ONTARIO COURT OF JUSTICE
CITATION: R. v. Cao, 2022 ONCJ 179
COURT FILE No.: Central East – Newmarket 4911-998-20-10224-00
DATE: 2022/04/14
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
YUE CAO
Before Justice Marcella Henschel
RULING ON SECTION 11(B) CHARTER APPLICATION
Heard on March 3, 2022
Reasons for Judgment released on April 14, 2022
Jeremy Mutton......................................................................................... counsel for the Crown
Peter Lindsay..................................................................... counsel for the defendant Yue Cao
HENSCHEL J.:
A. Introduction and Overview
[1] The Applicant, Mr. Cao is charged with one count of impaired driving and one count of "80 plus". The offences are alleged to have occurred on March 20, 2020, almost two years before the trial dates of March 7, and 8, 2022. Mr. Cao submits that his right to be tried within a reasonable time under s. 11(b) of the Charter has been violated. He seeks a stay of proceedings under s. 24(1) of the Charter.
[2] On March 7, 2022, I dismissed the s. 11(b) application with reasons to follow. The trial commenced on March 7, 2022 and continued on March 8, 2022. On March 25, 2022, I convicted Mr. Cao of impaired driving. The "80 plus" count was dismissed at the request of both parties. These are my reasons dismissing the s. 11(b) Charter application.
[3] The parties do not agree on the calculation of "total delay", "net delay", and "remaining delay" in this case. The Applicant submits that total delay should be calculated from the date of the arrest and release to the anticipated end date of the trial and that accordingly the total delay between March 20, 2020, and March 8, 2022 is 718 days, or 23 months and 19 days.
[4] The Applicant submits that after deductions are made for defence delay and exceptional circumstances, the remaining delay is 617 days, or 20 months and 9 days, a period that exceeds the presumptive ceiling beyond which delay is presumptively unreasonable and that in accordance with R. v. Jordan, 2016 SCC 27 a stay of proceedings should be imposed.
[5] The Respondent submits that total delay must be calculated from the date the information was sworn to the completion or anticipated completion of the trial. The Respondent submits that the total delay is 684 days or 22 months and 13 days and that the remaining delay after deductions for defence delay and exceptional circumstances is 433 days or 14 months and 13 days, a period that is below the presumptive ceiling.
[6] The Respondent further submits that while the Applicant took meaningful steps that demonstrated a sustained effort to move the matter forward, the Applicant has not demonstrated that the case took markedly longer than it should have and the application for a stay should be dismissed.
[7] In calculating the periods of delay, the parties agree on the attribution of most of the periods of time. There are three main issues in dispute:
i) Whether the starting point to calculate total delay for s. 11(b) purposes should be the date of the Applicant's arrest, and release on a promise to appear (March 20, 2020), or the date the information was sworn (April 24, 2020).
ii) Whether, between September 18, 2020, and January 14, 2021, a period when the Applicant sought to have his matter scheduled for trial, the delay was caused as a result of the pandemic and if so whether some or all of the period should be treated as an exceptional circumstance that does not count towards the presumptive ceiling.
iii) Whether periods of delay between July 19 and 26, 2021 and January 6, and March 3, 2022 should be treated as defence delay because the defence was not available on the dates offered by the trial coordinator for trial.
B. Framework for Analysis of s. 11(b): R. v. Jordan, [2016 SCC 27](https://www.minicounsel.ca/scc/2016/27)
[8] In R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada established the framework to be applied where a breach of s. 11(b) is alleged. At the heart of the framework is a presumptive ceiling of 18-months for cases tried in a provincial court, beyond which delay is presumptively unreasonable.
[9] The Court of Appeal in R. v. Coulter, 2016 ONCA 704, at paras. 34 to 41, summarized the steps to be taken in applying the Jordan framework:
a) Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial. (Jordan, at para. 47)
b) Subtract defence delay from the total delay, which results in the "Net Delay". (Jordan, at para. 66)
c) Compare the Net Delay to the presumptive ceiling. (Jordan, at para. 66)
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. (Jordan, at para. 47) 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. (Jordan, at para. 71)
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. (Jordan, at para. 75)
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. (Jordan, at para. 80)
g) If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable. (Jordan, at para. 48)
Delay attributable to the Defence
[10] In Jordan the Supreme Court held that delay will be attributable to the defence where there has been an explicit or implicit 11(b) waiver that is clear and unequivocal for a specific period or where delay is caused solely or directly by the conduct of the defence. While the defence cannot benefit from its own delay-causing conduct, defence actions legitimately taken to respond to the charges do not constitute defence delay. Where the court and the Crown are ready to proceed but the defence is not, the defence will have directly caused the delay. (Jordan, at paras. 47, 64, and 66; Coulter, at paras. 42-44; R. v. Mallozzi, 2018 ONCA 312, at para. 3).
Exceptional Circumstances
[11] If the net delay exceeds the presumptive ceiling, the onus is on the Crown to rebut the presumption of unreasonableness based on the presence of exceptional circumstances. Pursuant to the Jordan framework, exceptional circumstances "lie outside the Crown's control in the sense that:
i) they are reasonably unforeseen or reasonably unavoidable, and
ii) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise." (Jordan, at para. 69; Coulter, at paras. 45-48)
[12] In Coulter, the Court of Appeal gave medical or family emergencies of one of the participants in a trial as an example of what may constitute a discreet event. The Court explained that the period of delay caused by any discrete event must be deducted from the Net Delay for the purpose of determining if the presumptive ceiling has been reached. The Court elaborated that any portion of delay caused by a discrete event "that the Crown or the system could reasonably have mitigated may not be subtracted" (Coulter, at para. 50).
[13] In respect of the obligation of the Crown to mitigate the impact of discrete events in Jordan, the Court stated, at para. 70:
It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. 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.
[14] The Court explained further at para. 75:
The period of delay caused by any discrete exceptional event must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. Within reason, the Crown and justice system should be capable of prioritizing cases that have faltered due to unforeseen events (see R. v. Vassel, 2016 SCC 26, [2016] 1 S.C.R. 625). Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e. it may not be appropriate to subtract the entire delay occasioned by discrete exceptional events).
[15] Finally at para. 112, the Court added as follows:
In addition, the new framework will help facilitate a much-needed shift in culture. In creating incentives for both sides, it seeks to enhance accountability by fostering proactive preventative problem solving. From the Crown's perspective, the framework clarifies the content of the Crown's ever-present constitutional obligation to bring the accused to trial within a reasonable time. Above the ceiling, the Crown will only be able to discharge its burden if it can show that it should not be held accountable for the circumstances which caused the ceiling to be breached because they were genuinely outside its control. Crown counsel will be motivated to act proactively throughout the proceedings to preserve its ability to justify a delay that exceeds the ceiling, should need arise. Below the ceiling, a diligent, proactive Crown will be a strong indication that the case did not take markedly longer than reasonably necessary. [Emphasis added]
Remaining Delay under the Presumptive Ceiling
[16] Where "remaining delay" is less than 18 months, the onus is on the defence to show that the delay is unreasonable. To do so the defence must establish that:
i) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and
ii) the case took markedly longer than it reasonably should have.
Absent proof of both these factors the s. 11(b) application must fail.
[17] The Supreme Court held that it expected "stays below the presumptive ceiling to be rare and limited to clear cases". (Jordan, at para. 48 and 56; Coulter, at paras. 38-41, and 53)
C. Procedural History
[18] The Applicant was arrested on March 20, 2020. He was released from the police station after providing samples of his breath. The information was sworn on April 24, 2020, and the first appearance was on July 10, 2020.
[19] On July 10, 2020, the matter was presumptively adjourned for 10 weeks to September 18, 2020. The adjournment was pursuant to a direction of the Chief Justice due to the suspension of proceedings in the Ontario Court of Justice due to the COVID-19 pandemic.
[20] Between September 18, 2020, and until January 14, 2021, the applicant sought unsuccessfully to set trial dates. The case was adjourned without trial dates being set on October 2, October 16, and November 27, 2020. On December 24, 2020, Mr. Lindsay, counsel for the Applicant, was invited to attend the trial scheduling court on January 14, 2021, to set the matter for trial. Due to an oversight by counsel, he did not appear, and the matter was adjourned one week to a trial scheduling court list. On January 21, 2021, trial dates were set for July 26 and 27, 2021.
[21] On July 26, 2021, the trial did not proceed because the presiding Judge was available for only half a day. New trial dates were scheduled on September 13 and 14, 2021. The trial commenced before me on September 13 and 14, 2021, but did not complete and continuation dates were set for December 16 and 17, 2021.
[22] Shortly after the December 16 and 17, 2021 dates were set, the Crown learned that the continuation dates conflicted with one of the required police officer's leave dates. On October 18, 2021, the Crown applied for and was granted an adjournment and the matter was adjourned to trial scheduling court on October 21, 2021.
[23] On October 21, 2021, new continuation dates were set. The Crown advised that they were not available in December and some of November but were available beginning in January. January 6 and 7, 2022 were offered by the trial coordinator. Defence counsel was not available on those dates and agent for counsel advised that counsel had availability beginning March 3, 2022. Trial continuation dates of March 7 and 8, 2022 were scheduled. On March 3, 2022, the applicant brought the s. 11(b) application.
D. When does the clock begin for purposes of s. 11(b) of the Charter?
[24] The Crown submits that "total delay" is calculated from the date the information was laid to the end date of the trial and relies upon R. v. Coulter, 2016 ONCA 704, at para. 34 and R. v. Vasylenko, 2017 ONSC 4714, at paras. 3, and 8. The Crown submits that I am bound by these decisions.
[25] Mr. Lindsay, on behalf of the Applicant, relies on a number of authorities including R. v. Nash, 2014 ONSC 6025 and R. v. Mikhailov, 2020 ONCJ 507, and submits the date of arrest, March 20, 2020, should be the start date for determining the total period of delay. He submits that the arrest date is the point in time at which Mr. Cao began to be impacted by delay associated to "the charge".
[26] In my view, it is settled law that consideration of unreasonable delay under s. 11(b) of the Charter commences from the point in time when a person is charged, which is when the information is laid.
[27] Section 11(b) of the Charter provides that:
- Any person charged with an offence has the right
(b) to be tried within a reasonable time.
[28] The meaning of "charged" is applicable not only to s. 11(b) but to all subsections of s. 11 of the Charter.
[29] In 1989 in R. v. Kalanj, 1989 CanLII 63 (SCC), [1989] 1 S.C.R. 1594, the Supreme Court of Canada considered the meaning of "charged with an offence". Kalanj and his co-accused were arrested when a search warrant was executed. They were fingerprinted and released but informed not to leave the city and that charges would be laid and a summons would issue. The information was not laid for eight months, and the trial did not commence until two years after the information was sworn. The accused alleged that their right to be tried within a reasonable time under s. 11(b) was infringed.
[30] The trial judge found that both the accused and their families had suffered serious trauma and public embarrassment because of the arrests. He held that while the time from the swearing of the information to the date of trial did not amount to an unreasonable delay, if the eight-month period between the arrest and the swearing of the information were considered the total delay was unreasonable. The trial judge found that the eight-month period was relevant to the assessment of unreasonable delay and quashed the indictment. The British Columbia Court of Appeal allowed the Crown's appeal, holding that the trial judge erred in considering the pre-information delay.
[31] The accused appealed to the Supreme Court of Canada and the Supreme Court considered whether pre-charge delay should be included in the calculation of whether there has been an unreasonable delay under s. 11(b) of the Charter (at para. 1). Central to the determination was the meaning of "charged with an offence" in s. 11 (Kalanj, at paras. 1 and 9).
[32] McIntyre J. speaking for the majority, at para. 19, rejected a flexible approach where the meaning of "charged" varied with the circumstances. Rather, McIntyre J. on behalf of the majority concluded that a person is "charged with an offence" within the meaning of s. 11 of the Charter "when an information is sworn alleging an offence against him, or where a direct indictment is laid against him when no information is sworn". He held that "the reckoning of time in considering whether a person has been accorded a trial within a reasonable time under s. 11(b) will commence with the information or indictment, where no information has been laid, and will continue until the completion of the trial".
[33] McIntyre J. explained that this construction is supported by the words of the Charter and a consideration of its organization and structure. He stated, at para. 17:
Section 11 is one of eight sections grouped under the heading of "Legal Rights". Section 7 guarantees the general "right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice". This section applies at all stages of the investigatory and judicial process. Sections 8 and 9 afford guarantees of rights of particular importance in the investigatory or pre-charge stage, as does s. 10, which deals with rights upon arrest. Section 11 deals with a later stage of the proceedings, that is, when judicial proceedings are instituted by a charge. Section 12 and 13 deal with matters which follow the trial, and s. 14 again refers to matters during trial. [Emphasis added]
[34] The majority in Kalanj held that "charge" should not be twisted in an attempt to extend the operation of the section into the pre-charge period. Justice McIntyre emphasized that while pre-charge delay was not subject to consideration under s. 11(b) of the Charter, that did not mean that there was no mechanism to review pre-charge delay. It could be subject to review under other provisions of the Charter, such as s. 7, the right to make full answer and defence, through the doctrine of abuse of process, or under the sections of the Criminal Code which required the "prompt" swearing of an information where an appearance notice has been issued.
[35] The majority of the Supreme Court of Canada found that the purpose of s. 11(b) was clear. It was concerned with the period between the laying of the charge, (when an information is sworn) and the conclusion of the trial, and provides that the person "charged with an offence" will be promptly dealt with.
[36] Notably, the majority rejected the position, advanced in the dissenting reasons of Justice Lamer, that s. 11(b) protection should apply beginning at the point when the impact of the criminal justice is felt by the accused through the service of process in the form of a summons, notice of appearance, or an arrest with or without warrant.[^1] Justice Lamer, in dissent, reasoned that the reasonable time under s. 11(b) should be computed from the start of the impairment of the accused's interest in the liberty and security of the person, not at the time of the administrative swearing of the information. Lamer expressed the view that an individual is charged as of:
a) the service of a summons or the execution of a warrant pursuant to the laying of an information, or the moment when a person is informed by the authorities of their existence, or
b) the issuance of an appearance notice or release from custody; or
c) as of the arrest, in the case of all other arrested persons not covered by condition (a) or (b).
This approach was rejected by McIntyre J. speaking for the majority of the Supreme Court of Canada.
[37] Although Kalanj was decided by a 3-2 majority, the position of the majority in Kalanj was subsequently adopted by the full court in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771,at paras. 27 and 30. In Morin the court reiterated that pre-charge delay may in certain circumstances have an influence on the overall determination as to whether post-charge delay is unreasonable but of itself it is not counted in determining the length of the delay.
[38] The majority's reasoning in Kalanj, that consideration of delay under s. 11(b) begins when the information is sworn, remained the law during the 24 years leading up to Jordan. While Jordan created a new framework for the consideration of delay under s. 11(b), at no point did the Court in Jordan purport to revise the meaning of "charged with an offence" in s. 11 of the Charter. Throughout Jordan, the Supreme Court referenced the period under consideration as the period from the "charge" to the actual or anticipated end of the trial. (See for example Jordan, at para. 47.)
[39] Since Jordan, the Ontario Court of Appeal and Superior Courts of Ontario have continued to apply the meaning of "charged with an offence" established in Kalanj. In Coulter, at para. 34, the Court of Appeal stated that the first step of the Jordan framework is to calculate the total delay, which is the period from the charge to the actual or anticipated end of trial. In Vasylenko, at para. 8, a summary conviction appeal matter, Justice McKelvey found that the trial Judge had erred in beginning the calculation of the delay from the date of the offence rather than the date that the information was sworn. In R. v. Lacroix, 2017 ONSC 334, at para. 3, Justice Fairburn, as she then was, citing Kalanj, held that the starting point for calculating delay is when the individual is charged which is when "an information is sworn alleging an offence against him", or when a direct indictment is laid. In R. v. Simmons, 2020 ONSC 7209, at para. 7, Justice Nakatsuru calculated total delay from the time the information was sworn a month after the arrest.
[40] The absence of detailed discussion about the meaning of "charged with an offence" in the above cases is not an oversight. Rather, it is a reflection of the fact that nothing in Jordan changed the long-established meaning of "charged with an offence".
[41] The Applicant relies on the summary conviction appeal decision in R. v . Nash, 2014 ONSC 6025, at paras. 5 to 7, a pre-Jordan impaired driving summary conviction appeal. In Nash, the Court held that the s. 11(b) clock should have started at the time of the accused's arrest because his right to security of the person and to liberty were placed in jeopardy from that time. The Court held that because the accused was arrested and released on a promise to appear, from the date of the arrest he was engaged in the criminal justice system. The Court in Nash made no reference to Kalanj and, in my view, given the decision failed to address and reconcile the leading authority from the Supreme Court of Canada I am not bound by this decision.
[42] More recently several Ontario Court of Justice cases in the impaired driving context have concluded that the s. 11(b) clock should start at the time of arrest and release rather than the swearing of the information. In R. v. Mikhailov, 2020 ONCJ 507, Justice Prutschi held that the s. 11(b) delay clock should begin running at the time of the arrest and release because, unlike the fact in Kalanj, the investigation was complete shortly after the arrest and the information could have been prepared almost immediately. Justice Prutschi concluded that it would be unfair to allow an administrative decision of the police about when to swear an information govern the point at which an accused's 11(b) rights are activated. He further noted that if a person is held for a show cause hearing, the clock for s. 11(b) will start sooner than for someone released on an appearance notice simply due to the earlier need for the information to be sworn for court.
[43] Justice Prutschi stressed that in the impaired driving context a person's liberty and security of the person are impacted from the time of the arrest and release not only because they are required to appear and bound by conditions of release, but also because they are subject to "ancillary consequences" such as the administrative drivers licence suspension, and that they face the option of an early guilty plea which might permit access to ignition interlock remediation programs but only if a plea takes place within ninety days of the alleged offence. Justice Prutschi concluded that "the date the information is sworn has no bearing on these consequences, restrictions, or timelines, and similarly should have no bearing on the moment that Charter protection against unreasonable delay is triggered".
[44] While Justice Prutschi's reasoning is persuasive, in my view the collateral consequences dictated by Provincial regulatory provisions, are of limited if any relevance to the interpretation of the meaning of "charged with an offence" under s. 11 of the Charter. More importantly, the same reasoning was rejected by the majority of the Supreme Court of Canada in Kalanj. Justice Lamer and Justice Wilson in separate dissenting judgments reasoned that the "reasonable time" inquiry under s. 11(b) should correspond to the start of the impairment of an accused's liberty and security of the person (Kalanj, at para. 28). Justice Lamer, in dissent, held that consideration of delay should begin when the appellants were first arrested and released under the condition that they would not leave the area. Justice Wilson, in separate dissenting reasons, held that if s. 11(b) was designed to protect the liberty and security interests of the accused, the relevant starting point for the running of time under the section should not be upon the ex parte laying of the information before the Justice of the Peace, but rather when the impact of the criminal process is felt by the accused through the service of process in the form of a summons or notice of appearance or an arrest with or without a warrant. The interpretation of Justice Lamer and Justice Wilson was considered and rejected by the majority.
[45] In my view, I am bound by the reasoning of the Supreme Court of Canada in Kalanj, which was adopted by the full court in Morin and has been applied in cases post-Jordan such as Coulter, Vasylenko, Lacroix, and Simmons. As a result, in determining the "total" period of delay for the purposes of s. 11(b), the relevant period is the period between the date the information was sworn and the completion or anticipated completion of the trial, the period between April 24, 2020 and March 8, 2022.
E. Should the period between September 18, 2020, and January 14, 2021, be treated as exceptional circumstances due to the pandemic?
[46] The Applicant agrees that the COVID-19 pandemic constituted an exceptional circumstance and concedes that the period from July 10, 2020, to September 18, 2020, should not count towards the presumptive ceiling. However, the Applicant submits that thereafter, the period between September 18, 2020, and January 14, 2021 (the first blitz court appearance) should no longer be treated as an exceptional circumstance. The Applicant submits that the Crown failed to respond to inquiries from the defence aimed at moving the case forward and did not take steps to mitigate the pandemic related delay.
[47] The Respondent submits that all of the period between July 10, 2020, and January 14, 2021, should be treated as an exceptional circumstance because the delay in having the matter scheduled for trial flowed directly from the pandemic and the exceptional circumstances caused by the pandemic were beyond the control of the Crown and could not be mitigated by actions of the Crown.
[48] At the time of the offence, the COVID-19 pandemic was in its early stages but was already having a dramatic impact on the community and the criminal justice system in Ontario. Court operations were suspended because of the public health crisis and the criminal justice system was responding to a new reality that prevented the public and justice participants from attending court houses due to serious public health concerns.
[49] On March 16, 2020, the Chief Justice of the Ontario Court of Justice issued a directive that all out-of-custody appearances should be adjourned for 10 weeks from the appearance date. These presumptive adjournments continued until July 6, 2020. During this period court houses were equipped with better ventilation systems, and courtrooms were outfitted with protective equipment. Technology was put in place to permit remote hearings. On July 6, 2020, in accordance with a subsequent directive, the Newmarket courthouse resumed hearing a limited number of trials and preliminary inquiries that were already scheduled in a limited number of courtrooms.[^2]
[50] Over time, additional courtrooms were equipped with protective equipment allowing for additional in-person trials and the use of remote technology expanded to allow for more extensive use of remote hearings.
[51] On July 2, 2020, the Chief Justice published a "Notice to the Profession and the Public re Criminal Case Management Appearances and Setting Trial and Preliminary Inquiry Dates". The Notice set out the incremental plan to begin to set unscheduled criminal trials and preliminary hearings. Because of the large number of cases that had been adjourned and needed to be rescheduled, the need to prioritize within the Court's caseload, and to have a fair and orderly scheduling process, the Court established a priority order and timeline for setting trial and preliminary inquiry dates as follows:
In custody continuations that were scheduled to proceed between March 16, 2020, and July 3, 2020, but were adjourned due to the pandemic. Scheduling to begin no later than July 6, 2020.
In-custody hearings adjourned due to COVID-19 between March 16, 2020, and July 3, 2020. Scheduling to begin between July 7, 2020, and July 16, 2020, depending on the date the hearing was adjourned.
New in-custody hearings. Scheduling to begin no later than July 21, 2020.
Out-of-custody continuations that were scheduled to proceed between March 16, 2020, and July 3, 2020. Scheduling to begin on August 5, 2020.
Out-of-custody hearings adjourned due to the COVID-19 pandemic. No schedule was established for the setting of trial dates of out-of-custody hearings adjourned due to the pandemic.
New out-of-custody hearings. No schedule was set for the setting of trial dates for new out-of-custody hearings.[^3]
[52] On August 12, 2020, the Chief Justice released an updated "Notice to the Profession and Public: Update regarding Criminal Case Management Appearances" (Appendix B). The notice advised that the court was ready to start scheduling trials and preliminary inquiries involving out-of-custody accused persons in all court locations. Priority was to be given to trials and preliminary inquiries that had previously been adjourned due to the COVID-19 pandemic, with priority to be given based on the date of the previously scheduled trial or continuation date. Out-of-custody hearings adjourned due to the COVID-19 pandemic could begin to be scheduled between August 17 and September 21, 2020. New out-of-custody hearings, such as this matter, were to be scheduled beginning on September 28, 2020. To schedule a trial, counsel were required to complete and submit a trial scheduling form and submit it to the trial coordinators office.[^4]
[53] In R. v. Simmons, 2020 ONSC 7209, at para. 70, Justice Nakatsuru recognized the wide-reaching impact of the COVID-19 pandemic on the criminal justice system:
Second, the 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 cause. Rather COVID-19 was. It has had a system-wide impact of unprecedented proportions, never seen before in our lifetime.
[54] The first appearance for this matter was July 10, 2020. The matter was presumptively adjourned to September 18, 2020, with a bench warrant with discretion because proceedings in the Ontario Court of Justice were suspended. The Court was not yet able to provide dates for previously unscheduled out-of-custody matters and for good reason this case fell into the last priority group for the setting of trial dates. In-custody matters, and older continuing matters had to be prioritized over new matters that had not been previously scheduled for trial or adjourned.
[55] On September 18, 2020, the Applicants' second appearance, Mr. Singh, an articling student, appeared for Mr. Lindsay and advised that the matter was ready to be set for trial and adjourned the matter for two weeks to October 2, 2020. On September 18, 2020, the case was not yet eligible to be set for trial in accordance with the directives of the Chief Justice of the Ontario Court of Justice.
[56] On October 2, 2020, (only four days after out of custody matters not previously set for trial could begin to be scheduled), Mr. Singh appeared and advised that they were waiting for a trial date and had not heard back yet from the trial coordinator's office. He requested that the matter be adjourned to October 16, 2020.
[57] On October 16, 2020, Mr. Singh appeared and advised that they were looking to set a two-day trial and were waiting for a date from the trial coordinator. He requested that the matter be adjourned to November 27, 2020.
[58] On November 27, 2020, he appeared again and advised that Mr. Lindsay had emailed the trial coordinator's office multiple times but had not heard back. He requested the matter be adjourned to January 15, 2021, to set a date for trial.
[59] Mr. Lindsay was duly diligent. He emailed the trial coordinators office on September 18, 2020, requesting dates for a two-day trial and attaching the trial scheduling form. He sent follow-up emails on October 8, 18, November 9, and December 23, 2020, in which he indicated that he was following up on his original request for a two-day trial. The emails were copied to the Crown.
[60] On December 24, 2020, Mr. Lindsay received a response from the trial coordinator's office requesting that he resubmit the trial scheduling form and advising him that the matter would be addressed in the trial scheduling court on January 14, 2021, to set a date for trial.
[61] On January 14, 2021, due to an oversight, Mr. Lindsay did not appear, and the matter was adjourned first to January 15, 2021, and then to a trial scheduling court on January 21, 2021. On January 21, 2021, trial dates were set for July 26 and 27, 2021.
[62] The Jordan framework requires me to consider what period of delay resulting from the COVID-19 pandemic, if any, should be subtracted from net delay as an exceptional circumstance.
[63] The COVID-19 pandemic public health crisis which emerged close in time to the offence, was clearly a "reasonably unforeseen and unavoidable event".
[64] As is demonstrated by the notices to the profession, the pandemic created an unprecedented challenge to the court system causing mass cancellations of trials and the need to adapt courtrooms and the procedures to allow matters to proceed in a safe environment. This resulted in retrofitting courtrooms for in-person hearings to proceed safely and wherever possible adopting new processes so that trials could proceed remotely.
[65] I accept that both the Crown and the justice system are obliged to mitigate delay resulting from discrete exceptional circumstances. As noted above, Justice Moldaver wrote that "within reason, the Crown and justice system should be capable of prioritizing cases that have faltered due to unforeseen events."
[66] In my view, the justice system did respond. In a short period of time it adapted to the unprecedented circumstances and completely overhauled the manner in which trials were scheduled and conducted. I agree with Justice Pirraglia's findings in R. v. Koustov, [2021] O.J. No. 191, at para. 30 that "since the suspension of court operations to present, justice participants have been working tirelessly to create and maintain a safe environment for trials to proceed both remotely and in person".
[67] I agree with and adopt the sentiments of Justice Nakatsuru that scheduling new trials and rescheduling existing trials became more complex and difficult. A backlog of cases had ensued. A lack of resources was not the cause. Rather COVID-19 was. It had a system-wide impact of unprecedented proportions, never seen before in our lifetime.
[68] In this jurisdiction, as in many others, a number of case management processes were implemented to respond to the suspension of hundreds of trials. For example, the Court mandated a special "COVID 19" judicial pre-trial. Virtual case management courts were put in place to address first appearances and adjournments. A virtual plea court was established shortly after July 6, 2020, to allow out of custody pleas to be heard. Courtrooms were retrofitted, and trials began to resume as of July 6, 2020 (Koustov, at para. 31).
[69] New procedures had to be devised to replace previous date setting practices that involved in-person attendance by counsel or an agent. An electronic trial scheduling form was created and made available to the profession on the ministry web site. In this case the applicant submitted the form on September 18, 2020.
[70] In a busy jurisdiction such as York Region, the scheduling and rescheduling of hundreds of trials was a massive undertaking. Attending in person to obtain dates from the trial coordinator and setting a date in the courthouse in the traditional fashion was no longer a possibility. A new virtual trial scheduling court was established in Newmarket. The new processes, which included the submission of the trial scheduling form, had to be established and refined. The virtual processes lead to thousands of emails being directed from all parties to the trial coordinators office in this jurisdiction and throughout the province.
[71] As in Koustov, at para. 33, the Applicant's trial was not the only case to be adjourned. The entire criminal justice system had been suspended between March 16, 2020, and July 6, 2020, including many in-custody proceedings. Moreover, crime did not stop. New matters continued to come to court. Multiple streams of criminal trial matters competed for limited trial time – trials adjourned because of COVID-19, trials already set and new trials coming into the system. The court had to be discerning about how trial time would be allotted and which trials to prioritize.
[72] It is in this context that the 3.5 month delay between September 18, 2020 and January 14, 2021 must be considered. The first possible day the case was eligible to be set for trial was not until September 28, 2021. Not surprisingly in these circumstances it took time for the Applicant's request to set a trial to be processed and for the new date to be set. The trial coordinators office was not conducting business as usual. They were faced with the task of rescheduling hundreds if not thousands of cases through an entirely new system. I accept that the 3.5 months delay between September 18, 2020, and January 14, 2021, is directly attributable to the exceptional circumstances caused by the pandemic.
[73] I do not accept the Applicant's submission that the Crown failed to mitigate the impact of the pandemic and adopt with the following comments of Justice Pirraglia in Koustov, at para. 34:
The COVID-19 pandemic profoundly impacted our justice system. Long established practices and procedures have been completely redesigned. The degree and extent of the overhaul required the participation and approval of Justice participants at all levels. Crowns included. Not surprisingly this took some time. As these practices were being put in place, there was little than any individual Crown could do at the local level to mitigate the delay in a given case. [Emphasis added].
[74] It is unfortunate that the Applicant's matter was not able to be set earlier. However, it was not able to be scheduled for trial sooner due to exceptional circumstances, circumstances that the Crown had no greater ability to ameliorate than did Mr. Lindsay. I am not satisfied that there is anything that any individual Crown could have done to mitigate the delay that occurred between September 18, 2020, and January 14, 2021.
[75] Moreover, I note that when the Applicant's matter was scheduled for trial on January 21, 2021, dates were set for July 26 and 27, 2021, 6 months and 7 days from the trial scheduling court date. In a busy jurisdiction like Newmarket, in ordinary times it would be uncommon to be able to receive a trial date within 6 months of the set date. Consequently, it is not clear that the delay in obtaining an appearance in trial scheduling court actually resulted in a later trial date being set than what might have been offered had the trial coordinator been able to schedule the hundreds of backlogged matters that needed a trial date all on one day on September 28, 2020. What was delayed was the setting of the trial date, but not necessarily the first trial date itself.
[76] As a result of my finding, the entire period between July 10, 2020, and January 14, 2021, a period of 188 days, must be subtracted from the period of net delay.
F. Should the periods of defence unavailability between July 19 and 26, 2021 and January 6, 2022 and March 3, 2022 be treated as periods of defence delay?
[77] The record reflects that the Applicant acted diligently throughout the process. Counsel was retained at an early stage and disclosure was obtained. By the second appearance, September 18, 2020, counsel was ready to set the matter for a two-day trial. However, on two occasions when trial dates were being set, counsel was not available on the earliest available dates. At issue is whether these periods should be treated as defence delay.
[78] At the trial scheduling appearance on January 21, 2021, the first dates offered by the trial coordinator were July 19, 20, 22, and 23, 2021. Counsel was not available on those dates, but was available on July 26, and 27, 2021 and those dates were set for trial.
[79] Ultimately, the matter did not proceed to trial on July 26 and 27, 2021 because on July 26, 2021, the court had only half a day availability and the presiding justice was not available on the second day, July 27, 2021. As a result, the matter would not have been able to complete and due to other upcoming trial commitments it appeared that the presiding justice would have limited availability to schedule a continuation before October 2021. The Crown wished to proceed to complete the evidence of a civilian witness, however Mr. Lindsay expressed a preference to adjourn the case and schedule two new dates together, rather than starting and setting continuation dates that would have to accommodate the presiding Judge's calendar.
[80] As a result, the trial was adjourned and new dates of September 13 and 14, 2021 were obtained. The trial commenced before me on September 13 and 14, 2021 but did not complete, in part because the Court was not available for the full court day on either September 13 or 14 due to other ongoing matters also scheduled for those dates. On September 14, 2021, the matter was adjourned to blitz trial scheduling court and on September 23, 2021, dates were set for trial continuation on December 16 and 17, 2021. Shortly after the December dates were set the Crown learned that one of the required officers was unavailable on the continuation dates. The Crown promptly brought the matter forward on October 18, 2021, to request an adjournment of the December 16 and 17, 2021 dates. The application to adjourn the continuation dates was granted.
[81] On October 21, 2021, Ms. DaSilva, an articling student, appeared for Mr. Lindsay in the trial scheduling court. The Court inquired whether the trial coordinator preferred that the continuation be scheduled as a two-day block. The trial coordinator indicated that a two-day block was easier to manage. No objection was made by the Applicant to the proposal that the matter be set as a two-day block. No request was made for the matter to be set on separate individual days. Notably, in July it was counsel for the Applicant's preference to have the matter heard all at one time.
[82] The Crown advised that they were not available for trial during the month of December and "some" dates in November. As a result, the trial coordinator looked for dates in January 2022 and offered January 6 and 7, 2022 as the first available dates, dates available to the Crown.
[83] Ms. DaSilva advised that counsel was not available on January 6 and 7, 2022 and she advised that counsel was not available on any two consecutive days until March 3, 2022. The court was not available on March 3, and 4, 2022 but offered dates on March 7 and 8, 2022 and those dates were confirmed for the continuation.
[84] The Crown submits that the periods of delay between July 19 and July 26, 2021, and January 6, 2022, to March 3, 2022, should be treated as periods of defence delay because the court and Crown were ready and able to proceed but the defence was not.
[85] In Jordan, at para. 64, the Supreme Court of Canada held that defence delay will include periods of time where the court and the Crown are ready to proceed, but the defence is not. "The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable".
[86] This passage created uncertainty regarding whether comments made by Justice Cromwell in R. v. Godin, 2009 SCC 26, [2009] S.C.J. No. 26 (SCC), in which he recognized the practical realities of busy defence practices, remained instructive post-Jordan. In Godin, Justice Cromwell acknowledged that counsel cannot be expected to be "perpetually available". He stated as follows at para. 23:
Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability. Here, there is no suggestion that defence counsel was unreasonable in rejecting the earlier date. Indeed, his prior conduct in seeking earlier dates for the preliminary inquiry — efforts which were ignored — suggests that he wished to proceed expeditiously. I respectfully agree with Glithero R.S.J., dissenting in the Court of Appeal, at para. 53, that: "To hold that the delay clock stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable." [Emphasis added]
[87] The applicability of this reasoning in Godin was considered by the Ontario Court of Appeal post-Jordan in R. v. Albinowski, 2018 ONCA 1084. In Albinowski the Crown submitted that the trial judge erred in relying on Godin and characterizing delay due to defence counsel unavailability as institutional delay. The Crown argued that the analytical framework in Jordan had overtaken Godin and required courts to attribute delay to the defence from the first date the Crown and court are ready to proceed, but the defence is not. In the alternative, the Crown submitted that the Godin principles did not apply on the facts of the case because several dates were offered and rejected by defence counsel due to their unavailability.
[88] In Albinowski, the Court of Appeal concluded, at para. 32, that the trial Judge's reliance upon Godin was misplaced because "the determination in Godin, that defence counsel was not responsible for one month and a half of delay because he was not available on the earliest date offered for the rescheduled preliminary inquiry, was grounded firmly in the circumstances of that case — specifically, the Crown's responsibility for the need to reschedule and the attempts by the defence to expedite the proceedings". The Court found that was not the case in Albinowski, wherein defence counsel had rejected multiple dates offered because they had other professional commitments. In these circumstances, the Court of Appeal concluded that the defence unavailability fell squarely within the category of delay that counts against the defence. (See also R. v. Picard, 2017 ONCA 692, where a similar analysis was applied to Crown unavailability)
[89] In R. v. Ameerullah, 2019 ONSC 4537, Justice Woollcombe considered and reconciled the principles in Jordan with those in Godin, finding that s. 11(b) requires "reasonable availability, flexibility and some level of cooperation. 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". Justice Woollcombe held that there must be consideration of the particular circumstances of a case, "bearing in mind the call in Jordan for a change in direction and break in the culture of complacency". Justice Woollcombe added however, that "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".
[90] I agree with the findings of Justice Woollcombe. I am also mindful of the fact that in Jordan the Court sought to eliminate the flexibility and related uncertainty caused by the Morin approach, and instead adopt a framework that employed a simpler "bright line approach". Consequently, in accordance with the principles in Jordan where the court offers numerous dates and the court and Crown would have been able to proceed but for defence unavailability, it will constitute defence delay.
[91] In respect of the period between July 19 and 26, 2021, this 7-day period should not be treated as "defence delay". Counsel was reasonably available within a short period of time accepting the third pair of dates offered that were within a week of the first date offered by the trial coordinator.
[92] However, in respect of the period between January 6, 2022 and March 3, 2022, this period should be treated as defence delay. I recognize that the adjournment of the original trial continuation dates of December 16 and 17 was at the request of the Crown. However, the Crown realized that the December dates were not available to the witness very shortly after the dates were set and promptly brought the matter forward to seek to reschedule the dates. When the new dates were being selected it became apparent that Mr. Lindsay was not available for a period of two months, between January 6, 2022 and March 3, 2022, a period during which earlier dates could have been set but for the unavailability of counsel. This was not a case where counsel refused a single date offered.
[93] Mr. Lindsay submitted that earlier dates might have been able to be set if the dates were not set in a two-day block and single separate days were offered. However, separate single days were not requested by agent for counsel during the trial scheduling appearance and in July it was Mr. Lindsay who indicated a preference to avoid splitting up the trial. The fact that the trial coordinator reasonably suggested that the continuation be set as two consecutive days does not change the determination that the delay is defence delay.
[94] Mr. Lindsay also submitted that the period should not be treated as defence delay because he had previously had earlier dates available prior to December 16 and 17, 2021. In similar circumstances in R. v Mallozzi, 2018 ONCA 312, the court rejected this submission and found that because the defence was unavailable when the court and Crown were ready it constituted defence delay.
[95] In all of the circumstances, the period of 56 days between January 6, 2022 and March 3, 2022 is to be treated as defence delay and subtracted from the total period of delay. Multiple dates were offered, and Mr. Lindsay was not available, not on a single date, but for a two-month period. But for the defence unavailability the matter could have proceeded sooner. As a result, this two-month period constitutes defence delay.
G. Calculating the "Remaining Delay"
[96] Having reached a conclusion regarding the areas of dispute, I must now calculate the "total delay", the "net delay", and "remaining delay". The chart attached at Appendix "A" outlines the full history of the proceedings and my findings.
[97] I agree with the Crown that the total period of delay should be calculated from the date that the information was sworn on April 24, 2020, to the date of the completion or anticipated completion of the trial, March 8, 2022. As a result, the total delay is 684 days, or 22 months and 13 days.
[98] I have concluded that the following periods must be deducted from the total delay:
- The period from July 10, 2020 to January 14, 2021, a period of 188 days. This period constitutes an exceptional circumstance due to the COVID-19 pandemic and the entirety of the period should be deducted as a discreet event.
- The period of 7 days between January 14 and January 21, 2021, when counsel missed the first trial scheduling appearance.
- A period of 56 days for the period between January 6, 2022, to March 3, 2022, when the court and the Crown were ready to proceed but the defence was not available.
[99] From the total delay of 684 days this results in deductions of 251 days meaning the "remaining delay" or period of time that counts towards the presumptive is 433 days, the equivalent of 14 months and 9 days, a period less than the presumptive ceiling of 18 months.
H. Did the defence take meaningful steps do expedite the proceedings and did the case take markedly longer than it reasonably should have?
[100] Given my conclusion that the "remaining delay" falls below the presumptive ceiling, I must consider whether the Applicant has established that the defence took meaningful steps that demonstrated a sustained effort to expedite the proceedings and whether the case took markedly longer than it should have.
[101] I am satisfied and the Respondent concedes that the Applicant took meaningful steps to expedite the proceedings. However, I am not satisfied that the case took markedly longer than it reasonably should have.
[102] In Jordan, at paras. 87-91, the court explained what is needed to establish that the time taken for the case markedly exceeded that which was reasonable:
... The reasonable time requirements of a case derive from a variety of factors, including the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite the proceedings.
The reasonable time requirements of the case will increase proportionally to a case's complexity. As Sopinka J. wrote in Morin: "All other factors being equal, the more complicated a case, the longer it will take counsel to prepare for trial and for the trial to be conducted once it begins" (pp. 791-92).
In considering the reasonable time requirements of the case, trial judges should also employ the knowledge they have of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances.
Where the Crown has done its part to ensure that the matter proceeds expeditiously — including genuinely responding to defence efforts, seeking opportunities to streamline the issues and evidence, and adapting to evolving circumstances as the case progresses — it is unlikely that the reasonable time requirements of the case will have been markedly exceeded. As with assessing the conduct of the defence, trial judges should not hold the Crown to a standard of perfection.
Determining whether the time the case has taken markedly exceeds what was reasonably required is not a matter of precise calculation. Trial judges should not parse each day or month, as has been the common practice since Morin, to determine whether each step was reasonably required. Instead, trial judges should step back from the minutiae and adopt a bird's-eye view of the case. All this said, this determination is a question of fact falling well within the expertise of the trial judge (Morin, per Sopinka J., at pp. 791-92).
[103] I am not satisfied that having regard to the remaining delay of 14 months and 9 days that the case took markedly longer than it reasonably should have. Clearly, this was not a complex case. However, when I employ the local knowledge I have of this busy jurisdiction, including how long a case of this nature typically takes to get to trial in light of the relevant local and systemic circumstances, a delay of 14 months and 9 days while less than ideal, is not markedly longer than it reasonably should take for a case to complete in a busy jurisdiction such as York region, especially in the context of the pandemic which continues to impact the criminal justice system and the movement of cases through the system.
[104] Stays below the presumptive ceiling are to be rare and limited to clear cases. This is not a clear case where a stay is warranted. While the defence took meaningful steps that showed a sustained effort to expedite the proceedings, I am not satisfied that the case took markedly longer than it should have.
I. Conclusion
[105] As a result of my findings, the application to stay the proceedings for a violation of Mr. Cao's s. 11(b) rights is dismissed.
Released: April 14, 2022
Signed: "Justice Marcella Henschel"
APPENDIX "A"
| DATE | EVENTS | REMAND DATE | FINDING | DELAY ATTRIBUTABLE TO CEILING (Bold does not count towards the ceiling) |
|---|---|---|---|---|
| March 20, 2020 | Date of Offence | July 10, 2020 | Does not count towards the ceiling. | 0 |
| April 24, 2020 | Date Information Sworn | July 10, 2020 | Counts towards the ceiling. | 77 Days |
| July 10, 2020 | First Appearance -presumptively remanded 10 weeks | September 18, 2020 | *exceptional circumstances due to pandemic. Does not count towards the presumptive ceiling. | 70 Days |
| September 18, 2020 | Student Singh appears and requests 2 week adjournment to set trial dates. Trial scheduling form submitted. | October 2, 2020 | *exceptional circumstances due to pandemic. Does not count towards the presumptive ceiling. | 14 Days |
| October 2, 2020 | Student Singh appears and advises that counsel is waiting for trial dates. | October 16, 2020 | *exceptional circumstances due to pandemic. Does not count towards the presumptive ceiling. | 14 Days |
| October 16, 2020 | Student Singh appears and advises counsel is waiting to receive dates from the trial coordinator for a 2 day trial. | November 27, 2020 | *exceptional circumstances due to pandemic. Does not count towards the presumptive ceiling. . | 42 Days |
| November 27, 2020 | Student Singh attends and advises that counsel has emailed the trial coordinator multiple times and is continuing to wait for trial dates. Matter adjourned to January 15, 2021 | January 14, 2021 | *exceptional circumstances due to pandemic. Does not count towards the presumptive ceiling. | 48 Days |
| Jan.14, 2021 | Matter brought forward to blitz trial scheduling Court. Counsel missed appearance due to oversight. | January 21, 2021 | Defence Delay | 7 Days |
| January 21, 2021 | Blitz Trial Scheduling Court. Two-day trial scheduled for July 26 and 27, 2021. Crown and Court available on July 19, 20, 22, and 23, 2021 but counsel not available. July 26 and 27, 2021 selected. | July 26, 2021 | The entire period counts towards the presumptive ceiling. | 186 Days |
| July 26, 2021 | Trial date. Trial did not commence because the presiding Judge was available for only half a day and would not have further availability until October 2021. Court prepared to start trial to accommodate civilian witness but parties agreed to keep the proceedings together and set new dates before another jurist. Priority dates provided and new dates set for September 13 and 14, 2021. | September 13 and 14, 2021 | Counts towards the presumptive ceiling. | 50 Days |
| September 13 and 14, 2021 | Trial commenced but did not complete. Adjourned to trial scheduling court September 23, 2021 | September 23, 2021 | Counts towards the presumptive ceiling. | 9 Days |
| September 23, 2021 | Blitz Trial scheduling Court. Student Ms. DaSilva attended to set continuing trial dates. Dates set for December 16 and 17, 2021. Matter brought forward from December trial dates for Crown application for adjournment to October 18, 2021. | October 18, 2021 | Counts towards the presumptive ceiling. | 25 days. |
| October 18, 2021 | Crown application to adjourn December trial dates due to unavailability of police witness. Application granted. Adjourned to trial scheduling court October 21, 2021 | October 21, 2021. | Counts towards the presumptive ceiling. | 3 days. |
| October 21, 2021 | New trial continuation dates scheduled for March 7 and 8, 2022. Crown advised not available in December and some days in November. Trial coordinator offered January 6 and 7, 2022. Articling student Ms. DaSilva advised first available period for Mr. Lindsay of two consecutive days was March 3, 2022. | March 6 and 7, 2022 | Of that period 81 days is attributable to the Crown and 56 Days is defence delay due to unavailability between January 6, 2022 to March 3, 2022. | 81 Days 56 Days defence delay. |
TOTAL DELAY from the Date of the Sworn Information to the End of Trial Proceedings (April 24, 2020 to March 8, 2022) = 684 Days (22 months and 13 days)
Net delay: Total Delay less Defence Delay: 684 – 63 days = 621 days
Remaining delay: Net Delay less Exceptional Circumstances due to the pandemic = 621-188 = 433 days
433 days is the equivalent of 14 months and 9 days.
[^1]: See Don Stuart, Charter Justice in Canadian Criminal Law. 7th Edition. 2018 Thomson Reuters, at Chapter 6. Rights of Persons Charged with an Offence, at p. 461. [^2]: Ontario Court of Justice Pandemic Response Plan – Criminal Directive for Trials, Pleas and Other Hearings, www.ontariocourts.ca/ocj/covid-19/ [^3]: www.ontariocourts.ca/ocj/covid-19/ at Notices and Info about Criminal Proceedings. [^4]: www.ontariocourts.ca/ocj/covid-19/ at Notices and Info about Criminal Proceedings.