RULING ON SECTION 11(B) APPLICATION

FACTUAL BACKGROUND AND OVERVIEW

The Crown’s Allegations

The Allegations Concerning W

[1] Daylo Robinson, Rebecca Horton, and Tyler Vickers are charged with counts of human trafficking, assault and sexual assault in relation to two complainants hereinafter referred to as “W” and “D”.

[2] In and around March/April 2017, W, then a resident of St. John’s Newfoundland met Mr. Robinson on social media. In March 2018, Mr. Robinson offered W a job in Toronto, paying $1000 a week, after W told him that she was in need of money.

[3] W flew to Toronto on 22 March 2018 and Mr. Robinson met her at the airport. After getting into a cab to go to the Novotel Hotel, Mr. Robinson told W that she was now his “property” and owed him payment for her flight. He revealed that he was a pimp and W would have to repay her debt by working for him as an escort. When they arrived at the hotel, Mr. Robinson took pictures of W in lingerie.

[4] Shortly afterwards, Mr. Vickers and Ms. Horton showed up. W was told to undress and pose for photos with Ms. Horton so that “duo” advertisements could be placed on Backpage.com, a website used to solicit customers for sex. Mr. Robinson communicated with potential clients to be seen by W, arranging times and setting payment rates.

[5] W stayed at the Novotel for four nights along with the three accused. On 26 March 2018, she was taken to an Air BnB apartment on Blue Jays Way where she provided sexual services. When W indicated she was unwell and unable to work, she was beaten by Ms. Horton.

[6] Thereafter, W was taken to meet clients at different hotels with Ms. Horton and Mr. Robinson taking any money earned. W told police that she was cut off from her family and held hostage through threats of harm or death. During this period, Mr. Vickers sexually assaulted W on several occasions.

[7] On 21 April 2018, whilst Mr. Robinson, Ms. Horton and Mr. Vickers slept, W fled and made her way to the United States consulate where she reported her ordeal. On 10 May 2018, Ms. Horton, Mr. Robinson and Mr. Vickers were arrested by members of the Human Trafficking Enforcement Team (HTET).

[8] Police seized numerous items including mobile phones containing communications between Ms. Horton and Mr. Robinson, as well as sexually explicit images and videos of W. Bank records detailed small money transfers from W to Ms. Horton and also disclosed that Mr. Robinson had paid for W’s flight to Toronto.

The Allegations Concerning D

[9] Sometime in March 2018, D arrived at the Motel 6 located in Mississauga to work as an escort. She contacted a friend, Joshua Scanlan, who was staying at the motel. Mr. Scanlan introduced D to Mr. Robinson who told D that if she worked for him she would make more money.

[10] Mr. Robinson explained that he had someone working at another hotel earning thousands of dollars a day and took D to meet Ms. Horton at the hotel. When they arrived, Ms. Horton met them at the side entrance with a client and D accompanied both of them to the client’s room where she consumed alcohol. Ms. Horton invited D to participate in providing sexual services to the client but D, at that stage, heavily intoxicated, refused. Ms. Horton became angry and the client departed.

[11] In the days that followed, D was threatened by Mr. Robinson and sexually assaulted by Mr. Robinson, Mr. Scanlan and Ms. Horton. D was taken to different hotels and given cocaine to make sure that she would continue to perform sexually. Towards the end of the week, Mr. Robinson and Ms. Horton left D with Mr. Scanlan who was instructed to book advertising for D’s services. Mr. Scanlan followed these instructions, communicating with clients and arranging appointments.

[12] Sometime during the week, D became intoxicated and passed out. When she woke up, Mr. Scanlan had gone. Mr. Robinson told D that he and Mr. Vickers had beaten Mr. Scanlan and broken his jaw. D left the apartment and contacted the police.

[13] D earned approximately $7000-$8000 during this time period, all of which was given to Mr. Robinson, Ms. Horton and Mr. Scanlan.

The Section 11(b) Application

[14] Mr. Robinson, Ms. Horton and Mr. Vickers (“the applicants”) were charged on 10 May 2018 with the W allegations. On 24 May 2018, Mr. Robinson and Ms. Horton were charged in relation to D. Mr. Scanlan was charged on 31 May 2018, but has since resolved his matters. On 5 September 2018, the charges relating to both complainants were joined in the same information.

[15] A trial date has been set for 10 May 2021 with the completion of the trial anticipated to be 18 June 2021. All parties agree that the total time period from arrest to trial is 37 months.

[16] The applicants argue a violation of their right to trial within a reasonable time under s. 11(b) of the Charter of Rights and Freedoms and request a stay of proceedings. In response, the Crown argues that under the principles set out in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, there has been no constitutional breach.

THE TIMELINE

The Set Date Stage at the Ontario Court of Justice

11 May 2018

[17] The matter made its first appearance at the Ontario Court of Justice. Counsel had not yet been fully retained and requested an adjournment to 16 May 2018 in 101 court at 10:00 a.m.

16 May 2018

[18] Duty counsel appeared on behalf of counsel J. Mazin, then counsel for Ms. Horton, and requested the matter be adjourned to 5 June 2018 for a show cause hearing. Duty counsel advised this matter required a special bail hearing and the matter was remanded to 23 May 2018, by video, to confirm the date of the special bail hearing. The defence indicated that they were putting together a plan of supervision.

23 May 2018

[19] Duty counsel attended on behalf of Mr. Mazin and requested the matter return on 5 June 2018 as he was still in the process of scheduling a special bail hearing. However, Ms. Horton requested the matter return earlier. The case was adjourned to 24 May 2018. The Crown advised that additional charges might be laid against Ms. Horton.

24 May 2018

[20] Duty counsel appeared on behalf of counsel for Ms. Horton. The Crown advised that detectives from the HTET would be attending court to re-arrest Ms. Horton and her co-accused, Mr. Robinson, on new additional charges. Ms. Horton appeared in court and was remanded to 6 June 2018, for a special bail hearing. At the request of counsel this matter was adjourned to 30 May 2018, by video, for an update on disclosure.

30 May 2018

[21] Disclosure was provided. A new “special” bail hearing date was set: 15 June 2018. Counsel for Ms. Horton indicated that he had changed the previously scheduled special bail hearing date. On 15 June 2018, Ms. Horton was released on bail and counsel agreed that the matter be adjourned to 20 June 2018 to join up with the other accused.

20 June 2018

[22] Agents for Mr. Robinson and Ms. Horton’s counsel appeared. Agent for Mr. Robinson indicated a Crown pre-trial had been conducted with Crown counsel and that he was ready to set a judicial pre-trial date. However, a counsel pre-trial was required for the co-accused. The Crown advised counsel to contact the assigned Crown to pursue specific disclosure requests. All accused were adjourned to 27 June 2018 to and then to 4 July 2018.

4 July 2018

[23] Counsel for Mr. Robinson appeared informing the court that he had not yet received disclosure. Counsel for Ms. Horton appeared and indicated he had received disclosure on one file and was informed that disclosure on both matters was available at the Crown’s office on the other. The matter was adjourned with the other co-accused to 16 July 2018.

16 July 2018

[24] The Crown notified the court of its intention to join all co-accused on one information. The Crown was prepared to set a judicial pre-trial along with counsel for Ms. Horton and Mr. Vickers. However, counsel for Mr. Robinson (not Mr. Little) was not ready to do so because he required additional disclosure. The matter was adjourned to 25 July 2018.

25 July 2018

[25] An agent for Ms. Horton’s counsel appeared in court to indicate that a judicial pre-trial date had been agreed for all counsel. The matter was adjourned to 22 August 2018.

22 August 2018

[26] A judicial pre-trial was conducted in front of Band J. to be continued on 5 September 2018. The Crown indicated that further disclosure was available for all parties.

5 September 2018

[27] A further pre-trial with Band J. was held and trial dates were set. The Crown put the dates on the record: 29 July 2019 to 13 August 2019. There was also a one-day application date scheduled for 6 May 2019. The Crown advised that both it and the court were available in April and onwards but all counsel were only available beginning 29 July 2019. A joint information was filed with the court and a continuing judicial pre-trial was set for 7 November 2018.

7 November 2018

[28] The scheduled judicial pre-trial did not take place as the assigned Crown was not available. The matter was adjourned to 14 November 2018 with all counsel working to secure new a new judicial pre-trial date in the interim.

14 November 2018

[29] The matter was adjourned to a new judicial pre-trial date of 12 December 2018.

12 December 2018

[30] Counsel indicated that earlier dates had been canvassed with the trial office but none were available. A further judicial pre-trial with Band J. was scheduled for 31 January 2019. Ms. Horton was adjourned to that date with the other co-accused returning on different dates. All counsel agreed that the 29 July-13 August 2019 dates were now preliminary inquiry dates as Mr. Scanlan had chosen to re-elect trial in the Superior Court of Justice.

31 January 2019

[31] Counsel for Ms. Horton appeared by way of designation and put the new continuing judicial pre-trial on the record: 5 April 2019.

5 April 2019

[32] The Crown informed the court that the judicial pre-trial had been held and a further meeting with Band J. should be set for 23 April 2019. Mr. Scanlan did not attend and a bench warrant was issued for his arrest with his counsel being removed from the record.

23 April 2019

[33] A prior pre-trial application date of 6 May 2019 was vacated by Ms. Horton’s counsel because the matter was now proceeding as a preliminary inquiry. A date was chosen to file notice of election: 3 June 2019.

3 June 2019

[34] The Crown elected to proceed by indictment and an agent for Ms. Horton’s counsel informed the court that he had disclosure and advised that her election was for a trial in the Ontario Court of Justice. The matter was remanded to 29 July 2019 for the first day of the preliminary inquiry.

The Preliminary Inquiry

29 July 2019; 30-31 July 2019; 1-2 August 2019

[35] The preliminary inquiry commenced before Pringle J. with a two-day voir dire to determine whether W could testify by videoconference. The Crown called the officer in charge, Detective Constable Teresa Curtis, to testify. The application was granted and W’s testimony began with her video statement played in court.

[36] Further video disclosure was provided to counsel and W was cross-examined by counsel for Mr. Vickers. On 1 August 2019, further disclosure relating to the extraction from W’s mobile phone was provided. On 2 August 2019, the defence requested an adjournment which the Crown opposed. The defence indicated that, as a result of the further disclosure, more witnesses and dates would be required for the preliminary inquiry. A judicial pre-trial was booked for 6 August 2019.

6 August 2019

[37] A judicial pre-trial was conducted with Rondinelli J. Counsel for Mr. Robinson (not Mr. Little) and Mr. Vickers requested that W’s evidence be suspended until “disclosure issues” relating to her evidence had been addressed. Counsel also indicated that as a result of the disclosure, additional witnesses might be required. All counsel indicated that they wished to hear from those witnesses first. Counsel for Mr. Robinson and Mr. Vickers advised that they might wish to call the prosecuting Crown counsel as a witness. The transcript does not reveal who the other witnesses were or why they were so critical that W’s evidence had to be halted and additional court time required. The transcript does make clear that no prior notification had been given to the prosecuting counsel of the possibility of her testifying.

[38] Pringle J. declined the adjournment and ordered defence counsel to continue with their cross-examination. However, W indicated that she had a fever that could impact on her ability to give clear answers and the day ended early. A further judicial pre-trial with Rondinelli J. discussed the availability of additional dates to complete the preliminary inquiry.

7 August 2019

[39] W’s cross-examination continued and 10 additional dates were added in April 2020, five of which were secured for the discovery of police witnesses, with the remainder for D’s testimony.

8 August 2019

[40] Cross examination of W by Mr. Vickers’ counsel continued. The transcript provided is missing some of the pages. The preliminary inquiry judge expressed concerns about the preliminary inquiry being adjourned until April 2020.

9 August 2019

[41] Counsel for Mr. Robinson requested that she be able to call another witness before starting her cross examination of W. Pringle J. declined this request and ordered counsel to start her cross examination of W. Justice Pringle also advised that she would accommodate all counsel and make herself available for earlier dates to avoid the preliminary inquiry being adjourned to April 2020. W, however, was unable to continue with her cross-examination because of a migraine. Despite discussions about using the remaining two hours of the court day for the defence to discover another witness, counsel for Mr. Scanlan indicated that he was not ready to do so. A further judicial pre-trial was conducted resulting in the scheduling of continuation dates: 12-22, 27-29 November 2019, and 2-3 December 2019.

12 August 2019

[42] W complained of an infection affecting her face but continued to be cross-examined by Mr. Robinson’s counsel.

13 August 2019

[43] The application to cross-examine W on her prior sexual history pursuant to s. 276 of the Criminal Code, R.S.C. 1985, c. C-46, was heard. Counsel for Mr. Robinson continued to cross-examine W. During questioning, W made derogatory comments. W left the video link and failed to return. Pringle J. expressed frustration with W’s behaviour warning that the witness was “on the edge” of being cited for contempt. Pringle J. ordered W to return after the lunch break. When court resumed Crown counsel informed Pringle J. that W’s counsel had advised her that W had a medical emergency and could not return. The Crown added that W wished to express apologies to both counsel and the court for her profanity. Meanwhile, the November/December 2019 dates formally replaced the April 2020 dates for the continuation of the preliminary inquiry. The matter was adjourned to 24 September 2019 to confirm arrangements were in place for the November video link.

24 September 2019

[44] Mr. Sheppard was now fully retained as counsel for Ms. Horton. Counsel for Mr. Scanlan applied to be removed as counsel of record and a bench warrant was issued for Mr. Scanlan’s arrest. Counsel for Mr. Robinson requested that their firm be removed from the record. The matter was adjourned to 5 November 2019 for the continuation of Mr. Robinson’s s. 276 application.

[45] The transcripts are incomplete and missing the date of 21 October 2019. According to the Crown, the November and December 2019 dates had to be vacated because Mr. Robinson changed counsel and was not available. New dates were selected and put on record on 5 November 2019.

5 November 2019

[46] The dates of 19-20 November 2019 were vacated because Ms. Horton not able to attend from Nova Scotia and counsel for the complainant was unavailable. New dates were put on the record: 9-13 March 2020; 27-31 July 2020; 10-14 August 2020. New counsel appeared for Mr. Robinson. The matter was adjourned to 5 December 2019 for a judicial pre-trial with Rondinelli J.

5 December 2019

[47] All counsel appeared and advised that a judicial pre-trial had taken place with Rondinelli J. Counsel indicated that they were prepared to adjourn the matter to 9 March 2020 for continuation of the preliminary inquiry.

9 March 2020

[48] The matter was remanded to the Superior Court of Justice after the Crown preferred a direct indictment.

The Superior Court of Justice Timeline

15 March 2020

[49] Following the announcement of the provincial response to the COVID-19 pandemic, the Chief Justice of the Superior Court of Justice issued an order adjourning all criminal matters scheduled between 17 March 2020 and 2 June 2020 except for urgent matters.

30 March 2020

[50] The first Superior Court judicial pre-trial was conducted with Forestell J. No trial dates could be selected due to the pandemic and the Chief Justice’s direction. All cases would be “triaged” in June 2020. A further judicial pre-trial was scheduled for 14 April 2020.

14 April 2020

[51] A second judicial pre-trial was conducted with Forestell J.

April 27, 2020

[52] Pringle J. confirmed the direct indictment had been filed. The issue of contempt of court regarding W’s conduct at the preliminary inquiry was canvassed by counsel for Mr. Robinson.

April 28, 2020

[53] A third judicial pre-trial was conducted with Forestell J.

5 May 2020

[54] The Chief Justice of the Superior Court of Justice extended the 17 March 2020 order, adjourning all appearances to 6 July 2020.

12 May 2020

[55] Provincial emergency orders were extended to 2 June 2020. The following day, the Superior Court of Justice sent out a memo advising that there would be no in person court hearings until 6 July 2020 and no jury trials until September 2020.

11 June 2020

[56] A fourth judicial pre-trial was conducted with Forestell J.

23 June 2020

[57] All counsel appeared in the SCJ before Forestell J. All counsel were available 17 August 2020 for pre-trial motions. The date of 1 March 2021 was also secured for one week of pre-trial motions. A six-week trial was confirmed to commence 10 May 2021.

10 July 2020

[58] A fifth judicial pre-trial was conducted with Forestell J. The defence were no longer available to proceed with the 17 August 2020 pre-trial motions although the Crown was available to proceed as scheduled.

21 September 2020

[59] A sixth judicial pre-trial was conducted with Forestell J.

LEGAL PRINCIPLES

[60] In Jordan, the Supreme Court of Canada fundamentally changed the law relating to s. 11(b) Charter applications set out in its previous decision in R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771.

[61] The Court in Jordan imposed strict timelines for the completion of criminal cases: 30 months for offences tried by indictment and 18 months for those dealt with summarily. Any delay beyond these time limits was presumed unreasonable.

[62] Jordan also introduced a new method of calculating delay periods. The time accruing from the date of charge to the end of the trial is “the total delay”. Any delay periods attributable to the defence (“defence caused delay”) must be subtracted from that total leaving a “net delay” figure.

[63] If the “net delay” exceeds 30 months, the Crown can only seek to justify the excess by demonstrating the existence of exceptional circumstances: Jordan, at paras. 47, 68-75. For cases commencing prior to Jordan, the Crown may rely on the “transitional period exception”, using the Morin standards to determine whether the delay was unreasonable.

[64] In R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-41, the Court of Appeal for Ontario, set out the following step-by-step approach to determine whether an accused’s s. 11(b) rights had been breached:

(1) Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial

(2) Subtract defence delay from the total delay, which results in the “net delay”

(3) Compare the net delay to the presumptive ceiling

(4) 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. If it cannot rebut the presumption, a stay will follow. In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases

(5) Subtract delay caused by discrete events from the net delay (leaving the “remaining delay”) for the purpose of determining whether the presumptive ceiling has been reached

(6) If the remaining delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable

(7) If the remaining delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable.

WAS THE DELAY UNREASONABLE?

Defence Induced Delay

[65] As per Jordan, all parties agree that the total delay in this case is 37 months, exceeding the Jordan ceiling by seven months.

[66] The next issue to be decided, therefore is the deduction of defence delay. In Jordan, the court explained that this principle applies to delay caused solely by the actions of the defence and does not include conduct which constitutes legitimate action in defence of the charges. In R. v. Pauls, 2020 ONCA 220, 149 O.R. (3d) 609, at paras. 52-53, aff’d 2021 SCC 2,[^1] and R. v. Albinowski, 2018 ONCA 1084, 371 C.C.C. (3d) 190, at paras. 37-38, the court held that one accused’s delay could be found to count against another if the parties were moving collectively through the system. I find that to be the case here: there were four accused, each of them at times endorsing the actions throughout the proceedings.

[67] The Crown relies upon three separate time periods which count as defence delay. As all the parties were moving together communally, I find that the deductions apply to all three remaining accused.

[68] First, with respect to the preliminary inquiry date, the court and the Crown were available on 29 April 2019. However, some of the defence counsel were not. The first day of the preliminary inquiry, 29 July 2019, was set to accommodate all defence counsel. The Jordan clock stops running on the date that both the court and Crown are available: Jordan, at para. 64; R. v. Mallozzi, 2017 ONCA 644, 390 C.R.R. (2d) 57, at para. 34. That being the case, the three-month delay between 29 April 2019 and 29 July 2019, the start of the preliminary inquiry, counts as defence induced delay. I therefore deduct 3 months from the total delay, bringing it to 34 months.

[69] Next, it is conceded by counsel for Mr. Robinson that a 9-day period of delay occurred because his then counsel was unavailable for a judicial pre-trial that was due to be held on 16 July 2018. That time period is also deducted, leaving a delay of 34 months less 9 days.

[70] Finally, on 9 August 2019, the preliminary inquiry was adjourned to 5 November 2019 with a completion date of 3 December 2019. These dates had to be vacated because new counsel for Mr. Robinson was unavailable. It is unclear what period of time should be deducted for this event because the new rescheduled dates meant that the matter would complete sometime in August 2020. However, these dates became redundant: the Crown preferred its direct indictment in March 2020 and ended proceedings in the Ontario Court of Justice, avoiding this delay.

[71] For the purposes of calculation, I am prepared to apportion the three-month delay between the Crown and the applicants, deducting two months as defence delay leaving a total of 32 months less 9 days.

[72] If I am wrong about the “collective” approach, I find that the prosecution of multiple accused in this case added to the complexity which made any resulting delay reasonable. I will return to this topic later.

[73] Finally, at the Superior Court of Justice judicial pre-trial held on 11 June 2020, Forestell J. offered counsel a start date of 1 March 2021. However, counsel for Ms. Horton was unavailable until 10 May 2021. I therefore deduct a further two months bringing the total delay to 30 months, less nine days and below the Jordan ceiling.

Exceptional Circumstances: Discrete Events

[74] Under Jordan, delay over 30 months can be justified if the Crown can show exceptional circumstances. There are two components: discrete events and complexity of the case.

Discrete Events

[75] In Jordan, at para. 73, the court described discrete events in the following way:

Discrete, exceptional events that arise at trial may also qualify and require some elaboration. Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. For example, a complainant might unexpectedly recant while testifying, requiring the Crown to change its case. In addition, if the trial goes longer than reasonably expected -- even where the parties have made a good faith effort to establish realistic time estimates -- then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance.

[76] There is no doubt that a substantial portion of the delay in this case was caused by events at the preliminary inquiry. At the judicial pre-trial, prior to the preliminary inquiry, all parties agreed that the hearing could be completed in the time acquired. In hindsight, the record shows that even if one ignores W’s conduct, those estimates might have been optimistic and more time was required. Where a hearing goes longer than expected, even when parties have acted in good faith to establish realistic timelines, the delay is unavoidable and an exceptional circumstance: R. v. Jurkus, 2018 ONCA 489, 363 C.C.C. (3d) 246, at para. 55.

[77] However, no one can gainsay the impact of W’s conduct. Her attitude towards the defence, refusal to return to testify, and frequent illness significantly lengthened the preliminary inquiry.

[78] I reject the defence submission that W’s behaviour was a foreseeable event that the Crown could have prevented: there is no evidence that the Crown could predict that W would act as she did.

[79] These events fall within the definition of a discrete event, where things go “awry”: Jordan, at para. 73. Accordingly, I find the period of delay between 13 August and 5 November 2019 (the date on which the preliminary inquiry was to continue) to be a discrete event which must be subtracted from the total delay. This would bring the total delay to approximately 27 months.

[80] Moreover, it is clear the Crown took action when it realised that the applicants’ s. 11(b) interests were in danger of being breached: it preferred a direct indictment to fast track the case to the Superior Court of Justice. Had the Crown not done so, the case would have stayed at the Ontario Court of Justice until at least August 2020.

[81] The applicants also argue that much of the preliminary inquiry delay was caused by the conduct of the Crown.

[82] I disagree. On the contrary, I find the conduct of defence counsel at the preliminary inquiry hearing left a lot to be desired and had the potential to extend these proceedings well beyond what was necessary.

[83] The applicants submit that after the preliminary inquiry had begun, the Crown disclosed “important evidence of cell phone videos on W’s phone” which impacted the way in which she would be cross-examined. This evidence related to video extractions from W’s mobile phone. According to the applicant this was “significant and critical disclosure that appeared to have been withheld for a year”.

[84] The transcripts show that the video extractions were provided to the defence on 1 August 2019, with six and a half days of the preliminary inquiry remaining. Crown counsel at the preliminary inquiry (not Ms. Gharabaway) provided an explanation for why there had been difficulties in providing the videos: the original extraction contained irrelevant private data that could not be easily removed and new software was required to remedy the situation. However, by end of day, the videos had been disclosed. Notably, there was no request by the defence for an adjournment.

[85] The next day W’s cross-examination continued but, at the end of the day, counsel for Mr. Robinson (not Mr. Little) and Mr. Vickers re-raised the issue of disclosure stating they required additional witnesses to discern “when [the videos] could have been disclosed”. Counsel requested a judicial pre-trial to determine those additional witnesses. Suddenly, the preliminary inquiry had turned into an inquiry about disclosure.

[86] On 6 August 2019, after conducting the judicial pre-trial, and returning before Pringle J., counsel for Mr. Robinson (not Mr. Little) announced, without any prior notification, that she would be seeking to have the prosecuting Crown counsel testify at the hearing. Counsel for Mr. Robinson also sought to put W’s evidence “on hold” pending questions about disclosure and could not “rule out” the possibility of Crown counsel becoming a witness.

[87] In R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at paras. 36-37, Moldaver J. made clear that all justice participants must work together to prevent unnecessary delay. What is required is problem solving not problem creation.

[88] The Crown’s obligation to disclose is an ongoing one and requires that “disclosure be made as it becomes available and be completed as soon as is reasonably possible”: R. v. Girimonte (1997), 1997 CanLII 1866 (ON CA), 121 C.C.C. (3d) 33, at para. 17. Whilst there might be criticisms of how the disclosure was provided in this case, Crown counsel sought to explain them. By 6 August 2019, the defence had been in possession of the disclosure for almost six days. They could and should have pressed on with their cross-examination of W. Instead, they sought to do the opposite and applied to halt her testimony.

[89] If the defence had any issues with the timing of disclosure those were matters to be dealt with outside the scope of the preliminary inquiry. The defence could have inquired of the Crown if there was any further disclosure and collectively sought to resolve any issues outside the courtroom and prior to 6 August 2019. That is the type of action expected of counsel in the wake of a new necessary culture change: Jordan, at para. 138; Cody, at para. 36; Mallozzi, at para. 31.

[90] Unfortunately, these exhortations went unheard in this case. The preliminary inquiry had already thrown up testimonial and scheduling challenges. All parties, including the defence, were obliged to ensure the hearing was completed in a timely fashion. What the defence was not entitled to do was turn the preliminary inquiry into a forum inquiring “why” and “when” disclosure was provided. I repeat: this was a hearing which was already beginning to run out of control. What counsel were proposing was the elongation of the preliminary inquiry to hear from witnesses that could have had no effect on the outcome: whether there was sufficient evidence to commit the accused for trial.

[91] Most troublingly, the stated intention to potentially call Crown counsel at the hearing - it is unclear for what purpose - would have completely derailed the preliminary inquiry. I find it astonishing that counsel would only bring this to the attention of the Crown when they stepped back into court.

[92] Nor is there any explanation why the “disclosure inquiry” was being held in front of a preliminary inquiry judge who had no power to order any remedy, a fact that counsel had to be reminded of by Pringle J.

[93] The applicants are correct in pointing out that no additional witnesses or Crown counsel were ultimately called on the disclosure issues. This is because the preliminary inquiry judge correctly refused the defence request and the Crown ended the preliminary inquiry by preferring a direct indictment as encouraged by appellate authority: R. v. Bulhosen, 2019 ONCA 600, at paras. 88-91.

[94] It follows that I reject the applicants’ argument.

[95] I would add that had there been a delay caused by the defence requests, I would have concluded that it was defence induced delay on the basis that it constituted “marked inefficiency or marked indifference toward delay”: Cody, at para. 32.

Exceptional Circumstances: The Effect of the COVID-19 Pandemic

[96] No definite date can be fixed for the preferment of the direct indictment: the record shows that the Crown must have filed it between 10 February 2020 (when approval was given) and 30 March 2020 (when the first judicial pre-trial was held). The record also indicates that a Superior Court of Justice judicial pre-trial had been fixed by 9 March 2020 which indicates that the direct indictment must have been filed around that time.

[97] In early March 2020, the province of Ontario took measures to deal with the threat of the COVID-19 pandemic.

[98] On 15 March 2020, the Chief Justice of the Superior Court of Justice issued a “Notice to the Public and Profession” adjourning all criminal matters for any type of appearance from 17 March onwards to a new date of 2 June 2020. At the 9 March 2020 judicial pre-trial, Forestell J. informed counsel that no new dates would be set until June as the situation pertaining to jury trials was unknown. An email from the Crown indicates that Forestell J. would be “triaging” matters in June.

[99] The matter returned on 23 June 2020 when hearing dates were scheduled. Pre-trial motions were to be heard on 17 August 2020 with a six week jury trial set for 10 May 2021. The August 2020 dates were later vacated due to the unavailability of defence counsel.

[100] Nonetheless, no jury trials were held after March 2020 save for a small number which were completed in September and October 2020 before rising levels of COVID-19 forced the province, and the jury trial process with it, to shut down again.

[101] No one can dispute that the effects of COVID-19 constitute exceptional circumstances: R. v. Drummond, 2020 ONSC 5495, at para. 76; R. v. Simmons, 2020 ONSC 7209, at paras 59-60; R. v. Obregon-Castro, 2021 ONSC 1096, at paras. 38-39. Apart from a small time frame in September 2020 when the pandemic appeared to be in decline, there have been no jury trials in Toronto. The Superior Court of Justice has continued with virtual trials held in front of a judge alone.

[102] It is difficult to estimate, in pure numbers, the impact of the pandemic on the total delay in this case. Although it is clear that approximately three months (the delay from 30 March 2020 to 23 June 2020) is a more specific time period, it cannot be disputed that there was a “knock on” effect on other cases which also had to be re-scheduled or set for trial after other priority cases. The 2021 trial calendar has become congested to accommodate jury trials that had been set to start in and after March 2020, with new matters continuing to arrive from the Ontario Court of Justice.

[103] Confining the period of deduction to the initial time period of March to June 2020 - a three month estimate - would, in addition to the unexpected overrunning of the preliminary inquiry bring the total delay to 24 months, a period well within the Jordan ceiling. However, that is a more conservative estimate and I would find that the pandemic caused a more substantial delay of an even greater period. That period does not need to be specifically defined because, even without the additional time, exceptional circumstances justify the delay.

Exceptional Circumstances: Complexity of the Case

[104] In the alternative, I would also find exceptional circumstances in the complexity of the case.

[105] In Jordan, at para. 73, the Court described this exception as follows:

Particularly complex cases are 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. As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications; novel or complicated legal issues; and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case.

[106] Complexity “is an exceptional circumstance only where the case as a whole is particularly complex”: Cody, at para. 64. The case must be looked at from start to finish. As pointed out in R. v. Picard, 2017 ONCA 692, 137 O.R. (3d) 401, at para. 62, a case may be complex in the earlier stages and become more straightforward at trial. The reverse may also be true: a case may start off simple but become more complicated through the discovery of evidence and the addition of charges and accused.

[107] This appears to be what happened in this case, as the accused were originally charged separately and then joined on one information by the Crown. The case law is clear that complexity can arise from cases involving multiple accused: Jurkus, at para. 66; Pauls, at para. 52. As was made clear in Jordan, at para. 77, “ [p]roceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case.”

[108] The applicants complain that the Crown made the case more complex by adding Mr. Scanlan to the information. He, unlike the other accused, elected trial in the Superior Court of Justice forcing the others to follow suit before he absconded.

[109] I reject the applicants’ submissions on this point. Whilst the Crown must act reasonably and responsibly in complex cases with an eye on all accused’s 11(b) rights, there was every reason to join Mr. Scanlan with the others due to the factual nexus between all accused and the counts on the information. I also note that no severance application was made at any stage.

[110] At the start of the preliminary inquiry, the matter was on course to stay within the Jordan timelines. As noted, matters began to drift off course during the course of the preliminary inquiry. I have already indicated that, from my review of the record, it is clear that even absent the difficulties caused by W, the time required for the preliminary inquiry was underestimated. As the matter proceeded, it became clear further dates were required just to hear D’s evidence.

[111] I would also add that Mr. Scanlan’s failure to attend court and subsequent bench warrant was not the fault of the Crown.

[112] Nor, as I have previously discussed, did the Crown sit idle. When it became clear that delay was becoming a serious issue, it preferred a direct indictment to safeguard the applicants’ s. 11(b) rights.

[113] I have already discussed the applicants’ conduct at the preliminary inquiry at some length previously in these reasons. The words of Watt J.A. in R. v. Faulkner, 2018 ONCA 174, at para. 178, are apposite to this case:

On the other hand, case complexity is not a sole proprietorship, the exclusive business of the Crown. In this case, the appellant's approach to the litigation injected a degree of complexity to the proceedings that extended well beyond the usual requirements of proof.

[114] The manner in which the applicants approached the issue of the disclosure of W’s videos also added to the complexity of this case requiring additional judicial pre-trials, and taking up court time. Had the Crown not preferred the direct indictment, the preliminary inquiry threatened to go into the summer of 2020 partly because of the addition of witnesses sought by the defence regarding the disclosure issue.

[115] The applicants further argue that when Mr. Scanlan was finally apprehended and resolved his matters at the Ontario Court of Justice, the Crown should have agreed to returning the case to the Ontario Court of Justice by consenting to the conversion of the preliminary inquiry to trial and completing the matter in front of Pringle J. The applicants claim that when the matter first appeared at the Superior Court of Justice this was their proposal but it was rejected by the Crown.

[116] However, the record is not clear on this point. Email messages disclose that the issue was raised before Forestell J. at the first judicial pre-trial. At this hearing, the Crown and the applicants agree that concerns were expressed about returning to the Ontario Court of Justice by both sides. The Crown’s caution arose from Pringle J.’s comments about W’s conduct and the threat of holding her in contempt. Counsel for Ms. Horton expressed unease that Pringle J. had taken Mr. Scanlan’s guilty plea and indicated that he needed to review a transcript of that hearing. These were legitimate concerns and neither side can be criticised for their position.

[117] That being said, in s. 11(b) terms, the only way in which delay would have been reduced is if Pringle J. had been to complete the trial. It is far from certain that this would have happened given the disquiet expressed at the judicial pre-trial.

[118] The complexity of the case is further reflected in the fact that there were seven judicial pre-trials in the Ontario Court of Justice in addition to a further six when the case arrived at the Superior Court of Justice.

[119] Moreover, this case has a number of pre-trial motions relating to evidentiary issues including:

• Section 276 applications in relation to both W and D

• Section 8 applications, requiring viva voce evidence, relating to the mobile phone belonging to Ms. Horton including:

• the need to report to justice,

• the timeliness of extracting the data

• the facial validity of the authorising warrant

• The application of the co-conspirator’s hearsay rule

• The adjudication of whether W is able to testify by video link

• The Crown’s application to adduce discreditable conduct

[120] I also agree that the extraction of the mobile phone information added a layer of complexity to these proceedings with redaction issues and review of thousands of pages of messages and other information. There was clearly voluminous disclosure which was ongoing throughout the process.

[121] It is also worth remembering that an 11-day preliminary inquiry took place in these proceedings which was still not enough to complete the matter in the Ontario Court of Justice. Finally, all parties agree that six weeks are required to complete the trial. Like the court in R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, which reviewed a case with similar features, I find this to be a complex case, the circumstances of which justify delay above the ceiling.

[122] For these reasons, the application is dismissed.

S.A.Q. Akhtar J.

Released: 31 March 2021

COURT FILE NO.: CR-20-10000202-0000

DATE: 20210331

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DAYLO ROBINSON, REBECCA HORTON AND TYLER VICKERS

REASONS FOR JUDGMENT