ONTARIO COURT OF JUSTICE DATE: 2023·04·25 COURT FILE No.: Cobourg 210-3-8

BETWEEN:

HIS MAJESTY THE KING

— AND —

TIMOTHY TAFILICA

Before: Justice S.W. Konyer Heard on: April 21, 2023 Reasons for Judgment released on: April 25, 2023

Counsel: Gerry McGeachy .................................................................................... counsel for the Crown Adam Little .......................................................... counsel for the defendant Timothy Tafilica

KONYER J.:

[1] The defendant was charged with alcohol-related driving offences by way of an Information sworn on April 8, 2021. The case is scheduled for a 1 day trial before me in Cobourg on June 1, 2023. The total delay between the date the defendant was charged and his trial is 785 days, or approximately 25.8 months. The defendant claims that his right to be tried within a reasonable period of time, as guaranteed by s.11(b) of the Canadian Charter of Rights and Freedoms, has been infringed in these circumstances. As a remedy, he seeks a stay of proceedings. The Crown resists the application, arguing that the delay is tolerable when delay caused by the defence is accounted for. In the alternative, it says that any excessive delay is justified as a result of the effects of the Covid-19 pandemic on the justice system, something which was unforeseen and beyond its control.

[2] The Supreme Court of Canada, in R. v. Jordan, 2016 SCC 27, established a presumptive ceiling of 18 months net delay for cases heard in provincial court. Net delay is calculated by subtracting any defence delay from the total delay. If the net delay exceeds 18 months, then it is presumptively unreasonable and the onus shifts to the Crown to demonstrate that the delay was nevertheless reasonable. One of the ways it can do so is by demonstrating that some period of the delay was caused by a discrete exceptional circumstance, and that the remaining delay falls below the presumptive ceiling.

[3] In this case, the parties disagree over the periods of time that should be allotted as defence delay. The Crown says the defence was responsible for delay in the intake phase by unnecessarily insisting upon disclosure of video evidence from the police detachment before scheduling a Crown Pre-Trial (CPT) or Judicial Pre-Trial (JPT). The defence disagrees, arguing that the disclosure in question was essential and that the case could not meaningfully move forward until it was received.

[4] The parties do agree that the defence is responsible for delay caused when counsel failed to attend a scheduled CPT, which had to be rescheduled. However, they disagree on the amount of delay that should be attributed to the defence as a result.

[5] Once the CPT and JPT were completed, a trial scheduling conference occurred involving counsel and the Trial Coordinator (TC). At this conference, a number of trial dates were offered within one month, followed by a series of dates beginning roughly 12 months later. Of the early dates offered, the Crown was available for one, which would have been 29 days later. The defence declined this date, citing a lack of reasonable preparation time. The Crown says that as a result, all of the delay following this date is defence delay. The defence disagrees, and says that declining a single trial date in these circumstances does not mean that all delay thereafter is the responsibility of the defence.

[6] Several months after the trial date was scheduled, the Crown emailed the defence with an offer to reschedule the matter on one of two dates which had become available approximately two months from the date of the email. The defence responded promptly to this request, stating that it was unavailable on these dates due to other scheduled trials in their calendar. It also asked the Crown to advise them if any future dates became available, but no further offers of an earlier trial date were made. The Crown argues that the defence is responsible for any delay after these declined trial dates, while the defence says that it cannot reasonably be expected to hold itself in a state of perpetual availability, and that an offer of two potential dates in such a short turnaround does not stop the Jordan clock.

[7] If I agree with the Crown that the time period after either the first available date (29 days after the trial scheduling conference) or the time period after the other two earlier trial dates is defence delay, then the net delay will be under the Jordan ceiling. In that event, the defence did not argue that it had met the high threshold for a stay of proceedings.

[8] On the other hand, if I find that the net delay exceeds 18 months, the Crown says that it is nevertheless justified due to a discrete exceptional circumstance beyond its control – the ongoing effects of the Covid-19 pandemic and the backlog of cases arising as a result of the temporary suspension of trials. This had a ripple effect across the criminal justice system because the courts did not return to normal functioning for several months, and some allowance must be given to this unprecedented event. The Crown says that I should deduct a period of 3 months from the net delay as a result of the pandemic, as has been done in other cases. While the defence does not dispute that the pandemic has had an impact generally on the criminal justice system, it says that it would be unfair to arbitrarily deduct any period of time in this case in the absence of evidence that the pandemic specifically caused the delay.

[9] Clearly, my calculation of defence delay here will be critical to the determination of whether or not the net delay in this case exceeded the 18 month ceiling established in Jordan. I will therefore review the history of this matter in some detail so that I am able to properly attribute the contested periods of delay. The calculation of the proper period of net delay will determine whether I need to go on and consider whether the Crown can justify the delay based on discrete exceptional circumstances arising from the pandemic.

[10] The defendant was charged on April 8, 2021 and given a first appearance date of April 21. On his first appearance, he attended personally, took note of the Crown’s email address in order to obtain his disclosure, indicated that he wanted to retain counsel, and sought an adjournment to do so. When the court proposed a one month adjournment, he asked for a longer period due to personal circumstances. His case was adjourned to June 2, 2021. He was told “once you get that disclosure, sir, you know, try to follow up with the lawyer, you know, as best you can, hopefully before June 2nd”.

[11] It appears as though the defendant took this instruction to heart, because retained counsel requested disclosure from the Crown on May 4. This included a request for “a copy of any and all videotaped footage of our client while in police custody, including but not limited to a copy of the breath room, booking, release and cell video footage”, as well as “a copy of all in-car camera video, should this exist”. At the June 2 court appearance, counsel for the defendant appeared, indicated that they had received “the paper disclosure” but “we’re still waiting on some disclosure, crucially the video disclosure, the booking, breath room, cell video, etc.” Defence counsel asked the Crown if this disclosure had been provided to it by the police. Crown counsel indicated that they did not have the video disclosure and would follow up. Defence counsel sought an adjournment to June 30, and stated “once we receive that disclosure, assuming its all the videos I indicated, we can do a Crown pre-trial.”

[12] On June 3, defence counsel sent a further, particularized disclosure request to the Crown, requesting 8 specific items including the detachment and cruiser video footage. On June 30, defence counsel appeared in court for the defendant and indicated that the requested video was still outstanding. Crown counsel confirmed receipt of both disclosure requests, indicated that it had requested the video from the police but had still not received it. The Crown said “looking at the – what we have in SCOPE, it was requested – been requested at least once, if not twice, but it was requested on June 8 from the police. That’s almost a month ago now. That shouldn’t be something that’s difficult to produce. I’ll make a note to follow up again with the police to provide that. Perhaps 3 weeks. I would hope we could have it by that point in time.” The court adjourned the matter to July 21 “to be spoken to and that’s to allow for disclosure to be provided as requested.”

[13] On July 20 at 7:43 pm, defence counsel sent an email to the Crown which reads: “We have now been provided with the booking and release footage as well as the in-car footage. It appears that there’s an additional link that’s been uploaded to evidence.com that will not open. Perhaps it contains the breath room and cell video? Can your office kindly re-upload this footage? Alternatively, our office will pay to have a hard copy of the breath room and cell video couriered. Please let us know if this is possible.” On July 21, the Crown disclosure clerk replied “it appears that is [sic] was the breath room video. I am also unable to play it. I have sent a request to the police for a new copy.” Defence counsel acknowledged receipt of this email, and also asked the disclosure clerk to follow up on the cell block video. On July 21, both Crown and defence advised the court of the state of disclosure and the matter was adjourned to August 25 for follow up.

[14] At about 7pm on August 24, defence counsel sent an email the Crown disclosure clerk asking about the outstanding breath room and cell block video. I was not provided with copies of any reply from the Crown. When the matter was addressed in court on August 25, defence counsel requested a further month adjournment, and said again “once we are in receipt of those videos, we will schedule and conduct a Crown pre-trial.” The matter was adjourned to September 22. The Crown did not object to the adjournment or provide any update on the status of the videos. The Crown did not press for the matter to move forward to a CPT or JPT in the absence of this disclosure. It is not hard to see why – this is a drinking and driving case where one of the charges is an exceed offence, which presumably relies on the analysis of breath samples from the defendant. The process where his breath samples were seized and analyzed was recorded on audio and video. Clearly this is crucial disclosure. The only information I have about any steps being taken is a reply email from the Crown disclosure clerk to defence counsel at 8:48 am on August 25, which reads in its entirety “I have just sent another follow up email to the police.”

[15] At 8:35 pm on September 21, defence counsel emailed the Crown disclosure clerk once again to ask about any updates on the outstanding disclosure. It is unfortunate that this pattern of emailing the night before court continued, as this did not allow for counsel to know where things stood when the matter was addressed in court. On September 22, the matter was adjourned once again for the same reasons to October 20. The Crown did not advise the court about what efforts were being made to secure the disclosure which had now been holding up this case for about 4 months.

[16] The next thing that occurred was a series of emails between defence counsel and the Crown’s disclosure clerk on October 19 and 20. They began with defence counsel stating “thank you for uploading the video footage” and seeking clarification about the booking video. From what I can understand, counsel received numerous files including the breath room video, but the file titled “booking video” was a duplicate of the breath room video. The disclosure clerk replied promptly and by the following day counsel was able to confirm they had all the required videos.

[17] When the matter was addressed in court on October 20, defence counsel indicated that the video disclosure was only uploaded that morning, while the Crown said it had been uploaded on September 28. In any event, the matter was adjourned at defence request to November 17 to conduct a CPT.

[18] Unfortunately, the transcript from November 17 is unhelpful. A paralegal appeared for defence counsel and said “he’s in the process of scheduling a Crown pre-trial.” Nothing was said about this process. I don’t know if defence counsel initiated attempts to schedule a pre-trial immediately following the last court appearance, or the day before the November 17 appearance. I don’t know what steps were taken to prioritize the matter given the delay that had already occurred to that point. The paralegal indicated that “February 10 has been canvassed that it has not yet been confirmed. Counsel is suggesting December 15 if that’s agreeable.” I cannot fathom why, in a case that had been languishing by this point for 6 months due to late disclosure, that a CPT date a further 3 months down the road was being considered. Although the Crown did agree to the adjournment to December 15, she expressed concerns about delay and expressed the hope that a CPT could occur in the interim.

[19] On December 15, the defence indicated that a CPT had indeed been scheduled to occur in the interim. The paralegal appearing stated “Counsel indicate that we had a pre-trial scheduled last week, but unfortunately we had to cancel it as counsel was not available. A new pre-trial is scheduled for December 22. Counsel is suggesting January 12 as a return date.” Nothing was said about how the pre-trial got scheduled or why counsel was unavailable. I have to presume that when the pre-trial was scheduled that counsel was available. In the absence of any explanation for counsel’s sudden unavailability, the logical inference is that counsel chose to prioritize some other matter over this case, which had been languishing for so long already. In its responding materials, the Crown takes issue with defence counsel’s characterization of this incident. The Crown provided an affidavit asserting that the CPT was never cancelled by the defence. Rather, the Crown called defence counsel that day to conduct the CPT and left a message which was never returned.

[20] Mercifully, the CPT did finally occur before the next court date, and on January 12, 2022, the matter was scheduled for a JPT on February 7, less than a month later. The judicial pre-trial was held on February 7, 2022 and the presiding Judge met with the parties and assessed the time requirements for trial as being one day. The matter was adjourned to February 16 to set the trial date in order to allow for a scheduling conference to occur with the TC in the interim. At that time, defence counsel said they had submitted the Trial Scheduling Form on February 9, but the trial scheduling conference had not yet occurred. It is the responsibility of the trial coordinator to set up the scheduling conference. The matter was adjourned to March 2 for this to occur.

[21] A trial scheduling conference was held on February 23, 2022. The parties agree that multiple trial dates were offered in March 2022. The Crown was available for one of those dates – March 24, 2022. The defence declined this date because it was too soon to permit filing of Charter materials. The next dates offered by the TC were February 17, 23, 24, 28, March 21 and 28, 2023. The Crown was available for the February 17, 23 and March 21 dates, while the defence was not available for any of those dates. At this point, the parties agree that the defence told the TC that they were unavailable until June 1, 2023. The TC offered June 1 and this date was accepted by both Crown and defence.

Calculation of Defence Delay

[22] Defence delay has two components. The first is any period of delay that was waived by the defence, whether explicitly or implicitly. The second is delay which is caused solely by the conduct of the defence. This includes actions or inactions which demonstrate an intent to delay the trial, frivolous applications or requests, and defence unavailability in the face of court and Crown availability. However, legitimate actions taken to respond to the charges fall outside the ambit of defence delay. This includes preparation time and legitimate defence applications and requests, which are accounted for in the normal procedural requirements of a case and are reflected in the Jordan ceiling. I turn now to a consideration of the disputed periods in this case.

a) The intake period prior to the JPT

[23] The actions and inactions of both parties during the intake phase of this case does little to inspire confidence that the message from the Supreme Court in Jordan about the need for the culture of complacency in the criminal justice to change has been received.

[24] Things started out in a promising way. The defendant was given a first appearance date within weeks of being charged. He attended, sought an adjournment to retain counsel, and promptly did so. His counsel requested disclosure within days of the first appearance. For unknown reasons, the police did not provide the Crown with basic and crucial disclosure for several months. In oral argument, the Crown asserted that defence did not require the video disclosure in order to conduct a meaningful CPT or JPT, and that the case could have moved forward. In other words, the defence was engaged in frivolous stalling tactics by insisting on this disclosure before taking next steps. I disagree for two reasons.

[25] First, the defence made its position quite clear on the record – that it required the video disclosure before conducting a CPT. Over the course of several appearances Crown counsel never once suggested that the disclosure request was frivolous or that the matter could move forward in a meaningful way without this basic disclosure. To the contrary, the Crown acceded to these requests and expressed repeated frustration at the police for not providing copies of video recordings which had been made by the police service itself. In my view the Crown cannot seriously complain after the fact that these adjournment requests were without merit.

[26] Second, the disclosure being sought is, on its face, essential. The defendant is charged with having an excessive blood alcohol concentration within 2 hours of operating a conveyance. The breath room video is a recording of the breath testing procedure where the evidence the Crown presumably intends to use against the defendant was obtained. Clearly this is critical disclosure that is necessary before competent counsel could properly advise their client, receive instructions or engage in a meaningful discussion with the Crown or the court about the length of time the trial would require. The booking and cell block video also captures interactions between the defendant and the police, forms part of the warrantless search process and may contain evidence that is relevant to the impaired charge. Together these videos may form the basis for Charter applications and arguments to exclude evidence or stay proceedings. This is not a case where the defence was seeking every possible scrap of disclosure before taking next steps. This was fundamental disclosure which was withheld for an unacceptable period of time. None of the delay up to the point where the video disclosure was received is defence delay.

[27] However, that disclosure was in the hands of the defence by the October 20 court appearance. The defence sought a 4 week adjournment to conduct a CPT. This was a matter that had been languishing for 6 months by that point. All parties in the criminal justice system have an obligation to act responsibly in order to minimize delay. The CPT ought to have been conducted during this period of adjournment, but it was not. On the next date, November 17, the case had to be adjourned again for the CPT to occur until December 15. The record is silent as to why the CPT was not scheduled during that intervening month as it should have been. Both parties ought to have prioritized the scheduling of a CPT in this matter.

[28] In the period between the next dates of November 17 and December 15 a CPT was booked, but cancelled by the defence. No explanation was provided to me for why the CPT in a matter that had by then been languishing for 8 months was cancelled. The CPT was ultimately rescheduled for December 22, which caused an adjournment of the case to January 12, 2022. By that time, the CPT was done and a JPT was scheduled in less than a month. In my view, the entire period from November 17 to January 12 is defence delay. The CPT ought to have been completed by November 17. This period of 57 days will be deducted from the total delay.

b) The period from set date until trial

[29] Following the JPT, and in accordance with the Ontario Court of Justice protocol, the parties attended a trial scheduling conference on February 23, 2022 to schedule a trial date. The JPT Judge had authorized a 1 day trial. The TC offered a number of dates in March 2022, one of which, March 24, was available to the Crown. The defence declined this date, citing concerns that it would not be able to prepare and file Charter materials in time. The Crown says that all of the delay after March 24 is defence delay, relying on the following passage from Jordan at para. 64: “the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence.”

[30] However, the Ontario Court of Appeal has held that this passage from Jordan does not mean that all delay after a declined trial date is necessarily defence delay in all cases. Context matters. As van Rensburg JA explained for the majority in R. v. Hanan, 2022 ONCA 229, at para. 56:

56 Once it is accepted that the reason for defence unavailability (other than legitimate defence preparation time) is not taken into account in determining defence delay, it does not necessarily follow, as the Crown urges this court to find, that there is a "bright-line" rule that, once the defence is unavailable, all of the delay until the next available date is characterized as defence delay. That would be inconsistent with the principle that the delay must be "solely or directly" caused by the defence, and the qualification that "periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable": Jordan, at para. 64. Like Roberts J.A. in R. v. Albinowski, 2018 ONCA 1084, 371 C.C.C. (3d) 190, I would reject the "categorical approach" proposed by the Crown that all of the delay following the rejection of a date offered by the court must be characterized as defence delay, and I agree with her statement that "it is necessary to consider the circumstances of [the] case": at para. 46. The court must take a contextual approach that considers the circumstances relevant to whether, in respect of a particular period of time, the defence refusal of a date is the "sole or direct" cause of the resulting delay.

[31] Similar conclusions were reached in R. v. Safdar, 2021 ONCA 207 at paras. 48-57 and R. v. Barrett, 2022 ONSC 6334, at paras. 52-57.

[32] The Crown invited me in oral argument to apply my knowledge of local conditions in Cobourg. Having presided in the jurisdiction that includes Cobourg for 8 years and having been the Local Administrative Judge for the last 5 years, I am aware that full day out of custody dates are not typically offered in Cobourg within one month. I can reasonably infer that such early dates could only have become available due to a last-minute collapse, which unfortunately is not an uncommon occurrence. I am bolstered in this conclusion by the fact that the next series of dates was not for some 11 months after the single date declined by the defence. The court did not have any dates to offer between March 24, 2022 and February 17, 2023.

[33] It is unsurprising that a busy defence counsel would have been unable to adequately prepare for a full day drinking and driving trial which, according to the Case Management Form completed by the JPT Judge is expected to include applications under ss. 8, 9, 10(a) and 10(b) of the Charter in less than 30 days. In all of the circumstances, where the Crown was available on a single date offered with insufficient preparation time for the nature of the case, and the next available date was not until 11 months later, in my view the intervening delay cannot properly be attributed to the defence.

[34] After the March 24, 2022 date, counsel were offered a series of dates in February, March and April 2023. Defence counsel indicated that they were unavailable until June 1, so the remaining available dates for April and May were not canvassed. The defence concedes that some of this period is properly characterized as defence delay, but says this should only start as of March 21, 2023, which was the third trial date offered which was available to the Crown. My view is that this entire period of defence unavailability from the first date available to the Crown and court of February 17 to June 1 is defence delay. This is a period of 105 days.

c) The offer of earlier trial dates

[35] Approximately four months after the trial date was set, the Crown emailed defence counsel with an offer of two possible earlier trial dates, either August 25 or 26, 2022. The email was sent June 24, 2022 – two months before the newly available trial dates. Defence counsel responded 2 days later, advising that he already had other trials booked on those dates, but inviting the Crown to keep him apprised of any other openings in the schedule. The issue is whether this offer means, as the Crown argues, that all or some of the delay beyond August 25 is defence delay.

[36] As I have said, a categorical approach which says that all delay beyond the first available date declined by the defence is defence delay has been rejected in a number of post-Jordan decisions in favour of a contextual approach that examines all of the relevant circumstances. This includes how far in advance of the proposed dates they were offered – here, a period of two months. In my view it is unsurprising that counsel would be unavailable. Mr. Little is an experienced and well known criminal defence counsel who undoubtedly keeps a full schedule. While it was certainly appropriate for the Crown to have offered these dates to him, it would have been surprising had Mr. Little not already been booked on other matters. This was the only offer to advance the defendant’s trial date that was made. In Safdar, supra, the Ontario Court of Appeal held at para 51 that where the application Judge found that defence counsel was legitimately unavailable for dates offered on short notice, that the application Judge was correct not to characterize subsequent delay as defence delay.

[37] Likewise, in the circumstances of the case before me, I decline to attribute any of the delay beyond the August 2022 dates to the defence. Had multiple offers of earlier dates been repeatedly declined, as was the case in R. v. S.C., 2022 ONCJ 486, I might have reached a different conclusion.

Calculation of Net Delay

[38] The total delay here is 785 days. I have attributed two periods of 57 and 105 days respectively as defence delay. The net delay therefore is 623 days, or roughly 20.8 months. This exceeds the Jordan ceiling, meaning that the delay is presumptively unreasonable. The Crown may rebut the presumption by establishing exceptional circumstances, which generally fall into two categories: discrete events and particularly complex cases. There is no claim by the Crown here that this case, a routine drinking and driving prosecution, is particularly complex. However, the Crown does argue that a further period of delay should be deducted from the net delay as a result of a discrete event – the Covid-19 pandemic. I turn now to a consideration of the impact of the pandemic.

The Impact of the Pandemic as a Discrete Event

[39] Where the delay exceeds the presumptive 18 month Jordan ceiling, the onus shifts to the Crown to justify the delay. One of the ways it can do so is by showing that some of the delay was caused by a discrete exceptional circumstance or event. These lie outside the Crown’s control in that they are reasonably unforeseen or reasonably unavoidable, and the Crown cannot reasonably remedy the delay caused by the discrete event once it has arisen. If the Crown is able to demonstrate that such a discrete event is responsible for a portion of the delay, that portion is deducted from the net delay, and the remaining delay is then compared to the Jordan ceiling.

[40] There is no doubt that the Covid-19 pandemic is a discrete exceptional circumstance in the sense that it was unforeseen and unavoidable, and that it had impacts on all aspects of the criminal justice system which lay beyond the Crown’s ability to control or remedy. As Ducharme J held recently in R. v. Rahi, 2023 ONSC 905, at para. 31, “the impact of the pandemic will not always be readily quantifiable. Consideration ought to be given to the obvious fact that, in spite of all efforts, a backlog in scheduling and rescheduling cases will be inevitable and returning to normal will take longer than the actual course of the pandemic itself.”

[41] That said, this case came before the courts beginning in April 2021, at a point where court proceedings had resumed normal functions. This case proceeded through the intake phase at a pace that appears to have been unaffected by the pandemic. The matter was adjourned for purposes of retaining counsel, obtaining disclosure, conducting CPT’s and JPT’s in the normal course, but for the failure of both the prosecution to make timely disclosure and the failure of the defence to promptly attend to a CPT once disclosure was provided. There is no evidence before me that the pandemic had any impact on these delays, and I have accounted for the delay caused by the defence as set out earlier. The real issue is whether some portion of the set date delay of roughly 12 months should be deducted due to the pandemic.

[42] Where the Crown relies on a discrete event to justify excessive delay, it must show that the event caused some portion of the delay. As Paciocco J (as he then was) explained in R. v. J.M., 2017 ONCJ 4 at para. 149: “there is a causation requirement. Since the inquiry is into delay, discrete events […] are not material unless they are responsible for the problematic delay.”

[43] I agree with the defence that the Crown must satisfy this onus through evidence, and that I cannot simply deduct an arbitrary number of months from the net delay as a result of the pandemic. I agree with the conclusion reached on this point by Fiorucci J in R. v. Ibrahim, 2022 ONCJ 450, at para. 79: “where there is a dispute about the apportionment and calculation of delay in a particular case, that dispute must be resolved, as all other factual disputes are resolved in a court of law, with evidence.”

[44] In the absence of evidence, deducting any period of delay is guesswork. As Sickinger J held in R. v. S.M., 2022 ONCJ 513 at para. 38, “to subtract a blanket period of delay, without a proper evidentiary framework, would accomplish no more than to have the Court place a thumb on the scale in order to save this case from a stay.”

[45] I am aware that in some cases courts have granted a “Covid deduction” from the period of net delay. This approach is best described by Leitch J in R. v. Ivarone, 2023 ONCJ 69 at para. 10 as a “conservative approach to measuring the effect of delay through judicial notice of local conditions”. In that case the court applied a three month deduction, which was described at para. 16 as “a conservative estimate of Hamilton’s local conditions”. Leitch J also held that if the Crown sought to justify a deduction beyond this conservative estimate it would need to demonstrate through evidence that any excess delay was caused by the pandemic.

[46] If the Crown is correct that it is appropriate to take judicial notice of local conditions, that does not assist the prosecution. Cobourg has been experiencing growing delay since before the pandemic, primarily due to lack of resources. This is an area with an expanding population served by a single full time Judge of the Ontario Court of Justice. Even if judicial resources are diverted from other areas, there is a single courtroom available for an Ontario Court of Justice trial court in Cobourg. This court must accommodate plea court dates, youth court dates and judicial pre-trials as well as trials and preliminary inquiries. The result is that Cobourg has at most three days per week that can be used for scheduling trials and preliminary inquiries.

[47] In recent years, various legislative amendments have increased the workload in the Ontario Court of Justice. The elimination of the availability of a preliminary inquiry for many offences has resulted in more of these matters proceeding to trial in the OCJ, which consume more time that a preliminary inquiry in the same case. Amendments to the pre-trial screening process for determining the admissibility of evidence in sexual offence prosecutions has had a marked effect on trial scheduling. Sexual offences comprise a large part of the trial caseload in Cobourg. In short, there are more cases before the OCJ, many of which are more complex and take more time to litigate. The impact of these factors on set date delay in a jurisdiction with a single Judge is significant.

[48] In all of the circumstances, in this jurisdiction it is impossible to attribute with precision any portion of the set date delay to the pandemic, as opposed to the lack of adequate judicial resources. At the end of the day, this case would have been accommodated within the Jordan ceiling but for the unexplained and excessive delay by the police providing straightforward and essential disclosure to the prosecution. The delay here simply occurred concurrently to the lingering effects of the pandemic. I cannot find that the delay here was caused by the pandemic. I therefore decline to deduct any period of time from the net delay as a result of the ongoing effect of the pandemic.

[49] In the result, Mr. Tafilica has proven a breach of his s.11(b) rights and a stay of proceedings is granted.

Released: April 25, 2023 Signed: “Justice S.W. Konyer”