Ontario Court of Justice

Date: 2023 02 01 Information No.: 20-1777582

Between: His Majesty The King — AND — Sean Rosenthal

Before: Justice K. Mulligan

Heard on: July 8, 18, 19, September 15, 16 and November 2, 2022 Reasons for Judgment released on: February 1, 2023

Counsel: D. Pyper, counsel for the Crown A. Little, for the defendant Sean Rosenthal

K. Mulligan J.:

[1] On September 19, 2020, Mr. Rosenthal was charged with impaired driving and driving at or over the legal blood alcohol concentration. The matter was scheduled to proceed to trial between July 18-20, 2022. Shortly before and during those trial dates, Mr. Rosenthal filed a number of motions seeking to have his charges stayed and/or the Information declared a nullity as a result of violations of the procedural requirements contained in the Criminal Code of Canada and to remedy the violation his s. 7, 11(b) and 11(d) rights as enshrined in the Charter of Rights and Freedoms. The arguments he makes seek to have this court re-examine binding case law from the Ontario Court of Appeal and the Supreme Court of Canada in light of the evidentiary record Mr. Rosenthal placed before me. That record, he argues, makes those precedents factually and legally distinguishable. I shall attempt to address each motion below in the order they were argued.

[2] For the purpose of Mr. Rosenthal’s motions four concessions must first be highlighted before any analysis can begin. Those are as follows:

1. The overall time period in question is from September 19, 2020, to the end of the first scheduled trial date, that being July 20, 2022. Going forward, any delay occasioned by the Applicant’s motions decided herein will not be characterized by the Applicant as further delay contributing towards the violation of his s.11(b) Charter rights.
2. The Crown is not arguing that any of the delay found to exist was as a result of COVID-19 or that COVID-19 was in any way an exceptional or discrete circumstance to be relied on by the Crown in accounting for any of the delay in Mr. Rosenthal’s case.
3. The Applicant is responsible for the delay between the first trial date offered, April 11, 12 and 13, 2022 and the trial date scheduled, July 18, 19 and 20, 2022. That delay is 98 days or 3 months and 1 week.
4. Mr. Rosenthal’s case is an “average” drinking and driving case. The police investigation was substantially complete as of the day Mr. Rosenthal was arrested including all disclosure but for some peripheral items.
5. It is conceded by the Crown that s. 505 of the Code was breached in that Mr. Rosenthal’s Information was not laid before a justice as soon as practicable

The Timeline

[3] The chronology of events detailed below highlights significant dates and events as they relate to this matter and is not disputed:

September 19, 2020 The Applicant was arrested and later released on an appearance notice which required him to appear for fingerprints and pictures on November 26, 2020, (pursuant to the Identification of Criminals Act). His appearance notice also required him to appear for his first court date on December 10, 2020, at the Ontario Court of Justice-Old City Hall. September 28, 2020 Counsel for the Applicant emailed a disclosure request to the Crown’s office at Old City Hall. That request identified the Applicant’s full name, date of birth and first court date as required by his appearance notice. September 28, 2020 Counsel for the Applicant received an email from the Crown’s office at Old City Hall acknowledging receipt of his first disclosure request. September 29, 2020 Counsel for the Applicant filed an Enhanced Designation pursuant to the OCJ’s Covid Practice Direction. The Applicant’s e-filing confirmed that, pursuant to that Direction, the matter was to be adjourned 10 weeks to March 4, 2021, from the Applicant’s first scheduled court date of December 10, 2020. September 29, 2020 Counsel for the Applicant received an email from the Crown’s office at Old City Hall acknowledging receipt of the Enhanced Designation email and advising that the disclosure he requested on September 28, 2020, would process in 21 days. November 23, 2020 Counsel for the Applicant emailed another disclosure request to the Crown’s office at Old City Hall. November 23, 2020 Counsel for the Applicant received an email from the Crown’s Office at Old City Hall indicating that the Case Management Coordinator would forward disclosure as per his request. Disclosure was provided to counsel for the Applicant that day. The disclosure provided however, was for Michael Rosenthal not Sean Rosenthal. Counsel for the Applicant sent a reply email advising the Crown’s office of their mistake. November 26, 2020 The Applicant attended at 14 Division for the purposes of the Identification of Criminals Act as mandated by his appearance notice entered into on September 19, 2020. December 3, 2020 Counsel for the Applicant emailed another disclosure request to the Crown’s office at Old City Hall. December 4, 2020 Counsel for the Applicant received an email from the Crown’s office advising again that his request would be forwarded to the Case Management Coordinator. December 9, 2020 Information sworn. December 10, 2020 Applicant’s first court date. He did not attend court nor did anyone attend on his behalf. The Enhanced Designation, previously filed by counsel for the Applicant was not before the Court. The Crown advised the Court that this was a 53 Division matter which should properly be at the College Park courthouse. Despite the presumed remand date listed on the Enhanced Designation filed on September 29, 2020, the Applicant’s matter was instead adjourned to January 7, 2021, in courtroom 505 at College Park. A bench warrant with discretion was issued. December 21, 2020 Counsel for the Applicant emailed another disclosure request to the Crown’s office at Old City Hall. December 22, 2020 Counsel for the Applicant received an email from the Crown’s office at Old City Hall advising that the matter of Sean Rosenthal was a College Park matter and that counsel should henceforth contact College Park. January 5, 2021 Counsel for the Applicant filed another Enhanced Designation for the Applicant’s matter with the Crown and the Office of the Court Clerk at College Park. Applicant’s counsel also made his 5th disclosure request by emailing the Crown’s Office at College Park. January 5, 2021 Disclosure was provided to Applicant’s counsel electronically. January 7, 2021 L. Martins appeared on behalf of the Applicant and counsel, Jonathan Rosenthal. She advised that the Applicant had just received initial disclosure. After confirming that the Enhanced Designation was on file, the Applicant’s matter was adjourned to April 1, 2021. January 15, 2021 Counsel for the Applicant emailed a further disclosure request seeking in-car camera footage and notes from the Breath Technician to the Crown’s office at College Park. January 18, 2021 Counsel for the Applicant received an email from the Crown’s office at College Park advising that the request had been forwarded to the Officer in Charge and that further disclosure would be provided electronically when available. February 23, 2021 Counsel for the Applicant emailed another disclosure request to the Crown’s office at College Park asking for the items originally requested January 15, 2021, to be provided. February 23, 2021 Counsel for the Applicant received two different emails from the Crown’s office at College Park in response to his further disclosure request. One advised that the outstanding disclosure request had been sent to the “assigned team” and would be forwarded to the Applicant as soon as possible. The other advised that one of the items requested (the Alcohol Influence Report) would be made available immediately but that the in-car camera footage was still outstanding. March 4, 2021 Counsel for the Applicant emailed another disclosure request to the Crown’s office at College Park inquiring about the outstanding in-car camera footage and requesting the notes of PC Fournier. March 4, 2021 Counsel for the Applicant received an email from the Crown’s office at College Park in response to his email of March 4, 2021. The email advised that his request had been forwarded to the “assigned team”. March 5, 2021 Counsel for the Applicant received an email from the Crown at College Park. The email advised that there was no additional in-car camera footage and that the notes of PC Fournier had been ordered. March 26, 2021 Counsel for the Applicant emailed another disclosure request to the Crown’s office at College Park seeking the notes of PC Fournier. March 29, to April 1, 2021 Email correspondence between the parties to schedule a Crown pre-trial (“CPT”). CPT scheduled for April 13, 2021. April 1, 2021 B. Siarkas appeared on behalf of the Applicant and counsel. He advised that a CPT had been scheduled for April 13, 2021. The Applicant’s matter was then adjourned to April 29, 2021, so that counsel could conduct a CPT and “get instructions from the Applicant”. April 13, 2021 Crown pretrial conducted. Given the trial time estimate a Judicial Pretrial (JPT) was required to be conducted before a trial date could be scheduled. April 29, 2021 B. Siarkas appeared on behalf of the Applicant and counsel. He advised that a judicial pre-trial (“JPT”) had been scheduled for May 6, 2021. The Applicant’s matter was adjourned to June 3, 2021. May 6, 2021 JPT conducted and 3 days estimated for trial. No 11(b) motion was discussed. June 1, 2021 Counsel for the Applicant emailed the Trial Scheduling Form to the Trial Coordinator’s Office in order to obtain a three-day trial date for the Applicant. June 3, 2021 B. Siarkas appeared on behalf of the Applicant and counsel. The agent advised that counsel had a JPT on May 6, 2021, had emailed the trial scheduling form to the Trial Coordinator’s Office and was waiting to hear back to schedule the trial dates. The Applicant’s matter was adjourned to June 24, 2021. June 1, to June 8, 2021 Email correspondence between the parties and the Trial Coordinator’s Office for the purpose of setting trial dates for the Applicant’s matter. On June 8, 2021, the Applicant’s trial was scheduled for July 18, 19 and 20, 2022. No court time was set aside to accommodate any 11(b) argument. The first trial dates offered by the trial coordinator were April 11, 12 and 13, 2022, but counsel for the Applicant was not available on those dates. The completed Trial Scheduling Form was emailed to College Park Administration by the Trial Co-ordinator to be attached to the Applicant’s Information. Applicant’s counsel and the assigned Crown were both copied on the email sent by the Trial Co-ordinator to the Administration office. June 24, 2021 C. Nguyen appeared on behalf of the Applicant and new counsel, Adam Little. She advised that trial dates had been scheduled for July 18, 19 and 20, 2022. The Crown advised that earlier dates were offered in April 2022 and that the Crown was available on those earlier dates. The Trial Scheduling Form was not attached to the Information. Neither Crown nor Applicant provided a copy of their Trial Scheduling Form to the Court so the Applicant’s matter was adjourned to July 22, 2022, in order for that to be done. Crown elected to proceed summarily. July 22, 2021 C. Nguyen appeared on behalf of the Applicant and counsel, Adam Little. The Applicant’s matter was adjourned to July 29, 2021, so that the Trial Scheduling Form could be filed with the Court as the form had still not been located by College Park’s Administration office nor provided by Crown or Applicant’s counsel. July 29, 2021 A. McQuaig appeared on behalf of the Applicant and his counsel, Adam Little. The Applicant’s matter was adjourned to August 5, 2021, to try to locate the Trial Scheduling Form. August 5, 2021 No one appeared in court for the Applicant. The Crown advised that trial dates had already been secured and set. The Applicant’s matter was adjourned to October 14, 2021. October 14, 2021 A. McQuaig appeared on behalf of the Applicant and counsel, Adam Little. She advised that trial dates had been scheduled for July 18, 19 and 20, 2022. Counsel for the Applicant advised the Court that delay was now an issue for 11(b) purposes. The Applicant’s matter was adjourned to the first day of trial-July 18, 2022. May 17, 2022 Crown and counsel for the Applicant attend for a second-event JPT. JPT adjourned due to unavailability of Applicant’s new counsel. May 30, 2022-July 1 2022 Counsel for the Applicant filed a number of motions including an 11(b) delay application. June 6 and June 21 2022 Second event JPTs held to discuss hearing of motions and scheduling of same. Parties agree to turn trial dates into motion dates given the lack of available dates for the trial judge to hear the motions at that late stage of the proceedings. July 8, 2022 -Motions commenced and 11(b) clock stopped.

The Evidence

[3] As part of the application, and in addition to the Application Record filed as an exhibit on the 11(b) motion, counsel for the Applicant called a number of Toronto Police Service (hereinafter TPS) members to testify as to the process of having an Information sworn by members of their Service and eventually laid before a justice to be issued. Their evidence was largely unchallenged. During their testimony a number of further items were made exhibits.

[4] Kathleen Murphy, a TPS Court Services Shift Supervisor, has been with TPS since 2007. She manages the daily operations of the Charge Processing Division which is part and parcel of the TPS’s Court Services Operational Support. She described the Charge Processing Division as a centralized hub whose members provide, amongst other tasks, direct support to Case Managers by reviewing and electronically processing all Form 9, 10 and show cause matters, preparing all court Informations, warrant applications and criminal summonses.

[5] At the time of Mr. Rosenthal’s arrest, for persons charged but released from custody at the scene or from the police division, arresting officers were required by a TPS Directive to complete an occurrence within two business days, including the completion and attachment thereto of specific documents including a Charge Processing Checklist. Arresting officers were then required to submit the occurrence to the Officer-in-Charge of the case or Staff Sergeant for approval. She described that once approved, the occurrence is printed out and the hardcopies are placed in a mailbox, picked up by courier and delivered to TPS Headquarters for processing. Once received by the TPS’s Charge Processing Division, a Charge Processor creates a court folder. If an accused was held for a Release hearing, a bail package is created for that hearing and an Information is generated immediately. If an accused was released on a form 9 or 10 Appearance Notice, the court folder is shared with the Booker at the station at which the accused is required to appear for fingerprints and photos and an Information is generated using a program called E-just. That Information is then sworn to by the Charge Processor and submitted to a Justice for confirmation of release documents and issuance thereafter.

[6] Supervisor Murphy described that without an occurrence there is no court folder. Without a court folder, Bookers are unable to fingerprint and photograph an accused and no Information is generated.

[7] PC Mondoux testified that he was the officer who stopped Mr. Rosenthal on September 9, 2020. He arrested him for impaired operation of a conveyance at 1:18 pm. At the time of arrest, he read Mr. Rosenthal both his rights to counsel and the standard police caution. The wording of both of those pieces of information is contained in the officer’s police issued notebook. Both start out with wording to the effect that the person is being arrested for, or being charged with, a criminal offence and go on to provide information to the arrestee as to their legal rights and legal jeopardy. The officer stated that Mr. Rosenthal was released on a Form 9 appearance notice at 5:30 p.m. after the officer confirmed that the Applicant understood his legal obligation to appear for fingerprints, photos and his first court date at Old City Hall scheduled for December 10, 2020. At the time of his release, PC Mondoux seized Mr. Rosenthal’s driver’s license pursuant to the Highway Traffic Act. PC Mondoux testified that during the release process, he warned Mr. Rosenthal of the legal implications of not complying with the Criminal Identification Act and of not attending court on December 10, 2020, as required by his appearance notice. He indicated that though he was the officer who served Mr. Rosenthal, it was another officer who prepared Mr. Rosenthal’s appearance notice and release documents being as he was not at a police station or other location that gave him access to a police computer and printer.

[8] The next day, September 20, 2020, PC Mondoux started gathering the information he needed to provide for the preparation of Mr. Rosenthal’s occurrence. According to his training in this regard, he gathered all relevant police officers’ notes, created a Prosecution Summary, filled out the Charge Processing document and made sure he complied with “the drinking and driving document checklist that he had taped to the wall by his computer”. He testified that, on average, it takes him about 5 -6 hours to process a drinking and driving case and create an occurrence containing the documents required to process a charge, create a court folder and eventually create an Information. In Mr. Rosenthal’s case, he agreed he compiled almost everything required to complete the occurrence, within 2 hours. He stated that, for those accused released at the scene or from the police station, his usual practice is to have the documents ready for Staff Sergeant approval within two days of an arrest. After receiving that approval, assuming there is no follow up required by the Staff Sergeant, he prints out hard copies and deposits the documents into the Case Processing Division mailbox. A courier then picks up and delivers the documents to the Case Processing Division at TPS Headquarters. PC Mondoux did note that one of the required documents, the affidavit of service for the Form 9 Release, was not commissioned until October 5, 2020, so he agreed it must have been added later. PC Mondoux did not complete the Form 9/10 Charge Processing Checklist, deemed necessary by Supervisor Murphy and the TPS Directive, and did not know what that document was.

[9] Unfortunately, though PC Mondoux expeditiously digitally gathered most everything required for his Staff Sergeant’s electronic approval, it appears that he forgot to hit the “send” button to action its delivery. Thus, Mr. Rosenthal’s occurrence remained in PC Mondoux’s email out-box for months. It wasn’t until Mr. Rosenthal appeared at 14 division for his photo and fingerprints on November 26, 2020, as required by the conditions of his Release, that anyone other than he and PC Mondoux, was aware that he’d been criminally charged and released. The Booking officer at 14 Division contacted the Charge Processing Division and an officer there created a temporary court folder for Mr. Rosenthal’s case so that he could be printed and photographed as per the Criminal Identification Act and the conditions of his release. That same day, someone within the Charge Processing Division sent PC Mondoux an email asking him to complete the required Form 9/10 Charge Processing Checklist and attached thereto a blank Form 9/10 Charge Processing Checklist to prompt PC Mondoux to complete Mr. Rosenthal’s occurrence. A completed occurrence would then allow TPS’s Charge Processing officers to create Mr. Rosenthal’s court folder. Unfortunately, because of his shift schedule, PC Mondoux did not receive that email, nor did he complete Mr. Rosenthal’s occurrence until December 11, 2020.

[10] PC Lund testified that he was the person who had Mr. Rosenthal’s Information sworn to and issued on December 9, 2020. He stated that he has worked in the TPS’s Charge Processing Division since 2016 and that the creation of Informations has been part of his job since that time. He described the process of creating and swearing to an Information pre-Covid-19, during the early days of Covid-19 and at present. He testified that during the early days of the Covid pandemic, the whole process took him about 30 minutes as long as he was in possession of the arrest details which are contained in a charged person’s court folder. He explained that those arrest details are gathered and input into an occurrence created by the arresting officer.

[11] PC Lund explained that in order to ensure that court folders are complete and thus that an Information can be prepared and sworn to by a Charge Processor, the TPS created a Form 9/10 Charge Processing Checklist to act as a kind of quality control mechanism to ensure that all the information required is inputted by the arresting officer. Once completed, the court folder is “pushed” by Charge Processing personnel to a computer program called e-Just. Charge Processors, like PC Lund, then use the Charge Processing Checklist in the e-Just program to create and populate the Information that eventually makes its way to court. Without creating a court folder containing a Form 9/10 Charge processing Checklist, no one at TPS would be able to easily and efficiently track court dates for those accuseds charged with criminal offences who are released from the scene or the police station instead of being held for release hearings.

[12] PC Lund described that he first became involved in Mr. Rosenthal’s matter on December 9, 2020, early in the morning. Someone had brought to his attention the fact that there had been no Information sworn despite the fact that Mr. Rosenthal’s first court appearance was the next day at Old City Hall. The officer testified that he immediately looked for the court folder in e-Just but found nothing. As a result, he superseded or created a “work-around” for the Form 9/10 Charge Processing Checklist requirement and created his own temporary court folder by cutting and pasting information from documents he was able to find on-line in Versadex, the TPS records management system, relating to Mr. Rosenthal’s arrest.

[13] In PC Lund’s experience, on average, it should take arresting officers no more than 2 days to create an occurrence which, in turn, becomes a court folder. Once pushed to e-Just, an Information can be sworn to by a Charge Processer and placed before a justice to be sworn within 2-7 days thereafter. Mr. Rosenthal’s Information was not prepared and sworn to earlier as no occurrence, or Charge Processing Checklist Form had been received from the arresting officer by the Charge Processing Division. In fact, PC Mondoux’s actual completed occurrence was not received by his Division until December 11, 2020.

[14] In addition to viva voce evidence, Mr. Rosenthal filed Courthouse Information Charts related to the various Toronto area courts at College Park, Old City Hall, Metro East, Metro North and Metro West. The charts contained data from unrelated cases at each of the 5 courthouses in which an accused was charged and released on a Form 9 or 10 by TPS officers and the corresponding Information was sworn on or about December 9, 2020, that being that date that Mr. Rosenthal’s Information was finally issued. Of the 4 cases at Old City Hall, 3 were shown to have had the informant sign the Information pursuant to s. 508.1(2) of the Criminal Code within a day of the accused’s release and had the Information laid before a justice that same day or within 1 day thereafter. With respect to the fourth Information, Mr. Rosenthal’s, 81 days passed between his release and the date the Information was signed by the Informant and laid before the issuing justice. Of the 5 cases from College Park, all Informations laid before the justice on December 9, 2020, were done so within a day or two of the accused’s release. At Metro North, all six Informations endorsed by a justice on December 9, 2020, were laid before him or her and so endorsed within 1-8 days of the accused’s release. At Metro West, of the 5 Informations endorsed by a justice on December 9, 2020, 3 were issued within 1-3 days of the accused’s release, 1 was issued 24 days after the accused’s release and 1 was issued 70 days after the accused’s release. Finally, at Metro East, of the 9 Informations endorsed by the justice on December 9, 2020, 5 were laid before the justice within 1-5 days of the accused’s release, 2 were laid before the justice 27-29 days after the accused’s release, 1 was laid before the justice 64 days after the accused’s release and 1 was laid before the justice 146 days after the accused’s release.

1-Unreasonable Delay-11(b): Delay above the presumptive ceiling

The Law - Trial Without Unreasonable Delay - s. 11(b) of The Charter

[15] In R. v. Jordan, 2016 SCC 27, the Supreme Court of Canada created a new framework to be applied where a breach of s. 11(b) of the Charter is alleged. The court created a ‘ceiling” of 18 months for trials, like Mr. Rosenthal’s, where the Crown elects to proceed summarily. Any summary conviction matter that takes longer than 18 months to complete is presumed to be unreasonably delayed. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If the delay falls below the presumptive 18-month ceiling, the onus is on the defence to show the delay is nonetheless unreasonable. The onus on each party is one of a balance of probabilities.

[16] In R. v. Coulter, 2016 ONCA 704, the Court of Appeal summarized the new framework as follows:

• Calculate the total delay, which is the period from the charge to the actual anticipated end of trial;
• Subtract defence delay from the total delay, which results in net delay;
• Compare the net delay to the presumptive ceiling;
• If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances. If it cannot rebut the presumption a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases;
• Subtract delay caused by discrete events from net delay (leaving remaining delay) for the purpose of determining if the presumptive ceiling has been reached;
• 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;
• If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show the delay is unreasonable by establishing that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings and that the case took markedly longer than it reasonably should have.
• Stays for delay that falls beneath the presumptive ceiling should be granted only in the clearest of cases

[17] In Mr. Rosenthal’s case the delay between the date of his arrest, September 19, 2020, and the date of the original anticipated end of trial, July 20, 2022, is approximately 22 months. This is well above the presumptive ceiling and, one would think therefore, unreasonable. However, in 1989, the Supreme Court of Canada held in R. v. Kalanj, 1989 1 S.C.R. 1594, that the operative period of time for any s. 11(b) analysis begins with the swearing of the Information, defined as the date of charge, and runs from that date onwards. R. v. Kalanj was recently cited by the Ontario Court of appeal in R. v. Allison, 2022 ONCA 329, which held, pursuant to Kalanj, that the s 11(b) clock only starts to run from the date the Information is sworn. Applying Kalanj and Allison, Mr. Rosenthal’s total delay is 589 days or approximately 19.5 months. When the conceded defence delay of 98 days is subtracted, the net delay is 16.25 months.

[18] Given the net delay is below the presumptive ceiling of 18 months, the onus is on Mr. Rosenthal to show he took meaningful steps to expedite the matter and that the case has taken markedly longer than it reasonably should have. Mr. Rosenthal argues however, that R. v. Allison is factually and legally distinguishable and that, pursuant to the principles discussed by the Supreme Court of Canada in Canada v. Bedford, 2013 SCC 72, this court is entitled to “revisit” the issue of when the 11(b) clock starts and to find that it starts from the date an accused is arrested.

[19] Certainty in the law requires that courts follow and apply authoritative precedents. This concept, known as stare decisis, has been described as a foundational principle of common law. With respect to vertical stare decisis, a trial court can only depart from binding, higher court rulings in the following circumstances: when considering an argument based on Charter provisions that were not raised in the earlier binding cases thus constituting new legal issues, if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in circumstances or the evidence that fundamentally shifts the parameters of the debate. However, Bedford makes it clear that the threshold for revisiting a binding precedent is not an easy one for a lower court to reach.

[20] The Courthouse Information Charts summarized in paragraph 14 above are certainly informative. I am not aware of this kind of evidence being placed before a Court on an 11(b) application before. What they show, in my opinion, is that in general, Informations are created, sworn to and judicially endorsed, fairly expeditiously in the Toronto area. However, in a small number of cases, including Mr. Rosenthal’s, the date between arrest and the laying of the Information before a justice is excessive and appear to run afoul of s. 505 of the Criminal Code. That section requires that where an accused has been released on an appearance notice, “an Information shall be laid before a justice as soon as practicable thereafter and, in any event, before the accused’s first court appearance”.

[21] What the Courthouse Information Charts, filed as evidence on these motions, clearly illustrate is that if Mr. Rosenthal had been arrested by an officer other than PC Mondoux, the delay in having his trial completed would have been substantially less than what he actually experienced, all else being equal. Put another way, if PC Mondoux had remembered to hit the “send” button on his computer after he had created Mr. Rosenthal’s occurrence, Mr. Rosenthal would likely have received his disclosure without the delays he experienced in this case. Given the evidence before me, he would also likely have been able to set a trial date more quickly than what actually transpired. It is clear from the evidence, and I do find, that PC Mondoux did most of what he needed to do to create Mr. Rosenthal’s occurrence and thus, start the Information creation process, before the end of the day following Mr. Rosenthal’s arrest. The delay occasioned by his failure to send the electronic file to his Staff Sergeant for review and approval was one of innocent oversight. It was not borne of negligence, conscious decision, malicious intent or inefficient processes.

[22] I agree with the defence counsel’s argument that it seems unfair that the date of the commencement of an individual’s court proceedings is, and can be, so easily influenced by the action or inaction of his or her arresting officer. I also agree that the time during which Mr. Rosenthal was subject to conditions contained in his release, and liable to serious consequences if he failed to comply with any of those conditions, was certainly longer than it had to be had PC Mondoux not experienced the “brain blip” he did. I agree that the viva voce evidence as to how Mr. Rosenthal’s Information actually came to be laid before a justice as well as the evidence contained in the Courthouse Information Charts are likely types of evidence that have not been placed before the courts in the past as part of s.11(b) Charter motions.

[23] I also agree with defence counsel that neither Kalanj nor Allison explore in sufficient detail why the laying of the Information is defined as the starting point of the s. 11(b) clock for all criminal cases in all Canadian jurisdictions. I say that as I note that Kalanj came to the Supreme Court of Canada from British Columbia, a jurisdiction in which the responsibility for laying criminal charges is that of Crown counsel upon review of a written report submitted by police. The B.C. process is unlike the process in Ontario, where it is the police who make the decision to charge. The officer’s decision to lay a charge is then vetted by the Crown in terms of reasonable prospect of conviction and public interest in proceeding. As such, I understand why the Court in Kalanj was concerned about not interfering with the pace of investigations. In Kalanj, as I read it, the Court, by declining to put a time limit on investigations, tried to avoid tying the B.C. prosecutors’ hands by defining the “date of charge” as contained in s. 11(b), as the date the Crown lays an Information. However, it also appears to me, that the court in Jordan, “baked” into the 11(b) analysis, the acknowledgement, averted to in Kalanj, that some cases, by their very nature and complexity, will take longer to investigate and prepare. That reality is, in my reading of Jordan, addressed in the “exceptional circumstances-complex case” rebuttal available to the Crown when the presumptive ceiling is breached. In my opinion, there is a good argument that can be made that the Jordan framework folds in the concerns expressed in Kalanj and provides a calculation that accounts for same in the framework to be applied across Canada if the 18-month presumed ceiling is exceeded.

[24] Having said all that, I do not think the threshold has been reached that would allow me to depart from binding precedent which defines “the date of charge” as the date the Information is laid. If the new evidence in this case had satisfied me that, by design, police were routinely delaying the laying of Informations before a justice, my decision might have been otherwise and s. 7 of the Charter may have become a prominent issue as well. In addition, I recognize that many of the arguments made by the Applicant were actually also before the court in Allison. Similar arguments in cases such as R. v. Gleiser, 2020 ONSC 2858, R. v. Albadry, 2018 ONCJ 114, R. v. Bole, 2019 ONCJ 141, R. v. Gill, 2020 ONCJ 124 and others of similar ilk were all considered by the Ontario Court of Appeal and rejected. As such, I cannot say that Mr. Rosenthal’s argument has not been previously considered by a higher court even though I do agree that the Ontario Court of Appeal’s treatment of these arguments, with all due respect, could have gone deeper than it did. I do wish that the Court had probed why Kalanj was decided the way it was and, ideally, specifically averted to the different processes in the different provinces for the institution of criminal proceedings in their decision in Allison.

2-s.11(b): Where net delay falls below the presumptive ceiling

[25] As indicated above, using the date the Information was laid before and issued by a justice as the starting point, the total delay in Mr. Rosenthal’s case is 19.5 months. Subtracting the delay defence concedes it caused, that being 98 days, the net delay is approximately 16.25 months. Being as the net delay is under the 18-month ceiling where delay is presumed to exist, the onus is on Mr. Rosenthal to show that the delay is nonetheless unreasonable. To do so he needs to establish that he took meaningful steps that demonstrate a sustained effort to expedite the proceedings and that the case took markedly longer than it reasonably should have.

[26] Mr. Rosenthal retained counsel immediately after he was arrested. Counsel requested disclosure within 9 days of Mr. Rosenthal’s release and filed an Enhanced Designation a few days thereafter. As described on the Ontario Court of Justice’s web site, the purpose of the Enhanced Designation filed by Mr. Rosenthal, is “to reduce the need for multiple case management appearances which result in lengthy dockets in case management courts.” The Practice Direction which authorizes the use of this alternate form of appearance by an accused, describes that the Enhanced Designation establishes “a 12-week adjournment during which Crown and Defence counsel are expected to take the necessary steps towards the completion of the intake phase of the case.” It is expected therefore, that this initial 12-week adjournment will allow for disclosure to be produced, vetted and disclosed, a Crown pretrial to take place and, ideally, a Judicial pretrial to be held. As such, the accused will be ready to set a trial date or otherwise resolve their matter by their second court date.

[27] Despite the proactive steps taken by the Applicant, it took until January 5, 2021, for the evidence in his case to be disclosed to him and his counsel. That is approximately 4 months after Mr. Rosenthal’s first request for same but 3 weeks after his first scheduled court date. We now know why Mr. Rosenthal wasn’t able to secure disclosure earlier. I note there is no evidence before me as to why the Crown didn’t look into the matter sooner. Recall that each of the requests for disclosure were responded to by the Crown’s office with the comment that the request had been forwarded to the ‘appropriate case manager.” There is no evidence who that was or what that person did to follow up with the multiple requests for disclosure for a Sean Rosenthal that couldn’t be tied to anyone arrested as contained in their system. There is also no evidence as to how, apparently, the appropriate case manager sent Mr. Rosenthal’s counsel the wrong person’s disclosure yet did nothing to follow up and find out what had happened to the right Rosenthal’s matter.

[28] Despite the above, I do note that disclosure was made within 1 month of Mr. Rosenthal’s first scheduled court date. I have no evidence as to what happened to the Enhanced Designation that Mr. Rosenthal and his counsel signed and filed with the Old City Hall on September 29, 2020. It would appear that both the Old City Hall Court Services Division and the Old City Hall Crown’s office dropped the ball being as the first Enhanced Designation was filed with both offices but never made it onto the Information itself or before the Court. That failure may have been one of the reasons why the Applicant’s matter, instead of being remanded to March 4, 2021, 12 weeks from his first scheduled court date as calculated by defence counsel, Mr. Rosenthal’s Information was remanded instead to College Park to return in court on January 7, 2021. The Old City Hall justice issued a warrant with discretion presumably to maintain jurisdiction over Mr. Rosenthal. At this point in the Covid pandemic, it was not unusual for accused persons to be remanded in their absence via warrants with discretion. How Mr. Rosenthal was supposed to know of the transfer and the new court date, I do not know. The Crown at Old City Hall did not notify Mr. Rosenthal or his counsel of the transfer nor did the receiving Crown’s office at College Park. It was only because Mr. Rosenthal’s counsel was diligent in their disclosure requests that he was advised that the matter was now at College Park.

[29] Between January 5, 2021, when initial disclosure was provided to Mr. Rosenthal, and mid March 2021, when disclosure was finally completed, Mr. Rosenthal’s counsel was diligent in his efforts to obtain the items of disclosure that presumably, he felt were necessary to conduct a Crown pretrial and a Judicial pretrial. Both pretrials, necessary in this jurisdiction to schedule a trial date, were scheduled and conducted fairly expeditiously. The Crown pretrial was held on April 13, 2021, and the Judicial pretrial was conducted on May 6, 2021. I will note however, that there was some delay in the defence scheduling of the Crown pre-trial while they awaited complete disclosure. From the evidence adduced, it appears to me that the further disclosure sought may not have been of such materiality that a Crown pretrial could not have been conducted without it. Unfortunately, the Applicant’s Application record is silent on this point. I also note that there was no discussion at the judicial pretrial of any unreasonable delay nor any other motions and so no motion time was factored into the estimate of the time required for trial. Given the discussions before him, the pretrial judge estimated that 3 days would be required. Both counsel agreed with that time estimate.

[30] At College Park courthouse, a Trial Scheduling Form is required to be provided by defence counsel to the Trial Coordinator to begin the process of obtaining trial dates. Mr. Rosenthal’s counsel could have sent that form to the Trial Coordinator via email on May 6, 2021, following the judicial pretrial. Instead, he waited almost one month to do so. During that month, the assigned Crown wrote a number of times to the Trial Coordinator and the defence asking that the Trial Scheduling Form be submitted so that a 3-day trial date could be secured. On Tuesday June 1, 2021, Mr. Rosenthal’s counsel emailed the Trial Scheduling Form to the Trial Coordinator. The next day, the Trial Coordinator replied and provided the first available 3-day trial date of April 11-13, 2022. Mr. Rosenthal’s counsel was not available those dates. Given that Mr. Rosenthal’s next court appearance was scheduled for Thursday June 3, 2021, defence counsel’s agent attended and remanded the matter to June 24, 2021, to allow for a new set of trial dates to be selected. Both parties communicated with the Trial Coordinators Office and each other over the course of the next week and eventually, trial dates agreeable to both parties and the court were obtained. The trial dates of July 16-18, 2023, were agreed upon by all on Tuesday June 8, 2021. Those trial dates were placed on record at Mr. Rosenthal’s court appearance of June 24, 2021.

[31] Based on the evidence before me, I find that the 1-month delay in obtaining Mr. Rosenthal’s trial dates falls at the feet of the Applicant. That period is from the date of the judicial pre-trial, May 6, 2022, to the date the trial dates were obtained ie: June 8, 2022. Somewhere in between those two dates, Mr. Rosenthal changed counsel. The Trial Scheduling Form was submitted by his former counsel but an agent for new counsel appeared on behalf of Mr. Rosenthal and newly retained counsel at the June 24, 2022, court appearance. The Court was advised that new counsel had no trial availability between the first available trial dates offered in April 2023 and July 17, 2023, which is why July 18-20, 2023, were the trial dates selected. Those dates were marked on the Information and set by the Court. The Crown made its election to proceed summarily.

[32] Obviously, some time would have been required to perfect the change of counsel and to get new counsel up to speed. I am unable to ascertain from the evidence what, if anything, needed to be discussed or revisited with new counsel that would have required a delay in scheduling the 3 day trial as estimated. That delay however, is through no fault of the Crown. I find it to be delay occasioned by the defence. Having found this to be the case, the net delay in Mr. Rosenthal’s matter is actually 15.25 months. More importantly, the delay at this stage of the trial process, after what appears to be a lag in the scheduling of the Crown pretrial, does not bode well for the Applicant in his attempt to show he took meaningful steps that demonstrate a sustained effort to expedite the proceedings.

[33] Though July 18-20, 2023, were secured as trial dates for Mr. Rosenthal’s matter and placed on the record on June 24, 2021, Mr. Rosenthal’s matter was remanded four more times thereafter. On June 24, 2022, the matter was remanded to July 22, 2021, as the clerk had not been provided with the Trial Scheduling Form to attach to the Information. On July 22, 2021, the matter was remanded to July 29, 2021, as agent for defence counsel advised the Court, “we are not ready to set those trial dates on the record as we need to obtain the trial forms.” On July 29, 2021, the matter was remanded to August 5, 2021. Agent for counsel advised that the reason for the adjournment was that she was “still waiting for instructions from new counsel.” On August 5, 2021, no one appeared on behalf of Mr. Rosenthal or his counsel. The Crown advised the Court that the trial date had already been set to commence on July 18, 2023, and that a second judicial pretrial had been scheduled for May 17, 2023. The Court suggested instead that the matter be remanded to October 14, 2022. The reason for this, the Court indicated, was that she was “hesitant to remand the matter directly to the second judicial pretrial date as there may be issues that should be worked out in the interim”. On October 14, 2021, agent for counsel attended. On that date she confirmed the trial dates on behalf of counsel and, for the first time, indicated that 11(b) was now an issue for Mr. Rosenthal. I note that despite this new information, counsel had not secured a motion date to argue a delay application. The agent seemed to be unaware of the May 17, 2023, second stage judicial pretrial date. The agent advised that counsel was content that the matter be remanded directly to the first day of trial and Mr. Rosenthal and the Information were so remanded.

[34] Though these four remands did not add to any of the delay in this case, they certainly provide evidence that new counsel was not necessarily sympatico with the trial as envisioned by the Applicant’s former counsel. That is clear in counsel’s agent’s comments that new counsel wasn’t yet ready to confirm the trial dates. A different agent at a different court appearance indicated they were waiting for instructions from new counsel and finally, an agent commented that 11(b) was an issue and that, presumably, the time originally estimated to complete the matter would need to be revisited. While an accused and their counsel are entitled to reassess their case and their trial strategy at any stage of the trial process, the record shows that Mr. Rosenthal’s matter was set for trial but that trial itself was not able to be confirmed by defence counsel for some months. In the end, since no motions were factored into the time estimate, the trial dates turned into motion dates. An 11(b) motion was filed by Mr. Rosenthal on May 30, 2022, followed by a number of other applications filed thereafter including after the date the pretrial applications commenced.

[35] Given the evidence, I also cannot find that Mr. Rosenthal has satisfied me that he took meaningful steps that demonstrate a sustained effort to expedite the proceedings.

[36] Though not necessary, given my finding that Mr. Rosenthal cannot meet the first prerequisite of the Jordan framework for cases below the presumed ceiling, I will comment on the second namely, whether the case took markedly longer than it reasonably should have. Substantive disclosure was made within a month of Mr. Rosenthal’s first scheduled court date and appears as though it was likely sufficient for the purpose of conducting a Crown and judicial pretrial. Both required pretrials were completed by May 9, 2021. As such, the intake process, generally viewed as ideally taking no more than 3-4 months, was completed in 5. From the date the trial date was set, that being June 8, 2021, to the end of the first available trial dates offered, that being April 13, 2022, is 310 days or 10 months. From the date of Mr. Rosenthal’s first court date of December 10, 2020, to the end of the first available trial dates offered, that being April 13, 2022, is 490 days or approximately 16.25 months.

[37] There is no doubt that PC Mondoux’s failure to send off the occurrence he’d created for approval from his Staff Sergeant resulted in delays in receiving disclosure given that no one on the police and/or Crown office disclosure teams initially knew about Mr. Rosenthal’s arrest and first scheduled court date. Officer Mondoux’s error was due to an instance of human frailty and not a systemic failure. As a result of his error however, Mr. Rosenthal’s disclosure requests could not be matched up with an occurrence or Information in order to process those requests. I agree therefore, that Mr. Rosenthal’s case has taken longer than it should have. I cannot find however, that it has taken markedly longer.

[38] This is not the clearest of cases. As such, the s.11(b) application is dismissed.

3: s. 505 and s485 of the Criminal Code and s. 7 and 11(d) of the Charter

[39] Mr. Rosenthal has also alleged a breach of s.485 and s. 505 of the Criminal Code and, as a result, the current proceedings are in breach of his rights under s. 7 and 11(d) of the Charter. In short, he has argued that PC Mondoux’s failure to finalize his occurrence resulted in Mr. Rosenthal’s Information not being laid before a justice “as soon as practicable” and the Information is thus, a nullity, being in violation of s. 505. The Applicant also argues that the court “lost” jurisdiction over his person pursuant to s. 485 of the Code and that jurisdiction was not legally regained within 3 months of its loss as required by 485.1 of the Code. As such, to allow the trial to go forward would also be a violation of both s. 7 and 11(d) of the Charter and an abuse of process.

[40] The Crown has conceded that Mr. Rosenthal’s Information was not sworn “as soon as practicable” but argued that, in the circumstances of this case, PC Mondoux’s blunder, though unfortunate, is of no real legal consequence.

The Law - Jurisdiction over an accused - s. 485 and s.505

[41] Section 485 (2) (3) and 505 of the Criminal Code reads as follows:

s.485(2) Where jurisdiction over an accused or defendant is lost and not regained, a court…..within 3 months after the loss of jurisdiction, may issue a summons…..or warrant for the arrest of the accused.

s. 485(3) Where no summons or warrant is issued under subsection (2) within the period provided therein, the proceedings shall be deemed to be dismissed for want of prosecution and shall not be recommenced except in accordance with section 485.1 which requires the written consent of the Attorney General or by order of a Court

s. 505 Where

(a) an appearance notice has been issued to an accused under s 496, or

(b)an accused has been released from custody under section 497 or 498,

An information relating to the offence alleged to have been committed by the accused or relating to an included or other offence alleged to have been committed by him shall be laid before a justice as soon as practicable thereafter and in any event, before the time stated in the appearance notice, promise to appear, or recognizance issued to or given or entered into by the accused for his attendance in court.

s.7 of the Charter guarantees:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

s. 11(d) of the Charter guarantees:

Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

[42] In R. v. Naylor, [1978] O.J. No. 1131, the majority of the Ontario Court of Appeal held that s. 455.1, now s 505, of the Criminal Code does not create two alternative time limits for laying Informations but rather requires that the Information be laid before a justice as soon as practicable after the appearance notice or promise to appear has been issued and in any event before the accused’s first court appearance. As such, the time limit contained within the Criminal Code section is mandatory. The Court also held that if the time limit is not met, the Information is not invalidated nor is jurisdiction lost over the offence. If, however, the accused fails to appear in court pursuant to an appearance notice, he cannot be charged with failing to appear nor can a warrant be issued. In such cases jurisdiction is lost over the accused but not, however, over the offence.

[43] In Mr. Rosenthal’s case, no one appeared on the first court date of December 10, 2020. As the transcript from that date shows, the presiding justice issued “a discretionary bench warrant for the time being” after being advised by the clerk that “the new Information was properly before the Court and the appearance notice stated December 10.”

[44] It must be remembered that in December 2020, the province of Ontario was deep in the grip of the Covid-19 pandemic. It is almost trite to say that the pandemic forced almost everything and everyone to pivot in order to deal with the effects of a virus that appeared to be potentially fatal, spread rapidly, and of which, at the time, relatively little was known medically and scientifically speaking. As part of its pivot, the Ontario Court of Justice issued a progression of Practice Directions contained in Notices to the Profession and Public in an attempt to deal with the safe and orderly attendance of persons and matters that were, and continued to be, scheduled and managed at the various courthouses across the province. All of those notices are archived on the Ontario Court of Justice’s website.

[45] At the time of Mr. Rosenthal’s first scheduled court appearance the following Notice to the Profession and the Public, published November 18, 2020, was in place:

Criminal Case Management Appearances on or after November 30, 2020

As of Monday November 30, 2020, accused persons are required to attend for their scheduled appearance in criminal case management court – either by having counsel appear on their behalf or by appearing by telephone or video. Previous directives of the Ontario Court of Justice directing that criminal case management matters will be adjourned for five weeks, with a discretionary bench warrant, if the accused person does not appear will end Friday November 27, 2020. As of Monday November 30, 2020, accused persons are required to attend for their scheduled appearance in criminal case management court – either by having counsel appear on their behalf or by appearing by telephone or video. If you do not attend a scheduled criminal case management appearance on or after Monday November 30, 2020, the Court may (i) issue a bench summons requiring you to attend court on a specified date or, (ii) issue a warrant for your arrest, if the presiding judicial officer has reasonable and probable grounds to believe that it is necessary in the public interest to do so. Criminal case management appearances include a “first appearance” and matters scheduled “to be spoken to” or to “set a date”. Note: It is not necessary for the accused person or counsel to attend in court for the appearance immediately following the filing of an Enhanced Designation of Counsel. Where an Enhanced Designation of Counsel has been filed pursuant to the Practice Direction Authorizing Alternate Form of Appearance, the accused person’s matter will be adjourned to the appropriate date, without the accused or counsel personally appearing in court, in accordance with the procedure set out in the Practice Direction.

[46] Though the evidence filed by Mr. Rosenthal satisfies me that he and his counsel had properly filed an Enhanced Designation on September 29, 2020, it was not present before the justice on December 10, 2020, Mr. Rosenthal’s first scheduled court date, nor was it referred to by the Assistant Crown Attorney addressing the matter that day. Despite the Practice Direction issued August 6, 2020, entitled, COVID-19: Practice Direction Authorizing Alternate Form of Appearance where an Enhanced Designation of Counsel has been Filed, no email was sent by the Crown to the Applicant’s counsel advising that there was a problem with the Enhanced Designation in that, presumably, no Information could be found to which the Designation purported to apply. The Crown’s materials filed in response to the omnibus applications before me are completely silent on this issue. I have no idea whether the Enhanced Designation was simply ignored by the Crown and the court, received and looked into by the Crown and the court with negative results, or was somehow overlooked and therefore remained unopened in the email in-boxes belonging to each of the intended recipients. In any event, despite the Enhanced Designation he filed, Mr. Rosenthal’s attempt to put it into effect hit a wall. As such, the December 10, 2020, court date was governed by the Notice to the Profession and Public published November 18, 2020. That Practice Direction required the Applicant’s personal attendance- in-person, by phone or video, or by agent or counsel in-person, by phone, or by video. Being as no one appeared by any means, a warrant was issued. Pursuant to s. 511 (3) of the Code, Her Worship made it “discretionary”. That section of the Code allows a justice “to specify in the warrant the period before which the warrant shall not be executed, to allow the accused to appear voluntarily before a judge or justice having jurisdiction in the territorial division in which the warrant was issued.” The date before which the warrant for Mr. Rosenthal’s arrest was not to be executed by a peace officer was January 7, 2021. The courthouse to which the Information was made returnable was College Park, #505, located at 444 Yonge Street.

[47] Since, as per the court in Naylor, a warrant cannot be issued for an accused whose Information was not sworn as soon as practicable, as is the case here, then the warrant with discretion, issued on December 10, 2020, was made without jurisdiction. I do not find fault with the justice who issued that warrant as she would have had no way of knowing that s. 505 of the Code had been breached. Nothing had been done in advance to draw Her Worship’s attention to the issue. The Information before the Court on December 10, 2020, was valid on its face. The attached appearance notice had not been vacated when the Information was originally endorsed. The reality however, was that Mr. Rosenthal had no legal obligation to appear at old City Hall on December 10, 2020, nor at College Park courthouse on January 7, 2021. When he did appear on January 7, 2021, via agent for counsel appearing personally despite the second Enhanced Designation filed, he “voluntarily appeared before a justice having jurisdiction in the territorial division in which the warrant was issued” as contemplated by s. 511(3) of the Criminal Code. As such, Mr. Rosenthal, via his counsel’s agent, attorned to the jurisdiction of the court giving the court, from that day forward, jurisdiction over both Mr. Rosenthal and the Information. This is so as the Court of Appeal in Naylor also held,“ In order for the appellant to be obligated to attend court, the provisions of s 455.1 (now 505) had to be followed; but failure to follow that procedure did not, in my opinion, invalidate the information or result in a loss of jurisdiction over the offence see: R. v. Pottle (1978), 39 C.C.C. (2d) 484 and R. v. Halyk (1972), 9 C.C.C. (2d) 105.” I do find therefore, that Mr. Rosenthal had nothing legally compelling him to attend court until his counsel’s agent appeared at College Park on behalf of both and asked that the matter be remanded. Jurisdiction over Mr. Rosenthal was also obtained by the court at that time via the second Enhanced Designation attached to the Information.

The Law - Jurisdiction over the offence

[48] As to this Court’s jurisdiction over the offence/Information itself, the Applicant takes the position that the Information before me is a nullity. Here too he argued that binding precedents such as Naylor mentioned above, should be revisited in light of the specific evidence before me, and the Charter’s guaranteed rights protected by s. 7 and 11(d).

[49] I agree with counsel that, in essence, the time requirements contained in s. 505 of the Code should be read as “aspirational” (R. v. Jordan) or “outside limits” (R. v. Koszulap, 20 C.C.C. (2d) 193). In other words, Informations charging those released on Form 9 or 10 notices of appearance, should be laid before a justice within days ideally, not weeks and months. In Mr. Rosenthal’s case, the evidence shows that his Information, could have and should have been laid before a justice and issued by same within 7 -10 days of his arrest given that over 80% of Informations issued around the same time period in the Toronto courts were done so within less than 1 week of the accused’s arrest. I also agree that it is the duty of courts to be vigilant in making sure procedural safeguards are not overlooked or ignored. But the Charter is not a weapon to use to punish officers. It is a shield not a sword. I say this not because counsel argued such but because, with much respect to his argument, I cannot help but view his argument in this area as one that clashes with what the focus of the Charter should be as set out in the case law.

[50] On the evidence before me, the reason for the conceded delay in swearing Mr. Rosenthal’s Information is patently clear. It was not the result of systemic, careless, or inefficient practices and/or resourcing problems. It appeared to be specific to Mr. Rosenthal. Having said that, I accept that the evidence shows that some other defendants also appear to have experienced inordinate delays in the laying of their Informations. I do not have any evidence with respect to those cases and the cause of those delays. For the most part, however, I am satisfied that as a general practice, Informations are laid before a justice by the TPS within the time period set out by section 505 of the Criminal Code. I am unable to find that Mr. Rosenthal’s life, liberty, security, or fair trial rights were affected, in any way, by the delay occasioned by the arresting officer’s late filing of the occurrence resulting in the delayed creation of his court file by the TPS Charge processing Division which ultimately resulted in the delay in laying his Information before a justice.

[51] Once Mr. Rosenthal’s Information was laid before a justice however, the court gained jurisdiction over the offence. The fact that the Information was not laid as soon as practical did not affect its validity as per the Court’s ruling in Naylor, R. v. Markovic, [2005] 77 O.R. (3d) 752, R. v. Doyle (1976), 29 C.C.C. (2d) 177. I can see no basis on the material before me to revisit the holdings in these cases. The Court however, did not have jurisdiction over Mr. Rosenthal on December 10, 2020. It did not gain jurisdiction over Mr. Rosenthal until he appeared, via agent, on January 7, 2021. I find that jurisdiction was not lost at any time in Mr. Rosenthal’s criminal prosecution journey. It was gained but never lost. As such, there is no merit to the argument that the proceedings should be deemed dismissed for want of prosecution as per s. 485 (2) of the Code at any time prior to January 7, 2021. My finding in this regard would be the same no matter what date was chosen as the latest date on which the laying of Mr. Rosenthal’s Information would be found to meet the definition of “as soon as reasonably practicable.” As such I find no Charter violations nor any abuse of process and decline to declare the Information before me to be a nullity.

[52] Having dismissed these motions, Mr. Rosenthal’s matters shall proceed before this Court.

Released: February 1, 2023 Signed: Justice K. Mulligan