COURT FILE NO.: CR-23-840; CR-22-480 DATE: 2024-05-03 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING Nancy Flynn, for the Crown Respondent

• and -

KENNETH BETTES John Lefurgey for the Applicant Applicant

HEARD: April 5, 2024

The Honourable Justice S. Antoniani

AMENDED RULING RE 11(B) APPLICATION

Overview

[1] The Applicant, Kenneth Bettes, is charged with sexual assault, forcible confinement, assault, assault by choking, and uttering threats. He brings a pre-trial application seeking to stay the trial proceedings pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms on the basis of an alleged violation of his s. 11(b) Charter right to trial within a reasonable time.

[2] The total delay in the case is 1447 days or about 47.5 months. The information charging these offences was sworn on June 5, 2020. The case is scheduled for a seven-day jury trial which is anticipated to conclude May 21, 2024. This delay is beyond the presumptive ceiling of 30 months set out by the Supreme Court of Canada in the seminal case R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. See also R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659.

[3] The issue to be determined is whether the net delay from the swearing of the information to the conclusion of the currently scheduled trial, falls above or below the 30-month Jordan ceiling, and whether, in any event, the delay is unreasonable.

[4] For the reasons that follow, I find that the net delay falls well below the Jordan ceiling, and that the defence has failed to show that the delay was, in any event, unreasonable.

Facts

[5] There are several factors contributing to the length of this case, including the onset of the COVID-19 pandemic and the corresponding delays, illegitimate conduct by the first counsel for Mr. Bettes, Mr. Bettes switching counsel, and adjournment of the trial date after the Crown came into possession of late disclosure.

[6] A brief review of each appearance by first counsel follows:

a. October 30, 2020 – This appearance was made after the two-month court-wide COVID-19 adjournment. Disclosure had been made available prior to the adjournment, on June 12, August 13, and October 26, 2020. At this appearance, counsel indicated the following: “I am just checking to see if I have disclosure or not” after which they told the court that they would have a Crown pre-trial and requested a five week adjournment. A bench warrant to hold was requested for Mr. Bettes, as no designation of counsel was filed.

b. December 4, 2020 – Counsel advised that he was retained and that he is going to schedule a Crown pre-trial. A bench warrant to hold for Mr. Bettes as no designation filed.

c. January 8, 2021 – Counsel indicated that he meant to set a Crown pre- trial that morning but didn’t arrive early enough. Counsel advised that he would set the meeting that very morning after leaving the courtroom. A bench warrant to hold for Mr. Bettes as no designation filed.

d. January 29, 2021 – Counsel advised that he had just booked a Crown pre-trial that morning for February 24, 2021. The assigned Crown attorney was present in court and offered that she could meet with counsel any time that week, so that a shorter adjournment would be feasible. Counsel confirmed that they had the Crown’s cell number and the matter was adjourned for two weeks. Bench warrant to hold for Mr. Bettes as no designation filed.

e. February 12, 2021 – Counsel indicated that they didn’t connect with the Crown in the two-week interval. Counsel suggested that the matter would also require a judicial pre-trial, following the Crown pre-trial, and that they would meet with the Crown and schedule the judicial pre-trial before the next return date. The matter was adjourned to March 12, 2021. Bench warrant to hold for Mr. Bettes as no designation filed.

f. March 12, 2021 – Counsel indicated that they met with the Crown but did not schedule a judicial pre-trial. Counsel stated “I will request an adjournment for that purpose and undertake by the next date to have that scheduled.” Bench warrant to hold for Mr. Bettes as no designation filed.

g. April 16, 2021 – Despite the earlier undertaking, counsel advised that they did not schedule a judicial pretrial, and requested a further adjournment. A warrant to hold for Mr. Bettes as no designation filed.

h. April 30, 2021 – Counsel indicated on the record they’d had a judicial pretrial (they had not) and they would now like to meet with the client and requested an adjournment. The matter was adjourned, with a warrant to hold for Mr. Bettes, as no designation filed.

i. May 28, 2021 – Counsel corrected information provided a month earlier, indicating: “I thought we had a judicial pre-trial but we have not.” The judicial pre-trial had not yet been scheduled, and counsel requested another five-week adjournment. The Crown indicated again that a judicial pre-trial has been required since February. A warrant to hold for Mr. Bettes as no designation filed.

j. July 9, 2021 – Counsel attended and indicated that they set a judicial pre-trial for July 22, 2021, and the matter was adjourned to August 13, 2021. No designation of counsel – bench warrant to hold for Mr. Bettes.

k. July 22, 2021 – A judicial pre-trial was held.

l. August 13, 2021 – Counsel did not attend court, although the transcript indicates that they had two matters on the list. The matter was held down until duty counsel was able to get instructions, apparently in the afternoon session. Counsel sent a message asking for a one week adjournment and a warrant to hold for Mr. Bettes as no designation filed.

m. August 20, 2021 – Counsel did not attend court for a second time. Duty counsel attempted contact by telephone. The Crown indicated they had a judicial pre-trial in July and have trial time estimates and are ready to set trial dates. Duty counsel indicated that they made contact with counsel who requested that the matter be adjourned for two weeks. A warrant to hold for Mr. Bettes as no designation filed.

[7] Mr. Bettes retained new counsel on September 9, 2021. A brief review of the appearances by second counsel is as follows:

a. September 10, 2021 – New counsel indicated that they had been retained the day prior, on September 9, 2021. They had prepared a designation of counsel and made inquiries as to how to file the designation, as proceedings were continuing via Zoom.

b. September 23, 2021 – A request for additional disclosure was made by new counsel.

c. October 22, 2021 – New counsel indicated that they were “plowing my way through a lot of disclosure”, and an adjournment was requested.

d. November 17, 2021 – A second Crown pre-trial was held.

e. December 3, 2021 – Counsel obtained a second judicial pre-trial date for December 14, 2021.

f. December 14, 2021 – Second judicial pre-trial was held with new counsel.

g. January 7, 2022 – Mr. Bettes elected to be tried by judge and jury. The matter was adjourned to the Superior Court of Justice.

h. January 21, 2022 – First appearance before the Superior Court of Justice.

i. February 18, 2022 – Matter was before the Superior Court of Justice assignment court. An agent appeared on behalf of counsel for the defendant and indicated that a judicial pre-trial had been set for March 10, 2022. He did not believe that the eight days between the judicial pre- trial and the next assignment court (which would have been March 18, 2022) was enough time for counsel. The agent asked for an adjournment to the April assignment court on April 22, 2022.

j. March 10, 2022 – Judicial pre-trial held.

k. April 22, 2022 – Another appearance before the Superior Court of Justice assignment court, but no trial dates had been selected. An agent for counsel put the following on the record: “He [counsel] has to arrange trial and motion dates and says he hasn’t had a chance to do that, so is asking for another month to do that.” The Crown asked the agent to remind counsel that there was also some discussion that Mr. Bettes might re-elect to judge alone.

l. June 17, 2022 – Matter returned to assignment court. On that day, counsel indicated on the record that there would be no re-election to judge alone. Counsel also indicated: “Sadly, I neglected to set up dates” and they requested an adjournment to the July 22, 2022, assignment court.

m. July 22, 2022 – Counsel set dates for pre-trial motions and trial. Pre-trial motions were scheduled to take place in June 2023 and September 2023, with the trial starting October 10, 2023.

n. January 13, 2023 – The trial coordinator advised there was a scheduling issue. New trial dates were offered in June, July, September, and December 2023. Defence counsel was not available for the June and July dates. New pre-trial motions were scheduled for May 29 and 30, August 11, and September 29, 2023. The trial was scheduled to commence December 4, 2023.

o. November 29, 2023 – The Crown advised they received new disclosure from the complainant. The complainant provided eight pages of handwritten notes from a diary or small notebook belonging to the complainant. The Crown notified defence counsel immediately and counsel advised that they intended to apply to adjourn the trial, now only six days away.

p. November 30, 2023 – Urgent court appearance to hear the opposed defence application for adjournment. Adjournment was granted, and a new trial date was scheduled for January 9, 2024.

q. December 14, 2023 – Defence intended to bring a second s. 278 application for disclosure of the entirety of the complainant’s diary and requested an adjournment of the trial for the application, and as such the original trial date would be used for the application, and new trial dates were needed.

r. January 9, 2024 – Section 278 application was heard.

[8] The s. 278 application was dismissed in oral reasons delivered by the trial Judge. Shortly after, Mr. Bettes brought this s.11(b) application.

Legal Principles

[9] Section 11(b) of the Charter guarantees all persons charged with an offence the right to be tried within a reasonable amount of time. The Supreme Court in Jordan, at para. 5, set out what a “reasonable amount of time” is. For trials before provincial courts, such as the Ontario Court of Justice, the charges must be tried within 18 months. For trials before superior courts, such as the Ontario Superior Court of Justice, the charges must be tried within 30 months.

[10] Guidance as to how to calculate delay comes from Jordan and was summarized by the Ontario Court of Appeal in R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 451, at paras. 34-41, as follows:

(a) Calculate the total delay, starting from the date of the charge to the actual or anticipated end of trial;

(b) Subtract any defence delay, which results in the net delay;

(c) Compare the net delay to the presumptive ceiling. If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable, and the Crown must rebut the presumption by establishing the presence of exceptional circumstances;

(d) Generally, exceptional circumstances will fall under the categories: discrete events and particularly complex cases;

(e) Subtract the delay caused by discrete events from the net delay, leaving the remaining delay;

(f) If the remaining delay still exceeds the presumptive ceiling, then the court must consider whether the case was sufficiently complex that the time it has taken is justified. If it is not, then a stay will follow; and

(g) If the remaining delay falls below the presumptive ceiling, then the onus shifts back to Mr. Bettes to show that the delay is unreasonable.

[11] There are two different forms of defence delay. The first is delay that occurs as a result of an accused waiving their s. 11(b) rights to a timely trial: Jordan, at paras. 61-62. The second is delay that occurs solely or directly by the conduct of the defence: Jordan, at paras. 63-66. Legitimate steps taken by the defence to respond to the charges do not count toward defence delay: Jordan, at para. 65.

[12] If the net delay falls below the ceiling, then the onus is on the defence to show that the delay is unreasonable: Jordan, at para. 82. To do so, the defence must establish that “(1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have”: Jordan, at para. 82.

[13] In contrast, if the net delay exceeds the ceiling, then it is presumptively unreasonable: Jordan, at para. 47. The Crown can rebut this presumption by establishing the presence of exceptional circumstances, such as circumstances that are reasonably unforeseen or reasonably unavoidable and circumstances such that the Crown cannot reasonably remedy the delays emanating from them once they arise: Jordan, at para. 69. If the Crown cannot rebut the presumption, then the delay is unreasonable and a stay will be imposed: Jordan, at para. 47.

[14] A determination of the net delay and the total circumstances necessitates a detailed review of each step in the proceeding, commencing on the date of the swearing of the information. Given the total delay of 1447 days in this case, if the deductible delay exceeds 535 days, the net delay will have been under the ceiling of 30 months, or 912 days.

Analysis

Intake and Disclosure

[15] The information was sworn on June 5, 2020, very early into the COVID-19 pandemic. A contested bail hearing was held on June 8, 2020. On June 12 and August 13, 2020, the first two rounds of disclosure were made available for pick up, and the first appearance after bail was August 21, 2020. This period of intake and disclosure was 77 days. This period counts toward the presumptive 30-month ceiling.

COVID-19 Court Closure

[16] On August 21, 2020, all matters before the court were adjourned for 70 days, to October 30, 2020, due to the COVID-19 pandemic. During this period, I note that the Crown prepared and released additional disclosure.

[17] Counsel for the Crown ably argued that this adjournment should only be the starting point for determining what amount of delay should be allocated to the discrete event of the COVID-19 pandemic in this matter. The Crown submits that an additional three months of delay should be attributed to recognize the impact of COVID-19 on the justice system, citing R. v. Ivarone, 2023 ONCJ 69, at paras. 4, 10-11, 15-16, as an example.

[18] The defence concedes there was an adjournment caused by the COVID-19 pandemic from August 21, 2020, to October 30, 2020. However, the defence submits this should not be considered a delay in proceeding with the case because the time was not wasted. Defence takes the position that a case-by-case approach should be taken to determining COVID-19 delay. It is at least a question whether the COVID-19 adjournment should be considered a discrete or exceptional event to be deducted from net delay in this case because the adjournment was used for disclosure.

[19] I take note of the fact that all court operations were affected by an abrupt change to remote work and to the changing approaches to keeping courts open during the pandemic. I also accept that there is no standard deduction for the COVID-19 pandemic and any related delays.

[20] The caselaw overwhelmingly supports a finding that the COVID-19 pandemic is an exceptional circumstance within the Jordan framework: R. v. Gonsalves, 2022 ONSC 6004, at para. 20. In Ivarone, at para. 15, Leitch J. found three months of delay was appropriate to reflect Hamilton’s local pandemic conditions. Likewise, in R. v. Karafa and Li (2 April 2024), Hamilton (Ont. S.C.), Arrell J. found three months was a reasonable amount of delay to attribute for COVID-19 backlog. I attribute the 70 days during which the courts were closed to the delay caused by the COVID-19 pandemic in this case. As per the cases referenced, more time could be attributed to the COVID-19 pandemic, and especially to the significant impact of the pandemic on the scheduling of courts: R v Simmons, 2020 ONSC 7209 at para 70. However, given my overall assessment of the various delays in this case, which already brings the net delay well under the Jordan ceiling, I have restricted the attribution to the COVID-19 pandemic to only the actual number of days that the courts remained closed.

First Counsel for Mr. Bettes

[21] Both Crown and defence agreed that the continuous period between August 13, 2021, the last appearance when Mr. Bettes’ first counsel was on the record, and January 7, 2022, when new counsel was ready to assist Mr. Bettes in his election to judge and jury and move to Superior Court, should be considered defence delay. This would amount to 147 days of defence delay. I have not accepted the joint position of counsel on this issue.

[22] It appears to have become the standard that when an accused person retains new counsel, the additional time required for new counsel to be retained, obtain disclosure, or redo any steps which have already occurred, such a Crown and judicial pre-trials, is deducted as defence delay: for example, see R. v. Browne, 2020 ONSC 5244, at paras. 50-62; R. v. Pogachar, 2021 ONSC 5826, at para. 29; R. v. Saeed, 2021 ONSC 5084, at paras. 9-10. There is sound reason for this approach in most cases.

[23] In this case, I have decided that it is more appropriate to deduct the entire time that the original counsel was acting, because I find that the matter was not advanced while the first counsel represented Mr. Bettes. It is important that the court signal clearly that defence will bear delay when counsel do not participate in moving the process ahead and when counsel fails to participate responsibly in the process.

[24] I find the inaction of the original defence counsel to amount to illegitimate conduct. In doing so, I have considered R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 33, where the court stated:

As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extend to omissions as well as acts (see, for example in another context, R. v. Dixon, [1998] 1 S.C.R. 244, at para. 37). Accused persons must bear in mind that a corollary of the s. 11(b) right “to be tried within a reasonable time” is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to “actively advanc[e] their clients’ right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and ... us[e] court time efficiently” (Jordan, at para. 138).

[25] As is evident from this review, the original counsel did little to advance the proceeding. What was done had to be redone by new counsel. I have attributed all the time between October 30, 2020, until the first appearance of new counsel, on September 10, 2021, as defence delay, totaling 315 days.

New Counsel for Mr. Bettes

[26] New counsel for Mr. Bettes was retained in September 2023. At this time, legitimate steps were taken to respond to the charges. For example, counsel requested additional disclosure and scheduled Crown and judicial pre-trials. He prepared a designation of counsel and was prepared to file it on his first appearance.

[27] The Crown argued that the conduct of the judicial pre-trial in the Ontario Court of Justice is an unnecessary step where the accused elects to be tried in the Superior Court. There is no right to a preliminary hearing, so the use of a judicial pre-trial – which was in this instance done to have a judge authorize the time required for trial and any pre-trial motions – was pointless.

[28] Although I agree that this could, strictly speaking, be the case, I don’t believe that the court should be scrutinizing every decision of counsel in attempt to find an error. Counsel appeared December 3, 2021, set and attended a judicial pre-trial on December 14, 2021, and then attended January 7, 2022, to indicate the election to Superior Court of Justice. In the circumstances of having been retained September 9, 2021, I find that new counsel took legitimate steps to respond to the charges during this period. Therefore, this time period does not meet the standard to be considered defence delay.

[29] However, the progress being made by new counsel stalled. Counsel first attended Superior Court assignment court on January 21st. On that date they made their first inquiry as to how to schedule a judicial pretrial, as they had not scheduled one prior to that date.

[30] The matter was adjourned to February 18th, at which time they attended and advised that a judicial pretrial had been set for March 10th, and the matter was adjourned to April 22, as counsel was concerned that next assignment court of March 18th would not leave enough time.

[31] At the assignment court on April 22, 2022, a full six weeks after the judicial pretrial had been conducted, no trial dates were set because defence counsel had not scheduled them. The local practice is for counsel to select trial dates with the trial coordinator via email. The dates are then preserved until counsel and the crown appear to confirm them on the next scheduled assignment court date. The matter was adjourned to the June 2022 assignment court date.

[32] Despite email communications from the trial coordinator on June 1st, no trial dates were selected. At the assignment court on June 17, 2022, counsel advised that they failed to arrange dates again, and the matter needed to be adjourned to the July 2022, assignment court. I find that the time from the assignment court on April 22, 2022, before which this matter could have been set, until the assignment court on July 22, 2022, is defence delay of 91 days.

[33] Trial dates were selected and confirmed on the record on July 22, 2022. However, in early 2023, the trial coordinator advised that there had been a scheduling issue which necessitated the selecting of new, later trial dates. New dates were selected.

[34] During the January 2023 communications, the trial coordinator also advised that the original trial dates could have been kept if the pre-trial motions would be heard by a different judge. Mr. Bettes was not agreeable to having a different judge conduct the pre-trial motions. The decision not to consent to a different judge does not count as delay against Mr. Bettes. The delay occasioned by the need to select new trial dates forms part of the 30 month presumptive ceiling.

Pre-trial Motion Scheduled but Abandoned

[35] When scheduling the trial dates, fully 17 months after second counsel was retained, counsel indicated that voluntariness would be in issue. Counsel set two full days for the hearing of this motion, on August 11 and September 29, 2023.

[36] The voluntariness voir dire was abandoned on the first day it was to be heard. I am troubled by the scheduling of two full days for a voluntariness voir dire in this matter. Counsel had much time to review the statement and consult with his client and determine whether the voluntariness of his statement would be challenged. Even when all parties were at court for a s. 278 application on May 29, and 30, 2023, the voir dire was not abandoned on the record.

[37] A proactive approach by counsel is required to prevent unnecessary delay: Cody, at para. 33. All participants in the criminal justice system share this responsibility, defence and Crown alike: Jordan, at para. 137.

[38] In failing to assess a position on voluntariness prior to scheduling of the pretrial motion dates, and then failing to advise of the intention to abandon the motion at any time which would have allowed court resources to be reused, defence was not proactive and likely caused unnecessary delay. I find this to be illegitimate conduct. It is impossible to determine retroactively how it could have impacted trial scheduling if only one pre-trial motion had been requested, without the need for two full additional days for the voluntariness voir dire. I have included a modest allocation of the 35 days which was the time lapsed between the first and second abandoned days, as defence delay.

[39] I pause here to note that the delay caused by first counsel in Ontario Court of Justice of 315 days, plus the 126 days of delay of the new counsel in failing to select trial dates, plus the modest allocation of exceptional delay to the COVID-19 pandemic of 70 days, and the delay for illegitimate scheduling of the voluntariness voir dire of 35 days, together total 546 days. 546 days of delay subtracted from the total delay in this case of 1447 days brings the matter under the Jordan ceiling of 30 months.

[40] The remaining periods of contention include the adjournment of the trial date after the Crown came into possession of late disclosure, the availability of defence counsel thereafter to schedule the current trial, and the legitimacy of the decision by defence counsel to bring a second s. 278 application after receiving the late disclosure.

Late Disclosure and the Adjournment

[41] On November 29, 2023, while meeting with the complainant in preparation for trial, the complainant provided the Crown with eight pages of handwritten notes in what was described as a diary or a small notebook of the complainant. The Crown notified defence counsel immediately and counsel advised that they intended to apply to adjourn the trial, now only six days away.

[42] The Crown made an urgent request that the matter be scheduled before a judge for a hearing of the opposed defence application for adjournment. It is clear from the transcript of the November 30, 2023, court appearance, that the presiding judge was not inclined to adjourn the trial. The judge was advised that the disclosure was of handwritten notes by the complainant, that they were not of a substantial volume, and that the notes referred to events which occurred the weekend prior to the then alleged offence dates, and named some people who were present along with the complainant and Mr. Bettes.

[43] Defence counsel advised that the new disclosure referenced three witnesses that the defence already planned to call at trial. Given this, the presiding judge determined that the late disclosure ought not be too difficult for the defence to contend with. On counsel’s insistence that he wanted more time, the judge stood the court down and spoke to the trial coordinator. Upon resumption, the judge advised that she could offer trial dates only one month later, on January 9, 2024, with the same trial judge. Counsel was advised that he was expected to be ready to go on that date. Counsel responded “for sure.”

[44] Two weeks later, counsel advised the Crown that he intended to bring a second s. 278 application for disclosure of the complainant’s entire diary. Again, the Crown made an urgent request that the matter be put before the court for a defence motion to adjourn the trial dates. The assigned trial judge presided over the motion on December 14, 2023.

[45] New trial dates were selected. In attempting to set the matter for a new trial earlier, the trial judge offered trials starting March 25, April 15, 22 and 29, 2024 and indicated that the court would make itself available after April 2, even though it would mean giving up vacation dates or other times when she was not scheduled to preside. Defence counsel indicated that they were not available before mid-May 2024.

[46] In their factum, defence counsel concedes that some portion of the time between December 4, 2023, and May 21, 2024, is defence delay, due to their non- availability in the face of numerous dates that were offered. I have already deducted the time from December 4, 2023, to the new January 9, 2024, trial date, below, as a discrete event, so the additional period in issue here is from January 9, 2024, to the end of the third and current trial date of May 21, 2024. Counsel did not propose what amount of delay would be reasonable to attribute.

[47] I would have attributed 30 days to defence delay, on account of defence being unavailable while the court and Crown were available. However, I already deducted the entire period as defence delay, on the basis that I have found the s. 278 application to have been an illegitimate step, below. Therefore, this 30-day delay is only relevant in the event that I have erred in attributing delay to the s. 278 application brought by defence for disclosure of the complainant’s diary.

[48] Two additional issues arise out of the late disclosure and the following s. 278 application. First, was the late disclosure an exceptional circumstance? Second, was the s. 278 application an illegitimate step?

Was the Late Disclosure an Exceptional Circumstance?

[49] Exceptional circumstances were described in Jordan, at para. 69, as follows:

Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. [Emphasis removed.]

[50] There are two recognized categories of exceptional circumstances: discrete events and particularly complex cases: Cody, at para. 46. In R. v. Pham, 2021 ONCJ 479, at para. 47, the Ontario Court of Justice explained the “key to the discrete events category of exceptional circumstances is unpredictability and unavoidability.” Therefore, I must determine whether the late disclosure by the Crown is earmarked by unpredictability or unavoidability, thereby making it a discrete event qualifying as an exceptional circumstance under the Jordan framework.

[51] Defence counsel argued that the disclosure might have come to light sooner if the Crown had prepared the complainant on an earlier date. I reject this argument. The Crown was preparing her witness in the days leading up to trial. The requirement is that of reasonableness: Cody, at para. 54.

[52] Moreover, I must consider whether the Crown took reasonable steps to remediate the error and minimize delay. To be clear, Crown “is not required to show that the steps it took were ultimately successful — rather, just that it took reasonable steps in an attempt to avoid the delay”: Jordan, at para. 70.

[53] I find that the emergence of diary pages qualifies as a discrete event, and would deduct the delay that followed, from December 4, 2023, to January 9, 2024, which was 36 days. It was reasonably unavoidable and unforeseeable, and the Crown acted responsibly in making prompt disclosure and in ensuring that the matter was before the court on an urgent basis the following day: Cody, at para. 54. When she learned of the defence intention to bring the s. 278 application, it was once again the Crown’s action which led to an urgent hearing with the court to secure new dates.

Was the s. 278 Application an Illegitimate Step?

[54] The more contentious issue is whether the adjournment of the January trial dates for the purpose of bringing a second s. 278 application falls in the category of an illegitimate step taken by defence. If the application was illegitimate, then all the delay after the January 9, 2024, trial date is defence delay.

[55] The Supreme Court discussed illegitimacy in Cody, at paras. 31-35. Whether defence conduct is legitimate is highly discretionary: Cody, at para. 31. Trial judges must consider the circumstances surrounding the defence conduct in determining whether the defence action is legitimately taken: Cody, at para. 32. The right of the accused person to make full answer and defence must be balanced with the right to be tried within a reasonable time. In short, what defence counsel are not permitted to do is “engage in illegitimate conduct and then have it count toward the Jordan ceiling”: Cody, at para. 34.

[56] In bringing the s. 278 application, defence sought disclosure of the entirety of the complainant’s diary (of which eight pages had been disclosed on about November 29, 2023). The application was dismissed at what is commonly referred to as “stage one.” At stage one, the court found Mr. Bettes did not meet the initial onus of showing that the material was “likely relevant” to an issue at trial.

[57] In its reasons, the court noted that even defence counsel referred to their own submissions as “speculative.” In dismissing the application, the court found the defence position to be “entirely speculative,” “purely speculative,” and finally, it found that the factual premise of the application was “speculative and without any foundation in the evidence and is also inconsistent with the basic rules of evidence.”

[58] I highlight those findings because they are relevant to a determination of whether a step taken by defence is to be viewed as illegitimate. In turning again to the direction of court in Jordan, at para. 65, I have considered that 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.”

[59] I also take note of Cody, at para. 31, that “[w]hile 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.”

[60] A step in a proceeding is not illegitimate because it fails. However, the court must look to the specific nature of the step, and to the trial court’s reasons, to assess whether the step crosses the line from being unsuccessful to being illegitimate. In fact, the court recognized that even meritorious steps may not be legitimate if the were designed to delay, or were indifferent toward delay: Cody, at para. 32.

[61] Defence counsel had been under the impression that his predecessor waived periods of delay, a belief which is not borne out by the transcripts. By November 30, 2023, it was evident that all eyes were on the Jordan ceiling. The Jordan ceiling was the primary consideration in all discussions during the November 30 adjournment application. The court made its own direct inquiries with the trial coordinator to secure the January 9, 2024, trial dates.

[62] Defence counsel must have understood the consequence of bringing a s. 278 application on the newly scheduled trial dates. They must have known that their own schedule would not permit a new trial date until after mid-May 2024. I note that they are experienced counsel, and that they referred to their own application as “speculative.” In all the circumstances, I find that the decision to bring a speculative s. 278 application on the new trial date was illegitimate, and that all the delay occasioned by that decision, to the next trial date, of 126 days, is defence delay.

Conclusion

[63] In conclusion, I find the following delays should be deducted from the total delay in this case of 1447 days, bringing the matter well within the 30-month ceiling imposed by Jordan:

1. Defence Delay: 567 days a. 315 days for illegitimate delay by first counsel; b. 91 days of delay of new counsel failing to select trial dates; c. 35 days for the illegitimate scheduling of the voluntariness voir dire; d. 126 days for the illegitimate step of bringing a speculative s. 278 application on the second trial date.

2. Discrete Events: 106 days e. 70 days of COVID-19 pandemic adjournment; f. 36 days for rescheduling of the trial from December 4, 2023, to January 9, 2024 due to the exceptional circumstance of the late disclosure by the complainant to the Crown

[64] The combination of defence delay and discrete/exceptional events is 673 days. Reducing the overall delay of 1447 days by this amount results in total net delay of 774 days, or 25.46 months.

[65] I find the defence has not established the delay in this case is unreasonable. For that reason, and for all the above reasons, the defence application to stay the proceedings on the basis of an alleged breach of Mr. Bettes’ s. 11(b) Charter rights is dismissed.

Corrigendum

1. Paragraph 36: Last sentence has been removed.

COURT FILE NO.: CR-23-840; CR-22-480 DATE: 2024-05-03 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HIS MAJESTY THE KING Respondent

• and – KENNETH BETTES Applicant AMENDED RULING RE 11(B) APPLICATION S. Antoniani, J.

Released: May 3, 2024