R. v. Hanan, 2019 ONSC 320

COURT FILE NO.: CR-18-4139

DELIVERED ORALLY: January 11, 2019

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DIA’EDDIN EDDIN HANAN

Applicant

Scott Pratt and Jamie Lesperance, for the Crown

Christopher Uwagboe and Michelle Farquhar, for the Applicant/Accused

HEARD: December 10, 11, 12 and 13, 2018

RULING ON SECTION 11(b) APPLICATION

MUNROE j.:

1Every case has its own path. At times, something arises that impedes the path. Before me is a s. 11(b) motion in which the Crown’s response to unexpected events on the eve of trial plays a major role in its resolution.

2On the eve of a murder trial, Crown counsel announced that its only eyewitness refused to testify and disclosed new evidence. Six hundred prospective jurors had been summoned. The accused responded with an offer to re-elect to be tried without a jury or, if not accepted, for an adjournment of the jury trial. The Crown consented to the adjournment, conceding the unfairness of trying the accused in the face of such dramatic changes. However, the Crown refused to consent to the re-election, despite knowing that a jury trial could not be scheduled for almost a year later. The case was almost three years old at the time. Following the adjournment and the setting of the new trial for October 28, 2019, the expected s. 11(b) application was filed.

3DIA’EDDIN EDDIN HANAN (“Mr. Hanan” or “the accused”) is accused of the second degree murder of Alekesji Guzhavin (“Mr. Guzhavin”), the attempted murder of Gregory Henriquez (“Mr. Henriquez” or “the complainant”), and assorted firearm charges all on December 23, 2015. It is alleged that Mr. Guzhavin and Mr. Henriquez went to the home of Mr. Hanan and that while there Mr. Hanan shot Mr. Guzhavin, killing him, and then shot a fleeing Mr. Henriquez in the back. Mr. Henriquez survived but is now paralyzed and is a Crown witness. The advised defence is self defence; the firearm used and recovered at the scene was brought there by either Mr. Guzhavin or Mr. Henriquez.

4Mr. Hanan was arrested for first degree murder and attempted murder on December 23, 2015. The original Information charging Mr. Hanan with those two charges was sworn on December 24, 2015. A replacement Information adding six firearms charges was sworn on March 10, 2016. The case spent almost two full years in the Ontario Court of Justice. On December 12, 2017, Campbell J. committed Mr. Hanan for trial on second degree murder, and on the balance of the other charges, after an eight day preliminary hearing. The case was scheduled for a six week jury trial in this Court, with a challenge for cause, commencing on November 5, 2018. That trial was adjourned, on consent, and a new trial is set to commence on October 28, 2019, with an anticipated completion date of December 6, 2019.

5The delay math is straight-forward. The total delay from the laying of the information to the anticipated completion of the trial is 47 months and 12 days. On this the parties agree. This total delay exceeds the presumptive ceiling by 17 months and 12 days. Whether and to what extent this total delay should be reduced by defence delay or exceptional circumstances are issues. The proper assessment of two major blocks of time – before the preliminary hearing and after the trial adjournment – are hotly contested. In addition, this is a transitional case which means that if the remaining delay exceeds the presumptive ceiling, the court must determine whether the traditional exceptional circumstances apply.

6In order to determine these issues, I will first review the history of these proceedings, then the governing legal principles, and finally the application of these legal principles to the issues presented.

I. History of the Proceedings

7Although the major disputes concern the time in the Ontario Court of Justice (“OCJ” or Ontario Court) leading up to the preliminary hearing and the post-trial adjournment time in the Superior Court of Justice (“SCJ” or Superior Court), context is essential. As a consequence, all court time will be reviewed. For ease of understanding, it will be broken down into three periods: pre-preliminary hearing, preliminary hearing, and Superior Court.

A. Pre-Preliminary Hearing

8There were 37 separate appearances in the Ontario Court before the preliminary hearing. They spanned more than one and one half years. It was almost eleven months before the first judicial pretrial conference (“JPT”). It took 4.5 months and multiple judicial pretrial conferences before a preliminary hearing was set. According to the defence, a continuing lack of prompt disclosure played a significant role in this extended period.

9The 37 appearances that comprise this initial period, coupled with the dates of disclosure from Exhibit 4, are summarized as follows;

• December 24, 2015: first appearance; duty counsel for Mr. O’Hearn as counsel for Mr. Hanan; Mr. Hanan arraigned.
• December 31, 2015: Mr. O’Hearn for Mr. Hanan; defence requested one week for disclosure.
• January 7, 2016: Ms. Santarossa for Mr. O’Hearn, counsel for Mr. Hanan; noting that disclosure is anticipated shortly, defence requested another week for disclosure.
• January 7, 2016: disclosure - initial disclosure package of 158 items which included witness list, arrest report, witness statements, police will-says, charge summary, initial officer’s report, crime scene reports, photographs, victim statement, and police notes.
• January 14, 2016: duty counsel advised Ms. Santarossa now counsel for Mr. Hanan; defence requested one week to retain and review disclosure;
• January 21, 2016: Ms. Santarossa for Mr. Hanan; defence requested one week to set a pretrial conference date.
• January 28, 2016: Mr. Russon for Mr. O’Hearn requested two weeks stating, “Your Worship, we’re still awaiting some disclosure on this matter. If it could go another two weeks and we hope to be able to set a pretrial by then.”
• February 11, 2016: duty counsel for Ms. Santarossa with instructions: “Two weeks by video for further disclosure ….”
• February 25, 2016: Ms. Santarossa for Mr. Hanan; defence requested two weeks stating, “I just received additional disclosure ….”
• March 10, 2016: matter adjourned to bring Mr. Hanan to different courtroom in person for new charges.
• March 10, 2016: duty counsel for Ms. Santarossa, counsel for Mr. Hanan; arraigned on replacement Information adding six firearms charges; original Information withdrawn; defence requested two weeks “still awaiting additional disclosure”.
• March 22, 2016: disclosure - disclosure package of 367 items which included significant duplication of initial disclosure (by facial description), witness statements, police will-says, photographs, police notes, autopsy report, search warrant, summaries of video statements, CFS reports, accused interview notes, phone records, transcript of 911 calls, and Evidence Control Sheet.
• March 24, 2016: duty counsel for Ms. Santarossa, counsel for Mr. Hanan; defence requested two weeks awaiting disclosure.
• April 7, 2016: Mr. Russon for Ms. Santarossa, counsel for Mr. Hanan; defence requested one week “to set a pretrial”.
• April 11, 2016: disclosure – disclosure package of 26 items which included a DVD.
• April 14, 2016: Mr. Russon for Ms. Santarossa, counsel for Mr. Hanan; defence requested two weeks to review “a fair bit of new disclosure” just received; Crown pushed to set a judicial pretrial stating the matter has “been in the remand stages with nothing having been done for quite some time. At least three months I’m advised by Mr. Pratt. So … the Crown’s expectation would be that a judicial pretrial be set on the next return.” The defence responded that such a judicial pretrial would not be fruitful without the opportunity to review the disclosure; “if we’re not fully disclosed then what good is a pretrial?”
• April 27, 2016: disclosure – including phone records and Mr. Guzhavin’s criminal record.
• April 28, 2016: Mr. O’Hearn for Ms. Santarossa, counsel for Mr. Hanan; defence requested two weeks stating, “So far there are about 3,000 pages of disclosure that Ms. Santarossa is still going over and she’s requested further disclosure ….”
• May 12, 2016: Mr. O’Hearn for Ms. Santarossa, counsel for Mr. Hanan; defence requested two weeks stating, “since we were here she got a new DVD. She’s still reviewing that.”
• May 19, 2016: disclosure - disclosure package of 52 items which included the interview of Mr. Henriquez.
• May 26, 2016: Mr. Russon for Ms. Santarossa, counsel for Mr. Hanan; defence requested two weeks stating, “[w]e received four CDs of new disclosure on this matter on Tuesday.”
• June 9, 2016: Ms. Carroccia as agent for Mr. Hanan; defence reported a wish to change lawyers and requested two weeks to see if Ms. Carroccia is getting on record and to confirm disclosure.
• June 23, 2016: Ms. Carroccia as agent for Mr. Hanan; defence requested two weeks to confirm counsel and to review disclosure.
• July 7, 2016: Mr. Topp for Ms. Carroccia, for Mr. Hanan; defence requested two weeks for disclosure.
• July 21, 2016: duty counsel and Mr. Hanan, self-represented; Mr. Hanan requested two weeks “so I could get a solicitor” and for further disclosure; Mr. Lesperance, for the Crown, cited the Supreme Court’s decision in R. v. Jordan and the “urgency” to move the case forward noting, in detail, the history of the case; according to Mr. Lesperance disclosure was complete; Mr. Hanan stated he still needed further disclosure and is actively looking for counsel because Ms. Carroccia had a conflict of interest.
• July 26, 2016: duty counsel for Mr. Uwagboe, counsel for Mr. Hanan; defence requested three or four weeks for disclosure.
• August 16, 2016: duty counsel and Mr. Hanan; duty counsel in receipt of letters from two lawyers; Mr. Hanan confirmed that Mr. Uwagboe is his counsel; defence requested two weeks for disclosure.
• August 16, 2016: disclosure - disclosure package of 11 items to Mr. Uwagboe which also noted that disclosure returned by Ms. Santarossa to be provided on August 17, 2016.
• August 30, 2016: duty counsel for Mr. Uwagboe, counsel for Mr. Hanan; defence requested three weeks to review disclosure; Mr. Pratt, for the Crown, stated, “Especially in this post Jordan world the Crown is very anxious to move this case forward. …[T]he Crown is very concerned and very anxious to set a pretrial on this as soon as possible.”; to Mr. Hanan’s statement that his lawyer only received disclosure two days ago, Mr. Pratt responded, “It was courier[ed] to Mr. Uwagboe on August 17th.”; the Justice of the Peace noted that “[d]uty counsel is undertaking to inform Mr. Uwagboe of the urgency of getting this matter moving onto the next phase ….”
• September 20, 2016: duty counsel for Mr. Uwagboe, counsel for Mr. Hanan; defence requested two weeks to set a pretrial date; Mr. Pratt, for the Crown, expressed disappointment that date could not be set then.
• October 4, 2016: duty counsel for Mr. Uwagboe, counsel for Mr. Hanan; defence requested one week to set judicial pretrial.
• October 11, 2016: duty counsel for Mr. Uwagboe, counsel for Mr. Hanan; defence requested one day because not in receipt of instructions from Mr. Uwagboe.
• October 12, 2016: duty counsel for Mr. Uwagboe, counsel for Mr. Hanan; defence requested one week to set judicial pretrial, stating Mr. Pratt was away so unable to coordinate schedules.
• October 19, 2016: duty counsel for Mr. Uwagboe, counsel for Mr. Hanan; judicial pretrial set for November 9, 2016.
• November 9, 2016: Mr. Retar for Mr. Uwagboe, counsel for Mr. Hanan; reported on earlier pretrial conference by teleconference which was to be continued to a future date to be set.
• November 10, 2016: duty counsel for Mr. Uwagboe, counsel for Mr. Hanan; defence requested one week to set judicial pretrial continuation.
• December 2, 2016: disclosure - disclosure package of 13 items which included a 23 page autopsy report (Mr. Guzhavin).
• December 15, 2016: Mr. Hanan without counsel; report on status of on-going bail hearing in Superior Court; Mr. Pratt, for the Crown, reported, “when I spoke with Mr. Uwagboe earlier today, the idea was this would be adjourned about a week, at which point … we’ll have an idea of the status of bail and be able to resume the … pre-trial.”; matter adjourned to December 20, 2016 to arrange for further pre-trial.
• December 20, 2016 (in the Superior Court before Carey J.): judicial interim release ordered.
• December 20, 2016 (in the Ontario Court before Justice of the Peace Ryan-Brode): Mr. Uwagboe for Mr. Hanan; set continuation of judicial pre-trial previously arranged through trial coordination.
• January 16, 2017: Ms. Mukadam as agent for Mr. Uwagboe, counsel for Mr. Hanan; Dean J. reported a pre-trial teleconference earlier that morning with an agreement to set the case for March 1, 2017, expecting that by that date the parties would be able to set a preliminary hearing date the following week on March 8.
• March 1, 2017: Mr. Uwagboe for Mr. Hanan. The following transpired:

The Court: [A]bout this matter. I’ve … had a few pre-trials …. [W]here are we with this? Are we ready to set the preliminary hearing dates?

Mr. Uwagboe: I imagine we will be, soon. There’s a package of disclosure that I’m picking up. That was a product of, of our last judicial pre-trial. … It includes … a ballistics report which I think I would need to review to determine whether or not we can just rely on a report or that witness is going to be required. There’s some additional disclosure, also, with respect to notes that we’re missing. There’s … a number of notes and willsays, that are … missing …. So the Crown has been diligently assisting me in … the additional disclosure requests I’ve made. But there’s some core pieces … I would submit, of disclosure that … I would need before I can give an accurate estimation of time. We had been talking about the potential of setting, somewhere within a week or two weeks for this. … I think that might be a little short, depending on who we carve out. So there just needs to be a little bit more of a fulsome discussion, I think, with respect to the additional materials I’m getting …. And so that’s … kind of where we’re at. … I just don’t think I can give a realistic estimate on timing to set the … preliminary hearing at this moment in time. … I appreciate it’s getting long in the tooth, notwithstanding that I’m not the first counsel on it. But, … if the court’s of the view that we should set a chunk in let’s say, three weeks, and just get everything done in the interim, … I’m in your hands. But, … that’s where I’m at.

Mr. Pratt: … Certainly, we’re doing everything we can to get the disclosure that’s … been requested. And I would note, of course, that disclosure doesn’t need to be entirely complete before a preliminary hearing is set. … The matter has been going for some time. It’s 15 months old now. So I … am anxious to set a preliminary hearing date. And I recognize that if we are talking about one, two or three weeks, that’s likely going to be far enough into the future that we’ll have time to deal with these disclosure issues in the interim. And it may be that once we do that, and we can reduce the witness list, we can give back a week if we feel we don’t need it. … [C]ertainly it would be my preference to get our dates to trial coordination sooner, rather than later so they can start working … on preliminary hearing dates. The matter did stagnate for quite some time, but … I will say, certainly since my friend has been on, we’ve been moving forward at a … reasonable pace, I think. So I’d like to keep it going in that … fashion.

The Court: … I appreciate what’s been said by both counsel …. And I don’t necessarily take issue with what either counsel has said. I’m going to give this matter three weeks. I’m going to put it into the date setting court at that time, and with the expectation that a … preliminary hearing date is going to be set at that time. That gives you two weeks to work out the outstanding issues as complete as possible, and gives you another week to provide your dates to trial coordination ….

The Court: … [I]t’s incumbent upon counsel at least a week ahead of that date that I’m going to give, to provide trial coordination … your availability so that they can have the dates at the ready ….

Mr. Uwagboe: … [A]re you looking just for the balance of this year, or are we kind of setting into early …

The Court: It’s always fluid. …. you might get an answer today that … you’re probably looking at November, or … December. But by the time three weeks comes around, there might have been a five or six-day trial that’s been resolved … and now, it’s available …. [I]t’s always fluid. …. [T]here’s an answer today but tomorrow there’ll be – might be a different … statement made ….

The Court: …. So what about the 24th [of March] …?

Mr. Uwagboe: I’m in a Superior Court trial … that week ….

The Court: So then the 27th [of March], or a day that week?

Mr. Uwagboe: … I’ll go for the 29th. … [T]hat’s the … best day. That … works for me that way.

Mr. Pratt: [T]hat’s agreeable.

The Court: All right. March 29th … to set … date.

• March 10, 2017: disclosure - disclosure package of 14 items which included a CFS report on projectiles and criminal records from the U.S.
• March 29, 2017: Mr. Kyriazakos as agent for Mr. Uwagboe, counsel for Mr. Hanan; preliminary hearing dates set for 15 days beginning on October 31, 2017; focus hearing date set for July 18, 2017.
• June 5, 2017: disclosure - disclosure package of 43 items which included mostly police notes.
• June 28, 2017: disclosure - disclosure package of 10 items.
• July 18, 2017: Mr. Uwagboe for Mr. Hanan; focus hearing before Campbell J.; the defence advised that committal is an issue; both counsel advised court of fruitful discussions narrowing issues.
• September 7, 2017: disclosure - disclosure package of 5 items.
• September 19, 2017: disclosure - disclosure package of 5 items.

B. Preliminary Hearing

10The preliminary hearing was scheduled for 15 days on agreed dates beginning on October 31, 2017: 1 day in October; 9 days in November; and 5 days in December. Committal was contested on all counts. Only eight days out of the scheduled 15 days were used for the preliminary hearing. And of those eight days, only four were full days. The others were half days or less. The Crown called 14 witnesses and of those, more than half or 9 witnesses were called only for cross-examination at the request of the defence.

11The preliminary hearing period is summarized as follows:

• October 31, 2017: Day One of preliminary hearing; the unexpected inability of Mr. Henriquez to appear in Windsor led to the Crown’s motion to admit his police statement pursuant to s. 540(7) and the corresponding defence motion to permit cross examination pursuant to s. 540(9); a voir dire on these motions was conducted which included the evidence of Det. Novak; the defence suggested a continuation of the preliminary hearing to see if Mr. Henriquez would be able to travel later; ACA Pratt opposed an adjournment: “[T]here’s no benefit, particularly in a post-Jordan world, to adjourn a preliminary hearing, essentially sine die, in the hopes that someday this witness may be available.”; the court agreed with the Crown and delayed ruling on both motions pending confirmation of the availability of an appropriate link with Florida.
• November 1, 2017: Day Two of the preliminary hearing; 4 police witnesses were called by the Crown.
• November 2, 2017: Day Three of the preliminary hearing; ACA Pratt advised: per discussions with defence counsel had discussed schedule for cross-examining Crown witnesses - five today, five tomorrow, then three, and then two; however, defence counsel re-thought his position on three of the desired witnesses so there are only two Crown witnesses today for cross-examination; adjourned at 10:58:59 a.m.
• November 3, 2017: ACA Lesperance advised that the preliminary hearing was not going to continue that day, on consent, to attempt to arrange officer availability and the testimony of Mr. Henriquez.
• November 7, 2017: Day Four of the preliminary hearing; ACA Pratt provided update on video status for the testimony of Mr. Henriquez; five witnesses were called by the Crown for cross-examination by the defence; adjourned at 12:21:34 p.m.
• November 8, 2017: Day Five of the preliminary hearing; two witnesses were called by the Crown for cross-examination by the defence; Mr. Uwagboe advised the defence would not be calling any witnesses at the preliminary hearing; on agreement, the four days scheduled for December were released; adjourned 12:20:46 p.m.
• November 27, 2017: unable to complete video link with Florida.
• November 28, 2017: Day Six of the preliminary hearing; successful video connection with Florida; Crown called Mr. Henriquez mostly for cross-examination by the defence.
• November 29, 2017: Day Seven of the preliminary hearing; cross-examination of Henriquez continued/concluded; ACA Pratt: that is evidence of Crown: Mr. Uwagboe: not calling evidence.
• December 4, 2017: Day Eight of the preliminary hearing; submissions on committal of all counts; adjourned at 1:01:49 p.m.; reasons/decision scheduled for December 12, 2017.
• December 12, 2017: reasons given on preliminary hearing by Campbell J. - committed on second degree murder, attempted murder and the firearms charges; adjourned to next assignment court on January 5, 2018.

C. Superior Court

• January 5, 2018: Assignment Court; defence counsel late; case recalled and court made an exception allowing recall;

The Court: … Ordinarily, we have a practice of not recalling matters when counsel is not present when they’re called. This is – counsel is from out of town, and it sounds as though you weren’t as familiar with the process here in Windsor. … [G]iven the nature of the charge and the Jordan issues, I am inclined to make an exception in this case.

The Court: I’m hoping that counsel, you have received the communication from the court asking for Jordan analysis, or at least an indication of how much of the delay to date is either defence delay or exceptional circumstances. Have you had an opportunity to look at that issue?

Mr. Uwagboe: … I have reviewed the email from Mr. Pratt …. I was not initial counsel on the matter … so I didn’t have a lot of information with respect to the dates that he had set out from the beginning. My commentary was only that there would be some intake, I suspect, with respect to the change of counsel. I would agree that some of that time would fall to the defence feet. With respect to how much of it, he is the better author of that, ‘cause I was not involved in this case at that time.

The Court: So I believe Mr. Pratt indicated that there was approximately eight months of, of delay attributable to the defence.

Mr. Uwagboe: That’s what he indicated in his email.

The Court: And, so are, are – for the purposes of scheduling this, are you prepared to agree that approximately eight months or at least eight months, is defence delay?

Mr. Uwagboe: I, I would, I would assume it would be somewhere in that range. I don’t know ….

Mr. Uwagboe: But certainly, I am in the position to say that some of that delay is attributed to the defence with respect to the change of counsel. … [T]hat’s the best I can offer the court at this time. … I do not have instructions to proceed with an 11(b) motion in any event. And my expectation always is that this trial would have been tried on its merits.

Mr. Uwagboe: But …. Again, I didn’t have a full conversation with my client about that, just my assessment as a time, … as an officer of the court.

The Court: All right, well, I appreciate that very much. So it looks like there is a little bit more flexibility that the, the raw Jordan date would suggest.

Mr. Uwagboe: I would agree with that.

The Court: …. I may just give Ms. Ford [trial coordinator] an opportunity to complete her call.

Trial Coordinator: [calling office of Regional Senior Justice (“RSJ”) regarding JPT dates – offering late January or the beginning of February, 2018]

The Court: [set JPT for February 1, 2018 and assignment court for February 16, 2018] But I’m wondering if we want to look at setting trial dates, today?

The Crown: [trial estimate: four to five weeks; no Crown pretrial motions except potentially regarding video link testimony]

Mr. Uwagboe: [agree to trial estimate of five weeks; advise of potential third party records application by the defence]

Mr. Uwagboe: [that is the only pretrial motion anticipated by the defence]

The Crown: [no voluntariness motion regarding statements is anticipated]

The Court: [May have two to three days of pretrial motions before jury selection. Is 5 weeks enough? Would rather overestimate than underestimate with a jury.]

Mr. Uwagboe: Then I … would say six.

The Court: [we can tweak at JPT; let’s look for six weeks and a three day motion]

Trial Coordinator: … [F]orgive me, because I was on the phone with the regional office – I missed some of the discussion about the, the true Jordan rule and I …

The Court: [C]ounsel for Mr. Hanan has indicated that he agrees with Mr. Pratt, that eight months will be attributable to defence delay, given the change of counsel.

Trial Coordinator: So we’d be looking at the end of February 2019, then [with 8 months added to the previously understood June 2018 end date]?

The Court: Yes.

The Court: [If dates are available in January, are counsel available?]

Mr. Uwagboe: [yes]

The Crown: [yes]

Trial Coordinator: [W]ould counsel be available November and December, for this trial, of 2018?

Mr. Uwagboe: [yes]

The Crown: [yes]

• Mr. Uwagboe’s Pre-Trial Conference Report (faxed Jan 31, 2018): Paragraph 5(a): Judge and Jury election; Paragraph 5(b): Challenge for Cause – Parks; Paragraph 6(a): yes, defence delay “not in a position to specify [length of time] at this time”; Paragraph 6(b): yes, exceptional circumstances “not in a position to specify [length of time] at this time”; Paragraph 6(c): “Does the Defence intend to bring a stay application for a s. 11(b) Charter breach? No.”; and Paragraph 26(a): “admissibility of audio video re ‘shooting sounds’” challenged.
• ACA Pratt’s Pre-Trial Conference Report (faxed Jan 31, 2018): Paragraph 6(a): yes, defence delay “January – August 2016”; Paragraph 6(b): no, exceptional circumstances.
• February 1, 2018 Judicial Pretrial Conference before Thomas RSJ.: Indictment endorsement: “J.P.T. completed. To Feb. 16/18 A.C. T.S.D. (Sept 17/18 – 1 week motions; Nov 5/18 trial – 6 weeks) – challenge for cause.”
• February 16, 2018 Assignment Court: confirmed dates set with trial coordinator - September 17, 2018 one week for pretrial motions; November 5, 2018 six week jury trial; and August 10, 2018 trial readiness.
• June 27, 2018 Defence Motion to Vary Bail Conditions: on Crown consent; changes: curfew to 6 p.m. to 6 a.m.; from $30,000 cash to surety with no deposit.
• August 10, 2018 Trial Readiness: no problem with dates; everyone ready.
• August 10, 2018 email from ACA Pratt to defence counsel which included: “I wanted to let you know where we are on the analysis of your client’s IPhone. I’m told that technical issues are preventing an analysis at this point. Those issues may not be insurmountable. This is to advise that if we do get a report from the police, we’ll disclose it at that time. It may be that it comes on the eve of PT motions, of trial, or during the middle of trial, or not at all. I just wanted to let you know that there’s no time frame for when/if we get it and it might end up affecting our trial timeline if it arrives unexpectedly.”
• September 17, 2018 Day One of Motions before Munroe J.: the accused was arraigned and announced ready for trial; three defence motions were before the court: third party records (from three different agencies), leave for the accused to sit at counsel table, and a Corbett application; leave to sit at counsel table was granted on consent; the Corbett application was deferred to after the close of the Crown’s case at trial pursuant to R. v. Underwood, 1998 CanLII 839 (SCC), [1998] 1 S.C.R. 77, at para. 13; a voir dire commenced on the third party records motion which led to a ruling of likely relevance requiring a court review; motion adjourned to September 19, 2018 for ruling on disclosure; embarked on Case Management Conference during which the following transpired: Defence to prepare challenge for cause question(s); Status of Mr. Henriquez: wheelchair bound but attending; Audio on surveillance video to be contested at trial – Admissibility challenge – probative vs. prejudice; Trial voir dire required with witnesses – Defence relying on Crown witnesses; and No expert witnesses; Time required: Mr. Pratt: don’t think more than one day The Court: can do it this Friday? Pratt: don’t know if witnesses available The Court: Friday or after jury selected Factums due on October 29, 2018 With anticipated length of time of voir dire Set Wednesday agenda, September 19, 2018: Proposed challenge for cause question(s); Expert evidence anticipated; Any admissions; and Any other potential trial or pretrial issues.
• September 19, 2018 before Munroe J.: ruling on Third Party Records Motion (certain records disclosed); Trial Management Conference (continued) during which the following transpired: Challenge for cause questions submissions; Review jury selection process with jury panels summoned for three successive days – morning and afternoon; Audio tape admissibility voir dire - The Court: would prefer after some evidence; Mr. Pratt: agreed and would be useful to jury; Defence: agreed on use of preliminary hearing evidence on voir dire; Both counsel agreed on one day voir dire; Reviewed other anticipated evidence issues; Reviewed anticipated expert evidence and procedure; Heard from Crown on cell phone data from the accused’s phone Mr. Pratt advised it is password protected which resulted in an inability to access even though police had warrant; then in May 2018 learned of new technology which led to new effort to access data; new analysis now ongoing but unclear when will be available; The Court: nudge the police to accelerate efforts to avoid problems; “if the Crown does want to use it … , the defence has [to have] it in sufficient time to be able to respond to it.” Following an adjournment to the afternoon, the Trial Management Conference (continued) during which the following transpired: Ruling on challenge for cause questions; Trial estimate of 6 weeks still stands - counsel agreed; The Court addressed jury selection noting it would be a challenge to seat a jury for a trial of this length before the Christmas season; “We’re going to have 600 prospective jurors. There’s going to be a hundred … morning and afternoon for three straight days.”; and the Court urged counsel to be prompt and to keep the case moving.
• Wednesday, October 31, 2018 Police Report re Cell Phone Extraction: data extracted by private company; pursuant to search warrant, police extracted texts, call logs from December 23, 2015.
• Friday afternoon, November 2, 2018 before Munroe J. on court appearance requested by the Crown during which the following transpired in summary form unless in quotations: Mr. Pratt: Yesterday learned that Crown witness, Mr. Henriquez, a resident of Florida, refused to give evidence at trial. This left the Crown in the position of bringing two motions to seek to introduce Mr. Henriquez’s evidence from his preliminary hearing testimony, pursuant to s. 715, and from his police statement, pursuant to the principled exception to the hearsay rule; this will have significant impact on schedule; the Crown hoped to file these motions by Monday, November 5, 2018; the Crown could start its case with other witnesses but it would be difficult to give an opening statement without knowing the admissibility of the Mr. Henriquez evidence; the Crown wants to delay its opening statement until after the ruling on these new Crown motions. The Court: how long do you anticipate the voir dire on these motions? Mr. Pratt: two days is safe; maybe less. The defence opposed these motions and has doubts about the Crown’s time estimate believing it may be more than two days. Mr. Uwagboe: there is another issue - the recent disclosure of cell phone data which was sent to my office this week but which I have not yet reviewed. I also don’t have the warrant or the information to obtain the warrant (“ITO”); these issues concern me with regard to the timing of the trial. The Court: are you asking for an adjournment? Mr. Uwagboe: I don’t know other options so I think yes. The Court: we will convene at nine on Monday morning, November 5, 2018. The Crown is to provide its motions to the defence over weekend. Mr. Uwagboe: I would consider other options like a judge alone re-election. Mr. Pratt: I don’t know if that is something I can decide on my own. The Court: “… [W]e’re fine if we proceed right now with regard to Jordan. We go much farther down the road and you might start having Jordan problems.” Mr. Pratt: “Yes. ….” The Court: “And so, I mean as the Supreme Court said in Jordan, the Crown has to reassess given the realities of today.” Mr. Pratt: “Absolutely …. So there’s no question there’s a lot being thrown at my friend right now that I’m asking to deal with quickly.” The Court: “At proverbial ‘the last minute’.” Mr. Pratt: “Pretty close, yes. …. If we get to the stage of seeking an adjournment then we’ll respond to that request. As it relates to re-election Mr. Lesperance advises me he believes that is something that requires the Attorney General’s consent in a case such as this. So that is something we would have to look into.” The Court: “Well I’d like you to find that out before the end of the day.” Mr. Pratt: “We will. I will do that sire, absolutely.” The Court: “Because, you know, we have 600 jurors coming in over three days because of the holidays coming up as well as the length of this trial. And the idea of postponing, picking a jury and postponing it for any length of time at all, we’re banging into Christmas time.” Mr. Pratt: “Yes.” The Court: “And you’re going to have even less of a chance to get a jury.” Mr. Pratt: “I agree. I agree. ….” The Court: Mr. Uwagboe, is re-election a musing or do you have instructions? Mr. Uwagboe: I do not yet have instructions Mr. Uwagboe: “….[Mr. Hanan] does want to have his trial. …” Mr. Pratt: With regard to the newly disclosed cell phone data, “[m]y understanding is there was a new warrant.” This was not given to defence yet. The Court: You’ve got to get the defence that warrant and ITO over the weekend. Pratt: “Yes sir.”
• Monday November 5, 2018 – Notice of Application (ex. 6) “Defence Application to re-elect mode of trial to proceed by way of judge alone without a jury. Absent consent from the Crown Attorney to re-election, the Applicant seeks an order granting the adjournment of the trial dates.” Grounds: Appendix A Late disclosure of cell phone extraction Incomplete – still on warrant or ITO Defence informed on November 1, 2018 that Henriquez would not attend Insufficient time to review and respond
• Monday, Nov 5, 2018 – Day One of Jury Selection: the following transpired before jury selection (in summary form unless in quotations): Mr. Pratt: Regarding the potential for re-election, “the Crown is not consenting to a re-election, sir.” The Court: “So, I take it that this written application now is for adjournment?” Mr. Uwagboe: Correct. Also, there remains outstanding disclosure on cell phone matter which may evolve into a Charter issue. I was hopeful for a re-election so we could accomplish all of these issues in a week or two. Now we are left in position “where we cannot possibly proceed with the trial scheduled today, to commence with the jury.” The Court: “[B]efore I address your motion on its merits, we have 600 jurors that have been summoned over the next three days. Your application will need a voir dire, and I’ll need to hear some form of evidence in … whatever form, to make a reasoned decision on that. If I excuse the jury panel now, functionally, your motion will be granted without hearing the motion. And so that doesn’t seem to be the appropriate course. … [I]f I make the decision after we go through these three days and acquire a jury that’s ready to go and then reach your motion, how are you prejudiced by that, if at all?” Mr. Uwagboe: “The … process in itself I don’t think is … prejudicial. … I don’t image the facts are in dispute on the end of the prosecution with respect to the adjournment request. …” The Court: “[W]ith regard to the late disclosure, there’s more than one remedy other than adjournment.” Mr. Uwagboe: “There is. …” The Court: “And with regard to witnesses who decline to … show up as witnesses or change their testimony, or claim that they don’t remember, that does happen in these courts.” Mr. Uwagboe: “That’s correct.” The Court: “And many times, it happens mid-trial.” Mr. Uwagboe: “Correct.” The Court: “And so, yes, it’s unfortunate that it happened in this case. And, yes, it’s unfortunate it happened at the beginning, but it’s not like something that the courts have never seen before.” Mr. Uwagboe: “That … is true. …” The Court: “Nor is late disclosure, unfortunately.” Mr. Uwagboe: “That … is also true. … But I would say that there’s a … combination of factors here ….” The Court: “That’s why I’m going to want to hear from you.” The Court: “Let me … hear from Mr. Pratt … on this issue, which is the timing of the motion for adjournment.” Mr. Pratt: “Yes. It may be, Your Honour, that the Crown’s position on this helps in that regard, with what needs to be heard by the court before you make a decision. … If … I was in my friend’s shoes, and last week heard about Mr. Henriquez, knowing the role he plays in this trial, and if I heard about the cell phone report coming in, knowing – not having seen it – the import of that evidence, I would not feel comfortable or sufficiently prepared to defend my client. That being the case, sir, I can’t quarrel with my friend’s request for an adjournment. I think it’s a proper one. … So my friend’s in a very difficult spot. I recognize that. That was considered when the Crown decided on not consenting to re-election. … I find it difficult, given how crucially important in particular the Henriquez evidence is, to oppose my friend’s adjournment request. I don’t think, to answer Your Honour’s question to my friend, that it would prejudice the defence to select a jury before Your Honour decides it. But candidly, I don’t know that would serve, well, a useful purpose. … [I]n the circumstances, sir, I think my friend’s adjournment application probably ought to be granted, candidly. And picking a jury, I don’t know to what end we would do that.” The Court: “You agree that one of the factors I should consider in granting or not granting an adjournment is the consequences of that?” Mr. Pratt: “In terms of Jordan, … and such, sir?” The Court: “In terms of an 11(b) application. It seems to me, I should take into account the consequences of granting an adjournment, ‘cause if the granting of adjournment is functionally, dismissal of the case, then … [it’s] something I should consider. Don’t you think?” Mr. Pratt: “Absolutely. …” The Court: “Because … functionally, you’re telling me that you’re consenting to the adjournment.” Mr. Pratt: “Yes. No, all … parties bear responsibility in an 11(b) issue, for sure. … The 11(b) calculus is not necessarily a simple one, in this case. … It’s not cut and dried, simply from December 23rd, 2015, to today. But that is an issue that Your Honour should consider. And if, down the road, we’re … faced with an application of that nature, the Crown will respond to it and we’ll … defend it, vigorously. It might be useful, I wonder, to enquire of trial coordination, when the court could accommodate this trial again, before you decide.” The Court: “[Be]cause I’m seized of the case now, so it’s not like we’re going to need a date that any judge can … - now it’s my schedule that has to be factored in.” Mr. Pratt: “So it might be worthwhile to visit trial coordination and … find that out, before Your Honour decides.” The Court: “… [H]ow fixed are you to have a jury trial? … Is … that a decision that is in stone?” Mr. Pratt: “[I]t was made in consultation with our managers, yes, sir.” The Court: “Tell me about the consequences of granting an adjournment, in terms of 11(b).” Mr. Uwagboe: “I can advise that obviously, there are circumstances that flow from that. And, and part of why I made a request to proceed with judge alone, is so that those weren’t consequences that we would necessarily have to deal with, with respect to the matter, if we could continue with the trial.” The Court: “Well, let me, let me put it right on the table. If we can’t get to this trial for the next six months, is that going to prompt an 11(b) motion?” Mr. Uwagboe: “… I suspect it’s in the … matrix. …” The Court: “Is the … trial estimate of six weeks, now without Mr. Henriquez, is that – do … you assume it will be roughly the same?” Mr. Uwagboe: “The … difficulty on the time assessment is in relation to the other factors that have now come in. There are other applications now, that also weren’t factored into the trial time. So, I … can’t say how much time we have saved from not having Mr. Henriquez ….” The Court: “And here’s what I want. I want, number 1, … go down to the trial coordinator’s office and see what kind of realistic trial date they can give you, keeping this in mind; I have six weeks blocked off from my schedule. And so, … I want to hear all the motions during that six-week period. I’ll give you the time you need … to address those, but I’m not going to bump those down the road.” RECESS The Court: “Well … let’s deal with what has to be done. We have a jury panel waiting for us.” Mr. Uwagboe: “Right.” The Court: “You are standing on your motion to adjourn?” Mr. Uwagboe: “Absolutely.” The Court: “And the prosecution is standing on its position that under the circumstances, it would not be fair to force the defence … onto a jury trial, right now?” Mr. Pratt: “Yes, sir.” The Court: “And stands that they are not consenting to a re-election?” Mr. Pratt: “Yes.” The Court: “Okay. And so, let’s go and discharge this panel. And then we’ll … reconvene … to see where we are and to set up a schedule. And then the question is, it seems to me, given both parties’ positions, that I will instruct the … court staff to begin calling and cancelling all the other panels. Anybody disagree with that?” Mr. Pratt: “No, sir.” Mr. Uwagboe: “No, sir.” RECESS [jury panel discharged; court staff instructed to cancel other jury panels] The Court: “… Assuming you were listening carefully, I did not rule on the defence motion to either re-elect or to adjourn. I simply discharged that jury panel. I have discharged the rest of it. I’m not ready to rule on that. I have six weeks set aside for me. … I’m going to want to hear from everybody tomorrow, at eleven o’clock. At that time, I’ll hear more on the motion for re-election or for adjournment. I also want to hear from the Crown, I understand that the earliest the trial coordinator at this point in time can assure that I can hear a trial of this length, is in October of next year. … [H]as the Crown filed its motion on section 715 and the [principled exception to the hearsay rule]? Are they filed?” Mr. Pratt: “They should have been, Your Honour, I don’t know if you have them yet. …” The Court: “I don’t have them. ….” The Court: “I … read in the defence motion that they still haven’t been supplied with the ITO and … the warrant with regard to the … search of the phone contents. Is … that been rectified?” Mr. Pratt: “We … looked into it with the officer. We’re advised that the warrant has been disclosed. We have not been given the ITO … to hand over to my friend yet. But that’s another thing that’s being worked on, sir.” The Court: “I don’t understand, worked on. All you have to do is tell the police, give me the ITO, … don’t you?” Mr. Pratt: “Yes. And we’re waiting on that now. I did ask Officer Novak about that and we just haven’t received it yet.” The Court: “Well, could you press that, so you can tell me tomorrow, that it’s been disclosed?” Mr. Pratt: “Yes, sir.” Mr. Uwagboe: “The warrant that had been disclosed is an old, stale-dated warrant. There is no other warrant …. It looks … like to me, that this happened without a warrant.” The Court: “Or … they might be relying on the first warrant. … Mr. Pratt, if … the police are relying on the first warrant, at least tell the guy. … Tell your defence counsel that we’re relying on the first warrant. That’s fine.” Mr. Pratt: “No, I agree. And, and I did, sir.” The Court: “And … that’s what it was? They’re relying on the previous form?” Mr. Pratt: “That’s what Detective Novak advised me, yes.” The Court: “Okay. So you need to get the ITO on that.” Mr. Pratt: “Yes, sir.” The Court: “Well, as you can imagine, or as I expressed myself, I’m not happy with the way this is progressing. But, we will … work through it. And so everybody take a deep breath, and come back and tell me what everybody’s positions are so that we can start making progress on this case and get it resolved on its merits, hopefully. Thank you. See you at eleven o’clock tomorrow.”
• November 6, 2018 before Munroe J.: the following transpired: The Court: “Is the Crown’s position regarding re-election the same?” Mr. Pratt: “Yes sir.” The Court: “Then I must formally address the defence motion to adjourn, which has been consented to by the Crown. So unless someone wants to make further submissions I intend to rule on that.” Mr. Pratt: “No thank you sir.” The Court: “All right, that motion is granted. Now with regard to a new trial date, as I know you were aware because you found out about it yesterday before we discharged the jury, the trial co-ordinator looked through my dates and finding six straight weeks for a jury trial is never easy. And it wasn’t easy for the effort with regard to me. According to her search yesterday the earliest that I could commence a trial of that length was October 28, 2019. Since that time, and with the inclusion of the Regional Senior Justice and the trial co-ordinator have made an effort to see if I could be freed up earlier than that. Doing that means shuffling things around and right now we are at less than capacity as far as judicial compliment. We made, I should say not we, the RSJ and the trial coordinator moved around and by moving things around they say that I can commence a trial on June 3, 2019 for six weeks. Other than the October 28th, those are my two dates. I can do it June three, or I can do it October 28th. Can the Crown do it on June three?” Mr. Pratt: “Your Honour, I thank everyone involved for that, yes, we’re available really from January first onward where we can make ourselves available. The only issue I can think of Your Honour is, six weeks may not be necessary anymore, especially if we’re able to use this current block for pre-trial motions.” The Court: “Well if six weeks isn’t necessary because using June 23 I’m cutting into my vacation time… So if six weeks isn’t necessary that’s just fine with me, I’ll just take my vacation time.” Mr. Pratt: “Very good.” The Court: “And so we are moving mountains and moving everything in an effort to accommodate this case as quickly as we can.” Mr. Pratt: “That is sincerely appreciated.” The Court: “And we’re doing the best we can. My vacation starts, I know it starts in July whether it starts at the beginning of June I don’t know, but I’ll tell you in a second. My vacation starts July one, so if we can do it in four weeks, that’s okay with me, then I can take my vacation.” Mr. Pratt: “… I appreciate the efforts that have been made.” The Court: “Well we too have to make our best efforts in an attempt to accommodate the situations as they arise, even though we may disagree on one party or the other’s way they’re conducting themselves, we too have to rise above that and go forward and that’s what we’re doing.” Mr. Pratt: “Thank you.” The Court: “Mr. Uwagboe, what does June three look to you?” Mr. Uwagboe: “I’m in trial in London, Ontario during that time period sir. It’s a trial that’s been set, I believe it was earlier this year to commence at that time for an in custody client.” The Court: “Well what say you, everybody else is ready? So you’re saying that you don’t want that date, that you can’t take that date?” Mr. Uwagboe: “I, I’m not …” The Court: “Not that you don’t personally want it …” Mr. Uwagboe: “Right.” The Court: “… I’m saying you don’t want it in the sense that you can’t accommodate, you can’t be in two places at once and can’t represent this gentleman and the other person at the same time.” Mr. Uwagboe: “That’s correct. As we discussed yesterday, and obviously the June date wasn’t tossed out there yesterday or I would have made that comment.” The Court: “Just found it out today.” Mr. Uwagboe: “Right. I was aware of the October date, which I can accommodate, and so I was anticipating that that was a potential. But I know that June is set, those pre-trial motions on that [London] trial actually start in January and then we go on from there.” The Court: “All right, does that mean that we’re back to the October date?” Mr. Uwagboe: “It does sir, from the defence perspective.” The Court: “All right. Well if that’s it. I can say for the record based on Mr. Pratt saying that the trial may be less, the trial co-ordinator was looking for my dates, free dates and literally I have four days in March, six days in May, two days in June, two days in September, so I just don’t have unoccupied time. So it’s not that people, people literally had to take another matter and move it around and put that person in with me. I mean it’s not easy to move matters around and that’s what they could come up with. But the defence can’t do it on June three, and therefore, unless I hear otherwise I’m going to set the matter for jury selection beginning on October 28th. Anything else from either party with regard to the setting of the new trial date? Hearing none, that’s going to be the trial date. Now, having said that, I do not want to waste this time. I want all the motions to be done that we can do now. So I have one motion that has been filed from the defence, the motion in essence to exclude the audio portion of a videotape …. And two motions from the Crown with regard to Mr. Henriquez seeking to introduce his preliminary hearing evidence and a police statement. Do I understand that that’s the motions that are on the table now?” Mr. Pratt: “Yes, that’s correct sir.” The Court: “All right. There is a potential third motion concerning the newly disclosed cell phone product, I’m assuming it’s some form of communication. Has that disclosure been made?” Mr. Pratt: “It has Your Honour, I can address that issue. The Crown received it as well and on our review of it the Crown’s not relying on that evidence. So there will not need to be a Section Eight application sir.” The Court: “I wish you would have known that yesterday.” Mr. Pratt: “We got the ITO ourselves yesterday afternoon after court.” Mr. Uwagboe: “I had discussions with Mr. Pratt yesterday afternoon …. We had anticipated being in a position to argue the [11(b) application] by the third of December, if we were to use this time.” The Court: “Sure.” The Court: “… What’s your anticipated length of that, the audio motion? How long do you think …?” Mr. Uwagboe: [three or four days at the high end] The Court: [can we do it next week – November 13, 2018 – a four day week?] Both counsel agreed. Counsel agreed to blended evidentiary hearing on Henriquez motions with an estimated length of two or three days. All agreed it was possible to do these motions plus the 11(b) motion by end of the period on December 14, 2018; it was considered ambitious but would try. Set up briefing schedule.
• November 14, 2018 mid-motion (audio): at end of court day on the audio motion, the following transpired in summary form: ACA Lesperance requested an additional 11(b) inquiry about:
  1. if trial shortened to four weeks, whether time available,
  2. whether defence available earlier, and
  3. identity of Munroe J. cases to see if Crown can move those cases.
• November 15, 2018 mid-motion (audio): first thing in morning before continuing voir dire on audio motion, a mandatory 11(b) JPT was set pursuant to practice direction.
• November 16, 2018 11(b) JPT before Pomerance J. The following transpired: The Crown sought to identify cases assigned to Munroe J. for the purpose of considering whether any can be withdrawn, resolved or adjourned to clear time. The Court agreed for that limited purpose. The Trial Co-ordinator disclosed the trials assigned to Munroe J. which revealed no four or six week block available. The Crown asserted that the trial time now should be reduced to four weeks claiming that a four day voir dire no longer is needed on the audio motion nor is the five days estimated for the evidence of Mr. Henriquez. The defence disagreed, arguing that the new motions being brought were not contemplated earlier and that the defence may need witnesses now that Mr. Henriquez will not give live evidence. The defence also asserted that the Crown declines to undertake not to call Mr. Henriquez if he changes his mind to which the Crown confirmed. Expressing its loathing to underestimate jury time because it is unfair to jurors and wreaks havoc on the court’s schedule, the Court declined to change the estimate of the trial time also noting that a four week block of consecutive time was unavailable as well. The Crown sought defence availability before Oct 19, 2019. The Court asked how that was relevant after the Jordan decision specifically referring to paragraph 64 of that decision which states, in part:

  [P]eriods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. This should discourage unnecessary inquiries into defence counsel availability at each appearance. The Court advised the Crown that the ball was in the Crown’s court if it wanted to withdraw charges, resolve cases, or adjourn cases. This was why the Court took the very unusual and unorthodox step of providing a judge’s schedule because otherwise the Crown would not have such information. The Crown next asked the Court whether the court could get other assistance. After answering in the negative, the Court explained: “And to be clear, this court has … obligations to all of the litigants before it, and this case, we are doing what we can, but we are not in a position to – we were in a position to offer a trial on the originally scheduled date, and we are in a position to offer a trial on the new date, and if the Crown takes steps with respect to other cases, there might be court time that becomes available, but the court is not in a position to up-end its scheduling throughout the Region to accommodate this case beyond the extraordinary steps it’s already taken.” The Court continued: “[T]he court schedule is full, and … we do our best to offer what we can in every case, and we have to accommodate other litigants.” Noting the Crown’s refusal to re-elect to judge alone made necessitated consecutive time for a jury trial, the Court saw that Munroe J. simply did not have four or six consecutive weeks other than what was previously offered.

II. Governing Principles - Jordan

Any person charged with an offence has the right … to be tried within a reasonable time.

Section 11(b), Canadian Charter of Rights and Freedoms

12“Timely justice is one of the hallmarks of a free and democratic society.”: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 1.

13A systemic culture of complacency tolerates excessive delay under our current s. 11(b) analytical framework. A change of direction is required. Thus began the Supreme Court of Canada’s decision in Jordan. Out went the old and familiar framework of R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771, and in came a new regime with hard, presumptive time ceilings at its core. This new Jordan approach is “radically different” from the old Morin approach: R. v. Gordon, 2017 ONCA 436, 348 C.C.C. (3d) 426, at para. 2.

14The Jordan Court lamented the cumbersome, retrospective inquiry of the Morin approach, which led to after-the-fact quibbling over the attribution of periods of delay. The new Jordan framework, in contrast, looks prospectively and seeks to effect real change in the courtroom culture. “The [presumptive] ceiling is designed to encourage conduct and the allocation of resources that promote timely trials.”: Jordan, at para. 107. Change is demanded from all participants.

A. Transitional Case

15The new Jordan framework, including the presumptive ceiling, applies to cases pending at the time of the decision: Jordan, at para. 95. The framework for these transitional cases is Jordan but its application is with sensitivity to the parties’ reliance on the earlier regime: Jordan, at paras. 95 and 105. In other words, the transitional case analysis is the new Jordan framework plus an added transitional consideration called transitional exceptional circumstances. Thus, a transitional case analysis always begins with the Jordan framework.

B. Summary

16Gillese J.A., in R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-41, provides an excellent, step-by-step summary of the new Jordan framework:

• Calculate the total delay, the period from the charge to the actual or anticipated end of trial: Jordan, at para. 47.
• Subtract defence delay from the total delay, which results in the net delay: Jordan, at para. 66.
• Compare the net delay to the presumptive ceiling of 30 months: Jordan, at para. 66.
• If the net delay exceeds the 30 months presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances: Jordan, para. 47. If it cannot rebut the presumption, a stay will follow: Jordan, para. 47. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases: Jordan, para. 71.
• Subtract delay caused by discrete events from the net delay which results in the remaining delay for the purpose of determining whether the 30 months presumptive ceiling has been reached: Jordan, para. 75.
• If the remaining delay exceeds the 30 months presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable: Jordan, at para. 80.
• If the remaining delay falls below the 30 months presumptive ceiling, the onus is on the defence to show that the delay is unreasonable: Jordan, para. 48.
• The new framework, including the 30 months presumptive ceiling, applies to transitional cases, cases already in the system when Jordan was released: Jordan, para. 96.

C. Jordan Framework

17The heart of the new framework is a ceiling beyond which the delay is presumptively unreasonable: Jordan, at para. 46. The initial step is the calculation of the total delay between the charge and the end of the trial. Defence delay then is subtracted to obtain net delay. If the net delay exceeds the ceiling, then the delay is presumptively unreasonable and the case must be stayed unless the Crown can establish exceptional circumstances. If the net delay does not exceed the presumptive ceiling then the application will be dismissed unless the defence can show that the delay was unreasonable: Jordan, at paras. 46-48.

1. Presumptive Ceiling

18The presumptive ceiling for cases going to trial in the Superior Court is 30 months.

2. Calculation of Total Delay

19The total delay is calculated from the filing of the charge to the actual or anticipated end of the trial.

20The commencement of the time period is the date the charge was filed. Section 11(b) specifically uses the verb “charged” which identifies the starting event and thereby eliminates the arrest or offence date.

21The wording of the Charter section also controls the end date. The s. 11(b) right is the right “to be tried.” This means, at least, the end of the trial.

22The total delay thus is a function of simple math once the start and end dates are established.

3. Defence Delay

23Any delay attributable to the defence must be subtracted from the total delay: Jordan, at para. 60. The Court recognized two components of defence delay: delay waived by the defence and delay caused solely by the conduct of the defence: Jordan, at paras. 61 and 63.

a. waiver

24In this context, waiver typically does not mean waiver of the right itself but rather of the inclusion of specific periods of time in the overall assessment of reasonableness. A waiver can be explicit or implicit but it must be clear and unequivocal. To be valid, the accused must have full knowledge of his/her s. 11(b) rights, as well as the effect the waiver will have on those rights: Jordan, at para. 61.

b. delay caused by defence conduct

25Delay caused solely by the conduct of the defence is to be subtracted from the total delay. It would be patently unfair for the defence to benefit from its own delay-causing conduct: Jordan, at para. 60.

26Before exploring the meaning of defence-caused delay, it is helpful to address what is not defence delay for these purposes. Defence actions legitimately taken to respond to the charges, including defence applications and requests that are not frivolous, fall outside the ambit of defence delay. The associated time periods are not to be deducted from the total delay: R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 329, leave to appeal refused, [2016] S.C.C.A. 513, (two pre-trial motions which were neither frivolous nor lengthy were not counted as defence delay). An accused does have the right to make full answer and defence and generally should not be compelled to give up one right to secure another. The ceiling number already accounts for procedural requirements: Jordan, at para. 65.

27Delay caused solely by the defence is deductible. This includes deliberate and calculated tactics aimed at causing delay, such as frivolous applications and requests: Jordan, at para. 63. It also includes delay caused when the court and the Crown are ready to proceed but the defence is not. The resulting period of unavailability will be attributed to the defence and deducted. But if the court and the Crown are unavailable, the resulting delay will not constitute defence delay even though the defence too may be unavailable: Jordan, at para. 64.

28The Court’s application of the new framework in Jordan can help us understand the calculation of defence-caused delay. In that case, the Court agreed that trial delay from an adjournment necessitated by a change of defence counsel shortly before trial can be considered defence delay: Jordan, at para. 120. The Court also agreed that delay caused by defence counsel’s unavailability is chargeable to the defence: Jordan, at para. 123. When the responsibility for delay arising from the underestimation of preliminary hearing time is shared between the Crown and the defence, only a portion of the delay should be attributed to the defence: Jordan, at paras. 121-123. Delay caused by consent adjournments may not be attributed solely to the defence when there is no evidence that the Crown and the court were otherwise prepared to proceed, and it may not be attributed to the defence at all if the adjournment was needed as part of the legitimate procedural requirements of the case: Jordan, at paras. 121-123.

29Defence delay also was considered in Jordan’s companion case, R. v. Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741. Defence delay was found in the setting of the first assignment court appearance – the defence was offered four dates in three successive months, and defence counsel selected the last date: Williamson, at paras. 20-22. The delay between the first date offered and the last date accepted was caused solely by the defence because the court was ready to proceed on the first date and the time interval was not associated with any legitimate defence preparation time: Williamson, at para. 22. It is important to note here that rounding up is not acceptable. The delay was six weeks so the Court attributed to the defence one and a half months of delay: Williamson, at para. 22.

30Defence delay was again considered by the Supreme Court in R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659. The Court, at para. 32, made it clear that both the substance and the procedure of defence conduct were to be considered:

Defence conduct encompasses both substance and procedure – the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. …. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay. [Emphasis in original.]

31Inaction too may amount to defence conduct which is not legitimate: Cody, at para. 33. Legitimacy, in this context, is not professional misconduct, but rather is contrary to the culture change mandated by Jordan: Cody, at para. 35. Defence counsel are expected to advance their clients’ right to full answer and defence but as well must advance their clients’ right to be tried within a reasonable time: Cody, at paras. 33-34. While recognizing the potential tension between these two rights, the Court stressed balance holding “neither right is diminished by the deduction of delay caused by illegitimate defence conduct.”: Cody, at para. 34.

4. Calculation of Net Delay

32Any defence delay is deducted from the total delay to obtain the net delay.

5. Exceptional Circumstances

33If the net delay exceeds the ceiling, the delay is presumptively unreasonable. The Crown may rebut this presumption by showing that the delay is reasonable because of the presence of exceptional circumstances: Jordan, at para. 68. The Court defined “exceptional circumstances” as follows:

Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise.

Jordan, at para. 69 [Emphasis in original.].

34“Once the ceiling has been breached, the Crown cannot simply point to a past difficulty and assert mission accomplished.”:Manasseri, at para. 343. The Crown also must show that it took reasonable steps to avoid and address the problem before the delay exceeded the ceiling. The Crown does not need to prove that the steps it took were successful; rather, it must prove only that it took reasonable steps in an attempt to avoid the delay: Jordan, at para. 70. Or, as was stated by Watt J.A. in Manasseri, at para. 308: “[w]hat counts is effort and initiative, not success.”

35The Court emphasized that exceptional circumstances are the only basis to justify delay that exceeds the ceiling. Matters previously considered – such as the seriousness or gravity of the offence, chronic institutional delay, or the absence of prejudice – can no longer be relied upon. In short, only those matters which are genuinely outside the Crown’s ability to control and remedy may furnish a sufficient excuse to justify a ceiling breach: Jordan, at para. 81.

36The Ontario Court of Appeal in Manasseri paid particular attention to joint trials: Manasseri, at para. 314. Citing the Supreme Court’s pre-Jordan case of R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625,¹ Watt J.A. in Manasseri, at para. 323, held:

Where the proceedings are a joint trial, delay caused by a co-accused cannot be ignored in assessing whether an individual accused’s right to be tried within a reasonable time has been reached: Vassell, at para. 4. Where the Crown, as here, chooses to prosecute both accused jointly, it must remain vigilant that its decision to proceed jointly does not compromise the s. 11(b) rights of an individual accused: Vassell, at para. 5. The Crown is disentitled to close its eyes to the circumstances of an accused who has done everything possible to move a case along, only to be held hostage by his or her co-accused and the inability of the system to provide earlier dates: Vassell, at para. 7. Sometimes, the Crown may have to sever accused jointly tried to vindicate the s. 11(b) interests of one burdened down by another for whom trial within a reasonable time seems anathema: Vassell, at para. 10.

37Although specifically declining to provide a closed list of qualifying exceptional circumstances, the Court did identify two types: discrete events and particularly complex cases: Jordan, at para. 71.

a. discrete events

38By way of illustration, the Court offered family or medical emergencies and the need to extradite the accused from a foreign jurisdiction as examples of potentially qualifying exceptional circumstances: Jordan, at para. 72. The Court also recognized that the “practical realities” of trial, the unforeseeable and unavoidable mid-trial events - such as a recantation by a Crown witness - may cause a trial to exceed the ceiling: Jordan, at paras. 73-74. While accepting the realities of such events, the Court emphasized a need to focus on the Crown’s efforts to respond to such events in a reasonable effort to complete the trial below the ceiling: Jordan, at para. 74.

39In Vassell, at para. 10, the Supreme Court found a funeral to be an unavoidable and unforeseeable event for which no one should be held responsible. But the Court stressed that the Crown there could have severed the accused to mitigate the delay. Severance at that stage was “both viable and reasonable.": Vassell, at para. 10. The Ontario Court of Appeal in Manasseri, at paras. 310 and 314, underscored this point:

[T]he Crown and the justice system must always be prepared to mitigate the delay resulting from discrete exceptional circumstances. Reasonable efforts to prioritize faultering or stumbling proceedings must be undertaken. Thus, any part of the delay that the Crown and system could reasonably have mitigated may not be subtracted: Jordan, at para. 75. See also, Vassell, at para. 10.

The Crown must be cognizant of the fact that any delay resulting from an exercise of their prosecutorial discretion, for example to conduct a joint trial, must respect and conform to an accused’s right to a trial within a reasonable time: Jordan, at para. 79.

40The period of delay caused by any discrete exceptional events is deducted from the total delay to determine whether the ceiling has been breached: Jordan, at para. 75. Whether the entire delay period caused by the event should be excluded depends on the reasonableness of the response by the Crown and the system; any portion of the delay that could have been reasonably mitigated should not be deducted: Jordan, at para. 75.

b. particularly complex cases

41Where a case, as a whole, is particularly complex, the case’s complexity may justify the time expended to rebut the presumption that the delay was unreasonable. The assessment here is qualitative, not quantitative. Complexity cannot be used to deduct specific time periods: Cody, at para. 64.

42The Court defined “particularly complex cases” as, “cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified.”:Jordan, at para. 77. [Emphasis in original.]

43As an example, the Court noted that a “typical” murder trial would not qualify as a particularly complex case: Jordan, at para. 78.

44With regard to the “nature of the evidence” component, the Court provided the examples of “voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time” as hallmarks of a particularly complex case: Jordan, at para. 77. With regard to the “nature of the issues” component, the Court provided the examples of “a large number of charges and pre-trial applications, novel or complicated legal issues, and a large number of significant issues in dispute.”: Jordan, at para. 77.

45The Court added that proceeding jointly against multiple accused also may impact the complexity of the case, so long as a joint trial is in the interests of justice: Jordan, at para. 77; see also Manasseri, at para. 311. In this regard, as well as in relation to the Crown’s decision to charge multiple counts for the same conduct, the Court acknowledged it has no supervisory role over the Crown but cautioned that any prosecutorial discretion resulting in delay must respect the s. 11(b) rights of the accused: Jordan, at para. 79.

46In determining the qualification of a case as “particularly complex,” the trial court should consider whether the Crown, after bringing what could reasonably be expected to be a complex prosecution, “developed and followed a concrete plan to minimize the delay occasioned by such complexity.”: Jordan, at para. 79. Again the Court of Appeal in Manasseri underscored this point, calling the Crown the “architect” of the prosecution and directing the trial court to consider whether the Crown “has developed and followed a concrete plan to minimize the delay caused by the complexity that is of the Crown’s doing.” Manasseri, at para. 314. [Citations omitted.]

47The Jordan case itself was not deemed to be particularly complex but only moderately complex, which does not qualify as an exceptional circumstance: Jordan, at paras. 125 and 127. Mr. Jordan and nine others were charged in a 14-count indictment with drug trafficking charges: Jordan, at para. 7. The evidence consisted of police surveillance, undercover purchases, search warrant results, and a small amount of expert witness testimony: Jordan, at para. 126. The Court noted that by the time the case reached trial, only the charges against Mr. Jordan and one other accused were left alive, there were no novel or complex legal issues, there were few applications, and while the evidence was substantial, it was “relatively straightforward” and not complex: Jordan, at paras. 125-26.

48Recently, the Ontario Court of Appeal found a particularly complex case in R. v. Saikaley, 2017 ONCA 374, 135 O.R. (3d) 641, at paras. 36 and 48, leave to appeal refused, [2017] S.C.C.A. No. 284. There the defendant was convicted of 40 counts, after a month long judge alone trial, for offences relating to drugs, weapons, proceeds of crime, extortion, conspiracy, and association with a criminal organization: Saikaley, at paras. 1 and 17. The evidence included the results of multiple wiretap authorizations, general warrants, and search warrants: Saikaley, at paras. 9 and 36. The Court of Appeal found the case had all the hallmarks of a complex case per Jordan, “based on the nature of the issues in the case, the complexity of the investigation, and the voluminous disclosure”: Saikaley, at para. 36.

49A finding that the case was particularly complex, such that the time expended was justified under the circumstances, means that the delay was reasonable and no stay will issue: Jordan, at para. 80. This would end the analysis.

6. Calculation of Remaining Delay

50Any discrete exceptional circumstance is deducted from the net delay to obtain the remaining delay. If the remaining delay still exceeds the ceiling, the delay is unreasonable and the case must be stayed: Jordan, at para. 76. The only exception is if there are transitional exceptional circumstances.

D. Transitional Exceptional Circumstance

51When dealing with a s. 11(b) application in a transitional case, the Court stressed the need to apply the new framework contextually and flexibly with due sensitivity to the parties’ reliance on the previous state of the law: Jordan, at paras. 95 and 105.

52As explained in Cody, at paras. 68-69:

Put another way, the Crown may show that it cannot be faulted for failing to take further steps, because it would have understood the delay to be reasonable given its expectations prior to Jordan and the way delay and the other factors such as the seriousness of the offence and prejudice would have been assessed under Morin.

To be clear, it is presumed that the Crown and defence relied on the previous law until Jordan was released.

53Moreover, like the complex case analysis, the assessment here is qualitative, not quantitative: Cody, at para. 68.

54The application of the Jordan framework to a transitional case is subject to two qualifications – one for cases in which the delay exceeds the ceiling, and the other for the cases where the delay falls below the ceiling. Both implement the need for a contextual and flexible application. Because of the numbers in this case, only the law on delay exceeding the ceiling will be reviewed.

55When the delay exceeds the ceiling, the Crown bears the onus to satisfy the court “that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed.”: Jordan, at para. 96. This is a contextual assessment sensitive to the prior framework and the fact that the parties cannot be expected to comply with a standard of which they had no notice. As examples, the Court cites prejudice and the seriousness of the offence as Morin factors which play no role in the Jordan framework: Jordan, at para. 96. If the parties relied on the old factors, the relevant question is whether such reliance was reasonable. The Court adds, however, that the length of time from the Jordan decision to the trial may be relevant on this issue if the parties and the system have had time to adapt to the new framework: Jordan, at para. 96. As stated by the Court in Cody, at para. 71:

For aspects of the case that pre-dated Jordan, the focus should be on reliance on factors that were relevant under the Morin framework, including the seriousness of the offence and prejudice. For delay that accrues after Jordan was released, the focus should instead be on the extent to which the parties and the courts had sufficient time to adapt (Jordan, at para. 96).

56Again, reliance on the old factors must be reasonable in all the circumstances.

57The Court of Appeal in Manasseri, at para. 366, stressed that trial courts cannot ignore delay caused by co-accused in a joint prosecution. “A joint trial is not some magic wand the Crown can wave to make a co-accused’s s. 11(b) rights disappear.”: Manasseri, at para. 373. Although the courts cannot disentitle the Crown to proceed with a joint prosecution, the Crown must remain vigilant that its decision does not compromise the s. 11(b) rights of a co-accused. The “right” to proceed with a joint trial always must be in the interests of justice: Manasseri, at para. 373.

58Trial judges must also consider whether the Crown’s behaviour has been constrained by systemic issues in jurisdictions “plagued by lengthy, persistent, and notorious institutional delays.” Jordan, at para. 97. Recognizing that change takes time, the Court specifically expressed the need to avoid a repeat of the thousands of stays that followed the decision in R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199: Jordan, at paras. 92 and 97. Thus, even significant institutional delay will not automatically lead to a stay: Jordan, at para. 97. The Court makes it clear, however, that s. 11(b) rights will not be held in abeyance pending the adjustment of the system: Jordan, at para. 98. After a contextual analysis, the trial judge must decide whether the delay was reasonable in the circumstances of the case: Jordan, at para. 98.

59The Court in Jordan considered transitional exceptional circumstances. It found that a 44-month delay in an “ordinary dial-a-dope trafficking prosecution” was unreasonable regardless of which framework it applied: Jordan, at para. 128. The Court focused on the failure of the Crown to have a reasonable plan for bringing the moderately complex matter to trial: Jordan, at paras. 129-31. The Court also noted that when the Crown was first aware of the potential s. 11(b) problem, it did not attempt to expedite the case by streamlining the issues or by severing co-accused: Jordan, at para. 129. The Crown’s subsequent good faith effort to bring the matter to trial more quickly, after the 30-month ceiling, was described as “too little and too late.” Jordan, at paras. 130-31. The delay in Jordan was unreasonable and the Court entered a stay: Jordan, at paras. 133 and 135.

60In Williamson, at paras. 24-39, the Court considered the case to be close but found no transitional exceptional circumstances. In arriving at this conclusion, the Court identified three factors. First, the case – historical sexual offences against a minor – was straightforward and not complex: Williamson, at paras. 3 and 26. Second, the institutional delay of 25 months exceeded the upper end of the Morin guidelines by approximately seven months: Williamson, at para. 27. In this regard, the Court noted the two adjournments of preliminary hearing dates and the Crown’s apparent acceptance of the problems in obtaining jury dates due to other trials and jury courtroom limitations: Williamson, at paras. 27-28. Third, the Crown made no effort to expedite the trial in contrast to the defence efforts to do so: Williamson, at paras. 27-28. To the Court, this showed that the Crown was not serious in its obligation to bring the case to trial in a reasonable time: Williamson, at para. 28. In the end, the Court looked at “the big picture,” finding that even under the previous framework the law could not justify bringing a relatively straightforward case in three years: Williamson, at para. 30. The Court dismissed the appeal of the stay entered by the Ontario Court of Appeal: Williamson, at paras. 17 and 39.

61With regard to transitional exceptional circumstances, the Court of Appeal in Manasseri, at para. 321, identified the relevant circumstances as follows: i) the complexity of the case; ii) the period of delay in excess of the Morin guidelines; iii) the Crown’s response to any institutional delay; iv) the defence efforts to expedite the case; and v) prejudice to the accused.

62In sum, and as stated by the Court of Appeal in R. v. Picard, 2017 ONCA 692, 137 O.R. (3d) 401, at para. 41, leave to appeal refused, [2018] S.C.C.A. No. 135:

The transitional exceptional circumstance may justify the delay even where the deduction of discrete events does not reduce the delay below the ceiling and excess delay cannot be justified by case complexity: Cody, at para. 67.

III. Principles Applied

63This is a transitional case. It began on December 24, 2015, when the old Morin framework was in place. That changed on July 8, 2016, when Jordan was released. Thus, the new Jordan framework applies to this case: Jordan, at para. 95. Because the case began under the old regime, there are added considerations at the end if the remaining delay under Jordan exceeds the presumptive ceiling: Jordan, at para. 96.

A. Total Delay

64The parties agree that the case commenced on December 24, 2015, with the filing of the Information. The parties also agree that the anticipated end of the trial is December 6, 2019. With the start and end dates conceded, the total delay is a function of simple math: 47.5 months or 47 months and 12 days.

Total Delay: the period from the charge to the anticipated end of trial (Jordan, at para. 47).

47 months and 12 days

B. Defence Delay

65Any delay attributed to the defence must be subtracted from the total delay: Jordan, at para. 60. There are two types of recognized defence delay: delay waived by the defence and delay caused solely by the conduct of the defence: Jordan, at paras. 61 and 63.

1. waiver

66Neither party alleges waiver.

2. delay caused by defence conduct

67Delay caused solely by the conduct of the defence is to be subtracted from the total delay: Jordan, at para. 60.

68The prosecution alleges five periods of defence delay.² Each will be reviewed.

a. January 14, 2016 to November 9, 2016

i. positions of the parties

** (a) Crown **

69The Crown seeks 10 months of defence delay at the beginning of the process. The Crown posits that the start date for this period is on January 14, 2016, one week after the initial significant disclosure on January 7, 2016. That disclosure was sufficient to set the mandatory JPT. Indeed, says the Crown, Mr. Hanan’s then counsel functionally announced ready to set a JPT on January 14, 2016.

70The end date for this period of defence delay, according to the Crown, is November 9, 2016, when the JPT was first heard. This 10 month period is marked by dramatic duplication, redundancy and delay all unnecessary and caused by the defence. During this period, Mr. Hanan went through multiple lawyers before retaining Mr. Uwagboe in the summer of 2016, seven or eight months after the charges were laid. None of this time was necessary to have the JPT.

71In addition, the defence agreed to 8 months of defence delay when the case was set for trial at the assignment court on January 5, 2018.

** (b) Defence **

72Defence counsel asserts that only 4.4 months, from June 9, 2016 to October 19, 2016, is deductible as defence delay. The start date is June 9, 2016, when Mr. Hanan switched counsel from Ms. Santarossa to Ms. Carroccia. The end date is October 19, 2016, when the JPT date was set and everybody was ready.

73According to the defence, the period before June 9, 2016, should not be attributed to defence delay because disclosure was “largely incomplete” thus this delay was not caused solely by the defence. The defence says the readiness of Ms. Santarossa to set a JPT date on January 21, 2016, must be disregarded because she did not have adequate disclosure to conduct a meaningful JPT. This position is buttressed by the significant disclosure made after that date and by the replacement information with added charges on March 10, 2016.

74With regard to the assignment court appearance on January 5, 2018, the defence argues that he did not agree to 8 months defence delay. Counsel asserts that the defence was content with the set trial date, conceded some defence delay but did not know the exact amount, and merely answered the court’s questions. Under these circumstances, silence should not be found to be acceptance of that period of delay.

ii. preliminary issues

75Before attributing any of this period of time to defence delay, the issues raised by the parties must be resolved first: disclosure and defence readiness to set dates; changing lawyers and defence delay; and agreement to defence delay.

** (a) disclosure and defence readiness to set dates **

76This case was in the OCJ for almost two full years. It took almost eleven months before the first JPT. A great deal of this first period was consumed by the defence asking for additional time to obtain and review disclosure before even setting a date for the JPT. Both the Court and the Crown were ready to set the JPT date but the defence was not. Indeed, during multiple court appearances – on April 14, 2016, July 21, 2016, and August 30, 2016 – the Crown pushed vigorously for the setting of a JPT date. How should these delays be assessed?

77There is inherent tension in this issue. An accused has the right to make full answer and defence which includes the right to timely disclosure. An accused also has the right to a trial within a reasonable time which includes an obligation by defence counsel to advance this right. There must be a balance. This balance is resolved by the characterization of defence delay as either legitimate – taken to respond to the charges, and illegitimate – unnecessary for the defence. Illegitimacy, in this context, is not professional misconduct, but rather is contrary to the culture change mandated by Jordan: Cody, at para. 35. As stated by the Supreme Court in Cody, at para. 32:

Defence conduct encompasses both substance and procedure – the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. …. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.

78The position that disclosure must be complete before setting any date, and especially a JPT date, is misguided and wrong. In all cases of any complexity, disclosure will be ongoing. It simply takes time to marshal all materials for disclosure in addition to a continuing police investigation as well as expert testing and reporting. This is not intended to be an approval for ineptness or inefficiency by the police or the prosecution in fulfilling their obligations but merely is a recognition of the realities of a case of even modest complexity. The system obviously profits from early disclosure but the Supreme Court in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, at p. 343, recognized that the disclosure obligation was a continuing one. With regard to the timing of disclosure, the Supreme Court held that “initial disclosure should occur before the accused is called upon to elect the mode of trial or to plead.” Stinchcombe, at p. 342. In this case, initial disclosure was made on January 7, 2016. Moreover, in this case in the OCJ, because the accused was charged with first degree murder, neither an election nor a plea was available to Mr. Hanan there. Yet additional delay was sought for many months on the disclosure ground.

79Quoting multiple Ontario Court of Appeal decisions, Code J. in R. v. Gandhi, 2016 ONSC 5612, at paras. 31-39, found defence delay caused by counsel’s refusal to set a JPT date until receipt of more disclosure was unreasonable. In reaching that conclusion, Code J. opined on the importance of the JPT including for assistance in compelling prompt disclosure while noting that complete disclosure is not necessary before setting a preliminary hearing date: Gandhi, at para. 33.

** (b) changing lawyers **

80Both counsel agree that delay caused by changing lawyers is attributable to the defence: Jordan, at para. 120.

** (c) agreement to defence delay **

81At the assignment court on January 5, 2018, the following exchanges took place between Pomerance J., Mr. Uwagboe, counsel for the accused, and the Trial Coordinator:

The Court: … Ordinarily, we have a practice of not recalling matters when counsel is not present when they’re called. This is – counsel is from out of town, and it sounds as though you weren’t as familiar with the process here in Windsor. … [G]iven the nature of the charge and the Jordan issues, I am inclined to make an exception in this case.

The Court: I’m hoping that counsel, you have received the communication from the court asking for Jordan analysis, or at least an indication of how much of the delay to date is either defence delay or exceptional circumstances. Have you had an opportunity to look at that issue?

Mr. Uwagboe: … I have reviewed the email from Mr. Pratt …. I was not initial counsel on the matter … so I didn’t have a lot of information with respect to the dates that he had set out from the beginning. My commentary was only that there would be some intake, I suspect, with respect to the change of counsel. I would agree that some of that time would fall to the defence feet. With respect to how much of it, he is the better author of that, ‘cause I was not involved in this case at that time.

The Court: So I believe Mr. Pratt indicated that there was approximately eight months of, of delay attributable to the defence.

Mr. Uwagboe: That’s what he indicated in his email.

The Court: And, so are, are – for the purposes of scheduling this, are you prepared to agree that approximately eight months or at least eight months, is defence delay?

Mr. Uwagboe: …. I, I would, I would assume it would be somewhere in that range. I don’t know

Mr. Uwagboe: But certainly, I am in the position to say that some of that delay is attributed to the defence with respect to the change of counsel. … [T]hat’s the best I can offer the court at this time. … I do not have instructions to proceed with an 11(b) motion in any event. And my expectation always is that this trial would have been tried on its merits.

Mr. Uwagboe: But …. Again, I didn’t have a full conversation with my client about that, just my assessment as a time, … as an officer of the court.

The Court: All right, well, I appreciate that very much. So it looks like there is a little bit more flexibility that the, the raw Jordan date would suggest.

Mr. Uwagboe: I would agree with that.

The Court: …. I may just give Ms. Ford [trial coordinator] an opportunity to complete her call.

Trial Coordinator: [calling office of RSJ re JPT dates – offered late January or early February, 2018]

The Court: [after setting JPT and assignment court dates] But I’m wondering if we want to look at setting trial dates, today?

The Crown: [trial estimate: 4 to 5 weeks; no Crown pretrial motions]

Mr. Uwagboe: [agree to trial estimate of five weeks; potential 3d party records application]

Mr. Uwagboe: [that’s the only pretrial motion anticipated]

The Crown: [no voluntariness motion regarding statements anticipated]

The Court: [Is 5 weeks enough? Would rather overestimate than underestimate with jury]

Mr. Uwagboe: Then I … would say six.

The Court: [we can tweak at JPT; let’s look for 6 weeks and 3 day motion]

Trial Coordinator: … [F]orgive me, because I was on the phone with the regional office – I missed some of the discussion about the, the true Jordan rule and I …

The Court: [C]ounsel for Mr. Hanan has indicated that he agrees with Mr. Pratt, that eight months will be attributable to defence delay, given the change of counsel.

Trial Coordinator: So we’d be looking at the end of February 2019, then [with 8 months added to the previously understood June, 2018 end date]?

The Court: Yes.

The Court: [if dates are available in January, are counsel available?]

Mr. Uwagboe: [yes]

The Crown: [yes]

Trial Coordinator: … would counsel be available November and December, for this trial, of 2018?

Mr. Uwagboe: [yes]

The Crown: [yes]

82Context is important to understand this exchange. With the charge date of December 24, 2015, the “original” 30 month ceiling was June 24, 2018. Eight months added onto that date ends on February 24, 2019. Thus, at the assignment court on January 5, 2018, instead of looking for dates before June 24, 2018, with the eight months attributed to defence delay, the new ceiling was February, 2019. That was the context of the exchange which shows a clear reliance on the eight months.

83In this context, and reading the exchange as a whole, I find that Mr. Uwagboe agreed with the eight month defence delay. After stating he had read Mr. Pratt’s email containing the eight month figure, Mr. Uwagboe agreed that some time would be attributed to defence delay and that Mr. Pratt was in a better position to assess that time. Then, when asked by the court if, for purposes of scheduling, he could agree with that number, Mr. Uwagboe said it did not know the exact number but he “would assume it would be somewhere in that range.” Mr. Uwagboe then agreed with the court’s statement that she appreciated his position and that his position gave the court a bit more flexibility than the “raw” Jordan date would suggest. Cumulatively, I find that Mr. Uwagboe did accept the Crown’s position of eight months.

84In addition to this acceptance and clear reliance by the court, counsel had an affirmative duty to speak in this context if he did not agree. Paragraph 9 of the Provincial Practice Direction Regarding Criminal Proceedings in the Superior Court of Justice provides, in pertinent part, as follows:

On every appearance on an indictment in the Superior Court of Justice, Crown and defence counsel … must be prepared to advise the presiding judge whether any ... previous time periods in the case in either the Superior Court of Justice or the Ontario Court of Justice … are attributed to defence delay … as described in R. v. Jordan, 2016 SCC 27.

85This requirement specifically was brought to the attention of Mr. Uwagboe. Indeed, this provision, as well as the Crown’s position of eight months delay, was included in an January 4, 2018, email from Assistant Crown Attorney Pratt which Mr. Uwagboe admitted he had read. In addition, when the court advised the trial coordinator, who was about to embark on looking for an appropriate trial date, that “Counsel for Mr. Hanan has indicated that he agrees with Mr. Pratt, that eight months will be attributable to defence delay, given the change of counsel.” the circumstances gave rise to either a duty to speak or to a reasonable expectation of a response or repudiation, if Mr. Uwagboe did not agree. If Mr. Uwagboe did not agree, as he now professes, there simply is no justification for his silence in this context. Indeed, Mr. Uwagboe’s current position of 4.4 months delay for this period underscores the duty to speak up if in disagreement. A 4.4 month delay would have made the November 5, 2018 trial date clearly outside the ceiling by about six weeks,³ a fact which would have immediately nixed the November 5 trial date. In sum, I specifically reject the defence position that there was no agreement to the eight months.

iii. defence delay

86Assessing defence delay is not about laying blame but about fairly attributing delay in the s. 11(b) context.

87During this block of time the delay was caused by defence requests for disclosure and by change of counsel. The defence asserts that only 4.4 months of this period is attributed to defence delay, from June 9, when there was a counsel change, to October 19, when the defence was ready to set a JPT date. The earlier period is not attributable to the defence because of incomplete disclosure. The Crown largely agrees with the first position but challenges the second. According to the Crown, the defence was ready to set a JPT date as early as January 21.

88All agree that the counsel changes caused unnecessary duplication and redundancy. Affixing the appropriate amount of delay caused by these counsel changes is the task now.

89In addition is the attribution of the appropriate amount of delay untethered to legitimate case preparation. Here, it took eleven months to set a JPT, a procedural step required for any preliminary hearing over one half day in length: Best Practice 3, Ontario Court of Justice Judicial Criminal Pre-Trial Best Practices. This case management tool is designed to ensure the fair and timely resolution of criminal charges, not to afford a mechanism for delay. Instead of embracing the JPT to assist in moving the case forward, including the pursuit of all lawful disclosure, the defence⁴ kept pushing the JPT back and back in the name of disclosure. This was misguided, drastically inefficient, and wrong.

90Although the defence bar may differ in the disclosure comfort level for the purpose of setting dates, for the setting of a JPT date, basic or initial disclosure almost always is all that is needed. I agree and ratify the position of Ms. Santarossa of January 21, 2016, that the defence was ready to set a JPT date then. Significant initial disclosure was made on January 7, 2016. More disclosure came thereafter but this date setting purpose was for a JPT, not for a trial date or even for a preliminary hearing. This was for the setting of a JPT date, a case management conference, during which disclosure is a recognized issue. This length of delay for that purpose in this case was unjustifiable.

91I disagree and specifically reject the position of Mr. Hanan’s current counsel that virtually all disclosure was necessary before the setting of the JPT date. I acknowledge and respect that some defence counsel insist on complete disclosure before setting dates, but that position retards the case and, in the new Jordan world, absent some indication that certain delayed disclosure is uniquely necessary to properly prepare for the JPT, the resulting delay is attributable to the defence.

92In this analysis, I agree with the defence that the end date is October 19, 2016, when the defence announced ready to set the JPT. I agree with the prosecution that the beginning date is January 21, 2016, when defence counsel was ready to set the JPT. The time between these two dates is eight months and 29 days. This time falls squarely at the feet of the defence. This time was marked by unjustifiable and non-legitimate defence delay, searching for new counsel, and redundancy. Eight months and 29 days shall be subtracted from the total delay as defence caused delay.

b. December 15, 2016 to January 16, 2017

93With regard to this period of time, both parties agree that 5 days should be attributed to defence delay. More specifically, the time between December 15, 2016 and December 20, 2016, is agreed as defence delay caused by the defence request to delay the setting of a JPT continuation date until receipt of the bail ruling set for December 20, 2016. Thus, 5 days shall be subtracted from the total delay as defence caused delay.

c. March 1, 2017 to March 29, 2017

i. positions of the parties

** (a) Crown **

94The Crown seeks to attribute to defence delay for the time between March 1, 2017, to March 29, 2017. The defence sought and obtained a delay of the setting of the preliminary hearing date to obtain and review additional disclosure. The disclosure sought was unnecessary to set a preliminary hearing date. There would be ample time to adjust to any new disclosure. The case was in its fifteenth month and needed to be pushed forward.

** (b) Defence **

95The defence concedes 7 days of this time to defence delay – the one week delay as a result of defence counsel’s inability to appear on the proposed return date of March 24, 2017, due to a prior trial commitment. The defence opposes the attribution of the balance of the time to defence delay because needed disclosure was outstanding.

ii. defence delay

96I agree with the Crown’s position on this issue. The delay requested was not sought to adequately respond to the charges but specifically was requested to be able to “give a realistic estimate on timing to set” the preliminary hearing. Although in some circumstances, insufficient time estimates may inure to the detriment of the defence in the s. 11(b) context, such concerns were not present here for a number of reasons. First, the anticipated preliminary hearing date was months in the future leaving ample time to adjust to any additions or subtractions due to new disclosure. Second, this was not a case of difficulty with the Crown over disclosure requiring the assistance of the court. The defence conceded “the Crown has been diligently assisting me … in the additional disclosure requests I’ve made.” Moreover, the JPT process spanned 4.5 months and included two separate conferences. And finally, it is ironic to note that with all the time sought to be able to set an accurate preliminary hearing time, the time estimate provided was grossly over-estimated.

28 days shall be subtracted from the total delay as defence caused delay.

d. longer than estimated preliminary hearing

i. positions of the parties

** (a) Crown **

97The Crown seeks the attribution of 2 months as defence delay because of the over-estimation of time necessary to complete the preliminary hearing. According to the Crown, if a more accurate and reduced time was advanced, an earlier preliminary hearing date could have be found. This inaccuracy should lay at the feet of the defence.

** (b) Defence **

98The defence opposes any attribution as defence delay for this period. Both counsel selected the dates with the trial coordinator and the Crown was in agreement.

ii. defence delay

99There is no question that there was a dramatic over-estimation of the time needed to complete the preliminary hearing. 15 days were set for this preliminary hearing but only 8 of those days were used for that purpose. And of those 8 days, 4 days were at most half days. Moreover, it is equally clear that even this reduced length of the preliminary hearing was largely for the benefit of the defence. Of the 14 witnesses called, 9 were called by the Crown so that the defence could cross-examine them. But do these conclusions that the length of the preliminary hearing was dramatically over-estimated and that a significant benefit of the preliminary hearing was for the defence lead to the conclusion that time should be deducted as defence caused delay? I think not.

100In order to be properly attributed as defence delay, the defence must be solely the cause of the delay. In this case that is not so. The Crown must share in the responsibility for the setting of the 15 days. The Crown agreed to those days. The Crown too must share in the responsibility for the extended preliminary hearing for the purpose of defence discovery. The Crown agreed to call those witnesses to provide the defence with the opportunity to cross-examine them. The over-estimation of time was not solely caused by the defence and thus cannot be deducted as defence delay.

101In addition, defence delay cannot be attributed to time which was legitimately taken to respond to the charges. The use of a preliminary hearing as a forum for the defence to discover the case to be met is long recognized: R. v. Skogman, 1984 CanLII 22 (SCC), [1984] 2 S.C.R. 93, at p. 105. Although the basis for this purpose of the preliminary hearing has been questioned after the Stinchcombe decision, see R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at paras. 169-71, the “discovery” aspect of the preliminary hearing remains. As a result, and in this context of defence delay, the recognized legitimate use of the preliminary hearing to discover the case provides an additional reason to decline to attribute this time as defence delay.⁵

e. November 5, 2018 to December 6, 2019

102The adjournment of the trial scheduled to commence on November 5, 2018, caused a very lengthy delay, 13 months.⁶ Unsurprisingly, this block of delay is a major battleground on this 11(b) motion.

103The delay was precipitated by the Crown’s late disclosure of information from the accused’s cell phone and by the Crown’s announcement of a significant change in its evidence – the paralyzed shooting complainant and only eyewitness refused to testify leading to intended Crown motions to introduce that witness’ preliminary hearing testimony and police statement. The defence responded with an offer to re-elect to be tried by a judge alone or, if not accepted, for an adjournment of the jury trial. The Crown refused to consent to the re-election but consented to the adjournment conceding the unfairness of trying the accused in the face of the dramatic changes to the case. In the circumstances, but reluctantly, the adjournment was granted.

104The prosecution now seeks to foist all or part of this delay onto the defence employing alternative theories: defence delay or exceptional circumstances.

105In my opinion, this time is not appropriately addressed as defence delay. Defence delay is defined by the Supreme Court in Cody, at para. 30:

The only deductible defence delay under this component is, therefore, that which (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges.

106Under either prong, any effort to characterize this as deductible defence delay fails. It is impossible to label the defence action of seeking an adjournment “illegitimate” in the face of the Crown’s concession that any trial would be unfair given the sudden and dramatic Crown changes. Moreover, the delay was caused by the Crown’s conduct, not by the defence. For these reasons, I decline to deduct any of this time as defence delay.⁷

f. calculation of net delay

107The total defence delay is subtracted from the total delay to obtain the net delay. The total defence delay is 10 months and 2 days.⁸ Subtracting this defence delay from the total delay results in the net delay of 37 months and 10 days, which is 7 months and 10 days above the presumptive ceiling.

Net Delay: subtract defence delay (10 months and 2 days) from the Total Delay (Jordan, at para. 66).

37 months and 10 days

C. Exceptional Circumstances

108Because the net delay exceeds the ceiling, the delay is presumptively unreasonable. The Crown may rebut this presumption by showing that the delay is reasonable because of the presence of exceptional circumstances: Jordan, at para. 68. The Court defined “exceptional circumstances” as follows:

Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise.

Jordan, at para. 69 [emphasis in original]. To satisfy the second element, the Crown must show that it took reasonable steps to avoid and address the problem before the delay exceeded the ceiling: Jordan, at para. 70.

109The Court identified two types of exceptional circumstances: discrete events and particularly complex cases: Jordan, at para. 71. Each will be reviewed.

1. discrete events

110The Supreme Court identified discrete events by way of illustration. The example most applicable to this case was in recognition of the “practical realities” of trial. The Court suggested that certain unforeseeable and unavoidable mid-trial events - such as a recantation by a Crown witness - may cause a trial to exceed the ceiling: Jordan, at paras. 73-74. That is only the first element. There is a second element. While accepting the realities of such events, the Court emphasized a need to focus on the Crown’s efforts to respond to such events in a reasonable effort to complete the trial below the ceiling: Jordan, at para. 74.

111If both elements are satisfied, the burden of which is on the Crown, the period of delay caused by any discrete exceptional events is deducted from the total delay to determine whether the ceiling has been breached: Jordan, at para. 75. Whether the entire delay period caused by the event should be excluded depends on the reasonableness of the response by the Crown and the system; any portion of the delay that could have been reasonably mitigated should not be deducted: Jordan, at para. 75.

112Once the delay associated with discrete exceptional events is deducted from the net delay, if the remaining delay still exceeds the ceiling, the delay is unreasonable and the case must be stayed: Jordan, at para. 76.

a. positions of the parties

i. Crown

113The Crown advances two events as discrete event exceptional circumstances: the last minute refusal to testify by the only eyewitness, and the late collection of data from the accused’s cell phone.⁹ Both were revealed to the Crown, and thus to the defence, mere days before the commencement of jury selection.

114With regard to the cell phone data, the Crown argues that the delay was caused because the accused’s cell phone was locked and only new technology permitted the data extraction. Moreover, the Crown points to its continuing alerts to the defence and to the court of the anticipated extraction leading up to the trial.

115With regard to the refusal of the key witness to testify, the Crown says this was unforeseen and unavoidable. The witness lives in Florida and therefore is outside the Crown’s ability to compel his attendance. Up until the week before the trial, the witness had agreed to come to Windsor to give evidence. This is the type of event which is classically a discrete event exceptional circumstance.

116According to the Crown, it made appropriate and reasonable efforts to avoid the delay attributed to these events by pushing for earlier trial dates, suggesting the trial time could be shortened, resolving the cell phone data issue by declining to use it as evidence, and by agreeing to use the allotted time for the first trial to resolve the new motions. With regard to its refusal to consent to re-election to a judge alone trial, the Crown asserts it was a reasonable decision to insist on a jury trial on a murder case. Because this decision was reasonable under the circumstances, that satisfies the mitigation prong.

ii. Defence

117The defence only tepidly argues that the witness’s refusal to testify was not the type of event covered as an exceptional circumstance. Instead, the defence focuses on the Crown’s refusal to consent to the re-election of the mode of the trial, characterizing this decision as unreasonable under the circumstances. When the Crown decided to refuse its consent, the Crown knew the delay would be large, almost a full year later. This delay did not have to happen. It was entirely within the control of the Crown. Yet the Crown chose to allow this extended delay.

118With regard to the cell phone data issue, the defence says it is not a discrete event exceptional circumstance primarily because it was reasonably avoidable. The Crown made the decision not to use the cell phone data the day after the late disclosure of the data was advanced as one of the two major reasons for the collapse of the jury trial. Yet the Crown had the ability to access the same decision-making information before jury selection and did not do so.

b. the trial adjournment

119Before addressing the two main causes of the delay, the new cell phone data and the witness refusal, it is first necessary to understand the events leading up to the delay, the trial adjournment.

120After being in the OCJ for almost two full years, at the first Superior Court appearance on January 5, 2018, the parties agreed with 8 months of defence delay which “extended” the Jordan ceiling to February 24, 2019.¹⁰ The court relied on this agreement in setting the November 5, 2018 commencement date for a six week jury trial with a challenge for cause. The date set clearly was within the Jordan framework.

121In addition, one week beginning on September 17, 2018, was set for motions. At the time the motion date was set, the only motion anticipated was by the defence for third party records. At the start of this week, two additional defence motions were raised. By mid-week, two of the defence motions were decided and the third, a Corbett application, was deferred to the trial. The Court also conducted two trial management conferences.

122On October 31, 2018, a police report including the cell phone data was disclosed to the defence.

123At the request of the Crown, court was convened on Friday afternoon, November 2, 1018 at which time the prosecution advised that the Crown’s eyewitness, Mr. Henriquez, refused to come to Canada or otherwise give his evidence. Accordingly, the Crown intended to bring two motions for the introduction of the evidence of Mr. Henriquez at the preliminary hearing and in his police video statement. The Crown estimated a two day voir dire on these motions indicating its difficulty in giving an opening statement without knowing the ruling on these motions. Defence counsel announced its opposition to these motions and its belief that the estimated length of the voir dire may be short. Defence counsel also raised its very recent receipt of the cell phone data disclosure noting that the disclosure did not include the warrant or its ITO. Defence counsel also raised his interest in re-electing to be tried by a judge without a jury. The Court noted the potential Jordan problems if the trial was delayed, asked the Crown to consider consent to a re-election given the realities of the case, and noted the problems of selecting a jury if the commencement of the trial was delayed for voir dires. Finally, the Court directed the Crown to provide the warrant and its ITO for the cell phone data to the defence over the weekend.

124On the morning of jury selection, November 5, 2018, the defence filed a Notice of Application seeking alternatively a re-election to a judge alone trial or, if the Crown declined to consent, an adjournment of the jury trial. The two major grounds identified were the late disclosure of the cell phone data which could lead to a Charter application and the refusal of Mr. Henriquez to attend the trial with the intended Crown motions to admit his evidence in other forms. The Crown declined to consent to the proposed re-election. Before addressing the merits of the adjournment motion, the Court raised the option of picking a jury before hearing the motion, noted that late disclosure and a change in the evidence of a Crown witness have remedies other than adjournment, and asked to hear from the Crown on the timing of the adjournment motion. The Crown was direct:

If … I was in my friend’s shoes, and last week heard about Mr. Henriquez, knowing the role he plays in this trial, and if I heard about the cell phone report coming in, knowing – not having seen it – the import of that evidence, I would not feel comfortable or sufficiently prepared to defend my client. That being the case, sir, I can’t quarrel with my friend’s request for an adjournment. I think it is a proper one. … So my friend’s in a very difficult spot. I recognize that. That was considered when the Crown decided on not consenting to re-election. … I find it difficult, given how crucially important in particular the Henriquez evidence is, to oppose my friend’s adjournment request. I don’t think, to answer Your Honour’s question to my friend, that it would prejudice the defence to select a jury before Your Honour decides it. But candidly, I don’t know that would serve, well, a useful purpose. … [I]n the circumstances, sir, I think my friend’s adjournment application probably ought to be granted, candidly. And picking a jury, I don’t know to what end we would do that.

125The Crown agreed, when the Court put it to the Crown, that functionally he was consenting to the adjournment.

126With regard to the s. 11(b) consequences of an adjournment, the Crown acknowledged its awareness, said it would defend any such application vigorously, and asked for time to consult with the trial coordinator with regard to the next available trial date before the court decided the motion. The Court provided the requested recess.

127Counsel was informed by the trial coordinator that the earliest six week jury trial date before me, the seized judge, was October 28, 2019.

128On return, the following exchange took place:

The Court: “Well … let’s deal with what has to be done. We have a jury panel waiting for us.”

Mr. Uwagboe: “Right.”

The Court: “You are standing on your motion to adjourn?”

Mr. Uwagboe: “Absolutely.”

The Court: “And the prosecution is standing on its position that under the circumstances, it would not be fair to force the defence … onto a jury trial, right now?”

Mr. Pratt: “Yes, sir.”

The Court: “And stands that they are not consenting to a re-election?”

Mr. Pratt: “Yes.”

The Court: “Okay. And so, let’s go and discharge this panel. And then we’ll … reconvene … to see where we are and to set up a schedule. And then the question is, it seems to me, given both parties’ positions, that I will instruct the … court staff to begin calling and cancelling all the other panels. Anybody disagree with that?”

Mr. Pratt: “No, sir.”

Mr. Uwagboe: “No, sir.”

129Thereafter, all the jury panels were discharged and the motion for re-election or adjournment was set to be heard the next day. Upon hearing that the ITO for the cell phone data had not yet been disclosed because the police had not provided it to the Crown, the Court pressed the Crown for that disclosure.

130On the next day, November 6, 2018, upon confirming that the Crown’s position on re-election had not changed, the defence motion to adjourn was granted on consent of the Crown.

131Following the adjournment, the Court announced that through the efforts of the Regional Senior Justice and the trial coordinator, the Court created time to commence a six week jury trial on June 3, 2019. This effort included shuffling cases around when the judicial complement was less than full and cutting into the Court’s scheduled vacation time. The Crown was ready to proceed on that date but the defence said he was not, “I’m in trial in London, Ontario during that time period sir” for an in-custody client. Defence counsel went on to explain that the pretrial motions on that case were scheduled to start in January. The Court explained that those were the two dates he could commence a six week jury trial: June 3, 2019 and October 28, 2019. When asked if the rejection of the June date meant “that we’re back to the October date?”, defence counsel responded, “It does sir, from the defence perspective.”

132The Court thereupon scheduled the known pretrial motions for the time previously set for trial. The motions were a defence motion to exclude the audio portion of a video tape and two Crown motions for the admission of the evidence of Mr. Henriquez through his preliminary hearing testimony and his video police statement. The anticipated defence s. 11(b) motion also was scheduled for this block of time. All agreed that these motions could be completed by the end of the scheduled 6 week period on December 14, 2018.

133The Court asked about another potential motion challenging the lawfulness of the extraction of the newly disclosed cell phone data. The Crown announced that disclosure had been made but that “on our review of it the Crown’s not relying on that evidence. So there will not need to be a Section Eight application sir.” To the Court’s comment, “I wish you would have known that yesterday.”, the Crown responded that they did not get the ITO until yesterday afternoon after court.

134The Court commenced the voir dire on the defence motion to exclude the audio on Tuesday, November 13, 2018, the day after Veterans’ Day. At the end of day two of this voir dire, the Crown requested an additional s. 11(b) inquiry concerning:

1. whether court time was available if trial was shortened to 4 weeks,
2. whether the defence was available at any other time between November 5, 2018 and October 28, 2019, and
3. the identity of cases assigned to Munroe J. to see if the Crown could resolve, withdraw, or adjourn any.

135On the following morning, November 15, 2018, before continuing the voir dire on audio motion, an 11(b) JPT was set pursuant to the practice direction.

136On November 16, 2018, an 11(b) JPT was held in open court before Pomerance J. The following transpired:

• The Crown sought to identify cases assigned to Munroe J. for the purpose of considering whether any can be withdrawn, resolved or adjourned to clear time. The Court agreed for that limited purpose. The Trial Coordinator disclosed the trials assigned to Munroe J. which revealed no four or six week block available.
• The Crown asserted that the trial time now should be reduced to four weeks claiming that a four day voir dire no longer was needed on the audio motion nor was the five days estimated for the evidence of Mr. Henriquez. The defence disagreed arguing that it may need witnesses now that Mr. Henriquez will not give live evidence and asserting that the Crown would not undertake not to call Mr. Henriquez if he changed his mind. The Crown confirmed this refusal to undertake. Expressing her loathing to underestimate jury time because unfairness to jurors and the court’s schedule, the Court declined to change the estimate of the trial time also noting that a four week block of consecutive time was unavailable in any event.
• The Crown sought defence availability before the October, 2019 trial date. The Court asked how that was relevant after the Jordan decision specifically referring to paragraph 64 of that decision which states, in part:

  [P]eriods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. This should discourage unnecessary inquiries into defence counsel availability at each appearance.

• The Court advised the Crown that the ball was in the Crown’s court if it wanted to withdraw charges, resolve cases, or adjourn cases. This was why the Court took the very unusual and unorthodox step of providing a judge’s schedule because otherwise the Crown would not have such information.
• The Crown next asked the Court whether the court could get other assistance. After answering in the negative, the Court explained:

  “And to be clear, this court has … obligations to all of the litigants before it, and this case, we are doing what we can, but we are not in a position to – we were in a position to offer a trial on the originally scheduled date, and we are in a position to offer a trial on the new date, and if the Crown takes steps with respect to other cases, there might be court time that becomes available, but the court is not in a position to up-end its scheduling throughout the Region to accommodate this case beyond the extraordinary steps it’s already taken.”

  “[T]he court schedule is full, and … we do our best to offer what we can in every case, and we have to accommodate other litigants.”

• The Court noted the Crown’s refusal to re-elect to judge alone necessitated consecutive time for a jury trial. Munroe J. simply did not have four or six consecutive weeks other than what was previously offered.

137As scheduled, the Court completed all pretrial motions within the time allotted, taking all on reserve. The Court scheduled January 11, 2019, to give at least the ruling on the s. 11(b) motion.

c. cell phone data

138One of the two circumstances which caused the delay was the late disclosure of the cell phone data from the accused’s cell phone. Was this a discrete exceptional circumstance?

139The overriding principle of an exceptional circumstance is that it is beyond the control of the Crown. Within that principle are two elements: 1) it must be reasonably unforeseen or reasonably unavoidable; and 2) Crown counsel cannot reasonably remedy the delay. The burden is on the Crown to establish both elements before an exceptional circumstance will be found.

140With regard to the cell phone data, the focus is on the first element which encompasses the foundational principle of being beyond the control of the Crown. Was this either reasonably unforeseen or reasonably unavoidable? Was it beyond the control of the Crown?

141Before reaching these ultimate questions it is necessary to determine the essence of the cell phone data disclosure circumstance which contributed to the delay.

142Not all late disclosure will cause delay of a trial. Obviously, late disclosure which has little or no impact on the case will not lead to any delay. Only late disclosure which has case significance and which requires time for the defence to digest can cause delay. Indeed, the constitutional obligation to make disclosure includes its delivery in sufficient time for the defence to make reasonable adjustments to it: Stinchcombe, at p. 342.

143Here, the late disclosure was the communications data from the cell phone of the accused during the time period of the shootings on December 23, 2015. According to the evidence elicited at the preliminary hearing, the deceased, Mr. Guzhaven, and Mr. Henriquez (the “visitors”) went to the home of the accused twice on the early evening of December 23, 2015. Both times these visitors had conversation with the accused. The visitors left with the understanding of all that they would return shortly. The preliminary hearing evidence shows that some form of communication took place, inferentially, between Mr. Guzhavin and the accused, which prompted the return of the visitors to the accused’s home. It was during this second visit that Mr. Guzhavin was shot and killed and Mr. Henriquez was shot. The accused, it appears from his counsel’s submissions, will advance the defence of self defence.

144With this background in mind, it is clear that the communication data from the accused’s cell phone on that evening may include significant information. Certainly both parties treated the information as potentially significant. When the initial police efforts to extract the data from the cell phone failed due to the inability to bypass the password protected cell phone, the Crown pushed for a second effort when new technology became known.¹¹ At least as early as August 10, 2018, Crown counsel advised defence counsel of the renewed effort. Then, most telling on this issue of perceived significance, was the following statement of Crown counsel consenting to the defence adjournment motion on November 5, 2018:

If … I was in my friend’s shoes, and last week heard about Mr. Henriquez, knowing the role he plays in this trial, and if I heard about the cell phone report coming in, knowing – not having seen it – the import of that evidence, I would not feel comfortable or sufficiently prepared to defend my client. (emphasis added)

145The defence included the late cell phone extraction data as a ground for its adjournment motion asserting that it had insufficient time to review and respond. In addition, the defence complained that it still did not have the warrant or the ITO for this data extraction and that a Charter challenge was possible.

146These are the circumstances which led to the inclusion of the late disclosure of the cell phone data as a cause of the delay.

147Were they “reasonably unforeseen”? I think not. Indeed, Crown counsel had alerted defence counsel in August and the court in September of the potential for new disclosure concerning the accused’s cell phone.

148But this element of the definition of exceptional circumstances is in the disjunctive. We also must determine whether the circumstances were “reasonably unavoidable”? In one sense, that of the advent of new technology which permitted a second effort at data extraction, there was a delay in the ability to access the information beyond the control of the Crown.¹² But this fact does not end the matter because late disclosure causing delay is necessarily linked to the significance of that late disclosure. And here we learned one day after the discharge of the jury on Crown consent, that the cell phone data had no significance to this trial because the Crown was not offering the evidence. Thus, if this late disclosure was made coupled with Crown declination of its use, the late disclosure would not have been a cause of delay.

149Hence, the pivotal issue - “reasonably unavoidable” – must be assessed in this context. In answer to the Court’s surprise to the Crown’s late disclosure use declination, Crown counsel advised that on review of the ITO they would not be relying on the cell phone data information. The ITO, according to Crown counsel, was provided to them by the police after court on November 5, 2018. Thus, the decision was made after the police provided the Crown with the ITO.¹³ It is impossible to conclude that the lynchpin to the Crown decision – obtaining the ITO from the police – was reasonably unavoidable or beyond the Crown control. Indeed, for disclosure purposes, the Crown and the investigating police department are deemed one and the same: R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at para. 14. Moreover, according to Crown counsel, the ITO in question was not new but was the ITO for the warrant under which the initial effort to obtain the cell phone data was made. So this was an ITO in existence for many months, if not years. Why it was never given to the Crown or disclosed to the defence is unanswered. Thus I find, for the foregoing reasons, that the late disclosure of the cell phone data was not “reasonably unavoidable” and thus was not a discrete event exceptional circumstance.

d. witness refusal

150The second circumstance which caused the delay was the late refusal of Crown witness Gregory Henriquez to give evidence at the trial. Was this a discrete exceptional circumstance?

151In contrast to the late disclosure of the cell phone data, the main issue here is with the second element: could Crown counsel reasonably have remedied the delay? The first element – whether the event was reasonably unforeseen or unavoidable – is neither hotly contested nor difficult to satisfy. Before turning to the second element, the first element shall be analyzed.

i. reasonably unforeseen or reasonably unavoidable

152As I understand the Crown’s evidence, Gregory Henriquez was shot in the back and paralyzed during the same shooting event in which Alekesji Guzhavin was shot to death. The shootings took place in the driveway of the home of Mr. Hanan and he is charged in this case with both shootings. The anticipated defence, according to defence counsel, is self-defence. Accordingly, who did what, when, and why will be live issues if the trial plays out as anticipated. There are only two known living witnesses to what took place that evening in the driveway of the accused’s home: the accused and Mr. Henriquez. In this context, it is not difficult to understand the importance of the evidence of Mr. Henriquez to the case.

153The fact that Mr. Henriquez has many health issues arising from the shooting is not contested. He is paralyzed. He is wheelchair bound.

154It is uncontested that Mr. Henriquez is a citizen of the United States. He is not a Canadian citizen. At the time of the shooting Mr. Henriquez was living in Canada but Canadian immigration was seeking to remove him from Canada.

155It is also uncontested that Mr. Henriquez had a criminal record and two separate pending drug cases in Canada at the time of the shooting. Indeed, the Crown had to stay the two pending criminal cases to allow Mr. Henriquez to exit Canada and return to his home in the State of Florida.

156Finally, it is not contested that Mr. Henriquez is and has been a resident of the State of Florida in the Unites States of America since he was allowed to leave Canada in 2016.

157Mr. Henriquez has said he would return to Canada to give evidence at the preliminary hearing in the fall of 2017 but, shortly before the start date, said he could not come due to health reasons. Mr. Henriquez did agree to give evidence at the preliminary hearing via video link from Florida. He did so.

158At the preliminary hearing and subsequently, Mr. Henriquez said he would return to Canada to give evidence at the trial of this case.

159Then, the week before the commencement of this trial, Mr. Henriquez refused to come to Canada for the trial and refused to give evidence from Florida by video link.

160Given the character of Mr. Henriquez and the history of this case, perhaps his last-minute refusal was foreseeable. But in the circumstances, especially his U.S. citizenship and residence outside of Canada, I find that the Crown has satisfied me that his last-minute refusal could not have been avoided. It was Mr. Henriquez, not the Crown, who controlled whether he would be a witness or not. The first element is satisfied.

ii. unable to reasonably remedy

161This second element of discrete event exceptional circumstances is explained by the Supreme Court in Jordan, at paras. 69–75. By definition, the second element requires that “Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise.”: Jordan, at para. 69. “[The Crown] must … show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling.”: Jordan, at para. 70 (emphasis in original). Once the unanticipated delaying event happens, “the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling.”: Jordan, at para. 74.

162Before reaching the ultimate question on this element, it is important to first determine the anticipated Jordan ceiling at the time of the event and reasonable steps available to the Crown at the time.

** (a) Jordan ceiling **

163On November 5, 2018, both counsel knew that the approximate Jordan ceiling for the case was February 24, 2019. This was the explicit understanding of both counsel and the court at the January 5, 2018, assignment court when the trial date of November 5, 2018 was set. As reviewed above, the parties agreed to 8 months of defence delay in the OCJ which, when added to the “original” 30 month Jordan ceiling of June 24, 2018, established a new ceiling of February 24, 2019. This was known on November 5, 2018. There was no defence delay alleged then or now in the Superior Court. There were no prior discrete event exceptional circumstances alleged then or now in the SCJ.

** (b) available reasonable steps **

164Crown counsel identifies a number of available reasonable steps: re-election, push for quicker trial date; shorten trial for quicker trial date, identification of cases in effort to see if can secure quicker trial date, the use of existing time to resolve motions, and resolution of the cell phone issue. Each will be reviewed.

** (i) re-election **

165Although not advocating re-election, Crown counsel, during submissions, did concede re-election to a trial without a jury was an available reasonable option. The concession is obvious. Over 30 years ago, a s. 469 offence – which includes murder, like this case – had to be tried by a Superior Court with a jury. At that time, re-elections to a trial by a judge without a jury were not lawful. But that was over 30 years ago and this prohibition changed in 1985 with the enactment of s. 473(1) of the Criminal Code which provides:

Notwithstanding anything in this Act, an accused charged with an offence listed in section 469 may, with the consent of the accused and the Attorney General, be tried without a jury by a judge of a superior court of criminal jurisdiction.¹⁴

166I am a strong advocate for the jury system which has served Canada, and the other countries founded on the English legal system, well for over 800 years. I must and do, however, concede that a judge alone trial has a number of advantages especially when time is of the essence. First, it is shorter. A judge alone trial takes less time than a jury trial, especially one, like this case, which includes a challenge for cause. Marshalling jurors in and out of court multiple times a day, giving opening, mid-trial and closing jury instructions, excusing the jury for legal argument, the inability to have voir dire evidence apply to the trial, and counsels’ more fulsome opening and closing statements, to name a few, are necessary jury procedures that take considerable time. These same procedures are not necessary in a judge alone trial making a judge alone trial inherently faster.

167Second, scheduling is easier with a judge alone trial principally because a jury trial must be conducted on consecutive days, to the extent humanly possible. There are two main reasons for this and both concern the private status of jurors, the triers of fact. Most commonly no juror is well versed in the law or in legal proceedings. Most jurors are not accustomed to deciding past facts on evidence presented in a courtroom setting. Jurors do not have to keep notes. Thus breaking up a jury trial into blocks of time separated by gaps of time risks memory loss, confusion, disengagement, and thus an unfair trial: see, e.g. R. v. Smith (2001), 2001 CanLII 20968 (ON CA), 154 O.A.C. 51 (C.A.), at paras. 50-52. Second, these are citizens giving up their private lives for the public good. Extending their public service is unfair to them.

168In contrast, it is not uncommon for a judge alone trial to continue a longer trial over skipped days or weeks. A trial judge is accustomed to deciding past facts on evidence presented in a courtroom setting and does keep notes. In addition, a trial judge has prompt access to the tape recordings of prior sittings.

169This marked difference between a trial with a jury and a trial with a judge alone is well known to all experienced counsel. It is not a secret.

** (ii) push for quicker dates **

170Crown counsel did ask for the setting of earlier dates but the effort was almost immediately thwarted by the necessity of a block of time for a jury trial before a specific judge. The fact that a quicker date was not possible was readily apparent and not surprising. “Large blocks of time will often be unavailable when setting trial dates ….”: MacIsaac, at para. 61.¹⁵

** (iii) shortened trial length for quicker date **

171The Crown argued that the length of the new trial could be shortened to four weeks because of the absence of live testimony from Mr. Henriquez and because there was no longer the need for a trial voir dire on that issue. According to the Crown this would save 5 trial days and 4 trial days respectively. The defence disagreed with this new estimate.

172I disagree that only four weeks is a reasonable estimate of the trial time in this case. The Crown declined to undertake not to call Mr. Henriquez should he change his mind and agree to come to Canada to testify. Given the somewhat mercurial history of Mr. Henriquez, such a change of heart is possible.

173Second, the Crown’s estimated savings of 4 days due to the resolution of the audio evidence question is over-stated. The Crown previously estimated a one day mid-trial voir dire on this issue. The actual voir dire conducted after the trial adjournment did extend into a fourth day but to extrapolate that time as equivalent to the time of a mid-trial voir dire is inaccurate. Remember, this was a question of evidence admissibility. Crown counsel had specifically anticipated conducting the mid-trial voir dire after “setting the context” before the jury. As a pretrial voir dire, the Crown called otherwise standard jury witnesses to set the context before me. At a trial, those witnesses would have been called before the jury prior to the commencement of the voir dire. Thus, a mid-trial voir dire would not have been that long. Indeed, one of the classic trial witnesses called at the recent voir dire led to an extended legal argument on the evidentiary legal issue of past recollection recorded. Moreover, mid-trial voir dires are conducted with more urgency and speed than those conducted without the pressures of a waiting jury. For these reasons, I disagree that the resolution of the audio issue saved more than one day.

174Third, I have now conducted multiple hearings in this case with these counsel. It is clear to me that issues not commonly litigated are being litigated in this case. Every counsel has a different style. This is not to criticize but to make an observation which impacts the trial time estimate. I agree with the s. 11(b) JPT judge that it is unfair to the jurors to underestimate the length of the trial. In my opinion, six weeks remains a fair time estimate for the jury trial in this case.

175In addition, and perhaps most importantly, the Crown’s four week position is not helpful because neither a four week or a six week block of time could be found in addition to the two previously offered counsel.

** (iv) identification of Munroe J. cases **

176The Crown requested the identification of the cases assigned to me with the purpose of determining whether any of those cases could be eliminated from the docket (by withdrawal, resolution, or adjournment) to free time to try this case. For that purpose, the information was provided but it did not reveal any blocks of time to accommodate a jury trial of the required length.

** (v) use of existing time to resolve motions **

177At the instigation of the trial judge, three pretrial motions plus the s. 11(b) motion were heard during the time allotted for the first trial. This did make good use of that time. I do note, however, that the four days for the s. 11(b) motion seems unrelated and out of place for this review.

** (vi) resolution of the cell phone issue **

178The Crown’s inclusion of this step is curious. It was the Crown’s own misstep regarding the late cell phone disclosure that contributed to the cause of the delay. So it is quite inappropriate to give the Crown some form of credit for a their own misstep corrected.

iii. findings

179Although it is clear, and I find, that the late decision of Mr. Henriquez to refuse to give evidence at this trial satisfies the first element for the establishment of a discrete event exceptional circumstance, there is a second element which now must be addressed. Did the Crown respond to this last minute refusal to testify in a reasonable manner to complete the trial below the ceiling?

180To answer this question, context is essential.

181On November 5, 2018, the Crown consented to the defence trial adjournment based, in large part, on the late refusal of Mr. Henriquez to give trial evidence. But in the face of this adjournment request, the Crown refused to consent to a re-election of the mode of trial to judge alone knowing the following:

• the Jordan ceiling was on or about February 24, 2019, which meant that a six week trial would have to commence by mid-January to conclude within the Jordan ceiling;
• the earliest court date for a retrial was in October 2019;
• the defence consented to a re-election with the continuation of the motions and thereafter the judge alone trial; and
• the likelihood of a defence s. 11(b) motion if the Crown refused to consent to a re-election.

182Was this refusal, coupled with the steps the Crown did take, reasonable to respond to the delay and to conclude the trial under the ceiling? This framing of the issue may be generous given the Supreme Court’s definition of the second element of exceptional circumstances: “Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise.”: Jordan, at para. 69. However, the approach is taken from Jordan, at para. 74, and shall frame the issue before me now.

183The steps taken by the Crown in this case were all ineffectual. But that is not important for the resolution of this issue. It is the reasonableness of the steps taken, not their success, which satisfies this element: Jordan, at para. 70; Manasseri, at para. 308. Nor does the Crown have to exhaust every conceivable option to redress the delay problem: Cody, at para. 54. Again, the requirement is the reasonableness of the steps taken.

184Here, the Crown’s steps were aimed at obtaining a quicker trial date. But were they reasonable under the circumstances? I think not. The search was for a four to six week block of time for a jury trial. The known Jordan ceiling date was on or about February 24, 2019. Thus, the jury trial had to commence by mid to late January to conclude under the ceiling. On November 5, 2018, the earliest date for such a trial was in October 2019. By the following day, November 6, 2018, with extraordinary effort including the involvement of the Regional Senior Justice, a sooner date of June 3, 2019, was made available with the conclusion that these were the only two dates available for a trial of that length.

185Through all of these efforts, the Crown never pushed for a trial date to commence in January 2019, to ensure its completion within the ceiling. Indeed, was it reasonable to believe that a jury panel could be empanelled and summoned within such a short period of time? This is a six week jury trial with a challenge for cause. Originally 600 prospective jurors were summoned for jury selection. Jury selection for a case of this length, but which does not include concerns with people’s holiday plans, probably would require a jury panel smaller than 600, perhaps 300 prospective jurors. But the system does not snap its fingers for the appearance of that many citizens. The Juries Act, R.S.O. 1990, c. J. 3, provides the procedure. The sheriff drafts the panel by randomly drawing names from the jury roll: s. 18(1). There must be a criminal records check: s. 18.2. The summons to the jurors must be at least 21 days before the attendance date: s. 19. Could this be done in time over the holiday season? Perhaps but the Crown led no evidence that there was sufficient time to have a jury panel summoned and in place by a late January trial date. Indeed, other than announcing the Crown was ready for a trial from January 1, 2019, onward, the Crown only generally pushed for a trial sooner than what was available.

186I find that the steps taken by the Crown, under the circumstances, were not reasonable in the sense that they could remedy the delay caused by the witness refusal before the delay would exceed the ceiling. They were not focused to achieve a trial within the ceiling. They did not have a plan. Indeed, a longer jury trial under the ceiling probably was not reasonably possible. In fact, in perhaps the unique circumstances of this case, the only reasonable step to conclude this trial within the ceiling was re-election. It was unreasonable for the Crown to refuse its consent to a re-election knowing that the available trial date far exceeded the ceiling.

187I am alive to the caution in Jordon, at para. 74, that trial judges should be aware of the practicalities of trial especially, as here, when the trial is scheduled close to the Jordan ceiling. This will make it more difficult to respond with a solution under the ceiling. For this reason, such delays may still qualify as exceptional circumstances. The difference in this case, however, is that there was a reasonable remedy available to the Crown to conclude this case under the ceiling – re-election. The Crown refused to take it well knowing that the resulting delay would exceed the ceiling. If, on the other hand, a re-election was not available, this would present a different case with a probably different conclusion on this issue.

188The Crown justifies its refusal by stating it made a reasonable choice between reasonable steps, stressing the historical importance of a jury trial in a murder case. I have already addressed the claim that the steps taken were reasonable; they were not. With regard to the claimed historical importance of a murder jury trial rendering the Crown’s refusal to consent reasonable - I reject that too.

189This is not 30 years ago. As reviewed above, a judge alone trial for a murder case is lawful and accepted.¹⁶ A murder jury trial is not somehow sacrosanct above all other considerations. So-called Crown “rights” have to bend to accommodate an accused’s Charter right to be tried within a reasonable time: e.g. joinder: Manasseri, at para. 323; assignment of counsel: R. v. Picard, 2017 ONCA 692, at paras. 107-9; re-election: Gordon, at paras. 16-17 and 25-28. Any delay resulting from the exercise of prosecutorial discretion must conform to the accused’s s. 11(b) right: Jordan, at para. 79.

190Thus I find, for the foregoing reasons, that the late refusal of Crown witness Gregory Henriquez to give evidence at the trial was not a discrete event exceptional circumstance. The Crown failed to satisfy the second element that it could not reasonably remedy the delay emanating from this circumstance. It could have by simply consenting to the re-election. The delay beyond the ceiling did not need to happen. It was not unavoidable. It was not beyond the control of the Crown.

iv. allocation of delay

191The period of delay caused by any discrete exceptional circumstance is deducted from the net delay: Jordan, at para.73. Because the Crown failed to prove any discrete exceptional circumstance here, the delay arising from those events commonly are not deducted. But what time in this case is excluded from deduction? The Court and the Crown were ready to proceed with a jury trial on June 3, 2019, but the defence was not. There are multiple periods of time: November 5, 2018 to the anticipated end of the trial on December 6, 2019; November 5, 2018 to the start of the offered trial, June 3, 2019; and June 3, 2019 to December 6, 2019. Which, if any, are deductible as delay attributed to the defence?

192Although not directly answering this question, the Supreme Court in Jordan and Cody addressed the overall issue of allocation. In Jordan, at para. 75, the Court stated, in pertinent part, as follows:

The period of delay caused by any discrete exceptional events must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded. Of course, the Crown must always be prepared to mitigate the delay resulting from a discrete exceptional circumstance. So too must the justice system. … Thus, any portion of the delay that the Crown and the system could reasonably have mitigated may not be subtracted (i.e., it may not be appropriate to subtract the entire period of delay occasioned by discrete exceptional events).

193In Cody, at para. 55, the Court stated, in pertinent part, as follows:

[W]e would not deduct the entire five months for this [new disclosure] event. Two months, specifically the time it took for the Crown and defence to be prepared to proceed … should be deducted. However, the court was unable to accommodate them until September – that portion of delay was therefore a product of systemic limitations in the court system and not of the discrete event (Jordan, at para. 81) and therefore those months should not be deducted. Then, because defence counsel was unavailable in September, the matter was put over until October …. As this one month of delay was caused by defence counsel’s unavailability (Jordan, at para. 64), and not by the preparation time necessary to respond to the charges (Jordan, at para. 65), it should be deducted.

194The Court and the Crown were ready and able to try this case for six weeks beginning on June 3, 2019. The defence was not. Whether analyzed as mitigation of the delay causing adjournment, or as standard defence delay, but for the position of defence counsel, this trial would be scheduled for June 3, 2019. Thus this time, the six weeks the defence declined to try this case must be deducted from the net delay. The balance, however, to December 6, 2019, cannot be attributed to the defence under either analysis. That was time that the court system could not accommodate the trial and does not form part of the discrete event: Cody, at para. 55. It also does not count as defence delay because the court was unavailable to proceed: Jordan, at para. 64. As a consequence, and for the foregoing reasons, of the time between November 5, 2018 and December 6, 2019, only six weeks, or one month and 15 days, is deductible from the net delay.

f. calculation of remaining delay

195The net delay is 37 months and 10 days. Subtracting this discrete exceptional circumstance delay of one month and 15 days from the net delay results in the remaining delay of 35 months and 7 days, which is 5 months and 7 days above the presumptive ceiling.

Remaining Delay: subtract delay caused by discrete exceptional circumstance events (1 month and 15 days) from the Net Delay (Jordan, para. 75).

35 months and 7 days

2. particularly complex case

196Where a case, as a whole, is particularly complex, the case’s complexity may justify the time expended to rebut the presumption that the delay was unreasonable: Cody, at para. 64. The assessment here is qualitative, not quantitative: Cody, at para. 64. Complexity cannot be used to deduct specific time periods: Cody, at para. 64.

197The Court defined “particularly complex cases” as, “cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified.”Jordan, at para. 77 [emphasis in original].

198As an example, the Court noted that a “typical” murder trial would not qualify as a particularly complex case: Jordan, at para. 78.

a. positions of the parties

i. Crown

199The Crown asserts that this case is complex, but not extremely so. It is complex, according to Crown counsel, because of the thousands of pages of disclosure, the dozens of potential witnesses, the five or so expert witnesses, the scheduled preliminary hearing of 15 days, the claimed “intricacies” of having complainants with criminal records in a self defence case, a recalcitrant complainant who resides outside of Canada, three weeks of pretrial motions, and the lack of admissions by the defence. The complexity of a case should be viewed as a whole.

ii. Defence

200The defence denies this case is particularly complex. In support, the defence points to the email from the Crown which is in evidence as Exhibit 1. The email was to the defence and the Superior Court trial coordinator after the preliminary hearing and the day before the initial assignment court. In that email, Crown counsel asserted that “this is not a tremendously complex case.”

b. principles applied

201I find this is a “typical” murder case and is not a particularly complex case in the Jordan meaning of that phrase. This appears to be a classic self defence murder case with potentially unsavoury victims of a shooting. The disclosure was no more than most murder cases. The potential number of expert witnesses is unremarkable for cases of this kind. The pretrial and trial issues are standard.

202The inclusion by the Crown of “dozens of potential witnesses” and a 15 day scheduled preliminary hearing as demonstrating the case complexity is unfortunate and beneath the dignity of the office. Loosely asserting “dozens” of potential witnesses without providing a fair estimate of witnesses is unhelpful and can be misleading. In addition, and as Crown counsel well knows, the preliminary hearing was considerably over-estimated. Only 8 days were actually used for the preliminary hearing and four of those days were half days at most. Moreover, of the 14 witnesses called, 9 were called by the Crown to allow the defence to cross-examine, not to advance the Crown’s case. Indeed, the Crown specifically raised this over-estimation as a ground for defence delay.

203I agree with defence counsel, it is quite telling on this issue that shortly before the setting of the trial date, Crown counsel stated, “this is not a tremendously complex case.” I agree with the statement. While the case, like most murder cases, does have some complexity, it is not particularly complex in the Jordan sense. And that assessment did not change after the events in November 2018. The Crown now is forced to adjust its case without a live witness. But neither that necessity nor its attendant motions are uncommon.

D. Transitional Exceptional Circumstances

204Because the remaining delay in this case – 35 months and 7 days – exceeds the ceiling, and because this case commenced before the Jordan decision, consideration of transitional exceptional circumstances is mandated. The delay may still be reasonable if the Crown satisfies the court “that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed.”: Jordan, at para. 96. Or, as the Supreme Court stated in Cody at para. 68:

Put another way, the Crown may show that it cannot be faulted for failing to take further steps, because it would have understood the delay to be reasonable given its expectations prior to Jordan and the way delay and the other factors such as the seriousness of the offence and prejudice would have been assessed under Morin.

205Although the assessment here is qualitative, not quantitative, the assessment does have structure: R. v. Baron, 2017 ONCA 772, at para. 53. The determination of whether a transitional exceptional circumstance justifies a delay above the presumptive ceiling, requires a contextual assessment of all the circumstances: Picard, at para. 71. The relevant factors are identified in a number of decisions including in Manasseri, at para. 321, and in R. v. Golpie, 2017 ONCA 728, at para. 178. They are as follows:

(i) the complexity of the case;

(ii) the period of delay in excess of the Morin guidelines;

(iii) the Crown’s response, if any, to any institutional delay;

(iv) the defence efforts, if any, to move the case along; and

(v) prejudice to the accused.

206Each will be reviewed.

1. positions of the parties

a. Crown

207The Crown argues that the transitional exceptional circumstances do apply here even though only 6.5 months of the proceedings took place before the Jordan decision. It takes time to adjust to the new regime as evidenced here especially in the OCJ. In the OCJ there were multiple adjournments of the JPT and an extended time to secure dates for the preliminary hearing which show this lack of adjustment.

208With regard to the actual Morin guidelines analysis, the Crown attributes zero time to institutional or Crown delay both in the OCJ and in the SCJ. According to the Crown, 100% of the time both in the OCJ and in the SCJ are attributed to intake, inherent and defence delay.

209According to Crown counsel, the Crown continually pushed the case forward while the defence remained silent and made no comparable efforts. In addition, while there is some inherent prejudice, the defence made no showing of any particular prejudice.

210In sum, according to the Crown, a contextual assessment of all the factors justifies any delay above the presumptive ceiling.

b. Defence

211The defence challenges the application of the transitional exceptional circumstances in this case because of the very short time this case existed under the old regime. The Crown had ample time to adjust to the new regime. Moreover, and especially in the SCJ, there was no reliance on the Morin framework.

212The defence asserts the times in both the OCJ and in the SCJ exceeded the Morin guidelines: OCJ – 12 to 15 months attributed to institutional or Crown delay; and SCJ – 18 to 19 months attributed to institutional or Crown delay.

213The defence always sought to push the case forward. Much of the delay is attributed to the Crown for persistent disclosure problems.

214In addition to the inferred prejudice, the defence points to the record evidence showing the accused’s serious immigration problems.

215According to the defence, a contextual assessment of all the factors does not justify any delay above the presumptive ceiling.

2. application of transitional exceptional circumstances

216The defence specifically challenges the application of transitional exceptional circumstances in this case because of its short time under the Morin decision. Thus, this issue shall be addressed first.

217In contrast with most of the appellate cases to date, this case has little pre-Jordan time. The time from the charge date of December 24, 2015 to the Jordan release date of July 8, 2016, is almost exactly 6.5 months. This was the time under the Morin framework.

218However, there is nothing in the Jordan decision, or in its Supreme Court progeny, which sets a fixed time for qualification as a transitional case. Rather, the assessment is contextual and qualitative. True, the Court in both Jordan, at para. 96, and Cody, at para. 71, noted that the time to adapt, the time under Jordan, should be taken into account. But that direction does not establish a qualifying threshold but rather identifies a factor to be considered while recognizing the obvious, that it takes time to change.

219Consequently, the brief time under the Morin framework does not eliminate the issue of transitional exceptional circumstances in this case. It remains as a factor to be considered.

3. complexity of case

220Earlier I found that this case was not a “particularly complex case” under Jordan. As I noted then, however, this case does have some complexity. A self-defence murder case scheduled for a six weeks trial with at least one problem witness is not a simple assault trial. In my opinion, this case is of moderate complexity. As noted in R. v. Pyrek, 2017 ONCA 476, 348 C.C.C. (3d) 554, at para. 30: “although this case was not sufficiently complex to meet the requirements of exceptional circumstances under Jordan, for transitional cases moderate complexity bears on the reasonableness of the delay.”

4. period of delay in excess of the Morin guidelines

221The Supreme Court in Morin, at p. 799, identified the guidelines for tolerable institutional delay: between 8 to 10 months in Provincial Court and an additional 6 to 8 months in Superior Court for a total institutional delay guideline for a trial in Superior Court of between 14 to 18 months.

222Each time period in this case will be assessed chronologically by court.

a. Ontario Court

i. December 24, 2015 to June 9, 2016 – 5.5 months

223Initially, the parties were in agreement that the initial 5 months of the case are properly assessed as intake. Factum of the Applicant, at para. 97; Her Majesty’s Supplementary Factum, at para. 100a. But in his amended factum and during oral submissions, the defence resiled from this position asserting that the time between May 12, 2016 and June 9, 2016, should be attributed to Crown delay because delayed disclosure was the cause. Amended Factum of the Applicant, at para. 97. This position change reduces the defence position of intake to 4.7 months.

224I disagree. I find that the appropriate intake period for this case is 5.5 months or from December 24, 2015 to June 9, 2016. At the time this was a first degree murder case with moderate complexity and significant disclosure. The bulk of the disclosure was completed on March 22, 2016 but the ongoing obligation continued. As found earlier, the disclosure excuse was not reasonable for these purposes.

ii. June 9, 2016 to October 19, 2016 – 4.4 months

225I allocate this time to defence delay. The case was stalled in the Provincial Court due to the defence. Mr. Hanan changed counsel at least twice during the summer of 2016. Thereafter, new counsel had to assimilate the case and its disclosure, and had to obtain instructions from his client. By October 19, 2016, the defence was ready to set the JPT.

226The defence argues that much of this delay is attributed to the Crown for ongoing disclosure issues. I reject this position. Complete disclosure is neither mandatory nor necessary before setting a JPT date. Indeed, one of the purposes of a JPT is for court assistance with any disclosure problems. And in this case, defence counsel expressed contentment with the Crown responses to defence disclosure requests. Transcript of March 1, 2017, at page 2. This was not a case of refusing or delaying by Crown counsel.

227I also reject the defence position that the Crown is responsible for the one week delay from October 12 to 19, 2016, because Crown counsel was “away” which prevented scheduling. It is unfair to consider this issue in isolation, by looking at the one day. For the prior two court appearances, September 20, 2016, and October 4, 2016, the Crown was ready and the defence sought a delay in setting the JPT. Indeed, on the former date, Crown counsel expressed disappointment that the JPT date was not being set. Then on October 11, 2016, the defence again sought a delay in setting the date because his agent, duty counsel, did not have instructions from defence counsel. The very next day, October 12, 2016, the defence asked for a one week delay because Crown counsel was “away” preventing coordination of dates. Under these circumstances, and viewing the statement of October 12, 2016, contextually, the delay caused by this asserted inability to coordinate does not fall on the shoulders of the Crown.

iii. October 19, 2016 to March 29, 2017 – 5.5 months

228I allocate this period of time to neutral time and to defence delay. This was the time during which a continuing JPT was held. The parties were before the JPT judge three times – November 9, 2016, January 16, 2017 and March 1, 2017 – at least the first two for an actual JPT. A JPT, under Morin, is considered neutral delay attributed to the intake requirements of the case: R. v. Khan, 2011 ONCA 173, 273 O.A.C. 165, at para. 53, leave to appeal refused, [2011] S.C.C.A. No. 195. Moreover, during this period the accused had a bail hearing in the Superior Court which caused some delay to the JPT. Finally, the defence sought and obtained an adjournment on March 1, 2017, for the setting of the preliminary hearing date in order to obtain additional disclosure. This was defence delay. There is nothing in the record to show that the disclosure sought was necessary to set the preliminary hearing date.

iv. March 29, 2017 to October 31, 2017 – 7 months

229On March 29, 2017, the parties agreed to the setting of 15 non-consecutive days, commencing on October 31, 2017, for the preliminary hearing. Also set was a focus hearing for July 18, 2017.

230I attribute two months for the necessary preparation both for the focus hearing and for the preliminary hearing. This is neutral time inherent in the intake process.

231I attribute the balance, or 5 months, to institutional delay. The parties were ready to set the preliminary hearing date.

v. October 31, 2017 to December 12, 2017 – 1.4 months

232This is the time taken to complete the preliminary hearing. As such it is considered inherent trial time and neutral.

233The defence argues that the period between November 8, 2017 and November 27, 2017, is institutional delay because the gap in the preliminary hearing was caused by the court’s inability to provide consecutive dates. I disagree and reject this argument. First, finding 15 consecutive court days is never easy in the provincial courts. That is a long time for those courts. I find it impressive that the court could find dates so close together. Second, the need for so many days was caused by the defense. Of the 15 days scheduled, only 8 were used for the preliminary hearing and four of those days were half days at most. Moreover, 9 of the 14 witnesses called were for defence discovery only. And third, the defence agreed to these dates.

vi. summary: OCJ

234The accused spent almost two full years in the Provincial Court from the charge date to the committal date. The time periods are summarized as follows:

December 24, 2015 to June 9, 2016: 5.5 months intake;

June 9, 2016 to October 19, 2016: 4.4 months defence;

October 19, 2016 to March 29, 2017: 5.5 months neutral and defence;

March 29, 2017 to October 31, 2017: 2 months inherent and 5 months institutional; and

October 31, 2017 to December 12, 2017: 1.4 months inherent.

b. Superior Court

i. December 12, 2017 to February 16, 2018 – 2.1 months

235This time is from the order of committal to the setting of the trial date. It includes two appearances in assignment court and a Superior Court JPT. Both parties agree that this time is properly attributed to intake. I too agree.

ii. February 16, 2018 to November 5, 2018 – 8.6 months

236This time is from the assignment court setting of the trial date to the trial. It includes a trial readiness court appearance in August and the commencement of the trial with the hearing of pretrial motions beginning on September 17, 2018. Also during the scheduled motions hearing, the court took advantage of the time and conducted two trial management conferences. I assess 3.6 months as inherent time necessary for the preparation for the focus hearing, the three defence motions, the legal issue regarding the challenge questions on the defence challenge for cause, and the six week trial. In addition, the focus hearing, the court appearances for the motions, and the trial management conferences are included in this inherent time. The balance, or five months, is classic institutional delay.

iii. November 5, 2018 to December 6, 2019 – 13 months

237This period is from the scheduled start of the first trial to the anticipated conclusion of the re-scheduled trial. Included in this period are motions, and an offered trial date which was unacceptable to defence counsel.

** (a) motions **

238From the scheduled commencement of the first trial on November 5, 2018, to the first date available for the re-scheduled trial on June 3, 2019, is 7 months.

239The motions were as follows:

• the defence motion for re-election or adjournment to which the Crown refused the re-election but consented to the adjournment;
• a hearing on the defence motion to exclude the audio evidence;
• a hearing on the Crown’s motion to admit the preliminary hearing evidence;
• a hearing on the Crown’s motion to admit the police statement; and
• a hearing on the defence motion for a stay pursuant to s. 11(b) of the Charter.

240The hearings took place from November 5, 2018 to December 13, 2018. During this period not every day included a court appearance. The court specifically left time for counsel to prepare their respective motions and their court presentations. With the exception of the adjournment motion, which was granted on November 6, 2018, the court reserved its decisions on the other four motions. The ruling on this, the 11(b) motion, is released today, January 11, 2019. Rulings on the balance of the motions were held in abeyance pending this ruling to determine whether or not further rulings were necessary. Such rulings now are necessary. A reasonable date for those three rulings is early February, 2019. Thus, these three months, from November 5, 2018 to early February, 2019, are inherent trial time.

** (b) to first date offered **

241Assessment of the delay with regard to the next four months, from early February, 2019 to the first date the court was available for a trial of this length, June 3, 2019, requires further consideration.

242The first date available to the court for a trial of this size was June 3, 2019, and that was obtained through extraordinary efforts including the involvement of the Regional Senior Justice. This is a six week murder jury trial with a challenge for cause. For the original trial, 600 prospective jurors were summoned. Finding time for such a trial is rarely quick. As stated by the Ontario Court of Appeal in R. v. Allen, 1996 CanLII 4011 (ON CA), [1996] O.J. No. 3175 (C.A.), at para. 27, affirmed, 1997 CanLII 331 (SCC), [1997] 3 S.C.R. 700:

No case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around any one case, but must try to accommodate the needs of all cases. When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources.

243The court in this case accommodated the rescheduling of this trial in a remarkably quick fashion. None of this delay is attributed to institutional delay.

244Further examination must be made of the cause of this delay.

245Here, it was the accused who requested the trial adjournment which was agreed to by the Crown. There were two causes of this adjournment request, this delay: the unexpected refusal of a key Crown witness to give evidence and the late disclosure of perceived important evidence. As I reviewed above, the first cause was outside the control of the Crown but the second cause rests at the feet of the Crown. Although the witness refusal appears more significant, especially in hindsight, at the time of the adjournment, both were the cause of the adjournment.

246The Crown argues that all of the resulting delay is defence delay because it was their adjournment motion. The Crown cites R. v. MacDougall, 1998 CanLII 763 (SCC), [1998] 3 S.C.R. 45, at para. 48, which states:

Delays intentionally caused by, consented to or requested by the accused cannot be used in support of a claim that a s. 11(b) violation has occurred. Otherwise, there might be an incentive to employ dilatory tactics in order to escape justice. However, only those actions of the accused which directly contribute to the delay – such as a request for an adjournment – or which constitute a deliberate attempt to delay the trial, will count against an accused. Such actions are inconsistent with a desire to proceed with the trial and are therefore inconsistent with an assertion of a s. 11(b) violation. [Citations omitted.]

247The defence, in contrast, asserts that the Crown, as cause of the delay, is responsible for all of it: see Picard, at para. 117.

248When, as here, the adjournment was predicated on trial fairness due to the late-breaking events beyond the control of the accused, a fact contemporaneously conceded by the Crown, it is unfair to foist the responsibility of said delay onto the innocent party, in this case the defence. Unexpected events happen in many cases; they are part of the inherent delay.

249On the other hand, when, as here, one event causing the delay was beyond the control of the prosecution, it is unfair to foist that part of the responsibility of the delay onto the innocent party, in this case the prosecution. However, one cause of the delay here – the late disclosure – was attributed to the Crown.

250Accordingly, I apportion these four months of delay as follows: 2 months as inherent delay and 2 months as Crown delay.

** (c) new trial date set **

251From the commencement of the original trial date offered of June 3, 2019, to the conclusion of the trial date set on December 6, 2019, is 6 months.

252The defence was offered a six week trial beginning on June 3, 2019. Defence counsel rejected this date because he had another outstanding professional commitment. As a consequence, 1.5 months of this time is attributed to defence delay.

253The balance of the time, with the exception of necessary trial preparation time, is attributed to institutional delay, the court had no earlier dates. The appropriate time for trial preparation of a six week murder trial is 1.5 months.¹⁷ This is inherent or neutral time.

254Accordingly, this six months time period is allocated as follows: 3 months – institutional delay; 1.5 months – defence delay; and 1.5 months – inherent delay.

iv. summary: SCJ

255The accused will have spent almost two full years in the Superior Court from the date of the committal order to the anticipated completion date of the set trial. The time periods are summarized as follows:

December 12, 2017 to February 16, 2018: 2.1 months intake;

February 16, 2018 to November 5, 2018: 3.6 months inherent & 5 months institutional; and

November 5, 2018 to December 6, 2019: 6.5 months inherent, 3 months institutional, 2 months Crown delay, and 1.5 months defence delay.

c. conclusion

256The institutional/Crown delay are as follows: in the OCJ – 5 months institutional delay; in the SCJ – 8 months institutional delay and 2 months Crown delay. This results in a total of 15 months delay. Thus, this case is below the guidelines of delay in the OCJ, two months over the guidelines in the SCJ and under the guidelines in total delay.

5. Crown response to institutional delay

257The Crown demonstrably and repeatedly pushed this case forward until November 5, 2018. The case seriously lagged in OCJ with the Crown pushing. On three separate dates, April 14, 2016, July 21, 2016, and August 30, 2016, Crown counsel noted the extended time in remand court and urged the setting of a JPT. On March 1, 2017, in the face of another defence request for a delay, the Crown pushed for the setting of a preliminary hearing date. Then on the first day of the preliminary hearing, on October 31, 2017, Crown counsel strongly opposed the defence suggestion of an adjournment of the preliminary hearing to see if the complainant, Gregory Henriquez, would be able to travel:

[T]here’s no benefit, particularly in a post-Jordan world, to adjourn a preliminary hearing, essentially sine die, in the hopes that someday this witness may be available.

Transcript of October 31, 2017, at page 125.

258It was only when confronted with the events of the November 5, 2018, that the Crown contributed to the delay by refusing to re-elect. As I found earlier, Crown counsel’s so-called efforts to push the matter forward on November 5, 2018 and thereafter were not reasonable under the circumstances. Crown counsel looked to others in the system to adjust while refusing to use the one reasonable remedy in their hands.

6. defence efforts to move case

259I give the defence almost no credit for any effort to move this case forward. In the OCJ, this case moved at a snail’s pace because of the defence. There were 27 court appearances before a JPT was set. There were three appearances before the JPT judge before a preliminary hearing date was set. The preliminary hearing was scheduled for 15 days in large part for the defence to discover the case. Especially in the OCJ, the defence sought delay, not speed. This is the antithesis of the case where the defence is pushing for early dates. The conduct of the defence here was more than silence, more than acquiescence. Perhaps the most telling example is when defence counsel sought an open-ended adjournment of the preliminary hearing to see if the complainant’s health would improve to permit travel: Transcript of October 31, 2017, at pages 121-22.

260The defence points to his position at the January 5, 2018, assignment court consenting to defence delay and to the trial date as showing his efforts to move the case forward expeditiously. I do not accept this acquiescence as an effort to push this case forward.

261The one effort the defence did make to push the matter forward was his motion to re-elect to be tried by a judge alone on November 5, 2018. I am unable to identify any other defence efforts to expedite the trial of this matter.

7. prejudice to the accused

262The accused did not file affidavit evidence asserting any specific prejudice caused by the delay.

263Mr. Hanan was in custody the first year of the case. He was released on bail on December 20, 2016, following his first effort to seek release. His conditions included a $30,000 cash deposit and home confinement with some exceptions. The bail was varied, on Crown consent, on June 27, 2018, eliminating the cash deposit condition and changing the home confinement to a 6 p.m. to 6 a.m. curfew. Mr. Hanan remains on bail today.

264The accused claims prejudice by reason of immigration problems. In support, he filed a letter dated September 12, 2018 to him from the Canada Border Services Agency (“CBSA”) and a CBSA Questionnaire completed by Mr. Hanan on October 16, 2018. The letter advised Mr. Hanan that a decision whether to seek a removal order against him would be made in the near future. The grounds stated were criminal convictions of offences punishable by imprisonment for at least 10 years. The letter included the Questionnaire. In the Questionnaire, Mr. Hanan stated that he had been convicted of offences in Canada and provided the following details: “in 2000 Assault with a weapon (Belt) Young Offender [;] Adult in 2004 unlawfull [sic] dwelling [;] Breech [sic] of curfew in 2009”.

265The immigration problems of Mr. Hanan are not impacted by the delay in this case. Obviously, he has not been convicted for the crimes charged here. Two of his past convictions, as indicated in his Questionnaire, facially may make Mr. Hanan inadmissible because they provide for ten year prison sentences: s. 276(a)(assault with a weapon); s. 349(1)(unlawfully in dwelling). But those convictions were before this case and stand regardless of the delay here.

266Prejudice, however, shall be inferred here because of the 4 year delay in bringing this matter to trial: Morin, at p. 801.

8. assessment

267This assessment is qualitative, not quantitative. It is contextual and includes the following factors:

• the complexity of the case – moderate;
• whether there was any delay above the Morin guidelines – two months above SCJ guidelines but none above OCJ guidelines or total guidelines;
• the Crown’s response to delay – impressive until the trial adjournment;
• defence efforts to move case alone – non-existent until the trial adjournment; and
• prejudice to the accused – inherent.

268Two additional factors must be considered here: the time this case was under the Morin framework; and the serious nature of the offences alleged.

269This case fell under the old Morin framework only for the first 6.5 months. At the time of the release of Jordan a JPT had not yet been set. In Jordan, at para. 96, the Supreme Court stated:

Of course, if the parties have had time following the release of this decision to correct their behaviour, and the system has had some time to adapt, the trial judge should take this into account.

270The Court also had this to say in Cody, at para. 71:

When considering the transitional exceptional circumstances, trial judges should be mindful of what portion of the proceedings took place before or after Jordan was released. For aspects of the case that pre-dated Jordan, the focus should be on reliance on factors that were relevant under the Morin framework including the seriousness of the offence and prejudice. For delay that accrues after Jordan was released, the focus should instead be on the extent to which the parties and the courts had sufficient time to adapt (Jordan, at para. 96).

271This case is very serious. Mr. Haran is accused of a double shooting which left one person dead and another paralyzed. This shall be considered: Cody, at para. 70.

272The assessment is difficult. Up until the first trial date Crown counsel conducted themselves impeccably in this area. They repeatedly and vigorously pushed the system for quicker settings. In marked contrast, up until the first trial date, the defence caused delay and showed no interest in pushing the case forward.

273Then came the trial date and the major misstep by the Crown. In the face of a legitimate defence adjournment request, which arose through no fault of the defence, the Crown declined to permit a re-election to judge alone knowing that the case was near the presumptive ceiling and knowing that the available trial date was far beyond the ceiling. Had the trial been completed as scheduled, there would be no s. 11(b) issue. Had the trial continued as a judge alone trial, there would be no s. 11(b) issue. Because neither happened, there is a s. 11(b) issue. That lies at the feet of the Crown. Under Jordan, without transitional exceptional circumstances a stay would be entered. But this is a transitional case and thus the transitional exceptional circumstances apply.

274I cannot and do not ignore the Crown’s major misstep. The Crown was aware of the s. 11(b) problem and did not react well. But the analysis here is not limited to one misstep by one party, rather it must be contextual in consideration of all of the circumstances.

275I am fully aware of the following admonition in Jordan, at para. 98:

[T]he s. 11(b) rights of all accused persons cannot be held in abeyance while the system works to respond to this new framework. Section 11(b) breaches will still be found and stays of proceedings will still be entered for cases currently in the system. For example, if the delay in a simple case vastly exceeds the ceiling because of repeated mistakes or missteps by the Crown, the delay might be unreasonable even though the parties were operating under the previous framework. The analysis must always be contextual. We rely on the good sense of trial judges to determine the reasonableness of the delay in the circumstances of each case.

276The Jordan decision brought radical changes to our courts. The Supreme Court seeks to effect real change. The Court was fully aware that change takes time. It was sensitive to the need for time to adapt. The necessary changes, even now, continue to be identified. The hard cap numbers and the math are the easy part. More difficult is an understanding of the needed adaptations to conform to the framework’s bright-line rules. The pace and the rhythm of cases flowing through the system must change. How to effect this change is not easy to grasp nor to effect. The course of a river is never easy to alter.

277There is no question here that Crown counsel was aware of the Jordan decision within weeks of its release. Crown counsel referred to Jordan by name in the OCJ when pressing for quicker dates. But awareness of the presumptive ceiling and the need for speed are the easiest lessons of Jordan. Jordan introduced a totally new framework with new concepts and new definitions: defence delay, discrete exceptional circumstances, particularly complex cases, and transitional exceptional circumstances. The precise meaning of these new concepts continues to be refined in court cases more than two years after the release of Jordan. It is the full understanding of the lessons of Jordan that Crown counsel and the courts lagged in their adjustment in this case. This is most notable in the OCJ where the case stalled, quite unnecessarily in most instances, without understanding. No longer can the courts in the OCJ unquestioningly go along with defence requests for delay before setting a JPT. The JPT is intended to advance cases, including as the forum to identify and resolve disclosure issues. The JPT should not evolve into a mechanism to retard cases. And, perhaps unfortunately, no longer can the Crown and the courts accommodate the defence in extending preliminary hearings for defence discovery without holding the defence responsible for that extra time. These too are lessons of Jordan to which we must adapt.

278Viewing this case as a whole, in the OCJ while the Crown was pushing and making commendable efforts to be fair, the defence sat back, complained generally about disclosure, and let the time-clock keep ticking. Then, on the edge of the Jordan cliff, the Crown was confronted by a serious, delay-causing event. The Crown did not respond well. If my assessment rests on this Crown decision, the Crown loses. But it cannot and does not rest on that decision. And this is not a case where the Crown made repeated missteps. I am to assess contextually and qualitatively. In that assessment, I find that the Crown has established that the time it will take to try this case is justified based on the parties’ reasonable reliance on the law as it previously existed.

IV. Conclusion

279A summary of the findings follows:

Total Delay: the period from the charge to the anticipated end of trial (Jordan, at para. 47).

47 months and 12 days

Net Delay: subtract defence delay (10 months and 2 days) from the Total Delay (Jordan, at para. 66).

37 months and 10 days

If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

Remaining Delay: subtract delay caused by discrete exceptional circumstance events (1 month and 15 days) from the Net Delay (Jordan, para. 75).

35 months and 7 days

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

no

The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the "Transitional Cases") (Jordan, para. 96).

yes

If the Remaining Delay exceeds the presumptive ceiling and the case is a Transitional Case, the court must consider whether Transitional Exceptional Circumstances justify the delay above the ceiling (Jordan, at para. 80).

yes

280For the foregoing reasons, the defence motion to stay pursuant to s. 11(b) of the Charter is dismissed.

Footnotes

1. 1Vassell, it must be noted, was decided only eight days before Jordan and was authored by Mr. Justice Moldaver, one of the authors of the Jordan decision.
2. 2Originally a sixth period was alleged – January 5, 2018 to February 16, 2018 - but when the transcript was completed, this period was withdrawn.
3. 34.4 months added to the “original” Jordan date of June 24, 2018 brings the net delay date to November 5, 2018, the commencement of the six week trial. But the end date is not the beginning of a trial, but its end, which in this six week trial would be December 14, 2018. Thus the net delay date would have exceeded the presumptive date by six weeks.
4. 4In fairness, it must be noted that Mr. Uwagboe did not enter the case until at least July of 2016, some seven months after its commencement.
5. 5This conclusion is driven by the facts of this case. I do not suggest that a preliminary hearing extended for defence discovery can never be considered defence delay.
6. 6This figure is calculated from the scheduled commencement of trial to the anticipated conclusion of the trial on the new trial date. If the delay figure is calculated from the commencement of the original and the new trial or from the anticipated conclusion of the original and the new trial, the figure would be 11 months and 3 weeks. Under either calculation the delay is substantial.
7. 7The time between June 3, 2019, when the Crown and the Court were ready but the defence was not, and the anticipated end of the trial on December 6, 2019, is again considered in the analysis under the discrete event exceptional circumstances.
8. 8I calculate the delay using whole months from the date of the first month to the date of the last month and then by any days in addition to the last date. When the days add up to more than one month, I use 30 days for one month.
9. 9The Crown also argues for a third: the 8 day period between the completion of evidence at the preliminary hearing on December 4, 2017, and the committal decision by the preliminary hearing judge on December 12, 2017. I disagree. Committal was contested and the preliminary hearing took place over 8 days. Under these circumstances, it is impossible to conclude that a short reservation by the preliminary hearing judge was unforeseen. Indeed, under these circumstances it would be quite unusual for a court to render an immediate decision. Given the case law, no further discussion on this issue is necessary: R. v. MacIsaac, 2018 ONCA 650, 141 O.R. (3d) 721, at paras. 46 – 48; R. v. Tsega, 2017 ONSC 3090, at para. 61.
10. 10As calculated below, this estimate was quite accurate.
11. 11Whether or not these renewed efforts were prompt is unknown. No evidence on that issue was led.
12. 12This assumes, again, that all the Crown actors pursued this new technology with reasonable promptness, something which is unknown on this record.
13. 13During submissions on the s. 11(b) motion, Crown counsel stated that the Crown needed both the ITO and the cell phone data report to make its cost/benefit decision not to use the data as evidence. Assuming this lawyer submission can be accepted as part of the record, it does not change my conclusion. On November 2, 2018, I specifically directed the Crown to get the ITO and disclose it to the defence over the weekend. At that time the Crown had the phone data report. Thus, a review of both over the weekend presumably would have led to the same declination all before November 5, 2018. The delay for the late disclosure was reasonably avoidable.
14. 14The definition of “Attorney General” in s. 2 of the Criminal Code means the Attorney General of the province within which the proceedings lie and “includes his or her lawful deputy”. At least one court has stated that the Crown Attorney, as agent of the Attorney General, may consent: R. v. Luis (1989), 1989 CanLII 7135 (ON SC), 50 C.C.C. (3d) 398 (Ont. H.C.).
15. 15The large block of time sought in MacIsaac was ten consecutive days.
16. 16During submissions, it was elicited that a high-profile murder case was proceeding by judge alone in New Brunswick following a jury mistrial: R. v. Dennis Oland (CBC News, posted December 4, 2018).
17. 17A re-scheduled trial, whether arising from a late adjournment, a mistrial, or a retrial after appeal, always requires preparation especially when it is months or years later. A trial lawyer must relearn the file.