WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Citation: R. v. Fodor, 2023 ONCJ 315

DATE: 2023·07·19

ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— AND —

JULIANNA FODOR

Before Justice Michael Waby

Heard on March 6th & 8th, 2023, April 26th & 27th, 2023, May 15th & 31st 2023, June, 2nd, 20th and 26th, 2023

Reasons for Decision released on 19th July, 2023

M. Gharabaway................................................................................... Counsel for the Crown

B. Bytensky........................................................................................ Counsel for the Accused

Waby, M. J.:

Introduction

[1] Julianna Fodor is charged with the following three counts: Exercise Control for the purpose of Sexual Services, Advertise Sexual Services and Receive Material Benefit from Sexual Services. The offences are alleged to have occurred between March 7, 2020 and June 27, 2020. It is alleged that the Accused committed these offences in respect of LSJ who is now deceased and is alleged to have been murdered by the Accused’s partner, Soreeysa Abdi. Ms. Fodor is not alleged to be a party to the homicide.

[2] This is an Application by the Accused for a stay of proceedings. The period between her arrest and the date of this 11(b) Application is 19 months and 26 days. It exceeds the 18-month ceiling in the Ontario Court of Justice established by the Supreme Court of Canada R. v. Jordan. At the present time, an anticipated end date of this trial is unknown.

ANALYTICAL FRAMEWORK

[3] R. v. Jordan sets out the analytical framework to determine a s. 11(b) violation as does R v Coulter, 2016 ONCA 704, 133 O.R. (3d) 433 at paras 34-41

(1) Calculate the period from the charge to the actual or anticipated end of the trial to determine total delay.

(2) Subtract defence delay from the total delay, which leads to the "Net Delay". Defence delay may arise from a defence waiver, and/or a delay caused solely by defence conduct.

(3) Compare the Net Delay to the presumptive ceiling of 18 months in the Ontario Court of Justice.

(4) If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable.

(5) The Crown may rebut this presumption if it establishes the presence of exceptional circumstances. Exceptional circumstances may be a discrete event or a particularly complex case.

(6) Subtract delay caused by any exceptional discrete events from the Net Delay, leaving the “Remaining Delay”.

(7) If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the complexity of the case is such that the time the case has taken is justified.

(8) If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable by demonstrating a sustained effort to expedite the proceedings and the case took markedly longer than it reasonably should have. Stays below the ceiling are expected to be rare and limited.

Analysis

Total Delay

[4] Both parties agree that the delay in this case is calculated from the date of arrest to the date of this 11(b) Application. Arrest date from November 1, 2021, to date of 11(b) Application on June 26, 2023 is a period of 19 months and 26 days (583 days).

[5] The Applicant submits that her right to a timely trial had been breached and requests a stay of her criminal charges.

[6] Defence counsel advises that the Applicant seeks to bring her 11(b) Application at this stage of the proceedings although it is acknowledged by both parties the anticipated end date of this trial is unknown at this time. All of the anticipated evidence on the trial proper and the 11(b) Application has been called.

[7] Defence counsel submits that, subject to the 11(b) ruling in this case, further Applications will be filed by him seeking to reopen and argue a previous s.8 Charter Application ruling made at the beginning of this case.

[8] The Respondent agrees that the delay exceeds the presumptive ceiling and is not specifically alleging any defence delay. It is the position of the Crown that the presumptive period of delay is accounted for by virtue of exceptional circumstances. The Applicant disagrees.

Procedural History

[9] The procedural history of this particular case is less than straightforward and there is obvious value in summarizing it. Given the position of the parties, the principle, although not exclusive focus of the 11(b) Application, relates to events that have transpired following the scheduled trial dates.

[10] The accused was arrested on November 1, 2021. The original time estimate for this trial was two days for pre-trial Charter motions on March 6 and 8, 2023 and three further days for trial on April 26-28, 2023.

[11] As originally scheduled, this trial would have completed within 17 months and 28 days from the date of the Applicant’s arrest and just within the Jordan timelines. In addition to these dates, the parties have now appeared an additional five times with further additional dates anticipated.

[12] The Charter motions were argued as scheduled and a decision was provided to the parties on April 12, 2023. A section 8 Charter breach was found but evidence was admitted following a s. 24(2) analysis.

[13] On the first scheduled date of the trial, April 26, 2023, the Crown advised that on April 24, 2023 a cellphone belonging to the deceased complainant in this case, Ms. LSJ had finally been unlocked by police. This development led to a significant amount of disclosure being generated in the form an of extraction report from the cell phone. The Crown advised that it amounted to several thousand pages of material.

[14] Between receipt of this disclosure on April 24th and the first date of trial on April 26, 2023, the Crown took all the necessary steps to ensure that the material was appropriately vetted and redacted as required in order to provide this material to defence counsel.

[15] Unsurprisingly, defence counsel required sufficient time to review and consider this material. The matter was adjourned to April 27, 2023 to determine what progress had been made on reviewing materials and whether any progress could be made on the trial. On April 26, 2023, Defence counsel indicated that s. 11(b) may now become an issue in this case.

[16] On April 27, 2023, defence counsel indicated that progress had been made with reviewing the significant extraction report from Ms. LSJ’s phone but more time was required and the trial date scheduled for April 28, 2023 would need to be vacated. However, Crown and Defence agreed that trial witnesses in respect of certain bank records could still be called as anticipated and their evidence was heard on April 27, 2023. Defence counsel indicated that he was still considering his position with respect to any possible s. 11(b) Application.

[17] On April 27, 2023, defence counsel also indicated that he wished to bring an application in respect of proposed Crown evidence regarding the extraction report from the USB and that it was his view that expert evidence was required in order for the Crown to lead this evidence. The Crown opposed defence counsel’s position. Having concluded the available evidence for this day of trial, the matter was remanded to the afternoon of May 15, 2023 for submissions on Defence counsel’s Application in respect of the expert witness issue he had raised.

[18] On May 9, 2023, defence counsel advised the Crown it was his intention to bring a s.11(b) application.

[19] On May 15, 2023, the parties made submissions with respect to the expert evidence issue and Defence counsel advised the Court that the Applicant would be bringing a s. 11(b) Application. That Application was perfected on May 21, 2023. The Respondent filed a response on May 26, 2023.

[20] Further trial dates were secured, the matter was adjourned to May 31, 2023 for a ruling on the Defence expert evidence application, for the continuation of the trial and in anticipation of hearing the s. 11(b) Application.

[21] On May 31, 2023, the matter returned to Court. The expert evidence ruling was provided to the parties. Defence counsel then indicated that there were three issues he wished to address:

i. Defence received additional notes following trial preparation meetings of Crown witnesses; material that defence counsel submitted may change the foundation of the earlier s.8 Charter ruling and defence counsel indicated he would be seeking leave to reopen the Charter ruling on that basis. The Crown opposed this defence submission and the basis for it.

ii. Having received the Crown’s 11(b) Charter materials Defence counsel indicated that he did not accept the factual basis underpinning the Crown’s position with respect to exceptional circumstances in respect of technical challenges in unlocking Ms. LSJ’s cell phone and that he would require specific evidence to be called on this issue. A “Will Say” statement from the relevant officer was requested by defence and agreed to by the Crown that defence indicated he would wish to receive an independent opinion on.

iii. Since the appearance on May 15, 2023, defence counsel received disclosure of a further Cellebrite report in respect of a 2nd phone belonging to Ms. LSJ which he needed to review. The Crown accepted they had this disclosure for quite some time and believed it had previously been provided to defence counsel but accepted that appeared not to have been the case.

[22] June 2, 2023 – Defence counsel acknowledged receipt of the requested “Will Say” statement from the technical officer on May 31, 2023. Defence counsel advised that he received that report the same day it was requested and he had now turned it over to get his own independent assessment of the technical challenges involved. Defence counsel would not, therefore, be able to argue this particular critical component of the 11(b) Application on this day.

[23] Despite the above challenges, further evidence on the trial was heard from officers from the Technical and Intelligence Crimes Units. Further evidence that was to be applied to the section 11(b) was also called.

[24] During this further evidence, defence counsel raised an objection to the admissibility of an online Leolist advertisement with respect to sexual services advertised by Ms. LSJ. Detective Reitsma undertook to provide additional information requested by Crown and defence. The Crown submitted that the relevance of any particular material on this discrete issue could not have crystallized until the objection was raised. The additional information sought was intended to address Defence counsel’s objection and to obviate the need for an application or further legal argument and to expedite proceedings.

[25] June 20, 2023 – Further evidence was heard on the trial proper as well as evidence applied to the section 11(b). Both parties initially indicated that they anticipated arguing the section 11(b) Application on this date.

[26] Defence counsel then advised the Crown and the Court that he anticipated expanding the issues in respect of his Application to re-open the earlier s. 8 Charter ruling. Defence counsel requested that the parties conclude the evidence on the trial proper, then conclude the section 11(b) Application and submissions.

[27] Subject to this, defence counsel indicated he reserved the right to bring an expanded Application on reopening his s. 8 Charter argument.

[28] The balance of evidence of trial was concluded along with evidence to be applied on the section 11(b).

[29] In the afternoon of June 20, 2023, and in the course of an officer’s evidence, Defence counsel brought an application objecting to certain evidence being led on the grounds of hearsay and non-compliance with provisions of the CEA and the parties made submissions.

[30] June 21, 2023 – Evidential ruling provided on defence counsel’s hearsay application.

[31] June 26, 2023 – 11(b) submissions made by the parties.

Positions of the Parties

[32] The Applicant submits that her right to a timely trial had been breached and requests a stay of her criminal charges. Defence counsel for Ms. Fodor submits that there are no exceptional circumstances that arise in this case and the primary cause of delay is late disclosure.

[33] Specifically, he rejects the Crown position that the unlocking of Ms. LSJ’s phone on what amounted to the eve of trial was an event that lay beyond the Crown’s control and submits it was not reasonably unforeseen or unavoidable. Furthermore, counsel submits that this case does not satisfy the necessary threshold of case complexity that would justify any delay and cites a number of authorities that I have reviewed and considered, including R v Cody, 2017 SCC 31 and R v. Zahor, 2022 ONCA 449 and Justice Harris’ decision in R v Belle, [2018] O.J. No. 6809.

[34] The Crown concedes the delay of 1 month and 26 days is presumptively unreasonable and that the onus shifts to the Crown to seek to justify this delay. Ms. Gharabaway submits that the delay in this case is justified by the presence of exceptional circumstances. The Crown argues both a discrete event with respect to the unlocking of Ms. LSJ’s cell phone and the particularly complex nature of this case as it has evolved.

Analysis

[35] Delay caused by discrete exceptional circumstances is not included in the Jordan ceiling count. Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. Providing they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.

[36] In order to rely on such circumstances, the Crown must show that it took reasonable steps to avoid and address the problem where it was possible to have done so. The Crown need not, however, prove that the steps taken were ultimately successful. Nor is the Crown required to “exhaust every conceivable option for redressing the event in question to satisfy the reasonable diligence requirement”.

R. v. Jordan, supra, at paras. 69-71

R. v. Cody, supra, at paras. 44-46; 48, 54

R. v. McManus, 2017 ONCA 188, [2017] O.J. No. 1372 at paras. 40-46

[37] It is obviously impossible to identify in advance all circumstances that may qualify as “exceptional” for the purposes of adjudicating a s. 11(b) application. Ultimately, the determination of whether circumstances are “exceptional” will depend on the trial judge’s good sense and experience. The list is not closed.

R. v. Jordan, supra, at paras. 69 and 71.

[38] In R. v. Jordan, the Court cautioned trial judges to be alive to the practical realities of trials. It is recognized that despite the best efforts of all concerned they are not well-oiled machines immune from external factors and human frailty. Therefore, when unforeseen circumstances arise close to a presumptive ceiling or trial date, courts should bear in mind that it will be more difficult for the Crown and court to respond with a timely solution. For that reason, unforeseeable or unavoidable delays occurring with trials that are scheduled to conclude close to the ceiling will qualify as exceptional circumstances. As previously noted, this trial was originally scheduled to complete in its entirety within two days of the Jordan timeline.

R. v. Jordan, supra, at paras. 73-74

Unlocking of Ms. LSJ’s Cell Phone.

[39] Unlocking this cell phone generated significant material that related to the contents of Ms. LSJ’s cell phone. While the Crown and defence ultimately did not seek to rely on its contents in this case, the Crown rightly accepted that defence counsel was entitled to disclosure of the materials and needed time to review and consider it.

[40] Defence counsel submits that any delay occasioned by this late disclosure cannot be considered as reasonably unforeseen or reasonably unavoidable. The police had the phone for approximately 27 months before they succeeded in unlocking it and defence counsel submits that if daily efforts had been made during this time or extraordinary forensic steps had been taken the situation may well have been different.

[41] Evidence was heard from both Detective Constable (“DC”) Haljaste and Detective Reitsma with respect to the attempts made to unlock Ms. LSJ’s cell phone. DC Haljaste is an officer with the Technical Crimes Unit of the Toronto Police Services (“TPS”) and has been for several years. The officer testified that this particular phone was an older and more basic model and was not one that he and his colleagues had encountered previously or since. The cell phone was locked and password protected. DC Haljaste testified that he did not initially know how many characters were required to be entered in order to unlock the phone and what form these characters may take.

[42] DC Haljaste first attempted to unlock the device in October and November 2021 starting prior to Ms. Fodor’s arrest and as part of the ongoing homicide investigation.

[43] Since the initial attempt to unlock the phone, DC Haljaste made further attempts on the following dates: November 17, 2021, May 10, 2022, January 18, 2023, January 25, 2023, January 25, 2023, February 7, 2023, March 10, 2023, March 29, 2023, March 30, 2023, and finally on April 24, 2023.

[44] Ms. LSJ’s family were also contacted by the police with a view to providing any information that may assist in identifying the password. DC Haljaste testified that the only means by which the phone could be unlocked was if either the passcode, once identified, was manually entered or if a software solution emerged that would enable this particular phone to be ‘cracked.’ He gave evidence that during the relevant timeframe he regularly checked as to whether any new software solutions had emerged that would assist but none were identified prior to April 24, 2023.

[45] When asked in cross examination why he had not taken steps to send the device off to a third-party agency to try and unlock it, the officer indicated that while this had happened in some rare cases, a condition precedent for this was that a third-party agency was identified as having a known potential technical solution to the problem. Despite regular enquiries being made, no such solution had been identified in this case and as such the phone was not shared with any outside agency because there was no basis to support such a decision by the TPS.

[46] On April 24, 2023, the phone was unlocked. The genesis for this final attempt came from Detective Reitsma who had what may be termed a ‘eureka moment’ as she prepared for giving her evidence at this trial. She testified that when she was reviewing some of the documentary materials she noticed that some of the email addresses of the parties involved contained a blend of numeric and non numeric characters. Following this ‘hunch’, she contacted the Technical Crimes Unit with two suggested sequences of numbers that she had harvested from the various email addresses. The first one proved successful in unlocking the cellphone.

[47] Detective Reitsma testified that she had been continually frustrated at the inability to unlock the phone and that she was both hopeful at the prospect of the code she provided unlocking the phone as well as concerned if it did because she knew that success would probably have an impact on the scheduled trial dates.

[48] Defence counsel submits that greater diligence on the part of Detective Reitsma and Tech Crimes would have yielded this result earlier and that the number that was successful had been contained in email addresses that the police had access to for quite some time. He further submits that despite the evidence of the officers, a third-party agency may have been able to assist in the cracking of the phone and that greater efforts on the part of the police Technical Crimes Unit and their colleagues could also have yielded a result earlier than April 24, 2023. I do not agree with Mr. Bytensky and do not find that the evidence of the officers supports that as a reasonable conclusion on the facts of this case.

[49] On the evidence before me, I am satisfied that the delay occasioned by the unlocking of the cell phone was reasonably unavoidable. The police made numerous and repeated attempts throughout the entirety of the time that the phone was in their custody. These included multiple entries on multiples dates, including one set of attempts where more than 20 separate efforts were made on a single day.

[50] The cell phone was a particular model not encountered by the officers in the Technical Crimes Unit previously or since. Despite repeated and ongoing efforts to identify a technological solution to unlocking the phone, none was available. While I appreciate that it is arguable that a greater number of attempts could have been made by the officers, I do not consider the numerous attempts that they did make show a lack of effort on their part nor that they stopped exploring other avenues to solve the problem. To suggest that daily or near daily efforts should have been made is both unreasonable and unrealistic.

[51] It is also apparent from the evidence of the officers that there was no basis to conclude that any 3rd party agency had the identified means to succeed where the TPS had not. While Mr. Bytensky submits that a third-party agency could have assisted in solving this earlier, the officers were clear in their evidence that despite their regular enquiries there was no basis to conclude this was available.

[52] It is tempting to believe that all technical problems must have an obvious solution to them. It is clear that this is not always the case. Ironically, the fact that Ms. LSJ’s cell phone was an older, simpler and less common model meant that there were fewer resources that could be relied upon within the “tech community” to try and unlock its secrets.

[53] Defence counsel is right in pointing out that Detective Reitsma had access to the information that ultimately unlocked the phone for some considerable time. However, this information did not exist in isolation and it is clear that identifying the possibility that some of these alpha numeric characters in the email addresses might work required a deductive leap that technology alone could not assist with.

[54] The courts have long recognized that no case is an island to be treated as if time and resources were unlimited. Detective Reitsma testified that despite the numerous previous efforts made to unlock the phone, she only made this particular connection when preparing herself for trial. Preparing for an imminent trial typically focuses the minds of all the parties involved in a particular way. This is not to say that police, or Crown or defence counsel are not required to be diligent throughout their journey up to the point of trial. They clearly are.

[55] Defence counsel submits this connection could have been made far earlier by the police. In fairness to the officer, I believe such a conclusion relies heavily on the benefits of hindsight. The fact that Detective Reitsma ultimately ‘cracked’ the code as late as April 24th does not appear to have occurred for want of trying. Indeed, it is a challenge to which she and her colleagues frequently returned.

[56] I am satisfied that while it is theoretically possible that this connection could have occurred earlier, it was not unreasonable for it to occur when it did. As anyone who has wrestled with a crossword or other puzzle can attest, despite regularly turning your mind to the problem, inspiration can strike at any time or sometimes not at all. I find that the fact that Ms. LSJ’s phone was unlocked on April 24, 2023 is the type of circumstance contemplated in Jordan that is reasonably unforeseen and reasonably unavoidable.

[57] While ultimately neither party appears to have relied upon this disclosure in these proceedings it is to the credit of both Crown and Defence that given their respective efforts, relatively little delay was actually occasioned as a direct result of this late disclosure although it did trigger tipping the case over the 18-month threshold which is obviously significant.

Case complexity

[58] While I have found exceptional circumstances surrounding the unlocking of the cell phone, that does not dispose of the issue of delay in this case. The one month and 26 days of delay in this case is not principally due to this particular issue.

[59] The Crown submits that it is open to the court to consider that this case has exceeded the original and realistic time estimates agreed upon by counsel and that this should be deemed a discrete event.

R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 at paras. 30, 73

[60] I need to determine whether the case before me is particularly complex such that the time the case has taken to the point of this Application is justified and the delay is reasonable.

[61] The Court in Jordan stated that “If the trial goes longer than reasonably expected – even where the parties have made a good faith effort to establish realistic time estimates – then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance.

R. v. Jordan, supra, a para. 73

[62] Complex cases are those that because of the nature of the evidence or issues, require an inordinate amount of trial or preparation time such that the ensuing delay is justified. Complexity does not entail stand-alone deductions. Instead, once relevant deductions for defence-caused and discrete events are made, a qualitative assessment will be undertaken to determine whether the complexity of a case overall justifies additional time to trial above the ceiling.

[63] Whether complexity in the evidence or issues that arise in the case justifies the time to trial is “a determination falling well within the trial judge’s expertise.” However, deference to that factual determination is premised on the requirement that the exception be interpreted correctly as a matter of law.

R. v. Majeed, [2019] O.J. No. 2610 at paras. 10-11

Ontario (Ministry of Labour) v. Nugent, [2019] O.J. No. 6425 at paras. 24-28

[64] In determining whether a case is particularly complex, the court must look at the entirety of the case, from start to finish. Simply because a case may seem relatively easy to present at trial does not mean that, in the early stage, it was not complex.

R. v. Jordan at para. 77

[65] It also logically follows that simply because a case may seem relatively easy to present at trial does not mean that in the later stage it was not complex too. This appears to have increasingly become the reality in this particular case.

[66] Particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, requires an inordinate amount of trial or preparation time such that the delay is justified. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time.

R. v. Picard 2017 ONCA 692, 137 O.R. (3d) 401 at paras. 53-55, 62

R. v. Cody, supra, at para. 64

R. v. Jordan, supra

[67] Complexity of the case “as a whole” refers to the entirety of the prosecution, not the state of the prosecution at day one of trial. It is a legal error to fail to consider the complexity at the outset of a prosecution (for example, as it relates to the extent of the disclosure, the time needed for narrowing of issues in the context of the continuing JPT’s and settlement upon agreed facts) as such factors add to the time required to get the matter to trial.

R. v. Picard, supra, at para. 40

R. v. Houle, 2017 ONCA 772, [2017] O.J. No. 5170 at paras. 67-72

R. v. Lopez-Restrepo, 2018 ONCA 887, [2018] O.J. No. 5873 at paras. 36-38

[68] Case complexity is not a sole proprietorship; the exclusive business of the Crown. Where the defence’s approach to the litigation injects a degree of complexity to the proceedings, these factors are also relevant to the reasonableness of the delay.

R. v. Faulkner, 2018 ONCA 174, [2018] O.J. No. 1045 at para. 178

[69] A finding that the overall time to trial is justified on the basis that the case is sufficiently complex ends the inquiry. Where the delay is found to be reasonable relative to the complexity of the case there will be no stay.

R. v. Jordan, supra, at para. 80

[70] Mr. Bytensky submits that this case cannot be considered particularly complex and argues that if this case is considered complex then so too would most other cases before the courts.

[71] Notwithstanding the multiple additional appearances beyond those originally scheduled, defence counsel legitimately draws attention to the limited number of overall witnesses called in this case and the concessions made by defence counsel to streamline and expedite the proceedings.

[72] Defence counsel argues that this is a relatively straightforward Human Trafficking case. It does not have multiple accused, a large number of witnesses or significant requirements for expert evidence. While voluminous disclosure has been a feature in this case, it has not formed part of the evidence in the trial, although its disclosure and review were required by both parties.

[73] Defence counsel submits that despite considerable diligence on the part of the Crown and the police once the trial had started this is really an example of “too little too late” and that these efforts should have been applied sooner.

[74] Defence counsel draws attention to the fact that in Jordan, the Court held that ‘a typical murder trial will not usually be sufficiently complex to comprise an exceptional circumstance.’ and accurately distinguishes some of the cases that the Crown has provided from the facts of this case.

[75] Defence counsel legitimately point to the further issue of late disclosure that emerged in court on May 31, 2023. Shortly before this appearance, the Crown had provided defence with the cell phone extraction report of another of Ms. LSJ’s cell phones. This disclosure had been in the possession of the Crown for some considerable time and the Crown was under the mistaken belief it had already been provided to defence counsel. It had not.

[76] This was further disclosure which, once again, although it was not relied on by the parties, clearly necessitated defence counsel reviewing and considering it. It is unfortunate that this disclosure was provided late and in the context of this particular case it added an unwelcome and unnecessary additional element.

[77] The Crown submits that even if disclosure was not a factor in this case, this trial would not have completed in the allotted time and that the nature of the issues raised by the Applicant has taken a prosecution that initially may not have appeared to be especially complex and turned into an involved and complex one.

[78] In R. v. Robinson, Justice Akhtar concluded that there were exceptional circumstances in the complexity of a human trafficking case. Although the case complexity included multiple accused, there were also a number of pre-trial motions relating to evidentiary issues, extraction of a cell phone and voluminous disclosure. The Crown submits that those are similar features to the case at bar.

R. v. Robinson, [2021] O.J. No. 1796 at paras. 107, 113-114, 119-120

[79] The following issues so far have been raised by the Applicant and addressed and/or ruled upon by the Court:

i. Whether the Applicant’s ss. 7, 11(e) and 11(f) Charter rights were violated by the press release. Although this application was ultimately abandoned on the first day of scheduled argument, materials were still prepared and submitted by both parties and reviewed by the Court.

ii. Whether the interviews conducted by the police with the Applicant as a witness in respect of the homicide violated the Applicant’s ss. 7 and 8 rights. Although this application was ultimately abandoned on the first day of scheduled argument, materials were still prepared and submitted by both parties and reviewed by the Court.

iii. Whether the Applicant’s s. 9 rights were violated when she was arrested.

iv. Whether the USB seized by the police in conjunction with a homicide investigation constituted an “electronic device” and whether this item, along with several others, was seized in violation of the Applicant’s s. 8 rights.

v. Whether the tech crimes civilian who extracted the information from the USB seized by the police needed to be qualified as an expert to give evidence at the trial proper.

vi. whether proposed adverts from the Leolist website complied with the provisions of the Canada Evidence Act and whether they were inadmissible hearsay.

vii. seeking an independent opinion of the technological challenges involved in unlocking Ms. LSJ’s cell phone.

[80] Defence counsel has also given notice that subject to the outcome of this 11(b) Application, he will seek to reopen the earlier s. 8 Charter ruling on this case.

[81] On June 20, 2023, the Applicant also advised that he did not fulsomely advance an argument that he believes may have impacted the Court’s analysis on the Charter application heard on March 6 and 8, 2023.

[82] The Applicant’s position is that subject to this 11(b) Application, further dates will be needed in order to seek leave to advance and to amplify further Charter submissions.

[83] I accept that at first blush this case does not possess the hallmarks of ‘particular complexity’. It focuses on only one accused, and I accept that it has not involved a large number of witnesses and nor, in light of my earlier ruling, has it required expert evidence.

[84] However, the genesis of this case and its constant accompaniment has been the homicide case with respect to Ms. LSJ’s death. While they are distinct cases there have been significant points of overlap given Ms. LSJ’s connection with both cases. This duality has inevitably added to the complexity of what may otherwise have initially been a more straightforward human trafficking case.

[85] I do accept that a feature of this case has involved voluminous disclosure as well as overlapping investigative requirements that have been inextricably linked to the homicide case. I am also mindful of the guidance provided in Jordan and referenced previously that

“in determining whether a case is particularly complex, the court must look at the entirety of the case, from start to finish. Simply because a case may seem relatively easy to present at trial does not mean that, in the early stages it was not complex.”

R. v. Jordan at para. 77.

[86] It is acknowledged that trials have generally become longer and more complex in nature, this general consideration is accommodated within the established Jordan timelines and the timelines exist for good reasons and to ensure that trials occur within a reasonable timeframe. The remaining question for me in this 11(b) Application is whether this particular case has assumed a complexity that justifies the presumptively unreasonable delay that the parties agree exists.

[87] Separate and apart from the initial Charter Applications, since the start of these proceedings counsel for the Applicant has brought a number of applications and raised a number issues that have impacted on both the originally scheduled trial dates and the further scheduled ones. Some of these issues were multi-layered or possessed an organic nature and with some justification the Crown submits that “the yardstick in this case just keeps moving.”

[88] It must be acknowledged that part of this evolving trial landscape was as a result of the late disclosure on the part of the Crown. This is the case both whether that was justifiable, as in the case of the locked cell phone, or less justifiably in the case of the second cell phone.

[89] Mr. Bytensky submits that if much of the litigation in this case appears to have been ‘on the fly’ that is because there has been late disclosure ‘on the fly since this trial started.

[90] While I agree that this may in part be true, in my view, it does not represent the entirety of the reality in this case although I recognise that defence counsel was extremely diligent in his response to the late disclosure issues.

[91] The increasingly complicated and varied landscape that evolved once this trial started makes it extremely difficult to point to one particular event that was single-handedly responsible for a particular period of delay once the trial started. For example, I am not able to conclude that the delay of some 18 days following the late but unused disclosure in respect of the second cell phone was solely, or even principally, due to the issue of late disclosure.

[92] At the same time as this additional disclosure was provided, defence counsel had sought an independent opinion on the technical feasibility of cracking the locked cell phone and did not have a response to that inquiry and had also brought an Application seeking an evidentiary ruling from the court on the admissibility of certain evidence. Submissions by both parties only concluded at the end of that particular court day and required and subsequently received a written ruling.

[93] It is important to emphasise that defence counsel was perfectly entitled to bring these various applications. None were frivolous or vexatious. A vigorous and professional defence is a vital ingredient of the adversarial trial process. No counsel should be discouraged from bringing appropriate applications. However, advancing a series of Applications in a trial with an increasingly complex tapestry inevitably has practical consequences for the time management of that trial and that reality cannot be ignored.

[94] As previously indicated, the Court in Jordan stated that “If the trial goes longer than reasonably expected – even where the parties have made a good faith effort to establish realistic time estimates – then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance. R. v. Jordan, supra, a para. 73

[95] While I am in no way critical of defence counsel, I do find that the reality is that the defence approach to the litigation in this case once the trial started did inject a degree of complexity that impacted the proceedings.

[96] The result of the proximity of this case to the original Jordan threshold was that it took very little to tip this particular case over the presumptive threshold. On the consent of the parties, the sole focus of this Application and the balance of submissions in this case has been whether exceptional circumstances have been established by the Crown in this case on the basis of either a discrete event or case complexity or both.

Conclusion

[97] For the reasons I have given above, I find that the delay cased by the unlocking of the cell phone amounted to exceptional circumstances. While this created some delay in excess of the presumptive threshold it did not result in much of the presumptive delay in this case.

[98] I am also satisfied that the Crown has established that there was a requisite degree of complexity that emerged in this trial that has justified the one month and 26 days in excess of the presumptive threshold and that in this particular case this delay is not markedly excessive delay or unreasonable.

[99] Accordingly, for the reasons set out above, the Application for a stay of proceedings is dismissed.

Released: July 19, 2023

Signed: Justice Michael Waby