CORRECTED DECISION ON SECTION 11(b) APPLICATION

In compliance with the publication ban, the accused is now referred to as M.L. in Appendix A.

CORNELL J.

Introduction

[1] The accused has requested a stay of proceedings pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms as a result of an alleged infringement of his right to be tried within a reasonable time as guaranteed by s. 11(b) of the Charter. In accordance with the reasons that follow, the application is dismissed.

Background

[2] A four-count preferred indictment was issued on April 29, 2020. The first two counts are in connection with allegations that M.L. committed an historic assault upon his daughter, S.L., when she was young and that he did touch her for sexual purpose at a time when she was under the age of 14.

[3] It is also alleged that the accused, M.L. sexually assaulted his granddaughter, A.J., who was approximately three-and-a-half years old at the time in question.

[4] On September 3, 2018, A.J. made statements to her mother that the accused had engaged in sexual activity with her. The police were immediately notified and arrangements were made for the child to be interviewed by the police the following day. Three efforts were made to obtain a statement from A.J. They were all unsuccessful. As a result, the Crown wishes to introduce the mother’s hearsay evidence at trial in order to detail the allegations made by A.J.

[5] Following the applicant’s arrest on September 6, 2018, he first appeared in the Ontario Court of Justice (the “OCJ”) on September 6, 2018. He was released on bail on September 12, 2018 following a contested bail hearing.

[6] The original Information was sworn on September 9, 2018. An additional Information including an additional four counts was sworn on September 11, 2018. A four-count direct Indictment was issued on April 29, 2020.

[7] The applicant’s jury trial was held over ten days from June 5-9 and June 12-16, 2023.

[8] The time elapsed from the original Information being sworn to the end of the applicant’s jury trial was 1,744 days or 57 months and 10 days. This is more than 27 months above the presumptive 30-month Jordan ceiling for proceedings in the Ontario Superior Court of Justice (the “SCJ”).

[9] As will become clear later in this decision, from the time that the matter began, it has always been the intention of the applicant to cause as much delay as possible in order to bring about the result that he now seeks to obtain. In pursuit of this objective, the record makes it very clear that he has done everything in his power to obstruct and delay the matter.

[10] The applicant is no stranger to court proceedings. He is intelligent and articulate. He has done his best to use those attributes and that experience to bring about his objective, namely, to establish sufficient delay such that a trial on the merits cannot take place.

[11] This was recognized at an early stage. On November 13, 2019, Bradley J. of the OCJ made the following factual finding:

At this juncture of the proceeding, I have concluded that the defendant will simply not cooperate with any counsel that is appointed and will continue to find reasons to adjourn the matter until it is outside of the Jordan timelines. It is important to note that the right of an accused person to retain counsel of his choosing is not absolute and is subject to reasonable limitations. Having regards to the defendant’s litigious behavior and his inability to work with counsel, I am worried that a counsel will be discharged at a later date if another appointment is made under 486.3 of the Code and the preliminary inquiry will be in jeopardy.

[12] Having made an order for amicus to be appointed, Bradley J. went on to say:

By doing so, I am making sure that the defendant will have the opportunity to make full answer in [sic] defence and that the current proceedings will no longer be disrupted by the lack of cooperation of the defendant.

[13] Justice Bradley’s words have turned out to be prophetic.

Issue

[14] The total delay in this case to the conclusion of the trial was 57 months and 10 days or a total of 1744 days. The sole issue for me to determine is whether or not defence delay and any exceptional circumstances need to be taken into account in order to determine if the delay in this case was under the 30-month period prescribed by the Supreme Court of Canada decision in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631.

Position of the Parties

Crown

[15] The Crown submits that the net delay is approximately 24 months and 17 days which is below the presumptive Jordan threshold and is presumptively reasonable.

[16] The Crown submits that 696 days are attributable to defence-delay. After deducting this amount, there remains delay of 34 months and 11 days which is over the presumptive Jordan ceiling.

[17] The Crown goes on to say that there are discrete exceptional circumstances in this case involving COVID-19 and the transition from the OCJ to the SCJ.

[18] The Crown further submits that due to my unexpected illness on February 22, 2023, a further 82 days constitute exceptional circumstances.

[19] After deduction for these exceptional circumstances, the Crown calculates that the net delay is 24 months and 17 days, an amount that is below the Jordan threshold.

Defence

[20] Although M.L. filed a 22-page factum and a supplementary factum, he does not quantify the delay other than saying that the delay is “24 beyond the 30 months ceiling/limit”. In his factum, the applicant does not take responsibility for any of the delay.

[21] An aide-memoire was prepared by amicus and filed as exhibit 1 on the s. 11(b) application. This document puts in issue a number of the Crown’s characterizations. The document suggests that 175 days “delay attributable to AV disclosure wrangling”, 81 days “delay attribute to OCJA application, absences, removals, appointments”, 70 “COVID days in dispute”, 105 days dealing with the second s. 486.3 counsel and amicus issues, and finally, 82 days in question due to my unexpected illness on February 22, 2023 should not be characterized as defence delay or exceptional circumstances. The document suggests that there are 512 days in dispute and concludes by suggesting that after the deduction for defence delay and exceptional circumstances, the net delay is 347 days over the presumptive Jordan ceiling.

Analysis

[22] On July 8, 2016, the Supreme Court of Canada released its decision in Jordan, a decision that was intended to and has had a profound effect on judicial proceedings. The court expressed, at paras. 2-3, its concern about excessive delay in the criminal justice system in the following terms:

Moreover, the Canadian public expects their criminal justice system to bring accused persons to trial expeditiously. As the months following a criminal charge become years, everyone suffers. Accused persons remain in a state of uncertainty, often in pre-trial detention. Victims and their families who, in many cases, have suffered tragic losses cannot move forward with their lives. And the public, whose interest is served by promptly bringing those charged with criminal offences to trial, is justifiably frustrated by watching years pass before a trial occurs.

An efficient justice system is therefore of utmost importance. The ability to provide fair trials within a reasonable time is an indicator of the health and proper functioning of the system itself. The stakes are indisputably high.

[23] The presumptive ceiling of 30 months in the Superior Court having been established, the Ontario Court of Appeal in R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at paras. 34-40, provided the framework on how to apply Jordan:

Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).
Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).
Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).
If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If 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).
Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).
If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).
If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48). [Emphasis in original.] [Citations in original.]

[24] I will now undertake that analysis.

Defence Delay - Disclosure

[25] As the charges include allegations of sexual assault against a three-and-a-half-year-old child, timely efforts were made to obtain an audio/visual statement from her. Three such efforts were made. The were all unsuccessful. There was additional disclosure to be provided by DVDs.

[26] When lawyers are involved, copies of this material are provided to the lawyers who are well aware of their professional obligations and the limited use to which such material can be put. In the case of self-represented individuals such as the accused, those safeguards are not present. There is a concern that a self-represented individual may use such material to intimidate a witness, post it on social media, or use it for some other improper purpose.

[27] In order to address these concerns, a self-represented party is required to attend at the Crown Attorney’s Office or at another room in a courthouse in order to view this material. Sometime in September 2018, disclosure had been provided to the accused. On October 22, 2018, the accused made a request for additional disclosure in the form of a 16-point list. On October 23, 2018, the accused was advised that he could attend at the Crown office to view the DVD material. M.L. refused to do so. On December 4, 2018, the court advised M.L.:

If you are not happy with the disclosure that you got or you are saying there are … outstanding disclosure requests, there are motions that you can bring to get that.

[28] Although M.L. was advised as early as December 4, 2018, that he could bring a motion for disclosure, the fact is that it was not until the week of May 5, 2023, that he actually did so. That application did not proceed as the accused abandoned the Stinchcombe application on the date it was to be heard; R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326.

[29] On February 27, 2019, the Crown attempted to provide the accused with a 151-page paper copy of the disclosure. Initially, the accused refused to accept it. He ultimately relented and signed to acknowledge that it had been provided. Once again, M.L. was advised that it was open to him to bring a Stinchcombe application.

[30] On April 16, 2019, a focus hearing was held with Bradley J. At that time, M.L. filed a motion alleging Crown misconduct and asking that Bradley J. recuse himself. Fifteen days were offered to the accused to view the DVD material between the hours of 10:00 a.m. to 12:00 p.m. and 2:00 p.m. to 4:00 p.m. each day. The accused refused to do so as he said that he wanted to be able to view this material from 9:00 a.m. until 5:00 p.m.

[31] On May 7, 2019, the Crown applied for the appointment of s. 486.3 counsel. M.L. refused to address the issue of disclosure and said that he will only discuss the recusal motion.

[32] On May 10, 2019, an additional focus hearing was conducted by Bradley J. The Crown had offered to have the accused sign an order whereby he agreed not to disseminate the materials or give them out. With the assistance of Bradley J., the accused agreed to sign the order.

[33] If the accused had acceded to the Crown’s initial request to view the DVD material at the courthouse in September 2018, some 199 days (6 months and 16 days) of defence delay would have been avoided. To that point, the accused had made it clear that until his disclosure demands had been met, he was not prepared to move the matter forward.

Defence Delay - s.486.3 Counsel – Ontario Court of Justice

[34] Once Bradley J. had dismissed the recusal and Crown misconduct applications, the accused turned his attention to delaying the matter by resisting the appointment of s. 486.3 counsel.

[35] This issue was raised on May 30, 2019. The Crown indicated that it was difficult to envision a situation where the mandatory order would not be made and pointed out that on October 5, 2018, the accused had been provided with a draft s. 486.3 order. The accused said that he needed more time to make submissions. On June 3, 2019, the accused advised the court that he still had not had enough time to prepare. The matter was adjourned to June 14, 2019. Rather than address the s. 486.3 application, the accused devised a new delay tactic. He brought a motion under s. 136.2(b) of the Courts of Justice Act, R.S.O. 1990, c. C.43 to be permitted to record the proceedings. Justice Bradley indicated that he would review the material and render a decision at a later point in time.

[36] Although M.L. had been given six weeks to respond to the s. 486.3 application, he advised the court that he was not prepared to address that application “until such time as an appeal of His Honour’s decision and ruling not to recuse is heard”.

[37] M.L. made additional comments that cover some 12 pages of transcript. The transcript indicates the accused’s belief that he should refer to the presiding justice as “Mr. Bradley”. He eventually relented and agreed to address him as Justice Bradley, but not before he indicated that he was seeking direction on “how to initiate my complaint against Justice Bradley for his many – for my many concerns regarding his courtroom conduct”. He went on to say “…. sorry, call him Justice Bradley is further unwelcomed bullying tactics in order to interfere with and obstruct my – the natural course of justice to allow me to make proper submissions before him”. He then objected to the matter proceeding “until such time as an appeal of His Honour’s decision and ruling not to recuse is heard”. He ended by accusing the Crown of malicious prosecution. Not rising to the bait, Bradley J. proceeded to appoint s. 486.3 counsel and adjourned the matter to July 2, 2019 at which time the court was advised that John Saftic from Sudbury had been appointed as s. 486.3 counsel but that he was unable to attend on that day.

[38] On July 30, 2019 Mr. Saftic appeared in court and asked that the matter be put over for a few weeks so that he could speak with the accused. The Crown went on record to indicate that they were in a position to set a date for a judicial pre-trial.

[39] On August 13, 2019 the matter was adjourned to September 3, 2019, as M.L. wanted to challenge the s. 486.3 appointment of counsel.

[40] On September 3, 2019 an order was made that permitted audio recording of the proceedings by the accused. To that point in time, the accused had refused to interact with s. 486.3 counsel as he was waiting for the recording order.

[41] On September 6, 2019 the court attempted to set dates, but found it difficult to do so without knowing what the issues were. Mr. Saftic was not present. The court held December 4 and 6, 2019 for a preliminary hearing pending a determination of Mr. Saftic’s availability.

[42] Mr. Saftic was not present on September 24 and October 22, 2019 at which time the matter was put over to October 29, 2019. On that day, Mr. Saftic brought an application to be removed as s. 486.3 counsel. A preliminary hearing was scheduled for March 30 and 31, 2020, as the Crown expressed great concern about the delay being caused by the accused.

[43] On November 13, 2019, Bradley J. removed Mr. Saftic as s. 486.3 counsel and made an order that amicus curiae be appointed. In doing so, Bradley J. made the following observations:

Defence counsel has made submissions that he is unable to continue to work with the defendant since there has been a breakdown in their relationship, and he is not able to continue to represent M.L.

The defendant states that he does not wish to have any lawyer representing him and clearly indicated that he wishes to represent himself. He has not applied to Legal Aid in order to retain the services of a lawyer for that same reason.

Throughout the present court proceedings, the defendant has stated on numerous occasions that he wish [sic] to cross-examine the complainants without the assistance of a lawyer. When the Crown first asked the court to make an order under s. 486.3 of the Criminal Code, the defendant actually made submissions opposing the said request. Under the circumstances, it is evident that the defendant is not cooperating with the appointed counsel.

At this juncture of the proceedings, I have concluded that the defendant will simply not cooperate with any counsel that is appointed and will continue to find reasons to adjourn the matter until it is outside of the Jordan timelines.

[44] On November 26, 2019, David Bennett was appointed as amicus. The accused did not appear and a bench warrant with discretion was issued.

[45] On December 3, 2019, the accused appeared and the bench warrant was vacated. March 30 and 31, 2020 were confirmed as dates for the preliminary hearing.

[46] On January 20, 2020, the amicus order was confirmed as funding was now in place. The accused advised the court that he has served a notice of appeal with respect to the amicus order.

[47] Because of M.L.’s consistent refusal to cooperate with s. 486.3 counsel, and later amicus, at the OCJ, a total of 84 days (2 months and 23 days) can properly be characterized as defence delay.

Discrete Event – COVID-19

[48] On March 17, 2020, the Provincial Declaration of Emergency – Ontario Regulation 50-20 was put in place effectively closing the courts, except for anything considered to be an emergency. In view of this, the preliminary hearing scheduled for March 30, 2020, was unable to proceed. In order to address the situation, the Crown took the pro-active step of preferring a direct indictment against the accused on April 29, 2020.

[49] In R. v. Khan, 2022 ONSC 7310, at para. 109, the court summarized the state of the jurisprudence with respect to COVID-19 as follows:

(a) COVID-19 is undeniably a discrete, exceptional event within the meaning of Jordan;

(b) Crown counsel must establish, however, that delays attributed to COVID-19 were actually caused by the pandemic and not some other factor. In other words, that the delay would not have been incurred but for the pandemic; and,

(c) Even where the Crown establishes that a delay was directly attributable to the pandemic, it must still establish that the delay could not reasonably have been mitigated by the court or the Crown. In making this assessment, the court will take into account advancements in the technological abilities of the court to run hearings remotely or in a hybrid manner as the pandemic went on.

[50] The issue of how to approach any delay occasioned by COVID-19 was considered by Nakatsuru J. in R. v. Simmons, 2020 ONSC 7209. The various factors he considered were helpfully summarized by the court in Khan, at para. 99:

COVID-19 had a system-wide impact. It created a backlog of cases that made re-scheduling complex and difficult. The delays created by COVID-19 were not limited to those periods of time when court operations were suspended. They included time required to reschedule matters after court operations resumed (para. 70);

It is unrealistic to think that as soon as the courts re-opened to jury trials, any trials that had to be adjourned due to COVID-19 could be rescheduled to be heard immediately;

[51] In this case, COVID-19 is directly responsible for the cancellation of the preliminary hearing that was scheduled to take place at the end of March 2020. The Crown did take steps to address the delay occasioned by COVID-19 by arranging for the delivery of a direct indictment on April 30, 2020. The record reflects the fact that technology was used to ameliorate the delay caused by COVID-19 as M.L. was permitted to appear and participate by telephone once the matter was in SCJ.

[52] On August 18, 2020, neither the accused nor Mr. Bennett were present in court when the matter was addressed in the OCJ. The matter was put over one week to August 25, 2020, to inform the accused as to the existence of the direct indictment. The accused did not appear. The matter was adjourned to October 13, 2020, in OCJ as a follow-up to the September 18, 2020 return date in SCJ. Although ample notice had been provided to the accused of this date, he did not appear on September 18, 2020 and a bench warrant with discretion was issued.

[53] On October 2, 2020, the matter appeared in assignment court in the Superior Court. The matter appears to have been conducted by telephone. Justice Nadeau was attempting to provide the accused with the return date at which time the accused responded as follows:

Write to me. I’m not – I’m not recognizing your jurisdiction to have issued the summons, Sir, therefore I do not recognize your jurisdiction to put me over to any date.

[54] Any delay to be attributed to COVID-19 must have been caused by COVID-19. In this case, the direct delay caused by COVID-19 runs from March 30, 2020 until M.L.’s first appearance in the SCJ on October 2, 2020. Part of this delay is occasioned by the fact that M.L. had failed to appear until that date. This amounts to 186 days (6 months and 3 days) of COVID-19 delay which ought to be classified as an exceptional circumstance in the Jordan framework.

Defence Delay – Jurisdiction / Non-Attendance

[55] The behaviour M.L. exhibited on October 2, 2020 brings me to the next category of defence delay. Now that M.L. had exhausted his efforts to delay the matter by refusing to view disclosure and by objecting to the appointment of 486.3 counsel and then failing to cooperate with such counsel, he implemented his next strategy which was to dispute the jurisdiction of the SCJ and not to appear.

[56] On November 12, 2020, the matter was back in court to set a date for an application to appoint amicus. It appears that this proceeding was conducted by telephone before Ellies, RSJ. After the Crown indicates that it has brought an amicus application, M.L. says:

M.L.: I think [indiscernible] anything regarding you Mr. blank

blank blank (per the transcript)

THE COURT: Yeah, I’m not recusing myself from setting dates, Mr. L.

M.L.: Well complaints will be filed about you.

THE COURT: Of course.

[57] Dates were offered in December 2020, but M.L. indicated that he was opposed to the appointment of amicus and he was unavailable on the December dates.

[58] On January 8, 2021, the Crown requested additional time to file its amicus factum, but once again, the accused did not appear and a bench warrant with discretion was issued.

[59] On February 5, 2021, the proceedings were held remotely. When the accused was asked if he was on the line, the following exchange took place:

M.L.: Yes

THE COURT: O.K. Good morning. So, Mr. L. didn’t attend the assignment court virtually last time, so since that’s the case I’m going to get you to do that this time.

M.L.: But there’s no jurisdiction on this matter.

THE COURT: I know you – I know that’s your position but today’s not the time to advance that. We have to set a date so that you can advance that.

M.L.: I have [indiscernible] you people should [indiscernible].

[60] The court then attempted to discuss dates for a pre-trial conference, but once again, M.L. disputed jurisdiction in the following exchange:

THE COURT: … I’m answering, o.k.? But March 12 at 9:00 a.m.

M.L.: No jurisdiction

THE COURT: That’s fine. You said that before. I – I would strongly advise you to attend, whether you think we have jurisdiction or not.

M.L.: [indiscernible] Would that be a threat, too?

THE COURT: Would that be another question?

M.L.: That is a question. That is right.

THE COURT: March 12 …

[61] A final exchange took place as follows:

THE COURT: … satisfy you – I can satisfy you that I have no intention of doing anything other than setting dates in your case. I will be making no decision that affects your rights.

M.L.: [indiscernible] you have no jurisdiction to [indiscernible] March 12 and you told me you strongly recommended that I [indiscernible]. I’m going to put this question to you again: Was that a threat?

THE COURT: Mr. L., I am not answering that question.

[62] The matter was adjourned to March 12, 2021.

[63] On that day, the accused engaged in the same type of conduct as he did with Bradley J. by choosing to refer to the presiding justice as “Mr. Ellies”. The Crown suggested that rather than proceed with an amicus application, they would simply ask that counsel be appointed under s. 486.3. The following exchange took place:

M.L.: I have a full understanding of what a 486 application is.

THE COURT: O.K. Do you – would you be opposing that kind of application or can I just have the Crown just submit an order?

M.L.: No, I would – first of all, I saw my name on the docket today. You and I had a conversation on February 3 where you told me I better call in. I somewhat took that as a threat, Sir, but due to the [indiscernible] I don’t know what I’m before the court on. Can you tell me what the charges are and who the complainants are?

[64] The accused was advised that the charges include “sex assault, sex interference x2 each”. M.L. responded by saying “I’m not aware of any such charges, Sir.” He went on to say that the only charges he is aware of have to do with allegedly failing to sign into the North Bay Police Service. In support of his apparent belief that he is no longer facing sex assault charges in the SCJ, the transcript suggests that he has come to this belief as a result of the discontinuance of such proceedings in the OCJ. This is yet another example of the ends to which the accused will go to in order to create additional delay.

[65] On March 29, 2021, the accused once again begins by denying why he is required to attend court. Regional Senior Justice Ellies made a point of reading the indictment to him. The Crown had served a copy of the s. 486.3 applications via email, but the accused indicated that he will not check his email because he has been told that the Crown will not communicate with him via email. The following exchange took place:

THE COURT: I’m going to finish my – what I have to say and then you can go on. 486.3 is the section that requires a court in certain …

M.L.: I already told you that I am familiar with that last time we were on the phone and you were fine with that then.

THE COURT: O.K.

M.L.: I’m not sure why you’re not fine with that now.

THE COURT: O.K. So, you understand what the section means. Will you be opposing the Crown’s request?

M.L.: I’m opposed to there being anything before the Superior Court.

THE COURT: O.K. So, that doesn’t…

M.L.: So, …

THE COURT: … answer my question. So, assuming that you’re – that this is…

M.L.: Yes, I’ll be opposing. I’ll be opposing everything, yes.

[66] There it is on full display. The accused continued to deny the court’s jurisdiction at this stage. He made it clear as he says that he’s going to oppose everything. Although unstated, it is clear he is doing this for one purpose, that purpose being to delay the matter until such time as he can mount a successful s. 11(b) Charter challenge.

[67] On April 9, 2021, the accused did not appear. The matter was put over to May 14, 2021 and a bench warrant with discretion was issued.

[68] On May 14, 2021, the accused again did not attend. The bench warrant was released and the matter was adjourned to June 4, 2021. On June 4, 2021, M.L. attended by telephone and indicated two things. First, he indicated that as a result of a recent operation, the matter will need to be put over for at least 12 weeks. Second, he said “and there’s no jurisdiction. Do what you gotta do.”

[69] In accordance with the accused’s request, the matter was put over to August 31, 2021.

[70] On that day, the accused emailed the trial coordinator’s office and indicated that he would not be attending and that the court lacked jurisdiction. A summons was issued requiring him to attend on September 10, 2021. The court was unable to proceed with the s. 486.3 application or to set a date for a judicial pre-trial due to the absence of the accused.

[71] On October 1, 2021, the accused appeared by telephone. He began by saying “I remain of the position that the court doesn’t have jurisdiction.” Despite having taken this position for many months, the accused had never filed an application to raise this question. This was not done until the week of May 8, 2023, at which time he abandoned the jurisdiction issue.

[72] After M.L. took issue with the summons that had been issued, he went on at great length to oppose the appointment of s. 486.3 counsel. Justice Kurke granted the Crown’s request that counsel be appointed pursuant to s. 486.3 of the Criminal Code, R.S.C. 1985, c. C-46. After putting on the record that the accused had attorned to the jurisdiction of this court, the court went on to caution the accused that if he did not attend court, there would be consequences. The accused responds by saying “I said, it’s a threat of punishment contrary to intimidation of the Criminal Code of Canada.”

[73] The matter was put over to November 12, 2021. On that day, Mr. Starer attended as he had been appointed as s. 486.3 counsel. The accused did not attend.

[74] The matter was put over to January 11, 2022. At that time, a judicial pre-trial was conducted before Koke J. The JPT began with discussions between Koke J. and Mr. Starer who advised that his role is limited to being s. 486.3 counsel. Shortly afterwards, the accused joined the proceedings. He began by saying:

My position has never changed, my position remains that the court does not have jurisdiction of any matter to which you refer and I’m going to tell you that I’ve only called in today because of threat, intimidation and under great duress at the hands of Greg Ellies and some of your other brothers of the bench. So that’s all I have to say to you, Sir.

[75] When the court inquired as to whether he was going to bring a jurisdiction application, he responded as follows:

Well, for me to bring an application, then I would have to be agreeable that there is actually a matter before the court. There is no jurisdiction, …

[76] Justice Koke responded by saying that he is putting the accused on notice that he has been advised to bring an application objecting to jurisdiction. As previously set out, this was not done until May 2023 at which time the application was abandoned. Despite requests being made for the accused to participate in the judicial pre-trial in a fulsome manner, he refused to do so, saying:

My position remains the same. The only thing I want, the only [indiscernible] that I want Your Honour is the spelling of your last name.

The JPT was completed and the matter was put over to the assignment court held on February 11, 2022.

[77] On that day, the accused did not attend. Once again, he sent an email to the trial coordinator informing the trial coordinator that the court does not have jurisdiction. A bench warrant was issued without discretion and the accused was re-arrested on that bench warrant on February 17, 2022 with a return date of March 11, 2022. On that day, the matter was adjourned to April 8, 2022, to set dates for trial. M.L. once again demonstrates his disrespect for the court by referring to the presiding justice as “Mr. Ellies”.

[78] On April 8, 2022, Ellies R.S.J. advised that he was able to get a judge from out-of-town to conduct the trial. This was necessary as all of the judges in North Bay were conflicted out. The matter was put over to May 27, 2022, for me to conduct a case conference to prepare the matter for trial. M.L. concluded that appearance by saying:

So my position is always going to remain the same, I’m following my avenues. I always made myself available though I’m free with the jurisdiction, so you people do what you gotta do, tell me when you want me to call and I will be calling.

[79] On May 27, 2022, I conducted an initial trial management conference at considerable length. The Crown, the accused, and Mr. Starer were present.

[80] Mr. Starer then made it known that the accused was unwilling to engage with him to provide any background information or any theories of the defence. I encouraged the accused to do so.

[81] In order to move the matter forward and given the difficulties that I was having in obtaining answers from the accused, I made an order that if the accused was seeking any pre-trial relief, he was to make that known on June 24, 2022 and that if he failed to do so, he would not be permitted to do so afterwards. I went further and indicated that the Crown was required to do so as well.

[82] The defence delay occasioned by M.L.’s refusal to recognize the jurisdiction of the SCJ and his persistent non-attendance totals 283 days (9 months and 9 days).

Defence Delay – s.486.3 Counsel – Superior Court

[83] As early as January 11, 2022, at the SCJ judicial pre-trial, Mr. Starer put on the record that M.L. had refused to communicate with him or provide instructions. This is the same tactic used by the accused in the OCJ. On June 24, 2022, Mr. Starer indicated that despite his best efforts, the accused was not prepared to talk to him. In view of that, Mr. Starer felt that he had no alternative but to seek to be removed as s. 486.3 counsel. The court asked that he consider doing so in writing in order to give the accused an opportunity to reconsider. The court also indicated to the accused that any delay associated with this development would be considered defence delay. Although the court was prepared to set the pre-trial motion dates, it was not in a position to fix a date for the trial given this development. This trial could not take place without s. 486.3 counsel. The refusal to cooperate with s. 486.3 counsel meant that trial dates could not be canvassed at the June 24, 2022 appearance date until the s. 486.3 issue was resolved on September 2, 2022.

[84] On the June 24, 2022 date, the Crown detailed the applications that it wished to bring including a Khan application. When asked to advise what applications he intended to bring, the accused continued his disrespect by addressing me as “Mr. Cornell” at which point, Ellies R.S.J. stated “Justice Cornell, Justice Cornell.” M.L responded by saying “So that’s an issue you and I will deal with by way of your superiors.” In response to a further request, the accused advised that he was bringing seven applications. They included a motion for a nonsuit, a Stinchcombe application, s. 11(b) and s. 7 Charter applications, a s. 278 application, a jurisdiction motion, a voluntariness application of the statement made by A.J. and finally, a similar fact application. The court indicated that all applications could be done in five days as many of the facts were interrelated. The matter was adjourned to November 28, 2022, for five days of pre-trial applications by both the Crown and defence.

[85] On July 29, 2022, the matter was spoken to in assignment court. Mr. Starer advised the court that he had no alternative but to bring a motion to be removed as s. 486.3 counsel as the accused was refusing to cooperate with him. The accused went on record as saying he did not want any s. 486.3 counsel to be appointed. The matter was adjourned to August 12, 2022 at which time the matter was adjourned to September 2, 2022 for Mr. Starer to bring his application to be removed as s. 486.3 counsel. On that day, I denied the request as it was abundantly apparent that the accused was not prepared to cooperate with any s. 486.3 counsel and that it was imperative that s. 486.3 counsel be in place as it was clearly inappropriate that the accused be permitted to cross-examine his daughters when the allegations involved sexual assault by him. Given this development and the demonstrated lack of cooperation from the accused, I also requested that amicus be appointed.

[86] As a result of M.L.’s persistent refusal to cooperate with s. 486.3 counsel in the SCJ, 98 days (3 months and 6 days) are properly characterized as defence delay because dates were not able to be set for trial until M.L.’s issue with s. 486.3 counsel was resolved.

[87] On September 9, 2022, the matter appeared in assignment court at which time the Crown advised that they had made the request for amicus to be appointed.

[88] On October 14, 2022, amicus appeared along with Mr. Starer. November 28, 2022 and the four days that follow were confirmed for pre-trial applications.

[89] On November 28, 2022, the Crown proceeded with its Khan and CCTV applications.

[90] The Crown proceeded to call A.J.J., one of the accused’s two daughters. A.J.J. received the disclosure from her daughter, A.J. as to allegations that she had been sexually assaulted by her grandfather, the accused. Part way through A.J.J.’s cross-examination, the accused decided to cooperate with Mr. Starer. Proceedings came to a halt when the accused wanted to use text messages to cross-examine A.J.J. After discussing the matter, counsel advised me that it would be necessary for the accused to bring a s. 278.93 application to seek to use the text messages during the course of cross-examination. The accused also advised of his intention to bring forward several pre-trial motions. This intention was formed, at the very least, as early as June 24, 2022; however, no effort was made by M.L. to file materials for these motions before the November and December dates that were set aside for both defence and crown pre-trial motions.

[91] On December 16, 2022, the matter was adjourned to February 22, 2023, for continuation of the pre-trial motions. In addition, May 8 to 12, 2023, was confirmed for the pre-trial defence applications. The weeks of June 5 and 12, 2023 were set aside for the two-week jury trial pending availability of a witness.

[92] The matter was adjourned to February 22, 2023, to permit the s. 278.93 application to be brought. On February 7, 2023, the Crown advised all parties that it was not contesting the s. 278.93 motion and it was appropriate that such text messages be used during the course of cross-examination. My endorsement indicated that on consent, the text messages could be used for the purpose. Unfortunately, I was ill on February 22, 2023 and the matter could not proceed that day.

[93] After recovering from my illness, I reviewed the “record” text messages in detail and formed the opinion that such text messages did not constitute a record within the meaning of that section. I advised counsel of this development and invited them to address the issue on May 8, 2023. At that time, all parties agreed that the text messages were not records and accordingly they were available to Mr. Starer to use during the course of cross-examination.

[94] On March 3, 2023, the court confirmed March 17, 2023 at 9:00 a.m. for a trial management conference with me.

[95] On March 17, 2023, I conducted a trial management conference by telephone at which time I ordered all of the transcripts for all of the proceedings in this matter as a request of the court so that such transcripts would be available to M.L. in order for him to present his s. 11(b) Charter application. This was the first time M.L. raised the issue of transcripts with the court.

[96] On Friday, May 5, 2023, the accused brought a motion asking that I recuse myself and advancing five grounds for so doing. Although I promptly delivered oral reasons declining to do so on May 8, 2023, I now realize that with the benefit of hindsight and a current understanding of the law, I should have simply dismissed the application on the basis that it was manifestly frivolous: See R. v. Haevischer, 2023 SCC 11.

[97] On May 9, 2023, the Crown’s Khan application continued with the cross-examination of A.J.J. At the conclusion of the Crown’s case, the accused called a police constable who offered nothing of assistance, other than the fact that the accused was known to her from her past employment and that he regularly attended the North Bay Police Station in order to report as he was on the sex offender registry. I granted the Crown’s Khan application.

[98] M.L. knew for a considerable period of time that it was the Crown’s intention to bring a Khan application in an effort to introduce A.J.’s hearsay evidence. He also knew that he wanted to make use of voluminous text messages during the course of A.J.J.’s cross-examination. If a lawyer had been involved, the lawyer would have known that such text messages did not constitute records and accordingly, no s. 278.93 application would be necessary. If such lawyer had any doubt about this, it would have been appropriate to bring a motion for direction to answer the question. Instead, it was necessary to halt the Khan application as I was led to believe that a s. 278.93 application was required before A.J.J.’s cross-examination could be completed. Had the request for an adjournment not been made in December 2022, the Khan application would have been completed then.

[99] This is an example of the type of intangible delay that I will discuss shortly.

[100] During the week of May 9, 2023 the accused advised that he was abandoning his Stinchcombe and jurisdiction applications leaving this application to be argued.

[101] Before this application proceeded, the accused indicated that it was his intention to bring an application alleging that his s. 7 Charter rights had been violated as, although Mr. Starer was a nice person, he had failed to properly represent the accused’s interests. He then went on to accuse the Crown of misconduct on three or more occasions.

Discrete Event – Trial Scheduling

[102] The issue of trial scheduling was addressed during the course of argument on May 12, 2023, at which time amicus indicated that there was an exchange of emails that dealt with this subject and that such emails could be produced if that would assist the court. The emails were available to me in the court file. A copy of the email exchange is attached to this decision as an Appendix A.

[103] As part of my trial management duties, I had asked the trial coordinator in September 2022 to canvas trial dates with counsel. Trial dates of January 9 and 16, 2023, were offered but Mr. Starer was unavailable. The weeks of May 8, 15, 22, 29, 2023 were also offered. Mr. Weinstein indicated that he was unavailable for a two-week trial in May 2023 with the result that the matter was put over until June 5, 2023, for a two-week jury trial at which time both counsel were available.

[104] In Jordan, the court addressed the issue of defence availability, at para. 64, as follows:

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.

[105] The court and the Crown were ready to proceed to trial in January of 2023. Section 486.3 counsel was not.

[106] In Jordan the Supreme Court recognized that exceptional circumstances may need to be taken into account when considering delay. This issue was considered in Khan where the court stated, at para. 16, that:

Extending the ceiling to account for exceptional circumstances recognizes that even though the established ceilings account for a broad range of factors that can reasonably contribute to the time it takes to prosecute a case, there may be unforeseen or unavoidable circumstances, beyond the Crown’s control, that contribute to delay.

[107] The unavoidable circumstances in this case include the need to appoint s. 486.3 counsel. The appointment of s. 486.3 counsel and the delay associated with his unavailability for trial was something that was “beyond the Crown’s control”.

[108] It may appear that the trial could not have taken place in January 2023, as pre-trial applications were not completed until May 2023. That is not the case.

[109] After I assumed responsibility for this matter in the spring of 2022, dates were set for pre-trial motions. All applications were to be heard from November 28 until December 2, 2022, so that the matter could conceivably proceed to trial in January 2023, as my schedule had been re-arranged for that purpose.

[110] The February 2023 date for M.L.’s s. 278.93 application would not have necessary, as had I been called upon to consider that issue in November 2022, it would have been readily apparent that the text messages in question were not records and accordingly no such application would be necessary, as turned out to be the case.

[111] It was the fact that the trial was not scheduled in January 2023 due to the unavailability of s. 486.3 counsel that led to the latitude to schedule the unnecessary s. 278.93 application on February 22, 2023, and to use days during the week of May 8, 2023 to conclude all pre-trial applications. If the trial had been able to proceed in January 2023, I would have ensured that all applications were complete by December 2, 2022, to allow the trial to proceed to trial in January 2023.

[112] While there is an argument to be made that the delay from January 16, 2023, to June 5, 2023 should be characterized as defence delay, I prefer to characterize this delay as a discrete event. Mr. Starer was appointed as s. 486.3 counsel in November 2021. When trial dates were offered to him in September 2022, he advised that he was not available for the proposed January 2023 trial dates. The delay from January 16, 2023 to June 5, 2023 had nothing to do with Crown delay or institutional delay. The delay in question was solely as a result of the unavailability of s. 486.3 counsel in January 2023 and amicus in May 2023. In view of this, the delay under consideration is, in my opinion, properly characterized as a discrete event and should be counted as such. This amounts to 133 days (4 months and 11 days) of trial scheduling delay which is a discrete event occasioned by the fact that s. 486.3 counsel and amicus were required for this trial to proceed.

Intangible Delay

[113] I use the phrase intangible delay to describe delay that is difficult to characterize or quantify. The various efforts that M.L. went to to delay the matter had a compounding effect, that is to say, the fact that there was so much delay associated with the appointment and then the removal of s. 486.3 counsel in the OCJ meant that there was delay in setting the date for the preliminary hearing. By the same token, M.L. refused to participate in the judicial pre-trial in SCJ with the result that his pre-trial applications were not identified and therefore Koke J. had no ability to schedule them in a timely fashion and to set dates for material to be filed.

[114] Although not identified as such, this issue of intangible delay was discussed in R. v. Stelwagen, 2023 ONSC 1938, at para. 122, where the court stated:

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, 2002 42545, at para. 14 (Ont. S.C.J.), 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.

[Citations in original.]

[115] Figuratively speaking, M.L. dropped many pebbles into the judicial pond at many different times throughout these proceedings. I have taken this into account in evaluating the various components of delay in this case and in assessing whether the delay caused by M.L. is “unreasonable in light of the interests that s. 11(b) guarantees.”

Delay Considered

[116] The interests that s. 11(b) guarantees is the right of an accused as well as society at large to have a trial in a timely fashion. When, as in this case, the delay is unreasonable as a result of the deliberate actions of the accused, such actions must not enable an accused to benefit from such course of action.

[117] This issue was addressed in Jordan where the majority added that defence delay includes both periods of delay over which the defence has waived his or her s. 11(b) Charter rights and delays that are caused “solely by the defence”: at paras. 61 and 64. They explain further, at para. 63, that:

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 45 (SCC), [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. [Citations in original.]

[118] This point was further addressed in Khan where the court stated, at para. 15, that:

Extending the ceiling for defence-caused delay is intended to prevent an accused person from benefitting from his or her own action or inaction that results in delay. It does not include the time reasonably required to legitimately respond to the charges. It does include deliberate tactics aimed at causing delay, including frivolous applications. See R. v. Cody, 2017 SCC 31 at paras. 29-33. [Citations in original.]

[119] There can be no doubt whatsoever on the record as presented that M.L. engaged in “deliberate and calculated tactics aimed at causing delay”. There can be no doubt whatsoever that M.L. brought many frivolous applications and requests.

[120] This should not have been a complicated case. If a reasonable self-represented person or a lawyer had been involved, disclosure would have been completed in a matter of weeks. All of the delay associated with the appointment of s. 486.3 counsel would have been avoided as consent would have been forthcoming. Once in the SCJ, at the judicial pre-trial, pre-trial applications would have been identified and scheduled with trial dates to follow. The scheduling of the trial from the defence perspective would have involved the schedule of one lawyer instead of two lawyers as is the case here. There would have been no frivolous motions involving Stinchcombe and jurisdiction. There would have been no manifestly frivolous recusal motions directed at Bradley J., Ellies R.S.J. and myself. As was said in Miracle v. Maracle III, 2017 ONCA 195, at para. 6:

Unfounded claims of bias and repeated requests for adjournments cause delay and impose added cost to other litigants and the court system.

[121] Consider the deliberate delay tactics employed by M.L. But for the actions of M.L. when the case was in the OCJ, the preliminary hearing would have been held in a timely fashion and well in advance of the COVID-19 shutdown. But for the actions of M.L., once the case was in SCJ, a timely judicial pre-trial would have given way to timely application and trial dates.

[122] It falls to me to determine whether defence conduct in this case was legitimate. I conclude that it was not.

[123] In R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, the Supreme Court addressed this issue, at paras. 31-33, as follows:

The determination of whether defence conduct is legitimate is “by no means an exact science” and is something that “first instance judges are uniquely positioned to gauge” (Jordan, at para. 65). It is highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. While trial judges should take care to not second-guess steps taken by defence for the purposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate to do so.

Defence conduct encompasses both substance and procedure — the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.

As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extend to omissions as well as acts (see, for example in another context, R. v. Dixon, 1998 805 (SCC), [1998] 1 S.C.R. 244, at para. 37). Accused persons must bear in mind that a corollary of the s. 11(b) right “to be tried within a reasonable time” is the responsibility to avoid causing unreasonable delay. Defence counsel are therefore expected to “actively advanc[e] their clients’ right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and . . . us[e] court time efficiently” (Jordan, at para. 138). [Emphasis added.] [Citations in original.]

[124] In my opinion, all of the actions undertaken by M.L. clearly went beyond marked inefficiency or marked indifference toward delay as his decisions and his conduct were solely devoted to the purpose of causing delay. On the 76 occasions that this matter has been in court, there has not been one single occasion, not one, where M.L. took steps to move the matter towards trial, to collaborate with Crown counsel, or to use time efficiently.

[125] In Jordan, the Supreme Court of Canada indicated that all participants in the justice system, the Crown, defence counsel, the police and the courts must work together to reduce delay and bring matters to trial in a timely fashion. Although not mentioned by name, this obligation extends to self-represented parties including the accused. M.L. has clearly failed to comply with this requirement.

[126] Apportionment must be considered. All relevant circumstances should be considered to determine how delay should be apportioned among the participants: R. v. Boulanger, 2022 SCC 2, [2006] S.C.R. 49, at para. 8; R. v. Hanan, 2023 30402, at para. 9.

[127] The Crown and the court were doing their very best to move the matter forward, but at every stage were prevented from doing so as a result of the tactics employed by the accused. In view of this, this is not a case where any of the delay that has been considered should be apportioned to the Crown or characterized as institutional delay.

[128] The record speaks for itself. Instead of obtaining disclosure within a matter of weeks, the accused dragged it out for some 199 days. Even though he was advised to bring a Stinchcombe application if he was concerned about disclosure, he failed to do so until May 2023, at which time he abandoned the application presumably knowing that it had no merit.

[129] After he exhausted the disclosure delay, he turned to an application under s. 136 of the Courts of Justice Act. He did his best to frustrate the appointment s. 486.3 counsel and then he refused to cooperate with either of them with the result that s. 486.3 counsel sought to be removed both in the OCJ and the SCJ.

[130] Once the matter was in the SCJ, the accused asserted right up until May 2023 that the court lacked jurisdiction over him. Once again, the accused withdrew his jurisdiction application when called upon, undoubtedly due to the fact that he knew that such application had no merit. As part of his effort to assert that the court had no jurisdiction, there were many occasions when he simply did not attend court.

[131] The accused had a duty as a self-represented party to actively participate in the judicial pre-trial that was held before Koke J. as required by rr. 28.04(3) and (5) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI 2012-7. He refused to do so. If he had done so, Koke J. would have been in a position to detail the applications that the accused wanted to bring and the matter could have gone into assignment court on February 11, 2022, to set dates for those applications and the trial. Given the accused’s intransigence, it was not possible to set the pre-trial motions dates until June 24, 2022, creating a further four-month delay. Trial dates could not be set because s. 486.3 counsel sought to be removed.

[132] Despite stating his intention to bring a s. 11(b) application in June 2022, M.L. did not raise the issue of transcripts until March 17, 2023.

[133] These are only a few further examples of the many pebbles dropped by M.L. in the judicial pond and the tangible and intangible delay created by him.

Conclusion

[134] There is nothing particularly unique or exceptional about this case. My review of the transcripts and my involvement in this matter leads me to the conclusion that all of the concerns raised by the accused were not legitimate and all of the applications brought by him were without merit and are properly characterized as manifestly frivolous. All of his actions were designed as a tactic to do one thing and one thing only; to have the charges stayed for delay.

[135] The actions of the accused in this case make it clear that his actions had a compounding effect that have caused a total delay of 1774 days or 57 months and 10 days. From this, I have subtracted defence delay of 664 days which results in a net delay of 1,080 days. After deducting exceptional circumstances that comprised discrete events of 319 days, I conclude that the net delay amounts to 761 days or 25 months. Attached please find Appendix B which shows how these calculations were arrived at.

[136] In view of the fact that the remaining delay falls below the presumptive ceiling, the onus is on the defence to show the delay is unreasonable. The accused has made no effort to do so.

[137] In accordance with these reasons, I have concluded that the accused’s s. 11(b) Charter rights have not been violated and accordingly the application is dismissed.

Epilogue

[138] Although I did not take the following information into account in formulating my s. 11(b) decision, I make it known to further document the tactics that M.L. was prepared to use in order to avoid a trial.

[139] On the morning the trial was to start, M.L. did bring a s. 7 application which he characterized as an “abuse of process.” Three grounds were advanced. First, he alleged that s. 486.3 counsel had failed to follow his instructions and generally, had failed to conduct a proper cross-examination during the course of the Khan application. Second, he alleged that the Crown had engaged in misconduct during the course of a recess. Finally, he accused me of bias and “tunnel vision”. No affidavit was filed in support of the application and no request was made to permit viva voce evidence. Accordingly, the application was dismissed without reasons on the basis that it was manifestly frivolous.

[140] M.L. then sought to have the trial adjourned on the basis that he had emergency non-elective surgery scheduled for the second day of trial. In support of this application, M.L. filed his own affidavit as well as an affidavit provided by his mother. No medical report or documentation of any sort was provided in support of the request.

[141] Rather than dismiss the application out of hand, I made arrangements for a subpoena to be issued to the doctor who was to perform the surgery. The subpoena and a letter authored by amicus providing background information was delivered to the doctor’s office.

[142] M.L. said that he was to attend at the Regional Health Clinic at 8:00 a.m. on the second day of trial. Arrangements were made for the doctor to appear by Zoom or telephone at 9:00 a.m. in order to be available to answer questions about the accused’s state of health and whether non-elective surgery was to be performed that day.

[143] The doctor did not appear at 9:00 a.m. I was advised by court staff that the accused and amicus would be present in court at 10:00 a.m. At that time, amicus advised that he was present when the accused and his mother met with the doctor, but that he was in no position to report on such discussions as his role was limited to simply facilitating the doctor’s involvement. When I asked M.L. if he had any additional evidence that he wanted to tender in support of his request for an adjournment of the trial, he replied “no”. In view of the fact that there was no medical evidence to support the request for the adjournment, I dismissed the application and proceeded to start the trial.

The Honourable Mr. Justice R. Dan Cornell

Released: July 27, 2023

APPENDIX A

From: Tysick, Sharon (MAG) Sharon.Tysick@ontario.ca Sent: September 13, 2022 12:09 PM To: JUS-G-MAG-SCJ-NorthBay-TC; E Starer Cc: Virtual Crown North Bay (MAG) VirtualCrownNorthBay@ontario.ca Subject: RE: CR 20-60 - R. v. M.L. - 2 Week Jury Trial

Good morning

Subject to counsel availability, the Crown will make themselves available at the earliest possible date for trial.

Sharon Tysick (she/her)

Crown Attorney

District of Nipissing

From: JUS-G-MAG-SCJ-NorthBay-TC NorthBay.scj.tc@ontario.ca Sent: September 13, 2022 12:06 PM To: E Starer e.starer@yahoo.com; Tysick, Sharon (MAG) Sharon.Tysick@ontario.ca Cc: JUS-G-MAG-SCJ-NorthBay-TC NorthBay.scj.tc@ontario.ca; Virtual Crown North Bay (MAG) VirtualCrownNorthBay@ontario.ca Subject: CR 20-60 - R. v. M.L. - 2 Week Jury Trial Importance: High

Good morning,

Regional office has asked that I reach out to the crown’s office and Mr. Starer in hopes of setting aside the below trial dates for this matter.

We would then have to confirm same with the new amicus lawyer once appointed, and with M.L., but at least for now we could target/Hold some dates.

Please advise as the agreeable dates provided below for a 2 week Jury Trial.

This matter is scheduled for the October 14, 2022 assignment court to check the status of the amicus appointment and to confirm trial dates.

Weeks of January 9 & 16, 2023

Weeks of May 8, 15, 22, 29, 2023

Please advise.

Thank you Kindly,

Lori

Trial Coordinator

Superior Court of Justice

360 Plouffe Street

North Bay, ON P1B 9L5

Tel: 705-495-8330

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Daily Court Lists Online provides same day and next day data information for most Superior and Ontario Court of Justice matters. Daily Court Lists are updated daily at 4:30 p.m. and they are available at www.ontariocourtdates.ca.

From: E Starer e.starer@yahoo.com Sent: September 13, 2022 12:12 PM To: JUS-G-MAG-SCJ-NorthBay-TC Subject: Re: CR 20-60 - R. v. M.L. - 2 Week Jury Trial

CAUTION -- EXTERNAL E-MAIL - Do not click links or open attachments unless you recognize the sender.

Good afternoon: I am not available the week of January 9th. Any of the weeks suggested in May are still fully available to me Elliot Starer 486.3 counsel

On Tuesday, September 13, 2022, 12:05:45 p.m. EDT, JUS-G-MAG-SCJ-NorthBay-TC northbay.scj.tc@ontario.ca wrote:

Good morning,

Regional office has asked that I reach out to the crown’s office and Mr. Starer in hopes of setting aside the below trial dates for this matter.

We would then have to confirm same with the new amicus lawyer once appointed, and with M.L., but at least for now we could target/Hold some dates.

Please advise as the agreeable dates provided below for a 2 week Jury Trial.

This matter is scheduled for the October 14, 2022 assignment court to check the status of the amicus appointment and to confirm trial dates.

Weeks of January 9 & 16, 2023

Weeks of May 8, 15, 22, 29, 2023

Please advise.

Thank you Kindly,

Lori

Trial Coordinator

Superior Court of Justice

360 Plouffe Street

North Bay, ON P1B 9L5

Tel: 705-495-8330

From: JUS-G-MAG-SCJ-NorthBay-TC NorthBay.scj.tc@ontario.ca Sent: September 13, 2022 12:06 PM To: E Starer; Tysick, Sharon (MAG) Cc: JUS-G-MAG-SCJ-NorthBay-TC; Virtual Crown North Bay (MAG) Subject: CR 20-60 - R. v. M.L. - 2 Week Jury Trial

Importance: High

Good morning,

Regional office has asked that I reach out to the crown’s office and Mr. Starer in hopes of setting aside the below trial dates for this matter.

We would then have to confirm same with the new amicus lawyer once appointed, and with M.L., but at least for now we could target/Hold some dates.

Please advise as the agreeable dates provided below for a 2 week Jury Trial.

This matter is scheduled for the October 14, 2022 assignment court to check the status of the amicus appointment and to confirm trial dates.

Weeks of January 9 & 16, 2023

Weeks of May 8, 15, 22, 29, 2023

Please advise.

Thank you Kindly,

Lori

Trial Coordinator

Superior Court of Justice

360 Plouffe Street

North Bay, ON P1B 9L5

Tel: 705-495-8330

From: JUS-G-MAG-SCJ-NorthBay-TC NorthBay.scj.tc@ontario.ca Sent: November 22, 2022 4:10 PM To: neil@weinsteinlaw.net; Tysick, Sharon (MAG); Virtual Crown North Bay

(MAG); E Starer

Cc: JUS-G-MAG-SCJ-NorthBay-TC NorthBay.scj.tc@ontario.ca Subject: CR 20-60 - R. v. M.L. - 2 Week Jury Trial Dates on hold for May 2023

Good afternoon,

As Mr. Weinstein has advised he is not available for the weeks the court had reserved for this 2 week Jury trial in May, new dates will be canvassed with Justice Cornell during the pre-trial motions next week.

Thank you Kindly,

Lori

From: Neil Weinstein neil@weinsteinlaw.net Sent: November 16, 2022 9:39 AM To: Tysick, Sharon (MAG) Sharon.Tysick@ontario.ca Cc: Steele-Lebel, Lori (JUD) Lori.Steele-Lebel@ontario.ca Subject: Re: CR 20-60 - R. v. M.L. - 2 Week Jury Trial

CAUTION -- EXTERNAL E-MAIL - Do not click links or open attachments unless you recognize the sender.

Morning

I am free only for the first of those weeks. I have a week long matter in the second week. Are there dates in June that we could look at?

On Wed, Nov 16, 2022 at 09:22 Tysick, Sharon (MAG) Sharon.Tysick@ontario.ca wrote:

Good morning

I believe amicus counsel is @Neil Weinstein. He will have to address his availability as his role is independent of the Crown’s.

Thank you

Sharon Tysick (she/her)

Crown Attorney

District of Nipissing

From: Steele-Lebel, Lori (JUD) Lori.Steele-Lebel@ontario.ca Sent: November 16, 2022 9:20 AM To: Tysick, Sharon (MAG) Sharon.Tysick@ontario.ca Subject: CR 20-60 - R. v. M.L. - 2 Week Jury Trial

Good morning Ms. Tysick,

We are following up from the October criminal assignment court, dates were canvassed for 2 week Jury Trial the weeks of May 8 & 15, 2023.

Everyone advised they were available but we were waiting for amicus to be appointed and to confirm their availability as well, are you able to confirm for the court if they are, I will then confirm with His Honour and regional office.

Thank you Kindly,

Lori Steele-Lebel

Trial Coordinator

Superior Court of Justice

360 Plouffe Street

North Bay, ON P1B 9L5

Tel: 705-495-8330

APPENDIX B: CHRONOLOGY OF PROCEEDINGS

*Asterisk indicates an event that occurs but where date does not factor into calculation of delay

Date

(mm-dd-yy)

Event

Delay

Nature of the Delay

09-06-18

Original Information Sworn.

09-06-18

Accused arrested and held for a bail hearing.

Crown requested a 3-day hold for further investigation as more charges anticipated.

09-10-18

Bail Court – Second Appearance

Crown seeks further remand to allow for further investigation by North Bay Police, anticipating further charges. Adjourned to next day.

Net Delay

(September 6 – 10, 2018)

09-11-18

Bail Court – Third Appearance

Crown seeks further adjournment for continuation of an investigation.

Net Delay

(September 10 – 11, 2018)

09-12-18

Bail Court – Bail Hearing

Accused released after contested bail hearing.

Net Delay

(September 11 – 12, 2018)

09-25-18

Case Management Court – First Appearance

Accused requests adjournment to retain counsel. Adjourned for 4 weeks.

+13

Net Delay

(September 12 – 25, 2018)

10-22-18*

Accused Makes Further Disclosure Request by Letter

Accused makes additional disclosure request in form of 16-point list.

10-23-18

Case Management Court

Accused raises issues with disclosure. Crown clarifies that accused can come to office to view disclosure. Court asks Crown to respond in writing with solution for accused to obtain disclosure.

+28

Net Delay

(September 25 – October 23, 2018)

11-13-18

Case Management Court

Crown provides written response to disclosure request in Court. Indicates that the letter clarifies that much of the requested disclosure was already provided to accused, and other requested items are third party records. Accused wants time to review letter. Court adjourns matter for one month. Accused states he will likely speak with legal counsel.

Defence Delay – Disclosure

(October 23 – November 13, 2018)

12-04-18

Case Management Court

Accused raises issue with disclosure. Crown notes that there is nothing further to provide since last appearance, accused needs to attend to view DVDs. Accused does not confirm he has read letter as requested at previous appearance. Court says Crown will send another letter and they will make their position clear on the list of items. Adjourned to January 8, 2019 to address request.

Defence Delay – Disclosure

(November 13 – December 4, 2018)

12-14-18*

Crown Replies with Second Letter to Disclosure Request

The Crown sends a letter outlining their position

with respect to each item consistent with the original letter.

01-08-19

Case Management Court

Accused chooses to have a preliminary inquiry and elects by judge and jury. Focus hearing scheduled. Accused told he will need to bring an application for disclosure.

Defence Delay – Disclosure

(December 4, 2018 – January 8, 2019)

02-01-19

Focus Hearing with Justice Bradley – Day 1 Accused states disclosure DVDs received were blank. Crown clarifies position that accused should bring application for further disclosure, accused has Crown position. Crown suggests accused can view disclosure at NBPS HQ. Crown ordered to provide paper copies of digital disclosure and bear costs. Court orders accused to contact NBPS to set up arrangements to review disclosure.

Defence Delay – Disclosure

(January 8 – February 1, 2019)

02-11-19*

Crown Sends Letter to Accused Advising Disclosure is Available for Pick Up

Crown advises printed disclosure is available for materials not covered by s.278.1 or DVD media materials. Crown advises that accused will be provided a space to review the materials sometime February 19-22, 2019 in the Crown’s office and that he will be notified when it is ready.

02-27-19

Focus Hearing with Justice Bradley – Day 2

Crown provides 151-page paper copy of disclosure. Accused refuses to accept, wants copy of discs to compare what is on discs with what is on paper. Accused ultimately agrees to sign that he has received the paper disclosure. Crown determines he cannot attend police station to view the DVDs. Crown clarifies office space is being set up to facilitate viewing the materials. Crown notes accused can bring a Stinchcombe application. Crown advises accused can view material week of March 6 and suggests accused contact office to provide availability. Crown suggests the accused call Shelly Dwyer-Cappadocia, accused says he is familiar with individual. Suggested he call after 2pm.

Defence Delay – Disclosure

(February 1 – February 27, 2019)

03-12-19

Case Management Court

Accused asks for Purolator tracking number for Crown letter that was sent February 11, 2019. Crown advises that it can provide another copy of letter instead after Court. Accused says he called and left a message but got no reply. Crown says accused did not leave callback info. Court suggests Crown call accused to set up a time to review DVDs.

Defence Delay – Disclosure

(February 27 – March 12, 2019)

04-16-19

Focus Hearing with Justice Bradley – Day 3 Accused still has not called back to set a time. Accused files motion alleging Crown misconduct and for recusal of Justice Bradley. Accused suggests he will be available 9-5 every day for next four weeks. Crown advises that it is not logistically possible to be there the whole time. Crown stands down and offers May 6, 8, 9, 10, 13, 15, 16, 17, 22, 23, 24, 27, 29, 30, and 31 from 10am-12pm and 2pm to 4pm each day.

Defence Delay – Disclosure

(March 12 – April 16, 2019)

05-07-19

Motion for Recusal

Russell Wood attends for Crown and argues Crown misconduct application should be dismissed as well as recusal motion. Makes submissions and applies for s. 486.3(2) counsel. Accused refuses to address what he has done regarding viewing the disclosure, says he will only discuss the recusal motion. Confirms that accused did not appear on May 6, first available date given by Crown. Accused says he is unable to make full answer and defence when Crown dictates the hours he can attend. Crown willing to provide order similar to counsel not to disseminate materials or give them out for accused to receive the materials.

Defence Delay – Disclosure

(April 16 – May 7, 2019)

05-10-19

Focus Hearing with Justice Bradley – Day 4 Accused takes issue with terms of order. Judge confirms they are typical terms and disclosure is property of Crown. Accused agrees to sign order. Adjourned for decisions.

Defence Delay – Disclosure

(May 7 – 10, 2019)

05-30-19

Decisions on Crown Misconduct and Recusal Motions

Justice Bradley dismisses application for recusal and for Crown misconduct. Crown Wood renews application to have s. 486.3 counsel for all 3 complainants. Accused says he wants more time for submissions. Wood says difficult to envision a situation where mandatory order would not be made, and that at last appearance he filed a draft s. 486.3 order to accused had plenty of notice of the application. Adjourned to June 3, 2019.

Defence Delay – s. 486.3 Counsel (OCJ)

(May 10 – May 30, 2019)

06-03-19

Response to s. 486.3 Applications

Accused attends and says he still has not had enough time to prepare. Court will give accused until June 14. Crown asks for accused position on s. 278.

Defence Delay – s. 486.3 Counsel (OCJ)

(May 30 – June 3, 2019)

06-14-19

Decision on s. 486.3(2) Application

Accused brings motion under OCJA s. 136.2(b) to record the proceedings for his notes. Asks the decision on s. 486.3 to wait until his appeal goes through. Complains he wasn’t served an application. Justice Bradley makes the s. 486.3(2) order. Adjourned to July 2, 2019 focus hearing to see if lawyer appointed.

Defence Delay – s. 486.3 Counsel (OCJ)

(June 3 – June 14, 2019)

07-02-19

Focus Hearing with Justice Bradley – Day 5 Crown advises John Saftic from Sudbury can accept appointment but not able to attend today. Jim Mahar from Legal Aid confirms Mr. Saftic can take appointment. Crown hopes next appearance can be conducted akin to in-Court JPT to case manage towards prelim. Accused says two previous occasions his s.136 request was granted immediately. Says he has precedent. Court asks accused to provide precedent at next appearance.

+18

Net Delay

(June 14 – July 2, 2019)

07-30-19

Case Management Court

Section 486.3 Counsel Mr. Saftic appears and requests to put over a few weeks so he can speak with accused. Accused is asked about precedents, he says they are at home. Crown states that Crown is in position to set JPT.

+28

Net Delay

(July 2 – July 30, 2019)

08-13-19

Case Management Court

Adjourned to September 3, 2019. Accused wants to challenge s. 486.3 order.

+14

Net Delay

(July 30 – August 13, 2019)

09-03-19

Case Management Court

Order made permitting audio recording with electronic device. Accused says he is waiting for his order for recording before he sets up a meeting with s. 486.3 counsel “so he could be prepared for that meeting.” Accused raises issues with appointment of s. 486.3 counsel. Court offers September 4, 2019 for JPT, accused unavailable. Adjourned to September 6, 2019 for JPT.

Defence Delay – s. 486.3 Counsel (OCJ)

(August 13 – September 3, 2019)

09-06-19

JPT with Justice Bradley

Attempts are made to set dates, difficult without knowing what issues are live. Mr. Saftic is not present. Court will set aside December 4 and 6, 2019 for preliminary hearing, pending officer availability and Mr. Saftic’s availability.

Net Delay

(September 3 – 6, 2019)

09-24-19

Case Management Court

Mr. Saftic is not present. Crown has text message from local duty counsel Prevost that Prevost will contact Mr. Saftic about the next appearance. Crown will send a letter to Mr. Saftic informing of new date after today. Adjourned to October 22, 2019 – Mr. Saftic is ordered to attend at next appearance.

+18

Net Delay

(September 6 – 24, 2019)

10-22-19

Case Management Court

Duty Counsel Prevost on behalf of Mr. Saftic, asks to adjourn one week to attend in person. Accused says he was given a DVD at the previous appearance and wants another copy, but will not clarify what was on it. Did not bring copy with him to return.

+28

Net Delay

(September 24 – October 22, 2019)

10-29-19

Case Management Court

Mr. Saftic brings an application to be removed as s. 486 counsel. Mr. Saftic is not available for proposed December 4, 6, 2019 dates. Preliminary hearing scheduled for March 30, 31, 2020. Crown not available November 13, 2019, but makes self available to allow removal application to be heard sooner. Crown advises accused has not yet come to Crown’s office to obtain new disc that was requested.

Net Delay

(October 22 – 29, 2019)

11-13-19

Application to Remove s. 486.3 Counsel Justice Bradley finds that s. 486.3 designation should be varied to amicus, and new counsel should be appointed. Court is concerned that any new s. 486.3 counsel would be discharged later due to accused refusal to cooperate with them.

Defence Delay– s. 486.3 Counsel (OCJ)

(October 29 – November 13, 2019)

11-26-19

New Amicus Appointment Confirmed New amicus David Bennett has agreed to appointment. Unclear if he is available for March 30, 31 preliminary hearing dates. Adjourned two weeks to figure out Mr. Bennett’s availability. Accused not present, discretionary bench warrant is issued.

Defence Delay – s. 486.3 Counsel (OCJ)

(November 13 – 26, 2019)

12-03-19

Case Management Court

Accused appears and bench warrant is vacated. Crown flags potential issue with wording of amicus order to properly address that the issue of funding is between LAO and MAG. Crown confirms that amicus Mr. Bennett is available January 20, as well as the March 30 and 31, 2020 preliminary hearing dates.

Net Delay

(November 26 – December 3, 2019)

01-20-20

Case Management Court

Funding is confirmed with LAO for Bennett and accused advises he served a notice of appeal with respect to the amicus order. Order for amicus is confirmed, adjourned for preliminary hearing.

+48

Net Delay

(December 3, 2019 – January 20, 2020)

03-17-20

Provincial Declaration of Emergency – Ontario Regulation 50/20

“All criminal Court appearances in the Ontario Court of Justice between Monday March 16 and November 27 involving accused persons who are not in custody will be adjourned, in the absence of the accused person.”

+57

Net Delay

(January 20 – March 17, 2020)

03-30-20

Case Management Court

Preliminary Inquiry adjourned to criminal

assignment Court. Adjourned pursuant to OCJ Directive to June 2. Bench warrant with discretion issued.

Note: Delay resulting from COVID-19, calculated from March 30, 2020.

+13

Net Delay

(March 17 – 30, 2020)

04-29-20*

The Attorney General prefers a direct indictment against the accused.

06-02-20*

Case Management Court

Adjourned pursuant to OCJ Directive to August.

08-18-20

Case Management Court - OCJ

Direct Indictment is before the Court, looking to set a date in Superior Court. Neither Accused nor Bennett are present. Crown suggests putting over one week to contact Bennett and accused about new date.

141

Discrete Event – COVID-19

(March 30 – August 18, 2020)

Delay resulting from COVID-19, calculated from March 30, 2020.

08-25-20*

Case Management Court (OCJ)

Appeared again in OCJ to inform accused of situation. Accused did not appear, despite email from Samantha Busch and direction to treat email as judge’s order. Bennett does not have instructions to appear as agent. Adjourned to October 13 in OCJ to allow for the Superior Court appearance on September 18 to happen before information is withdrawn.

09-15-20*

Case Management Court (OCJ)

Accused mistakenly appears in Court but is not on the docket.

09-18-20

Case Management Court (Superior Court) The accused did not appear. Was informed of the date through a letter and application sent to him August 25 and August 26. Adjourned to October 2, 2020 to have accused attorn to jurisdiction before OCJ information withdrawn. Bench warrant with discretion issued.

Discrete Event – COVID-19 / Defence Delay

(August 18 - September 18, 2020)

10-02-20

Case Management Court (Superior Court) Justice Nadeau makes a ruling and adjourns the matter

to Assignment Court on November 12, 2020. Accused attempts to leave before getting the date.

Discrete Event – COVID-19 / Defence Delay

(September 18, 2020 – October 2, 2020)

10-13-20*

Case Management Court (OCJ)

Crown indicates the Information is not being

withdrawn yet because accused is disputing the jurisdiction of the Superior Court and the recognizance with release conditions is attached to the information. Court confirms with Accused he appeared before the Superior Court. Adjourned to November 24, 2020 virtual remand.

11-12-20

Case Management Court (Superior Court) Court looks to set a date for an application appointing amicus. Crown has not filed factum, suggests later date for chance for accused to respond. Accused says he has received nothing, Crown clarifies that a notice of application, affidavit, and amicus application was served on Accused in advance of September 18, 2020. December 3, 2020 offered, accused says he is unavailable all week. Will set for January 8, 2021 assignment Court.

+41

Net Delay

(October 2 – November 12, 2020)

11-24-20*

Case Management Court (OCJ)

Crown asks to have the information adjourned sometime in 2021 just to maintain the recognizance as the Crown’s view is accused will not consent to transferring his conditions to the indictment. The Court finds it does not have jurisdiction to allow the adjournment.

12-01-20*

Case Management Court (OCJ)

Justice Perron indicates a JPT is scheduled on all matters for December 3.

01-08-21

Case Management Court (Superior Court) Crown requests an adjournment to February to complete amicus factum, looking to rely on OCJ transcripts. Accused does not appear. Bench warrant is issued with discretion.

+57

Net Delay

(November 12, 2020 – January 8, 2021)

02-05-21

Case Management Court (Superior Court)

Crown appears. Factum not filed. Looking to order transcripts to add to factum. Adjourned to March 12, 2021. Accused present.

+28

Net Delay

(January 8 – February 5, 2021)

03-12-21

Case Management Court (Superior Court) Crown states it will take too much time to get transcripts for the amicus application. For the time being, the Crown will proceed with the mandatory order to appoint under s. 486.3. Accused says he is not aware of what he is charged with. Crown points out accused is on release conditions related to the victims and should be well aware.

+35

Net Delay

(February 5 – March 12, 2021)

03-29-21

Case Management Court (Superior Court) Crown indicates he served a copy of the s. 486.3 applications via email. Accused says he will not check because he has been told the Crown will not communicate with him via email. Accused denies jurisdiction of Superior Court.

Defence Delay – Jurisdiction / Non-Attendance

(March 12 – 29, 2021)

04-09-21

Case Management Court (Superior Court) Accused not present. Accused sent email to Court saying he was medically unavailable. Bench warrant with discretion over to May 14, 2021 to pre-set date for s. 486.3 application.

Defence Delay – Jurisdiction / Non-Attendance

(March 29 – April 9, 2021)

05-14-21

Case Management Court (Superior Court)

Accused does not attend. Bench warrant released. Crown confirmed June 22, 2021 available for the application via email with accused; accused did not reply.

Defence Delay – Jurisdiction / Non-Attendance

(April 9 – May 14, 2021)

06-04-21

Case Management Court (Superior Court)

Looking to set date for s. 486.3 applications. Accused disputes jurisdiction and request the matter be put aside 12 weeks so that he can recover from a surgery. Adjourned to August 31, 2021 at 10 am.

Defence Delay – Jurisdiction / Non-Attendance

(May 14 – June 4, 2021)

08-31-21

Case Management Court (Superior Court)

Accused emailed trial coordinator’s office indicating he would not attend this date. Accused not present. Summons is issued for accused. Justice Kurke says the accused must provide any medical exemption from attending in the future at least three days in advance of the hearing date. Adjourned to September 10, 2021 hearing date.

Defence Delay – Jurisdiction / Non-Attendance

(June 4 – August 31, 2021)

09-10-21

Case Management Court (Superior Court)

Accused attends. Accused raises issue with

summons. Date set for s. 486.3 application on October 1, 2021.

Defence Delay – Jurisdiction / Non-Attendance

(August 31 – September 10, 2021)

10-01-21

Application Date for 486.3

Orders made for ss. 486.3(1), 486.3(2), and 486.3(3) for 2 complainants and 1 witness. Adjourned to November 12, 2021.

+21

Net Delay

(September 10 – October 1, 2021)

11-12-21

Case Management Court (Superior Court) Section 486.3 Counsel Elliott Starer attends. Mr. Starer will get contact info and contact accused. Accused does not attend.

Defence Delay– Jurisdiction / Non-Attendance

(October 1, 2021 - November 12, 2021)

01-11-22

Judicial Pre-Trial

JPT with Justice Koke, Crown Sheila Seguin, Mr. Starer, and accused present.

+60

Net Delay

(November 12, 2021 – January 11, 2022)

02-11-22

Case Management Court (Superior Court) Accused does not attend Court. Accused sent an email to trial coordinator informing the coordinator that the Court does not have jurisdiction. Bench warrant issued without discretion.

Defence Delay – Jurisdiction / Non-Attendance

(January 11 – February 11, 2022)

02-17-22*

Accused Re-Arrested on Bench Warrant

03-11-22

Case Management Court (Superior Court)

Adjourned to April 8, 2022 to set dates for trial.

Defence Delay – Jurisdiction / Non-Attendance

(February 11 – March 11, 2022)

04-08-22

Case Management Court (Superior Court)

RSJ Ellies has found out of town judge to conduct proceedings, will adjourn to a case conference.

+28

Net Delay

(March 11 – April 8, 2022)

05-27-22

Case Conference

Case conference conducted with Justice Cornell. Justice Cornell indicates that if the accused was seeking pre-trial relief, he should make that known at the next date, June 24, 2022.

+49

Net Delay

(April 8 – May 27, 2022)

06-24-22

Case Management Court

Mr. Starer indicates accused is not communicating with him, and Mr. Starer will seek to be removed as s. 486 counsel. Court confirms Crown and Defence Pre-Trial motion dates November 28-30, December 1-2, 2022. M.L. advises the Court that he will be bringing a Stinchcombe application, a motion for a non-suit, ss. 7 and 11(b) Charter applications, a s. 278 application, a jurisdiction application, a voluntariness application, and a similar fact application. The Court indicates that all of these applications will be heard in the five days scheduled for the pre-trial motions in November.

The Court is not prepared to set trial dates until the issue of s. 486.3 counsel is resolved.

Defence Delay– s. 486.3 Counsel (SCJ)

(May 27 – June 24, 2022)

07-29-22

Case Management Court

Adjourned to August 12, 2022 to set date for removal of counsel and finding out of town judge to hear the matter. Mr. Starer indicates that he needs to bring a motion to remove himself because the accused was still refusing to cooperate with him. Accused states he does not want any s. 486.3 counsel appointed and indicates the Court lacks jurisdiction. Court still cannot set dates for trial until s. 486.3 counsel issue is resolved.

Defence Delay– s. 486.3 Counsel (SCJ)

(June 24 – July 29, 2022)

08-12-22

Case Management Court

Canvassing dates for Mr. Starer’s application to be removed. Mr. Starer confirms September 2, 2022. Court still cannot set dates for trial until s. 486.3 counsel issue is resolved.

Defence Delay– s. 486.3 Counsel (SCJ)

(July 29 – August 12, 2022)

09-02-22

Application Date

Section 486 Counsel, Mr. Starer, asks to be removed as counsel because accused will not communicate with Mr. Starer. Court denies application and requests that amicus be appointed as well.

Defence Delay – s. 486.3 Counsel (SCJ)

(August 12 – September 2, 2022)

09-09-22

Case Management Court

Crown confirms that it has made request for amicus as required.

Net Delay

(September 2 – 9, 2022)

09-13-22*

Trial Coordinator Sends Email to Parties to Set Aside Trial Dates

Weeks of January 9 and 16, 2023 and weeks of May 8, 15, 22, 29, 2023 were offered by the Court. Mr. Starer was unavailable for the January dates, but was available for the proposed weeks in May 2023. The Crown indicated it was available at the earliest possible date.

10-14-22

Case Management Court

Amicus, Mr. Weinstein, indicates he will confirm his availability for the proposed trial dates for the weeks of May 8 and 15, 2023. Adjourned to November 28, 2022 for pre-trial motions. Accused ordered by the Court to attend November 28, 2022.

+35

Net Delay

(September 9 – October 14, 2022)

11-28-22

First day of Pre-Trial Motions

Khan and CCTV applications. Accused concedes CCTV application.

+45

Net Delay

(October 14 – November 28, 2022)

12-02-22

Pre-Trial Motions Day 3

Khan application adjourned to consider third party records issue.

Net Delay

(November 28 – December 2, 2022)

12-16-22*

Assignment Court

The Court looks to set dates before Justice Cornell to complete the pre-trial applications. Date of February 22, 2023 was provided. Defence pre-trial motions during May 8-12, 2023 are confirmed on the record. Jury trial dates for the weeks of June 5 and 12, 2023 are set aside, pending availability of witness.

01-23-23

First Available Trial Dates

Weeks of January 9 and 16, 2023 were offered as trial dates in September 2022. Section 486 counsel, Mr. Starer, is unavailable for the January trial dates. If trial had proceeded during the January dates that were offered then the anticipated end of the jury trial would have been January 23, 2023.

Note: Discrete Event – Trial Scheduling begins this day.

+52

Net Delay

(December 2, 2022 – January 23, 2023)

02-07-23*

Crown Sends Letter

Crown sends letter to Court, amicus, and s. 486.3 counsel advising that it will not contest the s. 278.93 motion brought by the accused and will permit cross-examination on the basis of the text messages. Crown ready to continue Khan application on that date.

02-22-23*

Third Party Records Application – Hearing Date

Justice Cornell falls ill and application cannot be heard. Crown conceded the application previously. Adjourned to March 3, 2023 assignment Court, Crown sent email canvassing dates for telephone conference. Witness was available to continue Khan application.

03-03-23*

Case Management Court (Superior Court) Court confirms that March 17, 2023 at 9am is available for a teleconference with Justice Cornell. Adjourned to May pre-trial dates beginning on May 9, 2023.

03-17-23*

Case Conference

Case Conference conducted via telephone with Crown, Justice Cornell, 486.3 Counsel Mr. Starer, amicus Mr. Weinstein, and accused. Justice Cornell orders transcripts be provided by April 21, 2023.

05-09-23*

Pre-Trial Motions – First Day

05-12-23*

Pre-Trial Motions – Final Day

05-19-23*

Amicus not available for Trial

In September 2022, the weeks of May 8 and 12, 2023 were offered for trial, however amicus was not available during the second offered week. All other parties were available.

If trial had proceeded during the May dates that were offered then the anticipated end of the jury trial would have been May 19, 2023.

06-05-23

Jury Trial – First Day

First scheduled day of jury trial for jury selection. This is the first date that both s. 486.3 counsel and amicus are available for a 2-week jury trial.

133

Discrete Event – Trial Scheduling Delay

(January 23 – June 5, 2023)

06-16-23

Jury Trial – Final Day

Anticipated end of Jury Trial and date of verdict.

+11

Net Delay

(June 5 – 16, 2023)

COURT FILE NO.: CR-20-60

DATE: 2023-06-30

CORRECTION DATE: 2023-07-27

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

M. L.

CORRECTED DECISION

ON 11(b) APPLICATION

Cornell, J.

Released: July 27, 2023

R. v. M. L., 2023 ONSC 3020

Case Summary

CORRECTED DECISION ON SECTION 11(b) APPLICATION

Introduction

Background

Issue

Position of the Parties

Crown

Defence

Analysis

Defence Delay - Disclosure

Defence Delay - s.486.3 Counsel – Ontario Court of Justice

Discrete Event – COVID-19

Defence Delay – Jurisdiction / Non-Attendance

Defence Delay – s.486.3 Counsel – Superior Court

Discrete Event – Trial Scheduling

Intangible Delay

Delay Considered

Conclusion

Epilogue

APPENDIX A

APPENDIX B: CHRONOLOGY OF PROCEEDINGS

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 3

Legal Tests 2

Legislation 6