Court Information

Ontario Court of Justice

Date: 2018-10-26

Court File No.: Toronto, College Park 16-75003228

Parties

Between:

Her Majesty the Queen Respondent

— And —

Andrew Greig Applicant

Before the Court

Justice: J.W. Bovard

Heard: September 12, 2018

Reasons for Ruling: Application pursuant to s. 11(b) of the Charter

Released: October 26, 2018

Counsel

Ms. S. Duffey — Counsel for the Crown

Mr. P. B. Norton — Counsel for the Defendant Andrew Greig

Endorsement

Introduction

[1] The accused, Mr. Andrew Greig, brings an application for a stay of proceedings due to a breach of his right under s. 11(b) of the Charter to a trial within a reasonable time. These are the court's reasons for its disposition of Mr. Greig's application.

[2] On July 18, 2016, the police charged Mr. Andrew Greig with typical impaired driving and 'Over 80' charges. According to the defence, 27 months and 20 days is the gross delay between the laying of the Information and the projected conclusion of Mr. Greig's trial on November 6, 2018. According to the Crown the gross delay is 27 months and 19 days. My calculation comes out to 27 months and 20 days.

[3] Mr. Greig has the onus to prove on a balance of probabilities that the Crown breached his right to be tried within a reasonable time.

Disposition

[4] For the reasons stated below, I grant the application. The charges are stayed.

The Chronology of Events

[5] The following is the chronology of events. With regard to all adjournments, unless the Crown objected to the adjournment, I considered them to be on consent.

• July 18, 2016 – the police swear the Information.

… 42 days delay

• August 29, 2016, first court appearance – Mr. Caolan Moore appears as defence counsel. The case is adjourned on consent to October 4, 2016 to review disclosure and have a Crown pre-trial.

… 14 days delay

• October 4, 2016, second court appearance – defence counsel has reviewed initial disclosure with his client. On consent, adjourned to October 18, 2016 for defence counsel to consult with client further and to schedule a judicial pre-trial (JPT).

… 14 days delay

• October 18, 2016, third court appearance – defence counsel requests adjournment to consult with client. On consent, adjourned to November 8, 2016. Crown available earlier than November 8, 2016. Defence counsel cancelled JPT on October 17, 2016 in order to get instructions from client. Defence counsel starting a 3-week homicide preliminary hearing in six days.

… 21 days delay

• November 8, 2016, fourth court appearance – defence counsel has lost contact with client. Adjourned on consent to December 6, 2016 so he can either contact client or get off of the record.

… 28 days delay

• December 6, 2016, fifth court appearance – defence counsel asks for adjournment to bring application to get off of the record. The case is adjourned on consent to January 5, 2017 for that purpose.

… 30 days delay

• January 5, 2017, sixth court appearance – defence counsel does not bring application to be removed from the record because he resolved the issue between him and his client. However, he needs time to "re-group" and meet with his client. In addition, defence counsel wants to schedule a Crown pre-trial. The case is adjourned on consent to January 24, 2017 for these reasons.

… 19 days delay

• January 24, 2017, seventh court appearance – defence counsel is waiting for further disclosure that he requested "a few weeks ago" when he resolved the issue with his client. He has to get the additional disclosure and discuss it with his client. The case is adjourned on consent to February 14, 2017 for this purpose.

… 21 days delay

• February 14, 2017, eighth court appearance – adjourned on consent to February 17, 2017. No reason given.

… 3 days delay

• February 17, 2017, ninth court appearance – defence counsel advises that he is leaving the defence bar to go to the Crown's office. He asks to be removed from the record. He gave the disclosure to the accused. Mr. Greig requires time to get another lawyer. The case is adjourned on consent to March 7, 2017.

… 18 days delay

• March 7, 2017, tenth court appearance – Mr. Greig appears without a lawyer. He has made efforts to get a new one, but has not been able to yet. He cannot afford the ones to whom he spoke. He tells the court that he will most likely plead guilty but he wants to speak to a lawyer about it first.

Mr. Greig agrees to make an appointment to speak to duty counsel. He makes an appointment for March 14, 2017. The court adjourns the case to that day.

… 7 days delay

• March 14, 2017, eleventh court appearance – Mr. Greig says that he spoke to duty counsel. He wants to retain a lawyer. He says that he needs two to three weeks to do that. Duty counsel suggests three weeks. The court adjourns the matter on consent to April 4, 2017.

… 21 days delay

• April 4, 2017, twelfth court appearance – Mr. Greig has retained new counsel, Mr. Victor Giourgas. Ms. Sansanwal, student-at-law, appears as counsel's agent. The Crown states that disclosure is complete except for the notice of expert. Ms. Kozak is the assigned Crown.

The case is adjourned on consent to May 9, 2017 at the defence's request in order to book a Crown pre-trial.

… 35 days delay

• May 9, 2017, thirteenth court appearance – Ms. Sansanwal appears as agent for Mr. Giourgas. She tells the court that a Crown pre-trial was held the day before. She asks for an adjournment to June 6, 2017 to get instructions from the accused, "and possibly a further Crown pre-trial, if that's the case". The court adjourned the case on consent to June 6, 2017.

… 28 days delay

• June 6, 2017, fourteenth court appearance – Ms. Sansanwal appears as agent for Mr. Giourgas. The Crown tells the court that it will be a six-hour trial. The court offers March 13, 2018. The Crown agrees. Ms. Sansanwal says that defence counsel has "available dates in 2017, as of January" [1] but he is starting a four-month long jury trial. Therefore, she asks for in May.

I do not know if this is a transcription error or a misstatement by Ms. Sansanwal. It is clear that "dates in 2017, as of January" would not be helpful since that time had long passed.

The parties returned to the trial coordinator to ask for an earlier date. None could be found. The Crown is concerned with the delay but in the circumstances agrees reluctantly to a trial date of May 15, 2018.

… 343 days delay

• May 15, 2018, fifteenth court appearance – this was the trial date. New defence counsel, Mr. P. Norton, and new Crown, Ms. S. Duffey appear. Mr. Giourgas was no longer defence counsel because he was appointed to the bench.

The Crown's witnesses were present. The Crown was prepared to proceed to trial. The defence was not prepared to proceed with the trial. Mr. Greig was not present.

The court noted that according to ICON the case was supposed to return in 111 court at Old City Hall court house on August 15, 2018. However, May 15, 2018 is marked on the Information as a court date for College Park.

The parties related the following to the court. After Mr. Norton took over the case he served and filed a Charter application on April 13, 2018. The Crown served and filed a response on April 24, 2018.

When the trial coordinator received the application and the response she called Mr. Norton. She told him that according to ICON the case was not to appear on May 15, 2018. Instead, it was going to 111 court at Old City Hall on August 18, 2018.

The trial coordinator called Mr. Norton and sent an email to Ms. S. Duffey to tell them that the case was on the docket for 111 court at Old City Hall for August 18, 2018.

The Crown produced the ICON printout, which shows that on August 17, 2017, count one on the Information was deleted from the May 15, 2018 docket. Then it was added to the August 15, 2018 docket in 111 court at Old City Hall.

The ICON printout shows that on the same day, August 17, 2017, count two of the Information was deleted from the May 15, 2018 docket and added to the docket in 111 court at Old City Hall for August 15, 2017. Oddly, this would be two days before it was marked as having been deleted.

Ms. S. Duffey did not contact the trial coordinator about the issue. Nor did she contact Mr. Norton. She assumed that the Information would be in court on May 15, 2018 for trial. She did not consider that it might not be.

Mr. Norton did not contact the Crown about the matter. The transcript of the proceedings on May 15, 2018, page 9, lines 26-30 states that Mr. Norton told the court that the trial coordinator called him on May 2, 2018, solely with regard to his "Form 1", nothing else.

On page 10 of the transcript, lines 5-10, he states that "On Friday, May 24th, two days later", she called to tell him that the case was not marked for trial. It was next on the docket in 111 court at Old City Hall to be spoken to in August.

This must be a transcription error because by May 24, 2018, the case had already been set down for trial for November 5, 6, 2018. I find that rather than "May 24" the correct date is May 4. This coincides with paragraph 35 of Mr. Norton's factum.

In any case, Mr. Norton says in this transcript (May 15, 2018), that he called the court clerks' office at Old City Hall on May 2, 2018. They told him that the Information was at Old City Hall. In paragraph 35 of his factum for this application, Mr. Norton states that the transcript is wrong. He contacted the court clerks' office at Old City Hall on May 7, 2018.

He further states in the May 15, 2018 transcript, that he ordered a copy of the Information from Old City Hall on May 9, 2018. Additionally, he ordered transcripts of the court appearances of June 6, 2017 (the day that the court set the trial date) and August 17, 2017 (the date that the case was supposedly transferred to Old City Hall). He did this to try to understand how the case was transferred to Old City Hall.

There is no transcript for August 17, 2017 because the case did not appear in court. It appears, then, that the deletion indicated on ICON was done out of court by an unknown person.

At this point (May 2, 2018), Mr. Norton stopped preparing for trial and advised his client of the situation. However, he stated on the transcript of the trial date, May 15, 2018, page 12, lines 1-6, that he was advised a week before the trial date that the matter was not going ahead.

This date is somewhat at odds with his statement to the court on the trial date, May 15, 2018, where he said "So, Your Honour can obviously see from the Form 1 that I filed [on April 13, 2018], that I was of the belief, at least at that particular point, that the trial was ongoing, and advised really a week before that it wasn't". A week before the trial would have been May 8, 2018.

Therefore, it appears that Mr. Norton stopped preparing for trial approximately six days before he was advised that the trial was not going ahead.

After the court clerks' office at Old City Hall told him on May 2, 2018 that the Information was at Old City Hall, Mr. Norton took the following steps:

On May 9, 2018:

• (a) ordered a copy of the Information from Old City Hall to try and determine what had happened. His letter requested the copy as soon as possible;

On May 11, 2018:

• (a) ordered a transcript of June 6, 2017, the date that the court set the case down for trial at College Park, and
• (b) ordered a transcript of August 17, 2017, the date that ICON shows that count one on the Information was deleted from the May 15, 2018 docket and added to the August 15, 2018 docket in 111 court at Old City Hall. As indicated above, ICON shows that on the same day, August 17, 2017, count two of the Information was deleted from the May 15, 2018 docket and, oddly, added it the docket in 111 court at Old City Hall for August 15, 2017, two days before it was deleted.

On the morning of the trial at College Park the case was not on the trial docket. Mr. Norton spoke to the clerks' office at College Park and to the Crown. The clerks' office told him that the Information was at Old City Hall.

Ms. Duffey pointed out that the trial date was not vacated on the Information.

On May 15, 2018, the court held a judicial pre-trial and then adjourned the matter for trial to November 5, 6, 2018.

… 175 days delay

Legal Framework

[6] R. v. Jordan, 2016 SCC 27, governs applications under s. 11(b) of the Charter.

[7] In provincial court, delay beyond 18 months is presumptively unreasonable.

[8] In paragraphs 47, 48, the court specified that:

If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.

If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. We expect stays beneath the ceiling to be rare, and limited to clear cases.

[9] The court stated that "compelling case-specific factors remain relevant to assessing the reasonableness of a period of delay both above and below the ceiling" (para. 51).

[10] Once the presumptive ceiling is reached an irrebuttable presumption arises that the accused "suffered prejudice to their Charter-protected liberty, security of the person, and fair trial interests" (para 54).

[11] Delay that is caused by the defence "is to be discounted" from the total delay (para. 49).

[12] Defence delay has two components: (1) Waiver, (2) delay caused solely by the conduct of the defence.

[13] Waiver is not an issue in the case at bar. Therefore, I will discuss delay caused solely by the defence.

[14] Examples of prohibited defence delay are actions that can be characterized as:

"those situations where the accused's acts either directly caused the delay ... or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial"

"Deliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests"

"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."

(paras. 63-64)

[15] But "defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay" (para.65).

[16] In R. v. Coulter, 2016 ONCA 704, paras. 34-41, the court summarized the new approach to s. 11(b) cases as follows:

1. Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).

2. Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, at para. 66).

3. Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).

4. If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

5. Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached (Jordan, at para. 75).

6. If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).

7. If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).

8. The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the "Transitional Cases") (Jordan, para. 96).

Defence Delay in the Case at Bar

[17] I will now deal with the issue of delay caused by the defence in the case at bar.

[18] Counsel very helpfully provided guidance to the court by explaining clearly that there are two distinct periods of time that are in issue with regard to defence delay in this case. The Crown and the defence set the first period slightly differently. They agree on the second period.

[19] The two periods are the following:

1. October 18, 2016 to February 14, 2017 – defence October 2016 to January 2017 – Crown (factum, para. 3)

2. May 15, 2018 to November 6, 2018

The First Period of Delay in Issue: October 18, 2016 to February 14, 2017

[20] During this time then defence counsel, Mr. Moore, had initial disclosure. However, he had a difficult time either contacting the accused, or with some other issues with the accused that he did not clarify. As a result, he asked for adjournments to consult with the accused. The inability to consult with the accused resulted in Mr. Moore cancelling a judicial pre-trial on October 17, 2016.

[21] By November 8, 2018, Mr. Moore informed the court that he had lost contact with the accused. After this, the case was adjourned twice so that he could either contact the accused or get off of the record.

[22] On January 5, 2017, Mr. Moore told the court that he had reconnected with the accused and resolved the issue that they had. But he requested an adjournment in order to "re-group", meet with the accused, and schedule a Crown pre-trial.

[23] On January 24, 2017, Mr. Moore asked for an adjournment to obtain disclosure that he asked for "a few weeks ago" and to discuss it with his client. He did not specify what the disclosure was, nor the date that he requested it. He told the court that he "put a request in for further disclosure when this thing got picked up, back up, a few weeks ago, and got back on track".

[24] Mr. Norton did not specify what this disclosure was, nor the exact date on which it was requested. He submitted a letter (exhibit 1) that lists several items of disclosure that Mr. Moore requested. However, it is dated January 18, 2017, which is less than "a few weeks ago" from January 24, 2017. Rather, it is six days ago. Mr. Moore states in the letter that the next court date is January 24, 2017. The record is not clear if the items in his letter are what he was referring to as the outstanding disclosure, but it is a reasonable inference that it was.

[25] The disclosure was officers' notes and the in-car-camera video. Tab 4 of the defence application record contains "Disclosure Package Pick-Up Notification" forms that the Crown issues to defence counsel to alert them that disclosure is ready to be picked up. The relevant forms are dated February 2, 3, 2017. There is no indication when these items were picked up.

[26] It appears from the record, however, that even if the defence would have had this disclosure, it would not have helped to advance the case faster because of the problems between Mr. Moore and the accused in communicating with each other and the loss of contact that motivated Mr. Moore to advise the court that he was going to get off of the record. Moreover, Mr. Moore stated clearly that he did not put in his request for disclosure until he had re-established contact and good relations with his client.

[27] Nevertheless, Mr. Norton argued that the Crown fell down in its disclosure obligation. But the Crown had already given the defence some initial disclosure. There is no evidence regarding what the initial disclosure was, but the record shows that Mr. Moore had reviewed it with the accused by October 4, 2016.

[28] In any event, R. v. Richards, 2010 ONSC 6202, para. 22, states that:

It must also be remembered that the Ontario Court of Appeal has repeatedly stated that the Crown's obligation to provide full and complete disclosure by the time of trial does not justify the defence in refusing to take preliminary steps, such as attending pre-trials and setting dates for trial or for preliminary inquiry, until "every last bit of evidence" has been disclosed. The Stinchcombe obligation is to complete "initial disclosure", prior to election, and to then provide "continuing" disclosure "when additional information is received" during the period leading up to trial. [2]

[29] Furthermore, after October 4, 2016, there was a lot of uncertainty concerning whether Mr. Moore was going to continue representing the accused. Mr. Moore informed the court in this regard. He cancelled a judicial pre-trial. Mr. Moore appeared in court during this time by way of designation. Therefore, the accused did not appear in court with him during this time period.

[30] In this situation, to whom would the Crown have given the additional disclosure? The accused was not in court. Mr. Moore said that he had lost contact with him. Mr. Moore was on the verge of getting off of the record. In these circumstances, I find that the missing additional disclosure did not cause any delay. Rather, it was the difficulties that Mr. Moore was having with his client that caused the delay.

[31] It appears to me that this state of affairs was brought about by the accused. It is clear that Mr. Moore wanted to contact him so it is not a case of Mr. Moore being lackadaisical in his efforts to communicate with his client. I find that Mr. Moore did everything that he could to advance the case. Mr. Moore did not lay out the whole panorama of problems between him and the accused. However, this could very possibly be due to solicitor-client privilege. However, the record shows that since the accused was not communicating with Mr. Moore, he could not go ahead without him. Thus, delay was caused.

Characterization of the First Period of Delay: October 18, 2016 to February 14, 2017

[32] Based on all of the above, I find that the delay between October 18, 2016 and February 14, 2017 was not caused by Mr. Moore, but that it was caused by the accused himself. [3] This is a period of 3 months, 27 days (118.25 days: Google).

[33] When this period is subtracted from the total delay of 27 months, 20 days (841.25 days: Google) the remainder is 723 days, or 23.76 months (Google).

Exceptional Circumstances

[34] The parties agree that the time between February 18, 2017 and April 3, 2017 (one month, 16 days – 46 days total) should be subtracted from the total delay as an exceptional circumstance. This is the period after Mr. Moore left the defence bar to be an assistant Crown attorney and the accused was looking for a new lawyer.

[35] When this is subtracted from 723 days, the remainder is 677 days, which is 22.25 months.

The Second Period of Delay in Issue: May 15, 2018 to November 6, 2018

[36] This is the period between when the court adjourned the case on the first trial date, May 15, 2018, to the projected end of the second trial date, November 6, 2018. The adjournment was due to the mix up described above with regard to the court in which the case was schedule to appear.

[37] The issue with regard to this time period is whether the delay was caused solely by the defence.

[38] It is helpful to reiterate here what Jordan said in paragraph 63 about defence delay:

The second component of defence delay is delay caused solely by the conduct of the defence. This kind of defence delay comprises "those situations where the accused's acts either directly caused the delay ... or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial". (emphasis added)

[39] Ms. Duffey argued that this period of delay was solely caused by the defence. In her factum she enumerated the following factors in this regard:

1. Mr. Norton did not contact the Crown regarding the apparent vacating of the trial date. This is true, but as I find below, as much as Mr. Norton should have contacted Ms. Duffey, I think that given the circumstances, Ms. Duffey should have contacted Mr. Norton rather than assuming that everything was going to work out fine. In these circumstances I do not think that it is appropriate to just blame Mr. Norton for the lack of contact between them.

2. Mr. Norton did not contact the trial coordinator to inquire if the trial date had in fact been vacated. I cannot find fault in this because it was a reasonable inference that it had been vacated because the trial coordinators told him that according to ICON the case was not on the docket for May 15, 2018. Instead, it was going to 111 court at Old City Hall on August 18, 2018.

3. Mr. Norton did not tell the Old City Hall court clerks' office in his written request for a copy of the Information that he needed it before the trial date or that it was urgent. Mr. Norton did not say that his request was urgent, but he said that he would like the copy as soon as possible. Perhaps, the ideal thing to have done would have been to explain the whole situation to them, but I find that what Mr. Norton did was reasonable.

4. On May 11, 2018, Mr. Norton ordered the transcripts of June 6, 2017, the date that the court set the case down for trial for May 15, 2018, and August 17, 2017, the date on which ICON shows that count one on the Information was deleted from the May 15, 2018 trial docket and added to the August 15, 2018 docket in 111 court at Old City Hall. But he did not provide evidence that he requested them in advance of the May 15, 2018 trial date in order to ascertain if the trial date had been vacated. In addition, the audio recordings could have been provided within one day, but he did not order them.

The Crown is correct. But with regard to the transcript of June 6, 2017, I am not sure that it would have added much to solving the mystery of what happened to the case because it was just the date on which the case was set down for trial. Everyone knew that the case had been set down for trial for May 15, 2018. Therefore, having the transcript would not have added anything to the effort to understand if the trial date had been vacated. Therefore, obtaining the transcript, or the audio recording would not have made much difference.

With regard to the transcript of August 17, 2017, I agree that it would have been helpful to have the transcript or the audio recording before the trial date to see if that helped to understand the situation better.

5. Mr. Norton did not consult with his client or with previous counsel to ask if the trial date had been vacated. It is true that Mr. Norton did not consult with previous counsel to ask if they had vacated the trial date. But previous counsel, Mr. Moore, got off of the record on February 17, 2017 because he was going to the Crown's office. Therefore, it is highly unlikely that he would have had anything to do with vacating a trial date that had not yet been set. Consequently, consulting him would have been fruitless.

With regard to consulting with previous counsel, Mr. Giourgas, the last time he appeared (by agent, Ms. Sansanwal) before being appointed to the bench was on June 6, 2017 when the trial date was set. One can reasonably infer that once Mr. Giourgas knew that he had been appointed to the bench he arranged for Mr. Norton to take over the case. Surely, had he previously vacated the trial date, he would have told that to Mr. Norton. Moreover, it is clear that he would not have vacated the trial date after he had turned over the case to Mr. Norton because he was now a judge and would have never done such thing. Therefore, I do not find that any further consultation with him would have yielded any helpful information.

Therefore, although Ms. Duffey makes a good argument that courts do not vacate trail dates without the input of the accused and or the accused's counsel, it does not appear likely that in the case at bar either previous counsel would have been involved in vacating the trial date. Finally, Mr. Norton said that he advised his client as to the situation, so he did consult with him.

6. Ms. Duffey pointed out that once Mr. Norton ascertained from the clerk at Old City Hall that they had the Information he did not ask the clerk when the next court date was. I do not see this as a significant failing on Mr. Norton's part. Perhaps it would have been helpful to know, but the crucial bit of knowledge was that the Information was then at Old City Hall. Therefore, it was reasonable to infer that whatever the next court date was, it was going to be at Old City Hall.

7. Lastly, Ms. Duffey argued that even if the Information had been at Old City Hall on the trial date, it could have easily been brought to College Park for the trial. I agree that Informations travel regularly between the two courthouses. But the important thing in this case was not so much where the Information was, but whether the trial date had been vacated. So the fact that the Information could have easily been sent to College Park does not matter much.

[40] Ms. Duffey argues that Mr. Norton's actions demonstrate "marked inefficiency" and "marked indifference toward delay". Therefore, the delay between the first trial date (May 15, 2018) and the second trial date (November 5, 6, 2018) lies at the feet of the defence.

[41] In this regard, I am mindful of the court's instruction in Cody (supra FN 2), para. 31 that:

The determination of whether defence conduct is legitimate is "by no means an exact science" and is something that "first instance judges are uniquely positioned to gauge" (Jordan, at para. 65). It is highly discretionary … While trial judges should take care to not second-guess steps taken by defence for the purposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate to do so.

[42] Cody states in para. 32 that "Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay."

[43] Mr. Norton described the somewhat convoluted path that he took after the College Park trial coordinators advised him on May 4, 2018 that the case had been transferred to Old City Hall for an appearance in 111 court on August 15, 2018.

[44] I find that it was reasonable for Mr. Norton to infer from what the trial coordinators told him that there may be a problem with the case proceeding to trial in College Park on May 15, 2018. Furthermore, I find that he took this path in good faith. He was not trying to deliberately delay the trial.

[45] However, the simplest thing to have done was to call Ms. Duffey, the Crown that had carriage of the trial, to discuss the problem with her. Had he done that, she would have told him that the trial indeed was scheduled to go ahead as planned.

[46] Nevertheless, I find that in the circumstances of this case, the delay was not caused solely by the defence. The evidence shows that there was an inexplicable error made on ICON that caused the trial coordinators' office to tell Mr. Norton that the case had been transferred to Old City Hall. This is a mystery that no one has been able to resolve.

[47] I agree with the Crown that an entry on ICON cannot in and of itself vacate a trial date. Only a judicial officer can do that. However, in the case at bar it was reasonable to infer from the entry on ICON that the entry was put there pursuant to a judicial order. Usually, administration staff do not input information on ICON vacating trial dates out of the blue. They do so pursuant to judicial orders. I find that what happened in the case at bar was an atypical incident.

[48] It is important to note that the evidence shows that the trial coordinators also contacted Ms. Duffey to tell her the same thing that they told Mr. Norton. But Ms. Duffey did not contact Mr. Norton to discuss the matter. This would have been a prudent and reasonable thing to have done. Having said that, I find that Ms. Duffey acted in complete honesty in not contacting Mr. Norton. There was no mischievous intent in her omission.

[49] But I find that it was unfortunate that after the trial coordinators told her that the case had been transferred to Old City Hall, she did not contact the trial coordinators, or Mr. Norton to discuss the apparent anomaly. Instead, she concluded that there was no problem. This led her to assume that the case would be in court for trial in College Park on the trial date, May 15, 2018. I find that had she contacted Mr. Norton she would have been able to clarify that the case was indeed proceeding as scheduled and Mr. Norton would have prepared for trial.

[50] There is no evidence or other information as to why Ms. Duffey made this assumption in light of what the trial coordinators had told her. Perhaps it was because according to the Information the trial was still scheduled to proceed in College Park on May 15, 2018. Nevertheless, there was sufficient evidence to make such an assumption fraught with the potential of things going awry.

Disposition with Regard to the Second Period of Delay in Issue: May 15, 2018 to November 6, 2018

[51] The upshot of all of this is that in addition to the defence's otiose efforts to deal with the situation, there were other substantial causes for the delay between the first and the second trial date. Therefore, the delay was not solely the fault of the defence. Consequently, this period will not be subtracted from the total delay.

Disposition with Regard to the Application

[52] Based on all of the above, I find that the total delay is 27 months and 20 days. After subtracting defence delay of 3 months and 27 days, and the delay due to exceptional circumstances, 1 month and 16 days, the remaining delay is 22.25 months.

[53] This is 4.25 months above the presumptive ceiling of 18 months. The case was not particularly complex such that the time the case took is justified thereby rendering the delay reasonable. Therefore, I grant the defence application. The charges are stayed. The trial dates of November 5, 6, 2018 in 504 court, College Park, are vacated.

Released: October 26, 2018

Signed: Justice J.W. Bovard

Footnotes

[1] Transcript, June 6, 2017, page 3, line 28

[2] See: R. v. Kovacs-Tatar, 192 C.C.C. (3d) 91 (Ont. C.A.) at para. 47; R. v. M. (N.N.), 209 C.C.C. (3d) 436 (Ont. C.A.) at para. 37; R. v. Schertzer, supra at paras 93 and 131; R. v. Stinchcombe, 68 C.C.C. (3d) 1 (S.C.C.), at pp. 13-14.

[3] In R. v. Cody, 2017 SCC 31, para. 30, the court stated that deductible delay is "that which: (1) is solely or directly caused by the accused person;"