Court File and Parties

COURT FILE NO.: 16-SA5126 DATE: 2018/06/29 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Respondent – and – R.M.P. Applicant

Counsel: Lia Bramwell, Counsel for the Respondent Jonathan Nadler, Counsel for the Applicant

HEARD: May 29, 31 and June 4, 2018

Ruling on section 11(b) application

RYAN BELL J.

Overview

[1] On October 7, 2015, the applicant was charged with two counts of sexual assault. He was convicted of both counts on January 16, 2018. On April 9, 2018, defence counsel advised that he intended to bring this application. The applicant’s position was that the period of delay from the date he was initially charged until his next court date post-conviction – June 4, 2018 – is unreasonable pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms and the principles set out in R. v. Jordan, 2016 SCC 27, and outside the transitional guidelines related to R. v. Morin, [1992] 1 S.C.R. 771.

[2] The application was heard on May 29 and 31, 2018. On June 4, 2018, just prior to my ruling on the application, defence counsel raised an issue regarding when certain transcripts were ordered by the Crown. The Crown intended to rely on the transcripts in support of its s. 752.1 application, scheduled for June 4. Defence counsel stated that the only logical inference to be drawn was that Crown counsel’s statements on April 9, 2018, as to the purpose underlying the Crown’s request for an adjournment on that date, were incorrect and inappropriate. As I stated in my oral reasons dismissing the s. 11 (b) application, in raising this issue, defence counsel was attempting to relitigate the adjournment application. I granted that adjournment on April 9, 2018. As the transcript from that attendance makes abundantly clear, and contrary to defence counsel’s submissions, the adjournment requested by the Crown was not for the singular purpose of ordering transcripts. Crown counsel did not act inappropriately or improperly.

[3] On June 4, 2018, I dismissed the s. 11 (b) application and gave brief oral reasons. In summary, I have concluded that the 30-month presumptive ceiling in Jordan does not apply to the post-conviction events in this case and that the relevant dates for the calculation of total delay are October 7, 2015 and January 16, 2018. With no deductions for defence delay or discrete events, the time from October 7, 2015 to verdict is 27 months and 10 days, a period under the presumptive ceiling prescribed in Jordan. I have also concluded that from that total delay, 85 days should be deducted as defence delay and a further 14 days should be deducted as a discrete exceptional event. I have also found that the applicant failed to meet the onus upon him to show that the delay is unreasonable.

[4] Even if I am incorrect in my conclusion and the 30-month presumptive ceiling does apply to the post-conviction events in this case, I would still deduct 85 days as defence delay and 14 days as a discrete event. For the period from October 7, 2015 to June 4, 2018, remaining delay would be approximately 29 months. Again, the applicant has failed to show that that the delay is unreasonable.

[5] My detailed reasons for dismissing the application follow.

Timeline of Events

[6] A timeline of events will assist in understanding the progress of this case through the courts to date.

[7] The applicant was charged on October 7, 2015 with two counts of sexual assault contrary to s. 271 of the Criminal Code.

[8] Defence counsel advised the court that he wished to proceed with the applicant’s bail hearing on October 7, 2015. The Crown requested an adjournment (which was opposed by the defence) because the applicant had been flagged as a high risk offender so there were a number of additional documents upon which the Crown intended to rely. The cross-examination of the proposed surety was also anticipated to be lengthy. The court adjourned the bail hearing to October 9, 2015.

[9] Following a contested bail hearing on October 9, 2015 which concluded late in the day, the applicant was released on bail. Defence counsel requested a return date of October 15, 2015. The Crown indicated that a first appearance package would not be ready and a return date of October 22, 2015 was set.

[10] On October 22, 2015, initial disclosure was discussed and a counsel pre-trial was scheduled for November 16, 2015. The next remand court following the counsel pre-trial for Team 4 matters, which included the applicant, was November 19, 2015. Defence counsel requested that the matter be remanded to November 26, 2015 in order to obtain instructions.

[11] On November 26, 2015, a judicial pre-trial was scheduled for December 1, 2015 with a return date of December 10, 2015.

[12] On December 10, 2015, the Crown was not in a position to elect whether it wished to proceed by indictment or summarily. The Crown requested a one-week adjournment and the matter was adjourned to December 17, 2015.

[13] On December 17, 2015, the Crown elected to proceed by indictment. October 19 and 20, 2016 were offered for a preliminary inquiry. Defence counsel was available, but the assigned Crown was not. The next dates offered were November 3 and 4, 2016 and the preliminary inquiry was set for those dates.

[14] The applicant did not attend on November 3, 2016, the first date scheduled for the preliminary inquiry. On November 4, 2016, the applicant did attend and the preliminary inquiry was completed that day. The matter was adjourned to assignment court in the Superior Court of Justice on December 2, 2016.

[15] On December 2, 2016, counsel scheduled a pre-trial for December 8, 2016.

[16] On December 8, 2016, following the pre-trial, a 3-day trial by judge alone was agreed upon. The first trial date offered was March 13, 2017. That date was not available to the Crown. It was available to defence counsel. The next trial date offered was April 3, 2017. That date was not available to the Crown. It was available to defence counsel. The next trial date offered was April 18, 2017. That date was not available to either counsel. June 12, 2017 was offered. That date was available to the Crown. It was not available to defence counsel. September 5, 2017 was offered. This date was not available to the Crown. It was available to defence counsel. The dates finally agreed upon were October 30, 31 and November 1, 2017.

[17] The first day of the trial – October 30, 2017 – was adjourned to the following scheduled day, October 31, as a result of unforeseen flooding in the Ottawa area and the Court being unavailable as a result.

[18] At the conclusion of the evidence on November 1, 2017, defence counsel advised that he was prepared to commence closing submissions. Crown counsel asked for an adjournment to provide the Court with case law on the treatment of child witnesses in relation to one of the complainants and on a witness’ veracity on other issues when considering their evidence of specific allegations before the court. Defence counsel objected to the request on the basis that the Crown ought to have been prepared to address these issues at the conclusion of the evidence. Defence counsel made the same submission on the s. 11 (b) application. I agree with the Crown that the use the Court could make of evidence from one witness about another witness’ perceived veracity was an issue that arose during defence counsel’s cross-examination of one of the complainants at trial and, therefore, could not have been anticipated. The Court agreed that the matter should go over for closing submissions and set the matter for November 15, 2017 to accommodate the schedules of both the Crown and defence counsel.

[19] The Court heard closing submissions on November 15, 2017. As of November 15, 2017, the total delay from first appearance in bail court to that date was 25 months and 9 days. The date of January 16, 2018 at 9:00 a.m. was set for the parties to receive the Court’s decision.

[20] On January 16, 2018, the applicant was found guilty of the two counts of sexual assault. The sequence of events on January 16, 2018 is important given defence counsel’s submissions on the s. 11 (b) application. It was only after Crown counsel advised she was seeking to have the applicant step into custody pending sentence that defence counsel stated he wanted to proceed immediately to sentencing. The Court then heard and dismissed the Crown’s application to revoke the applicant’s bail. Crown counsel then requested a sexual behaviours assessment under s. 21 of the Ontario Mental Health Act. Defence counsel advised that the applicant would co-operate with that assessment, stating that it “seems like it may be appropriate in the circumstances.” Defence counsel also stated that a pre-sentence report would not be required as it would be redundant. The Crown agreed. The matter was put over to March 19, 2018 to ensure that the sexual behaviours assessment had been received, with the sentencing hearing scheduled for April 9, 2018. The date of April 9, 2018 was one week later than initially contemplated, in order to accommodate defence counsel’s schedule. The adjournment was on the consent of both parties.

[21] The sexual behaviours assessment was received in the Crown’s office on March 2, 2018. On March 5, 2018, Crown counsel took steps to ensure that a copy was also provided to defence counsel and to the Court.

[22] On March 9, 2018, the applicant was convicted by Boxall J. in the Ontario Court of Justice of four counts of breaching his recognizance, simple possession of marijuana, two counts of mischief under $5,000, and assault with a weapon for throwing a book at his domestic partner.

[23] On March 24, 2018, the applicant was arrested and held for show cause on two counts of causing a disturbance, two counts of mischief under $5,000 and one count of breaching his recognizance.

[24] On March 28, 2018, Crown counsel sought and received authorization to pursue an application under s. 752.1 for an assessment of the applicant in contemplation of a possible dangerous offender or long term offender application. On March 29, 2018, Crown counsel advised defence counsel and the Court of her intention to seek an adjournment on April 9, 2018, the date originally set for the sentencing hearing, to gather records and other materials necessary for the Crown to bring an application pursuant to s. 752.1 of the Code for an assessment order.

[25] On April 9, 2018, the Crown requested a 6 to 8 week adjournment to permit the gathering of historical records – including school, institutional, medical and probation records – to provide to the assessing psychiatrist in the event the s. 752.1 order is granted. Defence counsel strenuously opposed the April 9, 2018 adjournment. The Court agreed with the Crown that, in the circumstances, the request for an adjournment was reasonable and granted the adjournment. It was at this point that defence counsel first stated his intention to bring a s. 11 (b) application. May 29, 2018 was scheduled for the hearing of the s. 11 (b) application. The dates of June 4 and 7, 2018 were set for the hearing of the Crown’s s. 752.1 application.

The Jordan Framework

[26] At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court or going to trial in the provincial court after a preliminary inquiry (Jordan, at para. 46).

[27] The framework for a s. 11(b) analysis under Jordan is as follows:

1. Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 60).
2. Subtract defence delay from the total delay, which results in net delay (Jordan, at para. 60).
3. Compare the net delay to the applicable presumptive ceiling (Jordan, at para. 67).
4. If the net delay falls below the ceiling, the onus is on the defence to show that the delay is unreasonable. The defence must establish that (i) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (ii) the case took markedly longer than it reasonably should have (Jordan, at para. 48).
5. If the net delay exceeds the ceiling, the delay is presumptively unreasonable. The Crown may rebut the presumption by showing that the delay was reasonable because of exceptional circumstances (Jordan, at para. 68). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, at para. 71).
6. Where the net delay exceeds the ceiling, subtract delay caused by discrete exceptional events for the purpose of determining whether the ceiling has been exceeded (Jordan, at para. 75).
7. If the remaining delay falls below the presumptive ceiling, the onus is on the defence to demonstrate in clear cases that the delay is unreasonable (Jordan, at para. 76).
8. If the remaining delay exceeds the presumptive ceiling, the case’s complexity as a whole may be relied upon to justify the time the case has taken and to rebut the presumption that the delay is unreasonable (Jordan, at para. 80).
9. The new framework, including the presumptive ceiling, applies to cases currently in the system when Jordan was released on July 8, 2016 (Jordan, at para. 95).

The Calculation of Total Delay: Post-Conviction Events and Dangerous Offender Applications

[28] The central issue on this application is how the total period of delay should be calculated: from the date of charge to the date of conviction, or from the date of charge to the date of the next post-conviction event. Defence counsel argued that the delay from January 16, 2018 – the date of conviction – to June 4, 2018 must be taken into account in calculating total delay. For the following reasons, I have determined that, in the circumstances of this case, it is the period between the charge and conviction to which the Jordan presumptive ceiling of 30 months applies.

[29] In R. v. MacDougall, [1998] 3 S.C.R. 45, the Supreme Court of Canada held that s. 11(b) of the Charter applies to sentencing proceedings. In Jordan, the Supreme Court left open the question about whether the presumptive ceiling should apply to post-conviction events, as the issue of delay in sentencing was not before the Court. In footnote 2 of Jordan, the Supreme Court expressly recognized that some sentencing proceedings, including dangerous offender applications, require significant time:

This Court has held that s. 11 (b) applies to sentencing proceedings (R. v. MacDougall, [1998] 3 S.C.R. 45). Some sentencing proceedings require significant time, for example, dangerous offender applications or situations in which expert reports are required, or extensive evidence is tendered. This issue of delay in sentencing, however, is not before us, and we make no comment about how this ceiling should apply to s. 11 (b) applications brought after a conviction is entered, or whether additional time should be added to the ceiling in such cases.

[30] The question of how the Jordan presumptive ceilings for delay apply post-conviction has not been determined by the Ontario Court of Appeal. In R. v. St. Amand, 2017 ONCA 913, most, although not all, of the delay arose in connection with the appellant’s sentencing hearing, after he had pleaded guilty and had been convicted of making available child pornography. The Court of Appeal stated, at para. 62, that it is not clear whether the presumptive ceilings established in Jordan apply to the post-conviction period. The Court of Appeal expressly did not determine the issue in St. Amand, as counsel did not raise any issue about how the presumptive ceilings for delay apply after a conviction has been entered. The Court of Appeal proceeded on the assumption, without deciding, that the presumptive ceilings for delay were implicated (St. Amand, at para. 63).

[31] In R. v. Crant, 2018 ONSC 1479, a summary conviction appeal, Nakatsuru J. was required to address, as a preliminary issue, the application of Jordan to sentencing proceedings. In Crant, a significant amount of delay occurred post-conviction while the appellant was awaiting sentencing. Nakatsuru J. provided his opinion as to the proper approach to the issue, at para. 22:

Section 11(b) of the Charter does apply to sentencing proceedings. The sound reasons why this should be so given in MacDougall both survives the Jordan analysis and is not inconsistent with it. However, the presumptive ceilings given in Jordan only apply from the date of the information to the date of end of the trial and do not include the sentencing phase. In footnote 2 of Jordan the Supreme Court of Canada specifically notes MacDougall, recognizes that some sentencing proceedings can take significant time, and leaves open the question about how the ceiling should apply post-conviction since the issue was not before them. In other words, in setting the presumptive ceilings of 18 and 30 months in Jordan, the court was only referring to the time before the date of the end of the trial. This has been the interpretation of the jurisprudence since that decision: see for instance R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 326; R. v. Tsega, 2017 ONSC 3090, 139 W.C.B. 92d) 359; R. v. D.M.S., 2016 NBCA 71, [2016] N.B.J. No. 320, at para. 21; R. v. Singh, 2016 BCCA 427, 344 C.C.C. (3d) 516, at para. 65. While there may be a different presumptive ceiling for sentencing proceedings, I see no reason why the type of analysis set out in Jordan should not apply for the sentencing phase including the same exceptional circumstances.

[32] I agree with the opinion expressed by Nakatsuru J. that in setting the presumptive ceilings of 18 and 30 months in Jordan, the Supreme Court was only referring to the time before the date of the end of the trial. An approach that assumes that the period between conviction and sentence is included in the 30-month ceiling would effectively impose a lower ceiling to the date of verdict (R. v. Tsega, 2017 ONSC 3090, at para. 18). As Paciocco J., as he then was, stated in R. v. J.M., 2017 ONCJ 4, at para. 33:

These decisions [R. v. Williamson, 2016 SCC 28; R. v. Manasseri, 2016 ONCA 703] do not settle the matter definitively, since neither case addressed this question directly. Still, policy and first principles support an approach in which the “anticipated end of the trial” is to be based on when a verdict is expected, rather than on the speculative assumption that a verdict of guilt may be rendered requiring further sentencing delay.

[33] In the context of proceedings under Part XXIV of the Criminal Code, Tuck-Jackson J. in R. v. Jordan, 2017 ONCJ 880 stated, at para. 51, that footnote 2 of Jordan supports the inference that a presumptive ceiling may be adjusted upward in recognition of sentencing applications that require significant time to complete, including Part XXIV proceedings. In that case, the court declined to address the issue of whether the 18-month presumptive ceiling includes delay attributable to sentencing in general; however, the court did conclude that the presumptive ceiling does not include delay arising from proceedings commenced under Part XXIV of the Criminal Code.

[34] A dangerous offender application is an extraordinary step in criminal procedure that is, inherently, both complex and time-consuming. It involves the gathering of historical records and materials in support of an application under s. 752.1 of the Criminal Code and to provide to the assessing psychiatrist in the event an assessment order is made by the court. A dangerous offender or long-term offender application can only be initiated with judicial permission in accordance with s. 752.1, following which an assessment process is engaged for 60 days, with a report to be filed within 30 days thereafter (although this time may be extended for an additional 30 days). The consent of the provincial Attorney General must be secured in accordance with s. 754(1). Then, the matter must be argued before the trial judge.

[35] Some of these steps have already been taken in the matter before me. I note that the adjournment to April 9, 2018 was on consent, in order to obtain the s. 21 sexual behaviours assessment. Crown counsel identified the results of the s. 21 sexual behaviours assessment as a factor in the Crown’s decision to pursue proceedings under Part XXIV of the Code. On March 28, 2018, Crown counsel received authorization to pursue a s. 752.1 application for an assessment order and immediately advised defence counsel and the Court of her intention to seek an adjournment on April 9, 2018. The adjournment was granted and the dates of June 4 and 7, 2018 were set for the hearing of the Crown’s application under s. 752.1 of the Code.

[36] On this application, defence counsel advanced the argument that the 30-month presumptive ceiling in Jordan applies to the completion of the dangerous offender application, but allows that the Crown would be able to argue complexity. In my view, based on the components of, time commitments associated with, and scheduling challenges posed by proceedings under Part XXIV, it is unreasonable to expect that a contested trial in the superior court, together with an application under Part XXIV of the Code, will conclude within 30 months.

[37] I have concluded that in this case, the preferable approach and the approach most consistent with footnote 2 of Jordan is to apply the 30-month presumptive ceiling to the period from the date of charge to the date of conviction. To extend past the date of conviction would require a different presumptive ceiling, one which takes into account the complexities associated with Part XXIV proceedings.

[38] The total delay under the Jordan framework is October 7, 2015 to January 16, 2018, a period of 27 months and 10 days.

Net Delay

[39] Net delay is calculated by deducting defence delay from the total delay. Defence delay has two components: (i) that arising from defence waiver; and (ii) defence-caused delay (Jordan, paras. 61 and 63). There is no suggestion of defence waiver in this case. Defence-caused delay includes “[d]eliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests” (Jordan, at para. 63). Defence-caused delay also includes the situation where “the court and the Crown are ready to proceed, but the defence is not” (Jordan, at para. 64).

[40] The Crown’s position is that the 85 days from June 12, 2017 (when defence counsel was not available for trial but the Crown was) to September 5, 2017 (when defence counsel was available for trial but the Crown was not) should be considered defence delay. The defence position is that the entire 85 days ought not to be considered defence delay as no dates were offered between June 12 and September 5, 2017. Defence counsel conceded that it would be reasonable to find defence delay for a portion of this period, but was unable to provide the Court with further assistance as to how many days of the 85 should be attributable to defence delay.

[41] In support of his argument that the 85 days should not be considered defence delay, defence counsel relied on the Supreme Court of Canada’s decision in R. v. Godin, 2009 SCC 26. In that case, defence counsel was unavailable on the first offered date for a rescheduled preliminary inquiry, causing a 6-week delay. The Supreme Court held that it would be unfair to place the responsibility for that part of the delay on defence counsel, stating at para. 23, that scheduling “does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability.”

[42] Defence counsel also relied on R. v. Ashraf, 2016 ONCJ 584, and R. v. Gasana, 2016 ONCJ 724, where the court in each case concluded that the practice of not necessarily using the first date offered when calculating defence delay survives under Jordan. In essence, defence counsel’s submission is that the Crown is required to establish that a trial court was available between June 12 and September 5, 2017 and that defence counsel was not available. I agree with the Crown’s submission that this is not the correct approach for two reasons: (i) it is not the Crown’s onus to establish; and (ii) such an approach fails to take into account that had defence counsel been available on June 12, 2017, the trial would have proceeded on that date.

[43] I also note that both Ashraf and Gasana pre-date the Court of Appeal’s decision in R. v. Mallozzi, 2017 ONCA 644, leave to appeal refused, [2017] S.C.C.A. No. 392. In Mallozzi, the Court of Appeal stated at para. 34: “As confirmed in Jordan, and subsequently in Cody, at para. 30: ‘where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted’” (see also R. v. Faulkner, 2018 ONCA 174, at para. 135).

[44] Defence counsel also relied upon R. v. Robert, 2018 ONSC 545. In Robert, the trial of the charges in the Superior Court of Justice was set to be completed 31 months and two days from the date the accused was first charged, a calculation that exceeded the 30-month presumptive ceiling. As Thomas R.S.J. stated at para. 87:

The Court in Cody stressed on numerous occasions that “every actor in the justice system has a responsibility to ensure that criminal proceedings are carried out in a manner that is consistent with an accused person’s right to a trial within a reasonable time” (para. 1) and “all justice system participants – defence counsel included – must now accept that many positions…are no longer compatible with the right guaranteed by s. 11 (b)…” (para. 36).

[45] The Crown and the Court were available to proceed to trial on June 12, 2017; the defence was not. The delay of 85 days occasioned by defence counsel’s unavailability is, in my view, properly characterized as defence delay. I assess net delay in this case at 748 days or 24 and a half months.

Discrete Events

[46] A delay may be unreasonable even if it falls below the presumptive ceiling. Under the Jordan framework, if the total delay from the charge to the actual or anticipated end of trial (minus defence delay and delay attributable to exceptional circumstances that are discrete in nature) is less than 30 months for cases going to trial in the superior court, then the defence bears the onus to show that the delay is unreasonable. Net delay in this case (total delay minus defence delay) falls below the ceiling before any deductions for discrete events; however, I have also considered whether there is any delay attributable to discrete events that should be deducted.

[47] The Crown submitted that the 14-day period between the conclusion of the evidence on November 1 and closing submissions on November 15, 2018 – because of the loss of the first day of trial due to flooding in the Ottawa area and the unavailability of the Court – should be deducted as delay attributable to an exceptional circumstance that was discrete in nature.

[48] I agree. This matter was originally set for a 3-day trial. The first day of the trial did not proceed because of flooding in the Ottawa area. A day of trial time was lost. The evidence was completed within the remaining two days. At the conclusion of the evidence, Crown counsel asked for an adjournment to provide the Court with case law on two issues. Defence counsel objected and indicated that he wished to commence closing submissions. The Court agreed that the matter should go over for closing submissions and set the matter for November 15, 2017. It is important to note that the November 15, 2017 date was set to accommodate the schedules of both the Crown and defence counsel; that is, Crown counsel did not seek a 2-week adjournment. In my view, this delay of 14 days was directly attributable to the flooding that resulted in a day of trial time being lost and was, without doubt, an exceptional circumstance that was discrete in nature. The 14-day delay should, in my view, be deducted from net delay as a discrete event.

[49] After deducting the 14 days from the net delay, I assess the remaining delay at 734 days, or just over 24 months.

Defence Has Not Established that the Delay was Unreasonable

[50] Under the Jordan framework, if the total delay from the charge to the actual or anticipated end of trial – minus defence delay (here, 85 days) and delay attributable to exceptional circumstances that are discrete in nature (here, 14 days) – is less than 30 months for cases going to trial in the superior court, then the defence bears the onus of showing that the delay is unreasonable. To establish that the delay is unreasonable, the defence must show that:

(i) the defence took meaningful steps demonstrating a sustained effort to expedite the proceedings; and (ii) the case took markedly longer than it reasonably should have.

[51] Where the presumptive ceiling has not been exceeded, a stay will be rare and granted only in clear cases. The defence must establish both requirements; where it does not, the s. 11 (b) application must fail (Jordan, at paras. 82-83).

[52] Determining whether the time taken for a case markedly exceeds that which was reasonably required is not a matter of precise calculation. Judges are required to step back from the minutiae and adopt a “bird’s eye” view of the case. Adopting such an approach in this case, I find that the defence has failed to satisfy me that the case took markedly longer than it reasonably should have.

[53] Defence counsel submitted that I must take into account the “long period of time” (from June 12 to September 5, 2017) when no trial time was offered by the court. This submission fails to take into account that had defence counsel been available on June 12, 2017, the case could have proceeded to trial beginning on that date, almost four and a half months earlier than it did.

[54] Defence counsel pointed to the fact that the defence was prepared to proceed immediately to sentencing on January 16, 2018. However, it is important to note that this position was taken only after the Crown advised it would be seeking to revoke the applicant’s bail. And, after the Crown’s application to revoke bail was dismissed, defence counsel consented to the sexual behaviours assessment and to April 9, 2018 as the date of the sentencing hearing. These events do not, in my view, assist the defence in establishing unreasonable delay.

[55] In support of its position that the delay is unreasonable, defence counsel also pointed to the Crown’s adjournment request on April 9, 2018 and defence counsel’s opposition to that request. In so doing, defence counsel repeated many of the same arguments as were made by the defence on April 9, 2018 – in other words, defence counsel on this application attempted to relitigate the issue of the adjournment, upon which I had already ruled. The adjournment on April 9, 2018, and the Crown’s request for that adjournment, based on its intention to pursue a s. 752.1 application, do not assist the defence in establishing unreasonable delay.

[56] In summary, the defence has failed to establish that the delay to conviction on January 16, 2018 was unreasonable; in my view, this case falls far short of being one of the rare and clear cases where a stay of proceedings should be granted. Accordingly, the s. 11 (b) application must fail.

[57] I note that the same analysis applies even if I am incorrect in my conclusion that the Jordan 30-month presumptive ceiling does not apply to the post-conviction events in this case. If the 30-month presumptive ceiling does apply to the post-conviction events in this case, total delay would be calculated for the period October 7, 2015 to June 4, 2018, a period of almost 32 months. Deducting the 85 days, for when the Court and the Crown were ready to proceed to trial but the defence was not, would result in net delay of 887 days. Deducting the 14 days attributable to the flooding as a discrete event would result in remaining delay of 873 days or 28.7 months, an amount under the 30-month presumptive ceiling. The defence would therefore bear the onus of showing that the delay was unreasonable – that the case took markedly longer than it reasonably should have. It has failed to do so in this case.

[58] I make two further points. First, an issue was raised whether the time required for judicial deliberation and preparation of my reasons on the trial (a period of 63 days) should be deducted under the Jordan framework. In Faulkner, in concluding that 5.5 months should be assigned as defence delay, the Court of Appeal deducted a period of Crown delay, the time taken by the presiding judge to prepare his reasons for committal, and an estimate of a reasonable time to conduct a preliminary inquiry on the charges (para. 163). In this case, given my assessment that the remaining delay (using an end-date of either January 16, 2018 or June 4, 2018) is less than 30 months, it is not necessary for me to determine whether the time for judicial deliberation should also be deducted.

[59] Second, the Crown submitted that if the Jordan presumptive ceiling applies to the post-conviction events – which Crown counsel characterized as the findings in the s. 21 sexual behaviours assessment, the applicant’s convictions on additional charges on March 9, 2018, and the applicant’s arrest on new charges on March 24, 2018 – those events are discrete, exceptional events such that the period from January 16, 2018 to April 9, 2018 should also be deducted. Following these post-conviction events, Crown counsel sought and received authorization to pursue the s. 752.1 application. I granted the Crown’s request for an adjournment on April 9, 2018 and scheduled the s. 752.1 application to be heard on June 4 and 7, 2018. While not required for purposes of my analysis under the Jordan framework, in my view, there can be little doubt that these events were outside the Crown’s control and that they would qualify as exceptional circumstances that are discrete in nature (Jordan, at para. 70).

Transitional Exceptional Circumstance

[60] The Jordan framework applies to cases already in the system when Jordan was released (Jordan, at para. 95). In some cases, a transitional exceptional circumstance may justify a presumptively unreasonable delay where the charges were brought prior to the release of Jordan. This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed (Jordan, at para. 96). This is the final step in the analysis, taken only where the deduction of discrete events does not reduce the delay below the presumptive ceiling and excess delay cannot be justified based on case complexity (R. v. Cody, 2017 SCC 31, at para. 67).

[61] The applicant was charged on October 7, 2015, prior to the release of Jordan. The deduction of discrete events from the net delay results in delay below the presumptive ceiling of 30 months. This is true regardless of whether the total delay is assessed to January 16, 2018 or to June 4, 2018. Accordingly, pursuant to Cody, I am not required to assess the transitional exceptional circumstance in this case.

Disposition

[62] For these reasons, the applicant’s s. 11 (b) application was dismissed on June 4, 2018.

Madam Justice Robyn M. Ryan Bell Released: June 29, 2018

COURT FILE NO.: 16-SA5126 DATE: 2018/06/29 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent – and – R.M.P. Applicant RULING ON SECTION 11(B) APPLICATION RYAN BELL J. Released: June 29, 2018