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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(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 victim of the right to make an application for the order; and

(b) on application made by the victim, 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.

ONTARIO COURT OF JUSTICE

CITATION: R. v. S.S., 2019 ONCJ 144

DATE: 2019 03 19

COURT FILE No.: Ottawa 17-0055

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

S.S.

Before Justice Norman D. Boxall

Heard on March 1 and 5, 2019

Released on March 19, 2019

Mr. Brian Holowka and Mr. Dallas Mack................... Counsel for the Provincial Crown

Ms. Genevieve McInnes and Mr. Tony Paciocco................... Counsel for the Accused

BOXALL, J:

[1] S.S. is charged that between February 15, 2017 and May 10, 2017 he criminally harassed B.R.

[2] He is further charged that he did sexually assault B.R. on April 27, 2017 and also on April 29, 2017.

[3] The information was sworn on May 20, 2017. The trial is scheduled to commence on March 25, 2019 and complete on April 12, 2019. The total delay is characterized by the defence as twenty-two months, three weeks and five days whereas the Crown characterizes the delay in days as 693 days. The total delay exceeds the Jordan presumptive ceiling of eighteen months. This is a first scheduled trial date. Not surprisingly an application has been brought by S.S. alleging a violation of his section 11(b) rights to a trial within a reasonable time seeking a stay of proceedings. This motion was filed on December 6, 2018 and was listed in the Certificate of Readiness Court on December 14 before the Local Administrative Justice to fix a date for the application to be heard. Obtaining a date for the hearing to be heard created some logistical difficulty and it was adjourned to December 21 to find a date. On December 21 a hearing date was set for February 8 before the scheduled trial judge. The Crown required additional time to file materials and a date for the hearing was set on February 22, 2019 before another Justice of this Court. Given the anticipated time the application was now anticipated to take, that Justice is not in a position to hear and rule on the application prior to the trial date. Similarly the trial judge was not in a position to hear a motion that would require 1 ½ to 2 days and rule on it prior to the commencement of trial. In the circumstances that the trial judge was not available to hear the motion prior to the trial, both the Crown and defence consented to the application being heard before myself. I heard the first day of the motion on March 1 and it continued on March 5, 2019.

OVERVIEW

[4] I accept the following principles as set out in the Crown factum:

46. Jordan provides presumptive time periods within which an accused must be brought to trial – in the present case, the relevant time period is 18 months. In cases where the total delay, less delays either waived or exclusively caused by the defence, exceeds the presumptive ceiling, the onus shifts to the Crown to demonstrate that the delay was nevertheless reasonable. Where the delay falls below the ceiling, the defence must demonstrate that the period of time to the end of trial was nevertheless unreasonable. Stays of proceedings for delays that fall below the ceilings will be rare and limited to clear cases.

R v Jordan, 2016 SCC 27 at paras 5, 46-48, 49, 60

The following analytical steps are to be taken in applying the framework:

a. Calculate the total delay, which is the period from the laying of the charge to the actual or anticipated end of trial;

b. Subtract defence delay, including delay that is waived, from the total delay, which results in the “Net Delay”;

c. Compare the Net Delay to the presumptive ceiling;

d. If the Net Delay exceeds the presumptive ceiling, the Crown must establish the presence of exceptional circumstances, otherwise a stay will follow. Exceptional circumstances fall under two categories: discrete events and complex cases;

e. Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”);

f. If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was complex such that the time the case has taken is justified and the delay is reasonable;

g. If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable;

R v Coulter, 2016 ONCA 704 at paras 34-41

2.0 Total Delay

2.1 Principles

48. The relevant time period runs from “the charge to the actual or anticipated end of trial”. This period encompasses the date of the laying of the charge to the actual or anticipated date of the verdict, through which period the accused is “a person charged with an offence” pursuant to section 11(b) of the Charter.

R v Coulter, 2016 ONCA 704 at para 62

R v Gandhi, 2016 ONSC 5612 at para 4

ANALYSIS

The overall period of delay from the date the information was sworn (20 May 2017) until the completion of trial (12 Apr 2019) is approximately 23 months (693 days).

[5] The total delay being approximately twenty-three months then I must proceed to consider what amount if any, of defence delay there is that should be subtracted.

[6] I accept the following principles as set out in the Crown Factum:

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.” Examples of defence-caused delay include frivolous applications and requests, and periods during which the court and Crown are ready to proceed but the defence is not. However, these examples do not amount to an exhaustive list and it “…will of course be open to the trial judges to find that other defence actions or conduct have caused delay.” Such determinations are “highly discretionary” and “appellate courts must show a high level of deference thereto”.

R v Jordan, 2016 SCC 27 at paras 60-66

R v Williamson, 2016 SCC 28 at paras 21-22

R v Cody, 2017 SCC 31 at paras 28-31

“Defence-caused delay” under the new framework does not include “actions legitimately taken” to respond to the charges, such as time for preparation and non-frivolous applications or requests. Determining whether some step taken by the defence is legitimate requires considerations of both substance and procedure. “The decision to take a step, as well as the manner in which it is conducted, may attract scrutiny” (emphasis in original). Relevant to the assessment of whether some defence action is legitimate are the following factors:

• The overall number (of applications);

• Strength and importance;

• Proximity to the Jordan ceilings;

• Compliance with any notice or filing requirements; and

• Timeliness of defence applications.

R v Cody, 2017 SCC 31 at paras. 31-32

DEFENCE DELAY

Any Period in which the Defence is Unavailable but the Crown and Court are ready to Proceed.

[7] The Crown argues that there is one period of defence delay and that is between February 25, 2019 (the first date offered by the Court when the date was set) and March 25, 2019 when the trial was scheduled to commence. Ms. McInnes was not available on February 25 and she was not in a position to commence the trial until March 11. The Court did not offer March 11 but offered March 25th to commence.

[8] The Applicant accepts that there is an amount of defence delay here due to unavailability, but argues I should only assess fourteen days. The Crown argues the entire period should be attributed to defence delay and assess twenty-eight days. In my opinion, assessing if the total period from the first date offered to the defence until the date actually fixed should be assessed in its entirety as defence delay is somewhat fact specific. It will involve some discretion on the part of the judge hearing the application. In this particular case, on the facts before me, including the fact that counsel was not only unavailable on the first date offered but for each day of the next two weeks and the fact that the total period involved here is one of twenty-eight days and that the Court was setting a period of twenty days for trial, I fix the entire twenty-eight days as defence delay.

OTHER DEFENCE DELAY

[9] The Crown argues that there is “illegitimate conduct” by the defence that should be attributed as defence delay and points to four discrete periods to consider.

June 30, 2017 – July 14, 2017

[10] This is the period of a two week adjournment sought by the applicant in remand court.

[11] On June 30, 2017 an articling student for counsel of the Applicant appeared in remand court and sought a two week adjournment on the following basis:

We’re asking to adjourn for two weeks. We’re awaiting further disclosure. I believe disclosure disks were originally provided but were unable to open them. So we’re waiting for that problem to be fixed. So two weeks, please.

[12] The Crown argues that I should find this two week period illegitimate because in fact only one of the discs was inaccessible, and that two weeks later defence counsel was prepared to set a counsel pre-trial while that disc was still inaccessible.

[13] I disagree. Defence counsel had written to the Crown Attorney on June 16, 2017 indicating that one of the discs was inaccessible. Counsel had requested a replacement disc as soon as possible and asserted a desire that the matter proceed without unreasonable delay.

[14] The Crown never replied to this letter.

[15] It should have been a simple matter for a replacement disc to have been provided prior to the appearance on June 30. The Crown in court on June 30 consented to the adjournment of two weeks and indicated that she was aware there was a password problem and that it should be a quick fix. On the return date on July 14 the Crown indicated that it was taking some time to convert the desk to a format that the defence could access and in response to a question from the Court if a further three weeks was reasonable the Crown said that it was. The matter was adjourned to August 4.

[16] I am not prepared to find that the conduct by the defence in this period of time was anything but reasonable, professional and legitimate and it does not amount to defence delay.

July 14, 2017 – September 8, 2017

[17] The Crown submits the approach to this period of time by the Applicant was illegitimate and must be deducted as defence delay.

[18] The Crown argues that on July 14 the matter was adjourned to August 4 on an indication the defence would receive additional disclosure and conduct a counsel pre-trial in the interim. The Crown submits the Applicant took no steps to set or conduct a counsel pre-trial in that period, but rather returned on August 4 and advised the court that counsel pre-trial was set for 28 August 2017 with the return date to court back on September 8. The Crown argues that a consideration of the totality of these actions characterizes the defence’s actions as illegitimate and should be found as defence delay.

[19] The Crown argues:

This cannot be characterised as proactive. It is inconsistent with the applicant’s obligation to share in the responsibility to be efficient and reduce delays. This is undoubtedly what the Court had in mind when it directed that “many practices which were formerly commonplace or merely tolerated are no longer compatible with the right guaranteed by s. 11(b) of the Charter”.

[20] Prior to addressing these arguments I wish to discuss the issues surrounding disclosure.

GENERAL PRINCIPLES REGARDING DISCLOSURE

[21] The Crown has a duty to disclose to the defence all information relevant to the case (R. v Stinchcombe, 1991 45 (SCC), [1991] 3 SCR 326 at p. 333). Relevant information includes material that the Crown intends to introduce into evidence, as well as that which it does not, and no distinction should be made between inculpatory or exculpatory evidence (Stinchcombe, supra at p. 343)

[22] The duty to disclose is a continuing one, and disclosure must be ongoing as additional information is received (Stinchcombe, supra at p. 343). Failure to disclose relevant information may impede the ability of the accused to make a full answer and defence.

[23] The defence is also entitled to an adequate opportunity to “review disclosure they have received to determine its importance, before moving a case forward” (R. v D.A., 2018 ONCA 96 at para. 13).

[24] The defence is entitled to sufficient disclosure from the Crown before a judicial pre-trial (R. v D.A., supra. at para. 7), and before the accused can be called upon to elect the mode of trial or to plead (Stinchcombe, supra. at p. 343; Kovacs-Tater, supra at para. 47). It follows that the defence is similarly entitled to sufficient disclosure before a trial date is set.

[25] To meet the threshold of sufficiency, disclosure must “permit the accused to make an informed decision” (R. v Girimonte, 1997 1866 (ON CA), 1997 CarswellOnt 4855 at para. 17, [1997] OJ No. 4961).

[26] However, the Crown is not obligated to disclose “every last bit of evidence” before a case may be moved forward (R. v Kovacs-Tater, 2004 42923 (ON CA), 2004 CarswellOnt 4805 at para. 47, [2004] OJ No. 4756). As recognized by the Court in R. v Stinchcombe, the Crown will often be unable to make complete disclosure at the initial stage of the disclosure process (supra at p. 343).

[27] Instead, sufficient disclosure will be adequate to move a case forward, while further subsequent disclosure continues to be monitored. The ongoing nature of the duty to disclose ensures that the accused will continue to have the ability to make a full answer and defence throughout the course of proceedings.

CASE SPECIFIC FINDINGS REGARDING DISCLOSURE

[28] The defence requested disclosure in writing on:

• June 5, 2017;

• June 16, 2017;

• July 12, 2017;

• October 10, 2017;

• October 12, 2017;

• October 19, 2017; and

• November 20, 2017.

[29] Defence requested or indicated awaiting disclosure in Court on:

• June 9, 2017;

• June 30, 2017;

• July 14, 2017; and

• August 4, 2017.

[30] Defence requested disclosure in person at counsel Pre-Trial on:

• August 28, 2017.

[31] Defence requested disclosure at JPTs on:

• September 27, 2017;

• October 10, 2017; and

• October 12, 2017.

[32] The Crown submitted that the defence either had sufficient disclosure to proceed more expeditiously or that it was less than diligent with respect to items already available. In particular, the Crown placed significant reliance on the fact that some audio disclosure that had been apparently available since June 19, 2017 was not picked up until September 27, 2017. I will address this particular item.

[33] On June 19, 2017 the Crown prepared a Disclosure Package Pick-up Notification and the normal practice is that it was placed in the Defence Counsel Disclosure Box for pick-up. It is unknown when this Notification was actually picked up, although we know that the back page of the form was faxed back to the Crown on August 8, 2017.

[34] A second Disclosure Package Pick-up Notification was faxed to defence counsel on September 27, 2017, which apart from the date, is essentially identical except that the document is only one page and says the items are ready for pickup and does not contain the second page which indicates that to assist in production and pickup, defence counsel can fax back the form.

[35] The page faxed back by defence counsel, on August 8, 2017, was the second page and it does not contain any identifiers of the particular accused, but by agreement it is S.S. However, it does not identify anyone and there is no evidence any action was taken by the Crown to put the audio disclosure at the front desk for pick-up or that the defence counsel was notified that a form had been received that could not be acted on as it did not contain any identifiers.

[36] Given defence counsel had continued to request these items in writing I am satisfied that defence counsel was unaware that they had been notified, that on request by the form that these particular items could be picked up.

[37] Clearly some mix-up occurred. Given defence counsel’s letter of July 12 which among other items specifically addressed these audio/video recordings, a letter which was not replied to by the Crown until after at the JPT of September 27, I am not prepared to find any illegitimate conduct or lack of diligence by defence counsel with respect to this item of disclosure let alone disclosure in general. It was picked up the same day when counsel were advised at the September 27 JPT.

[38] This was not a case in which it should have been difficult to provide timely and complete disclosure.

[39] The disclosure was not particularly voluminous nor was there any significant ongoing investigation for disclosure.

[40] All the disclosure requests made by the defence were reasonable, non-frivolous and ultimately acted on by the Crown.

[41] Problems with disclosure included not providing it in a timely way, providing it in an inaccessible format due to password difficulties and providing it blank or illegible.

[42] The Crown concedes that the provision of disclosure in this case was not a model of efficiency.

[43] There is no real explanation that justifies the delay in providing it.

Findings with respect to Defence Conduct between July 14 and September 8, 2017.

[44] I find that the Crown is engaging in retrospective analysis that is not borne out by the facts. The defence conduct in this period may not have been perfect. However, the Crown’s actions or inactions at the time are very telling.

[45] At the time the events were taking place the Crown never disputed the importance of the disclosure before taking the next steps. On the record the Crown consented to or agreed with all of the adjournments in this period. There is no indication that at any time in this period the Crown was requesting to set an earlier counsel pre-trial or judicial pre-trial. In fact in this period the Crown did not even reply to any of the correspondence it received from defence counsel. The correspondence was not boiler plate or generic but specific, detailed and in every case asserted the importance of proceeding without delay. Significant and relevant disclosure was not being provided and no satisfactory explanation has been provided to the Court as to why this occurred.

[46] There will be no deduction for defence delay in this period.

September 20, 2017 – September 27, 2017

The Crown argues that this period of time should be deducted as defence delay for failing to be proactive in obtaining a judicial pre-trial.

[47] The Crown argues that:

On 8Sept2017 efforts were made in court to set a JPT. One of the dates offered by the court was 20Sept2017. That date was declined by the Crown in court as she understood the assigned Crown was not available. Ultimately no JPT date was set in court that day.

79. Following the court appearance the applicant contacted the assigned Crown. The Crown indicated that she in fact would make herself available on 20Sept2017. The applicant had indicated he would contact trial coordination to secure a JPT date and the matter was left in his hands. He did not do so on that date. On 12Sep2017 the assigned Crown followed up. This prompted the applicant to contact trial coordination. The delay in doing so, however, resulted in the 20Sept2017 date no longer being available. Instead, the JPT was set for 27Sept2017.

80. The failure to be proactive in securing the earliest possible JPT date directly resulted in 7 days of delay. This conduct is defence delay.

[48] Once again I find the Crown is attempting to conduct a retrospective analysis that fails to look at the reality of the situation and focuses with a microscope on defence actions while ignoring the actions and inactions of the Crown.

[49] The transcript of September 8 does reveal that September 20 was offered by the court but the Assigned Crown was not available. However, the transcript also reveals that September 13 was available to the court and the defence but the Assigned Crown was not available for that date either.

[50] The Crown in court suggested defence counsel contact the Assigned Crown and work it out. Mr. Paciocco telephoned the Assigned Crown on September 8 and left a voicemail. He emailed the Assigned Crown at 12:49. In that email he pointed out the indication in court was the Crown was not available on September 13 and 20. In his email he said “If you are indeed available on the 27 or 4 for a JPT please advise and I will send correspondence to Ormey (with the Crown cc’d) about trying to reserve a JPT slot on those days.” The Assigned Crown replied at 1:09 pm indicating although she was in a trial court on September 20, she would make herself available on that date.

[51] Mr. Paciocco apparently then telephoned Ormey but was unable to reach her. It was Friday afternoon. On Tuesday September 12, the Assigned Crown followed up with Mr. Paciocco to find out what happened. That put in place a series of emails culminating on September 14 with a JPT time reserved for September 27 at 9:15, as September 20 was no longer available for the court, with the matter brought forward to September 15 in court to fix the date.

[52] I find that the actions of Mr. Paciocco to be anything but illegitimate. The defence was prepared to accept offered dates for judicial pre-trial of September 13 and 20. In court the Crown was not. Mr. Paciocco followed up with the Assigned Crown on September 8 by telephone and email. Mr. Paciocco took the lead with a number of emails with trial coordination to obtain an earlier JPT slot. The defence took the necessary steps to have the matter re-listed in court on September 15 to have the date of September 27 set.

[53] There is no evidence before me as to when September 20 for JPT was no longer available for the court. For example, it may have been unavailable before noon hour on September 8. The only reason the JPT was not set for September 13 was the Crown’s unavailability. The only reason the JPT was not initially set for September 20 is because the Crown in court indicated the Assigned Crown was not available. It was only when the Assigned Crown was contacted that she indicated she would make herself available on September 20 despite the fact she was in a trial court that day and may need permission of the trial judge.

[54] In this period, September 8-27, the Assigned Crown and Mr. Paciocco both conducted themselves proactively, professionally and legitimately. There will be no deduction for defence delay during this period.

SEPTEMBER 27, 2017 – OCTOBER 20, 2017

[55] This is the period of time between the first JPT was held and when the trial date was actually fixed.

[56] The Crown argues that this must be deducted as defence delay because the Applicant refused to set a date on September 27, 2017 (or get a green sheet to secure the earliest possible trial dates at that time) and the decision to only set it on October 20, 2017 is illegitimate. The Crown argues it must be seen as illegitimate because:

83. First, the status of disclosure was not a legitimate basis to delay setting a trial date.

Second, the proactive approach was to set the trial date and work through confusion or alleged deficiencies in the disclosure in the interim. Everyone knew that the trial date would be well into the future – indeed with Mr. Edelson as counsel, the earliest date would have been the fall of 2019. This would have provided ample time to sort out any disclosure issues and allow defence time to review same and properly prepare. Perkins-McVey, J. agreed at the JPT and pushed counsel to set a date but defence counsel refused. Again, even if the substance of disclosure was somehow insufficient (noting as set out above, that issues were more about form than substance), this reality was one that should have been accepted by the Applicant. It would have been a proactive and collaborative way to deal with delay and would have avoided the delay between September 27, 2017 and October 20, 2017.

Third, the matter was headed to trial. There was no likelihood of resolution – that was apparent from the Applicant’s comments on August 8, 2017 that he “anticipates setting trial dates” as well as from the CPT of August 28, 2017. It follows that there was no reason not to set trial dates – put differently, resistance to setting a trial date had nothing to do with properly instructing the applicant.

[57] Characterizing either Crown or defence conduct in this period of time is more difficult because of the valid competing interests and decisions to be made.

JUDICIAL PRE-TRIALS IN GENERAL

[58] A meaningful judicial pre-trial(s) is critical to an efficient criminal justice system.

[59] Our Court of Appeal in R v. Jurkus, 2018 ONCA 489 at para. 32 held:

They are not simply part of a check-list on the road to trial. They are designed to promote general efficiency in the criminal justice system by, among other things, facilitating resolutions, resolving issues, simplifying motions, arriving upon agreed facts, identifying triable issues and setting meaningful schedules: R. v. Konstantakos, 2014 ONCA 21, 315 O.A.C. 123, at para. 8; Judicial Pre-Trial Conferences Scheduled for Tuesday October 11 Re, 2016, 2016 ONSC 6398, at para. 8. Criminal Code, s. 625.1; Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7, Rule 28.05(9). In this age of concern about delay in our criminal justice system, there is an added premium on ensuring the success of judicial pre-trials.

[60] As a general rule a judicial pre-trial cannot be meaningful if sufficient disclosure has not been provided sufficiently in advance of the judicial pre-trial to allow counsel to review it. Failure to provide sufficient disclosure before the judicial pre-trial is sufficient reason for an accused to refuse to move a case forward. In R. v D.A. our Court of Appeal said:

12 The second reason why the Crown's contention that D.A. should have set the trial date on April 2, 2015 is unfair is that, once again, just before the April 2, 2015 pretrial began the Crown gave yet another substantial disclosure package to D.A., consisting of both electronic and paper disclosure exceeding 80 pages. Since D.A.'s counsel could not possibly review this material before the scheduled pretrial, the Crown agreed to adjourn the pretrial to May 14, 2015.

13 The Crown suggested before us that its consent to adjourn the April 2, 2015 pre-trial because of its own last minute disclosure is unimportant in assessing unreasonable delay unless, by its nature, the information disclosed is shown to have been essential to the case. I do not agree. The accused is entitled to review disclosure they have received to determine its importance, before moving a case forward. Where, as here, that 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.

14 The final and most important reason why it was not fair to expect D.A. to set a trial date on April 2, 2015 is that essential disclosure was still outstanding on that date.

15 In particular, disclosure had not yet been made of the occurrence report and police officers' notes relating to the initial complaint. …

R v. D.A. 2018 ONCA 96

Judicial Pre-Trials in this Case

[61] I find that there were still significant disclosure problems present in this case on September 27, 2017. A large amount of disclosure was provided to the Applicant on September 25, 2017. The video statements had still not been provided and the mix-up over the audio statements was not cleared up until the JPT on September 27, 2017. The original written Statement of the complainant had still not been disclosed. These are but examples of the problems.

[62] In determining on the facts of this case what the appropriate action of the parties should be, I place great weight on the actions of the pre-trial judge Justice Perkins-McVey. She was of the view that court time could be reserved for a trial or preliminary hearing and she could continue robust Case Management to ensure that the necessary disclosure was provided in a timely way. If other issues arose she would be in a position to deal with them. In that manner she could protect the Applicant’s rights to a fair trial while also ensuring the earliest date for trial.

[63] She conducted judicial pre-trials on September 27, October 10 and October 12. That is three judicial pre-trials in ten working days. Additional disclosure was provided. By October 12 under her supervision, the parties agreed a rough trial estimate was three weeks however, to avoid potential problems, she authorized four weeks be set aside.

[64] On October 12 she issued the appropriate authority to the trial coordinator to release four weeks of court time. Although defence counsel was refusing to willingly set a date on September 27, defence counsel co-operated and actively participated in this process, such that by October 12 the necessary authorization was available to set a date for trial. The next appearance in court was October 20 and at that time the trial date was set.

[65] Justice Perkins McVey continued to pre-try this matter and two more pre-trials were held. Most issues were resolved by November and the matter was spoken to on January 26, 2018, at which time the trial estimate was reduced to three weeks freeing up the last week.

[66] The Crown asks me to find that all of the time from September 27 to October 20 be deducted as defence delay as it submits the Crown and the court were ready to set dates and defence was not. There is some merit to this submission particularly given the pre-trial judge’s view that a date could be set and the issues worked out later.

[67] The Crown argues that the defence did not set a date on September 27 nor attend at the trial coordinator’s office to obtain a prospective date.

[68] On the other hand a date for more than one day of court time could not be reserved or set without authorization from the pre-trial judge. This authorization was not forthcoming until October 12 following two more judicial pre-trials. If the Justice had been satisfied that she had a good understanding of the amount of time required and that a date should be set even before a further judicial pre-trial was conducted, she could have and would have issued a sheet authoring the court time, if the authorization had been specifically requested by the Crown.

[69] Neither the Crown nor the court have to accept a defence position that they do not wish to set a date. If the matter is in court the Crown can ask for a date to be set and the court can make the decision. The Crown took no steps to have the matter listed in any court, let alone Justice Perkins-McVey’s court between September 27 and October 6.

[70] Furthermore, when the matter was in court on October 6 and the judicial pre-trial was fixed for October 10 with a return date for October 20, the Crown had no comment. When the Justice erroneously made a return date of October 27 it was the defence that pointed out the request was for October 20 not October 27.

[71] Furthermore, following the October 12 judicial pre-trial, a time when the Crown was in possession of written authorization of the pre-trial judge to have twenty days set for the trial, the Crown took no steps to have the matter listed earlier in court so the date could be set nor did the Crown take any steps or communicate in any way with trial Coordination to determine what dates might be available, reserved or potentially seek earlier dates if the offered dates were too far in the future.

[72] Defence counsel was proactive following the pre-trial of September 27. Immediately following the pre-trial, he wrote Crown counsel a detailed disclosure letter outlining what was outstanding. On September 29, some additional disclosure was provided and once again there were password problems and he advised the Crown of the problem the same day.

[73] The ongoing disclosure problems are illustrated by the Assigned Crown’s internal email of October 2 in which she states: “……This file has been plagued by disclosure problems and we are getting into problematic territory re: 11(b) because of the delays. This can’t wait until Denise comes back on Wednesday because we have another JPT coming up and counsel needs to review this material in advance.”

[74] In my opinion in the period of September 27-October 12 the Crown, the defence and the court were acting within the parameters of what is expected pursuant to Jordan and Cody. The now Assigned Crown was seeking to set a date. The pre-trial judge was pushing for a date so time could be reserved. Defence counsel was insisting on important disclosure so at the very least estimates of length of time could be made and agreeing to early follow up pre-trials.

[75] Within ten working days counsel and the court conducted two more judicial pre-trials and both Crown and defence were active on the disclosure front. The Crown seeking to provide it and the defence specifically advising what was required and immediately advising when there were problems accessing it. Within this short period of time a reasonable and agreed upon estimate of the amount of trial time required was obtained and authorized. Agreement was obtained to set a date and continue to work things out.

[76] It is accurate that between October 12 and October 20, the Applicant did not bring the matter forward nor request dates from the trial coordinator. However, neither did the Crown.

[77] I am not prepared to find that any of this delay was the result of illegitimate defence conduct.

OCTOBER 20, 2017 - FEBRUARY 25, 2019 - MARCH 18

Institutional Delay

[78] The longest period of delay in this case and the most problematic is the almost seventeen months from the time of the appearance in set date court to the conclusion of the trial even assuming the first date was accepted and the trial finished on time.

[79] All parties agree this is institutional delay as the first date available for the court was February 25, 2019.

[80] It is twenty-five years since the Supreme Court of Canada in Morin (1992 89 (SCC), [1992] 1 S.C.R. 771) set eight to ten months as a guide for institutional delay in provincial court. In the case at bar the institutional delay greatly exceeds this guide and in fact is more than double the lower end of the guide and a seven months in excess of the top end.

[81] In Jordan, the Supreme Court did not set eighteen months as an aspirational target. Rather, it is the point at which delay becomes presumptively unreasonable.

[82] The Supreme Court made clear the eighteen month presumptive ceiling was set reflecting the inclusion of other factors than institutional delay to prosecute including the inherent time requirements of the case and the increased complexity of criminal cases since Morin. The ceiling also takes into account the significant role that process now plays in our criminal justice system.

[83] It is obvious if institutional delay approaches eighteen months the inherent time requirements of the case, including necessary process, will invariably take the total time over the eighteen month ceiling.

[84] A quarter of a century after Morin and in a case that began a year after Jordan was decided, we are dealing with seventeen months of institutional delay in provincial court. It is of course necessary to consider the specific facts and circumstances of each case, however as a general observation, I find this length of time for institutional delay completely unacceptable.

WAIVER

[85] In determining net delay periods of time waived by the defence are deducted from total delay.

[86] Waiver can be explicit or implicit, but in either case it must be clear and unequivocal.

[87] I accept the Crown submission that: The first is delay waived by the defence (Askov, at pp. 1228-29; Morin, at pp. 790-91). Waiver can be explicit or implicit, but in either case, it must be clear and [p. 662] unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights. However, as in the past, "[i]n considering the issue of 'waiver' in the context of s. 11(b), it must be remembered that it is not the right itself which is being waived, but merely the inclusion of specific periods in the overall assessment of reasonableness" (R. v. Conway, 1989 66 (SCC), [1989] 1 S.C.R. 1659, per L'Heureux-Dubé J., at p. 1686). R. v Jordan at para. 61.”

[88] The Crown is not arguing that there are any periods of explicit waived. Rather the Crown argues that waiver was implicit.

[89] The main thrust of the Crown argument that there was implicit waiver is based on the consideration of all the conduct including:

i) The manner in which the defence approached the case, the failure to secure dates as soon as possible, and the four week estimate;

ii) The accused’s initial choice of Mr. Edelson as counsel.

[90] It is important to remember that any waiver has to be clear and unequivocal. Implicit waiver is valid if it is clear and unequivocal.

[91] However, by its implicit nature, an after the fact determination of the existence of clear and unequivocal implicit waiver is much more difficult for a reviewing court than the determination of explicit waiver.

THE MANNER IN WHICH THE DEFENCE APPROACHED THE CASE

[92] It is accurate that in some cases the vigorous pursuit of legitimate actions in pursuit of full answer and defence may compete with s. 11(b) interests and sometimes will reveal a waiver of the right to a trial within a reasonable time.

[93] In considering the concept of waiver, if the actions are illegitimate they can be deducted as defence delay without involving the concept of waiver. I am prepared to accept also that illegitimate actions can also be considered as a factor in determining if there is implicit waiver.

[94] I have already concluded that there were no periods of illegitimate defence conduct prior to October 20. Furthermore there was no defence delay by actions after October 20. This does not however end the determination of the possibility of implicit waiver. Implicit waiver can also arise from legitimate actions.

[95] In many cases vigorous pursuit of legitimate actions would be considered under complexity not waiver. Complexity is not solely a feature of the Crown’s case or Crown’s actions. Complexity can arise because of legitimate actions. I consider complexity later in this judgment and conclude the case is not complex and certainly not complex due to defence actions. I can and do however consider legitimate actions in determining if there is implicit waiver.

[96] The actions of the defence prior to October 20 are of very little weight in finding possible implicit waiver.

[97] In addition to my findings the actions in that period were legitimate and did not create complexity, it should be noted that the defence expressly asserted the accused’s s. 11(b) rights in:

Correspondence

• June 5, 2017;

• June 16, 2017;

• July 12, 2017;

• October 10, 2017; and

Court

• October 20, 2017.

[98] I accept that the mere inclusion of phrases asserting the accused’s s. 11(b) rights in correspondence or to some extent in court on October 20 are not determinative of the issue of implicit waiver. It is necessary to consider all of the conduct and circumstances contextually. However, the express assertion of the accused’s rights pursuant to s. 11(b) is something I can consider.

[99] The Crown places considerable weight on the four week trial estimate as a piece of evidence of implicit waiver or complexity. As a general rule an inordinate time estimate would be considered under illegitimate conduct or complexity, although I agree it can be considered in determining if implicit or explicit waiver occurred. I discuss later in these reasons why on the facts of this case, I do not find the reservation of four weeks for trial, a time period that was subsequently reduced to three weeks to amount to complexity.

On October 20th was it legitimate to set aside four weeks for trial?

[100] It is important to note that any time estimate in excess of one day requires judicial authorization following a judicial pre-trial. Clearly the case was going to require in excess of one day.

[101] The matter appears first in judicial pre-trial on September 27 and there were outstanding issues making it difficult to accurately determine trial length.

[102] As of September 27 there remained outstanding disclosure. Not having all the disclosure limits the defence ability to accurately predict length.

[103] Illustrative of problems that can arise in estimating trial length when issues are outstanding is the consideration of possible expert evidence. The Crown had indicated they were either going to call expert evidence or considering calling expert evidence. At this point in time the Crown had not served a notice of expert evidence nor even obtained an opinion.

[104] Expert evidence is something that can significantly affect trial estimates and scheduling. Altogether apart from the length of time it would take to hear the evidence in-chief and in cross-examination there are other issues. Will a Mohan voir dire be required? It is unrealistic to expect trial judges to be able to instantly rule on all evidentiary issues. Should some time be allocated to allow the trial judge to consider the issue and provide a decision? If it is to be done by a pre-trial motion, is this to be in advance of the trial or at the start? If in advance how much in advance? How much time will be required and when are these dates going to be set? Will the defence seek to call expert evidence in reply? Will a Mohan voir dire be required for the defence expert?

[105] On August 28, 2017 at the counsel pre-trial, the Crown (not the Assigned Crown) expressed the view the matter would take two weeks but three might be prudent. On September 27, at the judicial pre-trial, the Assigned Crown suggested three weeks would be sufficient. The judicial pre-trial judge suggested five further days be added to this estimate, in part because Mr. Edelson was known to be lengthy and detailed, and that it is far easier down the road to release days of trial time than to add them on to an already booked trial list.

[106] The pre-trial judge conducted follow up judicial pre-trials on October 10 and October 12 at which time she authorized twenty days be set aside for trial. She was going to continue to assist the parties and if the trial estimate could be reduced, then the matter could be spoken to at a future time.

[107] In fact on January 26, 2018, still a full year in advance of the scheduled start date, the trial estimate was reduced to three weeks.

[108] The pre-trial judge after having conducted three judicial pre-trials determined that reserving twenty days was appropriate. Altogether apart from the fact that there were outstanding issues and that trial estimation is not a science, it is problematic to attempt to conduct retrospective analysis on the estimate of twenty days approved of by the judicial pre-trial judge.

[109] Furthermore on the record, the Crown took no objection to twenty days being reserved. In addition, having reviewed the facts and circumstances as they presented at the time the date was set, I find it was entirely appropriate to reserve twenty days at that time.

[110] In this case it made imminent good sense to be prudent, and there is no evidence before me that had the estimate been fifteen days or even ten days, that would have made any difference to trial availability. Furthermore, as it relates to the administration of justice generally, the follow-up by the judicial pre-trial judge and counsel resulted in those additional five days being freed up for other cases more than a year in advance.

[111] I find that the trial estimation of twenty days was legitimate.

[112] That does not end the analysis as even legitimate conduct could constitute waiver. The trial estimate of four weeks was legitimate and appropriate at the time it was made. It could not be considered inordinate or excessive even if some other counsel may have done it in slightly less time. Furthermore, in the absence of clear evidence that a two or three week trial would have been heard sooner it cannot amount to waiver and it is certainly not clear and unequivocal.

CHOICE OF COUNSEL

[113] The accused initially chose Mr. Edelson as counsel although I note Mr. Edelson had few if any public dealings with the case before the judicial pre-trial. The interim judicial release proceedings were conducted by another member of the firm as were all of the remand appearances, the correspondence and the counsel pre-trial.

[114] Mr. Edelson’s schedule is busy. However, there is insufficient evidence before me that his schedule was so busy, that in the period prior to the conduct of the judicial pre-trials in September and October 2017 that he would not be able to complete the trial in provincial court before November 20, 2018 assuming there was trial time available.

[115] In addition, although it is a factor to consider, absent express waiver by the accused, choice of initial counsel, is a consideration of limited weight in determining that the accused implicitly waived his s. 11(b) rights by his choice of counsel.

[116] Counsel’s schedules can and do change and what may be booked on one day may be open the next. Furthermore, accused can and do change counsel. If additional delay results from a change of counsel this would normally be considered under defence caused delay rather than waiver.

[117] On the other hand, it is possible that change of counsel particularly within the same firm may not cause any additional delay. This is what occurred here.

[118] Although the Crown may understandably assume that the timing of the trial may ultimately be determined by defence counsel’s schedule, this is a weak indicator of implicit waiver by the accused.

[119] Choice of counsel does not eliminate the court and the Crown’s constitutional obligations pursuant to s. 11(b).

[120] Two different internal pieces of correspondence by the Assigned Crown suggest that s. 11(b) was not waived, nor viewed as waived by the Crown.

[121] On October 2, 2017, the Assigned Crown emailed the Crown disclosure Coordinator and in this message she stated: “The file has been plagued with disclosure problems and we are getting into problematic territory re: 11(b) because of the delays. “

[122] On October 19, having been made aware the potential dates being offered by trial coordination would commence February 25, 2019, she emailed the Crown scheduled to be in court on October 20 when a trial date was to be set, instructing her to keep a clear record as to what dates were offered and refused and instructed her to take the first available dates, regardless of her own schedule.

[123] These emails are illustrative of the fact that the Crown was aware of s. 11(b) concerns in this case and in no way indicate s. 11(b) was waived.

[124] The Crown argues that the change in counsel from Mr. Edelson to Ms. McInnes was artificial and aimed at turning s. 11(b) into an offensive weapon rather than as a sincere interest in embracing his s. 11(b) rights. The Crown argues that following Mr. Paciocco’s email of October 19, 2017, and learning the first available date for trial was February 25, 2019, the accused changed counsel to take advantage of this and support an application alleging a violation of his s. 11(b) rights.

[125] Given the importance of this email exchange I have reproduced it in its entirety:

From: Tony Paciocco

Sent: October-19-17 2:29 PM

To: Kelly, Kevin P. (JUD); Koutsovasilis, Rosina (MAG)

Cc: Bramwell, Lia (MAG); Michael Edelson; Amanda Joynson; Kathleen Selkirk

Subject: Re: S.S. (Info # 17-0050) - Setting Trial Dates, OCJ (20 days)

Kevin and Rosina,

I hope this message finds you well.

The S.S. matter (Info #17-0050) is in #5 tomorrow. S.S. was arrested and charged on May 19, 2017. The matter was been pre-tried a number of times, and was most recently judicially pre-tried on October 10, 2017. At that October 10th pre-trial, the Honourable Justice Perkins-McVey provided a trial scheduling sheet for 20 days of trial.

I anticipate that tomorrow, after putting some comments on the record, our office will elect a trial by judge alone in the Ontario Court of Justice, and that the Crown will file the green sheet in #5 so that trial dates can then be set.

In an effort to make things move smoothly as possible tomorrow, I was hoping that one of you can field the following two questions:

1. Quite apart from Mr. Edelson or the Crown’s schedule, when is the earliest the Court is available to accommodate 20 days of trial in the OCJ?

2. How far into the future can clerks from #5 confirm trial dates?

(In the event the clerks do not have dates far enough in advance, I anticipate that someone from our office will be attending trial coordination to retrieve a green sheet before trying to set dates).

Thank you both in advance.

Best,

Tony Paciocco

From: Kelly, Kevin P. (JUD)

Sent: Thursday, October 19, 2017 2:44 PM

To: Tony Paciocco; Koutsovasilis, Rosina (MAG)

Cc: Bramwell, Lia (MAG); Michael Edelson;

Amanda Joynson; Kathleen Selkirk, Shim, Ormey (MAG)

Subject: Re: S.S. (Info # 17-0050) - Setting Trial Dates, OCJ (20 days)

Since you are in court #5 tomorrow (Friday) I am assuming that this is a case for the Domestic Team.

Assuming that is the case and that the accused is out of custody and scheduling this trial for the first time then court #5 would offer 20 days beginning on Monday Feb 25th, 2019 as long as other cases don’t schedule trials before yours tomorrow using up those available dates.

The Clerks in court #5 will have available dates up to the end of April 2019 tomorrow.

My recollection is that Mr. Edelson recently scheduled a 5 day domestic case for September 2019 so if the intention is to schedule this trial for dates in that range then someone will have to attend the TC office for dates, and a green sheet, or the Court will have to call the TC office to secure dates in Sept 2019 and beyond at the time the matter is called in #5, whichever is more convenient. Thanks, Kevin

[126] The Crown argues that the change in counsel was artificial in that:

i) Mr. Paciocco continued to be the person discussing matters with the Assigned Crown;

ii) Ms. McInnes’ name first appears in an email on January 19, 2018 at which time Mr. Paciocco says there may be further disclosure requests once Ms. McInnes sets her eyes on the file;

iii) On October 20, 2017 when the Applicant announced the change of counsel “in the interest of having a trial as soon as possible,” he did not advise the court of Ms. McInnes’s availability;

iv) The Crown submits that Ms. McInnes was also unavailable until 2019.

[127] When the Crown alleges that the accused’s choice of counsel is artificial and asks the court to look behind the record, the Crown must present evidence to allow the court to find this as a fact. This is particularly true when the Crown asks the court to retrospectively analyze the change in counsel and no statement was made by the Crown at the time.

[128] The Crown’s evidence and arguments are insufficient to allow the court in this case to make a finding that the change in counsel was artificial.

[129] Ms. McInnes is a very experienced lawyer and well qualified to conduct this trial. Ms. McInnes is present in court arguing this s. 11(b) motion and has confirmed that if it is denied she is ready to proceed to trial on March 25 as lead counsel.

[130] The fact that Mr. Paciocco remained the main contact person with the Assigned Crown is meaningless. They are all in the same firm. Apart from appearing at the judicial pre-trials with Mr. Paciocco, Mr. Edelson was not a point of contact at any time. There is nothing unusual about a more junior lawyer preparing a file for more senior counsel.

[131] The fact that Ms. McInnes did not do significant work on the file for many months means little in the context of a trial that was set seventeen months in the future and one on which a junior was actively preparing it.

[132] It is accurate that Mr. Paciocco did not put on record on October 20, Ms. McInnes’ availability. No one asked her availability. Furthermore, the Supreme Court of Canada in Jordan stated:

As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. This should discourage unnecessary inquiries into defence counsel availability at each appearance. (Para. 64)

[133] This is some evidence to suggest that Ms. McInnes was unavailable for significant periods in 2018 and early 2019.

[134] The Crown has filed a transcript dated October 17, 2017 indicating Ms. McInnes was doing a three week trial commencing February 11, 2019.

[135] The Crown also filed a copy of a “Green Sheet” obtained for that case indicating in that case the defence rejected earlier dates of August 13-31, 2018, September 10-28, 2018, October 9-26, 2018, and October 29-November 16. Dates of November 19-January 25 were declined by a lawyer for a co-accused with an indication Ms. McInnes was also part of that.

[136] Although this is some evidence of Ms. McInnes’ availability or unavailability it is far from conclusive. First, this is of no assistance in determining her availability between October 20, 2017 and August 2018. Furthermore, counsel could decline dates in one case and accept them in another for reasons other than availability.

[137] Counsel’s availability could change or they could turn over a case to another lawyer and open up available time. Hypothetical retrospective analysis is very difficult to do.

[138] In addition, to look behind the accused’s change of counsel to find waiver or illegitimate conduct requires both evidence and knowledge of the circumstances known to the accused at that time.

[139] The “Green Sheet” filed in evidence raises many questions and answers few.

[140] Why is it that on October 17, the court had available for a three week trial August 13-31, 2018, September 10-28, 2018, October 9-26, 2018, and October 29-November 16, November 19-January 25 and yet NONE of these dates were offered or made available for S.S.?

[141] Applying retrospective analysis, we have no way of knowing if on October 20 Ms. McInnes was available or would have made herself available for earlier dates if they were offered. Furthermore, we have no ability to determine what S.S., whose s. 11(b) rights are in issue, would have done if he had been offered these dates. Would he have sought another member of Mr. Edelson’s firm such as Mr. Lamb who did the Bail hearing? Would he have sought other counsel? We have now way of knowing because these dates were never offered. How can S.S. be said to have clearly and unequivocally waived his right to a trial in a reasonable time dates when earlier dates were never made available for him to consider? Waiver implies a choice. No choice was offered.

[142] The Crown argues that the Crown’s inaction is evidence that the Crown believed the Applicant was waiving his s. 11(b) rights and that he did so waive his rights.

[143] The evidence does not support this finding.

[144] The Domestic Team Lead who appeared on the relevant dates in Set Date Court never objected or made any comments on the Record in court to oppose any of the adjournments or defence requests. The normal inference is that she did not take action because the steps taken were legitimate and reasonable. Although there is a lot of correspondence from the Applicant’s counsel requesting disclosure and explicitly asserting the Applicant’s s. 11(b) rights, the Domestic Team Lead Crown does not reply in writing to any of this correspondence. There is no evidence before me by way of affidavit or otherwise that the Domestic Team Lead was operating under the belief that s. 11(b) was waived.

[145] The Assigned Crown has filed an affidavit in these proceedings. It is a twenty-one page, single spaced affidavit with in excess of fifty exhibits attached. Nowhere in this affidavit does she state that she believed the Applicant had waived his s. 11(b) rights. The closest she comes to any such affirmation is in para. 37 of her affidavit:

I recall that at either the JPT of October 10 or the JPT of October 12, 2017, Mr. Edelson’s schedule was discussed in the context of when the trial was likely to be scheduled. I recall that there was discussion about the fact that Mr. Edelson was defending Cst. Montsion in a trial that would start in February 2019 and would last for months. I inferred that the Montsion trial was raised to make the point that S.S.’s case would not be proceeding until after the Montsion trial had concluded given that Mr. Edelson was counsel for both S.S. and Cst. Montsion. This lead me to conclude that while I am always mindful of delay issues on each case, given S.S.’s specific counsel of choice (Mr. Edelson) and Mr. Edelson’s busy schedule, as well as the estimated length of S.S.’s case based specifically on Mr. Edelson’s well-known detail oriented approach, issues relating to delay, between the intake period and the ultimate date where the trial would land, would be dependent on defence counsel’s unavailability (not driven by R. v. Jordan and the first available Court dates). Counsel had never specifically raised the issue of an 11(b) application, nor had he indicated that there would be a change of counsel.

[146] The evidence before me does not support a finding that the Assigned Crown either believed the Applicant had waived his or that he had so waived his rights.

[147] Two different internal pieces of correspondence by the Assigned Crown suggest that s. 11(b) was not waived nor viewed as waived by the Crown.

[148] On October 2, 2017, the Assigned Crown emailed the Crown disclosure co-ordinator and in this message she stated: “The file has been plagued with disclosure problems and we are getting into problematic territory re: 11(b) because of the delays.”

[149] On October 19, having been made aware the potential dates being offered by trial coordination would commence February 25, 2019, she emailed the Crown scheduled to be in court on October 20 when a trial date was to be set, instructing her to keep a clear record as to what dates were offered and refused and instructed her to take the first available dates, regardless of her own schedule.

[150] These emails are illustrative of the fact that the Assigned Crown was aware of s. 11(b) concerns in this case and in no way indicate s. 11(b) was waived.

[151] There was no obligation on defence counsel to advise of the change in counsel given that it was done on the record. I note that when the Assigned Crown was assigned she did not contact defence counsel, nor when the case was reassigned months later was defence counsel notified of the reassignment.

[152] It is normal for counsel to have other counsel appear for them in administrative courts. However, it is the obligation of counsel to inform themselves, not for opposing counsel to follow up in writing and advise them.

[153] Furthermore, if the assigned counsel was proceeding on the assumption that this matter would follow the Montsion matter, that she knew was set to proceed in February, March, April and May one wonders why she did not inquire of how the S.S. matter was set to commence in March.

[154] I have no explanation for the Domestic Team Lead Crown’s inaction in Set Date Court other than complacency at worst, or inadvertence at best.

[155] The Assigned Crown was proactive in following up with disclosure and marshalling the case though JPTs so that a date could be set. Her inaction in reviewing the date set, confirming if waiver of s. 11(b) existed or seeking an earlier trial date cannot be explained by a belief in waiver of the Applicant’s s. 11(b) rights. It is more likely explained by a belief that her colleague and or the court would have addressed the s. 11(b) issue on October 20 when the date was set.

[156] Furthermore, her inaction is more likely explained by systemic factors within the Crown’s office including the failure of the Domestic Team Lead to report to her of the developments that took place in court on October 20. These include the change of counsel and that the first date offered was February 25, 2019 a date outside the presumptive ceiling and one with an excessive institutional delay.

[157] Systemic and institutional failures in the Crown’s office or the court system do not amount to clear and unequivocal waiver.

[158] Although not required as a matter of law, as a matter of good practice if the Crown believes the accused is implicitly waiving delay, the Crown should confirm this in writing or on the record.

[159] On the basis of the evidentiary record before me I cannot find that S.S.’s change in counsel was artificial or illegitimate. Regardless of who counsel is, the court has a constitutional obligation to offer or make available a trial within a reasonable time.

[160] The accused’s right to a trial within a reasonable time is constitutionally guaranteed. A waiver of that right either explicit or implicit must be clear and unequivocal.

[161] A review of all the circumstances and evidence is insufficient for me to find clear and unequivocal explicit or implicit waiver.

CONCLUSION RE: WAIVER

[162] I find there was no clear and unequivocal waiver. There will be no deduction for waiver.

NET DELAY

Total Delay = 693 Days

Defence Delay = 28 days

Net Delay = 665 days (Just short of 22 months)

[163] The net delay exceeds the Jordan presumptive ceiling.

[164] Therefore the Crown must establish the presence of exceptional circumstances, otherwise a stay will follow.

EXCEPTIONAL CIRCUMSTANCES

[165] Exceptional circumstances fall under two categories: discrete events and complex cases.

Discrete Events

[166] There are no discrete events.

Complexity

[167] In instances where, after having deducted defence-caused delay, the time period remains above the eighteen month / thirty month ceiling, it falls to the Crown to show that the delay is reasonable because of the presence of exceptional circumstances. Such circumstances “…lie outside the Crown’s control” in that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) the Crown cannot reasonably remedy the delays emanating from those circumstances once they arise [emphasis in original]. The circumstances need not be “rare or entirely uncommon.” To rely on such circumstances, the Crown needs to show that it took reasonable steps to avoid and address the problem where possible to have done so. It need not, however, prove that the steps taken were ultimately successful. Nor is the Crown required to “exhaust every conceivable option for redressing the event in question to satisfy the reasonable diligence requirement”. R. v. Jordan, 2016 SCC 27 at paras. 69-71, R. v. Cody, 2017 SCC 31 at paras. 44-46, 48, 54.

[168] In this case the Crown relies on complexity as an exceptional circumstance.

[169] I accept as accurate the following statement of law in the Crown Factum:

128. Particularly complex cases are those that, because of the nature of the evidence or issues, require an inordinate amount of trial or preparation time such that the ensuing delay is justified. Complexity does not entail stand-alone deductions. Instead, once relevant deductions for defence-caused and discrete events are made, a qualitative assessment will be undertaken to determine whether the complexity of a case overall justifies additional time to trial above the ceiling. Whether complexity in the evidence or issues that arise in the case justifies the time to trial is “a determination fall(ing) well within the trial judge’s expertise” [emphasis added]. The judge should also consider whether the Crown developed and followed a concrete plan to help minimize the delay caused by the identified complexity. The Crown may need to show this in order to establish that the circumstances were outside its control. However, while the Crown must act reasonably and according to a concrete plan in prosecuting a complex case, the Crown need not be forced to abdicate its responsibility to prosecute meritorious cases in order to achieve expediency, nor does Jordan require the Crown to take any and all steps proposed by the defence to expedite matters.

R v Jordan, 2016 SCC 27 at paras. 77-79

R v Cody, 2017 SCC 31 at paras. 64-65

129. Complexity of the case “as a whole” refers to the entirety of the prosecution, not the state of the prosecution at day one of trial. It is legal error to fail to consider the complexity at the outset of a prosecution (for example, as it relates to the extent of disclosure, the time needed for narrowing of issues in the context of continuing J.P.T.s, and settlement upon agreed facts) as such factors add to the time required to get the matter to trial.

R v Picard, 2017 ONCA 692 at paras. 60-63

R v Baron, 2017 ONCA 772 at paras. 67-72

R v Lopez-Restrepo, 2018 ONCA 887 at paras. 36-38

130. “…Case complexity is not a sole proprietorship, the exclusive business of the Crown”. Where the defence’s approach to the litigation injects a degree of complexity to the proceedings in the form of motions of doubtful merit, failure to adhere to filing deadlines, pointless cross-examination or lack of preparation, these factors are also relevant to the reasonableness of the delay.

[170] The Crown argues that the case was a complex one. I recognize that the determination of complexity is contextual and requires a consideration of the facts and circumstances. I have considered all of the factors individually and in the context of the totality of factors. It is of necessity however that I address the factors individually.

[171] The Crown argues the delay in the present matter is a direct result of the complexity of these proceedings and is illustrated by the following considerations.

a. There were numerous JPTs and a case management judge was assigned;

[172] I find this is of little weight. The JPTs were largely to deal with disclosure issues. No satisfactory explanation has been given why the disclosure was not provided earlier. The first three JPTs were conducted in a span of ten working days. The second two were completed within four months and were largely directed to ensuring the Crown followed up on disclosure and seeing if the trial estimate could be reduced. The JPTS do not illustrate complexity and had nothing to do with the trial delay in this case.

b. The trial was set for four weeks – one of only two trials (less than 1% of all trials) set during a one month period around October 20, 2017;

[173] Length of trial can be a significant factor with respect to complexity. However, in this case I find it is not. Four weeks were set aside to be prudent. The trial estimate was reduced to three weeks. No pre-trial motions were scheduled. There were no co-accused. There was no scheduling complications, simply court unavailability. (I note that on October 17, 2017, three days before this trial was set numerous weeks were offered for another case including three week blocks of time in August, September, October, November, December 2018 and January 2019.)

c. There was a change in counsel and new counsel was not fully up to speed some eight months after she came on record;

[174] The change of counsel did not result in any delay nor result in any request for delay. The fact that she did not get fully up to speed is not a reflection of complexity but rather the lack of any need to be that prepared 9-17 months in advance of trial. In fact the change of counsel was to make the trial proceed earlier.

d. There were approximately ten disclosure packages provided totalling 1400 pages (300MG of disclosure);

[175] In the modern context 1400 pages of disclosure is not much especially when many of the pages are pictures or messages from a cellphone or computer. The disclosure was not complicated and the requests were reasonable and ultimately all were fulfilled. The delay in disclosure was not due to its volume or type of disclosure. Rather it was just done inefficiently and without reasonable explanation for the delay.

e. The accused is a police officer and two police services were involved at points in the investigation.

[176] I fail to see the relevance of this. There was no evidence presented to explain why the involvement of two police forces made it complex particularly given the investigation was complete within weeks of the accused’s arrest.

[177] Further the Crown argues that I consider the scope of the disclosure requests. There were at least twelve disclosure letters, many very detailed setting out requests over two to three pages. One of the disclosure issues related to solicitor-client privilege communications between the complainant and her family law lawyer.

[178] I find the number of the disclosure requests is largely a product of the Crown not supplying disclosure that had been previously requested.

[179] The fact that the requests are specific should be helpful and reduce delay and is not an indication of complexity, but exhibits professionalism on the part of the defence to expedite their requests.

[180] The issue of solicitor-client arose because of inadvertent disclosure by the Crown of this material, which if anything is indicative of the problems with the handling of disclosure by the Crown/police.

[181] The Crown places considerable emphasis that initially four weeks of trial time were needed, which would include a five day cross-examination of the complainant and that this illustrates that this matter is complex.

[182] As a judge who sits regularly in the Ontario Court of Justice and performs numerous judicial pre-trials and sits in our Certificate of Readiness Court on a regular basis, I am well placed to determine if this time for trial is exceptional and if the case as a whole is complex.

[183] In my view it is not complex as that term is defined for s. 11(b) purposes. I accept that a trial of four weeks is one of a small percentage of trials and perhaps as few as the 1% that the Crown submits. However trial length is but one factor. Percentages are misleading. There are countless trials of relatively minor matters that are set for two hours or a half day.

[184] Furthermore, one has to note that many of these shorter trials are set on a double or triple booking basis as many do not proceed. In fact, it is not uncommon that some of these short trials are adjourned because there is no time to commence them or they are adjourned to continue because they do start on time or complete in the allotted time. Remember, that the Jordan presumptive ceiling is not just to the start of the trial but to its completion.

[185] Any trial that is longer than a couple of days and involves personal violence should be set when there is actually time to start and complete it.

[186] The administration of justice in provincial court must be able to accommodate and deliver justice for serious offences in a timely way. Although it has no bearing on this case, I note that the elimination of preliminary hearings in sexual assault cases will likely result in even more of these cases being tried in provincial court going forward.

[187] A trial of four weeks is a longer one but by no means the longest. Furthermore trials of one to two weeks are commonplace.

[188] In all likelihood, both a trial of two weeks or one of four weeks will normally be set at the end of the queue and the length of time to completion will only be longer by the one to two weeks longer that the trial runs.

[189] Many shorter cases involve far more complex issues as they relate to institutional delay. In fact many sexual offences will involve a series of a pre-trial motions each one requiring notice periods and time for the justice to decide before the next motion or trial can proceed. Cases may involve co-accused with scheduling difficulties due to multiple counsel. There may be ongoing forensic examination or other investigation. None of these difficulties are present here.

[190] This case involves two discrete allegations of sexual assault and an allegation of criminal harassment for a period of time commencing two months prior to the assaults and ending two weeks after.

[191] The charges involve a former intimate or domestic partner. Although there is some additional evidence and witnesses, the case essentially involves the credibility and reliability of the complainant and the accused. Neither factually nor legally is it complex.

[192] Considering all of the facts and circumstances this is not complex case in Ottawa in the Ontario Court of Justice.

[193] The fact is that there is only one reason that there is seventeen months of intuitional delay in this case. The reason is that the court did not offer trial time for seventeen months.

[194] I repeat my earlier comments.

[195] A quarter of a century after Morin and in a case that began a year after Jordan was decided, we are dealing with seventeen months of institutional delay in provincial court. It is of course necessary to consider the specific facts and circumstances of each case, however as a general observation, I find this length of time for institutional delay completely unacceptable.

[196] It is important to note that even if I was to find the case was complex this does not end the analysis.

[197] If I was to find the case complex, the Crown must show that the Crown cannot reasonably remedy the delays emanating from those circumstances once they arise. The circumstances need not be “rare or entirely uncommon.” To rely on such circumstances, the Crown needs to show that it took reasonable steps to avoid and address the problem where possible to have done so. It need not, however, prove that the steps taken were ultimately successful. Nor is the Crown required to “exhaust every conceivable option for redressing the event in question to satisfy the reasonable diligence requirement”.

[198] I accept that when the Assigned Crown took control of the file in September that she did everything reasonable she could to move the disclosure forward and have a trial date set on October 20.

[199] However, as they relate to institutional delay, problems for the Crown commence at the very latest on October 20.

[200] When the trial date was set, the first date offered by the court was February 25, 2019 and ultimately it was set to commence on March 25, 2019.

[201] When the court clerk offered February 25 to commence the trial, the Crown in court on October 20 (not the Assigned Crown) simply said “available to the Crown”. When the date was set to commence for March 25, the Crown replied “That’s fine”. At no time did the Crown inquire if earlier dates were available or if the matter could be put before the Local Administrative Judge to find an earlier date.

[202] Furthermore, at no time subsequent to October 20, did the Crown ever inquire from trial coordination if an earlier date could be obtained. The matter was never placed in the Certificate of Readiness Court before the Local Administrative Judge to obtain an earlier date.

[203] In addition, when the matter was spoken to before the pre-trial judge Justice Perkins McVey on January 26, 2018, still fourteen months before the trial was to commence, the Crown took no proactive steps. Defence counsel inquired if earlier dates were now available as Ms. McInnes had time freed up and the trial coordinator indicated that “if it was the first time up for trial and the accused was out of custody, there was no earlier time.” On confirmation that the accused was out of custody and it was up for the first time the trial co-coordinator said there was no earlier time. Throughout this appearance on January 26, 2018 the Crown (not the Assigned Crown) said nothing. The Crown made no inquiry for earlier dates or asked for anything to be done.

[204] In my opinion, when the trial coordinator offers a date outside the Jordan presumptive ceiling of eighteen months, the Crown must do something and cannot accept that no earlier dates are being offered.

[205] Although in a context of a re-trial the Court of Appeal indicated the Crown cannot take no for an answer from the trial coordinator when s. 11(b) is at issue:

63 In these circumstances, it is no answer to the appellant's delay argument that the trial Coordinator would not agree to provide earlier dates. The Crown cannot simply take "no" for an answer in the context of a re-trial. A greater sense of urgency is required, lest the culture of complacency the court warned of in Jordan be condoned.

R. v. McIssac, 2018 ONCA 650 at para. 63.

[206] The Crown should and could have taken a number of steps on October 20, 2017.

[207] First, the Crown should have been aware of the presumptive Jordan ceiling. An inquiry on the record of defence counsel if they were waiving s. 11(b) or were interested in obtaining an earlier date would have been helpful.

[208] Absent a clear and unequivocal waiver by the defence, the Crown should have requested the trial coordinator to look again for earlier dates with the knowledge that this case was in s. 11(b) danger. From comments by the trial coordinator it is clear that some time is kept for cases up for the second time which I presume to be because second trial dates are in greater s. 11(b) danger.

[209] Furthermore, there was some indication that the earliest date was February 25, 2019 if it was dealt with in the domestic queue suggesting that there were earlier dates in other queues. Consideration should have been given to putting it another queue. Although I do not have sufficient evidence to make a specific finding, it was well known that the delay in Domestic cases exceeds the delay in other streams.

[210] It would have been a simple matter for the Crown to ask the matter to be placed before the Local Administrative Judge to see if the court would authorize an earlier date. It is trite, but the court has the final word on trial dates not the trial coordinator. The Local Administrative Judge or his designate sits every Friday in part to deal with scheduling issues. October 20 was a Friday. It would have been simple to transfer the Information to his court that day or have it put before him on any other Friday.

[211] Pre-Morin conduct was sometimes described as acquiescence to the inevitable. If you don’t try to correct the problem, it is inevitable but in the vast majority of cases if efforts are made the problem can be resolved. What is likely inevitable is that if trial dates are set beyond the presumptive ceiling there will be a s. 11(b) motion. If the motion is successful, it is inevitable, given the minimum remedy the charges will be stayed.

[212] If the matter is placed before the Local Administrative Judges there are a number of tools available. Further review by the trial coordinator will occur and that may find time. The LAJ may authorize time otherwise being reserved be freed up. Consideration can be given to a per diem justice being assigned and a court room being opened up. The court has a constitutional obligation to protect Charter Rights and will go to great lengths, however the Crown must bring it to the court’s attention.

[213] In some cases the Crown may consider having the case dealt with in a neighbouring jurisdiction with a lesser backlog. This is particularly relevant in this case as in addition to delay concerns, although the sexual assaults were alleged to have occurred in Ottawa, the criminal harassment was alleged to have occurred in Whitewater Township, which cases would normally be heard in Pembroke. The use of a change of trial location within a judicial region is not a novel concept and was discussed by the Supreme Court of Canada in Askov. Furthermore, when I was sitting in Certificate of Readiness Court last week, when dealing once again with one of Mr. Edelson’s cases, the Crown indicated in addition to relatively early Ottawa dates that were being made available, that even earlier dates were available in Perth, if the accused wished an earlier date.

[214] There are a number of steps the Crown can take and although McIssac was not decided until 2018, it is not unfair to expect the Crown to have done something or said something in 2017.

[215] Interestingly, in course of this argument, it came to my attention that in another of Mr. Edelson’s cases (Montsion) that was scheduled for three to four months in the period of February to May 2019 in the Ontario Court of Justice, the Crown had brought a motion to have Mr. Edelson removed as counsel and an earlier date be set. Ironically this motion was to be spoken to in a different court on the same day, October 20, 2017.

[216] Given the Crown in the Montsion case was on October 20, 2017 seeking both an earlier date than February 2019 and the removal of Mr. Edelson if necessary to allow that, it is reasonable to infer earlier dates were potentially available for that case. In the course of argument, I inquired of Crown counsel how these dates were obtained, if they were, or what happened to them, but I was not provided an answer.

[217] In any event, it clearly illustrates that the Crown was aware of their responsibility to seek earlier dates and the availability of recourse to the Local Administrative Judge.

[218] I found this case was not complex. However, even if it was complex, to rely on exceptional circumstances to justify a period of time in excess of the presumptive ceiling the Crown must:

“Show that it took reasonable steps to avoid and address the problem where possible to have done so. It need not, however, prove that the steps taken were ultimately successful. Nor is the Crown required to “exhaust every conceivable option for redressing the event in question to satisfy the reasonable diligence requirement”.

[219] In this case the Crown did and said nothing from October 20, 2017 on, to address the institutional delay and therefore clearly has not shown that it took reasonable steps to avoid and address the problem.

[220] I find that the net delay exceeds the presumptive ceiling. There are no exceptional circumstances shown that could justify a delay in excess of the presumptive ceiling. The accused’s s. 11(b) rights have been violated. The minimum remedy is a stay of proceedings. Accordingly I order a stay of proceedings.

Post Script

[221] As indicated in R. v Askov, a quarter of a century ago, a stay of proceedings for a violation of a s. 11(b) is, to say the least, most unfortunate and regrettable. It is obvious that the charges are serious. Yet, a trial can only be undertaken if the Charter right to trial within a reasonable time has not been infringed. In this case that right has been infringed and the sad result is that a stay of proceedings must be entered. To conclude otherwise would render meaningless a right enshrined in the Charter as the supreme law of the land.

[222] Trial judges want to hear trials not s. 11(b) motions.

[223] In Jordan, the Supreme Court of Canada issued a clarion call that rather than a retrospective analysis and attempts to redress s. 11(b), the courts and the parties should take steps to prevent violations of s. 11(b).

[224] Sadly, there will always be some violations of s. 11(b). However, violations or alleged violations on a first trial date should be exceedingly rare. They are almost always entirely preventable. I am sure others may have additional or more effective suggestions, however, I have the following comments to make about the procedures in Set Date Courts.

Procedure when a Trial Date is Set

[225] Many Set Date Courts are very busy and there will always be those who say initiatives or improvements are unrealistic.

[226] The material I have before me is very limited but it indicates that in our Set Date Courts (as opposed to the LAJ’s court), that although there may be very lengthy lists, the actual setting of trial dates is a small fraction of the cases and very often less than five a day.

[227] Taking an election and setting a trial date is a critical step in the process of a criminal charge. This is even more true post Jordan.

[228] All parties, the Crown, the defence and the court, should take the time it takes to get it right. This will reduce the number of times s. 11(b) is violated or even allegedly violated. It will also ensure an accurate record, which if an allegation of a violation does arise, is very important. It will go a long way to eliminating the retrospective analysis such as was done in this case with lengthy duelling affidavits of counsel. An ounce of prevention is worth a pound of cure.

[229] The Jordan presumptive ceiling was set so that there would be certainty and all parties in Set Date Court would know this critical date.

[230] In fact knowledge of this critical date is known to the parties from the swearing of the information.

[231] A new electronic form of the Information has been introduced in Ontario. On the front page it contains three boxes for completion: Arrest Date, 15 Month Flag, 18 Month Flag. The reason for this to be on the Information is obvious. Yet in Ottawa it is never completed. When the police service draft the Information this should be filled in. If it was filled in, when the date was set the clerk or the court could easily address the presumptive ceiling if for some reason the Crown failed to do so.

[232] When a trial date is being offered the Crown should always check their file for the Jordan presumptive ceiling before indicating the date is acceptable to the Crown.

[233] I am not aware of what internal steps take place in the Crown’s office following the setting of the date. It may be that there is a simple way of reviewing dates set to ensure they are presumptively compliant. Technology may exist so that when the trial date is entered into the file a warning is generated if it is not within the presumptive ceiling. In a civil context lawyers have tickler systems and other systems to respect limitation periods. The Crown should consider this if feasible.

[234] In court, if a date is set or proposed to be set outside the presumptive ceiling, immediate actions should be taken by the Crown. The responsibility lies with the Crown because the Crown is in position to know if the proposed dates raises s. 11(b) concerns and the Crown bears the onus of justifying delays that exceed the ceiling. (Conversely if there are s. 11(b) concerns when a date is offered under the presumptive ceiling it is the defence that has the onus of showing meaningful and sustained steps to expedite the proceedings.)

[235] Jordan has given everyone the certainty of a presumptive ceiling. When the date is being proposed outside the ceiling, I suggest the Crown should take the following steps.

[236] Inquire if the defence is waiving s. 11(b) for a period of time such that the proposed date is in compliance with the right to a trial in a reasonable time as set out in Jordan. Waiver, if it is present, is to be clear and unequivocal. The best way to determine this is to inquire on the record and have it stated on the record.

[237] If there is no waiver, the Crown should ask the clerk if there are any earlier dates available at trial coordination.

[238] If trial coordination advises that there are no earlier dates available, then the Crown has a choice between accepting a date with presumptive s. 11(b) issues or not accepting the response from trial coordination and asking the matter to be put before the Local Administrative Judge. The Crown should not simply take “no” for an answer when a trial date is being offered outside the presumptive ceiling.

[239] Similarly, the justice setting the date should not knowingly set a date outside the presumptive ceiling without an inquiry. If there is any doubt that the date may be a violation of s. 11(b) the justice should not set the date and should refer the matter to the Local Administrative Judge.

[240] When the matter is before the Local Administrative Judge the Crown should request a date that is presumptively s. 11(b) compliant.

[241] The Local Administrative Judge has a number of tools available. For example court availability that is being kept for other matters may be re-assigned. Alternatively a per-diem judge may be obtained so that the matter can be heard. There are many per diem judges available throughout the Province and frequently an earlier date can be obtained if a courtroom and staff are available.

[242] The court has the responsibility of protecting and enforcing the Charter. The court will use the resources available to ensure trials proceed within the constitutionally required time. However the Crown must advise the court of the problem as the court cannot know without being advised if there has been defence delay, waiver, discrete events, complexity and if the case requires additional administrative steps be taken to ensure the trial proceeds within a constitutionally required time.

[243] In the overwhelming percentage of cases the Local Administrative Judge is in a position to take steps to ensure the trial proceeds within the required time. However, he or she needs to be asked to exercise those powers. As indicated by the Court of Appeal in Jurkus, creative solutions can sometimes be found to accelerate matters, but such solutions will remain elusive unless the court is notified of the concern.

[244] Inevitably some cases will have s. 11(b) concerns or violations. However, s. 11(b) violations for the first scheduled trial date are entirely preventable. There is nothing inevitable about them.

Released: March 19, 2019

Signed: Justice Norman D. Boxall