WARNING The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 539(1) of the Criminal Code. This subsection and subsection 539(3) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection (1), read as follows:

539. ORDER RESTRICTING PUBLICATION OF EVIDENCE TAKEN AT PRELIMINARY INQUIRY — (1) Prior to the commencement of the taking of evidence at a preliminary inquiry, the justice holding the inquiry ( a ) may, if application therefor is made by the prosecutor, and ( b ) shall, if application therefor is made by any of the accused, make an order directing that the evidence taken at the inquiry shall not be published in any document or broadcast or transmitted in any way before such time as, in respect of each of the accused, ( c ) he or she is discharged, or ( d ) if he or she is ordered to stand trial, the trial is ended.

(3) FAILURE TO COMPLY WITH ORDER — Everyone who fails to comply with an order made pursuant to subsection (1) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: 2022 03 16 Court File No.: Brampton 20-7341

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

EDGAR UMANA FONSECA

Before: Justice P.T. O’Marra

Heard on: February 17, 2022 Reasons for Judgment on the section 11(b) Application released on: March 16, 2022.

Counsel: E. Guimond, counsel for the Crown A. Furgiuele and I. Dragalin-Reeves, counsel for the applicant Edgar Umana Fonseca

P.T. O’Marra, J.:

Introduction

[1] On February 17th, 2022, I granted the application and stayed the proceedings with reasons to follow. These are my reasons.

[2] On July 12th, 2020, the applicant was investigated, arrested, and charged with sexual assault and sexual exploitation. On August 6th, 2020, an information was sworn. The trial in this matter was set to commence before me on February 28th, 2022, and it was anticipated to conclude on March 2nd, 2022, which is 19 months and 19 days after the applicant’s arrest and 18 months and 25 days after the information sworn date.

[3] The applicant argued that whether the delay is measured from the date of the swearing of the information or the date of the applicant’s arrest the total delay exceeds the presumptive Jordan ceiling of 18 months. See: R. v. Jordan, 2016 SCC 27. The applicant says that the Defence is not responsible for any delay, and therefore, no delay should be subtracted from the total delay. Alternatively, even if there is Defence delay in this case, the applicant says his charges should still be stayed because the case has taken markedly longer than it should have, and the Defence took meaningful steps to move the matter forward.

[4] The Crown disagrees with the characterization of the following three time periods of delay: The pre-charge delay (the arrest date to the date of the swearing of the information). The delay from the first offered trial date to the second offered trial date (December 15, 2021, to January 12, 2022) and from the second trial dates offered until the actual trial in the matter (January 12, 2022, to February 28, 2022).

[5] The history of the proceedings was accurately set out in the applicant's factum and is based on all the transcripts, Crown Disclosure, e-mails and other litigation documents and records. I do not propose to recite the pace of the proceedings in its entirety or cite specific transcripts.

[6] The Crown fairly conceded that the applicant’s characterization of a substantial period of delay was because of the failure of the Crown to provide full and complete disclosure before the parties were able to set a trial date.

[7] There are three issues in this application. (1) Whether the starting point of the total delay was the swearing date of the information, or the date that the applicant was arrested, charged, and released on an Undertaking with Conditions? (2) Whether the Jordan clock stopped after the applicant was offered and did not accept trial dates that commenced on December 15, 2021, and or January 12, 2022? (3) In the alternative, if the net delay is found to fall below the presumptive ceiling, was the net delay unreasonable?

Jordan Analysis

The Total Delay: Pre-charged delay = 26 days

[8] The applicant says that the delay between the date he was arrested and the date he was formally charged was unreasonably long (26 days) and should be counted as part of the total delay. The applicant acknowledges that there is conflicting line of authority regarding whether for the purposes of section 11(b), an individual is charged from the time of their arrest or from the when the information is sworn.

[9] The applicant argued that where there was a delay between the arrest and the swearing of an information, the delay clock should begin to run at the applicant’s arrest for two reasons. First, any delay in the swearing of the information was an administrative failure on the part of the police that should factor into the total delay. Otherwise, this creates a perverse incentive to delay the laying of the information, even where the police investigation is complete, to avoid starting the Jordan clock. See: R. v. Gleiser, 2017 ONSC 2858, at para. 18; R. v. Mikhailov, 2020 ONCJ 507, at paras. 23-27; R. v. Gill, 2020 ONCJ 124 at paras. 24-30 and R. v. Duszak, 2013 ONCJ 586, at paras. 38-51. Second, the arrest date was when “the individual rights that section 11(b) seeks to protect in particular, the right to security of the person, and the right to liberty, [are] placed in jeopardy.” The applicant was subject to the court process, particularly where the applicant was released on an undertaking with conditions and a promise to appear. See: R. v. Nash, 2014 ONSC 6025, at para. 7; R. v. Sawh, 2022 ONCJ 15, at paras. 6-9; R. v. Creglia, 2018 ONCJ 262, at footnote 2; R. v. Luoma, 2016 ONCJ 670, at paras. 4-6, 18-34; and Duszak, at paras. 38-51.

[10] The Crown argued that the starting point for calculating delay was when the individual was charged. This is consistent with prior authority, including R. v. Kalanj, 1989 SCC 63, [1989] 1 S.C.R. 1594, at p. 1607, where McIntyre J., for the majority, held that s. 11(b) protects a person "charged with an offence". A person is charged when "an information is sworn alleging an offence against him", or when a direct indictment is laid. R. v. Medeiros, 2020 ONSC 569, at paras. 9-15; R. v. Lacroix, 2017 ONSC 334, at paras. 36-38 and R. v. Toor, 2022 ONCJ 8, [2022] O.J. No. 88, at paras. 13-22. The position that was advocated by the applicant was proposed by the dissent in Kalanj and was rejected. And as such, the Crown submitted that I am bound by Kalanj.

[11] I adopt the reasoning in several cases from this court that support that the total delay should be calculated from the date that the information was sworn. Justice Rahman dealt with the application of the Kalanj case in the R. v. Sawh, [2022] O.J. No. 92. His Honour placed reliance on Justice Schreck’s reasoning in R. v. Luoma, 2016 ONCJ 670. Justice Rahman made the following comments at paras. 7 and 8.

[7] … In one of those cases, R. v. Luoma, Schreck J. explained that Kalanj was not meant to apply to a situation like the typical drinking and driving case, where the police have completed their investigation and the accused has been arrested and been compelled to appear in court through a form of police bail.

[29] In my view, the conclusion in Kalanj was never intended to apply to a situation such as in the case at bar where the investigation has been completed and the accused has been arrested and is subject to the court's process but where the police, in contravention of s. 505, have simply failed to have an Information sworn due to some administrative oversight. In my view, the principles in Kalanj lead to the conclusion that the s. 11(b) clock starts to tick at the point when an Information is sworn or ought to have been sworn. Under this approach, the concerns driving the result in Kalanj about the inability of the courts to assess the investigatory progress of the case simply do not arise and the police are not able to artificially manipulate the s. 11(b) calculus, either intentionally or inadvertently.

[8] Schreck J. grounded his conclusion that the Jordan clock could start upon arrest by relying on the Court of Appeal's decision in R. v. Milani. In Milani, the court considered whether the period between the withdrawal and re-laying of charges should be counted as part of the total delay in the case. Although the court ultimately concluded that the period in that case was not a period during which the accused's s. 11(b) interests were protected, the court did observe that there may be periods during which an accused is not formally charged that should still be counted when calculating whether there has been unreasonable delay. The court reasoned that where an accused is still effectively subject to the judicial process and has knowledge or expectation that charges are imminent, the accused's s. 11(b) interests are still affected.

[48] There is a caveat, however. There are circumstances in which unilateral state action may control whether or not charges are withdrawn or re-laid. In such circumstances, where the formal charge has been withdrawn with the intention of laving a new charge, or an information has been quashed with a new information laid, it makes sense to consider the entire period from when the first charges were laid as part of the s. 11 (b) analysis. In such circumstances, the person, although not formally charged during the "gap" period, remains subject to the judicial process, and his s. 11 (b) interests will continue to be affected by the knowledge or expectation that further charges are imminent. It is reasonable to conclude that he remains subject to the process of the court. That is precisely what occurred in R. v. Antoine.

[49] For all of these reasons, I would interpret s. 11(b) as being engaged during any period that an accused person is in fact subject to charges, or when a person no longer actively charged remains subject to the very real prospect of new charges.

[Emphasis in Original]

[12] Several cases have held that notwithstanding the conclusion in Kalanj, a person is "charged" once they are subject to the processes of the court. In R. v. Egerov, [2005] O.J. No. 6171 (C.J.), Duncan J. stated (at note 2):

The Crown's Factum contends that the time runs from the swearing of the information, March 25. This position is supported by Kalanj, a case where the accused was arrested and released without charge or process. An information was sworn eight months later. But in the case of release on an appearance notice, promise to appear, undertaking or recognizance before officer in charge and the charge being laid thereafter (i.e. the procedure in section 505 of the Code), it is difficult to see that the accused is not "charged" upon his being subject to the obligations imposed by the release. Indeed the release document itself refers to him as being an "accused" who is alleged to have committed an offence: see forms 9, 10 11 and 11.1 CC.

See: Luoma, at para. 32.

[13] On July 11, 2020, the police had interviewed the complainant in this matter. The interview was video recorded. On July 12, 2020, the applicant was arrested and released on an undertaking with conditions to appear in court on September 8, 2020. The information was sworn almost a month after the applicant’s arrest on August 6, 2020. No reason for the delay was provided.

[14] The undertaking with conditions required that the applicant attend 22 Division, Peel Regional Police Service for finger printing on September 3, 2020.

[15] The applicant would know he was facing serious criminal charges when arrested and released. His liberty was impacted by conditions regarding who he could not contact and where he could and could not attend. I agree with Justice Rahman’s comments in Sawh, at para. 9,

The liberty and security of the person interests protected by s. 11(b) -being subject to conditions, and the stress, anxiety and stigma of the criminal process. (Jordan, para. 20) -are affected once an accused is arrested and released on police bail. In such circumstances, the date the information is sworn is not a significant one for the accused.

[16] In my view, the total delay should be calculated from the date of the applicant’s arrest. I find that the total delay is 19 months and 19 days.

The delay from the first trial dates offered to the second offered trial date (December 15, 2021, to January 12, 2022, = 29 days)

[17] It was conceded by the Crown that the period leading up to November 25, 2021, was anything other than the Crown fulfilling its disclosure obligation. That was a reasonable concession for the Crown to make.

[18] The applicant’s counsel appeared eleven times to inquire about outstanding Crown disclosure, some of which can be classified as foundational disclosure, including the complainant’s video statement and nanny-cam footage alleged to have captured part of the alleged offences which was not disclosed until November 15, 2021, which was 16 months, and 3 days after the applicant’s arrest.

[19] Counsel sent five e-mails to the assigned Crown which inexplicably went unanswered. Numerous e-mails were sent as outlined in the applicant’s application record. Moreover, two judicial pre-trials (JPTs) were set up to address the outstanding disclosure issues.

[20] I am more than satisfied that Counsel was diligent and made sustained efforts in moving the case forward and alerted the Crown to the issue.

[21] The late disclosure prevented the Defence from scheduling a Crown pre-trial (CPT) to move the case forward. Instead, Counsel moved directly to providing a trial estimate after the third JPT was held on November 25, 2021, ten days after the key disclosure was provided. Counsel reached out to the trial coordinator to seek dates for trial.

[22] On December 2, 2021, a CPT was held. The Crown offered trial dates for December 15, 16 and 17th, 2021 while acknowledging that further outstanding disclosure which included translations and transcriptions statements would not be ready until December 13, 2021, at the earliest.

[23] The Crown concedes that the time between November 25, 2021, and December 15, 2021, was required for the Crown to complete disclosure and prepare for trial. I agree that a mere two days was wholly insufficient to review the outstanding material and properly prepare for trial. The accused was entitled to review disclosure they have received to determine its importance, before moving a case forward. See: Jordan, at paras. 65-66; R. v. Vidinovski, 2018 ONSC 2971, at para. 27; R. v. Albinowski, 2018 ONCA 1084, 371 C.C.C. (3d) 190, at paras. 32-33. E-mail Chain – Dec. 2, 2021, at pp. 1-3. D. A., at para. 13.n and R. v. Safdar, 2021 ONCA 207, at para. 50.

[24] However, the Crown argued that the Jordon clock stopped on December 15, 2021, or January 12, 2022, at the latest. The first reasonable trial date offered was December 15, 2021, for which both the Crown and the Defence should have been able to proceed, however, the Defence was not. Where the Crown and the Defence are prepared to proceed but the Defence is not, the resulting delay is Defence delay and deducted from the net delay.

[25] I refer to this as the Godin argument. That counsel should not be expected to hold themselves perpetually available to set a trial date. See: R. v. Godin, 2009 SCC 26. Counsel cited the following passage from Justice Cromwell at paragraph 23 speaking on behalf of the Court. And I quote:

Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require Defence counsel to hold themselves in a state of perpetual availability. Here, there is no suggestion that Defence counsel was unreasonable in rejecting the earlier date. Indeed, his prior conduct in seeking earlier dates for the preliminary inquiry -- efforts which were ignored -- suggests that he wished to proceed expeditiously. I respectfully agree with Senior Justice Glithero, dissenting in the Court of Appeal, at para. 53, that: "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, is not reasonable.”

[26] The issue of whether Godin has been overtaken by the Jordan framework has generated a lot of judicial debate and different approaches.

[27] I note my colleague, Justice Blacklock dealt with this very issue of Defence unavailability in the post Jordan era and several decisions that have attempted to addressed it as well, in his unreported decision of R. v. Lobo, (April 1, 2021) Brampton 19/28364 (Ont. Prov. Crt.).

[28] Justice Blacklock stated the following:

In Ontario there are decisions indicate that in light of the new regime established in Jordan supra the principles in Godin supra do not survive at all. These cases suggest, as the Crown here argues, that delay in the proceedings following even a single date being offered upon which the Defence is unavailable should be simply treated as Defence delay. See for example Regina v. Grewal, Regina v. Bilachi and Regina v. Brown. On the other hand, there are cases suggesting Regina v. Godin supra survives Jordan supra and consequently the offering of a single date does not mean that any subsequent delay is to be treated as falling to the Defence. (See for example Regina v. Daliwahl).

There are also cases which are perhaps more nuanced. These cases suggest that context beyond the mere number of dates offered is important. (See Regina v. Albinowski from the Ontario Court of Appeal, Regina v. Dhillon 2019, an Ontario Court of Justice decision, and Regina v. Ameerullah, a Superior Court decision).

[29] Factors recognized in these cases going to that context include what was the cause for the need to set the date in question, was the date offered far enough out to have realistically permitted preparation, as well as how many dates were provided.

[30] R. v. Ameerullah, 2019 ONSC 4537 provided a further gloss. The Court suggested that in some cases in which even when one date was offered to the Defence some portion of the subsequent delay may be taken as falling to the Defence.

[31] I can say at a minimum I definitively do not accept the notion that Defence unavailability when only one date was offered should necessarily be treated as completely irrelevant to the section 11(b) analysis. Without making a final determination I must say I am drawn to the notion that the full impact of the Defence being unavailable on a particular date should depend on all the circumstances.

[32] Justice Goodman stated the following in R. v. Belzil, [2021] O.J. No. 516 (SCJ) at paras. 65-66 regarding the issue of Defence availability, His Honour stated the following:

However, the words of Cromwell J. in Godin may have been supplanted by the Supreme Court decision in Jordan, Cody and, most recently, confirmed in the R. v. Thanabalasingham. At paragraph 9: "[d]efence counsel must be aware that, aside from time legitimately taken to respond to the charges, they "will have directly caused the delay if the court and the Crown are ready to proceed, but [they are] not."

[33] I accept that this may influence the comments of Justice Cromwell’s earlier passage in Godin, at para. 23. (See also R. v. Mallozzi, 2017 ONCA 644, [2017] O.J. No. 4303; Albinowski, at paras. 28-38; Ameerullah, at paras. 28-30, R. v. Balogh, 2020 BCCA 96 at paras. 21-31 and Belzil, at para. 65.)

[34] Again, as this evolving area of law makes clear, context is always important -- not every single offered of a date for which the Crown and Court were both available, while the Defence was not, will count as Defence delay without further analysis. Each case will turn on its facts.

[35] Context was important in this particular case. This was not a setting of a trial continuation date. This was setting of a first trial date. In my view, the date offered on December 2, 2021, to start a three-day trial on December 15, 2021, with a Crown estimation that important disclosure would be received at the earliest two days before the commencement of the trial was illusory and unreasonable.

[36] In this case, the Crown’s delay in providing significant disclosure occurred despite the Defence requesting the videos at eleven court appearances and in seven disclosure request letters, including three requests directly to the assigned Crown, who never responded.

[37] This was not a case of piecemeal disclosure by the Crown of extraneous materials. Unlike in R. v. Vuong, Defence counsel was unable to take meaningful steps without the key outstanding disclosure and repeatedly informed the Crown of this fact. Once Defence counsel received the outstanding key disclosure, he was able to provide a trial estimate within ten days and immediately mobilized to start setting dates for trial. See: R. v. Vuong, 2021 ONCA 697, at paras. 18-19.

[38] The repeated “attempts by the Defence to expedite the proceedings” in this case were analogous to those in Godin, including: (i) Repeated, specified, and itemized disclosure requests. (ii) Direct disclosure requests to the assigned Crown, as requested by other Crown counsel speaking to the matter. (iii) Scheduling judicial pre-trials to move the matter forward. (iv) Immediate engagement with the trial coordinator to set trial dates; and (v) Offering to take earlier dates if they became available. See: Albinowski, at paras. 32-33; Godin, at paras. 23, 27-28 and Ameerullah, at paras. 28-29 and Vuong, at para. 19.

[39] I agree that the Crown tried to expedite the proceedings which included giving this case priority over other cases scheduled which was commendable. However, it was unfortunate that the same efforts were not put into preparing the disclosure in a timely, expedited, and efficient manner long before. It was remarkable that on December 14, 2021, the Crown disclosed a 38-page transcript of the complainant’s video statement. In addition, the Crown disclosed a transcript of the complainant’s friend’s third video statement and an official translation of the WhatsApp messages (disclosed in Spanish in December 2020). Apparently, an official translation of five audio clips were then provided on January 4, 2022 (originally disclosed in November 2021).

[40] In my view, the Defence was not responsible for the delay from December 15, 2021, until January 12, 2022.

The delay from the second trial dates offered to the actual trial date (January 12, 2022, to March 2, 2022, = 50 days or 1 month 19 days)

[41] I now turn to the dates offered by the Crown on December 2, 2021, of January 12-14-17, 2022 which were available to the Crown, but not the Defence.

[42] After the Defence rejected the December 15-17 trial dates given the short notice and the limited time to prepare for trial, the Crown informed Counsel that trial dates of January 12-14, 2022, were available. On December 2, 2021, Counsel e-mailed,

These dates also do not work for us. Starting tomorrow, my client is going to Colombia to pick up his two children (aged 11 and 10) who are going to school there. He will then be bringing them back, at which point I am away for a long-scheduled vacation to Vancouver to visit my wife's family. I am not back until just before January 12, which leaves no time for me to review the outstanding disclosure and properly discuss it with my client.

Had the disclosure been provided to me even one month earlier, I could and would have arranged my schedule to accommodate this. But I cannot do so now.

The rest of my January is quite busy. However, I will be able to move things around if you can get something in the first full week of February. Can Ms. Crawford find us dates in that week?

[43] At the trial scheduling conference on December 7, 2021, the 11(b) application was scheduled to be heard on May 31, 2022, and the trial date was set for September 7-9, 2022.

[44] On January 13, 2022, a Deputy Crown Attorney e-mailed Counsel the following, “The trial coordinator (cc’d) has advised of newly available dates: Feb 14-Mar 4, 2022. The Crown would be prepared to reschedule your client’s trial in this time frame if you are available.” That same day Counsel confirmed his and his client’s availability. On January 14, 2022, the current trial dates were set.

[45] In my view, this was the first bone fides or sincere single date that was offered and rejected by the Defence. Again, this was not the case of multiple dates offered and repeatedly rejected due to Defence’s unavailability. See: Albinowski, at para. 32-35 and R. v. Picard, 2017 ONCA 692, para. 113. The delay in question arose based on Defence’s unavailability on a single date.

[46] Therefore, the period from January 12, 2022, until March 2, 2022, was not considered Defence delay.

[47] The total delay in this matter is 19 months and 19 days, which exceeded the presumptive ceiling. There were no exceptional circumstances or discreet events that laid outside of the control of the Crown that that were reasonably unforeseen and reasonably unavoidable, that could have reduced the total delay in this matter. In end, the proceedings are stayed.

[48] I will turn to the third issue if my assessment of the pre-charge delay and or the Defence delay is incorrect.

If, however, I am incorrect in my assessment of the three periods of delay in issue in this case and the net delay fell below the presumptive ceiling has the applicant demonstrated the delay is unreasonable?

[49] If the net delay was 16 months and 23 days (Total delay is 599 days or 19 months and 19 days less pre-charge delay, 26 days, less the delay from December 15, 2021, to January 12, 2022, 29 days and less the delay from January 12, 2022, to March 2, 2022, 50 days = 494 days x 0.032855 = 16 months and 23 days), I would still find that the applicant has demonstrated that the case should be stayed for the following reasons.

[50] It is open to the Defence to adduce evidence of unreasonableness where the delay falls short of 18 months. There can be cases where the net period of delay of institutional delay falls below the 18-month threshold set in Jordan a stay of proceedings is nonetheless justified based on the unreasonable nature of the that delay. See: Jordan, at para. 105.

[51] The 18-month threshold is “not an aspirational target … The public should expect that most cases can and should be resolved before reaching the ceiling.” See: Jordan, at paras. 51 and 56.

[52] The Defence has the burden of establishing the following components where the delay falls below the presumptive ceiling: (1) The Defence took meaningful steps that demonstrate a sustained effort to expedite the proceedings (Defence initiative). (2) The case markedly exceeded its reasonable time requirements.

Did the Defence take meaningful steps and sustained attempts to expedite the proceedings?

[53] In my view, the entire delay in this case was caused by the missing disclosure. Counsel made meaningful and sustained attempts to bring to the attention of the Crown in the form of repeated court appearances and written requests to the assigned Crown, Crowns that attended the three JPTs, and the assignment court Crowns.

[54] The Defence must "put the Crown on timely notice when delay was becoming a problem." See: Jordan, paras. 84-85. Furthermore, the Defence "must engage in proactive conduct throughout" and "show the accused is committed to having the case tried as quickly as possible." See: R. v. K.J.M., 2019 SCC 55, at para. 83.

[55] It was astonishing that under any circumstances but especially in a child sexual assault and sexual interference matter, that in the case of the complainant’s video statement to the police, Counsel attempted several times over an 11-month period to access the missing the disclosure and wrote to the Crown seven times asking for the complainant’s statement to avoid “needless delay” that nevertheless ensued. After initial disclosure was clearly incomplete from December 22, 2020, and onwards, Counsel and his agents made nine court appearances and raised the issue on the record.

[56] I find it hard to imagine what else might have been done by the Defence to move the matter forward, particularly considering the plain importance of these pieces of disclosure within the overall constellation of evidence. See: Jordan, paras. 84-86.

[57] In a case of sexual assault, it is beyond dispute that the Defence should satisfy itself of the importance of the complainant’s statement by reviewing it personally rather than proceed on the assumption that it is unimportant and risk prejudicing the accused’s interests in a profound way. Counsel was entitled to review disclosure they had received to determine its importance. See: R v Safdar, 2021 ONCA 207, paras. 39-40 and R. v. D.A. 2018 ONCA 96, at paras. 12-13.

[58] I am more than satisfied that Counsel took meaningful and sustained steps consistently throughout the proceedings.

[59] I now turn to the second component.

Did the delay markedly exceed the reasonable time requirements of the case?

[60] Jordan, at para. 87 highlighted the following three factors to consider when assessing the reasonability of delay: (i) the complexity of the case; (ii) local considerations and; (iii) whether the Crown took reasonable steps to expedite the proceedings.

[61] In my view, these factors supported the applicant’s argument for a stay due to unreasonable delay for the following reasons.

Was this a complex case?

[62] This case was not unusually complex. Jordan defined complex cases which are those that “due to the nature of the evidence or the issues require an inordinate amount of trial or preparation time such that the delay is justified.” These factors include but are not limited to voluminous disclosure, highly technical evidence that requires expert interpretation, impugned conduct spanning long periods of time, multiple charges, complex pretrial applications, novel legal issues, and a large number of disputed issues. See: Jordan, para. 77. In my view, none of these considerations applied to this case.

[63] Based on my review of the facts or allegations of this case there did not seem to be anything unusually complex. This was an allegation that arose over a single evening, that involved a single complainant. There was no co-accused in this matter. There was no expert witness(s) that was required to interpret evidence or data. The Trial Estimation Form that was submitted indicated that there were four civilian witnesses for the Crown. One police officer was listed as a witness for “witness management.” The Defence indicated one to two witnesses may be called. There was 13 seconds of video surveillance, a few audio clips and text messages to be played. The trial estimate was three days. There was an agreement between the Crown and the Defence that evidence (text messages) could be tendered without the necessity of making any applications pursuant to sections 276 and or 278 of the Code.

Did the local conditions impact the delay in this case?

[64] I find that the second factor that local conditions did little to explain the delay in this matter inured to the benefit of the applicant. Despite the volume of cases in the busiest jurisdiction of Peel Region, this did not justify any of the delay in this case. See: R. v. Elakrat, 2020 ONCJ 343, at para. 51; R. v. Dhaliwal, 2019 ONCJ 761, at para. 31; R. v. Khattra, 2020 ONSC 7894, at para. 62. The Crown’s failure to respond to Defence disclosure requests as happened here cannot be considered standard for any jurisdiction.

[65] The late disclosure that caused the disclosure had apparently been in the possession of the police since the complainant’s interview had been video recorded on July 11, 2020. Ostensibly, that disclosure made its way to the Crown’s office in Brampton by October 14, 2020. But Counsel had not received it until November 15, 2021, approximately 16 months later. Interestingly, during the pandemic, Crown counsel and Justices of the Ontario Court of Justice were available within a reasonable period to complete numerous pretrial steps. However, these steps were largely ineffective due to the missing core disclosure.

[66] I agree that that the quick turnaround on trial dates offered by the Crown was not consistent with an overburdened local court system was to blame for the delay in this matter. The Crown was able to secure two sets of three-day blocks of trial time with two weeks and one month of the Crown’s e-mails to Counsel on December 2, 2021. The Crown was able to secure a third block of trial dates on January 13, 2021, for February 17 and March 1-3, 2022.

[67] Thus, I find that local conditions did not give rise to any delay in this case.

Did the Crown take meaningful steps to expedite the matter?

[68] I agree that the Crown did take some meaningful steps. Unfortunately, those steps were taken in the “11th hour” in the process. The Crown took virtually no steps to address the unacceptable delay until approximately 15 months after the applicant’s arrest.

[69] The Crown was largely impassive and indifferent to the Defence’s written and on-the-record requests for further disclosure. I have seen no meaningful explanation for failure of disclosing the complainant’s disclosure until November 15, 2021. Furthermore, it was unacceptable that every follow-up request for disclosure to an assigned Crown went unanswered. During the numerous court appearances, the Crown did not offer any reasons for the absence of disclosure beyond, stating that it was being reviewed or edited and with no estimate on when the material would become available.

[70] I also find it vexing that the remaining disclosure of the translations of voice notes was still outstanding when the December 15 dates were offered and yet were not actually made available until January 4, 2022. This occurred in the face of a Crown suggesting that the earliest that those notes could be translated and provided to the Defence was two days before the trial (December 13, 2021). It was unfortunate that the Crown did not make similar efforts to mitigate the delay earlier on as there would have been ample time to review this disclosure. As stated in R. v. Delangel-Chavira, 2017 ONCJ 177, at para. 41:

Admirable as this trial coordination might be, it does not change the overriding character of those last five months twelve days: they were necessary as the Crown did not make disclosure of an item in existence since the time of the offence, consistently requested and reasonably required for preparation by Defence.

[71] In my view, the Crown’s failure to move the matter along and respond to the Defence’s repeated requests for key disclosure was incongruent to the Defence’s frequent and steadfast efforts to do the equivalent.

[72] In the end, I find that this was a “clear case” referred to in Jordan where a delay under the presumptive ceiling was rendered unreasonable by a combination of Defence efforts and the Crown’s apathy after the applicant’s arrest and the estimation of the end of the trial date. This case stagnated due to the inaccessibility of disclosure that was in the hands of the Crown’s possession and was necessary for the Defence to make full answer and Defence for well over a year. That was unacceptable.

[73] I find the that the backlog in Peel did not account for the delay in disclosure. In fact, the Crown’s ability to secure early and expedited trial dates suggested that regional difficulties were not at play in this case. Furthermore, the allegations were not complex to warrant the delay. Finally, the Defence did everything appropriate to access the important disclosure by making repeated requests that were largely ignored by the Crown. During this period the Crown did nothing to mitigate the resultant delay until the “11th hour.”

[74] The Crown argued that the stays for cases in which the delay falls below the presumptive ceiling are rare and limited to clear cases. See: R. v. Coulter, 2016 ONCA 704, at para. 87 and Jordan, at paras. 85 and 90.

[75] I concur with Justice Rahman’s interpretation of the Supreme Court’s view on the nature of the case that falls below the presumptive ceiling and is stayed. His Honour stated the following in Sawh, at para. 27,

I do not read either Coulter, or Jordan, as requiring that there must be anything exceptional about a case before it is stayed, or that a court must apply a separate clearest of cases analysis before entering a stay. The Supreme Court's observation that a stay of proceedings will be rare where delay falls below the presumptive ceiling was not meant as a direction to trial courts only to stay cases in rare or exceptional circumstances. It was simply an expectation that, based on a typical application of the Jordan framework, a stay of proceedings will not be common. The bottom line is that if an application of the Jordan framework leads to a finding there has been unreasonable delay, a stay follows. That is the situation here.

[76] Finally, the facts of this case do not reflect equal and joint responsibility of the parties to “efficiently communicate meaningfully and frequently about cases so that the presumptive ceilings are not broached.” See: Jordan, paras. 83 and 105 and R. v. Gnanasubramaniam, 2017 ONCJ 14, at para. 22.

The Conclusion

[77] The applicant has established that the delay in this case was unreasonable. The application is granted and the charges against the applicant are stayed.

Released: March 16, 2022. Signed: Justice P.T. O’Marra