COURT FILE NO.: CR-21-10000492-0000
DATE: 20221109
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
JUSTIN BARRETT
Defendant/Applicant
Erin Winocur, for the Crown/Respondent
Michael Leitold, for the Defendant/Applicant
HEARD: May 20, 2022
molloy j.:
REASONS FOR DECISION
A. INTRODUCTION
[1] Justin Barrett was arrested on March 25, 2019 and charged with committing several offences against the same person on February 28, 2019 and March 15, 2019. The charges include threatening, extortion, assault with a weapon, and wounding, and are alleged to be connected to attempts to collect on drug debts. The trial is scheduled to commence May 23, 2023, and is estimated to take two weeks with a jury. Mr. Barrett applied under s. 11(b) of the Charter for a stay of proceedings based on unreasonable delay.
[2] The May 23, 2023 trial date is well beyond the presumptive 30-month period established by the Supreme Court of Canada in R. v. Jordan[^1] as being a reasonable time to complete a trial. At the outset of the motion before me on May 20, 2022, the Crown sought an adjournment for the “opportunity to try” to obtain November 2022 trial dates. This was without any indication that November 2022 trial dates were even possible and in spite of the fact that the May 23, 2023 date was set knowing what the “Jordan date” was. The Crown conceded that the presumptive Jordan date would have been September 25, 2021, but argued that, with defence delay and COVID-related delay, the adjusted date would be December 2022, such that a November 2022 trial date would bring the case within acceptable limits.
[3] I refused the adjournment. Due to delays in meeting its disclosure requirements, the Crown is not entitled to treat the entire available COVID-related delay period as attributable only to COVID. Looked at in context, COVID was not an exceptional circumstance that caused any delay. Further, I did not accept the Crown’s characterization of some of the delay as being caused by the defence. I found that it would not be possible to complete the trial within the period allowable pursuant to Jordan, even if a November 2022 trial date could be obtained.
[4] Accordingly, I stayed the charges against Mr. Barrett, indicating that written reasons for this decision would follow. Those reasons are set out below.
B. GOVERNING LEGAL PRINCIPLES
[5] The Supreme Court of Canada in Jordan established a new framework for dealing with applications to stay proceedings for unreasonable delay under s. 11(b) of the Charter. The Court established a ceiling for completion of a trial, beyond which any delay is presumptively unreasonable. The presumptive ceiling is 18 months for trials in the provincial court and 30 months for trials in the superior court (including those that started with a preliminary hearing in the provincial court and continued to the superior court). The relevant time period is from the date the charges are laid to the actual or anticipated end of the trial. Any delay specifically waived by the defence is subtracted, as is any delay caused by the defence.
[6] Once the presumptive ceiling is exceeded, the onus is on the Crown to rebut the presumption of unreasonableness by demonstrating “exceptional circumstances” that are unforeseen or reasonably unavoidable and which could not reasonably have been remedied.
[7] The first step in the process if to calculate the total delay from the charge to the anticipated end of the trial. Defence-caused delay and any periods for which 11(b) rights have been waived are then subtracted from the total. Generally speaking, if the Crown is ready to proceed on a particular date and the court is available to hear the matter, any period of time for which the defence is unable to proceed is considered to be defence delay. Deliberate and calculated defence tactics aimed at causing delay, such as frivolous applications or requests, may also be characterized as defence delay, but that issue does not arise here.
[8] If the Crown has established exceptional circumstances, any resulting delay is also subtracted from the total. Exceptional circumstances can include discrete events such as medical emergencies, unexpectedly missing or recanting witnesses, or other unexpected events beyond the control of the parties. This court has consistently held that court closures as a result of the COVID pandemic are appropriately characterized as an exceptional circumstance. The complexity of the case may also be considered an exceptional circumstance, but again that does not arise in the case before me.
[9] These steps were helpfully summarized by the Ontario Court of Appeal in R. v. Coulter as follows:
[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).
[39] 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).
[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).[^2]
[10] As I have noted above, the complexity of the case is not a factor here. The remaining delay after the calculations referred to in paras. 34-38 of Coulter, is above the presumptive ceiling. The burden therefore does not shift to the defence.
C. APPLICATION OF THE PRINCIPLES TO THIS CASE
Step 1: Total Delay
[11] Mr. Barrett was arrested and charged on March 25, 2019. His trial in the superior court is scheduled for May 23, 2023, with an anticipated conclusion on June 2, 2023. That is a total delay of 50.5 months.
[12] If the matter had proceeded to trial in the provincial court, the presumptive Jordan date would have been September 25, 2019. If the accused had elected to be tried in the superior court, the Jordan date would have been September 25, 2020.
Step 2: Defence Delay
(i) Legal Principles
[13] As pointed out in Jordan, timely trials are important for all the participants in the justice system, not just the accused. Public perception of the fairness of the justice system is also enhanced by trials that proceed without undue delay. Ensuring that a case moves forward without delay is the responsibility of all parties, both defence and Crown.[^3]
[14] Sometimes there is a waiver of a period of delay by the defence, whether explicitly or implicitly. Where there is a clear and unequivocal waiver, this period of time is simply deducted from the overall delay. This is the simplest form of defence delay to calculate. The Crown does not allege any waiver by the defence in this case, and I agree that it does not arise.
[15] In addition, any delay caused solely by the conduct of the defence will be deducted. This can include deliberate dragging of the feet by defence counsel, or bringing frivolous applications for the purpose of delay. There was no such conduct in this case.
[16] Defence action legitimately taken to respond to the case is not properly deducted as defence delay. In Jordan, the Supreme Court held:
To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused’s right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions.[^4]
[17] The most common form of defence delay is when the Crown and the court are ready to proceed with the trial and dates are offered, but those dates are not accepted by the defence. Typically, the period between the first date offered and the date ultimately accepted by the defence is properly characterized as defence delay. As stated in Jordan:
. . . the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. This should discourage unnecessary inquiries into defence counsel availability at each appearance.[^5]
[Emphasis added]
[18] This principle is not a rigid rule to be strictly applied without regard to the surrounding circumstances. As stated by Roberts J.A. in R. v. Albinowski:
Crown counsel argues that all the delay following the very first date offered for the preliminary inquiry must be assessed as defence delay. I disagree with such a categorical approach. It is necessary to consider the circumstances of this case.[^6]
[19] A similar approach was taken by the Ontario Court of Appeal in R. v. Safdar.[^7] In that case, the trial began in September 2017. It had been estimated to take six weeks to complete, but was not finished in that time. As a result, continuation dates were set for January and March 2018. Those dates could not be met due to an unexpected illness of Crown counsel in January. In February 2018, the Crown proposed that the trial continue in April 2018. One defence counsel was not available on that date due to another trial commitment on a serious matter and the other defence counsel had a pre-arranged medical treatment scheduled for that time. The first dates available to the defence were in June 2018. The Crown argued that the blame for the inaccurate time estimate should be attributed to the defence and any resulting delay should be treated as defence delay. The trial judge did not accept that argument, finding that the additional time required for the trial was an exceptional circumstance, rather than delay caused by the defence. The Court of Appeal declined to interfere with the trial judge’s factual findings on that issue. The Crown also argued that, on a proper interpretation of Jordan, defence counsel’s rejection of the April 2018 continuation date meant that the delay from then until when the defence was available to continue the trial constituted defence delay. The trial judge disagreed, and his decision on this point was upheld by the Court of Appeal. Feldman J.A. held:
In my view, based on the trial judge’s factual findings, he was entitled to conclude that this period of delay was not solely or directly caused by the defence. First, and importantly, the April dates were offered as continuation dates in the midst of the ongoing trial. The inadequacy of the trial estimate was therefore part of the cause of the delay. Second, these dates were offered on relatively short notice. Third, as the trial judge found, defence counsel had agreed to all other dates that were offered, including other dates offered with little notice. The April dates were the only exception. Finally, defence counsel had legitimate reason to decline these continuation dates. One counsel was booked on a serious Superior Court matter for a client who was in custody, while another was scheduled for medical treatment. The trial judge appropriately recognized that counsel could not, in good faith, “compromise one client’s interests for another”.
The trial judge made no error by not treating defence counsel’s legitimate unavailability on the April dates as defence delay in all the circumstances.[^8]
(ii) Position of the Parties
[20] The Crown submits that the following periods of time should be characterized as defence delay:
(a) 9 days – delays at the bail stage;
(b) 10 days – initial delay in setting first date in the Ontario Court of Justice;
(c) 70 days – further delay in setting first OCJ trial date (Crown available March 23, 2020, defence not available until June 3, 2020);
(d) 29 days - delay in setting second OCJ trial date (Crown available July 5, 2021, but defence not available until August 3, 2021,but acknowledged by Crown to be subsumed within delay due to COVID);
(e) 7 days – one week adjournment (November 8-15, 2021) to allow defence to consider Crown’s assertion of investigative and confidential informant privilege;
(f) 12 months – earlier SCJ trial date refused (on April 5, 2022, the Crown offered a trial date for May 24, 2022 instead of the previously scheduled May 23, 2023, but the defence counsel was not available).
[21] The total defence delay alleged by the Crown in its factum and oral argument is three months at the OCJ stage (not including the period between July and August 2021 which is conceded to be subsumed by COVID), plus an additional 12 months in the SCJ. This does not include the one week of alleged delay as a result of the adjournment in November 2021. That one-week period is attributed to defence delay in the Crown’s summary chart, but not was not referred to otherwise.
[22] The defence position is that there was no delay caused by the defence. The defence submits that the May and June 2022 SCJ trial dates were offered too late for them to be reasonably accepted by the defence. The defence further contends that most of the delay and the exceptional circumstances alleged by the Crown are irrelevant, as the trial could not have proceeded in any event due to the Crown’s failure to complete disclosure in a timely manner.
(iii) Analysis: Alleged Defence Delay at Bail Stage
[23] Mr. Barrett was arrested on March 25, 2019. His bail hearing was initially adjourned at his counsel’s request from March 25 to March 27; then to March 29; and then to April 3, when it proceeded. Mr. Barrett was then released on a strict bail with sureties. The Crown asserts that these nine days should be counted as defence delay. I do not agree. It took some time for defence counsel to review the case and arrange for appropriate sureties and a plan of supervision. This is all legitimate time spent by the defence in preparation for the case. Particularly at this early stage, it had no impact whatsoever on the ultimate trial date. Most importantly, it did not cause any delay to the trial. As noted by Trotter J. (as he then was) in R. v. Hudson,[^9] the timing of Crown disclosure is not affected by whether or not the accused has completed a bail hearing. Justice Trotter also referred to many legitimate reasons for an accused putting off a bail hearing for a period of time stating:
There are many legitimate reasons why an accused person may not wish to avail himself or herself of the right to a bail hearing. In the unexpected chaos that often descends on an accused's life after being charged, there may be no viable plan of release to put forward. This situation may not be rectified even after a number of adjournments. It may take some time to construct a release plan. Moreover, an accused person may have outstanding charges or already be subject to a sentence, making a successful bail application unlikely. For various reasons, an accused person may not wish to seek bail immediately, or even in the near future. And there is nothing wrong with this. There is no competing constitutional principle that requires the accused to seek release within a time frame set by the Crown.[^10]
[24] A bail hearing is an important step for a person charged with an offence. There should be no penalty for counsel taking the time to develop a solid supervision plan that will enable the accused to spend the time awaiting trial out of custody. If this time is not taken at the outset, and the initial bail hearing results in a detention order, this can sometimes be difficult to reverse later. Time taken to prepare for a bail hearing shortly after the accused’s arrest does not slow down the trial as it happens independently of the process of disclosure and trial preparation. In my view, it is irrelevant to the s. 11(b) analysis. Indeed, it falls squarely within the principle established in Jordan that “[d]efence actions legitimately taken to respond to the charges do not constitute defence delay.”[^11] I make no deduction for this period of time.
(iv) Analysis: Alleged Initial Defence Delay in Electing Mode of Trial
[25] The same reasoning applies to the brief adjournment requested by the defence for the purpose of deciding whether to elect trial in the Ontario Court of Justice, as opposed to a jury trial in the Superior Court.
[26] On October 10, 2019, at the conclusion of a judicial pretrial, defence counsel requested an adjournment to October 21, 2019 for the purpose of consulting with his client and obtaining instructions as to the mode of his trial. The Crown submits that those 11 days should be counted as defence delay. To understand the context of that defence request, it is important to review what had happened up to that time.
[27] The Crown alleges that on February 28, 2019, Mr. Barrett attended at the home of the complainant, Mr. Parks, for the purpose of collecting on a drug debt. Mr. Parks did not pay. It is further alleged that Mr. Barrett then brandished what appeared to be a firearm and threatened Mr. Parks that he would shoot him if he did not pay $100 by the end of the month. A second group of charges relates to an incident on March 15, 2019, when Mr. Barrett is alleged to have returned to Mr. Parks’ home, held a knife to his face and throat while threatening him, and then stabbed him in the forearm. On this second occasion, the Crown alleges that a second person was present in the apartment. This was a young person, who was also charged, but who was acquitted at trial. There was also a third person in the hallway outside the apartment, but the Crown does not allege that he was involved in the offences.
[28] After the bail hearing, there were a number of disclosure steps taken by the Crown and several appearances in the OCJ as follows:
• April 3, 2019: release order made; adjourned to May 13, 2019 for disclosure to be prepared.
• May 13, 2019: some disclosure available; adjourned to June 3, 2019 for additional disclosure.
• June 3, 2019: initial disclosure provided; adjourned to July 15, 2019 to allow for a Crown Pre-Trial Conference (CPT).
• June 10: Crown proposed July 3 for CPT, defence agreed, and CPT conducted on that date
• July 15, 2019: parties appeared in OCJ; adjourned to August 1, 2019 for a Judicial Pre-Trial (JPT) to be conducted.
• August 1, 2019: initial JPT held; some disclosure noted to be outstanding including Leaney witness materials; adjourned to September 16, 2019 to complete disclosure, with Sept. 11, 2019 as a target further JPT after disclosure received and reviewed by the defence.
• Sept. 11, 2019: no additional disclosure had been provided; JPT adjourned at the request of the Crown.
• Sept. 16, 2019: no additional JPT had been conducted; adjourned to October 7, 2019 for further disclosure and to confirm Crown availability for JPT on October 10, 2019.
• October 10, 2019: JPT conducted; Crown confirms that disclosure is now complete and that no forensic expert reports will be relied upon.
[29] It is at this point, after multiple appearances and disclosure being delivered in bits and pieces over a period of approximately six months, that the defence requested the opportunity to review the matter and seek instructions from his client before electing a mode of trial. On October 21, 2019 when the matter returned, the accused elected to be tried in the OCJ.
[30] The election of the mode of trial is one of the most important decisions an accused will make in the course of his case. In some situations, it may be completely obvious even from the outset what the appropriate mode of trial will be. In others, it is not so clear-cut. In this situation, counsel took a few days to review the matter, advise his client, and seek instructions. This is a normal and prudent step to take in the conduct of the action. Defence counsel had been diligent throughout in seeking to advance this matter. Upon completion of the disclosure and having the final JPT, the defence could legitimately take some time to evaluate the situation and determine the appropriate mode of trial. The accused should not be required to make an immediate election without due consideration, failing which his rights to a speedy trial are diminished by subtracting the time he took to reflect and seek counsel as being defence “delay.” In my view, this is part of the defence action legitimately taken in the course of the trial and does not constitute defence delay for purposes of the s. 11(b) analysis.
(v) Analysis: Alleged Defence Delay in Setting First OCJ Trial Date
[31] When it came time to set a date for trial in the OCJ, the parties agreed that the trial would take about six days. The Crown proposed that the trial commence on March 23, 2020. The defence declined that date, as defence counsel was unavailable from March 23-March 30. The trial was then scheduled to commence on June 1, 2020.
[32] The Crown submits that the period from March 23 through to June 1 (70 days) should be characterized as defence delay. The defence concedes that the trial could not proceed on March 23, 2020 due to the unavailability of defence counsel and that this is properly considered defence delay. However, the defence maintains that counsel was unavailable only for the period from March 23 to March 30 (7 days) and that this should be the only period treated as defence delay.
[33] I agree. There was no evidence that the Crown and the court were available for trial for any of the period from April 1 through to the June 1 trial date. The only periods of time that can be properly considered defence delay are when the Crown and court are available to proceed but the defence is not. The Supreme Court stated in Jordan that “periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable.”[^12] The only delay of the trial at this point due to defence unavailability was the period from March 23-March 30. I find that only seven days of delay could properly be attributed to the defence with respect to the first trial date set in the OCJ, rather than the 70 days attributed to the defence by the Crown.
[34] However, for the reasons set out below in dealing with the impact of COVID and the impact of late disclosure by the Crown, even those seven days should not be counted in the final calculation as, regardless of defence availability, the trial could not reasonably have proceeded in May or June 2020 given the state of Crown disclosure. Accordingly, I make no deduction.
(vi) Analysis: Alleged Defence Delay in Setting Second OCJ Date
[35] The OCJ trial was originally scheduled for June 1, 2020. It could not proceed on that date due to restrictions caused by COVID. At an appearance on October 28, 2020, a new trial date was set for August 3-10, 2021. The Crown and court were available starting July 5, 2021, but defence counsel was not available during the month of July. The Crown attributes this as 29 days defence delay, but acknowledges that this whole period would be subsumed by the delay attributable to the pandemic. The defence agrees that normally this would constitute four weeks of defence delay but maintains that this should not be deducted because of the delay in Crown disclosure.
[36] There is some merit to the defence position on this point. The case clearly would not have proceeded to trial in August 2021 due to delayed disclosure. However, by July 2021, the defence had re-elected and the previous August 2021 trial dates were used to conduct a preliminary hearing in the OCJ. There was substantial disclosure made shortly before and during the preliminary hearing in August 2021. However, I believe this would have happened one month earlier if the dates set had been for July 2021. The defence was content to proceed to the preliminary hearing without all of the missing disclosure, and in spite of the late disclosure. Accordingly, I consider it appropriate to deduct one month for defence delay due to the unavailability of defence counsel for the month of July 2021.
(vii) Analysis: Alleged Defence Delay in Setting Second OCJ Date
[37] The accused was committed for trial after the preliminary hearing in August 2021. There was a judicial pre-trial conducted in the SCJ on November 2, 2021. At the pre-trial, the Crown was not able to confirm the position that would be taken with respect to outstanding disclosure requested by the defence. In the few days following that, the Crown advised the defence that both investigative and confidential informant privilege would be asserted. When the matter next came before the Court on November 8, 2021, the defence sought a one-week adjournment for the purpose of considering this recent position taken by the Crown.
[38] In my view, at this stage of the proceeding, the issues on the Stinchcombe application ought not to have held up the setting of a trial date. There would be ample time before any trial date was reached to clarify those issues and determine the position to be taken by the defence. Therefore, I would characterize this one-week period as defence delay and deduct it from the total delay.
(viii) Analysis: Alleged Defence Delay re Earlier Superior Court Trial Date
[39] Although August 3, 2021 had been set as a trial date in the OCJ, Mr. Barrett changed his election, opting to be tried in the SCJ. On August 3, 2021, the matter did proceed in the OCJ, but as a preliminary hearing rather than a trial. On December 13, 2021, a two-week trial date was set in the SCJ, to commence May 29, 2023, those being the first dates offered by the court. This delay was in no way attributable to the defence.
[40] On January 17, 2022, this Court set April 28, 2022 for the hearing of this defence application for a stay of proceedings due to delay, pursuant to s. 11(b) of the Charter. October 6, 2022 was set as the hearing date for a defence motion for disclosure of information which the Crown had refused to provide, citing lack of relevance and privilege.
[41] Between January 20 and April 28, 2022, the Crown emailed defence counsel suggesting possible earlier dates. It is completely appropriate, indeed desirable, for Crown counsel to continue to seek earlier dates for trials that are at risk of falling afoul of the Jordan principles. However, not every such overture serves to reset the clock such that any failure by defence counsel to accept the earlier dates will now be counted as defence delay. It is important to look closely at the evidence before me as to precisely what was suggested and whether in fact both the Crown and the court were actually available to proceed with the trial, such that the cause of any delay might properly be laid at the feet of the defence.
[42] In this regard, the defence filed a sworn affidavit about these communications and attached the relevant emails and transcripts. The Crown did not cross-examine on the defence affidavit and did not provide an affidavit of its own, but did file some of the emails sent and received (all of which were also included in the defence material). I accept the affidavit filed by the defence as an accurate record of the communications between counsel on this issue.
[43] The Crown also filed a chart summarizing all the appearance dates and what happened on each date. Unfortunately, that summary is not always accurate in its characterization of the positions taken. According to the chart, on January 20, 2022, the Crown “offers” trial dates for the summer of 2022 and the defence “indicates they are not available.” That is not entirely accurate. In the Trial Scheduling Form before the court in January 2022, neither the Crown nor the defence provided any availability for dates in the summer of 2022, nor did the court have any dates available. In her January 20, 2022 email, the Crown stated:
I understand there are summer dates opening up in the SCJ. I would like to try and get Barrett on. Please advise of your availability. [emphasis added]
[44] Defence counsel responded as follows on January 21, 2022:
Can you be more specific about summer sittings being offered? I don’t think my schedule has gotten better since we completed the Trial Request Form, when I couldn’t offer dates in the summer of 2022.
If the court has new dates to offer that are available to the Crown, I will have to canvass whether my client wishes to arrange alternate counsel for trial.
[45] According to the affidavit filed by the defence, which I accept, there was no response from the Crown to this email. There is therefore nothing to indicate whether dates were available to either the Crown or the court. Indeed, I find they were likely not available, given the lack of response.
[46] Similarly, on February 4, 2022, the Crown emailed defence counsel as follows:
We may be able to have Barrett heard March 28, 2022 to April 8, 2022. If the court time is available, are you? [emphasis added]
[47] Defence counsel responded promptly stating:
Thanks for your attention to this. As per the original TCF, I’m unfortunately not available at that time. Please let me know if the court time is in fact available so I can canvass options with the client.
[48] Again, there was no response from the Crown.
[49] Finally, beginning on March 29, 2022, and continuing into the first week of April, the Crown inquired about the availability of the defence for a trial starting either May 30 or May 24, 2022. Again, the initial inquiry was with respect to the possibility of having the trial on May 30, without confirming that the court was actually available then. Again, defence counsel replied asking for confirmation that May 30 was actually available so that he could discuss options with his client. The Crown replied that May 30 will “very likely” be available and that May 24 had also become available. Defence counsel replied on April 4, 2022 that he was not available for either of those dates and that he had “not been able to locate a suitable counsel to act as my agent who could assist for those dates.” He further advised that his client had indicated that he was his counsel of choice for the trial. It is worth noting at this point that the Trial Confirmation Form filed in December 2021 (when the May 2023 trial date was set) indicates that the Crown’s first availability for a trial date in this matter was June 27, 2022 and the court’s first availability for trial was May 29, 2023. Unlike the Crown, defence counsel was available for a trial that would commence on May 30, 2022. Unfortunately, by the time that date was offered in April 2022, defence counsel was no longer available.
[50] The Crown takes the position that the rejection of the May 30, 2022 trial date constitutes defence delay and that the entire time from June 10, 2022 (when the trial would have concluded if started on May 30, 2022) up until its projected conclusion in June 2023 should therefore be deducted as defence delay for purposes of the Jordan analysis. This, on the Crown’s analysis, would reduce the delay by an additional 12 months.
[51] Had the Crown offered the May 30, 2022, trial date in December 2021, it would in all likelihood have been accepted and the trial would have been completed by now. If that date had been offered and rejected by the defence in December 2021, there would certainly have been some attributable defence delay as part of the Jordan analysis. The question is whether offering that date 16 months later and having it rejected would trigger that same result. In my opinion, it does not.
[52] The defence relies on the principle that defence lawyers are not obliged to hold themselves in a “state of perpetual availability”, such that any lack of availability by defence counsel constitutes defence delay for 11(b) purposes, as recognized by the Supreme Court of Canada in R. v. Godin, as follows:
Moreover, I respectfully disagree that this period of delay should be treated as waived by the defence in the circumstance of this case. Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability. Here, there is no suggestion that defence counsel was unreasonable in rejecting the earlier date. Indeed, his prior conduct in seeking earlier dates for the preliminary inquiry — efforts which were ignored — suggests that he wished to proceed expeditiously. I respectfully agree with Glithero R.S.J., dissenting in the Court of Appeal, at para. 53, that: “To hold that the delay clock stops as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled, is not reasonable.”[^13]
[53] The Crown submits that Godin no longer applies, in light of the new regime established in Jordan. Obviously, previous 11(b) decisions need to be carefully reconsidered in light of Jordan. However, I do not take the Supreme Court of Canada as saying that any unavailability of defence counsel is, by definition, defence delay, regardless of the context in which it arises. The Ontario Court of Appeal specifically rejected a similar Crown position taken in Safdar. In that case, the trial could not be completed within the period set aside for it. In February 2018, the Crown and court offered dates in April 2018, which were not available to defence counsel. The Crown took the position that the rejection of the continuation date meant that all subsequent delay (from April 2018 to June 2018) was caused by the defence. As quoted earlier at para. 19 of this decision, Feldman J.A. applied a more contextual analysis in finding that the trial judge correctly decided not to treat defence counsel’s legitimate unavailability for continuing the trial on certain dates in April as defence delay. She considered, among other things, that the dates suggested to defence counsel were made on relatively short notice, that defence counsel had agreed to all other offered dates, and that they had legitimate reason to decline the April dates.[^14] So too in this case. The May 2022 trial dates were offered on very short notice, long after the trial date had already been set for May 2023. Defence counsel had previously been available for many offered dates, including these very dates when they trial dates were initially discussed 16 months earlier.
[54] In this case, as in Safdar, there is no suggestion that the May 30, 2022 trial date proposed by the Crown was rejected for any improper purpose. It is accepted that defence counsel was simply not available. I note that defence counsel was diligent throughout this case in pushing for earlier disclosure and accommodating other dates. This is not a situation in which defence counsel was simply unavailable for large stretches of time. At the time the 2023 trial date was set, the defence had many dates available, including May 30, 2022. Unsurprisingly, over a year later, those dates were no longer free. The short period of notice is important. Counsel had scheduled this trial for May 2023. To suggest in April 2022 that he should be ready to do the trial within 7 or 8 weeks is simply not reasonable. This is similar to the two-month period of time that was suggested in Safdar to be one of the factors making it reasonable not to treat this as defence delay.
[55] Before me, the Crown sought to distinguish Safdar on the basis that it was a continuation of a trial already begun and it would therefore have been impossible to bring in new defence counsel. I do not agree. It is true that the reason for new dates being proposed in Safdar was because of the inadequacy of the trial period previously reserved. In Safdar, the court found that the inadequate trial estimate was not the fault of the defence; in the case before me, the 2023 trial date was also not the fault of the defence, as his counsel had many other available dates well within the appropriate time period. I also disagree that the two situations are different because of the inability to retain new counsel for a trial continuation. It is not impossible for new counsel to take over conduct of a partially completed trial, even though highly undesirable. However, this factor does not appear to have played a major role in the reasoning of the Court of Appeal, the focus being more on the fact that the inaccurate estimate was not the fault of the defence. I note as well that current defence counsel in this case did attempt to obtain alternate counsel for Mr. Barrett, but was not able to do so, which is hardly surprising given the short time frame. In any event, this would be an extreme circumstance to force upon the accused. He wanted to proceed to trial with counsel of his choice, and he was entitled to do so. He should not be put to a choice of which of his rights to abandon: the right to counsel of his choice; or the right to be tried in a reasonable period of time.
[56] I find that when the defence unavailability for the May 2022 trial dates is looked at in this context, it is not appropriate to treat any of this period as defence delay.
[57] Following this exchange in April 2022, the Crown offered dates in June 2022, which were also unavailable for defence counsel. For the same reasons as discussed above, I find that this does not constitute defence delay.
[58] Finally, on the day set for the argument of this application, Crown counsel sought an adjournment of the application so that she could make inquiries of the Trial Office to see if dates might be available in November 2022. This was referred to as a request for “an opportunity to try” for November 2022 trial dates. I refused the adjournment request. I had no basis for believing that November 2022 dates would be available, nor was I given any explanation for why this was not canvassed in advance of the date fixed for argument of the application. In any event, even if the entire period of COVID was subtracted, trial dates in November 2022 would not bring this case in line with Jordan.
(ix) Conclusion: Net Delay
[59] I find that there are only three periods of time that could be labeled as defence delay: one week (March 23-30, 2020) when defence counsel was not available for the first OCJ trial date proposed by the Crown and court; four weeks (July 5- August 3, 2021) when defence counsel was unavailable for the second trial date in the OCJ; and one week (November 8-15, 2021) when defence counsel requested time to consider a position on the Stinchcombe motion, thereby delaying the setting of the SCJ trial date by one week. I have found that it is appropriate to deduct one month for defence delay, due to the unavailability of defence counsel for the month of July 2021 and a further week (0.25 months) for the adjournment in November 2021. However, with respect to the seven-day period in March 2020, I make no deduction. Given the outstanding disclosure, there is no possibility that either a preliminary hearing or trial could have proceeded on March 23, 2020. My reasoning in this regard is the same as my reasoning for rejecting the Crown’s argument with respect to the deduction sought for the exceptional circumstances of COVID, as set out below.
[60] The total delay is 50.5 months. For purposes of this analysis, I will subtract 1.25 months of defence delay from the total delay. The net delay is approximately 49.25 months, which far exceeds the presumptively unreasonable 30-month ceiling established in Jordan. The onus therefore falls on the Crown to establish whether any of this delay is reasonable because of exceptional circumstances. To fall within Jordan, 19.25 months of delay would have to be determined to be reasonable.
Step 3: Exceptional Circumstances
(i) The Impact of the COVID Pandemic
[61] The burden is on the Crown to establish exceptional circumstances that will rebut the presumption of unreasonableness with respect to all or some of the total delay. Exceptional circumstances will typically be either the particular complexity of the case or a discrete event that is reasonably unforeseen or unavoidable or that cannot be remedied by Crown counsel or the justice system.[^15] This case is not complex. The Crown relies on the discrete event category, specifically the COVID pandemic, as an exceptional circumstance.
[62] The Crown submits that the June 3, 2020 trial date was adjourned because of COVID and seeks to deduct the entire period between June 3, 2020 and August 3, 2021 (the date upon which the preliminary hearing proceeded) as delay caused by COVID and an exceptional circumstance within the meaning of Jordan. That is a total of 426 days, or approximately 14 months. However, included within that time is the month of July 2021, which the Crown has alleged to be defence delay, and which the Crown acknowledges is subsumed within the total COVID delay. It cannot be counted as both defence delay and exceptional circumstances, as that would result in a double deduction for the same period of time. Accordingly, if those four weeks are included as defence delay, then one month would be deducted from the period claimed for the exceptional circumstances caused by COVID. Therefore, the delay ascribed to exceptional circumstances would be only 13 months.[^16]
[63] There is also a period of 42 days (between May 10, 2021 and June 21, 2021) when Crown counsel unexpectedly underwent surgery. This is recognized as a discrete event and exceptional circumstances. However, it also falls within the 14 months claimed as a result of the COVID exceptional circumstances and is therefore subsumed within it.
[64] The defence argues that none of this time can be deducted because the trial could not have proceeded in any event because of the delay in Crown disclosure. For present purposes, it is unnecessary to review what kinds of circumstances are considered “exceptional” for purposes of the s. 11(b) analysis. It is now well-settled that any delay to the trial date caused by the COVID pandemic falls within the exceptional circumstances recognized in Jordan as being appropriately subtracted from the total delay.[^17]
[65] The issue in this case is not whether COVID restrictions qualify as exceptional circumstances, but rather whether any of the delay in this case was actually caused by COVID. I was not referred to any decision of this Court or the Ontario Court of Appeal on this issue. However, the defence filed four Ontario Court of Justice decisions on point, as summarized below:
R. v. Silva: The case had been adjourned multiple times in 2019 awaiting disclosure from the Crown. By early October 2019, core disclosure had been completed and a trial date could have been set. However, there was one item of disclosure still remaining (an internal departmental police report about a collision between the accused’s vehicle and a police car). By March 20, 2020, when the COVID related adjournments began, that report had still not been disclosed. It was not disclosed until January 28, 2021. Kenkel J. held that “the one thing that appeared to have been causing delay [disclosure of the departmental report] could have been remedied during the COVID period.” He therefore declined to deduct any of the COVID time on the grounds that it had not “caused the delay.”[^18]
R. v. Ravikumaran: On May 9, 2019, the accused was charged with impaired driving and blowing over. His trial date was set for May 14 and 15, 2020. At the time the trial date was set, defence counsel noted that they were still missing a key piece of disclosure, being video of the accused’s interactions with the police at the police station after his arrest. Although both counsel expected the video would be provided in sufficient time prior to trial, it was not disclosed until January 19, 2021. On March 23, 2020, due to the COVID pandemic, the May 2020 trial dates were adjourned and eventually new dates were set for June 28, 2021. This was 25 months post-charge and exceeded the Jordan 18-month presumptive ceiling for matters tried in the provincial court. Pringle J. held that none of the delay from March 23, 2020 to January 19, 2021 qualified as exceptional circumstances, stating that, in her view, “this trial was not ready to go ahead until the missing disclosure was provided on January 19, 2021.”[^19]
R. v. Delaney: The accused was charged on September 5, 2019 with aggravated assault in relation to an incident that occurred on August 15, 2019. His trial was scheduled to commence on May 11, 2020. When that trial date was set in January 2020, there was still outstanding disclosure in the form of medical evidence and witness statements. The May 2020 trial date was adjourned in accordance with COVID protocols and rescheduled for March 8, 2021. On May 11, 2020, the state of disclosure remained the same as it had been in January 2020. As the courts began to reopen in the fall of 2020, this case was brought forward and, on November 12, 2020, a new trial date was set for March 8, 2021. As of November 12, 2020, the outstanding disclosure situation remained the same. Some disclosure was provided by the Crown on March 3, 2021 and additional disclosure on March 8, 2021, the date that had been fixed for trial. The trial could not proceed. There was further disclosure in April and June 2021, and a new trial date was fixed for September 2021. An application for a stay under s. 11(b) of the Charter proceeded before Joubert J. in July 2021. The application judge referred with approval to the decisions in Silva and Ravikumaran. He held that the trial could not have proceeded in May 2020 without the disclosure, nor was it able to proceed in March 2021, again because of the missing disclosure. He further held that the disclosure obligation could have been addressed during COVID. In his s. 11(b) analysis, he did not deduct any portion of the time during which cases were not heard during COVID, reasoning that it was not COVID that caused the delay in the case, but rather the delayed disclosure.[^20]
R. v. A.L.S.: A young person was charged with sexual assault on two separate young complainants. The charges were laid in September and October 2019. At appearances in December 2019 and February and March 2020, the defence raised the issue of outstanding disclosure. The matter was administratively adjourned in March 2020 with return dates on June 12, 2020, and then August 21, 2020. The disclosure was not provided until July 20, 2020. McKay J. held that the period of COVID delay claimed by the Crown did not fall within exceptional circumstances, stating:
It is difficult to see the impact of the pandemic on scheduling this matter. This court resumed setting trial dates on July 6, 2020. The presumptive adjournments had no impact given that the Crown did not meet its disclosure obligations until late July. After receipt of the disclosure, the defence had to review the disclosure with its client and then arrange for a counsel pre-trial, a judicial pre-trial and then arrange trial dates. The defence did so promptly. I disagree with the submission that the Crown could have done nothing to mitigate the delay between April 3 and August 21, 2020. The Crown could have provided disclosure in a timely fashion.[^21]
[66] I agree with the reasoning of the application judges in these four decisions. I have also considered the decision of Dambrot J. in R. v. Huang, in which he held that a finding that the pandemic constitutes a discrete exceptional event “does not end the inquiry,” and that “it is still necessary to consider how the pandemic affected the particular case in question.”[^22] In R. v. Sandhu, Laliberté J. adopted this principle from Huang, and held that, “[t]he Crown must show that but for the pandemic, earlier dates would have been obtained for the case.”[^23]
[67] In my view, the burden on the Crown to prove the exceptional circumstances warranting further reductions to the delay calculation includes the obligation to establish that the circumstances relied upon caused the delay. If the trial could not have proceeded in any event, then COVID did not cause the delay. It merely coincided with the actual cause of the delay. In this case, the Crown has presented no evidence to connect the COVID pandemic to the delays in the case, save for the fact that the May 2020 trial dates were adjourned because of COVID and the next date set was in August 2021. The Crown also provided no evidence to explain the delays in disclosure, or to connect such delays to the pandemic. I also note that the Crown did not seek to exclude any of the period from the August 2021 preliminary hearing to the May 2023 trial date based on any impact from the COVID pandemic.
[68] It is important to examine the factual context in which this issue arises. The important dates are:
• October 10, 2019: (OCJ appearance) The Crown confirmed that no forensic reports were being tendered and that disclosure “appeared complete”. Defence counsel sought an adjournment to seek instructions on how the accused wanted to elect.
• October 21, 2019: The accused elected trial in the OCJ; additional disclosure was noted as possible, but nothing that would prevent setting trial dates; and the case was adjourned to set trial dates.
• October 22, 2019: Trial dates were obtained for May 25 to June 1, 2020 in the OCJ (in the absence of the assigned Crown) and were confirmed at an appearance on November 4, with a second stage JPT scheduled for February 27, 2020.
• February 27, 2020: Defence counsel had learned prior to this date that there was a companion YCJA proceeding going on in which an accused young person was to be tried for the same offences against the same complainant arising out of the same occurrence. None of this, including the trial brief, had been disclosed to Mr. Barrett. The defence requested disclosure. The matter was adjourned to March 25, 2020 for disclosure and a continuing JPT.
• February 28, 2020: Defence counsel wrote to the Crown and noted that facial recognition software appeared to have been used in the investigation and requested additional disclosure relating to that.
• March 16, 2020: Crown counsel advised defence counsel that the YCJA matter had concluded with an acquittal and inquired if the defence still wanted disclosure. Defence counsel confirmed the request for disclosure of this material.
• March 19, 2020: Crown counsel wrote to defence counsel disputing the relevance of the facial recognition software, stating that it had not been used to successfully identify any party. (This was later acknowledged to be inaccurate.) At the same time, the Crown noted that further disclosure had been requested from a Leaney witness and disclosed for the first time that there had been a confidential informant used in the investigation. The defence replied that same day, maintaining the request for disclosure. In response, the Crown repeated that facial recognition software was not relevant because it did not identify anyone and stated that she had only recently been advised of the confidential informant’s involvement.
• March 25, 2020: Due to the COVID pandemic lockdown, the matter was administratively adjourned to June 3, 2020. At a further JPT that same day, outstanding disclosure issues were addressed.
• June 3, 2020: Disclosure had still not been provided. The Crown advised that some, but not all, disclosure requested would be provided. The matter was administratively adjourned to August 12, 2020 to set new trial dates.
• August 12, 2020: The matter was adjourned to September 23, 2020 to set new dates for trial. Disclosure had still not been completed, but a file with respect to the facial recognition software had been provided. There had been ongoing discussions between counsel about the disclosure throughout.
• August 23, 2020: Defence counsel advised that the facial recognition software file was not in a viewable format and requested a better copy.
• September 22, 2020: Crown counsel had still not responded to prior requests for disclosure, but wrote to defence counsel indicating that a position on the additional disclosure had not been arrived at and that no additional disclosure could be provided at that time. She suggested setting a JPT date.
• September 23, 2020: The matter was adjourned to October 28, 2020 to enable a JPT in the interim to address the outstanding disclosure. The issue was not resolved at the September 29, 2020 JPT. Discussions and correspondence on the issue continued thereafter. On October 21, 2020, Crown counsel advised that the material requested was irrelevant and not disclosable because it excluded the accused rather than inculpating him.
• October 28, 2020: A new six-day trial date was set for August 2021, with a Stinchcombe motion date on April 28, 2021. An interim date for disclosure was set and the matter was adjourned to December 2, 2020 for a further JPT.
• December 2, 2020: Disclosure had still not been provided and the case was adjourned to January 14, 2021 for that purpose. In January and February, there was further correspondence between Crown and defence regarding disclosure.
• February 25, 2021: At an appearance in the OCJ, defence counsel reiterated concerns about the slow pace of disclosure and the need for some of it to be provided as a basis for his upcoming April 2021 Stinchcombe motion. The matter was adjourned to March 15, 2021.
• March 15, 2021: The matter was adjourned to March 23, 2021. Disclosure was still outstanding.
• March 21, 2021: After repeated defence requests over the course of 7 months, the Crown disclosed a viewable copy of the facial recognition software form. Defence counsel learned, for the first time and contrary to prior information provided by the Crown, that the facial recognition software identified a third party other than the accused. The defence requested further disclosure related to that third party.
• March 23, 2021: The matter was adjourned to March 30, 2021 to determine the impact of the new disclosure on the Stinchcombe motion, and from that date further adjourned to April 6, 2021.
• April 6, 2021: The Crown disclosed email correspondence from the investigators and the photo of the third party used for the facial recognition analysis. In court that day, counsel confirmed that there was additional disclosure coming.
• April 8, 2021: The Crown provided a list of disclosure items provided in the YCJA matter. From this, there did not appear to have been any recording of the complainant lineup identification.
• April 15, 2021: Counsel attended and noted that additional disclosure was still anticipated, including new Leaney witness material. The matter was adjourned from there to April 26, 2021 (two days before the scheduled Stinchcombe motion) for a status update.
• April 22, 2021: The Crown disclosed two will-say statements from two proposed Leaney witnesses. Defence counsel followed up, requesting further disclosure arising from the 11-page will-say from one of the Leaney witnesses.
• April 26, 2021: The matter was adjourned to June 14, 2021 to set a new date for the Stinchcombe application, although the parties advised that the motion date might not be necessary in light of new disclosure. It was also noted at that time that the Stinchcombe motion could not have proceeded on April 28, 2021 in any event due to COVID protocols.
• June 14, 2021: Defence counsel advised that Mr. Barrett would be changing his election because of new developments arising from the disclosure and proceeding in the OCJ, with a preliminary hearing rather than a trial. The matter was adjourned to June 28, 2021 to make the re-election, at which point it was confirmed that the previously set trial date in August 2021 would now be used for the preliminary hearing.
• July 23, 2021: The Crown provided additional disclosure regarding the use of facial recognition software.
• July 30, 2021: The Crown provided 40 pages of disclosure relating to one of the Leaney witnesses.
• August 3-9, 2021: The preliminary hearing proceeded, by Zoom. On August 4, the second day of the hearing, the Crown disclosed additional material relating to the Leaney witness.
• September 13, 2021: This was the accused’s first appearance in Superior Court of Justice. The matter was adjourned to November 8 for a JPT, with defence counsel again noting that he was waiting for outstanding disclosure.
• November 8, 2021: Counsel advised the Court that a pretrial was conducted on November 2, 2021, at which time the outstanding disclosure was discussed, and that on November 4, Crown counsel had advised for the first time that the Crown was asserting both investigative and confidential informant privilege with respect to some of the outstanding disclosure. The matter was adjourned to November 15, 2021 for the defence to consider the impact of this and get instructions, and from there to December 13, 2021 so that a further JPT could be conducted.
• November 16, 2021: The Crown disclosed a 30-minute video recording of the complainant completing a photo lineup in March 2019, in which he identified the accused young offender, including a statement as to his degree of certainty. This video had never been disclosed to Mr. Barrett before. At the YCJA trial, the complainant resiled from his identification and the young offender accused was acquitted.
• December 13, 2021: The trial date was set for May 29, 2023 for two weeks with a jury. Subsequently, motion dates were set for this s. 11(b) application for April 28, 2022 and October 6, 2022 (if necessary) for a Stinchcombe application.
[69] The Crown submits that, but for COVID, the trial of this matter could have proceeded in May, 2020. The Crown seeks to excuse the delays in disclosure by distinguishing between core disclosure and disclosure of material which, although of some relevance and meeting the Stinchcombe test for disclosure, were peripheral to the central issues in this case. I do not agree with the Crown’s characterization of the nature and importance of some of this disclosure.
[70] The outstanding disclosure included will-say statements of two Leaney witnesses. This disclosure was not provided until April, July, and August 2021. The Crown contends that this was not crucial to the defence because the accused and complainant were known to each other. However, it was the Crown that proposed calling these witnesses, and it is to be presumed this is because they were helpful to the prosecution’s case on identification, a central issue in the trial. When the August 2021 dates were converted to a preliminary hearing instead of a trial, the Crown did not call these witnesses. However, the parties had agreed that there was sufficient evidence to commit the accused for trial, and the defence then immediately proceeded to examine the proposed Leaney witnesses by way of discovery. It was only in the Crown’s factum, filed in response to this s. 11(b) application, that the Crown stated, for the first time, that these witnesses would not be called at trial.
[71] Similarly, the Crown submitted that the identification of the person who remained in the hallway was a peripheral issue. For the defence, however, this person constitutes a potential alternate suspect. Although the Crown maintained for two years that there was no requirement to disclose materials relating to facial recognition because it did not identify anybody, it was only when this material was finally produced in a viewable format that the defence learned that the software in fact provided a positive identification. This occurred in March 2021, many months after the May 2020 original trial date. Again, this is not a peripheral issue from the defence perspective.
[72] Some of the late disclosure related to the Young Offender proceedings involving another accused charged with the same offence. This would clearly be relevant to the accused in this proceeding. It was not until November 2021 that the Crown finally disclosed the video recording of the complainant identifying the young offender with considerable certainty. In his evidence at trial, the complainant resiled from this position, resulting in the young offender’s acquittal. Given that the Crown’s case is heavily reliant on the testimony of the complainant identifying Mr. Barrett as his attacker, this evidence cannot be said to be of only peripheral relevance to the defence.
[73] As of the August 2021 preliminary hearing date, there was still considerable material which the defence took the position should be disclosed, but which the Crown objected to producing on the basis of investigational and confidential informant privilege. The defence’s Stinchcombe motion was still outstanding as of the preliminary hearing date, and indeed had not yet been heard at the time of this application before me. I reject the Crown’s argument that the defence could not have been concerned about the missing and late disclosure because they did not seek an adjournment of the preliminary hearing. Defence counsel protested the slow pace of disclosure with diligence and persistence throughout the life of this case, including after the preliminary hearing. It is to the credit of the accused and his counsel that they proceeded with the preliminary hearing in these circumstances. While it is understandable and commendable that a preliminary hearing proceeded even though some of the necessary disclosure had not been received, proceeding to a trial in such circumstances is a completely different matter.
[74] I conclude that there was no point between when COVID lockdowns began through to the preliminary hearing in August 2021 when this matter was ready to proceed to a trial. It cannot be said that, but for the pandemic, the trial (or even the preliminary hearing) would have been completed earlier. Therefore, I find that the pandemic did not cause the delay between May 2020 and August 2021 and that none of this period of time is properly characterized as an exceptional circumstance.
D. CONCLUSION
[75] The total delay in this case, from the date of arrest to the projected date the trial would finish, is 50.5 months. I have deducted 1.25 months for defence delay, leaving a net delay of 49.25 months. I reject the Crown’s submission that the period between June 3, 2020 and August 3, 2021 should be characterized as an exceptional circumstance warranting a further reduction of 426 days (approximately 13 months after deducting the month of July 2021 which I deducted as defence delay). The Crown has not presented any evidence or made any other argument that any period after August 2021 falls within the “exceptional circumstance” category.
[76] The net delay in this case is 49.25 months, which is far in excess of what can be considered reasonable. I find that the right of the accused to be tried within a reasonable time, pursuant to s. 11(b) of the Charter, has been breached and the appropriate remedy is to stay the charges against him. Accordingly, the relief sought in the defence application is granted.
MOLLOY J.
Released: November 9, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
JUSTIN BARRETT
Defendant/Applicant
REASONS FOR JUDGMENT
Molloy J.
Released: November 9, 2022
[^1]: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.
[^2]: R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-40.
[^3]: Jordan, at paras. 5, 19-27, 116, and 137.
[^4]: Jordan, at para. 65.
[^5]: Jordan, at para. 64.
[^6]: R. v. Albinowski, 2018 ONCA 1084, 371 C.C.C. (3d) 190, at para. 46.
[^7]: R. v. Safdar, 2021 ONCA 207, 469 D.L.R. (4th) 447.
[^8]: Safdar, at paras. 50-51.
[^9]: R. v. Hudson, 2011 ONSC 5176, 107 O.R. (3d) 568, at para. 12.
[^10]: Hudson, at para. 19.
[^11]: Jordan, at para. 66.
[^12]: Jordan, at para. 64; see also R. v. Hanan, 2022 ONCA 229, 161 O.R. (3d) 161, at paras. 49-53.
[^13]: R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 23.
[^14]: Safdar, at paras. 50-51.
[^15]: Jordan, at paras. 69-81.
[^16]: I note that deducting 13 months for Covid, would only bring the delay of 49.25 months down to 36.25 months, which would still exceed the Jordan ceiling. The Crown had hoped to shave off another 5 months by moving the trial date to November 2022, but presented no evidence that such dates would be available to the Court, particularly bearing in mind that the Stinchcombe application would also have to be scheduled in advance of that trial date.
[^17]: R. v. Drummond, 2020 ONSC 5495; R. v. Gutierrez, 2020 ONSC 6810; R. v. Khattra, 2020 ONSC 7209; R. v. Walker, 2020 ONSC 8153; R. v. Huang, 2021 ONSC 8372.
[^18]: R. v. Silva (May 19, 2021), Newmarket (Ont. C.J.) (unreported), at paras. 17-20.
[^19]: R. v. Ravikumaran (June 29, 2021), Toronto (Ont. C.J.) (unreported), at para. 22.
[^20]: R. v. Delaney, 2021 ONCJ 467, 2021 CarswellOnt 12482, at paras. 54-59 and 63.
[^21]: R. v. A.S.L., 2021 ONCJ 269, 174 W.C.B. (2d) 183, at para. 24.
[^22]: R. v. Huang, 2021 ONSC 8372, 500 C.R.R. (2d) 323, at para. 171.
[^23]: R. v. Sandhu, 2022 ONSC 3910, 2022 CarswellOnt 9227, at para. 42.