COURT FILE NO.: CR-20-122 DATE: 2022/03/18

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – CHAD VALIQUETTE Defendant

COUNSEL: M. Crystal and L. Annisette, for the Crown G. Clark, for the Defendant

HEARD: February 24, 2022

PUBLICATION RESTRICTION NOTICE

By court order made under subsection 539(1) of the Criminal Code, the evidence taken at the preliminary inquiry shall not be published in any document or broadcast or transmitted in any way until the trial has ended. These reasons have been edited so that they may be published.

REASONS FOR DECISION ON APPLICATION UNDER SECTIONS 11(B) AND 24(1) OF THE CHARTER OF RIGHTS AND FREEDOMS

Ellies R.S.J.

OVERVIEW

[1] The defendant is accused of assaulting and sexual assaulting the complainant, M.C. He applies under ss. 11(b) and 24(1) of the Charter of Rights and Freedoms to stay the charges on the basis of delay.

[2] The application raises two particularly challenging issues about how to characterize the delay arising from certain defence requests to adjourn. One relates to delay that arose when the defence wanted to await the result of an appeal being heard in the Ontario Court of Appeal. The other relates to delay that arose when the defence ran into problems with Legal Aid Ontario.

[3] For the following reasons, I would deduct the delay resulting from these adjournments, and others, from the total delay, with the result that the application is dismissed.

THE TOTAL DELAY

[4] The defendant was arrested on September 26, 2018, in connection with these offences. The Information was sworn the next day, on September 27, 2018, and he was released the same day.

[5] The trial is scheduled to begin on May 9, 2022, and will end by May 20, 2022, at the latest.

[6] By the time the trial ends, 1331 days, or 43 months and 23 days, will have passed since the Information was sworn. [^1] This significantly exceeds the ceiling of 30 months set in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. However, as I will explain, over 15 months of the delay was caused by the defence and by exceptional circumstances, reducing the remaining delay below the ceiling.

THE ANALYTICAL FRAMEWORK

[7] The most succinct summary of the Jordan framework that I have seen was provided by Gillese J.A. in R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433. I can do no better than to set out the relevant portions from her decision, at paras. 34 to 50:

A. The New Framework Summarized

34 Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).

35 Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).

36 Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).

37 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). 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).

38 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 (Jordan, para. 75).

40 If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).

B. Key Elements in the New Framework

(1) Defence Delay

42 Defence delay has two components: (1) that arising from defence waiver; and (2) delay caused solely by the conduct of the defence (“defence-caused delay”) (Jordan, paras. 61 and 63).

43 Waiver can be explicit or implicit but, in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights (Jordan, para. 61).

44 Defence-caused delay is comprised of situations where the acts of the defence either directly caused the delay or are shown to be a deliberate and calculated tactic employed to delay the trial. Frivolous applications and requests are the most straightforward examples of defence delay (Jordan, para. 63). Where the court and the Crown are ready to proceed but the defence is not, the defence will have directly caused the delay (Jordan, para. 64).

(2) Exceptional Circumstances

45 If the Net Delay exceeds the presumptive ceiling, the onus is on the Crown to rebut the presumption of unreasonableness based on the presence of exceptional circumstances.

46 Exceptional circumstances lie outside the Crown’s control in that: (1) they are reasonably unforeseen or reasonably unavoidable; and (2) Crown counsel cannot reasonably remedy the delays emanating from the circumstances once they arise. Such circumstances need not be rare or entirely uncommon (Jordan, para. 69).

47 An exceptional circumstance is the only basis upon which the Crown can discharge its burden to justify a Net Delay that exceeds the ceiling. The seriousness or gravity of the offence cannot be relied on. Nor can chronic institutional delay or the absence of prejudice to the accused (Jordan, para. 81).

48 The list of exceptional circumstances is not closed but, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

(a) Discrete Events

49 An illustration of a discrete event that will generally qualify is a medical or family emergency on the part of the accused, important witnesses, counsel or the trial judge (Jordan, para. 72).

50 The period of delay caused by any discrete event must be subtracted from the Net Delay for the purpose of determining whether the presumptive ceiling has been reached. However, any portion of the delay caused by a discrete event that the Crown or system could reasonably have mitigated may not be subtracted (Jordan, para. 75).

ANALYSIS

[8] I do not propose to set out the entire history of this matter, appearance by appearance. Like many s. 11(b) applications, whether the delay meets or exceeds the Jordan ceiling comes down to how a few specific events in the history of the case are characterized.

[9] I recognize that Jordan requires the court to first consider defence delay and then to consider exceptional circumstances. In this particular case, however, I believe that it would be helpful to consider these events in chronological order and then to perform the analysis in the order contemplated in Jordan.

[10] But before I can move on to the events in issue in this case, I must deal with an argument advanced by Mr. Clark on behalf of the defendant that raises a conceptual issue relating to applications under s. 11(b).

The “But-for” Argument

[11] Although it was not pressed in oral argument, in several places in the defendant’s factum, Mr. Clark submitted that, but for the occurrence of certain events early in the history this matter, later events would not have transpired. For example, Mr. Clark submitted that, but for the preliminary inquiry not proceeding on the first two occasions upon which it was scheduled to proceed in 2019, the entire matter would have been completed before the pandemic became an issue in 2020: para. 77.

[12] With respect, this argument reflects a fundamental misunderstanding of the principles underlying the decision in Jordan.

[13] A criminal case is not like an asteroid hurtling through outer space. The Jordan framework is premised on the notion that, unlike an asteroid that has been bumped off course by a random collision with another object, the trajectory of criminal cases is controlled and can be corrected. Based on this notion, the nature of each delay-causing event must be considered. Otherwise, the characterization of delay would depend only on the nature of the first event to bump the case off course.

[14] Of course, this works both ways. If, for example, I was to find that the first adjournment of the preliminary inquiry in this case was caused by a discrete event and was, therefore, an exceptional circumstance, based on the “but-for” concept of causation most, if not all, of the delay thereafter would be deducted from the net delay. Fortunately, that is not how it works. Instead, the delay caused by each event must be assessed, characterized, and analyzed according to the principles in Jordan.

[15] I turn now to that task.

Adjournment of the Preliminary Inquiry on June 21, 2019

[16] The preliminary inquiry in this case was first scheduled to take place on June 21, 2019. However, on June 14, 2019, the Crown served notice that it would be seeking an adjournment. On June 18, 2019, the parties appeared before a judge of the Ontario Court of Justice (the “Ontario Court”). The Crown advised the judge that the complainant would be unavailable on June 21 because she would be “involved” with National Indigenous Peoples Day at that time. Counsel for the defendant, Mr. Clark, took no position on the request, but noted for the record that he was not waiving the delay on behalf of his client. The adjournment was granted. The preliminary inquiry was eventually rescheduled to August 8, 2019.

[17] The Crown submits that the adjournment request should be characterized as a discrete event and that the delay resulting from the adjournment should be deducted from the total delay. I cannot agree.

[18] The Crown has the onus of proving that an event is an exceptional circumstance: Jordan, para. 68. As set out above, an exceptional circumstance is something unforeseeable or unavoidable and beyond the Crown’s ability to mitigate. There is no evidence before me beyond the statement that was made by the Crown to the judge who granted the adjournment on June 18 and a similar statement contained in the notice. Ordinarily, the Crown is expected to know when its witnesses will be available at the time a date is set. In the absence of some evidence that the situation changed at some point between setting the date for the preliminary inquiry and filing the adjournment notice, as well as the extent to which the complainant was involved in the celebration on June 21, there is no basis to conclude that this was something unforeseeable, unavoidable, or beyond the Crown’s ability to mitigate.

[19] Therefore, in my view, the delay between the date the preliminary inquiry was to be held (June 21, 2019) and the date to which it was rescheduled (August 8, 2019) should be included in the total delay.

Adjournment of the Preliminary Inquiry on September 17, 2019

[20] On August 8, 2019, the preliminary inquiry was again adjourned. The Crown accepts that the delay caused by this adjournment should be included in the total delay. I agree. The Crown in attendance on August 8 specifically stated on the record that the Crown was responsible.

[21] The preliminary inquiry was again rescheduled, this time to September 17, 2019. Unfortunately, that morning, Mr. Clark received a threat to himself and his family via telephone. As a result, he was unable to conduct the preliminary inquiry that day and the matter was adjourned to September 24 to set a new date.

[22] The Crown and the defence agree, as do I, that this adjournment should be characterized as a discrete event, one of the exceptional circumstances that requires the court to deduct the delay caused by the adjournment from the net delay. However, for reasons I will now explain, the amount of the delay was minimal: from September 17 to September 25, 2019.

Adjournments to Await the Decision in *R. v. R.S.*

[23] Two days after the September 17, 2019, preliminary inquiry was to have been held, amendments to the Criminal Code, R.S.C., 1985, c. C-46, came into force. Those amendments had the possible effect of disentitling the defendant to a preliminary inquiry. However, the amendments did not include any transition provisions dealing with cases like this one in which a defendant had already elected to have a preliminary inquiry at the time the amendments came into effect. This led to uncertainty in the law and a debate between the Crown and the defence bar. To avoid that debate, the Crown and the defence in this case had arranged to have the preliminary inquiry take place before the amendments came into force. The adjournment on September 17 had the unfortunate effect of reviving the debate.

[24] Thus, beginning on September 24, 2019, and continuing to November 22, 2019, this matter was adjourned three times while the parties awaited a decision from the Ontario Court of Appeal on whether the defendant was entitled to a preliminary inquiry. On November 18, 2019, the Court of Appeal finally released its decision in R. v. R.S., 2019 ONCA 906, in which the court held that defendants who had already elected to have a preliminary inquiry as of September 19 were still entitled to have one. As a result, on November 22, 2019, the parties set a date for a preliminary inquiry of March 26, 2020.

[25] According to the defendant, the period of time from September 24 to November 22 should be part of the total delay. On his behalf, Mr. Clark argues that it was the Crown’s fault that the defendant could not set a date for a preliminary inquiry because the Crown refused to consent to one being held.

[26] I disagree.

[27] R. v. R.S. was an appeal from the decision of my colleague, Thomas R.S.J. On September 25, 2019, Thomas R.S.J. held that the amendments in question had the effect of removing the right to a preliminary inquiry even for those who had already made an election to have one: R. v. R.S., 2019 ONSC 5497. I am not aware that it was stayed pending the Court of Appeal’s decision. Therefore, as a decision of the Superior Court of Justice (the “Superior Court”), Thomas R.S.J.’s decision was binding on the parties in this case and on the court before which they were appearing at the time. Until it was disturbed on appeal, the law was settled. And yet, on behalf of the defendant, Mr. Clark appeared on October 8, 2019, and requested a further adjournment to await a decision from the Court of Appeal. When that decision was not released by November 12, 2019, as anticipated, he asked for another adjournment. Finally, on November 22, 2019, a date was set.

[28] As it turned out, the defence was right to adjourn the case. However, I cannot agree that the delay should be part of the total delay. To accede to this submission is to ignore the bedrock principle of stare decisis and to reward 50-50 risk taking with 20-20 hindsight. This was not something akin to a considered, meritorious defence application that one could characterize as a defence action “legitimately taken to respond to the charges”: Jordan, para. 65. Mr. Clark had no reason to believe that the Court of Appeal would find in favour of his client. At the point in time at which the appeal was taken, the odds were 50-50: one judge of the Ontario Court had held that the amendments did not apply retrospectively (R. v. R.S., 2019 ONCJ 629) and one judge of the Superior Court had held the opposite.

[29] Mr. Clark submits that the delay due to repeated adjournment requests should only be considered defence delay if, in the end, things did not work out so well for the defendant. I am unable to agree. In my view, when a defendant hits the “pause” button to roll the dice on a potentially favourable change in the law, the delay is defence delay. Unless the defendant can establish that there was very little risk involved, the delay is the price paid for the risk taken.

[30] While things worked out well for the defendant, they could just as easily have gone the other way. To drive home the point, consider the history of one of the other major changes brought about by the September 19, 2019, amendments to the Criminal Code: the loss of peremptory challenges. In R. v. Chouhan, 2019 ONSC 5512, my colleague, McMahon J. held that the amendments did not infringe the defendant’s Charter rights and operated retrospectively. [^2] Like Thomas R.S.J.’s decision in R.S., the decision in Chouhan was appealed to the Court of Appeal. And, as in R.S., the Court of Appeal disagreed, in part, with the court below. Although it agreed that there was no Charter infringement, as it had done in R.S., the Court of Appeal held that the amendments did not operate retrospectively: 2020 ONCA 2020.

[31] This time, however, the Court of Appeal’s decision was appealed to the Supreme Court of Canada, which overturned the Court of Appeal and reinstated McMahon J.’s ruling: 2021 SCC 26.

[32] It is possible that the only difference between the amendments relating to preliminary inquiries and those relating to peremptory challenges is the fact that the chain of appellate review stopped at the Court of Appeal in the former. In the absence of some evidence that Mr. Clark had good reason to believe that this would happen, I am unable to see how the decision to await a change in the law after the Superior Court decision in R.S. could be characterized as a legitimate defence decision relating to the merits of defending the charges.

[33] Certainly, it cannot be said, as the defendant seeks to do, that the Crown was wrong not to want to set a date for a preliminary inquiry after the release of Thomas R.S.J.’s decision.

[34] For these reasons, I would characterize the period from September 25, 2019 (the date of the Superior Court decision) to November 18, 2019 (the date of the Court of Appeal decision) as defence delay and deduct it from the total delay. Alternatively, I would characterize it as an exceptional circumstance and deduct it from the net delay. In either case, it should be deducted from the total delay.

Presumptive Adjournments Due to COVID-19

[35] As if doomed from the start, the timely disposition of this case suffered another setback on March 17, 2020, just days before the preliminary inquiry was scheduled to begin (for the fourth time), when the Ontario government declared a state of emergency due to the threat of COVID-19. In response to the declaration, all of the courts, including the Ontario Court, immediately suspended regular operations. The Ontario Court announced that matters involving out-of-custody defendants (including the defendant in this case) would be adjourned to November 22, 2020, effective March 16, 2020.

[36] However, it seems that some matters in the Ontario Court resumed earlier than initially projected. This matter was addressed again on October 20, 2020, at which time it was adjourned to October 26, 2020, to pre-set a preliminary inquiry date. On October 26, the court confirmed a date of December 9, 2020. Fortunately, and finally, the preliminary inquiry proceeded on that date.

[37] According to the Crown, the entire period of time between September 17, 2019, and December 9, 2020, should be characterized as a discrete event, something beyond its ability to foresee, avoid or mitigate. I cannot agree.

[38] I have already explained why the period from September 25 to November 18, 2019, should be characterized as defence delay. The Crown’s submission with respect to the period from November 18, 2019, to March 17, 2020, and from October 20, 2020, to December 9, 2020, is disappointingly similar to the “but-for” argument made by the defence and must fail for the same reason. It ignores the fact that the Ontario Court was operating during those periods of time and that the delay caused by the adjournment of the preliminary inquiry from September 17, 2019, to December 9, 2020, could have been controlled during those periods.

[39] Characterizing the delay during these periods as arising from an exceptional circumstance would have the effect of absolving the Crown of its duty to minimize delay where reasonably possible, or at least of showing that it tried to do so. Given the delay that had already resulted from the adjournment of the preliminary inquiry on three previous occasions, it was incumbent on everyone involved to do whatever was reasonable to prioritize this matter when the date of March 26, 2020, was set in November 2019. The same is true with respect to setting the date of December 9, 2020, in October 2020. And yet, the only information I have are some unsworn statements in the chart filed on behalf of the defendant that the earliest date Mr. Clark had available at the time the March 26 date was set in 2019 was March 16, 2020, and that he offered earlier dates in August and September 2020 than the December 9, 2020, date that was eventually set. In the absence of proper evidence, the Crown has failed to discharge its onus of proving that the delay experienced during these periods of time was the result of exceptional circumstances.

[40] According to the defence, only the period from March 17, 2020, to August 17, 2020, should be considered an exceptional circumstance due to the pandemic. I am unable to agree with this submission, either. Like the Crown’s submission, there is not enough evidence to support it.

[41] On behalf of the defendant, Mr. Clark submits that August 17 should be used as the end date because that is the date upon which he began to appear and to request dates once again for the preliminary inquiry. However, there is nothing about August 17 in the affidavit of Mr. Clark’s legal assistant – the only affidavit filed on the application. Nor is there anything about August 17 in the transcripts filed on behalf of the defendant. Those transcripts show that this case was addressed on only two occasions between March 17 and October 20. On June 2, 2020, all matters were presumptively adjourned to August 11, 2020, and August 11, 2020, they were presumptively adjourned to October 20, 2020. On both occasions, there was no discussion about any other dates being set.

[42] For the reasons expressed above, it is my view that only the period from March 17, 2020, to October 20, 2020, should be characterized as delay due to an exceptional circumstance and, therefore, deducted from the net delay. The period from October 20, 2020, to December 9, 2020, should be included in the total delay.

[43] This brings me to events occurring after the Indictment was filed in this court.

Adjournments to Reconsider Mode of Trial

[44] On December 26, 2020, shortly after the preliminary inquiry was held, the Province of Ontario announced another lockdown. However, by that time, the Superior Court was equipped to proceed with many matters remotely. Thus, the judicial pre-trial conference (“JPT”) in this case was held within two months of the preliminary inquiry, on February 8, 2021, despite the lockdown and the intervening Christmas holidays.

[45] However, while things like JPTs could be held remotely in 2021, jury trials remained a problem. These still had to be held in person and were directly affected by public health restrictions.

[46] This case was addressed for the first time following the JPT on March 12, 2021. At that time, Mr. Clark advised the court that the defendant was considering whether to re-elect trial by judge alone and requested an adjournment for that reason. The same thing occurred on April 9, 2021.

[47] On May 12, 2021, the Chief Justice of the Superior Court issued a “Notice to the Profession and Public” advising that, although the court would not be conducting jury trials in June, the court might be in a position to conduct them in July, August, or September, depending on the public health situation provincially and regionally.

[48] On May 14, 2021, Mr. Clark again requested that this matter be adjourned, this time for two reasons. One was the issue of re-election. The other was an issue with respect to further disclosure. As a result of Mr. Clark’s request, this matter was adjourned to June 4, 2021.

[49] The defence submits that the delay from March 12 to June 4, 2021, should form part of the total delay. I disagree. In my view, this delay was caused by an exceptional circumstance.

[50] With respect to the adjournment requests of March 12 and April 9, Mr. Clark submits that these were necessary to allow the defence to consider what reasonable action could be taken to mitigate the effect of COVID-19 on the defendant’s right to a jury trial. I agree, but the fact that the defence had to make a tactical decision was not the cause of the delay, it was the effect. The decision was necessary because of the pandemic: jury trials were being delayed or not being held at all because of the risk posed by the virus. Clearly, it was an exceptional circumstance, and it was also clearly the reason for the March and April adjournment requests.

[51] With respect to the May 14 adjournment request, Mr. Clark submits that the request was due to the Crown’s failure to provide disclosure and, therefore, the delay caused by the request should form part of the total delay. Again, I disagree.

[52] As Mr. Clark correctly submits, the Crown was still making important disclosure even after the defendant had been committed for trial. This included the disclosure on January 29, 2021, of the complainant’s sexual assault examination kit, something which had been thought lost.

[53] At the February 8 JPT, Mr. Clark learned that there was yet more disclosure that had not been made, consisting of photographs allegedly showing the injuries inflicted by the defendant. However, Mr. Clark did not write for these (and certain other items) until May 11, 2021. The disclosure was received on June 3, 2021, according to the chart in the defendant’s factum. While it is true that Mr. Clark was waiting for a response to his request when he addressed this matter on May 14, I find that the operating cause of the delay was again the fact that jury trials were not immediately available. I reach this conclusion for two reasons.

[54] First, Mr. Clark knew that there was additional disclosure to be made when he appeared on March 8 and April 9, yet the only reason he sought an adjournment on those dates related to the mode of trial. That was the same situation that existed on May 14.

[55] Second, on May 14, Mr. Clark advised the court as follows:

Yes. I do have some outstanding disclosure items in this matter. It’s still on the jury list and I have worked to make sure that that’s a final position of the defence. I believe I need one more meeting with my client, but I also wanted to get the results of the disclosure request that’s outstanding. [Emphasis added.]

[56] I conclude from these comments that, even if the disclosure had been received by May 14, Mr. Clark would have required one more meeting with his client on the re-election issue.

[57] For these reasons, I believe the entire delay from March 12 to June 4 was caused by the pandemic. It is well settled that, where the operating cause of delay is the pandemic, that is an exceptional circumstance: R. v. Drummond, 2020 ONSC 5495; R. v. Ali, 2021 ONSC 1230. Therefore, the delay between March 12 and June 4 should be deducted from the net delay.

Explicit Waiver of Delay

[58] On June 4, 2021, Mr. Clark requested another adjournment. However, this time, he explicitly waived his client’s rights under s. 11(b). The matter was addressed next on July 2, 2021. There is no issue that the period between June 4 and July 2 is defence delay and must be deducted from the total delay.

Adjournments to Deal with Legal Aid Ontario

[59] As it turned out, Mr. Clark requested the adjournment on June 4 so that he could pursue the possibility of bringing this application with Legal Aid Ontario (“LAO”), who was funding the defence. Thus, on July 2, 2021, Mr. Clark requested an adjournment to pre-set dates for the trial and for this application through the office of the trial coordinator.

[60] However, LAO was slow to come around. It required that a trial date be set before the funding could be approved for the application through a “Mid-level Case Management” system. In an effort to satisfy LAO, Mr. Clark felt it was necessary to obtain a date from the trial coordinator for a further JPT so that he could “obtain judicial endorsement for setting the trial and pre-trial applications with or without counsel and to acknowledge the possibility of a [Rowbotham] application”. On August 6, 2021, the date of September 30, 2021, was confirmed for the JPT.

[61] On behalf of the defendant, Mr. Clark contends that the delay caused by LAO’s refusal to fund the s. 11(b) application initially should be included in the total delay. Once again, I cannot agree.

[62] I have been provided with no authority in support of the submission that LAO has any responsibility to the defendant under s. 11(b) of the Charter. In the absence of such authority, I see no reason to treat problems with LAO any differently than the court would treat problems relating to the fulfillment of a private retainer. The characterization depends on whether the issue with the retainer made it such that the defendant was unable to proceed even though the Crown and the court were ready to do so: (Jordan, para. 64; R. v. Saini, 2019 ONCJ 220, at paras. 16, 20). I conclude that was the situation here.

[63] As I understand the evidence, Mr. Clark was unable to pre-set dates in the usual fashion because, apparently to satisfy LAO, he required that the court fix a date for the trial and the application with or without counsel. This was not something that would ordinarily have been done at an assignment court because there was no evidence before the court that would compel it to force the defendant on to trial even without a lawyer.

[64] Based on these facts, I conclude that the defendant was not ready to proceed between August 6 and September 30, 2021. Therefore, I would characterize this as defence delay. Alternatively, I would characterize it as an exceptional circumstance, beyond the control of the Crown to prevent or to mitigate. In either case, the delay during this period must be deducted from the total delay.

Adjournment of the Second JPT

[65] Unfortunately, the JPT did not proceed on September 30. On September 9, 2021, the Chief Justice of the Superior Court announced that the court would recognize the newly proclaimed National Day for Truth and Reconciliation. As a result, the court heard only urgent matters on September 30, which did not include this one.

[66] The JPT, therefore, had to be rescheduled. The matter was brought forward to the September 10, 2021, assignment court for that purpose and was adjourned to October 8, 2021, to pre-set a new date through the trial coordinator.

[67] On October 8, the new date for the JPT was confirmed for November 2, 2021. Thankfully, it did proceed on that date and the defendant provided notice of his intention to re-elect trial by judge alone at that time. On November 12, 2021, the dates for this application and for the trial were confirmed.

[68] The Crown submits that the delay between September 10 and November 2 should be characterized as being due to an exceptional circumstance and, therefore, deducted from the net delay. However, given my finding that the defence was not ready to set a date for this application or the trial until it obtained the order it felt it needed from the JPT judge, I would characterize the delay to September 30, 2021, as defence delay and the delay from September 30, 2021, to November 2, 2021, as delay due to an exceptional circumstance. As I stated earlier, in the alternative, I would characterize the delay due to LAO as an exceptional circumstance because it was beyond the control of the Crown to avoid or to mitigate.

Calculation of the Net Delay

[69] Based on the characterization of the periods of delay set out above, I calculate the net delay to be 1194 days, as follows:

Total Delay	Defence Delay	Net Delay
1331 days	September 25 – November 18, 2019 (54 days) - delay incurred while waiting for ONCA decision in R. v R.S.	1331-54 = 1277
	June 4 – July 2, 2021 (28 days) - explicit waiver	1277-28 = 1249
	August 6 – September 30, 2021 (55 days) - delay due to LAO	1249-55 = 1194

[70] To determine the number of months of delay, I would divide the net delay (1194 days) by 30.44. This accounts for the fact that there was a leap year in 2020 (in which February had 29, rather than 28, days): see R. v. Leblond, 2018 ONSC 5970. The result of that division is 39.22 months. This exceeds the Jordan ceiling. Therefore, I must go on to consider the presence of exceptional circumstances.

Calculation of the Remaining Delay

[71] After considering exceptional circumstances, I calculate the remaining delay to be 852 days, as follows:

Net Delay	Exceptional Circumstance	Remaining Delay
1194 days	September 17 – September 25, 2019 (8 days) - adjournment of third preliminary inquiry until release of R. v. R.S. (SCJ)	1194-8 = 1186
	March 17, 2020 – October 20, 2020 (217 days) - Ontario Court suspension due to COVID-19	1186-217 = 969
	March 12, 2021 – June 4, 2021 (84 days) - mode of trial reconsideration due to COVID-19	969-84 = 885
	September 30, 2021 – November 2, 2021 (33 days) - delay due to rescheduling Sept. 30 JPT	885-33 = 852

[72] Dividing 852 by 30.44 to determine the number of months of remaining delay yields 27.99 months.

CONCLUSION

[73] The remaining delay in this case is roughly 28 months. That is below the Jordan ceiling of 30 months.

[74] The defendant does not allege that any delay below the ceiling is unreasonable: Jordan, para. 82. Therefore, because the remaining delay falls below the Jordan ceiling, the defendant’s application must be dismissed.

M.G. Ellies R.S.J. Released: March 18, 2022

Footnotes

[^1]: This is the prosecution calculation. The defence calculation is 1332 days. I believe that the defence has added the day of the defendant’s arrest. However, the clock starts to run on the day the Information is sworn, not the date of the arrest: Jordan, para. 47. [^2]: I note, parenthetically, that McMahon J. specifically agreed with the ruling in R. v. Thomas Lako and William McDonald, 2019 ONSC 5362, another case decided by Thomas R.S.J.