WARNING

The Court hearing this matter directs that the following notice 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 Identity of offender not to be published.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 Identity of victim or witness not to be published.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 — (1) Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) .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.

WARNING

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

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. —(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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).

(2) Mandatory order on application. — 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.

486.6 Offence. —(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.

Court Information

Ontario Court of Justice

Date: 2018-07-13

Between:

Her Majesty the Queen

— AND —

Z.N.

Before: Justice Matthew C. Webber

Application: Section 11(b) Application

Orally delivered on: July 13, 2018

Written Reasons finalized: July 20, 2018

Counsel:

• D. Elhadad, J. Neubauer — counsel for the Crown
• M. Eldelson, A. Paciocco — counsel for Z.N.

WEBBER, J.:

Overview

[1] Z.N., a young person, submits that his right to be tried within a reasonable time has been violated contrary to section 11(b) of the Charter and accordingly seeks a stay of proceedings.

[2] The applicant surrendered to police and was charged on October 20, 2016. The evidence and submissions on his trial are currently scheduled to be completed by August 8, 2018.

[3] Z.N. was charged with sexual interference and sexual assault contrary to sections 151 and 271 of the Criminal Code of Canada. At the time, Z.N. was 15 years of age and had no prior criminal record.

[4] A detailed analysis of the accrued delay in accordance with the Supreme Court's direction in R. v. Jordan must be completed. It does bear highlighting at this early stage however, that the most significant cause of delay in this matter resulted from an error made by the Crown's office in the course of providing disclosure. In December 2016, it became known to the defence that a large body of potentially relevant text messages had been seized from the complainant's iPad. These messages, [over 1500 pages in total containing perhaps as many as 15,000 independent texts] were disclosed to the defence on December 23, 2016.

[5] The Crown, both in written and oral submissions, fairly characterized the disclosure of this material to have been an error on their part. It was only after disclosure of the material had been made to the defence and relied upon extensively in preparation of their case, that the Crown concluded the disclosure of materials should have been subject to a section 278 application prior to production. The Crown also fairly recognizes that their error was compounded by the fact that it took over 14 months for them to discover it and to ultimately require that all of this material be returned to their office. The Crown's demand that the materials be returned to their office occurred approximately two weeks before the commencement of the originally scheduled trial dates.

[6] Ultimately it was impossible to complete the necessary section 278 application within the time originally set for trial and new trial dates in July and August of this year were necessarily set to complete the matter.

Positions of the Parties

[7] The defence contends that the net delay in this case [inclusive of deliberation time] is 19.5 months and therefore, in excess of the 18 month ceiling set in Jordan. (the defence asserts that 11 weeks of delay can be attributed to the defence as either waived or caused by their unavailability)

[8] Alternatively, the defence submits that should the Court find that the delay is below the presumptive ceiling, that the applicant has established that he has taken meaningful steps to expedite the proceeding and that the case has taken markedly longer than it reasonably should have thus requiring that the charges be stayed.

[9] Finally, the defence submits that the appropriate ceiling for young persons was not decided in R. v. Jordan and further, that it should be set by this Court at 12 or 15 months, which on the facts of this case would as well invite a stay of proceedings.

[10] The Crown disagrees with the defence attribution of "defence delay". The Crown attributes 6.5 months of delay to the defence leaving a net delay of 15.25 months. The Crown submits that the delay thus falls below the presumptive ceiling established in Jordan and that the defence has not established there to have been a section 11(b) breach.

[11] The Crown asserts that the law regarding a lower presumptive ceiling for a youth is unresolved and that the Court need not therefore lower the ceiling. If the Court does decide to do so, the Crown submits that the ceiling should be set at 15 months.

[12] Finally, the Crown maintains that in the event the Court finds that the net delay in the case does in fact exceed the ceiling, the complexities of the case (specifically excluding the complexities arising from their error with the disclosure) justify the time that will be taken getting this matter to trial.

[13] Of note is that both Crown and defence have submitted that an estimate of the time required for the Court to deliberate upon and draft a final decision needs to be added to the overall calculation of delay. The defence submitted an additional three weeks to be a reasonable estimate for such tasks. The Crown was content to accept the Court's estimate on this issue.

Chronology

[14] The accused was arrested and charged on October 20, 2016. The next day he was released from custody on conditions. This same day the defence made its initial request for disclosure.

[15] On November 1, 2016 the defence confirmed receipt of disclosure on October 26 and 28 and as well that a counsel pretrial (CPT) had been scheduled for November 15. The matter was adjourned for three weeks for disclosure review and for attendance at the CPT. The next appearance was scheduled for November 22.

[16] The CPT was conducted on November 15, 2016, and on November 22 a judicial pretrial (JPT) was set for December 8, 2016. The Crown and Court were available to conduct the JPT on December 1 however, the defence was unavailable until December 8.

[17] On November 21, 2016, additional disclosure was provided to the defence. This disclosure made it known to the defence that investigating officers had met with the complainant (FW) and her mother (KW) on October 25, 2016, at which point FW gave them her iPad so that a search of the data thereon could be conducted. With the assistance of the Computer Forensic Unit (CFU) of the Ottawa police, the data was successfully secured on October 26, 2016.

[18] A month and a half later, during the December 8 JPT, the defence was advised that the secured data would be selectively searched later that day for possibly relevant material. During this pretrial, it was also agreed that five days would be required to conduct the trial.

[19] On the next Court appearance, December 20, 2016, the defence requested that the matter be adjourned until January 10, 2017 to facilitate meetings between counsel and his client. While this request by the defence was well within the bounds of appropriate preparation, as events unfolded, the defence soon found themselves completely re-immersed in disclosure review and preparation. The Crown on this Application had originally sought to attribute this three-week period of delay to the defence, however, withdrew the submission in the course of oral argument. Clearly the defence would still have been up to their necks in initial preparation given the timing and girth of this latest body of disclosure.

[20] On December 23, 2016, the defence received disclosure of the selected data secured from the complainant's iPad. This material, which has been referred to as the PDF Extraction Report, was 1521 pages in total. Having had an opportunity to review the material in the course of the section 278 application, I would conservatively estimate that the disclosure contained in the range of 15,000 separate messages. It was this material that would become the subject of the late breaking 278 application that ultimately derailed the originally set trial dates.

[21] On the next Court date, January 10, 2017, Ms. Remigio, articling student for Mr. Edelson, requested that the matter be adjourned until January 24, 2017. The reason noted for the adjournment was the recent receipt of this large body of dense disclosure.

[22] From the outset of the case, the defence had been dealing with Ms. Thibault, the Crown Youth Team Lead. In the days before the January 24 Court date, the defence attempted on multiple occasions to contact Ms. Thibault. They submitted during this application, that upon review of the new disclosure, they had concluded that the Crown's case had become substantially weaker. Accordingly, they wanted to set a further CPT. In a telephone and email exchange with another assistant Crown, this course of action was agreed upon. The earliest date available for Ms. Thibault's attendance was February 7.

[23] On the January 24 Court appearance, the case was adjourned to February 14 to accommodate a February 7 CPT. Even though the defence and Crown had yet to sit down and discuss the new disclosure with one another, the defence waived, both in correspondence and on the record, the time between January 24 and February 14. The defence explained to this Court that this waiver was provided in light of their assessment at the time, that the disclosed text messages considerably weakened the Crown's case. Accordingly, they were optimistically pursuing an expedited resolution.

[24] Ms. Thibault was not in attendance at the February 7 CPT. By this time Ms. Schriek had taken over as the new Crown Youth Team Lead and attended in Ms. Thibault's stead. This pretrial had been specifically scheduled for February 7 in order to have a Crown present who would presumably be familiar with the brief and perhaps more importantly, with the large body of recently disclosed text messages. It appears however, that Ms. Schriek was not particularly familiar with the text disclosure at the time. In fairness to Ms. Schriek, she may well have only recently taken over from Ms. Thibault, however, the change in counsel quite likely contributed to some delay in eventually accomplishing a CPT where both sides were sufficiently acquainted with the new disclosure.

[25] Later on February 7, after the CPT had been conducted, defence counsel sent the Crown an email outlining particular emails or texts that they felt impacted negatively on the complainant's reliability and credibility. Ms. Schriek responded as follows:

"Thank you for sending this along. I will do my best to read all of the texts in time for Tuesday so that I can understand the context better. I totally understand that you may require an additional week – with 11(b) waiver - to speak to the client about this material. And if we require a further CPT I'm open to that as well."

[26] On the February 14, 2017 appearance, the matter was adjourned to February 28. The Crown sought an 11(b) waiver on the record. The articling student that appeared on behalf of the defence (Ms. Remigio) clearly responded that she did not have instructions to provide such waiver.

An extract of the email sent by the defence to the Crown on February 7 is contained in the application record filed with the Court. The extract reads as follows:

"As we indicated today, we are willing to waive 11(b) for an additional week in the spirit of a possible resolution in the event that we cannot complete this review with Z.N. in advance of next Tuesday" (emphasis added)

[27] On February 28, the case was again adjourned. This time to March 7. The stated reason for the adjournment was for the defence to have the accused review this body of text messages. This adjournment was accompanied by an explicit waiver.

[28] On March 7, 2017 the matter was adjourned for an additional three weeks at the request of the defence. The record clearly speaks to the fact that both defence and Crown were intending on crafting an 'Agreed Statement of Fact' (ASF) for use on a possible resolution. This adjournment was accompanied again by an explicit 11(b) waiver.

[29] On the March 28 appearance it was noted on record by the defence that they were awaiting a response from the Crown on the proposed ASF. The Crown proposed conducting another CPT. The defence was about to commence an unrelated lengthy trial matter and thus suggested that the CPT be done over the phone. Both sides agreed to proceed in this fashion and the matter was adjourned to April 11. Defence counsel followed up this Court appearance with an email to the Crown sent later that same evening, offering to do the CPT by phone on March 29 or 30. The evidence before me is that no response of any sort was received from the Crown until April 24, 2017.

[30] The defence has submitted that no 11(b) waivers were extended after March 28, 2017. In fact, on the very next Court date - April 11, 2017- the Crown suggested a three week adjournment for the purpose of contacting the complainant. The response by the articling student (Ms. Remigio) appearing on behalf of defence counsel was that she had "explicit instructions not to waive 11(b) in this case". The matter was adjourned to May 2, 2017.

[31] On May 2 the matter was adjourned one week to May 9, 2017. It appears from the brief comments put on the record by the defence that the resolution discussions had ultimately concluded with a proposed ASF from the Crown which differed sufficiently from that initially suggested by the defence that the setting of trial dates now seemed prudent. The defence sought one week to secure final instructions from his client. Given the shift in direction, this adjournment is properly characterized as appropriate defence preparation.

[32] On the next Court date - May 9, 2017, the trial dates were set. There is considerable disagreement between the Crown and defence as to how delay might be attributed as a result of this appearance. Therefore it is necessary to outline what was said on the record in some detail. The Crown takes the position that the defence is responsible for all delay accrued between January 3 and March 12 (ie. 9 weeks). The defence asserts that it is only responsible for the delay between January 3 and January 15 (ie. 2 weeks).

May 9, 2017 Appearance

[33] The appearance began with the Crown indicating that the time estimated for trial was five days. Crown Counsel further indicated that this estimate was arrived at in part because Mr. Edelson was to be the trial counsel. The Court offered the dates of March 12, 14, 15, 16 and 19, 2018.

[34] The articling student, on behalf of Mr. Edelson, indicated he was in a lengthy trial and they were hoping that there might have been earlier dates in February. It was further indicated that Mr. Edelson's calendar was quite full from March to October, thus they were hoping for January or February dates.

[35] In turn, the Court offered dates of January 3, 4, 5, 24, 25 and 26. Otherwise the Court indicated that the next dates were February 7 and 8. Ms. Remigio responded that Mr. Edelson was not available until January 15 but was unavailable on February 7 and 8. With respect to January 24, 25, 26, she said as follows:

"I'd have to just confirm with him. I know he's finishing a matter the day before, so just for prep time, I'd have to ensure that will be enough time for him"

[36] Thus, these dates were, strictly speaking, available to the defence. They were the only dates offered until this point that the defence was available. The student simply needed to check with Mr. Edelson prior to committing him to dates. Presuming the student was specifically going to confer with Mr. Edelson regarding January 24 – 26 (and I do so presume given that these were the only dates when defence availability had corresponded with Court availability) to ensure that he did not object to having two matters booked back to back, under the circumstances this was a completely proper and professional thing for Ms. Remigio to do.

[37] The Court then went on to say, "We could try February 26, 28, and March 1, 2, and 12."

[38] Mr. Edelson however, was scheduled to be in trial elsewhere during the last week of February and otherwise booked in March.

[39] The articling student's involvement in the set date ended with her indicating that she would call Mr. Edelson and inquire if any of the dates could work for him. The matter was stood down. Ms. Remigio left the Courtroom and did not return.

[40] When Ms. Remigio left the Courtroom the possibility of the defence being available on January 24 – 26 was real. All things being equal, one would have expected that these dates would have been revisited as soon as the matter was readdressed. As well, it was apparent on the record that the defence had availability starting on January 15 however, the specifics of such availability are unclear on the record.

[41] When the Court reconvened, counsel, Mr. Paciocco, appeared for the defence. He indicated on the record that the defence was willing to set bifurcated dates if need be. He also proposed perhaps setting an expedited JPT to assist in canvassing all available dates. The Crown in response indicated that "we" (ie. the Crown, defence and Court) had already canvassed dates in January, February and March and that none of them were available. This was not entirely accurate. The Court had been advised earlier that Mr. Edelson was in fact available on January 24, 25, 26, but that he had a trial completing immediately prior to that.

[42] The attending Crown then went on to ask the defence whether there was a stretch of dates after March 19, on which counsel would be available. In response to this inquiry Mr. Paciocco accepted the March dates already offered. [March 12, 14, 15, 16, and 19, 2018].

[43] The defence has conceded in submissions that they should have communicated with one another more effectively between Ms. Remigio's exit from the Courtroom and Mr. Paciocco's attendance. However, Mr. Paciocco has also submitted that had the January 24, 25, 26 dates been revisited that he would have set them. In fact, he was aware of the fact that the case scheduled immediately before those dates was poised for resolution making the 24 to the 26 of January perfectly good dates on which to commence the trial.

[44] The defence is quite correct that they should have communicated more effectively prior to the trial dates being set. However, it is of at least equal significance that the Court did not revisit the January dates when Mr. Paciocco attended, given that this was the explicit reason that Ms. Remigio held the matter down. And it is perhaps most significant that the attending Crown, upon Mr. Paciocco's attendance, misstated what had happened earlier in the proceeding. Given this actuality, it is quite understandable that the defence seized on the dates that were eventually set. If this misstatement had not occurred the trial very probably would have commenced on January 24, instead of March 12.

[45] Finally, on the topic of this set date, the defence has submitted on this application that Mr. Edelson's calendars illustrate that he was in fact available the entire week of January 15. Further it was submitted that these calendars also illustrate that Mr. Edelson was available the weeks of February 12 and 19. However, such availability was not actually laid out on the record in open Court. The calendars were however submitted as part of the application record.

[46] On December 22, 2017, counsel appeared in Certificate of Readiness Court (COR Court). On this date the defence advised that it was ready to proceed to trial as scheduled. The matter reappeared in COR Court on January 26, 2018 as a result of the Crown having earlier indicated some problem subpoenaing their witnesses. These problems were resolved by the time of the January 26 appearance. The Crown indicated that they were ready to proceed on the scheduled date. The defence was advised on this occasion that a new assistant Crown, Mr. R. Tallim, had been assigned to prosecute the case.

[47] On the evening of February 21, 2018, the defence was advised by email, that yet another new Crown, D. Elhadad, had been assigned to the prosecution. It is noteworthy that this would be the fourth Crown to deal with this case. It is also noteworthy that the trial was at this time set to commence in just over two weeks.

[48] Within the February 21 email, the newly assigned Crown wrote as follows:

"The Crown has become aware that by inadvertence, records from the complainant F.W. comprising a large number of emails and text messages have been disclosed to your office. Specifically, these documents comprise approximately 1521 pages emails, text messages and some photographs: they are all attached to Detective Michael Villeneauve's "extraction report" dated December 8, 2016." [The report in question was thus in excess of 14 months old at this point in time]

The email continued as follows:

"It is the Crown's view that these documents constitute "Records" within the meaning of s.278.1 of the Criminal Code of Canada and should not have been disclosed to your office. In the absence of an application by the accused pursuant to s.278.2(1) and 278.3(1), these records must be returned forthwith to the Crown…"

[49] The defence replied in writing to the Crown on February 23, 2018. The defence undertook to return the electronic copy of the records in question and to otherwise secure their hard copies of the material, which would have been noted up and highlighted with privileged work-product. The defence further asserted within this correspondence that extensive use had been made of these materials in the course of trial preparation on the implicit understanding that the materials were lawfully in their possession. The defence also asserted that they were forced therefore to "freeze" further preparation with respect to the key civilian witnesses and that the issue would need to be fully vetted before the trial Court.

[50] With the trial scheduled to commence on March 12 the parties appeared before me on March 5, 2018, between other scheduled matters to formally advise the Court of these late-breaking developments. The Crown indicated his position that a formal section 278 application would be required before the defence could re-access some or all of the materials. The Crown noted that the complainant, F.W objected to her text exchanges having been provided to the defence. The Crown further advised that preliminary steps had been taken to arrange for local counsel, G. Barnes, to provide F.W. independent legal advice. Later this same day the Court signed an order directing legal aid coverage for such advice.

[51] On this appearance the defence near immediately and somewhat prophetically took the position that it was unrealistic under the circumstances to expect the trial to proceed as scheduled. The defence raised issues such as: was a s.278 application even necessary on the facts before the Court; if an application is required, what parties will need be served on the application; the statutory notice provisions and the consequence of same; and, the fact that the material encompassed by the proposed application contained approximately 15,000 separate messages. The defence submitted that it had taken them more than two weeks to complete their initial review of the material in question. Therefore, should the Court eventually order production of the materials for its review as part of the application, it was submitted that such a review could not realistically be completed within the trial time currently allotted. All of this provoked me to indicate on the record on this occasion that any optimism I had about finishing the trial on schedule was rapidly evaporating. Ultimately, counsel agreed to re-attend before me two days hence, on the 7 of March, to update the Court on developments.

[52] In the course of the March 7 attendance, the Court was advised that the complainant had met with independent counsel and had taken the position that she was not waiving any protections afforded her privacy by section 278 of the Criminal Code. Crown counsel also made clear on this occasion that the independent counsel, G. Barnes, would not be available for the argument of any section 278 application due to his ongoing commitment to a jury trial. The defence was still tentatively of the view that a section 278 application may not be required. The issue of who specifically would need to be served on the application, should it proceed, was still in dispute. The defence was concerned that the Supreme Court's recent ruling in the case of R. v. Marakah, 2017 SCC 59 may require service to the other parties engaged in the text/email communications with the complainant. As well, should the 278 application be necessary, the Court still needed to provide specific guidance as to what this somewhat unusual application would look like.

[53] Finally, in so far as both defence and Crown were familiar with the entire body of impugned communications and further, given that the defence had already incorporated much of the material into their cross-examinations, it struck the Court as reasonable to expect that the parties might well agree on the "likely relevance" of a sizable portion of the material. Accordingly, the Court pressured both Crown and defence to put their heads together with a view to determining what material could be so categorized.

[54] On March 8, the defence requested disclosure of the actual consents signed by the complainant and her mother concerning the production her iPad communications. These documents were provided to the defence on March 9, 2018. Upon reviewing these documents it became apparent that the consent(s) did not at all address section 278 protections. Accordingly the defence conceded that a section 278 application would in fact be necessary and advised the Crown of as much.

[55] On March 9, further to the Court's suggestion that counsel put their heads together and determine whether there was any common ground regarding materials that were "likely relevant", the defence sent the Crown a 60-odd page document outlining materials they felt clearly met this threshold. Unfortunately, notwithstanding the critical need to make progress on these issues, the Crown was away all weekend and thus unable to commence review of the document until Monday morning. I note this, not to attribute blame, but to highlight how difficult it often is accomplish large tasks with limited notice, regardless of how pressing the issue might be.

[56] March 12 was to have been the first day of the trial. Instead the Court heard submissions on the issue of which parties required service of the 278 application (ie. The potential application of Marakah) as well as on notice issues and how the particular application should unfold.

[57] On March 14, 2018, I delivered an oral ruling designed to guide the parties on the 278 application and as well to expedite the process where at all possible. I ruled that submissions regarding the issue of "likely relevance" would be made with references to the materials already in the possession of both Crown and defence. These materials were knowingly disclosed by the Crown and had in fact been discussed in pre-trials better than the year before this date. That very fact suggested that some if not much of the material could well be "likely relevant". Further, the defence had extensively integrated this material into the preparation for trial. It made little sense on the facts of this particular case to attempt to turn back the clock and argue the application in a vacuum as if the material had never been disclosed. Such that the complainant's privacy rights were implicated, there remained the protective nature of the voir dire itself.

[58] The second aspect of the Court's ruling dealt with who should receive service of the section 278 application. The defence submitted that the decision in Marakah may well necessitate service on the other parties engaged in text/email communication with the complainant. The Crown took the position that such parties did not fall within the contemplation section 278. Sensitive to the fact that the accused is a youth, as well as to the fact that his trial had effectively been derailed, I felt obliged to do whatever I could to at least expedite the completion of the section 278 application. I held that given the acute time constrictions in play in this case it would not be necessary to serve these third parties. I further held that ample tools are contained within the body of section 278 to enable the Court to protect the privacy interests of these individuals.

[59] The remainder of the day was spent attempting to arrive at both an aggressive and realistic schedule for the argument of the application. By day's end, the defence had agreed to perfect their application by the following Monday – the 19 day of March. This of course was the last day originally set for Z.N.'s trial. Otherwise, the matter was adjourned to the following day to get confirmation that independent counsel would be in a position to review the materials with the complainant prior to Monday and that counsel would be available on Monday to attend the Application.

[60] On the March 15 attendance, counsel, Ms. Robinson did attend and confirm that she has been retained to provide the complainant independent advice. Further, she confirmed that she would be able to attend on the 19 and that she could be in a position to make submissions at that time. She did note for the record that the materials were voluminous but that she would attempt to review them over the weekend and meet with the complainant on Sunday. On this occasion however, the defence sought to adjourn Monday's scheduled date for argument. Mr. Paciocco submitted that after working on the application the night before, the defence had come to the view that they would not be able to do the application justice on the time-line they had agreed to the day prior. Ultimately, I granted the defence adjournment request. The defence had been put in this position not as a result of their own conduct but as a result of Crown inadvertence. Further, they were now faced with satisfying an evidentiary burden if they were to be permitted to use the very information they had in their possession for over a year and around which they had crafted their entire defence. Finally, should the matter have returned for argument on the 19, this schedule would have put Ms. Robinson, counsel for the complainant, in a less than ideal position. She would have been before the Court, expected to make submissions on behalf of the complainant, without having had a chance to review the defence application in advance.

[61] Counsel attended trial coordination for new dates. They were provided the trial dates of July 9, 10, 11, 12, and August 8. Mr. Elhadad noted on the record that admissions had been made and that the Crown was focused on proceeding on the basis of the 3 civilian witnesses. It was not contemplated that the "narrative" evidence of one or more police officers would be necessary or called at trial. The dates of April 9 and 10 were provided for the s.278 application. May 7 was provided for possible continuation of the 278 application.

[62] On March 22, the defence had the matter brought forward to indicate that they would be bringing this s.11(b) application. Upon attending trial coordination it was decided to reassign the 7 of May to the argument of the 11(b). A further date of June 19 was set for stage II of the s.278 application.

The Jordan Framework

[63] The Supreme Court described its creation of ceilings, beyond which delay is to be regarded as presumptively unreasonable, as "the most important feature of the new framework". R. v. Jordan, 2016 SCC 27 at para 49. The presumptive ceiling for cases tried in provincial court is 18 months.

[64] One of the issues raised in this application is whether or not the presumptive ceiling should be adjusted for young persons prosecuted under the Youth Criminal Justice Act. I will conduct my initial analysis utilizing the 18 month ceiling and thereafter, address the specific question of whether or not the ceiling should be adjusted for young persons.

[65] Once the ceiling has been found to have been breached the Court held,

"… we presume that accused persons will have suffered prejudice to their Charter-protected liberty, security of the person and fair trial interests." (Jordan at para. 54)

[66] To determine whether the applicable ceiling has been exceeded the court must determine what the "net delay" in the case has been.

[67] Net delay is determined by subtracting "delay waived by the defence" and "delay caused solely by the conduct of the defence" from the period of overall delay. R. v. Jurkus, 2018 ONCA 489 at para 6; R. v. Jordan at para. 61 and 63; R. v. Cody, 2017 SCC 31 at para 26. Both of these types of defence delay have occurred in the case before this Court.

[68] If after completing this exercise the net delay exceeds the presumptive ceiling, the Crown will bear the onus of establishing that the delay was nevertheless reasonable. The Crown can only succeed in this task by establishing there to have been exceptional circumstances which generally fall within one of two categories - discrete events or particularly complex cases. The Crown in this case is not asserting there to have been any discrete events that could justify delay in excess of the ceiling. Should the court find the delay to exceed the ceiling, the Crown does seek to rely on the complexity of the case to justify such delay.

The Delay in This Case

[69] Z.N. was charged on October 20, 2016. The evidence and submissions on this trial are scheduled to be completed by August 8, 2018. This amounts to a total delay of 657 days or 21.5 months. In so far as there is defence delay in this case, "net delay" must be calculated down from 21.5 months.

Defence Waiver

[70] On the January 24, 2017 court appearance, the defence requested a three-week adjournment until February 14. The defence had been disclosed the 1521 pages of text and email messages approximately one month prior. The defence had worked diligently over the holiday season reviewing these new materials. Further, they now wanted to set a CPT with the Crown Youth Team Lead, Ms. Thibault, to address issues arising out of this new material. The assistant Crown who agreed with this course of action no doubt also appreciated the efficacy of this plan. Ms. Thibault was overseeing the case at the time the disclosure was made and it was reasonable to believe that she would have some familiarity with its content.

[71] In the case of R. v. D.A., 2018 ONCA 96, the accused, a young person, received a large body of late disclosure on a date that had been set for a judicial pretrial. The pretrial could not proceed because the defence needed to review the new material. On the occasion of the next scheduled judicial pretrial yet again a fresh body of significant disclosure was provided to the defence. The Court of Appeal held the trial judge had erred in holding the defence responsible for delay in setting the trial date caused by this need to review these late disclosed bodies of material. The Court held at paragraph 13,

"Where, as here, the disclosure is made so late that it cannot be reviewed before a scheduled appearance, the crown cannot fairly assert that the accused should go ahead and set a date at that scheduled appearance."

[72] In Z.N.'s case, the three-week adjournment from January 24, 2017 to February 14, 2018 was sought in an effort to facilitate a CPT between the defence and a Crown who was familiar with the extensive body of new disclosure. CPT's and JPT's are an embedded part of the criminal trial process and if anything meaningful is to be accomplished at them they must be attended by prepared counsel. As was the accused in D.A. entitled to review the Crown's case before moving the matter along, so too was Z.N. entitled to expect a Crown to conduct a meaningful CPT with his counsel - an event that could only occur if the attending Crown had reviewed the new materials.

[73] But for the fact that the defence explicitly waived 11(b) for this three-week adjournment, I would have had no hesitation classifying the adjournment as a necessary part of the pretrial preparatory work of counsel. Nevertheless, the defence has explicitly waived 11(b) for this three-week duration and I will not disrupt that waiver for the purpose of this application.

[Three weeks of defence waiver]

[74] Interestingly, notwithstanding the best intentions of the defence, the February 7 meeting with Ms. Thibault's replacement did not accomplish the desired end. The meeting was followed up by the defence sending an email to the Crown highlighting some of the messages that they felt were harmful to the Crown's case. (I should repeat here that while Ms. Schriek was not fully conversant with the disclosure on February 7, this was most likely due to her having just taken over Ms. Thibault's position. That however, is no consolation to Z.N.)

[75] This context is important in understanding my treatment of the next period of "waiver". Even though it appears clear that the Crown in attendance on the February 7 meeting was insufficiently familiar with the new disclosure, when the defence sought to adjourn the matter from February 14 to February 28, the crown sought a waiver for this two week duration. The articling student in attendance for the defence indicated on record that she did not have instructions to provide such a waiver. The defence however had provided an email to the Crown on February 7 indicating that it would waive 11(b) for one week in the spirit of resolution.

[76] The Crown has submitted that if the court does not find the second week to be covered by waiver that I should conclude that it constitutes deductible defence delay.

[77] It must be kept in mind that the defence was attempting throughout this time frame to have a sit-down discussion with a Crown that was as familiar with the new disclosure as they were. Clearly the defence was hopeful that if this were to occur, the case might well have been resolvable in a manner favourable to their client. The defence had already waived three weeks of delay, in essence to accommodate Crown preparation. While it is recognized that waiver can be either explicit or implicit, in either case it must be clear and unequivocal. (Jordan at para. 61) There is nothing clear or unequivocal about there being an implied waiver applicable to this second week of delay. Further, to repeat what I said above, the accused is entitled to expect of the Crown a pretrial where the attending Crown is well versed in the evidence. This is in fact the Crown's obligation. It would be unfair in the circumstances to hold the defence responsible for this additional one week of delay. This conclusion is supported when one recognizes that if the attending Crown had been completely familiar with the disclosure on February 7, this additional adjournment might not have even been necessary.

[One week of defence waiver]

[78] On February 28, 2017 the case was adjourned at the request of defence for one week, to March 7, 2017. The stated purpose of this adjournment was for the accused himself to review the text messages. The adjournment was accompanied by an explicit defence waiver.

[One week of defence waiver]

[79] Finally, on March 7, 2017 the case was adjourned three weeks at the request of the defence. The stated purpose for the adjournment was the preparation of an Agreed Statement of Fact (ASF) for use on a possible resolution. This adjournment was accompanied by an explicit defence waiver.

[Three weeks of defence waiver]

Delay Caused by Defence Unavailability

[80] The defence concedes that one week of delay was caused as a direct result of their unavailability when the first JPT was set on December 8, 2016. The Court and Crown were available to conduct the JPT on December 1 however, the defence was not available until the eighth.

[One week of defence caused delay]

The May 9, 2017 Set-Date Appearance

[81] This brings us to what is perhaps the most contentious period of delay in the case, that being the delay from May 9, 2017 (the set-date) to March 19, 2018 (the last scheduled day of what was to have been the trial).

[82] The specifics of what was said and took place during this set-date are summarized above at paragraphs 33 to 45.

[83] It is perhaps contextually important to recognize, when dealing with this set-date, that the first dates offered to the defence by the Court were the same dates that were ultimately set. If the defence had passively accepted these dates at the outset of the attendance, the entirety of the delay would have fallen at the feet of state. However, Ms. Remigio, the articling student initially in attendance for Mr. Edelson, did exactly what one presumes the new culture under Jordan would encourage. She indicated to the Court that the defence was hoping that there would be available dates in January or February.

[84] The court first offered the dates of March 12, 14-16 and 19 for trial. When the defence inquired about dates in January or February the court offered the dates of January 3 - 5 as well as January 24 - 26.

[85] The Crown has submitted that as a consequence of not accepting the January dates, the defence bore responsibility for the delay between January 3 and March 12. The Crown would therefore have nine weeks of delay attributed to the defence as a result of this set-date. Even if I were to accept the Crown's approach to the analysis of this set-date, the crucial dates for comparison purposes would be the competing end-dates for the trial, not the commencement dates. On the facts of this case the court would then calculate the delay caused by defence unavailability by comparing January 25 and March 19. When approached in this manner (which deals with the timing of competing trial end-dates) the delay is seven weeks, instead of the nine weeks submitted by the Crown.

[86] The defence on the other hand submits that the court had been advised that Mr. Edelson's availability commenced on January 15. Accordingly, the argument was that if the defence was available for two weeks in January, commencing January 15, but the court or Crown were not, the defence should not be held accountable for delay after January 15.

[87] In support of this argument the defence relied, as have other trial courts, on the following passage from paragraph 64 of Jordan,

"As another example, the defence will have directly caused the delay if the court and Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and Crown are unavailable will not constitute delay, even if defence counsel is also unavailable." (emphasis added)

[88] The defence cites multiple cases as being supportive of the manner he proposes the court should deal with this fact scenario, where the defence had availability interspersed between the earliest dates offered and the dates actually set – and where the Crown or court are unavailable on such dates. See R. v. Feng, 2018 ONSC 1232; R. v. Reynolds, 2016 ONCJ 606 at para 35; R. v. Vitalis, 2018 ONCJ 43 at Para 51-62. The Crown cited the decision in R. v. Wong, 2016 ONSC 5374 (at para. 79), as an example of contrary authority.

[89] Only in the case of R. v. Feng was the Superior Court of Justice sitting in an appellate capacity and thus rendered a decision binding on this Court. The Court's reasoning on the issue of how to treat "interspersed dates" is contained at paragraphs 22 to 24 of that decision. The extract reads as follows:

"22. The Crown states that two specific periods of time should be attributed to defence. Regarding the first period, the Crown states that from August 22, 2016 to November 24, 2016, three months and two days, the crown was ready to proceed defence was not. Therefore, this period should be considered defence delay. Regarding the second period, the Crown states that from December 12, 2016 to January 4, 2017, twenty-three days, the crown was ready to proceed but the defence was not. This period of delay was caused solely by defence unavailability and therefore should be attributed to the defence. The Crown states that when these two periods are attributed defence delay, the "corrected true net delay" is actually eight months and seven days.

23. I do not agree with the Crown's position on these two periods. Regarding the first period, the defence was available on September 5, 6, 9, October 10, 18, 20, November 4, 10, 11, 17, 2016. This is not a situation where dates were given from August 22 to November 24 but the defence was not available at all until November 24. The court and Crown were available for 26 dates whereas the defence was available for 15 dates including five that were prior to August 22, 2016. Regarding the second period, the Crown's position ignores the fact that the Crown was available on five days in this period whereas the defence was available on three days including one prior to December 12, 2016.

24. The fact that the defence's available dates were interspersed with the Crown's dates is significant. The cases relied upon by the Crown such as Mallozi do not involve interspersed dates. The trial judge concluded that one month of defence delay was attributable to the defence. I find that the trial Judge was correct in reaching this conclusion."

[90] The need for Courts to recognize interspersed defence availability when the Crown or Court are not available is clear when one considers the extreme hypothetical posed by Mr. Paciocco in argument. Presume a trial court offers February 1 as a date for trial. Presume further that the defence is unavailable on the 1, but available for every other sitting day throughout the month of February. Finally, presume that once the February 1 option is rejected, the next dates offered by the court are at the end of March. If a reviewing court did not have the capacity to take stock of interspersed defence availability, the defence in this hypothetical would bear the responsibility for the entire two months of delay from February 1 to the end of March notwithstanding that the actual cause of such delay would have been the court. This cannot be the state of the law.

[91] The problems that I have with the May 9, 2017 set-date however, all arise out of the specific nature of the record of the proceeding.

[92] The trial of this matter required five days of court time to complete. When Ms. Remigio appeared on record for the first instalment of this appearance only four of Mr. Edelson's available dates were discussed on the record (January 24, 25, 26 and February 15). Thus, on the strength of the literal record, it remains somewhat speculative when the earliest date would have been that Mr. Edelson could complete a five day trial. I recognize that the application record before me disclosed considerable availability however, this specific data was not shared with the court.

[93] In the case of R. v. Jurkus, 2018 ONCA 189, the Ontario Court of Appeal was faced with a comparable situation. The co-accused's counsel appeared at a set-date on behalf of his own client as well as for counsel for Jurkus. The attending counsel erroneously advised the court that Jurkus' counsel was only available for a JPT on July 29, August 19 or August 22. The trial judge hearing the 11(b) application was advised and found that Jurkus' counsel was in fact available on May 13. The trial Judge therefore found Jurkus only to be responsible for delay after May 13. This finding regarding counsel's availability was challenged on appeal on the basis that the trial court was bound to make such findings from the record of what was actually said in front of the set-date court, not on the basis of what could or should have been said. At paragraphs 27 and 28 of its decision in Jurkus, the Court of Appeal held:

"[27] Although mistaken about dates and undoubtedly acting in good faith, the fact is that the earliest judicial pretrial date given was July 29 th , 2016…..

"[28] The court and Crown could only operate on the information provided…"

[94] This direction from our Court of Appeal renders it difficult, if not impossible, to strictly apply the "interspersed date analysis" advocated for by Mr. Paciocco. This however, does not end the matter.

[95] The most significant problem with the May 9 appearance occurred in its second instalment, when Mr. Paciocco appeared on behalf of the defence. Ms. Remigio had clearly indicated to the court during instalment number one that Mr. Edelson was available on January 24, 25, and 26. The only complication with these dates was that he was scheduled for the final day of another matter on January 23. Further, the defence had also indicated that they had availability starting January 15. Therefore, at least 4 available defence dates were in play when Ms. Remigio left the court.

[96] Mr. Paciocco concedes that ideally, he and Ms. Remigio should have communicated more effectively prior to his attendance so that he would have been aware of what had transpired in the court earlier on. However, in the absence of that communication Mr. Paciocco was vulnerable to being misled. And misled he was. While I presume the assistant Crown's comments were unintentional, she advised Mr. Paciocco at the commencement of instalment 2, that "we" (the Crown, defence and court) had canvassed dates in January, February and March and none of them were available. The Crown had thus completely misstated the nature of record up to that point and further, the court did nothing to correct this misstatement. Mr. Paciocco advised me during this application that when he made his attendance at the set-date he was in fact aware that Mr. Edelson's January 23 matter was likely to resolve. This knowledge would have made it very likely that the dates of January 24, 25 and 26 would have been seized upon by the defence had he been advised that they were available. Further, given what was learned during this application of Mr. Edelson's actual availability during January and February (3 complete weeks) as well as the frequency of collapse and/or resolution in this jurisdiction, as in any, I am of the view that if the January dates had been set, the chances of completing the trial before the end of February would have been significant. This of course also presumes that all stakeholders would have behaved in a manner consistent with post-Jordan expectations.

[97] The central point however, is that the defence was wrongfully deprived the right to have this conversation or to explore this area. Further, that deprivation was a direct result of the Crown's actions and the court's inaction. The culture shift envisioned by the Supreme Court in Jordan is expected to involve all stakeholders in the administration of justice. The court said at paragraph 116 of Jordan:

"Ultimately, all participants in the justice must work in concert to achieve speedier trials. After all, everyone stands to benefit from these efficiencies."

What happened in court on May 9 could hardly be described as a concerted effort by all players to set the most efficient dates. Quite the contrary.

[98] The Court in Jordan noted that the new framework was designed to "enhance accountability" on both sides, Crown and defence. (see Jordan para. 112.) The court also held that, "[t]he new framework makes courts more accountable too." (see Jordan para. 114). The clear expectation is that all stake-holders bear responsibilities and therefore are accountable for their failures under the new framework.

[99] Fairness dictates that both the Crown and Court must be held somewhat accountable for the manner in which the May 9 set unfolded. I conclude that the fairest way to deal with the delay resulting from this less than straight forward set-date, is to hold the defence responsible for four weeks of the delay. This attribution realistically reflects what actually happened and as well, avoids the unpalatable consequence of having the defence bear all responsibility for a proceeding where the acts or omissions of the Crown and Court were contributing factors in the result.

[4 weeks of defence delay]

[100] The Crown asserts there to be one further period of defence delay that has not as of yet been addressed in these reasons. The trial in this matter was ultimately rescheduled to take place on July 9, 10, 11, 12, and August 8. The Crown submits that if the trial Crown's preference to commence calling evidence while everyone was also dealing with the complexities of the section 278 application had been acceded to, then the August trial date would not have been required.

[101] With all due respect to Mr. Neubauer (the Crown that argued the 11(b) application), whom I complimented for the even-handed and professional manner in which he presented the Crown's position on this application, his submission on this point is somewhat misdirected. When Mr. Elhadad (the trial Crown) expressed his preference to use a day calling some evidence he was contemplating calling a police witness to provide some narrative evidence. I, at no time, seriously considered distracting counsel from the daunting task at hand – the perfection of the s.278 application – to entertain a day of narrative evidence. Nor for that matter was the court ever formally asked by the Crown to do so.

[102] When the five days in July and August were set for the trial, Mr. Elhadad confirmed before me that his intention at that time was to call only the three civilian witnesses at trial. Thus, the witness that he had earlier mused about calling, while issues relating to the s.278 application were actively being dealt with, no longer appeared on the Crown's notional witness list. Even if the court was willing to hear a witness on an earlier date, it could not have been one of the civilian witnesses that ultimately amounted to the entire prosecution case. As well, the defence had at all times been clear on its position that it could not cross-examine any of the civilian witnesses before the issue of production, post – 278 application, had been resolved. This was an reasonable position for the defence to take given the nature of the s.278 records. The defence also repeated more than once that upon being advised that the Crown required the immediate return of the text/email communications, they were effectively forced to freeze their preparation and lock down all copies of the impugned disclosure.

[103] Finally, given what I learned over the course of the pre-trial proceedings, the five days set for trial was a reasonable amount of time to hear the evidence of the Crown's civilian witnesses, some defence evidence and submissions from counsel. The five days that were scheduled in July and August would not have been sufficient to hear a day of narrative evidence in addition to the witnesses and submissions that were actually necessary.

[104] I therefore conclude that the defence is in no respect responsible for the fact that August 8 was set as the last day of trial in this matter and therefore, no delay attributable to the defence arises from these dates.

Conclusions on Defence Delay and Net Delay

• The defence waived eight weeks of delay over the course of the case.
• An additional five weeks of delay is attributable to the defence as a result of their unavailability.
• The total defence delay in this case is therefore 13 weeks or 91 days.
• The overall delay in the case (not including time for deliberation and drafting of decision) is 21.5 months or 657 days.
• When I deduct defence delay from overall delay I am left with a net delay of 18.6 months or 566 days.
• If I were to add three weeks of further delay to accommodate deliberation and preparation of a judgment, there would be a net delay of 19.2 months or 587 days.
• In light of this conclusion, the onus is on the Crown to justify the delay on the basis of exceptional circumstances failing which the case shall be stayed.
• The crown asserts that case complexity is the only operable exceptional circumstance in this case.

Exceptional Circumstances / Case Complexity

[105] The Supreme Court was abundantly clear on the importance of the Crown satisfying its onus at this stage of the analysis,

"…the presence of exceptional circumstances is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling." (emphasis added)

[106] It is important to a consideration of case complexity in relation to this matter to take a step back and remind oneself what in fact rendered this case complex, if it all. The Crown disclosed in excess of 1500 pages of text and email messages to the defence in December 2016. The Crown's office assigned at least three successive prosecutors to the case over its life span and in fact as many as four Crowns oversaw the case at one time or another. The Crown's office was well aware of the nature of the disclosure it had provided to the defence and in fact had engaged in multiple pretrial discussions with the defence concerning the specifics of the disclosed materials. For reasons that remain completely unexplained, the Crown's office did not turn its collective mind to the section 278 implications of the disclosed material until little more than two weeks before the trial was to commence – some 14 months after it had disclosed the material to the defence.

[107] Mr. Neubauer, who assumed carriage of the 11(b) submissions for the Crown, explicitly conceded that the Crown mismanaged the disclosure of the records in question. Further, he quite properly conceded that the timing of the need for a section 278 application was driven by the duration of time over which that mismanagement persisted. The Crown therefore accepted, in fact conceded, that the Crown cannot rely on "that" as a factor contributing to "particular complexity".

[108] My colleague, Justice Doody, applied this principle in his 11(b) application in the case of R. v. Albadry, 2018 O.J. No. 896. He wrote at paragraph 28,

"… Exceptional circumstances like complexity are those out of the Crown's control. The Crown cannot both create complexity and rely on it to justify an unreasonable delay. "

[109] It bears repeating, that complexity is not alone enough to satisfy the Crown's onus. "Particular" complexity is necessary. The court noted in Jordan that, "a typical murder trial would not usually be sufficiently complex to comprise an exceptional circumstance." (Jordan at para. 78)

[110] Putting aside the s. 278 application for the moment, the Crown's case against Z.N. is comprised of three civilian witnesses. The allegation is one of sexual assault. The issues anticipated to arise in the trial are the standard ones; consent; mistaken belief; credibility and reliability. The defence noted that it would likely bring a s.276 application but that they anticipated that this would only take a half-day to litigate.

[111] The only thing remotely complex about this case is the section 278 application. Further, the somewhat complex elements of the application are a direct consequence of the Crown's mismanagement and/or inadvertence regarding this disclosure.

[112] If the Crown had been alive to the section 278 implications of the material at the outset - as is their responsibility - and thus only disclosed the existence of the records instead of their entire contents, the defence would have unavoidably crafted a far more streamlined application than the one that was argued before me. Given the specific nature of this case, I had directed the defence and Crown to prepare submissions on the application which made specific reference to the materials already in their possession. Under normal circumstances, the defence would not have had 15,000 odd messages in their possession and at their disposal for greater than a year from which to discover relevant use. Under traditional circumstances, one would expect argument of the application to fill no more than two days of court-time. The application could have been argued well in advance of trial and notwithstanding the daunting task that the court would have in reviewing these records, the trial dates would not have been put in jeopardy.

[113] The loss of the original trial dates and the need to set new ones in July and August of this year was entirely a consequence of the Crown's lack of understanding of its own case and its failure to recognize the section 278 issue in a timely fashion. To Mr. Elhadad's credit, he had only been on the case for a matter of weeks at best when this issue was raised for the first time. Utterly no explanation has been provided the court as to why his three predecessors failed to recognize the issue. The explanation is likely no more complex than simply collective inattention.

[114] Exceptional circumstances are by definition circumstances that lie outside of the Crown's control. The Court in Jordan noted that exceptional circumstances are,

(1) reasonably unforeseen or reasonably unavoidable, and,

(2) the Crown cannot reasonably remedy the delays emanating from these circumstances once they arise.

(Jordan, para.69 and Jurkus, para.7)

[115] The very fact that the fourth Crown on the case discovered the section 278 problem within weeks of being assigned to the matter belies any argument that the issue was reasonably unforeseeable or unavoidable. In fact, reasonable conduct would have foreseen the issue a year or more earlier than actually occurred. And if the issue had been recognized in a timely manner the Crown may have been in a position to create a strategy to remedy the delays threatened by the event.

[116] Reflecting on the description of "exceptional circumstances" above, I conclude that the section 278 application and any complexity associated with it, cannot amount to an exceptional circumstance as contemplated in Jordan. The Supreme Court noted in Jordan at paragraph 79 the following,

"… The trial judge will also want to consider whether the Crown having initiated what could reasonably be expected to be a complex prosecution, developed and followed a concrete plan to minimize the delay occasioned by such complexity. Where it has failed to do so the Crown will not be able to show exceptional circumstances, because it will not be able to show that the circumstances were outside its control." (emphasis added)

[117] The entire disclosure/section 278 issue was an issue which should have been completely within the control of the Crown. Their loss of control was entirely a result of their inattention and mismanagement, not complexity as contemplated in Jordan.

[118] Each of the subheadings of "complexity" relied upon by the Crown in submissions are distinct aspects of the section 278 application. The "complex" issues identified by the Crown were,

(1) the legal issue of who should be served on the application

(2) the evidence to be called in support of the application (including one possible expert witness)

(3) the time required to prepare the application,

(4) the time required to argue the application.

[119] As referred to above, the Crown cannot create the complexity and then rely on it to excuse delay. If the Crown were permitted to rely on any of these "distinct complex issues" they would be doing just that. Further none of these issues, independently or cumulatively amount to "particular complexity" as envisioned in Jordan. I therefore conclude that the Crown has failed to rebut the presumption of unreasonableness.

Appropriate Ceiling for a Young Person

[120] Counsel for Z.N. submits that the court should set the 11(b) ceiling for young persons lower than that applicable to adults. Given my findings regarding net delay and the absence of exceptional circumstances, this analysis is not strictly necessary. The conclusions already drawn by me regarding delay require that the case against Z.N. be stayed even when measured against the 18 month ceiling. That said, even if I do not feel bound to engage in a lengthy analysis on the issue, I do feel that it is my responsibility to declare my position on this important topic now that it has been formally raised before me.

[121] The applicant relies extensively on Justice Paciocco's decision in R. v. J.M. 2017 ONCJ 4 in support of this argument. I have reviewed the reasons in J.M. and completely adopt them as have my colleagues Watson J. and O'Marra J. in R. v. P.S., 2018 ONCJ 142, and R. v. D.A., 2018 ONCJ 13 respectively.

[122] Counsel for the applicant has helpfully canvassed every case that was argued before the Supreme Court in Jordan and he notes in submissions that each and every one of these authorities dealt with an adult accused. He points out that nowhere in the majority reasons or in the dissent are young persons referred to at all.

[123] At paragraph 49 and foot - note 2 of the Jordan decision, the Court specifically indicated that the issue of delay arising from sentencing was not before them and thus, they were making no comment on what the ceiling on sentence might look like. The absence of any youth-related case law before the Court and there having been no comment made by the court addressing youth ceilings arguably invites a conclusion that the reasons in Jordan should be regarded as no more applicable to young persons than they are to delays arising from sentencing.

[124] When considered through the prism of prejudice however, I believe that compelling reasons exist to conclude that the ceilings articulated in Jordan simply cannot apply to young persons.

[125] The Court was clear in Jordan that prejudice is no longer an analytical tool in section 11(b) litigation. The Court was also clear however, that an appreciation of the prejudice caused by trial delay did underpin the entire new framework. As the Court said, "prejudice is accounted for in the creation of the ceiling". (Jordan at para. 109)

[126] Pre-Jordan, both the Ontario Court of Appeal and the Supreme Court recognized that the trials of young persons should proceed more quickly than those of adults. Both courts also recognized that this need for dispatch was directly related to the elevated degree of prejudice young persons experience over the passage of time.

[127] In R. v. M.G.G. (M.G.C.), Osborne J. of the Ontario Court of Appeal explained at paragraph 23,

"As a general proposition, youth proceedings should proceed to a conclusion more quickly than those in the adult criminal justice system. Delay, which may be reasonable in the adult criminal justice may not be reasonable in the court."

The Court went on to hold the following at paragraph 24,

"… The basis of the need to try young persons with reasonable dispatch is best analysed and understood if it is viewed as part of the consideration of prejudice, one of the four factors referred to in Ascov."

[128] The need for dispatch in the conduct of youth trials was repeated by the Ontario Court of Appeal in R. v. L.B., 2014 O.J. No. 5128 at para 14. The Supreme Court of Canada as well, in R. v. J.(M.A.), endorsed society's interest in proceeding expeditiously against young person.

[129] There is ample authority to support the assertion that young persons experience prejudice more quickly than adults. In J.M., Justice Paciocco summed up this reality as follows,

"If section 11(b) is to achieve its purpose, constitutional standards for delay have to respond to the prejudice at stake, as the pre- Jordan case law has recognized, with good reason, that children generally experience accelerated and heightened prejudicial impact from delay." (J.M. at para 128)

Justice Paciocco then went on to say,

"Given the analytical components of the Jordan framework, lowering the presumptive ceiling for youth cases is the only response that can integrate the principle that youth cases should generally proceed more swiftly than adult cases into the current legal test." (J.M. at para 129)

[130] The ceiling for young persons must of necessity be lowered. To find otherwise implicitly amounts to a finding that the Supreme Court's reasons in Jordan, notwithstanding the fact that the applicability of section 11(b) to young persons was not before the Court, must be understood as in fact diluting or diminishing the Charter protected s.11(b) rights of young persons. I cannot fathom how the Supreme Court's silence on the topic can be interpreted as reducing the Charter rights of an entire group of people. However, to hold that the 18 month ceiling applies to young persons unavoidably leads to this result.

[131] Justice Paciocco summed up the conclusion that I as well have come to on the facts before me,

"Different presumptive ceilings, within the same legal test established in R. v. Jordan, .. are therefore required to ensure that both groups experience the same constitutional guarantees. "

(J.M. at para 134.)

[132] In J.M., Justice Paciocco envisioned 12 months as the appropriate 11(b) ceiling for youths. However, ultimately judicial restraint and caution convinced him to set the ceiling at 15 months for young persons so as to ensure the continued effective prosecution of this group while at the same time recognizing their s.11(b) rights.

[133] Today, on the record before me, I am as well adopting a 15 month ceiling for young persons. I agree that this ceiling should in all likelihood be lowered to twelve months in the not too distant future. The SCC in Jordan after all, recognized that the ceilings should ideally be adapted or altered as circumstances improve.

[134] The delay in Z.N.'s case is at 18.6 months without taking into consideration time necessary for the court to deliberate and to draft reasons. Needless to say, the delay that has occurred in his case far exceeds a 15 month ceiling.

[135] Given that the Crown has failed to rebut the presumption of unreasonable delay, a presumption that is activated regardless of what ceiling is applied to the analysis, the charges against Z.N. are stayed.

[136] Before I conclude these reasons I would like to comment on the topic of deliberation time and the time needed by courts to draft decisions.

[137] I interpret the recent reasons of the Ontario Court of Appeal in Jurkus (at paragraphs 69 and 71) as an implicit recognition of the fact that the issue remains unresolved. It has been decided on more than one occasion that this type of delay should not be included in the 11(b) analysis. The Crown apparently made this very submission before the Court of Appeal in Jurkus. I am of the opinion that this position makes a lot of sense. Given the nature of the findings I have already made in this case however, and that deliberation time was thus irrelevant to the overall analysis, and as well, that counsel did not argue this particular point before me, I will not delve into the issue any further at this time.

Released: July 20, 2018

Signed: Justice Matthew C. Webber