ONTARIO COURT OF JUSTICE

DATE: November 8, 2023

COURT FILE No.: 20-750004967 (Toronto)

BETWEEN:

HIS MAJESTY THE KING

— AND —

NOAH HART

Before: Justice Hafeez S. Amarshi

Written reasons for judgment released on: November 8, 2023

Counsel: M. Walia, for the Crown K. Kaczmara, for Noah Hart

H.S. Amarshi J.:

DELAY APPLICATION RULING

A. Introduction

[1] Noah Hart brings an application for a stay of proceedings under s. 24(1) of the Charter as a result of an alleged violation of his s. 11(b) right to a trial without unreasonable delay.

[2] The total delay in this case is 22 months and 21 days (690 days). A period that encompasses the date when the information was sworn - November 6, 2020, until the completion of trial on September 26, 2022. It exceeds the 18-month ceiling for proceedings in the Ontario Court of Justice established by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27.

[3] The 11(b) application was filed and heard after the completion of evidence in this case, but prior to judgment. I deemed this period, post-trial, when argument was heard on the motion as having no impact on the presumptive Jordan ceiling.

[4] By way of a brief summary, the Applicant was charged with two counts of fail to comply with an undertaking, specifically, that he have no contact with the complainant. He was further charged with one count of assault and one count of utter death threat involving the same complainant, his former girlfriend. The incidents were alleged to have occurred between August 24, 2020, and October 15, 2020. The Crown proceeded by summary election.

B. Position of the Parties

[5] The Crown argues the net delay in this case is 480 days or just under 16 months. This takes into account both exceptional circumstances and defence delay.

[6] Ms. Walia cites both the impact of COVID-19 on these proceedings and the Applicant’s failure to mitigate delay in the litigation process.

[7] The Applicant counters that “the bulk of the delay” in this case is a result of a combination of factors including institutional, specifically the court administration’s inability to accommodate earlier trial dates.

[8] A significant portion of delay in this case is due to a prolonged processing time by Legal Aid Ontario before granting a certificate to Mr. Hart. The parties disagree on how this period, which I found was the main cause of delay in this case, is to be characterized.

C. Timeline

[9] The following is a summary of significant dates in these proceedings:

a. November 6, 2020 – The Applicant is arrested, and the information is sworn. Mr. Hart is released on a surety bail that same day. The incidents underlying these charges occurred between August 24, 2020, and October 15, 2020. b. November 30, 2020 - Initial disclosure is provided. c. December 4, 2020 – Jane Stewart, a staff lawyer with Justice for Children and Youth attends. She is not retained counsel but is assisting Mr. Hart during the initial stages of his criminal proceedings. The matter is adjourned for the Applicant to make a legal aid application. d. January 8, 2020 – Matter is adjourned for a referral to the Partner Assault Response Program (PAR). e. February 3, 2020 – Matter returns for PAR intake in 503 court. Counsel J. Stewart advised she is having resolution discussions with the Crown and indicates the matter should return to the “regular” case management stream in set date court. f. February 26, 2020 – Ms. Stewart advised she is not retained but is assisting the Applicant in obtaining a legal aid certificate. She requests a one-month adjournment. She states she is hopeful that she can conduct a Crown pre-trial in the interim. g. March 26, 2021 – Ms. Stewart seeks a further one-month adjournment. She advised that the Applicant has a legal aid certificate, without clarifying it was not for the charges before this Court. She advises she would assist Mr. Hart to “connect with [the] private bar” and requests a one-month adjournment. h. April 23, 2021 – Agent K. Vettraino attends on behalf of counsel Kevin Kaczmara. She clarifies that counsel in not retained on the charges before this Court, but that Mr. Kaczmara is retained on an earlier set of assault charges involving the same complainant (offence dates of August 20 and 24, 2020). The agent requests a seven-week adjournment. i. June 11, 2021 - K. Vettraino attends and request an adjournment for retainer purposes. j. July 22 – Despite the lack of a legal aid certificate and formal retainer, a Crown pre-trial is conducted between Mr. Kaczmara and the assigned Crown. k. July 23, 2021 – Agent N. Robbins attends in set date court. He advised that “retainer has not been finalized.” (Mr. Kaczmara, however, receives a legal aid certificate the next day.) Agent Robbins requests a long adjournment to a date in September. The request is opposed by the Crown who suggests a self-represented JPT be scheduled given the lack of retainer and that the matter return earlier. The presiding justice agreed, and the matter returns on August 20. l. August 20, 2021 – No transcript was provided. m. August 24, 2021- A judicial pre-trial is conducted (JPT). A two-day trial estimate is agreed upon by all parties. The JPT was set for an earlier set of domestic charges (August 20 and 24, 2020 offence dates) and the parties agree to include the charges before this Court as part of their discussions. n. September 24, 2021 – Trial dates are scheduled for July 28 & 29, 2022 and formally endorsed on the record. The Trial Coordinator earlier offered July 18 & 19 – the defence was available but the Crown was not available for those dates. A further ½ day on September 26 is identified for the lost evidence application which does not proceed. [1] o. July 22, 2022 – The parties confirm they are ready to proceed to trial. p. July 28 & 29, 2022 – The trial commences in courtroom 504 but is not completed in the time allotted. Defence brings an application for a directed verdict. q. September 26, 2022 – direct verdict application is dismissed in part. The Crown asks one court of utter death threat be dismissed. The defendant testifies and matter proceeds to submissions. The trial is completed. r. October 16, 2022 – the defence files an 11(b) application. The application is perfected on October 25 with the inclusion of outstanding transcripts. s. November 17 & 18, 2022 – 11(b) application is heard. t. March 31, 2023 – further 11(b) submissions on a discrete legal issue.

D. Applicable Principles

[10] In R. v. Jordan, the Supreme Court outlined the analytical framework to determine whether delay in time to trial is unreasonable. Where total delay at the Ontario Court of Justice exceeds 18 months, the delay will be presumptively unreasonable, subject to a consideration of case-specific exceptional circumstances. As the Court explained at paragraph 40, “Unnecessary procedures and adjournments, inefficient practices, and inadequate institutional resources are accepted as the norm and give rise to ever-increasing delay. The culture of delay “causes great harm to public confidence in the justice system.”

[11] The framework in Jordan is summarized by the Ontario Court of Appeal in R. v. Coulter, 2016 ONCA 704. At paras. 34-40, Gillese J.A. provides the following summary:

34 Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).

35 Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, at para. 66).

36 Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).

37 If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

38 Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).

39 If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).

40 If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48). [emphasis in original]

Exceptional Circumstances

[12] Exceptional circumstances as the Supreme Court in R. v. Jordan explained, “lie outside the Crown's control” in 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.” The Court goes on to note that the circumstances need not be "rare or entirely uncommon." [2]

[13] In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases. [3]

[14] The period of delay caused by any discrete exceptional events is to be subtracted from the total period of delay. [4]

[15] At paragraph 73, the Supreme Court in Jordan states, "If the trial goes longer than reasonably expected -- even where the parties have made a good faith effort to establish realistic time estimates -- then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance."

E. Analysis

[16] This application turns in large part on how I characterize the period of delay attributed to the time Mr. Hart’s legal aid application was being processed.

[17] This analysis requires a detailed review of certain time periods during these proceedings.

(1) November 6, 2020 – December 11, 2020, arrest to legal aid application (55 days). No deduction is warranted.

[18] The Applicant is arrested on November 6, 2020, and the information is sworn. Mr. Hart is released on a surety bail that same day. On December 4, the Applicant’s first appearance in set date court, Jane Stewart, a staff lawyer with Justice for Children and Youth attends. She advised that she is not retained but that she is assisting the Applicant during the initial stages of this proceedings. The matter initially proceeds in the PAR stream but is returned to the “regular” case management stream in 505 court for the purposes of a legal aid application.

[19] Substantial disclosure is provided during this period.

[20] On December 11, Ms. Stewart advised the Applicant via e-mail that she would assist with Mr. Hart’s legal aid application.

[21] There is no subtraction of delay warranted for this period of time.

(2) December 11, 2020 – July 24, 2021, period until a legal aid certificate is granted (226 days). A portion of this period is deemed defence delay. The remainder are exceptional circumstances.

[22] This application largely turns on how the delay for legal aid to render a decision is characterized.

[23] The defence argues that the time spent waiting for legal aid to determine if an accused person will receive a legal aid certificate should not constitute defence delay or a discrete event and that such time should go towards the Jordan presumptive ceiling.

[24] The Respondent submits that the delay caused by the processing of the Applicant’s legal aid application is an exceptional circumstance in this case. Further, this period should be deducted from the total period of delay, as the Crown took reasonable and appropriate steps to mitigate the delay.

Applicant’s efforts in obtaining legal aid

[25] In response to my inquiry as to how this period of delay should be characterized in the 11(b) analysis, the defence filed an affidavit outlining the Applicant’s efforts at obtaining legal aid. [5]

[26] Based on the information from the affidavit, Mr. Hart spoke with Legal Aid Ontario (LAO) on December 8, 2022. [6] Although he writes in an e-mail to Ms. Stewart that he was not “refused,” he was advised by LAO that he would require a duty counsel referral because he was not facing jail time. He seeks Ms. Stewart’s assistance with a referral.

[27] Ms. Stewart responds via e-mail dated December 11, 2020, that she would call LAO on Mr. Hart’s behalf and requests the Applicant’s client number. [7]

[28] On February 26, 2021, the Applicant sent an e-mail to Ms. Stewart where he advised “[j]ust spoke with Duty Counsel who informed me I would not qualify for legal aid due to my income.” [8]

[29] This is corroborated in notes contained in a screenshot from the LAO portal which shows that Mr. Hart called LAO on February 26, 2021, seeking a duty counsel referral, but that he was advised he is not financially eligible for a certificate. He calls back on March 8 again seeking a referral. [9]

[30] A legal aid certificate is issued, however, on April 16, 2021, for the August 20 and 24, 2020 assault charges that pre-date the charges before this Court. They involve the same complainant.

[31] On June 10, 2021, Mr. Kaczmara files a “request to cover additional charges” so that the previously issued legal aid certificate could encompass the charges before this Court. [10]

[32] On June 17, LAO issues a notice of intention to cancel the certificate for the August 20 and 24, 2020 charges. On June 28, the Applicant files an appeal of the cancellation. The appeal is granted on July 16. [11] According to Mr. Kaczmara, the Applicant was to provide additional financial information to confirm he was not in receipt of an additional source of income.

[33] On July 24, 2021, LAO amends the certificate to include the charges before this Court - assault, utter threat and fail to comply x 2.

Relevant Legal principles

[34] The issue remains as to how to characterize the period when Mr. Hart was waiting for his legal aid application to be processed and in this case a certificate rendered.

[35] In R. v. Case, 2019 ONSC 7240, the court concluded where there was no evidence that the accused was not diligent in making her application and appeals, or that Legal Aid Ontario was "dragging its feet" and where the Crown on several occasions pushed for the matter to be moved along and noted its concerns about the delay, the delay was labelled exceptional.

[36] However, Kurle J. at para. 15, relying on the Court of Appeal’s decision in R. v. Boateng, 2015 ONCA 857, cautioned “[t]he Crown is not permitted to stand by and do nothing when an institutional participant such as LAO "drags its feet and places the rights protected under s. 11(b) in jeopardy."

[37] In Boateng at para. 32 Doherty J.A. addressed the issue of delay caused by the actions of Legal Aid Ontario.

The Crown bears the responsibility of bringing an accused to trial within a reasonable time: R. v. Godin, at para. 11; R. v. Morin, at pp. 801-802. As the prosecutor, the Crown is best positioned to spot and react to potential delay-related problems caused when an institutional participant in the criminal justice system, like LAO, drags its feet and places the rights protected under s. 11(b) in jeopardy. If the Crown fails to react to these delays, it will bear responsibility for them in the s. 11(b) calculus. That responsibility exists regardless of whether LAO is classified as part of the government or the prosecution.

[38] I appreciate Boateng is a pre-Jordan case, but the principles outlined by the court survives in the current analysis – there is an expectation that the Crown take available and reasonable steps to address unnecessary delay, including delay caused by LAO, before the Jordan ceiling is exceeded.

[39] In R. v. Pastuch, 2022 SKCA 109, the Saskatchewan Court of Appeal concluded that in the context of the Jordan framework “that undue delay caused by the failure of the Crown to react to delays of this sort by Legal Aid Saskatchewan would not constitute a discrete exceptional event.” The court further explained when Legal Aid Saskatchewan failed to respond expeditiously in the provision of legal aid counsel, the Crown was “obliged to take steps to attempt to mitigate the problem.”

[40] In R. v. Rouse, 2020 ONSC 6162, the court held that since there was no evidentiary basis to conclude that LAO delayed the processing of the Applicant’s application, the time spent waiting for legal aid funding was considered an exceptional circumstance.

[41] The defence relies on R. v. Payne, 2017 ONCJ 512, where Monahan J. agreed with the Defence and the Crown that the time spent waiting for legal aid to determine if a person receives a legal aid certificate will not constitute defence delay and that such time will go towards the Jordan presumptive ceiling.

[42] Although I found the court’s reasoning in Payne to be compelling, I am not inclined to conclude that LAO processing times always count towards the presumptive ceiling. Delays caused by LAO’s failure to act in a timely manner are largely outside of the Crown's control.

[43] I accept that time spent waiting for a legal aid determination does not constitute defence delay, the issue is whether to characterize the delay in this case as an exceptional circumstance. [12]

[44] Based on a review of the caselaw and relevant principles I have concluded that the time waiting for a legal aid determination can be characterized as an exceptional circumstance, provided the Crown made efforts to mitigate delay.

Crown efforts at mitigating delay

[45] I find the Crown made reasonable efforts to mitigate delay in this case during this period (December 11, 2020 – July 24, 2021). Initial disclosure was made available prior to the Applicant’s first set date appearance. Although not retained, the Crown had early on preliminary discussions with counsel Jane Stewart.

[46] Further, Ms. Walia the assigned prosecutor, had a Crown pre-trial with Mr. Kaczmara in anticipation of retainer. In addition, the Crown agreed to include the current charges at a JPT already scheduled for Mr. Hart’s assault charges from an earlier offence date, avoiding the need to schedule a further JPT.

[47] Of significance, at a July 23, 2021 set date appearance, prosecutor Deepa Balachandran, advocated that the matter proceed to a self-represented JPT because of a lack of retainer. In addition, she sought an earlier return date than suggested by the agent for Mr. Kaczmara in order to move the matter forward more quickly. The presiding justice agreed.

[48] Whether the cumulative impact of these steps by the Crown measurably reduced delay in this case is uncertain, although the inclusion of these charges at the pre-scheduled August 24, 2021, JPT was a meaningful attempt at mitigating delay.

[49] The Crown is not required to show that the steps it took were successful – rather, just that it took reasonable steps in an attempt to avoid delay. [13]

LAO actions and lack of an evidentiary record

[50] Part of the difficulty in accepting the Applicant’s argument that the Crown stood by and did nothing while an “institutional participant” dragged its feet is that for multiple set date appearances, Ms. Stewart, although not retained, made representations that indicated the matter was moving along, saying initially the matter was proceeding via the PAR stream and when that turned out not to be the case, that Mr. Hart had made a legal aid application. Of note at the March 26, 2021, set date appearance Ms. Stewart advised that a legal aid certificate had been issued without clarifying that certificate did not include the Applicant’s current charges before this Court.

[51] It is not until almost a month later, on April 23, that Ms. K. Vettraino, agent for Mr. Kaczmara, clarifies that counsel is not retained. She does state, however, “He (Kaczmara) anticipates being retained shortly on the breach charges.” That turns out not to be the case. It is not until June 10, 2021, that counsel makes an application to amend the legal aid certificate to include the current breach and assault charges.

[52] In the circumstances it is unclear what else the Crown could have done to expedite this matter given these representations by Ms. Stewart and agent for counsel. Neither would it have been appropriate for the Crown to challenge these representations without a good faith basis to do so.

[53] There is a curious lack of engagement by the Crown at Mr. Hart’s next set date appearance on June 11, when the matter is adjourned for a further six weeks with little comment, but upon review of the whole record, I am satisfied the Crown was reasonably diligent in their efforts to reduce delay at the set date stage.

[54] The second difficulty in accepting the defence argument that LAO “foot dragging” contributed to “institutional delay” in this matter is that the evidentiary record before me is insufficient to make such a finding.

[55] On December 8, 2020, Mr. Hart e-mails Ms. Stewart to advise that he is “not eligible for the certificate at this time.” Ms. Stewart advises she will call LAO to determine if a certificate can be issued. It is unclear, however, what efforts were made by counsel as a result of this correspondence and whether a formal legal aid application was made.

[56] On February 26, 2021, the Applicant again contacts LAO and he is advised he does not qualify due to his income. However, on April 13 he does receive a legal aid certificate for his initial set of assault charges. Again, it is unclear what occurs between February 26 and April 13 for LAO to change their position.

[57] It is further unclear why LAO did not include in the certificate the current charges before this Court. Mr. Kaczmara conceded he did not know the reason during submissions. If anything, that appears to be an oversight by LAO that would have contributed to unnecessary delay in this case, but again the evidentiary record is incomplete for this Court to draw any definite conclusions.

Defence delay

[58] The period between April 16 and June 10 (55-day period) is deducted from the total period of delay as defence delay.

[59] On April 16, Mr. Hart received a legal aid certificate for a prior occurrence involving the complainant (offence dates - August 20 and 24, 2020). It was not until seven weeks later on June 10, that Mr. Kaczmara seeks to include the charges before this court as part of the certificate. Counsel concedes this period may be considered defence delay. No explanation was provided for the delay in seeking an amendment to the certificate.

Conclusion – period before a legal aid certificate is granted

[60] The period between December 11, 2020, to July 24, 2021, a 7 ½ month period is deducted from the total period of delay as defence delay and exceptional circumstances. This brings the total period of delay below the Jordan threshold.

Summary of allocations:

(i) December 11 – April 16 – exceptional circumstances – legal aid application pending. (ii) April 16 – June 10 – defence delay. A certificate is issued but does not encompass the current charges. The defence delays an application for seven weeks to amend the certificate. (iii) June 10 – July 24 – exceptional circumstances – amended legal aid application pending.

(3) July 24, 2021 – September 26, 2022 (430 days)

[61] During this period, Mr. Kaczmara is retained and a JPT is conducted. A two-day trial estimate is agreed upon by all parties at the JPT. Trial dates are scheduled for July 28 & 29, 2022 and a further ½ day on September 26 is identified.

[62] The trial commences on July 28, 2022, in courtroom 504. It was a hybrid proceedings. Previously, the Crown's 714.1 application was granted allowing the complainant to testify via video conference. All other parties were in the courtroom. Due to technical issues in the morning, the trial did not commence until 11:11 a.m. On the first day the Crown called the complainant. Cross-examination commenced in the afternoon and continued into the morning of the next trial date. In addition, the Crown called two police officers. Their evidence, which was brief, was tendered in large part to support the two fail to comply undertaking counts before this court.

[63] Of note, the second Crown witness – PC Darryl Kirchner was on a radio call and was not available when required in court. After an extended morning break, Officer Kirchner attended. The trial was delayed approximately 45 minutes. [14]

[64] Just prior to the lunch hour on July 29, the defence brought a directed verdict motion in relation to the breach of undertaking and threatening counts. Counsel made, what I deemed to be a novel argument, in relation to what he described as “deficiencies” on the face of the CEA notice. Submissions ran well into the afternoon. [15] Mr. Kaczmara further provided written submissions post July 29. The matter went over to the next trial date for this Court to render a decision and the completion of evidence.

[65] On September 26, 2022, the matter returned for trial. The motion for a directed verdict was partially successful. Ms. Walia fairly conceded that the evidence could not support a finding of guilt in relation to the threatening count and invited this Court to dismiss that charge. I dismissed the directed verdict motion in relation to the two breach counts.

[66] The Crown closed their case and Mr. Hart testified. The parties proceeded directly into submissions. These proceedings took the bulk of the day and the trial was completed.

[67] This 14-month period from the time the trial dates were identified until the completion of evidence is not to be deducted from the total period of delay.

F. Periods that do not impact the 11(b) analysis

[68] The defence filed an 11(b) application on Oct 16, 2022, two and a half weeks after the trial had been completed, but prior to judgement. The application was heard on November 17 and 18.

[69] Despite its late filing, I determined that it was in the interests of justice to permit the application to be brought. On the face of it, the total period of delay was concerning.

[70] The defence suggested the period until the application was heard be considered as part of the of total period of delay. I did not accept that submission. The period from the end of trial until the application date can be characterized as either defence delay or as an exceptional circumstance if any characterization is required. The application should have been brought in advance of trial under the applicable rules of this Court. This period post-trial that was required for the scheduling and hearing of the delay motion has no impact on the presumptive Jordan ceiling.

[71] On January 12, 2023, I wrote to the parties seeking clarification on a legal issue – specially how to characterize the period of delay waiting for Mr. Hart’s legal aid application to be processed. I did not agree with the way in which the parties characterized this period of delay during initial submissions. I deemed the issue to be novel. I provided two cases for the parties to review on this issue.

[72] It was agreed additional time was required for submissions on this discrete issue. March 31 was identified. Both parties filed additional written submissions in advance of oral arguments. This period is not to be considered as contributing to the period of total delay in this case.

G. Impact of COVID-19

[73] The Crown argued that the closure of the courts due to the COVID-19 pandemic created a “ripple” effect of backlog which continues to substantially affect the operations of this court.

[74] It is well accepted that the COVID-19 public health crisis is an unprecedented event and is to be considered an exceptional circumstance. [16] I am not satisfied, however, that the Crown has established a sufficient link between the pandemic and delay in this case. Although this case coincided with the endemic stage of the COVID health crisis, the evidentiary record hardly establishes a sufficient link between the pandemic and delay in this case. [17] Accordingly, no deduction is warranted for this factor as advocated by the Crown.

H. Defence obligation to raise concerns about delay

[75] The Crown argued that the Applicant had a responsibility to mitigate delay and should have sought an earlier trial date that was not outside the Jordan threshold or at minimum notified the Court and Crown in a timely manner that delay was an issue. I found merit in this argument.

[76] On September 9, 2021, the parties after corresponding with the trial coordinator identified July 28 and 29, 2022 as available trial dates – approximately 21 months after the information was laid. [18] The defence does not raise the issue of delay until post-trial. [19]

[77] The defence bears some obligation to be proactive in raising concerns about delay. In R. v. Kullab, 2023 ONCJ 458, Monahan J. states where the defence chooses to wait until delay is “locked in” before raising the issue, the Court may find some defence delay. In Kullab, the Court attributed 50% of the elapsed time as defence delay due to the fact that trial dates were set outside the Jordan ceiling and the defence failed to raise s. 11(b) concerns until many months later.

[78] That is the same situation in this case. The defence knew in September 2021, that delay was a potential issue in this case, that the trial dates were set past the presumptive ceiling but remained silent.

[79] I note at College Park, where this case originated, the Crown has routinely prioritized cases at jeopardy of prolonged delay by identifying earlier dates that have become available when other cases have been vacated. The Crown has an ongoing onus to proactively identify delay impacted cases and ensure earlier dates are provided. The Crown bears responsibility for this lack of action in this case. The defence also bears responsibility and cannot as West J. explained in R. v. Nigro, 2023 ONCJ 41, at para. 35, “hide in the weeds and not alert the Crown or the Court to their concerns about delay until a point where no one could remedy or mitigate that delay in any meaningful way.”

[80] Although I have dismissed the 11(b) application largely based on a finding that delays caused by legal aid in this case are to be considered an exceptional circumstance, I would have further deducted 5 ½ months, which is approximately 50% percent of the delay between the time the first trial dates were identified and the eventual trial dates. [20] The result would have been a total period of delay below the Jordan threshold even absent the legal aid issue.

[81] The Applicant made brief mention in his written materials that if the delay was under the Jordan ceiling that this Court impose a stay.

[82] Where the total period of delay falls below the presumptive ceiling, then the onus is on the accused to show that the delay is unreasonable. To do so, the accused must establish that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and the case took markedly longer than it reasonably should have. [21] Given my findings, I have concluded the Applicant has not demonstrated that meaningful steps were taken to expedite this matter, although some measures were taken by the defence. This case does not qualify as one of the clear and rare cases in which a stay should issue for a matter under 18 months.

I. Conclusion

[83] The total period of delay in this case is 22 months and 21 days. With deductions to account for defence caused delay and exceptional circumstances related to processing of the Applicant’s legal aid application the net delay is 15 months and 1 week (464 days). [22] This period does not exceed the Jordan guidelines for trial in the Ontario Court of Justice. The s. 11(b) application is dismissed.

H.S. Amarshi J.

[1] Prior to the trial judgment in this case, I dismissed the 11(b) application. These are my written reasons. The lost evidence application became mute and was never heard. [2] Jordan, 2016 SCC 27, [2016] 1 SCR 631 at para. 69. [3] R. v. Coulter, 2016 ONCA 704 at para. 37. [4] Jordan, supra at para. 75. [5] After submissions were completed in November, I contacted the parties seeking further submissions on this discrete issue after a review of the case law. The parties initially characterised this period of delay as defence delay vs. intake period. The parties made further submissions on whether this legal aid processing period be characterized as an exceptional circumstance. [6] As per an e-mail the Applicant sent to counsel Jane Stewart dated December 8, 2020. [7] Exhibit C, as contained in an affidavit from Alicia Clarke, a staff member at Mr. Kaczmara’s law firm. [8] Exhibit D, affidavit. [9] Exhibit E, affidavit. [10] Affidavit at para. 11. [11] Affidavit at paras. 13 and 14. [12] See R. v. Isaacs, 2016 ONSC 6214. [13] Jordan, supra at para. 70. [14] I appreciate the officer was completing police duties that morning but there is no reasonable excuse for his late attendance on the trial date. Police scheduling cannot take precedence over court duties, except under exceptional circumstances. [15] This included time for the Crown to review the caselaw filed by the defence, which centred on a 1997 Ontario Court of Justice decision. [16] See R. v. Simmons, 2020 ONSC 7209. [17] As the court explained in R. v. Greenidge, 2021 ONCJ 57, at para. 26, it is not enough that the Crown to point to the pandemic as a discrete event to justify delay, “The Crown must prove that the delay it seeks to deduct from the overall delay was actually caused by the pandemic.” See also R. v. Schartdt, 2021 ONSC 3143. [18] The trial coordinator originally offered July 18 and 19 but the Crown was unavailable. [19] I appreciate the concern about delay may have only crystalized when the trial did not complete in the two days allocated for trial in July 2022, but the defence still did not raise a concern until October 2022. [20] Fifty percent of 322 days. Trial dates were identified on September 9, 2021 for July 28 and 29, 2022. [21] Jordan, supra at para. 48. [22] This period is calculated based on the formula used in R. v. Shaikh, 2019 ONCA 895. Total days are divided by 30.417 to obtain months.