WARNING

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of:

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

486.4 (2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.4 (3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

486.4 (4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b).

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

486.6 (2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court Information

Date: March 22, 2017

Court File No.: 16-001097

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

R.V.

Before: Justice Robert S. Gee

Heard on: January 30, 2017

Ruling on 11(b) Charter Issue Released: March 22, 2017

Counsel:

C. Lapointe for the Crown

A.J. Lobel for R.V.

Decision

GEE, J.:

INTRODUCTION

[1] R.V. is the accused in this matter. Like all accused, Mr. V. has a right to have any charge laid against him tried in a reasonable time. This right of all accused persons is enshrined in s. 11(b) of the Charter.

[2] Mr. V. claims that he has not been tried within a reasonable time and as a result, I should order a stay of the proceedings against him. These reasons will explain why I find Mr. V.'s claim is incorrect. When one looks at this case in its entirety, it becomes clear that any delay that might otherwise look at first blush to be well beyond constitutionally permitted parameters, resulted from decisions made by Mr. V. and his legal team, or due to other exceptional circumstances related to the defence.

[3] Since the enactment of the Charter the law relating to what being tried within a reasonable time means, has had a long, complicated and convoluted history. I do not propose to undertake a comprehensive review of the caselaw in this area at this time since thankfully, the Supreme Court has recently released a decision that brings much needed clarity and I dare say simplicity to the analysis.

[4] Anyone with even a passing interest in the legal system knows I am referring to the case of R. v. Jordan, 2016 SCC 27, which was released on July 8, 2016. In a nutshell, what the court did was to set bright lines, or as they called them, presumptive ceilings. What this means is that any case proceeding to trial in the Provincial court the ceiling is 18 months while cases proceeding in a Superior court the ceiling is 30 months. Any delay beyond these ceilings is presumptively unreasonable.

[5] However, these are not strict limitation periods entitling an accused to an automatic stay on the first day beyond the 18 or 30 month limit. The calculation of, and whether the ceiling is exceeded, requires some basic math. The period of time from the charge to the anticipated completion of trial is calculated. This is called the overall delay. Subtracted from this is any time deemed to be, or agreed to be defence delay. If after this calculation, the delay exceeds the ceiling, the delay is presumed to be unreasonable.

[6] This does not necessarily end the inquiry though. At this point the burden shifts to the Crown to establish that there were exceptional circumstances that also contributed to the delay. If the Crown is able to establish this, then the defence delay and the delay attributable to exceptional circumstances is deducted from the overall delay. If the period then falls below the ceiling, the presumption that the delay is unreasonable is not engaged. However, it would be open to the defence to establish that in spite of this, in the particular circumstances of the case at hand, the delay was still unreasonable (see paragraphs 46-48 of Jordan).

PROCEDURAL HISTORY

[7] The allegations in this matter that led to Mr. V.'s charges, although very serious and no doubt life altering to those involved, were relatively straightforward and fairly typical of what this court deals with on a day to day basis.

[8] In mid-September 2013, the complainant, S.D., alleged that her cousin, the accused R.V., had sexually assaulted her on July 1, 2013, while their families were camping together for the Canada Day long weekend. The accused was arrested and released on an undertaking on October 21, 2013, and made his first appearance in court on November 19, 2013.

[9] A preliminary inquiry was scheduled for August 27, 2014 and September 24, 2014. However, this preliminary inquiry did not proceed as the accused re-elected trial in the Ontario Court of Justice.

[10] A date for pre-trial motions was then set for May 6, 2015 and trial was scheduled for June 25, 26 and 27, 2015. Again, for reasons that will be fleshed out later, neither the pre-trial motions nor the trial proceeded on these dates.

[11] The only pre-trial application ultimately argued in this matter was a s. 276.1 application brought by the accused seeking leave for the accused to cross-examine the complainant on her prior sexual history. This application was argued and dismissed on November 6, 2015.

[12] The matter was then again set to be tried commencing April 26, 2016 and to continue April 27 and 28. Defence counsel however was ill on April 26 and this trial as well did not proceed on its scheduled dates for that reason.

[13] As a result, the matter was again re-set for trial for September 12, 13, 14, 15 and 16, 2016. The matter proceeded on these dates and judgment was reserved to October 27, 2016 at which time the accused was found guilty.

[14] Sentencing was adjourned from that date to January 9, 2017, for, amongst other things, the preparation of a pre-sentence report and any victim impact statements.

[15] On January 9, 2017, defence counsel was again ill and unable to attend so sentencing did not proceed. It was at that time adjourned to January 30, 2017, however on January 20, 2017 the accused filed the within application, which resulted in the January 30, 2017 date set for sentencing being used to argue this application. Judgment on this application and potential sentencing was then adjourned to March 22, 2017.

CALCULATION OF THE OVERALL DELAY

[16] The starting point for the calculation of the overall delay is the charge date, which has been interpreted to mean the date the Information was sworn. In this case that was November 7, 2013.

[17] The end point is the end or the anticipated end of trial. The end of trial does not mean simply the conclusion of the evidentiary portion of the matter. It has been interpreted to also include sentencing proceedings. See paragraph 50 of Jordan as well as R. v. MacDougall, [1998] 3 S.C.R. 45. In this case, the anticipated end of the trial proceedings is the date set for the judgment on this Application and the sentencing of Mr. V., since he has previously been found guilty. That date is March 22, 2017.

[18] This results in an overall delay of 40 months and two weeks, an inordinate amount of time on any analysis for what was a relatively straightforward matter. As noted above though, this does not end the inquiry. It is necessary to subtract from this any period of delay that was waived or caused by the defence (see Jordan, paragraph 60).

CALCULATION OF DEFENCE DELAY

[19] The Crown elected to proceed by Indictment on the matter and a two day preliminary inquiry was scheduled to commence August 27, 2014 and be completed on September 24, 2014. Had the matter gone according to this initial plan, the matter would have completed its journey through the Ontario Court of Justice in just over 10 months. However that was destined not to be the case.

[20] On August 27, 2014, the first day set for the preliminary inquiry, the defence re-elected trial in the Ontario Court of Justice (OCJ). The Crown consented to this request.

[21] Since the matter was now to proceed to trial in the OCJ it was not able to proceed on the dates that had been set aside for the preliminary inquiry. It was determined by counsel that one day would be required for pre-trial applications and three days would be required for trial. The pre-trial applications contemplated as I understand it, were an application by the defence for leave to cross-examine the complainant on incidents of prior sexual activity pursuant to s. 276 and 276.1 of the Criminal Code. As well, the Crown was seeking a ruling on the voluntariness of the accused's statement to police, given upon his arrest. Although time was set aside for this latter application, it was never argued, as the defence ultimately conceded the voluntariness of the accused's statement.

[22] New dates in the OCJ were set; May 6, 2015 for the pre-trial applications, and June 24, 25 and 26, 2015 for trial.

[23] The delay caused from the preliminary inquiry date of August 27, 2014 to May 6, 2015, the date of the pre-trial applications, a period of 8 months, and just over one week is conceded to be defence delay. If a label for this period is needed, I would call it 'delay waived by the defence'. Paragraph 62 of Jordan directly references a delay occasioned by a re-election and indicated that the Crown would likely require an explicit waiver of 11(b) in exchange for their consent. That did not happen here, likely since this took place prior to the release of Jordan, but in the circumstances I have no hesitation finding it would have been forthcoming, had the Crown made such a request.

[24] As the May 6, 2015 date for the pre-trial applications approached, something unexpected occurred. On April 25, 2015 Mr. V.'s father died unexpectedly as a result of a workplace accident he had suffered a few days before. The defence advised Mr. V. was not in a position to proceed with the applications set for May 6 and it was agreed that date would be cancelled as a result, and the applications would be heard instead starting what was to be the first day of trial, June 24, 2015, and that new trial dates would be set.

[25] In its Application materials, the defence has described this delay, from May 6, 2015 to June 24, 2015 a period of 1 month and 3 weeks as defence delay. Although in the end it may have the same effect, it is not proper to characterize it as such. Delay attributable to the defence, whether as a result of an explicit waiver of 11(b) or otherwise, is attributable to the defence as a result of choices the defence makes during the course of proceedings.

[26] A circumstance such as happened here, a death in the accused's family, is what the court in Jordan referred to as an exceptional circumstance. Exceptional circumstances are matters that are reasonably unforeseen or reasonably unavoidable and which the Crown cannot reasonably remedy. See paragraphs 69 to 72 of Jordan. The death of the accused's father qualifies as such an event.

[27] If the delay is still above the presumptive ceiling after subtracting delay attributable to the defence from the overall delay, then any period of delay that resulted from exceptional circumstances is subtracted and the issue becomes whether the delay remains above the presumptive ceiling after doing so. As such this 1 month, 3 week period of delay will be accounted for after deducting defence delay.

[28] On June 24, 2015, the defence application pursuant to s. 276 of the Criminal Code was to be argued. Prior to arguing the application, an issue arose as to the completeness of the accused's application materials. The application record as then filed was not supported by an affidavit.

[29] In order to properly understand the defence position on the s. 276 application a brief summary of the factual underpinnings of the case is required.

[30] The Crown alleged that on July 1, 2013, the accused sexually assaulted the complainant which resulted in the complainant becoming pregnant. The complainant in her statement to the police indicated at the time of the alleged sexual assault, she was a virgin. The defence sought to cross-examine her on this allegation and on her sexual activity from June 1, 2013 to July 1, 2013, to explore whether she engaged in sexual activity over that period that could have resulted in her pregnancy.

[31] On June 24, 2015 when the s. 276 application was to be argued and the issue of the lack of an affidavit was raised, the defence's initial position was that the line of cross-examination they wished to undertake was not even captured by s. 276, so, in fact, leave and the application was not necessary. This, it seems, formed part of the reason why the defence chose not to support their application with an affidavit, along with the argument that an affidavit was unnecessary since none of the areas they wished to explore in cross-examination were within the knowledge of the accused. Basically an affidavit from him was unnecessary as he had no information to add.

[32] This argument was made before the court and Justice K. Baker, who heard the application and at the time was scheduled to be the trial judge. Her Honour rejected the argument and ruled that the suggested line of questioning fell squarely within the purview of s. 276. During argument on this 11(b) application, defence counsel conceded that this ruling by Her Honour was correct.

[33] However, the defence still maintained, then and in this application, that an affidavit was not required. Section 276.1 of the Criminal Code, which specifies what is necessary on such an application, does not mention an affidavit as part of the required application materials. The Supreme Court though, in the case of R. v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443, has found that on such an application an affidavit must be filed in support of the application (see paragraph 53).

[34] Notwithstanding this clear and unequivocal pronouncement from the Supreme Court, the defence in this case purposefully chose not to file an affidavit on their application and chose to maintain this position in court. Justice Baker also ruled on June 24, 2015 that the defence materials were incomplete due to the lack of the affidavit. As a result of this ruling the defence sought an adjournment of the application in order to serve and file complete application materials.

[35] On November 5, 2015, the defence filed an application to adjourn the s. 276 application scheduled for the next day. The basis for this request was that counsel was then involved in a Superior Court trial that continued longer than anticipated. The accused offered to waive his 11(b) rights due to any delay that such an adjournment may have caused. That adjournment application though was withdrawn as the Superior Court trial completed in time to permit counsel's OCJ appearance, and the s. 276 application was ultimately argued and dismissed by Justice Baker on November 6, 2015.

[36] The matter was then adjourned to November 24, 2015 and at that time trial dates of April 26, 27 and 28, 2016 were set. The question then becomes how much, if any, of the delay from June 24, 2015 when the defence s. 276 application was first before the court, to April 26, 2016 when the matter was next set for trial, should be attributed to the defence.

[37] It is the position of the defence on this application that none of this 10 month delay is attributable to the accused. I find that position to be untenable. The real question is, 'should all that delay be attributable to the defence, or only some of it'.

[38] The defence argument is premised on the fact that their position at the initial return of the s. 276 application on June 24, 2015 was in fact correct. To put it another way, their starting point is that Justice Baker got it wrong. An affidavit on their s. 276 application, notwithstanding the Supreme Court findings in Darrach, was not required.

[39] To the defence at that time they were caught between the proverbial rock and a hard place. To stand their ground in the face of Justice Baker's ruling would have meant that the dismissal of their application was a foregone conclusion. As such they were forced to seek an adjournment in order to comply with a legally incorrect ruling. Therefore, the argument goes, the delay occasioned by this ought not to be attributed to the defence.

[40] This is an impermissible line of reasoning. It is premised on a collateral attack on Justice Baker's ruling. For me to accept this argument I would have to review her ruling and conclude it was wrong. It is not appropriate for me to undertake such a task.

[41] Notwithstanding this, I would make two additional comments in response to this argument by the defence.

[42] First, Darrach was a case decided unanimously by the Supreme Court in 2000. It has been referenced many times since and cannot be said to be some obscure or insignificant ruling. If the defence decide to advance a position directly contrary to such a decision, they do so at their peril and ought not to be surprised to have to bear the burden of the consequences of taking such a position.

[43] Second, the defence argument to support their position that an affidavit was not necessary, was that the accused had no personal knowledge concerning the areas on which cross-examination was being sought. However, paragraph 3 of the accused's s. 276 Notice of Application stated that, and I am quoting directly, "the Applicant seeks permission to question the Complainant about her prior sexual activity, with the Applicant, or any other individual, that may have occurred between June 1st and July 1st, 2013…" (emphasis added).

[44] Given that the defence sought permission to cross-examine the complainant in relation to prior incidents of sexual activity with, amongst others, the accused himself, it is hard to understand how the accused would not have personal knowledge of any of those incidents upon which he wanted to cross-examine her.

[45] It is for these reasons that I find the delay that resulted from the adjournment of the s. 276 application on June 24, 2015 is attributable to the defence as a result of the manner in which the defence chose to advance their application. The real question as noted earlier is, 'how much of this delay ought to be attributable to the defence'.

[46] The first period is from June 24, 2015 when the application was adjourned, to November 6, 2015, when it was heard.

[47] At this point a brief discussion about trial scheduling in Cayuga, the court which had jurisdiction in this matter, is necessary. Cayuga is a relatively small community. Its criminal trial courts do not sit every day. Generally, criminal courts sit every Wednesday, and every other Thursday, for approximately 6 criminal trial courts per month. Judges are brought in from Brantford to cover these courts as there is not a full time sitting judge assigned to Cayuga. As well, at the time, the office of the Crown consisted of the Crown Attorney and one assistant Crown attorney.

[48] As a result, scheduling of matters, especially multi day matters such as this, can become somewhat complicated as the court schedules in both Cayuga and Brantford have to be consulted and as noted, there are only two Crown attorneys available to handle matters in Cayuga. Given the pronouncements made by the court in Jordan, this is a type of court scheduling model that may have to be reassessed, however it is a reflection of the system that the participants were operating within at the time.

[49] When new dates for the s. 276 application were being explored on June 24, 2015, the date initially selected was September 8, 2015. It appears after court that day upon returning to her office, the assigned Crown realized that on September 8, she already had a lengthy matter scheduled for that day. As such she immediately emailed defence counsel to advise a different day would need to be selected. Through the exchange of emails over the next several days, the date of November 6, 2015 was agreed to by all parties.

[50] The Crown on this application has argued the delay from June 24, 2015 to September 8, 2015, being the date initially selected to hear the s. 276 application, is attributable to the defence but does not make such a claim for the period from September 8 to November 6 when the application was heard. I will accept this concession by the Crown and limit the delay attributable to the defence by their approach, to the s. 276 application to this 2 month and 2 week period.

[51] Having said that though, I believe the Crown may have had an arguable case to attribute the entire period to the defence. The message from Jordan is that all parties have to be cognizant of the factors that cause delays and do their best to limit those situations in which they arise. However, when a delay does arise, the response to it is going to necessarily be reflective of the practical realities the justice system is subject to. Like the court said in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3 at paragraph 23 "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." I would find this sentiment is still applicable post-Jordan and applies with equal force in relation to the Crown and the court when the matter is being rescheduled as a result of a delay attributable to the defence. Simply because the defence may have had a date earlier than the Crown or court, does not necessarily serve to freeze the time period of delay attributable to the defence at the date available to the defence but not the Crown or court.

[52] The trial of the matter was then set for April 26, 27 and 28, 2016 as these were the earliest dates available to all parties. I would attribute this entire 5 month and 3 week period to the defence. As set out earlier, given the practical realities of setting dates for a matter such as this in Cayuga, and the court's admonition in Godin above, this was a reasonable length of time, even considering the defence may have earlier dates.

[53] Fast forward to April 26, 2016, the date for the commencement of trial, and again the unexpected occurred; defence counsel was ill and unable to proceed. The Crown and court were anxious to salvage some of the dates set aside to at least commence the taking of evidence from some of the witnesses as most had travelled from Toronto to Cayuga to testify, and arrangements had been made for one witness, a doctor, to testify remotely from Bermuda. Unfortunately, defence counsel advised his condition did not improve sufficiently to allow him to proceed on any of the dates then set for the matter and he did not feel it appropriate for his associate to attend for some of the evidence in his stead, even though she had some familiarity with the matter as she had argued the s. 276 application. As such the trial did not commence then, and once again it needed to be rescheduled.

[54] Over the course of the next couple weeks there was discussion between counsel and the trial coordinators concerning potential future dates for the matter. The matter returned to court May 12, 2016 for the purpose of setting new dates. At that time the dates of July 18, 19 and 28, 2016 were discussed as Her Honour Justice Baker had offered to reschedule a week of her vacation time to accommodate the matter.

[55] As those dates were about to be set, defence counsel advised that he was contemplating bringing a motion to have Justice Baker recuse herself as it had come to his attention that Justice Baker had perhaps been copied on some emails and other communication between the Crown and court administration that the defence was not privy to.

[56] As a result of the defence indicating this, the matter was adjourned to May 20, 2016 to give defence counsel some time to decide if he was going to bring such a motion. On May 20, 2016 the defence advised the court it was his intention to do so. This posed a further problem for scheduling. The motion itself was estimated to take at least half a day. Justice Baker's schedule at that point was already filled into 2017 since, as noted, she sits primarily in Brantford, and primarily in family court. The dates for trial that had been identified were dates she had set aside for her vacation, that she was willing to give up to accommodate this matter.

[57] The practical reality that was then faced was that it would be impossible to schedule the motion date in a timely enough fashion to be able to salvage the July dates for trial. The alternative was to schedule the recusal motion for the first of the July dates. Then if the defence motion was granted, and Justice Baker recused herself, the trial would need to be rescheduled. Even if the motion was unsuccessful, it was unlikely that the motion could have been argued, ruled on, and the trial be completed, in that timeframe. The prospect then was that the trial would have to be rescheduled, likely for some time in 2017, given Justice Baker's schedule.

[58] Neither of these prospects were tenable. As such Justice Baker suggested, resort to s. 669.2(1) of the Criminal Code and have the matter continue before another judge whose schedule was able to accommodate the matter in a more timely fashion. This procedure was agreed to by the Crown and defence.

[59] Even though this procedure contemplated the continuation of the matter before another judge, the defence indicated it was their intention to again renew their s. 276 application before the new judge.

[60] This resulted in instead of three days set for trial as had been done before, five days now would be required. It goes without saying that the more time required for trial, the longer it will be to get trial dates. The defence insistence on re-litigating the s. 276 application, lengthened the court time needed and as such impacted the length of time to get new dates. Ultimately the matter was set for September 12 to 16, 2016 in Brantford in order to best accommodate the matter given the time required, and I was assigned to hear the trial.

[61] The next question is how to characterize this 4 month 3 week period from April 26, 2016 when defence counsel was ill and unable to proceed with the trial, to September 16, 2016 when the trial completed.

[62] The defence argument is only the approximately 3 week period from April 26, 2016 to May 20, 2016 is attributable to the defence. It seems the defence position is, once the issue of recusal arose, any delay from that point forward ought not to be attributed to them. The Crown position is that the entire period is attributable to the defence.

[63] Again I find neither position is quite accurate. This is another period that Jordan indicates ought to be characterized as an exceptional circumstance. In fact paragraph 72 of Jordan specifically cites illness of counsel as an illustration of an exceptional circumstance.

[64] The defence raising the issue of recusal in no way alters the fact the trial would have proceeded starting April 26, 2016, absent illness of counsel. Once that circumstance arose the court moved reasonably quickly and Justice Baker, recognizing the delay that had ensued to date, and the need to move the matter to resolution, took reasonable steps in the circumstances to ensure the matter was rescheduled as soon as possible. As such, this entire 4 month and 3 week period from April 26, 2016 to September 16, 2016 is an exceptional circumstance and will be treated as such.

[65] The trial in this matter finally proceeded over five days from September 12 to 16, 2016. The first day was taken up with the defence requesting to re-litigate the identical s. 276 Application on which Justice Baker had previously ruled. This application by the defence to re-litigate the s. 276 application was denied and the trial proceeded based upon the ruling made by Justice Baker.

[66] The trial completed September 16, 2016 and the matter was adjourned to October 27, 2016 for judgment. On that day judgment was given and Mr. V. was found guilty. Given the nature of the offences and the accused's personal circumstances, a pre-sentence report was requested. As well, the defence specifically requested sentencing be adjourned to a date after Christmas, and the date of January 9, 2017 was agreed upon.

[67] On that date, January 9, 2017, defence counsel was again ill and unable to attend. Sentencing was adjourned as a result, to January 30, 2017, however sentencing did not proceed on that date as the defence filed the within s. 11(b) Application on January 20, 2017. As such, January 30, 2017, was instead used for argument on that Application, and now, judgment on it and sentencing, has been adjourned to March 22, 2017.

[68] How then is the post-verdict time period, from September 16, 2016 to March 22, 2017 to be attributed? Quite frankly, it is tempting to attribute much of this time to the defence. I say it is tempting for this reason. The defence chose the timing of this s. 11(b) Application and in my assessment they chose poorly. This Application should have been brought much sooner and most certainly should have been brought before trial.

[69] The defence position in their s. 11(b) Application material is that by the completion of the trial on September 16, 2016, Mr. V.'s rights pursuant to s. 11(b) had been violated. Despite this assertion they chose not to assert those rights until well after the trial had concluded and a verdict had been rendered, and in fact, it was not until the matter was set for sentencing a second time that they chose to bring this application.

[70] One of the factors the court stated in Jordan that is important to assess is whether the defence took any meaningful and sustained steps to expedite the proceedings. In this case, at least from the conclusion of trial on, they did not. Not only did the defence not give any indication of a concern for Mr. V.'s s. 11(b) rights until January 20, 2017, the defence in fact asked for the accused to be accommodated with a date for sentencing after Christmas. Had there been any indication from the defence that Mr. V.'s rights were in jeopardy, discussions would have ensued about shorter reserve time for judgment, stand down pre-sentence reports instead of standard ones, and the request for accommodation for sentencing to take place after Christmas, likely would have been viewed in a much different light.

[71] However these issues were not raised, and as tempting as it is to attribute much of this time to the defence I will only attribute the time I find was directly related to them. As such, the approximately three week period from December 22, 2016, which was the last day I sat in 2016 to January 9, 2017, the first date set for sentencing, will be attributed to the defence as this date was chosen to accommodate Mr. V.

[72] The period of time from January 9, 2017 when defence counsel was ill to January 30, 2017, the next date chosen for sentencing, again about 3 weeks, will be another period deemed to be an exceptional circumstance. However, the 1 month 3 week period from January 30, 2017 to March 22, 2017, the date of judgment on this application, is attributed as defence delay, given the timing of this s. 11(b) application.

REMAINING DELAY AFTER DEDUCTING DELAY ATTRIBUTED TO DEFENCE

[73] The next step is to deduct the delay attributable to the defence from the overall delay. As will be recalled the overall delay is 40 months and two weeks.

[74] As noted above, the periods of delay attributable to the defence are as follows:

• August 27, 2014 to May 6, 2015 – 8 months, 1 week
• June 24, 2015 to September 8, 2015 – 2 months, 2 weeks
• November 6, 2015 to April 26, 2016 – 5 months, 3 weeks
• December 22, 2016 to January 9, 2017 – 3 weeks
• January 30, 2017 to March 22, 2017 – 1 month, 3 weeks

[75] This is a total delay of 19 months that is attributable to the defence. When this is deducted from the overall delay, the remaining delay is 21 months and 2 weeks. This is obviously above the presumptive ceiling of 18 months. Given that, unless the Crown can prove there were exceptional circumstances that led to periods of delay that if deducted would bring the delay below the presumptive ceiling, a stay must be issued.

[76] However, as noted above, the existence of exceptional circumstances has been established here, so those time periods are to be deducted from this 21 month, 2 week period to assess if the matter remains above the presumptive ceiling.

DEDUCTION FOR EXCEPTIONAL CIRCUMSTANCES

[77] The periods of delay as a result of the death of the accused's father or the illness of defence counsel, identified earlier as exceptional circumstances, are as follows:

• May 5, 2015 to June 24, 2015 – 1 month, 3 weeks
• April 26, 2016 to September 16, 2016 – 4 months, 3 weeks
• January 9, 2017 to January 30, 2017 – 3 weeks

[78] This is a total delay of 7 months and one week, attributable to exceptional circumstances in this matter.

[79] Deducting this 7 month and 1 week period from the 21 month, 2 week delay identified above, leaves a total or final delay of 14 months and 1 week. This results in a total delay below the presumptive ceiling.

CONCLUSION

[80] As the total delay after deducting delay attributable to the defence, and delay caused by exceptional circumstances, is below the presumptive ceiling for a stay to ensue, the burden shifts to the defence to show that the delay is nonetheless still unreasonable. To do so the defence must show it took meaningful steps to demonstrate a sustained effort to expedite the proceedings, and the case took markedly longer than it reasonably should have. See paragraphs 84 to 91 of Jordan.

[81] This application was not argued on such a basis. It was only argued by the defence on the basis that the delay exceeded the presumptive ceiling. As well, even though there is some analysis in the application materials of the delay in accordance with the pre-Jordan framework, the matter was not argued on that basis either.

[82] Even had it been argued on either of these two other bases, the accused would not have been entitled to a stay.

[83] First, the defence would not have been able to demonstrate it took meaningful steps to expedite the proceedings. In fact the opposite is true. Significant portions of the delay, as noted above, were caused by the defence. The re-election from Superior Court trial to trial in the OCJ on the date of the preliminary hearing, the filing of deficient s. 276 application materials, the request for sentencing to be delayed, and the timing of this s. 11(b) application, belie any notion of a sustained effort to move the matter in an expeditious fashion.

[84] Second, if the matter were assessed according to the pre-Jordan law, the delays that above were found to be attributable to the defence, or exceptional circumstances, would have been assessed in the analysis, and further, a period of time for what was referred to as intake or inherent delay, also would have been recognized. Having done so, this would have brought the delay down below the approximately 14 months found here, to what no doubt would have been well within then existing s. 11(b) parameters.

[85] It is for all these reasons that on whatever basis this matter is assessed, the defence has failed to establish a breach of the accused's s. 11(b) rights.

[86] As such, for the foregoing reasons, the Application is dismissed.

Dated at Brantford, Ontario

This 22nd day of March 2017

The Honourable Mr. Justice R.S. Gee