ONTARIO COURT OF JUSTICE

CITATION: R. v. Singh, 2022 ONCJ 199

DATE: April 18, 2022

COURT FILE No.: Brampton 19-14346

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SANVEER SINGH

Before Justice Hafeez S. Amarshi

Written reasons for judgment released on April 18, 2022

T. Sarantis................................................................................................ counsel for the Crown

M. Sodhi............................................................................................ counsel for Sanveer Singh

REASONS FOR JUDGMENT

A. Introduction

1. Sanveer Singh, brings an application for a stay of proceedings under s. 24(1) of the Charter as a result of an alleged violation of his s. 11(b) right to a trial without unreasonable delay.

2. It is not in dispute that the total period of delay in this matter is 854 days or just over 28 months.[^1] This period is inclusive from the date the Applicant was charged – July 5, 2019, until November 4, 2021 – the day his trial was completed. It exceeds the 18-month ceiling for proceedings in the Ontario Court of Justice established by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27.

3. In the normal course of a criminal proceedings this is a pre-trial application. That was not the case here, and Mr. Singh brought an application mid-trial. Given the length and nature of the delay I agreed to hear the application, but all the parties agreed that the Charter motion would be heard after the evidence was completed, so no further delay would be necessitated in the trial.

4. By way of a brief summary, the Applicant is charged with possession of a loaded firearm, possession of cocaine for the purposes of trafficking and breaching conditions of his judicial interim release.

5. On July 5, 2019, Peel Regional Police executed a search warrant at Mr. Singh’s residence in Brampton. It is alleged that the Applicant is observed to throw a firearm and quantity of cocaine out of a bedroom window. In a neighbour’s yard, police seize a Glock handgun and 145 grams of cocaine. The accused was bound by a court order at the time not to be in possession of any weapons.

B. Position of the Parties

6. The Crown concedes the total delay exceeds the presumptive ceiling in this case warranting an inquiry by this court, however, Mr. Sarantis submits that the net delay in this case is 129 days or just over four months.

7. The Crown points two time periods that are to be subtracted from the total period of delay. These include 178 days of defence waiver and defence delay. A further 49 days to be deducted for exceptional circumstances.

8. If this Court accepts these apportions, the net delay is well below the Jordan threshold. In the alternative, if I do not accept this allocation of delay, then the Crown submits this period of excessive delay should be treated as exceptional circumstances. Specifically, Mr. Sarantis argues that although this case is not highly complex, it is sufficiently complex to justify a delay beyond 18 months.

9. Mr. Sodhi submits a combination of institutional factors and delays in disclosure have contributed to this matter significantly exceeding the Jordan timelines and that a stay of proceedings is warranted in the circumstances. He points out that the Jordan ceiling for proceedings in the Ontario Court of Justice was exceeded at the time the Applicant’s trial dates were initially selected. Specifically, the February 8-12, 2021, trial dates were scheduled 19 months and 7 days after the information was sworn. In other words, delay was already a looming issue when the trial dates were put on the record in set date court on January 14, 2020.

10. The Applicant further disputes that these proceedings were particularly complex or that discrete events were responsible for a portion or significant portion of the delay in completing this trial.

C. Timeline

11. The following is a summary of significant dates in these proceedings:

a. July 5, 2019 – Police execute a search warrant at the Applicant’s residence. Mr. Singh is arrested and charged with multiple firearm and drug offences. He is held for bail. The information is sworn soon thereafter.

b. July 29, 2019 – Initial disclosure is provided.

c. September 11, 2019 – first scheduled date for a special bail hearing is adjourned at defence request to review disclosure. The information to obtain (ITO) and some officer notes were provided the previous day.

d. October 15, 2019 – bail is granted after a hearing that proceeded over multiple days in September and October. The matter is adjourned for a judicial pre-trial.

e. November 12, 2019 – A judicial pre-trial is conducted. Mr. Sodhi waives delay until December 3, 2019, in order to obtain instructions from the Applicant.

f. December 3, 2019 – The Crown (not Mr. Sarantis) in set date court advises that further disclosure is being prepared and a trial date should be set on the next occasion after the defence is in receipt of disclosure.

g. December 17, 2019 – The Crown advises (not Mr. Sarantis) that further disclosure is being vetted.

h. January 7, 2020 – Dates are selected at the Trial Coordinator’s Office. Later that day the matter is adjourned for one week for Mr. Sodhi to speak to the assigned Crown.

i. January 14, 2020 – Trial dates are formally put on the record – February 8-12, 2021. A Garofoli hearing date is scheduled for November 16-17, 2020.

j. November 16, 2020 – The Applicant’s materials seeking leave to cross-examine the affiant and s. 8 application is filed late. The Crown is not able to reasonably respond. The Garofoli motion cannot proceed.

k. November 30, 2020 – During a case management hearing, a timeline is established for the Crown to file responding materials. Mr. Sarantis provides the defence with a Crown summary of the redactions contained in the ITO. Mr. Sarantis gives notice that the Crown will rely on the unedited affidavit in assessing the sufficiency of the search warrant.[^2]

l. February 8-12, 2021 – The Garofoli hearing commences. On agreement, the matter proceeds in-camera for the purposes of drafting a judicial summary. The defence application for leave to cross-examine the search warrant affiant is heard. It is partially granted and cross-examination of Cst. Uckardes is completed. The pre-trial application is not completed.

m. February 26, 2021 – The defence challenges the adequacy of the judicial summary.

n. March 12, 2021 – This Court releases a ruling upholding the adequacy of the judicial summary.[^3] Four additional dates are secured for trial – June 23-25 and September 16, 2021.[^4] This is in addition to April 14, 2021 – the date previously identified as the final date of the Garofoli hearing.

o. April 14, 2021 – Mr. Sodhi is ill, and the matter does not proceed. April 22, 2021 is identified as a continuing date.

p. April 22, 2021 – Garofoli hearing submissions are completed.

q. June 16, 2021 – Section 8 Charter challenge dismissed. The sufficiency of the search warrant is upheld by this Court. Written reasons to follow.

r. June 23-25, 2021 – Trial commences. The matter proceeds as a blended voir dire. The defence is alleging a breach of the Applicant’s ss. 7 and 8 Charter rights based on the manner of search of Mr. Singh’s home by Peel Police and the use of drone during the execution of the search warrant. Knowledge and control of the contraband is contested. The evidence is not completed, and four additional trial days are subsequently secured for August in addition to September 16, 2021, which was earlier identified.

s. August 16, 2021 – The Applicant files s. 11 (b) Charter application. The application is to be heard once the trial is deemed concluded.

t. August 23-26, 2021 – Further evidence is heard.

u. September 16, 2021 – Court commences at 9 a.m. and sits until 5:30 p.m. The evidence is completed. One additional day is required for submissions. October 27, 2021 is identified.

v. October 6, 2021 – The matter returns for case management. Earlier this Court released a written ruling upholding the sufficiency of the search warrant. It was provided to the parties via e-mail. The Crown requests the decision be retracted due to a concern related to informant privilege.

w. October 25, 2021 – It is determined that the date earlier identified for trial submissions would be utilized to conduct an in-camera hearing in order for the Crown to outline his concerns about the contents of the Garofoli ruling. The parties agree to this procedure.

x. October 27, 2021 – As a result of the in-camera hearing, a sentence is amended in the ruling and a footnote added. Written reasons are released to the parties - R. v. Singh, 2021 ONCJ 702. A new date for trial submissions is identified.

y. November 4, 2021 – Submissions are completed. The trial is completed. Additional dates are identified for s. 11 (b) argument which are completed on January 5, 2022.

D. Applicable Principles

12. In R. v. Jordan, the Supreme Court outlined the analytical framework to determine whether delay in time to trial is unreasonable. Where total delay at the Ontario Court of Justice exceeds 18 months, the delay will be presumptively unreasonable, subject to a consideration of case-specific exceptional circumstances. As the Court explained at paragraph 40, “Unnecessary procedures and adjournments, inefficient practices, and inadequate institutional resources are accepted as the norm and give rise to ever-increasing delay. The culture of delay “causes great harm to public confidence in the justice system.”

13. The framework in Jordan is summarized by the Ontario Court of Appeal in R. v. Coulter, 2016 ONCA 704. At paras. 34-40, Gillese J.A. provides the following summary:

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

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

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

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

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

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

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

E. Analysis

14. This application turns in large part on whether I accept the Crown argument that a significant portion of the delay in this trial should be deducted as a result of an implicit waiver by the defence or defence caused delay. In addition, I am to consider the impact of exceptional circumstances in this case.

15. This analysis requires a detailed review of certain time periods during these proceedings.

(1) July 5, 2019 - November 12, 2019 – arrest to judicial pre-trial

16. Given the high caseload in Peel region, this matter proceeded efficiently during this period of just over four months, although there is some delay in addressing bail. During this period, initial disclosure was provided, including the redacted ITO and a multi-day bail hearing conducted. In addition, a Crown pre-trial and two judicial pre-trials were held.

(2) November 12, 2019 – January 7, 2020 – judicial pre-trial to trial date scheduling

(a) November 12 – December 3 – Defence waiver of delay

17. I will first address a period of explicit waiver. On November 12, 2019, in set date court, A. Dhillon, agent for Mr. Sodhi, waived s. 11 (b) until December 3, 2019, in order to obtain client instructions. Twenty-two days are to be deducted from the period of total delay.

(b) December 3 – January 7 – No defence delay

18. The Crown argues the period from December 3, 2019, to January 7, 2020, a 35-day period is also be deducted because the defence failed to fix trial dates despite being in possession, as of November 12, 2019, of a trial time estimate form.[^5]

19. The difficulty with this position based on a review of set date transcripts is that the Crown was content that the setting of a trial dates be delayed pending further disclosure. On December 3, 2019, the Crown in set date court (not Mr. Sarantis) stated the following, “It’s Mr. Sarantis’ position that this matter should be set for a trial date but that should ideally happen on the next court date after Mr. Sodhi has disclosure.” Given those comments this period is not to be attributed as defence delay.

20. Similarly, on December 17, 2019, the Crown (not Mr. Sarantis) advised there is further disclosure on the substantive charges that has been received by the Crown Attorney’s Office and which is in the process of being vetted. The Crown advised that Mr. Sodhi will be notified when the disclosure is prepared to be picked up. The Court confirms the matter is being adjourned for disclosure to be completed. The Crown makes no comment. The matter is adjourned to January 7, 2020. There is no subtraction of delay warranted for this period of time.

(3) January 7, 2020 – February 8, 2021 – set date to first trial date

21. Mr. Sarantis argues that this 398-day period be considered implicit waiver. He submits that defence actions, or lack thereof, should lead this Court to conclude there was an implicit waiver or in the alternative defence caused delay. Specifically, he submits the Applicant was in no hurry to have his trial and was prepared to accept the resulting delay.

22. The first step in determining whether the delay in question is constitutionally unreasonable is to identify and subtract any “defence delay” from the total. The Court in Jordan at para. 61 offers the following guidance:

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

23. As Code J. noted in R. v. Gandhi, 2016 ONSC 5612, emphasizing well established principles from R. v. Morin and R. v. Askov, that it has always been accepted “that any waiver must be made with “full knowledge of the rights the procedure was enacted to protect” and that any implied waiver must involve a choice “between available options” and not “mere acquiescence in the inevitable.”[^6]

24. Given the large period of time the Crown submits is waived delay (a 13-month period) I have chosen to divide this block of time into smaller periods for the purposes of analysis.

(a) January 7-January 14, 2020 – No defence delay

25. On January 7, the pre-trial application and trial dates are selected with the Trial Coordinator. The matter is adjourned for one week at the request of the defence. The Crown suggests this period be deemed defence delay, however, the trial dates had already been blocked off by courts administration. The fact this matter went over for a one-week period before trial dates were formally put on the court record had no impact on the scheduled dates. This period is not deducted from total delay.

(b) January 14, 2020 – Disagreement on whether there is an implicit waiver

26. There is significant disagreement between the parties as to how to characterize what occurred at this set date. This is one of the main areas of dispute in this application and it turns in large part on whether I accept the Crown argument that a significant portion of the delay in this trial should be deducted as a result of an implicit waiver by the defence.

27. On January 14, the parties having attended at the Trial Coordinator’s Office a week earlier are prepared to formally put Garofoli hearing and trial dates on the court record. The matter is addressed in front of Duncan J. Mr. Sodhi is not present, and an agent speaks to the matter on his behalf. The following exchange occurs:

Mr. Sarantis (Crown): I can tell Your Honour that the matter has been pre-tried by your sister, Justice Mareska. Mr. Sodhi and I have been in discussions in respect to setting this matter down for trial. We attended the Trial Coordinator last week and we set a five-day or we asked about a five-day trial in the Ontario Court and a two-day pre-trial motion for a Garofoli and section 8. And we were given the first available date of February 8 to 12 (2021) and were given a date of November 16 and 17 (2020)to do the Garofoli. That was the first day offered. This offence date is from July 4, 2019.

The Court: Yes.

Mr. Sarantis: So, Mr. Sodhi and I had a conversation at the Trial Coordinator, and I asked whether that date is going to cause any 11(b) issues because it’s in advance of the – it’s in excess of the 18-month ceiling.

The Court: Yes.

Mr. Sarantis: And Mr. Sodhi and I had a chat about, you know, whether some time in December would be attributed as Defence delay. I didn’t want to go down that route, and my question was simply, “Look, if we set this date, I’m happy to get earlier dates for you or ask if things can be put on top of each other this is an important matter.” And Mr. Sodhi has confirmed for me, and I think my friend will tell you that, that date doesn’t cause any 11(b) difficulties for Mr. Sodhi in the sense that he’s not going to be bringing an 11(b) application based on that date that’s been offered.

The Court: Well, it was two dates being offered.

Mr. Sarantis: Yes.

The Court: It’s Garofoli. You mean on either date being offered.

Mr. Sarantis: That’s right.

The Court: Going to trial over a year from now, February of ‘21, he doesn’t have an 11(b) issue with it. Is that what you’re saying?

Mr. Sarantis: That’s right.

The Court: All right.

Mr. Sarantis: Now, should things happen after that, that’s another issue. But these dates themselves aren’t going to cause difficulty. Now, Mr. Sodhi is going to communicate with me over the course of the next few months to see if there are any further issues. But on that basis Mr. Sodhi has given that my friend can confirm, I’m okay to set those dates.

The Court: Okay.

Mr. Sarantis: Okay. That’s why I wanted it in here just because I’ve been case managing the file, Your Honour. I want to make sure there are no delays.

The Court: We have the information now. It just came in.

Mr. Sarantis: Fantastic.

The Court: So, do you have any comment about all that?

Mr. Dhillon (Agent for Mr. Sodhi): No, I was just instructed to explicitly waive 11(b) on this matter.

The Court: All right, all right.

Mr. Sarantis: Well, hold on a second. I’ m not sure that Mr. Sodhi is waiving 11 (b)…

Mr. Dhillon: Okay.

Mr. Sarantis: …from now until February 2021. I just want to be fair to him. What he’s saying is that date, which is 13 months from now isn’t going to the subject o f a n 11 (b) application on that day. Like he’s not going to say , “ I’ m bringing a dela y application now because y o u g a v e me a date that was way down the road.”

Mr. Dhillon: Okay.

Mr. Sarantis: But he’s not waiving from now to then.

The Court: But if the case doesn’t g et done o r g o e s further, he’s still going to rely on all of the period time, right?

Mr. Sarantis: That’s right.

The Court: Okay, got it. So, all right.

Mr. Sarantis: And again, if there is an issue and that changes and my friend is asking for a quicker date, I’ve already him to directly contact me. I’m happy to do whatever I can to get an earlier date than February 2021 for everybody’s interest, okay.

28. Of note, although Mr. Dhillon waives delay until the February 2021 trial dates, Mr. Sarantis quite fairly corrects the admission on the record. I accept that there was no explicit waiver of delay for this period. As Mr. Sodhi explained in his submissions, Mr. Dhillon, a law student, acted erroneously in waiving delay and had no instructions to do so. The Crown was alive to the mistaken concession and corrected the record.

No implicit waiver found

29. Having determined there was no explicit waiver of delay during this period, the issue remains as to is whether there was an implicit waiver.

30. I am struck by the fact that both the Garofoli hearing dates and the February trial dates were the first days offered by the Trial Coordinator.[^7] They were accepted by both the Crown and defence. It is an indication of the backlog and resource challenges in Brampton – that the first trial dates available were some 13 months after the parties were prepared to proceed to trial. This is even prior to the additional challenges presented by the COVID-19 pandemic on trial scheduling.

31. The Crown was notably concerned about the length of delay. There was an understanding between the parties, which I accept was the case, that the defence would not be bringing a s. 11 (b) application based on the initial trial dates that had been offered. Mr. Sarantis concedes there was no explicit waiver of this period but argues there was an implicit waiver of delay until the first trial date based on the exchange in set date court as reproduced at paragraph 27 of this decision. He argues the Crown made a “good faith offer” to secure earlier trial dates. Indeed, he noted on the record that the matter was of sufficient importance that the Crown was amenable to putting Mr. Singh’s trial on top of already scheduled matters.[^8]

32. It was clear, however, according to Mr. Sarantis that the Applicant was in no hurry to have his trial and was prepared to accept the resulting delay. To support his position, he references R. v. Choudhury, 2019 ONSC 2163, where Parfett J. concluded that an endorsement by the pre-trial judge that the trial dates as scheduled (which were in excess of the 30-month threshold for matters in the Superior Court of Justice) did not trigger a s. 11(b) concern for the defence as being equivalent to an implicit waiver of delay.

33. R. v. Choudhury is distinguishable, however. In Choudhury, the Court recognized that the defence decision not to set trial dates on an earlier occasion meant multiple trial dates that would have been available were lost, which was a significant factor in the analysis. Further, the pre-trial endorsement is unequivocal – the defence clearly accepted that the trial dates as selected, despite a delay to trial of a further 12 months, would not trigger a s. 11 (b) issue. That is not the defence position in this case which contains an important caveat. To be clear, the defence position is that a delay application will not be brought based on the February 2021 trial dates – however, in the event as Duncan J. noted, “The case doesn’t g et done o r g o e s further, he’s still going to rely on all the period time, right?” Mr. Sarantis agrees. In other words, the Applicant undertakes not to seek remedy under s. 11 (b) based upon the fact that the initial trial dates were being set outside of the presumptive Jordan celling. As it will become apparent in this ruling, the matter is not completed during the scheduled February trial dates, instead the trial is not completed for another nine months until November 2021. This is the very scenario the defence objects to and undermines the Crown’s argument that there exists an implicit waiver of delay.

34. Some of the subsequent delay is certainly attributable to the defence, but a significant portion is due to inadequate trial estimates, challenges with disclosure, and limited institutional resources.

35. My conclusion that there is no implicit waiver at the January 14 set date is further buttressed by an e-mail exchange contained in Mr. Singh’s application materials dated January 13, 2020 – the day before the contentious set date appearance. In that e-mail counsel writes that he didn’t think it would be “wise to waive 11 b” for the period up to the first trial date and that it would be a disservice to his client.[^9]

36. Mr. Sarantis responds on the same day in writing that he would not be able to set the February trial dates if s. 11 (b) is an issue. Mr. Sodhi responds shortly thereafter that he would not be bringing a delay application based on the scheduling of the February trial dates but adds, “If it gets delayed or some (word redacted by author) happens in February, and we don’t go – then I will bring the 11 b.”

37. I am not satisfied given the record before me that there was an implicit defence waiver of delay until the first trial date. A waiver must be clear and unequivocal, and both the transcript from January 14 and e-mail correspondence from the same period undermine such a conclusion.

38. Indeed, I am of the view the Crown should have been alerted to the constitutional vulnerability of their case based on the e-mail correspondence alone, prior to the appearance in front of Duncan J. In that e-mail Mr. Sodhi puts the Crown on notice that in the event the matter is not completed as scheduled the defence would bring a delay application. Given that the scheduled trial dates were already set outside the Jordan guidelines, the Crown was already in a position to anticipate that delay could be a pressing issue and address it immediately.

39. Of note, the Crown was aware at the judicial pre-trial on November 12, 2019, of the following:

i. The defence intended to challenge the issuance of the search warrant.

ii. The defence intended to challenge the use of a drone in the execution of the warrant.

iii. The defence was alleging police used excessive force in the execution of the warrant and breached the Applicant’s s. 7 Charter rights. It would have been obvious that Mr. Singh would testify on the motion.

iv. A voluntariness voir dire was required.

v. Thirteen police witnesses are listed on the trial time estimate form. In addition, two civilian witnesses are noted (likely the paramedics at the scene).

vi. A Punjabi interpreter was required (although never used at trial).

40. Given the number of witnesses anticipated to give evidence and the legal issues identified, it should have been reasonably foreseeable to the Crown that there was a real possibility that the matter would require additional trial time than scheduled. And if that occurred, a delay application would be forthcoming. I appreciate all parties participated in the time estimate and Mr. Sodhi also bears some responsibility for the inadequate time estimate.

(c) January 14, 2020, to November 16, 2020 – No implicit waiver

41. Given my conclusion that there was no implicit waiver nor a finding that defence actions were tantamount to a waiver as argued by the Crown, the period of time from the January 14, 2020, set date appearance to November 16, 2020, the date of the pre-trial application, is not to be deducted from the total period of delay.

(d) November 16, 2020 – February 8, 2021 – Defence caused delay

42. Two days had been scheduled for the Garofoli hearing (November 16 & 17). I will return to this Court’s concern about this two-day estimate later in this decision. On the afternoon of November 15, the defence filed their s.8 application. Given the lateness of the application, the Crown did not respond. Mr. Sodhi argued that one of the reasons there was a delay in the filing of the application is that the Crown only provided further disclosure of the affiant’s notes (although not all of the requested notes) over the preceding weekend.[^10] He conceded however that the disclosure was not earth shattering but submits he would have not known that until he had an opportunity to review the further disclosure and determine if it would impact his legal argument. Further, he argues Mr. Sarantis’ failure to provide a Crown summary further contributed to the delay because it would have allowed him to properly develop and refine his legal arguments in advance of the Garofoli motion.

43. There is some merit in the last argument, however it does not rise to a level that I accept as a sufficient reason to delay the filing of the Applicant’s Charter materials. The motion dates were fixed in January 2020 – some ten months prior. The matter was subject to a second stage judicial pre-trial on September 14, 2020,[^11] and then a further continuing judicial pre-trial on October 16, a month before the Garofoli hearing, where a lack of disclosure impacting the filing of defence materials should have been canvassed. In addition, the matter could have been brought into a case management court.

44. Further, I note Mr. Sodhi is an experienced criminal lawyer, who was retained soon after Mr. Singh was charged and therefore well-acquainted with the case from the outset. I accepted the Crown submission that despite the defence concerns about the outstanding notes of the affiant, Mr. Sodhi could have filed his application based on the disclosure he had including the redacted ITO. The late filling delayed the start of the Garofoli hearing which was rescheduled to the week of February 8 which had been previously allocated for a trial. I appreciate there is a knock-on effect as a result of losing the November dates which I will consider as part of the analysis.

45. This delay is attributable to defence actions and 85 days is to be subtracted from the total period of delay in this matter.

Case management concerns

46. What further becomes apparent at the November 16, 2020, appearance and the first time this matter is before this Court, is that case management is required. Of significance, the procedure for litigating the sufficiency of the ITO was not well laid out. It was also clear that the number of days allocated to the application was insufficient.

47. This matter is adjourned for two weeks for a case management hearing in front of this Court.

48. On November 30, 2020, a timeline is established for the Crown to file a response to the Applicant s. 8 application. Mr. Sarantis provides the defence with a Crown summary of the redactions contained in the ITO. Mr. Sarantis gives notice that the Crown will rely on the unedited affidavit in assessing the sufficiency of the search warrant.

Inadequate time estimate for the Garofoli hearing

49. This issue requires addressing. The two-day period set aside for the Garofoli hearing was a woeful underestimate of the time required. The Crown is disproportionality responsible for this estimate because key decisions – decisions that lie with the prosecution as to how the search warrant is to be litigated were not made at the time of the November 12, 2019, judicial pre-trial, when a time estimate was fixed.

50. It is not until almost a year later at a continuing second stage judicial pre-trial which takes place on October 16, 2020, that it becomes apparent that the two days allocated for the search warrant litigation was not adequate.[^12] Blacklock J. requested the parties secure additional time for the hearing. As it turns out, the parties are unable to identify additional time prior to the November 16 and 17, 2020 Garofoli motion dates.

51. At the October judicial pre-trial the Crown indicated a possible intention to proceed via the step 6 procedure as outlined by the Court in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421.[^13] Blacklock J. encouraged Mr. Sarantis to prepare a Crown summary of the redactions in advance to be provided to the defence. This never occurs prior to the November 16 hearing dates.

52. Mr. Sarantis argued that the delay in preparing a Crown summary was because he was waiting to review the defence s. 8 materials and since it was late, he could not proceed.

53. I do not accept this argument. The Crown was aware one month prior to the motion, that the litigation may be proceeding via step 6 – the preparation of a Crown summary is a best practice and is to be provided to the defence in advance of the Garofoli hearing. It provides the defence with information about the nature of the redactions allowing for a more tailored and focused legal argument. In some instances, the summary may address legitimate defence concerns about the sufficiency of the grounds supporting the search warrant – for example, it can confirm by way of summary, corroborative efforts made by police to confirm details of the informant’s tip if such information is redacted. Further, where the defence is seeking leave to cross-examine the affiant, a summary again, can adequately address concerns about reasonable grounds contained in the warrant and the defence may dispense with certain lines of questioning.

54. I appreciate there is no consensus on the preparation of a Crown summary in advance of step 6 litigation with some prosecutors taking the view that the preparation of a summary should lie only with the presiding judge. This is an outdated view in the Jordan era where the Court commented on the standard of conduct expected of the Crown:

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.[^14]

55. A Crown summary provided to the defence in advance of search warrant litigation is the very model of “seeking opportunities to streamline issues and evidence.” It can have an impactful effect on the preparation of defence charter materials. I note most significantly in the adjudication of this issue, that Blacklock J. encouraged Mr. Sarantis to prepare a Crown summary in advance and no particular concern was raised about the legitimacy of this step. In other words, this should have happened.

56. Further, the onus was on the Crown to develop a litigation strategy prior to the setting of trial dates. This is not an onerous task – the Crown must review and vet the ITO before it is released to the defence at the set date stage in cases where information is based on confidential sources. During that process it should be obvious whether the ITO contains reasonable grounds. This is a necessary step for the Crown to assess whether there exists a reasonable prospect for conviction and the matter to proceed to the next step in the criminal proceedings. Where the ITO is heavily redacted, as was the case in this litigation, the Crown must consider prior to identifying trial dates, whether they will rely on the unedited affidavit in having a Court in assess the sufficiency of the search warrant. The reason this must occur relatively early in the criminal proceedings is that this decision has a direct and substantial impact on a time estimate. A determination on whether the Crown is proceeding via step 6 in Garofoli must occur prior to a judicial pre-trial if the Crown is proceeding expeditiously.

57. It is unclear why the Crown delayed this determination until the eve of the Garofoli motion.

58. The end result is that two days were allocated for the following:

i. In-camera hearing where a judicial summary is drafted.[^15]

ii. Opportunity for the defence to review the summary once it is prepared and make submissions on the adequacy of the draft.[^16]

iii. The court to hear and adjudicate defence application seeking leave to cross-examine the affiant. If granted, cross-examination is to occur.

iv. Legal argument on the sufficiency of the warrant.

59. This process as outlined in the previous paragraph ultimately took nine days to complete,[^17] which is lengthy, but not excessive, given the nature of the legal issues.[^18]

Ongoing disclosure concerns

60. In addition to case management concerns and inadequate time estimates, there were ongoing issues with disclosure in this case. Amongst other items, Mr. Sodhi requested the notes of the affiant Detective Constable Uckardes on the following dates: July 9 and 31; September 9; October 7; December 18, 2019; October 20; November 5 and 13, 2020. Some, but not all the of the requested notes of the affiant were provided.

61. It is only on November 14, 2020, did Mr. Sodhi receive the affiant’s notes from the date of the search warrant was drafted (July 3, 2019) – close to 16 ½ months after the defendant had been charged and after eight disclosure requests.

62. Mr. Sarantis pointed out that the ITO contained the information in the affiant’s notes, so although Mr. Sodhi may have not had the police notes, he was aware of the substance of the notes.[^19] On the face of it this may seem like a compelling argument, however unless the notes are presumptively irrelevant, they must be disclosed in a timely manner. It is up to the defence to determine what use, if any, to make of them. On this point, there are many circumstances in which the affiant’s investigative notes would be of assistance on a s. 8 application.[^20] The Crown when faced with a request for the disclosure of the affiant’s pre-search warrant execution notes should release them with appropriate redactions to protect privilege. No explanation was ever proffered as to why these notes were delayed nor did the Crown object to their release based on relevancy or privilege as a basis for non-disclosure.[^21]

63. Particularly troubling is that even while argument was being heard on the application for leave to cross-examine the affiant, Mr. Sodhi had still not received the affiant’s pre-execution notes – when such disclosure could have had a direct bearing on the application.[^22] It is unclear even now after the trial has been completed whether the defence ever received the full complement of Officer Uckardes’ notes in relation to this investigation.[^23]

64. This was not the only area where disclosure was lacking. The defence received the Use of Force Report and the notes of the tactical team – the officers that initially made the entry into the Applicant’s home, on February 1, 2021 – almost 19 months after the defendant was arrested on these charges. The manner of search and the police use of force during the applicant’s arrest were live issues identified at a second judicial pretrial held on November 12, 2019.[^24] The notes of the tactical team therefore were highly relevant. Mr. Sodhi explained, and I accepted that as a result of this late disclosure additional officers were added to the witness list for trial rendering initial time estimates inaccurate.

65. Disclosure challenges continued into the summer of 2021. On August 24, a continuing trial date in this matter, Mr. Sodhi requested a “Taser Report,” based on evidence elicited the previous day from Officer Edwin Mulder. Officer Mulder along with a second officer deployed a taser during the arrest of the Applicant at his home. A report of a taser discharge is electronically generated. The information contained in the report includes the time the taser was armed for use, and the time and duration of a discharge. The two reports, that were subsequently made exhibits during this trial, are relatively short – two pages each and further contain a “pulse log graph.”[^25]

66. The timings of the discharge were a contentious issue in the trial and the taser reports an important piece of disclosure. Although Officer Mulder’s evidence was completed, he had to be recalled the next day to be cross-examined on the contents of the report due to the late disclosure – a highly inefficient measure.[^26] A second officer was also cross-examined in relation to the new disclosure. The defence identified the manner of search and excessive use of force as trial issues 21 months earlier at the November 2019 judicial pre-trial. The police use of tasers to restrain Mr. Singh was a live issue from the outset. The “Taser Report” was in the possession or at least accessible to the tactical team and should have been disclosed as part of initial disclosure or in the ordinary course. It certainly should have been part of a further disclosure package of tactical team notes that were provided in February 2021. This was not a tangential piece of disclosure or one of uncertain relevance where the Crown could reasonably argue there was some onus on the defence to identify and request. Even if that was the case, Mr. Sodhi in a letter dated October 20, 2020, requests a “use of force report” related to the deployment of the taser. The taser report, if not already contemplated, should have been provided as part of that request.

67. For disclosure problems to have a meaningful impact on the s. 11(b) analysis they must have actually caused a delay in this case.[^27] I find the Crown failed to meet their disclosure obligations in a timely manner. This lack of disclosure frustrated the efficiency of the proceedings, rendered some time estimates inaccurate and specifically caused unnecessary delay.

68. The lack of a fulsome search warrant litigation strategy, the inadequacy of the time estimate for the Garofoli motion and disclosure delays ultimately impacts the allocation of delay in this case as discussed below. These findings have led me to conclude the Crown failed to take steps to mitigate delay when both the Garofoli hearing, and trial exceeded their scheduled allocation of court time.

(4) February 8, 2021 – April 22, 2021 – delay attributed to both defence and Crown

69. This two-and-a-half-month period encompasses nine days that were required to complete the Garofoli hearing. Mr. Sodhi challenged the adequacy of the judicial summary prepared by this Court, which required some additional time to litigate. The hearing once it commenced proceeded efficiently.

70. The Crown argues that this period be deemed defence delay. The loss of the November dates had a knock-on effect requiring the parties and Court’s administration to identify not only new Garofoli hearing dates, but new trial dates pushing the matter well past the Jordan guidelines. In the alternative, Mr. Sarantis submits that this Court consider the delay in completing the trial, which required multiple additional days than anticipated, as amounting to an exceptional circumstance.

71. Exceptional circumstances as the Supreme Court in R. v. Jordan explained, “lie outside the Crown's control” in that “(1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise.” The Court goes on to note that the circumstances need not be "rare or entirely uncommon."[^28]

72. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.[^29]

73. In certain circumstances, a trial that exceeds the time estimate can be deemed a discrete event. The period of delay caused by any discrete exceptional events is to be subtracted from the total period of delay.[^30]

74. At paragraph 73, the Court in Jordan states, "If the trial goes longer than reasonably expected -- even where the parties have made a good faith effort to establish realistic time estimates -- then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance."

75. The Supreme Court further instructs trial judges to be “alive to the practical realities of trials” especially in circumstances when a trial was scheduled to be completed in a timely manner but exceeds the applicable ceiling. When such an event occurs, "the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling."[^31] The Crown has an ongoing obligation to mitigate delay due to discrete events.

76. I accepted the Crown’s argument, in part, that Mr. Sodhi’s failure to file Charter materials in a timely manner triggered a period of delay that influenced the eventual end date of this trial. However, this is not a circumstance where I am prepared to allocate the full duration of this delay to the defence (10 weeks). It is obvious that had the matter proceeded in November as scheduled, the Garofoli hearing would not have been completed in the two days that were allocated. This is a direct result of the Crown's failure to adequately develop a litigation strategy in support of the issuance of the search warrant and undermines any argument that the Crown reasonably mitigated delay. As I have noted at paragraphs 49-59 of this ruling, key decisions that should have been made in November 2019, prior to the first judicial pre-trial were instead delayed until the fall of 2020.

77. I want to be fair to the trial Crown, who in my experience is a very competent lawyer, and who may not have had carriage of the prosecution when material decisions were required to be made at the outset of the criminal litigation. That said, the Crown is indivisible in these circumstances and this lack of forethought deprived the defence and pre-trial jurist a complete understanding of the steps the Crown intended or at least contemplated taking to defend the warrant’s issuance.

78. There is no strict formula in the s. 11 (b) analysis as to how to allocate delay resulting from actions, or lack thereof, occasioned by both the Crown and defence during a period of time in question. In this case, four weeks will be subtracted as defence delay, to account for the late filing of Charter materials and the knock-on effect that had on subsequent trial scheduling (in addition to the 85 days subtracted for the period of November 16, 2020 – February 8, 2021, for the same reason).

79. One additional week is to be deducted because Mr. Sodhi was ill and Charter submissions could not proceed as scheduled on April 14.[^32] A new date was identified in short order and submissions were completed on April 22, 2021.

80. The Court in Jordan cautions at para. 75, "any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted." This is the case here.

81. Accordingly, the remaining five weeks during this period is not to be subtracted from the total period of delay. It reflects the Crown’s outsized role in underestimating the time required to complete the s. 8 pre-trial motion.

Defence unavailability

82. Although I have apportioned delay evenly for the time period February 8, 2021, to April 14, 2021, I will address the Crown argument that the period from March 17, 2021, to April 14, 2021, is to be further deducted because of defence unavailability.

83. On March 12, this Court released a written ruling upholding the adequacy of the judicial summary. Later that afternoon the parties conducted a teleconference with the Trial Coordinator to identify one additional date for submissions related to the Garofoli motion and four days for trial in the event the search warrant was upheld. The first date offered was five days later on March 17. The Crown and this Court were available but the defence was not. Most recently in R. v. Boulanger, 2022 SCC 2, [2022] S.C.J. No. 2, the Supreme Court noted:

“This Court did of course explain in Jordan that where the court and the Crown are ready to proceed but the defence is not, the resulting delay is attributable to the defence. All participants in the criminal justice system, including the defence, must take a proactive approach in order to prevent unnecessary delay by targeting its root cause (Cody, at para. 36). That being said, in some cases, the circumstances may justify apportioning responsibility for delay among these participants rather attributing the entire delay to the defence.”

84. This is a case that required multiple continuation dates. Mr. Sodhi has consistently been flexible in identifying dates in his schedule. For example, counsel had a domestic related trial in Newmarket which he adjourned to accommodate continuing trial dates in June 2021 for this matter. In some instances, he accommodated continuing dates on short notice. Similarly, Mr. Sarantis made himself available on short notice despite his heavy caseload at the Crown Attorney’s Office.

85. I note, Mr. Sodhi is a sole practitioner with a particularly busy practice in this jurisdiction, and he has consistently prioritized this matter when delay became an issue after the Garofoli hearing could not be completed in February 2021. Further, and as I indicated, the March 17 date was offered within five days of the teleconference with the Trial Coordinator’s Office. Practically, it is rare that defence counsel are able to make such accommodations to their schedule on a few days’ notice. It is unreasonable in this circumstance, and having the opportunity to reflect on defence conduct when delay became a real concern in this case, to attribute this one-month period as defence caused delay.

86. There are some factual parallels to R. v. Safdar, 2018 ONSC 7067, in which Goodman J. was not prepared to attribute the unavailability of counsel for a continuation date to delay solely caused by defence conduct. The Ontario Court of Appeal allowed an appeal by the Crown from a stay of proceedings. However, on this issue of counsel’s legitimate unavailability, the Court concluded that the trial judge's factual findings which included his consideration of continuation dates offered on relatively short notice and counsel’s otherwise broad availability were a sufficient basis to conclude that the period of delay at issue was not solely or directly caused by the defence.[^33]

(5) April 22, 2021-November 4, 2021

Defence conceded delay – 28 days

87. There are two periods conceded by Mr. Sodhi as defence delay during this period of time. The first is June 16 – June 23, 2021. The first continuing trial dates offered by the Trial Coordinator on March 12, 2021, was June 16 and 17. Counsel was not available, and the date eventually fixed was June 23-25. This wasn't a case of minimal notice in the midst of a continuing trial. The concession is reasonable, and this seven-day period it is to be deducted.

88. The second period is from August 9 until August 23, 2021. After the trial was not completed in the four days allocated in June, four additional days were to be secured. This is in addition to one day in September – a date that was also identified by the Trial Coordinator in March and earlier confirmed by the parties. Mr. Sodhi was unavailable on August 9, when the Crown and the Court were prepared to proceed.

89. As a result, these two periods, in total 28 days, are be subtracted from the total period of delay.

(a) April 22 – June 23 – no deduction in delay warranted

90. This is the period when Garofoli submissions were completed, to the start of trial. It takes into account a sixty-day gap between the hearing of pre-trial applications and the commencement of trial. This practice is in accordance with Rule 2.4 of the Criminal Rules of the Ontario Court of Justice. This period may be abridged, but so such relief was requested. This may also simply reflect that trial dates prior to the month of June were not available in Brampton and a request to abridge this period would have been mute.

(b) June 23 – September 16 – no deduction

91. On March 12, at a meeting with the Trial Coordinator, four days are identified for trial – June 23-25 and September 16. Although there was a significant gap between the June and September dates, the Crown was of the view the trial may be completed during the first block of dates in June. The gap in dates also reflects the limited court availability in Peel when dates were being set in the spring of 2021.[^34] Near the end of the June dates, it becomes apparent that additional trial time was required, and four additional trial dates are secured in August. The identification of August dates required flexibility by all parties. In particular, the Trial Coordinator was able to make consecutive continuing trial dates available on relatively short notice.[^35]

92. In determining the reason this matter took longer than estimated over the summer of 2021, there is nothing in the defence conduct of the trial that unnecessarily prolonged the proceedings. At times, Mr. Sodhi’s cross-examination of police witnesses focused on matters of limited relevance and was repetitive, but not excessively.

93. Given the number of issues that were to be litigated at trial: (i) the lawfulness of a police operated drone during the search warrant execution, (ii) the manner of which the search and seizure was conducted, (iii) whether there was an excessive use of force deployed in the arrest of the Applicant, (iv) and whether defendant had knowledge and control of the contraband - a large number of witnesses were required to give evidence. It is not surprising that the initial four-day trial estimate was inadequate. This inadequate time estimate is not solely the fault of the Crown, however the mid-trial late disclosure (see paras. 65-66) during the August trial dates and the ongoing disclosure challenges in this case are significant factors in unnecessarily elongating these proceedings.

94. The presence of exceptional circumstances is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling. In order to establish that a trial that exceeds the time estimate can be deemed a discrete event, the Crown must show that it took reasonable available steps to avoid and address the problem before the delay arose if it was foreseeable. That is not the case here. I find the disclosure problems in this case did have a meaningful impact on these proceedings and caused a delay in this case.

95. Accordingly, the period to complete the trial in excess of the initial four-day trial estimate cannot be considered a discrete event and I do not accept the Crown’s submission that this period be subtracted. The Crown failed to take steps to mitigate delay occasioned by late and missing disclosure.

Efforts to limit delay

96. I have in this analysis considered efforts made by the Crown to reduce delay. Mr. Sarantis was cognizant of delay concerns from the outset. He documented those concerns on the record in correspondence with Mr. Sodhi. I accept that he made this matter a priority for the allocation of continuing trial dates. The fact remains is that there were persistent disclosure issues in this case that were foreseeable and avoidable.

97. I also acknowledge the efforts made by both parties to streamline the proceedings. Mr. Sodhi made reasonable concession that did impact the number of witnesses that would have to be called by the Crown.[^36]

98. Both lawyers made themselves available on short notice for trial continuations. They communicated often and resolved issues outside of the courtroom without the need for judicial intervention. It was a collegial proceeding, and their professionalism is to be encouraged.

(c) September 16 – October 27 – no deduction warranted

99. Although the evidence in this trial is completed on September 16, one additional day is required for submissions. October 27 is identified. In total nine days were required to complete the trial. For reasons outlined earlier in this decision, related to a Crown failure to reasonably mitigate delay in these proceedings, I do not accept this 42-day period of delay is a result of a discrete event.

(d) October 6, 2021

100. This court released written reasons upholding the sufficiency of the search warrant. The parties had earlier been advised of this outcome prior to the commencement of trial. The Crown requested the decision be retracted due to a concern related to informant privilege. After the Crown makes brief submissions, Mr. Sodhi agrees. He further undertakes not to release the ruling, which had been provided by e-mail, to the Applicant.

101. It was determined that the date that had been identified for trial submissions – October 27, be utilized to conduct an in-camera hearing in order for the Crown to outline his concerns about the contents of the Garofoli ruling. The parties agree to this procedure.

(e) October 27

102. This Court finds that the Crown's concern is reasonably based. The detail that is inadvertently released relates to a date and not biographical or tip information that would narrow the pool of potential informants. In the circumstances it is determined that the ruling can be released subject to a small amendment. The amended ruling is released to the parties via e-mail.

A new date for submissions is identified.

(f) October 27 - November 4, 2021 – deduction due to a discrete event

103. This nine-day period of delay accounts for the date when the trial was anticipated to complete and the actual date the proceedings were completed. The delay is a result of exceptional circumstances that clearly lie outside the Crown's control and were unforeseen. This period is to be deducted.

F. Additional Considerations

Impact of the COVID-19 Pandemic

104. The Crown argues the period from March 20, 2020, to July 6, 2020, be subtracted as an exceptional circumstance due to the COVID-19 pandemic. Starting on March 20, the majority of out of custody trials in the Brampton courthouse are adjourned. This continues until July 6, when a limited number of courtrooms are re-opened. It is not until the fall, however, when the remaining courtrooms are re-opened to accommodate trials that had previously been adjourned and the Trial Coordinator commences scheduling of new out of custody matters.

105. Although Mr. Sarantis specifically identified a three-and a half-month period, he argues that as a result of the pandemic, scheduling matters had become more complex and difficult. That the Ontario Court of Justice had to accommodate a backlog of cases that additionally impacted the availability of continuing dates in this matter.

106. Although I readily accept the pandemic is an exceptional circumstance, the Crown has not established a sufficient link between the pandemic and delay in this case. As the court explained in R. v. Greenidge, 2021 ONCJ 57, it is not enough that the Crown to point to the pandemic as a discrete event to justify delay, “The Crown must prove that the delay it seeks to deduct from the overall delay was actually caused by the pandemic.”[^37] In other words, the focus of the inquiry is whether the discrete event caused the delay. Similarly, in R. v. Brown, 2021 ONCJ 663, Bhabha J. succinctly noted, “It is not sufficient for the Crown to simply point to and rely on the fact of the pandemic to explain any portion of the delay.[^38]

107. I accept that outside of the period of spring and summer 2020 when all trial matters were canceled, the pandemic had a far-reaching impact on the scheduling of matters that may not be readily apparent on the record. There remains, however, an obligation on this Court to assess whether there are other causes contributing to the delay during the same period. In this case, it is ongoing disclosure challenges, the inadequate time estimates and limited institutional resources that are significant factors contributing to unnecessary delay in this case.

108. The pandemic coincided with this case, but the record shows its impact was muted. The Garofoli hearing and trial dates were set in January 2020, prior to the start of the pandemic’s impact on the judicial system. The pre-trial application commenced in February 2021, at which point the number of courtrooms operating in Brampton was close to the pre-pandemic number, albeit most proceedings were conducted virtually. By the beginning of the new year in 2021, the impacts on scheduling had become known to justice participants in Peel and considerable effort had been made to develop contingency plans to accommodate the backlog, including prioritizing court resources for continuing and dated matters. The impact of COVID-19 on the court’s administration had been mitigated to a certain degree by the time this matter proceeded to trial.

109. I further note, this is not a circumstance where trial dates were automatically adjourned due to the court’s closure, nor was it a case languishing in que waiting to be to be assigned a trial date while courts administration was accommodating previously adjourned matters.

110. So, while the pandemic was occurring at the same time as the delay in this case, there is nothing in the evidentiary record that would lead me reasonably infer that it was a cause of quantifiable delay.

Complexity

111. Exceptional circumstances are recognized as discrete events or case complexity. As the Ontario Court of Appeal explained in Ontario (Ministry of Labour) v. Nugent, 2019 ONCA 999, at para. 31, “The particularly complex case exception operates outside the context of the presumptive ceiling, and without regard to it as a reference point. The focus of the particularly complex case exception is on whether the delay that exceeds the presumptive ceiling is justified in light of the overall complexity of a case.” In order for this consideration to apply, the court must find the Crown developed and followed a concrete plan to minimize the delay occasioned by the complexity.

112. Under this analysis the court is to determine whether the case as a whole is particularly complex.[^39] A case can be complex at one stage of the proceedings, for example, at the outset, with the preparation of large amounts of disclosure or the compiling of expert evidence but ultimately be straightforward as issues are streamlined over the course of the trial.

113. A case of significant complexity may involve a large number of pre-trial applications or novel or complicated legal issues.[^40]

114. The Crown argued that this case was sufficiently complex to justify a delay beyond 18 months. Mr. Sarantis points to multiple Charter motions that needed to be litigated including a novel legal issue related to police drone surveillance as well as the time required to draft an adequate judicial summary. Further, there were a large number of police witnesses called at trial. In addition, and I accept the Crown’s submission on this point, challenging issues related to informant privilege that had to be navigated during the pre-trial hearing.

115. I agree there were aspects of this case that were complex. The search warrant for example was lengthy and highly redacted.[^41] Step 6 litigation can be particularly challenging. There was a significant amount of disclosure generated in this case, although it was provided in piece meal fashion throughout these proceedings. [^42]

116. However, once the Garofoli hearing was completed, the trial was relatively straightforward and the legal issues not particularly complex - largely related to the applicant’s knowledge and control of the seized contraband and the manner in which the police executed the search warrant.

117. The trial when considered as “a whole,” even in consideration of the challenging search warrant litigation, does not to qualify as a particularly complex case.

G. Conclusion

118. The total period of delay in this case is 28 months. With deductions to account for explicit waiver, defence caused delay and discrete events the net delay is just over 22 months (see Appendix A for a summary of the s. 11 (b) analysis). This period exceeds the Jordan guidelines for trial in the Ontario Court of Justice and is presumptively unreasonable. The Crown has not rebutted the presumption of unreasonableness based on the presence of exceptional circumstances.

119. I acknowledge the seriousness of these criminal charges. The residents of Peel region are understandably dismayed by the proliferation of handguns in our community. Most concerning is the intersection of firearms and drug trafficking, which compose the allegations in this case. However, in the circumstances a stay of proceedings is to be imposed. Timely trials are important to maintaining overall public confidence in the administration of justice. There is a significant public interest in the prompt and fair administration of justice.[^43]

120. In this case a number of factors contributed to unnecessary delay, including inaccurate time estimates for motions and trials and disclosure challenges. However, the backdrop is a lack of institutional resources in Brampton, one of the busiest jurisdictions in the country. This was most apparent when the first trial dates that were available at the Ontario Court of Justice were some 13 months after the parties were jointly prepared to proceed. This concern has become a common refrain in this jurisdiction.[^44] Unfortunately similar results are likely to be repeated in the future.

H.S. Amarshi J.

Appendix A

Date	Event	Determination	Deduction
July 5 - November 12, 2019	Arrest to judicial pre-trial	No deduction warranted
November 12 – December 3, 2019	Judicial pre-trial to set date appearance	Defence waiver of delay	22 days
December 3, 2019 – January 7, 2020	Set date court	Outstanding disclosure delayed setting of trial date
January 7 - January 14, 2020	Set date court	No defence delay
January 14 - November 16, 2020	Set date to Garofoli hearing	No implicit waiver
November 16, 2020 – February 8, 2021	Garofoli hearing adjourned due to late filing of Applicant’s Charter materials. New date is identified.	Defence caused delay	85 days
February 8 – April 22, 2021	Nine days required to complete pre-trial application during this period	Defence caused delay (partial) (i) Four weeks subtracted to additionally account for the late filing of Charter materials and the knock-on effect that had on subsequent trial scheduling. (ii) One week deducted for defence illness (discrete event). No further deduction is warranted.	37 days
March 17 - April 22, 2021	Defence unavailability for continuing Garofoli motion date on short notice.	No defence caused delay given counsel’s flexibility and otherwise wide availability for continuing dates on other occasions.
April 22 – June 23, 2021	60-day period between ending of Garofoli hearing and first day of trial.	No deduction
June 23 – October 27, 2021	Nine days are required to complete the trial	Trial time in excess of the initial four-day time estimate is not deemed a discrete event. The Crown failed to take steps to mitigate delay.
June 16 - June 23, 2021; August 9 - August 23, 2021	Defence unavailability	Defence conceded delay	28 days
October 27 -November 4, 2021	Amended Garofoli ruling released	Discrete event	9 days

Note: there is some overlap of dates to account for multiple arguments of attribution of delay for the same period of time.

[^1]: This period is calculated based on the formula used in R. v. Shaikh, 2019 ONCA 895. Total days are divided by 30.417 to obtain months.

[^2]: See Step 6 at R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, at para. 79 (S.C.C.).

[^3]: Written reasons were released on March 29, 2021: R. v. Singh, 2021 ONCJ 474.

[^4]: These dates were secured in the event this Court upholds the sufficiency of the search warrant.

[^5]: A trial time estimate form (TTEF), sometimes referred to as trial scheduling endorsement or judicial pre-trial form, is completed by a judge. It includes details and agreements about the trial, including, but not limited to the number of witnesses that will be called and the identification of legal issues. Of significance, a time estimate is endorsed by the Crown and defence. The time estimate is further confirmed by the judicial pre-trial judge. In this case, the parties agreed that two days needed to be set aside for a Garofoli hearing and five days for trial. The scheduling of a trial at the Ontario Court of Justice in Brampton only occurs once the defence provides the form (TTEF) to the Trial Coordinator’s Office (as was the practice in the fall of 2019). There may be reasons why the form is not immediately submitted, including allowing time for resolution or the receipt of disclosure.

[^6]: At para. 20. R. v. Morin 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771; R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199.

[^7]: As per the “Verification of Trial Date Provided by the Trial Coordinator” form, which was included in the Applicant’s materials.

[^8]: This is not an uncommon practice in Peel.

[^9]: I should note Mr. Sodhi’s e-mails are informal and casual in nature. This is not a best practice given that these documents can become part of the court record as they did in this case. This e-mail is in reply to an e-mail from Mr. Sarantis asking whether the February 2021 trial dates would create a s. 11 (b) issue. He offers to identify earlier dates if delay is a concern.

[^10]: The notes provided were for July 3, 2019, when the affiant was drafting the ITO.

[^11]: In some instances, but a common practice in Peel during the COVID-19 pandemic, a follow-up judicial pre-trial is scheduled in the weeks leading up to trial to confirm the parties are prepared to proceed as scheduled and to canvass issues that may impact the trial dates.

[^12]: Two judicial pre-trials occur in fall 2020 with Blacklock J. after the trial dates had been set.

[^13]: The Step 6 procedure allows for the meaningful litigation of a search warrant by the defence while protecting the safety of the informants. As part of this procedure, a court is to draft a judicial summary which outlines information relevant to assessing the sufficiency of the ITO. This is achieved via a summary of the nature of the redactions.

[^14]: R. v. Jordan, 2016 SCC 27, at para. 90

[^15]: The parties agreed that the drafting of a judicial summary would be conducted in-camera, although that is not the only option.

[^16]: See R. v. Crevier, 2015 ONCA 619.

[^17]: Motion dates: February 8-12, 17 & 26, March 12& April 22, 2021.

[^18]: Mr. Sodhi argued another reason the Garofoli hearing took longer than estimated is because the Crown over-vetted the ITO in the first instance. Counsel’s argument is based on a finding made by this Court that the ITO as initially disclosed to the defence had been over-edited. In that same written ruling this Court’s states, “This is not an unusual occurrence. For example, details that may been sensitive at the time the affidavit was drafted by police can over the passage of time be safely released.” (R. v. Singh, 2021 ONCJ 474). I did not consider the Crown’s initial editing of the ITO to be unreasonable in the circumstances given the sensitive nature of the redactions.

[^19]: Transcript of proceedings, November 16, 2020, at page 7.

[^20]: For example, see R. v. Debartolo, 2018 ONSC 916, where the court found the affiant and sub-affiant’s approach to note taking troubling, such that it raised concerns about the credibility and reliability of the information contained in the ITO and sourced to the confidential informant.

[^21]: I concluded the delay was largely a result of police inaction as opposed to a lack of diligence of Crown counsel.

[^22]: This circumstance only became known to this Court during the s. 11 (b) application.

[^23]: Mr. Sodhi sent a request to the Crown for the remainder of the affiant’s pre-execution notes on October 28, 2021 - I assume to document that these notes remained outstanding, even after all the evidence had been heard in this case.

[^24]: As outlined in the Trial Time Estimate Form.

[^25]: A table indicting the output voltage of a discharged taser, cross-referenced over the time it was deployed

[^26]: A second issue arose related to a text message Officer Mulder sent to the Crown in light of the disclosure request and was another area canvassed when Officer Mulder was recalled. The communication was ultimately not contentious.

[^27]: See R. v. Murphy, 2013 ONSC 6272, at para. 34.

[^28]: Jordan, supra at para. 69.

[^29]: R. v. Coulter, 2016 ONCA 704 at para. 37.

[^30]: Jordan, supra at para. 75.

[^31]: Jordan, supra at para. 75.

[^32]: Illness can be deemed a discrete event. The delay reasonably attributable to that event is subtracted from the total delay. Jordan, supra at para. 81.

[^33]: R. v. Safdar, 2021 ONCA 207, at paras. 49-51.

[^34]: Based on a reading of the “Trial/Preliminary Inquiry Scheduling Form” that was part of the Applicant’s materials and comments made on the court record the afternoon of March 12, 2021.

[^35]: This is likely a result of trial matters being vacated over the summer that were not available in March, when trial dates were initially canvassed.

[^36]: For example, conceding the Applicant was on a recognizance at the time of his arrest or conceding the cocaine that was seized was possessed for the purposes of trafficking, thereby relieving the Crown from having to call expert evidence.

[^37]: R. v. Greenidge, 2021 ONCJ 57, at para. 26. See also R. v. Schartdt, 2021 ONSC 3143.

[^38]: R. v. Brown, 2021 ONCJ 663, at para. 34.

[^39]: R. v. Cody, 2017 SCC 31, at para. 64.

[^40]: In Jordan, at para. 75, the court observed, for example, that a typical murder trial would not be sufficiently complex to constitute an exceptional circumstance.

[^41]: It did not assist during the search warrant review process that the ITO lacked good organizational structure, including inconsistent paragraphing and page numbering.

[^42]: While voluminous disclosure is a hallmark of particularly complex cases, its presence is not automatically demonstrative of complexity. The inquiry is whether the case is sufficiently complex "such that the delay is justified." R. v. Safdar, 2018 ONSC 7067, at para. 195; Jordan, supra at para. 77.

[^43]: Jordan, supra at para. 25.

[^44]: See R. v. Greenidge, supra, for example.