WARNING

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

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. Identity of offender not to be published. —(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. Identity of victim or witness not to be published. — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. No subsequent disclosure. — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. Offences. — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: 2018-03-05

Court File No.: Central West-Brampton 15-001680

Sitting under the provisions of the Youth Criminal Justice Act, S.C. 2002, c. 1

Between:

Her Majesty the Queen

— And —

D.A., a young person

Before: Justice P.T. O'Marra

Heard on: February 1, 2018

Reasons for Judgment released on: March 5, 2018

Counsel

Angela MacArthur — counsel for the Crown

Adele Monaco — counsel for the defendant D.A.

Ashley Dresser — counsel for the defendant D.A.

Judgment

P.T. O'Marra J.:

Introduction

[1] These are my written reasons with respect to a Notice of Application for an order for a stay of proceedings under section 24(2) of the Charter of Rights and Freedoms as a result of the infringement of the Applicant's right to a speedy trial pursuant to section 11(b).

[2] The Applicant submits that it will take eighteen months (18) and seven (7) days for the completion of the trial in this matter. This period is unreasonable and exceeds the presumptive ceiling of eighteen (18) months established by the Supreme Court of Canada in R. v. Jordan, [2016] S.C.C 27.

[3] The Applicant further submits that a young person is subject to a lower presumptive ceiling. The Applicant suggests that based on past jurisprudence and the decision of Paciocco J. (as he was then) in R. v. J.M., 2017 ONCJ 4 that the presumptive ceiling for a young person should be between twelve (12) to fifteen (15) months.

[4] On February 1, 2018 I heard submissions on the Application. I am scheduled to hear the trial on June 25, 26, 27, 28 and 29, 2018. The information was sworn on December 22, 2016.

[5] On December 6, 2016 the Applicant was charged with the following eight (8) offences: Sexual Assault (x3), contrary to section 271; Sexual Interference (x2), contrary to section 151 and Invitation to Sexual Touching, contrary section 152 of the Criminal Code of Canada.

The Allegations

[6] On November 22, 2016 the complainant, T.P., contacted the Special Victims Unit of the Peel Regional Police Service to report that two of her children, M.P. and T.P. had been assaulted by the Applicant.

[7] On November 23, 2016 T.P.'s family were interviewed by the police.

[8] On November 24, 2016 the C.P. family reported to the police that one of their children had been sexually assaulted by the Applicant.

[9] The Applicant is first cousins with complainant, K.C., who is nine years old.

[10] The other complainants, M.P. is three years old and T.P. is four years old. They are siblings and family friends of the K.C. family.

[11] It is alleged that sometime between the dates of January 1, 2015 and November 4, 2016 the Applicant and M.P. were at the C.P. family residence in Brampton. While at the residence the Applicant and M.P. had their pants down and genitals exposed. The Applicant was observed to be grinding his penis into M.P.'s bum as they laid on the floor of the solarium. Other members of the family, K.C. and K.P. walked into the room and caught the Applicant in the act. The Applicant stated that M.P. asked him to do it. The Applicant told both K.C. and K.P. that if they told anyone they would never see him again.

[12] During the same period, T.P.'s son, T.P. was at the C.P. family residence. T.P. and K.C. were playing in a bedroom with the Applicant. While in the bedroom, the Applicant pulled down his pants and underwear, exposing his penis and asked both boys to touch his penis, which they did. The Applicant told both boys that if they told anyone they would never see him again.

[13] On December 6, 2016 the Applicant without his mother present was interviewed by the police. He gave a partially inculpatory statement. The voluntariness of this statement will be challenged under the common law and the Charter.

[14] The Applicant was arrested, charged and released on an undertaking to a peace officer and a promise to appear notice that same day.

The Chronology

[15] The chronology of the matter is based on all the transcripts, an affidavit from Ryan Mo, dated January 2, 2018 and emails and correspondence between the crown and defence.

[16] On January 3, 2016 the Applicant and his mother attended the first appearance. No disclosure was ready and the matter was adjourned to February 3, 2016.

[17] On February 3, 2016 the Applicant and his mother attended court. The crown advised that they received voluminous disclosure consisting of eight (8) DVDs that needed to be vetted before they could be disclosed. Duty counsel advised the court that the Applicant's mother could not keep taking off work to attend court. She worked full time in Guelph. The Applicant's mother provided her contact information if the disclosure was available for pick up before the next court appearance of March 7, 2017.

[18] On March 7, 2017 the Applicant and his mother attended court. The crown advised that the disclosure was still in the package and still had not been vetted. The matter was adjourned to April 5, 2017. Duty counsel advised that the Applicant was anxiously waiting for his disclosure and wanted to move the matter along.

[19] On April 5, 2017 the Applicant and his mother attended court. Crown disclosure was provided that day, approximately four (4) months after the Applicant's arrest. The matter was adjourned to May 10, 2017. The Applicant's mother indicated that they would like to review the disclosure and apply for Legal Aid.

[20] On May 10, 2017 the Applicant and his mother attended court. The Applicant's mother brought to court proof that the Applicant's Legal Aid application was denied. The matter was traversed to courtroom #302 before Justice Monahan. The Applicant made an application pursuant to section 25(4) of the Youth Criminal Justice Act to appoint counsel. Justice Monahan granted the application and issued the order. The Applicant's mother indicated that she did have a lawyer in mind. She asked for the matter to be adjourned to a date in June, as she had a training course for the next three (3) weeks. The matter was adjourned to June 14, 2017.

[21] On June 6, 2017 the Applicant and his mother met with counsel.

[22] On June 14, 2017 duty counsel filed a designation on behalf of counsel. There was a request from counsel that the matter be adjourned for six (6) weeks to permit counsel to review the disclosure. Initially the crown raised the issue of delay and then realized that disclosure had only been recently provided. The crown did not oppose the request that the matter be adjourned to July 26, 2017.

[23] On July 26, 2017 counsel could not attend court due to the passing of her mother the day before. The crown advised that an email had been sent to counsel on July 10, 2017 that was unanswered. In the email the crown asked counsel to set the matter down for a crown pre-trial and a Judicial Pre-Trial. The matter was adjourned to August 9, 2017.

[24] On August 4, 2017 counsel faxed a request for further disclosure.

[25] On August 8, 2017 counsel emailed the assigned crown and requested to schedule a crown pre-trial. Counsel received an automatic reply that the assigned crown was on vacation until September 5, 2017.

[26] On August 9, 2017, counsel attended and put on the record the information contained in paragraphs 24 and 25. The crown raised the July 10, 2017 email and the request to schedule a JPT and the issue of delay. According to counsel this was the first time that she was made aware of the assigned crown's email. Counsel was asked to conduct a crown pre-trial that day. However, counsel was unable to do so as she did not have the Applicant's file. Since the assigned crown was away until September 5, counsel asked if she could conduct a crown pre-trial via the phone with another crown. The matter was held down for counsel to see if there was another crown available to conduct a crown pretrial before the next court appearance. Counsel returned to court to advise that there were "insufficient crowns to conduct a crown pre-trial by telephone". Counsel requested that the matter be adjourned to August 23, 2017 in order to re-send an additional disclosure request and to return with the Applicant's file to conduct a crown pre-trial in person.

[27] On August 23, 2017, counsel conducted an in-person crown pre-trial. A Judicial Pre-Trial was suggested. However, counsel was advised that any Judicial Pre-Trial must be conducted by the assigned crown, who was on vacation until September 5, 2017. Counsel suggested a date approximately one week after the assigned crown returned from her vacation, September 14, 2017. The first available date for a Judicial Pre-Trial was September 28, 2017. The information was remanded to that date.

[28] On September 28, 2017, the tenth appearance, a Judicial Pre-Trial was completed and the trial dates were scheduled. The crown advised the trial coordinator that a child friendly courtroom was necessary. The first date offered by the trial coordinator was June 18-22, 2018. Counsel was unavailable June 18, 2018 but available for the remaining dates. Counsel preferred the next date offered June 25 to June 29, 2018 rather than bifurcate the trial. Counsel attempted to assist the trial coordinator in finding earlier dates by suggesting that any court would suffice rather than a child friendly court on the first day as potentially only police witnesses would be called to deal with the admissibility of the Applicant's statement to the police.

[29] The trial coordinator worked backwards to schedule counsel's Seaboyer Application for March 21, 2018 and the 11(b) application for February 1, 2018.

[30] A second stage Judicial Pre-Trial was scheduled for November 2, 2017.

[31] On October 25, 2017, the assigned crown emailed the trial coordinator and asked that earlier dates be found as the crown "may not get the benefit of 18 months as I would for adults….and will even give up the child-friend[sic] if I need to thanks."

[32] In the morning on October 26, 2017 the assigned crown advised counsel that she was looking into canvassing earlier dates from the trial coordinator "in order to get this within the recommended time for youth matters which is 12 months here."

[33] On October 26, 2017, the trial coordinator advised the assigned crown that "For youth matters we really try and aim for 12 months."

[34] On October 31, 2017, the trial coordinator advised the assigned crown that there were no available dates before February 1, 2018.

[35] Later in the day on October 31, 2018 the assigned crown advised counsel that there was "no luck on getting earlier dates, I have asked for any dates prior to June 18 now."

The Jordan Analytical Framework

[36] In determining whether a person's section 11(b) right has been infringed: First, the court must assess the total delay. This is a straightforward approach that begins with the laying of an information and ends with the actual or anticipated conclusion of the trial.

[37] Second, defence delay must be deducted from that total.

[38] Third, if that delay is beyond the 18 month ceiling for Ontario Court matters, it is presumptively unreasonable. The Crown bears the onus of justifying that delay. Justification for delay is restricted to "exceptional circumstances".

[39] Exceptional circumstances lie outside the control of the Crown in that they are (i) reasonably unforeseen or reasonably unavoidable and (ii) cannot be reasonably remedied once they arise.

[40] Exceptional circumstances are recognized as discrete events or case complexity. In the case of the former, the delay attributable thereto is deducted from the total. In the case of the latter, if found, delay beyond the ceiling may be deemed reasonable.

[41] When the net delay is below the presumptive ceiling, in clear cases, the defence may show that the delay is unreasonable. To do so, the defence must establish two things: (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.

[42] Counsel argues that special considerations are involved since the Applicant is a young person defined by the Youth Criminal Justice Act.

[43] The total delay is 18 months and 7 days. This is not a transitional case. The crown and the defence differ on whether or not this is a complex case. In my view this is a serious case but not a complex case. In my view it is a typical sexual assault/sexual interference case. According to the trial coordinator trial time estimation form, the crown will be calling five (5) civilian witnesses and two police officers. The crown will be applying for an order under section 715.1 of the Criminal Code to admit four video statements, made by four children. There is a Seaboyer application scheduled for one half day. There will be a voir dire on the admissibility of the Applicant's statement. As well, there may be a video link up for one witness from Portugal. The video statements were taken and the investigation completed approximately one month before the Applicant was charged on December 22, 2016.

[44] There are no exceptional circumstances or discrete events that lie outside the crown's control in this case.

The Defence Delay

[45] Once the total delay has been calculated any defence delay must be subtracted. Defence delay is divided in two categories: the first category is delay waived by the defence and the second category is delay that is caused solely by the defence (see R. v. Cody, [2017] SCC No. 31 at para 26). The Ontario Court of Appeal recently issued their decision in R. v. Gopie, 2017 ONCA 728, which summarized the method of calculating delay.

112 The first step is to calculate the total delay from the charge to the actual or anticipated end of trial.

113 Next, defence delay must be subtracted from the total delay, leaving the "Net Delay". Defence delay has two components: that arising from defence waiver and, that caused solely by the conduct of the defence ("defence-caused delay"). The latter is comprised of situations where the acts of the defence either directly caused the delay or are shown to be a deliberate and calculated tactic employed to delay the trial. Frivolous applications and requests are straightforward examples of defence-caused delay (Jordan, at paras. 60-67).

114 If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable (Jordan, at para. 68).

115 To rebut the presumption of unreasonableness, the Crown must establish the presence of exceptional circumstances. Exceptional circumstances are those which lie outside the Crown's control, in that they are: (1) reasonably unforeseen or reasonably unavoidable; and (2) Crown counsel could not reasonably remedy the delay emanating from the circumstances once they arose. Such circumstances need not be rare or entirely uncommon (Jordan, at paras. 68-69).

116 Generally, exceptional circumstances fall under two categories: (1) discrete events; and (2) particularly complex cases. An illustration of a discrete event is a medical or family emergency on the part of the accused, important witnesses, counsel or the trial judge (Jordan, at paras. 71-72).

117 The period of delay caused by discrete events must be subtracted from the Net Delay -- yielding the "Resulting Delay" -- for the purposes of determining whether the presumptive ceiling has been reached. If the Resulting Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex, such that the time the case took was justified and the delay reasonable (Jordan, at paras. 75-80).

118 If the Resulting Delay falls below the presumptive ceiling, the onus shifts to the appellants to show that the delay is unreasonable. Stays beneath the ceiling are expected to be rare and limited to clear cases (Jordan, at paras. 82-83).

[46] There were no waivers of delay by the defence. The defence concedes that the two week period from July 26, 2017 to August 9, 2017 (14 days) is solely defence delay. The defence adjournment was necessary and as a result of counsel's personal circumstances. The net delay at this point is 17 months and 3 weeks.

[47] The Crown argues that the defence is responsible for three (3) further discrete time periods of delay and they are as follows:

[48] From May 10, 2017 to June 14, 2017 (35 days): This was the Applicant's fifth court appearance. He appeared with his mother and duty counsel. The Applicant was denied Legal Aid and he (and his mother) were not in a financial position to retain counsel privately. The Applicant applied to the Youth Court Justice pursuant to section 25(4) of the Youth Criminal Justice Act for an order appointing counsel. He was granted the order and his mother asked for a period of five weeks to meet with the counsel she had in mind. The crown did not object.

[49] In my opinion, this was not defence delay solely caused by the defence. This was not a "situation(s) where the accused's acts either directly caused the delay…or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial." (See: Jordan, supra at para. 63).

[50] The Applicant did not demonstrate any laches or foot dragging with respect to his Legal Aid application. In fact, the Applicant (and his mother) moved with dispatch after receiving crown disclosure on May 10, 2017 to apply to Legal Aid. Once he was denied Legal Aid the Applicant made the appropriate application. Waiting for Legal Aid to make a decision on the application and the search for a lawyer are not to be considered defence delay and will count towards the Jordan presumptive ceiling, unless the process commenced late. (See: R. v. Issacs, 2016 ONSC 6214 at para. 86-93, and R. v. Payne, [2017] O.J. No. 3927 at para. 12-14). In light of the Applicant's personal circumstances, his mother's employment and required job training, the geographical locations of their residence (Guelph), counsel's law office (Toronto), and the courthouse (Brampton), in my view 35 days was a reasonable period of time to retain counsel. This period should count towards the Jordan ceiling.

[51] From June 14, 2017 to July 26, 2017 (42 days): June 14, 2017 was the first date that counsel went on the record. On June 6, 2017 counsel was retained. Counsel's request for an adjournment was for the purpose of reviewing eight (8) DVDs. I cannot fault the defence for this request. Counsel was pressured to set a JPT but had not reviewed the disclosure. Counsel is entitled to review crown disclosure before meeting with the crown in order to discuss the case. I agree with the defence assertion that this was a 'relatively speedy intake period for the amount of disclosure that was provided'. Bhabha J., in R. v. Mahenthiranathan, [2017] O.J. No. 3888 at para 31, noted that "it was not unreasonable for the defence to request time to review the dozen or so tapes. In fact, it would have been irresponsible for the defence to proceed to a crown pre-trial and then try to make strategic decisions about the case without first viewing the videotapes."

[52] Moreover, the defence cannot be faulted for not responding to the July 10, 2017 email from the assigned crown. The defence never received the email. When I examine the email addresses of counsel contained in the application record it is apparent to me that the assigned crown sent her email to an incorrect email address. However, once the email and its intent were discovered by counsel on August 9, 2017 counsel took reasonable and sustained steps to move the matter along. This period of delay should not be considered defence delay.

[53] From August 9, 2017 to August 23, 2017 (14 days): On August 9, 2017 counsel was made aware of the email dated July 10, 2017. That morning the crown suggested that counsel attend outside of the courtroom to meet with a crown for a resolution meeting. Counsel was unable to do so as she did not have the Applicant's file and was attending that day in order to seek an adjournment due to outstanding disclosure. However, the crown pre-trial should have been utilized by counsel to discuss outstanding disclosure issues and/or agree that the matter required a Judicial Pre-Trial. I am prepared to conclude that this period of delay was solely the cause of the defence.

[54] In my opinion the defence delay in this matter is one month or 28 days. I find that the total delay in this matter is 555 days (18 months and 1 week) less the defence delay of 28 days, leaving a net delay of 527 days (17 months and 2 weeks at 30 days per month).

What is the Applicable Presumptive Ceiling?

[55] The Applicant submits that the since he is a young person that he is deserving of a lower presumptive ceiling.

[56] In the Jordan decision the Supreme Court did not specifically address whether or not the presumptive ceilings were applicable to youth and/or in custody matters. The Court did say that where the delay falls below the 18 month ceiling it can still be unreasonable. Cromwell J. in the dissenting opinion, stated that "a reasonable time for the disposition of one case may be entirely unreasonable for another. Reasonableness is an inherently contextual concept, the application of which depends on the particular circumstances of each case." (See: Jordan, supra paras. 105 and 151).

[57] It is well established that while young persons are not entitled to special constitutional guarantees to a trial with a reasonable time, their trials should proceed within a five (5) or six (6) month administrative guideline. (See: R. v. M. (G.C.) at para. 45; R. v. T.R.; R. v. K.M., [2017] O.J. No. 252).

[58] In a post-Jordan era the issue of a lower presumptive ceiling applying to young persons is unsettled law. The lower courts seem to be split on this issue.

[59] Paciocco J. considered this issue in R. v. J.M., 2017 ONCJ 4. It was a transitional case requiring the application of the Jordan framework to a young person. I find that the case demonstrates an insightful examination of the principles of applying a young person's matter to the Jordan analytical framework. It is clear that the 'takeaway' from Justice Paciocco's decision is that there is a recognition in section 3(1)(b) of the Youth Criminal Justice Act that youth court proceedings should conclude more quickly than adult proceedings. Secondly, the effect of time is distorted for a young person. Finally, there is a need to appreciate the connection between behaviour and its consequences. (See: J.M., supra at paras 113-123 and K.M., supra paras. 36-38 and 42).

[60] In R. v. T.B., [2017] O.J. No. 990, Bliss J. considered the reasoning in J.M. instructive as it pertained to the delay ceiling in a post-Jordan youth section 11(b) application. He declined to issue a stay. However, the case is distinguishable as it was a transitional case and the delay was only between 14 and 16 months depending on the calculation.

[61] In the recent decision of R. v. D.M.B., 2018 ONCJ 51, Felix J. declined to follow the analysis in J.M. and stated at para. 15, "that it falls upon Parliament or the Appellate courts to address whether a unique approach to youth matters requires an adjustment of the presumptive ceiling".

[62] In R. v. K.M. supra, and R. v. R.V., [2017] O.J. No. 2466, both transitional cases, the courts declined to adopt a presumptive ceiling as suggested in J.M. for matters prosecuted under the Youth Criminal Justice Act, as both accused were being prosecuted as fully grown adults and therefore, they would have "the less developed ability to appreciate the consequences of behaviour, the effect of time on a youth, and the importance of having treatment as part of disposition delivered as quickly as possible." (See: J.M. supra para 115).

[63] In my view, the Applicant's suggestion that I should consider the jurisprudence under the old regime, in terms of the principles of applying to young persons is an attractive argument. When Paciocco J. struggled with the notion of applying Jordan in J.M. he specifically rejected the 18-month ceiling as appropriate for young persons. (See J.M. supra at paras. 124-135). He considered both the twelve (12) month and fifteen (15) month ceiling, ultimately applying the latter. He specifically made it clear that delay exceeding 15 months cannot be tolerated. (J.M., supra at paras 137-144).

[64] I agree that there should be a reduced presumptive ceiling for youth cases and it should be 12 months for non-complex cases. The assigned crown and the trial coordinator indicated as a matter of policy that it is 'recommended' that youth matters be tried within 12 months. In my view, this accords with Monahan J.'s view regarding local conditions in Peel and what is a tolerable delay in the pre-Jordan era in Payne, supra paras 35-38. It was a case where crown and institutional delay was in the range of 10-13 months. Whether a stay would issue turned on the assessment of prejudice or the seriousness of the offence. Both factors are no longer legally considered in the 11(b) analysis. This decision was in relation to an adult, where the pre-Jordan institutional delay for young persons was deemed reasonable at five (5) to six (6) months. (See: J.M., supra para. 121). The institutional delay alone in the Applicant's youth matter is over ten (10) months.

[65] That being said, I would grant a stay of proceedings as the delay is well over the youth presumptive ceiling of twelve (12) months.

Applying the Jordan Presumptive Ceiling

[66] If, I am incorrect on deciding that there should be a presumptive youth ceiling I would, nevertheless issue a stay notwithstanding that the net delay is slightly below the presumptive 18 month ceiling.

[67] The Applicant has the onus of demonstrating that even though the net delay falls below the ceiling, the case is nevertheless a clear one of unreasonable delay. A stay will only be granted in "clear cases" and are expected to be rare. (See: Jordan, supra para. 57).

[68] The Applicant must demonstrate that (a) counsel took meaningful steps demonstrating a sustained effort to expedite the proceedings; and (b) the case took "markedly longer" than it reasonable should have. (See: Jordan, supra para. 82-83).

[69] Since Jordan there is very little jurisprudence that defines the clear cases in non-transitional circumstances or what is required to show a "sustained effort". The court can examine the guidelines in R. v. Morin, and the time requirements of other trial matters to assess whether a delay is a marked departure. (See Jordan supra 48.)

Was the Defence Taking Sustained Steps to Expedite the Proceedings?

[70] I am urged to examine whether there was a "sustained effort" to move the matter along or expedite the proceedings. I find that the following factors demonstrated counsel's sustained efforts to expedite this case:

(1) Counsel and the Applicant (with the assistance of duty counsel) requested disclosure diligently and repeatedly.

(2) Counsel responded expeditiously when earlier trial dates were being sought by the assigned crown after the scheduled trial dates were set.

(3) Counsel virtually accepted the first available 5 day block of time offered by the trial coordinator.

(4) When the Applicant was notified that Legal Aid was not granted he moved quickly to have counsel appointed and retained counsel before the next appearance.

(5) Counsel advised the court and the crown that delay was an issue in a timely fashion.

(6) Counsel brought this notice of application expeditiously.

[71] I also find that counsel cannot be faulted for not responding to the crown's communication to set up a crown resolution meeting and a Judicial Pre-Trial as it was never received. However, once counsel was made aware of the request and the additional disclosure had not been received counsel took sustained efforts to move the matter along. Unfortunately, due to the unavailability of the assigned crown an earlier Judicial Pre-Trial date was not possible.

Did the Case Take Markedly Longer Than It Should Have?

[72] In assessing the reasons of the delay, local conditions, the complexity of the case and whether the crown took reasonable steps to expedite the proceedings should be examined. (See: Jordan supra paras 87-90). The Morin guideline prescribed eight (8) – ten (10) months for delay at the provincial court level. In R. v. Payne, [2017] O.J. No. 3927 at paras. 35-38 Justice Monahan, a Judge sitting in this jurisdiction, stated that in a transitional case where the crown or institutional delay was in the range of 10-13 months, a stay would be determined based on an assessment of prejudice or the seriousness of the offence. In non-transitional cases those factors are no longer considered. (See: R v. Vitalis, [2018] O.J. No. 420 para. 70). This was in relation to adult defendants. The pre-Jordan institutional delay for young persons was deemed reasonable at five (5) to six (6) months. (See: J.M. supra at para. 121)

[73] In this case, for unknown reasons the Applicant was not provided initial disclosure until his fourth court appearance on April 5, 2017. This was approximately four (4) months after the Applicant's arrest.

[74] The initial disclosure should have been provided by the first or second appearance which was approximately six (6) to ten (10) weeks after the interviews were completed and in the possession of the police. The pace of disclosure was further aggravated by the lack of diligence in vetting the disclosure once it was located in the crown brief on February 1, 2017 which necessitated a further adjournment on March 7, 2017 to April 5, 2017.

[75] When the parties were ready to set a trial date (September 28, 2017) to the end of the trial date (June 29, 2018) that period of time is approximately nine and a half (9 ½) months alone.

[76] I commend the assigned crown in her efforts to find earlier dates from the trial coordinator after the trial dates were set. In my view, she was consciousness and diligent in letting the trial coordinator know that other cases may be collapsing and urging the trial coordinator to find earlier dates. Unfortunately, those earlier dates were never offered to the Applicant or were never available.

[77] However, in the final analysis regardless of whether the delay exceeds the 18 month presumptive ceiling, the trial of a young person should occur in a markedly short time span. (See: R. v. M.(G.C.); R. v. W.(C.), [1992] O.J. No. 3438 (Ont. C.A.); R. v. R.(T.); and R. v. B.(L.), [2014] O.J. No. 5128 (Ont. C.A.)). This principle is seemingly accepted by the crown and the trial coordinator in this case.

[78] Based on the foregoing circumstances, including the lack of timely disclosure, both counsel and the Applicant's sustained efforts to move an uncomplicated case along, a lack of urgency from the trial coordinator's office to provide earlier dates and a recognition that young persons should be tried earlier than adults, I would still stay the proceedings despite the fact that the delay is slightly below the presumptive ceiling of 18 months.

Conclusion

[79] In the result, for the reasons already set out, I find that the delay in this non-complex case is not reasonable and cannot be justified under the Jordan analysis. The application is therefore allowed and the proceedings are stayed.

[80] The trial dates of June 25, 26, 27, 28 and 29, 2018 and the application date of March 21, 2018 are vacated.

Released: March 5, 2018

Signed: Justice P.T. O'Marra