Overview

[1] The applicants Jason Buick and Jeffrey Marsh brought this application to stay the prosecution against them on the basis that their right to be tried within a reasonable time, protected by s. 11(b) of the Canadian Charter of Rights and Freedoms, has been infringed. The application was heard on December 21, 2022, less than two weeks before the trial was scheduled to commence on January 3, 2023. On December 23, 2022, I dismissed the application, with reasons to follow. These are my reasons.

Background

[2] Buick and Marsh were charged on March 26, 2020, with a number of offences relating to an armed robbery of a bank in downtown Toronto. As one of the defence counsel described it in his factum, it was a “simple ‘hold-up’ style” bank robbery. However, two police officers happened to be sitting in police cars nearby. They saw two men enter the bank and became suspicious. A short time later the men fled from the bank and the police gave chase. The get-away car promptly crashed, and Buick was arrested. He was in possession of the firearm allegedly used in the hold-up. The second robber, who is alleged to be Marsh, fled on foot. Marsh was arrested a short time later and was found to be in possession of cash stolen from the bank and a GPS tracker that bank staff had hidden in the cash.

[3] The accused are both charged with armed robbery, being disguised with intent to commit an indictable offence, possession of property obtained by crime and pointing a firearm. Buick is also charged with dangerous driving.

Legal framework – defence delay and exceptional circumstances

[4] In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, the Supreme Court of Canada established presumptive limits of reasonableness to be applied when addressing delay under s. 11(b) of the Charter. For matters that are to be tried in the Superior Court, the presumptive limit is 30 months to the end of the trial. If the case has taken over 30 months, the onus is on the Crown to rebut the presumption of unreasonable delay, failing which the prosecution will be stayed: Jordan, at paras. 46-47.

[5] Assuming the trial concludes as scheduled, on or about January 23, 2023, over 34 months will have passed since the charges were laid.

[6] In order to rebut the presumption of unreasonable delay the Crown must show that periods of delay were caused by (1) defence delay, and/or (2) exceptional circumstances. Periods of time caused by these events are deducted from the total time the matter has taken. If the deductions bring the delay below 30 months the Crown has met its onus of rebutting the presumption of unreasonable delay, although it is still open to an accused person to seek to establish that the remaining delay is unreasonable. In such circumstances, “the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have.” The Supreme Court stated, however, that “[w]e expect stays beneath the ceiling to be rare, and limited to clear cases”: Jordan, para. 48.

[7] Jordan describes defence delay as having two components: (1) waiver, which must be clear and unequivocal; and (2) delay caused “solely or directly” by the conduct of the defence: at para. 66. The latter category may include deliberate tactics to delay a case but will also apply where the defence has “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”: Jordan, at para. 64.

[8] The Supreme Court describes exceptional circumstances as events which “lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise”: Jordan, at para. 69 (emphasis in original).

[9] In placing a burden on the Crown to show that it “took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling”, the Court continued at para. 70 of Jordan:

This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful — rather, just that it took reasonable steps in an attempt to avoid the delay.

[10] Jordan established a new framework for considering delay, responding to the approach which flowed from the Supreme Court’s earlier decision in R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771, that was “unduly complex” and encouraged parties “to quibble over rationalizations for vast periods of delay”: Jordan at paras. 36-37. The Court stated at para. 91 of Jordan:

Determining whether the time the case has taken markedly exceeds what was reasonably required is not a matter of precise calculation. Trial judges should not parse each day or month, as has been the common practice since Morin, to determine whether each step was reasonably required. Instead, trial judges should step back from the minutiae and adopt a bird's-eye view of the case.

Chronology of the case and scheduling of the trial

[11] This case proceeded relatively smoothly in the Ontario Court of Justice. Although the COVID-19 pandemic began at about the same time as the offences were committed in March 2020, a virtual preliminary inquiry was held February 2–5, 2021, and the accused were committed for trial on February 26, 2021.

[12] Following the filing of an Indictment in this Court, a judicial pretrial was held on May 3, 2021, where it was determined that three weeks would be needed for a jury trial. On May 31, 2021, following consultation with the trial coordinator, a trial date was set for January 3, 2023.

[13] It was apparent to everyone at the time the trial was set that this date was outside the 30-month time period established in Jordan and therefore was presumptively unreasonable. The Crown at the time indicated that it was looking for earlier dates and the matter was adjourned to July 19, 2021, to address the possibility of setting earlier dates. The Crown placed the case on a priority list to be notified of earlier trial dates that might become available.

[14] On June 16, 2021, the Crown proposed dates in September 2021 as there was a possibility the Court would have time then; however, Buick’s counsel was not available on the proposed dates, which were never confirmed to be available.

[15] On June 18, 2021, counsel for Marsh asked the Crown about severance:

In light of significant delay between Mr. Marsh's arrest and the trial presently scheduled for January 2023, will the crown agree to sever the accused so that Mr. Marsh's rights pursuant to s. 11(b) of the Charter are not infringed? Just on a rough calculation, Mr. Marsh will have waited approximately 35 months for his trial. As the architect of the prosecution, the crown has the ability to prevent a Charter violation by severing the accused. Perhaps a further JPT would be of assistance?

[16] On July 2, 2021, the Crown informed the defence that two-week slots were available in January and July, 2022 and asked if the defence was available. Because these were only two-week time slots the Crown asked defence counsel the following:

Are you in a position to admit the remaining civilian evidence (GPS accuracy / bank affidavit that the money belongs to the bank)? If so, and we can further narrow the time estimate, that would further open up potential dates. We could work on an ASF with respect to both, which as I recall was something we were going to approach on the GPS anyway.

[17] In addition, the Crown responded to the request to sever as follows:

For the reasons all the parties have already discussed I am not in a position to sever this case yet given the significant overlap in the case, and the fact that there will likely be LTO/DO proceedings that follow for both accused. I've considered cases such as Vassell, 2016 SCC 26, and Kenney, 2016 ONCA 703 [also known as R. v. Manasseri]. I am confident that we will received earlier dates given our priority on the list for earlier dates, even if it is not the dates in September 2021. There is, in that sense, a plan in place to ensure the trial is held promptly. I cannot say at this time that Mr Marsh is being "held hostage", as that term is used, by Mr Buick. If that changes the Crown will re-visit accordingly.

[18] The Crown received no response to the suggestion of a shortened two-week trial in January or July, 2022, or to the proposals to streamline the trial.

[19] On July 6, 2021, the Crown advised that the Court and the Crown could hold a three-week jury trial on November 22, 2021, but counsel for Marsh was not available.

[20] On July 19, 2021, counsel for Marsh and the Crown stated to the court:

MR. SMITH: …I have requested that Mr. Giovinazzo consider a severance of these accused and he has done so and responded to me that he is not prepared to sever them. I was available to do this trial in September with Mr. Marsh. The dates that have been set are far outside of the Jordan time period. I know we're in a very different situation than we were years ago, but I wanted to just make that clear for the record, that that request has been made by Mr. Marsh that the Crown continue to assess whether this case needs to be heard together or whether the Crown would agree to sever the accused.

MS. SIMONE: And given how precious trial time is right now, the Crown did consider that request and is not in a position to sever at this time.

[21] It was apparent to everyone in July 2021 that the Court was operating under extreme stress due to the effects of the COVID-19 pandemic. Mr. Smith and Ms. Simone both acknowledged this in their brief comments to the court when referring to the “very different situation” and “how precious trial time is right now.” Indeed, jury trials had been suspended in Toronto from March 2020 until June 2021, except for a brief period in the fall of 2020.

[22] On February 7, 2022, when jury trials were again suspended, Crown counsel wrote to defence counsel stating there was a possibility of trial dates between April 11 and April 29, 2022. However, the Crown was not available the week of April 11. This led him to ask defence counsel the following:

If there is a chance that we could get our trial down to 2 weeks (judge alone? Further admissions?) perhaps we could make it work. Please let me know if you are available those weeks and if you are available to discuss narrowing the issues.

[23] On February 18, 2022, the Crown informed defence counsel that the case could be accommodated in the summer sittings in July and August, 2022.

[24] Counsel for Marsh indicated on March 9, 2022, that he was not available on the April dates and that he had difficulty in the summer, but that his client was prepared to have a different lawyer do the trial if dates could be found.

[25] There were discussions with counsel for Buick about re-electing a judge alone trial which would be severed from Marsh, but those discussions fell through as Buick insisted on a jury trial.

[26] On April 13, 2022, the Crown confirmed that three-week trial slots were available starting July 4 and July 18, 2022. The Crown noted that counsel for Buick had said he was not available on those dates. Nevertheless, the Crown went on to state:

I raise it again just in case anything has changed, or if there is a chance we could get on a 2 week jury trial for one or both men, if the trial can be narrowed. The officers are variously available in both time slots (eg, for at least one of the weeks) and I am available but would need to move 2 minor matters the week of July 18 (which I have approval to do). I have a sentencing on July 19 that could not move but it is only a half day.

[27] At this time, counsel for Marsh again raised the possibility of severing the cases, noting that the Crown had appeared to be willing to sever if Buick would agree to a judge-alone trial. In response, the Crown stated on April 28, 2022:

I've had some time to further consider this case and where we are with it. The Crown cannot agree to sever these accused at this time to do two jury trials.

I must be clear about one aspect of the email below: the Crown agreed to sever Mr Buick from Mr Marsh because Mr Buick's counsel had indicated (at the time) a willingness to re-elect to a judge-alone trial that we estimated would take 4 - 5 days. My email from March 29, 2022 reflects that the decision to agree to severance was based on this representation, and that if this changed the Crown's position might change.

In contrast, in the Crown's view it is not in the "interests of justice" to run two jury trials on the same case. The administration of trial time, particularly in the era of COVID-19 recovery, must also consider the reality that other cases are also looking for scare resources for the same reasons. At this time it is not responsible to the system as a whole to run two jury trials on the same case.

I've also reviewed authorities such as Campbell, 2022 ONCA 223, Kenny, 2016 ONCA 703, and Vassell, 2016 SCC 26, and in the Crown's view neither accused in this case is in the same position as the accused in those cases.

[28] As a result, an earlier trial date was not obtained, and the accused brought this application to stay the proceedings.

Exceptional circumstances: delay resulting from the COVID-19 pandemic

[29] I begin with exceptional circumstances. The exceptional circumstance here is, of course, the impact of the COVID-19 pandemic.

[30] As I observed in R. v. Hassan et al., 2022 ONSC 6369 at para. 14, “the COVID-19 pandemic and suspension of court operations clearly falls within the category of exceptional circumstances described in Jordan.” In R. v. Shen, 2022 ONSC 3274 at para. 49, Goldstein J. observed that “the authorities are virtually unanimous that the Covid-19 pandemic is a discrete event. Indeed, it is the ultimate discrete event.”

[31] When the trial date in this matter was set, on May 31, 2021, jury trials were not being heard in Toronto due to the pandemic. As Goldstein J. summarized in Shen, the pandemic caused jury trials to be suspended for fifteen months. Approximately twelve of those months preceded the setting of the trial date in this case. As summarized in Shen at para. 42, jury trials were suspended as follows:

• From March 17 to September 14, 2020, a period of six months;

• From November 21, 2020 to June 21, 2021, except for matters still in progress prior to November 21, 2020 (at the discretion of the court), a period of seven months;

• From December 20, 2021 to February 28, 2022 except for matters still in progress prior to November 21, 2020 (at the discretion of the court), a period of two months.

[32] The flow of cases did not stop, however. Large backlogs of cases developed, both cases adjourned due to the suspension and new cases entering the Superior Court. This created what has been described as the “knock on” or “ripple effect” of the suspension: R. v. Robinson, 2021 ONSC 2445; Hassan at para. 53. As Goldstein J. observed in Shen in June 2022, one year after jury trials resumed, at para. 28:

As I keep repeating, there is a significant backlog in the Superior Court because of the Covid-19 pandemic. Court resources, particularly courtrooms and judicial time, are at a premium. At this moment in mid-2022, we are feeling significant effects from the pandemic, and will for some time. Jury trials in the Superior Court were suspended, cumulatively, for well over a year. In Toronto, where I sit as the administrative judge for criminal matters, we are struggling as we try to hear many serious cases. We also need to address cases where individuals may have been in custody for inordinate periods of time. We have made scheduling modifications to try and hear more cases more efficiently and demanded greater accountability from counsel. This, of course, is in accordance with comments in Jordan and Cody that judges should use their trial management powers to streamline cases and dispose of issues with little chance of success.

[33] In May 2021, the earliest trial dates that could be obtained for the trial of this matter were in January 2023. This was due to the COVID-19 pandemic. The comments of counsel at the time and during the summer of 2021, the placing of the matter on a priority list to try to obtain earlier dates, and the scarcity of trial court availability, show that the strain on the courts caused by the pandemic was recognized by everyone as the cause of the lengthy delay until trial.

[34] As Dunphy J. observed in Titus, 2022 ONSC 3484, in June 2022, at para. 17:

The current backlog in cases awaiting a hearing cannot in any way be attributed to a re-emerging culture of complacency that Jordan directed all justice system participants to work diligently to eliminate. The backlog is the mathematical result of the cascading systemic impact of cancelled scheduled hearing dates and deferred scheduling of future hearing dates occurring during the periods of total physical closures of court operations plus other periods of only partial re-opening where fewer hearings than normal were able to be processed. The resulting backlog is in the process of being worked through but, like the proverbial pig in the python, it will take some time before it can be considered to be fully digested.

[35] There is no doubt, therefore, that the long delay in reaching trial in this matter is due to the COVID-19 pandemic. I observe that many of the cases in which similar lengthy delays have occurred arise from dates which were set in 2021, all due to the backlog caused by the pandemic: see, e.g., Titus; Hassan; R. v. Cann, 2022 ONSC 2699; R. v. Hamblett, 2022 ONSC 5726.

[36] The finding that the pandemic is a discrete, exceptional circumstance is, however, not the end of the inquiry. As stated in Jordan, there is a burden on the Crown to show that it could not “reasonably remedy the delays emanating from those circumstances” and that it “took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling.”

[37] Here, the Crown took many steps to attempt to avoid delay beyond 30 months.

[38] The case was placed on a priority list and was frequently brought back to Practice Court to address whether earlier trial dates could be found. The Crown made a number of requests to the defence to streamline the trial, such as making admissions to reduce the number of witnesses and admit certain evidence by affidavit. While I am told that the defence has made a number of concessions and admissions, the anticipated length of a jury trial has not been reduced below the three-week estimate.

[39] The Crown also identified dates when a three-week jury trial could have taken place within 30 months. Although the Crown could not confirm court availability in September 2021, court time became available in November 2021 and July 2022, when the Crown was also prepared to proceed. However, those dates were rejected by Marsh (for November 2021) and Buick (for July 2022).

[40] The Crown also proposed that if the case could be streamlined, or the accused re-elected to have a trial by judge alone, it could proceed earlier as a two-week trial. However, neither accused was prepared to give up their right to a jury trial and further agreements on streamlining were not obtained. Of course, the accused is not required to give up his right to a jury trial, but like the fundamental right to counsel of choice, asserting one right can have consequences to other rights, including the right to a trial within a reasonable time: Hassan at para. 48, citing R. v. Grant, 2022 ONCA 337, 413 C.C.C. (3d) 491, at para. 50.

[41] Counsel for the accused submit that the delay could have been avoided by severing the two accused, such that each accused could have had separate trials within 30 months. This was indeed requested and considered by the Crown. However, the Crown rejected severance, for reasons which are not unreasonable.

[42] The charges arose from the same incident, and while the evidence involving Marsh would be longer due to the pursuit after the robbery, much of the same evidence would be called against both accused. Severing the cases and having two trials would exacerbate the delays in the Court; it would cause further delay to other cases as even a potentially shorter jury trial for Buick would last more than one week, taking time away from other cases.

[43] There were discussions to re-elect trial by judge alone with Buick in the spring of 2022, which would have involved severance and a much shorter trial for him, but they did not succeed.

[44] In my view, the decision not to sever and create two jury trials was reasonable in the context of the challenges caused by the pandemic. The Crown is not required to prioritize any one case over others. As the Court of Appeal stated many years ago in R. v. Allen, 1996 4011 (Ont. C.A.):

No case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around any one case, but must try to accommodate the needs of all cases. When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources.

[45] Nor is this a case where I can conclude that one accused was held “hostage” to delay by the other who was responsible for the delay. Unlike the situations in R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625, and R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, each accused bore responsibility for the inability to obtain earlier trial dates: see Vassell at para. 4; Manasseri at para. 291.

[46] As Watt J.A. stated in Manasseri at para. 323, “[s]ometimes, the Crown may have to sever accused jointly tried to vindicate the s. 11(b) interests of one burdened down by another for whom trial within a reasonable time seems anathema”, but that is not this case. The Crown must indeed “remain vigilant that its decision” to proceed jointly does “not compromise the s. 11(b) rights of the accused”, but it is entitled to take into account other considerations in its management of cases proceeding through the courts and the impact severance can have on other cases.

[47] Reasonable attempts were made by the Crown to ameliorate the delay. From the outset, the Crown took steps to find earlier dates and proposed them to the defence. The Crown also took steps to canvas shortening the trial, which would have led to an earlier trial date, and proposed trial by judge alone. Although the steps taken failed to avoid a trial within 30 months, the steps do not need to be successful; all that is required is that reasonable steps to avoid the delay were taken. That is what happened here.

[48] In concluding that the Crown has met its onus to rebut the presumption of unreasonableness that arises from a 34-month delay, the question arises as to how much time should be deducted. This is difficult to answer as it would require constructing a hypothetical scenario of what dates would have been available to the Court, the Crown, and the defence in the absence of the suspension of court activities.

[49] There is no need to engage in such an exercise, for at least two reasons. First, but for the pandemic, there is no question that this case would have been tried within 30 months. Secondly, although Jordan created presumptive ceilings, the Court stressed that reasonableness is still the test, and is not merely a mathematical exercise. At para. 57 of Jordan Moldaver J. observed that the 30-month ceiling “reflects the realities we currently face”, and that the ceiling may need to be revisited in the future. Although I suspect Moldaver J. wrote this in the hope that the presumptive ceiling could be lowered in the future, the lengthy suspension of normal court operations—particularly the unavailability of jury trials for many months due to the pandemic—makes any reduction of the ceiling unlikely at this time and, arguably, might take the ceiling in a different direction.

[50] As Moldaver J. observed in responding to criticisms of his approach by the minority in Jordan, at para. 58:

Our colleague Cromwell J. misapprehends the effect of the presumptive ceiling, asserting that this framework “reduces reasonableness to two numerical ceilings”. As we will explain in greater detail, this is clearly not so. The presumptive ceiling marks the point at which the burden shifts from the defence to prove that the delay was unreasonable, to the Crown to justify the length of time the case has taken. As our colleague acknowledges, pursuant to our framework, “the judge must look at the circumstances of the particular case at hand” in assessing the reasonableness of a delay. (Citations omitted)

[51] In other cases in which the pandemic has caused delay beyond the 30-month threshold, judges have not felt it necessary to precisely quantify the delay, noting the difficulty in doing so: Robinson, at para. 103; Cann, at para. 24.

[52] In this case, the total length of the delay to the end of the trial is 34 months, or four months over the 30-month ceiling. Jury trials had already been suspended for 12 months, creating a large backlog when the trial date was set in May 2021. Jury trials were suspended for an additional three months thereafter (through June 2021 and then from December 2021 to February 2022), creating even more difficulty as the Crown sought earlier dates. In my view it is reasonable, if necessary, to conservatively attribute at least six months of delay to the exceptional circumstance of the pandemic, resulting in a net delay of 28 months.

Defence delay

[53] The applicants agree that a small number of days can and should be attributed to them. Marsh is responsible for 23 days of delay that occurred at the conclusion of the evidence at the preliminary inquiry in order, among other things, to have an “exit JPT” with the preliminary inquiry judge. Buick is responsible for 20 days of delay between April 13 and May 3, 2021, when the JPT in the Superior Court had to be rescheduled.

[54] The Crown also seeks to attribute large periods of time from each accused as defence delay when they were not available for trial but the court and the Crown were available.

[55] As I noted above, in Jordan the Supreme Court stated that the defence will be found to have “caused the delay if the court and the Crown are ready to proceed, but the defence is not.” The Crown submits that this was the case when Marsh was not available for a three-week trial commencing November 22, 2021, and when Buick was not available for a three-week trial commencing on July 4, 2022. Due to their unavailability, the Crown’s position is that Marsh was responsible for almost 14 months of delay, and Buick for about six months. Deducting these periods would also bring the total delay for each accused below 30 months.

[56] In R. v. Hanan, 2022 ONCA 229, 412 C.C.C. (3d) 233, at para. 56, the Court of Appeal rejected a “‘categorical approach’ proposed by the Crown that all of the delay following the rejection of a date offered by the court must be characterized as defence delay.” Rather, the Court must consider the circumstances in each case, reflecting the concern that the defence should not be saddled with all of the delay over a lengthy period where the court and the Crown were also unavailable.

[57] In R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 23, the Supreme Court commented that defence counsel are not required by s. 11(b) of the Charter to “hold themselves in a state of perpetual availability”, and that the clock does not stop “as soon as a single available date is offered to the defence and not accepted, in circumstances where the Crown is responsible for the case having to be rescheduled.” However, as the Court of Appeal pointed out in R. v. Albinowski, 2018 ONCA 1084, 371 C.C.C. 1084, the comments in Godin were “grounded firmly in the circumstances of that case” in which the Crown was responsible for the need to reschedule in the face of efforts by the defence to expedite the proceedings: Albinowski, at para. 32.

[58] In Albinowski, as in this case, defence counsel rejected dates offered because they were not available due to other commitments. As the Court of Appeal continued at para. 33:

Their unavailability was not related to ‘defence actions legitimately taken to respond to the charges’, such as ‘preparation time’ and ‘defence applications and requests that are not frivolous’: Jordan, at para. 65. Thus, as Jordan further directs, at para. 64, their unavailability, when the Crown and court were available, fell squarely within the category of delay that counts against the defence:

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. [Emphasis added]

[59] In this case, the Crown was not responsible for a last-minute adjournment, but simply sought dates to keep the trial within the Jordan framework. The defence was not pressing for early dates, although when dates were proposed by the Crown, counsel for Marsh would request severance in order to attempt to get earlier dates. In the spring of 2022, in order to make summer dates work, Marsh also agreed to be represented by different counsel, if necessary to make dates work.

[60] Nevertheless, none of the dates for a three-week jury trial on which the Crown and the court were available worked for both accused. In accordance with Jordan, therefore, I would attribute, as defence delay, approximately 14 months of delay to Marsh, and approximately seven months of delay to Buick.

Delay below 30 months

[61] The defence argues that the net delay in this case is unreasonable. I disagree. Even if I were to only deduct the delay due to the exceptional circumstance of the COVID-19 pandemic, which I have conservatively considered to be six months, and the admitted defence delay of 20 and 23 days, the total net delay would be about 27 months. For a three-week jury trial in the pre-COVID era this might have been a little longer than other cases, but I cannot conclude that it is “markedly longer” than it reasonably should have taken.

[62] The term “markedly” sets a “high bar”, as the Supreme Court observed in R. v. K.G.K., 2020 SCC 7, 443 D.L.R. (4th) 361, at para. 65. The standard is not just “longer”, but “markedly longer.”

[63] In this case, the charges are very serious, they involve two accused and require a three-week jury trial. In those circumstances, I cannot conclude, even absent the circumstances in which the Court finds itself due to the pandemic, that concluding a trial within 15 months of it arriving in Superior Court is “markedly longer” than it reasonably should have taken.

[64] I am also not satisfied that the applicants “took meaningful steps that demonstrate a sustained effort to expedite the proceedings.”

[65] Counsel for Marsh did press for severance and his client, at least in 2022, agreed to be represented by different counsel if necessary for the July 2022 dates, although he did not do so in 2021 to make the November 2021 dates work. The willingness to change counsel was a meaningful step, but came too late. The repeated request for severance is not, however, a “meaningful step” as the Crown acted reasonably in not severing the cases. Buick’s counsel was much less active, and neither counsel seemed to have responded, meaningfully, to the Crown’s suggestions of streamlining the trial down to a two-week length, though I acknowledge that I have limited information on that point and that the defence may have acted reasonably in conceding what it could, and no more.

[66] Accordingly, I am not satisfied that the “net delay” in this case is unreasonable.

Conclusion

[67] The application to stay the proceedings is dismissed.

Paul B. Schabas

Released: January 3, 2023

COURT FILE NO.: CR-21-70000183-0000

DATE: 20230103

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

JASON BUICK AND JEFFREY MARSH

REASONS ON APPLICATION

Schabas J.

Released: January 3, 2023

R. v. Buick, 2023 ONSC 42

Case Summary

Overview

Background

Legal framework – defence delay and exceptional circumstances

Chronology of the case and scheduling of the trial

Exceptional circumstances: delay resulting from the COVID-19 pandemic

Defence delay

Delay below 30 months

Conclusion

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 1

Legal Tests 1

Legislation 1