ONTARIO COURT OF JUSTICE

CITATION: R. v. MacMillan, 2022 ONCJ 594

DATE: December 20, 2022

COURT FILE No.: Toronto 21-750001546

BETWEEN:

HIS MAJESTY THE KING

— AND —

RICHARD MACMILLAN

Before Justice Hafeez S. Amarshi

Written reasons for judgment released on December 20, 2022

M. Giovinazzo.......................................................................................... counsel for the Crown T. David; J. Bray....................................................................... counsel for Richard MacMillan

H.S. Amarshi J.:

DELAY APPLICATION RULING

A. Introduction

[1] Richard MacMillan 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 685 days, equivalent to 22 ½ months.[^1] This period is inclusive from the date the Applicant was charged – April 1, 2021, until February 14, 2023 – the anticipated date this trial is to be 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] By way of a brief summary, the Applicant is charged with multiple firearms related charges. It is alleged that on March 26, 2021, Mr. MacMillan pointed a firearm during an early morning altercation with the complainant who was walking his dog. On April 1, police executed a search warrant at the Applicant’s home and located a firearm and ammunition. Mr. MacMillan possessed a valid restricted possession and acquisition licence and is alleged to have carelessly stored the firearm. He was arrested the same day. The Crown proceeded by indictment.

B. Position of the Parties

[4] The Respondent fairly concedes there is no defence delay in this case.

[5] The Crown argues the net delay in this case is 16 months and 6 days, which takes into account a deduction of time due to exceptional circumstances. He cites both the impact of COVID-19 on these proceedings and the time required to vet the “Information to Obtain” (ITO), which is largely based on information from a confidential source.

[6] The Respondent reasonably concedes that this case is not “particularly complex” to justify delay above the presumptive ceiling if that is a finding of this court.

[7] The Applicant submits that the primary factor contributing to delay in this case is the Crown’s failure to provide timely disclosure and accordingly, no time is to be subtracted from the total period of delay.

[8] In addition to evaluating these arguments, I must also determine how to characterize a period of just under three months. This is the period between continuing trial dates, when this matter could not be completed in the time initially allocated for trial.

C. Timeline

[9] The following is a summary of significant dates in these proceedings:

a. April 1, 2021 – the Applicant is arrested and charged with eight firearms related charges including concealing a firearm, pointing a firearm without a lawful excuse and the careless storage of a firearm and ammunition.

b. May 5; June 9 & July 28, 2021, set date appearances – the Applicant is advised that disclosure was not available.

c. August 4, 2021 – The Crown advised in set date court that initial disclosure is ready. This turns out not be the case.

d. September 27, 2021 – A scheduled judicial pre-trial (JPT) is cancelled due to outstanding disclosure.

e. October 6, 2021 – The Crown in set date court advises disclosure will be made available today or tomorrow. This turns out not to be the case.

f. October 18, 2021 – Initial disclosure is provided. It primarily contains the redacted search warrant. Further disclosure is provided on October 28. The complainant’s videotaped statements and surveillance videos remain outstanding.

g. December 15, 2021 – A JPT is conducted. The complainant’s first statement is provided the day before the pre-trial. The matter is adjourned for the Crown to consider whether they would be proceeding with a “point firearm” offence, which is eligible for a preliminary hearing. A trial estimate was not completed.

h. January 12 & January 18, 2022, set date appearances – outstanding disclosure is canvased by the defence.

i. February 16, 2022 – The complainant’s second videotaped statement and some video surveillance footage is disclosed to the defence.

j. February 17, 2022 – The assigned Crown advised they would not be proceeding with an offence contrary to s. 85 of the Criminal Code and a preliminary hearing is no longer available.

k. February 24, 2022 – A second JPT was conducted, and a trial estimate was completed.

l. March 23, 2022 – Trial dates were confirmed in court. The following dates were identified – September 16, 28 and October 14, 2022, for pre-trial motions and November 16 - 18, 2022, trial dates.

m. September 16 – Pre-trial motions commence.

n. October 14, 2022 – Delay application is heard as a mid-trial motion.

o. February 14, 2023 – Anticipated end of trial. The Garofoli hearing is not completed in the days that are initially allocated and additional trial dates are required – February 2, 3 & 14 are identified.

D. Applicable Principles

[10] 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.”

[11] 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

[12] Before I turn to my analysis, I should note that the Applicant was diligent throughout these proceedings. The defence consistently followed up on outstanding disclosure and case management issues with the Crown. Mr. David accommodated trial dates and sought to minimize delay and streamline legal issues where appropriate.

[13] This application therefore turns in large part on whether I accept the Crown argument that a significant portion of the delay in this trial be deducted as a result of exceptional circumstances.

[14] This analysis requires a detailed review of certain time periods during these proceedings.

(1) April 1 – April 8, 2021, arrest to bail hearing (7 days)

(a) Police investigation

[15] The alleged altercation occurred at 3:30 a.m. on March 26, 2021. The complainant provided a videotaped statement in the rear of a police scout car that same day after calling police. Police investigated the incident over the next four days, canvassing the area for witnesses and conducting various information checks related to the Applicant.[^2] Police also obtained video surveillance footage during this period.

[16] On April 1, 2021, a judicial authorization is granted to search the Applicant’s residence on Orley Avenue in Toronto. The ITO, which contains significant redactions, relies in part on video surveillance footage and information obtained from a confidential informant(s). This is in addition to multiple record checks conducted by police. A firearm and ammunition are located at the residence.

(b) Bail hearing and counsel retained

[17] On April 8, 2021, the Applicant was released on bail after a contested hearing. A bail hearing could not be accommodated on a previous occasion due to the number of matters in court. The terms of release include a house arrest. The bail is a strict one with limited exceptions to the house arrest.[^3]

[18] Mr. MacMillan retained counsel, Trevin David, on the date of his arrest. The matter was adjourned for the provision of disclosure.

(2) April 8, 2021 – July 28, 2021, multiple set date appearances (111 days)

[19] There are three set date appearances during this period – May 5, June 9 and July 28. Disclosure is not available. Mr. David sends a request for initial disclosure on May 2, prior to the first set date appearance.

[20] There is no subtraction of delay warranted for this period of time.

(3) July 28, 2021 – October 6, 2021, multiple set date appearances and a cancelled judicial pre-trial (70 days)

[21] At the August 4, 2021, set date appearance the Crown advised in court that “initial disclosure is ready right now.” This turns out to be incorrect. The defence is advised to contact Tina Maniatis, the Case Management Coordinator at the Crown’s Office. Ms. Maniatis subsequently advised on August 9 via e-mail that initial disclosure is not ready, and that the Crown's Office was still awaiting the “bulk of disclosure.”

[22] On August 18, Matthew Giovinazzo, the assigned Crown, e-mails the defence stating that “substantial disclosure” would be available within the next week and seeks a judicial pre-trial (JPT) be set. September 27 is identified for that purpose.

[23] This turns out to not be the case and disclosure is not made available prior to the September 27 JPT date. No meaningful discussions can take place and the JPT is cancelled.

[24] Assistant Crown Attorney Taylor Potts advised at the October 6, 2021, set date appearance that disclosure, which she noted is largely on video had been requested from police in July. A further request from the Crown’s Office had been sent to police in September. She further advised that the bulk of paper disclosure in pdf form would be sent “today or tomorrow.” This does not occur.

Exceptional circumstances

[25] The Crown argues that two periods of time should be deducted as exceptional circumstances during this time frame.

[26] 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."[^4]

[27] In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.[^5]

[28] The period of delay caused by any discrete exceptional events is to be subtracted from the total period of delay.[^6]

[29] The first period the Crown seeks to subtract from the total period of delay is a nine-day period from August 17 to August 26, 2021. The ITO contained information provided by a confidential informant(s) and the affidavit is to be redacted to protect informant privilege. The first vetting meeting with the affiant and informant handler had to be re-scheduled because one of the officers developed COVID-19 symptoms. I accept this is a discrete event that was reasonably unavoidable, and this period of time – nine days, is to be deducted.

[30] The Crown further seeks a 33-day period be deducted from August 26 to September 28, 2021. This period encompasses multiple search warrant vetting meetings between the police and the Crown. Mr. Giovinazzo argues that due to the requirements of protecting informer privilege, this was a discrete event and “the difficulty could not have been foreseen.” Further, the process could not be “skipped or rushed.”

[31] Part of the difficulty with that argument is that the vetting meetings occur almost five months after the search warrant was authorized.

[32] This type of delay is the very definition of the “culture of complacency,” the Supreme Court sought to remedy in R. v. Jordan. The “culture” the Court explains refers to “unnecessary procedures and adjournments, inefficient practices, and inadequate institutional resources [that] are accepted as the norm and give rise to ever-increasing delay. This culture of delay “causes great harm to public confidence in the justice system.”[^7]

[33] I readily accept the vetting process should be conducted in a fulsome and considered manner and cannot be “rushed.” Informant privilege is a long standing and important protection in our common law and plays a vital role in crime detection and law enforcement. It remains unclear why the first vetting appointment is scheduled months after the execution of the search warrant. It is an inefficient practice. There is nothing unforeseen in this process. It would have been apparent at the very outset, at the time of the arrest, that the ITO was based in part on a confidential source(s) and that the supporting affidavit would have to be redacted.[^8]

[34] Search warrants based on confidential information are routinely executed in this province and there is a reasonable expectation that the relevant Crown’s Office have a process in place to vet and disclose search warrants in a timely and efficient manner. That did not happen in this case. The fact that a search warrant relies on informant information does not automatically render the Jordan timelines a flexible target. The Crown conceded that this case cannot be characterized as “particularly complex.”

[35] I further have the benefit of having reviewed the ITO in both its unredacted and redacted form as part of the Step 6 process.[^9] Although there were some obvious challenges during the vetting process, the ITO is not particularly long, nor complex. It is the sole search warrant in this case. The police investigation in support of the issuance of the search warrant was relatively short.

[36] The fact that it took multiple vetting appointments between the Crown and police before the ITO could be released to the defence is not contentious and indeed that level of care and attention is to be encouraged, what is problematic is the unreasonable delay in vetting the ITO in the first instance. It effectively meant that the case was in a holding pattern until this step was completed.

[37] It should be obvious that a meaningful JPT cannot occur in the absence of the disclosure of the ITO where the Crown intends to rely on real evidence located during the search warrant execution. A number of important decisions the defence needs to make cannot occur. This is turn impacts an accurate time estimate.[^10]

[38] The 33-day period that the Crown seeks to be deducted for vetting the ITO cannot be deemed as an exceptional circumstance and is not to be subtracted from the total period of delay.[^11]

[39] Of further note, the ITO was not unsealed until June 18, 2021, more than six weeks after the search warrant was executed – a perfunctory and straightforward step.[^12] Further, it takes another two months after this for the Crown's Office to schedule a vetting meeting with police.

[40] Both the Crown delay in unsealing the ITO and the scheduling of vetting appointments months after Mr. MacMillan’s arrest, are highly inefficient practices that undermine basic Jordan principles.

[41] I further understand that despite the seriousness of these criminal charges, the Crown’s Office did not assign a prosecutor for over a month post-arrest, delaying case management and the review of disclosure at the outset of this matter.

(4) October 6, 2021 – December 15, 2021 – initial disclosure is provided and a JPT held (70 days).

[42] On October 18, 2021, initial disclosure is provided – 6 ½ months after the Applicant was arrested. The disclosure consists of the Information to Obtain, notes from the execution of the search warrant and documents generated during the police investigation. The disclosure however is substantially incomplete. The complainant’s video statements (there are two), surveillance videos, and additional police notes remain outstanding.

[43] On December 15, 2021, the first JPT in this matter is conducted. Substantial disclosure is provided the previous day to the defence including the complainant’s videotaped statement, 911 call and photographs of the crime scene. Despite receiving significant disclosure on the eve of the JPT, the defence pressed on with the pre-trial. The complainant’s second statement remained outstanding. A trial estimate was not completed. The Crown sought to consider whether they would be proceeding with an offence contrary to s. 85 (1) of the Criminal Code, “use firearm in the course of an indictable offence,” which is eligible for a preliminary hearing.

[44] The Respondent did not seek, nor would a deduction of delay be warranted during this period.

(5) December 15, 2021 – February 17, 2022, further disclosure is provided and mode of election (64 days)

[45] On January 5, 2022, the Crown advised via e-mail that they are following up on outstanding disclosure, specifically obtaining the complainant’s second videotaped statement and seeks to identify a date for a follow-up JPT. Mr. David responds with available dates and inquires whether the Crown will proceed with the s. 85 count.

[46] On January 14, 2022, Mr. David sends a letter outlining outstanding disclosure, which included the complainant’s second statement and video surveillance footage referenced in the ITO – this is a particularly significant piece of disclosure.[^13] Also missing is the entry video taken by police at 61 Orley Ave, when police execute the search warrant. Counsel notes this video is important because it may show where items were located when police enter the basement unit. The video is particularly relevant to the careless storage of firearm count.

[47] Mr. David also seeks a Crown summary of the redactions contained in the ITO and the memo-book notes of five police officers involved in the investigation.[^14] Counsel again inquires about the Crown’s intention in relation to the “point firearm” count.

[48] Outstanding disclosure is further canvased by the defence at two set date appearances on January 12 and 18.

[49] On January 23, Mr. David again, via e-mail correspondence, inquires about the s. 85 count as well as the status of the complainant’s second statement. Mr. Giovinazzo Crown responds that he is working on these issues and hopes to have “preliminary answers to most of your questions shortly.”

[50] On February 16, 2022, further disclosure was provided, specifically the complainant’s second videotaped statement and some video surveillance footage – 10 ½ months after Mr. MacMillan’s arrest.

Mode of election

[51] The next day Mr. Giovinazzo advises via e-mail that the Crown would not be proceeding on the “use of firearm” count. A preliminary hearing is no longer available, and the matter will proceed at the Ontario Court of Justice. This decision settles the mode of election issue, and the parties can proceed to a second JPT.

[52] The Applicant submits the Crown needlessly delayed the setting of trial dates because of inaction on the preliminary hearing eligible count. I accepted Mr. Giovinazzo’s submission that he was prepared to set trial dates at the first JPT on December 15, although it is unlikely trial dates could have been set.[^15] But in an effort to “narrow the issues” as he explained it, he agreed to consider abandoning the s. 85 count. Mr. Giovinazzo noted in his written materials that an individual prosecutor does not have the authority to withdraw a firearm charge without supervisor approval.

[53] It would seem that this issue first arose at the December JPT, and I would characterize Mr. Giovinazzo’s position to reconsider whether to proceed on the preliminary hearing eligible count as open-minded and fair in the circumstances. It reduced an element of jeopardy faced by the Applicant and it had the potential to streamline the proceedings. That said, it remains unclear why that decision took two months to be made. I appreciate there may have been some internal policy considerations within the Crown’s Office, but it was a relatively straightforward determination and this delay in the decision-making process contributed to unnecessary delay in this case.

(6) February 17, 2022 – March 23, 2022, second JPT to setting of trial dates (34 days)

[54] A second JPT was conducted on February 24, 2022, and a trial estimate was completed. The parties agreed that three days would be required for trial. Further, three non-consecutive days were to be scheduled for pre-trial motions, specifically the first pre-trial motion date was to be scheduled at least six weeks before trial, with a minimum of thirty days between the first and second pre-trial motion date, and ten days between the second and third pre-trial motion date.

[55] This schedule made sense given the nature of the litigation – the assigned jurist would potentially have to make multiple pre-trial decisions related to the sufficiency of the search warrant, including time to draft a judicial summary. In this context, scheduling pre-trial motions on consecutive dates would not have afforded the court sufficient time to deliberate on these legal issues and further render judgement. All of the parties agreed to staggering the pre-trial motion dates.

Setting of trial dates and e-mail correspondence

[56] On March 2, 2022, the Trial Coordinator offered the following dates via e-mail – September 16, 28 and October 14, 2022, for pre-trial motions and November 16 -18, 2022, trial dates. In response, Mr. Giovinazzo points out the “Jordan date” is October 2 and seeks earlier dates. He further states, “The Crown is committed to prioritizing this case before that date, even it means double booking this matter.” Mr. Giovinazzo requests a further JPT. The Trial Coordinator responds, “Her Honour is included and as advised nothing earlier is available, this matter is out of custody, right now due to pandemic adjournments, con’t matters and in custody matters, we are unable to offer earlier dates, the matter will start before the Jordan date but not finish.” In the second paragraph of the e-mail the Trial Coordinator states, “The request to set this out of custody trial was made for the first time on March 1, Sept dates are within 6 months. Please advise reasons for delay in setting dates so they can be included as well.”[^16]

[57] Two further e-mails are relevant during this period. A day earlier on March 1, when the Trial Coordinator is first alerted that the MacMillan case had “Jordan priority,”[^17] she advised that in-custody matters were being scheduled in July and August, four to five months away.

[58] On March 3, Mr. Giovinazzo requests earlier trial dates be provided than the dates initially identified. The Trial Coordinator responds, “As advised nothing else is available at this time. I note that over 2 months delay from the first JPT to setting dates, and additional delay results in spreading out the 2 weeks between each motion. Due to scheduling of in custody matters now in June and summer scheduling with motions and then the trial date we are unable to offer dates in July and August.”[^18]

Impact of the COVID-19 pandemic on these proceedings

[59] Based largely on the March 2 e-mail correspondence, where the Trial Coordinator references the “pandemic” as one of three reasons the matter cannot be set any earlier, Mr. Giovinazzo argues that the COVID-19 pandemic hindered the scheduling of dates in this case. He submits two months be subtracted from the total period of delay. He points out that this case reflects one of those examples of the “knock-on” or ripple effect on newer cases needing to compete for limited resources with cases that were affected by the pandemic or partial shutdowns.

[60] It is well accepted that the COVID-19 public health crisis is an unprecedented event and is to be considered an exceptional circumstance.[^19] I am not satisfied, however, that the Crown has established a sufficient link between the pandemic and delay in this case.

[61] It is clear that the principal cause of delay in this case is the apathetic approach to the provision of disclosure. I have concluded the pandemic had a negligible impact on total delay in this matter.[^20]

[62] The Crown relies on this single reference from the Trial Coordinator to substantiate an argument that a significant reduction in the total period of delay in this case is warranted. However, it is important to note that once the parties were prepared to set trial dates, this matter was accommodated in a relatively quick fashion. Pre-trial motion dates were offered within 6 ½ months. This context is important in evaluating the merit of the Crown’s argument.

[63] In R. v. L.L. an unreported 11 (b) ruling released on December 8, 2021, Rutherford J. states the following starting at paragraph 53:

Nobody doubts the pandemic has wreaked havoc on the criminal justice system. At College Park many trials had to be adjourned only to be re-scheduled. However, this is not one of those cases. This case entered the justice system when courts had re-opened. The realities of the pandemic were very clear. Trial coordination was evolving and coping. Although the trial was set for June 20-24, 2022, I note the Court was in a position to offer earlier dates, namely April and May 2022. Due to the unavailability of the Applicant in April and the unavailability of the Crown in May, these dates were turned down. The fact that a 5-day trial with 3 pre-trial motion dates was offered within 10 months of the set date appearance demonstrates the court was coping with the realities of the pandemic. As a judge who sits regularly at College Park this timeframe is in line with timeframes prepandemic. It also demonstrates that had trial dates been requested much earlier in the pre-trial process, they would have been offered well within the 18-month period set by Jordan, supra.[^21]

[64] I can consider local conditions in my evaluation of delay in this case. Justice Rutherford’s conclusions accord with my own observations at College Park. The first motion date was accommodated within 6 ½ months. The trial was anticipated to complete within 8 ½ months of the parties being prepared to proceed to trial. That time frame is among the shortest I have observed, for out of custody matters, in this jurisdiction.[^22] This case may be an outlier, because it was clearly given some priority by the Trial Coordinator, but it demonstrates efforts made by court’s administration to address the backlog in this jurisdiction, including prioritizing dated matters to have been effective.[^23] Noteworthy, is this matter commenced on dates only slightly longer than in-custody scheduling, which for obvious reasons must have system-wide priority.[^24]

[65] This relatively short time to trial period also substantiates my conclusion that no earlier dates could be accommodated by court’s administration, despite repeated Crown requests to identify dates that were Jordan compliant.

[66] Although this case coincided with the endemic stage of the COVID health crisis, the evidentiary record hardly establishes a sufficient link between the pandemic and delay in this case.[^25] Indeed, it was the slow pace of disclosure, poor case management at the outset of the prosecution and an unreasonably long charge decision making period that are the key factors that contributed to unnecessary delay in this case.

[67] When required to do so the court’s administration did exactly what was required, identify and organize the scheduling of trial dates in a timely manner. It is clear, as was the case in L.L., had the parties requested dates earlier in the pre-trial process this matter would have been accommodated well-within the Jordan guidelines.

(7) March 23, 2022 – November 18, 2022, last set appearance to first anticipated end of trial dates (240 days)

[68] On March 23, 2022, the fall trial dates were confirmed in court.

[69] On May 27, 2022, Mr. Giovinazzo advised that an unrelated trial originally scheduled for September 19 – 21, had resolved and sought to utilize those dates for Mr. MacMillan’s trial. However, given the fixed pre-trial motion dates it was decided that the matter should be brought back before Justice L. Thomas, the JPT judge for further direction.

[70] However, no action was taken on this request for two months. On July 29, 2022, the Crown contacted the Trial Coordinator to schedule a follow-up JPT. A JPT is held on August 19, 2022, less than a month before the start of pre-trial motions. At this late juncture, earlier trial dates could not be identified.[^26]

[71] During pre-trial discussions the Crown indicated they would be relying on the unedited ITO to support the issuance of the search warrant. Pre-trial motions commenced on September 16. With the consent of the Applicant, this matter proceeded in-camera for the preparation of a judicial summary.

[72] It is determined that one of the dates allocated to the Garofoli hearing – October 14, would be set aside for the hearing of the Applicant’s 11 (b) application.

(8) November 18, 2022 – February 14, 2023, additional trial dates are required (89 days)

[73] Additional time is required to complete the trial. February 2, 3 & 14 are identified.

[74] At paragraph 73, the Supreme 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] In terms of whether an adequate amount of time was allocated to this matter, Mr. David fairly conceded that both sides thought three days were sufficient for trial. The JPT form dated February 24, 2022, reflects consensus between all parties in relation to time estimates for pre-trial motions and for trial.

[76] I note that once the trial commenced, both the Crown and defence worked towards streamlining issues. The parties were well-prepared, knowledgeable about the legal issues in dispute and efficient in their advocacy.

[77] As noted, the pre-trial motions commenced in this case prior to the s. 11 (b) hearing, and the parties agreed the delay application would be heard as a mid-trial motion. This was not ideal, but in the context of this case it made sense and was done in this matter to ensure the best use of court time at the outset of the trial.

[78] Although three days were allocated for pre-trial motions, the period required to draft a judicial summary required more time. Although unexpected, this is not an unusual circumstance in cases involving confidential informants given the “absolute” nature of the privilege and the need for careful drafting.[^27]

[79] The Supreme Court in Jordan instructs trial judges to be “alive to the practical realities of trials.”[^28] This was one such reality.

[80] I have concluded the parties made a sincere effort to establish realistic time estimates in this case. The matter was subject to multiple judicial pre-trials, and the legal issues were thoroughly canvassed prior to the commencement of trial.

[81] This period of delay between continuing trial dates amounts to an exceptional circumstance. Eighty-nine days are to be subtracted from the total period of delay.

Pace of disclosure

[82] In R. v. Manesseri, 2016 ONCA 703, Watt J.A. referred to the “leisurely approach to disclosure,” as contributing to the culture of complacency so rightly condemned by the Supreme Court in Jordan. That is an apt description, although I would add the conduct of the police in this case can be characterized as bordering on negligent.

[83] This case ranks among the worst of disclosure delayed matters that have come into my court. Further comment is required.

[84] The following is a timeline of disclosure in this case:

(i) On October 18, 2021, the redacted search warrant is disclosed to the defence – 6 ½ months after MacMillan’s arrest. The sole piece of disclosure the defence received prior to this is a bail synopsis.

(ii) December 14, 2021, the complainant’s first statement to police is provided to the defence – over 8 ½ months after the statement was taken on March 26, 2021. Also provided is the 911 call from that same date and photographs from the scene of the offence.

(iii) February 16, 2022, the complainant’s second videotaped statement to police is disclosed – 10 ½ months after it was taken by police.[^29]

(iv) June 7, 2022, surveillance video from addresses close to the scene of the altercation are provided to the defence – over 1 year and 2 months after the incident. This video is relevant. Some portions of this video surveillance were earlier disclosed in February, but the video disclosure remained incomplete.

(v) July 28, 2022 – two previously rejected ITO’s for the same investigation are provided – 1 year and 4 months after they were first drafted by police. The defence requests these items on Oct 14, 2021.

(vi) September 6, 2022 – entry video taken by police when they executed the search warrant is disclosed – over 1 year and 5 months after the video is taken. This video is relevant given the careless storage of firearm count. Defence requested this video on October 14, 2021, and January 14, 2022

(vii) As of the s. 11 (b) hearing, a full list of items seized by police on April 1, 2021, remains outstanding.

[85] It is important to highlight that all of this disclosure was in the possession of police when Mr. MacMillan was arrested.

[86] It was telling when Mr. Giovinazzo was pressed during submissions to provide some explanation about delays in disclosure, he frankly admitted he could not provide one.

[87] What is clear from the evidentiary record, including set date transcripts filed in this matter, is that the Crown consistently over the course of these proceedings made concerted efforts to follow-up with the Toronto Police Service. When asked about the delay in providing the complainant’s video statement for example, a crucial piece of disclosure, Mr. Giovinazzo stated that he followed up with the Officer-in-Charge at least once month if not more often. A frequent police response to these inquiries was that it had been ordered but was not yet available. The Crown further advised that despite multiple requests, he did not always get a response from the Officer-in-Charge and escalated his concerns to a superior officer at 54 Division. It is unclear whether that improved the timeliness of disclosure.

[88] The court transcript from a set date appearance on March 23, 2022, illustrates the ongoing challenges in this case. Prosecutor Catherine Glaister, advised on behalf of the assigned Crown, that that complainant’s first statement was captured on a police in-car camera and required redactions.[^30] She explained the video was received by the Crown's Office but lacked the required redactions and sent back to police for editing. It was returned one month later. The effort involved was hardly substantial – there were two minor redactions related to an address.[^31] The complainant’s second statement also required redactions. However, instead of returning the video to police for editing and necessitating further delay, the redactions were applied by the Crown's Office and completed in one day.

[89] The Crown assuming police tasks was a common theme in this case. Mr. Giovinazzo advised that the 911 call also required redactions be applied and stated the following during the delay hearing:

And the 911’s I redacted myself. Again, because [I] received the 911, again this needs redaction. I’m not going to risk sending it back, given the situation I’m in. I redacted it myself, which is, I will note, contrary to Crown policy. But, I did anyway, in order to try and alleviate the situation here. I can say explicitly that that’s not going to happen again, given the – given the Crown’s policy, but it was such dire straits that I literally did the redactions myself.

[90] Mr. Giovinazzo is a particularly diligent prosecutor who found himself in an unenviable position, unable, despite his consistent efforts, to get the police to meet their disclosure responsibilities in this case.

[91] To be clear, it is the unacceptable delays in disclosure that is the main cause for this trial exceeding the Jordan guidelines.

[92] No trial dates could be set while vital pieces of disclosure remained outstanding, including the search warrant and the complainant’s two statements. The timely disclosure of the search warrant is particularly important in cases like this, where the Crown’s case is wholly dependent on the fruits of the police search.

[93] I acknowledge the seriousness of these criminal charges. It is alleged Mr. MacMillan pointed a firearm at the complainant while both were walking their dogs on a quiet residential street in East York. A firearm is located in the Applicant’s home.

[94] The public would be understandably dismayed that serious cases are at jeopardy of never being heard on their merits because of police indifference and apparent apathy towards their basic disclosure obligations.

[95] In R. v. Williamson, 2016 SCC 28, the Supreme Court explained:

[T]he public interest is best served, by trying serious charges on their merits in a timely fashion. These are precisely the cases that should be heard promptly, on the strongest possible evidence.

F. Conclusion

[96] The total period of delay in this case is 22 ½ months. With deductions to account for two periods I have deemed as exceptional circumstances – 89 days for the period between continuing trial dates in this matter and shorter period of nine days to account for officer illness, the net delay is just over 19 months and 1 week. 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.

[97] 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.[^32]

[98] In the circumstances a stay of proceedings is warranted.

H.S. Amarshi J.

[^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]: Affidavit of James Bray at paras 2 & 3 and included in the defence application record. [^3]: This bail was varied twice during the course of these proceedings, but the house arrest condition remained. Just prior to hearing the s. 11 (b) application, and pursuant to s. 523(2)(a), I struck the house arrest condition after a short hearing. Mr. MacMillan remained subject to a curfew. [^4]: Jordan, supra at para. 69. [^5]: R. v. Coulter, 2016 ONCA 704 at para. 37. [^6]: Jordan, supra at para. 75. [^7]: Jordan, supra at para. 40. [^8]: See also discussion in R. v. Stanley, 2016 ONCJ 730. [^9]: The Step 6 procedure as outlined in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421, 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. [^10]: Especially in Step 6 cases, where the Crown intends to rely on the unedited ITO to support the issuance of the search warrant. Additional court time is required to draft a judicial summary. [^11]: I observe that both Jordan and the companion decision – R. v. Cody, 2017 SCC 31, were search warrant cases involving confidential informants. [^12]: The burden is on the Crown to unseal judicial authorization materials. It is only then that the Crown is able to obtain the information for editing and disclosure – see R. v. Osei, 2007 CanLII 5681 (ON SC), [2007] 152 CRR (2d) 152 (On SC). [^13]: Two videos had been previously disclosed but the video underlying a screen capture included in the ITO was outstanding. [^14]: The preparation of a Crown summary is a best practice. It provides the defence with information about the nature of the redactions prior to a Garofoli hearing. The Crown does provide a summary in advance of pre-trial motions. [^15]: The complainant’s statement and video surveillance tape remained outstanding, further, the defence had received the redacted ITO the day prior and would have needed adequate time to determine whether they were going to challenge the sufficiency of the search warrant. [^16]: As contained in the defendant’s Application record at “exhibit 29.” In an earlier e-mail correspondence, the morning of March 2, the Trial Coordinator wrote, “I have included her Honour, but this does not change dates offered, due to scheduling assignments in the summer months and in custod (sic) matters being scheduled from now until June and into the summer, below is what the court can offer.” The dates offered were September 12-14 and October 11-13. However, given that the pre-trial motions required non-consecutive days, these dates had to be revised. Of note, these dates, although earlier than the dates ultimately confirmed, are still past the Jordan threshold. [^17]: As indicated in the subject line of Mr. Giovinazzo’s e-mail seeking trial dates. Respondent’s Application Record at tab c. [^18]: As contained in the defendant’s Application Record at tab 4. [^19]: See R. v. Simmons, 2020 ONSC 7209. [^20]: Outside of the nine days that accounted for a delay to the first vetting meeting because one of the officers had COVID like symptoms. [^21]: Applicant’s supplementary casebook at tab 5. [^22]: In R. v. Pham, 2018 ONCJ 754, at para. 13, a pre-pandemic case, Horkins J. observed nine months to be the standard time to trial at College Park. [^23]: Included in the Applicant’s materials were time to trial statistics for College Park that are publicly available on the Ontario Court of Justice website. I treat such statistics with some caution without a better understanding of how the data was compiled and analyzed. With that caution in mind, it is striking that the most current statistics for the year ending March 2022, the average days to disposition at College Park, that is, the average number of days when the first court date was scheduled to the date of the final appearance compares favourably to pre-pandemic timeframes suggesting efforts to mitigate pandemic delay have been largely successful. [^24]: As per the e-mail on March 1, from the Trial Coordinator advising that in-custody matters were being scheduled “four to five months away.” [^25]: As the court explained in R. v. Greenidge, 2021 ONCJ 57, at para. 26, 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.” See also R. v. Schartdt, 2021 ONSC 3143. [^26]: Despite the delay in scheduling a follow-up JPT, it is unlikely the September 19-21 dates proposed by the Crown could have been utilized. The pre-trial motion dates had been fixed and a judge assigned. The rationale for staggering the dates to accommodate the search warrant litigation remained unchanged. [^27]: See Named Person v. Vancouver Sun, 2007 SCC 43, [2007] 3 SCR 253, at para. 23. [^28]: Jordan, supra at para. 74. [^29]: According to the defence, this item of disclosure took on added significance because there are inconsistencies between the first and second statement. [^30]: This is a common occurrence and police will routinely edit out non-vital personal information from video statements and audio calls. [^31]: I was advised by Mr. David that despite police efforts, the redactions were not consistently applied and there was one instance where the video editor missed redacting the address. [^32]: Jordan, supra at para. 25.