ONTARIO COURT OF JUSTICE
CITATION: R. v. Delves, 2022 ONCJ 141
DATE: 2022 03 28
Information Number 19-10799
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
DESMOND DELVES
Before Justice A.J. CAMARA
Heard on March 8, 2022
Reasons for Judgment released on March 28, 2022
Tessa Moran ............................... Agent for the Public Prosecution Service of Canada
Allan J. Lobel and Riaz Sayani................................................. counsel for the accused
Camara J.:
[1] This is an application by Mr. Delves for a finding that his right to a trial within a reasonable time under Section 11(b) of the Charter was breached, and for a stay of the proceedings pursuant to Section 24(1).
Introduction and Position of the Parties
[2] The Applicant is charged with offences relating to a drug trafficking investigation. The charges relate to the search of the Applicant at the time of his arrest, and the execution of three search warrants, on one vehicle and two residences. On March 26, 2019, the Applicant was arrested and his charges were included on two informations: 19-2911 and 19-3067. The Applicant was jointly charged on 19-3067 with Andrena Delves. On March 28, 2019, there was an additional search conducted of a third residence which resulted in the Applicant being arrested again, more than two months later, and charged with 11 additional CDSA offences.
[3] A new information was sworn on November 20, 2019, and put before the court with changes to the counts relating to the charges of March 26, 2019, and charges of March 28, 2019. The November 20, 2019 information included three new CDSA charges alleging the Applicant and Michael Easton were in joint possession for the purpose on April 4, 2019. Michael Easton has since passed away. The charges against Ms. Andrena Delves have since resolved.
[4] The Applicant has elected to have his trial in the Ontario Court of Justice.
[5] The Applicant’s trial is scheduled to commence May 30, 2022 and complete June 13, 2022. The total time from March 26, 2019, the date of the first arrest, to June 13, 2022, is 1176 days, or 38 months and 19 days.
[6] The Applicant’s position is that there ought to be 85-days of defence delay subtracted from this figure. Further, the Applicant argues that 205 days ought to be considered exceptional circumstances caused by the COVID-19 pandemic. Once the defence delay and the delay caused by the COVID-19 pandemic is deducted from the total delay, the net delay is 886 days (29 months). The resulting net delay still exceeds the 18-month ceiling and inverts the onus onto the Crown to justify the presumptively unreasonable delay.
[7] The Crown’s position is that there are 602 days that ought to be attributed to the defence. Further, the Crown argues that 689 days ought to be considered exceptional circumstances caused by the discrete event of the COVID-19 pandemic. Once both the defence delay and the delay caused by the COVID-19 pandemic are deducted from the overall delay the net delay is 282 days (9.3 months) which is well-below the Jordan ceiling.
[8] The following is a summary of the significant dates within the case chronology:
March 26, 2019
Date of Arrest and Information 19-2911 and 19-3067 Sworn
March 27, 2019
Adjourned for bail hearing
April 1, 2019
Adjourned for bail hearing
April 4, 2019
Contested bail hearing; Applicant released
May 8, 2019
First Appearance
Initial disclosure provided
June 5, 2019
Second Appearance
Applicant indicates he expects to retain A. Lobel
Legal Aid Application has been denied and he intends to appeal the decision
June 12, 2019
Applicant is arrested on charges arising from March 28, 2019 search
June 13, 2019
Information 19-5204 sworn relating to search on March 28, 2022
June 13, 2019
Applicant is released on new global bail
July 3, 2019
Third Appearance
Crown provides screening form and disclosure for March 28, 2019 charges
July 24, 2019
LAO provincial Appeals office denies the appeal
July 31, 2019
Fourth Appearance
Applicant indicates the prospect of a Rowbotham application and he informs the court he is awaiting his pre-arrest disclosure
August 28, 2019
Fifth Appearance
Agent informs court that A. Lobel is in the process of bringing a Rowbotham Application
Possibility raised by counsel for Andrena Delves that she will be joined with Desmond Delves.
A. Delves ready to set date for JPT
September 25, 2019
Sixth Appearance
Applicant advises A. Lobel pursuing a Rowbotham application and application for the return of seized funds.
Crown pretrial has already been conducted with A. Lobel
October 23, 2019
Seventh Appearance
Federal Crown and counsel for A. Delves ready to set date for JPT
Significant disclosure to co-accused Mr. Easton; some further disclosure to Applicant
November 20, 2019
Information 19-10799 sworn joining all three accused
November 20, 2019
Eighth Appearance
Applicant advises he needs to attend A. Lobel’s office to sign an affidavit. A. Lobel not yet retained.
Crown and Co-accused ready to set date for JPT
December 9-18, 2019
A Lobel writes to Trial Co-ordinator about scheduling a return of funds application
A Lobel files Access to Seized Funds Application with trial co-ordinator anticipating a hearing date to be put on the record on December 18, 2019.
December 18, 2019, A. Lobel advised that JPT required for approval of time estimate. Court copy of the application was returned to A Lobel.
December 18, 2019
Ninth Appearance
JPT was booked for approval for time estimate for the return of seized funds application
February 14, 2020
JPT Conducted
Access to Seized funds motion granted ½ day of court time
February 26, 2020
Tenth Appearance
Motion for Return of Funds scheduled and Continuing JPT set for March 17, 2020
March 17, 2020
Eleventh Appearance
Matter adjourned to May 26, 2020 due to COVID-19 pandemic
May 26, 2020
Twelfth Appearance
Matter adjourned because of COVID-19 pandemic
August 4, 2020
Thirteenth Appearance
A Lobel prepared to reset the Return of Seized Funds Application
Court unable to set further dates because of provincial directive
August 21, 2020
Fourteenth Appearance
A Lobel attempting to set the date but needed to schedule the scheduling conference
August 27, 2020
Fifteenth Appearance
Return of Seized Funds Application set for November 5, 2020
November 5, 2020
Sixteenth Appearance
A Lobel unwell and unable to attend court. Application adjourned
November 17, 2020
Seventeenth Appearance
New Application for Return of Seized Funds date put on the record for December 18, 2020
December 18, 2020
Sixteenth Appearance
Return of Seized Funds Application did not proceed because of conflict of interest between Justice Zabel and the originally assigned Federal Crown who had since been appointed to the Superior Court of Justice
December 21, 2020
Seventeenth Appearance
Return of Seized Funds Application rescheduled
January 26, 2021
Eighteenth Appearance
Return of Funds Application granted on consent
February 3, 2021
Nineteenth Appearance
JPT date of February 26, 2021 put on record
February 26, 2021
JPT Conducted
Applicant had not made his election
Agreed to set 3 days and convert them to a trial with additional dates if Applicant choose OCJ Trial
March 3, 2021
Trial Co-ordinator contacts counsel regarding scheduling PH
March 10, 2021
Twentieth Appearance
Continuing JPT is scheduled for March 25, 2021
April 7, 2021
Twenty-First Appearance
A further trial scheduling call scheduled for April 19, 2021
April 19, 2021
Trial Scheduling conference conducted and the following dates are confirmed:
April 7, 2022 ½ day leave to cross; April 21, and 22, 2022 Garofoli Hearing, May 17, 2022 one hour for ruling; May 30, 31, June 2, 3, 2022 trial proper; June 13, 2022 Trial submissions
➢ Earlier dates were offered but counsel was unavailable:
▪ February 8, 16, 18; March 11, 14-16, 18, 25, 2022
▪ February 4, 7, 8, March 4, 14-17, 23, 2022
April 21, 2021
Twenty-Second Appearance
Trial dates put on the record
April 7, 21, 22, May 17, 30, 31, June 2, 3, and 13, 2022
Motion and Trial dates
The 11(b) Analytical Framework
[9] The Applicant’s right to a trial within a reasonable time is guaranteed by Section 11(b) of the Charter of Rights and Freedoms.
[10] The Supreme Court of Canada held in Jordan[^1] that there is a presumptive ceiling on the time it should take to bring an accused to trial. In the Ontario Court of Justice, this presumptive ceiling is 18-months[^2].
[11] How to apply the framework was summarized in Coulter[^3] as follows:
i) Calculate the total delay, from the charge to the anticipated end of trial
ii) Subtract from this total delay any defence delay to get the net delay
iii) Compare this net delay to the presumptive 18-month ceiling
iv) If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. The Crown can rebut this presumption if it can establish the presence of exceptional circumstances. If it cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases
v) 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
vi) 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.
vii) If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.
[12] The Supreme Court of Canada clarified what constitutes defence delay in R v. Cody:
Defence delay arises from a defence waiver or is caused solely by the conduct of defence. The only deductible defence delay under this component is, therefore, that which: 1. Is solely or directly caused by the accused person; and 2. Flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. As we said in Jordan, the most straightforward example is “deliberate and calculated defence tactics aimed at causing delay which include frivolous applications and requests (Jordan, at para 63). Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted (Jordan, at para 64). These examples were, however, just that – examples. They were not stated in Jordan, nor should they be taken now, as exhaustively defining deductible defence delay. Again, as we made clear in Jordan, it remains “open to trial judges to find that their other defence actions or conduct have caused delay” warranting a deduction (para 64).
The determination of whether defence conduct is legitimate is “by no means an exact science” and is something that “first instance judges are uniquely positioned to gauge” (Jordan, at para 65). It is highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. While trial judges should take care to not second-guess steps taken by defence for the purposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate to do so.[^4]
[13] Understanding of this illegitimate defence conduct should not be taken as diminishing an accused person’s right to make full answer and defence. Illegitimate in the Jordan context is not tantamount to a finding of professional misconduct. Indeed, defence counsel may still pursue all available substantive and procedural means to defend their clients. What defence counsel are not permitted to do is engage in illegitimate conduct and then have it count towards the Jordan ceiling. [^5]
The Applicability of Jordan Principles for the Calculation of Defence Delay
[14] The Applicant’s position is that 87 days of delay are attributable to the defence. Specifically, between November 5, 2020 - December 18, 2020 (44 days) and March 10, 2021 - April 21, 2021 (43 days) are conceded as attributable to the defence. The Applicant argues that the application for the release of seized funds was not frivolous and was necessary for the accused to defend against the charges.
[15] Beyond the dates conceded by the defence, the Crown argues that the defence is responsible for the following periods of delay:
Delay in retaining counsel and perfecting the Application to access seized funds from August 18, 2019 to December 18, 2020 (478 days)
Delay between first dates offered for trial and the anticipated last date of trial: March 23, 2022 – June 13, 2022 (82 days)
Alternatively, the Crown argues that there is overlap of delay caused by the defence with delay caused by COVID-19. I will address the delay caused by COVID-19 later in this judgment.
Delay from August 18, 2019 to December 18, 2020 (478 days)
[16] The Respondent argues that this broad period of delay is attributable to the defence. There is some overlap during this time frame of delay caused by COVID which is acknowledged by the Respondent.
[17] Specifically, the Respondent argues that the Applicant alluded to the necessity of a Rowbotham application as early as August 18, 2019. The Applicant did not file the application to access seized funds until December 18, 2019. The Respondent argues that when it was filed, the application was deficient and the Crown’s response materials put the Applicant on notice of its position and highlighted the deficiencies in the application record.
[18] Specifically, the Respondent’s materials filed March 2, 2020, noted that the Application was deficient in the following areas:
(i) There was insufficient material in the application to address the test set out in Section 462.34(4) of the Criminal Code, which includes
(a) They have an interest in the seized property
(b) No other person owns or is entitled to possession of the property
(c) No other asset or means to pay are available to him
(ii) There were no financial statements included in the Applicant’s materials to allow the court to conduct any type of review of the Applicant’s financial situation.
[19] Despite that, the Applicant did not supplement the Application record until December 13, 2020 – 9 months later. It was not until the Application record was supplemented could the Respondent reasonably assess its position on the access to seized funds motion.
[20] The application did not proceed on December 18, 2020, due to the actions of the Respondent. The Crown relied upon material prepared by the original federal Crown who had since been appointed to the Superior Court of Justice. That material ought to have been refiled. As it turns out, the case was put in front of Justice Zabel on December 18, 2020. The original federal Crown did not appear in front of Justice Zabel due to a conflict of interest. Had the Crown refiled their materials so that the author was not a sitting Superior Court Judge, the matter would have been able to proceed on December 18, 2020. Due to the conflict, the matter was rescheduled for January 26, 2021. The Respondent fairly concedes that the delay between December 18, 2020, to January 26, 2021, is attributed to the Crown.
[21] Ultimately, the Crown did consent to the release of the seized funds in January 2021 following an updated affidavit being filed from Mr. Delves which outlined his loss of employment. That significant change in circumstances was the factor that prompted the Crown to consent to the Application.
[22] Courts have previously held that an accused who is seeking a Rowbotham Application, legal aid or the release of seized money for legal expenses is not defence delay, as these types of applications are not frivolous and are necessary for an accused to defend against the charge[^6]. I agree with the Applicant that in this case, the application for the release of seized money for legal expense was not a frivolous application. However, the manner in which this legitimate application was brought before the court was not done expeditiously.
[23] However, attributing the delay in filing the motion from August 2019 to December 2019 ignores the fact that a new information was put before the court on November 20, 2019. The filing of this new information was significant and did more than correct a minor error to a previous information. The new information joined three accused persons onto one information and added additional charges against Mr. Delves. The new information significantly changed the landscape of the prosecution. The delay between August 2019 to December 18, 2019 is not attributable to the defence.
[24] In December 2019, the defence was ready to file their motion to access seized funds but was advised for the first time that a Judicial Pretrial was required for approval of the court time. From the materials provided, it appears neither the Crown nor the Defence were aware of the necessity for a JPT to be able to set this motion. That JPT was set for February 14, 2020. The delay between December 18, 2019, and March 17, 2020, is not attributable to the defence, rather is properly considered inherent time.
[25] The Crown filed its response to the Application on March 2, 2020. That response highlighted deficiencies in the Application. The Application was not supplemented until December 2020. I find that the delay from March 17, 2020, to December 18, 2020, is attributable to the defence. By delaying filing supplemental materials, the Crown was unable to assess the merits of the application. Court time was required to be set aside for litigation of the motion. Had the application been perfected expeditiously, the motion may very well have been heard on consent at an earlier date[^7]. As a result, I attribute 276 days (March 17, 2020, to December 18, 2020) to the defence.
Delay between first dates offered for trial and the anticipated last date of trial: March 23, 2022 – June 13, 2022 (82 days)
[26] The Crown argues that the 82-days of delay between the end of the first offered trial date March 23, 2022 and the end of the agreed upon trial date, June 13, 2022 ought to be attributed to the defence. The Applicant disagrees.
[27] The Supreme Court of Canada in Jordan at paragraph 64 directs that: “the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from the unavailability will be attributed to the defence” .
[28] In this case, earlier trial dates were offered but the Applicant’s counsel was unavailable. The Applicant argues that counsel was available for trial earlier than the dates offered by the court. There is vague reference on the record that counsel had earlier dates, but those dates were not specifically articulated. In my view, these 82-days will be attributed to the defence since the crown and the court were available, but the defence was unavailable.
Total Defence Delay
[29] The following periods of delay are attributed to the defence:
March 17, 2020 – December 18, 2020: 276 days
March 10, 2021 – April 21, 2021: 42 days
March 23, 2022 – June 13, 2022: 82 days
The total delay attributed to the defence is 400 days.
2. Calculation
[30] The total delay in this case, from the date the information was sworn to the date anticipated to be the last day for trial, is 1174 days. From this total, 400 days of defence delay must be subtracted. The net delay is 774 days (25.4 months).
Exceptional Circumstances: COVID-19
[31] The net delay exceeds the presumptive ceiling. The remaining analysis shifts to a consideration of whether any exceptional circumstances exist which could operate to reduce and make reasonable the overall delay. Exceptional circumstances fall into two categories: discrete events and particularly complex cases.
[32] The seriousness of the offence is not part of the analysis.[^8]
[33] Trial judges are instructed to be alert to the practical realities of trials, which can include unpredictable events. It is understood that unforeseeable or unavoidable breakdowns can happen, which bring the case to a halt and result in scheduling targets being exceeded.[^9] This case and the ability of counsel to move the case forward and set dates for motions and the trial was impacted by the COVID-19 pandemic. The Applicant and Respondent disagree as to how much time should be characterized as delay caused by COVID-19 and thus how much delay ought to be characterized as a discrete event.
[34] The Applicant argues that the time from March 17, 2020 (the date of the imposition of the province-wide lockdown) to November 5, 2020 (the date when the parties were able to reschedule the Application in accordance with the Provincial Directives) ought to be considered as a discrete event.
[35] The Respondent argues that the period between March 17, 2020 and February 4, 2022 ought to be considered a discrete event. The Respondent makes this submission acknowledging that some of this period is attributed to the defence and some is attributed to the Crown. Given the findings made regarding the defence delay and Crown caused delay, I will consider whether the period from January 26, 2021 to March 10, 2021, and April 21, 2021 to February 4, 2022, ought to be characterized as a discrete event caused by the COVID-19 pandemic.
[36] On January 26, 2021, the application to release the seized funds was granted, the matter moved through the system expeditiously. A Judicial Pretrial was conducted and estimates of trial time was complete. The Crown and Court were ready to set trial dates on March 10, 2021. The Applicant requested additional time to obtain instructions from his client. The period between March 10, 2021 and April 19, 2021 is conceded properly as defence delay. On April 19, 2021, trial dates were set. The first dates offered were not available to the defence. I have already determined that the time between the end of the first date offered (March 23 2022) and the end of the trial (June 13, 2022) ought to be attributed to the defence. The delay from January 26, 2021 to March 10, 2021, was not impacted by COVID. Rather this matter was able to move through the judicial process without obstacle. Both the Crown and Defence acted appropriately and took the necessary steps to obtain appropriate trial dates. This time is properly considered inherent time and not a discrete event.
[37] The remaining question is whether the 289 days from April 21, 2021 to February 4 2022, ought to be characterized as delay caused by COVID-19.
[38] There is no doubt that the “COVID-19 public health crisis was unquestionably a reasonably unforeseen and reasonably unavoidable discrete event”[^10]. Justice Nakatsuru in Simmons concluded that the entire time from the start of the impact of COVID-19 on the courts, to the date of the scheduled trial, as opposed to only the time period where trials have been actually suspended, constitutes a discrete exceptional event within the Jordan framework. Nakatsuru J. explained:
[T]he impact of the COVID-19 pandemic on the criminal justice system is not limited to those periods of time when the court had to adjourn scheduled cases or when jury trials were suspended. It has had numerous and far-reaching impacts upon how we do things, and, on the people, who do them. Not the least has been the necessity to take measures to protect the health and safety of justice participants and the public. The way trials are conducted needed to be transformed. Physical courtrooms had to be changed. Some trials are now conducted virtually. This in turn, has had a significant impact on scheduling. Scheduling new trials and rescheduling existing trials have become more complex and difficult. A backlog of cases has ensued. A lack of resources was not the case. Rather, COVID-19 was. It has had a system-wide impact of unpreceded proportions, never seen before in our lifetime.[^11]
Simmons and other authorities cited by both counsel are trial level decisions and are not binding upon me. I agree with Justice Agro’s finding that Simmons reflects considerations specific to the Superior Court of Justice and the challenge of scheduling jury trials throughout the pandemic[^12].
[39] The issue in this case is whether the delay in scheduling the trial was the result of COVID-19 or was the delay the result of the lack of resources in Hamilton. A blanket approach which is devoid of a contextual analysis is contrary to the approach mandated in Jordan. Rather, a contextual analysis is necessary to assess the nature of the delay in this case.
[40] There is an absence of an evidentiary foundation before me for an analysis of what is the cause of the delay. For instance, I have no statistical information about the impact that the COVID-19 pandemic had on scheduling trials in Hamilton.
[41] The Applicant suggests that the court look to reported cases in Hamilton where stays have been granted or dismissed for reasons other than COVID-19[^13]. Those cases suggest that there has been a long-standing issue in Hamilton regarding a lack of resources and significant delays in setting trials. For instance, in Betz, trial dates were arranged on November 22, 2019 (pre-pandemic) for 5 days of trial in December 2020 some 12-months later.
[42] There simply is not enough information before me to make a determination that this period of time ought to be classified as a discrete event. While I accept that some delay ought to be considered the result of COVID-19 and the ensuing backlog of cases, I am unable to assess how much delay is the result of COVID-19. Even if the court were to arbitrarily attribute half of this time (145 days) the resultant delay still exceeds the 18-month ceiling.
[43] That being said, once the presumptive ceiling is breached, the Crown can no longer simply point to a past difficulty. Jordan makes it clear that this is not enough.[^14] Jordan identifies three responsibilities as incumbent on the Crown within its duty to bring a defendant to trial within a reasonable time[^15]. They are:
(1) To anticipate potential scheduling problems;
(2) To take reasonable steps to avoid them; and
(3) To address any problems promptly[^16].
[44] The trial date in this matter was set well outside the presumptive 18-month Jordan ceiling. The record suggests that the Crown was aware of this fact but took no steps to address the problem. Discrete events do not qualify as exceptional circumstances if they can be reasonably remedied by the Crown[^17].
[45] Jordan offers several suggestions to Crowns of steps which can be taken to promptly address scheduling difficulties.
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. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful – rather, just that it took reasonable steps in an attempt to avoid the delay.[^18]
[46] The Crown took no steps to address this situation. No attempt was made to secure earlier dates. No attempt was made to put the case before the Local Administrative Judge to obtain earlier dates. Further, there is no evidence before the court about what steps the Respondent took, if any, to mitigate the impact of COVID-19 and the backlog of cases.
[47] In this case, the first trial date offered was over 11-months away and the resultant delay was well outside Canada’s presumptive ceiling for trials at the Ontario Court of Justice.
Complex Case
[48] The Respondent argued, in the alternative, that this case ought to be considered complex such that the time taken for it to reach trial is justified and the delay is reasonable.
[49] The Crown may justify excessive delay by showing that the case is particularly complex and that it attempted to develop and execute a plan that minimized the delay occasioned by such complexity[^19]. Importantly, the Crown must link complexity to the delay that ensued and demonstrate that, despite developing a plan to address the complexity and minimize the delay, it was unable to do so[^20].
[50] Complex cases require “an inordinate amount of trial or preparation time” due to the nature of the evidence or the issues. The Court in Jordan elaborated on case complexity in the following passage:
As for the nature of the evidence, hallmarks or particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications, novel or complicated legal issues, and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case[^21].
[51] In Powell, Nordheimer J.A. provided a helpful review of the common features of complex cases and the Crown’s obligations when complexity is present[^22]:
…[I]n determining whether a case is particularly complex, the following factors are of importance:
• Case complexity requires a qualitative, not quantitative, assessment: R v. Cody, 2017 SCC 31 at para 64
• Complexity is an exceptional circumstance only where the case as a whole is particularly complex: Cody, at para 64
• Complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified: Jordan, para 77
• If the case is complex, then the court must look at whether the Crown developed and followed a concrete plan to minimize the delay occasioned by the complexity: Ontario (Ministry of Labour) v. Nugent, 2019 ONCA 999 at para 31.
[52] I agree with the Respondent that this case is not comparable to a theft under, a failure to attend court or a simple assault. Rather, this case involves several search warrants which were part of a large CDSA investigation. I have not been advised nor received the materials for the pretrial applications. I have no information about the complexity of the anticipated Garofoli application or whether the challenge to the warrant(s) involves novel issues or confidential human sources. I have no information about the volume of disclosure, nor the number of witnesses anticipated for the motion or the trial. Without more information, I am unable to assess the complexity of the case.
[53] Even if I were to find that the case is complex, the Respondent’s argument nonetheless fails because there is simply no evidence before me about whether the Crown developed and followed a concrete plan to minimize the delay occasioned by the complexity of the case. What I do know from the material filed before me is that it took the prosecution 240 days to lay the information before the court that included all the accused and all the charges. I have no evidence before me to explain how a nearly 8-month delay in putting the final and complete information before the court fits into the prosecution’s plan to minimize the delay in this case.
[54] I find that any delay occasioned because of the complexity of this prosecution does not justify the time that this matter has taken to reach trial.
Conclusion
[55] The delay is presumptively unreasonable. The application is granted. The Applicant’s rights pursuant to Section 11(b) of the Charter to be tried without reasonable delay have been breached and he is entitled to a remedy.
[56] In accordance with Section 24(1) of the Charter, I impose a stay of proceedings.
Released: March 28, 2022
Signed: Justice Amanda J. Camara
[^1]: R v. Jordan, 2016 SCC 27 (S.C.C.) at para 5
[^2]: R v. Wookey, 2021 ONCA 68 at para 3.
[^3]: R v. Coulter, 2016 ONCA 704 in paragraphs 34-40
[^4]: R v. Cody, 2017 SCC 31 at paras 30-31
[^5]: R v. Cody, supra, at para 34-35 and R v. Boulanger, 2022 SCC 2 at para 5 and 6.
[^6]: R v. Issacs, 2016 ONSC 6214, [2016] O.J. No. 5225 (S.C.J.); R v. Ny, 2016 ONSC 8031, [2016] O.J. No. 6618 (S.C.J.); R v. S.(D.M.), [2016] N.B.J. No. 310 (C.A.); R v. Park, [2016] S.J. No. 567 (Prov.Ct.).
[^7]: Boulanger, supra, at paras 5-6
[^8]: R v. Williamson, 2016 SCC 28; R v. Stanley, 2016 ONCJ 730.
[^9]: Jordan, Supra para 73
[^10]: R v. Drummond, [2020] ONSC 5495 at para 76.
[^11]: R. v. Simmons, [2020] ONSC 7209 at para 70.
[^12]: R v. Vorontosov, 2021 ONCJ 169 at para 43.
[^13]: R v. Voronotsov, 2021 ONCJ 169 and R v. Betz, 2020 ONCJ 377
[^14]: Jordan, supra, para 70.
[^15]: Jordan, supra para 70.
[^16]: R v. Elakrat, 2020 ONCJ 343 at para 33
[^17]: Jordan, supra, para 69.
[^18]: Jordan, supra at para 70.
[^19]: Jordan, supra at paras 77 and 79.
[^20]: R v. Wookey, 2021 ONCA 68 at para 83
[^21]: Jordan, supra at para 84
[^22]: R v Powell, 2020 ONCA 743 at para 7