Court File and Parties

Court of Appeal for Ontario Date: 2024-10-30 Docket: COA-24-CR-0023

Before: Fairburn A.C.J.O., Zarnett and Favreau JJ.A.

Between: His Majesty the King, Appellant and J.S., Respondent

Counsel: Dana Achtemichuk, for the appellant Leo A. Kinahan, for the respondent

Heard: March 21, 2024

On appeal from the stay entered by Justice Jonathan Dawe of the Superior Court of Justice, dated March 24, 2023, with reasons reported at 2023 ONSC 1938, 535 C.R.R. (2d) 344, allowing an appeal from the conviction entered on December 16, 2020, by Justice Bruce Frazer of the Ontario Court of Justice.

Fairburn A.C.J.O.:

A. Overview

[1] This is a Crown appeal from the decision of a summary conviction appeal judge quashing the sexual assault conviction of the respondent and staying the proceedings on the basis of unreasonable delay contrary to s. 11(b) of the Canadian Charter of Rights and Freedoms.[^1]

[2] The respondent was charged with sexual assault on August 28, 2018. The Crown elected to proceed summarily.

[3] The trial was initially scheduled to be heard over six days starting on November 4, 2019. Numerous witnesses testified. As a result of various factors, including an unexpected issue arising from a witness’ evidence, the trial was not completed on schedule. In fact, the evidence was not complete until November 24, 2020.

[4] Once the evidence was in, the respondent argued his previously filed s. 11(b) Charter application. The trial judge dismissed the application. Although there was no dispute that the total delay was 27.5 months, the trial judge found that the net delay was below the 18-month presumptive ceiling. The trial judge then delivered his reasons for judgment. The respondent was found guilty of sexually assaulting the complainant while she was unconscious.

[5] The respondent appealed to the summary conviction appeal court, claiming that the trial judge erred in numerous respects, including in his s. 11(b) analysis.

[6] The summary conviction appeal judge agreed that there was a breach of s. 11(b). On his analysis, the root of the problem was the trial judge’s extended unavailability stemming from his per diem status and extended winter vacation schedule. As the summary conviction appeal judge saw it, the problem was that when the initial trial estimate proved to be too short — partly because of unexpected events and also because of Crown decisions — the respondent could not be offered sufficient continuation dates within a reasonable time because the trial judge was unavailable. Thus, on his analysis, the trial judge should not have deducted the period from December 2019 to May 2020 as defence delay. The summary conviction appeal judge ultimately concluded that, although other periods were properly deductible on account of defence delay and discrete exceptional circumstances, the net delay was still above the presumptive ceiling by one month and one week. Accordingly, he set aside the conviction and entered a stay of proceedings.

[7] The Crown, who has already been granted leave to appeal by a different panel of this court, submits that the summary conviction appeal judge erred by:

• not deducting the period from November 13, 2019 to May 6, 2020 as delay caused by discrete exceptional circumstances (November 13, 2019 is the date the trial was first scheduled to end and May 6, 2020 is the second date it was scheduled to end); and
• in the alternative, reversing the trial judge’s attribution of defence delay during a five-month period (December 2019 to May 2020).

[8] With respect, I agree that the stay of proceedings must be set aside. As I see it, a discrete exceptional circumstance arose during the first set of trial dates — primarily an unexpected problem with a witness’ evidence. Looking at the Crown’s response through a reasonableness lens, the trial Crown and the court acted reasonably in responding to the exceptional circumstance. The Crown was prepared to make herself available for all but one of the nine dates that were offered in wake of this exceptional circumstance, dates that would have resulted in the trial being finished under the Jordan ceiling of 18 months for matters proceeding in the Ontario Court of Justice: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 64. Unfortunately, it was the defence that was not available on eight of the nine continuation dates that were offered. When the exceptional circumstances are properly accounted for in this case, there was no unreasonable delay.

B. Background

(1) The sexual assault

[9] The respondent and complainant did not know each other but attended the same house party.

[10] Over the course of the party, a large amount of alcohol was consumed, including by the complainant. After she either fell asleep or passed out on the hosts’ bed, the hosts placed her in a bed in a spare bedroom. She was left there fully clothed.

[11] Later that evening, the complainant was seen naked from the waist down and unresponsive, with the respondent engaging in a sexual act on her. A commotion ensued. One of the complainant’s friends attempted to wake her up by yelling at her, shaking her, picking her up and dropping her back onto the bed, but she remained largely unresponsive. H.W., one of the hosts, tried to intervene and asked the respondent to leave the residence.

[12] When the complainant awoke the next morning, she was still naked from the waist down. She had no memory of the events of the previous evening and no knowledge of who the respondent was. To her, he was a stranger and remained so even after the sexual activity had taken place.

[13] At trial, the complainant testified that she remembered virtually nothing about what had happened to her, other than that she had been drinking and then woke up the next morning naked from the waist down. In contrast, the respondent testified that the initial sexual encounter, one that mainly involved kissing, was entirely consensual. He testified that he could recall little after that since he was also very intoxicated.

(2) History of the proceedings

[14] It is necessary to review the chronology of the proceedings before turning to the proper characterization of the delay, particularly the delay between November/December 2019 and May 2020.

(a) Lead-up to trial

[15] The information was sworn on August 28, 2018.

[16] On December 20, 2018, a judicial pre-trial was held, following which trial dates were offered for a six-day trial as early as October 28, 2019. The defence was not available that week and, therefore, the trial was scheduled for November 4, 5, 6, 7, 12 and 13, 2019. Had the trial been completed on these dates, it would have taken less than 15 months from charge to completion. As will be explained, the trial went ahead on the scheduled dates but was not completed because of unexpected events.

[17] Because the respondent was a police officer with the local police service, the defence thought that it was a good idea to have an out-of-town judge preside over the trial. A second judicial pre-trial was held to confirm the trial dates and to direct the trial coordinator to find an out-of-town judge who could accommodate the dates that had been scheduled. Everything went according to plan and, ultimately, the trial dates that had been secured at the first judicial pre-trial were confirmed.

(b) The trial commences on originally scheduled dates

[18] The trial commenced on Monday, November 4, 2019, as scheduled. The record reflects that all were optimistic that the evidence would finish within four days. The optimism remained even at the end of the second day when the trial Crown said that she expected to complete calling her witnesses by noon on the fourth day, Thursday, November 7. Then things unexpectedly changed.

[19] The Crown’s third witness on Wednesday, November 6 was H.W., who had important evidence to give as he was present in the home when the sexual acts were discovered and was the one who asked the respondent to leave the party. All were prepared to sit until 5:00 p.m. that day to ensure that H.W.’s evidence was completed.

[20] Unfortunately, H.W. disputed whether he had said something to the police that was reflected in the transcript produced from his recorded interview. It involved an important issue, specifically what he had told the police about the respondent’s condition at a certain moment in time. It became clear that, in light of this dispute, H.W.’s evidence would not be completed by 5:00 p.m.

[21] Given H.W.’s professional commitments the next day (he is a psychotherapist), he asked if he could return at another time so as not to have his patients impacted by the late notice. The trial judge scheduled his return for the fifth scheduled date, Tuesday, November 12.

[22] In the meantime, on Thursday, November 7, the day started with a good deal of back and forth between the parties. The trial Crown explained the steps she had taken to have the recording enhanced so as to solve the uncertainty around what H.W. had actually told the police. In addition, defence counsel said that he might bring a mistrial application since the Crown had previously agreed that the transcripts from the witness interviews were accurate and was now uncertain given H.W.’s evidence. In light of these circumstances, defence counsel thought that the complainant should not testify until after the potential mistrial application was decided, to prevent the possibility of having her testify twice. The trial Crown took a different view, noting that she wanted to be “fair” to the complainant, but also that she did not want to lose a day of court time. In the end, it did not matter because defence counsel had to be in court in a different location that afternoon. Accordingly, all agreed to simply adjourn the matter to November 12, 2019.

[23] On the November 12, H.W. returned and took the stand before the respondent’s mistrial application was heard. His video statement was played, after which H.W. acknowledged that the transcript was consistent with what he had told the police. He simply provided an explanation for why what he had told the police was incomplete. Regardless, the matter was solved, there was no need for a mistrial application, and the trial proceeded.

[24] Before the end of H.W.’s cross-examination, inclement weather rolled in and the trial judge thought it wise to end court early. This again left the cross-examination incomplete. Unfortunately, H.W. was unable to return the next day — the last scheduled trial date — owing again to his professional commitments.

[25] Therefore, on the 13th, the complainant testified. Her evidence was completed that day. This left the final bit of H.W.’s evidence to finish and then the trial Crown would close her case. Defence counsel also indicated that he would likely call evidence. Therefore, more dates were required.

(c) The canvassing of continuation dates

[26] Continuation dates were canvassed at the end of court. As it turned out, the trial judge was up against a vacation schedule. Being a per diem judge, he would be off on a prescheduled annual vacation, starting January 1 and running through to March 31, 2020. Accordingly, the pressure was on to find the dates.

[27] While still in court, the trial judge gave three options for dates within the next several weeks: November 25, and December 2 and 3, 2019. The trial Crown and court were available on those dates, but the defence only had available December 2. The trial judge noted that this happened “every year”, that he would “either run out of dates or [have] had enough for one year.”

[28] Accordingly, the December 2, 2019 date was secured and the trial judge noted that they needed “to use as much time as we can.” Indeed, he informed the respondent that if he decided to testify, then it would happen immediately after H.W.’s evidence was completed and the trial Crown closed her case on December 2.

[29] Eventually, the matter was put over to November 22, 2019, to be spoken to, so that additional dates could be secured. In the interim, on November 15, the trial coordinator wrote to the parties, providing them with numerous additional dates that the trial judge had provided to her: November 15, 18, 19, 25, 26, 27, December 2, 3 and 4, 2019. In total, nine dates were offered, including December 2, which had already been set. [^2]

[30] Crown counsel was prepared to make herself available for all of the dates but one, whereas defence counsel was not available for any of the dates, except one, the date that had already been set.

[31] In his email response to the trial coordinator’s message regarding dates, defence counsel proposed either: (i) setting the date of December 2 and then continuing with dates in April 2020; or (ii) trying to find dates in January or February with another judge and declaring a mistrial and starting the whole trial over. [^3]

[32] The Crown responded that she would not consent to a mistrial and, in fact, would oppose any such application. She noted that she and the court were available for eight of the nine additional days that had been offered. In her view, they should proceed on December 2 and see how far they got. As for December 2, the Crown had to cancel her vacation day to accommodate the continuance and asked the defence to make similar “reasonable adjustments” to his schedule to accommodate the need for ongoing dates and to get this trial completed.

[33] Defence counsel reiterated his unavailability for the continuation dates in the coming weeks. At the same time, he said that he was not waiving s. 11 (b) and would be available for “other dates” in December, January and February. He did not say what those dates would be. He did, though, provide eight days that he was available in April of the following year.

[34] The Crown responded as follows:

If 11b is an issue, then I would suggest that it is incumbent on crown and defence to make reasonable adjustments to their schedules to accommodate the court schedule – I have cancelled a vacation day on December 2 to be available for this trial continuation and would have to rearrange other cases in my schedule to accommodate other trial continuation dates but I would do it – if there are other dates in December that defence is available, perhaps you could advise the trial coordinator of that and we can canvas with the court if that is workable for the judge – at this point, we will continue with the trial on December 2 and hopefully we can complete the evidence and proceed from there – thx. [Emphasis added.]

[35] The record does not reflect that the defence ever provided his other December dates.

(d) Continuation on December 2, 2019

[36] As expected, when the parties returned to court on December 2, 2019, it took very little time to complete H.W.’s’ evidence. The Crown closed her case before 11:00 a.m.

[37] Defence counsel then asked for an adjournment to the next date as the respondent would be testifying and his evidence might not be completed that day. Defence counsel did not want to start his evidence if it would possibly have to be adjourned to be completed months later. The Crown was ready to proceed, but recognized the practical issue faced by the respondent and so did not oppose the request. Therefore, the matter was put over to April 6, 2020.

[38] Before breaking for the day, the trial judge told the parties that if there was to be a s. 11 (b) application, that it would be “inappropriate” for him to hear the application given the role his schedule may have played in the matter going over to April 6, 2020.

[39] At that point, defence counsel said that he was not sure if he would bring a s. 11 (b) application.

(e) Section 11(b) application

[40] The respondent did decide to bring a s. 11(b) application before another Ontario Court of Justice judge on February 27, 2020. She declined to hear it for lack of jurisdiction.

[41] The respondent then brought an application for judicial review by way of mandamus in the Superior Court of Justice. The application was originally scheduled to be heard March 18, 2020. Of course, just prior to that date, court operations were suspended because of the COVID-19 pandemic. Accordingly, the mandamus application and the April 2020 trial dates did not go ahead as scheduled.

[42] The matter was adjourned throughout the summer, with the parties next appearing on August 24, 2020. At that appearance date, the trial Crown wanted to set the continuation trial dates, but defence counsel wanted to still pursue the mandamus application. The application was later scheduled for October 2, 2020. Therefore, the mandamus application was permitted to go ahead. It was dismissed on October 14, 2020.

[43] After the dismissal of the mandamus application, defence counsel advised that he wanted to pursue an application for reasonable apprehension of bias on the part of the trial judge and, if that application was dismissed, wanted to pursue an amended s. 11(b) application. On October 23, 2020, trial continuation dates were provided for November 23 and 24, 2020. The applications were both scheduled to be heard on November 27, 2020.

[44] All evidence was completed by the end of November 24, 2020. The applications were then heard on November 27, 2020. On December 16, 2020, the trial judge gave reasons dismissing the applications, including the s. 11 (b) application, and also gave reasons for judgment.

(f) The s. 11(b) ruling

[45] There is no dispute that the total delay was 27.5 months.

[46] Of that time, the trial judge characterized a total of 8.5 months as defence delay and 11 months as discrete exceptional circumstances. Accordingly, as the trial judge saw it, this matter fell well under the Jordan ceiling of 18 months for matters proceeding in the Ontario Court of Justice: Jordan, at paras. 5, 46 and 49.

[47] As for the defence delay, the trial judge saw the defence as responsible for the following periods of time:

• October 28, 2019 to November 4, 2019 October 28, 2019 was the first offered trial date. While the Crown and court were ready to start the trial, the defence was not.
• December 2, 2019 to May 6, 2020 The trial judge found that the delay was attributable to the defence’s lack of availability when the Crown and court were ready to proceed.
• July 6, 2020 to October 14, 2020 The trial could not proceed until the defence mandamus application could be heard in the Superior Court of Justice.

[48] In addition, the trial judge concluded that 11 months, some of which overlapped with the defence delay above, was owing to discrete exceptional circumstances, as follows:

• December 20, 2018 to January 22, 2019 This one-month period between judicial pre-trials arose from the need to secure an out-of-town judge to hear the trial.
• January 1, 2020 to March 31, 2020 During this three-month period, the per diem judge was not available to sit because of his holiday schedule.
• March 15, 2020 to October 14, 2020 This 7-month period was consumed by the pandemic.

[49] On any calculation, the trial judge’s approach to defence delay and discrete exceptional circumstances resulted in this matter being completed well under the Jordan ceiling of 18 months.

(g) Summary conviction appeal decision

[50] The summary conviction appeal judge found error in multiple parts of the trial judge’s reasoning and largely redid the analysis. Although I will not review the decision in detail, I wish to highlight several aspects of his decision that feed into my analysis.

[51] First, in assessing what happened in November 2019, the summary conviction appeal judge found that the main reason the trial did not finish in the allotted time was because of the issue that arose with H.W.’s testimony. He agreed that it was not readily foreseeable that H.W. would dispute the accuracy of the transcript of his recorded police statement. However, he was critical of the Crown’s response, finding that different steps could have been taken to minimize or negate any delay. For example, he surmised that the trial may have ended on schedule if the trial Crown had changed the order of her witnesses (some of whom testified before H.W.), ensured that H.W. had cleared his professional calendar before testifying, denied him accommodation for his professional commitments, and called the complainant notwithstanding a looming mistrial application.

[52] In the end, he subtracted two weeks to account for the delay caused by the discrete exceptional events that arose during the first block of scheduled trial dates, including the delay that resulted from H.W.’s evidence running longer than anticipated. He was not persuaded that any further subtraction was warranted for the period December 2019 to May 2020, in part because of the trial judge’s unavailability while he was on his planned vacation.

[53] Second, although the summary conviction appeal judge found that the trial judge erred in characterizing the period of time following May 6, 2020, he nonetheless concluded that everything after that point in time was the product of discrete exceptional circumstances arising from the pandemic. Accordingly, although for different reasons than the trial judge, the summary conviction appeal judge subtracted 7 months and 1 week of delay from the total as discrete exceptional circumstances, covering the period from May 6 to December 16, 2020.

[54] Third, the summary conviction appeal judge agreed to subtract some time as defence delay, including the week following October 28, 2019 when the trial Crown was ready to proceed but the defence was not.

[55] In total, the summary conviction appeal judge found that the net delay was 19 months and 1 week.

C. Analysis

(1) Standard of review

[56] The trial judge's underlying findings of fact were owed deference by the summary conviction appeal court, as well as by this court.

[57] The trial judge’s legal analysis, though, including his characterization of periods of delay and the ultimate determination that the delay was not unreasonable, had to be correct: R. v. Jurkus, 2018 ONCA 489, 363 C.C.C. (3d) 246, at para. 25, leave to appeal refused, [2018] S.C.C.A. No. 325; R. v. Pauls, 2020 ONCA 220, 149 O.R. (3d) 609, at para. 40, aff'd R. v. Yusuf, 2021 SCC 2, [2021] 1 S.C.R. 5. Accordingly, the standard of review before the summary conviction appeal court was one of correctness.

[58] This appeal is one more step removed from the trial judge. It is an appeal from the decision of the Superior Court of Justice, not a second appeal from the trial judge’s decision: R. v. R.R., 2008 ONCA 497, 90 O.R. (3d) 641, at para. 24. This form of appeal must come within the confines of s. 839(1) of the Criminal Code, R.S.C. 1985, c. C-46, and thus must be based on a question of law alone. Accordingly, the question for this court is whether there exists an error of law in the summary conviction appeal judge’s characterization of a period of delay or in the ultimate determination of unreasonable delay.

[59] Respectfully, as I shall explain, there is such an error here.

(2) Starting point: net delay not more than 20 months

[60] As before, it is agreed that the total delay in this case is 27.5 months. As a starting point, I agree with the summary conviction appeal judge’s treatment of two periods, which brings that number down further.

[61] First, I am prepared to accept the summary conviction appeal judge’s treatment of the period following May 6, 2020 as discrete exceptional circumstances. Therefore, subtracting 7 months and 1 week on account of discrete exceptional circumstances, I start with a number that is just above the 20-month mark.

[62] Second, I am prepared to accept what both the trial judge and the summary conviction appeal judge agreed upon: that the week following October 28, 2019 was defence delay because the court and trial Crown were ready to proceed to trial but the defence was not.

[63] Therefore, my starting point is that 7 months and 1 week of exceptional circumstances plus 1 week of defence delay must be subtracted from the total delay, leaving 20 months of delay.

[64] I part ways with the summary conviction appeal judge on his treatment of the delay that was triggered by the unexpected problem with H.W.’s evidence. As I will explain, that period is deductible as delay arising from discrete exceptional circumstances, which takes this case below the presumptive ceiling.

(3) Additional deduction brings the delay below the ceiling

(a) Discrete exceptional circumstances

[65] Jordan makes clear that exceptional circumstances are ones that lie outside of the Crown’s control because they are: “(1) reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise” (emphasis in original): Jordan, at para. 69. Therefore, it is a two-part test.

[66] As recognized in Jordan, trials are “not well-oiled machines” and “if the trial goes longer than reasonably expected — even where the parties have made a good faith effort to establish realistic time estimates — then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance”: at para. 73.

[67] That is precisely what happened here. Although the parties made a good faith effort to establish realistic time estimates, things went awry when H.W. initially rejected the accuracy of the recording of his police statement. To use the expression from Jordan, this trial experienced an “unavoidable development” that caused it to “quickly go awry leading to delay”: Jordan, at 73. In other words, the first part of the exceptional circumstances test is met.

[68] The focus therefore shifts to what reasonable efforts the Crown took to respond and attempt to bring the trial in under the ceiling.

[69] Assessing whether the steps taken by the Crown were reasonable in the circumstances known at the time is a different exercise than asking whether, looking backwards, an alternative litigation plan could be envisaged — one with different choices about what witnesses should have been called and when. Rather, the relevant inquiry is whether the Crown acted reasonably to remedy the delay once the unforeseen circumstances arose: Jordan, at paras. 69, 74. With respect, the summary conviction appeal judge went beyond the proper scope of the relevant inquiry.

[70] The record in this case makes clear that the trial Crown took her responsibilities most seriously and did everything in her power to mitigate the delay once the problem arose. As previously noted, the trial was entirely on track — if not ahead of schedule — until the problem arose. Indeed, at the end of the second day of trial, the trial Crown expressed the view that she would close her case by November 7, 2019. By all accounts, she had a reasonable litigation plan and was executing on it. And, once the difficulty with H.W.’s evidence arose, she responded reasonably as events unfolded.

[71] The trial Crown immediately took steps overnight to have the audio recording enhanced and inquired about backup tapes.

[72] In addition, the trial Crown was prepared to proceed with the complainant’s evidence even in the face of a potential mistrial application. While the summary conviction appeal judge found to the contrary, as agreed by the parties on appeal, he was unfortunately not provided with the November 7, 2019 transcript.

[73] Having been provided with that transcript on appeal to this court, it is clear that the trial Crown was in fact prepared to call the complainant on November 7, 2019, despite the looming mistrial application. She acknowledged that this would run the risk of the complainant testifying twice but was specifically concerned with the loss of court time and so wanted to proceed. It is only after the Crown put these comments on the record, that it came to light that the defence could not be present at the trial during the afternoon of that day. This was because defence counsel had anticipated that the evidence would have been finished by that point and he had another scheduled court commitment in a different courthouse. It was only after it became clear that the trial could not proceed in the afternoon of that day, and therefore the complainant’s evidence could not be completed, that the Crown chose not to call the complainant.

[74] In addition, the trial Crown tried to schedule trial continuation dates, even vacating one of her own vacation dates to accommodate eight of the nine dates offered. She immediately moved to have the one date when the defence was available booked. And she urged defence counsel to adjust his schedule to accommodate the 2019 continuation dates that had been offered. She also urged defence counsel to make his available dates in December known to the trial coordinator.

[75] In summary, the two-part test for discrete exceptional circumstances was satisfied. Although not ideal, this justifies a delay of more than two months, which would bring the matter under the 18-month ceiling. Indeed, this court has previously concluded that a delay of 4.5-months to reschedule a matter after an exceptional circumstance arose, around the same amount of time as this case, was not “sufficiently long to render unreasonable” the conclusion that the entire time should be attributed to delay caused by discrete exceptional circumstances: R. v. Carbone, 2020 ONCA 394, 150 O.R. (3d) 758, at paras. 49, 54-58.

[76] I am fortified in this conclusion by the defence response to the pending delay.

(b) The defence response to the exceptional circumstance

[77] The practical problems associated with adjourning trials that have already started hardly require explanation. Trial judges and counsel do not simply wait passively until the next trial date arrives. Instead, they keep working on other matters — often many other matters. As time passes, it becomes increasingly difficult to simply pick up again and continue a trial where it left off. Memories fade, they need to be refreshed, transcripts need to be ordered, notes need to be consulted, and everyone has to go through the laborious task of trying to reorient themselves to where they were and what they were thinking many months earlier. Although this can obviously be done, it is less than ideal and, in fact, highly inefficient.

[78] Accordingly, when the need for continuation dates arises, it is incumbent on all justice participants to make best efforts to accommodate the earliest possible dates so that trials can finish close to on schedule. This will sometimes require the parties to assess and reassess their priorities and, where possible, adjust their schedules to accommodate the dates offered so as to avoid lengthy adjournments.

[79] In this case, the defence was offered numerous reasonable continuation dates in November and December 2019. This was not a circumstance where only one or two dates were offered well into the future, or where the trial could not finish close to the date that had been anticipated. Rather, nine dates were put forward as options and, had just one or two more been taken, the trial would have ended well under the ceiling. [^4]

[80] In the end, the matter was adjourned to April 2020 because, other than December 2, the defence was unable to accommodate the trial continuation dates that were offered for November and December 2019. With a few exceptions, [^5] there is little in the record explaining why the defence could not appear on the dates that were refused. Nor is there anything in the record explaining why the defence could not do as the Crown had requested and reprioritize other matters to get this trial completed. Although it may well have been that the defence had other commitments of equal or greater priority and could not reprioritize, the record is somewhat silent on this point.

[81] This is not to suggest that the defence must open up their calendars and tell all. It is to suggest, though, that where a discrete exceptional circumstance arises, it is incumbent on all to make best efforts to get the trial completed in as timely a way as possible. When the court and Crown are in a position to remedy the unforeseen circumstances in short order, but the defence cannot accommodate it through a reprioritization or otherwise, this necessarily informs the reasonableness of the length of the adjournment arising from the unforeseen circumstances.

[82] In this case, the circumstances drive toward the conclusion that the just-over four months from December 2, 2019 to April 6, 2020 constitute a discrete exceptional circumstance. The Crown and court made every reasonable effort to respond to the unforeseen circumstances and conclude the trial under the ceiling. This is so, even in circumstances where the unforeseen circumstances arose close to the ceiling. Indeed, one might reasonably observe that being offered nine continuation dates in the Ontario Court of Justice within a three-week period following the anticipated end of trial is somewhat remarkable. In the end, it was the defence schedule that prevented the continuation dates from being used, which would have allowed the trial to conclude under the ceiling.

[83] To be clear, this should not be construed as a criticism of busy defence counsel in this case. It is a reality that busy defence counsel have many competing obligations at work and, although the record is somewhat lacking here, I accept that defence counsel would have turned his mind to reprioritization and simply been unable to accommodate it. With that said, the fact remains that the Crown made reasonable efforts to respond to the unforeseen circumstances and conclude the trial under the ceiling: Jordan, at para. 74. The delay that ensued clearly qualifies as an exceptional circumstance and must be subtracted from the total period of delay.

[84] This leaves the net delay at around 16 months, well under the Jordan ceiling for matters proceeding in the Ontario Court of Justice.

[85] In light of this conclusion, I need not address the Crown’s alternative argument that the defence unavailability on the continuation dates that were offered means that there was defence delay from December 2, 2019 to April 6, 2020.

D. Conclusion

[86] For these reasons, I would admit the fresh evidence on consent, set aside the stay of proceedings and reinstate the conviction. I would also remit the matter back to the Superior Court of Justice for determination of the issues not dealt with on summary conviction appeal.

Released: October 30, 2024 JMF “Fairburn A.C.J.O.” “I agree. B. Zarnett J.A.” “I agree. L. Favreau J.A.”

Footnotes

[^1]: This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46. [^2]: It appears that some email exchanges between the trial coordinator and counsel were not filed as part of the record below, even though they were referenced in counsel submissions. The appellant seeks to have the emails admitted as fresh evidence. The respondent does not object to their admission on appeal, acknowledging that they should have been made part of the record below, but at the same time taking the position that they change nothing in terms of the result. [^3]: Although defence counsel also provided a third option, he later wrote back acknowledging that it was not jurisdictionally possible. [^4]: The respondent says that November 15 should not be counted since it was offered the morning of. Even if that date is not counted, the defence was still offered numerous and reasonable continuation dates. [^5]: For instance, defence counsel was out of the province on two of the days and was involved in a homicide preliminary inquiry on a third day.