OSHAWA COURT FILE NO.: CR-21-15528 DATE: 20230324 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – JACK STELWAGEN Appellant

Counsel: Paul T. Murray, for the Crown/Respondent Leo A. Kinahan, for the Appellant

HEARD: September 2, 2022

RESTRICTION ON PUBLICATION Pursuant to s. 486.4(1) of the Criminal Code, information that may identify the person described in this decision as the complainant may not be published, broadcast or transmitted in any manner.

REASONS FOR DECISION

DAWE J.

I. Overview

[1] In August 2018 the Appellant, Jack Stelwagen, was charged in Oshawa with sexual assault. It was alleged that he had engaged in non-consensual sexual activity at a house party with an unconscious woman.

[2] The Crown elected to proceed summarily, and in January 2019 Mr. Stelwagen’s trial was scheduled to proceed in the Ontario Court of Justice over six days in November 2019. Because Mr. Stelwagen is a Durham Regional Police officer who was alleged to have committed an offence while off duty, arrangements were made for a judge who ordinarily sits in a different judicial centre, Mr. Justice Bruce Frazer, to come to Oshawa to preside over his trial.

[3] The trial began as scheduled in November 2019 before Frazer J., but did not finish in the allotted time. The parties were able to obtain a single continuation date in December 2019, but this was not enough time to complete the trial. The next continuation dates the court could offer were not until April 2020. No earlier dates were available in part because Frazer J., who was a semi-retired per diem judge, planned to take an extended winter vacation abroad for the first three months of 2020. Since the trial judge was asking for written submissions once the evidence was complete, the parties agreed that when the trial resumed in April 2020 there would have to be a further adjournment after the evidence was completed, and that the trial would accordingly not finish until May 6, 2020.

[4] The COVID-19 pandemic then caused the criminal courts to shut down in mid-March 2020, and the trial did not resume as scheduled. When it eventually recommenced in December 2020, the trial judge dismissed Mr. Stelwagen’s s. 11(b) Charter application and proceeded to find him guilty as charged. He later sentenced Mr. Stelwagen to 12 months imprisonment and probation.

[5] Mr. Stelwagen appealed to this court against both his conviction and sentence, but did not pursue his sentence appeal. He raises several different grounds of appeal against his conviction. However, it is only necessary for me to address his s. 11(b) Charter ground.

[6] For reasons I will now explain, I am satisfied that the trial judge made a number of analytic errors that led him to incorrectly find no breach of Mr. Stelwagen’s s. 11(b) Charter right. In my view, on a proper application of the principles in R. v. Jordan, 2016 SCC 27, [2016] 1 SCR 631, the delay that was directly caused by the defence in this case was only two weeks. Once this delay is subtracted, the remaining delay of approximately 27 months greatly exceeds the presumptive ceiling of 18 months for trials in the Ontario Court of Justice.

[7] Under Jordan, “[t]he presumptive ceiling marks the point at which the burden shifts from the defence to prove that the delay was unreasonable, to the Crown to justify the length of time the case has taken” (at para. 58). Moreover, “the presence of exceptional circumstances is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling’ (at para. 81, italics in original).

[8] In the case at bar, I agree with the Crown that much of the trial delay after the start of the COVID-19 pandemic can be properly viewed as having been caused by “exceptional circumstances”. However, even if Mr. Stelwagen’s trial had resumed in April 2020 and been completed by early May 2020, as scheduled and as it would have done but for the COVID-19 pandemic, this would still have been too long.

[9] As I will explain, the main source of delay in this case was the trial judge’s extended unavailability because of his per diem status and extended winter vacation schedule. The trial did not complete in the original block of time that had been allocated in November 2019, because of the combination of some unexpected but not entirely unpredictable events, and the Crown’s failure to prepare for these events, or properly address them after they occurred. It then became impossible to obtain trial continuation dates within a reasonable time because of the trial judge’s unavailability. While I find that a small part of this delay is excusable, most of it was both predictable and avoidable.

[10] Put simply, the root of the problem in this case was the decision to assign a relatively lengthy, although not overly complex, trial that was scheduled to start in November to a per diem judge who was completely unavailable to sit for most of the next four months. When the initial trial estimate proved to be too short – partly because of unexpected events, but also because of Crown decisions that caused a day of court time to be lost – Mr. Stelwagen could not be offered sufficient continuation dates within a reasonable time because the trial judge was unavailable. While this delay was not directly caused by Crown counsel, it is in my view properly treated as systemic delay for which the Crown is responsible.

[11] The net result is that the justice system failed to provide Mr. Stelwagen with a trial within a reasonable time. His s. 11(b) Charter rights were breached, and the only remedy for this breach is to stay the charge against him.

II. The charged offence and the evidence at trial

[12] In view of my conclusions on the Charter ground of appeal, I will only briefly summarize the allegations against Mr. Stelwagen, and the evidence that was adduced at his trial.

[13] On August 5, 2018, Mr. Stelwagen attended a barbecue at the home of his friends Hugh and Stacy Watkins. There were a number of other guests, including the complainant, S.H., and her cousin, C.H. Everyone drank heavily, including Mr. Stelwagen, who testified that he considers himself to be an alcoholic, and that he became very drunk that evening.

[14] S.H. also acknowledged that she was drinking that evening and became intoxicated, but denied that she drank to the point of passing out. However, other witnesses described S.H. as passing out in Stacy Watkins’s bedroom, and having to be carried to a spare bedroom and put to bed there while still unconscious because she could not be roused.

[15] It is common ground that at some point that night, during the early morning hours of August 6, people in the house became aware that Mr. Stelwagen and S.H. were in the spare bedroom together. This caused a commotion and led various people to go to the bedroom at different times. Different witnesses gave different accounts of exactly what they saw. Stacy Watkins testified that she saw Mr. Stelwagen kneeling down between S.H.’s legs and performing oral sex on her. Other witnesses testified that they saw Mr. Stelwagen standing by the bed and putting on his underwear.

[16] As I will discuss, Hugh Watkins’s evidence took longer to adduce than either counsel had anticipated, in part because an issue arose about whether he had given an inconsistent description to the police about how Mr. Stelwagen had been dressed when Mr. Watkins saw him coming downstairs. However, the other reason Mr. Watkins’s evidence led to delay is that the Crown called him as her third witness on the third day of trial, and he did not start testifying until the afternoon. When he had not completed his evidence by the end of the sitting day, he asked that he not be made to return the next day because he is a psychotherapist, and had patient appointments that he did not want to cancel on short notice. The trial judge accommodated Mr. Watkins’s wishes, on the understanding that the Crown would use the next day to call a different witness. However, the Crown then chose not to call her one remaining witness until the following week, which meant that a full day of scheduled court time went unused.

[17] Mr. Stelwagen testified in his own defence. He acknowledged engaging in some sexual activity with S.H. that night, but maintained that it was consensual and that she initiated it. The trial judge rejected Mr. Stelwagen’s evidence, and found as fact that S.H. had been unconscious and thus incapable of consent. He accordingly found Mr. Stelwagen guilty as charged.

III. Chronology of the trial proceedings

A. The intake period (August 28, 2018 to November 4, 2019)

[18] Mr. Stelwagen was arrested on August 22, 2018, but the information charging him with sexual assault was not sworn until six days later, on August 28, 2018.

[19] Mr. Stelwagen then made two appearances in the Ontario Court of Justice in September and October 2018. At the second appearance a judicial pre-trial was scheduled for December 20, 2018. A further judicial pre-trial was then scheduled for January 22, 2019, after it was decided that because Mr. Stelwagen was a Durham Regional Police officer, his case should be tried by a judge from a different region, and the trial coordinator needed more time to obtain the necessary dates. When the judicial pre-trial continued on January 22, 2019 Mr. Stelwagen’s original counsel also advised the court that Mr. Kinahan would be taking over as trial counsel. Trial dates were then set for November 4-7 and November 12-13, 2019.

[20] When these trial dates were set, the presiding judge expressly asked both counsel if they wanted to make any comments about these dates on the record, but both declined the invitation. Counsel later agreed that four slightly earlier dates had previously been offered by the trial coordinator by email, starting on October 28, but they disagreed about whether both counsel had been unavailable on those dates. The trial judge found that Crown counsel had been available but that defence counsel at the time had not, and in his s. 11(b) Charter analysis he accordingly subtracted the lost week as defence delay.

[21] The trial began as scheduled on November 4, 2019, although the afternoon of the first day was lost to allow Crown counsel at trial (not Mr. Murray) to attend the judicial swearing-in ceremony of one of her close colleagues, who had asked her to be his personal speaker. However, by the end of the sixth scheduled day, November 13, 2019, the Crown had not finished calling its case.

[22] The main reason the trial did not finish as scheduled was because of issues that arose with the sixth Crown witness, Hugh Watkins, who was the host of the house party where the alleged sexual assault by Mr. Stelwagen had occurred.

[23] Mr. Watkins was called on the afternoon of the third day of trial, November 6, 2019, as the third Crown witness to testify that day. He testified in chief that at one point he had seen Mr. Stelwagen coming down the stairs from the second floor in his shorts. He was then cross-examined on a transcript of his police statement, which recorded him as saying that Mr. Stelwagen had come downstairs wearing only “boxers”. However, Mr. Watkins denied saying this, and disputed the accuracy of the statement transcript. The dispute hinged over whether he had been properly recorded as using the word “did” rather than “didn’t”. Although Crown counsel had previously agreed that the transcript was accurate, she now said that she was unsure of this. Both counsel watched the statement video recording in the absence of the witness, but could not agree over what word Mr. Watkins had used. By this time it was nearly 5:00 p.m., and court was adjourned until the following day.

[24] Mr. Watkins, who is a psychotherapist, then asked to be excused from returning to court the next day, November 7, because of his professional commitments to his patients. The trial judge accommodated his wishes and directed him to come back the following Tuesday, on the understanding that another Crown witness would testify the next day. However, on November 7 Crown chose not to call her one remaining witness, the complainant, apparently because defence counsel had raised the prospect of bringing a mistrial application if the issue of what Mr. Watkins had said in his police statement could not be resolved. As a result, the scheduled November 7 court day went unused.

[25] Mr. Watkins then resumed testifying the next week, on Tuesday, November 12, 2019, which was the next scheduled court date. After the recording of his police statement was played for him, he now agreed that the transcript was accurate, although he still maintained that what he had told the police was incorrect.

[26] The trial judge ended court early that day because of expected bad weather, leaving Mr. Watkins’s cross-examination still incomplete. Mr. Watkins again asked to be excused from returning to court the next day because of his professional commitments, and the trial judge agreed, on the understanding that the next day could be used to hear from the Crown’s final witness, the complainant.

[27] The complainant then testified on Wednesday, November 13, 2019, and completed her evidence that day. At the end of the day, the trial judge and counsel discussed obtaining a continuation date. The trial judge indicated that he was unavailable for the rest of that week, although the trial coordinator later advised counsel that he would actually have been available on Friday, November 15. Defence counsel was unavailable any day the following week other than Friday, November 22. The trial judge advised counsel:

… that the Trial Coordinator in consultation with the Regional Manager sent me a number of dates that I’m going to say that November 25th and December 2 and 3 are all I’ve got.

He added further:

And I do apologize to counsel. This frankly happens every year when I either run out of dates or I’ve had enough for one year. They give me these long cases that are hard to predict in terms of their length of time and I don’t have any more dates to give. It puts everyone in a very difficult position, and Trial Coordination knows that.

[28] Defence counsel was unavailable on November 25 and December 3, so the return date was set for December 2, 2019. Crown counsel was available on all three of these dates.

[29] Counsel then appeared before a different judge on November 22, 2019 to set additional continuation dates for the trial. Mr. Kinahan put on the record that his client was not waiving his s. 11(b) Charter rights, and indicated that he “had other dates available in December”, as well as in the first three months of 2020, but that the trial coordinator had advised that the “first available date for the Court was April 6”. Accordingly, additional trial continuation dates of April 6, 7 and 8, 2020 were scheduled.

[30] When the trial resumed on December 2, 2019, Mr. Watkins completed his evidence by mid-morning, and the Crown closed its case. Defence counsel advised that he would be calling Mr. Stelwagen to testify, but estimated that his evidence would take a full day, and that his preference was for his client not to be left in cross-examination if there was going to have to be an extended adjournment to April 2020.

[31] The trial judge advised counsel that he would want written submissions before hearing final submissions. Defence counsel advised that he would need “a couple of weeks” to prepare his submissions, and Crown counsel advised that she would also need some time. She did not dispute defence counsel’s suggestion that:

I think realistically we’ll probably need three weeks give or take, and then depending on how long Your Honour needs for a verdict.

[32] The trial judge added:

[T]he other point I raised with the Trial Coordinator, and I think it would be inappropriate in this situation where one of the reasons for delay may be the Court’s scheduling, and I think it would be inappropriate for this Court to sit in judgment of its own scheduling, that any 11(b) application, if brought, should be before another judge so that I don’t sit in judgment of … [t]he role that I’ve played in setting these dates.

[33] The defence proceeded to bring a s. 11(b) Charter application, and in accordance with what defence counsel understood to have been the trial judge’s direction on December 2, 2019, made it returnable before a different Ontario Court of Justice judge. However, when the application came before Misener J. on February 27, 2020, she questioned whether she had jurisdiction to hear it, and ultimately declined to do so.

[34] The defence then brought an application for mandamus in the Superior Court of Justice, returnable on March 18, 2020, seeking an order directing Misener J. to hear the s. 11(b) Charter application. However, on March 17, 2020 this Court’s regular operations were suspended on account of the COVID-19 pandemic, so the mandamus application did not proceed as scheduled. Mr. Stelwagen’s trial also did not resume as scheduled on April 6, 2020, as the Ontario Court of Justice had also suspended its operations because of COVID.

[35] Mr. Stelwagen’s case was adjourned several times under the COVID presumptive adjournment protocol, and eventually returned to be spoken to in the Ontario Court of Justice on August 24, 2020, before a different judge (not the trial judge). Although at this appearance the Crown wanted to schedule trial continuation dates before the trial judge, the defence took the position that the mandamus application, which by this time had been scheduled to be heard in the Superior Court of Justice on October 2, 2020, should proceed first. The Ontario Court of Justice proceedings were accordingly adjourned to mid-September, when they were then adjourned further to October 9, 2020.

[36] On October 2, 2020 the defence’s mandamus argument was heard virtually by my colleague Leibovich J., and on October 14, 2020 he released his judgment dismissing the application (reported at 2020 ONSC 6060). He held that Misener J. had not erred in concluding that she had no jurisdiction to hear Mr. Stelwagen’s s. 11(b) Charter application. Leibovich J. explained at para. 14 of his reasons:

The trial judge seems to have thought that since his scheduling was an issue another judge should and could hear the application. He was wrong in this regard. As Misener J. noted in this case, a judge hearing an 11(b) application is frequently called upon to comment on the judge’s own schedule or the scheduling processes of that court house or that region. Judges are also, for example, required to look at their own conduct when addressing allegations that they are biased or that their actions give rise to a reasonable apprehension of bias.

[37] Leibovich J. held further that nothing in the trial judge’s comments suggested that he had prejudged the issue or that he could not approach it with an open mind, such as to disqualify him on the basis that there was a reasonable apprehension of bias. Finally, Leibovich J. declined to exercise his concurrent jurisdiction to decide the s. 11(b) issue himself, as both parties had suggested that he do.

[38] Mr. Stelwagen’s case then returned before the trial judge on October 23, 2020 to set continuation dates. When defence counsel suggested to the trial judge that his earlier comments that he should not decide the s. 11(b) Charter application “acknowledged the reasonable apprehension of bias test”, the trial judge replied:

Oh, not at all, Mr. Kinahan. Not at all. My clear reason for not wanting to hear it myself is because as a per diem Justice I was in part responsible for part of the delay in this case because of my annual vacation, and where ... in my view a trial judge has had a hand in the scheduling of his own case how can that trial judge rule impartially on whether or not the delay is reasonable or not?

[39] Dates were eventually set to complete the evidence on November 23 and 24, 2020, and November 27, 2020 was set aside for argument, both on the merits of the trial proper and on two defence applications: an application for the trial judge to recuse himself from hearing the s. 11(b) Charter application based on a reasonable apprehension of bias, and the s. 11(b) application itself.

[40] The trial resumed on November 23, 2020 and the evidence was completed the next day, as scheduled. Two Crown witnesses were recalled for additional cross-examination about social media posts they had made a few months earlier commenting on the Ontario Court of Appeal’s June 3, 2020 decision in R. v. Sullivan, 2020 ONCA 333, aff’d 2022 SCC 19, striking down s. 33.1 of the Criminal Code. Mr. Stelwagen then testified for the defence, after which the defence called further testimony from a Centre of Forensic Sciences toxicologist who had testified earlier in the trial as a Crown witness.

[41] Counsel then returned on November 27, 2020 to make submissions on the defence’s two applications, as well as on the trial proper.

[42] On December 16, 2020 the trial judge gave oral reasons dismissing both applications, followed by oral reasons in which he found Mr. Stelwagen guilty as charged. I will discuss the trial judge’s reasons for dismissing the s. 11(b) Charter application later in my reasons.

IV. Analysis

[43] Mr. Stelwagen raises three main grounds of appeal. First, he argues that the trial judge’s comments about the difficulty he would have ruling on the defence’s s. 11(b) Charter application created a reasonable apprehension of bias, such that the trial judge lost jurisdiction to hear and decide the s. 11(b) application itself. Mr. Stelwagen argues further that this also caused the trial judge to lose jurisdiction to continue with the trial once he dismissed the s. 11(b) application.

[44] Second, Mr. Stelwagen argues that the trial judge erred by not finding a breach of his s. 11(b) Charter rights.

[45] Third, Mr. Stelwagen argues that the trial judge misapprehended the trial evidence in a manner that undermines his findings of fact and compromises his reasons for convicting Mr. Stelwagen.

[46] The first and third grounds of appeal, if successful, would require Mr. Stelwagen’s conviction to be quashed and a new trial ordered. The second ground of appeal, in contrast, would require the proceedings against him to be stayed as a s. 24(1) Charter remedy, bringing the prosecution to an end.

[47] As I will now explain, I consider the second ground of appeal to be dispositive, which makes it unnecessary for me to consider or address the other grounds.

A. The Jordan framework for assessing trial delay

[48] In R. v. Jordan, a majority of the Supreme Court of Canada established a new simplified analytic framework for determining whether a criminal defendant’s trial has been unreasonably delayed, in breach of his or her s. 11(b) Charter right.

[49] The majority decision in Jordan was jointly written by Moldaver, Karakatsanis and Brown JJ. As they explained at paras. 46-47:

At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court …

If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow. [Emphasis added.]

[50] The majority added that “defence delay” includes both periods of delay over which the defendant has waived his or her s. 11(b) Charter rights (at para. 61), and delays that are “caused solely by the defence” (at para. 64). They explained further (at paras. 63-65):

The second component of defence delay is delay caused solely by the conduct of the defence. This kind of defence delay comprises “those situations where the accused’s acts either directly caused the delay . . . or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial” (R. v. Askov, [1990] 2 S.C.R. 1199, at pp. 1227-28). Deliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests, are the most straightforward examples of defence delay. Trial judges should generally dismiss such applications and requests the moment it becomes apparent they are frivolous.

As another example, 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. …

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.

[51] Turning to the issue of “exceptional circumstances”, the majority explained at para. 69:

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. [Italics in original.]

[52] The majority noted at para. 72 that “medical or family emergencies (whether on the part of the accused, important witnesses, counsel or the trial judge) [will] generally qualify” as an “exceptional circumstance”, and added at para. 73:

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

[53] Exceptional circumstances may also be found when a case is “particularly complex” (at para. 71). The majority explained further at paras. 77-78:

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

A typical murder trial will not usually be sufficiently complex to comprise an exceptional circumstance. However, if an inordinate amount of trial or preparation time is needed as a result of the nature of the evidence or the issues such that the time the case has taken is justified, the complexity of the case will qualify as presenting an exceptional circumstance.

[54] I should note that there is no suggestion that Mr. Stelwagen’s trial, which was a relatively straightforward sexual assault prosecution, albeit with a somewhat atypically long witness list, qualified as a “particularly complex case” under Jordan. Indeed, the trial judge described it in his s. 11(b) Charter ruling as “not a particularly complex case”.

[55] There is also no suggestion that the defence expressly waived any periods of delay.

B. The trial judge’s analytic errors

[56] It was common ground that that the total delay in the case at bar, between the date when Mr. Stelwagen was formally charged and the date of the trial judge’s verdict – that is, between August 28, 2018 and December 16, 2020 – was approximately 27½ months.

[57] The trial judge concluded that 8½ months of this time should be subtracted as defence delay, which reduced the total delay for s. 11(b) analytic purposes to 19 months. He then held that a further 11 months should be subtracted to account for “exceptional circumstances”. On his calculations, this reduced the overall delay for s. 11(b) purposes to only 8 months, which is well below the 18 month Jordan “presumptive ceiling” for trials in the provincial courts.

[58] As I will now explain, I am satisfied that the trial judge made a number of analytic errors that affected both his time calculations and his s. 11(b) Charter analysis. These errors can be gathered together into three main groups.

[59] First, the trial judge erred in his calculation of defence delay. Most significantly, he incorrectly treated as defence delay the four month period between December 2019 and April 2020, when he was unavailable to sit, in large part because he planned to be away on vacation from January through March 2020. The Crown acknowledges that this was an error.

[60] I am satisfied that the trial judge also erred by treating the subsequent period of delay that resulted from the defence’s insistence on pursuing its mandamus application before arguing the s. 11(b) application in front of the trial judge as defence delay. While this latter period of delay was caused by the defence, the mandamus application was in my view not frivolous or “aimed at causing delay”.

[61] The trial judge then made a second analytic error when he labelled two of the time blocks that he had already subtracted as defence delay as delay that resulted from “exceptional circumstances”, and proceeded to subtract them a second time, thereby double-counting them. As I will explain, the first of these time periods should not have been subtracted at all, and the second time period should only have been subtracted once, not twice.

[62] The trial judge’s third error was to treat the time it took the trial coordinator to arrange for him to sit as an out-of-region judge, and the delays that then resulted from his own unavailability because of his previously scheduled three-month vacation, as “exceptional circumstances”. He did so on the basis that Crown counsel could not have done anything about these periods of delay. This approach was rejected by the Ontario Court of Appeal in R. v. Perreault, 2020 ONCA 580, which was released three months before the trial judge’s s. 11(b) Charter ruling but does not appear to have been brought to his attention.

[63] I will now address these three errors in greater detail.

1. The trial judge’s erroneous computation of defence delay

[64] The trial judge found three distinct periods of defence delay, stating:

In the present case, whether by virtue of commitments to other cases and Court dates and the resulting rejection of available Court dates or by virtue of proceedings by way of judicial review in the nature of mandamus in Superior Court, the following periods of time should be considered as defence delay. From October 28th to November 4th, the latter being the first available date for the defence, December 2nd to May 6th as a result of defence not being available, the Crown and the Court having been available. Now, some of these are overlapping timeframes from July 6 to October 14th as a result of the defence request to resolve Superior Court proceedings before setting continuation dates for the continuation of the trial. In this case, there is no express waiver of delay. That total defence delay I calculate to be approximately 8 1/2 months.

[65] I take no issue with the trial judge’s conclusion that the first period of delay – the week between October 28 and November 4, 2019 – should properly be considered defence delay. He found that the Crown and the court were both available for four days during the week of October 28, but that defence counsel was not. While this was disputed by defence counsel, I am satisfied that this was a factual determination that the trial judge was entitled to make, and that is entitled to appellate deference.

[66] However, the trial judge erred by treating the entire second period of slightly more than 5 months, from December 2, 2019 to May 6, 2020 – that is, the delay between the last day in 2019 when evidence was heard, to the date when the trial would have been completed but for the onset of the COVID-19 pandemic – as defence delay.

[67] As noted above, Jordan expressly holds 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.”

[68] The record in this case shows that the trial judge and Crown counsel were both available on November 25, December 2, and December 3, 2019, but that defence counsel was only available on December 2. However, the record also shows that the trial judge was unavailable for the rest of December 2019, and that he continued to be unavailable for the next three months, until April 6, 2020.

[69] Under Jordan, none of the time when the trial judge was unavailable to sit can properly be labelled as defence delay, even if defence counsel had also been unavailable throughout this period: Jordan, at para. 64. As it happens, defence counsel put on the record that he had other available dates in December 2019 and the first three months of 2020. However, the delay after December 3, 2019 would not count as defence delay even if defence counsel had been entirely unavailable during this period, because the trial judge was entirely unavailable himself.

[70] The one-month period between April 6, 2020 and the anticipated conclusion of the trial on May 6, 2020 is also in my view not properly classifiable as defence delay, since it seems to have been mainly intended to give the parties time to prepare and exchange written submissions, at the trial judge’s request. As the Jordan majority noted at para. 65:

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.

[71] The one week that was lost between November 25, 2019 and December 2, 2019, when the defence was unavailable but the Crown and the court were available, is properly treated as defence delay, as is the lost day on December 3, 2019, for the same reason. However, the trial judge erred by subtracting the entire period of more than five months, from December 3, 2019 to May 6, 2020, as defence delay.

[72] As I will discuss later, this analytic error by the trial judge was especially significant, because I am also satisfied that most of this time period is also not properly subtractable as delay attributable to “exceptional circumstances”.

[73] The trial judge also made a further error, in my view, by classifying the time between July 6 and October 14, 2020 as defence delay. This latter error is of less practical consequence, because I agree that this time period can properly be viewed as delay resulting from the exceptional circumstance of the COVID-19 public health crisis. However, as I will discuss below, the trial judge’s misclassification of this period of delay as defence delay contributed to his second calculation error, because he proceeded to erroneously subtract this delay twice, first as defence delay and then a second time as delay caused by exceptional circumstances.

[74] The trial judge seems to have concluded that the delay between July 6 and October 14, 2020 was properly classified as defence delay because it was due to the defence’s insistence on having its mandamus application heard and decided in the Superior Court of Justice before setting dates to continue the trial and argue the s. 11(b) Charter application before the trial judge.

[75] Although not clearly explained in his reasons, the trial judge seems to have treated this period of what he found to be defence delay as starting on July 6, 2020, on the basis this was the first date when trials were being scheduled in Oshawa after the partial reopening of the courts. However, there is no indication in the record that either party made any effort to have Mr. Stelwagen’s trial resume on July 6, 2020, nor is it known whether the trial judge would have been available to sit that day, or at any other time during the summer of 2020.

[76] What actually happened was that Mr. Stelwagen’s matter was addressed in court on April 6, 2020 and remanded to June 15, 2020, when it was then remanded further to August 24, 2020. Defence counsel did not appear at either of these virtual appearances, which seem to have been held under COVID-19 protocols during which entire lists of cases were remanded en masse.

[77] It was only at the August 24, 2020 appearance that defence counsel appeared and took the position that no further trial dates should be set until the mandamus application, which by then had been rescheduled for October 1, 2020, had been heard and decided. I accept that the defence would probably also not have wanted to schedule trial continuation dates at any time before August 24, 2020, but there is no indication in the record that the defence was ever given this option, nor whether any such dates were available to the Crown or the court.

[78] However, it is unnecessary for me to decide whether the trial judge erred by picking July 6 as the start of the time block that he labelled defence delay, because I am satisfied that on a proper Jordan analysis, none of this time is properly classified as defence delay at all.

[79] Jordan holds that “defence applications and requests that are not frivolous will also generally not count against the defence” (at para. 65), although in some situations the resulting delay may still have to be subtracted as delay resulting from an exceptional circumstance. In this case I am satisfied that the defence’s mandamus application, while ultimately unsuccessful, was neither frivolous nor deliberately “aimed at causing delay”. Rather, it was plainly motivated by the trial judge’s own express statement on the record on December 2, 2019 that he thought any defence s. 11(b) application “should be before another judge”. I think it was entirely understandable why defence counsel treated the trial judge’s comment as a judicial direction, rather than as a mere suggestion.

[80] My conclusion that the defence’s efforts to have the s. 11(b) application heard by another judge was not a deliberate delaying tactic is reinforced by the fact that these efforts would not have caused any delay had it not been for the onset of the COVID-19 pandemic in March 2020. The defence first sought to argue its s. 11(b) Charter application before Misener J. on February 27, 2020, and when she declined jurisdiction, brought a mandamus application in the Superior Court of Justice that was returnable on March 18, 2020. These steps did not cause any trial delay, because the trial judge was still away on vacation and unable to sit until April 6. If the mandamus application had been heard as scheduled, rather than being adjourned because of the COVID-10 pandemic, it would not have delayed the trial at all.

[81] I am also satisfied that the defence’s subsequent insistence in August 2020 on having its mandamus application heard and decided before new trial continuation dates were scheduled before the trial judge was not a decision made in bad faith or one that was “aimed at causing delay”. To the contrary, based on the trial judge’s own comments on December 2, 2019, the defence had every reason to believe that the trial judge would have refused to hear the s. 11(b) Charter application if it was brought before him. In this context, I think it was reasonable for defence counsel to conclude that scheduling return dates before the trial judge before the mandamus application was heard and decided would not actually speed up the trial. At the very least, I am satisfied that there is no basis for finding that the defence took its position in a deliberate attempt to delay the trial.

[82] In summary, I am satisfied that the trial judge erred by subtracting 8½ months from the overall delay as “defence delay”. In my view, the correct figure that ought to have been subtracted as defence delay within the meaning of Jordan was only two weeks. This reduced the total delay for Jordan purposes to approximately 27 months, as opposed to the 19 month figure that was calculated by the trial judge.

2. The trial judge’s erroneous double-counting of time

[83] The trial judge’s second analytic error was that he proceeded to double-count two of the blocks of delay that he had erroneously labelled defence delay, by subtracting them a second time as delay that was caused by “exceptional circumstances”. He made this mistake twice.

[84] First, after having already subtracted the entire period between December 2, 2019 and May 6, 2020 as defence delay – erroneously, as discussed above – the trial judge then subtracted part of this same time period again – the three months between January 1 and March 31, 2020 – as delay resulting from the “exceptional circumstance” of his own vacation. As I will discuss later in my reasons, I am satisfied that this was also an error, and that this period of delay should not have been subtracted at all. However, it was an analytically distinct error for the trial judge to subtract it twice, having already subtracted it as defence delay.

[85] The trial judge then made a similar computation error when he subtracted the entire period between March 15 and October 14, 2020 as delay resulting from the exceptional circumstance of the COVID-19 pandemic, failing to recognize that he had already – and, as I have already explained, in my view erroneously – subtracted part of this same period, the time between July 6 and October 14, as defence delay. As I will discuss below, I agree that some of this time period is properly treated as delay resulting from exceptional circumstances. However, it can still only properly be subtracted one, not twice.

[86] The trial judge’s double-counting calculation errors led him to subtract approximately 6 months and 1 week more delay than he ought to have subtracted. Based on his own assessments of defence delay and delay resulting from exceptional circumstances, the trial judge should have arrived at a total delay figure for Jordan purposes of approximately 14 months and one week, rather than 8 months. Since this higher figure would still have been under the 18 month Jordan presumptive ceiling, this calculation error would have been no real consequence if it had stood alone.

[87] However, this error did not stand alone. I have already discussed the trial judge’s erroneous classification of defence delay. As I will now discuss, I am satisfied that he also erred in his assessment of the amount of delay that can properly be attributed to “discrete exceptional circumstances”.

3. The trial judge’s errors in subtracting delay to account for “exceptional circumstances”

[88] The trial judge concluded that three different time periods, adding up to eleven months, should be subtracted from the overall delay to account for “discrete exceptional circumstances”. As I will now explain, I have concluded that the trial judge made errors in his assessment and analysis of all three of these time periods.

a) December 20, 2018 to January 22, 2019 (1 month)

[89] As I have previously noted, Mr. Stelwagen appeared for a judicial pre-trial in the Ontario Court of Justice on December 20, 2018, at which trial dates were to be set. However, the pre-trial was then adjourned for a month, to January 22, 2019, after it was decided that since Mr. Stelwagen is a Durham Regional Police officer, a judge from another region should be brought in to preside over his trial, and the trial coordinator needed more time to make these arrangements.

[90] The trial judge treated this as an exceptional circumstance on the grounds that it was outside Crown counsel’s control. He explained that he was removing from consideration in the s. 11(b) analysis the time period:

From December 20 [2018] to January 22nd [2019], to enable the Trial Coordinator to locate and schedule an out of region Justice by virtue of the accused being a local regional police officer. By local, I refer to Durham Regional Police. This is a matter over which the Crown had no ability to control. [Emphasis added.]

[91] Jordan defines exceptional circumstances as delay for reasons that “lie outside the Crown’s control” (at para. 69, italics in original), and the trial judge evidently interpreted “the Crown” narrowly, as meaning Crown counsel.

[92] However, this interpretation was rejected by the Ontario Court of Appeal in R. v. Perreault, 2020 ONCA 580, which was released a few months before the trial judge gave his s. 11(b) Charter ruling but does not seem to have been brought to his attention. In Perreault, the defendant’s trial had been delayed when no judge was available to hear his case on the scheduled trial dates, in part because two local judges were away attending an educational program. The Court of Appeal concluded that this did not qualify as an “exceptional circumstance” under Jordan, and added (at para. 5):

Nor does it matter that the prosecuting Crown can do nothing about the staffing of courts. The Crown at large is responsible for preventing systemic delay.

[93] In my view, this holding applies equally in the case at bar, and is controlling. It does not matter that Crown counsel could not directly control judicial assignments or sitting schedules, since s. 11(b) applies to “the Crown at large”. Indeed, the principle that the Crown is responsible for systemic delay is well-settled. As Cory J. observed more than thirty years ago in his majority reasons in R. v. Askov, [1990] 2 S.C.R. 1199 at p. 1225:

It must be remembered that it is the duty of the Crown to bring the accused to trial. It is the Crown which is responsible for the provision of facilities and staff to see that accused persons are tried in a reasonable time.

[94] In my view, the trial scheduling complications that arose because of Mr. Stelwagen’s status as a local police officer were neither an “exceptional circumstance” nor entirely outside of Crown counsel’s control. I reach this conclusion for two main reasons.

[95] First, the fact that Mr. Stelwagen was a Durham Regional Police officer charged with an off-duty offence was not “reasonably unforeseen”, since his status would have been known to Crown counsel, or at least would have been readily ascertainable, from the time he was first charged in August 2018. Crown counsel accordingly had plenty of time before the December 2018 judicial pre-trial to decide that Mr. Stelwagen should not be tried by a local jurist, and to ensure that the trial coordinator provided the December 20, 2018 pre-trial judge with sitting dates for out-of-region judges. I see no good reason why this could not have been arranged well in advance of the December 20, 2018 pre-trial.

[96] Second, the Crown had alternative methods at its disposal by which it could have achieved the desired goal of having Mr. Stelwagen tried by a judge who does not regularly sit in Oshawa. Instead of bringing in an out-of-region judge to sit in Oshawa, the Crown could have simply moved the trial either to a different judicial centre in Central East Region, or out of the region entirely, either on consent of the defence, or by applying for a change of venue under s. 599 of the Criminal Code, or by arranging to have a new information laid in a different court: see R. v. Ellis, 2009 ONCA 483.

[97] For both of these reasons, I find that the trial judge erred by treating this initial month of delay as a consequence of “exceptional circumstance”. Since judicial scheduling is the responsibility of “the Crown at large”, the trial judge was wrong to treat the scheduling issue that arose in this case as “a matter over which the Crown had no ability to control”. Moreover, Crown counsel did have the ability to control the process, either by taking steps to ensure that the trial coordinator obtained the necessary information about judicial sitting schedules well before the December 20, 2018 judicial pre-trial, or by pursuing one of the alternative avenues by which the trial could have been moved to a different courthouse.

[98] The scheduling issue that arose in this case was in my view well within “the Crown’s” control, whether “the Crown” is understood in the broad sense of “the Crown at large”, or even in the narrower sense of “Crown counsel”. None of this delay is properly deductible as delay resulting from a discrete exceptional circumstance. Rather, it was purely systemic delay.

b) January 1 to March 31, 2020

[99] The trial judge also subtracted the period in the first three months of 2020, when he was outside Canada on vacation, as a further delay that was attributable to “exceptional circumstances”, explaining:

From January 1st to March 31st, the prescheduled annual vacation out of the country of this assigned per diem Justice occurred. The Crown could not have been aware of this eventuality and it was a matter over which the Crown had no control and no reasonable possibility to remedy.

[100] In my view, this passage reflects the same analytic error that I have already discussed. While Crown counsel may not have had any control over the trial judge’s vacation schedule, this was beside the point, since “[t]he Crown at large is responsible for preventing systemic delay”: Perreault, at para. 5.

[101] More generally, I find that the possibility that assigning this trial to a per diem judge might cause scheduling difficulties and create a s. 11(b) delay problem was readily foreseeable, and ought to have been foreseen both by the trial coordinator’s office, which is part of “the Crown at large”, and by Crown counsel.

[102] As Green J. explained in R. v. J.P., 2020 ONCJ 27, at para. 80, per diem judges of the Ontario Court of Justice are:

… semi-retired provincial court judges who are entitled to preside a fixed number of days a year (at most, approximately half those of full-time judges) until they turn 75, who have signaled their willingness to continue judging on a part-time basis, and whose availability (a matter of individual discretion) pairs with the needs of the court requesting assistance.

He explained further at para. 81:

As their designation suggests, per diem judges are generally not expected to sit for more than a few consecutive days at a single courthouse. Like substitute school teachers, they fill short-term vacancies in a judicial roster, helping bridge a gap until the regularly assigned judge returns or a replacement appointed. As a result of their personal agendas, liberty to decline offered assignments, pre-arranged commitments to multiple courts, and limited authorized sitting days, per diem judges are rarely asked to assume carriage of multi-day trials, particularly those with indefinite termination dates. As a general proposition, the schedules of per diem judges do not afford the certainty or flexibility necessary to reliably respond to changing circumstances and the pressure of an approaching presumptive ceiling. [Emphasis added.]

[103] While Mr. Stelwagen’s trial was not extraordinarily long or complex, the Crown planned to call six witnesses, and the trial was expected to take six days. Assigning a trial of this length to a per diem judge was an inherently risky decision, for the reasons Green J. outlined in J.P. The risks were heightened considerably here when the trial was scheduled to start in November, and was then assigned to a per diem judge who habitually left the country for an extended winter vacation each year. It was entirely predictable that if anything went wrong and the trial could not be finished in the six days that had been set aside for it in November, there would be serious problems finding continuation dates within a reasonable time.

[104] Moreover, the trial judge’s observations during the November 13, 2019 scheduling discussion, which I quoted earlier, indicate that these risks were well-known and well-understood ahead of time. When discussing the difficulty the parties were having finding continuation dates, the trial judge commented:

This frankly happens every year when I either run out of dates or I’ve had enough for one year. They give me these long cases that are hard to predict in terms of their length of time and I don’t have any more dates to give. It puts everyone in a very difficult position, and Trial Coordination knows that.

[105] In this context, I am satisfied that the trial judge’s unavailability to sit between December 4, 2019 and April 6, 2020, which seems to have been due in some combination to his having “run out of dates” in December because of the limits on per diem judges’ sitting days, and because of his pre-planned vacation schedule, is not properly viewed as an “exceptional circumstance” within the meaning of Jordan. It was neither reasonably unforeseeable nor unforeseen. It was also not “reasonably unavoidable”, since the scheduling problems that arose could have been avoided either by assigning the case to a full-time judge whose sitting schedule was not similarly constrained or, if bringing a full-time judge to Oshawa was administratively impractical, by moving the trial to a different judicial centre.

[106] I am accordingly satisfied that it was an error for the trial judge to treat a portion of the delay between December 3, 2019 and April 6, 2020 – namely, the three months that he was out of the country on vacation, from January to March 2020 – as an “exceptional circumstance” that did not count against the Jordan presumptive ceiling.

c) Delay after the onset of the COVID-19 pandemic

[107] The trial judge also appears to have treated the entire period of approximately 7 months between March 15, 2020, when court operations were suspended because of the COVID-19 pandemic, and October 14, 2020, when Leibovich J. ruled on the mandamus application, as further delay caused by “exceptional circumstances”. This led him to conclude that a total of 11 months should be subtracted on account of exceptional circumstances, namely: (i) the month that the judicial pre-trial was delayed to obtain out-of-region judicial availability dates (December 20, 2018 to January 22, 2019), (ii) the three months that the trial judge was away on vacation (January 1 to March 31, 2020), and (iii) the seven months he attributed to COVID-19 (March 15 to October 14, 2020).

[108] I agree that the closing of the courts because of the COVID-19 pandemic is properly viewed as an “exceptional circumstance”. However, its impact on the pace of Mr. Stelwagen’s trial was limited. The closing of the courts in mid-March 2020 did not immediately cause any new delay, since his trial was already not scheduled to resume until April 6, 2020 because of the trial judge’s vacation schedule, and was then not expected to finish until May 6, 2020, apparently because the trial judge was requesting written submissions that counsel needed time to prepare. In my view, in these circumstances the only time that is properly deductible as delay due to the “exceptional circumstance” of COVID-19 is the delay that ensued after May 6, 2020, when the trial would have been completed had it not been for the COVID-19 pandemic. See R. v. Gonsalves, 2022 ONSC 6004, at paras. 20-24.

[109] As the Jordan majority noted at para. 105, when an “exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted”. The delay between March 15 and May 6, 2020 in this case cannot be “reasonably attributed” to the COVID-19 pandemic, because it would have existed in any event. By analogy, while an illness suffered by a trial participant can plainly constitute a “discrete exceptional event” if it actually causes some trial delay, no time would properly have been subtracted in this case if the trial judge had fallen ill for several weeks while he was away on vacation, since his illness would have had no effect on his sitting schedule, or any impact on the pace of Mr. Stelwagen’s trial. In my view, the COVID-19 pandemic can similarly only be invoked to excuse delay that would not have otherwise occurred in any event.

[110] In summary, while some of the delay in this case is properly deductible as attributable to the COVID-19 pandemic, the amount of delay that the trial judge ought to have subtracted on this basis was in my view only slightly more than 5 months, from May 6 to October 14, 2020, and not 7 months.

C. Were Mr. Stelwagen’s s. 11(b) Charter rights infringed?

[111] Section 11(b) Charter decisions are reviewable on a correctness standard, although trial judges’ findings of fact are entitled to appellate deference. As I have already explained, I have found that the trial judge made multiple legal and computational errors in his s. 11(b) analysis that caused him to deduct much more time than was properly warranted. The question I must now consider is whether a correct application of the principles in Jordan to the facts found by the trial judge leads to the conclusion that Mr. Stelwagen’s s. 11(b) right was infringed.

[112] The overall delay in this case from the charge date to the completion of the trial was approximately 27½ months. As I have already explained, only two weeks of this time is properly deductible as defence delay. In reaching this conclusion, I defer to the trial judge’s finding of fact that the Crown and court were available on October 28, 2019 but that defence counsel was not.

[113] Subtracting the two weeks of defence delay from the overall delay leaves a total remaining delay of approximately 27 months. This is the period of delay that must be measured against the presumptive ceiling. Since this delay exceeds the 18 month presumptive ceiling for trials in the provincial courts, “the burden shifts to the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances”: Jordan, at para. 105.

[114] I have already explained why I do not think the month-long adjournment of the judicial pre-trial to allow the trial coordinator to find dates for an out-of-region judge to come to Oshawa qualifies as a discrete exceptional event. The need to arrange for an out-of-region jurist could, and in my view should, have been addressed well in advance of the December 20, 2018 pre-trial. I am not satisfied that any further subtraction is justified for any of the delay between the August 28, 2018 charge date and the start of the trial on November 4, 2019, bearing in mind that the week between October 28 and November 4, 2019 has already been subtracted as defence delay.

[115] Further delay then ensued after the trial started on November 4, 2019. The first event that then caused delay during the initial block of six scheduled trial dates was Crown counsel’s decision to request the afternoon of the first scheduled trial date off so that she could attend the judicial swearing-in of a friend and work colleague as his personal speaker.

[116] I agree that this delay is properly treated as a “discrete exceptional circumstance”. It was not something that could have been reasonably anticipated by the parties when Mr. Stelwagen’s trial dates were set in January 2019. Moreover, while the decision to schedule the swearing-in ceremony on that particular day was made by the Ontario Court of Justice, and as such can be attributed to “the Crown at large”, I accept that there was no realistic way that the ceremony could have been scheduled that would probably not have interfered with some ongoing trial, somewhere.

[117] I also agree that even though Crown counsel’s decision to attend the ceremony was not a choice that was forced on her, it would not be reasonable to expect her to have done otherwise. Judicial swearings-in are significant life events for the people involved, and I entirely understand why it was important to Crown counsel that she attend and speak for her friend. I am also not in the least bit critical of the trial judge for granting her the time off, or of defence counsel for supporting her request. Indeed, I would be quite astonished if either of them had done anything differently.

[118] However, I should also add that when the trial started on the morning of November 4, both counsel were under the impression that the Crown’s case would take only a day and a half to present. Crown counsel advised the court that she and defence counsel both expected the evidence to be completed that week, and that they would be able to make submissions the following Tuesday, although she presciently hedged her remarks by adding: “Of course, famous last words and all that …”.

[119] Although I view Crown counsel’s decision to take the half-day off on November 4 to attend her friend’s swearing-in as reasonable, and do not fault her for it, I also do not see it as entirely without consequences for the s. 11(b) Charter analysis. Since Crown counsel knew before the trial began that a half-day out of the six scheduled trial dates would be lost because of her own personal commitment, it became all the more important that she organize her case and arrange her witness list to try to minimize the impact of any further problems that might arise. While the specific issues that arose later in the trial might not have been foreseeable, the possibility that some issue might arise that would cause delay was entirely predictable. Few trials run as smoothly as everyone hopes they will. It was especially important that Crown counsel turn her mind to the importance of finishing this trial on time because it was proceeding before a per diem judge, which would predictably make obtaining continuation dates more difficult if they were needed.

[120] The Crown argues that the ensuing delays that caused the trial not to finish in the remaining time that had been set aside in November 2019 should all be treated as discrete exceptional circumstances for which the Crown bears no responsibility. As the Crown submits in its factum:

The Crown (and defence) made a realistic estimate of the time needed to complete this trial. Due to unforeseen issues and witness availability during the trial, the trial was not completed in the 6 days that were scheduled. This was out of the Crown’s control and an exceptional circumstance for which there should not be a stay of the charge.

[121] I disagree that all, or even most, of the problems that arose in this case were unforeseeable in advance or unavoidable. In particular, Mr. Watkins’s unwillingness to put his commitments as a witness over his professional obligations was something that the Crown could and should to have known about, and in my view ought to have taken into account when she was organizing her case and ordering her witness list. While some of the specific issues that led to Mr. Watkins’s evidence taking longer than expected may not have been predictable, I think that much of the ensuing delay can be traced to the Crown’s own choices about how it would present its case.

[122] Identifying the precise causes of trial delay is rarely straightforward, since it often involves the convergence of multiple factors and contributing causes. As Juriansz J. (as he then was) put it in R. v. Paryniuk, at para. 14, identifying the causes of trial delay “is a daunting task”:

Human life and interaction are immensely complicated. The results of an act by a one-party are not isolated from the results of that party’s other acts and the results of the acts of others. When one pebble is dropped into a calm pond, it is easy to say that the pebble caused the resulting waves. When different people each drop several pebbles of different sizes and shapes into the pond at different times, it becomes more difficult to account for the wave pattern. A mathematical quantitative approach clearly is unworkable. What is required is an examination and evaluation of the components of the delay and a judicial judgment as to whether the delay is unreasonable in light of the interests that section 11(b) guarantees.

[123] In the case at bar, the main reason the trial did not finish in the allotted time was because of the issues that arose during Hugh Watkins’s testimony. I accept that it was not readily foreseeable before Mr. Watkins testified on November 6, 2019 that he would dispute the accuracy of the transcript of his recorded police statement. When this issue arose late on the first day of his testimony, Crown counsel, despite having previously told the trial judge that she agreed that the transcript was accurate, resiled to some extent from her previous position and expressed uncertainty about whether the transcript might contain errors. The problem was ultimately addressed with little difficulty when Mr. Watkins eventually returned to the witness stand, simply by playing him the video recording, at which point he agreed that the transcript was indeed accurate. If Mr. Watkins had been able to return the next morning to continue his evidence, the transcript accuracy issue would have caused very little loss of court time.

[124] However, the issue took on a life of its own because of three other factors, at least some of which I think were within the Crown’s power to have reasonably anticipated and/or addressed.

[125] First, Mr. Watkins, who is a psychotherapist, objected to returning to complete his evidence the next day – Thursday, November 7, which was the last scheduled sitting date that week – because he had appointments scheduled with patients that he did not want to cancel or reschedule on short notice. The trial judge accommodated his concerns by permitting him to return to finish his evidence the following week, on Tuesday, November 12 – the next scheduled date after November 7 – but did so on the understanding that the scheduled November 7 date would not be wasted, and that the Crown would use it to call another witness.

[126] However, the second factor that then arose was that on November 7 Crown counsel chose not to call her final witness, the complainant. She apparently did so because defence counsel was now threatening to bring a mistrial application if Crown counsel would not agree that the transcript of Mr. Watkins’s statement was accurate. As a result of the Crown’s decision, the scheduled November 7 date went unused.

[127] In my view, the loss of this date was entirely avoidable, and falls at the feet of the Crown. The prospect of the defence obtaining a mistrial because of the transcript accuracy issue was remote. On the other hand, the prospect of the trial being badly delayed if the evidence was not completed in the allotted time was very real.

[128] Third, when Mr. Watkins returned to the witness stand on November 12, he again did not finish his evidence, in part because the trial judge elected to end court early because the weather forecast was calling for snow. Mr. Watkins once more objected to returning to complete his evidence the next day because he again had patients scheduled, and the trial judge again acceded to his request.

[129] The November 13 date did not go entirely unused, because the Crown called the complainant to testify, and she completed her evidence that day. However, as I have discussed, the complainant could have been called to testify already, on November 7. If this had happened, it would then have been open to the trial judge to tell Mr. Watkins on November 12 that he had been indulged once, but that he now had to give priority to his commitment to the court and return on November 13 to complete his evidence, which ended up taking less than half a day to finish when he finally did return on December 2, 2019.

[130] In my opinion, a significant contributing cause of the problems that arose with Mr. Watkins were the direct result of Crown counsel’s decision to call him as her third witness on November 6, 2019, starting after the lunch recess. She did so even though it was entirely foreseeable that this meant that his evidence might not finish that day, and that that he would then object to returning to court the next day because of his professional calendar. None of the other Crown witnesses, with the possible exception of the CFS toxicologist, seem to have had similarly inflexible personal schedules. If Crown counsel had anticipated these possibilities, which I think she ought to have done, there were a number of different ways she could then have addressed them:

• She could have rearranged her witness list to ensure that Mr. Watkins was called as the first witness on a sitting day, thereby increasing the chances that he would finish his evidence in a single day and would not have to return;
• Crown counsel, having decided to call Mr. Watkins in the afternoon, could have taken steps to make sure that he had cleared his calendar and was free to return to court the next day, if necessary;
• Crown counsel could have simply impressed on Mr. Watkins that his obligations as a witness took priority over his professional calendar, and insisted that he reschedule any patient appointments so that he could return to testify on November 7 once this proved necessary;
• Crown counsel could have chosen to accommodate Mr. Watkins’s wishes on November 7 but still made sure that the date was not wasted by calling her remaining witness to testify that day, rather than letting the day go unused. While it is understandable why Crown counsel would not want to make the complainant testify unnecessarily if a mistrial were later declared, there was in my view never any strong, or even realistic, chance of this happening over the statement transcript accuracy issue.

[131] In my view, Crown counsel’s failure to do any of these things was the main proximate cause of the scheduled November 7 sitting date going unused, which in turn was a major contributing cause of the ensuing trial delay. I am not persuaded that the events that led to the scheduled November 7 trial date being wasted were either unforeseeable or unavoidable, even if the specific issue about the accuracy of Mr. Watkins’s statement transcript was one that arose unexpectedly.

[132] As I have already discussed, the Crown’s decision not to call the complainant to testify on November 7 then had repercussions the next week, when Mr. Watkins returned to court on November 12, once more did not complete his evidence, and once again objected to being made to return the next day. The trial judge did not force Mr. Watkins to return on November 13 because this date could be used, and was used, to hear from the complainant. However, this was only necessary because she had not already testified the previous week, on November 7, as she might well have done. If the complainant had already testified before November 12, Crown counsel and the trial judge could potentially have insisted that Mr. Watkins return on November 13 to complete his evidence, rather than giving priority to his professional appointments and letting him to return to complete his evidence on December 2.

[133] Since Mr. Watkins’s evidence ended up taking less than half a day to complete, if Mr. Watkins had finished testifying on November 13, Mr. Stelwagen could have begun his own testimony that day. When Mr. Stelwagen eventually testified on November 23, 2020, he began his evidence in the early afternoon, at around 12:30 p.m. and completed testifying by around 10:30 a.m. the next morning. Accordingly if Mr. Watkins had completed his evidence on the morning of November 13, it is entirely realistic to imagine that Mr. Stelwagen would have also been able to start and finish his evidence that same day.

[134] I accept that it is possible that defence counsel would not have wanted to risk having his client’s evidence split up over two days, which was the position he later took on December 2, and that he might have requested that Mr. Stelwagen not start testifying until December 2. However, it is important to note that on December 2 it was already known that the trial could not resume until April 6, 2020, more than four months later. Defence counsel might not have had the same concerns about being unable to communicate with his client while he was in cross-examination if the adjournment had only been for a few weeks.

[135] In summary, I agree that some of the events that led to the evidence at trial taking longer to adduce than the parties had expected properly qualify as discrete exceptional circumstances that justify condoning some additional delay. However, I also think that the impact of these unpredicted and unpredictable events was limited. While Crown counsel might not have foreseen the specific reasons why Mr. Watkins’s testimony took as long as it did, the possibility that his evidence might take longer than a half-day was in my view entirely foreseeable. As I have already discussed, there were various ways that the Crown could have minimized the impact of this foreseeable possibility materializing. Moreover, once the problem did materialize, the Crown could have significantly reduced its impact on the overall trial schedule by using the court time that had been set aside on November 7, 2019 to call the complainant, rather than allowing this scheduled court day to be entirely wasted.

[136] Considering all the circumstances, I am prepared to treat the delay of approximately three weeks that passed between the last scheduled date on November 13, 2019 and the December 2, 2019 continuation date as “unavoidable delay” that arose from a “discrete exceptional circumstance”. Even if the Crown had not caused the November 7, 2019 date to go unused, I think it is likely that the December 2, 2019 date would still have been needed for submissions. However, I am not satisfied that it would have been necessary to use the December 2 date to call defence evidence. While it is possible that Mr. Stelwagen would not have been able to complete his testimony on November 13, 2019, I think it is more likely than not that he would have been able to do so. In any event, it is the Crown’s burden to affirmatively demonstrate that delay was “caused by … discrete exceptional circumstances” (Jordan, at para. 75). Any uncertainty about how the trial would have unfolded if the Crown had made different litigation choices must in my view weigh against the Crown. [^1]

[137] However, one week of this three-week period of delay has already been deducted as defence delay, to account for the fact that the Crown and the court both could have returned on November 25, 2019, but defence counsel was unavailable. Accordingly, to avoid double-counting, only two weeks from this period should be deducted as caused by a discrete exceptional circumstance.

[138] I will accordingly subtract a total of two weeks to account for delay caused by the discrete exceptional events that arose during the first block of scheduled trial dates, including the trial Crown’s attendance at the swearing-in ceremony and the unavoidable portion of the delay that resulted from Mr. Watkins’s evidence running longer than expected, taking into account my conclusion that the Crown could and should have done more to reduce the impact of this latter event.

[139] I would also note that I have already subtracted one day as defence delay, to account for the defence counsel’s unavailability on December 3, 2019. If events had unfolded differently, it may well have been that this additional date would not have been needed. However, s. 11(b) calculations are rarely so precise that a single day is determinative, and in this case this single day ultimately does not matter.

[140] As I have already explained, I am not persuaded that any further subtraction is warranted in relation to the delay that was then caused by the trial judge’s unavailability between December 4, 2019 and April 6, 2020, because of his sitting limits as a per diem judge, and his planned vacation schedule. I am also not persuaded that any deduction is justified for the anticipated delay between April 6 and May 6, 2020, which seems to have been due to the trial judge’s request that counsel prepare written submissions. While requesting written submissions at that point was not unreasonable given the passage of time, I am not satisfied that the trial judge would have found it necessary to have counsel prepare written submissions if he had heard argument on December 2, 2019, within a few weeks of hearing the evidence.

[141] In my view, the approximately five months of delay between December 4, 2019 and the anticipated conclusion of the trial on May 6, 2020 is all properly treated as systemic delay that weighs against the Crown in the s. 11(b) Charter analysis.

[142] I agree that most, if not all, of the delay that ensued after May 6, 2020 is properly subtractable as resulting from a combination of discrete exceptional circumstances, the most significant of which was the COVID-19 pandemic and its aftermath.

[143] As I see it, any delay that resulted from defence’s insistence on arguing its mandamus application before trial continuation dates were set can also be traced back to the shutdown of the courts on account of COVID-19. As I have already explained, if the COVID-19 pandemic had not hit when it did, the defence’s efforts to argue the s. 11(b) application in front of a different judge would not have caused any trial delay, since the issue would have been fully litigated and decided before the trial judge returned from his winter vacation and resumed sitting in early April. It was the onset of the COVID-19 pandemic that then led to the defence’s mandamus application, which had originally been scheduled for March 18, 2020, not being heard and decided until October 14, 2020.

[144] However, if I subtract all of the delay between May 6, 2020 and the eventual conclusion of the trial on December 16, 2020 – that is, a total of approximately seven months and one week, on top of the periods of delay that I have already subtracted – the total delay that remains still exceeds the Jordan presumptive ceiling of 18 months.

[145] To reiterate, the total delay in this case is approximately 27½ months. Subtracting two weeks as defence delay brings the total down to approximately 27 months. When two weeks that I have allocated as caused by discrete exceptional circumstance during the first block of trial dates is subtracted, this reduces the total to approximately 26½ months. Subtracting a further seven months and one week then leaves a total remaining delay of approximately 19 months and 1 week.

[146] While this does not exceed the 18 month presumptive ceiling by a great deal, any delay that exceeds the ceiling is presumptively unreasonable. The Crown can only rebut this presumption by showing that the delay in excess of the ceiling was due to exceptional circumstances. As I have explained, I am satisfied that some of the delay in this case can be explained on this basis, but not enough to reduce the remaining total below the presumptive ceiling. Under the Jordan s. 11(b) analysis, “[i]f … the remaining delay exceeds the ceiling, the delay is unreasonable and a stay of proceedings must be entered”: Jordan, at para. 76.

[147] I find that Mr. Stelwagen’s s. 11(b) Charter rights were infringed. He is entitled to a Charter remedy, and in this context “a stay of proceedings is the only possible remedy”: R. v. J.F., 2022 SCC 17, at para. 84; R. v. Rahey, [1987] 1 S.C.R. 588, at p. 614; Jordan, at paras. 35 and 47; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 24.

V. Disposition

[148] In the result, Mr. Stelwagen’s appeal is allowed, the conviction against him entered at trial is quashed, and the proceedings against him are stayed. This makes it unnecessary for me to consider or address his other grounds of appeal, which would, if successful, have resulted in a new trial being ordered. In contrast, the stay of proceedings that must be entered as a s. 24(1) Charter remedy for a breach of a defendant’s s. 11(b) Charter rights is “tantamount to an acquittal”: R. v. Jewitt, [1985] 2 S.C.R. 128.

The Honourable J. Dawe Released: March 24, 2023

[^1]: I should add that the defence only recalled the forensic toxicologist to testify on November 24, 2020 because during the intervening months the Ontario Court of Appeal had struck down s. 33.1 of the Criminal Code in R. v. Sullivan, 2020 ONCA 333, aff’d 2022 SCC 19, enabling Mr. Stelwagen to raise the issue of his intoxication as a possible defence. The defence also had two Crown witnesses recalled to cross-examine them on social media posts they had made about the Court of Appeal’s Sullivan decision. If the trial had concluded in the winter of 2019, none of these witnesses would have been recalled.