ONTARIO COURT OF JUSTICE

CITATION: R. v. Harrison, 2023 ONCJ 392

DATE: 2023 09 14

COURT FILE No.: Pembroke 21-1628

BETWEEN:

HIS MAJESTY THE KING

— AND —

SHAUN HARRISON[^1]

RULING RE SECTION 11(B) APPLICATION

Before Justice J.R. RICHARDSON

Heard on June 26, 2023, August 17, 18, 2023

Reasons for Judgment released on September 14, 2023

Lori Crewe[^2].......................................................................................... counsel for the Crown

Celine Dostaler................................................................................ counsel for the accused

RICHARDSON J.:

Introduction

[1] For many years, the military justice system has been criticized as being hostile toward complainants, ineffective and unfit in dispensing justice, particularly in cases of sexual assault and sexual harassment.

[2] In this case, charges were originally laid against Mr. Harrison on March 29, 2021 under the military system. Those charges were withdrawn on December 21, 2021 and a new information in this Court was laid on December 23, 2021.

[3] After some initial dispute in the argument, the parties now agree that the time in the military justice system should be included in the section 11(b) calculations.

[4] Thus, the Jordan timeframe for trial in the Ontario Court of Justice, expired on September 28, 2022.

[5] The evidence and argument in this case was scheduled to end on August 31, 2023, a delay of some 29 months and two days.

[6] The Crown contends that the delay can be attributed as follows:

a) the period during which the case was before the military justice system, between March 29, 2021 and December 21, 2021 should be deducted as an exceptional circumstance, given the results of the Interim Arbour Report, which recommended that cases involving sexual offences should be transferred to the civilian court; and

b) a five month period should be deducted due to backlog as a result of COVID-19.

[7] The defence argues that the delay is presumptively unreasonable in that it greatly exceeds the 18 month ceiling set in R. v. Jordan.

[8] For the reasons that follow, I have reluctantly determined that Mr. Harrison’s rights under section 11(b) of the Charter have been violated and the only remedy available is a stay of proceedings. This decision, but not the reasons for it, was communicated to the parties in Court on August 18, 2023.

Facts

[9] It is common ground that the charges in this case are very serious. At the time the allegations arose, Mr. Harrison was a member of the Canadian Forces, serving at Garrison Petawawa. The complainant was also a member of the Canadian Forces. She alleged that she had fallen asleep beside Mr. Harrison after a night of consuming alcohol and THC gummies. The complainant woke up to Mr. Harrison grabbing her breasts. She told him to stop and then fell back asleep. She woke again and realized her pajama pants were pulled down. Mr. Harrison was thrusting his penis into her bare buttocks. She completed a sexual assault examination kit and a DNA sample taken from her underwear cannot be excluded as belonging to Mr. Harrison.

[10] Notwithstanding the complainant reported the incident on April 29, 2020, the military police investigated and conducted further interviews in August 2020. A report regarding the DNA sample was apparently available as of October 16, 2020.

[11] On March 29, 2021, exactly eleven months after her initial report, the military police charged Mr. Harrison with one count of sexual assault under section 130 of the National Defence Act. How and why it took the Military Police eleven months to investigate this matter and commence the prosecution in the military system, would seem to be beyond belief.

[12] On September 17, 2021, the charge was “preferred”.

[13] On November 5, 2021, a Convening Order for General Court Martial was issued. A trial date in the military system was set for February 28, 2022.

[14] On December 21, 2021, the military charges were withdrawn.

[15] On December 23, 2021, Mr. Harrison was charged under the Criminal Code in the Ontario Court of Justice.

[16] On February 16, 2022, defence counsel requested disclosure.

[17] On March 9, 2022, defence counsel filed an Enhanced Designation. Defence followed up on their disclosure requests.

[18] On March 15, 2022, Mr. Harrison had his first appearance. The matter was adjourned to June 7, 2022 pursuant to the Enhanced Designation.

[19] On March 24, 2022, defence counsel received disclosure.

[20] On March 30, 2022, defence counsel scheduled a Counsel Pretrial.

[21] On April 25, 2022, the Counsel Pretrial took place. Defence counsel requested additional disclosure. Defence counsel alerted the Crown of the potential for a section 11(b) Charter issue in this case. By email dated April 25, 2022, defence counsel stated, in part, “Further to our discussion this morning, I wished to advise that I foresee 11b/delay issues to be a live issue in this trial.”

[22] On May 2, 2022, defence counsel sought a Judicial Pretrial. When later dates were offered by the trial coordinator, defence counsel stated by email, which was copied to the Crown, “Although the information is dated 2021, there will be delay issues because he was charged through the military police in 2020. Would there be a way to have a JPT before August?”

[23] The Administrative Assistant in the Crown’s office agreed stating, “Sorry for the confusion but this is a matter that should be prioritized….” The parties were then given a JPT date of May 16, 2022.

[24] On May 16, 2022, the Judicial Pretrial took place. Counsel sought trial dates. By email, defence counsel stated: “We would be looking for 1-2 days for the 11b argument and a further 6-7 days of trial. The first days for the 11b should be approximately 90 days before the trial commencement.”

[25] The Crown agreed, stating:

“We had a JPT this afternoon in this matter. Justice March asked us to arrange dates via email rather than list it for a trial scheduling conference. I think he was going to speak to you about this matter as it has delay issues in it that are not apparently from the date upon which the CCC information was sworn in the civilian system. It was pending in the military justice system before being “transferred here.”

[26] By email exchanges between May 17, 2022 and May 25, 2022, the following dates were offered and agreed to.

Date Offered by the Court	Crown Available	Defence Available
June 22, 2022	Yes	No
June 23, 2022	Yes	No
July 12, 2022	No	Yes
July 14, 2022	No	Yes
July 15, 2022	No	No
September 14, 2022	Yes	No
September 26, 2022	Yes	No
September 28, 2022	Yes	No
September 29, 2022	Yes	No
May 4, 2023	No	No
May 12, 2023	Yes	Yes
June 26, 2023	Yes	Yes
June 28, 2023	Yes	Yes
August 1, 2023	Yes	No
August 17, 2023	Yes	Yes
August 18, 2023	Yes	Yes
August 21, 2023	Yes	Yes
August 23, 2023	Yes	Yes
August 29, 2023	Yes	Yes
August 30, 2023	Yes	Yes
August 31, 2023	Yes	Yes
September 1, 2023	Yes	Yes
September 15, 2023	Yes	Yes
September 21, 2023	Yes	Yes
September 22, 2023	Yes	Yes
September 29, 2023	Yes	Yes

[27] There is no evidence as to why Crown and defence were not available on some of the dates that were offered. I will discuss the importance of this lack of evidence in greater detail below.

[28] By email dated May 25, 2022, the trial coordinator confirmed the following dates:

April 4, 2023 at 11:00 am for trial confirmation

May 12 and June 26, 2023 for Section 11(b) application

August 17, 18, 21, 23, 29, 30 and 31, 2023 for trial.

[29] On June 7, 2022 those dates were confirmed before Justice March. He stated:

All right, so for the record them, I’ll adjourn the matter of Shaun Harrison to the 4^th of April 2023 at 9:30 am in the trial confirmation court. And I’ll task the Crown and defence counsel with respecting their Jordan obligations, looking at ways we can get this matter on for earlier dates for trial so that the 11(b) application can be avoided if at all possible. [Emphasis mine]

[30] At some point after June 7, 2022, the matter was reassigned from Assistant Crown Attorney James to Assistant Crown Attorney Lecorre.

[31] Despite Justice March’s admonition to counsel respecting their Jordan obligations, it appears as though there was complete silence from both Crown and Defence about the issues in this case until March 2023.

[32] On March 15, 2023, Assistant Crown Attorney James emailed Assistant Crown Attorney Lecorre, with a copy to defence counsel. The email suggested that Mr. Lecorre should speak with defence counsel and conduct a fresh Counsel Pretrial. Mr. Lecorre responded by providing defence counsel his contact number.

[33] It appears as though the parties did speak by telephone on March 23, 2023.

[34] On March 24, 2023, defence counsel renewed her request, originally sent by email on April 25, 2022, for disclosure with respect to “the reason for transfer from one system to another.”

[35] On March 28, 2023, defence counsel filed the section 11(b) application.

[36] On April 4, 2023, the matter was set for confirmation hearing before me. Duty counsel addressed the matter on behalf of defence counsel. He indicated that defence counsel had filed a section 11(b) application and that he was confirming May 12, 2023 for the 11(b) application. Duty counsel stated that defence counsel was waiting for the Crown’s reply. Ms Calamai, appearing on behalf of the Crown, indicated that there were notes in the Crown file that the 11(b) factum had been received.

[37] I confirmed the 11(b) application dates and the trial dates above.

[38] On May 10, 2023, the matter came up before me during the discussion of another file. Defence counsel complained that the Crown had not responded to the 11(b) application. She stated, “I’ve whispered to the Crown every time that I’ve seen him in Court to – to ask where it is. He’s indicated to me, “it’s coming, it’s coming””.

[39] She further advised that originally the Crown advised that they intended to call evidence on the Application but she had now received word that was not going to happen.

[40] Mr. Morris, who was appearing for the Crown, indicated that he was aware the assigned Crown (Mr. Lecorre) was leaving the office[^3].

[41] The matter was addressed before me again on May 11, 2023.

[42] Mr. Lecorre indicated that the Crown was going to be filing its materials that day and would be ready to argue the matter on May 12, 2023. Mr. Lecorre indicated that the Crown did not intend to call evidence on the 11(b) application. He stated that the Crown’s position was that the time in the military system was pre-charge delay. When I challenged him on this, he stated that this would be covered in his materials. Defence counsel, Ms Dostaler, complained that this was not sufficient time for her to review the materials and respond.

[43] I agreed with her, vacated the May 12, 2023 date and ordered the 11(b) application to be heard on June 26, 2023.

[44] After May 12, 2023 but before June 26, 2023, the file was again reassigned because Mr. Lecorre left the Crown Attorney’s Office.

[45] On May 12, 2023 at 1:54 pm, Mr. Lecorre filed the Crown’s responding materials.

[46] On June 12, 2023 at 10:55 am, defence counsel filed a Reply to the Crown’s material.

[47] On June 19, 2023 at 10:21 am, the newly assigned Crown, Ms Crewe, filed an addendum to the Crown’s Factum.

[48] On June 23, 2023 at 7:43 am defence counsel filed a Reply to the Crown’s addendum.

[49] On June 26, 2023, I heard the 11(b) argument, including evidence from the defence witness, Captain Da Cruz. I reserved to July 20, 2023.

[50] On July 20, 2023, I indicated that the decision was not ready and I adjourned to August 8, 2023.

[51] On August 8, 2023, I indicated that the decision was not ready and I adjourned to the first day of the trial, August 17, 2023.

[52] On August 10, 2023, I wrote the parties to indicate that I was concerned that the Crown had conceded that there was no defence delay, when in fact, much earlier trial dates were offered by the Court and refused by defence. I asked the parties to consider the decisions of the Supreme Court in R. v. Hanan 2023 SCC 12 and R. v. Boulanger 2022 SCC 2. I also vacated the first and second dates scheduled for trial – August 17 and 18 – in order to receive their argument and make a decision on the Application.

[53] On August 17, 2023, I heard additional argument concerning Defence delay.

[54] On August 18, 2023, I indicated that for reasons I would later release, the Application was allowed and the charges were stayed. These are those reasons.

Analysis

The Jordan Framework

[55] In R. v. Zahor 2022 ONCA 449 at paragraphs 60 through 78, Justice Coroza of the Court of Appeal set out the approach to be taken by the court to the Jordan framework which is applicable in this case[^4]:

[60] In evaluating an application made under s. 11(b) of the Charter, a court must identify and characterize the periods of delay occasioned throughout the trial. This requires an application of the Jordan framework, consisting of the following steps.

[61] 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: Jordan, at para. 47.

[62] Step 2: Calculate the net delay. Net delay is calculated by subtracting defence delay from the total delay: Jordan, at para. 60. Defence delay is subtracted because “[t]he defence should not be allowed to benefit from its own delay-causing conduct”: Jordan, at para. 60. There are two types of defence delay, each of which must be considered and, if present, subtracted.

[63] 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: Jordan, at para. 61.

[64] 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: Jordan, at para. 66. This includes tactical choices that delayed the trial, such as frivolous applications and requests, and also includes periods of time during which the court and the Crown are prepared to proceed but the defence is not: Jordan, at paras 63-64.

[65] Defence delay does not include legitimate actions taken by the defence to respond to the charges, such as taking time to prepare, as well as non-frivolous applications and requests: Jordan, at paras. 64-65 This court has also suggested that defence delay does not include defence actions taken in response to negligent Crown conduct, such as late disclosure, even where such conduct is not deliberate: see e.g., R. v. Pyrek, 2017 ONCA 476, 349 C.C.C. (3d) 554, at paras 19-22; R. v. D.A., 2018 ONCA 96, 402 C.R.R. (2d) 303. at paras. 20-22.

[66] 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 and 30 months for cases tried in the superior court: Jordan, at para. 46. 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: Jordan, at para. 105.

[67] 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: Jordan, at para. 69.

[68] The Crown must do more than simply identify difficulties in conducting a timely prosecution. The Crown must demonstrate that it took reasonable steps – even if ultimately unsuccessful – to circumvent and adapt to problems before the delay exceeded the presumptive ceiling: Jordan, at para. 70; R. v. Morash, 2021 ONCA 335, 405 C.C.C. (3d) 468, at para. 12.

[69] In general, the Crown may satisfy its onus by relying on two categories of exceptional circumstances, being discrete events and particularly complex cases: Jordan, at para. 71. The Crown cannot rely on anything beyond exceptional circumstances to discharge its burden; not the seriousness of the offence, nor the absence of prejudice, nor institutional delay: Jordan, at para. 81. Absent exceptional circumstances, the Crown will not be able to satisfy its burden, and a stay will be entered: Jordan, at para. 47.

[70] Step 4(a): Consider discrete exceptional circumstances. Discrete exceptional circumstances are unexpected and uncontrollable happenings which lead to delay: Jordan, at para. 73. 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: Jordan, at para. 75.

[71] Discrete events include, for example, medical emergency or illness of criminal justice system participants, recanting witnesses, and elongated trials despite good faith timeline estimates: Jordan, at paras. 72-73; R. v. MacIsaac, 2018 ONCA 650, 141 O.R. (3d) 721, at para. 44.

[72] 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: Jordan, at paras. 75-77.

[73] Step 4(b): Consider complexity. The remaining delay may be justified by the Crown where the case is “particularly complex”: Jordan, at para. 77. 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: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 63, referring to Jordan, at paras. 42, 53.

[74] Unlike the consideration of discrete events, an assessment of particular complexity engages a qualitative analysis: Cody, at para. 64. That is, 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: Cody, at para. 64.

[75] 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: Jordan, at para. 47. However, for charges that were laid before the release of Jordan, the court must go on to determine whether the delay has been justified by the Crown as a result of transitional considerations, which is a third type of exceptional circumstance: Jordan, at para. 96; Cody, at paras. 46, 67.

[Emphasis Coroza, J.A.’s]

Step 1 – Calculate Total Delay

[56] The parties agree that March 29, 2021, the date that the charge (the Record of Disciplinary Proceeding – sometimes elsewhere referred to as either the “RDP” or the “ROD”) was initiated in the military system represents the date for the commencement of the Jordan period. Notwithstanding Justice Doherty’s suggestion in R. v. KE 2013 ONCA 175 at paragraph 21 that “[i]t may well be open to question whether the commencement date should have been ….later, …., when the appellant was charged with the offence in the civilian courts before which he was ultimately tried.”, that issue was not argued before me.

[57] For good reason.

[58] All of the cases which I was directed to pre- and post-Jordan are consistent on this point: R. v. Elliott 2010 ONSC 4147; R. v. Ward 2015 ONSC 83; R. v. White 2020 O.J. No. 6111 (O.C.J.); and R. v. Wiafe, an unreported decision of Justice Jaffe in Brampton given on September 25, 2020.

[59] In R. v. Desjardins 2023 ONCJ 244 at paragraphs 33 through 35, I discussed the methods of calculating the 18 month Provincial Court ceiling in Jordan. I will not repeat that analysis here.

[60] Following both methods, the deadline for concluding the case was September 28, 2022.

[61] When the case was argued before me in in June, it was scheduled to be completed August 31, 2023, which is some 885 days or 29 months and two days after the date that the ROD/RDP was laid[^5].

Step 2 – Calculate Net Delay

Step 2(a) – Subtract Delay Waived by Defence

[62] There is no delay that was waived by defence.

Step 2(b) – Subtract Delay that Lies at the Feet of the Defence

[63] There is delay that lies at the feet of defence however. As set out in paragraph 25 above, defence was offered to have the trial proceed on June 22, 23 and September 14, 26, 28 and 29. All of these dates are dates that the Crown and the Court were available.

[64] The issue that I must decide therefore, is whether all or a portion of the period of delay between these dates and the end of the evidence and submissions in the trial (scheduled for August 31, 2023) falls at the feet of defence.

The Law with Respect to Defence Delay

[65] Defence counsel argued at paragraphs 36 through 41 in her factum that there was no defence delay. Surprisingly, in my view, at paragraph 20 of Mr. Lecorre’s factum, the Crown conceded that this was the case.

[66] In the course of writing this judgment, I raised this again with both counsel by letter dated August 10, 2023 and I asked them to appear before me on August 17, 2023 to make submissions on the issue. My concern was driven by the Supreme Court’s decision in R. v. Hanan, supra, which was released on May 5, 2023 and its earlier decision in R. v. Boulanger, supra.

[67] These cases make it clear that I am not bound by the agreements or concessions of the parties when it comes to apportioning delay, which is a question of law.

[68] In argument, defence counsel continued to assert that the defence was not responsible for this delay. First, defence counsel asserted that the first offered date of June 22, 2022 was properly declined because it was too soon to properly prepare.

[69] I was not provided with any evidence as to whether defence counsel was otherwise available for the June dates and preparation time was the only issue.

[70] Secondly, defence counsel asserted that it was not responsible for any of the delay as a result of declining the four dates in September 2022 because the case required six days for trial and the Court could not offer two acceptable continuation dates until May 12 and June 26, 2023.

[71] I was not provided with any evidence as to why those September dates were declined by defence.

[72] One of the issues in Hanan was whether a period of approximately five months should be attributed to defence because the Crown and the Court were available for earlier dates, but the defence was not available. The trial judge held that the defence was responsible for only six weeks of this delay because the Court could not accommodate the trial.

[73] The majority of the Court of Appeal, led by Justice van Rensburg, 2022 ONCA 229 stated at paragraphs 56 through 59:

[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.

[57] In some cases, it may be appropriate to attribute all of the delay to the defence: see, for example R. v. McManus, 2017 ONCA 188, 353 C.C.C. (3d) 493, at para. 33, and R. v. Baron, 2017 ONCA 772, 356 C.C.C. (3d) 212, at para. 48, where in each case the defence requested an adjournment at the last minute of a multi-day hearing and the next available date was several months later. In these cases, there was no question that the defence caused the event that precipitated the need for new dates. This is delay “solely or directly” caused by the defence.

[58] In the present case, however, a six-week jury trial had been scheduled for November 2018 when the matter first arrived in the Superior Court in January 2018, after specific consideration of when the Jordan threshold would be exceeded (February 2019). A last-minute adjournment was required because of the unexpected refusal of the surviving victim to testify, and the Crown’s late disclosure of the cell phone data. The appellant offered to re-elect to avoid losing the original trial dates, and the Crown refused. Through significant efforts, including an adjustment to the trial judge’s schedule, the court was able to offer a six-week period commencing on June 3, 2019 for the trial. Defence counsel was already scheduled for another matter, so the trial was scheduled to proceed on the next available dates in October 2019. In these circumstances, the defence was only the “direct or sole” cause of the six-week delay starting June 3, 2019, because during this period the Crown and the court were ready to proceed and the defence was not. However, after that six-week period, there was no availability in the court schedule until October 28. The trial judge took the correct approach in concluding that this was not defence delay because the court was unable to accommodate the trial sooner.

[59] The trial judge, in determining what portion, if any, of the delay between June and October 2019 should be attributed to the defence, applied an appropriate contextual approach that is faithful to Jordan. The trial judge’s refusal to attribute more than six weeks to the defence was, in the circumstances of this case, a fair allocation and entirely appropriate, considering that it was the trial adjournment that resulted in the need for new dates, and the court had no other dates available between June and October 28, 2019. In the circumstances, it would not have been “fair and reasonable” to characterize as defence delay the remaining months when the court could not accommodate a trial. This was not delay that was “solely or directly” caused by the defence.

[74] Justice Nordheimer, who dissented on other grounds, agreed with the majority on this point. He stated at paragraphs 136 and 137:

[136] I am also prepared to agree with my colleague’s treatment of the second period of delay starting on June 3, 2019. Like my colleague, I reject the Crown’s contention that the entire period of the delay between the two trial dates should be attributable to the defence. In so agreeing, however, I should not be taken as agreeing with the deduction of the six-week period when defence counsel could not proceed because of another trial commitment. In my view, that deduction is not consistent with the decision in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, where Cromwell J. said, at para. 23:

Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability … “To hold that the delay clock stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable.” [Emphasis added by Nordheimer, J.A.]

[137] In this case, defence counsel had another trial set for that timeframe involving a client who was in custody. It is the antithesis of reasonable cooperation to hold that defence counsel, who is otherwise scheduled for trial, must essentially abandon another client in order to take a re-scheduled trial date, or face the consequence that the resulting delay will be attributed to the defence. However, as the appellant did not take issue with the deduction of this six-week period in this case, it is unnecessary to resolve the issue, notwithstanding that the Crown took issue with the whole period of delay and its proper attribution. [Emphasis mine].

[75] I pause here to note that in the case before me there is no evidence as to why defence was not available and the dates were declined.

[76] When Boulanger reached the Supreme Court, the Court unanimously agreed with the Court of Appeal, noting at paragraph 9 that there is no ““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….. 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.

[77] In Boulanger, the Court held that defence was responsible for half of the 112 day period where the Crown and the Court were available but it was not. Boulanger involved a case where “in addition to the conduct of defence counsel and the prosecution’s changes in strategy, it was because of institutional delay and the court’s lack of initiative that no other date was offered sooner” (at paragraph 9). Justice Kasirer stated at paragraph 10:

In the particular circumstances of this case, we are of the view that it is “fair and reasonable” to apportion responsibility for the 112‑day delay and to attribute up to half of the delay between June 1, 2019 (the day after the last date on which counsel for the respondent was unavailable) and September 10, 2019 (the actual date on which the trial continued) to the defence (R. v. K.J.M., 2019 SCC 55, at para. 96). Even calculating from this premise, since the total delay between these two dates is 101 days, we attribute 51 days (June 1 to July 22, 2019) to the defence.

[78] In R. v. Qureshi 2023 ONCJ 189, [2023] OJ 1903 (OCJ), Justice Duncan held that defence was responsible for a 144 day period between dates that the Court and Crown were available (but defence was not) and the ultimate end of the trial. He rejected the defence argument that the Crown should carry some responsibility for this delay because of the failure to offer earlier dates. He stated at paragraphs 31 through 34:

[31] The defence argues that there was an "additional cause" in this case in that the Crown did not seek to reschedule this case until December 2022 when it had been known and discussed between counsel as early as July and September 2022 that delay was a problem.

[32] It is not known why there was this delay. It may have been that there simply were no available dates to offer before December (when four additional judges were appointed to Brampton). But even if the Crown inaction was the result of a less benign explanation, its impact was on delay that occurred before the offer of dates on December 16. It did not cause or contribute to delay after the March dates were declined due to defence counsel's unavailability.

[33] Beyond that, this is not a case where it could be considered unfair to saddle the defence with all of the delay. Counsel's unavailability was not an isolated instance but rather continued over the intervening months to the trial dates that were eventually set. Seven sets of earlier dates were offered and declined.

[34] I conclude that the time between March 13 and August 4 2023 is deductible defence delay.

[Bold face emphasis Duncan, J’s; underlining emphasis mine]

[79] In R. v. Qureshi (No.2), 2023 ONCJ 202, Justice Duncan reconsidered his earlier decision in in light of the Supreme Court’s judgment in Hanan. He reconciled the decisions in Hanan and Boulanger in this way:

[15] Both Courts emphasized that there are no bright lines; that each case turns on its particular circumstances and a contextual approach is required. Cases that fall along the entire spectrum can arise depending on the circumstances. Examples given by the Court of Appeal endorse some situations where all of the delay following unavailability can be characterized as defence delay (see C of A para 57) and other cases where only those dates actually offered and rejected will be defence delay (as in Hanan itself).

[16] Both Courts focussed on whether the defence refusal of a date was the sole or direct cause of the resulting delay in the particular period: (see bolded passage from C of A above para 13). In Boulanger supra, referred to by both Courts, about half the period of delay was caused by the judge, and the defence therefore was not the sole or direct cause of all of the delay. In Hanan the defence did not cause the adjournment of the original trial date in November and in fact offered to proceed at that time (and thereafter) by judge alone. But the Crown would not consent, resulting in the initial adjournment and the Court’s very limited ability to reschedule to accommodate a 6-week jury trial. Again, the defence was plainly not the sole or direct cause of the delay other than the one specific period of defence unavailability.

[17] It should be emphasized that the focus is on the particular period. It is not to the point for the defence to point to other delays caused by the Court or Crown at other times in the history of the case. For example, delays in disclosure that caused the case to stall or delays in the Court/Crown offering priority dates are not relevant to this particular issue. I double-down on what I said in my initial reasons in this case:

31 The defence argues that there was an "additional cause" in this case in that the Crown did not seek to reschedule this case until December 2022 when it had been known and discussed between counsel as early as July and September 2022 that delay was a problem.

32 It is not known why there was this delay. It may have been that there simply were no available dates to offer before December (when four additional judges were appointed to Brampton). But even if the Crown inaction was the result of a less benign explanation, its impact was on delay that occurred before the offer of dates on December sixteen. It did not cause or contribute to delay after the March dates were declined due to defence counsel's unavailability. [Emphasis Duncan, J.’s]

[18] In conclusion, it is my view that my earlier reasons and ruling are consistent with the law as stated in Hanan. The defence unavailability in March was the sole and direct cause of the delay thereafter to the present anticipated trial date. There was no other contributing cause. That period is properly considered defence delay. I affirm my earlier decision.

[80] I was provided with one other post-Hanan case, an unreported decision of Justice Jaffe in R. v. Kumar, decided on May 29, 2023. In that case, Justice Jaffe rejected the Crown’s argument that defence was responsible for five and a half months of delay on the basis that the defence was not available for earlier dates which the Crown offered on three weeks of notice. Justice Jaffe stated at paragraphs 29 and 30:

[29] While the Crown should be commended for keeping an eye on the Jordan clock and making efforts to mitigate delay, I am not prepared to attribute the entire time to the defence. After advising the parties that Mr. Kumar’s s.11(b) application will be granted, the Supreme Court released R. v. Hanan 2023 SCC 12 which rejected the “bright-line” rule which was advanced by the Crown in this case: Hanan, at paragraph 9.

[30] At most, only the five days offered and rejected could possibly be considered defence delay. However, I am inclined to find that the defence could not reasonably be expected to clear his decks for a five-day trial on three week’s notice and find that none of the delay is attributable to the defence.

The Principles Applied – June 22 to September 14

[81] As I indicated earlier, there is no evidence as to why Crown and defence were not available for earlier dates that were offered by the Court, specifically June 22, 23 (defence not available), July 12, 14, 15 (Crown not available at all; defence not available July 15) and September 14, 26, 28, 29 (defence not available). If these dates had been set, evidence and argument would have been completed before the Jordan deadline. There would have been no need to schedule a section 11(b) hearing.

[82] To deal firstly with the issue of defence unavailability of June 22 and 23, as discussed, there was no evidence offered as to why defence was unavailable for these two days which were offered with one month and seven days of notice. In a case where section 11(b) was clearly raised, I would think that defence would have to call some evidence to set out why those dates were declined. Otherwise, I am in agreement with the cases – sometimes dates offered are just too soon to expect, as Justice Jaffe would say, defence to “clear the decks”.

[83] Is this such a case? This is more difficult to assess.

[84] The parties were invited to make submissions about defence delay on August 17, 2023. All Ms Dostaler could say on this point was that it was insufficient time to prepare. I find it difficult to believe that five weeks is not sufficient time to prepare for a sexual assault trial – even a lengthy one – where the only apparent issue is one of credibility.

[85] This is not a case where there was a 276 or 278 hearing scheduled or any other interlocutory application that would have added complexity and driven up preparation time such as to render it necessary to decline the dates on five weeks of notice. Thus, although I agree with Justice Jaffe and other Courts that have commented on the reasonableness of accepting earlier dates, in this case I have no evidentiary basis on which to find that defence was reasonable in refusing the June dates.

[86] The Crown continued to rely on Mr. Lecorre’s admission even though it was made clear in my email and in the caselaw that I am not bound by agreements between the parties on allocation of time.

[87] On this point, I also observe that following Justice Coroza’s playbook in Zahor, supra, defence has the onus of proving that there was no defence delay. The presumptive unreasonable nature of the delay does not come into the play (and the onus does not shift to the Crown) until the total delay which is net of defence delay is calculated.

[88] Thus, at least some of the delay for this period must lie at the feet of defence.

[89] How much?

[90] Well, the Crown was not available for the July dates at all. Although the Crown was not available for these dates at all, there is no evidence as to why the defence was not available for one of them (July 15).

[91] I therefore apportion one half of the delay between June 22 and September 14 at the feet of defence.

[92] June 22 to September 13 is 84 days. Half of this is 42 days.

The Principles Applied – September 14, 2022 to the Scheduled End of the Case on August 31, 2023

[93] Finally, there is no evidence as to why defence was not available for September, 14, 26, 28 and 29, 2022.

[94] Evidence is required in order to properly apportion delay. Without this evidence, the task imposed on the applications judge to apportion delay based on the circumstances of the case becomes extremely difficult.

[95] Contrary to Justice March’s instruction when the dates were confirmed on June 7, 2022 (see paragraph 29 above), there is no evidence that either party did anything to try to mitigate this delay.

[96] Defence had the dates booked for the 11(b) application and there is no evidence that the issue was pursued further, even though the defence had turned down the September dates. There is simply no evidence before me which would permit me to assess whether this was reasonable.

[97] The Crown also did nothing.

[98] As I indicated to the parties when I addressed the issue of defence delay on August 17, 2023, Renfrew County is a jurisdiction with a significant backlog due to COVID-19, but it is also a jurisdiction where there are significant issues with trial collapse and early resolutions. I find it extremely hard to believe that had the trial got underway in June, July, or September of 2022, the case could have been completed or one or two days of additional time could have been found before the end of 2022. While this may still have ultimately resulted in total net delay that is over the Jordan ceiling, the analysis would have been much different and the importance of COVID-19 may have gained more prominence as a discrete event than it ultimately does.

[99] The reality, however, is that on the evidence (or lack of evidence) before me, this case simply was not on anyone’s radar after June 7, 2022.

[100] Because there is a complete lack of evidence as to why defence could not proceed on the June and September dates, the defence must share in responsibility for this delay on an even basis. But the defence does not have sole responsibility because the Crown also did nothing to mitigate this delay.

[101] I therefore also apportion one half of this delay to the defence delay.

[102] September 14, 2022 to August 31, 2023 = 352 days. Half of 352 is 176 days.

Delay After the Scheduled End of the Trial on August 31, 2023

[103] Neither party was available on May 4, 2023, the first day offered after September 29, 2022. Again there is no evidence as to why neither party was available.

[104] One of the measures that was designed to address COVID-19 is the institution of Trial Confirmations, six to eight weeks in advance of the first day set for the trial. At the trial confirmation appearance, which are before a Judge, the parties confirm that they are prepared and ready for trial.

[105] Prior to COVID-19, trial confirmations did not take place in Renfrew County. Not surprisingly, the County is home to an alarmingly high trial collapse rate because cases set for trial are often resolved on the day of trial or so soon before the day of trial that the trial time could not be used.

[106] Old habits die hard.

[107] At the first Bench-Bar meeting after my appointment, in the fall of 2021, I advised Crown and defence counsel that the old way of doing business was even more unacceptable in the era of COVID-19. For this reason, I advised that the Court intended to examine the parties’ preparedness to proceed for trial at trial confirmation appearances. Defence is required to state on the record that it was ready for trial, that it had recent contact with the accused, that all applications it was considering filing were either already filed or would be filed on time and that there was no possibility of resolution.

[108] The Crown is required to state on the record that it was ready for trial, that all required subpoenas had been served, that it had recent contact with the complainant, that all applications that it was considering filing were either already filed or would be filed on time and that there was no possibility of resolution.

[109] As I stated in Desjardins, both defence and Crown counsel have been slow to adapt to this reality. Despite the Court repeating this mantra time and time again, they have both treated trial confirmation appearances as something of a pro forma appearance.

[110] In not adapting to this reality, they have epitomized the “culture of complacency” that the majority in Jordan identified as the main reason for the new section 11(b) framework.

[111] This background is necessary to examine the issue of further delay beyond the scheduled dates for trial on August 31, 2023.

[112] In my view, any delay beyond August 31, 2023 (and if the six day estimate for evidence and argument at trial was accurate, it is likely that there would have been delay after this scheduled end of the trial) falls at the feet of the Crown and not the defence.

[113] Notwithstanding that there was a trial confirmation process in April, at which time the Crown indicated that it had received the defence application, the Crown did not file its responding materials until the eve of the first date that the application was to be heard.

[114] Additionally, the Crown changed its position. Initially, two dates were set for the Application because the Crown indicated that it intended to call evidence, presumably on the issue of the effect of the National Defence Act proceedings, which I have discussed below. At some point, after the dates were set on June 7, 2022, the Crown advised that it did not intend to call this evidence.

[115] Given the potential complexity of the issues in this section 11(b) application, I agreed with defence counsel that she could not be expected to prepare on the issues raised in the Crown response until she saw that response.

[116] I also observe that had the Application been argued on May 12, which it could have been if no evidence had been called, the decision on the 11(b) Application could have been made sooner.

[117] As I have set out, after the case was argued on June 26, I was unable to get a decision rendered on the first return date (July 20) and once I started preparing my decision, I found it necessary for the parties to readdress me on the issue of defence delay. This consumed August 17 and 18, which were the first two days set for trial. These two days would not have had to have been consumed had the Crown filed its 11(b) responding material on time and had we been able to use the May 12 date for the hearing of the Application.

[118] In the circumstances of this case, where the parties estimated following a judicial pretrial that six days were required for trial, the loss of two additional days to what was supposed to be a pre-trial section 11(b) application was significant.

[119] Any additional time which (if the parties and the pretrial judge’s best estimate for how long the case would take to try was accurate) almost certainly would have been required after the scheduled end of evidence and argument, would have therefore fallen at the feet of the Crown.

[120] As no dates were scheduled beyond August 31, 2023, this exercise is perhaps academic. Nonetheless the context is, in my view, important in that it reinforces my ultimate decision that Mr. Harrison’s right to trial within a reasonable time has been breached and the only remedy is to stay the charge.

Step 3 – Compare the Net Delay to the Jordan Ceiling

[121] Total Delay (885 days) – Defence Delay (218 days) = Net Delay (666 days). 666 days = 21.91 months. In essence the net delay is 22 months, four months above the Jordan ceiling.

[122] This delay is presumptively unreasonable and the Crown bears the onus of proving that there are exceptional circumstances that justify the delay.

Step 4 – Consider Exceptional Circumstances

Step 4a – Discrete Events

The National Defence Act Proceedings – Analysis

[123] The Crown argues that nine months of delay in this case that is attributed to the time that the case was before the military justice system is an “exceptional circumstance” within the Jordan framework.

[124] In Jordan, at paragraphs 69 through 71, the majority defined exceptional circumstances this way:

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. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.

It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful — rather, just that it took reasonable steps in an attempt to avoid the delay.

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. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases.

[Bold face emphasis mine]

[125] The “problem” of two systems of justice, one in the military and one in the civilian courts, is not something to which the majority in Jordan averted.

[126] However, the majority rightly recognised that it was impossible to quantify all of the circumstances that may give rise to exceptional circumstances. Subsequent appellate and trial court decisions have been left to amplify what other circumstances might qualify as exceptional.

[127] For example, in R. v. Tsegas 2019 ONCA 111, the Court of Appeal considered whether the delay necessitated by Crown certiorari application should be deducted as an exceptional circumstance. Justice Hourigan recognized at paragraph 79 that “such cases do not fit neatly within the examples of discrete events provided by the court in Jordan and subsequent jurisprudence. It could also be said that an application for extraordinary remedies is not outside the control of the Crown as it could always simply decline to bring the application.”

[128] Nonetheless, Justice Hourigan stated that the Crown must have the ability to reasonably test decisions by bringing applications for prerogative remedies without running afoul of the Jordan time limits. He reasoned at paragraphs 80 and 81:

A Crown has an obligation to take such steps as required to fulfill his or her duties in the prosecution of a case, the same way defence counsel must take all reasonable steps to make full answer and defence on behalf of his or her client. Where the Crown has a reasonable basis for seeking such remedies, it should not be automatically forced to abandon its obligations for fear of a s. 11(b) application. In that sense, an application for extraordinary remedies is not within the control of the Crown; rather, it is something that arises on occasion in the circumstances of a given case and must be undertaken in order for a Crown to fulfill his or her professional obligations.

It must also be recognized that the Supreme Court did not consider the impact of extraordinary remedies on the Jordan framework and that in providing a carve out for exceptional circumstances the court explicitly chose to grant flexibility for future courts in the application of the framework. Moreover, the use of the discrete event exception in this manner is consistent with the public policy imperatives animating the Jordan decision. It ensures that the parties are acting in a manner that respects the right of the accused to be tried within a reasonable timeframe.

[Emphasis mine]

[129] The test to be employed is set out by Justice Hourigan at paragraphs 82 and 83:

The next issue is what test should be employed by an application judge in considering whether the delay occasioned by the Crown in pursuit of extraordinary remedies and appeals therefrom fits within the definition of a discrete event. In my view, the best approach is to mirror the analysis undertaken when examining defence delay. The application judge's role in that analysis is not to second-guess the defence's decision to pursue actions designed to make full answer and defence. Rather, the application judge shall intervene only where the defence is not fulfilling its Jordan imposed obligations because it is engaging in deliberate and calculated tactics aimed at causing delay: Jordan, at paras. 63-65. Similarly, in determining whether delay caused by a Crown application should be excluded from the delay calculation, the reviewing judge must recognize the Crown's discretion to take such steps and limit the analysis to a consideration of whether the Crown's actions were frivolous, undertaken in bad faith, or executed in a dilatory manner. A frivolous application is one which has no arguable basis. Again, by conducting the analysis on this basis, the court is fulfilling its Jordan imposed obligation of ensuring that all justice participants are acting responsibly and ensuring that the accused's right to be tried within a reasonable time is respected.

With regard to defence applications, where they are frivolous or made in bad faith, they will generally constitute defence delay. Where they are brought in good faith, they constitute an exceptional circumstance because they would be outside of the control of the Crown, unless in opposing such an application or an appeal therefrom the Crown is acting in bad faith, taking a frivolous position, or responding in a dilatory manner.

[Emphasis mine]

[130] In R. v. Charley 2019 ONCA 726 at paragraphs 77 to 104, Justice Doherty recognized the delay caused by the Crown commencing a Dangerous Offender proceeding can also constitute an exceptional circumstance.

[131] Both of these decisions, albeit in different ways, apply Jordan principles to exceptional circumstances that were not contemplated by the majority in Jordan.

[132] What is now necessary is an examination of the issue of whether the Crown’s decision to withdraw the military proceedings and commence proceedings in the Ontario Court of Justice qualifies as an “exceptional circumstance”.

[133] Sexual misconduct[^6] has been a problem in the Canadian Armed Forces for a long time. It has been the subject of countless media reports, at least two class-action lawsuits and at least three independent reviews. Institutionally, the Canadian Armed Forces has repeatedly failed to deal with the problem.

[134] In 2015, former Supreme Court of Canada Justice Marie Deschamps reported on the results of her external review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces (hereinafter referred to as the Deschamps Report). At page ii of the Executive Summary of her report, Justice Deschamps noted:

It was readily apparent throughout the consultations that a large percentage of incidents of sexual harassment and sexual assault are not reported. First and foremost, interviewees stated that fear of negative repercussions for career progression, including being removed from the unit, is one of the most important reasons why members do not report such incidents. Victims expressed concern about not being believed, being stigmatized as weak, labeled as a trouble-maker, subjected to retaliation by peers and supervisors, or diagnosed as unfit for work. There is also a strong perception that the complaint process lacks confidentiality. Underlying all of these concerns is a deep mistrust that the chain of command will take such complaints seriously. Members are less likely to be willing to report incidents of sexual harassment and assault in a context in which there is a general perception that it is permissible to objectify women’s bodies, make unwelcome and hurtful jokes about sexual interactions with female members, and cast aspersions on the capabilities of female members. That such conduct is generally ignored, or even condoned, by the chain of command prevents many victims from reporting incidents of inappropriate conduct.[^7]

[135] For this reason, Justice Deschamps recommended that victims of sexual assault be permitted an opportunity to decide whether their complaint should be transferred to the civilian system, or continue in the military system of justice.[^8]

[136] Professor Elaine Craig of the Dalhousie University Schulich School of Law studied the results of the Canadian Military’s Courts Martial system in cases of sexual assault and concluded as follows:

First, the conviction rate for the offence of sexual assault by courts martial is dramatically lower than the rate in Canada’s civilian criminal courts. The difference between acquittal rates in sexual assault cases in these two systems appears to be even larger. Since Operation Honour was launched in 2015 only one soldier has been convicted of sexually assaulting a female member of the Canadian Armed Forces by Canada’s military legal system. (One other conviction was overturned on appeal and is pending before the Supreme Court of Canada.) In addition, plea bargains in which accused individuals can avoid Criminal Code convictions by pleading guilty to military specific discipline offences like drunkenness, conduct to the prejudice of good order and discipline, and disgraceful conduct have been used in some cases involving aggressive sexual attacks. Sanctions for even these serious sexual attacks involved fines and reprimands. Last, the decisions of military judges in some cases suggest a critical failure to recognize the Canadian military’s culture of hostility to women documented in the Deschamps Report. Together these findings raise the following question: regardless of the outcome of the current constitutional challenge to courts martial proceedings in Canada (in R v Beaudry), should the military’s legal system continue to maintain jurisdiction over sexual assault cases?[^9]

[137] Former Justice Maurice Fish of the Supreme Court of Canada reviewed the Military Justice system in 2021. He noted Professor Craig’s research and concerns. While not being “…persuaded that Parliament should withdraw military jurisdiction over sexual assaults at this time”[^10], Justice Fish was concerned that the Military had not enacted the Declaration of Victim’s Rights in the aftermath of the Deschamps Report. Until it was enacted, Justice Fish was of the view that “it would in my view be inappropriate for the military justice system to continue to investigate or prosecute alleged sexual assaults” and “[t]he civilian authorities should, in the intervening period, exercise their own investigative and prosecutorial jurisdiction over alleged sexual assaults”.[^11]

[138] This led Justice Fish to make the following recommendation:

Recommendation #68. The Declaration of Victims Rights should be brought into force as soon as possible, ensuring that victims investigated or prosecuted under the National Defence Act will be entitled to substantially the same protections as the Canadian Victims Bill of Rights affords. Until the Declaration of Victims Rights comes into force, and unless the victim consents:

(a) sexual assaults should not be investigated or prosecuted under the National Defence Act and should instead be referred to civilian authorities; and

(b) there should also be a strong presumption against investigating and prosecuting under the National Defence Act other offences committed against a victim.

Moreover, the National Defence Act should be amended to expressly incorporate, in substance, the rights and protections afforded by the Criminal Code to victims and to persons accused of sexual offences.

[Emphasis mine][^12]

[139] As part of his report, Justice Fish also looked at the issue of delay in the military justice system. He found that:

The distinct purpose of the military justice system is “to allow the Armed Forces to deal with matters that pertain directly to the discipline, efficiency and morale of the military”. In Généreux, Chief Justice Lamer wrote that “the military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline must be dealt with speedily [...]”. Less than two years ago, the majority of the Supreme Court of Canada reiterated in Stillman that “responding swiftly to misconduct within the military” enhances “discipline, efficiency, and morale in the military”.

Accordingly, the NDA provides that “[c]harges laid under the Code of Service Discipline shall be dealt with as expeditiously as the circumstances permit”. Summary trials are completed significantly faster than most criminal trials in the civilian justice system.

However, the same cannot be said of courts martial. I was informed by the Office of the JAG (“OJAG”) that, from 2013-2014 to 2017-2018, the average time to dispose of a charge at court martial was 384 days from the laying of the charge to the completion of the trial. The OJAG stated that, by comparison, “Statistics Canada data from 2018/2019 identifies a median elapsed time of almost five months (139 days) to process a case in the adult criminal courts of the [civilian justice system] from a person’s first court appearance to the completion of their case”.

The comparison is complicated by differences in processes, methodological differences in the available data and regional variance in the civilian justice system. But the data suggests that, as a general rule, trials by court martial currently take longer than most comparable trials in the civilian justice system. The analyses conducted by the authors of the Court Martial Comprehensive Review Report in 2017 and by the Auditor General of Canada in 2018 support this conclusion.[^13]

[140] It is clear that Justice Fish’s look at delay in this case was of the “broad brush” variety. Unlike Jordan, which mandates consideration of delay from the date that the process is commenced until the date that evidence and submissions have been completed, the statistics Justice Fish relied upon considered delay between the time of the accused’s first appearance to the completion of his or her case.

[141] In other words, the goal posts are completely different. This may be one of the “methodological differences in the available data” that Justice Fish referred to.

[142] The data relied upon by Justice Fish also predate the years of the COVID-19 pandemic. I do not know how the military justice system has responded to delay occasioned by the pandemic.

[143] As I set out above, had Mr. Harrison’s case remained in the Military Justice System, the Courts Martial would have proceeded in February 2022 and the decision would be made by now. Within the microcosm of the case before me, it can hardly be said that the civilian system is faster.

[144] Shortly before Justice Fish reported his findings, the government announced a further independent review of the handling of sexual misconduct cases in the Military. In a number of his places in his report, Justice Fish acknowledged that his recommendations in relation to sexual misconduct cases were written prior to the undertaking of that review.

[145] This further interim review was conducted by former Supreme Court Justice Louise Arbour. She quickly made an interim assessment and recommendation, specifically as it relates to Justice Fish’s recommendation which I have quoted above. By letter to the Minister of National Defence dated October 20, 2021, Justice Arbour stated:

In the months leading up to my appointment as Reviewer, several allegations of historical sexual misconduct were made against high-ranking CAF members, namely General Officers and Flag Officers (GOFOs), including the Chief of the Defence Staff at the time. Since my appointment, it has been made public that survivors have continued to come forward and have raised allegations against several GOFOs, who were in important command positions and were subsequently put on leave.

These recurrent allegations of historical sexual misconduct against senior CAF leaders and the related Canadian Forces National Investigation Service (CFNIS) investigations, have led me to conclude that immediate remedial actions are necessary to start restoring trust in the CAF.

In his Report, tabled on June 1, 2021, the Honourable Morris J. Fish recommends, at recommendation No. 68, that sexual assaults should not be investigated or prosecuted under the National Defence Act and should instead be referred to civilian authorities, on a temporary basis.

I have heard criticisms in response to this recommendation, including that civilian authorities do not have the appropriate level of understanding and knowledge of the military, that it may lead to a patchwork of investigative and prosecutorial approaches between provincial authorities, that longer delays and less severe sentences may ensue, and that it creates a missed opportunity for discipline and dissuasion among the CAF’s members.

On the other hand, I have heard, in the course of my Review, significant skepticism on the part of stakeholders and most importantly survivors, with respect to the independence and competence of the CFNIS (and Military Police). This perception is pervasive in the CAF and the DND and, I believe, a large segment of public opinion. It has created serious mistrust in the military justice system and, in particular, in the investigative phase.

While the secrecy that surrounds the early stages of a police investigation may be necessary, in the current climate it serves to increase suspicion about the CAF’s ability to police itself. Further, the fact that CFNIS investigations are meant to be kept confidential, even from the CAF’s leadership, inevitably invites suspicion and disbelief, and puts the CAF leadership in a difficult if not impossible position. This has been recently illustrated by the disclosure of promotions granted to GOFOs undergoing investigation, inviting speculation about the motivations and competence of CAF leadership. Such speculation would not happen if, as is normally the case, the investigations were demonstrably at arm’s length, conducted by outside investigative authorities.

Interim Recommendations

In light of the above, I believe that it is necessary to establish a process that will facilitate the handling of allegations of sexual offences in an independent and transparent way outside of the CAF.

Without prejudice to my Final Report and additional findings and recommendations, I recommend, on an interim basis, the following:

1. The Honourable Morris J. Fish’s recommendation No. 68 should be implemented immediately. All sexual assaults and other criminal offences of a sexual nature under the Criminal Code, including historical sexual offences, alleged to have been perpetrated by a CAF member, past or present (“sexual offences”) should be referred to civilian authorities.

Consequently, starting immediately, the Canadian Forces Provost Marshal (CFPM) should transfer to civilian police forces all allegations of sexual offences, including allegations currently under investigation by the CFNIS, unless such investigation is near completion. In any event, in all cases charges should be laid in civilian court.

Correspondingly, civilian authorities should exercise investigative and prosecutorial jurisdiction over all sexual offences by CAF members. Should civilian authorities decline to proceed, the matter should be returned to the CAF to determine whether disciplinary action is desirable under the National Defence Act. Administrative Review related to sexual misconduct in the CAF should continue to proceed, for the time being, in parallel to, in addition to or in the absence of the criminal charges.

2. In parallel to the immediate transfers described above, the Minister of Defence should confer with the relevant federal, provincial and territorial authorities, to facilitate the transfer process and the sharing of expertise, between civilian authorities and the CAF, and consider the resources that could be made available to facilitate this work.

3. Throughout this process, the provision of assistance by the CAF to the civilian authorities in respect of investigations and prosecutions should be solely on an advisory basis.

4. Particular consideration should be given to, among other things:

a. when and how civilian authorities – in the course of an investigation – should convey relevant information about the investigation to the CAF leadership; and,

b. effective communication with and support to complainants regarding the transfer and progress of investigations.

[Emphasis mine][^14]

[146] On November 3, 2021, then newly appointed Minister of National Defence Anita Anand replied to Justice Arbour:

I am grateful to you for your efforts to build on the excellent work of the Honourable Marie Deschamps and the Honourable Morris J. Fish. I very much believe that a comprehensive approach to addressing sexual harassment and misconduct in the CAF is necessary for the CAF to live up to its stated values and the expectations of Canadians. I am pleased, therefore to accept your interim recommendations and to inform you that the Defence Team will begin work immediately to implement them. This process will include the implementation of the Honourable Morris J. Fish’s recommendation No. 68. In particular, all sexual assaults and other criminal offences of a sexual nature under the Criminal Code, including historical sexual offences, alleged to have been perpetrated by a CAF member past or present, will be referred to civilian authorities.

I am pleased to inform you that the Canadian Forces Provost Marshal (CFPM) and the Director of Military Prosecutions (DMP) are working quickly to develop the mechanisms and processes that will be required to implement your interim recommendations. I understand that they intend to engage with your team in order to ensure that their work on implementation remains consistent with your recommendations. In addition, the CFPM and DMP have begun to engage federal, provincial and territorial (FPT) counterparts on implementation of these interim recommendations and my officials are collaborating with the Department of Justice who have confirmed their willingness to facilitate or support these FPT discussions.

[Emphasis mine][^15]

[147] In her final report, former Justice Arbour repeated her call to remove all sexual assault cases from the military system and proceed in the civilian system, stating:

In his review of military justice in 1997, Chief Justice Dickson commented that, where a justice system is concerned, perception is as powerful as reality:

It is often said that perception is reality. Perhaps this is especially true in the administration of justice because any justice system, whether it be military or civilian, depends for its legitimacy on the respect of the individuals that are subjected to it. When a significant number of individuals who are governed by that system have lost respect for this institution, and feel that there is a double standard, then there is a serious problem that must be addressed or the system will collapse.

I agree with these sentiments The scale of sexual misconduct in the military exposed in the media, well-documented in the Deschamps Report, acknowledged in the Final Settlement Agreement of the Heyder and Beattie class actions, confirmed in surveys and highlighted in recent highly visible cases, affects both reality and perception. It has cast a long shadow over the role of military justice in efforts to eradicate this kind of conduct, often criminal in nature. Past a certain point, it is irrelevant whether CAF members and the general public perceive the military justice system to be unfit for the task – whether due to a lack of independence or otherwise – or whether it truly is unfit.

Murder, manslaughter and certain offences against children have always been outside the realm of military justice and reserved for civilian courts. It certainly suggests that they stand well above matters of military discipline I believe the same is true of sexual offences

In any event, the investigation and prosecution of Criminal Code sexual offences have proven to be a major challenge for the military justice system I believe that challenge is now insurmountable for the CAF Victims, perpetrators, other stakeholders and the institution itself will be better served if sexual crimes are investigated by civilian police and prosecuted in civilian criminal courts. Although the civilian process is far from perfect, at least there will be no suggestion that some special treatment, good for some, bad for others, is accorded to members of the military who are entitled, like every other person in Canada, to equality before the law.[^16]

[148] Justice Arbour also looked at other issues with the Courts Martial process. She noted that conviction rates were lower and offenders were less likely to receive custodial sentences through Courts Martial than in the civilian system.

[149] She also looked at delay and noted:

Justice Fish identified delay in the court martial system as a particular problem He noted that between 2013-14 and 2018-19, the average time from the laying of the charge until completion of the trial, as reported by the OJAG, was 384 days. He also cited analyses by the OAG and the authors of the Court Martial Comprehensive Review who pointed out that it took a total of 17.7 months and 434 days, respectively, to complete court martial cases. In particular, the OAG pointed out that nine cases out of the 20 studied took more than 18 months to complete.

Delays such as these are particularly problematic for CAF members involved in a case of sexual assault or another criminal sexual offence The stress related to facing criminal charges is well understood and is just as intense, in the context of a military career. CAF members charged with sexual assault are entitled to the same fairness and procedural safeguards as other Canadians, including a right to be tried within a reasonable time. Victims/survivors of sexual assault are often traumatized by the criminal justice process. This is often intensified in the military context. They often face ostracization and reprisals, which ultimately affects their careers. This includes deliberate reprisals and the more subtle, but no less pernicious, effects of stress and trauma associated with ongoing criminal proceedings in a relatively closed community. Where resolution of a case takes more than one year, and possibly multiple years factoring in the initial investigation, the victim’s performance appraisal may be affected, with repercussions for the individual’s career.[^17]

[150] Justice Arbour also revisited Justice Fish’s recommendation and her interim recommendation from the previous October. She was critical of the suggestion that the complainant should be entitled to choose between the civilian system and the military system, noting:

It puts victims in an untenable position, requiring them to make a decision about which system is likely to work better for them, with little understanding of the factors at play. They may regret their decision down the road if the trial results in an acquittal and may be left forever wondering, “what if I had chosen the other system.” In the end, I do not believe this serves any public interest.[^18]

[151] Interestingly, Justice Arbour then nuanced her interim recommendation somewhat, stating:

In my Interim Report, I recommended that all new cases be transferred to civilian authorities for investigation and prosecution. If this interim measure is to stay in place pending legislation to provide exclusive jurisdiction to civilian courts, all new cases should go to the civilian system regardless of any preference expressed by the victim. When charges have already been laid in military courts, they should continue to proceed in that forum. But no new charges should be brought there.[^19] [Emphasis mine]

[152] I pause to note that this nuance – which would have directly impacted Mr. Harrison’s case and ensured that it remained in the military system – did not appear in Justice Arbour’s interim recommendation to the Minister six months previously. That recommendation, which the Minister duly and expediently acted upon, was clear that all cases were to be transferred to civilian courts. Full stop. There were no exceptions.

[153] The Crown argued at paragraph 14 of its Factum Addendum, that in reliance on the November 3, 2021 directive from Minister Anand, the military justice proceeding was withdrawn and the Information was laid in the Ontario Court of Justice on December 23, 2021.

[154] If that is what happened, I agree with the Crown. Once the Information was laid, and the military proceedings withdrawn, Mr. Harrison’s case, with the albatross of nine months of delay under the military justice system clasped stubbornly around its neck, was irretrievably locked up in the civilian system. There was no turning back, even though five months later, Justice Arbour ultimately made it clear that cases already commenced in the military system should remain there.

[155] By then it was too late for Mr. Harrison’s case. The actions in December could not be reversed.

[156] In my view, given the fresh findings of the Arbour Report that the military justice system no longer had the confidence of the public and was essentially unfit for cases involving sexual assault, the decision to bring the case to the Ontario Court of Justice constituted an exceptional circumstance within the Jordan framework. The nine months of delay in the military system is not something that the Crown could reasonably remedy. The Crown’s decision to withdraw in the military system and proceed in the Ontario Court of Justice in these circumstances is not frivolous, undertaken in bad faith or executed in a dilatory manner (the test in Tsegas, discussed infra at paragraphs 127 to 129).

[157] But is there proof that is what happened?

[158] In response to the Crown’s factum, the Defence filed an Affidavit from Captain Carlos Da Cruz, a lawyer and a member of the Office of the Judge Advocate General. Captain Da Cruz was Mr. Harrison’s lawyer in the Courts Martial proceedings. He deposed at paragraph 19 of his Affidavit:

I represented [Mr. Harrison] when this matter was with the [military justice system] in my capacity as a legal officer with the [Directorate of Defence Counsel Services]. On 21 December 2021, I received a Notice of Withdrawal of a Charge in relation to the sexual assault charge currently before this Honourable Court. That letter did not provide a reason for a withdrawal.

[159] Further at paragraph 21, he deposes:

While I cannot speak to steps being undertaken by the CAF with respect to the interim and/or final recommendations of the Arbour Report, I can confirm that the CAF continues to investigate, prosecute and defend sexual offences, including sexual assault.

[160] Captain Da Cruz then goes on to discuss four other cases, where he is defence counsel, where the accused was charged at around the same time as Mr. Harrison, that have continued in the Military Justice System. I note that all but one of those cases went to courts martial after Justice Arbour’s final report. One case went to trial in the military system before the final report, but after the interim recommendation, in January 2022.

[161] Thus, although it appears as though there were several cases that remained in the military system despite Justice Arbour’s interim recommendation, none of them are exactly on the same footing as Mr. Harrison’s case.

[162] At paragraph 28, Captain Da Cruz deposed:

I verily believe that any transfer of an MJS matter to the civilian justice system is ultimately, a decision of the DMP [Director of Military Prosecutions]. There is no law, or regulation, directing the CAF/DMP to refer the investigation and prosecution of sexual offences to the civilian justice system.

[163] The Crown cross-examined Captain Da Cruz. He indicated that he did not have direct knowledge of how many cases were transferred from the military justice system to the civilian system. He also did not have any direct knowledge of any policies and procedures that were implemented due to Justice Arbour’s recommendations. He did not agree with the Crown that the recommendation “directed” the removal of matters from the military justice system to the civilian system.

[164] The Crown did not file or call evidence in response to Captain Da Cruz’ evidence.

[165] Although the timing is incredibly suspicious, there is no direct evidence that Mr. Harrison’s case was withdrawn in the military system and relayed in the civilian court due to Justice Arbour’s interim recommendation. There is a strong suspicion but no direct evidence.

[166] The Crown also did not file evidence of a directive, even though one was clearly made and it is publicly available on the internet.

[167] On November 26, 2021, Colonel Dylan Kerr, the Director of Military Prosecutions issued an Interim Directive Regarding the Implementation of Madame Arbour’s Interim Recommendation. The salient sections of this Interim Directive state:

Cases where charges have already been laid

9. The interim recommendation, response and subsequent media coverage of this issue may very well affect the views of victim complainants regarding jurisdiction. As such, further consultation with victim complainants is warranted.

10. Prosecutors have been directed to analyze every case at the post-charge stage which involves sexual assault or other Criminal Code charges of a sexual nature, and conduct a dispassionate and honest assessment of any risks which may be associated with a change in jurisdiction.

11. There is no mechanism to transfer a case between the military and the civilian criminal jurisdiction once charges have been laid. The only way to move a case from the military justice system to the civilian criminal justice system involves the withdrawal of charges already preferred or the non-preferral of the charges for cases at the post-charge review stage. Once a case is no longer active in the military justice system, charges can then be laid in the civilian criminal justice system in accordance with the existing practices and procedures in the appropriate civilian jurisdiction.

12. Moving a case between jurisdictions once charges have been laid is not without risk. While the degree of risk will vary in relation to the specifics of the case, the risk associated with a change of jurisdiction will generally include:

a. A reduced ability to complete the trial within a reasonable time. A civilian court of criminal jurisdiction may consider the moment charges were originally laid in the military justice system as the starting point for any Jordan-based calculation; and

b. Uncertainty regarding whether the case will proceed in the new jurisdiction. The civilian prosecution service assigned to the case will conduct a de novo assessment according to their own respective threshold. Should the civilian prosecution service decline to proceed, it may be impossible to revive charges in the military justice system.

13. Prosecutors have been directed to meet with every victim complainant in cases of this nature as soon as possible in order to make them aware of the interim recommendation and to seek their views on jurisdiction for the case to proceed. The prosecutor must cover the following information at the meeting with the victim complainant:

a. the content of the interim recommendation and recommendation #68;

b. what changing jurisdiction would entail; and

c. the risks associated with changing jurisdiction.

14. In all dealings with victim complainants, prosecutors must refrain from any attempt to influence a particular outcome. All information and explanation provided to victim complainants must remain objective. Prosecutors must afford to victim complainants sufficient time to consider their position on jurisdiction and consult with advisors, if they so desire. Consistent with the existing policy and practice of the CMPS, the views of the victim complainant on jurisdiction will be respected.

15. Prosecutors have been directed to bring to the attention of the Deputy Director of Military Prosecutions – Operations (DDMP Ops) each case where the victim complainant expresses a preference for the case to proceed in the civilian justice system.

[Underlining original. Bold face emphasis mine][^20]

[168] There is no evidence that any of the steps in this Interim Direction were followed in this case.

[169] What is clear is that if it was followed, the Interim Direction set out that one of the considerations that a Prosecutor should take into consideration before authorizing the withdrawal of the charges in the military system and the relay of charges in the civilian system was the accused’s right to trial within a reasonable time.

[170] In short, if the case was to be transferred, great care had to be taken. At minimum, there had to be consultation with the complainant. The military prosecutor had to consider the impact of section 11(b). The military prosecutor had to be sure that the civilian prosecutor would continue with the case. These latter two considerations should have required consultation between the military prosecutor and the Crown’s office, or between the military police and the Crown’s office.

[171] There is a complete evidentiary vacuum with respect to all of this.

[172] In her final report, Justice Arbour recognised significant difficulties that arose as part of her interim recommendation. Many Police Services, including the Ontario Provincial Police, refused to take jurisdiction over sexual offences committed on Department National Defence Property, even though they had (they always have had) concurrent jurisdiction. She discussed the problems at length at pages 96 to 98 of her final report. She ultimately noted:

…the difficulties encountered in implementing my interim recommendation illustrate a key problem in maintaining concurrent jurisdiction between the CAF and civilian authorities. Prolonging concurrent jurisdiction will, it seems, only lead to interminable discussions about setting up detailed and complicated intergovernmental protocols, as well as similar machinery between the CAF and local and regional police forces. Since, in my view, the civilian system is the preferable one, the best way forward is to provide for the exclusive jurisdiction of civilian courts in all matters of sexual misconduct falling under the Criminal Code.[^21]

[173] At the end of the day, given the lack of evidence, all I have is a strong suspicion as to the reasons for transferring Mr. Harrison’s case to the civilian jurisdiction, based on the timing of Justice Arbour’s interim recommendation, the date of the withdrawal in the military system, the date of the commencement of process in this Court and the nuance that I highlighted between Justice Arbour’s interim and final recommendations.

[174] I do not have any evidence. For this reason alone, the Crown’s argument must fail.

[175] I have struggled with what I would have done if there had been clear evidence that Mr. Harrison’s case was transferred due to the directive in Justice Arbour’s interim report. As I have pointed out above, there is a strong argument, that this constituted an exceptional circumstance given the findings of Justice Arbour (and others) that the military system is essentially unfit and lacks public confidence in cases of sexual assault.

[176] Weighing against this however, are a number of cases, decided both before and after Jordan which make it clear that where charges are commenced in the military system, but withdrawn and recommenced in the civilian system, the 11(b) clock continues to run even though exceptional circumstances may be present.

[177] In Renfrew County, there are two pre-Jordan cases where the Superior Court stayed charges against accused persons who were originally charged in the military system and then the charges were brought in the civilian system: R. v. Elliott 2010 ONSC 4147 and R. v. Ward 2015 ONSC 83.

[178] In Elliott, Justice James found that the time started to run from the date of the Record of Disciplinary Proceedings. In the former case, Justice James found that twenty months of delay from the date of the ROD to the trial date in the Superior Court of Justice was excessive and he stayed the charges under section 11(b). I note as well that on the facts of this case, the matter was transferred to the civilian system after the decision of the Court Martial Appeal Court in R. v. Trepanier 2008 CMAC 3, which was said to have “shut down the existing court martial system” (see paragraph 10).

[179] In Ward, Justice James found that a period of almost 29 months from the date of the ROD to the trial date in the Superior Court of Justice was excessive and he stayed the charges.

[180] There are several post-Jordan cases in Ontario which were launched in the wake of the decision of the Court Martial Appeal Court in R. v. Beaudry 2018 CMAC 4 striking down section 130 of the National Defence Act.

[181] In Beaudry, the Court Martial Appeal Court struck down section 130 because it violated the accused’s right to trial by jury guaranteed in section 11(f) of the Charter. The Crown appealed to the Supreme Court of Canada and applied for a stay of the declaration of invalidity. The Supreme Court denied the stay (R. v. Beaudry 2019 SCC 2). Once the stay application was denied, a number of cases were launched in the Ontario Court of Justice.

[182] One such case was R. v. White 2020 O.J. No. 6111 (O.C.J.). In this case, the Crown conceded that the 11(b) clock started to run when the accused was charged under section 130 of the National Defence Act. The Crown argued, however, that there should be a deduction from the time as an “exceptional circumstance” due to the confusion surrounding the appropriate response to the decision in Beaudry and the decision to await the outcome of the stay application in the Supreme Court before commencing the proceeding in the Ontario Court of Justice. Justice Wheeler agreed and granted 93 days from the 11(b) calculus. Thirty of those days were granted because “the military authorities could not be expected to make an instant decision about what to do. It would have been necessary to engage in thoughtful consultations and to seek approvals.” (at paragraph 31). The other 63 days were granted because “this was time that was properly used during the military process with steps that must be taken in the initial stages of any criminal prosecution. Those steps had to be duplicated or repeated when the case moved to the civilian system” (at paragraph 35). As this brought the period below the 18 month ceiling, Justice Wheeler found that section 11(b) was not breached.

[183] I was also provided with a copy of R. v. Wiafe, an unreported decision of Justice Jaffe in Brampton given on September 25, 2020. In Wiafe, the accused was charged under the military system with a Record of Disciplinary Proceedings on September 19, 2018, which ironically, was the same day that the Court Martial Appeal Court released its decision in Beaudry. As in White, the military prosecutors decided to await the outcome of the stay application in the Supreme Court before proceeding in the Ontario Court of Justice. Even then, the information in the Ontario Court of Justice was not laid until March 19, 2019, some two months after the Supreme Court refused the stay application. The Crown argued that all of the delay in the military system was an exceptional circumstance as a result of the Beaudry decision.

[184] Justice Jaffe disagreed and found that the Crown had not responded with appropriate dispatch. She deducted two months of the delay as an exceptional circumstance in consequence of the Beaudry decision. Given that the total delay in the case was 24 months and twelve days, the deduction of one to two months as a result of Beaudry did not rebut the presumption of unreasonableness and the charges against Mr. Wiafe were stayed.

[185] In R. v. Ryan [2020] O.J. No. 4382 (O.C.J.) the accused was charged in the military system on October 17, 2017. A trial date was set in the military court on December 21, 2018. In the wake of the Beaudry decision, the defence brought an application to stay the matter in the military court. The Crown resisted. The trial date was adjourned pending the outcome of the stay application in the Supreme Court. Immediately after the charge the Supreme Court released the result of the stay application, the charge was withdrawn in the military system and process was commenced in the Ontario Court of Justice. There trial dates were set for February 6, 2020 for an 11(b) application and trial in June 2020.

[186] Crown counsel in Ryan argued that the delay as a result of Beaudry was analogous to proceeding in the Superior Court of Justice where Jordan allows 30 months of delay before it is presumed unreasonable. Defence conceded that Beaudry is an exceptional circumstance but argued that it should only account for a few months. Justice Meijers did not really deal with this issue because there was evidence that the matter could have returned to the military and been tried under the military system sometime in 2019. He ultimately found that the accused’s rights under section 11(b) were violated and a stay was granted.

[187] A significant part of this reasoning was the fact that the time period between the accused’s original arrest under the military system and the trial in the Ontario Court of Justice was upwards of 50 months. As Justice Meijers concluded, “In some cases notwithstanding the reasonableness of decisions of the Crown along the way regarding difficult complicating factors, too long is just too long” (at paragraph 39).

[188] These cases make it clear that the Court takes a fairly restrictive approach to the issue of exceptional circumstances where there has been a dramatic change in the law which affects the military justice process. In no case has the Crown been granted a full amnesty for the period that the charges were outstanding in the military system. Thus, even if there was evidence of a clear link between Justice Arbour’s interim recommendation and the decision to commence the process in the Ontario Court of Justice, I would not have deducted the entire nine-month period as an exceptional circumstance.

[189] These cases also make it clear that the dilemma of how to proceed in the late fall of 2021 was not uncharted territory for the military prosecutors, or if it was consulted, the Crown Attorney’s Office. The path had been trodden before where proceedings had to be withdrawn in the military system and recommenced in the civilian system. If Colonel Kerr’s directive that it was imperative to consider the accused’s right to trial within a reasonable time was somehow not crystal clear, the precedents made it clear that section 11(b) was a very real issue that had to be accounted for.

[190] At the end of the day, although I am very sympathetic to the basic argument that it was untenable for the case to remain in the military justice system given Justice Arbour’s findings that this system was unfit and lacking in public confidence, this cannot justify the carte blanche garotte of the accused’s right to trial within a reasonable time.

The Reasonableness of the Parties’ Actions to Mitigate Delay

[191] I agree with both Crown and defence that once the proceedings were initiated in the Ontario Court of Justice, they proceeded with dispatch and, at least initially, attempted to mitigate delay. This is evident in their actions up to the point where the dates were set on June 7, 2022 in holding a Counsel Pretrial, holding a Judicial Pretrial and conducting a trial setting conference, and securing dates – all in the space of about four months from the point of defence counsel’s retainer and request for disclosure and about five and a half months from the point that the charges were laid.

[192] After June 7, 2022, however, the forward progress of the case stopped.

[193] Once the parties obtained their 2023 dates, they essentially appear to have put the case on the back burner until March 2023 when there was a discussion between the Crown and the defence about the file when defence was in the process of preparing its section 11(b) application. There is no evidence that there were any discussions about managing the delay and trying to come up with sooner dates.

[194] This is what the parties were told by Justice March when the dates were set on June 7. This is also what the law requires. See the extract from Jordan at paragraph 70, quoted above at paragraph 124.

[195] The standard required, however, is not one of perfection. It is one of reasonableness. As the Supreme Court stated in R. v. Cody 2017 SCC 31 at paragraph 54, “the Crown need not exhaust every conceivable option for redressing the event in question to satisfy the reasonable diligence requirement.”

[196] With respect to the actions of the defence, defence counsel made it clear from the very beginning that delay was an issue. She raised it in her email to the Crown after the Counsel Pretrial of April 25, 2022. She raised it in her email to the trial coordinator of May 2 where an earlier pretrial date was requested because of delay issues. She raised it in her email to the trial coordinator requesting trial dates, dates which included time for argument of a section 11(b) application on the first two dates set. At no time did defence counsel resile from her position that delay was a problem in this case.

[197] Like the Crown, however, there is no evidence that defence counsel did anything between June 7, 2022 and mid-March 2023 to try to obtain earlier dates. It is almost as if both Crown and defence accepted that it is a fait accompli that the dates offered were the best that could be had. They tacitly accepted that it was not necessary to make further inquiries as time progressed after June 7. They tacitly accepted that it was a fact of life that the 11(b) application would have to be argued. The chips would fall where they fell.

[198] As the Supreme Court noted at paragraphs 36 and 37 in Cody, supra, the Court must bear some responsibility in losing track of the fact that this case was an 11(b) disaster waiting to happen:

To effect real change, it is necessary to do more than engage in a retrospective accounting of delay. It is not enough to “pick up the pieces once the delay has transpired” (Jordan, at para. 35). A proactive approach is required that prevents unnecessary delay by targeting its root causes. All participants in the criminal justice system share this responsibility (Jordan, at para. 137).

We reiterate the important role trial judges play in curtailing unnecessary delay and “changing courtroom culture” (Jordan, at para. 114). As this Court observed in Jordan, the role of the courts in effecting real change involves

implementing more efficient procedures, including scheduling practices. Trial courts may wish to review their case management regimes to ensure that they provide the tools for parties to collaborate and conduct cases efficiently. Trial judges should make reasonable efforts to control and manage the conduct of trials. Appellate courts must support these efforts by affording deference to case management choices made by courts below. All courts, including this Court, must be mindful of the impact of their decisions on the conduct of trials. [para. 139]

[199] In my view, particularly in light of the COVID-19 pandemic, which I will comment on at greater length below, the Court should exercise more vigilance and oversight in all cases where there is the spectre of an 11(b) application. This case proves that contrary to the expectations in Jordan, the Court should not rely on the parties to do so. In this case, as has been our usual practice in Pembroke, once the trial date was set, the Court’s pretrial case management role was presumed to have ended. The passive acquiescence, of the parties, or what the Supreme Court in Jordan called the “culture of complacency”, was allowed to continue, unchecked by the oversight of the Court.

[200] This is a tall order, and one which cannot be met with our existing judicial and Courts Administration resources in Renfrew County which are at pre-COVID levels despite a significant increase in violent crime and sexual assaults.

[201] In conclusion, with respect to the issue of whether what was happening in the military justice system in the fall of 2021 and early 2022 constitutes an exceptional circumstance; I find that:

(a) The Crown has not proven a clear link between Justice Arbour’s interim recommendation and the decision to discontinue the military proceeding and commence in the Ontario Court of Justice.

(b) Even if there was a link, it is clear that the Canadian Forces policy, which warned military prosecutors to consider the accused’s rights to trial within a reasonable time was not followed.

(c) Even if there was a link, the body of caselaw in analogous situations made it abundantly clear that time in the military system continued to apply to the section 11(b) calculus in the civilian court.

(d) Even if there was a link, there was a complete failure to exercise reasonable diligence to mitigate the impact of the decision.

[202] This failure to take reasonable steps to mitigate the delay attributable to the case being withdrawn in the military system and proceeding in the Ontario Court is fatal to the attribution of what I might (assuming that there was evidence of a clear link between Justice Arbour’s interim recommendation and the transfer of the charges to the Ontario Court) have otherwise been prepared to find was an exceptional circumstance.

[203] There is, therefore, no deduction for this and the period of delay in this case continues to sit at 21.9 months which is presumptively unreasonable.

COVID-19

[204] This brings me to the impact of COVID-19.

[205] The Crown argues that a lot of the delay between June 7, 2022 and the last date set for evidence and argument (August 31, 2023) must be attributed to COVID-19, which qualifies as a discrete event under the Jordan analysis.

[206] In R. v. Desjardins 2023 ONCJ 244, I discussed at length the impact of COVID-19 on the Ontario Court of Justice. I will not repeat that analysis here. I point out that as between the two competing lines of cases with respect to the Crown’s burden of proof in section 11(b) cases, I do not require the Crown to produce statistical analysis and I am entitled, as per the decision of the Court of Appeal in R. v. LL 2023 ONCA 52, to draw on my knowledge of the culture in a place such as Pembroke with respect to the effect of COVID-19. See also R. v. Agpoon 2023 ONCA 449.

[207] In R. v. K.D. 2023 ONCJ 252, at paragraphs 60 to 83, my colleague Justice March discussed the effect of COVID-19 on our system of justice in Renfrew County. I agree with his analysis. He allowed a forty-day deduction for COVID-19-related delay, noting at paragraph 81 that following Justice Wright’s decision in R. v. GS 2022 ONCJ 427, he likely would have granted a 90-day allowance for COVID-19 backlog if the Crown had asked for it.

[208] I agree with these general principles, but I also sound some caution. At some point something has to give and the further we get away from the COVID-19 pandemic, the less likely we are to grant allowances for delay caused by the COVID backlog. Justice Prutschi, who normally presides in Newmarket, discussed this in R. v. Jacques-Taylor 2023 ONCJ 243 at paragraphs 32 to 35.

Much ink has been spilled defining and bemoaning the impact of COVID-19 on court operations generally and reasonable trial times specifically. There can be no doubt that the pandemic, though never envisioned by the Supreme Court at the time of its Jordan decision, is the ultimate “discrete event” requiring consideration and analysis in 11(b) applications.

COVID-19 stalled thousands of cases when it necessitated the closure of courthouses across the province. This generated a batch of cases whose aborted trial dates needed to be rescheduled. It also dramatically slowed the pace of cases in the system whose trials were not directly adjourned as a result of COVID but whose progress through the pre-trial and set-date stages was interrupted by court closures.

As these legacy cases negotiated their way through bogged-down courts, arrests continued introducing new cases into a system already struggling to deal with the immediate backlog created by the initial COVID shock. This backlog has been recognized by the Ontario Court of Appeal as “notorious” and, “exactly the kind of exceptional circumstance envisaged in R. v. Jordan.”: R. v. Donnelly 2023 ONCA 243 at paragraph 22

Collectively, all of these cases are working their way through the justice system in what Dunphy J. colourfully described as “the proverbial pig in the python” waiting “to be fully digested”: R. v. Titus 2022 ONSC 3484 at paragraph 18. How long, and to what extent, must we tolerate courthouse indigestion? This is the intractable problem in the 11(b) aftermath of COVID-19.

[209] I agree with the Crown that COVID-19 had an effect on the availability of trial dates for this case. It is extremely unusual for it to take 15 months (the period between May 17 – when the dates were largely agreed to – and August 31, 2023 (the last day scheduled for evidence and submissions) in Renfrew County. I conclude that the “courthouse indigestion” caused by COVID-19 is the culprit for much of this delay.

[210] However, as in the case of the delay attributable to the military system, no one did anything after June 7, 2022 to try to mitigate this delay. The Crown cannot simply say “Oh well it has to be COVID-19 delay” and pronounce itself immunized from the delay as coming within an exceptional circumstance in the Jordan framework. It has to exercise reasonable diligence to attempt to mitigate the delay. The steps do not have to be perfect, but it has to try. As the Court of Appeal recently stated in Agpoon, supra, at paragraph 20:

Jordan imposed certain conditions on the Crown. For example, the burden is put on the Crown to show that “it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling”: at para. 70 (emphasis in original). But this was clearly impossible in the case of the pandemic. Further, the court referred to the Crown’s obligation to make efforts to mitigate the delay resulting from a discrete exceptional circumstance, noting, at para. 75, that “within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events”. This principle applies to dealing with the backlog of cases in the emergence of the justice system from the pandemic.

[Bold emphasis mine]

[211] I repeat my findings with respect to the failure to mitigate this delay after June 7, 2022 at paragraphs 191 to 202 above. If there had been any evidence that anyone even made the effort to keep this case on the front burner by raising the issue of delay, and trying to get the case heard, and that it was impossible, I would have been prepared to grant significant relief for COVID-19 as an exceptional circumstance.

[212] Unfortunately, given the complete absence of the exercise of reasonable diligence to mitigate, it is my conclusion that no time is deductible for exceptional circumstances as a result of COVID-19 either.

Step 4b – Consider Complexity

[213] At paragraph 58 of the defence factum it was asserted that the case was not complex. There were no novel legal issues. There were no pre-trial applications other than the 11(b) Application. The Crown did not disagree with this characterization.

[214] If the presence of DNA were proven, the case would seem to boil down to a credibility and reliability assessment and the application of the W.(D.) formulation. This begs the question of how it was deserving of six days of trial time. There is no evidence on this point and I am left with dispensing with this issue by simply noting that six days was discussed and agreed to at the pretrial which was presided over by an experienced trial judge.

[215] Accordingly, it is my conclusion that no time is deductible due to complexity.

Conclusion

[216] Given that the delay in this case remains fixed at 21.9 months, the Crown has not met its onus and the 11(b) application is granted and the proceedings are stayed.

Released: September 14, 2023

Signed: Justice J.R. RICHARDSON

[^1]: When I gave the decision (but not these reasons) for the 11(b) application, the matter was subject to a publication ban. After giving the decision, the Crown, on behalf of the complainant, asked that the Publication Ban be lifted and I agreed. Thus, I have named Mr. Harrison in these reasons. [^2]: Although Ms Crewe had carriage of the matter when the Application was argued before me, she had only recently (earlier in June 2023) joined the Crown’s office and the file was reassigned to her from previous Crown counsel. [^3]: Mr. Lecorre, the second assigned Crown on the file, left the Crown’s office on May 12, 2023. [^4]: I have not included reference to the transitional provisions as they are not relevant to the calculus in this case. [^5]: Given that because of various delays with getting this Application heard and decided, discussed further infra, the first two days set for trial, August 17 and 18 were taken up with additional argument on the Application. Thus, there is a possibility, given that the parties believed that six days were necessary to hear the trial, that evidence and argument in the case would not have been completed by August 31, resulting in possible additional delay. This is addressed in paragraphs 103 to 120 below. [^6]: This term refers to Sexual Assault and Sexual Harassment. [^7]: www.canada.ca/en/department-national-defence/reports-publications External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces, Marie Deschamps, C.C.Ad.E External Review Authority, March 27, 2015, page ii. (hereinafter “the Deschamps Report”). [^8]: See recommendation 8 of the Deschamps Report, supra. [^9]: Elaine Craig, "An Examination of How the Canadian Military's Legal System Responds to Sexual Assault" (2020) 43:1 Dal LJ 63. [^10]: Canada, Department of National Defence, Justice Maurice Fish, Report of the Third Independent Review Authority to the Minister of National Defence, April 30, 2021, https://military-justice.ca/wp-content/uploads/2021/06/Third-Independent-Report-Fish.pdf (hereinafter, the “Fish Report”) [^11]: The Fish Report, supra, page 143. [^12]: The Fish Report, supra, page 144. [^13]: The Fish Report, supra, at pages 115-116. [^14]: Letter from The Honourable Louise Arbour to Minister of National Defence the Honourable Harjit Saajan, October 20, 2021. https://www.canada.ca/en/department-national-defence/services/conduct-and-culture/iecr-interim-recommendations.html [^15]: Letter from the Honourable Anita Anand, Minister of National Defence to the Honourable Louise Arbour, November 3, 2021. https://www.canada.ca/en/department-national-defence/services/conduct-and-culture/iecr-interim-recommendations.html#toc1 [^16]: The Honourable Louise Arbour, Report of the Independent External Comprehensive Review, May 20, 2022. https://www.canada.ca/en/department-national-defence/corporate/reports-publications/report-of-the-independent-external-comprehensive-review.html page 87. (hereinafter “the Arbour Report”) [^17]: The Arbour Report, supra, page 91 [^18]: The Arbour Report, supra, page 93. [^19]: The Arbour Report, supra, page 93. [^20]: Colonel Dylan Kerr, Interim Direction regarding Implementation of Madame Arbour Interim Recommendation, November 26, 2021. https://www.canada.ca/en/department-national-defence/corporate/policies-standards/legal-policies-directives/implementation-mme-arbour-interim-recommendation.html, pages 3-4. [^21]: The Arbour report, supra, page 97.