BACKGROUND TO CHARGES

[1] The Applicant, Brian Thompson, was arrested on January 8, 2019 and an information sworn on January 9, 2019. He stands charged on an indictment with four drug-related offences.

[2] On December 31, 2018, a package arrived at a Montreal postal station. Border officers recovered approximately 331 grams of heroin secreted within the walls of a cardboard box. The expected recipient for the package was Robin Taylor, the package to be received at an address in Etobicoke. On January 8, 2019, the RCMP intercepted the package containing heroin and installed an intrusion alarm on it which would sound when the package was opened. The package was delivered to the Etobicoke address. Minutes after the package was received the intrusion alarm was activated.

[3] The police entered the address where they found two cellphones in a bathtub (“the bathtub phones”). The tracking number for the package was displayed on the screen of one of the bathtub phones. Subsequent analysis of that cellphone showed messages arranging for delivery of the package to Ms. Taylor at the Etobicoke address. The messages received included, “Am sending 350g of brown sugar either on Monday or 27th after holidays”. Ms. Taylor was arrested.

[4] On January 9, 2019, both the Applicant and Ms. Taylor were charged with importing heroin, possession of heroin for the purpose of trafficking, conspiring to commit the indictable offence of importing heroin, and conspiring to commit the indictable offence of possessing heroin for the purpose of trafficking. The charges were eventually stayed against Ms. Taylor on September 5, 2019.

CHRONOLOGY

[5] A four-week trial is scheduled before this Court from November 14 to December 9, 2022. The Applicant elected to proceed by way of a judge and jury trial in the Superior Court of Justice.

[6] The Applicant seeks an order that his right to be tried within a reasonable time under section 11(b) of the Charter has been infringed. He seeks the rare remedy of a stay of proceedings under s. 24(1) of the Charter. The parties agree that the total delay from the date of the charge on January 8, 2019 to the anticipated completion date of the trial, December 9, 2022 is 47 months.

[7] The first appearance was on February 19, 2019. The matter was adjourned to March 17, 2019 at the request of the Crown for the purpose of being able to provide further disclosure. Initial disclosure was provided to counsel for the Applicant on April 4, 2019. The ITO and related documents were still outstanding. Some outstanding disclosure was produced at a June 5, 2019 appearance.

[8] At a judicial pretrial on September 18, 2019, the Applicant requested outstanding disclosure and advised that he would be providing his witness list for the preliminary inquiry. On October 12, 2019, the Applicant indicated that outstanding disclosure and the unavailable witness list prevented setting dates.

[9] On November 12, 2019, Mr. Steinberg attended Court on behalf of the Applicant and requested an adjournment until mid-January 2020. According to the Applicant, 11(b) was not unequivocally waived. In the Applicant’s view he just acquiesced to the adjournment. At this time, the Applicant was applying for Legal Aid and Mr. Steinberg would not be able to receive instructions from the Applicant as a result. Some disclosure remained outstanding at that time including information related to the cellphones.

[10] At appearances on January 15, 2020 and February 18, 2020 disclosure was still not complete. The Applicant indicated he requires the disclosure in order to proceed. On January 15, 2020, counsel for the Applicant appeared to request that the matter be put over to February 18, 2020 as he was still awaiting disclosure of the cellphone information. February 18, 2020 was the last attendance before the pandemic. The matter was adjourned to March 17, 2020.

[11] On March 17, 2020, due to the pandemic, the matter was presumptively adjourned to May 26, 2020. Then on May 26, 2020 the matter was again presumptively adjourned to August 4, 2020. On August 4, 2020, the Crown advised it was still awaiting the witness list from the defence and the Court requested the matter return on August 11, 2020 for that purpose. On August 11th, the Respondent indicated it had received the witness list.

[12] On October 6, 2020, discovery dates were scheduled for May 21 and 22, 2020. On January 19, 2022, on consent, with an 11(b) waiver by the Applicant, the Respondent agreed to a four-month delay of discovery until May 2022 due to a health issue on the part of Mr. Steinberg. An additional date, July 14, 2022, was required for the discovery which proceeded on that date.

[13] The Respondent submits it was required to make repeated requests to set dates for discovery due to the Applicant’s failure to provide his list of witnesses for the hearing. There were several adjournments before the matter was presumptively adjourned until March 17, 2020 due to the pandemic. Due to the pandemic, matters involving out-of-custody individuals were suspended for several months.

[14] Between August 2021 and October 2021, the Applicant sought adjournments of his case to discharge Mr. Steinberg as counsel and to seek to retain Kim Schofield’s office. On October 6, 2021, Mr. Steinberg was removed from the record. On October 21, 2021, the matter was adjourned for a self-represented judicial pretrial to occur on December 1, 2021.

[15] On December 1, 2021, the self-represented judicial pretrial did not proceed as the Applicant still wanted a chance to retain counsel and the matter was remanded to a further self-represented judicial pretrial.

[16] On January 4, 2022, the Applicant attended a self-represented judicial pretrial. He appeared with an associate of Ms. Schofield who advised they were only retained to assist with Charter applications. A four-week jury trial was then scheduled to proceed on November 14, 2022, on a with or without counsel basis.

[17] The discovery proceeded on May 21, 2022 and July 14, 2022. On July 14, 2022, the Applicant was committed to stand trial and the matter was set for a first appearance on August 11th at the Ontario Superior Court of Justice. The trial is expected to complete on December 9, 2022.

STAY OF PROCEEDINGS

[18] The Applicant seeks to have the proceedings stayed based on a violation of his right under s. 11(b) of the Charter to have his case heard within a reasonable time.

[19] A stay of proceedings is the most drastic of remedies available to a court. Charges that are stayed may never be prosecuted. An alleged victim will never get their day in court. And society will never have the matter resolved by a trier of fact. A stay is therefore reserved for only those cases of abuse that satisfy the lofty threshold of being one of the “clearest of cases”: [[R v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411 (S.C.C.)]](https://www.canlii.org/en/ca/scc/doc/1995/1995canlii51/1995canlii51.html).

THE LAW ON REASONABLE DELAY

Reasonable Time

[20] The Applicant has the burden on a balance of probabilities to demonstrate that his right under s. 11(b) of the Charter has been violated. The Crown has the burden to prove the defence waived its right.

[21] The Supreme Court in R. v. Jordan provides a framework for analyzing whether an individual’s right to a trial within a reasonable time has been violated. The framework creates a ceiling beyond which delay becomes presumptively unreasonable, in which case the burden becomes that of the Crown to rebut the presumption of unreasonable delay and establish exceptional circumstances justifying the delay.

[22] A stay of proceedings pursuant to section 24(1) of the Charter must be ordered where the Crown fails to establish exceptional circumstances. The presumptive ceiling is 30 months. Delay is calculated as the time from the laying of the charges to the anticipated completion of the trial.

[R. v Jordan, 2016 SCC 27, at paras. 25, 38 – 40 and 56 – 57, (S.C.C.)]

[23] As set out below, the Ontario Court of Appeal in R. v. Coulter, in the following paragraphs, summarized from Jordan the formula for applying the delay framework:

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

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

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

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 the Crown fails to rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).

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 (Jordan, at para. 80).

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).

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

[R. v Coulter, 2016 ONCA 704, at paras. 34 – 41, Ont. C. A.)].

Defence Delay – By Waiver and Conduct of Defence

[24] Jordan identifies two components of defence delay:

(a) delay waived by defence; and

(b) delay caused solely by the conduct of defence.

[25] A waiver can be explicit or implicit. But it must be clear, unequivocal, and with “full knowledge of his or her rights, as well as the effect waiver will have on those rights.”: [R. v. Jordan, at para 61]. The Supreme Court of Canada in R. v. Morin earlier set forth the requirement that an 11(b) waiver be made with “full knowledge”. For instance, if an accused “consents to a date”, it may not be a waiver if the consent to “date amounts to mere acquiescence in the inevitable.”: [[R. v Morin, 1992 53 (SCC), [1992] 3 SCR 711, at para. 37 – 39, (S.C.C.)]](https://www.canlii.org/en/ca/scc/doc/1992/1992canlii53/1992canlii53.html). The Crown bears the burden to prove a waiver of any delay rights.

[26] The case law has addressed the various ways in which defence delay solely caused by the defence can be reflected. R. v. Coulter, at para. 44, identified the following circumstances:

where defence conduct directly caused the delay;
where defence conduct is a deliberate and calculated tactic employed to delay the trial;
where the Crown and the court are ready to proceed, but the defence is not, the defence will have directly caused the delay;
with defence action or inaction that displays a marked inefficiency or indifference towards delay this will be attributable to the defence in the s. 11(b) calculus:

[27] And R. v. Cody, at para. 32, makes the following observations:

that defence conduct includes “substance and procedure – the decision to take a step, as well as the manner in which it is conducted”; and
that defence counsel are expected to actively advance their client’s right to a trial within a reasonable time, collaborate with Crown counsel when appropriate, and, like Crown counsel, use court time efficiently:

[[R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 32, (S.C.C.)]](https://www.minicounsel.ca/scc/2017/31)

[28] Not all defence conduct should be deducted. It must be “illegitimate” conduct that amounts to frivolous applications and requests:

[N]ot all delay caused by defence conduct should be deducted under this component. In setting the presumptive ceilings, this Court recognized that an accused person's right to make full answer and defence requires that the defence be permitted time to prepare and present its case. To this end, the presumptive ceilings of 30 months and 18 months have “already accounted for [the] procedural requirements” of an accused person’s case.

[R. v. Cody, at para. 29](https://www.minicounsel.ca/scc/2017/31) and [R. v. Jordan, at para. 65].

[29] Defence delay therefore can only be deducted if it is caused solely by the accused and flows from illegitimate defence conduct that does not respond to the charges: [R. v. Cody, at para. 34]. And while trial judges should be careful not to second-guess steps taken by the defence to respond to the charges, they must not be reluctant to find defence action illegitimate where appropriate: [R. v. Cody, at para. 31].

[30] Delay that results from the Crown’s failure to disclose cannot be then used against the accused. The disclosure that is regarded as necessary to advance to trial should be those materials that are “pivotal in understanding the nature of the case, the proof and the material’s impact on advising her client on issues such as the nature of the plea, mode of trial”. Not to have an opportunity to review such material would be “irresponsible” and would waste judicial resources [R. v Cody, 2017 SCC 31, at para. 29 – 33](https://www.minicounsel.ca/scc/2017/31); [R. v Frail, 2017 ONSC 5886, at para. 44, (Ont. S.C.J. )](https://www.canlii.org/en/on/onsc/doc/2017/2017onsc5886/2017onsc5886.html); and [R. v Vitalis, 2018 ONCJ 43, at para. 41, (Ont. C.J.)].

Exceptional Circumstances

The Law

[31] After defence delay is deducted from the total delay, if the remaining delay is above the presumptive ceiling, the burden shifts to the Crown to establish exceptional circumstances to justify the delay. Exceptional circumstances fall into two categories:

a) instances of delay caused by discrete, exceptional circumstances; and

b) delay resulting from particularly complex cases.

[32] R. v. Jordan explains:

Exceptional circumstances lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon.

[R. v. Jordan, at para. 69]

It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means.

[R. v. Jordan, at para. 70]

[33] The Crown has a duty to mitigate delay, even delay arising from a discrete, exceptional circumstance and in asserting a discrete incident or exceptional circumstance, to provide some evidence of this.

The Pandemic as An Exceptional Circumstance

[34] The Crown asserts the pandemic as an exceptional circumstance. There is no claim that this is a complex case. The onus is on the Crown to prove that any period of delay is the result of the pandemic.

[35] The COVID pandemic has been recognized as an exceptions circumstance: [R. v. Hyacinthe, 2022 ONSC 1444, at paras. 17 - 18, (Ont. S.C.J.)](https://www.minicounsel.ca/scj/2022/1444); and [R. v. Simmons, 2020 ONSC 7209, at paras. 69 – 72, Ont. S.C.J.)]. As the Respondent points out, as of March 16, 2020, due to the pandemic, a large backlog was created at the Ontario Court of Justice level, and as a result, cases were automatically remanded for many months. Hearing dates in this case could not be scheduled until after September 20, 2020. When trial dates were ultimately set on October 6, 2020, the first available hearing date was December 21, 2020.

[36] Courts have found that presumptive adjournments due to the COVID-19 pandemic constitute exceptional circumstances that must be deducted from the total delay: R. v. M.T., [2022] O.J. No. 1915, at para. 22, (Ont. S.C.J.); see also [R. v. Pinkowski, 2021 ONCJ 35 (Ont. C.J.)](https://www.canlii.org/en/on/oncj/doc/2021/2021oncj35/2021oncj35.html) and [R. v. Truong, 2020 ONCJ 613 (Ont. C.J)]. It has specifically been held that the appropriate length of delay attributable to the pandemic should be from March 16, 2020 to the new trial date. This is the approach that has been adopted by trial courts, rather than deducting only the time period when trials were actually suspended: [R. v. Simmons, at para. 69].

[37] As R. v. Jordan has said, if the delay falls below the presumptive ceiling due to exceptional circumstances, it is the accused’s burden to prove unreasonable delay.

PARTIES’ AGREEMENTS ON DELAY

[38] As noted earlier, the parties agree the total delay from the date of the charge on January 8, 2019 to the anticipated completion date of the trial, December 9, 2022 is 47 months. The parties also agree on three periods of defence delay. Those periods are represented in the following written submissions provided by the parties:

AGREEMENT ON DELAY

TOTAL DELAY:

9 January 2019 to 9 December 2022 47 months (1404 days)

AGREED UPON DELAY:

4 periods of time have been agreed upon as follows:

DEFENCE DELAY:

19 January 2021 to 20 May 2021 4 months (121 days)
11 August 2021 to 20 October 2021 2.33 months (70 days)
1 December 2021 to 4 January 2022 1.13 months (34 days)

EXCEPTIONAL CIRCUMSTANCES DELAY

17 March 2020 to 28 September 2020 6.5 months (195 days)

TOTAL AGREED UPON DELAY: 14 months (420 days)

TOTAL DELAY LESS AGREED UPON DELAY: 33 months (984 days)

The Applicant concedes the following delay periods involving the following circumstance:

period #1 - the period between the date the original date for discovery, January 19, 2021, was adjourned, and the first day of the final date set for discovery, May 20, 2021;
period #2 - covering the time between the date the Applicant sought to retain new counsel, August 11, 2021, and the date the case was adjourned, October 20, 2021, to set a self-represented judicial pretrial on October 20, 2021; and
period # 3 - the period between the date the first scheduled judicial pretrial was adjourned, December 1, 2021, to the date the judicial pretrial proceeded, January 4, 2022, with an associate of Kim Schofield attending for the Applicant to indicate they would be retained for Charter applications only.

THE PARTIES’ INDIVIDUAL POSITIONS

The parties also submitted their individual positions as follows:

THE APPLICANT’S POSITION

GROSS DELAY:

January 9, 2019 to December 9, 2022 47 months (1404 days)

DEFENCE DELAY

January 19, 2021 to May 20, 2021 4 months (121 days)
August 11, 2021 to October 20, 2021 2.33 months (70 days)
December 1, 2021 to 4 January, 2022 1.13 months (34 days)

EXCEPTIONAL CIRCUMSTANCES DELAY

March 17, 2020 to September 28, 2020 6.5 months (195 days)

NET DELAY: 33 months (984 days)

THE RESPONDENT’S POSITION

AGREED DELAY

The parties are agreed that the total delay is 47 months (1404 days) as follows:

January 9, 2019 to December 9, 2022 47 months - (1404 days)

AGREED DEFENCE DELAY

The parties are agreed that the following three periods of delay totalling 7.5 months (225 days) are attributable to the defence:

January 19, 2021 to May 20, 2021 4 months - (121 days)
August 11, 2021 to October 20, 2021 2.33 months - (70 days)
December 1, 2021 to January 4, 2022 - 1.13 months - (34 days)

AGREED DELAY ATTRIBUTABLE TO EXCEPTIONAL CIRCUMSTANCES

The parties are agreed that a delay of 6.5 months is attributable to exceptional circumstances due to the pandemic:

March 17, 2020 to September 28, 2020 - 6.5 months - (195 days)

AGREED VS. DISPUTED DELAY

The parties are accordingly agreed that a period of delay totalling 14 months (420 days) must be deducted from the total delay of 47 months (1404 days), leaving 33 months (984 days) of disputed delay.

FURTHER DELAY ATTRIBUTABLE TO DEFENCE

The Respondent submits that four additional periods of delay totalling 8 months - (237 days) are also attributable to the defence:

September 18, 2019 to March 17, 2020 - 6 months (181 days)
- Defence witness list not provided
- This includes 2.33 months (70 days) from November 12, 2019 to January 15, 2020 wherein s. 11(b) was explicitly waived
December 21, 2020 to January 11, 2021 - 0.75 months (21 days)
- Court and Crown available for preliminary hearing. Defence not available
October 20, 2021 to November 10, 2021 - 0.75 months (21 days)
- Court and Crown available for JPT. Defence not available.
October 31, 2022 to November 14, 2022 - 0.5 months (14 days)
- Court and Crown both available for trial. Defence not available.

FURTHER DELAY ATTRIBUTABLE TO EXCEPTIONAL CIRCUMSTANCES

The Respondent submits that the following additional period of delay totalling 2.8 months (84 days) is also attributable to exceptional circumstances due to the pandemic.

September 28, 2020 to December 21, 2020 - 2.8 months (84 days)
- Period of time between the first date on which new, out-of-custody matters could be scheduled after the start of the pandemic and the earliest available preliminary inquiry date.

THE PARTIES’ SUBMISSIONS

In Brief

[39] The parties agree that 14-months’ delay should be deducted from the total delay of 47 months which covers the period from January 9, 2019, the arrest date, to December 9, 2022, the expected trial completion date. This leaves 33 months of undisputed delay. The Respondent argues there is an additional 4 periods of delay, or 8 months, that are attributable to defence delay that should be deducted from the 33 months.

The Applicant’s Position

The Disclosure Issue

[40] The most contentious period is the 5-month period from the date of the first judicial pretrial on September 18, 2019 (when disclosure was still outstanding and the witness list was still outstanding) and February 18, 2020 (when required disclosure is still outstanding and an adjournment was granted to obtain disclosure). The Respondent submits that the entire period should be attributed to defence delay. The Applicant asserts that none of the period should be attributed to the defence.

[41] Adjournments were requested during that period due to outstanding disclosure. The Applicant takes the position that throughout that period there was outstanding disclosure, particularly of the cellphone subscriber information for the bathtub phones, which Mr. Steinberg said he needed to review with his client in order to get instructions and decide how to proceed. Time would be needed after disclosure was received.

[42] It appears from the Respondent’s materials that the Applicant was seeking subscriber information for the other cellphones as well.

[43] Not having the disclosure, the Applicant submits, prevented him from knowing which witnesses to call for discovery. That is, the outstanding disclosure was what was preventing Mr. Steinberg from agreeing to earlier dates for discovery, providing the witness list to the Respondent and moving the matter forward. The Applicant contends the request is not frivolous but rather is evidence essential for the defence to know how to move forward.

[44] The Applicant did acknowledge retainer and Legal Aid issues also existed concurrent to the discovery issue during the period in question. That is, on November 12, 2019, Mr. Steinberg waived 11(b) to January 15, 2020 due to the retainer issue. The Applicant takes the position that the existence of the concurrent disclosure issue, where essential information was lacking, makes the delay “a wash” and in effect does not amount to an informed waiver.

The Pandemic as Exceptional Circumstances

[45] The parties agree that the 6.5-month period of the pandemic from March 17, 2020 to September 28, 2020 is a period to be counted as exceptional circumstances. The Respondent seeks to have the added 2.8-month period from September 28, 2020 to December 21, 2020 also be regarded as exceptional circumstances. The added period covers the time between the first date on which new, out-of-custody matters could be scheduled after the start of the pandemic, and the earliest available preliminary inquiry date. Therefore, the total period of exceptional delay from the Respondent’s perspective is 9.3 months.

[46] The Applicant argues, if the Court agrees with his position, there would be presumptively unreasonable delay. The burden then would shift to the Crown to rebut the presumption by bringing some evidence that earlier dates for discovery could not have been obtained but for the pandemic: [R. v. Greenidge, 2021 ONCJ 57, at para 32, (Ont. C.J.)]. The Applicant submits that the Crown has at their disposal administrative data that could be used as an evidentiary foundation on this issue.

[47] The Applicant takes the position that by September 28, 2020 the Court’s processes were basically back to the pre-pandemic circumstances for scheduling such proceedings as preliminary inquiries. It is the Applicant’s submission that the disputed period should not be attributed to the defence but rather to regular institutional delay caused by the Court’s inability to schedule rather than due to the pandemic. In other words, any delay in setting the discovery is, in the Applicant’s estimation, just the normal delay that occurred before the pandemic. It is the Respondent’s task to disprove that proposition.

[48] The Applicant concedes that if I find the delay is under the ceiling, either after defence delay, or after exceptional circumstances, he will not be in a position to argue that the delay under the ceiling is unreasonable.

The Respondent’s Position

[49] The Respondent supported its position by reference to materials on the record – email communications between defence counsel and the Crown during relevant periods, Form 18s from judicial pretrials, transcripts of relevant Court appearances and notices to the profession the Court released in relation to the Court suspensions from March 16, 2020.

The Period Covered by the Waiver

[50] This refers to the period from November 12, 2019 to January 15, 2020 when Mr. Steinberg gave a waiver. The Respondent disputes the Applicant’s submission about the concurrency of a disclosure issue to the retainer issue during that period and contests his argument that the waiver was not informed.

[51] The Respondent points to the evidence she filed that demonstrates that the outstanding disclosure on November 12, 2019 was simply the subscriber information for the two bathtub phones. The Respondent’s supporting evidence shows that Mr. Steinberg for the first time at the February 18, 2020 judicial pretrial asked for the subscriber information for the cellphones other than the two found in the bathtub.

[52] Correspondence filed by the Respondent between the Crown and Mr. Steinberg reveal that the Crown’s understanding of which subscriber information was being requested was in relation only to the two bathtub phones and that information was disclosed by the end of May 2019. Further, the Respondent points out that subscriber information extracted from the cellphones is very limited data as it amounts to only the name of the person connected with the phone, their address and some billing information.

[53] The Respondent takes the position that there was no issue around disclosure of the subscriber information for the bathtub phones during the period of November 12, 2019 and January 15, 2020. And the subscriber information for the other cellphones was not requested until after that period, on February 18, 2020.

[54] And regarding the other cellphones, the Respondent points out from evidence filed that the reason the subscriber information was not disclosed for those cellphones was because the RCMP had determined they belonged to other people in the apartment, including Ms. Taylor, who were not subject to the charges. Extraction information from Ms. Taylor’s phone showed no communications connected to the crime.

[55] The subscriber information for the other cellphones, in the Respondent’s estimation, is not a reason not to provide the witness list or for not moving the matter forward and therefore the delay during the period in question should be regarded as defence delay. In the Respondent’s view it was the retainer issue that prompted the waiver and the waiver was, on the record, clear and unequivocal.

[56] I accept the Respondent’s position that the reason for the waiver was not truly outstanding disclosure. I find the Respondent has amply established through the record that the defence was responsible for the delay during the 11(b) waiver period and that the waiver was unequivocal and informed.

Delay During the Period After the Waiver

Defence Delay - September 18, 2019 to January 15, 2020

[57] The Respondent contends that the Applicant is responsible for the Crown not being able to move the matter forward to discovery after the waiver because dates could not be set without the defence’s witness list. The Respondent requested the witness list on numerous occasions from the first judicial pretrial on September 18, 2019. It was not forthcoming until August 10, 2020.

[58] The March 17, 2020 date arrived, the date scheduled for the Applicant’s case to be spoken to. On the day before, March 16th, presumptive dates were set for remands with matters being adjourned at ten-week intervals. This is where the exceptional circumstances created by the pandemic come into play.

[59] The Respondent points back to the record to show that the Crown was always ready to set dates but that the failure of the Applicant to provide the witness list made it impossible to do so. And, again, disclosure did not present a justifiable reason to not deliver the witness list. The Respondent relies on R. v. Coulter, at para. 42, as cited earlier, as support for the view that the Applicant’s inaction is responsible for delay after March 16, 2020:

Defence action or inaction that displays a marked inefficiency or indifference toward delay will be attributable to the defence in the delay calculus.

[60] The Respondent’s position is that the 6-month period from September 18, 2019 to March 17, 2020, which includes the 2.5-month waiver period from November 18, 2019 to January 15, 2020, are attributable to defence delay.

Defence Delay - December 21, 2020 to January 11, 2021

[61] Again, the Applicant’s matter was to be spoken to on March 17, 2020 but was put on hold due to the suspension of Court proceedings. The Respondent points out that the first opportunity to set a judicial pretrial after September 28, 2020 was on October 1, 2020 when the date of December 21, 2020 was offered. The Crown was available on that date, but the defence was not.

[62] The defence was available on January 11, 2021 but the Crown was not. It is the Respondent’s view that the period from December 21, 2020 to January 11, 2021 is attributable to defence delay. The Respondent adds that before January 11, 2021, the Crown was available on December 29 and 30, 2020 and January 4 and 5, 2021 and the defence was not.

Defense Delay - November 10, 2021 and December 1, 2021

[63] The first appearance in the Ontario Superior Court was August 11, 2021. The Respondent submits it made attempts to move the matter forward from that time. The dates available to the Crown and Court for a judicial pretrial were November 10, 17 and 24, 2021 and December 1, 2021. The Applicant indicated the defence was available on December 1, 2020.

[64] It is the Respondent’s submission that the period between November 10, 2021 and December 1, 2021 should also be attributed to defence delay.

Defense Delay - Two Week Period October 31, 2022 to November 14, 2022

[65] At the judicial pretrial on January 4, 2022 trial dates were being selected. The Crown and Court were available on October 31, 2022. But the defence indicated it was not available until November 14, 2022, the date the trial is currently scheduled to proceed.

[66] The Respondent submits the period between October 31, 2022 and December 1, 2022 is also a period of defence delay.

CONCLUSION ON PERIODS OF WAIVER AND POST WAIVER DEFENCE DELAY

[67] In conclusion, I find the Respondent has established from the record the periods of time that the Court and Crown were available for the preliminary inquiry and the trial when the defence was not. The total delay attributable to the defence during the waiver and post-waiver periods is 7.5 months agreed upon by the parties. And I accept the additional 8 months in the Respondent’s calculations, for a total of 15.5 month’s delay.

Delay Caused by Exceptional Circumstances

[68] The parties agree that the exceptional circumstance is based on the discrete category. They also agree that the 6.5-month period of delay from March 17, 2020 to September 28, 2020 is attributable to exceptional circumstances.

[69] The Respondent points to the fact that the first date offered for a judicial pretrial was on December 21, 2020 over which it had no control. That is, parties were not permitted to schedule any proceedings before September 28, 2020. So the delay period from September 28, 2020 to December 21, 2020 was attributable to exceptional circumstances. The Respondent submits that but for the pandemic an earlier date could have been scheduled.

[70] In further support for the exceptional circumstances of the pandemic causing delay in scheduling, the Respondent refers to the notice to the profession released on August 12, 2020. Out-of-custody continuation proceedings were being scheduled as of August 5, 2020 but the Respondent was not able to schedule before September 28, 2020 for reasons set out above.

[71] As the Respondent points out, because the proceedings were scheduled on a staggered basis, when the Crown was able to schedule an attendance for the Applicant’s case would be affected by where the case was on the list of priority for scheduling. Only new out-of-custody matters were scheduled for September 28, 2020. The Respondent submits that by the time a date could be set for the Applicant’s case, the first available date was December 21, 2020, as pointed out earlier.

[72] The Respondent submits that the period from September 28, 2020 to December 21, 2020 should therefore be attributed to exceptional circumstances. I agree with that position.

[73] I find the Respondent sufficiently produced detailed evidence on the record that responded to the Applicant’s argument that the Crown must show some evidence that, but for the pandemic, earlier dates could have been scheduled. I find the record is clear that the Crown made every effort to move the matter forward but was prevented by the administrative issues in the Court caused by the pandemic.

[74] The total amount of delay attributable to exceptional circumstances is 9.3 months representing the 6.5 months agreed upon by the parties plus the additional 2.8 months I accept as identified by the Respondent.

CONCLUSION

[75] I find the total defence delay is 15.5 months (7.5 months agreed upon + 8 months added by Crown). And the total delay from exceptional circumstances 9.3 months (6.5 months agreed upon + 2.8 months added by Crown). Total delay is therefore 24.8 months.

[76] This is not the appropriate case for the rare remedy of a stay of proceedings.

DISPOSITION

[77] The application under 11(b) of the Charter of Rights is dismissed.

Allen J.

Released: October 31, 2022

COURT FILE NO.: CR-21-90000451-0000

DATE: 20221031

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

BRIAN THOMPSON

Applicant

Application for Stay of Proceedings under s. 24(1) of the Criminal Code for violation UNDER 11(b) of the Charter of Rights