COURT FILE NO.: CR-18-1980-00
DATE: 2021 05 21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Greg Hendry for the Crown Respondent
- and –
Jonathan Williams
Peter Kott and Adam Romain for the Applicant
HEARD: February 8, 2021
SECTION 11(B) CHARTER RULING
RESTRICTION ON PUBLICATION
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
D.E HARRIS J.
[1] The Applicant argues that his constitutional right to a trial within a reasonable time protected by Section 11(b) of the Charter of Rights and Freedoms has been violated and the proceedings should be stayed under Section 24(1).
[2] The Applicant is charged with three commodification of sexual activity charges and one count of threatening. His trial has been elected to be a jury trial and thus has been repeatedly delayed since the onset of the pandemic in March, 2020. The trial is presently scheduled for July 26, 2021 but that is dependant on jury trials resuming by then. The total delay to the expected time of trial is thus far about 61 months, well over the 30 month Jordan presumptive threshold. The parties agree that certain time periods, including time attributable to the pandemic, constitute exceptional circumstances and should be subtracted from the total. However, they disagree over other time periods and what time ought to be attributed to defence delay. The Applicant argues that the operative delay exceeds the threshold or, in the alternative, that the trial has taken much longer than is justified. Either conclusion should lead to a stay of proceedings.
[3] This ruling will focus on the disputed time periods of delay. In R. v. Jordan 2016 SCC 27, [2016] 1 S.C.R. 631 (S.C.C.) the majority said at para. 111:
… the new framework reduces, although does not eliminate, the need to engage in complicated micro-counting. … A framework that is simpler to apply is itself of value: "... we must remind ourselves that the best test will be relatively easy to apply; otherwise, stay applications themselves will contribute to the already heavy load on trial judges and compound the problem of delay" (Morin, per McLachlin J., at p. 810).
[4] This approach is particularly pertinent in our resource challenged Central West Region where the judicial load is often overwhelming: see R. v. Ny, 2016 ONSC 8031, 343 C.C.C. (3d) 512 (Ont. S.C.J.) at para. 46; R v. Simonelli, 2021 ONSC 354 (Ont.S.C.) at para. 98.
[5] To briefly restate the Jordan analysis as outlined at paragraphs 46 to 48 of that judgment, first the “total delay” from charge to the end of the trial must be calculated. Next, “defence delay” periods are identified. Total delay minus defence delay leads to a figure of “net delay.” If net delay for a case with a preliminary hearing, like this one, exceeds 30 months, the delay is presumptively unreasonable. The presumption can only be rebutted by the presence of “exceptional circumstances.” Exceptional circumstances include “discrete events”-events that could not reasonably have been foreseen and, in addition, includes particularly complex cases. If there are exceptional circumstances of either of these two types, the pertinent time periods should be deducted. If the sum is under 30 months, Section 11(b) is not violated unless it took unreasonably long to complete the trial and the defendant made strong and consistent efforts to expedite it. If above 30 months, Section 11(b) has been violated. Although a transitional approach could apply, in this instance the charge was laid only three months before Jordan came out. Neither side made a transitional argument.
[6] There are six main areas of dispute in which the Crown argues either defence delay or exceptional circumstances and the Applicant opposes both characterizations, arguing that the delays should count towards the 30 month ceiling. I will go through each chronologically and consider exceptional circumstances and defence delay together.
Adjournment of preliminary inquiry to first continuation dates (April 29, 2017 – September 11, 2017)
[7] It is agreed that the time from the laying of the information until the scheduled end of the preliminary hearing (April 20, 2016 to April 28, 2017: 12 months, 8 days) counts towards the Jordan ceiling. The preliminary hearing was scheduled for three days--April 26-28, 2017--but was not completed on time. For the failure to complete the preliminary hearing, the Crown puts the responsibility on the Applicant for unreasonably long cross-examination of the complainant. The Applicant argues that the problem was with inadequate disclosure.
[8] It is true there were disclosure issues raised on the first scheduled day of the preliminary inquiry which delayed the start of the evidence. When the matter was called at 10:30 a.m., the Crown told the court that there had been a preparation meeting with the complainant two days before which resulted in new disclosure which had immediately been forwarded to defence counsel. In addition, the defence had forwarded a letter with additional disclosure requests. The Crown said that the disclosure items in the letter were not relevant to the preliminary inquiry but she wanted to discuss the matter with defence counsel. That letter is included in the record for this application and fully supports the Crown’s characterization. The Crown told the judge that the complainant was the only witness. The preliminary hearing judge said that the three days set aside would not likely be necessary.
[9] Upon returning to court at about 11:20 a.m., the Crown indicated that there may have been some more information that had not been disclosed yet. There were text messages from the complainant which had not been previously disclosed. There was an audio recording and a DVD recording from the complainant in relation to the text messages. The preliminary hearing judge asked how long the complainant would be in-chief. The Crown answered three-quarters of day. When asked about cross-examination, defence counsel said there were a number of substantial issues and that was why the matter was scheduled for three days. Eventually, after expressing some concern about potentially coming back for continuation in September and noting that she was away the month of June, the preliminary hearing judge, despite counsel’s reluctance, directed that the evidence start in the afternoon.
[10] The complainant commenced her examination in-chief at 2:15 p.m. on the first day. On the next day, due to both counsel wanting to listen to audio recordings of the complainant’s statement, the evidence did not resume until 12:00 p.m. Defence counsel was content to go ahead despite not having reviewed all of the new disclosure. The complainant’s in-chief was completed after lunch and cross-examination commenced at 3:30 p.m. The next and last day of the preliminary hearing, April 28, 2017, was taken up exclusively with the cross-examination of the complainant. The preliminary hearing did not finish that day and new dates had to be chosen of September 11 and 12, 2017.
[11] The defence claims the full 4 months and 16 days of this delay period from the end of the three days scheduled for the preliminary hearing to the new dates; the Crown says none of it should count.
[12] I would characterize the inability to complete the preliminary inquiry in the three days scheduled as a combination of exceptional circumstances and defence delay. The disclosure issues that arose were last minute ones arising from the preparation meeting and in addition, some were issues that did not impact on the preliminary inquiry and should not have delayed the proceedings. On the record before me, I cannot place the fault on the Crown for tardy disclosure. I do not know whether the audio recordings listened to on the second day of the preliminary hearing arose from the preparation meeting or from some other event.
[13] The judge played a positive role in pushing counsel along to call the complainant’s evidence. Counsel ought to have been more cognizant of the importance of getting the preliminary hearing evidence completed as a clear priority over the disclosure issues. This was a preliminary hearing, not a trial. See by analogy R. v. Kovacs-Tatar, 2004 CanLII 42923 (ON CA), [2004] O.J. No. 4756, 124 C.R.R. (2d) 164, 192 C.C.C. (3d) 91 (Ont. C.A.) at para. 47.
[14] The disclosure issues arising from the preparation interview of the complainant and then continuing into areas of further disclosure were not foreseeable. If the defence had been eager to get the preliminary hearing heard in the 3 days scheduled, more could have been done to ensure the evidence was heard. In the final analysis, in my view, the relatively minor disclosure issues were a discrete event as they were unforeseeable.
[15] The delays as a result of disclosure put an additional responsibility on the Applicant to conduct a focused cross-examination to ensure that the preliminary hearing would be completed in the allotted time. That did not occur. The overextended cross-examination played a major role in the preliminary inquiry not ending on April 28, 2017. In total, the cross-examination went for an hour the second day, the full third day, and then two additional days in February, 2018. The total is over three days.
[16] I have no hesitation concluding that the cross-examination was too long. Cross-examination of the complainant for over three days at a preliminary inquiry—particularly when the examination-in-chief was about four hours in total—was clearly inordinate. Although cross-examination by the defence at trial is sacrosanct, an accused is not in jeopardy at a preliminary hearing. Different standards apply then in the context of a trial. I agree with the Crown that the defence ought to have informed the court and the Crown that an unusual amount of time for cross-examination was needed. Instead, defence counsel dodged the judge’s question. If the judge had known, she would likely have taken an even less forgiving approach to the delay caused by disclosure issues.
[17] In my view, none of the delay caused by not completing the preliminary inquiry on schedule ought to count towards the ceiling.
Adjournment of preliminary inquiry due to the Illness of the Judge (September 11 2017 to February 2, 2018)
[18] Before the preliminary hearing could continue on September 11 and 12, 2017, the judge unexpectedly went on medical leave and new dates had to be selected. While she was supposed to return October 31, 2017, her continuation dates were not being scheduled until December 14, 2017. In my view, there had to be some allowance given to allow the judge to get back into the stream of the cases that were adjourned because of her illness. Some backlog was bound to have accumulated. Time to clear a portion of this backlog is encompassed by the exceptional circumstances discrete event category.
[19] The defence had dates in November but the preliminary hearing judge was not yet available after her illness. The Court and Crown were available December 4-5, 11-12, 2017 and January 23-24, 2018. The defence were not available those dates but offered December 27-28, 2017 and January 30-31, 2018. Defence and Crown finally settled on February 1 and 2, 2018. The period from when the defence was available but the Court or the Crown were not--December 27, 2017 to January 22, 2018--a period of 26 days, ought to count towards the ceiling. The defence was not available after January 22, 2018 until February 1, 2018 and so this part of the delay is attributable to the defence.
[20] The cross-examination of the complainant continued on February 1, 2018. In my view, the period of time between September 11, 2017 and February 2, 2018, with the exception of the 26 days mentioned above, was attributable to the judge’s illness, a discrete, unforeseeable event, and does not contribute towards the 30 month Jordan ceiling.
Continuation of preliminary inquiry to first appearance in Superior Court (February 2-April 20, 2018)
[21] On February 2, 2018, the cross-examination of the complainant continued. With respect to the arguments for committal, it appears from a comment by defence counsel that the Crown would have been content to argue committal right then and there. But the Crown acquiesced in what I infer was a request by the defence to garner other dates from the trial co-ordinator. Perhaps his arguments were not yet organized to make committal submissions. The matter went over to February 6, 2018. Counsels’ dates were canvassed and no time could be found. It was ultimately agreed that counsel would make written submissions and that the trial judge would rule on April 3, 2018.
[22] The submissions were filed according to a timetable agreed upon by counsel and the judge. In an oral ruling on April 3, 2018, the Applicant was committed to trial on all counts. The first appearance in Superior Court was April 20, 2018. It is agreed that this 16 days in between the two events counts towards the ceiling.
[23] The defence request to canvass other dates for the committal argument and the request not to argue committal on February 2, 2018 were delays caused solely by the defence. The Crown was content to argue committal on February 2, 2018. The judge would have ruled that day or soon thereafter. The two months from February 2, 2018 to April 3, 2018 should be subtracted as defence delay.
Adjournment due to Mr. Romain's illness and the Complainant's pregnancy (March 11-December 2, 2019)
[24] A trial date of October 1, 2018 for two weeks was set at the first appearance. Defence counsel was unavailable for trial at that time but would not waive Section 11(b). It is agreed between the parties that the time from April 20, 2018 to October 16, 2018—the estimated conclusion of the trial—counts towards the ceiling. There was a judicial pretrial held in the summer and, because defence counsel was still unavailable for October 1, 2018, it was agreed that the October 1, 2018 date would have to be vacated. The Crown and the court were available on a number of dates in the fall and early new year but defence counsel’s first availability was March 11, 2019. That date was set for trial. It is agreed that the time between October 16, 2018 and March 11, 2019 is defence delay.
[25] On March 7, 2019, defence brought an application to adjourn the trial due to his illness. It was adjourned on consent with the expectation that pre-trial motions could be commenced soon after the original March 11, 2019 trial date. Another issue which came up at the same time was the fact that the complainant was pregnant. A doctor’s note was produced at a subsequent court appearance in March. It stated that the complainant was 14 weeks pregnant, due in early September. The note recounted that she told the doctor that during the preliminary hearing, she was very anxious and was not sleeping properly. She was scared depressed and hurt. While she was willing to testify at the trial in March because she was early in her pregnancy, now that the trial had been postponed, she was worried about the health of the baby. The doctor noted that she was extremely nauseated, as she had been during her last pregnancy, and was on drugs to control it. Stress, the doctor noted, was a factor in pregnancy and inquired whether the court would consider postponing the trial. The doctor was unsure whether the complainant could be in court for 2-4 days. The Crown’s position, as a result, was that the complainant would not be available until after giving birth, on October 28, 2019. Justice Durno agreed. Eventually a date of December 2, 2019 was set for trial.
[26] The defence argues forcefully that the complainant’s pregnancy does not constitute an exceptional circumstance. The time from May 7, 2019 when the defence was available to November 12, 2019 when he was no longer available, should count towards the ceiling. The defence attacks the note as not being from a specialist or expert but rather from a walk-in clinic. Counsel says it is double hearsay. There was no indication that the complainant was at risk of losing the baby. The medical opinion from the doctor did not elaborate on the risk. The nausea and anxiety, so argued Mr. Kott, were not exceptional.
[27] Counsel was out on quite a limb making these submissions. There are a number of fallacies. One error is that it unduly minimized the complainant’s symptoms. A constant feeling of nausea is debilitating for anyone. The idea that stress was a factor in the pregnancy and could have had a detrimental effect is uncontroversial. It was implicit that there could have been a risk to the mother and the baby, albeit not to the extent seen in some pregnancies. And perhaps most of all, the argument completely ignored the context. Testifying at length for a non-professional witness in a criminal trial can be a gruelling experience. It had been for the complainant at the preliminary hearing where she testified for over three days. It was reasonable to expect that testifying at trial would be at least as long and as arduous. This was not going to be a short, easy time on the witness stand.
[28] Exceptional circumstances must be viewed in the context of the culture of complacency. Would acting on this doctor’s note and its content be indicative of a lax attitude towards delay? Clearly not. The note was adequate although it certainly could have been more detailed and specific. Testifying for three days in a courtroom while suffering from anxiety and nausea is not to be lightly dismissed. Pregnancy for some women is a frightening, difficult experience. I need not wax on about the importance of healthy pregnancies to our social fabric.
[29] The defence relies on the example in Jordan of “medical or family emergencies” as demonstrating that this could not have been an exceptional circumstance. Surely, the purpose there was to cite an obvious example. It is unnecessary to go this far. The complainant’s pregnancy was unquestionably an exceptional circumstance under Jordan.
[30] The exceptional circumstance extended at the least to early October, 2019. After giving birth in early September, the complainant would need at least a month before being in a condition to testify: R. v. Curry, 2016 BCSC 1435, [2016] B.C.W.L.D. 6543 (B.C.S.C.) at paras. 75-76. None of this time period ought to count towards the 30 month ceiling. The approximate one month from early October, 2019 to November 12, 2019 counts towards the ceiling as the defence was able to go ahead but the Crown or Court were not available. Both parties agree that that time from November 12 until the December 2, 2019 trial date was defence delay.
Mistrial to New Trial Date (December 2, 2019 to March 2, 2020)
[31] I was the trial judge in the first trial. The trial was set for three weeks to commence December 2, 2019. Pre-trial motions and the selection of a jury took place between December 2 and December 9, 2019, consuming the first week of the trial.
[32] On December 10, 2019, I declared a mistrial: R. v. Williams, 2019 ONSC 7525 (Ont.S.C.) A new trial was immediately scheduled for March 2, 2020. The defendant claims all of the delay from December 2, 2019 to the new trial date as delay counting towards the ceiling. The Crown says that it was attributable to the defence.
[33] The issue which led to the mistrial concerned evidence of the sexual history of the complainant. The record on this application indicates that the issue had come up originally at the preliminary inquiry on April 27, 2017 and again on February 1, 2018. The defence wanted to delve into the sexual relationship between the complainant and the accused. Mr. Romain did not see any Section 276 issue. He wanted, amongst other things, to ask whether a condom was used when the two had sexual relations. The Crown objected to this question. Eventually, the judge and counsel agreed that because the offences charged were not listed in Section 276, the sexual offence shield provisions did not apply. However, the Crown maintained her objection to the questioning under the usual rules of evidence based on a lack of probative value.
[34] Once the case moved to the Superior Court, on July 16, 2018, consistent with her position at the preliminary inquiry, Ms. Prenger for the Crown wrote on the Crown's Pre-Trial Conference Report (Form 17),
Section 276 does not apply to these charges--there is no enumerated offence. However, if defence cross-examination questions go towards the twin myths or collateral info, then the Crown will assert the evidence sought is either irrelevant or collateral.
[35] During the trial in front of me, on the evening of December 6, 2019, during the pre-trial motions, the Crown wrote an email to the defence which warned, contrary to the Pre-Trial Form, that based on R. v. Barton, 2019 SCC 33 (S.C.C.), only sexual activity which fell within the scope of the charges was admissible.
[36] Although it was not transcribed for this application, the issue between counsel was raised before me on December 9, 2019, just moments before the jury was to enter and the trial at large was to begin, Ms. Prenger for the Crown raised the concern that the defence would be delving into the complainant’s sexual history. Submissions were heard on the issue. Neither counsel, for reasons which were not explained, brought to my attention the judicial Pre-trial Form in which the Crown had disclaimed the applicability of Section 276.
[37] As summarized in my mistrial ruling, the Crown argued that the Supreme Court judgment in Bartonwas applicable to the proposed sexual history questioning. Barton, which was released on May 24, 2019 after the preliminary hearing and the filing of the Crown Pre-trial Conference Form, held that even if sexual offences are not charged, if sexual offences are connected to the allegations in the indictment, Section 276 may still apply: Barton, para. 75. In Barton, the murder allegations involved intentionally or recklessly causing death in the course of a sexual assault.
[38] In summary, there were two issues presented on December 9, 2019: 1. Did Section 276 apply?; and 2. Even if Section 276 did not apply, would sexual history evidence nonetheless still have to be vetted? The Crown had implied this on her Pre-trial Form, saying that questions going to twin myth reasoning may be irrelevant. This invoked the common law admissibility issues with respect to sexual activity outside the scope of the indictment but in a non-Section 276 context as referred to generally in R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577, 66 C.C.C. (3d) 321 (S.C.C.) and reiterated in Barton at para. 80.
[39] The Crown’s position is likely correct that, whether or not Section 276 applied, this was not an area in which questioning could proceed with no prior judicial oversight. The questions themselves, quite apart from the answers, could be inflammatory, draw on twin myth reasoning and consequently be unfair both to the complainant and the Crown.
[40] However, on the Section 276 point, there can be no doubt that the Crown ought to have signalled to the defence that her position had changed since submitting the Pre-trial Form. Furthermore, it was necessary in my view, both to properly assess whether Section 276 applied, and, if not, whether the specific questioning proposed was proper under Seaboyer principles, to know what questions the defence contemplated asking the complainant in cross-examination: see paras. 17-19 of the mistrial ruling.
[41] On December 9, 2019, immediately upon the Crown raising the Section 276 issue, I asked the defence what questions the defence intended to ask the complainant that might stray into sexual activity outside the scope of the indictment. As recounted in the mistrial ruling, for reasons that remain unexplained and are ultimately inexplicable, the defence was unable or unwilling to do so. The defence had overnight to formulate the general areas that they intended to delve into. That was plenty of time. The only reason I could imagine for the defence’s unacceptable recalcitrance was that they believed it to be impermissible, reverse defence disclosure. That position is erroneous in law. It also displayed intolerable defiance of a judicial order during an ongoing jury trial.
[42] As a result of the Section 276 issue being raised at the last minute and the refusal of the defence to articulate the sexual history questions they intended to ask, the mistrial was declared. One week of the three week trial had already been expended. I would note that there was considerable defence prolixity with a police witness who had a minor role to play in gathering several hotel registrations which the defence had sought to exclude under the Charter. This did not bode well for the completion of the trial.
[43] The jury had been chosen at the beginning of the trial and had already been waiting for several days. It appeared as though there would be a substantial delay caused by addressing the Section 276 issue and defence cross-examination. The Christmas holidays were swiftly approaching. The same day as the mistrial was declared, the trial was put into assignment court and rescheduled for March 2, 2020.
[44] The Section 276 issue was ultimately argued before Justice Stribopoulos on January 6, 2020. A week later, Justice Stribopoulos dismissed the Crown’s argument that Section 276 applied: R. v. Williams, 2020 ONSC 206, 64 C.R. (7th) 226 (Ont. S.C.). The defence in the course of the legal argument had finally agreed to specify what questions they planned to ask of the complainant in reference to her sexual history: see Williams, paras. 12-14. It is clear that there was nothing particularly complex or obscure about the questions. It could not have taken anymore than a few hours for the defence to formulate and present them.
[45] In my opinion, there was contributory responsibility between the Crown and defence for the problem encountered at the trial. The front page of the Pre-Trial Conference Report, Form 17 governed by the Criminal Proceedings Rules for the Superior Court of Justice (Ontario) — Can. Reg. SI/2012-7, required the Crown in accordance with Rule 28.04(11) to give written notice of any change of a position taken on the form. This was not followed. If it had been, time to argue the Section 276 argument would have been set aside well before the trial and the entire imbroglio would have been avoided.
[46] In addition, if the defence had articulated the questions about sexual history they wished to delve into, it could have assisted in potentially enabling the summary dismissal of the Crown’s argument that Section 276 applied. This Crown argument was weak on the facts of the case. Also, based on my recollection, as no transcript was provided of the proceedings on December 8 or 9, 2019, a more focussed Crown argument attempting to bring the facts in this case into the narrow Barton exception, would have been helpful. This would have facilitated arriving at the undoubtably correct conclusion that Section 276 did not apply as Justice Stribopoulos later held.
[47] There is some obiter in the post-Jordan jurisprudence to support dividing delay responsibility between the Crown and the defence: R. v. S., 2019 ONCA 895, 148 O.R. (3d) 369 (C.A.) at para. 68. In this instance, the defence responsibility was based on deliberate, defiant conduct. The Crown’s failure was likely an honest, albeit quite serious and consequential error. It is the Crown’s error which contributed more significantly to the delay. In this situation, I would allocate three-quarters of the ensuing delay to the Crown and one quarter to the defence.
[48] The approximately three months from December 2, 2019 to the next trial date of March 2, 2020 should therefore count 69 days towards the Jordan ceiling.
New Trial Date to Future Date (March 2, 2020 to July 26, 2021)
[49] Justice Stribopoulos, after holding in mid-January 2020 that Section 276 did not apply, invited submissions on whether the common law rules should be developed to conform with the current realities and whether, like the Section 276 regime (see Section 278.94(2) of the Criminal Code) complainants must be provided legal counsel to assist them in the adjudication of the admissibility of their sexual history evidence. This was a complicated issue. Ultimately, Stribopoulos J. chose not to follow Dennison J.’s view that counsel ought to be provided (see R. v. M.D., 2020 ONSC 951 (Ont. S.C.J.)): see R. v. Williams, 2020 ONSC 6347 (Ont. S.C.J.). On account of his schedule and more importantly, the onset of the pandemic, this ruling was released on October 20, 2020.
[50] The time from March 2 to March 13, 2020 while waiting to argue and determine the question of whether the complainant should have counsel for the question of the admissibility of the sexual activity evidence was, in my view, an exceptional circumstance and ought not to be included in the total towards the ceiling.
[51] On March 13, 2020, a state of emergency was declared in Ontario as a result of the pandemic. The pandemic is inarguably an exceptional circumstance under Jordan: see R. v. Walker, 2020 ONSC 8153 (Ont.S.C.) at paras. 42-43; R. v. Gutierrez, 2020 ONSC 6810 (Ont.S.C.) at para. 19; R. v. Simmons, 2020 ONSC 7209 (Ont. S.C.) at para. 60; R. v. Khattra, 2020 ONSC 7894 (Ont.S.C.) at paras. 56, 62.
[52] There have been very few jury trials since March 13, 2020 as a consequence. The delays since March 13, 2020 have subsumed the other reasons for delay. The Applicant’s jury trial could not have been held due to the pandemic. All of this delay is unforeseen and exceptional. None of it counts towards the ceiling.
CONCLUSION
THE UNCONTESTED TIME PERIODS
[53] The uncontested delay periods are as follows:
- April 20 2016 to April 28, 2017 (12 months, 8 days):
laying of information to scheduled completion of the preliminary inquiry.
- April 3, 2018 to April 20, 2018 (17 days):
From committal to first appearance in Superior Court.
- April 20, 2018 to October 16, 2018 (5 months, 26 days):
First appearance in Superior Court to anticipated conclusion of trial.
- Early October to November 12, 2019 (one month):
The complainant was able to testify after giving birth but the Court or Crown were not available.
THE CONTESTED TIME PERIODS
[54] As discussed above and for the reasons stated, I would add the following contested delay periods going towards the Jordan ceiling.
- December 27, 2017 to January 22, 2018 (26 days):
Continuation dates for the preliminary hearing when the defence was ready but the Crown and Court were not.
- December 2, 2019 to March 2, 2020 (three-quarters of three months=69 days):
Mistrial to the new trial date.
[55] The total delay after the subtraction of defence generated delay and exceptional circumstances is 18 months and 146 days. Converting the days into months (see R. v. S., footnote 2) and rounding up slightly, equals 5 months. The total then is 23 months, well under the 30 month Jordan ceiling.
[56] I am not persuaded that this delay nonetheless constitutes a breach of Section 11(b). There were not consistent, regular efforts by the defence to take meaningful steps to expedite the trial. By and large, with a few minor exceptions, the defence did not appear anxious to have a speedy trial. Nor does the time which has elapsed markedly exceeded that which, in the context of our jurisdiction, was reasonably required: see Jordan paras. 82-91.
[57] The application is dismissed.
D.E HARRIS J.
Released: May 21, 2021
COURT FILE NO.: CR-18-1980-00
DATE: 2021 05 21
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
JONATHAN WILLIAMS
SECTION 11(B) REASONS FOR JUDGMENT
D.E HARRIS J.
Released: May 21, 2021