Court File and Parties

Court: Ontario Court of Justice

Date: 2019-05-22

Court File No.: Kitchener 18-0737

Between:

Her Majesty the Queen

— AND —

Anna Maria Williams

Before: Justice G. F. Hearn

Heard on: April 23, 2019

Section 11(b) Charter Ruling released on: May 22, 2019

Counsel

S. McLean — counsel for the Crown

J. Drexler — counsel for the defendant Anna Maria Williams

HEARN J.:

INTRODUCTION

[1] The Applicant Anna Williams is charged with public mischief as set out in an information sworn January 26, 2018. The offence date alleged is November 12, 2017 and the informant named within the information is John Edwards, the estranged husband of the Applicant and the father of their three children.

[2] The matter was scheduled for trial for April 23 and May 27, 2019. On April 23, 2019 in addition to this application being scheduled to be heard there was also to be heard a third party records application which was to be brought by the defence. That particular application was abandoned and on April 23, 2019 the application herein was argued, submissions were made and judgment was reserved to May 22, 2019. The trial is scheduled currently to resume on May 27, 2019.

[3] The time between the swearing of the information and the scheduled trial dates as calculated by the Applicant is said to be 16 months and 1 day as of May 27, 2019.

[4] The Applicant claims her right to be tried within a reasonable time as set out in section 11(b) of the Charter of Rights and Freedoms has been breached and seeks a judicial stay of proceedings. The Crown opposes the application. Both counsel have filed factums and case law.

[5] There is also additional material on the application which was filed during submissions on consent. There is ultimately little dispute with respect to the factual background of the proceeding and the history of this matter which presents as somewhat unique and, as well, hopefully rare.

Events Preceding the Swearing of the Information

[6] On November 12, 2017 the Applicant telephoned the Waterloo Regional Police Service to report an assault against her by her estranged husband John Edwards. The police investigated the matter and that investigation included viewing a cell phone video shown to them by Mr. Edwards. It is acknowledged a copy of that video was e-mailed to the police on November 14, 2017. The police conducted and concluded their investigation and no charge was laid.

Events from January 26, 2018 to April 23, 2018

[7] On January 26, 2018 John Edwards swore to a private information in front of a justice of the peace in Kitchener alleging an offence of public mischief, particularizing that count alleging that the Applicant with intent to mislead caused the Waterloo Regional Police to enter into an investigation which caused John Edwards to be suspected of having committed an offence which had not been committed. The offence date alleged in the information is November 12, 2017 and related to the report by the Applicant to the police on that date.

[8] On January 26, 2018, as well, a date for a hearing in order for process to be issued was scheduled for February 15, 2018 ("the pre-enquette"). This was effectively a hearing which was to be conducted to determine whether process of the court, either a summons or a warrant, would issue to compel the appearance of Ms. Williams named in the information to answer to the charge.

February 15, 2018

[9] Pursuant to the Notice of Hearing Mr. Edwards appeared in the Ontario Court of Justice on February 15, 2018. At that time the Crown was present but indicated on the record that the Crown had not intervened in the proceeding as at that time. The justice of the peace sitting on that date viewed the private information from Mr. Edwards, noted the Notice of Hearing attached that was unsigned and made reference to the fact that there had been no proof of service of the Notice of Hearing on the Applicant. The justice of the peace then decided the matter would have to be adjourned to allow for such "personal service on the individual".

[10] At that time in addressing Mr. Edwards who was present and it would appear ready to proceed with the hearing as he had brought everything "relevant" to the court, the justice of the peace stated as follows:

"If I have proof that she's been served and she doesn't attend then at least I know she's had had that but at this point I can't tell that she's been actually served with the date. You may have other information but I need to have some kind of sworn affidavit that shows that she was served somehow. So that what that means for you, unfortunately is that the matter needs to go over."

[11] The justice of the peace inquired of Mr. Edwards whether he had brought his disclosure and he indicated he had. The justice of the peace then remanded the matter for "personal service" and the matter was adjourned seven weeks at the court's direction to April 3, 2018. The court also advised Mr. Edwards at that time that when the matter came back on the next occasion disclosure would be provided, to the Applicant presumably, and there was a "strong likelihood that won't be the date for hearing but we'll at least start the process". The Crown present on that date said nothing about the procedure and simply assisted Mr. Edwards in setting the date for the return.

April 3, 2018

[12] A "Summons to Accused" was served on the Applicant on February 26, 2018 requiring her to appear in person in court on April 3, 2018. On April 3, 2018 Ms. Williams did appear in the Ontario Court of Justice as did Mr. Edwards. It would appear from the transcript of the proceedings on that date that Mr. Edwards did not formally address the court and it appears only the Crown attending and Ms. Williams as well as the justice of the peace sitting had dialogue.

[13] The justice of the peace inquired of Ms. Williams whether or not she had received "disclosure". The Crown confirmed that she had not and the Crown suggested the matter return in a "few weeks for disclosure to be screened and provided and Ms. Williams to pick it up at the Crown's office and then hopefully on the return date both the informant and the accused will be present so that a hearing date can be set".

[14] Ms. Williams had comments on that day with respect to her personal situation which included among other things that she was living in Toronto with her three children and had travelled from Toronto on that morning at some expense. Ms. Williams also requested that the "charges be dropped".

[15] Ms. Williams further advised the court that she did not have legal representation and that she had never been served with a summons before and this was "all very new to me".

[16] Following Ms. Williams' comments, the Crown present on that date requested the court to allow a few comments to be put on the record to "clarify the process for Ms. Williams". The Crown stated as follows:

"I'm sure everyone here empathizes with her difficulty with transportation and finances, but that's not anything that anyone in this court can deal with for her. She does need to have the disclosure. She may be entitled to criminal Legal Aid. I don't know about the family Legal Aid but she may be entitled to that but Your Worship is quite right that she would need a screening form and the disclosure in hand to make that application. So I'm suggesting that she come back in a few weeks. We can certainly try and work with her on the date when that would be when she'd be able to come and do so but it is a matter that, at this time, the prosecution is moving forward with this offence so, we're not in a position today to withdraw the charges against Ms. Williams, and it will, at this point be proceeding."

[17] Further, the justice of the peace informed Ms. Williams that the information had been "laid" and the matter would proceed to a "hearing or a trial". The Crown confirmed the court's statement to Ms. Williams that she would be "required to attend on one of those dates". The discussion seems to have proceeded on the basis that Ms. Williams would receive the disclosure and she could then make an application for Legal Aid once she received the disclosure and the screening form and would receive some legal advice. Then "if the legal advice says you need to go to a hearing then you set it for hearing". Ms. Williams was "encouraged" by the Crown to receive the screening form and the disclosure and contact Legal Aid in order that her application for legal assistance might proceed.

[18] There was a further discussion with respect to the date the matter was to be adjourned to and after further input from Ms. Williams, and clearly not without difficulty, a further date was set for April 23, 2018. The Crown indicated that there were "steps in the process" and "we're not going to immediately put it to the hearing before you get your disclosure".

[19] The matter was then adjourned to April 23, 2018 for what the justice of the peace determined would not be a "long appearance" and it was "just a matter of you getting your disclosure, you can make your application for Legal Aid and at least from there you can set a hearing date". At that point Ms. Williams asked if the "hearing date" was an "actual trial" and the court indicated, "Well, it's a trial to determine if there's sufficient evidence to continue. So it's a two-step process". The matter was then formally adjourned to April 23, 2018.

April 23, 2018

[20] On April 23, 2018 Mr. Edwards appeared in court and, although Ms. Williams appeared as she was required to do, it seems finally the Crown on this particular day appreciated that the hearing to be conducted was in fact a "pre-enquette". The Crown had actually advised Ms. Williams, who never appeared in the courtroom but did attend at the courthouse, that she need not be there and that if she was "required to come back to court she would receive paperwork advising her of that". Of note, the Crown indicated as follows:

"This is a matter where, I think, unfortunately, over the court appearances there's been some confusion on the parts of those involved because it is originally a privately laid charge. What needs to be scheduled today is a pre-enquette hearing on a Thursday in 101. It looks like in the past some courts have put it over for personal service on Ms. Williams which is a bit premature given the charges, the pre-enquette hasn't actually taken place."

[21] Mr. Edwards appeared, indicated he was ready to proceed and a date for the pre-enquette was set. As noted, Ms. Williams did not appear in the courtroom as she was advised she did not have to, she left the courthouse before the date was set and after some discussion with Mr. Edwards as to what was required of him on the next appearance the matter was adjourned to May 3, 2018 for the pre-enquette and two hours was set aside.

May 3, 2018

[22] There is a transcript available for the court proceedings on this date only as it relates to the setting of a further date. It would appear a pre-enquette was finally conducted and the court ordered process and a summons was required to go out "compelling Ms. Williams to come to court to face the allegation". The court made it clear to Mr. Edwards that at that point he was "responsible for the prosecution" including the preparation of "all the disclosure". Mr. Edwards was also advised that copies of the disclosure should be provided for the Crown so they could assess it and determine whether they are "going to intervene on the case, at which time the state takes responsibility for the prosecution and then you become a potential witness". However, it was made clear by the justice of the peace (who happened to be the same justice of the peace that had been involved in at least one previous court proceeding) that until the Crown formally intervened Mr. Edwards was responsible for the providing of disclosure. The court told Mr. Edwards that he was effectively "the informant and prosecutor". At that time the Crown attorney present suggested that a six-week adjournment would be "appropriate" and the matter was then adjourned to June 14, 2018 and a "summons was ordered to go out".

[23] It is important to note that the justice of the peace sitting that day apparently reviewed the summons that had been attached to the information indicating service on Ms. Williams previously for the April 3, 2018 date which was originally dated February 15, 2018 and served on February 26, 2018 and decided to amend that summons, indicating a return date now of June 14, 2018 in Courtroom #101 at 9:00 a.m. The alteration was simply made on the summons issued and served previously and attached to the information. As will be seen, no service of that amended summons was ever effected. The matter was then adjourned to June 14, 2018.

June 14, 2018

[24] On this date a Crown attorney appeared as well as Mr. Edwards. The Crown advised that there had been a pre-enquette and the Crown's understanding was that there had been a summons issued for Ms. Williams. The Crown indicated they had "checked the documentation and it appears that she was served personally". The justice of the peace checked the summons that was attached to the information which indicates that Ms. Williams had in fact been served with that summons on February 26, 2018 (when, in fact, she was served with the summons returnable initially on April 3, 2018 and not with the amended summons) and the justice of the peace issued a bench warrant for her arrest. No further date was scheduled at that time.

July 8, 2018

[25] Ms. Williams was arrested pursuant to the warrant that had been issued on June 14, 2018 and at that time was released on a Promise to Appear on counts of public mischief and fail to attend court in accordance with a summons with a return date before the presiding justice or judge on September 21, 2018 at 9:00 a.m.

September 21, 2018

[26] On September 21, 2018 Ms. Williams did appear in court with the assistance of duty counsel and requested the matter be adjourned to allow the Legal Aid application which Ms. Williams had completed on that date to be reviewed and processed. At that time the presiding Crown indicated the matter was a "domestic violence matter" and should go to domestic violence court. The Crown also noted that the matter had been "case managed by them for some period of time". The Crown further advised as to the additional charge of fail to appear and that the "substantive matter has been before the court as far back as February of this year without anything happening on this matter, so she needs to move the matter forward". The matter was then adjourned formally to October 18, 2018 in order to allow Ms. Williams to firm up her Legal Aid application and retain counsel.

October 18, 2018

[27] On October 18, 2018 Ms. Williams appeared again and duty counsel spoke to the matter on her behalf. She had received disclosure and requested an adjournment now that she had been approved for Legal Aid to retain counsel. Duty counsel suggested November 8, 2018 as an agreeable date and the matter was adjourned to that date in order for counsel to be retained and review disclosure.

November 8, 2018

[28] On November 8, 2018 Mr. Drexler appeared on record for the first time indicating that he was acting on behalf of Ms. Williams and the matter was adjourned to allow a Crown pre-trial which had already been scheduled for November 27, 2018 to take place. The matter was adjourned accordingly to November 29, 2018.

November 29, 2018

[29] On November 29, 2018 Mr. Drexler appeared both as counsel and as agent for Ms. Williams, the Crown having elected to proceed summarily. At that time Mr. Drexler advised the court the pre-trial had been conducted and that there was some outstanding disclosure and in particular a video that apparently was said to be in the possession of the "complainant". Both defence and the Crown agreed on consent to have the matter adjourned to December 20, 2018 in order to allow counsel to receive "additional disclosure and for a further Crown pre-trial".

December 20, 2018

[30] On December 20, 2018 Mr. Drexler again appeared as counsel and as agent. Defence counsel advised the court that the matter had been pre-tried on November 27, 2018 and he had agreed with the Crown that they would await the cell phone video apparently taken by the complainant and once that arrived the Crown and he would conduct a further pre-trial. The defence had not as yet received the cell phone video, nor had apparently the Crown.

[31] Defence suggested the matter go to January 17 or January 24, 2019 "for that video to arrive". The Crown agreed in principle and asked counsel if a judicial pre-trial would be required as it would "make sense to set the judicial pre-trial, get the video and then have that discussion". Defence counsel agreed to set up a judicial pre-trial and the Crown stated it would send a "follow-up right now about the disclosure, the cell phone video".

[32] The court expressed some concern about the judicial pre-trial taking place prior to the receipt of the video. Counsel advised he was not sure if the video still existed but did note that on November 12, 2017 the complainant "showed the video to the police officer" and when the private information was laid it was part of the "application".

[33] The Crown advised that if the video had been played in the context of the pre-enquette it would have been marked as an exhibit. The Crown checked as they had a list of the exhibits from the pre-enquette and the video was not shown as an exhibit. The Crown indicated the Crown wished to "keep things moving".

[34] At the court's direction the matter was then adjourned to January 10, 2019 in order for the Crown and the defence to receive the video.

January 10, 2019

[35] On January 10, 2019 Mr. Drexler again appeared as agent and counsel. Again defence counsel advised he had not received the additional disclosure and the Crown advised as follows:

"There is a video that we've been waiting on. I spoke with the complainant in this matter yesterday, who advises me that he sent it through on a number of occasions. The last time I was in this court we sent an urgent request to the officer-in-charge which was responded to saying that he was sending the video and that he had sent it on January the 1st, 2019 again. Mysteriously I don't have it. I would suggest that my friend book a pre-trial and that we'll have the video to him before the pre-trial because I think it's – I want to move things along and now that I've taken a look at this file I will personally call the officer-in-charge and I will drive to the police division and collect the video if that's what's required. So, I'd ask that we move it forward."

[36] Defence counsel suggested a four-week period to February 7, 2019 and then agreed in view of the disclosure that would be forthcoming it would be appropriate to have a further Crown pre-trial on January 21, 2019 and have the matter adjourned otherwise to January 24, 2019.

January 24, 2019

[37] On January 24, 2019 Mr. Drexler appeared, as did the Crown. Mr. Drexler advised the court that there had been a Crown pre-trial and that it had been agreed to have a further Crown pre-trial. Mr. Drexler advised that he had received an e-mail from the Crown indicating a judicial pre-trial should be held instead and defence counsel suggested the matter go over to February 21, 2019 in order that a judicial pre-trial could be conducted in the interim. The matter was adjourned accordingly.

February 21, 2019

[38] On February 21, 2019 little is said on the record with respect to the setting of dates, save and except that a trial confirmation date of March 15, 2019 was scheduled with April 23, 2019 to follow for what was described as a "one day for a third party records application and an 11(b) application" and then a further date of May 27, 2019 noted by defence counsel as being "one day for a trial". After hearing from defence counsel those dates were confirmed by the sitting justice of the peace.

March 15, 2019

[39] March 15, 2019 was the date set for the confirmation hearing. That is a hearing that is scheduled prior to the trial actually commencing in order that the court can confirm that counsel are ready to proceed on the dates that have been scheduled. Various items are reviewed at that hearing including the issue of disclosure, service of materials, etc. When this matter was argued on April 23, 2019 counsel for the Applicant had not ordered the transcript from the proceedings on March 15, 2019. What took place on that date was important and as a result the matter was held down in order that counsel could properly address the absence of the transcript of proceedings on that date.

[40] Counsel were able to agree on a Statement of Facts as to what occurred on that date and that statement has been filed as an exhibit on the application. Basically, the agreed statement acknowledges that both the trial Crown, Ms. McLean, and Mr. Drexler were present at the confirmation hearing. The presiding justice inquired as to whether or not all parties were prepared to proceed with the trial on May 27, 2019 and the applications both with respect to section 11(b) and third party records on April 23, 2019.

[41] At that time the Crown indicated they had not received any material from the defence with respect to either application and defence counsel indicated that the materials with respect to both would be filed by March 19, 2019. Defence counsel indicated to the court that he was prepared to argue both the 11(b) and third party records application on April 23, 2019.

[42] The court inquired of the Crown as to whether or not the Crown anticipated any delay in obtaining the third party records and the Crown properly advised the court that the records being sought were not in its power, possession or control and that it would be up to the defence to obtain or access them. The Crown also advised the court that as far as the Crown was aware there was no outstanding disclosure and, if there was, defence counsel was to advise in writing. Following the completion of the submissions the matter was then adjourned for the applications to be heard on April 23, 2019 and thereafter to be adjourned to May 27, 2019 for trial.

[43] The records will show that the Applicant's factum with respect to the 11(b) application was served on March 19, 2019 with the Respondent's factum and supporting materials received by the trial co-ordinator on April 8, 2019.

Additional Events

[44] Further material has been filed with the court with respect to other events which took place during the relevant timeframe. Specifically, there is an affidavit of a student at law filed on behalf of the Applicant sworn April 23, 2019 (filed with the consent of the Crown) which sets out that a Crown pre-trial was conducted in this matter on November 27, 2018. Following that pre-trial by e-mail dated the same date the Crown had written to defence counsel indicating that a request had been made for the police to provide the cell phone video which had been the subject of discussions and indicating that upon receipt of that disclosure the Crown would review the file to ensure it is "in a position to proceed". The Crown also suggested it might be beneficial once the disclosure was received to have a further Crown pre-trial and suggested in the e-mail that although defence counsel had mentioned a judicial pre-trial would be desirable, the Crown felt that might be premature until the disclosure had been received. It was suggested that the matter be adjourned three weeks for that disclosure to be received.

[45] Filed as an exhibit to that affidavit is an e-mail dated January 23, 2019 that was completed following a second Crown pre-trial on January 21, 2019. That e-mail confirmed a second Crown pre-trial had taken place on January 21, 2019 and it was suggested by the Crown at that time that a judicial pre-trial be scheduled rather than a further Crown pre-trial. On January 24, 2019 the same Crown wrote to defence counsel suggesting that the selection process for the judicial pre-trial should be set up but "not set it too quickly" although it was to be scheduled before the next court appearance so that defence counsel "can get all of that information". All of that information was apparently meant to refer to an expert's report that the defence was to obtain with respect to the cell phone video which had finally been disclosed. Defence counsel specifically referred to the time estimate for such a report in his e-mail to the Crown on January 24, 2019.

[46] The Crown has also filed an affidavit of the case management co-ordinator with respect to the domestic violence team in the Waterloo Region Crown Attorney's Office. That affidavit, among other things, sets out that on November 15, 2018 defence counsel sent a letter to the Crown's office requesting disclosure. One of the items requested was the cell phone video that had been taken allegedly by John Edwards on November 12, 2017. No other requests in writing were made for disclosure.

[47] The Crown pre-trial was held on November 27, 2018 and at that pre-trial it became clear that the matter would proceed to trial and that a judicial pre-trial would be required. On the same date defence counsel wrote to the trial co-ordinator requesting a judicial pre-trial. Within half an hour of the original e-mail defence counsel again e-mailed the trial co-ordinator cancelling that request as there was to be another Crown pre-trial conducted prior to the judicial pre-trial.

[48] On November 27, 2018 the Crown ascertained that the cell phone video had not been made an exhibit at the pre-enquette and on the same date the Crown wrote to the police requesting the cell phone video be provided. The Crown made two follow-up requests for the video to the police on December 20, 2018 and again on January 2, 2019. Finally, the Crown followed up on January 2, 2019 by leaving a voicemail on the telephone for the investigating officer.

[49] On January 4, 2019 the Crown received an e-mail from the investigating officer stating that he had obtained the video and would be sending through the disclosure. That video was received by the Crown's office on January 10, 2019 and was disclosed to defence counsel on January 11, 2019.

[50] After receipt of the cell phone video on January 11, 2019 a second Crown pre-trial was conducted on January 21, 2019 at which time both the Crown and the defence agreed that a judicial pre-trial would be necessary. The request for such a pre-trial was made on January 28, 2019 and in the request defence counsel indicated he was not available until February 14, 2019 and that both he and the Crown were requesting a judicial pre-trial close to the next court date scheduled for February 21, 2019. Ultimately, the judicial pre-trial was scheduled for February 15, 2019.

[51] That judicial pre-trial took place and on February 21, 2019 the trial dates were scheduled.

[52] Further, notwithstanding defence counsel assuring the court on March 15, 2019 that both the application now before the court and the third party records application would proceed on April 23, 2019, on March 22, 2019 defence counsel notified the Crown that the Applicant would be abandoning the third party records application. Defence counsel did not notify the trial co-ordinator at that time, although the Crown did so on April 5, 2019.

[53] The Crown also advised the trial co-ordinator and defence counsel that they would now be in a position to start calling evidence immediately after the 11(b) application had been heard. On April 7, 2019 defence counsel confirmed that he was prepared to do so, subject to the court's direction, once the 11(b) application had been heard on that date.

[54] It is of note that following submissions on the 11(b) issue on April 23, 2019 the court did in fact hear from one witness, a civilian, in order to accommodate that witness and not have him return. No other evidence was heard. The trial is scheduled to continue on May 27, 2019.

APPLICABLE LEGAL PRINCIPLES

[55] Section 11(b) of the Charter of Rights and Freedoms reads as follows:

"11. Any person charged with an offence has the right…

(b) to be tried within a reasonable time;"

[56] The analytical framework for applications under section 11(b) is set out in the Supreme Court of Canada decisions in R. v. Jordan, 2016 SCC 27, R. v. Williamson, 2016 SCC 28, and R. v. Cody, 2017 SCC 31.

[57] In R. v. Jordan the Supreme Court noted that timely justice is one of the hallmarks of a free and democratic society. Section 11(b) of the Charter attests to that in that it guarantees the right of persons charged with an offence to be tried within a reasonable time.

[58] There is an expectation of the public that the criminal justice system will bring accused persons to trial expeditiously. As the Supreme Court observed:

"As the months following a criminal charge become years, everyone suffers. Accused persons remain in a state of uncertainty, often in pre-trial detention. Victims and their families who, in many cases, have suffered tragic losses cannot move forward with their lives. And the public, whose interest is served by promptly bringing those charged with criminal offences to trial, is justifiably frustrated by watching years pass before a trial occurs.

An efficient criminal justice system is therefore of utmost importance. The ability to provide fair trials within a reasonable time is an indicator of the health and proper functioning of the system itself. The stakes are indisputably high."

[59] In Jordan the court then abandoned the existing analytical framework under section 11(b) (see R. v. Morin, [1992] 1 S.C.R. 771) and set out a new framework which mandates that time to trial delay in the provincial court is presumptively unreasonable where the delay exceeds 18 months.

[60] The 11(b) clock starts ticking the day the information is sworn and stops when the evidence is completed and a verdict is reached. Relevant in this particular case is the fact that there is no indication that the Supreme Court in Jordan wished to alter the principle that section 11(b) delays begin to run from the swearing of the information and not from the date of the arrest. (See R. v. Gandhi, 2016 ONSC 5612, R. v. Kalanj, 1989 [1] S.C.R. 1594, and R. v. K.E., 2013 ONCA 175, where the Ontario Court of Appeal clearly indicated that it was well settled that a person is "charged with an offence" within section 11(b) of the Charter when an information is sworn alleging an offence against him or her.)

[61] In R. v. Coulter, 2016 ONCA 704, the Ontario Court of Appeal provided a helpful summary of the framework to be applied commencing at paragraph 34.

A. The New Framework Summarized

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

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

[36] Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).

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

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

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

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

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

B. Key Elements in the New Framework

(1) Defence Delay

[42] Defence delay has two components: (1) that arising from defence waiver; and (2) delay caused solely by the conduct of the defence ("defence-caused delay") (Jordan, paras. 61 and 63).

[43] Waiver can be explicit or implicit but, in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights (Jordan, para. 61).

[44] Defence-caused delay is comprised of situations where the acts of the defence either directly caused the delay or are shown to be a deliberate and calculated tactic employed to delay the trial. Frivolous applications and requests are the most straightforward examples of defence delay (Jordan, para. 63). Where the court and the Crown are ready to proceed but the defence is not, the defence will have directly caused the delay (Jordan, para. 64).

(2) Exceptional Circumstances

[45] If the Net Delay exceeds the presumptive ceiling, the onus is on the Crown to rebut the presumption of unreasonableness based on the presence of exceptional circumstances.

[46] Exceptional circumstances lie outside the Crown's control in that: (1) they are reasonably unforeseen or reasonably unavoidable; and (2) Crown counsel cannot reasonably remedy the delays emanating from the circumstances once they arise. Such circumstances need not be rare or entirely uncommon (Jordan, para. 69).

[47] An exceptional circumstance is the only basis upon which the Crown can discharge its burden to justify a Net Delay that exceeds the ceiling. The seriousness or gravity of the offence cannot be relied on. Nor can chronic institutional delay or the absence of prejudice to the accused (Jordan, para. 81).

[48] The list of exceptional circumstances is not closed but, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

(a) Discrete Events

[49] An illustration of a discrete event that will generally qualify is a medical or family emergency on the part of the accused, important witnesses, counsel or the trial judge (Jordan, para. 72).

[50] The period of delay caused by any discrete event must be subtracted from the Net Delay for the purpose of determining whether the presumptive ceiling has been reached. However, any portion of the delay caused by a discrete event that the Crown or system could reasonably have mitigated may not be subtracted (Jordan, para. 75).

(b) Particularly Complex Cases

[51] Particularly complex cases are cases that, because of the nature of the evidence or issues (or both), require an inordinate amount of trial or preparation time such that the delay is justified (Jordan, at para. 77). The seriousness or gravity of the offence cannot be relied on to establish that the case is particularly complex (Jordan, para. 81).

[52] Where the trial judge finds that the case was particularly complex such that the time the case has taken is justified, the delay is reasonable and no stay will issue. No further analysis is required (Jordan, para. 80).

(3) Remaining Delay is Below the Presumptive Ceiling

[53] If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48). To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings ("defence initiative"); and (2) the case took markedly longer than it reasonably should have. Absent both of these two factors, the s. 11(b) application must fail (Jordan, para. 82).

[54] Stays beneath the presumptive ceiling should be granted only in clear cases (Jordan, para. 83).

ANALYSIS

Calculation of Net Delay

[62] As noted previously, the total delay in this matter from the time the information was sworn until the date the trial is anticipated to be completed is 16 months, one day.

[63] With respect to defence delay, Jordan sets out that defence delay comprises delays waived by the defence and delays caused solely or directly by the defence's conduct. Defence actions legitimately taken to respond to the charge do not constitute defence delay. As set out in paragraphs 63 and 64 of Jordan, deliberate and calculated defence tactics aimed at causing delay which include frivolous applications and requests are the most straightforward examples of defence delay. Another example is where the defence will have directly caused the delay and the Crown is ready to proceed but the defence is not.

[64] As also noted in Jordan (see paragraph 65), the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence.

[65] In this case, following process issuing Ms. Williams' first appearance in court was on September 21, 2018. At that time with the assistance of duty counsel she requested an adjournment to allow her Legal Aid application to proceed. The matter was then adjourned to October 18, 2018 at which time it was confirmed that Ms. Williams had received "disclosure", had received a certificate, was in a position to retain counsel and the matter was adjourned to November 8, 2018. On November 8, 2018 counsel of record appeared for the first time. I calculate this to be approximately one and a half months where the matter was delayed notwithstanding the Crown and the court were apparently ready to proceed in order that Ms. Williams might retain counsel and I deduct that period of time from the total delay.

[66] I have reviewed the record thoroughly and considered the submissions of counsel and I see no other defence delay in this matter that was in place as anticipated in Jordan from the time Mr. Drexler was retained until the first day of trial. I have considered the requests for disclosure that were made from day one when Mr. Drexler first appeared and continuing until January 2019 with respect to the disclosure of the cell phone video. The adjournments during that period of time were short adjournments to allow the Crown to continue to pursue that video. It was a first party record and it really escapes the court to understand how it took so long to get that particular video given the fact that, as set out in the factum of the Applicant, it appears the cell phone video was presented by Mr. Edwards to the police back in November 2017. Further, the requests continued to be made without success until January 2019 and it seems to have been only complied with and only disclosed to the Crown by the police, or at least provided by the police, after the Crown attorney in January 2019 indicated that she would call the officer-in-charge and drive to the police division and collect the video "if that's what's required". In my view, defence was simply exercising due diligence in requesting the video which clearly was a vital part of the disclosure.

[67] I have also considered the fact that defence counsel had indicated when the trial dates were scheduled that two applications would be brought, the application currently before the court and a third party records application. As a result, I am satisfied that the setting of the time allotted for the trial and the application was appropriate and apparently counsel agreed when they set the two dates.

[68] On March 15, 2019 defence counsel appeared at the confirmation hearing and confirmed that both applications would proceed. It was a week later and without notification to the trial co-ordinator until into April, and then by the Crown, that the defence had indicated to the Crown that it would not be proceeding with the third party records application. There is therefore an argument that the time estimate for the trial was not realistically addressed by defence counsel, at least with respect to the third party records application. No material had even been served on that at the time of the confirmation hearing and defence counsel did not take steps to address whether or not the application would be made at all until what appears to be almost the last moment.

[69] In any event, I have considered that but I have also considered the fact that when defence counsel indicated they would not proceed with the third party records application the Crown suggested that the 11(b) matter could proceed and the hearing of evidence could start thereafter. Defence counsel agreed that could be done, subject to the court's discretion. That in fact was done after the application under 11(b) was heard, judgment was reserved and in order to accommodate a civilian witness who was to be called at trial by the Crown, that witness was in fact called and completed. As a result, I do not consider the abandonment of the third party records application one week after having confirmed it would proceed as a delay tactic.

[70] As a result, I calculate the net delay in this matter to be approximately 14 and a half months. As the net delay does not exceed the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.

[71] As again set out in Jordan (see paragraph 48), in order to do that the defence must establish two things:

(1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings ("defence initiative"), and

(2) the case took markedly longer than it reasonably should have.

Unless both factors are present Jordan dictates that the section 11(b) application must fail. Jordan also made it clear that the granting of a stay where the net delay is below the presumptive ceiling should only be granted in very clear cases.

Did the Defence Take Meaningful and Sustained Steps to Expedite the Proceedings?

[72] As noted, Mr. Drexler first appeared on the record on November 8, 2018. It would appear that after Ms. Williams' first appearance in September 2018 she proceeded in a timely fashion to advance her application for Legal Aid and retain counsel. She had received some disclosure from the Crown (and apparently also received disclosure back in April 2018 prior to process being confirmed and one wonders why that disclosure did not include the cell phone video), and then upon receipt of the certificate took steps to retain counsel, again in a timely manner.

[73] Once Mr. Drexler was on the record I have already found that he acted as a diligent defence counsel would in attempting to obtain disclosure of the cell phone video. It was mentioned on virtually every court appearance until finally it was produced. He made arrangements to conduct two Crown pre-trials, a judicial pre-trial and finally once the video was received in January 2019 was in a position to set trial dates. The record when the dates were set does not indicate what dates otherwise might have been offered but the Certificate of Compliance indicates dates that are even later than the dates that were suggested. As the record does not show I would be only guessing but I would think that there was a concern with respect to how long this matter had been in the system and both the Crown and the defence took steps to try to obtain the earliest dates that worked for both of them and the court.

[74] The Crown submits that the defendant has conducted itself in a "manner that is inconsistent with a genuine desire for an early trial". With respect, I disagree. I keep in mind the conduct that the Crown refers to is only since the defence counsel came on board. Prior to that, a period of approximately 10 months, (defence counsel had appeared first on November 8, 2018) the only real defence delay was when Ms. Williams requested an adjournment in order to make the application for Legal Aid and retain counsel.

[75] The Crown argues disclosure was made to Ms. Williams on September 21, 2018 and on October 18, 2018 duty counsel confirmed disclosure was complete, all of which occurred prior to Mr. Drexler's involvement. It is of note as well that Ms. Williams was before the court in April 2018, first on April 3, 2018 when the matter was adjourned for disclosure and again at the courthouse on April 23, 2018 when disclosure is said to have been provided. It was at that time, April 23, 2018 that Ms. Williams was told there was no requirement for her to be there and if the matter proceeded further she would be advised.

[76] The Crown was involved with this matter throughout, as early as February 2018 when a representative of the Crown appeared and thereafter at all hearings. I say that fully appreciating the Crown did not formally intervene it seems until process had been confirmed. I will have more to say on that issue, but at this point I simply note that somewhere along the way before counsel required it the cell phone video should have been apparent to someone. Indeed, it was part of the investigation in November 2017 and a copy is said to have been provided to the police by Mr. Edwards at that time. Presumably, it was a factor in the police investigating Ms. Williams' complaint in November 2017.

[77] Defence counsel requested what clearly then would have been a relevant item, an item which was a first party request, and the Crown had an obligation to respond and provide that disclosure. That item was not received by the Crown until January 2019 after a number of requests by the Crown, commencing apparently in November 2018, made to the police and requested by the defence as well as the Crown on the record.

[78] It seems the Crown was also becoming impatient with the failure to receive the disclosure as noted by the comments made by the presiding Crown on January 10, 2019 to the court.

[79] The record, in my view, does not disclose anything but a sustained and meaningful effort by the defence to get the disclosure. Two Crown pre-trials were conducted and I agree with the defence it would have been a pointless exercise to arrange for a judicial pre-trial before the video, which everyone considered relevant, being provided and reviewed. In any event, in the overall scheme of things the delay that was occasioned in arranging for the judicial pre-trial was minimal and, again as I say, necessary in my view.

[80] The Crown also argues the defence failed to put it on notice that delay was a factor. Given what had taken place up to defence counsel even being retained and first appearing in November 2018, the Crown reasonably should have been aware delay was a factor. The Crown had appeared on each court appearance and although not formally intervening until the process had been confirmed apparently, was aware of what was taking place and that time was passing. To argue that defence failed to put the Crown on notice would be similar to telling someone standing in the middle of a barn fire that the building was on fire.

[81] After defence counsel got involved in November 2018 until the first day scheduled for the application on April 23, 2019 is approximately five months. For a good three months of that time defence counsel, and in fairness, the Crown, were trying to get the disclosure that had been requested. Ultimately I find that defence counsel acted reasonably and diligently and fulfilled his obligations to his client to obtain full and relevant disclosure.

[82] I do agree with the Crown that the defence comment in their factum that they could have stayed silent on the issue of the video would be inappropriate and contrary to counsel's obligation but that is not what happened. It is not what the record indicates and I take the comment that is contained in the defence factum in that regard as mere puffery and posturing.

[83] Once defence counsel was on the record, in my view, the matter moved as quickly as possible given the issue of outstanding disclosure. There may have been a few days here and there that were offered that were not accepted on the record but the record also indicates that the defendant would agree to earlier dates as suggested and the longer dates suggested were only suggested on the record I have to ensure that the outstanding disclosure would in fact be received before the next step was taken.

Has the Case Taken Markedly Longer Than It Reasonably Should Have?

[84] Under the Jordan framework the second condition requires that the defence must show, where the time to trial is below the presumptive ceiling, that the case "markedly" exceeded the reasonable time requirement of the case.

[85] In assessing reasonable time requirements of a case, Jordan states that the court should consider, among other things, the complexity of the case, the time such a case usually takes in the local jurisdiction and whether the Crown took reasonable steps to expedite the proceedings. Jordan states that "where the Crown has done its part to ensure that the matter proceeds expeditiously including genuinely responding to defence efforts, seeking opportunities to streamline the issues and evidence, and adapting to evolving circumstances as the case progresses, it is unlikely that the reasonable time requirements of the case will have been markedly exceeded." (See paragraph 90 of Jordan).

[86] The matter before the court is not a complex case. In fact, the trial itself and the calling of evidence is scheduled for one day, yet it has been in the system effectively since January 26, 2018. Crown counsel argues that, although the time for calculating the period to trial runs from the date of the information, there is a distinction where a private information is sworn and then the process is not issued for some time thereafter. The Crown argues effectively that Ms. Williams did not become "an accused" until process issued on May 3, 2018 as it was only at that time that a "criminal prosecution" had been commenced through the operation of section 507.1 of the Criminal Code. Crown counsel argues that the period of time leading up to the pre-enquette should not involve the same "level of scrutiny that is applied to the proceedings thereafter".

[87] In view of the facts in this particular case I disagree. In my view, good portions of the period of time from January 26, 2018 until November 8, 2018 when counsel finally gets on board could have been reasonably reduced significantly if the Crown had taken steps to mitigate portions of that delay occasioned by that period of time. It seems to me that the Crown effectively was complicit in some of the unnecessary delay caused and as well, unfortunately, so was the court. The Crown or the system, in my view, could certainly have reasonably mitigated a good portion of that delay.

[88] I suspect after having sat in Kitchener for many years that arranging for a one day trial for an individual out of custody, even with pre-trial motions as anticipated for a one day period, a trial should have reasonably been scheduled within a 9 to 12-month period of time. Indeed, the timeframe may have been even shorter given a privately laid information such as here. The matter here has been before the court for a net delay of over 14 months and a significant portion of that time encompasses the period from the first court appearance for Mr. Edwards and the date of the first court appearance by Ms. Williams.

[89] I have come to the conclusion that the defence has in fact demonstrated this case took markedly more time than reasonably necessary. I say that for the following reasons:

(1) This is a privately laid information that was to be before the court for a first occasion on February 15, 2018, a short time after the information had been sworn on January 26, 2018. As it was a privately sworn information section 507.1 of the Criminal Code was in place and it regulated the conduct of a pre-enquette to determine whether process should issue. It also describes the consequences that follow when the process is not issued. As noted in R. v. McHale, 2010 ONCA 361, the hearing is held to maintain the vitality of private prosecutions but at the same time takes steps to ensure that only those with legitimacy continue. The presiding justice at that hearing hears and considers the allegations of the private informant and witnesses and the Attorney General is entitled to be present and to be served with notice of the pre-enquette and can do so without at that point being deemed to intervene.

The hearing is held in camera and, as noted in McHale, affords the informant an opportunity to persuade the justice that he or she should issue process to compel the person named in the information, i.e. Ms. Williams, to appear in court to respond to the allegations contained in the information. There is nothing in section 507.1 that requires, or even entitles, the person named within the information to notice of the pre-enquette, nor does that person have any status at that hearing.

(2) On the swearing of the information Mr. Edwards was advised, as evidenced by the Notice of Hearing, that the pre-enquette, or at least the date scheduled for the pre-enquette would be determined on February 15, 2018. Mr. Edwards appeared at that time and, for some reason, the presiding justice felt it was appropriate to have service on Ms. Williams. It was the court that ordered in the presence of a Crown attorney, who did not object or point out any areas of concern with that direction, the matter be adjourned to allow service to take place. The matter was adjourned to April 3, 2018.

(3) Ms. Williams did appear after being served on February 26, 2018 with a summons. The record would indicate that she arrived at court after some difficulty given travel arrangements and was obviously struggling to understand the proceeding and what the next step would be. The court and the Crown inquired as to whether or not she had received "disclosure" and the procedure that she was to undertake from that point forward, i.e. get and review disclosure, apply for Legal Aid, and details were provided by the Crown attorney in court on that date and confirmed by the justice of the peace. The matter was then adjourned to April 23, 2018 in order for that to take place. Again, no obligation or requirement that Ms. Williams be involved at that point. Indeed, even here the Crown argues that Ms. Williams, although charged, was not an accused until process had actually been issued. Still, notwithstanding that, on April 3, 2018 we are certainly treating Ms. Williams as an accused without any reference at all to the pre-enquette.

(4) On April 23, 2018 the Crown seems to finally have been aware that a pre-enquette had not been held and told Ms. Williams, who did not even appear in the courtroom but had appeared at the courthouse, that she need not attend until further notice. To say Ms. Williams must have been somewhat confused at that point is probably an understatement. Although I do not have anything before me to indicate that, certainly it is a reasonable inference that any person who apparently had never been involved in the criminal process before might be somewhat confused given what had taken place up to April 23, 2018.

(5) The pre-enquette was held on May 3, 2018, process was issued and a summons was required by the court to be served on Ms. Williams. Here again the system basically lets Ms. Williams down. The presiding court officer simply took the summons that had originally been served on Ms. Williams requiring her to appear on April 3, 2018 and which had been served on February 26, 2018, and in handwritten form appears to have changed the date on that summons to June 14, 2018, the next scheduled date after process issued. That summons as amended was never served on Ms. Williams and she never did receive notice of the June 14, 2018 date.

(6) However, on June 14, 2018 with the Crown attorney present as well as Mr. Edwards who must be equally confused at this point as to what is going on, the justice of the peace issues a warrant for the arrest of Ms. Williams who did not appear in the mistaken belief that she had been served with the summons that had been issued on May 3, 2018. That belief arose as a result of reviewing the amended summons that was attached to the information and looking at the Affidavit of Service which would indicate that Ms. Williams was advised on February 26, 2018 by service of the June 14, 2018 date when, in fact, she had not been. The matter is compounded as well by the Crown on that particular date stating that they had also checked the documentation and confirmed that service appears to have been made on Ms. Williams. No one ever mentioned to the court, nor looked at the record on the information itself to see that the pre-enquette had only been held on May 3, 2018 and process had only issued on that date. It was at that time the June 14, 2018 date was scheduled and one wonders how anyone could determine that on February 26, 2018 Ms. Williams was advised of the June 14, 2018 date. The paperwork certainly would contribute to that misunderstanding but a complete knowledge of the history of the matter up to that point, which the Crown attorney's office should have been aware of as well as perhaps the court by reviewing the information, was absent. So what we had was a warrant being issued with no proof of service ultimately and Ms. Williams being arrested on July 8, 2018.

(7) Ms. Williams was arrested, released on a Promise to Appear with the first appearance on September 21, 2018, months after the information had been sworn with the delay that had been occasioned in the interim laying solely at the feet of the court system with some complicity by the Crown attorney's office. All very innocently achieved but all very concerning to this court and also, I am sure, to Ms. Williams. It was not as if Ms. Williams was at large without knowing what was going on. She had been present in the court and her attendance was required in the court when it was not necessary on April 3, 2018 and then was not present in court on the June 14, 2018 date when she was not even required to be there and a warrant was issued for her arrest. She was subjected to arrest and released on July 8, 2018 on the Promise to Appear as noted.

[90] This whole course of conduct causes the court concern. It certainly cannot be reasonably argued this case did not take markedly longer than it should have and, in my view, it is quite clear on the record of events that the case reasonably could be said to have taken four to five months longer than might normally have been required if everything had been done appropriately and properly. When I consider what the time to trial might normally have been in such a matter as this where there is no complexity or discrete events (and even if there was a discrete event it could reasonably have been mitigated in part or entirely by the Crown and the system). The result is this matter took markedly longer than it should have to get to trial.

SUMMARY

[91] Given the facts of this particular case involving the delay in receiving the disclosure and particularly the history of the events that occurred unnecessarily prompting delay between February 2018 and September 2018 and there being no defence delay thereafter I am satisfied the delay is markedly longer than might normally be the case and that such a delay is clearly unreasonable. I find that Ms. Williams' section 11(b) Charter rights have been infringed and the appropriate remedy, fully appreciating that Jordan states such remedy should only be made in the clearest of cases where the net delay is below the presumptive ceiling, is for the charge before me to be stayed. It is my view this is the appropriate remedy and it is so ordered.

Released: May 22, 2019

Signed: "Justice G. F. Hearn"