's written and oral submissions that they had significant disclosure at the time of the CPT including, for example, the complainant's statement. However, they did not have a journal note that a school official apparently made relating to the disclosure by the complainant to the school official. That note was ultimately provided to the defence on March 29, 2022. On April 11, 2022, the defence said that they would set up a JPT but they did not do so until May 16, 2022. The defence submits that only the 35 days from April 11 to May 16, 2022 during which the defence delayed in setting up the JPT should be treated as defence delay. As indicated above, the Crown submits that the entire period from February 3, 2022 until May 16, 2022 should be treated as defence delay less two weeks for time to get instructions.
11I agree with the Crown's position save that I would allow only one week for getting instructions after the CPT. There was very little, if anything, to get "instructions" on. The case had to proceed to a JPT. On the record before me, one week is a reasonable period of time to get instructions. Further, in my view, the defence could not delay in setting up a JPT because they did not have the note from the school official. This was not required disclosure to have a meaningful JPT in this case. It is well-known that the defence cannot wait for every last piece of disclosure before moving ahead to the JPT stage: see R. v. Brown 2010 ONSC 6202 at para 22. I note as well that the defence never made it known to the Crown that the disclosure of the journal note was preventing the setting up of the JPT. See for example the February 14, 2022 transcript wherein defence counsel says only that "we need to follow up with a couple of things that were discussed" referring to the CPT. There was no mention that disclosure would prevent the setting up of a JPT which everyone knew was required.
12I appreciate that arguably the Crown could have set up the JPT. However, the practice in Brampton is for the defence to set up the JPT when one is required or requested. This practice has developed for a number of reasons. First, no JPT is required in Brampton where both the Crown and the defence counsel agree that the trial will take two days or less. However, even where the case is estimated at two days, defence counsel has the option to request a JPT to discuss the possibility of resolution. Second, defence counsel can schedule a JPT on any date that defence counsel is offered by the trial coordinator (the "TC") and defence counsel is available. This is because a case management Crown will be available to conduct a JPT on any day the JPT is scheduled. Accordingly, a JPT can be set by defence counsel without regard to the Crown's schedule. The opposite is not true. The Crown would have to set up a JPT in accordance with defence counsel's schedule.
13In this case, defence counsel knew that the onus was on him to set up the JPT and that is why, in my view, he is prepared to acknowledge the 35 day delay from April 11 to May 16, 2022.
14In my view, the entire period from February 3 to May 16, 2022 less 7 days to get instructions is defence delay. The net total is 96 days.
b) June 3, 2022 to July 25, 2022 (45 net days after deducting one week for the defence to get instructions)
15A JPT was held on June 3, 2022. That day the trial estimate form which resulted from the JPT was sent by the Crown to defence counsel. Again, it is a well-known practice in Brampton that once defence counsel has a trial time estimate form they can seek to set up a zoom meeting with the TC to set a trial date. No steps were taken by defence counsel in this case to do that until July 25, 2022 when the zoom conference with the TC was set up for August 10, 2022.
16Defence counsel acknowledges that 14 days from July 11 to July 25, 2022 is defence delay but they say they were simply getting instructions prior to that time.
17The Crown submits that all of the delay from June 3 to July 25 less one week to get instructions is all defence delay. The net total is 45 days. I agree. There was no reason other than the need to get instructions to delay the setting up of a meeting with the TC to set a trial date. It was going to take a couple of weeks just to get the trial setting appointment with the TC. The defence can't seriously make the case that they could take over a month to get the instructions to set a trial date (from June 3 when the JPT was completed until July 11 when the defence apparently acknowledges they should have set up the zoom meeting). My conclusion that this period of time is defence delay allows one week for instructions. Accordingly, the 45 net days must be deducted as defence delay related to this time period.
c) July 25, 2022 to August 10, 2022 (14 days)
18I note that some of my colleagues have also deducted approximately 2 weeks due to a local practice associated with the time needed to set up a zoom meeting to set a trial date with the TC. See Justice Duncan's decision in the R. v. Ambrose 2022 ONSC 4793 at para 20-21. The zoom meeting trial date scheduling procedure is a practice that has developed during and since Covid. Prior to Covid, defence counsel or an agent had to come to the building to attend the TC's office to set trial dates and they would have to wait in line to set a date. They would then put the trial dates on the record in the Justice of the Peace Court. This would all happen in one day. The zoom meeting practice for setting trial dates has occurred throughout Covid and eliminates the need for those involved to wait in line. However, this local practice causes a delay due to the need to coordinate and schedule a zoom meeting based on the availability of all involved in setting a trial date including the TC’s office, defence counsel and an officer who has the availability of police witnesses. This process was put in place to preserve the health of all persons involved with setting of trial dates including the trial coordinator and defence counsel. As Justice Duncan has observed, this is a delay due to the pandemic which is an exceptional circumstance. This caused a further two weeks delay in the scheduling of trial dates in this case. This practice was in place in the summer of 2022 when these dates were set.
19I am not suggesting that this local practice can continue indefinitely. However, it was properly in place in the summer of 2022 when trial dates were set in this case. I consider that the 14 days of administrative delay needed to set a trial date during Covid is delay relating to the exceptional circumstance of the pandemic. I would deduct 14 days for the delay from July 25 to August 10, 2022 as related to Covid.
d) August 10 to August 31, 2022 (21 days)
20The defence failed to attend the August 10, 2022 zoom meeting that they had set up with the TC due to a conflict which arose at the last minute in defence counsel's schedule. The zoom meeting with the TC had to be adjourned to August 31, 2022, another 21 days. There is simply no explanation from the defence as to why this is not defence delay and defence counsel seemed to acknowledge this point in oral argument. I understand that conflicts arise but the delay cannot be said to fall on the Crown. It was caused solely by the defence and 21 days is required to be deducted as defence delay.
e) April 26, 2023 to November 22, 2023 (210 days)
21As explained above, a three-day trial was set on August 31, 2022 for November 20-22, 2023. This is 449 days from the time the trial was set until the anticipated end of trial. I note that the parties were offered earlier dates namely September 19-21, 2022 (a mere three weeks after the zoom meeting to set the trial date was held), but neither party was available. The next available date was November 20-22, 2023 date which was almost 15 months after the zoom meeting. Both parties were available and the date was set.
22Defence counsel notified the Crown on January 3, 2023 by email that it would be bringing an s. 11(b) application in this case. I note that this email was not limited to the B.D. case. The B.D. case was one of 10 cases defence counsel identified in their January 3, 2023 email that would be subject to a s.11(b) application.
23Shortly thereafter, the s. 11(b) application was scheduled for May 2, 2023.
24On January 26, 2023, defence counsel again wrote to the Crown and referred to their intention to bring the s.11(b) application in the B.D. case. They said that the Crown "may wish to prioritize this matter and make arrangements to secure other dates".
25In response, by email on March 8, 2023, the Crown wrote to defence counsel indicating that the Crown was prepared to prioritize three of defence counsel Mr. Locke's cases including the B.D. case. The Crown offered 12 three-day blocks in which it said the Crown and the Court were available to hear the B.D. case. The dates offered were April 11-13, 2023, April 17-19, 2023, April 24-26, 2023, April 26-28, 2023, May 1-3, 2023, May 3-5, 2023, May 9-11, 2023, June 19-21, 2023, June 28-30, 2023, September 25-27, 2023, October 16-18, 2023 and October 23-25, 2023. There was some overlap in the dates offered for the B.D. case with the other cases that Mr. Locke had but the dates were not identical.
26When there was no response to the Crown's email of March 8, 2023, on March 14, 2023, the Crown wrote again to defence counsel. The Crown indicated that they would need to start offering the dates in other priority matters. The Crown asked that the defence advise if there were dates that were offered that were actively being considered by the defence so that the Crown could release the other dates for other cases.
27On March 14, 2023, the defence counsel responded and said that they were "attempting to get instructions from our clients".
28On March 15, 2023, the Crown again wrote to the defence and said that they would start offering the dates in other cases on the next day.
29On March 23, 2023 defence counsel wrote to the Crown and said that they "now have instructions from Mr. B.D. to set an earlier trial". That same day, the Crown wrote to the defence and offered eight blocks of three-day trial dates some of which were different than the earlier dates offered. The dates offered were April 26-28, 2023, May 1-3, 2023, May 3-5, 2023, May 16-18, 2023, September 25-27, 2023, September 27-29, 2023, October 16-18, 2023, and October 23-25, 2023.
30The Crown followed up again by email on March 29, 2023 indicating that, having not heard from defence counsel, they would need to offer the dates in other cases.
31Defence counsel wrote on March 29, 2023 and said that Mr. Locke was not available on any of the dates offered. Defence counsel Mr. Locke did accept earlier dates for a different client thereby obtaining an earlier trial date of May 1-3, 2023 in that other case. Defence counsel did say that they were available for three-day trials "as early as May 10, 2023 to May 12, 2023" but identified no other dates that they were available on.
Discussion and Analysis of April 26, 2023 to November 22, 2023 (210 days)
32As explained above, defence counsel was offered some of the same dates for an earlier three day trial in more than one unrelated case in Brampton in which defence counsel was acting. On March 28, 2023, defence counsel accepted May 1 to 3, 2023 for an earlier trial date in one of those other matters matter. The Crown in the B.D. case submits that defence counsel could have accepted the May 1 to 3, 2023 dates for the B.D. case. The Crown therefore submits that the time from May 3 to November 22, 2023 ought to be treated as defence delay given the 12 blocks of three day trial dates offered in the B.D. case.
33The recent decision of the Supreme Court of Canada in the case of R. v. Hanan 2023 SCC 12 needs to be considered on this issue. That decision was released on May 5, 2023 only three days after oral argument of the s. 11(b) in this case. I invited defence and Crown counsel to make further submissions in writing to me on the applicability of this case and they both did so.
34The Hanan case involved a manslaughter charge, among other charges. The trial judge had refused a s. 11(b) stay and the Ontario Court of Appeal upheld the trial judge largely on the basis that the Jordan transitional exception applied. The Supreme Court of Canada ruled that the transitional exception did not apply and entered a stay pursuant to s. 11(b).
35The Supreme Court of Canada in Hanan addressed a separate issue apart from the transitional exception. In Hanan, the trial was scheduled to be held for 6 weeks before a judge and jury in October 2018. The trial had to be adjourned due to an unexpected refusal of a witness to testify and the Crown's late disclosure of cell phone data. The defence offered to re-elect to judge alone to avoid losing the trial dates but the Crown refused to agree. A new date had to be found for what was anticipated to be a six week trial. The Court and the Crown were available on June 3, 2019 for a six week trial but the defence was unavailable. Accordingly, the matter went over for trial to October 28, 2019.
36The Crown argued, before all three levels of Court, that the delay from June 3 to October 28, 2019 was defence delay because the Crown and the Court were available for the six week trial on June 3 but the defence was not. The Court and the Crown were not otherwise available from mid-July 2019 until October 28, 2019. The trial judge held that only the six weeks from June 3 to mid-July 2019 were defence delay. The Ontario Court of Appeal said that there was no "bright line rule" urged by the Crown that once the defence is unavailable, all of the delay until the next date is defence delay. The Ontario Court of Appeal upheld the trial judge and ruled that only six weeks (June 3, 2019 to mid-July 2019) was defence delay. The Supreme Court of Canada in Hanan agreed with the reasoning of the Ontario Court of Appeal on this issue. In particular, the Supreme Court said that when assessing the time between the rejection of a date by the defence when the Court and the Crown are available and the next available date of the defence "all relevant circumstances should be considered to determine how delay should be apportioned among the participants" and referred to R. v. Boulanger 2022 SCC 2. I note that in Boulanger, the Supreme Court of Canada apportioned delay 50/50 between the Crown and the defence for a particular period of time.
37As I have said, the Supreme Court of Canada approved of the Ontario Court of Appeal's reasoning in Hanan on this issue and referred specifically to paragraph 56 of the Court of Appeal's decision.
38At paragraph 56 of the Ontario Court of Appeal's decision in Hanan 2022 ONCA 1084, the Court cited Jordan and said that when the Court and the Crown are unavailable will not constitute defence delay if the defence is also unavailable. However, the Court of Appeal in Hanan agreed with Justice Roberts in R. v. Albinowski 2018 ONCA 1084 that there should be no "categorical approach" and that "it is necessary to consider the circumstances of [the] case". The Court of Appeal in Hanan said that the Court must take a "contextual approach that considers the circumstances relevant to whether, in respect of a particular period of time, the defence refusal of a date is the 'sole or direct' cause of the delay".
39The Ontario Court of Appeal in Hanan examined the particular circumstances in that case. In that case, when it appeared the adjournment would be required, the defence counsel offered to re-elect to avoid losing the trial dates but the Crown refused. The defence was only the sole or direct cause of the six week delay starting June 3, 2019 but not the period from mid-July to October 28, 2019 as the Court and the Crown were not available then either.
40Let me summarize what I take to be the significance of Hanan. There is no bright line rule that when the Court and the Crown are available but the defence is not, that all of the time to the next date is on the defence as defence delay. The Court must consider all of the circumstances including what led to the delay in the first place and whether the Crown and the Court were available during the subsequent period of time that they seek to have characterized as defence delay.
41The defence in this case argues that Hanan stands for the proposition that defence delay only arises for the actual days that the defence is offered but they are not available. In this case the defence says that they were available on May 10th for a three day trial. The defence submits that the only days offered where the Court and Crown were available but the defence was not were June 19-21, June 28-30, September 25-27, October 16-18, and October 23-25, 2023, namely a total of 15 days. The defence therefore submits that they are responsible for only 15 days of delay and that the rest should be characterized as Crown delay (139 days).
42In my view, the defence position does not fairly take into account all of the circumstances and I do not believe that the defence submission is consistent with the direction from the Supreme Court of Canada in Hanan to consider the context and to look at all of the circumstances.
43When all of the circumstances are examined in this case it is clear that the circumstances here are very different than those in Hanan. Let me explain.
44First, it must be asked what was the reason for the delay in the first place? By this I mean the delay relating to the time from August 31, 2022 (when the trial date was set) until November 22, 2023, the anticipated end of trial. The initial reason for the delay came about because the Court was unavailable, which is a point which works in the defence's favour but is not determinative.
45Second, in the case at bar, the defence waited just over four months to clearly tell the Crown that they were going to bring a s.11(b) application. In the recent Supreme Court of Canada case of R. v. J.F. 2022 SCC 17, the Supreme Court held that an accused person who considers that their s.11(b) rights are not being respected must raise the unreasonableness in a timely way (see J.F. at paras 30-36). This approach is consistent with the spirit of Jordan but I believe it is first time the Supreme Court has made it clearly that the defence has an obligation to assert the accused's s. 11(b) rights in a timely way. I appreciate that J.F. was a different case as it concerned a case where a new trial had been ordered and the defence complained about delay including the delay associated with the first trial which it had not previously complained about. Nevertheless, the Supreme Court of Canada's observations in J.F. remain relevant and require that the defence advise the Crown in a timely way if they take the position that their client's s. 11(b) rights have been violated.
46Here, the defence waited 4 months after setting the trial date to indicate the defence's intention to bring a s. 11(b) application. Four months in an OCJ prosecution is a long time: it is more than 22% of the 18 months the Crown has to complete the trial. I am aware that on September 26, 2022, the defence told the Crown that they were "contemplating" a s. 11(b) application: see the September 26, 2022 court transcript. However"contemplating" means no more than that the defence is considering bringing a s. 11(b) application. That contemplation did not materialize into a stated intention to bring a s. 11(b) application until another 3 months after that time when the defence took steps to schedule the application. I don't know if this case would have turned out any differently had the defence made their position known earlier but it is a contextual factor in my view. If a s. 11(b) application was brought earlier, the Crown could have sought to have this case tried earlier by proposing earlier dates where it could "stack" this case on top of other cases on an earlier date (convenient to the defence) and then call this case in priority to those other cases. The concept of "stacking" is well known in Brampton and the OCJ generally: see R. v. Tran 2022 ONCJ 182 at footnote 6. I am not saying that that would have happened here but it is merely an observation that it is important that the defence clearly make its position known in a timely manner on their intention to bring a s.11(b) application so that Crown can react.
47Of course, the Crown knew from the time that the trial dates were set that the dates were outside of the Jordan 18 month requirement: see the September 26, 2022 court transcript. However, the Crown did not necessarily know that there was a Jordan problem as it did not know for sure the amount of defence delay that might be attributed to the defence and perhaps how much delay might be due to Covid or whether the defence would assert their s. 11(b) rights. In any event, I view the direction from the Supreme Court of Canada in J.F. to be a freestanding obligation on the defence to advise the Crown in a timely way if they intend to bring a s. 11(b) application. The delay in bringing the s. 11(b) application here is strictly contextual and I attribute no specific defence delay on this point.
48Third, the major point that distinguishes this case from Hanan is that in Hanan the defence was offered only a single block of dates. In that case, a six week trial was needed. The defence was offered one block of dates namely June 3, 2019 for six weeks, take it or leave it.
49In this case, the Crown offered 12 blocks of three day trial dates between April and October 2023, followed by a further offer of eight blocks of three day trial dates (there was significant overlap between the 12 block and 8 block dates). The defence was not available for any of the dates and it took the defence 21 days just to tell the Crown that they were not available for any of the dates.
50I note that in this case, on January 26, 2023, defence counsel specifically invited the Crown to seek to prioritize this case. When the Crown did that by offering 12 three-day blocks of dates, it took the defence 21 days (until March 29, 2023) to tell the Crown that they were not available on any of the dates offered including the eight blocks of dates which included some new dates. The defence did say that they were available for a trial starting May 10-12, 2023.
51The Court also needs to look at whether the dates offered to the defence were reasonable such that there would be sufficient time to prepare for trial. Some courts have held that if the dates offered are too soon then the defence should not be held responsible for the delay if they decline the dates: see Justice Duncan's decision in R. v. Qureshi 2023 ONCJ 189 at para 19. Whether a date is too soon will depend upon the nature of the case including whether pretrial motions are required.
52In this case, it is a three-day trial with no pretrial motions. A three day trial with no pre-trial motions is a routine case in the OCJ. I note as well that on March 28, 2023, defence counsel Mr. Locke was able to accept new dates of May 1-3, 2023 in another case although I do not know the nature of that case. This was just over 4 weeks from the date they were accepted to the beginning of trial. In my view, 6 weeks preparation would have been plenty of time to get the B.D. case ready for this trial.
53In my view, while there is a strong argument that the defence should be responsible for all the delay after April 26, 2023 (which is the day the trial could have been completed if the dates of April 24-26, 2023 had been accepted and which was just over 6 weeks after the March 8 offer of dates). However, I have ultimately determined that the defence should only be held responsible for 50% of the delay after April 26 until the anticipated end of trial on November 22, 2023. The total time here is 210 days. Half or 50% of the time attributable to the defence is 105 days. This is the delay that can fairly be attributed "solely or directly" to the defence. Attributing 105 days to defence delay fairly takes into account all of the circumstances including the original reason for the delay between August 31, 2022 and November 22, 2023 namely the institutional "fault" of the Court; the delay by the defence in waiting 4 months after the trial date was set to advise the Crown of their clear intention to bring a s. 11(b) application; the fact that the dates of April 11-13, 2023 and April 17-19, 2023 were too soon to allow adequate preparation and should not count as defence delay; the fact that another 10 blocks of dates from April 24-26 to October 23-25, 2023 were offered to the defence and the defence was not available for any of these dates but was available May 10-12, 2023 for a three day trial (when the Court was not available); the fact that having invited the Crown to prioritize this case, when the Crown offered 12 blocks of earlier dates it took the defence 21 days just to tell the Crown that they were not available for any of the dates offered; and this approach takes into account the fact that the Court did not offer every single day between April 26 and November 22, 2023 but the Crown and the Court did offer multiple dates in April, May, June, September and October.
Summary of defence delay/exceptional circumstances
54I have determined that there are 96 days (section (a) above); plus 45 days (section (b) above); plus 21 days (section (d) above); and 105 days (section (e) above) for a total of 267 days of defence delay. I would also add 14 days for the delay associated with the zoom procedure in the trial coordinator's office which is Covid related and is delay associated with the pandemic as an exceptional circumstance (section (c) above). Therefore, the total defence delay and delay due to exceptional circumstances is 281 days.
55The net delay is 793 days less 281 days which is 512 days or about 17 months. The net delay is under the Jordan 18 month ceiling.
56I did not understand the defence's submission to be that if the delay was under 18 months that a stay should nevertheless issue. It is my conclusion that the defence cannot establish the requirements for a stay where the delay is under the 18 months. In particular, the defence has not established that they took meaningful steps to demonstrate a sustained effort to expedite the proceedings. For example, the defence took four months to tell the Crown that their client's s. 11(b) rights were being infringed and then they were unable to accept any of the 12 blocks of dates offered by the Crown in this case. Further, I don't consider that this case took markedly longer than it reasonably should have.
57I have not considered the Crown's submission that there was a further "ripple effect" delay due to Covid as it is not necessary that I do so.
58Accordingly, for the reasons given, the s.11(b) application is dismissed.
Released: May 31, 2023 Signed: Justice Paul F. Monahan