WARNING

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

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

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

( a ) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

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

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

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

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

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

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

Ontario Court of Justice

Date: 2023 10 19 Court File: Toronto 20-75000600

Between:

HIS MAJESTY THE KING

— AND —

RICHARD FLAUMENBAUM

Before: Justice Brock Jones

Ruling: Charter Section 11(b) Application Released on: October 19, 2023

Counsel: T. Schreiter, counsel for the Crown S. Hebscher, counsel for R. Flaumenbaum

Jones J.:

Introduction

[1] Richard Flaumenbaum brought an application to stay the proceedings due to an alleged violation of his rights under section 11(b) of the Charter. He is charged with one count of assault and one count of sexual assault on Ms. J.L.

[2] The information charging him with sexual assault was sworn on January 29, 2022. Mr. Flaumenbaum’s trial is currently scheduled to be completed on December 6, 2023. The total delay in this case is anticipated to be 22 months and 8 days, thus far exceeding the 18 month-ceiling established by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27.

[3] The primary issues on this application may be summarized as follows:

(1) To what extent, if any, did late disclosure of the complainant’s second videotaped statement and the sexual assault evidence kit (“SAEK”) notes contribute to the delay in setting the initial trial dates?

(2) How should the lack of available court time during the originally scheduled trial dates of May 29-31, 2023, be characterized for section 11(b) purposes?

(3) Should the COVID-19 pandemic be considered as a source of delay for this case?

(4) Did the Applicant’s decision to pursue a mid-trial Mills application contribute to the delay, and if so, should that be characterized as either defence delay or an exceptional circumstance?; and

(5) When the assigned Assistant Crown Attorney became ill during the fall of 2022, should some amount of time be deducted from the total delay as this constitutes an exceptional circumstance?

[4] Mr. Flaumenbaum and Ms. J.L. were in an intimate partner relationship in 2020. He was originally charged with one count of assault against Ms. J.L. on December 16, 2020. He was not charged with sexual assault at that time as no sexual assault allegation was made. Ms. J.L. provided a videotaped statement to the Toronto Police Service (“TPS”). Though she did not disclose possible allegations of sexual assault at that time, she did attend at Women’s College Hospital and a SAEK was completed.

[5] On May 21, 2021, Mr. Flaumenbaum was charged with one count of failing to comply with an undertaking. The allegation was that he sent text messages to Ms. J.L. He was not arraigned on that charge at the commencement of his trial.

[6] On October 29, 2021, Ms. J.L. provided a brief statement to a TPS officer alleging that she had been sexually assaulted by Mr. Flaumenbaum during their relationship.

[7] On December 8, 2021, Ms. J.L. provided a second videotaped statement to the police, in which she provided details about alleged sexual assaults. He was re-arrested on January 29, 2022, and charged with sexual assault. An information was sworn that same day and placed before the Ontario Court of Justice.

[8] The Crown provided initial disclosure regarding the sexual assault charge as early as March 16, 2022. However, two core items of disclosure were not provided until much later: Ms. J.L.’s second videotaped statement, and legible copies of the SAEK notes.

[9] In mid-November 2022, Ms. J.L.’s second videotaped statement was provided to Mr. Hebscher, counsel for the Applicant, with a better copy of the SAEK notes. However, some portions of the SAEK notes were still difficult to read and the Crown agreed to provide new copies to Mr. Hebscher. Those new, legible copies were not provided until well into 2023.

[10] Despite missing these core disclosure items, a judicial pre-trial (“JPT”) was held on December 20, 2022, with Justice Rose. It was not completed because Mr. Hebscher called in late. A continuing JPT was scheduled for January 17, 2023. At that continuing JPT, the parties agreed on a three-day trial estimate. Mr. Hebscher raised the need for a third-party records application and dates were requested for that motion as well. The motion focused on text messages already in the possession of the defence, and whether they were private “records” as contemplated by section 278.92 of the Criminal Code.

[11] The trial coordinator initially offered trial dates of August 2-4, 2023. Those dates were outside the 18-month timeline. Mr. Hebscher informed the Crown he was available for a trial prior to the proposed August dates. Mr. Schreiter was able to obtain new trial dates of May 29-31, 2023.

[12] On April 11, 2023, I ruled that the text messages in the possession of the defence were not private “records”. Mr. Hebscher was thus able to make lawful use of them during the trial without the need for a further application under sections 278.92-94 of the Code.

[13] On April 27, 2023, Mr. Schreiter informed Mr. Hebscher that there was a package of disclosure relating to the fail to comply (“FTC”) with undertaking charge that had not been previously provided to the defence. That package contained another statement Ms. J.L. gave on May 10, 2021. This statement was not provided to Mr. Hebscher until May 16, 2023, after the Crown had time to review and vet this outstanding statement.

[14] In this new disclosed statement, Ms. J.L. informed the police she made “multiple” trips to the hospital as a result of Mr. Flaumenbaum’s assaultive behaviour. While Mr. Hebscher had already received some disclosure of Ms. J.L.’s medical records relating to the treatment she sought on or shortly after December 16, 2020, this was the first time he was made aware that the complainant may have sought out medical treatment more than once. Mr. Hebscher sought an adjournment of the trial dates on the basis that this new information might form the basis of a Mills application. On May 17, 2023, I dismissed the adjournment application. I ordered that the trial would proceed, but if during the cross-examination of Ms. J.L., Mr. Hebscher was able to establish a proper foundation for a Mills application I would re-hear the argument vis a vis the need for an adjournment to pursue that application.

[15] Between May 29 and 31, 2023, the trial commenced. However, only approximately 1.5 days of the three days scheduled were used. The rest of the court days were spent addressing other cases scheduled by the trial coordinator that I chose to prioritize. Those cases were more dated and in one case, involved an accused person in custody. On May 31, 2023, Mr. Flaumenbaum’s trial was adjourned to the continuation date of July 24, 2023.

[16] On July 24, Ms. J.L. continued to be cross-examined. At the conclusion of her testimony, Mr. Hebscher brought a mid-trial adjournment application to pursue a Mills application on the following basis:

(1) Ms. J.L. did not initially report sexual assault allegations against Mr. Flaumenbaum when she provided her first statement to the police on December 16, 2020;

(2) She testified that she took part in counselling before and after the police first investigated her allegation of assault on December 16, 2020;

(3) She testified she continued to seek therapeutic counselling in early 2021 and engaged in that counselling on multiple dates;

(4) During these counselling sessions she discussed the abuse she suffered at the hands of Mr. Flaumenbaum, including sexual assaults;

(5) Her description of the abuse she suffered had evolved over time; and

(6) The counselling sessions helped her recall the sexual offences that occurred and/or helped her remember some of the details of those offences. [^1]

[17] I granted Mr. Hebscher’s request for an adjournment on this basis as I determined the potential Mills application was not manifestly frivolous and appeared to have merit: see R. v. Haevischer, 2023 SCC 11, at para. 3.

[18] Following the adjournment of the trial, an 11(b) motion was scheduled for October 6, 2023. A Mills application was scheduled for November 3 and 24, 2023. The trial continuation dates were set for December 5 and 6, 2023.

Positions of the Parties

[19] The position of the Applicant is that the excessive delay in this case was primarily attributable to the late provision of certain disclosure materials to the defence, and a lack of available court time on the originally scheduled trial dates.

[20] Regarding the late disclosure argument, Mr. Hebscher submits that the complainant’s video taped statement alleging the sexual assaults and a legible copy of the SAEK notes were not provided in a reasonable period of time. Additionally, the complainant’s statement associated to the FTC charge was clearly relevant to the substantive charges as well and should have been disclosed prior to the eve of the trial dates. The tardy provision of these materials prevented the case from moving forward.

[21] The lack of available court time during the May trial dates should be viewed as institutional delay. While Mr. Hebscher did seek leave to adjourn the remainder of the trial on July 24, 2023, to pursue a Mills application, the application was foreseeable and his actions were taken in good faith in response to how the evidence of the complainant unfolded during cross-examination.

[22] There were no exceptional circumstances or discrete events that justify this case exceeding 18 months.

[23] Mr. Schreiter, on behalf of the Crown, submits that there are three periods of delay that should be deducted from the total delay.

[24] First, the period between May 31, 2023 and December 6, 2023, should be characterized as defence delay. The Mills application should have been addressed no later than July 24, 2023. He described it as meritless. The way the application was brought was problematic and contributed to the excess delay. As described in R. v. Cody, 2017 SCC 31, at para. 32, “Defence conduct encompasses both substance and procedure — the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny” (emphasis in original).

[25] In the alternative, Mr. Schreiter submits the time period between May 31, 2023, and December 6, 2023, should be deducted as a discrete exceptional circumstance. The Crown did not consent to the allocation of court resources that occurred, which resulted in Mr. Flaumenbaum’s case not having the full three days of court time between May 29 and 31, 2023. It was a decision the court made in the exercise of its trial management powers.

[26] Second, the period between the first scheduled judicial pre-trial on December 20, 2022, and the next judicial pre-trial on January 17, 2023, was due to Mr. Hebscher calling in late on December 20, 2022. That is also defence delay.

[27] Third, Mr. Schreiter requests that 30-60 days be deducted due to him being ill and out of the office for the time period between September and December 2022. This was an exceptional circumstance.

Delay Due to Late Disclosure

[28] An accused person has a constitutional right to review all the disclosure in a case before determining how to plan their defence. While defence counsel will be expected to take reasonable steps to move a case forward to a trial where non-material items of disclosure remain outstanding, the items not yet disclosed in this case by the time of the first JPT were of fundamental importance.

[29] The failure of the Crown to provide a complainant’s statement in a sexual assault case in a reasonable period of time will inevitably result in unnecessary delay: see my analysis of this issue in R. v. Hotaki, 2023 ONCJ 261, at paras. 35-40. A ten-month delay, otherwise unexplained, in providing the defence with Ms. J.L.’s second videotaped statement is unreasonable.

[30] The legible copies of the SAEK notes that were not provided until over a year after Mr. Flaumenbaum’s arrest on the sexual assault charge were also of fundamental importance. They contained what Mr. Hebscher argued were inconsistent statements of the complainant regarding the allegations she made during her testimony in chief and were central to a considerable amount of his cross-examination on the first day of the trial.

[31] Mr. Schreiter demonstrated to me during this hearing that the specific pages which were not provided in an appropriate format until the end of 2022 were not ones that had much evidentiary value. Even if that is true, the defence has the right to receive all disclosure material that is not clearly irrelevant and make its own determination on its significance. It is also somewhat artificial to view any series of pages of notes in a SAEK in insolation. The entire collection of notes must be available to the defence to fully assess the significance of any single page or collection of pages by putting them in their proper context. Regardless of whether the particular pages that were not provided until the end of 2022 had marginal value or not to the defence, the complainant’s second video-recorded statement was indisputably crucial material.

[32] Had these items been disclosed promptly, the parties could have had a meaningful discussion about the case, set a JPT and then obtained trial dates much sooner than they did. Instead, the failure of the Crown to disclose these items in a timely manner contributed to the delay in setting the original trial dates.

[33] The Crown presented no evidence to explain why it took nearly ten months to provide the videotaped statement of the complainant, or over a year to provide legible copies of the SAEK notes. The Crown accepts it was through inadvertence that the complainant’s May 10, 2021, statement (contained in the FTC charge brief) was not disclosed until shortly before the trial in May 2023. Had this statement also been disclosed far enough in advance of the trial date, it might have affected how Mr. Hebscher pursued a Mills application. That remains somewhat unclear, given how the final Mills application was articulated, but the late disclosure of this statement played at least some part in the total delay that resulted.

[34] Despite not having all these crucial items in mid-November 2022, Mr. Hebscher still agreed to conduct a JPT and set trial dates. He did everything reasonably possible, including sending multiple requests for the missing disclosure throughout 2022, to move the case along as quickly as possible. I disagree with the Crown that the state of disclosure was sufficiently fulfilled that Mr. Hebscher should have scheduled a JPT earlier in 2022. Defence counsel refusing to schedule a JPT until disclosure is complete may be characterized as defence delay in appropriate circumstances: see, for example, R. v. Gandhi, 2016 ONSC 5612, at para. 35. But when the Crown has failed to provide core disclosure materials it cannot avail itself of this argument.

[35] The delay in providing core disclosure in this case is sadly not a new phenomenon and seems distressingly commonplace in Toronto. I adopt the following remarks from Justice Waby in R. v. Osifo, 2023 ONCJ 416, at para. 60, on this issue:

It has become increasingly commonplace for routine, pre-existing, disclosure in criminal cases to take many months to be provided to either Crowns or Defence counsel. This problem is compounded by the fact that typically this material is in existence at the point an Accused is arrested and charged and does not require any further investigative steps to be taken in order to generate it. Simply put, the existing mechanisms for the provision of disclosure are not functioning as intended nor as required. This reality is not a product of the pandemic.

Lack of Court Time: May 29-31

[36] A trial judge’s lack of availability to hear a case on previously scheduled dates will normally constitute institutional delay. Between May 29-31, 2023, half the available court time was devoted to other matters that were prioritized instead of Mr. Flaumenbaum’s case. These cases had even lengthier histories.

[37] A lack of available judicial resources is not an exceptional circumstance: see R. v. Perrault, 2020 ONCA 580, at para. 2. While the Crown is not responsible for the staffing of the courts, the Crown at large is responsible for preventing systemic delay: see Perrault at para. 5. The trial could not finish during these originally scheduled dates due to the overburdened caseload this courthouse continues to endure. More time simply had to be obtained.

[38] Mr. Hebscher directed me to two recent decisions of this court where judges have held that the delay resulting from the persistent court closures that have plagued this courthouse since its inception constitutes institutional delay: see R. v. C.L., 2023 ONCJ 381 and R. v. Vorob’eva, 2023 ONCJ 375. He submits that while this case was not directly impacted by court closures, it was indirectly affected. Had the courts been adequately staffed throughout this year, this case would likely have been heard on the scheduled dates.

[39] Mr. Schreiter argued that the double-booking that occurred on the originally scheduled trial dates was an exceptional circumstance beyond the control of the Crown. Furthermore, the need for this double-booking could be characterized as an unintended consequence of the COVID-19 pandemic. The “ripple effects” of the pandemic have been noted by a variety of prior courts considering Jordan applications. See, for example, a review of that jurisprudence by Akhtar J. in R. v Meawasige, 2023 ONSC 2907, at para. 48.

[40] I respectfully disagree with the Crown’s position. There is no evidence that the effects of the pandemic had anything to do with the scheduling delay in this case. While it is difficult to determine with precision the causes of the double-booking that occurred on May 29 and 30, in my view the lack of available court time was far more closely linked to the regular court closures that have affected this jurisdiction. They create their own “ripple effects” – that is, when a case cannot be reached on a scheduled date, it is adjourned to another date when it conflicts with another assigned case. That is what happened on May 29 and 30. Having been unable to conclude my other matters on an earlier date or secure faster continuation dates for them, they were scheduled at the same time as Mr. Flaumenbaum’s case and the other matters had to compete for the limited court time that was available.

[41] For Jordan purposes, it does not matter that this double-booking was not the “fault” of the assigned Assistant Crown Attorneys on any of my assigned cases. It is the Crown’s obligation at large to ensure that sufficient court time is available for all accused persons to have their constitutionally protected rights under section 11(b) of the Charter respected.

Delay Resulting From The Mills Application

[42] What finally pushed this case beyond the Jordan ceiling was the adjournment granted on July 24, 2023, for Mr. Hebscher to perfect a Mills application. In Jordan, the Supreme Court held that defence actions legitimately taken to respond to the charges do not constitute defence delay: see para. 65. In R. v. Zahor, 2022 ONCA 449, the Ontario Court of Appeal clarified that the time defence counsel take to prepare non frivolous applications should similarly not be construed as defence delay: see para. 65.

[43] The Mills application brought in this case was not frivolous or meritless. The entire chronology of the events in this case must be kept in mind. Ms. J.L. was originally interviewed by TPS officers on December 16, 2020, and did not report a sexual assault. She was asked about any possible sexual assault allegations in that interview. It was not until December 8, 2021, that she provided a lengthy statement describing the sexual assaults that were alleged to have occurred prior to December 16, 2020.

[44] On May 16, 2023, Mr. Hebscher finally received a copy of the statement Ms. J.L. provided on May 21, 2021, wherein she explained she visited a hospital multiple times because of the assaults. That was disclosed on the eve of the forthcoming trial dates in May 2023. He acted with due diligence to explore the possible viability of a Mills application. Due to my ruling on the initial adjournment application, it was only after the cross-examination of Ms. J.L. revealed testimony relevant to the nature of the medical records in question that he was able to begin the process of bringing and perfecting a Mills application. I do not agree he could have brought the specific Mills application that he did based on the disclosure materials alone. Indeed, it was due to the answers provided during her cross-examination that Mr. Hebscher was able to demonstrate that a Mills application would be more than a fishing expedition, as Ms. J.L. testified that the therapy sessions affected her memory of the sexual assaults. That has been recognized as a legitimate basis to establish likely relevance: see, for example, R. v. W.B., 2000 ONCA 5751, at para. 76.

[45] Mr. Schreiter argued that Mr. Hebscher could not point to any material inconsistencies in Ms. J.L.’s evidence even when comparing her courtroom testimony and her prior statements that form part of the disclosure materials. Thus, the Mills application will inevitably fail. Mr. Hebscher, unsurprisingly, took a very different view, and characterized Ms. J.L.’s description of the sexual assaults as having evolved over time. I need not resolve that debate when deciding this delay motion. All that matters is that Mr. Hebscher had an arguable basis to pursue the Mills application and therefore time needed to be set aside for it.

[46] Mills applications can be lengthy and time-consuming. They must take place in multiple stages. The applicable provisions of the Criminal Code require notice to the affected parties. Both the complainant, and the record-holder, have standing and are entitled to appear and make submissions, in addition to Crown and defence counsel. Yet such an application is the only lawful means by which the defence can seek to obtain a complainant’s private therapeutic records. It was not realistic that the application could have been completed prior to the end the continuation dates for the trial on July 24 and 25, 2023. A further adjournment was inevitable.

[47] However, a Mills application is not an unusual feature of many sexual assault trials. There is nothing about the application that was brought in this case that makes it particularly complicated such that it can justify the delay that has exceeded the presumptive ceiling: see R. v. M.I., 2022 YKTC 7, at para. 46; R. v. J.P., 2020 ONCJ 27, at paras. 108-9. While it was brought mid-trial, which is not the preferred procedure, in the circumstances of this case Mr. Hebscher cannot be faulted. Mr. Flaumenbaum had no right to a preliminary hearing, and there was no opportunity for Mr. Hebscher to lay a foundation for the application prior to the complainant testifying at the trial.

[48] There is a tension, at times, between the accused’s right to make full answer and defence and the right to a timely trial: see R. v. Seyeon Lee, 2023 NSCA 3, at para. 31; R. v. Cody, 2017 SCC 31, at para. 34. Legitimate defence actions may cause delay in the trial process. But that does not mean they should be mischaracterized as either “defence delay” or an exceptional circumstance for Jordan purposes: see R. v. Lai, 2021 BCCA 105, at para. 85. Delay should only be deducted for what a court deems to be illegitimate defence conduct, which involves a highly discretionary assessment by the application judge viewed in the specific circumstances of the case before the court: see R. v. Hanan, 2023 SCC 12, at para. 9; Cody at para. 31; Seyeon Lee at paras. 36-37.

[49] As stated by Justice Green in R. v. J.P., 2020 ONCJ 27, “[t]here are no special rules or exemptions from s. 11(b) in sexual assault cases”: see para. 57. In Cody, the Supreme Court expressly held that the presumptive ceilings established in Jordan “reflect the increased complexity of criminal cases… including the emergence of [n]ew offences, procedures, obligations on the Crown and police, and legal tests”: see para. 63. Mills applications long predated the decision in Jordan.

[50] Defence counsel cannot perfect a Mills application in a short period of time. At least two to four weeks, and perhaps more, will realistically be required for even an experienced defence lawyer to take the necessary steps to do so. Mr. Hebscher needed time to obtain instructions from his client, draft the appropriate materials, serve them on the affected parties, obtain a hearing date and ensure anyone with standing was available on that date. The application must be in writing and should contain some legal argument and cite appropriate precedents. I disagree with the Crown’s position that any delay that resulted from the scheduling of that Mills application therefore constitutes defence delay. Mr. Hebscher continued his cross-examination of the complainant on July 24, 2023, and continued to challenge her on the number and frequency of the sexual assaults she experienced. [^2] Mr. Hebscher acted in good faith at all times.

[51] In R. v. J.J., 2022 SCC 28, the Supreme Court noted that applications for records in sexual assault cases should normally come in pre-trial applications, to avoid delay. At paragraph 86, the Supreme Court nevertheless noted that:

…as a general rule, private record applications should be brought at the pre-trial stage of the proceedings. There is good reason for this. If mid-trial applications become routine, this would result in frequent adjournments, significant delays, scheduling difficulties ⸺ particularly in jury trials ⸺ and potential unfairness to the accused. Mid trial applications could also harm complainants and discourage the reporting and prosecution of sexual offences. One example of where a mid-trial application may be in the “interests of justice” is if the record was only discovered during the course of the trial. [^3]

[52] A point of contention during the trial focused on whether Mr. Hebscher’s cross-examination of Ms. J.L. on her private medical records was permissible whatsoever. Mr. Schreiter objected to many of Mr. Hebscher’s questions, arguing that they exceeded the scope of lawful cross-examination and unduly intruded into her privacy interests. I ruled that Mr. Hebscher was allowed to ask certain exploratory questions about Ms. J.L.’s counselling sessions. I followed the reasoning and decision of Justice Thomas in R. v. Lakis, released on June 13, 2023, and currently unreported. Justice Thomas noted that the Ontario Court of Appeal previously sanctioned this form of exploratory questioning of a complainant to establish “likely relevance” at either the preliminary hearing, or a trial, in R. v. E.B., 2002 ONCA 23582. The Court of Appeal wrote the following at para. 33:

First, the evidentiary basis necessary to support the analysis required to determine a s. 278.3 production application can be established through a variety of means, including by cross-examination of Crown witnesses at a preliminary inquiry. McLachlin J. (as she then was) and Iacobucci J., writing for the majority in Mills, stated at pp. 749-50 S.C.R., pp. 386-87 C.C.C.:

This [evidentiary] basis can be established through Crown disclosure, defence witnesses, the cross-examination of Crown witnesses at both the preliminary inquiry and the trial, and expert evidence, see: O'Connor, supra, at para. 146, per L'Heureux-Dubé J. [^4]

[53] I agreed with my colleague’s reasoning and analysis and permitted Mr. Hebscher to ask appropriate, generalized questions about the complainant’s therapy sessions. He had no basis to seek an adjournment for a Mills application regarding these therapeutic records until his cross-examination of the complainant in this area was complete. His decision to do so aligns with the Supreme Court’s comments about mid-trial applications in J.J.

[54] When Parliament chose to remove preliminary hearings for sexual assault cases in Bill C-75 [^5] it altered what had been the traditional means by which defence counsel would lay a foundation for a Mills application. Prior to these amendments, in cases where the Crown proceeded by indictment, defence counsel would normally seek permission of the court to cross-examine the complainant at a preliminary hearing about the existence of any private records. If the answers to those questions provided a basis for a Mills application, following a decision on committal before the provincial court justice, the application would be brought before the Superior Court of Justice at a future date as that was the trial court.

[55] Post Bill C-75, preliminary hearings are not available for sexual assault cases where the Crown proceeds by indictment. As a result, more sexual assault trials are being set in the Ontario Court of Justice. One consequence of these changes is that bifurcated hearings in sexual assault cases have become more common as the cross-examination of the complainant during the trial itself becomes the only mechanism through which defence counsel can obtain sufficient evidence to establish the “likely relevance” threshold test. These prosecutions take more court time accordingly and scheduling them in a busy trial court often becomes difficult. That reality, however unfortunate, is not an an exceptional circumstance. This procedure was known to occur in some sexual assault cases prior to Bill C-75, and it was entirely foreseeable that the procedure would become more common as a result of the legislative changes Parliament enacted. Furthermore, it has been four years since Bill C-75 came into force.

[56] Fundamentally, had the Crown provided complete disclosure earlier in this case, trial dates would likely have been obtained sufficiently far in advance of the 18-month ceiling that a mid-trial Mills application could have been completed without compromising Mr. Flaumenbaum’s section 11(b) rights. It is well known that modern sexual assault trials can be notoriously procedurally complex and the Crown must make scheduling and prioritization decisions consistent with that reality in order to ensure these cases are brought to trial within the Jordan time limits. Mr. Hebscher took reasonable steps to obtain future dates for the Mills application and the trial proper following the completion of the available court time on July 24, 2023.

Defence Delay – First Scheduled Judicial Pre-Trial

[57] I agree with the position of the Crown that because the first scheduled JPT could not be completed because Mr. Hebscher arrived late, the time to schedule the next judicial pre-trial constitutes defence delay. Therefore, I deduct 29 days from the total delay (that is, December 29, 2020, to January 17, 2023.)

Discrete Event – Illness of the Crown

[58] Mr. Schreiter was away from work in the Fall of 2022 for two months because of illness and surgery. He was assigned to Mr. Flaumenbaum’s case. That was not something that could have been avoided.

[59] Mr. Hebscher expressed his sympathies for Mr. Schreiter’s personal circumstances at the time but argued that if he could not look after the file another Crown should have been assigned to do so. Furthermore, it remains unclear whether Mr. Schreiter’s absence from work actually had an impact on the provision of the outstanding disclosure materials.

[60] A sexual assault case should not normally have to be re-assigned in these circumstances. These are not minor prosecutions and require a considerable amount of care and attention from the assigned Assistant Crown Attorney. If Mr. Schreiter was likely to be away from work for several more months, Mr. Hebscher’s argument would be more persuasive. In those circumstances, cases cannot be allowed to sit neglected by the Crown’s office. I am aware however of the crushing workloads placed on Assistant Crown Attorneys in this jurisdiction. Re-assigning a case of this severity is not a trivial undertaking.

[61] I am satisfied based on the record before me that Mr. Schreiter did face an unexpected illness in the Fall of 2022 and that he was unable to attend to all his professional responsibilities as a result. [^6] While it is difficult to draw a direct line between his absence and the provision of the disclosure materials, it seems uncontroversial that it was a relevant factor.

[62] I deduct a further sixty days accordingly for this exceptional circumstance.

Conclusion

[63] The total delay in this case was 677 days (or approximately 22 months and 8 days). From that, I deduct two months (or sixty days) due to Mr. Schreiter’s personal circumstances in the fall of 2022, and another 29 days for defence delay as a result of the first JPT being rescheduled.

[64] The net delay is therefore 19 months and 6 days.

[65] Once I granted the defence request for an adjournment for the Mills application, dates to continue the trial were offered by the trial coordinator on December 5, and 6, 2023, after the Mills application could be heard. These were the earliest dates offered that were available to all the parties.

[66] Even if I were to deduct another thirty days for the manner in which the Mills application was brought, this case would still exceed the Jordan ceiling. Regardless, I am unprepared to find that any of that time should be deducted as previously explained.

[67] Mr. Flaumenbaum’s Charter section 11(b) rights were violated and I enter a stay of proceedings.

Released: October 19, 2023 Justice Brock Jones

Footnotes

[^1]: Transcription of the testimony of Ms. J.L. on May 31, 2023, at pages 23-25. [^2]: Transcript of the trial proceedings, July 24, 2023, at page 5. [^3]: My emphasis added. [^4]: My emphasis added. [^5]: Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, 1st Sess., 42nd Parl., 2019, c. 25. In force September 19, 2019. [^6]: While most of this information was not in dispute, additional details were provided by way of oral submissions from Mr. Schreiter when this application was argued. I am content to rely upon the representations of the Crown for these details. Mr. Schreiter is an officer of the court. Counsel submissions may be relied upon by a court when deciding various form of motions: see, for example, R. v. Lachance, 2023 SKCA 48, at paras. 91-97.