Court File and Parties

DATE: July 23, 2024 Information No.: 40003244-00

ONTARIO COURT OF JUSTICE

HIS MAJESTY THE KING

V.

AIRGAMA ABAYA

RULING ON APPLICATION FOR STAY OF PROCEEDINGS

BEFORE THE HONOURABLE JUSTICE B. BROWN

On July 23, 2024, at TORONTO, Ontario.

APPEARANCES:

P. Kaur, Counsel for the Crown J. Read, Counsel for Airgama Abaya

Endorsement

TUESDAY, JULY 23, 2024

THE COURT: Mr. Airgama ABAYA was charged on June 19th, 2022 with operating a conveyance while his ability to operate it was impaired to any degree by alcohol or a drug, or both, and within two hours after ceasing to operate a conveyance, having a blood alcohol content that was equal to or exceeded 80 milligrams of alcohol in 100 millilitres of blood. He was charged in an Information that was sworn on July 7, 2022.

The trial was commenced on December 7, 2023. At the outset, before the commencement of the trial, the Court addressed counsel regarding the Charter materials that had not been received by the Court, being the judge doing the trial. The Court also addressed with the counsel the fact that the Court was unavailable on the third day scheduled for the trial, being December 28, 2023. The Court advised counsel that the Court had previously booked leave for that date, long before being assigned to preside over the subject trial. The trial continued on December 8, of 2023. The trial had been previously scheduled for the third day, which had been unavailable. This meant that there would have to be a third day set aside for the continuation of the trial.

The applicant has brought a s. 11(b) Charter application, alleging that his right to be tried within a reasonable time was breached, and requesting a stay of proceedings. The application was brought on January 10, 2024, and argued on March 1, 2024. The Court reserved its reasons on the s. 11(b) application. The case was put over to March 27, 2024, for further evidence in the trial. The evidence in the trial was completed, and submissions by counsel were completed, and the case was put over to May 15, 2024, to schedule a date for the rulings on the 11(b) application, the blended Charter voir dire, and a judgment on the trial proper. The Court advised counsel that it would be in a position to deliver its reasons and render judgment in this case on or after June 21, 2024. Due to matters on the schedule of defence counsel, this case was not scheduled to be heard until today, July 23, 2024.

This is the ruling on the application for a stay of proceedings arising from the defence argument and submissions that there has been an unreasonable delay, contrary to s. 11(b) of the Charter.

Section 11(b) Charter Delay

Any person charged with an offence has the right “to be tried within a reasonable time.” Section 11(b) of the Charter states that “any person charged with an offence has the right [...] to be tried within a reasonable time.” In R. v. Jordan, 2016 SCC 27 (hereinafter referred to as Jordan), the Supreme Court of Canada set out a three-part rationale for this constitutional right. Firstly, unreasonable delay leaves accused persons “in a state of uncertainty, often in pre-trial detention”. Ensuring an accused is tried within a reasonable time helps safeguard “their interests in liberty, security of the person, and a fair trial.” It also prevents those accused persons who seek to “avoid responsibility for their crimes” from “embracing delay [...] in the hope that the case against them will fall apart or they will obtain a stay of proceedings”. (See paragraphs 2, and 20-21.)

Secondly, unreasonable delay in criminal matters worsens the suffering of victims and their families, “preventing them from moving on with their lives”. “Timely trials,” by contrast, “allow victims and witnesses to make the best possible contribution to the trial” and reduce interruptions to “their personal, employment and business activities”. (See paragraphs 23 and 24.)

Thirdly, unreasonable delay “undermines public confidence” in the administration of justice, as it “leaves the innocent in limbo and the guilty unpunished.” Ensuring trials are held within a reasonable time thus fosters community support in the justice system by assuring Canadians that they can “expect [...] quality justice in a reasonably efficient and timely manner”. (See paragraphs 25 to 27.) See also R. v. KJM, 2019 SCC 55 at paragraph 38, R. v. KGK, 2020 SCC 7 at paragraph 25, and R. v. JF, 2022 SCC 17 at paragraph 22.

The Court created a framework for presumptive ceilings in Jordan. The Court explained the need for a presumptive ceiling framework to address this issue in the future. The Court stated that a presumptive ceiling is required in order to give meaningful direction to the State on its constitutional obligations and to those who play an important role in ensuring that the trial concludes within a reasonable time: court administration, the police, Crown prosecutors, accused persons and their counsel, and judges. It is also intended to provide some assurance to accused persons, to victims and their families, to witnesses, and to the public that s. 11(b) is not a hollow promise.

In creating this new framework for assessing unreasonable delay in criminal cases, the Court in Jordan adopted “presumptive ceilings” beyond which delay from the charge to the actual or anticipated end of trial is considered unreasonable, absent exceptional circumstances. (See paragraphs 46-47.) It is noteworthy that the Court stated that the presumptive ceilings are not “aspirational target[s]” but rather “the point[s] at which delay becomes presumptively unreasonable.” (See paragraph 56.) They apply regardless of the nature of the charge[s] faced by the accused: R. v. Williamson, 2016 SCC 28 at paragraphs 34-38. What is more, there is no need for prejudice against the accused to be shown by way of “an express analytical factor;” instead, a breach of the ceiling creates an irrebuttable presumption of prejudice to the accused’s Charter-protected interests in liberty, security of the person and a fair trial. Jordan, supra at paragraphs 54 and 109-110. See also KJM, supra at paragraph 46, and JF, supra at paragraph 50.

The Supreme Court of Canada, in Jordan, at paragraphs 5, 46 and 56, set out the presumptive ceiling of 18 months for trials to be completed in the Ontario Court of Justice.

As has been the case for some time, the start of the S. 11(b) clock begins on the date the Information is sworn, not the date of the allegations, or the date on which a person may have been arrested. (See R. v. Kalanj, [1989] 1 SCR 1594). In the majority judgment of the Court, it stated that the s. 11(b) clock begins to run only “when an Information is sworn alleging an offence against [the accused], or where a direct indictment is laid against [the accused] when no Information is sworn,” and not on the date of arrest. (See paragraphs 16, and 11 to 21). This principle appears to remain notwithstanding the number of cases of the Supreme Court that have considered this issue of delay.

While the Supreme Court has made it clear that a person has s. 11(b) protection up to and including the day on which sentence is imposed, the timeline essentially ends before that stage. For the purpose of the timeline for Jordan ceilings, the timeline does not go beyond the end of trial or anticipated end of trial. It does not include verdict deliberation time. (See R. v. K.G.K., 2020 SCC 7, at paragraphs 31, 3, 23-24 and 31-50). The Court will not go into a consideration of these principles in greater detail, arising from the situation in the case at bar where the applicant has not made an argument which includes deliberation time.

At this point, the total period of delay from the date the Information was sworn July 7, 2022, to the last day of evidence and submissions in the trial of March 27, 2024, is a period of 20 months and 20 days. This is above the presumptive period of 18 months for a trial in this court, as set out in Jordan.

The defence initially conceded a period of 23 days of defence delay. Subsequently, the defence revised this to concede a period of defence delay of 32 days. Accordingly, the defence position is that the delay under consideration is one of 19 months and 18 days.

The Court would note that both parties appear to agree that there is no period of waiver of delay by the defence in this case. The court is also mindful of R. v. J.F., 2022 SCC 17, at paragraphs 44 to 48, which states that waiver cannot be inferred solely from the silence or failure to act of the accused, it must be clear and unequivocal.

It is important to note that the Supreme Court stated, in introducing the new approach in Jordan, at paragraph 5, that the framework is also to encourage all participants in the criminal justice system to cooperate in achieving reasonably prompt justice.

Once the total delay in a given case is determined in Step 1 of the analysis, Step 2 in the Jordan analysis requires the Court to subtract delay attributable to the defence from the total delay calculated at Step 1. This is because “[t]he defence should not be allowed to benefit from its own delay-causing conduct”. (See Jordan, at paragraph 60.)

Defence delay takes two forms: (1) delay waived by the defence; and (2) delay caused solely or directly by the defence’s conduct. “Defence actions legitimately taken to respond to the charges do not constitute defence delay”. (See Jordan, at paragraph 66.)

In determining whether there is any defence delay arising from waiver, this Court would note that the defence may waive specific periods of delay explicitly or implicitly, but in either case, the waiver must be fully informed, clear and unequivocal: (See Jordan). The Court noted that waiver can be inferred only from “some direct action” by the accused that tends to indicate consent to delay; it is necessary that the defence have turned its mind to the issue of waiver and the significance of its conduct in that regard. To be sure, an accused’s mere silence or inaction cannot ground a finding of waiver, although it can be “a relevant and important factor in the waiver inquiry,” as can defence lateness in bringing a s. 11(b) application. See JF, supra at paragraphs 43-52. Implicit waiver does not arise simply from the acceptance of the date. As noted above in this case, there is no waiver by the defence.

The second category of defence delay is delay caused by the defence. The Supreme Court has considered this issue in R. v. Cody, 2017 SCC 31. In that case, at paragraph 30, the Court stated that delay is caused by the defence when it “flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges.” Illegitimacy in this context is determined by the trial judge. The Court elaborated that “while trial judges should take care to not second-guess steps taken by [the] defence for the purposes of responding to the charges,” they should not hesitate to find defence action to be illegitimate when appropriate. Such action need not amount to professional misconduct to be qualified as illegitimate. (See paragraphs 31 and 35). The Court in Cody clarified this concept in paragraph 32 as follows:

32Defence conduct encompasses both substance and procedure — the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications, may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay, or if it exhibits marked inefficiency or marked indifference toward delay.

The Court in Cody stated at para 33 that inaction may amount to defence conduct that is not legitimate. (See Jordan, at paragraphs 113 and 121). Illegitimacy may extend to omissions as well as acts (see, for example in another context, R. v. Dixon, [1998] 1 S.C.R. 244, at paragraph 37). Accused persons must bear in mind that a corollary of the s. 11(b) right “to be tried within a reasonable time,” is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to “actively advanc[e] their clients’ right to a trial within a reasonable time, collaborate with Crown counsel when appropriate and ... us[e] court time efficiently” (Jordan, at paragraph 138). As the Court stated in paragraph 34, the concept of illegitimate defence conduct does not diminish an accused person’s right to make full answer and defence. Defence counsel may still pursue all available substantive and procedural means to defend their clients. What defence counsel are not permitted to do is to engage in illegitimate conduct and then have it count towards the Jordan ceiling.

In Jordan, the Court stated that “[d]eliberate and calculated tactics aimed at causing delay, which involve frivolous applications and requests, are the most straightforward examples” of defence-caused delay. It counselled trial judges to “generally dismiss such applications and requests the moment it becomes apparent they are frivolous.” (See paragraphs 63 and 65.) Also in relation to the “manifestly frivolous” threshold, the Supreme Court’s comments in R v Haevischer, 2023 SCC 11 are instructive. There is no such delay, the Court would find, in this trial.

Following the determination of the period of delay in Step 1, in Step 2 the Court deducts defence delay. This leads to Step 3, which gives rise to a determination as to whether the net delay (1) exceeds the applicable ceiling; or (2), falls below it.

While this Court will consider in greater detail the principles of the judgments of the Supreme Court of Canada in Jordan and other judgments below, it is also helpful to refer to the consideration of the Court of Appeal for Ontario in R. v. Coulter, 2016 ONCA 704, and its approach to the steps for calculating delay following the Jordan principles:

a) Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial; b) Subtract defence delay from the total delay, which results in the "net delay"; c) Compare the net delay to the relevant presumptive ceiling; d) If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut that presumption, the Crown must establish the presence of exceptional circumstances. If it cannot do so, a stay should follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases; and e) 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.

Accordingly, if the net delay exceeds the ceiling, it is presumptively unreasonable. However, the Crown may rebut this presumption as indicated, by showing that the delay is reasonable based upon the existence of exceptional circumstances. Where the Crown cannot justify the delay as reasonable based upon exceptional circumstances, the delay will be considered unreasonable and a stay of proceedings will follow. (See Jordan, at paragraphs 47, 56, 76 and 105.)

Exceptional circumstances are “the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling.” The seriousness of the offence(s) charged, any chronic institutional delay in the jurisdiction, and the absence of demonstrated prejudice to the accused, cannot be relied on to justify breaches of the ceiling (Jordan, paragraph 81). Nor does “the ultimate question of guilt or innocence” have any bearing on the reasonableness of delay in excess of the ceiling. (See Williamson, supra at paragraph 32).

In Jordan, the Supreme Court described exceptional circumstances as follows:

69Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.

70It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include 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. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful — rather, just that it took reasonable steps in an attempt to avoid the delay.

71It is obviously impossible to identify in advance all circumstances that may qualify as “exceptional” for the purposes of adjudicating a s. 11(b) application. Ultimately, the determination of whether circumstances are “exceptional” will depend on the trial judge’s good sense and experience. […]

The Jordan majority set out two general categories of exceptional circumstances (while noting that this list is not closed): (i) discrete events; and (ii) particularly complex cases (paragraph 71).

(i) Discrete events “result in quantitative deductions of particular periods of time” from the net delay determined at Step 3 of the Jordan analysis. To qualify as an exceptional circumstance, the discrete event in question must have been “reasonably unforeseeable or unavoidable.” Where this is the case, the delay occasioned by that event must be deducted “to the extent that it could not be reasonably mitigated by the Crown and the justice system.” (See Cody, at paragraph 48; see also Jordan, at paragraph 75).

Accordingly, the Court must first determine whether the event at issue was reasonably unforeseeable or unavoidable, and second, “whether the Crown took reasonable steps to remediate the error and minimize delay.” The Crown “need not [have] exhaust[ed] every conceivable option for redressing the event,” nor need it show “that the steps it took were ultimately successful”: Cody, at paragraphs 54 and 58-59. It need only “show that it took reasonable available steps to avoid and address the problem” and that it did so “before the delay exceeded the ceiling”: Jordan, at paragraph 70.

In Jordan, the Court set out the following examples of discrete events that may amount to exceptional circumstances:

• “medical or family emergencies (whether on the part of the accused, important witnesses, counsel or the trial judge)”: paragraph 72.
• certain “international dimension[s]” to a case, such as when the extradition of an accused is required: paragraph 72.
• unexpected developments at trial, such as when a complainant “recant[s] while testifying,” or when “the trial goes longer than reasonably expected – even where the parties have made a good faith effort to establish realistic time estimates”: paragraph 73 of Jordan.

A related issue arises where there are trial time estimates which underestimate the time required for trial. If this is done in good faith, the Court would note that scenario has been considered by the Court of Appeal in R. v. CG, 2020 ONCA 357 at paragraphs 3, 12 and 16 to 17 – note paragraph 12. In that case, the parties estimated 10 days for trial, but it took 30 days to complete. The trial judge in that case found it to be a complex case with relatively novel evidence called.

Even where there are discrete exceptional circumstances, the Crown must still (in addition to showing the event was unanticipated or out of its control), show it took reasonable available steps (eg. Case management) to avoid and address the problem before the delay exceeded the ceiling. If reasonable efforts are made by Crown to mitigate, all of the delay can be deducted in certain circumstances.

The Court would note that the COVID-19 pandemic has been described as a discrete exceptional circumstance, as one which could not have been foreseen or avoided. This was relevant more in past cases than the one before the Court today.

Case complexity can amount to an exceptional circumstance where the nature of the evidence or the nature of the disputed issues “require[s] an inordinate amount of trial or preparation time.” Cases may be especially complex owing to the nature of the evidence where they involve “voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, [and/or] charges covering a long period of time.” See Jordan, at paragraph 77. This is not a complex case.

The next issue for the Court to consider is when the defence should bring the s. 11(b) application.

Where the defence is aware of the length of time scheduled for a trial, and that gives rise to a concern regarding delay, the s. 11(b) motion should be brought and heard prior to trial. In Ontario, pursuant to the Rules for this court, the application should be perfected and brought at least 60 days prior to the first day of trial.

In JF, the Supreme Court observed that its decision in Jordan does not indicate exactly when, in the course of criminal proceedings, the defence is expected to file a s. 11(b) application. In view of the Jordan framework’s “prospective approach” and the “proactive” efforts it prescribes on the part of all justice system participants, the Court in JF held that accused persons should generally bring s. 11(b) applications before the trial is held: paragraphs 30-36.

JF does provide that “exceptionally, an infringement of the s. 11(b) right will reveal itself only once the trial has begun” and, for this reason, mid-trial applications are “not out of the question”: See paragraph 36. However, Jordan applications brought after trial will be “considered late” (See paragraph 37; see also paragraph 35). In situations where the trial is not completed, and continuation dates need to be set, the accused is required to act diligently and bring the application before the end of the trial (which is the conclusion of evidence and argument on the trial proper) where the delay crystallizes mid-trial. See R. v. Vallotton, 2024 ONCA 492.

If the application is manifestly frivolous, the Court can summarily dismiss the s. 11(b) application (See R. v. Haevischer, 2023 SCC 11, see also R. v. Green, 2020 ONCA 795 at paragraphs 105 to 115, R. v. D’Allesandro, 2018 BCCA 118 at paras 17-20, R. v. Felderhof, 2003 ONCA 37346 at para 40, R. v. Blom, 2002 ONCA 45026 at paragraph 22.

The Positions of the Parties

Applicant

The applicant(s) submits that the delay in this case is 20 months and 20 days, well above the presumptive Jordan ceiling of 18 months. The applicant submits that there have been ongoing disclosure issues leading up to the completion of the trial, as having caused unnecessary delay in completing this trial.

The applicant concedes that it is responsible for some of the delay, that is to say, periods within which the defence did not waive but exclusively caused the delay for a period of 32 days, as set out in the reasons.

This deduction for defence delay would result in a net delay of 19 months and 18 days, which exceeds the Jordan presumptive ceiling for a trial of this nature.

Respondent

The respondent takes the position that the applicant caused the delay from October 28, 2022, to February 22, 2023, a total period of 117 days, or 3 months and 25 days. In relation to this period, the Crown submits that it was ready to move the case along to a Crown pre-trial and setting the case for trial, but that the defence was unwilling to do so arising from the delay in disclosure of body-worn camera footage of PC Goga (the arresting officer), which included the only civilian statement from the other driver involved in the allegations, and the cell footage at the police station of the applicant, which was relevant to any symptoms of impaired ability after the completion of the breath tests, and potentially any Charter issue related to the Mok case.

Consideration of the Law Related to the Evidence in this Application

In considering the first block of time, from October 28, 2022, to February 22, 2023, the period that the respondent says is defence delay, the Court would note that the defence was waiting for important disclosure. As counsel finally moved to do a Crown pre-trial, and then a judicial pre-trial, the judicial pre-trial could not be completed due to the delay in disclosure of the material still outstanding (body-worn camera of PC Gogna, civilian statement of the other driver and the cell footage). This necessitated the scheduling of a second JPT, and the Court would note that just 2 days prior to this second JPT, disclosure was finally provided.

The Court would note that the delay in completing a JPT arising from the failure to disclose the material sought by the defence, is in and of itself, a sufficient basis for this Court to find that it was relevant to the process of providing a suitable time estimate, which is necessary before setting any matter for trial. The Court finds that this was not defence delay.

In considering the second block of time, from March 8, to March 20, 2023, the Court notes that a Crown pre-trial had been held on February 22nd of that year and counsel sought to schedule a JPT. The first JPT date offered was March 8, 2023. The defence indicated it was not available until March 13, 2023. The defence concedes this 5 days of delay was arising from defence unavailability. The Court would note that at that time, disclosure remained outstanding.

As noted above, the JPT for March 13, 2023, had to be rescheduled. The Court finds that the reason for this related to the outstanding disclosure, not a memo to the Crown. There was a need for a second JPT, which was scheduled and did take place on March 20, 2023.

The next block of time under consideration is from March 20th to April 12th of 2023. This is a period of 23 days which the defence concedes as defence delay. Over that period, counsel had time estimates from the JPT process and form, however, the defence sought a period of time to meet with the applicant and get instructions.

The next block of delay under consideration is from April 12, 2023, to December 8, 2023. The Court would note that the first dates available for 3 days for trial for this case, were December 7, 8 and 28. The Court notes that the Crown materials are in error, stating that the third day was for December 14th, of 2023. The 3 day trial time estimate arose from a JPT where the applicant indicated that it would raise Charter arguments in relation to Sections 8, 9 and 10(b) of the Charter. The defence made no mention of Section 7 of the Charter, which was only raised on the second day of trial. The JPT form also refers to a potential constitutional challenge, but it does not appear from the form that it was allowed for in the 3 day trial time estimate. Obviously, it should have been scheduled as a pre-trial motion, had it been contemplated. There was no constitutional challenge to s. 320.27(2) of the Criminal Code. The Court would find that none of the period leading up to the start of the trial, December 7, 2023, was delay caused by the defence within that block.

The Court is troubled by the events on November 14, 2023, when the Trial Coordinator’s office advised that the judge scheduled for the 3rd day of the trial, December 28, 2023, was not available for the third date. As of that point, the applicant had filed its Charter application, and added s. 7 to the Charter application beyond what was contemplated by the judge doing the judicial pre-trial time estimate. For reasons perhaps purely attributable to no more than wishful thinking on the part of the applicant and respondent, they each took the view that two days might be enough trial time. No arrangements were made in November to have a continuing JPT to re-visit the time estimate and perhaps find an alternate 3rd day of trial. The Court would note that if counsel had taken steps at that time, there might have been earlier dates available for a 3rd day of trial. However, given that was not done by either counsel, the record is silent in that regard. Certainly with the benefit of hindsight, the Court would note that counsel should have taken those steps. However, and most importantly, there is no evidence to support an inference that there was illegitimate conduct on the part of the defence in delaying the s. 11(b) motion until early 2024, nor is there any evidence that the timing of this application deprived the Crown of the ability to mitigate delay by obtaining earlier dates. The defence had orally indicated its desire to bring the application before actually bringing it and the Crown approached the Trial Coordinator’s office for earlier dates than March 27, 2024, but the record is clear that those dates were not suitable.

As of the completion of the 2nd day of trial, on December 8, 2023, it was apparent that a third day was still required to complete the evidence, and the submissions of counsel in this trial. On that date, the Trial Coordinator offered for the 3rd date of trial of March 6, 7, 15 and 25, dates on which the Crown was available and the defence was not available. The Court was available on March 20, but at that time the defence indicated it was unavailable due to a conflict with another trial. The defence was available on the March 27 date when the Crown was also available and that date was booked.

This Court would note that it was always anticipated that this would be a 3 day trial. The case has required 3 days of trial time. While the Court agrees that the applicant expanded its Charter application slightly by adding another officer regarding a potential s. 7 Charter breach, there would have been a need to finish the evidence on other points, and for counsel to make their submissions in any event. The Court would find that on the dates offered to the defence in March of 2024, when the defence was unavailable, this arose from defence counsel being booked to do other cases. The case law is clear that the defence is not required to be perpetually available for continuation dates. See R. v. Godin, 2009 SCC 26, where the Court previously stated that defence counsel are not required to “hold themselves in a state of perpetual availability” and thereby required to accept the first date offered. More recently, in R. v. Picard, 2017 ONCA 692, at paragraph 113, it was an error to attribute delay to defence as soon as a single available date is accepted and the defence is not available. Section 11(b) requires reasonable availability and cooperation. See also R. v. Albinowski, 2018 ONCA 1084, at paragraphs 31-33 and 46. The Court must take a contextual approach, consider the circumstance and whether in relation to a particular period of time, the defence refusal of the date is the sole or direct cause of the resulting delay. See R. v. Hanan, 2022 ONCA 229, and the judgment of that case at the SCC, 2023 SCC 12 as well. There is no “bright line interpretation” of periods of delay related to defence unavailability, as was also discussed by Justice Duncan in R. v. Qureshi, 2023 ONCJ 202.

The Court would note that the defence had already indicated, prior to the start of the trial, that it would raise a s. 7 Charter argument, but expanded it slightly to include the other officer in the application. The defence has conceded further defence delay arising from unavailability on the four separate days offered in March, being March 6, 7, 15 and 25. This would result in a defence concession of defence delay totalling 32 days, as set out above. The Court would note that even if the Court found that some of this additional period of this delay to schedule the 3rd day of trial arose from defence unavailability, for example from March 6, 2024, to March 27, 2024, and given the principles in the case law allocated what would have been reasonable being half of that delay to the defence, this would have resulted in a further defence delay of 10.5 days, or 10 days. This would have added a period of only 5 more days of defence delay, which would have resulted in a period of delay of a total of 19 months and 13 days. See Jordan, paragraph 64, R. v. Hanan, 2023 SCC 12 at paragraphs 2 and 9 and R. v. Boulanger, at paragraphs 7 to 9. Such a deduction would make no difference in the ultimate analysis as noted below.

In the analysis, the Court accepts the defence concession of 4 days of further defence delay during the period between December 8, 2023 and March 27, 2024. This brings the total defence delay in this case, as indicated above, as being 32 days.

While it would have been optimal for the defence to bring the s. 11(b) Charter application prior to the commencement of the trial, it would not have been an application in compliance with the rules. The situation of not having the third day for trial available on December 28, was not known to the applicant until just a few weeks before the trial. A s. 11(b) application is to be brought 30 days before the trial, and the preparation of contents of the application would be somewhat delayed given the need for transcript and other material for an application. The Court understands why counsel just chose to hope for the best, in trying to do the trial within the actual two days available. Counsel did, shortly after that date, when the third day for trial was known, proceed expeditiously with the s. 11(b) application.

In summary, after considering the law, and the evidence in this application, the Court notes the following: After deducting defence delay from the period of 20 months and 20 days, this would give rise to a calculation of net delay of 19 months and 18 days, absent exceptional circumstances.

The delay exceeds the presumptive ceiling of 18 months. The onus is on the Crown to show that delay was reasonable. In paragraph 81 of Jordan, the presence of exceptional circumstances is the only basis on which the Crown can discharge its burden to justify a delay that exceeds the ceiling.

As indicated, there is a long line of cases that have described the COVID-19 pandemic to have caused a backlog, and following the end of the pandemic, a ripple effect in the scheduling of cases in the court. See R. v. Agpoon, 2023 ONCA 449, R. v. Meawasige, 2023 ONSC 2907, R. v. G.S., [2022] O.J. No. 4198, R. v. Balasubramaniam, [2023] O.J. No. 218. In this case, the Court has a great deal of experience sitting as a front line judge, albeit at Old City Hall, to and including the end of May of 2023. The Old City Hall court processed a very high volume of cases during the COVID-19 pandemic, which resulted in a situation where there was very little, if any, backlog. This Court is well aware of this situation being rare or exceptional, and unique, in a positive way, within Ontario. Then in May 2023, this Court combined with the other Toronto Courts, commingling the effects of the COVID-19 pandemic with the other Courts in Toronto. It appears to this Court that the subject case did not originate from the Old City Hall case load. The Court does not have a lot of local experience regarding the backlog for the COVID-19 pandemic in the other courts. Accordingly, the Court is hesitant to apply any local knowledge in considering this issue.

What is more pertinent, is the effects on delay caused by the Court’s inability, from May 2023 until the end of 2023, and into the early part of 2024, to proceed with its cases due to staff shortages. This was a situation well known to the Court, counsel, and in the media, over the months of this event. It is a fact well known to the Court, but for some reason it has not been argued by counsel. Since that time, the Court has also been grappling with an increasing problem with shortages of judges to hear the cases in this court. Again, that is not in evidence in this case. At this point, the Court is concerned that if there is a ripple effect from the COVID-19 pandemic, and the Court is not comfortable at this point taking that into account for this case, there may very well have been a commingling of factors caused by court closures arising from staff shortages and potentially, more recently, by shortages of judges in this court. The judge shortage factor is one well known to the judges of this court. The Court is not going to consider what might be a discrete and exceptional circumstance caused by a factor not put before the Court in evidence, and not argued by counsel.

In all of the circumstances, the Court is disinclined and will not deduct a period of 30 days for the ripple effects of the COVID-19 pandemic related to these cases, arising from an exceptional circumstance.

There are no discrete events in this case which could qualify as an exceptional circumstance. The Court also finds, as noted above, that the 3 day trial time estimate was generally accurate, being sufficiently robust to accommodate a slight expansion to the Charter applications anticipated. This is not a situation where the case took longer than expected. This is also not a particularly complex case, it is an impaired and over 80 case which is very common in this court, with standard Charter arguments. There is a single accused and no pre-applications.

This leaves a net delay of 19 months and 12 days. As the Supreme Court of Canada noted in Jordan at paragraph 56, the presumptive ceiling of 18 months is not an aspirational target. It is the point at which delay becomes presumptively unreasonable. None of the exceptional circumstances have been found to exist in this case. The Court finds that s. 11(b) of the Charter was infringed, and the Court imposes a stay under s. 24(1) of the Charter.

As a result, the Court is not going to deliver reasons with respect to the other Charter applications or the ultimate issue. Thank you.

FORM 3

ELECTRONIC CERTIFICATE OF TRANSCRIPT (SUBSECTION 5(2))

EVIDENCE ACT

I, Vivian Goneau, certify that this document is a true and accurate transcript of the recording of R. v. Airgama Kirubel Abaya, in the Ontario Court of Justice, held at 10 Armoury Street, Toronto, Ontario, taken from the recording 4810_905_20240723_094440 6_BROWNBE, certified in Form 1.

July 31, 2024 (Signature of Authorized Person)

Vivian Goneau ACT ID: 5406742742

A certificate in Form 3 is admissible in evidence and is proof, in the absence of evidence to the contrary, that the transcript is a transcript of the recording of evidence and proceedings in the proceeding that is identified in the certificate.