Ontario Court of Justice

Date: 2018-01-19

Court File No.: 16-11195

Between:

Her Majesty the Queen

— AND —

Lumabar Vitalis

Before: Justice Paul T. O'Marra

Heard on: December 18, 2017

Reasons for Judgment released on: January 19, 2018

Counsel

Tom Dietrich — Counsel for the Crown

Adele Monaco — Counsel for the accused Lumabar Vitalis

Judgment

P. T. O'MARRA J.:

[1] Introduction

[1] These are my amplified written reasons for judgment in the application for a stay of proceedings under s. 24(1) of the Charter of Rights and Freedoms as a result of an alleged infringement of the applicant's right to a speedy trial pursuant to s. 11(b) of the Charter.

[2] The Charges

[2] The applicant is charged with importing heroin, conspiracy to import heroin and conspiracy to possess heroin for the purpose of trafficking. The information was sworn on September 9, 2016.

[3] The applicant has elected to be tried in the Ontario Court of Justice. The trial in this matter is scheduled before me on the following days: June 25, 26, 27, 28, 2018. The application was brought before me on December 18, 2017 and I reserved to January 12, 2018 to render an oral decision.

[4] It is agreed by the defence and the crown that this is not a complex case. This is not a transitional case. There are no discrete events in this case.

The Allegations

[5] The alleged facts are as follows: On August 17, 2016 U.S. Border Security Officers in Cincinnati intercepted and inspected a package shipped from Lehore, Pakistan that was destined for a person named "Loris Karis" at an address in Scarborough. The package contained 874 grams of heroin. Canadian law enforcement was notified and a controlled delivery was planned. However, the Scarborough address could not be confirmed and there was no attempted delivery of the package. On September 1, 2016, DHL, the company that the package was sent through, was contacted by someone. DHL was asked to deliver the package to a UPS mailbox located at Suite 117, 8-400 Steeles Avenue East, in Brampton. On September 7, 2016, police surveillance was set up on the UPS store in Brampton. Police observed several young black men "skulking" in the parking lot. The individuals left in a black Nissan sedan that was registered to the Applicant. The next day the police officers were once again surveilling the UPS store. An unknown black male arrived in a taxi. He entered the store and retrieved the package. He entered the taxi and he was followed to the Kennedy Square Mall. Police observed the unknown male enter the Mall with the package and a few minutes later he exited the back of the mall with the applicant into the parking lot. Police observed the unknown male place the package in the trunk of the same black Nissan sedan, previously seen on September 7, 2016. The police called for a takedown and both the applicant and the unknown male fled. The applicant was found hiding in a nearby apartment building storage area. He was arrested. He did not provide an inculpatory statement. He spoke to a lawyer from Adele Monaco's law office and retained their services the next day. After the arrest the police seized a cell phone that had been located in proximity to one of the storage lockers where the applicant had been arrested. At the time it was seized the police presumed that the applicant had discarded it. The police also seized the video surveillance from the apartment building and the taxi. The unknown male was never located.

The Chronology

[6] The chronology of the case is as follows: The applicant was arrested on September 8, 2016. The Information was sworn on September 9, 2016. The trial dates are scheduled to the last day of June 28, 2018. The elapsed time period is 658 days or 21 months and 20 days. This time period exceeds the 18 month presumptive ceiling that has been set by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27.

[7] The history of the proceedings is accurately set out in paragraphs 14-54 of the applicant's factum. I do not propose to recite the pace of the proceedings in its entirety or cite specific transcripts, however the history is based on all the transcripts, crown disclosure, an affidavit from Ryan Mo, emails between the defence and the crown and other litigation records.

[8] After the applicant's arrest he was released on a two surety, residential cash deposit recognizance of bail on October 5, 2016. Before his release, the applicant had appeared in bail court on four occasions and each time except on his first appearance, counsel or duty counsel requested or inquired about the status of disclosure. On September 30, 2016, the applicant's fourth appearance, the Crown advised that disclosure had been received and had almost completed the process of vetting it.

[9] On October 5, 2016, counsel requested an adjournment to the drug assignment court on a Friday. October 28, 2016, was requested by the defence. No disclosure was provided.

[10] On October 28, 2016, partial crown disclosure was provided which consisted of some paper disclosure, a CD and a DVD. The crown acknowledged that there was more disclosure to come. The index of disclosure items that was provided is found at tab #6 of the application record. The matter was adjourned to November 25, 2016. This wave of disclosure was called Phase I. I do not propose to enumerate all of the disclosure that was provided however, what was absent was the analysis of the cell phone that was seized.

[11] On November 25, 2016, the applicant in person attended. Counsel conveyed a message through duty counsel that she was "partially retained" and in possession of the disclosure. The matter was adjourned to December 2, 2016, in order for counsel to personally attend. Phase II of disclosure was provided. Phase II index of disclosure is found at tab #7 of the application record.

[12] On December 2, 2016, counsel personally attended and filed a designation of counsel. As counsel expected that the disclosure in her possession would be voluminous, she requested January 13, 2017 as the return date. There was an expectation that in the interim there would be a crown pretrial. (Hereinafter called a "CPT").

[13] On December 7, 2016, counsel indicated that she had completed her review of the disclosure and noticed that there was a significant amount of material missing. On the same day counsel faxed a detailed letter to the crown requesting many outstanding items of disclosure. The letter is found at Tab #8 of the application record.

[14] On January 13, 2017, counsel indicated that the disclosure provided had been reviewed and a letter was forwarded to the crown requesting more outstanding disclosure. The crown indicated that it had received Phase III of disclosure but was in the process of vetting it. The matter was adjourned to January 27, 2017.

[15] On January 27, 2017, counsel appeared and indicated to the court that there was a request for additional disclosure. The Crown confirmed that his office had received the letter and he stated the following in regards to outstanding disclosure.

….this case at least with respect to disclosure and there's a note in the file that the police are working on what, All right, so, yes, my office did receive that and I understand that there's, there's some complex issues in has been described as phase three cell phone disclosure and I understand that the officers notes and other disclosure that were requested in this letter have also been forwarded to the police".

[16] The Crown suggested that the matter be adjourned for four weeks to February 24, 2017.

[17] On February 24, 2017, counsel attended and confirmed that they have not received Phase III and Phase IV of the disclosure. Previously, the defence was advised that both Phases of disclosure were in the crown's possession but needed to be vetted. The crown indicated that there was no additional disclosure in the crown file and 'a crown' was still vetting Phase III, including the cell phone records. Moreover, the crown stated that the 'assigned crown', suggested a crown pretrial. Counsel took the position that since so much disclosure was outstanding she was not in a position to conduct a meaningful crown pretrial. The matter was adjourned to March 17, 2017.

[18] On March 17, 2017, both the assigned crown and counsel were in attendance. The assigned crown indicated once again that Phase III and Phase IV and the outstanding disclosure were not available. The assigned crown then shifted focus on setting a CPT or a Judicial Pretrial Conference (Hereinafter called a "JPT"). Counsel reiterated her position with respect to the crown's insistence on setting a CPT or a JPT and that it could not do so given the amount of outstanding disclosure. The court agreed and the matter was adjourned to April 7, 2017.

[19] On April 7, 2017, counsel attended and was provided with a DVD which represented the balance of the outstanding disclosure and according to the crown's notice of response, Phase III was provided as well. The index is found at Tab #9 of the application record. Counsel requested and was granted an adjournment to April 28, 2017 in order to review the additional disclosure. Counsel indicated that she would "set up a pretrial, if appropriate". The crown agreed and never insisted that a JPT should be scheduled at that time.

[20] The disclosure that was provided on April 7, 2017, was reviewed. However, Phase IV of the disclosure (that was promised on February 24, 2017) was conspicuously absent. There were other missing items of disclosure such as the applicant's video statement, video surveillance, officers' notes and the cell phone analysis. On April 17, 2017 counsel forwarded a letter to the crown, which detailed the missing disclosure items. That letter is found at Tab #10 of the application record.

[21] On April 24, 2017 counsel conducted a CPT. The letter dated December 7, 2016 was discussed. The pretrial crown agreed that Phase IV and other disclosure items stated in her letter were still outstanding.

[22] On April 27, 2017, the assigned Crown emailed counsel and attempted to address the outstanding disclosure items including the missing cell phone records. The assigned crown confirmed that he would be providing Phase IV on the next appearance. He requested that on the next occasion a JPT date be scheduled in order to set trial or preliminary hearing dates. On the same date counsel responded by email about her disclosure concerns and the practicality of setting a JPT date. Counsel suggested a more pragmatic approach: She suggested that the matter be adjourned in order to determine if the items even exist, and if they do exist a JPT date could be set on the next appearance and that would have permitted counsel enough time to review and assess the items and be in a position to conduct a meaningful JPT.

[23] On April 28, 2017, the pretrial crown suggested a short adjournment to May 12, 2017 in order for the assigned crown to continue his discussions with the officer - in - charge of the case regarding the outstanding disclosure. Phase IV of disclosure was provided to counsel. The index is found at tab #12 of the application record. It is worth noting that one set of officer's notes was from Officer Ferguson. It was my understanding that he was going to testify at this trial. In addition, Phase IV of the disclosure included copies of UPS documents that had been seized.

[24] On May 8, 2017, the assigned crown emailed a letter to counsel which indicated that he would be addressing the outstanding disclosure issues, specifically the status of the cell phone records.

[25] On May 10, 2017, Phase V of disclosure was couriered to counsel. The index of Phase V of the disclosure is found at tab #14 of the application record.

[26] On May 12, 2017, despite being present in the court that day, counsel by mistake failed to address this case. The transcript reflected that she was never paged. I was advised that her office was not contacted. Nevertheless, duty counsel stepped in and suggested a one week adjournment, however the court adjourned the matter to June 2, 2017.

[27] On June 2, 2017, a JPT date was set for August 2, 2017. The matter was adjourned to August 4, 2017 to be spoken to. Counsel had earlier dates in order to conduct a JPT.

[28] On August 2, 2017, at the JPT held before Justice K. McLeod, the assigned crown stated for the first time there were no cell phone records. Trial time and discovery times were estimated. The crown anticipated calling nine police witnesses. The issue of unreasonable delay was raised as well.

[29] On August 4, 2017, counsel appeared and requested a two week adjournment to seek instructions from her client. The same crown that stated on January 27, 2016 that this case had complex issues and Phase Ill contained cell phone records (which it did not and were never in existence) began to vigorously oppose an adjournment to seek instructions when the JPT had only been completed 48 hours ago. Furthermore, after several minor items of disclosure were given to counsel and she mentioned that during the two week request these items would be examined, the crown stated the following:

"...so I am providing some additional disclosure today, it is my understanding the, disclosure, whatever remains outstanding is not the type of disclosure that would prevent the defence from making informed decisions regarding resolution or election. The disclosure is a red herring when it comes before to the issue that's before the court today and that is whether or not a date should be set. ...".

[30] The issue of unreasonable delay was raised and counsel did not waive the applicant's right under s. 11(b).

[31] On August 18, 2017, the trial dates of June 25-28, 2018 were set. The notice of election was filed for this matter to be tried in this court. Unrealistic dates of September 5-8, 2017 and September 12-15, 2017 were offered and rejected as being too soon to permit trial preparation. November 27-30, 2017 were unavailable to both the crown and the defence. The defence was available on December 11-14, 2017, however, the crown was unavailable. January 9 - 12, 2018 was unavailable to the defence due to a pre-existing lengthy matter. Counsel stated on the record that during the months of January and February, 2018 counsel was unavailable due to the same matter. Also, counsel indicated that had the disclosure issue not dragged on for such a lengthy period of time an earlier trial date could have been set. The matter was traversed to Justice Duncan's court that afternoon. Justice Duncan voiced concern about the length of time that this matter had taken to reach trial and was in peril of being "Jordanized". He indicated that the crown should "slap this matter on top of another list" or "jump the list, which is something that can be done if you think it's important enough, right?" The court was advised that there was no assigned trial crown at this stage. The Jordan application dates were confirmed.

The Jordan Analytical Framework

Now turning to the Jordan analytical framework:

[32] 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.

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

[34] 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".

[35] 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.

[36] 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.

[37] The total delay is 21 months and 20 days.

The Defence Delay

[38] 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).

There were no waivers of delay by the defence.

[39] The Crown argues that the defence is responsible for three discrete time periods of delay and they are as follows:

[40] From April 7, 2017 to June 2, 2016= 56 days. The crown submits that the applicant had sufficient disclosure as of April 7, 2017 to schedule a JPT. In support of its position the Crown relies heavily on Justice Code's decision in R. v. Ghandi, [2016] O.J. No. 4635 (SCJ) paragraphs 30-35, when counsel refuse to set a JPT when waiting for outstanding disclosure. According to the crown, the case at bar is not a complex case which is commonly seen in this jurisdiction. The defence had received the bulk of the disclosure in Phase I and II and therefore, counsel would have been well aware of the evidential core of proof. As of April 7, 2017, counsel would have had a very good idea of the crown's theory and the nature of the evidence to prove the case against the applicant and that counsel did not have to wait for "relatively minor pieces of disclosure".

[41] The defence acknowledged the principles set out in the Ghandi decision but argues that the issue in this case is both the quantity and quality of the outstanding disclosure that is pivotal in understanding the nature of the case, the proof and the material's impact on advising her client on issues such as the nature of the plea, mode of trial, etcetera. The quality of the missing disclosure included the cell phone records, surveillance videos, the applicant's statement, and testifying officers' notes. It is important to note that as of November 2016 all of the disclosure was in the hands of the police and without any explanation was not disclosed until May 10, 2017.

[42] With respect to the timing of scheduling the JPT, the defence received Phase IV on April 28, 2017 and Phase V on May 10, 2017. What would the Crown's position be if the JPT date was set on April 7, 2017 and the scheduled JPT date predated either April 28, 2017 or May 10, 2017? In my view the JPT in all likelihood would have been adjourned, wasting judicial resources. Furthermore, would counsel be in a position to make strategic decisions about the case? I cannot see how counsel could have made those decisions without crucial disclosure and conducted a meaningful JPT. It would be irresponsible for counsel to set a date for a JPT without critical disclosure. (See R v. Methenthiranathen, [2017] O.J. No. 3888 paras. 17 and 31.)

[43] Furthermore, the crown may not have been in a position to properly estimate time for trial when it was not in possession of officers' notes, surveillance videos and UPS documents.

[44] Recently in R. v. Frail, [2017] O.J. No. 5234 at paragraph 44, Justice Schreck recognized the importance of the quality of the outstanding disclosure and the crown's obligation in being diligent in providing it. I agree with the supposition that the Crown should not enjoy the luxury of turning the tables on the defence and insisting on setting a JPT when it has not met its obligations of making timely disclosure. The disclosure is this case was significant. I believe that it was essential in the defence's ability to properly counsel her client. In a conspiracy and identity case it is often the case that the police and prosecution rely upon cell phone communications that have been obtained by a production order. The crown mentioned in court the existence of cell phone analysis/records/disclosure on January 27, 2107 and disclosed a "denied" production order and ITOs in Phase 1 of the disclosure. However, on August 2, 2017 the crown announced at the JPT that the cell phone records did not exist. Counsel relied upon the crown's representation and in my view, vigorously pursued that disclosure in good faith. Overall this was an example of profound laches on the part of the crown in providing disclosure and not moving the matter along. Furthermore, during these proceedings the crown requested a CPT or a JPT whenever the disclosure concerns were raised in court. When counsel opposed the requests the crown suggested lengthy adjournments or agreed to shorter adjournments.

[45] There are other judges in this jurisdiction that have issued judicial condemnation about the period of time that it has taken the Federal Prosecution Service of Canada to complete the disclosure process to permit the parties to proceed and or move the matter along in non-complex importing cases. See R. v. Zamani, [2017] O.J. No. 4727, (9 months) and R. v. Jackson, [2017] O.J. No. 3927 (SCJ), (6 months). I join that chorus of condemnation. The period of time that it took to provide disclosure to counsel in this case was unacceptable. Although the Crown indicates that the bulk of disclosure was provided in Phase I and Phase II, I find that it is troubling that notes from several surveillance officers were not included at the outset. For example, Officer Ferguson, both the team leader and a surveillance officer, his notes were not disclosed to counsel until Phase IV was provided (April 28, 2017). Two other critical set of notes came from Officers Saade and Viera who were involved in the investigation and surveillance. These notes were not disclosed until Phase V (May 10, 2017). Officer Viera was with Officer Kim when Officer Kim located the Blackberry cell phone in the storage facility. I would think that these notes would have been submitted for disclosure purposes after the conclusion of the investigation. Counsel had requested these notes as far back as December 7, 2016.

[46] Also, I agree with counsel's submission that the Crown's "token efforts" to note on the record the Crown was ready to set a CPT did not reflect the reality of the case and were not helpful in moving the case along. A JPT may have been set but the defence was not in a position to discuss both critical issues and time estimates knowing that so much was absent. The crown was fully aware of the issues of outstanding disclosure very early on in this case and only started to pressure the defence in April 2016 when it realized that delay was very much a live issue.

[47] It is worth noting that since Jordan the Federal Crown presently conducts JPTs one day a week in this jurisdiction. A JPT can only be set on Fridays in person and through the trial coordinator's office. I am advised that counsel had earlier dates however, given the current system that was in place there were a limited number of JPT slots to offer. It is unfortunate that the resources have not been provided to open up more opportunities for JPTs for Federal matters.

[48] In my view, due to the outstanding disclosure issue, I do not hold the defence accountable for the 56 day delay between April 7, 2017 and June 2, 2017. The defence was not in possession of important outstanding disclosure and counsel acted reasonably in the circumstances.

[49] From August 4, 2017 to August 18, 2017= 14 days. The crown submits that once the JPT was completed on August 2, 2017 defence counsel sought a two week adjournment to seek her client's instructions. Since time estimates for trial were discussed and completed, the prudent approach for any defence counsel would be to obtain a client's instructions with respect to the different modes of trial and procedure if seeking either a preliminary inquiry or a discovery in advance of the JPT.

[50] It is clear the reason for the adjournment was to obtain written instructions from the applicant. I am sympathetic and approving of this course of action. However, I do agree with the Crown's argument that counsel could have obtained those instructions before the JPT on August 2, 2017 or alternatively, in between August 2, 2017 and August 4, 2017 the next date the matter was scheduled in court. I consider the 14 day delay for the purpose of my analysis as caused solely by the defence. (See R. v. Lafreniere, [2001] O.J. No. 5136.)

[51] From January 12, 2018 to June 28, 2018= 167 days. The crown points out that on August 18, 2017 when trial dates were canvassed with counsel the week of January 12, 2018 was the first available date that could accommodate four consecutive days for trial. The Crown was available however, the defence was unavailable. The Jordan date for this matter is March 9, 2018. The verification of trial date sheet found at tab #15 of the Application record confirmed that counsel was not available on the following 3 dates that did not exceed the Jordan date:

• January 30, 31 and February 1, 2, 2018
• February 12, 13, 14, 15, 2018
• February 20, 21, 22, 23, 2018

[52] Counsel was offered the following nine dates that were post the Jordan date but earlier than the accepted trial date:

• March 21, 22, 23, 24, 2018
• April 3, 4, 5, 6, 2018
• April 23, 24, 25, 26, 2018
• April 30, May 1, 2, 3, 4, 2018
• May 7, 8, 9, 10, 2018
• May 15, 16, 17, 18, 2018
• May 28, 29, 30, 31, 2018
• June 4, 5, 6, 7, 2018
• June 19, 20, 21, 22, 2018

[53] The aforementioned dates were available to the Crown. I do note in passing that counsel was available on December 11, 12, 13, 14, 2017 but the Crown was not.

[54] The defence argues that out of the delay from January 12, 2018 to June 28, 2018 which is the equivalent to 25 weeks, 13 weeks should only be attributable to the defence. Counsel points out that the crown was not available on the following weeks:

• The week of January 15-19, 2018
• The week of January 22-26, 2018
• The week of March 12-16, 2018
• The week of April 9-13, 2018
• The week of April 16-20, 2018

[55] Counsel submits that the since the trial coordinator did not offer availability for the following six weeks that should not account for defence delay:

• The week of February 5-9, 2018
• The week of February 26 to March 2, 2018
• The week of March 5-9, 2018
• The week of April 23-27, 2018
• The week of May 21-25, 2018
• The week of June 4-8, 2018

[56] It is clear that there is defence delay. However, I cannot agree with the crown's submission that the period from January 12, 2018 to June 28, 2018 is entirely defence delay. In support of its position the Crown cited the following portion of paragraph 64 in Jordan:

As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence...

[57] However, that does not end the analysis. The Court went on to further say the following:

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

[58] Furthermore, counsel makes a compelling argument that R. v. Godin, 2009 SCC 26 has not been specifically over-ruled by Jordan and that counsel need not hold themselves in a state of "perpetual availability." The Supreme Court said the following at paragraph 23:

The majority of the Court of Appeal took this as a finding by the trial judge, with which it agreed, that the defence had waived this one and a half month period. Respectfully, I do not agree that the trial judge ruled in this way and I do not agree that it would have been correct to do so. Like Glithero R.S.J., I do not read the trial judge's reasons as accepting the proposition that this period should be attributed to the defence. Rather, the trial judge simply recognized the argument and said that even if it were accepted, the delay was still excessive. Moreover, I respectfully disagree that this period of delay should be treated as waived by the defence in the circumstance of this case. Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability. Here, there is no suggestion that defence counsel was unreasonable in rejecting the earlier date. Indeed, his prior conduct in seeking earlier dates for the preliminary inquiry -- efforts which were ignored -- suggests that he wished to proceed expeditiously. I respectfully agree with Glithero R.S.J., dissenting in the Court of Appeal, at para. 53, that: "To hold that the delay clock stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable.

[59] Justice Moldaver did not spend any time on the analysis of the Godin decision, other than to lament that trial judges' unfortunately find themselves having to account for every discrete time period. (See Godin, supra para. 37 and Jordan, supra at para 37.) In dissent, Justice Cromwell affirmed Godin on this issue. Namely, that counsel cannot be expected to hold themselves in a state of "perpetual availability" or devote all of their time to one case. Furthermore, Cromwell encouraged courts to estimate the time required for the case and what was reasonable for all partied to prepare in the circumstances. Once that was done, the scheduling of dates beyond that point would be considered unreasonable. (See Jordan, supra para 179-180.)

[60] On August 18, 2017 the prosecution was forewarned by Justice Duncan, a very experienced judge, that the matter was in delay trouble. Justice Duncan suggested a number of options. I appreciate that the logistics may be difficult to put trials on top of other trials, or bump other trials, but given the gravity of this case and the obvious warning signs the crown never availed itself to any of these options.

[61] In my opinion the defence delay is 13 weeks or 91 days. Therefore, I find that the total delay is 658 days less defence delay of 105 days (91 days and 14 days) leaving a net delay of 555 days (18 months, 13 days at 30 days per month).

[62] The net delay just hovers above the presumptive ceiling by 13 days, but nevertheless the delay exceeds the ceiling as prescribed by the Supreme Court of Canada.

Exceptional Circumstances

[63] The onus shifts to the crown to point to exceptional circumstances. These circumstances should entail discrete unforeseen and uncontrollable events or complexity to bring the remaining delay below the extension or to justify the ceiling's extension. (See paras. 69-77 supra, Jordan and para. 32 supra, Zamani.) The crown did not argue that this was a complex case and agreed that there were no discrete events that caused delay.

Delay Falling Below the Presumptive Ceiling

[64] If I am incorrect in issuing a stay of proceedings based on my calculation of the net delay falling above the presumptive ceiling, I would still issue a stay of proceedings even if I adopt the Crown's assessment of the trial delay calculation (167 days) which brings the delay below the presumptive ceiling (477 days or 16 months). I would still find that that the defence has discharged its onus in demonstrating that the delay in this case is unreasonable for the following reasons.

[65] Charges that fall below the presumptive ceiling will only be stayed in "clear cases". This will be a rare occurrence. Since Jordan there is very little jurisprudence that defines the clear cases in non-transitional circumstances. 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.)

[66] 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 acted in a fashion that was consistent to a speedy trial.
2. Counsel attempted to secure the earliest possible dates for trial subject to her court calendar.
3. Counsel was cooperative and responsive to the crown and the court.
4. Counsel advised the court and the crown that delay was an issue in a timely fashion.
5. Counsel brought this notice of application expeditiously.

[67] The Supreme Court in Jordan acknowledged that the 18 month ceiling may have to be revisited. (See Jordan, supra para. 57.)

[68] There is a lack of definition of "sustained efforts" and a reasonable time to come to trial, it is of some assistance to examine Justice Cromwell's dissent. He suggested that the complexity of the case, the inherent time requirements and the reasonable availability of the crown and the defence should be considered. (See Jordan supra para. 176-181.)

[69] R. v. Morin and Justice Cromwell's dissent in Jordan recognized that the different time periods and reasons for delay should receive different weight when balancing whether a stay should be issued. (See Jordan supra para. 161.)

[70] In assessing the reasons of the delay, I agree that local conditions should be examined. The Morin guideline prescribed 8-10 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.

[71] In the recent decision of Zamani, Justice Duncan found that it took the crown approximately eight months to complete its disclosure obligation. Zamani was a transitional case, however Justice Duncan found that the period of four months was acceptable to account for neutral time, retainer, disclosure and trial readiness/preparation. As well, His Honour found that 8-9 months of institutional delay was reasonable. This assessment is consistent with Justice Monahan's estimation of tolerable institutional delay in the Payne decision.

[72] The standard of "clear cases" that have been stayed pursuant to section 24(1) of the Charter was defined by the Supreme Court in R. v. Babos, 2014 SCC 16, at paras 31-33. It reads as follows:

Nonetheless, this Court has recognized that there are rare occasions -the "clearest of cases" - when a stay of proceedings for an abuse of process will be warranted (R. v. O'Connor, at para. 68). These cases generally fall into two categories: (1) where state conduct compromises the fairness of an accused's trial (the "main" category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category) (O'Connor, at para. 73). The impugned conduct in this case does not implicate the main category. Rather, it falls squarely within the latter category.

The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

1. There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome" (Regan, at para. 54);

2. There must be no alternative remedy capable of redressing the prejudice; and

3. Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits" (ibid., at para. 57).

The test is the same for both categories because concerns regarding trial fairness and the integrity of the justice system are often linked and regularly arise in the same case. Having one test for both categories creates a coherent framework that avoids "schizophrenia" in the law (O'Connor, at para. 71). But while the framework is the same for both categories, the test may - and often will - play out differently depending on whether the "main" or "residual" category is invoked.

[73] The Supreme Court in Babos stated that if there is uncertainty in the remedy after considering steps 1 and 2, courts are encouraged to fashion a remedy that will dissociate itself with the state impugned conduct rather than attempting to recompense the wrong to the accused. (See Babos supra at paras 38-39.)

[74] When the residual category is invoked the court must determine whether to protect the integrity of the criminal justice system or forge ahead with a trial despite the impugned conduct. (See Babos supra para 41.) Finally, the court is required when balancing the interests where the "affront to fair play and decency is disproportionate to the societal interest in the effective prosecution of criminal cases" to issue a stay of proceedings. (See R. v. Conway.) Consequently, I feel that the delay is still unreasonable.

[75] Based on the foregoing circumstances, including the crown's dilatory efforts in providing timely crucial disclosure, the lack of urgency in moving the matter forward despite repeated warnings, counsel's sustained effort to expedite an uncomplicated case, I would still issue a stay the proceedings despite the fact that the delay falls below the presumptive ceiling.

Conclusion

[76] 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.

[77] The trial dates of June 25, 26, 27, 28, 2018 are to be vacated.

Released: January 19, 2018

Signed: Justice Paul T. O'Marra