Court File and Parties

Ontario Court of Justice

Date: 2020-03-05

Court File No.: 17-12534

Between:

Her Majesty the Queen

— and —

Irvinder Gill

Before: Justice Allison Dellandrea

Heard on: January 29, 2020

Reasons for Judgment released on: March 5, 2020

Counsel

Mr. Patrick Quilty — counsel for the Crown

Mr. Adam Little — counsel for the accused Irvinder Gill

Judgment

DELLANDREA J.:

Introduction

[1] This is an application by Mr. Gill for a finding that his right to a trial within a reasonable time under s. 11(b) of the Charter was breached, and for a stay of proceedings pursuant to s. 24(1).

[2] On February 26, 2020, I advised the parties from the bench that I was granting Mr. Gill's application, and imposing a stay of proceedings, with written reasons to follow. These are those reasons.

Introduction and Positions of the Parties

[3] On October 7, 2017, Mr. Gill was charged with the offences of "Over 80" and impaired driving, contrary to ss. 253(1)(a) and 253(1)(b) of the Criminal Code. The Information reflecting these two charges was sworn and laid before the court on October 17, 2017.

[4] Mr. Gill's third trial date is scheduled to begin before me on March 4, 2020. The first and second trial dates were adjourned following requests by the Crown.

[5] The total delay in this case from the commencement of the proceedings to the completion of the scheduled trial date is 29 months. The applicant acknowledges that approximately one month of delay should be attributed to the defence, based on their unavailability for two earlier trial dates which were offered prior to the November 21, 2018 trial date which was ultimately set.

[6] It is the applicant's position that the resulting "net delay" in this case is of approximately 28 months – which well exceeds the presumptive ceiling established by the Supreme Court of Canada in Jordan, and inverts the onus onto the Crown to justify the presumptively unreasonable delay.

[7] The Crown accepts that the total delay in this case is 29 months but suggests that when defence delay and "exceptional circumstances" are excluded from this period the net delay is more accurately 17 months, and thus under the Jordan ceiling. Further, the Crown submits that the applicant cannot establish that he took meaningful steps to demonstrate a sustained effort to expedite the proceedings, or that the case took markedly longer than it should have.

[8] Finally, the Crown advances the novel argument that even if the applicant has established a breach of s. 11(b), that a stay of proceedings is not the appropriate remedy.

[9] The following is a summary of the significant dates within the case chronology:

Date	Event
October 7, 2017	Applicant was arrested and released on a Promise to Appear: first appearance date of October 19, 2017.
October 17, 2017	Information was sworn and placed before the court.
October 19, 2017	First appearance. Counsel for the Applicant faxed a disclosure request to the Crown.
October 20, 2017	J. Lau appears on behalf of Applicant and files a Designation of counsel. Crown brief not available.
November 3, 2017	Initial disclosure provided.
November 5, 2017	Second disclosure request faxed to the Crown.
November 24, 2017	Undertaking was signed by Applicant's counsel for further disclosure.
December 15, 2017	J. Lau appears on behalf of the Applicant and identifies outstanding disclosure items, including breath room video. Crown indicates it will have a copy burned.
December 15, 2017	Counsel for the Applicant follows up – by submitting another letter for disclosure to the Crown.
January 5, 2018	J. Lau appears for the Applicant; identifies remaining outstanding items of disclosure. Some items provided by Crown, others not yet available. Matter adjourned to January 26th to complete disclosure.
January 5, 2018	Counsel for the Applicant submits another letter to the Crown requesting the remainder of disclosure.
January 24, 2018	Counsel for the Applicant faxes another disclosure request to the Crown.
January 26, 2018	Counsel appeared on behalf of the Applicant, indicating that he had been attempting to set a CPT with the assigned Crown. Assigned Crown not available until the following week. Adjourned to February 9, 2018.
January 29, 2018	Counsel for the Applicant faxed another disclosure request to the Crown.
February 9, 2018	J. Lau appeared on behalf of the applicant and a judicial pretrial was scheduled for February 26, 2018.
February 25, 2018	Counsel for the Applicant faxed another disclosure request to the Crown.
March 2, 2018	Trial date scheduled for November 19, 2018. Counsel expressed concerns on the record about outstanding disclosure items.
October 19, 2018	Counsel for the Applicant faxed another disclosure request to the Crown.
November 19, 2018	First trial date — adjourned due to outstanding disclosure (notes of two crucial police witnesses); Crown accepts responsibility for the necessity of the adjournment; Applicant expressly asserts his continued rights under s. 11(b). Second trial date scheduled for August 21, 2019.
August 21, 2019	Second trial date — Crown requests adjournment of trial, having recently learned from the officer-in-charge that one of the civilian Crown witnesses was unavailable due to her mother's sudden illness. Counsel for the Applicant indicated that he was "technically opposed" to the adjournment request, based on his client's continued rights under s. 11(b). The adjournment was granted. Application for stay of proceedings for unreasonable delay scheduled for January 29, 2020. Third trial date was set for March 2 – 4, 2020.

The 11(b) Analytical Framework

[10] The analytical framework for determining whether an applicant's time to trial has resulted in a violation of his or her rights under s. 11(b) of the Charter was recast by the Supreme Court of Canada in Jordan, 2016 SCC 27. The court in Jordan set what is now the well-known, bright-line rule that if the total delay in completing a case at the Ontario Court of Justice exceeds 18 months, the delay will be presumptively unreasonable, subject to consideration of case-specific exceptional circumstances.

[11] The first step in the calculation of the constitutionally relevant period of delay for the Jordan analysis is to identify and subtract any "defence delay" from the total. The determination of what constitutes "defence delay" continues to be the subject of certain debate within the jurisprudence. Jordan offers the following guidance:

Defence delay has two components. The first is delay waived by the defence (Askov, at pp. 1228-29; Morin, at pp. 790-91). Waiver can be explicit or implicit, but in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights. However, as in the past, "[i]n considering the issue of 'waiver' in the context of s. 11(b), it must be remembered that it is not the right itself which is being waived, but merely the inclusion of specific periods in the overall assessment of reasonableness" (R. v. Conway, [1989] 1 S.C.R. 1659, per L'Heureux-Dubé J., at p. 1686).

The second component of defence delay is delay caused solely by the conduct of the defence. This kind of defence delay comprises "those situations where the accused's acts either directly caused the delay ... or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial" (Askov, at pp. 1227-28). Deliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests, are the most straightforward examples of defence delay. Trial judges should generally dismiss such applications and requests the moment it becomes apparent they are frivolous.

As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. This should discourage unnecessary inquiries into defence counsel availability at each appearance. Beyond defence unavailability, it will of course be open to trial judges to find that other defence actions or conduct have caused delay (see, e.g., R. v. Elliott (2003), 114 C.R.R. (2d) 1 (Ont. C.A.), at paras. 175-82).

To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused's right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions.

[12] A year after Jordan, the Supreme Court revisited and clarified the approach for characterizing "defence delay" in its subsequent decision in Cody, 2017 SCC 31, [2017] S.C.J. No. 31, at paras. 29-35:

However, not all delay caused by defence conduct should be deducted under this component. In setting the presumptive ceilings, this Court recognized that an accused person's right to make full answer and defence requires that the defence be permitted time to prepare and present its case. To this end, the presumptive ceilings of 30 months and 18 months have "already accounted for [the] procedural requirements" of an accused person's case (Jordan, at para. 65; see also paras. 53 and 83). For this reason, "defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay" and should not be deducted (Jordan, at para. 65).

The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. As we said in Jordan, the most straightforward example is "[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests" (Jordan, at para. 63). Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted (Jordan, at para. 64). These examples were, however, just that - examples. They were not stated in Jordan, nor should they be taken now, as exhaustively defining deductible defence delay. Again, as was made clear in Jordan, it remains "open to trial judges to find that other defence actions or conduct have caused delay" warranting a deduction (para. 64).

The determination of whether defence conduct is legitimate is "by no means an exact science" and is something that "first instance judges are uniquely positioned to gauge" (Jordan, at para. 65). It is highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. While trial judges should take care to not second-guess steps taken by defence for the purposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate to do so.

Defence 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.

[13] It has been observed that the Cody approach to the calculation of defence delay stresses defence action that is "illegitimate" or "not taken to respond to the charges." The tenor of the court's approach in Cody emphasizes the necessity of a somewhat contextual, perhaps more nuanced approach in the assessment of defence delay: one which includes an examination of the overall manner in which the defence was conducted, as well as the circumstances surrounding such conduct.

The Applicability of Pre-Jordan Principles for the Calculation of Defence Delay

[14] Since Jordan, courts have been somewhat divided on the question of whether the principles contained in the Supreme Court's earlier jurisprudence on 11(b) continue to apply, most particularly, the Court's comments in Godin with respect to the treatment of defence counsel's unavailability for trial or continuation dates in the overall analysis.

[15] In Godin, Justice Cromwell famously held: 1) that defence scheduling requires reasonable, but not "perpetual availability" and cooperation, and 2) that it is not necessarily reasonable to hold that the delay clock stops as soon as a single available date is offered to the defence, and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled.

[16] In the application before me, the Crown argues that the Ontario Court of Appeal's decision in Mallozzi confirms that Godin is no longer good law under the revised 11(b) regime. Mr. Quilty also relies on two trial decisions by my colleagues in Sookdeo and Francis in which Mallozzi was relied on as in support of the proposition that any and all delay after the first date on which both the Crown and the court are available is defence delay.

[17] On behalf of the Applicant, Mr. Little argues that the Court of Appeal's lengthier decision in Albinowski, released nine months after Mallozzi, marked that court's rejection of the categorical approach advocated by the Crown here – that in every case, all of the day following the first dates offered by the court and accepted by the Crown must be characterized as "defence delay."

[18] The Court of Appeal in Albinowski did not accept the Crown's submission in that case that the principles of Godin had been overtaken altogether by Jordan. Rather, Justice Roberts in Albinowski emphasized that the findings of Godin were "grounded firmly in the circumstances of that case" – which the court ultimately held were not applicable to those in Albinowski.

[19] I conclude that the reasoning of Albinowski suggests that the principles of Godin have not been entirely eclipsed by Jordan, and that the calculus of delay under s. 11(b) must remain a contextual one which is sensitive of the particular circumstances of the individual case, including the reason(s) prompting the need for the case to be rescheduled. This approach is consistent with the recent decision of the Newfoundland Court of Appeal in King in which that court held that "common sense" must apply to the assessment of responsibility for scheduling delays, and that Godin "still applies after Jordan."

[20] The recent decision of Justice Woollcombe in Ameerullah places similar emphasis on the importance of a contextual approach to the assessment of defence delay:

To summarize, the appellate authorities, including Mallozzi, Albinowski and R. v. Picard, 2017 ONCA 692; leave to Appeal refused, [2018] S.C.C.A. No. 135 (S.C.C.) make clear that s. 11(b) requires reasonable availability, flexibility and some level of cooperation. Clearly, when a single date or block of time is offered to the defence, and counsel is unavailable on that date, not all of the delay to the next available date is necessarily defence delay. Rather than taking this sort of "categorical" approach, there needs to be consideration of the particular circumstances of a case, bearing in mind the Jordan call for a change in direction and break in the culture of complacency.

However, when the Crown is available on numerous dates that are offered by the court, and the defence counsel is repeatedly unavailable for any dates over a reasonable period, the delay that results is defence delay. The justification for this approach is that it is defence counsel's lack of availability that results in the matter being set further in the future than would otherwise be necessary.

"Exceptional Circumstances" or "Discrete Events"

[21] The other bases for subtracting from the total period of delay are the existence of an "exceptional circumstance" or of a "discrete event" which would not ordinarily be considered part of the reasonable time estimate for a conventional criminal trial. Unexpected eventualities such as the sudden illness of an essential trial participant can be characterized as "discrete events" which operate to modify the calculus of delay.

[22] There is no strict formula offered by either Jordan or Cody for the determination of how much, if any, of the delay resulting from the discrete event should be subtracted from the 11(b) analysis. However, the court in Jordan emphasized that the Crown bears the burden of mitigating any delays caused by exceptional circumstances, including discrete events:

The period of delay caused by any discrete exceptional event must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and justice system should be capable of prioritizing cases that have faltered due to unforeseen events (see R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 635). Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (ie: it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events).

Was s. 11(b) of the Charter Violated in this Case?

[23] The following are the disputed time periods to be assessed for delay in this case.

a) Time from arrest (October 7, 2017) to when Information laid (October 17, 2017) = 10 days

[24] Both parties agreed that the assessment of this relatively brief period of time (10 days) is unlikely to have a significant impact in the assessment of the reasonableness of the overall delay in this case.

[25] The Crown takes the position that the Supreme Court of Canada's decision in Kalanj makes it clear that the 11(b) clock starts when the information is sworn, not when the accused is arrested. Mr. Quilty also refers me to Justice Fairburn's decision in Lacroix in which Kalanj is cited with approval. It is submitted by the Crown that both of these cases are binding on me and allow for no alternative interpretation of their instruction.

[26] Mr. Little acknowledges that the ratio of the majority in the Supreme Court of Canada's decision in Kalanj is that the 11(b) clock usually starts to run on the date that the Information is sworn, based on the strong policy concerns arising from the impossibility of reasonable assessments being drawn of the "wholly unpredictable" investigatory stage of a criminal investigation.

[27] While accepting of this as a first principle from Kalanj, Mr. Little draws out what he suggests is another important finding arising from the majority reasoning. In paragraph 19, Justice McIntyre goes on to acknowledge that "where the investigation reveals evidence which would justify the swearing of an information, then for the first time the assessment of a reasonable period for the conclusion of the matter by trial becomes possible." Thus, it is suggested that the teachings of Kalanj are not as straightforward as the Crown suggests, and that the principles expressed in the case itself would support consideration being given to the inclusion of the time from arrest in the calculus of delay, in the appropriate case.

[28] This is precisely what the Applicant argues should be done in his case: to start the delay clock on the day that he was charged. Unlike the circumstances of Kalanj, this was not a case where it would have been "wholly impossible" to predict the length of the investigatory stage preceding the laying of the Information. To the contrary, the investigation of Mr. Gill's case was over by the time he was arrested and released on a Promise to Appear.

[29] Also, from the moment of his being charged and released on a Promise to Appear (on October 7, 2017), the applicant was engaged in the justice system. I adopt the observation made by my colleague Justice Duncan in Egorov that in these circumstances, which are distinguishable from those of Kalanj, "it would be difficult to see the accused as not charged upon his being subject to the obligation imposed by his release." I note that similar conclusions were drawn in Luoma, 2016 ONCJ 670 (Schreck, J.) and Nash, 2014 ONSC 6025, (Bale, J.) at paras. 6-7.

[30] I conclude that in the circumstances of the applicant's case, the appropriate date for the 11(b) calculation to begin is the date when he was "charged," namely the date of his arrest on October 7, 2017.

b) Time from JPT (February 26, 2018) to Trial date being set (March 2, 2018) = 4 days

[31] The Crown concedes that there was no defence delay between the time the applicant was charged and the day the JPT was conducted. This period totals 4 months, 20 days which counts towards the Jordan ceiling.

[32] Defence counsel attended the judicial pre-trial by phone, on February 26, 2018. Counsel requested that the matter be adjourned to March 2, 2018, so that he could attend to set the trial date.

[33] These four days (February 26 to March 2, 2018) are properly characterized by the Crown as defence delay.

c) Time to first trial date (March 2 – November 18, 2018)

[34] On March 2, 2018, the trial date was set for November 18th. Three earlier trial dates were offered by the court which were available to the Crown but rejected by the defence. These dates were: October 15, October 24 and November 13. A fourth date of November 7th was also offered but rejected by both the Crown and the defence.

[35] The Crown concedes that the time from March 2nd to October 15th (approximately 7.5 months) clearly counts towards the ceiling. Mr. Quilty argues that the remaining 36-day delay, between October 15th and November 19th, must be characterized as defence delay.

[36] Mr. Little acknowledges some, but not all of this delay. He suggests that it is appropriate to consider the time from the end of second trial date offered (October 26) to November 21st (approximately 26 days) as defence delay.

[37] In my view, it would be unfair to characterise the entire period between October 15th and November 18th as defence delay – given that one of the dates offered during that interim was also unavailable to the Crown (November 7-9). Thus the 7-day period between November 7th (when the Crown was also unavailable) and November 13th (when the Crown was available) should count towards the Jordan clock, with the remaining 29 days being defence delay.

d) Time to second trial date: November 19, 2018 to August 23, 2019

[38] This is the most contentious time period, perhaps because it is the lengthiest and therefore the most significant in terms of overall delay.

[39] The Crown argues that a strict reading of Mallozzi should be applied here, to attribute all the delay between the first trial date offered by the Court and available to the Crown at the feet of the defence, regardless of the Crown's responsibility for triggering the delay.

[40] The Applicant invites the court to make the opposite assessment. Mr. Little suggests that the entire delay should be attributed to the Crown, given what he characterizes as the flagrance of the particular disclosure oversight leading to the adjournment. In the alternative, Mr. Little suggests that the Jordan clock should continue to run until the second or third of the trial dates offered by the court, in recognition of counsel's diligent pursuit of an expedited trial, as supported by the record.

Analysis

[41] The critical circumstance for consideration at this stage of the analysis is the reason for the delay of the trial. Context is critical in the evaluation of delay, and its reasonableness.

[42] Here, the reason for the delay of the trial was the Crown's failure to fulfill its constitutional obligation to provide timely disclosure, and to promptly bring the accused to trial.

[43] The Crown very fairly accepted their responsibility for this adjournment – both on the date of the first trial when making the request, and once more during their submissions before me in response to this application. Nevertheless, Crown counsel's candour in acknowledging their responsibility for the delay does not neutralize the significance of this factor in the overall assessment of the resulting delay.

[44] Unlike a delay caused by systemic factors, such as the matter not being reached due to the court's unavailability, here the delay could have, and should have been easily avoided by greater diligence by the Crown with respect to their disclosure obligation. The missing items of disclosure were the notes of two officers whose evidence had potential significance to both the substantive and Charter issues which had been identified by counsel at the judicial pre-trial: the breath technician, and the interpreting officer.

[45] The missing notes would have been created at the time of, or within hours of the Applicant's arrest on October 7, 2017. It is difficult to understand how their disclosure could have been overlooked. Indeed, this fact was explicitly and once again very fairly acknowledged by Crown Counsel on November 19th who stated that he had "no idea" why the materials had not been promptly disclosed, and agreed that "it's totally on us."

[46] I consider the Court of Appeal's clear rejection of the "categorical approach" and corresponding emphasis on a more "contextual" assessment in the assignment of defence delay in Albinowski to be particularly apposite here. So too are that Court's findings in N.N.M., Nguyen and Pyrek in which the party's responsibility for causing the delay figured prominently in the Court's assessment under s. 11(b) of the Charter.

[47] Here the Crown takes responsibility only for the delay between November 19, 2018 and the first trial date which was offered by the court, and for which it was available on January 23, 2019 (a period of approximately 2 months). It is suggested that the defence should bear responsibility for the entirety of the delay that followed between January 23rd and the second trial date of August 21, 2019.

[48] Respectfully, I cannot agree with the Crown's argument – which ignores Albinowski's rejection of such a categorical approach, in favour of a more meaningful assessment of the overall context, or reasons underlying each suggested delay.

[49] Here, the delay was entirely the result of a lapse of diligence by the Crown. A similar oversight in Pyrek was described by the Court of Appeal as "negligent," and therefore necessarily "attributed to the Crown." Prior to Mr. Gill's first trial date, counsel had submitted at least nine written disclosure requests to the Crown's office and repeated their concerns with respect to outstanding disclosure on the record.

[50] Taking a contextual approach to the delay caused by the Crown's negligence leading to the adjournment of trial on November 19, 2018, I decline to assess all of the delay between January 23, 2019 and August 21, 2019 as defence delay. Jordan clarified that perpetual availability is not the standard to which defence counsel should be held. The court in Cody suggested that those actions which were the "direct or sole cause" of delay, or "deliberate" and "illegitimate" conduct aimed at creating delay were the characteristics of what should be construed as defence delay.

[51] The overall manner of counsel's conduct of the defence is also a factor to be considered in the assessment, according to Cody. Here, the conduct of the defence could only be described as diligent.

[52] In Ameerullah, Justice Woollcombe confirmed that when a single date or block of time is offered to the defence, and counsel is unavailable on that date, not all of the delay to the next available date is necessarily defence delay.

[53] Owing to the exclusive responsibility which the Crown bears for causing the adjournment on the day of trial for negligent non-disclosure, I conclude that it must bear additional responsibility for the resulting delay.

[54] Defence counsel's unavailability on the first date offered of January 23rd cannot be characterized as defence delay, in the circumstances of this case. This date was only two months after the November trial date, which is a relatively short period of time for counsel to be expected to clear three days in his schedule to accommodate an unexpected second trial date. The second trial date offered was an additional three months later (or a total of five months from the adjournment), at which time the expectation of "reasonable cooperation" under Jordan became a more feasible obligation on counsel.

[55] I conclude therefore that the Jordan clock continued to run between November 19, 2018 through to the second trial date offered of April 10, 2019 – for a total of 143 days, or 4 months, 23 days. The remaining 132 days (4 months, 10 days) is defence delay.

e) Time to third trial date: August 19, 2019 to March 2, 2020

[56] On the second trial date, the Crown requested an adjournment due to the absence of a material witness who had apparently needed to leave the country due to a family emergency.

[57] The Crown characterizes this delay as an "exceptional circumstance" for the purpose of the 11(b) analysis. Mr. Quilty acknowledged that in these circumstances, the Crown had a duty to expedite the rescheduling of the matter.

[58] The court offered a date of October 1st, 2019 for the third trial date. The defence was available, but the Crown was not. The next dates offered by the court were January 6th and 13th, 2020. Neither were available to the defence. The next date offered, of March 2-4th, was accepted by both parties.

[59] The Crown submits that the period of August 21st to October 1st should be subtracted from the ceiling as an "exceptional circumstance." He accepts responsibility for the delay between October 1st and January 6th, 2020 but submits that all of the delay from January 6th to March 4th should be considered defence delay. The Crown's calculation would reflect a 3-month period of delay (from October 1st to January 6th) counting towards the Jordan ceiling, and two months being attributed to the defence.

[60] On behalf of the Applicant, Mr. Little points to the "foreshadowing" of this witness' absence at trial back on November 19, 2018, when the second trial date was set. On that date, while inviting the court to bind the witnesses over to the next date, the Crown indicated its awareness of health concerns which might have the potential to require one of them to travel out of the country for an extended period. The Crown indicated that they would "deal with it as it comes up."

[61] Jordan directs that the period of delay caused by any discrete exceptional event should be subtracted from the total period of delay for the purpose of determining if the ceiling has been exceeded. The Court also instructed that "the Crown must always be prepared to mitigate the delay resulting from discrete exceptional circumstances" and that the Crown and the justice system should be capable of "prioritizing cases that have faltered" due to unforeseen events.

[62] Mr. Little submits that the Crown could have mitigated this delay by starting the applicant's trial by calling the witnesses which it had – and thereafter requiring the scheduling of only one further day of court time for the missing witness, and submissions.

[63] Mr. Quilty submitted that it was "not unreasonable" for the Crown to decide to try to set three days with any judge, rather than starting the trial and needing to coordinate two lawyers' and a seized judge's schedule for a single day continuation.

[64] While I accept Mr. Quilty's submission that it may be the case that obtaining a continuation date with a seized jurist can operate to prolong the completion of a case, it is by no means an outcome which should be assumed. Indeed, all parties agreed that a half or even full day of court time is more readily available than a block of three consecutive days. To be sure, the number of other seizures or continuations of the particular trial judge is a variable which can potentially complicate, or even frustrate the goal of early completion of a matter.

[65] However, it is yet equally possible that starting a trial at the earliest opportunity, even where an extra continuation date is required, could result in the mitigation of at least some portion of the total delay. Jordan makes it clear that it is the Crown's imperative to endeavour to do just this.

[66] The question of whether the applicant's trial might have concluded sooner, had it begun on August 19, 2019 remains an entirely theoretical one, as it was never pursued as an option by the Crown. What is known is that following the Crown's decision to adjourn the entire trial a second time, the first two dates offered by the court (in October and December) were unavailable to the Crown, resulting in a three-month delay. The defence was not available on either of the next two dates offered, within a two-week span in January, 2020. The first mutually agreeable date of March 2nd - 4th was then selected.

[67] Jordan confirms that it may not be appropriate to subtract the entire period of delay occasioned by discrete events, where the Crown and the system might have been able to reasonably mitigate it.

[68] While properly characterized as an "exceptional circumstance," this particular adjournment for this particular witness was not entirely unforeseen. Almost a year earlier, the Crown acknowledged the possibility of this witness' need to travel, and its responsibility to remain in close contact with that witness in order to avoid any further scheduling complications.

[69] There is also no evidence of the Crown having taken active steps to mitigate the delay occasioned here. Accepting that the default approach to witness unavailability in this jurisdiction tends to be the rescheduling of the entire trial, it is yet clear from Jordan that there is a unique responsibility on the Crown and the court to "prioritize cases that have faltered due to unforeseen events."

[70] This was, in my view, precisely such a case for which prioritization was required. Indeed, when the third trial date was set, the applicant formally scheduled his s. 11(b) motion date for January 29, 2020. I conclude in this case that it would not be appropriate to subtract the entire period of delay occasioned by this discrete event. Given the Crown's failure to mitigate the delay resulting from this discrete event, I would subtract half of the delay occasioned by this discrete event (42 days /2 = 21 days).

11(b) Calculation

[71] The total delay in this case, from the date of the applicant being charged, to the date of his final trial, is 878 days (2 years, 4 months, 25 days).

[72] From this total, the portions of defence delay and "exceptional circumstances" must be subtracted. I have calculated the deduction for the "discrete event" of the witness availability at the second trial to be 21 days.

[73] Defence delay in this case includes the following:

1. 4 days for the scheduling of the first trial following the JPT;
2. 29 days for the delay in scheduling the first trial;
3. 132 days for the delay in scheduling the second trial;
4. 58 days for the delay in scheduling the third trial

[74] The "net delay" in this case is 634 days, or 21 months. This delay is presumptively unreasonable, and resulted in a violation of the Applicant's rights under s. 11(b) of the Charter.

Remedy

[75] The Crown acknowledges that the Supreme Court has held that a stay of proceedings is the minimum remedy for a violation of an applicant's rights under s. 11(b) of the Charter, but submits that lower courts can revisit binding precedents where there have been fundamental shifts to the parameters of the debate.

[76] The Crown contends that the elimination of prejudice from among the factors relied on in Jordan for the assessment of delay under s. 11(b) amounts to a fundamental shift in the law, which he argues can operate unfairly to grant a stay even in "a very serious case where society has a very high interest in adjudication on its merits." It is suggested that in such cases, a lesser remedy, such as a sentence reduction or declaration, may suffice over the "extreme remedy" of a stay.

[77] The Court in Jordan considered the role of prejudice carefully in its analysis, concluding that it was "one of the most fraught areas of s. 11(b) jurisprudence for over two decades." In response, the Court incorporated considerations of prejudice into the presumptive ceilings, in order to better recognize that prolonged delays cause prejudice "not just to specific accused persons, but also to victims, witnesses, and the system of justice as a whole."

[78] The Court in Jordan made no attempt to conceal the reality that the new framework represented a significant shift from the past practice. The changes made to the calculus of delay were deliberate, and deliberately aimed at helping the public to more clearly understand what it means to hold a trial within a reasonable time. The Court stressed that "enhanced clarity and predictability befits a Charter right of such fundamental importance to our criminal justice system."

[79] The right to a trial within a reasonable time has been described as "discipline for the justice system" which is directly tied to the maintenance of the public's confidence in the delivery of justice in a timely fashion.

[80] In Rahey, Justice Lamer (as he then was) held that "[i]f an accused has the constitutional right to be tried within a reasonable time, he has the right not to be tried beyond that point in time, and no court has jurisdiction to try him or order that he be tried in violation of that right."

[81] With respect, I decline the Crown's invitation to revisit the binding ratio of Rahey, and accept that the minimum remedy for a breach of an applicant's rights under s. 11(b) of the Charter is a stay of proceedings.

Conclusion

[82] Mr. Gill's application is granted. In view of the s. 11(b) violation, the proceedings against the applicant will be stayed pursuant to s. 24(1) of the Charter.

Released: March 5, 2020

Signed: Justice A. Dellandrea