ONTARIO COURT OF JUSTICE

CITATION: R. v. Edwards, 2023 ONCJ 221

DATE: 2023 05 30

COURT FILE No.: Brampton 18-8632

BETWEEN:

HIS MAJESTY THE KING

• and -

KEVAN EDWARDS

S. 11(b) Charter Application

Heard before Justice L. Daviau on May 8, 2023

Written Reasons for Judgment released on May 30, 2023

Ms. Mountjoy............................................................................ counsel for the Respondent

Mr. Pillai................................................................ counsel for the Applicant, Mr. Edwards

L. Daviau J:

Introduction

[1] Kevan Edwards stands charged on an Information alleging two counts of impaired operations causing bodily harm and two counts of operation with over 80 mgs causing bodily harm contrary to section 255(2) of the Criminal Code.

[2] Mr. Edwards has applied for a stay of proceedings on the basis that his right under s.11(b) of the Canadian Charter of Rights and Freedoms (the “Charter”) to be tried within a reasonable time had been violated.

[3] The application was heard on May 8, 2023.

Overview

[4] Mr. Edwards was arrested and charged on July 7, 2018. The Information was sworn on July 20, 2018.

[5] Mr. Edwards trial is scheduled for June 28, 29 and 30, 2023.

[6] The total delay from the swearing of the Information to the anticipated end of the trial is 1846 days, or 60.52 months.

[7] Mr. Edwards first appeared before the courts on July 24, 2018. Counsel appeared (not Mr. Pillai’s office) and although initial disclosure was not yet ready, due to counsel’s unavailability at that time, 11(b) was explicitly waived until the next date. In result Mr. Edwards conceded 49 days of defence delay, that would otherwise not count against the defence.

[8] From September 11, 2018, to November 19, 2018, the defence continued to appear in court and the matter proceeded in the ordinary course.

[9] A Crown pre-trial focused on resolution, was held on October 29, 2018. A follow up Crown pre-trial was held on November 16, 2018. At that time defence counsel was not in a position to provide the Crown with the materials required to assist with resolving the matter.

[10] On November 19, 2018, defence counsel sought to schedule a Judicial Pre-Trial. The scheduling form (Exhibit 5) indicates that while defence was offered December 18, 2018, the defence was not available to conduct the Judicial Pre-Trial until February 8, 2019. The defence conceded that the 52 days from the first offered Judicial Pre-Trial date until February 8, 2018, when the defence was first available, to be defence delay.

[11] On February 8, 2019, a Judicial Pre-Trial was held. The focus was on resolution. A follow-up Judicial Pre-Trial was scheduled for February 28, 2019.

[12] At the follow up Judicial Pre-Trial on February 28, 2019, resolution was again discussed, after which counsel for Mr. Edwards appeared in court and adjourned the matter until March 29, 2019. Defence explicitly waived 11(b) from February 28, 2019 to March 29, 2019, 29 days, to allow resolution discussions to continue.

[13] On March 29, 2019, defence explicitly waived 11(b) to May 17, 2019, so that the counsel could seek instructions from Mr. Edwards. In result, 49 days accrue to the defence.

[14] On May 17, 2019, a two day preliminary inquiry was scheduled for April 7 and 8, 2020. The trial scheduling form indicted that although earlier dates were offered, April 7 and 8 were the first available dates for both the Crown and the defence.

[15] Bill C-75 came into force on September 19, 2019. In result, the charges of impaired and over 80 cause bodily harm, were no longer eligible for a preliminary inquiry. It is clear from the letter at Exhibit 2, Tab 4, that the Crown took the position that this change meant that accused persons who already had preliminary inquiries scheduled prior to September 19, 2019, were no longer entitled to those dates. The Crown had Mr. Edwards matter brought before the Court on October 4, 2019 to address this issue. Mr. Edwards did not wish to abandon his preliminary inquiry dates. The defence agreed that any delay occasioned as a result of their refusal to set new trial dates would be borne by the defence.

[16] On November 18, 2019, the Ontario Court of Appeal released their decision in R. v. R.S. 2019 ONCA 906. R.S. confirmed that Mr. Edwards was still entitled to his preliminary inquiry.

[17] Between November 15, 2019 and March 20, 2020, the defence continued efforts to resolve Mr. Edwards matter. While the April 7 and 8 2020 preliminary inquiry dates were never vacated, a date for a plea was set for February 24, 2020. However, the February 24, 2020 date was adjourned due to defence counsel being admitted to hospital. A second plea date of March 20, 2020 was adjourned due to the court shutdown due to the COVID-19 pandemic. The April 7 and 8, 2020 dates were also lost due to the COVID-19 pandemic.

[18] The COVID-19 pandemic caused Mr. Edwards’ matter to be presumptively adjourned from May 29, 2020 to January 8, 2021.

[19] For all of 2021 counsel continued to appear (not Mr. Pillai) for Mr. Edwards. It was clear that the defence was still focused on resolution and that a further Judicial Pre-Trial was necessary. On August 20, 2021, at the request of the defence, Mr. Edwards matter was adjourned to October 8, 2021.

[20] On October 8, 2021, no one appeared for Mr. Edwards and the matter was adjourned to January 17, 2022.

[21] No one appeared for Mr. Edwards on January 17, 2022, and the matter was adjourned to January 31, 2022.

[22] On January 31, 2022, new counsel from Mr. Pillai’s office appeared. The court was advised that disclosure had been requested that morning. Counsel indicated on the record that they would schedule a Crown Pre-Trial.

[23] On March 21, 2022, counsel appeared and advised that they had received initial disclosure and that they were in the process of booking a Crown Pre-Trial.

[24] On May 9, 2022, counsel again appeared and advised that a Judicial Pre-Trial was scheduled for May 19, 2022.

[25] On May 19, 2022, a Judicial Pre-Trial took place.

[26] The matter was next in court on July 4, 2022. At that time counsel indicated that a trial scheduling appointment was booked for July 25, 2022. It is not known when that scheduling appointment was made.

[27] There is no dispute that counsel for Mr. Edwards missed that trial scheduling appointment, and a new one was scheduled for September 13, 2022.

[28] On September 13, 2022, counsel attended at the trial scheduling appointment and trial dates were set for January 22, 23 and 24, 2024.

[29] The matter returned to court on October 17, 24 and 26, 2022 so that issues related to Mr. Edwards’ election and a possible 11(b) application could be addressed.

[30] On November 10, 2022, counsel advised that an 11(b) Application was scheduled for November 29, 2023. The matter was adjourned to November 29, 2023 for that application.

[31] On February 13, 2023, Crown counsel wrote to counsel to offer priority dates beginning April 3-5, 2023. Defence counsel responded on February 26, 2023, however at that time the April 3-5 dates were no longer available, and the first available dates were April 24-26, 2023.

[32] While defence counsel was available for April 24-26, 2023 for trial, the 11(b) Application could not be accommodated before those dates. Crown counsel sought to have the 11(b) heard on the first day of the trial, or even on a date after the trial, however, defence counsel did not consent to proceeding in that fashion. In result, May 8, 2023 was scheduled for the 11(b) Application and trial dates of June 28, 29 and 30, 2023 were confirmed.

The Jordan Framework and Related Principles

[33] The applicable framework is set out in R. v. Jordan, 2016 SCC 27. The Court of Appeal in R. v. Zahor, 2022 ONCA 449, at paras. 61-78, explained that applying the framework requires the court to identify and characterize the periods of delay. The steps are summarized below (citations omitted):[^1]

(1) Step 1: Calculate the total delay. The court must calculate the total delay, which extends from the laying of the charge to the actual or anticipated end of the trial;

(2) Step 2: Calculate the net delay. Net delay is calculated by subtracting defence delay from the total delay. There are two types of defence delay, each of which must be considered and, if present, subtracted;

(3) Step 2(a): Subtract delay that is waived by the defence. Delay that is clearly and unequivocally waived by the defence, either explicitly or implicitly, must be subtracted from the total delay;

(4) Step 2(b): Subtract delay that lies at the feet of the defence. Delay that is “caused solely or directly by the defence’s conduct” must also be subtracted from the total delay;

(5) Step 3: Compare the net delay to the applicable presumptive ceiling. The applicable presumptive ceiling is 18 months for cases tried in the provincial court. If the net delay is above the ceiling, the delay is presumptively unreasonable, and the Crown bears the burden of rebutting this presumption by demonstrating exceptional circumstances;

(6) Step 4: Consider exceptional circumstances. These circumstances do not need to be rare or uncommon; rather, they must lie beyond the Crown’s control, in that they are reasonably unforeseen or reasonably unavoidable and, in either case, result in delay that cannot be reasonably remedied by the Crown. In general, the Crown may satisfy its onus by relying on two categories of exceptional circumstances, being discrete events and particularly complex cases.

(7) Step 4(a): Consider discrete exceptional circumstances. Discrete exceptional circumstances are unexpected and uncontrollable happenings which lead to delay. They engage a quantitative analysis, in that the delay caused by discrete events is subtracted from the net delay for the purpose of determining whether the remaining delay continues to exceed the presumptive ceiling. Where the remaining delay continues to exceed the presumptive ceiling, even after accounting for discrete events that could not be reasonably mitigated by the Crown and the justice system, a stay will be entered unless the Crown can demonstrate that the remaining delay is justified in light of the particular complexity of the case.

(8) Step 4(b): Consider complexity. The remaining delay may be justified by the Crown where the case is “particularly complex”. It is worth stressing that the presumptive ceiling already accounts for the fact that criminal proceedings have become more complex over time. Therefore, in order to discharge its burden under this exceptional circumstance, the Crown must demonstrate that the case is particularly complex. Unlike the consideration of discrete events, an assessment of particular complexity engages a qualitative analysis. It demands an inquiry into whether the amount of remaining delay in excess of the presumptive ceiling is justified in light of the particular complexity of the case. For cases where the charges were laid after the release of the decision in Jordan, the analysis ends here. If the remaining delay cannot be justified based on the particular complexity of the case, a stay will be entered.

[34] Every actor in the justice system is responsible for ensuring that criminal proceedings are carried out within a reasonable time. No party is permitted to remain passive in the face of delay. That is why defence waiver, inaction or tactics aimed at delaying a trial must be deducted from the total delay. (See Jordan at paras 63-64 and R v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199 at pp. 1227-28)

[35] As Sopinka J. wrote in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771: “The purpose of s. 11(b) is to expedite trials and minimize prejudice and not to avoid trials on the merits”.

[36] To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. This is because the Supreme Court accounted for procedural requirements in setting the ceiling. Such a deduction would run contrary to the accused’s right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions. (See Jordan at paras 53-66).

Issues to be Determined

[37] The total delay of 1846 days, or 60.52 months is above the 18-month presumptive ceiling.

[38] The issue to be determined is whether there is defence delay or exceptional circumstances that can reduce the total delay below the presumptive ceiling.

[39] The defence concedes that a significant number of periods of delay can be attributed to the defence and to exceptional circumstances. Those periods are:

Start	End	Explanation	Time
July 24, 2018	September 11, 2018	Defence waiver.	49 days
December 18, 2018	February 8, 2019	Defence conceded delay from first offered JPT date to actual JPT date.	52 days
February 28 2019	March 29, 2019	11(b) waived from second JPT while resolution is discussed.	29 days
March 29, 2019	May 17, 2019	11(b) waiver from third JPT while resolution is discussed.	49 days
March 16, 2020	January 29, 2021	Exceptional circumstances from the start of covid shut down to January 29, 2021. Delay attributed to Covid 19 pandemic and ripple effects from the pandemic.	319 days
January 29, 2021	January 31, 2022	Defence delay conceded. Defence did nothing to move matter forward.	367 days
January 31 2022	May 19 2022	Defence delay conceded. New counsel retained and needed to review disclosure and set up a JPT. JPT is held May 19, 2022.	108 days
July 25, 2022	September 13, 2022	Defence delay conceded. Defence missed trial scheduling meeting and a new one had to be arranged.	50 days
Total			1023 days

[40] The total defence delay conceded by Mr. Edwards is 1023 days. Total delay less the delay being conceded by the defence is 823 days or 26.98 months.

[41] The Crown argued that in addition to the time periods identified by the defence, the following periods of time should also count as defence delay:

Start	End	Explanation	Time	Additional Delay
October 15, 2018	November 19, 2018	Defence initiated resolution discussions.	35 days	35 days
November 19, 2018	February 8, 2019	Defence initiated resolution discussions. Defence concedes from December 18, 2018 to February 8, 2019.	81 days	29 days
February 8, 2019	February 29, 2019	Defence initiated resolution discussions.	20 days	20 days
October 4, 2019	November 29, 2019	After Bill C-75, the Crown brought the matter back before the court. Defence refused to abandon the set preliminary inquiry dates and indicated that any delay occasioned as a result is not an issue.	56 days	56 days
November 29, 2019	March 16, 2020	Defence initiated resolution discussions.	108 days	108 days
May 19, 2022	October 17, 2022	Defence delay in moving the matter forward. Defence concedes July 25, 2022 to September 13, 2022 only.	161 days	111 days
March 27, 2023	June 30, 2023	Time between new trial dates being offered and anticipated last date of trial.	95 days	95 days
Total				454 days

[42] The Crown argued that the defence conceded time of 1023 plus an additional 454 days of defence delay, results in a total delay of 369 days or 12.09 months, well below the ceiling.

Analysis

[43] The additional delay being alleged by the Crown can be characterized by four general categories:

(1) Delay as a result of defence-initiated resolution discussions;

(2) Delay or waiver after the matter is brought back into court following the enactment of Bill C-75;

(3) Delay in new counsel moving the matter forward; and

(4) Delay occasioned after defence was offered new trial dates.

Defence Initiated Resolution Discussions

i) Prior to the Setting of Preliminary Inquiry Dates

[44] There is no doubt that defence spent considerable time attempting to resolve Mr. Edwards’ matter. This occasioned delay prior to the setting of the preliminary inquiry dates, which was done on May 17, 2019. Consistent with the approached endorsed by the Ontario Court of Appeal in R. v. Chung, 2021 ONCA 188 at paras 186-189, the defence conceded much of the delay after the first Judicial Pre-Trial to when the preliminary inquiry dates were set, as time in which the Crown and Court were ready to proceed but the defence was not.

[45] The Crown would add the time leading up to the Judicial Pre-Trial as further defence delay. I disagree. The eighteen-month presumptive ceiling already accounts for inherent time requirements required to prosecute a case. See R. v. Jordan at para 53. While the defence was engaged in resolution discussions with the Crown, the matter was still moving forward. I note that the Pre-Trial Verification Form, Exhibit 5, indicated that a date for the Judicial Pre-Trial was sought on November 19, 2018, only three days after the follow up Crown Pre-Trial. Defence initiated resolution discussions do not turn what would otherwise be inherent time requirements into defence delay. I see nothing about the defence actions that caused delay, so none will be apportioned to the defence for the time between October 15, 2018, and December 18, 2018.

[46] However, while Mr. Edwards conceded much of the delay between the first Judicial Pre-Trial and the setting of the prelim dates as defence delay, I would add to that calculation the time between the first Judicial Pre-Trial on February 8, 2019, and the second on February 28, 2019. In this instance the only reason dates were not set after the first Judicial Pre-Trial was the defence desire to resolve the matter. Therefore 20 days will be added as defence delay.

ii) After the Setting of Preliminary Inquiry Dates

[47] The Crown further seeks to apportion significant periods of time to the defence after the preliminary hearing dates were set, between November 29, 2019 and March 16, 2020, because the defence continued to pursue resolution. The Crown relied on two incidents as justifications for marking this time as defence delay. The first, two dates for resolution were scheduled (although the matter did not proceed on either); and, second, that the defence right from the beginning of the matter pursued resolution.

[48] This argument cannot be reconciled with the fact that the time the Crown seeks to attribute to defence delay did not cause any delay.

[49] While I accept that a defence focus on resolution could in circumstances be tantamount to implicit waiver, this case can be distinguished from both R. v. Busch, 2021 ONCJ 200 and R. v. Dhindsa, 2022 ONSC 6782. In both Busch and Dhindsa, the pursuit of resolution delayed the setting of dates, here dates were set while the resolution discussions continued.

[50] Further, at no time were the preliminary inquiry dates vacated, nor was there a suggestion that the resolution discussions would have caused the Crown to not be ready had the matter proceeded.

[51] The Crown’s position would have the effect of discouraging defence counsel from pursuing resolution discussions after the setting of dates. This cannot be a desired result. No delay will be apportioned to the defence for the time between November 29, 2019, and March 16, 2020.

Bill C-75

[52] After the preliminary inquiry dates were set and Bill C-75 was proclaimed into law, the Crown proactively brought Mr. Edwards’ matter back before the court. The Crown’s position, as set out in their letter to counsel, Exhibit 2, Tab 4, was that Mr. Edwards was no longer entitled to a preliminary inquiry. The Crown’s letter dated August 2, 2019 set out the various options available to Mr. Edwards including the option to await the development of case law on this issue. The Crown indicated in their letter:

To be clear, this option of non-action – awaiting the result of litigation is in other cases – will occasion delay in your case if the Crown’s position on jurisdiction is upheld by the courts. The Crown is only amenable to this option if any resulting delay is being waived for s.11(b) purposes. [Emphasis in its original]. (See Exhibit 2, Tab 4.)

[53] On October 4, 2019, this matter was brought forward into court to address the issues brought about by Bill C-75. It is understood from the materials before me that the defence opted to keep the preliminary inquiry dates as scheduled and await the development of case law on the issue. The preliminary inquiry dates remained, and the matter was adjourned from October 4, 2019, to November 15, 2019, for an update. For purposes of that adjournment, the defence indicated at that time that delay was not an issue.

[54] Mr. Edwards’ matter was remanded again from November 15, 2019 to November 29, 2019, to await the Ontario Court of Appeal’s decision in R. v. R.S. 2019 ONCA 906 on the issue of jurisdiction.

[55] R.S. was released on November 18, 2019 and confirmed that Mr. Edwards was still entitled to a preliminary inquiry. The preliminary inquiry dates of April 7 and 8, 2020 remained.

[56] The Crown argued that the defence indication that delay was not an issue was an express waiver of 11(b) from October 4, 2019 to November 29, 2019. I reject that argument.

[57] Defence counsel’s comments must be viewed in the context of both the letter sent by the Crown and the Supreme Court of Canada’s decision in Jordan. First, and foremost, the defence position to maintain the preliminary inquiry dates of April 7 and 8, 2020, caused no delay. As the defence did not cause the delay, it is difficult under the Jordan framework to envision how then this time period could be classified as ‘defence delay’.

[58] Second, the Crown was only concerned with any delay that would have been occasioned had their position on jurisdiction been upheld by the court. It was not. The defence did not waive 11(b) in general, rather, the indication that delay was not an issue, directly responded to the Crown’s concern indicated in their letter of August 2, 2019. No delay will be apportioned to the defence for this period of time.

New Defence Counsel Assumes Carriage of the File

[59] Almost three and a half years after Mr. Edwards was first charged, he retained new counsel to represent him. Mr. Edwards fairly conceded that the time it took for new counsel to get up to speed on the matter is time in which the Court and Crown were prepared to proceed but the defence was not. That period of time includes from January 31, 2022, to the date of the Judicial Pre-Trial on May 19, 2022.

[60] After May 19, 2022, the defence argued that they were effectively caught up, and in the ordinary course, a trial scheduling meeting was required to move the matter forward. But for the period of time between July 25, 2022, and September 13, 2022, where defence missed a trial scheduling meeting, the time would fall under inherent time requirements.

[61] The Crown argued that all the time from May 19, 2022, until October 17, 2022 (after the new trial dates were set) should count as defence delay. Specifically, the Crown argued that it took entirely too long for the defence to set up a trial scheduling meeting after the May 19, 2022, Judicial Pre-Trial and that the onus falls on the defence to justify the length of time this next step took. While the trial dates were set on September 13, 2022, the Crown further argued that delay should continue to accrue to the defence until those dates were put on the record on October 17, 2022.

[62] I agree with the Crown that the onus is on Mr. Edwards to establish the reason for the delay in this matter. There is no indication on this record on why it took from May 19, 2022, to July 25, 2022, to secure a trial scheduling meeting. Absent any explanation, I agree that the 67 days reflected is entirely too long. I am prepared to apportion 37 days of that time to the defence.

[63] The defence conceded the delay after the missed trial scheduling meeting to September 13, 2022, when the trial dates were scheduled with the trial coordinator. Once the trial coordinator approved the trial dates the appearance in court is redundant. As of September 13, 2022, the trial dates were set, and the defence was no longer the ‘sole cause of the delay’. No delay will be apportioned to the defence in the time after September 13, 2022, to October 17, 2022.

The Offering of New Dates

[64] On February 13, 2023, the Crown offered priority dates beginning on April 3, 2023, for Mr. Edwards’ trial. Counsel responded on February 26, 2023 and indicated his availability for the April 3 dates as well as others. By the time of counsel’s response, the April 3 dates were not available.

[65] The Crown argued that two weeks to respond to an email meant to ameliorate delay is too long and that all the time from April 3 to the projected end of the trial on June 30, 2023, should be defence delay.

[66] Alternatively, the Crown argued that even if this court found that the dates beginning April 3rd were too soon to be of use, counsel for Mr. Edwards had also indicated that the next set of dates that began on April 24 were also agreeable. However, the correspondence surrounding the scheduling of new trial dates revealed that while the trial dates could be accommodated, a date for this application could not be.

[67] Further, defence counsel rejected the Crown’s proposal to have the 11(b) Application argued on the first day of trial or on a date after the trial evidence had been heard. The Crown ultimately argued, that consistent with the approach endorsed by the Supreme Court of Canada in R. v. Hanan, 2023 SCC 12, released on May 5, 2023, all the time post April 24, 2023 to June 30, 2023, should accrue to the defence.

[68] The defence argued that for the 11(b) Application to have meaning it must take place before the trial. Further, despite the defence indication that they were prepared to proceed as early as April 3, 2023, to have enough time to prepare for this application, May 8, 2023, or the day the application was heard, was in fact the earliest time they could have proceeded. Therefore, none of the delay after the Crown offered new dates should count as defence delay.

[69] Alternatively, also citing the Supreme Court of Canada’s decision in R. v. Hanan, only the dates on which defence counsel were not available should be considered defence delay.

[70] The Supreme Court of Canada released Hanan 3 days prior to this application being heard. Hanan endorsed the earlier decision at the Court of Appeal, [2019] OJ 286,[^2] which rejected a bright-line rule for the apportionment of delay after the offering of new trial dates in favour of a contextual approach to the issue:

9 Like the majority and the dissent below, we reject the Crown's proposed "bright-line" rule according to which all of the delay until the next available date following defence counsel's rejection of a date offered by the court must be characterized as defence delay. We agree with van Rensburg J.A. and Tulloch J.A., as he then was, at para. 56, that this approach is inconsistent with this Court's understanding of defence delay. Defence delay comprises "delays caused solely or directly by the defence's conduct" or "delays waived by the defence" (Jordan, at para. 66). Furthermore, "periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable" (para. 64). All relevant circumstances should be considered to determine how delay should be apportioned among the participants (R. v. Boulanger, 2022 SCC 2, at para. 8). We share the view of the majority and dissenting judges in the Court of Appeal that, in the circumstances of this case, it is unfair and unreasonable to characterize the entire period between June and October 2019 as defence delay (paras. 59 and 136). (R. v. Hanan, para 9)

[71] Like my colleague Duncan J., in R. v. Qureshi (no 2) (not yet reported) I find that both positions encouraged by the parties are possible and a contextual approach where “all the relevant circumstances” specific to that time period must be considered.

[72] I agree with the Crown that two weeks to respond to the letter offering earlier dates is too long in these circumstances. While I accept that defence counsel was in a trial and otherwise occupied, by at least the following Monday, this matter should have been addressed. Therefore, I am prepared to allot 6 days of delay to the defence.

[73] However, what is not known is had the defence responded within a week, whether the April 3 dates would have remained available. For that reason, I am unable to find that the defence is the sole cause or reason that the dates beginning April 3 could not be used.

[74] The next set of dates offered and accepted by Mr. Edwards began on April 24, 2023. It was only after Mr. Edwards confirmed his instructions to bring the 11(b) Application that an issue with the timing of the April 24th trial dates arose. It is clear from the correspondence that defence counsel would have required 30 days to file their materials, a request that does not seem unreasonable in the circumstances, and that by the time the issue arose, this would not have left enough time for the Crown to respond. To ameliorate the issue, the Crown proposed two options for the defence to consider, the first, to argue the 11(b) on the first date of the trial (so long as the application could be prepared and filed in enough time); or second, to argue it on a date after the trial proceeded. The defence rejected both suggestions.

[75] While there is no doubt the timelines would have been exceedingly tight and the situation far from ideal, I find that the 57 days between the date in which the defence responded to the offer of new dates and April 24, 2023, would have permitted each party very close to 4 weeks to file their respective materials. This should have been sufficient to allow this application to have been argued on the first day of trial.

[76] Failing that however, as my colleague J. Lai found in R. v. Mills (Court file No. 21-011516 unreported) at para 37, the Crown did propose a practical solution that would have permitted Mr. Edwards a speedier trial while still allowing him to pursue a remedy for the alleged breach of his section 11(b) Charter rights. Like J. Lai, I find that defence counsel’s refusal to engage with that proposal was unreasonable.

[77] I find that the only reason for the delay in start of the trial from April 24 to June 28, 2023, was the defence unwillingness to have this application heard after the start of the trial. Further, the defence argued that it would not have been possible to argue this application prior to May 8, 2023. This suggested to the Court that the first day upon which the defence would have been ready to proceed to trial is on June 28, 2023, as it is currently scheduled. I find therefore that the defence is the sole cause of the delay in this instance and I am apportioning the time between the start of the April 24th trial date and the June 28, 2023 trial date, 65 days, to the defence.

Calculations

[78] The total delay in this case is 1846 days. The defence conceded 1023 days. To that I have added a further 128 days for a total of 1151 days of defence delay.

[79] The result is a net delay of 695 days or 22.79 months.

[80] In result the total delay remains above the 18-month ceiling and is presumptively unreasonable.

Exceptional Circumstances

[81] This is not a complex case.

[82] The COVID-19 pandemic can be a discrete exceptional circumstance that caused delay. (See, for example, the cases cited in R. v. Sandhu, 2022 ONSC 3910, at para. 38). The question is whether and how much delay in this case is attributable to the pandemic.

[83] The assessment of the delay caused by discrete events demands a quantitative analysis. (See Zahor at para 31). In R. v. Brown, 2023 ONSC 84 at paras 17 and 18, Broad J. canvassed the jurisprudence that recognized “the widespread and persistent impact of the pandemic on the criminal justice system”.

[84] However, the impact of the pandemic will not always be readily quantifiable. See Goodman J. in R. v. Hinterberger, 2022 ONSC 4860, at para. 64:

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. In instances where there is some portion of delay that exceeds the ceiling, it may be reasonably deducted as attributable to the backlog depending on the circumstances. [Emphasis added.]

(Also see Brown, R. v. Meir, 2022 ONCJ 100, and R. v. Ivarone, 2023 ONCJ 69.)

[85] This is consistent with the Court of Appeal’s decision in R v. L.L., 2023 ONCA 52, which endorsed a fact-specific analyses of how the pandemic impacted the scheduling of the specific case at issue and recognizes the application judge’s privileged position in adjudicating that factual question.

[86] While this Court would be prepared to allot some time to address the ripple effects of the pandemic, the question is whether the nearly 5 months that this case sits above the ceiling, can be justified by the ripple effects of Covid. I find that it cannot be.

[87] Here, the defence has already conceded a significant amount of time be deducted as exceptional circumstances to account for the impact of the pandemic and the ripple effects felt since. That concession I find was an attempt by the defence to acknowledge the significant impediments that the Covid-19 crisis created in our system and included an acknowledgment of the ripple effects caused by the crisis. So even if I were inclined to justify a further period of time to account for the ripple effects of COVID, I am unprepared to put that number at nearly 5 months.

[88] Further, when trial dates were set with the trial coordinator in September 2022 all parties were aware of how long this matter had lingered in the system both prior to and after the shutdowns caused by the pandemic. In fact, the matter returned into court on October 26, 2022, where defence counsel confirmed that delay was an issue. Yet, no attempt was made to secure priority dates until the following February 2023.

[89] While I take judicial notice of the impact of the pandemic on this Court, I am unable to apportion an amount of delay that would bring this case below the ceiling. A stay will be entered.

Released: May 30, 2023

Justice L. Daviau

[^1] This summary does not address the steps taken when the Net Delay is below the presumptive ceiling.

[^2] Also see R. v. Albinowski, 2018 ONCA 1084