ONTARIO COURT OF JUSTICE DATE: February 3, 2021

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JAYRON MATTHEW

Before: Justice John North

Reasons for Judgment February 3, 2021

Counsel: A. Pancer............................................................... counsel for the Attorney General of Ontario A. Elbaz.................................................. counsel for the Public Prosecution Service of Canada M. Mirza................................................................... counsel for the Applicant Jayron Matthew

NORTH J.:

INTRODUCTION

[1] On September 23, 2020, I dismissed the Applicant’s motion to stay the proceedings for unreasonable delay pursuant to s. 11(b) of the Charter, with reasons to follow. These are my reasons.

[2] At the time this application was argued and decided, the anticipated end of the trial was November 10, 2020. However, the trial was not completed on that date. For the purposes of these reasons, it is not necessary to review why that happened. The evidence and submissions are not expected to be completed until March, 2021. As I have not heard any submissions about the additional delay following the dismissal of the s. 11(b) application, I have not considered that delay in these reasons.

[3] Given the nature of the issues on this application, a relatively detailed review of the history of this case is necessary.

[4] On October 30, 2018, the Applicant was arrested and charged with a number of firearm and drug offences. That day, police officers with the Toronto Police Service (TPS) executed search warrants on a residence and a car. [1] During the execution of these search warrants, officers seized 35.79 grams of fentanyl, 28.65 grams of heroin, a loaded Taurus 9 mm semi-automatic handgun and an over-capacity magazine.

[5] Later that day, the Applicant made his first appearance in court. Crown counsel who conducted the bail hearing stated that the Crown was requesting a three-day remand as the police were “waiting to execute further search warrants on a storage locker and a car.” [2]

[6] On November 2, 2018, a bail hearing before McLeod J. of the Ontario Court of Justice commenced. Crown counsel provided the Applicant’s counsel with a synopsis. The bail hearing was adjourned until November 28, 2018.

[7] On November 25, 2018, the Crown provided initial disclosure to the Applicant’s counsel, which included search warrants and informations to obtain (ITOs) for 2535 Eglinton Avenue and the Honda Civic, notes of three police officers, a witness list, property reports, a charge sheet, a prisoner management report and surveillance reports for two days.

[8] On November 28, 2018, the bail hearing was adjourned to permit counsel to review the disclosure.

[9] On November 30, 2018, the bail hearing continued. McLeod J. suggested that it would be helpful to have a copy of the judicial summary of the ITOs to assess the strength of the Crown’s case. Crown counsel who conducted the bail hearing said that it would take about three weeks to prepare the judicial summary. The bail hearing was adjourned to December 24, 2018.

[10] On December 12, 2018, Crown counsel who was assigned to prosecute this case sent an e-mail to the Applicant’s counsel, in which she stated as follows: “I am not prepared to provide a judicial summary for a bail hearing as a warrant is deemed presumptively valid at a bail hearing.”

[11] On December 24, 2018, Crown counsel who conducted the bail hearing advised the Court that the Crown would not be producing a copy of the judicial summary at the bail hearing. The Applicant was remanded to January 4, 2019.

[12] On January 4, 2019, the Applicant was remanded to January 14, 2019 for the purpose of continuing the bail hearing before McLeod J.

[13] On January 14, 2019, the Applicant was ordered detained by McLeod J. A judicial pre-trial was scheduled for January 21, 2019 before McLeod J.

[14] On January 16, 2019, the Crown provided the Applicant’s counsel with additional disclosure, which included notes of the affiant of the ITOs and three other police officers.

[15] On January 21, 2019, a judicial pre-trial was held. The Applicant’s counsel requested that the matter return on January 28, 2019, “to schedule trial or prelim. dates.”

[16] On January 28, 2019, an agent for the Applicant’s counsel requested that the matter return on February 15, 2019 to allow the Applicant’s counsel “some time to speak to Mr. Matthew and get final instructions as to how to proceed, most likely setting a preliminary hearing.” The Applicant was remanded to February 15, 2019.

[17] On February 13, 2019, the Applicant’s counsel sent an e-mail to Crown counsel and advised that she was “still in discussions with Mr. Matthew.” Crown counsel responded by asking whether a date for a trial or a preliminary hearing would be set on February 15, 2019. The Applicant’s counsel replied by stating, “I will not be setting the dates on Friday as Mr. Matthew would like to review his disclosure before making any decision. So I will simply be remanding it.”

[18] On February 15, 2019, an agent for the Applicant’s counsel requested that the matter return on March 1, 2019 because “there is a resolution position that Mr. Matthew is currently considering.” The Applicant was remanded to March 1, 2019.

[19] On March 1, 2019, an agent for the Applicant’s counsel requested that the matter return on March 29, 2019, “in order for Mr. Matthew to review the disclosure and provide instructions on how he would like this matter to proceed.” This was the disclosure that had been provided to the Applicant’s counsel in November, 2018 and January, 2019. The Applicant was remanded to March 29, 2019.

[20] On March 28, 2019, Crown counsel for the PPPC sent an email to the Applicant’s counsel. Crown counsel for the PPSC asked whether the Applicant would be setting a date for a trial or a preliminary hearing on March 29, 2019. The Applicant’s counsel responded that she had not received instructions from the Applicant and will ask that the matter be remanded.

[21] On March 29, 2019, an agent for the Applicant’s counsel asked that the matter be adjourned to allow the Applicant’s counsel to receive instructions from the Applicant, “on how he would like this matter to proceed.” The agent added that the Applicant had received disclosure, “he’s reviewed most of it at the South [Toronto South Detention Centre]. I believe him and counsel need to sit down and have a conversation regarding the disclosure.” Crown counsel who spoke to the matter stated that the assigned Crown counsel is “eager to move this on.” The Applicant was remanded to April 26, 2019.

[22] On April 14, 2019, the Applicant’s counsel sent a letter to Crown counsel requesting additional disclosure (the first disclosure letter). The Applicant’s counsel requested 33 additional items. Some of the requested items were of a general nature, such as “any and all police surveillance notes not already disclosed.” In this letter, the Applicant’s counsel wrote that “on the next court date of April 26 we can set trial dates.”

[23] On April 15, 2019, the Applicant’s counsel sent an e-mail to Crown counsel in which she estimated that seven days would be required for pre-trial motions (including two days for a disclosure motion which “may not be required”) and four to five days for the trial proper. [3] The Applicant’s counsel took the position that the dates should be set in a “staggered” manner, which would include breaks between the pre-trial motions and the trial proper. Finally, the Applicant’s counsel suggested that if the Crown was not agreeable to this approach, another judicial pre-trial could be held before McLeod J.

[24] On April 16, 2019, Crown counsel sent an e-mail to the Applicant’s counsel in which she stated, “I am not agreeable to breaks between any of the steps. It disjoints the evidence and disrupts the fluidity of the process.” Crown counsel also stated that she was unsure why the Applicant’s counsel assumed that there would be a disclosure motion, “when you haven’t given either of us one day to even look at the request…” Finally, Crown counsel took the position that the pre-trial motions and trial would take eight to ten days to complete.

[25] On April 26, 2019, a second judicial pre-trial was set for May 30, 2019.

[26] On May 6, 2019, the Applicant’s counsel sent an e-mail to Crown counsel in which she inquired whether there was any update on the disclosure request made on April 14, 2019. Crown counsel responded that day and advised “officers are on days off until Thursday. I will get it to you once I receive it.”

[27] On May 13, 2019, the Applicant’s counsel sent an e-mail to Crown counsel and asked when the Crown would provide a response to the April 14, 2019 disclosure request. On May 14, 2019, Crown counsel sent the Applicant’s counsel an e-mail in which she stated as follows:

“…as I told you the officer was on days [off] and would get to it when he came in this week. I have received materials from him and will need some time to review them. Arielle [counsel for the PPSC] and I have tried to move this matter along for months and Mr. Matthew took several months to review the disclosure. We have a second JPT set, you will get your disclosure as soon as I review it and consult with Arielle.”

[28] On May 24, 2019, Crown counsel sent a letter to the Applicant’s counsel. Crown counsel provided a response to each of the 33 requests contained in the April 14, 2019 disclosure letter. Fifteen of the responses were identical: “See the judicial summary when disclosed.” Crown counsel responded to a number of the requests as follows: “Question that can be asked at the trial.” Crown counsel also stated as follows:

“…many of the items set out in fact are not requests for disclosure. Rather, it appears that you’re seeking an amplification of the record that was placed before the issuing judge along with areas of cross-examination that you may seek to explore at trial.”

“…it is my position that none of the outstanding disclosure requests will have any bearing on the setting of the trial date as the length of the proceeding will not be lengthened in any shape or form.”

“…the entire matter [should] be heard together without any breaks in the evidence and the matter should be set for 1 ½ to 2 weeks.”

[29] On May 26, 2019, the Applicant’s counsel sent a second disclosure letter. The Applicant’s counsel made 15 additional disclosure requests which were, “raised by the recent disclosure.” In this letter, the Applicant’s counsel also stated as follows, “ [w]e can affirm our agreement that the outstanding disclosure should not impede the setting of the trial dates .”

[30] In the same letter, counsel for the Applicant asked whether the Crown’s response to a number of disclosure requests – “Question that can be asked at the trial” – was an indication that the Crown would be consenting to a cross-examination of the affiant/sub-affiants or if it was the Crown’s position that the Applicant should bring a disclosure application. [4]

[31] On May 30, 2019, a second judicial pre-trial was held before McLeod J. On this date, Crown counsel provided a written response to a number of the disclosure requests made by the Applicant’s counsel on May 26, 2019. At the request of the Applicant’s counsel, the Applicant was remanded to June 5, 2020 to set a date for trial.

[32] On June 1, 2019, the Applicant’s counsel sent a third disclosure letter. In this letter, the Applicant’s counsel requested some additional disclosure, including a “Crown summary” of the ITO.

[33] On June 3, 2019, the Applicant’s counsel sent a fourth disclosure letter. The disclosure requests in this letter were made because the existence of a search warrant for 710 Tretheway Drive, unit 707 (710 Tretheway), had recently come to the attention of the Applicant’s counsel. [5]

[34] On June 5, 2019, the dates for the pre-trial motions and the trial could not be set because the Applicant’s counsel was late in arriving at the trial coordinator’s office. Counsel agreed to reattend the trial coordinator’s office the following day to set the dates.

[35] On June 6, 2019, the dates for the pre-trial motions and the trial could not be set because Crown counsel and the Applicant’s counsel could not arrive at an agreement on the manner in which the dates should be set. The Applicant’s counsel took the position that the pre-trial motions should be “staggered” and Crown counsel wanted to set a block of consecutive dates. A third judicial pre-trial before McLeod J. was scheduled for June 13, 2019.

[36] On June 10, 2019, Crown counsel provided additional disclosure to the Applicant’s counsel, including “notes from the search warrant at Tretheway.” That day, Crown counsel also stated in an e-mail to the Applicant’s counsel that she had not been aware of the search warrant for 710 Tretheway before it was brought to her attention by the Applicant’s counsel on June 3, 2019. Crown counsel advised that she was in the process of having this search warrant unsealed. Later that day, the Applicant’s counsel expressed concern that Crown counsel had not been aware of the 710 Tretheway search warrant. The Applicant’s counsel asked how, since Crown counsel would have met with the affiant of the ITOs, she did not know about the 710 Tretheway search warrant.

[37] On June 13, 2019, a third judicial pre-trial was held with McLeod J. to resolve the issue of how to schedule the dates for the pre-trial motions and trial. After hearing from the Applicant’s counsel and Crown counsel, McLeod J. concluded that the pre-trial motions and trial would take seven days to complete. The Court offered a seven-day block of time in November, 2019, but counsel for the Applicant was not available – the Crown was available during this period. While counsel for the Applicant had earlier available dates, the following dates were set:

February 12, 2020: Trial confirmation.

March 2 to 5, 2020: Pre-trial motions (four days).

March 9, 2020: Section 8 and 24(2) arguments (one day).

March 16 & 17, 2020: Trial (two days).

[38] On June 17, 2019, the Applicant’s counsel sent a fifth disclosure letter. This letter included a consolidated list of disclosure that remained outstanding.

[39] On June 18, 2019, Crown counsel sent an e-mail to the Applicant’s counsel advising that she had requested from the police “any outstanding notes and or surveillance reports.”

[40] On June 20, 2019, Crown counsel sent the Crown Summary of the ITO to the Applicant’s counsel.

[41] On July 27, 2019, the Applicant’s counsel sent an e-mail to Crown counsel and asked when she would receive a response to the outstanding disclosure requests. On July 30, 2019, Crown counsel responded as follows: “I’m working on it.”

[42] On August 23, 2019, the Applicant’s counsel sent another e-mail to Crown counsel to determine the status of the outstanding disclosure.

[43] On September 16, 2019, the Applicant’s counsel sent another e-mail to Crown counsel in which she asked when she would receive a response to her outstanding disclosure requests.

[44] On September 17, 2019, Crown counsel sent a letter to the Applicant’s counsel. Crown counsel thanked the Applicant’s counsel for consolidating the disclosure requests (in the letter sent on June 17, 2019). Crown counsel stated, “there have been a plethora of lengthy letters with a multitude of requests of the last few months and it has made it difficult to keep track of what you are still requesting.” In this letter, the Crown counsel provided the Crown’s position in relation to each defence request. The Crown also provided some additional disclosure, which included: the notes of Officer Duran from October 27, 2018; an order to unseal the 710 Trethewey search warrant; the 710 Trethewey search warrant and ITO; redacted source notes; a screenshot of Versadex and a will-say from one officer.

[45] On October 6, 2019, the Applicant’s counsel sent a sixth disclosure letter to Crown counsel and requested two additional items of disclosure. A number of previous disclosure requests remained outstanding, including a booking video; cell logs; in car camera video; and an MTO driver record inquiry.

[46] On November 29, 2019, the Applicant’s counsel sent an e-mail to Crown counsel asking for an update on the disclosure that had been requested on October 6, 2019.

[47] On January 2, 2020, Crown counsel provided a response to the October 6, 2019 disclosure request. Crown counsel also provided a small amount of the outstanding disclosure.

[48] On January 16, 2020, the Applicant’s counsel sent a seventh disclosure letter to Crown counsel. She requested seven outstanding items of disclosure. The Applicant’s counsel also requested some additional information and clarification of a few matters.

[49] On January 20 and 21, 2020, there was an exchange of e-mails between the Applicant’s counsel and Crown counsel about disclosure. The Applicant’s counsel stated that if the Crown maintained the same position regarding certain disclosure, “we will be forced to bring a disclosure application at the commencement of the proceeding for this relevant disclosure.” The Applicant’s counsel asked whether the Crown would provide additional disclosure about how a person alleged to be the Applicant entered the underground parking garage at 720 Trethewey Drive on October 28, 2018. Crown counsel responded as follows:

“…if you would like to bring a disclosure request please provide us with your materials and we will respond in kind. You have been provided all of the officers’ notes in relation to this file there is nothing that I have that you haven’t been provided.”

[50] On January 28, 2020, Crown counsel sent two e-mails to the Applicant’s counsel regarding disclosure issues. Attached to these e-mails was some additional disclosure, which included: a re-vetted proposed judicial summary; a certificate of analyst (CDSA); a certified copy of a prohibition order; an affidavit of a firearm analyst; a booking video; re-vetted source notes; re-vetted ITOs for 2535 Eglinton Avenue and the Honda Civic. In the e-mail, Crown counsel stated that the Applicant’s counsel had previously been given a number of these items. Crown counsel also advised that an expert report for the possession for the purpose of trafficking charges was being prepared and “will be provided to you shortly.” [6]

[51] On February 4, 2020, counsel for the Applicant filed materials in support of a disclosure application; an application to cross-examine the affiant; and a s.8/ Garofoli application. On February 5, 2020, Crown counsel received an electronic copy of the Applicant’s materials. Crown counsel did not receive a hard copy of these materials for almost a week, as they were served on the PPSC office. As a result, Crown counsel filed her response materials late.

[52] On February 12, 2020, a judicial pre-trial was held with McLeod J. The trial readiness forms were filed with the Court and the matter was adjourned to the first date that had been scheduled for the pre-trial motions (March 2, 2020). There is no indication in the transcript that either counsel believed that any additional court time would be required to complete the pre-trial motions or the trial.

[53] On February 14, 2020, Crown counsel contacted the Applicant’s counsel and asked when the Applicant’s s. 10(b) materials would be served and filed. The Crown pointed out that the Applicant’s materials should have been filed in early February.

[54] From February 14 to 16, 2020, the Crown provided further disclosure to the Applicant’s counsel, including: a will-say of a police officer; some photographs and a prisoner phone call log.

[55] On February 16, 2020, the Applicant’s counsel filed ss. 10(a) and 10(b) Charter application materials.

[56] On February 20, 2020, the Crown’s consolidated response to the Charter applications was filed.

[57] On March 2, 2020 the Applicant was arraigned. The Charter applications commenced that day with the disclosure application. The Applicant sought disclosure of a number of items, including information as to whether the person alleged to be the Applicant was seen by any of the police officers using a fob to enter an underground parking lot at 720 Trethewey Drive on October 28, 2018. While that information was not contained in any of the officers’ notes, counsel for the Applicant argued “just because it’s not in their notes doesn’t mean it’s something that they either didn’t observe, or it didn’t happen.” The Applicant’s counsel argued that the Crown was required, to satisfy its disclosure obligations, to make further inquiries to determine if any officers saw the Applicant use a fob to enter the parking lot. Crown counsel began her submissions by stating, “I don’t really know how the Crown is supposed to disclose under Stinchombe items that the Crown doesn’t have.” Crown counsel added, “[w]hat my friend has been asking for is disclosure that’s not in the possession of the Crown, that doesn’t exist, so it’s almost like she wants the officers to go back and redo their notes…”

[58] I made a ruling on the disclosure application at the end of the day on March 2, 2020. The Crown was ordered to provide some additional disclosure to the Applicant. Some of the disclosure requests were denied based on confidential informant privilege.

[59] Over the course of the first day, in addition to dealing with the disclosure application, Crown counsel and I exchanged a number of documents for the purpose of preparing a judicial summary of the ITOs. All of these documents were marked as sealed exhibits. [7] Disclosure issues occupied about two-thirds of the Court’s time on the first day.

[60] On March 3, 2020, I made another ruling on a disclosure issue. Crown counsel and I continued to exchange documents for the purpose of preparing a judicial summary of the ITOs. At approximately 11:40 a.m., counsel for the Applicant began her submissions on issues relating to steps two to four of the Garofoli application. In total, the submissions by the Applicant’s counsel on these issues took about 90 minutes. After Crown counsel made her submissions, the matter was remanded to the following day at 2:30 p.m., as I had two other assigned cases that were scheduled to be before me at 10:00 a.m.

[61] On March 4, 2020, the Applicant was not brought to Court as a result of an error made by the Toronto South Detention Centre. That day, as part of the ongoing process to prepare a judicial summary of the ITOs, I provided Crown counsel with a document, which was marked as a sealed exhibit.

[62] On March 5, 2020, the Applicant’s counsel received a document entitled “Further Disclosure Provided to the Defence”. [8] This document was produced as a result of the ongoing exercise to prepare a judicial summary. I made a ruling in relation to a disclosure application that was raised by counsel for the Applicant on March 3, 2020. As a result of this ruling, the Applicant’s counsel was provided with some additional disclosure. The Applicant’s counsel began her submissions on the application to cross-examine the affiant and sub-affiants. These submissions were not completed before the Court adjourned for the day (after 5 p.m.). Counsel for the Applicant estimated that she would need another 30 minutes to complete her submissions.

[63] On March 9, 2020, the submissions by counsel for the Applicant on the application to cross-examine the affiant and sub-affiants occupied most of the day. At the end of the day, I asked the Applicant’s counsel to submit a complete list of the proposed areas of cross-examination before March 16, 2020. Towards the end of the day, Crown counsel began her submissions. [9]

[64] Both counsel agreed that the pre-trial motions and the trial would not be completed in the seven days that were originally scheduled for this matter. Both counsel agreed that (in addition to the three remaining scheduled days in March, 2020) five additional days would be required. [10] The issue of s. 11(b) was addressed. Crown counsel suggested that, given the number and nature of issues that had been raised by the Applicant, “we might be into that complex case coverage under s. 11(b).” Counsel for the Applicant did not concede that this was a complex case for the purposes of a s. 11(b) analysis.

[65] On March 11, 2020, the World Health Organization declared that COVID-19 was a global pandemic.

[66] On March 12, 2020, the Applicant’s counsel sent the Court and Crown counsel a list of the proposed areas of cross-examination. Crown counsel responded in writing the following day.

[67] On March 15, 2020, as a result of the COVID-19 pandemic, the Ontario Court of Justice suspended normal operations.

[68] On March 16, 2020, the pre-trial applications continued. As a result of the COVID-19 pandemic, most other matters in the Ontario Court of Justice did not proceed that day. I delivered my ruling on the application to cross-examine the affiant and sub-affiants. I granted leave to cross-examine in five specific areas. I denied leave to cross-examine on twelve areas. The affiant was not immediately available after my ruling. The cross-examination of the affiant commenced at 1:30 p.m. and continued the rest of the day. Counsel for the Applicant estimated that she would need another hour to complete her cross-examination.

[69] Three additional days were obtained to complete the pre-trial applications: May 6, 12 and 13, 2020. [11] When these dates were selected, Crown counsel for the PPSC observed, “Of course, we’ll have to see how things go given the pandemic.” The trial coordinator initially offered the following five dates: May 4, 5, 6, 12, and 13, 2020. However, counsel for the Applicant was not available on May 4 and 5, 2020.

[70] On March 17, 2020, the cross-examination of the affiant completed at approximately 12:20 p.m. Crown counsel wanted to commence the Step Six application that day. The Applicant’s counsel took a different position. She requested that the matter continue in May, to allow her to consider the affiant’s testimony and prepare written submissions on the sufficiency of the judicial summary. At that time, it was the position of the Applicant’s counsel that the judicial summary was insufficient. [12] I granted the Applicant’s request for an adjournment. Consequently, no submissions were made that afternoon.

[71] I advised counsel that I would attend the trial coordinator’s office over the lunch hour to see if I could secure two additional dates. I told counsel that, given the COVID-19 pandemic, no dates would be set in March or April. The trial coordinator offered May 20-22; May 25-29 and June 1-12. The Applicant’s counsel and Crown counsel were not available on those dates. I set June 25th and 26th as the trial dates. [13]

[72] On March 17, 2020, the Province of Ontario issued a Declaration of Emergency under the Emergency Management and Civil Protection Act, which required all non-essential businesses to close and imposed a prohibition against large gatherings.

[73] On March 23, 2020, counsel for the Applicant filed an amended s. 24(2) application.

[74] On March 25, 2020, the COVID-19 Emergency Response Act received royal assent.

[75] On March 28, 2020, the Ontario Court of Justice released a notice which stated that all criminal trials and preliminary hearings scheduled between March 20th and May 29th, including in-custody matters, were suspended. [14] In-custody trials were to be adjourned to a date determined by the presiding judicial officer.

[76] In April, 2020, counsel for the Applicant sent an e-mail to the trial coordinator’s office and Crown counsel to determine if the Court and the Crown were now available on May 20-22 or June 1-12, 2020 (dates that were previously offered by the Court). The trial coordinator responded by e-mail and indicated that, due to the COVID-19 pandemic, this matter would not be proceeding on the dates previously scheduled in May and would be returning on June 25, 2020. [15] The trial coordinator also wrote, “unfortunately, at this time, matters are not proceeding throughout the month of May and most likely the early part of June as well.” The trial coordinator added that this matter will be prioritized when it returns in late June and additional dates will be selected after that point.

[77] On April 16, 2020, counsel for the Applicant contacted the trial coordinator’s office to set a bail review hearing, pursuant to s. 523(2)(a) of the Criminal Code. A hearing was scheduled to be conducted by teleconference on May 14 and 15, 2020.

[78] On May 4, 2020, a notice from the Ontario Court of Justice advised that no trials or preliminary hearings would be conducted until July 6, 2020, at the earliest. As a result, the June 25th and 26th trial dates in this matter were vacated. [16] This notice also indicated that the Ontario Court of Justice was working to adapt technology that would “increase participants’ ability to access the Court’s services using remote means, such as by the electronic filings of court material, remote scheduling processes, and remote hearings.”

[79] On May 11, 2020, a notice issued by the Ontario Court of Justice stated that “the Court is not currently setting trial or preliminary inquiry dates because of continued uncertainty as to when full operations will resume and the need to prioritize within the Court’s caseload.”

[80] On May 14, 2020, the s. 523(2)(a) hearing commenced. Counsel for the Applicant did not provide the Crown with the affidavits of the proposed sureties until 11:30 pm on May 14th. As a result, the hearing had to be adjourned. Two additional days were scheduled to complete the hearing (May 27th and 28th).

[81] On June 9, 2020, I dismissed the s. 523(2)(a) application. On that day, the issue of whether some of the pre-trial applications could be heard remotely or addressed in writing was raised. Counsel for the Applicant requested that the matter return on June 23, 2020. Counsel for the Applicant advised the Court that it was her intention to bring a s. 11(b) application and that she would like to have that application addressed “sooner rather than later.”

[82] On June 9, 2020, Crown counsel sent an e-mail to the Applicant’s counsel and proposed a number of ways to potentially expedite the proceedings, including:

• The application to enter Step Six would be “done by written submissions only.” If the Court had any questions counsel could either respond in writing or “an hour [of court time] could be set aside.”
• The Step Six application would be “done entirely in writing as well.”
• If it was necessary to make s. 24(2) submissions, they would also only be made in writing. [17]
• The ss. 10(a) and (b) hearing would be conducted remotely. Only two police officers would be required to testify.
• With respect to the trial proper, Crown counsel suggested, “if we are unable to secure two days in the near future, perhaps we could suggest a virtual trial.”
• Crown counsel took the position that the s. 11(b) application should “be brought at the conclusion of the trial given the trial has already started and given that your section 8 could be successful, or your client acquitted there is no point in dealing with such a motion until we know the outcome of the motions and trial.”

[83] On June 13, 2020, the Applicant’s counsel responded. The Applicant would not agree to conduct any of the remaining motions only in writing. It was also the position of the Applicant’s counsel that the s. 11(b) application should be heard “prior to the continuation of the Garofoli motion.”

[84] On June 15th, 2020, counsel for the Applicant advised Crown counsel that she would be prepared to proceed with the s. 11(b) application “remotely as soon as it can be set.” The Applicant’s counsel had not yet filed her materials in support of the s. 11(b) application. It appears that the transcripts required for the s. 11(b) application were available to be picked up in April, 2020.

[85] On June 17, 2020, the Ontario Court of Justice announced a phased re-opening of courthouses commencing July 6, 2020. The target date for a full resumption of trials and preliminary inquiries was November, 2020. The notice stated that the Court would:

“…begin rescheduling criminal trials and preliminary inquiries that were scheduled to be heard between March 16, 2020 and July 3, 2020 but adjourned due to the COVID-19 pandemic, later this month. The Court will provide further details about the procedure for setting trial and preliminary inquiry dates shortly.”

[86] On June 18, 2020, a judicial pre-trial was held pursuant to a protocol that was put in place by the Court as a result of the COVID-19 pandemic. I required counsel for the Applicant to file her materials on the s. 11(b) application by July 3, 2020. The judicial pre-trial was scheduled to continue on July 8, 2020. The Applicant’s counsel provided the Crown with all of the transcripts for the s. 11(b) application on June 18, 2020.

[87] On June 30, 2020, counsel for the Applicant sent an e-mail to the Court and requested an extension on the filing date for the s. 11(b) materials to July 6, 2020.

[88] On July 2, 2020, the Ontario Court of Justice announced that on “July 6, 2020, the Court will resume setting criminal trial and preliminary inquiry dates, including rescheduling trials and preliminary hearings that were adjourned due to the COVID-19 pandemic.”

[89] On July 6, 2020, the Applicant’s counsel sent the Court and Crown counsel multiple e-mails which contained her s. 11(b) materials. A hard copy of these materials was not filed. [18] The materials were voluminous and difficult to navigate. They included 109 attachments. Some of the files could not be opened. None of the electronic documents were hyperlinked to the attached factum.

[90] At the judicial pre-trial on July 8, 2020, I expressed concerns about the Applicant’s s. 11(b) materials. Crown counsel took the position that “it was nearly impossible to sort through the documents.” I asked counsel for the Applicant to re-file her materials, with the attachments hyperlinked to the Applicant’s s. 11(b) factum.

[91] On July 10, 2020, the Applicant’s counsel re-filed her s. 11(b) materials.

[92] A time estimate for the hearing of the s. 11(b) application could not be made until Crown counsel had a reasonable opportunity to review the Applicant’s s. 11(b) materials and decide whether she would cross-examine the affiant of an affidavit filed by the Applicant and/or introduce evidence on behalf of the Crown.

[93] On July 21, 2020, I heard submissions on how the pre-trial applications should proceed. In an effort to expedite the proceedings, Crown counsel took the same position as she took in her e-mail to the Applicant’s counsel on June 9, 2020. I accepted the Applicant’s request to allow the s. 11(b) hearing to proceed before continuing with the other pre-trial applications and the trial proper. Further, as previously mentioned, counsel for the Applicant was opposed to the Crown’s position that all submissions on the pre-trial applications should be limited to written submissions. I concluded that counsel should be permitted to make oral submissions on the pre-trial applications.

[94] On July 30, 2020, after Crown counsel filed her s. 11(b) materials, the following dates were set:

• August 17-18, 2020 – two days for the hearing on the s. 11(b) application.
• August 31-September 3, 2020 – four days for evidence and submissions on the Charter application (other than s. 11(b)).
• October 1, 2020 – one day for evidence and submissions (if necessary) on s. 24(2) of the Charter.
• October 20-22, 2020 – three days for the trial proper. [19]

[95] Shortly after the above dates were set, the Applicant’s counsel realized that she had a previously scheduled vacation booked for the last two weeks of August. As a result, the following new dates were set:

• August 17-18, 2020 – two days for the s. 11(b) application.
• September 29 to October 2, 2020– four days for evidence and submissions on the Charter application (other than s. 11(b)).
• November 3, 2020 – one day for evidence and submissions (if necessary) on s. 24(2) of the Charter.
• November 9-10, 2020 – two days for the trial proper. [20]

[96] In an effort to ensure that the proceedings remained on schedule, I imposed time limits on oral submissions.

JORDAN FRAMEWORK

[97] In R. v. Jordan, 2016 SCC 27, [2016] 1 SCR 631, the Supreme Court of Canada established a new framework to be applied where a s. 11(b) infringement is alleged. This framework included a presumptive ceiling of 18 months of delay for cases tried in a provincial court.

[98] The following is a summary of the Jordan framework:

a) Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial. b) Subtract defence delay 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, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If the Crown cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases. e) 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. f) 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. g) If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable. [21]

[99] The right to be tried within a reasonable time extends beyond the end of the evidence and argument at trial. However, the presumptive ceilings established in Jordan do not: R. v. K.G.K., 2020 SCC 7, at para. 3; R. v. McNeill-Crawford, 2020 ONCA 504, at para. 20.

POSITIONS OF THE PARTIES

[100] Counsel for the Applicant argues that “the delay in this case was caused by continuous and ongoing disclosure issues, and the manner in which the trial dates were scheduled”. It is the position of the Applicant that had disclosure been provided in a timely fashion and the trial scheduled in a staggered manner, as suggested by the Applicant’s counsel, a trial could have taken place within 18 months.

[101] Crown Counsel argues that “this case is unique because of the constellation of factors that have come together and resulted in this matter not completing within the 18 months presumptive ceiling.” Crown counsel takes the position that, “this case is not about late disclosure, it is not about the Respondent being unreasonable in proceeding with the matter and it is not about the unavailability of court time.” Instead, Crown counsel argues, any delay above the 18-month presumptive ceiling is attributable to the Applicant, COVID-19 and the complexity of the proceedings.

JORDAN ANALYSIS

Total Delay

[102] The total delay from the date the Applicant was charged (October 30, 2018) until the anticipated date of the completion of the trial (November 10, 2020) was 742 days or 24.4 months. [22]

Defence Delay

[103] There are two kinds of defence delay: (i) defence waiver; and (ii) delay caused solely by the conduct of the defence.

[104] Defence waiver of delay can explicit or implicit, however, in either case, it must be clear and unequivocal: Coulter, supra, at para. 43.

[105] 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”: Coulter, supra, at para. 44. Where the Crown and the court “are ready to proceed but the defence is not, the defence will have directly caused the delay”: Coulter, supra, at para. 44. However, where the defence is not available, but the Crown and the court are also not available, the time will not be characterized as defence caused delay: R. v. Manasseri, 2016 ONCA 703, at para. 304. Defence action or inaction “which displays a marked inefficiency or indifference towards delay, will be attributable to the defence in the s. 11(b) calculus”: R. v. Calabrese, 2018 ONCJ 609, at para. 5. [23]

[106] The determination of whether defence conduct is legitimate is not an exact science, and while trial judges should “take care not to second-guess steps taken by defence for the purposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate to do so”: Cody, supra, at para. 31.

[107] In Cody, supra, at para. 32, the Supreme Court made it clear that defence conduct “encompasses both substance and procedure – the decision to take a step, as well as the manner in which it is conducted…” [Emphasis in original.]. Defence counsel are expected to “actively advance their client’s right to a trial within a reasonable time, collaborate with Crown counsel when appropriate and, like Crown counsel, [use] court time efficiently”: Jordan, supra, at para. 138. [24]

[108] In this case, I have concluded that there were three periods of defence delay. The total defence delay was 75 days or 2.5 months.

[109] First, I would characterize the 56 days between March 1, 2019 to April 26, 2019 as defence delay. By March 1, 2019, the Applicant’s counsel had sufficient time to review the disclosure that had been provided by the Crown. By that date, the Applicant was in a position to make an election regarding the mode of his trial and to make a reasonable estimate regarding the length of the preliminary hearing or trial. I note that on April 15, 2019 (without receiving additional disclosure) counsel for the Applicant estimated that the total time required for the pre-trial motions and the trial would be 11 or 12 days. The Crown was prepared to move the case forward by March 1, 2019. In my view, by March 1, 2019 the Applicant should have either set a date for the trial or requested a second judicial pre-trial: Manasseri, supra, at para. 304. [25]

[110] Second, as a result of the Applicant’s counsel being late in attending the trial coordinator’s office on June 5, 2019, trial dates could not be set that day. The parties returned the following day to set the dates. I have characterized this as one day of defence caused delay.

[111] Third, I have characterized the 18 days between October 22, 2020 and November 10, 2020 as defence delay. On July 30, 2020, continuation dates were set and the anticipated end of the trial was October 22, 2020. However, as a result of the unavailability of the Applicant’s counsel, new dates had to be set.

[112] Crown counsel argued that the delay from November, 2019 until March 2, 2020 should be characterized as defence delay. I do not agree with the Crown’s position. Jordan “is clear that defence delay will arise where the Crown and the court are ready to proceed but the defence is not”: R. v. Mallozzi, 2018 ONCA 312, at para. 6. However, in my view, that does not mean that, in every case, if defence counsel is not available on the first date offered by the court, all of the delay until the next available date is defence delay. The question of whether a period of time is defence delay must be considered contextually: R. v. Gill, 2020 ONCJ 124, at para. 20. As Woollcombe J. concluded in R. v. Ameerullah, 2019 ONSC 4537, at paras. 28-29:

“Clearly, when a single date or block of time is offered to the defence, and counsel is unavailable on that date, not all of the delay to the next available date is necessarily defence delay. Rather than taking this sort of ‘categorical’ approach, there needs to be consideration of the particular circumstances of a case, bearing in mind the Jordan call for a change in direction and break in the culture of complacency.

However, when the Crown is available on numerous dates that are offered by the court, and the defence counsel is repeatedly unavailable for any dates over a reasonable period, the delay that results is defence delay. The justification for this approach is that it is defence counsel’s lack of availability that results in the matter being set further in the future than would otherwise be necessary.” [26]

[113] In the circumstances of this case, it is my view that the delay from November, 2019 until March 2, 2020 should not be attributed to the Applicant simply because of the unavailability of the Applicant’s counsel for the period of time offered by the Court in November, 2019. This was not a case where defence counsel rejected multiple dates that were offered by the Court and were available to the Crown. I also note that the Applicant’s counsel was available on a number of other dates prior to March, 2020.

Net Delay

[114] The total delay is 742 days. The defence delay is 75 days. Therefore, the net delay is 667 days or 21.9 months. As this exceeds the 18-month Jordan ceiling, the delay is presumptively unreasonable.

Exceptional Circumstances

[115] The presumption of unreasonableness can be rebutted by the Crown where there are exceptional circumstances.

[116] Exceptional circumstances are 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 the circumstances once they arise. Such circumstances need not be rare or entirely uncommon: Coulter, supra, at para. 46; Jordan, supra, at para. 69. Exceptional circumstances generally fall under two categories: discrete events and particularly complex cases.

[117] Crown counsel argues that there were two discrete exceptional circumstances in this case.

[118] First, Crown counsel argues that the COVID-19 pandemic is an exceptional circumstance and that all of the delay after March 17, 2020 should deducted for the purpose of determining whether the 18-month ceiling has been exceeded. The Applicant’s counsel argues that the exceptional circumstances of the COVD-19 pandemic only apply to the delay between June 26, 2020 and July 6, 2020. [27]

[119] Courts have consistently held that the COVID-19 is a discrete exceptional circumstance: R. v. Greenidge, 2021 ONCJ 57, at para. 23; R. v. Pinkowski, 2021 ONCJ 35; R. v. Truong, 2020 ONCJ 613, at para. 71; R. v. Simmons, 2020 ONSC 7209, at para. 60; R. v. Loblaws, 2020 ABPC 250, at para. 66; R. v. Drummond, 2020 ONSC 5495, at paras. 76-80; R. v. Ali Ismail, 2020 BCPC 144, at paras. 135-142; R. v. Stack, 2020 ONCJ 544, at para. 7; R. v. Folster, [2020] M.J. No. 187, at para. 28; R. v. G.R., 2020 ONCJ 578, at para. 3; R. v. Harker, 2020 ABQB 603, at para. 20; R. v. KGY, 2020 ABPC 171, at para. 40; R. v. Cathcart, 2020 SKQB 18, 2020 SKQB, at para. 18.

[120] The real issue is how much of the delay should be attributed to the impact of COVID-19 pandemic on court operations.

[121] Most courts have concluded that the period attributable to the impact of the COVID-19 pandemic on court operations should not end when a court first begins to reschedule matters that had been adjourned because of the pandemic. For example, in Simmons, supra, at paras. 67-73, Nakatsuru J. concluded that the entire period from the original trial date to the new trial date (9 months and 26 days) should be attributed to the discrete exceptional event of COVID-19. [28] In G.R., supra, at paras. 59-67, Doorly J. concluded that, because of the continuing nature of the crisis caused by the COVID-19 pandemic, the entire period between the first scheduled trial dates and the anticipated end of the second trial (9 months) should be deducted as a discrete exceptional event.

[122] In this case, I do not agree with the Crown’s position that the delay between March 17, 2020 and June 26, 2020 should be considered as part of the discrete exceptional circumstance that occurred because of the COVID-19 pandemic. I see no reasonable basis to conclude that if the COVID-19 pandemic had not occurred, continuation dates prior to May, 2020 would have been obtained. While it is true that as a result of COVID-19 the pre-trial applications and trial could not have been heard in the spring of 2020, the dates in May and June were originally selected for reasons unrelated to the pandemic. [29] For the Crown to successfully argue that a period of time should be considered as delay attributable to the COVID-19 pandemic, it must show on a balance of probabilities that the delay was actually caused by the pandemic. [30]

[123] I have concluded that the 52 days between June 26, 2020 and August 17, 2020 is properly characterized as delay arising from a discrete exceptional event because of the impact that the COVID-19 pandemic had on court operations. In early July, 2020, there was a substantial backlog of trials in the Ontario Court of Justice. Obviously, it was not possible for all trial matters that had been adjourned because of the pandemic to continue on the first day that trial coordinators were able to start scheduling new dates. In concluding that the delay attributable to COVID-19 should not end on the first day that the court began to reschedule matters that had been adjourned, I adopt the reasoning of Nakatsuru J. in Simmons, supra, at paras. 68-71.

[124] The Crown must “mitigate the fallout from an exceptional event” G.R., supra, at para. 48. In Jordan, supra, at para. 70, Moldaver J. stated that this might include:

“…prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means.”

[125] As Doorly J. noted in G.R., supra, at paras. 49-51, the Ontario Court of Justice responded to the delays caused by the COVID-19 pandemic “by mandating a special ‘COVID-19’ judicial pre-trial for any trial adjourned between March 16 and July 3, 2020.” Doorly J., at para. 51, described the objectives of the mandatory judicial pre-trials as follows:

“During the time where trials were suspended, new matters continued to come to court. Crime did not stop. With multiple streams of criminal matters newly competing for limited trial time – trials adjourned because of COVID-19 on top of trials already scheduled on top of new, in-custody trials – the Court had to be shrewd about how trial time would be allotted. The mandatory JPTs allowed all parties to talk candidly about existing cases that had been adjourned, explore resolutions and, where necessary, determine realistic or revised time estimates, in an effort to accommodate greater demand for trial time.”

[126] In this case, the mandatory judicial pre-trial occurred on June 18, 2020. On that date, I set filing deadlines for the s. 11(b) application. The judicial pre-trial continued on July 8, 2020 after the Applicant counsel filed her s. 11(b) materials.

[127] In June, 2020, in an effort to expedite matters, Crown counsel proposed that almost all of the remaining submissions on the Charter applications could be made in writing. Crown counsel also suggested that the pre-trial applications and trial could be conducted remotely. These were reasonable efforts by the Crown.

[128] The Court prioritized this case when continuation dates were set. I was scheduled to preside over a lengthy “project” trial with multiple accused persons that was set to commence in mid-August, 2020 and continue until October, 2020. In order to make myself available to continue the Applicant’s matter as soon as possible, the project trial was reassigned to another judge in late July, 2020.

[129] In an effort to avoid delay, I established time limits on oral arguments.

[130] The s. 11(b) application was heard six weeks after the trial coordinator’s office began to reschedule matters that had been adjourned because of the COVID-19 pandemic. The other Charter applications in this case were scheduled to continue less than two weeks after that. All of the evidence and submissions on the Charter applications and trial were scheduled to be completed on October 22, 2020. In short, during a period when there was a significant backlog of cases, nine additional court days for this matter were secured within 3 months and 16 days from the first date that the Court began to reschedule matters that had been adjourned because of the COVID-19 pandemic.

[131] In my view, the Crown and the Court took reasonable steps to prioritize this case and mitigate the delay resulting from this exceptional event.

[132] Second, Crown counsel argues the fact that the trial went longer than reasonably expected was a discrete exceptional circumstance. Crown counsel asserts “that when the judicial pre-trials were held, the dates that were set, were set in good faith by all the parties, including the JPT judge. No one thought that the matter would take longer than the time that had been allotted at the time the dates were booked.” As a result, the Crown argues that the delay was unavoidable.

[133] In Jordan, supra, at para. 73, the Court recognized that discrete exceptional events may arise at trial. Moldaver J. stated that “trials are not well-oiled machines” and unforeseeable or unavoidable developments “can cause cases to quickly go awry, leading to delay”: Jordan, supra, at para. 73. Moldaver J. concluded that “if the trial goes longer than reasonably expected – even where the parties have made a good faith effort to establish realistic time estimates – then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance”: Jordan, supra, at para. 73.

[134] In this case, there were a few events that cut into the seven days that were originally set for the pre-trial motions and the trial. In my view, each of those events was either an unforeseeable or unavoidable development. Putting aside the half day of court time that was not used on March 17, 2020 as a result of the request by the Applicant’s counsel to not proceed that afternoon, less than a day and a half of court time was lost because the Applicant was not brought to court on March 4, 2020 and the affiant was not being immediately available for cross-examination.

[135] Even if no court time had been spent litigating disclosure issues or lost for other reasons, it is clear that the pre-trial motions and trial would not have been completed in the seven days that had been originally scheduled.

[136] By the end of the last date scheduled for the trial in March, 2020, both parties agreed that another five days of court time would be required. [31] When the continuation dates were set at the end of July, 2020, counsel agreed that another nine days of court time would be required. Of those nine additional days, two were set aside for the s. 11(b) hearing. In the end, even the Applicant’s original eleven or twelve day estimate fell short of the time that would be required to complete the pre-trial motions and trial.

[137] In none of the transcripts after June 13, 2019 (prior to the commencement of the Charter applications in March, 2020), is there any indication by the Applicant’s counsel that additional court time beyond the seven scheduled days would be required for any reason, including disclosure problems that had arisen since those dates were set.

[138] In the dozens of court appearances leading up to March, 2020 (including the trial confirmation appearance on February 12, 2020), there is no indication in the transcripts that the Applicant’s counsel took the position that there were disclosure problems that would cause delay or that would require additional court time. If, after the dates were set in June, 2019, the Applicant’s counsel had reason to believe that additional court time would be required to complete the Charter applications or trial, then counsel should have appeared before the court and requested more dates.

[139] There is a dispute about what was said regarding disclosure issues at the judicial pre-trials. Counsel for the Applicant called David Robinson as a witness on this application. Mr. Robinson is a lawyer who works at the same law firm as the Applicant’s counsel. Prior to being asked to prepare an affidavit for the s. 11(b) application, Mr. Robinson had no involvement with this case. He did not attend any of the court appearances or judicial pre-trials. Mr. Robinson agreed that his knowledge of what occurred at the judicial pre-trials was based on hearsay. During cross-examination by Crown counsel, Mr. Robinson agreed that there were no e-mails or transcripts in which the Applicant’s counsel stated that critical disclosure was missing and that (a) it would affect the setting of the trial; or (b) would affect the trial time that had been set.

[140] Mr. Robinson testified that, based on what the Applicant’s counsel told him, he believed that disclosure issues had been canvassed at the two judicial pre-trials held in May and June, 2019. Crown counsel asserted that disclosure issues had never been raised at either of the judicial pre-trials. In the factum filed by the Crown on this application, Crown counsel wrote, “…at no point during that JPT [on June 13, 2019] did the Applicant advise the Crowns of outstanding disclosure or mention that the disclosure that was outstanding was critical.”

[141] I heard no direct evidence from anyone who attended the judicial pre-trials. Based on this record, I do not know what, if anything, was said during the judicial pre-trials about the importance of some of the outstanding disclosure or the impact that disclosure issues might have on the amount of time required for the pre-trial motions or the trial.

[142] There is no question that, on a number of occasions, it took the Crown too long to provide meaningful responses to defence disclosure requests. The answers provided by Crown counsel to disclosure questions were not always consistent. On occasion, the Crown’s responses to disclosure requests appeared to be somewhat dismissive.

[143] In R. v. Murphy, 2013 ONSC 6272 at para. 34, O’Marra J. concluded as follows: “[f]or disclosure problems to have a meaningful impact on the s. 11(b) analysis they must have actually caused a delay in this case.” In this case, while no doubt frustrating to the Applicant’s counsel, neither the delayed disclosure nor the timing and/or content of the Crown’s responses to disclosure requests added any additional meaningful delay to the case.

[144] When the dates for the Charter applications and trial were set in June, 2019, both counsel and the Court made good faith efforts to establish realistic time estimates. Despite those efforts, this case went longer than was reasonably expected. In March, 2020, appropriate steps were taken to obtain the earliest reasonable continuation dates.

[145] In my view, the 101 days between March 17, 2020 and June 26, 2020 should be characterized as an exceptional circumstance: Jordan, supra, at para. 73; McNeill-Crawford, supra, at paras. 28-31; R. v. Antic, 2019 ONCA 160, at para. 8; R. v. Jurkus, 2018 ONCA 489, at para. 55.

[146] In total, I would subtract 153 days (or 5.0 months) as delay caused by the discrete exceptional events.

Remaining Delay

[147] After the delay caused by the discrete exceptional events is subtracted from the net delay, the remaining delay is 514 days or 16.9 months. [32]

Has the Applicant Established that the Delay was Unreasonable?

[148] As the remaining delay fell below the 18 month presumptive ceiling, in order to establish that the delay was unreasonable, the onus is on the Applicant to show the following:

1. that he took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and
2. the case took markedly longer than it reasonably should have. [33]

[149] In Jordan, supra, at para. 83, Moldaver J. stated that, “[w]e expect stays beneath the ceiling to be granted only in clear cases.”

[150] To show that the defence took meaningful and sustained efforts to expedite the proceedings, “it is not enough for the defence to make token efforts such as to simply put on the record that it wanted an earlier date”: Jordan, supra, at para. 85. The defence must demonstrate that “it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court, put the Crown on timely notice when delay was becoming a problem and conducted all applications (including the s. 11(b) application) reasonably and expeditiously”: Jordan, supra, at para. 86.

i. Sustained Effort

[151] While the Applicant took some steps that demonstrated an effort to expedite the proceedings, I conclude that the Applicant did not take meaningful steps that demonstrated a sustained effort to expedite the proceedings.

[152] I will start by reviewing the steps taken by the Applicant to expedite the proceedings. I am satisfied that the Applicant took the position that non-consecutive dates for the pre-trial motions and the trial should be set in an effort to expedite the proceedings. In R. v. MacIsaac, 2018 ONCA 650, at para. 61, Huscroft J.A. observed that “[l]arge blocks of time will often be unavailable when setting trial dates.” In MacIsaac, supra, at para. 61, Huscroft J.A. also noted that while the Crown in that case was entitled to seek ten consecutive days for trial, “that was a choice with consequences.” One potential consequence is additional delay. In this case, the record does not allow the Court to conclude when the trial would have concluded if a staggered approach to scheduling had been adopted from the outset. It is not possible to determine whether there was judge who was available to conduct the pre-trial motions and the trial on non-consecutive dates (when all counsel were also available) prior to March, 2020. [34] However, it is reasonable to suggest that earlier dates may have been available.

[153] I view the disclosure requests made by the Applicant, starting in April, 2019, as part of an effort to expedite the proceedings and potentially avoid unnecessary litigation. The Applicant’s counsel sent seven detailed disclosure letters to Crown. I do not accept the Crown’s position that the number and/or nature of disclosure requests were overwhelming and that it was difficult to keep track of what disclosure the Applicant was seeking. [35] This was not a case where the defence was attempting to generate a basis for a s. 11(b) application, “by making a continuous stream of requests for materials that have no potential relevance”: R. v. N.N.M. (2006), 209 CCC (3d) 436, at para. 37 (ON CA).

[154] In my view, in an effort to avoid unnecessary delay and use court time efficiently, the Crown could have taken a more “proactive, preventative problem solving” approach to disclosure: Jordan, supra, at para. 112. By way of one example, as previously mentioned, the Applicant’s counsel asked the Crown whether any of the surveillance officers saw how the person alleged to be the Applicant accessed the underground parking garage at 720 Tretheway Drive on October 28, 2018. This was not a request for irrelevant or privileged information. This was not a situation where the defence was seeking to have the police conduct an investigation at the direction of the defence. The Applicant was asking for information that the police already had. Instead of asking the police officers for the answer, Crown counsel took the position that the Crown’s disclosure obligations were completely satisfied by providing the notes of the police officers (which did not address this issue). However, as I have already said, the results of the disclosure application were mixed and I cannot conclude that, ultimately, disclosure issues contributed in a meaningful way to the delay in this case.

[155] I do not accept Crown counsel’s submission that the Applicant’s counsel “conducted herself in ways that has purposely protracted the proceedings.” The Applicant’s counsel missed a couple of filing deadlines. The oral submissions made by the Applicant’s counsel with respect to certain issues in March, 2020 were quite lengthy. [36] On one occasion, the Applicant’s Charter materials were served on the PPSC’s office, instead of the Provincial Crown’s office. [37] However, I see no reasonable basis to conclude that any of this was a deliberate effort by the Applicant’s counsel to add to the delay or make it difficult for the Crown to respond to the Charter applications in a timely manner.

[156] I will now turn to some of the steps that were not taken by the Applicant. The Applicant made over a dozen court appearances before a trial date was set. On a number of occasions in early 2019, the matter was adjourned at the request of the Applicant. The first disclosure letter was sent by the Applicant’s counsel to the Crown approximately five and a half months after the Applicant was arrested. During this period, the Applicant appeared content with the pace of the proceedings and did not take meaningful steps that demonstrated a sustained effort to move the matter along.

[157] According to the Applicant’s counsel, when the trial dates were set in June, 2019, a “disclosure motion was never contemplated in our time estimates.” Counsel for the Applicant should have sought additional dates, on the record, for the pre-trial motions and trial as soon as it became apparent that more time would be required. An attempt by the Applicant to have the Court revisit the time requirements of the case, prior to the commencement of the pre-trial motions and trial, would have demonstrated an effort to expedite the proceedings.

[158] As it appears that the transcripts that were required for the s. 11(b) application were available in April, 2020, the Applicant’s materials for the s. 11(b) application could have been prepared and provided to the Crown before July, 2020. If that had been done, it is likely that it would have been possible to set the hearing dates for the s. 11(b) application on July 6, 2020. [38]

ii. Markedly Longer

[159] The determination of whether a case markedly exceeded what was reasonably required is “not a matter of precise calculation”: Jordan, supra, at para. 91. Trial judges have been directed not to parse each day or month to decide whether each step that was taken was reasonably required: Jordan, supra, at para. 91. When deciding whether a case took markedly longer than it reasonably should have, a trial judge must, “step back from the minutiae and adopt a bird’s-eye-view of the case”: Jordan, supra, at para. 91.

[160] The complexity of the case is a factor that must be considered in determining whether the time a case has taken markedly exceeded the reasonable time requirements of the case: Jordan, supra, at para. 87. Cases fall along a “continuum of complexity ranging from the simplest to the most complex”: R. v. Roberts, 2018 BCSC 2300, at para. 99, aff’g 2020 BCCA 307. This is not the most complex case. However, given the number and nature of the Charter issues, it is clearly not at the other end of the complexity spectrum. Seven days were originally set aside for this matter. As of July, 2020, it was expected that the pre-trial motions and trial would require about fifteen days of court time. [39] The additional dates had to be obtained to accommodate the increasingly lengthier trial time estimates while, at the same time, the Court was dealing with a backlog of cases and the ongoing public health crisis.

[161] The Crown did take some reasonable steps to expedite the proceedings, including relying on the Crown’s written submissions instead of making oral arguments on some of the issues that were litigated. In June, 2020, the Crown proposed a number of ways to expedite the matter. Finally, as early as November, 2018, the Crown was prepared to set a date for a judicial pre-trial and, by January, 2019, provided sufficient disclosure to allow the Applicant to make an informed decision as to the mode of his trial.

[162] While the time to the anticipated end of the trial is concerning, given all of the circumstances – including the impact of the COVID-19 pandemic on court operations and the fact that the trial went longer than was reasonably anticipated – it is my conclusion that the time this case has taken did not markedly exceed the reasonable time requirements of the case.

CONCLUSION

[163] The Applicant has not established that the delay was unreasonable. The application is dismissed.

NORTH J.

[1] The residence was a basement apartment located at 2535 Eglinton Avenue West, Toronto (2535 Eglinton Avenue). The car was a 2014 Honda Civic, with a licence plate CFNL 349 (Honda Civic). [2] Crown counsel who conducted the bail hearing was not involved in this prosecution after the bail hearing. This matter was prosecuted by Crown counsel for both the Attorney General of Ontario and the Public Prosecution Service of Canada (PPSC). In these reasons (unless otherwise noted) when I refer to Crown counsel, I am referring to counsel for the Attorney General of Ontario. [3] For a total of 11 or 12 days of court time. [4] This response was contained in the Crown’s May 24, 2019 letter. [5] Police did not seize any evidence during the execution of the search warrant at 710 Tretheway. [6] The drug expert report was disclosed on May 12, 2020. [7] The procedure used during this process was similar to that described in R. v. Simpson, 2020 ONCJ 40. [8] Exhibit 13. [9] Which she completed in writing on March 13, 2020. [10] Three days for the pre-trial applications and two days for the trial. As I will address later, by July, 2020, both counsel agreed that nine additional days would be required (including two days for a s. 11(b) application). [11] With two additional dates to be obtained on March 17, 2020. [12] On a subsequent date, the Applicant’s counsel conceded that the proposed judicial summary was sufficient. [13] In addition to May 6, 12 and 13, 2020 for the pre-trial motions. [14] Subject to a judge seized with a continuing matter ordering otherwise. [15] This response was sent after the trial coordinator spoke to me and the local administrative judge. [16] These dates were formally vacated on June 9, 2020. [17] On a number of subsequent occasions, in an effort to expedite the proceedings, Crown counsel suggested that submissions on the pre-trial applications should be made only in writing. [18] Given the impact of the COVID-19 pandemic on court operations, counsel for the Applicant was not required to file a hard copy of the s. 11(b) materials. [19] At my request, there was a gap between each of the applications for deliberation time. [20] When the new dates were set all counsel agreed that only two days would be required for the trial proper. [21] See R. v. Coulter, 2016 ONCA 704, at paras. 34-41. [22] In these reasons, to convert days to months, I have used the formula set out in R. v. Shaikh, 2019 ONCA 895, at footnote 2. Month figures are rounded to one decimal point. [23] See also R. v. Cody, 2017 SCC 31, at paras. 31 and 32. [24] See also Cody, supra, at para. 33. [25] On April 26, 2019, counsel for the Applicant requested that the Court schedule a second judicial pre-trial. [26] See also R. v. Albinowski, 2018 ONCA 1084, at paras. 28 to 34; R. v. Mikhailov, 2020 ONCJ 507, at paras. 28-32. [27] The trial coordinator’s office began to reschedule matters that had been adjourned because of COVID-19 on July 6, 2020. [28] In Pinkowski, supra, at para. 42, Javed J. recently concluded that all of the delay from the original trial date in April, 2020 until the rescheduled trial date in January, 2021 was properly considered as an exceptional circumstance. [29] However, as I will address later in my reasons, it is my conclusion that the delay between March 17, 2020 and June 26, 2020 should be treated as an exceptional circumstance as a result of the trial going longer than was reasonably expected. [30] In Greenidge, supra, at para. 30, Monahan J. concluded that, “…for the Crown to rely on the pandemic as an exceptional circumstance, the Crown must prove on a balance of probabilities that but for the pandemic, earlier dates would have been obtained for this case to have been tried and completed within the 18 month ceiling or at least the Crown would have been able to secure earlier dates from the trial coordinator’s office to offer to the defence which would have permitted the trial to be completed below the presumptive ceiling (or which might be viewed as defence delay if not accepted).” [Emphasis in original.] [31] This was before the Applicant brought the s. 11(b) application. [32] I have not subtracted the 18 days between October 22, 2020 and November 10, 2020 as a discrete exceptional event, as this period was already deducted as defence delay. [33] Jordan, supra, at para 82. [34] It must also be remembered that the initial time estimate was inadequate. Even if the trial dates had been set in a staggered fashion (as initially suggested by the Applicant), additional dates would have been required. [35] As previously noted, on June 17, 2019, the Applicant’s counsel sent a letter to Crown counsel which included a consolidated list of the disclosure that remained outstanding (as of that date). [36] As previously indicated, I subsequently imposed time limits on oral submissions. [37] Crown counsel had requested that the Applicant serve these materials on the Provincial Crown’s office. [38] And possibly avoid about three weeks of delay. The s. 11(b) application was set on July 30, 2020 and heard on August 17th and 18th, 2020. [39] This does not include the day that the Applicant was not brought to court in March, 2020, the time taken for the bail review application in May, 2020 or the additional time required after November, 2020.