Her Majesty the Queen v. James Joseph Leonard, 2019 ONSC 1493

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

v.

JAMES JOSEPH LEONARD

REASONS FOR RULING

ON APPLICATION

DELIVERED BY THE HONOURABLE JUSTICE I. LEACH

on February 27, 2019 at STRATFORD, Ontario

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 539 OF THE CRIMINAL CODE OF CANADA BY ORDER OF JUSTICE K. L. MCKERLIE, ONTARIO COURT OF JUSTICE, DATED JANUARY 12, 2017

APPEARANCES:

F. Brennan

Counsel for the Federal Crown

E. Van Drunen

Counsel for James Joseph Leonard

SUPERIOR COURT OF JUSTICE

TABLE OF CONTENTS

INFORMATION CONTAINED HEREIN CANNOT BE PUBLISHED, BROADCAST OR TRANSMITTED PURSUANT TO SECTION 539 OF THE CRIMINAL CODE OF CANADA BY ORDER OF JUSTICE K. L. MCKERLIE, ONTARIO COURT OF JUSTICE, DATED JANUARY 12, 2017

WITNESSES

WITNESS

Examination

in-Chief

Cross-

Examination

Re-

Examination

EXHIBITS

EXHIBIT NUMBER

ENTERED ON PAGE

ENTERED ON PAGE

RULING

1

Transcript Ordered:

February 27, 2019

Transcript Completed:

March 6, 2019

Ordering Party Notified:

March 6, 2019

LEGEND

[sic] – Indicates preceding word has been reproduced verbatim and is not a transcription error.

[ph] – Indicates proceeding word has been spelled phonetically.

WEDNESDAY, FEBRUARY 27, 2019

TRANSCRIPTIONIST'S NOTE: The preceding portion of this matter was recorded but transcription has not been requested by the ordering party.

REASONS FOR RULING

LEACH, J. (Orally):

What follows is my oral decision with reasons relating to Mr. Leonard’s application for a stay of this criminal proceeding against him, pursuant to subsections 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms; that is, “the Charter”.

In that regard, I note that, pursuant to subsection 11(b) of the Charter, “Any person charged with an offence has the right to be tried within a reasonable time”, and pursuant to subsection 24(1) of the Charter, “Anyone whose rights or freedoms as guaranteed by the Charter have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”

In this case, Mr. Leonard claims that, in relation to the remaining charges that were advanced to trial by the Crown in this proceeding, he was not tried within a reasonable time, that his subsection 11(b) Charter rights accordingly have been infringed, and that the appropriate and just remedy in the circumstances is for this court to grant his requested stay of this proceeding against him.

I will note at the outset that I am very mindful of the reality that most reported decisions dealing with such s.11(b) Charter applications are addressed in fulsome and extensive detail, and with far more eloquence than I am going to muster on this particular occasion having regard to a number of underlying realities and pressing time constraints.

Without limiting the generality of the foregoing:

First, Mr. Leonard formally takes the position, through his counsel, that completion of his trial was not only delayed beyond the presumptive 30-month ceiling of acceptable delay established by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 SCR 631, but that his trial formally still continues for the purposes of “Jordan calculations”, with corresponding additional mounting delay, insofar as Mr. Leonard and his counsel contend that trial will not be completed until my decision in relation to his s.11(b) application has been delivered. That position inherently places a premium on my delivering a substantive decision, with reasons, as soon as possible.

Second, in an effort to minimize any such mounting additional delay, Mr. Leonard’s s.11(b) application has been argued and then brought back on for delivery of an oral decision with reasons during the same busy three-week trial sitting here in Stratford; that is, the February 2019 trial sittings in Stratford, which are still underway. That seemed necessary and advisable, given the aforesaid position of Mr. Leonard, the fact that I obviously am seized of the matter, and the reality that the regional schedule does not have me returning to sit in Stratford until the next three-week trial sitting here in Stratford, which begins on May 13th, 2019.

In that regard, although apparent to all who deal with the realities of trying to move matters forward in this small but busy judicial centre, I will note, for the benefit of those not familiar with our situation, that unlike judicial centres located in more populated areas of our region, such as London and Windsor, the Superior Court of Justice does not sit constantly in Stratford. To the contrary, apart from its trial sittings, normally limited to sixteen weeks a year, (which in turn are divided into four three-week sittings presided over by me as the local administrative judge, and two two-week sittings presided over by additional judges from the region), the region’s allocation of precious judicial resources to Stratford is limited to one rota day per week, presided over by different judges who circuit throughout the region. Those limited rota days are entirely consumed by the various criminal pre-trials, regular short civil motions and civil pre-trials and family law conferences necessarily heard outside of our limited 16 weeks of trial sittings.

In the circumstances, the reality is that, after completion of the current trial sitting, there realistically is little or no available hearing time in Stratford for me to deliver an extended oral decision in relation to Mr. Leonard’s s.11(b) application between now and Stratford’s May 2019 trial sitting in any event. (There is a two-week trial sitting scheduled for March of 2019, which will be presided over by another judge, and during which the number of matters in respect of which parties desire a hearing in respect of matters of which I am not seized already greatly exceeds the amount of trial time available.)

Third, as I noted during scheduling discussions with counsel, the Southwest Region is under exceptional and mounting scheduling pressures at the moment, owing to an unexpected lack of judicial resources. In that regard, our region may not be as large or as populated as others in the province. However, it is a very busy region, and our judicial complement currently is four to five judges below the level it was expected to be at this time, owing to death, unexpected serious illness and three judicial vacancies which still have not been filled, despite their existence being known six or more months in advance. The workload of the region’s remaining judges therefore has increased substantially, with judges effectively being required to absorb the additional work of uncovered courts as much as possible.

In the result, my ability to prepare more extended and detailed reasons relating to Mr. Leonard’s current application, between now and May 2019, having regard to other pressing reserved decisions and hearings, realistically is quite limited. In other words, it is unlikely that the passage of time between this February trial sitting and the trial sitting in May of 2019 would improve upon the length or quality of my reasons.

Fourth, although the considerations already noted militate in favour of my rendering a substantive decision and reasons in relation to Mr. Leonard’s s.11(b) Charter application within this same trial sitting, the reality is that other pressing demands of this sitting, in terms of other scheduled hearings and preparations for those hearings, have been very much competing for my time.

Fifth and finally, for reasons I will outline in more detail shortly, it was and remains my view, following a review of the s.11(b) Charter application material filed by the parties in advance of the hearing, and after hearing submissions from counsel, that this particular s.11(b) Charter application actually is more straightforward than most that come before our court, having regard to its particular underlying circumstances.

Having regard to all such considerations and underlying realities, I think it advisable and perhaps necessary to deliver this decision orally this afternoon, albeit realizing that, (as was the case on December 4th, 2018), my decision once again will not be as extensive, detailed or annotated as I would have preferred it to be.

These oral reasons nevertheless hopefully will suffice to convey the essence of my substantive decision in relation to Mr. Leonard’s s.11(b) Charter application, and the fundamental reasons for that decision.

The underlying circumstances in which this particular s.11(b) Charter application comes before me have been addressed in earlier remarks made by me during the course of this proceeding, and in particular, during the remarks I made on December 4th, 2018 during the course of rendering my separate but sequential decisions relating to another Charter application brought by Mr. Leonard - to exclude evidence pursuant to ss.8, 9, 10 and 24(2) of the Charter - and my trial decision finding Mr. Leonard guilty in relation to the two charges against him then remaining on the indictment; that is, charging him with trafficking in cocaine contrary to ss.5(1) of the Controlled Drugs and Substances Act or “CDSA”, and possessing cocaine for the purpose of trafficking contrary to ss.5(2) of the CDSA.

Those earlier remarks are among the court proceedings which have been transcribed and form part of the material filed on behalf of Mr. Leonard in support of his current s.11(b) Charter application.

Bearing in mind the circumstances and time constraints, I may not replicate those remarks in their entirety again now. If I somehow fail to do so, what I said earlier in that regard should be considered incorporated by reference into these reasons.

For present purposes, in terms of noting, today, some of the general context underlying Mr. Leonard’s current s.11(b) Charter application, I think it sufficient to mention the following.

Mr. Leonard was arrested by members of the Stratford Police Service on June 4th, 2016 at 10:35 p.m., as he drove back into the City of Stratford following a brief journey he had made from Stratford to Toronto earlier that day.

The arrest was the culmination of an investigation involving work done by undercover officers and surveillance operations, which had included meetings of undercover officers posing as purchasers of cocaine with various identified individuals, resulting police surveillance observations relating to attendances by various individuals at Mr. Leonard’s residence in Stratford and elsewhere in the city, and further surveillance carried out by police officers who followed Mr. Leonard from Stratford to Toronto and back on June 4th, 2016, with the officers making observations of Mr. Leonard’s movements and meetings during the course of that journey.

Searches of Mr. Leonard and the vehicle he was driving, carried out incident to Mr. Leonard’s arrest in the late evening of June 4th, 2016, disclosed the existence of 56 grams of cocaine in the pocket of the shorts he was wearing, and a number of cell phones found in the vehicle, including one that was turned on and operational, and which contained a number of text messages apparently sent to and from the device during the course of Mr. Leonard’s observed journey from Stratford to Toronto and back again.

Formal progress of the matter, between the time of Mr. Leonard’s arrest on June 4th, 2016 and the rendering of my decisions on December 4th, 2018, is detailed in paragraph 89 of the factum filed by Mr. Leonard’s counsel and essentially was not disputed, at least in terms of indicated dates and descriptions of formal court filings and appearances, as opposed to defence counsel’s assertions and characterization of corresponding periods of delay.

For that reason, and having regard to the time constraints and pressures already noted, I will not take time now to reiterate all of those dates and developments in detail here. They too should be taken as incorporated by reference into these reasons.

For now, I nevertheless emphasize the following particular developments which form part of the circumstances underlying Mr. Leonard’s current s.11(b) Charter application, not all of which are set forth in paragraph 89 of the factum filed by Mr. Leonard’s counsel, but which were included in the responding factum filed by Crown counsel and/or in my view were not disputed.

As noted above, Mr. Leonard was detained and arrested by the police at approximately 10:35 p.m. on June 4th, 2016. At some point during the following morning, (that is, the morning of June 5th, 2016), Mr. Leonard was released from custody on an “officer-in-charge undertaking” which included Mr. Leonard’s promise to appear in court on July 11th, 2016, to address the matter.

On June 10th, 2016, Special Constable Kelly of the Stratford Police Service swore the original information in relation to the formal charges brought by the Crown against Mr. Leonard.

As was noted on the record during hearing of Mr. Leonard’s current Charter application, but which I will repeat again now, the original information relating to Mr. Leonard inadvertently did not form part of the Crown’s original responding application material, and also seems to have gone missing, for some reason, from the Superior Court file relating to this matter. However, it should form part of the court file, and a replacement copy was filed as Exhibit “A” for identification during the hearing of Mr. Leonard’s current application.

Matters thereafter progressed, in terms of court filings and appearances, as set out in the facta filed by counsel. That progress included, for a time, scheduling that was based, from the court’s perspective at least, on a Jordan “warning date” of April 3rd, 2019; a date which someone from the court office apparently had marked on the file, and entered into the court’s database of such Jordan “warning dates”, pursuant to tracking measures administratively implemented by our court in the wake of the Supreme Court of Canada releasing its decision in R. v. Jordan, supra.

Such scheduling included, after a number of adjournments, the setting of dates to hear Mr. Leonard’s original pre-trial Charter application, (which was given a total hearing duration time estimate of two days by the parties), within the Stratford trial sitting in November-December of 2018, to be followed - if that Charter application was unsuccessful, by trial of the charges against Mr. Leonard and his co-accused Mr. Joyes, (with a total hearing duration time estimate of one additional day provided by the parties), within the Stratford trial sitting in February of 2019, (the current trial sitting), all of which then would have concluded the original Charter application and trial proceedings well before April of 2019.

As I should have noted earlier, (and believe I did note on December 4th, 2018), the bifurcated hearing of pre-trial applications and trials in criminal matters here in Stratford effectively requires scheduling of matters at Stratford trial sittings over which I will be presiding, as I am the only judge who – in my capacity as the Local Administrative Judge for Stratford - normally returns to Stratford more than once each year for trial sittings.

In October of 2018, however, following completion of the last Stratford trial sitting over which I would be presiding prior to the November-December 2018 trial sitting, the court’s attention was drawn, for the first time, to the reality that the Jordan “warning date” of April 3rd, 2019, noted on the file and entered by court staff, apparently was incorrect.

In particular, counsel for Mr. Leonard wrote to the court indicating his view that the true “Jordan date” was December 3rd, 2018; that is, a date well before early April of 2019, and therefore a date not allowing time, according to the court’s established schedule and my scheduled return to Stratford, to complete the contemplated bifurcated hearing of Mr. Leonard’s original pre-trial Charter application and trial, as well as delivery of corresponding substantive decisions, within the 30-month presumptive ceiling for delay established by the Supreme Court of Canada in R. v. Jordan, supra.

In his correspondence, Mr. Leonard’s counsel indicated that, in the circumstances, he contemplated bringing a s.11(b) Charter application to stay the current criminal proceeding against Mr. Leonard.

Pursuant to the court’s provincial practice direction relating to such applications, the court took immediate steps to schedule a further pre-trial focussed on the contemplated s.11(b) Charter concerns and Mr. Leonard’s contemplated s.11(b) Charter application. That pre-trial, to be conducted by Justice Pomerance, was scheduled for October 25th, 2018.

In the meantime, in an effort to address and remedy the possible s.11(b) Charter concerns identified by Mr. Leonard’s counsel, I presented the parties,(through responding correspondence and through Justice Pomerance), with possible hearing options designed to ensure that Mr. Leonard’s original Charter application and trial would both be completed, (including delivery of substantive decisions with reasons), on or before the date of December 3rd, 2018; that is, on or before the specific date identified by defence counsel.

In particular, using the hearing duration estimates already jointly provided by counsel, I offered, as the Local Administrative Judge for Stratford and the judge already scheduled to preside over its November-December trial sitting scheduled to begin on November 26, 2018, to ensure that hearing of Mr. Leonard’s original Charter application and trial with his co-accused could take place within the first week of that trial sitting, (specifically, on November 27th, 28th and 29th, 2018), with a view to then rendering an oral decision or decisions, with reasons, on December 3rd, 2018.

To address a concern then raised by Mr. Leonard’s counsel about the suggested blended hearing, (and in particular, Mr. Leonard’s stated desire for an opportunity to reconsider his plea after receiving a decision on his original pre-trial Charter application, before the rendering of any trial decision), I also undertook to prepare separate decisions in relation to Mr. Leonard’s original Charter application and Mr. Leonard’s trial, with the latter being delivered, if at all, only after an intervening pause to allow Mr. Leonard an opportunity to reconsider and possibly change his plea after hearing my substantive decision and reasons in relation to his Charter application.

As an alternative, I indicated that I voluntarily would make myself available for a special two-day sitting in Stratford during the week of November 5th, 2018, (that is, the scheduled “administrative non-sit week” reserved to permit all judges of our court to attend our court’s annual fall educational conference, during which I accordingly had no obligation to sit elsewhere), in order to hear and determine Mr. Leonard’s original Charter application in advance of Stratford’s regularly scheduled trial sitting starting on November 26, 2018, with any ensuing one-day trial of Mr. Leonard then proceeding during the first week of that sitting so as to permit delivery of an oral decision, in relation to such a trial, on or before December 3rd, 2018.

At the further pre-trial conference held on October 25th, 2018, to discuss the s.11(b) Charter concerns raised by Mr. Leonard’s counsel, Justice Pomerance reiterated and/or conveyed the above options I was suggesting to address such concerns, and defence counsel indicated a preference for the first option.

In the result, and relying once again on the jointly agreed hearing duration estimate of 3 days in total, to hear both Mr. Leonard’s original Charter application and the trial of Mr. Leonard and his co-accused, the matter was tentatively scheduled for a combined or “blended” hearing on November 27th, 28th and 29th, 2018, with a view to my then preparing two substantive decisions with reasons, (that is, one decision relating to Mr. Leonard’s original Charter application, and the other a trial decision relating to Mr. Leonard and his co-accused), for oral delivery on December 3rd, 2018. Again, that would be done on the understanding that I also would pause, between delivery of the two decisions, to allow each accused an opportunity to reconsider his plea before proceeding, if necessary, with delivery of my trial decision in relation to Mr. Leonard and or his co-accused Mr. Joyes.

In the circumstances, counsel for Mr. Leonard also indicated his intention to forego bringing of the contemplated s.11(b) Charter application on behalf of Mr. Leonard.

The contemplated scheduling of a three-day blended hearing of Mr. Leonard’s original Charter application and trial of Mr. Leonard and his co-accused Mr. Joyes, on November 27th, 28th and 29th, 2018, with contemplated oral delivery of one or both of my resulting substantive decisions with reasons, was then formally confirmed during the “triage court” session held the morning of Monday, November 26, 2018, to schedule particular dates for the hearing of matters to be dealt with during the three week trial sitting beginning in Stratford that day.

I note that, when all matters ready for hearing during that trial sitting had been assigned hearing dates, during that “triage court” session, I also had been able to leave myself with a generally open chambers day on Friday, November 30th, 2018. In particular, during that particular day of the trial sitting, only one matter was scheduled for hearing and it was expected to begin at 10:00 a.m. and conclude no later than 11:00 a.m., without any further matters scheduled for hearing that particular Friday. The balance of that day accordingly was scheduled to be available, along with the following week-end, to facilitate preparation of my Charter and trial decisions in this matter for their contemplated oral delivery on Monday, December 3rd, 2018.

Matters nevertheless unexpectedly did not go according to plan.

In particular, although Crown and defence counsel repeatedly had indicated to the court in good faith that three days was a reasonable time estimate to complete the hearing of all evidence and oral argument in relation to the issues raised by Mr. Leonard’s original Charter application and the trial itself, that estimate unexpectedly proved to be inaccurate and inadequate.

Specifically, although this matter received the court’s undivided attention on Tuesday through Thursday of that initial week of that trial sitting, (that is, on November 27th, 28th and 29th, 2018, inclusive), with the court extending its regular sitting hours to the extent possible with the indulgence of court staff who needed to be elsewhere, the parties had not completed the presentation of all evidence and oral argument by the time court rose at the end of the sitting day on Thursday November 29th, 2018.

In that regard, I note that court staff in Stratford normally are not expected to sit past 4:30 p.m., barring exceptional circumstances. In this case, the court willingly sat until 5:05 p.m. on November 27th, 4:35 on November 28th and 5:10 p.m. on November 28th.

However, the three days reserved for a “blended” hearing of Mr. Leonard’s original Charter application and trial, in accordance with the total time estimate repeatedly provided to the court jointly by Crown and defence counsel, was sufficient only to complete presentation of the Crown’s evidence, with the co-accused not yet having made their election as to whether defence evidence would be called.

In the result, the matter necessarily was scheduled to continue the following day, (that is, on Friday, November 30th, 2018), after hearing of the unrelated matter already scheduled to commence at 10:00 a.m. that morning.

In the circumstances, the unexpected prolonged hearing of the blended application and trial, beyond what repeatedly and jointly had been indicated to be a reasonable hearing duration estimate of three days, had started to erode the decision preparation time I effectively had allocated to preparation of my oral Charter application and trial decisions for this matter.

In particular, as I wanted to hear submissions from counsel before making any factual findings or legal decisions, I was deprived of the contemplated opportunity to start working on the decisions on the evening of Thursday, November 29th, 2018.

Similarly, continued hearing of the matter on Friday, November 30th, 2018, inherently would consume the time I otherwise had reserved to continue with my contemplated preparation of decisions during that day, after hearing of the previously scheduled unrelated matter which was expected to conclude and did conclude by approximately 11:00 a.m. that day.

The aforesaid erosion of my contemplated decision preparation time would continue for however long the prolonged hearing, extending into that Friday, would run over counsel’s original joint time duration estimate.

On Friday, November 30th, 2018, I completed hearing of the previously scheduled unrelated matter at approximately 11:04 a.m., at which time I could have embarked on further preparation, as I say, of the substantive application and trial decisions in this matter, had the blended hearing been completed the day before in accordance with counsel’s joint estimate of what was thought to be a reasonable hearing duration estimate for the matter.

The blended hearing of Mr. Leonard’s original Charter application and trial of Mr. Leonard and his co-accused was called back on for hearing at 12:03 p.m. that Friday. At that time, defence counsel indicated that the defendants would be presenting no evidence. However Mr. Leonard’s counsel also indicated that he was not prepared to proceed immediately with oral submissions, and asked that the matter be stood down again until later in the day to allow him time for further preparation. In that regard, counsel for Mr. Leonard emphasized the entitlement of accused persons to be represented by properly prepared counsel.

In the result, I stood the matter down as requested, by counsel for Mr. Leonard, for continuation at 2:15 p.m. that day.

When court resumed later that afternoon as directed, (that is, on the afternoon of Friday, November 30, 2018), the remainder of the blended hearing lasted, with the indulgence of court staff, until 6:10 p.m. that evening with three intervening short recesses: from 3:46 p.m. to 4:04 p.m.; from 5:10 p.m. to 5:22 p.m.; and from 6:01 p.m. to 6:04 p.m. The matter then was adjourned to the following Monday, (that is, December 3rd, 2018), for contemplated oral delivery of my decisions, with reasons, in relation to Mr. Leonard’s original Charter application and, (if and as necessary), the trial of Mr. Leonard and his co-accused Mr. Joyes.

However, at that point, because of the unexpected manner in which events had unfolded, I had been deprived of at least one full day of anticipated preparation time in that regard.

In particular, while I had anticipated being in a position to embark on those decisions as of 4:30 p.m. on Thursday, November 29th, 2018, I was not in a position to do so until 6:10 p.m. the following day, owing to the blended hearing of this matter taking substantially longer than the three day time estimate repeatedly and jointly provided by Crown and defence counsel as an estimate of how long that blended hearing reasonably would take. Indeed, leaving aside the hour of hearing time devoted to the previously scheduled unrelated matter on Friday morning, the inaccurate time estimate for this matter effectively deprived me of more than 24 hours of contemplated preparation time for the decisions I was obliged to prepare.

In the circumstances, I attempted to make up for some of that lost preparation time by adjourning the matter to 2:00 p.m. on Monday, December 3rd, 2018, rather than our normal 10:00 a.m. start, for contemplated delivery of my oral decision or decisions; that is, depending on whether Mr. Leonard and/or Mr. Joyes made a decision to change entered pleas after my decision on the Charter application, but before delivery of my trial decision. I did so knowing that court might once again have to be extended into the late hours of December 3rd, 2018, in order to complete delivery of my oral decision or decisions.

I note all these developments and times at length because such matters and lapses of time would come to have potentially great significance to this s.11(b) Charter application from Mr. Leonard’s perspective.

In particular, although I worked extensively that Friday evening, and throughout the following Saturday, Sunday and Monday morning, to complete required preparation of the two decisions, I was unable to do so in a manner I felt to be minimally appropriate in the circumstances before the matter necessarily came back before the court at 2:00 p.m. on Monday, December 3rd, 2018.

In my view, (based on my direct experience with the matter), there simply had not been enough time to properly address the detailed factual evidence, (which amongst other things required integration of a good deal of evidence relating to extended text messaging and surveillance observations), and the substantial number of issues raised by the original Charter application and trial.

In that regard, I note, (as I did in my orally delivered Charter application decision), that Mr. Leonard’s original Charter application alone formally raised no less than five distinct alleged breaches of the Charter – namely two alleged breaches of section 9, three alleged breaches of section 8, and two alleged breaches of subsection 10(b) - only one of which was acknowledged by the Crown to have been a breach. Moreover, application of s.24(2) of the Charter, in this case, then somewhat unusually raised two distinct issues of its own; that is, a determination of whether evidence had been “obtained in a manner” violating the Charter, prior to any subsequent application of the analysis mandated by the Supreme Court of Canada’s decision in R. v Grant, [2009] SCR 353.

Of course, required resolution of those Charter application issues then was supplemented by the need to then resolve the separate issues raised by the trial of each accused.

I can say without reservation, based on my knowledge and experience of what actually happened in this case at the time, that had I been able to start into preparation of the required decisions at 4:30 p.m. on Thursday, November 29th, 2018, as contemplated by the hearing duration estimate provided jointly by the parties, I unquestionably would have been able to complete my decisions in time for their completed oral delivery on December 3rd, 2018, as contemplated.

However, because the “blended” hearing unexpectedly ran beyond the parties’ good faith joint time estimate, and was not completed before 6:10 p.m. on Friday, November 30th, 2018, I simply was not left with the time necessary to complete my preparations, in a manner I felt to be adequate in the circumstances, within the resulting shortened period that was left to me.

In the result, I adjourned the hearing again until the morning of Tuesday, December 4th, 2018, at which time I did orally deliver my decisions with reasons in relation to Mr. Leonard’s Charter application and the trial of Mr. Leonard and Mr. Joyes. In particular:

I embarked on oral delivery of my Charter application decision at 10:05 a.m. and, (with recesses from 11:47 a.m. to 12:03 p.m., and from 1:11 p.m. to 2:09 p.m.), was able to complete delivery of my decision dismissing Mr. Leonard’s application with reasons by 3:11 p.m.

As promised, I then paused for a requested recess, (between 3:12 p.m. and 3:24 p.m.), to allow both defendants an opportunity to decide whether they wished to alter any of their pleas prior to delivery of my trial decision.

When court resumed at 3:24 p.m., Mr. Leonard and Mr. Joyes both indicated through counsel that they did not wish to alter their pleas. Through his counsel, Mr. Leonard also indicated an intention to proceed with a s.11(b) Charter application, (otherwise known in the vernacular as a “Jordan application”), on the stated basis that his trial would be completed one day beyond what he and his counsel believed to be the applicable 30-month presumptive ceiling period.

In the circumstances, I indicated that I would proceed with delivery of my trial decision, and then hear again from counsel prior to entering any convictions.

I then proceeded with oral delivery of my trial decision, rendering all of the verdicts required, with reasons, by 4:00 p.m. on Tuesday, December 4th, 2018.

As far as Mr. Leonard was concerned, he was found guilty of the two offences noted above; that is, offences contrary to subsections 5(1) and 5(2) of the CDSA, in relation to the two counts then remaining on the indictment which had not been withdrawn by the Crown.

After rendering my trial verdicts, and directing preparation of pre-sentence reports pursuant to s.721 of the Code, (jurisdiction for which is expressly founded on pleas or findings of guilt rather than convictions), I invited, as promised, further submissions from counsel prior to the entry of any formal convictions.

In that regard, counsel for Mr. Leonard confirmed Mr. Leonard’s intention to bring a s.11(b) Charter application, (based on a suggested delay in trial completion of one day beyond what he perceived to be the applicable presumptive 30-month ceiling set by the in R. v. Jordan, supra), and asked that the matter be adjourned to the next assignment court to be held on December 14th, 2018, (the last day of that trial sittings), to schedule a later date that would allow for the bringing and hearing of that intended s.11(b) Charter application.

Crown counsel noted that, because such an 11(b) Charter application already had been contemplated, Mr. Leonard’s counsel already had ordered and/or obtained copies of all transcripts necessary for bringing such a s.11(b) Charter application. Moreover, as the Crown was ready to address such an application immediately, in the circumstances, Crown counsel asked that the application be brought and proceed to hearing later within the same trial sitting; a sitting which, (as I indicated to counsel at the time), the Regional Trial Coordinator kindly had offered to extend, on an exceptional basis, into an additional week, (arranging judicial coverage for me where I otherwise was to have been sitting), if that would permit expedited hearing and determination of such Jordan concerns.

I too was prepared to hear such a s.11(b) application immediately, and certainly within the remaining two weeks of the trial sitting that already had been scheduled, or within the additional week thereafter offered by the Regional Trial Coordinator.

However, counsel for Mr. Leonard indicated in response that he would not be prepared to bring and argue the contemplated s.11(b) Charter application within the same trial sitting, even if the sitting was extended as contemplated, as there were other matters requiring his attention and he wanted additional time thereafter to then prepare for argument of such an application.

Having regard to that request by Mr. Leonard’s counsel, and as there was in fact no s.11(b) application before me on December 4th, 2018, I adjourned the matter to the first day of this trial sitting, (that is, to February 11th, 2019, which was the next day, after completion of the November-December 2018 trial sittings in Stratford, that I was scheduled to be sitting in Stratford), for contemplated entry of convictions at that time, and scheduling of a sentencing hearing within that trial sitting, if no s.11(b) Charter application had been brought in the meantime.

Between those two Stratford trial sittings, Mr. Leonard, through his counsel, formally brought his contemplated s.11(b) Charter application requesting a stay of these proceedings against him. Mr. Joyes brought no similar application, such that his formal conviction and sentencing proceeded thereafter in a separate fashion.

During the early morning “triage court” session on February 11th, 2019, (that is, the first day of this three-week Stratford trial sitting), I scheduled hearing of Mr. Leonard’s s.11(b) Charter application for the next day, (that is, February 12th, 2019), which was the first hearing time available following jury selection on the first day of this trial sitting.

On February 12th, 2019, hearing of Mr. Leonard’s s.11(b) Charter application nevertheless was adjourned necessarily to February 15th, 2019, (the next time within the sitting not already committed to the hearing of other matters), owing to a prevailing and severe ice storm that had made travel hazardous, thereby preventing Mr. Leonard’s attendance at court.

The s.11(b) Charter application was argued on February 15th, 2019, and thereafter adjourned to this afternoon, when prevailing winter weather conditions, (which are severe at the moment), once again have prevented Mr. Leonard’s attendance. In the circumstances, and on consent of the parties, I have made an order pursuant to s.650(1.1) of the Criminal Code for this stage of the proceedings to continue in Mr. Leonard’s absence, to the extent it may constitute part of Mr. Leonard’s trial.

Again, what I have expressly mentioned, in that preceding recitation of developments, are only some of the underlying circumstances that have led to this s.11(b) application that is before me now.

That necessarily truncated overview should not suggest, in any way, that I do not have the whole of those underlying circumstances very much in mind. I do. Time constraints again nevertheless have compelled me to mention only some of the developments I think more relevant to the issues I currently have to decide.

Before proceeding further, I think it helpful to turn next to a summary of the analytical framework that now applies to dealing with such s.11(b) Charter applications for a stay of criminal proceedings based on delay.

Since July 8, 2016, (and subject to certain transitional considerations I will address shortly), the legal framework used to determine whether an accused’s right to trial within a reasonable time under s.11(b) of the Charter has been infringed has been governed by the framework originally set out by the Supreme Court of Canada in R. v. Jordan, supra, which was then reiterated and summarized by the Supreme Court of Canada in R. v. Cody, 2017 SCC 31, [2017] 1 SCR 659.

In that regard, that new framework for analyzing whether an accused person’s right to a trial within a reasonable time has been breached centres on two presumptive ceilings; that is, 18 months for cases tried in provincial courts and 30 months for cases tried in Superior Courts. See R. v. Jordan, supra, at paragraph 46. The latter 30-month ceiling obviously is the one applicable to Mr. Leonard’s case in this court.

In applying the new Jordan framework, one begins by calculating the total delay from the charge to the actual or anticipated end of trial. See R. v. Jordan, supra, at paragraph 60. That is what is considered to be the first step in the required analysis.

After that period of total or gross period of delay has been calculated, delay attributable to the defence must then be subtracted to arrive at the relevant period of net delay. See R. v. Jordan, supra, at paragraph 60. That effectively is the second step of the required analysis.

In that regard, there are two types of defence delay to be subtracted. The first is delay waived by the defence, which may be explicit or implicit, but must be informed, clear and unequivocal. The second is delay that is caused solely by the conduct of the defence, which need not be intentional, as long as it is caused solely or directly by the defence. See R. v. Jordan, supra, at paragraphs 61, 63 and 66 and R. v. Cody, supra, at paragraph 27.

Pursuant to the next or third step of the required Jordan analysis framework, that resulting period of net delay, (calculated via the second step of the Jordan analysis framework), must then be compared to the applicable presumptive ceiling to determine which way the analysis flows thereafter. In particular, the analysis which follows thereafter then depends upon whether the remaining delay, (that is, the delay which was not caused by the defence), is above or below the presumptive ceiling. See R. v. Jordan, supra, at paragraph 67.

If the period of net delay exceeds the relevant ceiling, then the delay is presumptively unreasonable, and to rebut that presumption, the Crown must establish the presence of exceptional circumstances.

In that regard, to qualify as “exceptional” in the sense required, the circumstances giving rise to the delay must meet two criteria. In particular, they must be either reasonably unforeseen or reasonably unavoidable, and the delay caused by the circumstances cannot reasonably be remedied by the Crown.

Exceptional circumstances generally fall into two categories: first, “discrete events”, (including things such as medical or family emergencies of a witness or participant, a complainant recanting while testifying, or a trial that takes longer than reasonably expected), and second, “particularly complex cases”, (including cases where there are a larger number of charges, multiple co-accused, a large number of issues or a large number of pre-trial applications).

If the Crown cannot establish such exceptional circumstances, the delay is then unreasonable, and a stay will follow. See R. v. Jordan, supra, at paragraphs 47, 71, 72, 73 and 77.

On the other hand, if the net delay falls below the presumptive ceiling, it is still open to the accused to show that the delay is unreasonable in the particular circumstances of the case. However, in such cases, the onus is on the defence to show that the delay is unreasonable. In particular, to satisfy that onus the defence must then establish that: first, it took meaningful steps that demonstrate a sustained effort to expedite proceedings, and second, that the case took markedly longer than it reasonable should have taken. See R. v. Jordan, supra, at paragraphs 48 and 82.

Again, what I have described so far is the basic legal framework, (in place since release of the Supreme Court of Canada’s decision in R. v. Jordan, supra, on July 8th, 2016), used to determine whether an accused’s right to trial within a reasonable time under s.11(b) of the Charter has been infringed.

In R. v. Jordan, supra, the Supreme Court of Canada made it clear that the new framework applies both to cases commenced after the decision was released and to cases that were already “in the system” at the time of its release.

However, with respect to the latter, where the presumptive ceiling is exceeded after deducting defence delay and exceptional circumstances, it is still open to the Crown to demonstrate that the ceiling would not have been breached but for “transitional exceptional circumstances”.

In order to establish the presence of “transitional exceptional circumstances”, the Crown must satisfy the court that the time the case has taken is justified, based on a party’s reasonable reliance on the law as it existed prior to R. v. Jordan, supra, being released. See R. v. Jordan, supra, at paragraphs 95 and 96.

With the general principles I have outlined in mind, I now turn to an assessment of the particular s.11(b) application brought by Mr. Leonard.

In doing so, there nevertheless are three points I wish to note at the outset.

First, (and although I appreciate that such an observation arguably jumps to the end of the framework noted above), I note my view and finding that this is not a case giving rise, in any event, to the possibility of any “transitional exceptional circumstances” described just a short time ago.

In that regard, I am mindful of the reality that Mr. Leonard was detained and arrested on June 4th, 2016, which predates the Supreme Court of Canada’s release of R. v. Jordan, supra, on July 8th, 2016.

However, for reasons I will outline shortly, Crown counsel takes the position that the commencement of any relevant Jordan delay calculation begins only with the day on which the formal information relating to Mr. Leonard was sworn, (that is, on June 10th, 2016), and ends on the day the trial concluded with a verdict, (which in the Crown’s view, was December 4th, 2018), such that there effectively, in the Crown’s submission, is no possibility of delay exceeding the presumptive 30-month ceiling in this case, even if the Jordan framework is applied with full force, regardless of any possible allowance for “transitional exceptional circumstances”. Based on the Crown’s position, there is accordingly is no need for the Crown to attempt any demonstration that progress of this matter to trial completion was delayed beyond the presumptive 30-month ceiling based on any reasonable Crown reliance on the law as it existed prior to R. v. Jordan, supra, being delivered, and the Crown has not done so or attempted to do so.

For reasons I also will outline shortly, counsel for Mr. Leonard takes the position that calculation of delay under the Jordan framework should commence on the day of Mr. Leonard’s arrest, (that is, on June 4th, 2016), and continue until determination of this s.11(b) Charter application; a period markedly in excess of the presumptive 30-month ceiling.

Based on that position, and also noting that Mr. Leonard’s first court appearance did not occur until July 11th, 2016, (that is, three days after release of R. v. Jordan, supra), counsel for Mr. Leonard essentially takes the position that, while “transitional exceptional circumstances” may have possible relevance in the abstract, the Crown has failed to demonstrated, on the particular facts of this case and the material before the court, that the time taken to try Mr. Leonard is justified based on any supposed reasonable reliance by the Crown on the law as it existed prior to R. v. Jordan, supra, being released.

Moreover, it is noted by counsel for Mr. Leonard, (correctly in my view), that in practical terms it would have been difficult, if not impossible, for the Crown to establish any such reasonable reliance on the facts of this case, as the Crown would have been aware of the revised state of the law by the time of Mr. Leonard’s first court appearance on July 11th, 2016. In other words, the Crown realistically never had an opportunity to rely on the state of the law as it existed prior to the release of R. v. Jordan, supra, on July 8th, 2016.

On either of the views taken by the parties, “transitional exceptional circumstances” accordingly have no bearing on the outcome of this particular s.11(b) Charter application.

The second point I feel compelled to note, at the outset of my analysis, (to the extent it may have relevance notwithstanding other considerations noted below), is my disagreement with the suggestion that the calculation of months, when applying the Jordan framework, should include the date on which an initial event occurs; for example, that 30 months from the date of Mr. Leonard’s arrest at 10:35 p.m. on June 4th, 2016, should be taken as having expired on December 3rd, 2018, rather than on December 4th, 2018.

In that regard, there seems to be a dearth of authority dealing with the specific issue of precise month calculation, particularly in the context of determining the merits of s.11(b) Charter applications; a dearth no doubt explained by the probable rarity of situations wherein an accused seeks to stay a criminal proceeding on the basis that his or her trial exceeded the applicable presumptive Jordan ceiling by a single day.

However, I note, as Justice Band did in the case of R. v. Ashraf, 2016 ONCJ 584 (O.C.J.), that the provisions of the federal Interpretation Act, R.S.C., 1985 c. I-21 specifically endorse an approach whereby a period of time defined by the passage of a specified number of months after a specified date generally should not include the initial specified date, but instead be viewed as terminating on the same numerical calendar day of the month the indicated number of months thereafter, without including the month in which the initial specified date falls.

Specifically, section 28 of the Interpretation Act, supra, reads as follows:

Where there is a reference to a period of time consisting of a number of months after or before a specified day, the period is calculated by

(a) counting forward or backward from the specified day the number of months, without including the month in which that day falls;

(b) excluding the specified day; and

(c) including in the last month counted under paragraph (a) the day that has the same calendar number as the specified day or, if that month has no day with that number, the last day of that month.

In relation to calculating time intervals prospectively, from the happening of a certain event, Rule 3.01(1) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) takes a similar approach of not including the specific day from which time is being calculated, unless some deviation from that approach is expressly and exceptionally contemplated. In particular, Rule 3.01(1)(a) reads, (including its relevant preamble), as follows:

3.01 (1) In the computation of time under these rules or an order, except where a contrary intention appears,

(a) where there is a reference to a number of days between two events, they shall be counted by excluding the day on which the first event happens...even if they are described as clear days or the words “at least” are used.

I note that precisely the same approach is adopted in Rule 3.01(1)(a) of Ontario’s Rules of Civil Procedure, which is worded in precisely the same way as Rule 3.01(1)(a) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario).

I certainly do not cite these various legislative provisions believing or thinking that any of them constitute any kind of binding legislative directive as to how one should approach the calculation of a specified time period or ceiling created by the judiciary, as opposed to one created by Parliament, or the provincial Legislature, through legislation.

To the contrary, I share the view expressed by Justice Band in R. v. Ashraf, supra, that such provisions technically apply only to matters of statutory construction; for example, to the calculation of specified time periods referred to in legislation or rules. They accordingly have no automatic or binding import when it comes to determining how one should approach the calculation or computation of time in relation to a specific time period or ceiling created by the judicial branch of government, such as the presumptive ceilings created by the Supreme Court of Canada in R. v. Jordan, supra.

Having said that, I think that consistently demonstrated legislative approach at the federal and provincial levels has persuasive value because it accords, in my view, with the common manner in which individuals and our courts approach the calculation and computation of time.

For example, a person told that at 10:35 p.m. on a certain day that he or she had but one day to live no doubt would be shocked to hear shortly thereafter that the one-day period was meant to include the full calendar day on which the news was communicated.

Similarly, counsel being told by the court on a certain date that he or she was being given two days to complete a task would be shocked to learn that the court intended the task to be completed the following calendar day.

More to the point, in my experience, both at the bar and on the bench, deadlines and timetables established by the court, (as opposed to deadlines and timetables established by a legislature), in terms of certain things happening by a specified number of months hence, (for example, three, four or five months hence), also routinely employ the practice of the target dates for the subsequent event or events being set by reference to the same numerical or calendar day of the month falling within the month that specified number of months hence, not including the month on which the relevant deadlines are being set, or the calendar day on which the prospective deadline is being set. For example, a party told on January 3rd to deliver a document five months from that date would be expected and told to deliver the document on or before June 3rd; that is, the same numerical date of the fifth month hence, without including the month of January.

One normally would not engage, (as Justice Band notes in R. v. Ashraf, supra), in a parsing of days and corresponding incremental adjustments based on consideration of the reality that some calendar months have more or less days than others, and/or make adjustments based on a necessarily arbitrary and inherently artificial determination that each month should be assigned a standardized number of days, (for example, 30 days), despite the obviously realities.

Nor, in my view, would one engage in a process of routinely including, within the calculation of time periods determined by the passage of months, the day from which the time period is being prospectively calculated. For example, a party expected and told on January 3rd to deliver a document five months hence from that date, as I say, would be expected to do so on June 3rd, rather than on June 2nd.

In his submissions, counsel for Mr. Leonard suggested that Justice Band had settled on an approach whereby counting of the originally specified day should not be excluded, but in my view that frankly, and with respect, is not a proper reading of the decision. To the contrary, Justice Band expressly indicates, at paragraph 59 of his decision, that the approach contemplated by the federal Interpretation Act, supra, was similar to that which Justice Band was adopting in relation to the counting of months.

In my view, when it comes to the computation of time in applying the Jordan analytical framework, there is little or no reason or justification why courts should deviate from the approach adopted in such everyday parlance, the regular practice of our courts, and the approach to computation of time mandated by Parliament and the Ontario Legislature to federal and provincial statutory construction which reflects such normal everyday practices.

To the contrary, in my view the goals of consistency and certainty, especially in matters of criminal law, suggest that one should adopt precisely the same approach to computation of the 18-month and 30-month presumptive ceilings established in R. v. Jordan, supra.

To take the specific example of potential importance in this case, at the time of trial counsel for Mr. Leonard expressed the view that the total period of delay until completion of Mr. Leonard’s trial should be calculated from the date of Mr. Leonard’s arrest, that is June 4th, 2016, and that 30 months from that date should be taken as having expired on December 3rd, 2018, at which point Mr. Leonard had not received a trial verdict. However, that 30-month calculation essentially includes the date of the original specified event, (the date of arrest on June 4th, 2016), which in my view, for the reasons I have stated, is contrary to the approach followed in normal parlance and practice, which in turn is reflected in non-binding legislation such as the Interpretation Act, supra, which I have mentioned.

In my view, adopting that normal approach to the computation of time, a 30-month period from 10:35 p.m. on June 4th, 2016 would expire at 10:35 p.m. on December 4th, 2018, by which time Mr. Leonard had his trial verdict.

As counsel for Mr. Leonard emphasized in his submissions, the Supreme Court of Canada specified, in relation to Superior Court criminal proceedings, a presumptive ceiling of precisely 30 months and not a day more. In my view, however, such absolute precision cuts both ways. For example, 30 months should not, by some artificial legal construct, mean 30 months less 22 hours and 25 minutes.

The third and very important point to note, at the outset of my analysis to determine the merits of Mr. Leonard’s s.11(b) Charter application, is that counsel for Mr. Leonard candidly and expressly acknowledged, both in oral submissions and in his reply factum, that Mr. Leonard cannot meet the required criteria for a stay should I find that the presumptive 30-month ceiling of delay has not been exceeded.

With all of the above in mind, I now turn to application of the mandated Jordan analytical framework to the specific circumstances of this case.

Again, application of that framework begins with calculating the total delay from “the charge” to the “actual or anticipated end of trial”. See R. v. Jordan, supra, at paragraphs 47 and 60.

In this case, however, the precise meanings to be given to the starting point of “the charge” and the ending point of “the actual or anticipated end of trial” were both very much in dispute.

As for how the court should interpret the time of “the charge”, Crown counsel, relying on appellant authority before and after R. v. Jordan, supra, asserts that a person should be considered charged with an offence, for the purposes of s.11(b) of the Charter, when an information is sworn alleging an offence against him or her, or where a direct indictment is laid against him or her when no information is sworn.

While acknowledging the existence of authority supporting the position taken by the Crown, counsel for Mr. Leonard argues that a person should be considered charged with an offence, for the purposes of s.11(b) of the Charter, when he or she is arrested and begins feeling oppression, by the forces of the state, on his or her liberty. In particular, counsel for Mr. Leonard argues that R. v. Jordan and cases thereafter represent an evolving appreciation and treatment of prejudice to accused persons which implicitly warrant a re-visiting of pre-Jordan judicial interpretations of s.11(b) of the Charter, whereby the protections of that subsection of the Charter should be extended to all accused persons from the time of their arrest onwards.

In my view, the Crown is correct and, for the purposes of calculating the period of total delay in relation to this proceeding against Mr. Leonard, the relevant date of “the charge” against Mr. Leonard accordingly was June 10th, 2016; that is, the day on which Special Constable Kelly swore the underlying information alleging that Mr. Leonard had committed the offences which bring Mr. Leonard before the court. In other words, June 10th, 2016, is the starting point of the period of total delay to be calculated as the first step in the required Jordan analysis.

In that regard, despite defence counsel’s admirable attempts to suggest the contrary, I believe the question of how one should interpret “charged with an offence” within the meaning of s.11(b) of the Charter is still governed by the Supreme Court of Canada’s decision in R. v. Kalanj, 1989 CanLII 63 (SCC), [1989] 1 S.C.R. 1594, which expressly addressed and resolved the question of when a person is charged with an offence within the meaning of s.11(b) of the Charter. See R. v. Kalanj, supra, at p.1602.

In that case, Justice McIntyre, speaking for a majority of the Supreme Court of Canada, began by acknowledging that the terms “charge” and “charged”, and the phrase “a person charged”, were used in varying ways in practice without any precise meanings at law, requiring the court to settle on a meaning of the word as used in section 11 of the Charter, including subsection 11(b) of the Charter.

In that regard, the Supreme Court mentioned and considered various alternatives; alternatives which expressly included, at pages 1603 and 1605 of the decision, the start of any “impairment of an accused’s interest in the liberty and security of the person” and, more specifically, the time of a person’s arrest. Such alternatives nevertheless then were rejected in favour of a finding that a person is “charged with an offence”, within the meaning of s.11(b) of the Charter, when an information is sworn alleging an offence against him or her or where a direct indictment is laid against him or her when no information is sworn.

Accordingly, the Supreme Court of Canada emphasized that the “reckoning of time in considering whether a person has been accorded a trial within a reasonable time under s.11(b) will commence with the information or indictment, where no information has been laid”, such that “pre-information delay will not be a factor”. See R. v. Kalanj, supra, at pages 1607 to 1608.

Justice McIntyre gave several reasons for his decision and that of the majority in that regard, which included but clearly extended well beyond reliance on the Supreme Court’s previous decisions in cases such as R. v. Rehey, 1987 CanLII 52 (SCC), [1987] 1 S.C.R. 588 and Argentina v. Mellino, 1987 CanLII 49 (SCC), [1987] 1 S.C.R. 536.

In that regard, Justice McIntyre emphasized that the majority’s chosen interpretative approach was supported by the wording, organization and structure of the Charter, which indicated that there effectively were intended to be temporal aspects to the eight sections of the Charter grouped under the heading “Legal Rights”; sections which progressively mirrored an accused person’s progression through the criminal justice system.

In particular, section 7 was intended by the framers of the Charter to guarantee the rights set out therein, (that is, the general right to “life, liberty and security of the person and the right not to be deprived thereof, except in accordance with the principles of fundamental justice”), throughout all stages of the investigatory and judicial process.

Sections 8 and 9 were intended to guarantee rights of particular importance in the investigatory or pre-charge stage, as was section 10 expressly dealing with rights upon arrest.

Section 11 was intended by the framers of the Charter to deal with a later stage of the proceedings, (that is, when judicial proceedings are instituted by a charge), and sections 12, 13 and 14 were intended to deal with matters during and following a trial.

See R. v. Kalanj, supra, at page 1608.

Justice McIntyre, on behalf of the majority, also emphasized that the framers of the Charter made a clear distinction between the rights guaranteed to a person arrested, addressed expressly in section 10, and those guaranteed to a person upon being charged, addressed expressly in section 11. See R. v. Kalanj, supra, at page 1608.

Justice McIntyre, on behalf of the majority, expressly rejected the suggestion that the concept of a person being “charged with an offence”, as used in section 11 of the Charter, required an expansive interpretation for the suggested purpose of extending the protections of section 11 to persons before they are charged in the sense determined by the court, (that is, before an information is sworn alleging an offence against him or her, or before a direct indictment is laid against him or her when no information is sworn), in order to “afford protection for the liberty and security interests of persons accused of crime.”

In the majority’s view, such arguments ignored the reality that such interests already were protected in other ways by the Charter; that is, by the broad protection of liberty and security afforded by section 7, and by the other sections of the Charter dealing with legal rights prior to a person being “charged” in the sense determined by the court. It accordingly was not necessary, in the majority’s view, to give section 11, including s.11(b), an expansive interpretation for the purpose of extending its protection to the pre-charge period. Moreover, the majority of the Supreme Court expressly condemned efforts to impose a strained and inappropriate construction on section 11 of the Charter for that purpose.

Specifically, on behalf of the majority, Justice McIntyre said this, at page 1609 of the majority’s decision:

It has been said that the purpose of s.11 should be considered in deciding upon the extent of its application. This purpose, it has been said, is to afford protection for the liberty and security interests of persons accused of crime. While it is true that s.11 operates for this purpose, I emphasize that it does so within its own sphere. It is not, nor was it intended to be, the sole guarantor and protector of such rights. As stated above, s.7 affords broad protection for liberty and security, while the other sections, particularly those dealing with legal rights, apply to protect those rights in certain stated circumstances. Section 11 affords its protection after an accused is charged with an offence. The specific language of s.11 should not be ignored and the meaning of the word "charged" should not be twisted in an attempt to extend the operation of the section into the pre-charge period. The purpose of s.11(b) is clear. It is concerned with the period between the laying of the charge and the conclusion of the trial and it provides that a person charged with an offence will be promptly dealt with.

Similarly, at page 1611 of the decision, Justice McIntyre returned to the same theme by saying this on behalf of the court’s majority:

...given the broad wording of s.7 and the other Charter provisions referred to above, it is not, in my view, necessary to distort the words of s.11(b) in order to guard against a pre-charge delay.

Moreover, the Supreme Court buttressed that interpretation and approach to s.11(b), and the meaning to be assigned to the concept of a person “charged with an offence” in the s.11(b) context, by emphasizing underlying practical realities that would make extension of s.11(b) rights to the pre-information or investigatory period entirely unworkable. In particular, Justice McIntyre said this at pages 1609 to 1610 of the majority’s decision:

The length of the pre-information or investigatory period is wholly unpredictable. No reasonable assessment of what is or is not a reasonable time can be readily made. Circumstances will differ from case to case and much information gathered in an investigation must, by its very nature, be confidential. A court will rarely, if ever, be able to fix in any realistic manner a time limit for the investigation of a given offence. It is notable that the law -- save for some limited statutory exceptions -- has never recognized a time limitation for the institution of criminal proceedings. Where, however, the investigation reveals evidence which would justify the swearing of an information, then for the first time the assessment of a reasonable period for the conclusion of the matter by trial becomes possible. It is for that reason that s.11 limits its operation to the post-information period. Prior to the charge, the rights of the accused are protected by general law and guaranteed by ss.7, 8, 9 and 10 of the Charter.

In my view, nothing in R. v. Jordan, supra, or R. v. Cody, supra, suggests any intention by the Supreme Court of Canada to revisit, disturb and modify its settled determination set forth in R. v. Kalanj, supra, as to when a person is charged with an offence for the purpose of s.11(b) determinations.

To the contrary, as noted in R. v. Ashraf, supra, at paragraph 52, the French language version of R. v. Jordan, supra, supports the view that the Supreme Court of Canada remained focussed on the laying of charges by the swearing of an information or its alternative; that is, the laying of a direct indictment when no information is sworn. For example, the English version of the first sentence of paragraph 60 in R. v. Jordan, supra, reads as follows:

[60] Application of this framework, as under the Morin framework, begins with calculating the total delay from the charge to the actual or anticipated end of trial.

The French language counterpart to that first sentence of paragraph 60 in R. v. Jordan, supra, reads as follows:

[60] L’application du cadre d’analyse établi en l’espèce, tout comme celle du cadre établi dans Morin, commence par le calcul du délai total entre le dépôt des accusations et la conclusion réelle ou anticipée du procès. [Emphasis added.]

The phrase “le dépôt des accusations” refers to the laying of charges, which to me seems a clear reference to the formal institution of charges by the swearing of an information or laying of a direct indictment where no information is sworn, as opposed to the time of a person’s arrest prior to the formal laying of charges, and is the French expression similarly used in R. v. Kalanj, supra, and R. v. Askov, [1992] S.C.R. 1199.

Moreover, there obviously have been no changes whatsoever to the wording, organization or structure of the “Legal Rights” segment of the Charter, which in my view clearly was the principal reason and driving force behind the interpretative approach adopted by the Supreme Court of Canada majority in R. v. Kalanj, supra.

Nor, in my view, have there been any changes to the inherently unpredictable length of the pre-information or investigatory period which, according to the majority view in R. v. Kalanj, supra, made potential application of s.11(b) to that period entirely unworkable.

Not surprisingly, following the release of R. v. Jordan, supra, decisions of the Ontario Court of Justice, this court and our Court of Appeal, when applying the new Jordan framework to determinations made in relation to s.11(b) of the Charter, therefore have continued to interpret the date a person is “charged” as being the date on which an information is sworn alleging that person’s commission of an offence, or the date on which a direct indictment was laid against the person where no information was sworn.

For example, in R. v. Ashraf, supra, at paragraph 54, the court came to “the conclusion that the s.11(b) clock begins to run on the date of the swearing of the information.”

In R. v. Ghandi, 2016 ONSC 5612, [2016] O.J. No. 4638 (S.C.J.), my colleague Justice Code said this at paragraph 4:

In its recent decision in R. v. Jordan, at paragraphs 47 to 49, the majority of the court repeatedly stated that the relevant time period runs from the charge to the actual or anticipated end of trial. Although the majority changed fundamental aspects of the prior s.11(b) framework, there was no indication that the court wished to alter the longstanding principle that s.11(b) delay begins to run from the swearing of the information.

In R. v. LeBlond, [2018] O.J. No. 5885 (S.C.J.), my colleague Justice Ellies said this at paragraph 21: “Under Jordan, as it did previously, the s.11(b) clock begins to run when an information is sworn”.

And in R. v. Faulkner, 2018 ONCA 174, [2018] O.J. No. 1045 (C.A.), Justice Watts, speaking for the panel in setting out the relevant chronology of total delay in that case and thereafter summarizing the period of total delay, expressly indicated, at paragraphs 9 and 150, that the total delay began “with the laying of the first information charging” the accused in that case with numerous criminal offences, which was described as “commencement of the proceedings”.

Against the weight of such authority, counsel for Mr. Leonard urges me, (as I noted earlier), to find that the Supreme Court of Canada majority decision in R. v. Kalanj no longer applies, and to find that the relevant s.11(b) delay calculation instead begins with the date of a person’s arrest.

That is a view put forth by Justice Lamer in his minority decision in R. v. Kalanj, supra, which was expressly rejected by the majority of the Supreme Court of Canada in that case.

In support of that argument, counsel for Mr. Leonard points to authorities such as R. v. King, [2018] N.J. No. 366 (C.A.), at paragraphs 32 to 33, highlighting that legal literature and a number of recent cases have expressed the view that there are many lingering uncertainties about various aspects of “the Jordan-Cody framework” which will have to be resolved over time, and suggests the current case presents such an opportunity.

Counsel for Mr. Leonard also points to several decisions of the Supreme Court of Canada to argue that the Supreme Court’s understanding, appreciation and treatment of prejudice to an accused has been evolving, and that the meaning of “charged with an offence” in s.11(b) of the Charter should now be expanded to address prejudice a person suffers from the time he or she is arrested, which previously may not have been recognized by the Supreme Court of Canada.

With respect, in my view such arguments are fallacious and engage in precisely the sort of reasoning the Supreme Court of Canada considered and expressly rejected in R. v. Kalanj, supra.

Without limiting the generality of the foregoing:

First, in my view the Supreme Court was keenly aware of the reality that persons accused of crime might very well experience prejudice - and perhaps serious prejudice to their rights of liberty and security between the time of their arrest and the formal laying of charges by the swearing of an information or the laying of a direct indictment when no information is sworn. However, the question was not whether such prejudice might exist, but the proper mechanism to address such prejudice as intended by the framers of the Charter.

In that regard, the Supreme Court of Canada found, for clearly stated reasons, that any such prejudice, (which in my view would include any evolved or expanded view of such prejudice), should be addressed by the rights set out in sections 7, 8, 9 and 10 of the Charter, and not by s.11(b) of the Charter; an approach that inherently would require the clear wording of section 11 to be ignored and/or the meaning of the word “charged” to be “twisted” inappropriately.

I see no justification whatsoever for adopting an approach that runs directly counter to the Supreme Court of Canada’s decision in R. v. Kalanj, supra, which seems expressly on point and which the Supreme Court of Canada itself has not chosen to revisit while implementing or restating the new Jordan framework or thereafter. For me to take such an approach simply is not the role of this court.

Moreover, I think it noteworthy that, of the no less than 28 areas of suggested “Jordan-Cody framework” uncertainty identified in R. v. King, supra, the manner in which “charged with an offence” should be interpreted, for the purposes of s.11(b) and the related purpose of determining when the Jordan clock should begin to run, is not one of them. I see no justification for adding to that extended list of suggested uncertainties by questioning one aspect of the Jordan framework that would seem to be certain and firmly settled law.

Finally, in relation to this point, I would simply add that, to the extent certain decisions of the Ontario Court of Justice suggest possible deviation from treating the date of charge as being the date upon which an information is actually sworn or a direct indictment is actually laid - for example, by suggesting reliance on the date of an accused person’s release on conditions as in R. v. Swaninathan, 2015 ONCJ 394, or the court’s view of when an information should have been laid as opposed to when it actually was laid as in R. v. Luoma, 2016 ONCJ 670 - suffice it to say that I am not bound by those decisions, and frankly do not consider them to have been correctly decided.

So, for all these reasons, in approaching the required first step in application of the new Jordan framework, (that is, calculation of the total delay from the charge to the actual or anticipated end of trial), I find that the relevant total delay in Mr. Leonard’s case began on June 10th, 2016; that is, the date on which Special Constable Kelly of the Stratford Police Service swore the original information in relation to the formal charges herein brought against Mr. Leonard.

The next issue to be addressed, in the required initial calculation of total delay, is the date of “the actual or anticipated end” of Mr. Leonard’s trial.

In that regard, Crown counsel relies on numerous authorities indicating that the “end of trial” means the date on which a verdict is rendered, and applications of the new Jordan framework by the Supreme Court of Canada and our Court of Appeal consistent with that view.

In the case of Mr. Leonard, the Crown accordingly takes the position that the actual end of Mr. Leonard’s trial took place on December 4th, 2018; that is, the date on which a verdict was rendered and all trial issues had been decided, notwithstanding the fact that I delayed the entry of a conviction to permit Mr. Leonard’s bringing of this Charter application to determine whether or not his s.11(b) rights had been breached as of December 4th, 2018.

To the extent the end of Mr. Leonard’s trial somehow has been delayed by that process - that is, by the bringing of the s.11(b) application - the Crown asserts that the additional time should be characterized as defence delay, insofar as Mr. Leonard failed to prepare and bring a s.11(b) Charter application until January 10th, 2019, (after receiving unfavourable Charter and trial decisions), and insofar as the Crown and court were prepared to deal with such an application during the original or extended November-December 2018 trial sitting but Mr. Leonard and his counsel were not.

Counsel for Mr. Leonard now takes the position that calculation of total delay in this case should not stop with delivery of the verdict, and that the Jordan clock should instead continue to “tick”.

In that regard, it is said that Mr. Leonard’s trial effectively has been extended because, on the view now advanced by defence counsel, a s.11(b) application is a substantive defence insofar as it provides a possible basis for staying a criminal proceeding, and if successful therefore would result in no conviction being entered against an accused.

Second, counsel for Mr. Leonard submits that a potential Jordan violation arose on December 3rd, 2018, when I failed to render a verdict on that date and instead did so the following day, at a time defence counsel considered to be beyond the presumptive 30-month ceiling by a day. In the submission of defence counsel, it accordingly would not be accurate to characterize Mr. Leonard’s application as a post-verdict application.

In the further submission of defence counsel, the time it has taken Mr. Leonard to bring a s.11(b) application following my verdict, and to have that application heard and determined, accordingly has delayed the end of Mr. Leonard’s trial and therefore should be added to the initially calculated period of total delay.

In my view, as far as the Jordan framework is concerned, the matter should be approached on the basis that Mr. Leonard’s trial actually ended with delivery of my verdict on December 4th, 2018, and his bringing of the current s.11(b) application has not extended his trial.

My reasons in that regard include the following:

First, in R. v. Jordan, supra, the Supreme Court itself indicated in its second footnote that, while its decision was aimed at ending the culture of delay and complacency in criminal matters being tried, the decision and the presumptive ceilings it created were not intended to apply to post-conviction developments and sentencing in particular, even though the protection of s.11(b) extends to delays in the sentencing process as per R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45. Implicit in that indication, I think, was a view that the trial of a criminal matter ends no later than a conviction, which normally is entered immediately after a guilty verdict.

Second, not surprisingly, in my view, numerous cases therefore have interpreted the end of trial to mean the date a verdict is reached and/or a conviction entered for the purpose of Jordan calculations in relation to s.11(b) Charter applications.

For example, in R. v. Haniffa, 2017 ONCJ 781, [2017] O.J. No. 6017 (O.C.J.), at paragraphs 3 to 5, the court held that “the Jordan presumptive ceiling applies to the time of verdict in a trial”, that “nothing in Jordan or the principles underlying that framework would support extending that trial framework to post-trial applications such as entrapment”, and that “extending the framework in that manner without adjusting the presumptive ceiling might provide an incentive to bring post-trial applications in close cases simply to trigger a s.11(b) presumptive breach”.

In R. v. Patel, 2017 ONSC 5827, [2017] O.J. No. 5236 (S.C.J.), at paragraph 33, my colleague Justice Sutherland held, on the basis of his review of the case law, that the presumptive ceiling set out in Jordan applied “from charge to verdict.”

In R. v. R.M.P., 2018 ONSC 4117, [2018] O.J. No. 3521 (S.C.J.), at paragraph32, my colleague Justice Bell endorsed the view, expressed in R. v. J.M., 2017 ONCJ 4, [2017] O.J. No. 256 (O.C.J.) at paragraph 33, by Justice Paciocco before his elevation to our Court of Appeal, that “policy and first principles support an approach in which the anticipated end of trial is to be based on when a verdict is expected”.

In R. v. S.C.W., 2018 BCCA 346, for reasons outlined at paragraphs 25 to 26, the British Columbia Court of Appeal similarly found that “the end of trial benchmark used in Jordan was pronouncement of the verdict”.

I note that counsel for Mr. Leonard apparently shared that view, at least when the current application was brought.

For example, the grounds set forth in Mr. Leonard’s notice of application include reliance on the fact that Mr. Leonard’s “trial did not conclude until December 4th, 2018”.

Similarly, in the factum originally filed on Mr. Leonard’s behalf, defence counsel expressed the view, at paragraph 2, that Mr. Leonard was found guilty “after a four-day blended Charter voir dire and trial”. At paragraph 52 of the same factum, defence counsel expressed the view that Mr. Leonard’s “matter was resolved one day following December 3rd, 2018”; that is, the date identified in that original factum as the presumptive 30-month ceiling date. And at paragraph 61 of the same factum, counsel for Mr. Leonard expressly indicated that “the actual day his trial ended” was “December 4, 2018”, the “day that the presiding judge issued his decision on the Charter application and on the trial itself”.

The suggestion of a “continuing trial”, extending running of the Jordan clock, was raised only in the reply factum filed by Mr. Leonard’s counsel, after delivery of the Crown’s factum indicating why, for the reasons outlined above, the Jordan clock may not have started on June 4th, 2016, as counsel for Mr. Leonard originally supposed and suggested.

In my view, contrary to the current assertion of Mr. Leonard’s counsel, the current application is akin to a post-verdict entrapment application, insofar as it is not an application involving a substantive defence relating to the guilty of the accused. In particular, a successful s.11(b) Charter application may result in a stay of a proceeding and prevent the entry of a conviction but, like an entrapment application, it does not involve a determination of whether an accused person is guilty or not guilty of the charged offence.

The situation before me now therefore raises, in my view, the specter of injustice or mischief, identified by Justice Kenkel in R. v. Haniffa, supra, of a post-trial s.11(b) application effectively being used in a close case to bootstrap a matter into a presumptive s.11(b) breach that otherwise would not exist.

I am not suggesting that counsel for Mr. Leonard is deliberately pursuing that goal but, in my view, that clearly would be the effect of accepting the position he now puts forward.

In particular, for the reasons outlined above, the Jordan clock began to run in relation to Mr. Leonard on June 10th, 2016, with the swearing of the underlying information by Special Constable Kelly alleging that Mr. Leonard had committed the offences charged herein. In my view, the 30-month presumptive ceiling applicable to the matter therefore was set to expire on December 10th, 2018; that is, six days after delivery of my verdict in Mr. Leonard’s trial.

Even if I agreed with the approach to calculation of time proposed by Mr. Leonard’s counsel, (which I do not for the reasons set out earlier), the 30-month presumptive ceiling applicable to this matter would not have expired until December 9th, 2018; that is, five days after delivery of my verdict in Mr. Leonard’s trial.

In the circumstances, at the time of Mr. Leonard and his counsel perceiving there to be a breach of Mr. Leonard’s s.11(b) Charter rights on December 3rd, 2018, when I failed to deliver a verdict that day, or on December 4th, 2018, when I delivered a verdict and delayed immediate entry of convictions for the sole purpose of allowing Mr. Leonard to bring his intended application to obtain a declaration that there was an extant breach of his s.11(b) Charter rights at the time of time of my verdict, the simple reality is that Mr. Leonard and his counsel were mistaken. There was, in fact and in law, no delay of the matter beyond the presumptive 30-month ceiling at the time, and as Mr. Leonard and his counsel formally have conceded, Mr. Leonard cannot meet the criteria for a s.11(b) stay in the absence of that presumptive 30-month ceiling being breached.

In my view, it makes no sense whatsoever to suggest that Mr. Leonard may have had nothing but an inevitably unsuccessful s.11(b) Charter argument at any point prior to delivery of his trial verdict on December 4th, 2018, but should now receive the benefit of a s.11(b) stay because that argument, inherently doomed to failure at the time, could not be advanced, heard and determined immediately.

The Jordan framework was created to promote the rapid conclusion of trials, and thereby avoid breaches of s.11(b) of the Charter. It was not intended to prolong trials so as to create breaches of s.11(b) that otherwise would not exist.

In my view, the proper approach to situations such as this is for the courts to treat the circumstances of an alleged s.11(b) breach, said to have arisen prior to the delivery of a verdict, as having crystalized at the relevant time with the accused then being granted, (as Mr. Leonard was in this case), an opportunity to argue, after the fact and before a conviction is entered, whether or not those crystalized circumstances did indeed involve a breach of s.11(b) by the time the trial ended with a verdict.

However, the time taken to complete that exercise should not be added to the Jordan clock in terms of the initial total delay calculation.

Any other approach would, in my view, create the dangerous incentives noted by Justice Kenkel in R. v. Haniffa, supra, to bring post-trial applications in close cases simply to trigger a s.11(b) presumptive breach that otherwise would not exist.

At the risk of putting too fine a point on it, it takes little imagination to realize the havoc such an approach might wreak in a judicial centre such as Stratford where, as I mentioned earlier, there normally are only sixteen weeks of trial sittings a year, divided into six sittings that often are separated by two to three months in which there are no trial sittings at all.

In such a venue, the task of advancing criminal matters including pre-trial applications to completed trials with verdicts, delivered before the 30-month presumptive ceiling created by R. v. Jordan, already is far more challenging in effect than it is in venues where our court sits constantly throughout the year.

If an accused person can prolong the end of trial for Jordan purposes merely by indicating immediately before delivery of a verdict that he or she intends to bring a s.11(b) Charter application, however unmeritorious that application might be in the circumstances prevailing at the time, the practical result would be the addition of two to three months to the period of the total delay in the Jordan calculation, simply because there would be no ability to hear the unmeritorious application until the next trial sitting two to three months down the road.

That notional prolonging of the trial might even be longer if the judge seized of the matter was not assigned to preside over the next trial sitting; something which in turn could not be guaranteed without causing very substantial scheduling complications and disruptions in this circuiting region.

In my view, the new Jordan framework should not be interpreted or applied in a manner that encourages or realistically threatens such outcomes, and I would like to think that the Supreme Court of Canada would not have intended such outcomes.

Returning to application of the basic Jordan framework in this case:

First, for the reasons I have indicated, Mr. Leonard’s charge date was June 10th, 2016.

Second, for the further reasons I have outlined, the actual end of Mr. Leonard’s trial occurred on December 4th, 2018.

Third, the “total delay” from the “charge” to the “actual end of trial” accordingly was, by my calculation, 29 months and 24 days; that is, a period less than the applicable 30-month presumptive ceiling.

In my view, that is a sufficient basis on which to dismiss Mr. Leonard’s s.11(b) Charter application.

In particular, as noted above, Mr. Leonard has conceded that he is incapable of satisfying the defence onus of showing unreasonable delay, (by establishing that he took meaningful steps demonstrating a sustained effort to expedite proceedings, and that the case took markedly longer than it reasonably should have taken), that he would be required to demonstrate if the case does not exceed the presumptive 30-month ceiling.

As noted above, the total delay already falls below the presumptive 30-month ceiling before any further determinations and calculations.

In the circumstances, it is not necessary to determine delay attributable to the defence and subtract that from the total delay to determine the period of net delay, or to determine whether the Crown has established the presence of exceptional circumstances in the sense required. The existence of any such defence delay or exceptional circumstances would, in effect, simply reduce the relevant delay even further for purposes of the Jordan analysis, and compound the reasons for finding that there has been no breach of the rights guaranteed to Mr. Leonard by s.11(b) of the Charter.

In the event I somehow am mistaken about the date of charge and the computation of time, and the presumptive 30-month ceiling operated from June 4th, 2016 to December 3rd, 2018, as originally suggested by counsel for Mr. Leonard, I nevertheless will state my view that there were frivolous aspects to Mr. Leonard’s original Charter application, insofar as the alleged section 8 breaches relating to a supposed “strip search” and the video monitoring of Mr. Leonard’s cell were concerned.

I say that not simply because those arguments failed on their merits, but because I think they clearly were bound to fail based on the manner in which they were advanced.

In particular, it seems to me that an allegation of an illegal “strip search” obviously was doomed to failure in the absence of any evidence of a relevant “search” having been conducted in that regard, and there was none. Defence counsel suggested such evidence might have been available had other police witnesses been called by the defence. However, the simple truth of the matter is that the defence made no attempt to elicit or lead any such evidence, such that all arguments in that regard in relation to that suggested section 8 breach were an unnecessary waste of time.

I similarly do not understand how the defence possibly expected to succeed with the section 8 claims of improper cell video monitoring and corresponding breaches of privacy relying exclusively on the case of R. v. Mok, [2004] O.J. No. 44 (S.C.J.), in respect of which leave to appeal had been denied at [2015] O.J. No. 4702 (C.A.), when that case emphasized the need for evidence establishing a subjective expectation of privacy, (which the defence in this case made no effort to elicit or lead), and that there would be no section 8 Charter breach if video monitoring of cells by police employed a privacy screen, (which in fact had been put in place in this case by the Stratford Police Service). In my view, all of the video evidence and arguments in that regard similarly were, in the circumstances, an unnecessary waste of time.

In the result, those aspects of Mr. Leonard’s Charter application unnecessarily delayed completion of the matter at a time when time was at a premium, and when all concerned, (as emphasized by counsel for Mr. Leonard), were mindful of the clock, having regard to the Jordan concerns previously raised by Mr. Leonard.

In that regard, I also will emphasize once again, for the record, that I certainly would have been able to deliver my oral Charter application and trial decisions on December 3rd, 2018, had the good faith hearing duration estimate jointly provided by Crown and defence counsel not unexpectedly turned out to be inaccurate and there had not been an additional delay caused by Mr. Leonard’s counsel being unprepared to make final submissions when the matter initially came back on for hearing on November 30th, 2018.

In that regard, having lived through the proceeding and prepared my decisions and reasons for oral delivery, I can assure all concerned that just five to six more hours of preparation time, (let alone the full amount of preparation time that unexpectedly was denied to me because of the events I have described), would have made all the difference in terms of my being able to render oral decisions with reasons on December 3rd, 2018, as originally contemplated.

Had it been necessary for me to do so, I would have regarded the trial unexpectedly taking longer than reasonably anticipated, according to the parties’ good faith joint estimate of what was reasonable to expect in the circumstances, as a “discrete event” as contemplated in paragraph 73 of R. v. Jordan, supra, lasting one day.

For the reasons I have outlined, Mr. Leonard’s s.11(b) Charter application is dismissed.

TRANSCRIPTIONIST'S NOTE: The remaining portion of this matter was recorded but transcription has not been requested by the ordering party.