MADE: COURT EXHIBIT ON AUGUST 2, 2023

COURT FILE NO.: CR-21-5249 DATE: 20230802

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – Kahli Johnson-Phillips and Shanice Wynter Accused

Counsel: Jayme Lesperance and Bryan Pillon, for the Crown Michael A. Moon and Nicole Bellefeuille, Counsel for Mr. Johnson-Phillips Anthony G. Bryant, Counsel for Ms. Wynter

Heard: Application under s. 11(b) of the Charter heard May 9, 10, 11, 12, 15, 2023

PUBLICATION BAN

Pursuant to s. 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict, or until further order of the court.

RULING UNDER S. 11(b) OF THE CHARTER

HEBNER J.

Introduction

[1] The accused have both been charged with offences arising from the death of Jason Pantlitz-Solomon and from the wounding of Camille Lufitha-Molima, both of which occurred on August 27, 2018. Both Ms. Wynter and Mr. Johnson-Phillips are charged with first degree murder of Jason Pantlitz-Solomon. Ms. Wynter is charged with aggravated assault on Camille Lufitha-Molima. Mr. Johnson-Phillips is charged with attempted murder of Camille Lufitha-Molima.

[2] Both of the accused have brought an application alleging a violation of their right to be tried within a reasonable time pursuant to s. 11(b) of the Charter of Rights and Freedoms and they seek a stay of the charges pursuant to s. 24(1) of the Charter.

[3] In the seminal case of R. v. Jordan, 2016 SCC 27, the Supreme Court reaffirmed the importance of an efficient criminal justice system such that accused persons are brought to trial expeditiously. At para. 3 the court said: “The ability to provide fair trials within a reasonable time is an indicator of the health and proper functioning of the system itself.”

[4] In Jordan, at para. 49, the court set the presumptive ceiling at 30 months from the charge for cases going to trial in the Superior Court. Delays beyond 30 months are presumptively unreasonable.

Positions of the Parties

[5] The information adding Ms. Wynter to first degree murder charges with then co-accused, Keima Davis-Baynes, was sworn on September 20, 2019. Ms. Wynter was arrested on September 24, 2019. Defence counsel initially identified her presumptive Jordan date as March 24, 2022, but in my view, the date is March 20, 2022, as the time runs from the charge – not the arrest. Mr. Johnson-Phillips was added to a replacement information alleging first degree murder charges with then co-accused, Ms. Wynter and Ms. Davis-Baynes, on October 24, 2019. Mr. Johnson-Phillips was arrested October 30, 2019. The presumptive Jordan date for Mr. Johnson-Phillips is April 24, 2022.

[6] This trial is expected to be completed in December of 2023. The defence has used December 24, 2023, as the expected completion date for their calculations. I will use that date as well.

[7] Based on these dates, the presumptive Jordan date for Ms. Wynter will have been exceeded by 21 months and 4 days and for Mr. Johnson-Phillips by 20 months.

Analytical Framework

[8] In R. v. Zahor, 2022 ONCA 449, at paras. 60-76, the Ontario Court of Appeal succinctly sets out the framework for evaluating an application under s. 11(b) of the Charter in accordance with the principles outlined in Jordan. According to Zahor, this court must undertake the following analysis when determining such an application:

Step 1: Calculate the total delay from the laying of the charge to the actual or anticipated end of the trial.

Step 2: Calculate the net delay by subtracting defence delay from total delay. There are two types of defence delay:

Step 2(a): Subtract delay that is waived by the defence.

Step 2(b): Subtract delay that lies at the feet of the defence, that is delay that is caused solely or directly by the defence’s conduct.

Step 3: Compare the net delay to the applicable presumptive ceiling. If the net delay is above the ceiling, the delay is presumptively unreasonable, and the Crown bears the burden of rebutting this presumption by demonstrating exceptional circumstances.

Step 4: Consider exceptional circumstances. These are circumstances beyond the Crown’s control that are reasonably unforeseen or reasonably unavoidable.

Step 4(a): Consider discrete exceptional circumstances, which are unexpected and uncontrollable happenings which lead to delay.

Step 4(b): Consider complexity.

Step 5: Consider transitional exceptional circumstances for cases that were in the system prior to the decision in Jordan.

[9] If the total delay from the charge to the anticipated end of the trial, minus defence delay exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances, whether it be discrete exceptional circumstances or complexity. If they are unable to do so, the delay will be considered unreasonable, and a stay will follow (Jordan at para. 47).

Impact of COVID-19

[10] In R. v. Agpoon, 2023 ONCA 449, at para. 4, the Court of Appeal acknowledged that Jordan was not written with a phenomenon like the COVID-19 pandemic in mind but said that the Jordan principles are adaptable. Starting at para. 27, the Court of Appeal identified the pandemic caused disruptions to the criminal justice system as:

province wide court closures; jury blackout periods; local court closures and restrictions; local availability of court facilities; and priorities in addressing the backlog.

[11] At para. 33 the Court said:

Going forward, where access to courts has been limited in these ways, the attributable delays are to be treated by the reviewing court as discreet exceptional circumstances in assessing delay for Jordan purposes.

Analysis

Step 1: Calculate the total delay

[12] The charge against Ms. Wynter is dated September 20, 2019. The total delay to December 24, 2023, is 51 months and 4 days, or 1,555.267 days (1 month is 30.417 days as per R. v. Shaikh, 2019 ONCA 895).

[13] The charge against Mr. Johnson-Phillips is dated October 24, 2019. The total delay to December 24, 2023, is 50 months, or 1,520.85 days.

Step 2: Calculate the net delay

[14] The next step is to calculate the net delay by subtracting defence delay from the total delay.

[15] Defence delay is comprised of those periods of time that are waived by the defence, and delay that is “caused solely or directly by the defence’s conduct” (Jordan at para. 66). This includes those periods of time where the court and Crown are ready to proceed but the defence is not but does not include defence actions legitimately taken to respond to the charges.

[16] In R. v. Cody, 2017 SCC 31, the Supreme Court further explained defence delay at para. 30. The only deductible defence delay at this step is that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. This would include defence applications and requests and circumstances where the court and crown are ready to proceed but the defence is not.

[17] If defence contributed to, but was not the sole cause of, a period of delay, then it will be “fair and reasonable” to apportion delay as between the parties. See Zahor, at para. 102.

a) Ms. Wynter

Delay in Retaining Counsel

[18] In R. v. Khan, 2022 ONSC 7310, Mr. Khan was facing a 14-count indictment. His first appearance in the Ontario Court of Justice was on December 18, 2018. He was encouraged to get counsel and the case was adjourned to January 8, 2019. Mr. Khan had not retained counsel by January 8. He delayed in retaining counsel until April 24, 2019. Boswell J. characterized the delay from December 18 to January 8 as a normal part of the intake process and not defence delay. Similarly, Boswell J. characterized March 5, 2019, to March 27, 2019, as part of the inherent time requirements of the case because there were new and more serious charges before the court. Otherwise, the delay in retaining counsel was attributed to the defence.

[19] Ms. Wynter was arrested on September 20, 2019. Her first court appearance was September 25, 2019. Thereafter, Ms. Wynter attended in court on October 3, October 17, and October 22 without having retained counsel. Mr. DiPietro was retained by October 24, 2019. The total time was 29 days. Given the serious charges faced by Ms. Wynter, I do not consider this to be an unreasonable period of time and I would not classify those 29 days as defence delay.

Delay Caused by Changes in Counsel

[20] Ms. Wynter fired Mr. DiPietro at the preliminary hearing stage. Mr. DiPietro was removed as counsel of record for Ms. Wynter on January 18, 2022. Ms. Wynter appeared in court on February 7 and February 22, 2022, without counsel. On March 4, 2022, Mr. Ehsan Ghebrai attended for Ms. Wynter as a lawyer who would potentially be Ms. Wynter's counsel on a go forward basis. That retainer did not come to pass. Mr. Bryant appeared for the first time for Ms. Wynter at the judicial pre-trial in Superior Court on April 19, 2022, but was unable to confirm his retainer. The pre-trial was adjourned to June 21 to confirm that Mr. Bryant had disclosure and had canvassed pre-trial motions. The date was subsequently changed to June 22.

[21] At the May 13, 2022, Assignment Court, the matter was adjourned to June 10, 2022, to confirm that Mr. Bryant was retained as counsel for Ms. Wynter. At the June 10, 2022, Assignment Court the pre-trial motion and trial dates were set, with the pre-trial motions commencing January 3, 2023, for 13 weeks and the trial commencing September 11, 2023, for 14 weeks.

[22] I would characterize the time period from January 18, 2022, the date that Ms. Wynter discharged Mr. DiPeitro, to June 10, 2022, when Mr. Bryant was on the record and trial dates were set as defence delay. The matter could not move forward during that time as Ms. Wynter was without counsel. The total number of days is 143.

[23] The Crown asserts that additional time, namely to September 29, 2022, ought to be characterized as defence delay because until then, Mr. Bryant was not in a meaningful position to address admissions, the contents of the case, the pre-trial motions, and the issues in the trial. I do not agree with the Crown on that point. The pre-trial motions and trial dates were set at Assignment Court on June 10, 2022, and so additional time for Mr. Bryant to bring himself up to speed did not affect those dates.

b) Mr. Johnson-Phillips

Delay in Retaining Counsel

[24] Mr. Johnson Phillips was arrested on October 30 and had his first appearance in court on October 31, 2019. Thereafter, he appeared in court on November 7, November 21, December 4, December 18, and January 6 and January 9, 2020, during which time he had yet to retain counsel. On January 30, 2020, Mr. Johnson-Phillips appeared in Assignment Court and advised that Mr. Dan Rechtshaffen was his lawyer, but Mr. Rechtshaffen did not provide instructions to duty counsel or anyone else. On February 13, Mr. Johnson- Phillips attended, and Mr. Rechtshaffen had still not been retained. The matter was adjourned to February 27. On February 27, Mr. Johnson-Phillips had still not retained Mr. Rechtshaffen or any other lawyer and his case was adjourned to March 5. On March 5, Mr. Johnson-Phillips had not retained counsel and the case was adjourned to March 12. On March 12, Duty Counsel confirmed that Mr. Moon was counsel of record for Mr. Johnson-Phillips and the Crown confirmed that it had received Mr. Moon's disclosure request. The matter was put to the next speak to court of March 26, 2020.

[25] Crown disclosure had been ready for counsel of record by October 31, 2019.

[26] In this case, Mr. Johnson-Phillips faces arguably the most serious of charges in the Criminal Code. In my view, it is reasonable for him to take time to retain counsel of choice. I would consider the delays incurred to the appearance on December 4, 2019, a period of six weeks, to be a normal part of the intake process and not defence delay. I consider the delays from December 4, 2019, to March 26, 2020, when Mr. Moon confirmed to the court to have been retained as counsel for Mr. Johnson-Phillips, to be defence delay. The total defence delay then is 113 days.

Delay in Setting Preliminary Hearing Date

[27] Mr. Moon indicated he was prepared to schedule the preliminary hearing for Mr. Johnson-Phillips after the first judicial pre-trial when the case was put to the in-custody preliminary hearing/trial scheduling docket on April 21, 2020. However, thereafter there were further requests for disclosure and preliminary hearing dates were not set until October 23, 2020. The Crown asserts that the disclosure requested was not required to set an administration pre-trial or the preliminary hearing. Unfortunately, the record is unclear given the adjustments required to shift the court proceeding to virtual courts immediately after the COVID-19 pandemic began.

[28] This time period coincides with the time when the scheduling of court appearances was materially affected by the pandemic. The Ontario Court of Justice announced on March 28, 2020, in the notice entitled “COVID-19 Pandemic-Scheduling of Criminal Matters in the Ontario Court of Justice (Revised March 28, 2020)” that all criminal trials and preliminary inquiries scheduled between March 20, 2020, and May 29, 2020, were suspended.

[29] On May 4, 2020, the Ontario Court of Justice announced that no trials or preliminary inquiries would be conducted until at least July 6, 2020, at the earliest, but judicial pre-trials would continue to be conducted. On July 6, 2020, the Ontario Court of Justice announced that they would begin to schedule trials and preliminary inquiries with priority being given to continuations and matters previously scheduled for hearing when the courts shut down. The scheduling of “new” in-custody matters, such as this case did not begin until July 21, 2020.

[30] In my view, the time period from March 28, 2020, to July 21, 2020, is best dealt with under the exceptional circumstances heading, below.

[31] I would characterize the time period from July 21, 2020, to October 23, 2020, as shared between the Crown and the defence. I do agree that much of the disclosure sought by defence had marginal, if any, relevance to the arguments for committal, however, it was still disclosure that the prosecution needed to assemble. Accordingly, I would characterize 47 days (94 divided by 2) to be defence delay.

Setting the Three-Week Preliminary Hearing Date

[32] On October 14, 2020, trial co-ordination sent e-mail correspondence to counsel that for the three-week preliminary hearing being requested by defence, she would be canvassing dates in May and June of 2021. The Crown was available every day in May and June. Trial co-ordination began offering blocks of a week at a time starting with May 10 to 14, 2021. Mr. Moon replied that he was unavailable May 10 to 19 and the entire month of June 2021. Accordingly, the preliminary hearing was scheduled to start July 12, 2021.

[33] The court was available, and the Crown was available for the May 10 dates. Mr. Moon was not. I agree with Mr. Lesperance that the delay of 63 days from May 10 to July 12, 2021 must be characterized as defence delay.

Length of the Preliminary Hearing

[34] The Crown argues that defence overestimated the time required for the preliminary hearing. In the two weeks leading up to the preliminary hearing, defence counsel advised trial co-ordination that only one week was required as opposed to three. As it turns out, only two days of court time were used as committal for first degree murder was conceded after two days. The Crown argues that a three to five day in-custody preliminary hearing could have been scheduled much earlier than a three-week hearing. The Crown asserts that I ought to attribute the time period of 72 days (March 1 to May 10, 2021) as defence delay.

[35] I note that trial co-ordination was offering blocks of a week at a time for the anticipated three-week preliminary hearing. Presumably, if the hearing had been one week or less, it would have been easier to find time in the various judicial schedules. However, without better evidence on that point, I am not prepared to attribute any of the requested 72 days to defence delay. I also consider that Mr. Moon was still collecting disclosure during this time. In those circumstances, I do not think Mr. Moon can be faulted for over-estimating the time required.

[36] The Crown suggests that I ought to deduct some amount of a shared delay from collectively proceeding against Mr. Johnson-Phillips and Ms. Wynter because of the absence of admissions. In the context of this case, I do not agree. I do not see a delay caused by the co-accused on the same indictment and none has been proven. As for the absence of admissions, the stakes are high in this case and the case is a complicated circumstantial one with the trial anticipated to take 14 weeks. I am not sure the defence can be faulted for failing to make admissions.

Setting the Trial Dates

[37] Mr. Lesperance suggests that the delay in scheduling the trial dates ought to be characterized as defence delay. In my view, that issue is better dealt with in the exceptional circumstance category, as set out below.

Step 3: Compare the Net Delay to the Presumptive Ceiling:

a) Ms. Wynter

[38] For Ms. Wynter, the total defence delay that I calculate is 143 days. I therefore calculate the net delay for Ms. Wynter to be 1,412.267 days or 46.430 months.

b) Mr. Johnson-Phillips

[39] I calculate the total defence delay to be 223 days. Therefore, the net delay for Mr. Johnson-Phillips is 1,297.85 days or 42.668 months.

Step 4(a): Consider Exceptional Circumstances – Discreet Exceptional Circumstances:

[40] In Agpoon, the Court of Appeal explained that the COVID-19 pandemic “falls within a category of discrete exceptional circumstances laid out in Jordan” (para. 19). The court identified five discreet groups of disruptions to the administration of justice caused by the pandemic. They are, as identified in Agpoon: province wide court closures; jury blackout periods; local court closures and restrictions; local availability of court facilities; and priorities in addressing the backlog. At para. 33, the court said “[g]oing forward, where access to courts has been limited in these ways, the attributable delays are to be treated by the reviewing court as discreet exceptional circumstances in assessing delay for Jordan purposes.”

a) Ms. Wynter

[41] As explained below, there was a significant delay in Ms. Wynter's preliminary hearing as a result of the pandemic. Ms. Wynter was out of custody. Her preliminary hearing, scheduled for May of 2020, was canceled due to the pandemic. It was adjourned several times while the Ontario Court adjusted its operations.

[42] In the notice to the profession published July 2, 2020, the Ontario Court of Justice was to open across the province in phases. A limited number of courtrooms would be available. Priority was to be given to in-custody continuations, followed by in-custody hearings adjourned due to COVID-19, followed by new in-custody hearings, followed by out of custody continuations and, finally, followed by out of custody hearings adjourned due to COVID-19. Ms. Wynter’s matter was in the last category.

[43] In a notice to the profession published August 19, 2020, the Ontario Court of Justice announced that it will begin province wide implementation of virtual criminal case management court.

[44] Against that backdrop, I set out the progress of Ms. Wynter’s case.

[45] On February 12, 2020, counsel for Ms. Wynter appeared for both Ms. Wynter and her then co-accused, Ms. Davis-Baynes, and confirmed the preliminary hearing would require seven days. The matter was adjourned to March 4, 2020, to schedule the seven days. On March 4, 2020, the dates set were May 28 and 29, and June 15 to 19, 2020. On March 30, 2020, immediately after the beginning of the pandemic, the matter was presumptively adjourned, the preliminary hearing dates were vacated, and the presumptive return date was June 8, 2020. On June 8, the matter was adjourned to June 15, 2020, for an update after the June 9 pre-trial.

[46] On June 15, 2020, Ms. Wynter's matter was again presumptively adjourned to August 24, 2020, following the May 13, 2020, directive to adjourn remands for at least eight weeks.

[47] The Ontario Court of justice did not begin to schedule trials and preliminary inquiries involving out of custody accused persons until August 17, 2020. Priority was to be given to trials and preliminary inquiries that were adjourned due to COVID-19.

[48] The Wynter matter was in the Ontario Court of Justice on October 28, 2020. The reason for the delay from August 24 to October 28 is unclear. On October 28, the case was adjourned to permit the required COVID-19 judicial pre-trial and then to confirm new dates for the rescheduled seven-day preliminary hearing. The pre-trial was conducted on December 16.

[49] The scheduling of the seven-day preliminary hearing was challenging. An out-of-town judge was required as it was expected that the co-accused's previous lawyer would be giving evidence and counsel for the co-accused, Ms. Davis-Baynes, did not wish to proceed by virtual proceedings. Most of the witnesses were from Toronto, which at the time was experiencing high levels of COVID-19 positive cases. On January 22, 2021, the preliminary hearing dates were set for December 6 to 10 and 13 to 16, 2021. The requisite time was increased from seven days to nine days solely to estimate how much longer it would take given pandemic cleaning protocols.

[50] Ms. Wynter's preliminary hearing was presumptively adjourned within two months of the start of the pandemic, along with hundreds of others over the next few months. This created a backlog that continued to grow as new cases were coming into court. Out of custody matters ranked lower on the Ontario Court’s priority list and as a consequence, Ms. Wynter’s preliminary hearing was significantly delayed.

[51] I would deduct the entire time period from the first date of the originally scheduled preliminary hearing, namely May 28, 2020, to the first date of the actual preliminary hearing, December 6, 2021, as a discrete exceptional circumstance. But for the pandemic, the preliminary hearing would, presumably, have been underway as of May 28, 2020. In my view, given the need for the court to set priorities during that time period and given the reduction in available courtrooms and the restrictions placed on them, I would not parse out the time between the originally scheduled preliminary hearing and the actual preliminary hearing.

[52] In that respect, I agree with and adopt the reasoning of Goldstein J. in R v. Shen, 2022 ONSC 3274, at para 45:

45 The notion that everything should have been immediately accommodated when the suspension was lifted is, frankly, simplistic, and facile. As Doherty J.A. observed in R. v. Allen, more than 25 years ago at para. 27:

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.

[53] My view is that the entire time can be attributed to the pandemic. The total time is 557 days or 18.31 months.

b) Mr. Johnson-Phillips

[54] As identified above, the period of time from March 28, 2020, to July 21, 2020, from when the court first announced that criminal trials and preliminary inquiries were suspended and the scheduling of new in custody matters would not begin until July 21, 2020, is a discreet exceptional circumstance. The total days to be deducted is 115 for this time period.

[55] Mr. Johnson-Phillips was committed for trial, as I understand it, on July 14, 2021.

[56] In the Superior Court of Justice in Windsor, jury trials were suspended for a total of 15 months – from March 17 to September 14, 2020, from November 21, 2020, to June 21, 2021, and from December 20, 2021, to February 28, 2022. For the months that jury trials were possible, there were limited courtrooms available, with two or three courtrooms necessary to accommodate one jury trial due to the need to social distance.

[57] The only possible window of opportunity that could accommodate this trial between March of 2020 and February of 2022 was between June 21, 2021, and December 20, 2021. Mr. Johnson-Phillips was just committed for trial in July of 2021 and defence counsel required 13 weeks for pre-trial applications plus 14 weeks of trial time, so a trial was not feasible at that time. Moreover, the Windsor Superior Court and the Regional Senior Justice (RSJ) were forced to triage and prioritize the cases that could be heard during that window, with jury trials that were adjourned due to the pandemic given priority.

[58] Within that context, I consider the position of defence counsel Mr. Moon at the time.

[59] Mr. Johnson-Phillips was committed in July of 2021. The trial co-ordinator of the Windsor Superior Court immediately began working on scheduling the matter. By July 30, the RSJ, Justice Thomas, was appointed the case management judge and a pre-trial date was sought. The RSJ indicated he was available on August 26, 2021. In the course of responding to emails to set the first judicial pre-trial date, Mr. Moon said the following about his schedule:

Starting the week of September 13, I am on an Attempted Murder trial at the Superior Court, so any JPT would have to be before 10:00AM or during lunch or after Court. Of note, I have a JPT on a Sarnia case on September 17, which, if not resolved, will be set for trial in 2022. Inasmuch as both Ms. GENSEY and I are booked on our own murder cases throughout the Spring/Summer of 2022, it will have to be set for trial September of that year, which would push the commencement of trial of this matter off until at least November of 2022.

[60] I do not fault counsel for having a busy schedule. Counsel were, at the time, in the same position as the court: facing a backlog of cases all vying for attention. I suspect counsel were triaging and prioritizing within their own practices.

[61] The Supreme Court in Jordan, Cody, and R. v. K.J.M., 2019 SCC 55, said that every participant in the administration of justice must be proactive to ensure that accused are tried within a reasonable period of time. In KJM at para. 83, the court said that

The defence must take meaningful and sustained steps - attempting to set the earliest possible hearing dates, cooperating with and responding to the crown and the court, putting the crown on timely notice when delay is becoming a problem, conducting all applications reasonably and expeditiously, and so on.

[62] Here, Mr. Moon fairly set out his availability, which was limited. There is no evidence that the Crown objected or the court offered earlier dates. Given the backlog created by the pandemic, I expect this court could not accommodate earlier dates and thus worked to set the dates requested by Mr. Moon.

[63] In R. v. Malhi, 2023 ONSC 7, Nakatsuru J. dealt with an 11(b) application in a four-week jury trial that was set to commence in February of 2023. The trial date was set on July 6, 2021, in the midst of the pandemic. The issue on the application was the calculation of the COVID-19 exceptional circumstances.

[64] Nakatsuru J. acknowledged that the pandemic has created a backlog of cases that need to be dealt with. The question was whether there was a link between the delay and the pandemic backlog. Nakatsuru J. said the following factors may be useful to consider:

1. The courthouse in which the trial is being conducted. Different jurisdictions will have different backlogs of cases caused by the pandemic. (para. 24)
2. Whether the trial is by a jury or judge alone. Jury trials were uniquely affected by the suspensions of jury trials ordered by the Chief Justice. When jury trials were commenced, the added precautions, health mandates and social distancing requirements meant that the same number of jury trials as in pre pandemic times could not take place. (para. 25)
3. The length of the trial. Common sense dictates that a short trial is easier to accommodate then a long trial. The longer the trial, the more likely it will be affected by the backlog. (para. 26)
4. The timing of the setting of the trial date in relation to the pandemic itself.
5. The length of time before the court can accommodate the trial. Nakatsuru J. reasoned that “in the absence of other reasons for the delay, a lengthier than normal period of time required before a trial can be heard, means that it is more likely the scheduling of the trial has been detrimentally affected by the backlog created by the pandemic.” (para. 28)

[65] Here, this is a 14-week jury trial that also required 13 weeks of pre-trial applications. The trial dates were set in September of 2021, after the Superior Court in Windsor had suspended hearing jury trials on three separate occasions, with yet another suspension to come. While no jury trials were being held, new cases were still coming into the system. Available dates for jury trials in Windsor are still much further out then in pre-pandemic times. I add to this Mr. Moon’s lack of availability until November of 2022 likely due to prioritized trials in other court locations.

[66] Under these circumstances, I would consider the entire time from Mr. Johnson-Phillips committal on July 14, 2021, to November 1, 2022, to be delay related to a discrete exceptional circumstance. I believe this determination to be consistent with the Court of Appeal’s direction in Agpoon. The total is 475 days. This does not include the total days (115) calculated at para. 54 (from Mar 28 2020 – July 21 2020).

Calculation Thus Far

[67] Ms. Wynter’s net delay is 1,412.267 days. When I deduct the pandemic related delay of 557 days, the total is 855 days or 28.118 months.

[68] Mr Johnson-Phillips’ net delay is 1,297.85 days. When I deduct the pandemic related delay of 590 days, the total becomes 707.85 days or 23.271 months.

Step 4(b): Consider Complexity

[69] My delay calculations for both accused are below the 30 months presumptive threshold. However, I go on to consider complexity for the sake of completeness in the event I am mistaken in any of my calculations above.

[70] The Crown filed an affidavit and called evidence of Sergeant Scott Roberts on the issue of complexity.

Evidence of Sergeant Scott Roberts

[71] Sergeant Roberts is a Supervisor with the Windsor Police Service Major Crime Unit. In 2018, his rank was a Constable. Sergeant Roberts is the designated officer in charge of the Johnson-Phillips and Wynter prosecution and has performed in this role since January of 2020. He noted that the case remains an on-going homicide investigation as one shooter has not yet been identified or arrested.

[72] Sergeant Roberts said he has been involved in 12 homicide cases over the course of his career. He described 2018 as Windsor's deadliest year since 1978, with ten homicides and a police-involved shooting. Throughout his evidence, Sergeant Roberts referred to the investigation as the “Solomon homicide investigation”. He said that it is, to date, the largest investigation that he has been involved with in his twenty-year career as a police officer.

[73] Sergeant Roberts provided the following information on the Solomon homicide investigation:

• The digital disclosure is 595 gigabytes of data. There are 375,795 files in 5,932 folders in the hard drive evidence disclosed to the crown and defence.
• During the initial Windsor investigation, three cell phones were extracted and reviewed. The Jason Solomon phone had data size of 18.8 gigabytes with a full PDF extraction of 54,647 pages. The Camille cell phone had data size of 1.33 gigabytes and a PDF extraction of 6,095 pages. The Brenda Sasa cell phone had data size of 17.3 gigabytes and a PDF extraction of 68,277 pages.
• The Windsor police service adopted SCOPE for the transfer of documents to the Crown, a comprehensive disclosure system that hadn't been generated since November of 2019.
• Initial disclosure was made by providing an external hard drive to the crown and defence counsel. As further documents came forward, Sergeant Roberts had to collect all the hard drives back from defence and personally place the disclosure onto the hard drives.
• The Solomon homicide investigation, once commenced, quickly grew into a multi jurisdictional project called project Wellington. Project Wellington was led by the OPP and included the joint efforts of Peel Regional Police, Toronto Police, York Regional Police, Waterloo Regional Police, and Windsor Police.
• There were related criminal occurrences, including the Jerome Edwards shooting, various break and enters, a jewelry store robbery, and home invasions.
• Three more cell phones were seized by the Peel Regional Police Service on August 27, 2018, containing, collectively, 95,477 PDF extraction pages.
• Approximately 28 separate judicial authorizations were composed by three different Windsor police service affiants.
• As many as 56 police officers alone, inclusive of Windsor, Peel, and York officers, have been identified as potential witnesses for the trial. Two investigators will be required to assist in the handling of witnesses.

Application of Law

[74] In Jordan, the Supreme Court described complex cases in paragraphs 77 to 78 thusly:

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

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

[75] In Zahor, the Court of Appeal said the following about a complex case:

A case may be particularly complex where it requires a great deal of trial time or preparation time “because of the nature of the evidence or the nature of the issues”: Jordan, at para. 77 (emphasis in original). Voluminous disclosure, a large number of witnesses, significant expert evidence, charges extending over a prolonged period of time, multiple charges, several pre-trial applications, novel or complicated legal issues, numerous significant issues in dispute, multiple co-accused tried together, and an international dimension to the case are all examples of particular complexity. (citations omitted)

[76] This case has several of the hallmarks of complexity identified by the Court of Appeal. There is voluminous disclosure, a large number of witnesses, multiple expert witnesses, and multiple pre-trial applications. Thirteen weeks were scheduled to deal with the pre-trial applications, of which there were 20 to 25 scheduled, and 14 weeks are currently scheduled for trial. There have been six case management meetings, four with the RSJ and two with myself. There were novel and complex charter issues that were dealt with during the pre-trial applications including the extraction of data from cell phones.

[77] In R. v. Millard, 2017 ONSC 4030, Code J. dealt with a s. 11(b) application from one of two accused in a first-degree murder case. At para. 80, Code J. said that the case before him “bore all the hallmarks of a particularly complex case” based on features of the case including:

• The evidence was voluminous and complex. There were 217 civilian witnesses, 260 police officers, 40 search warrant informations, twenty production orders, and at least 20 expert reports.
• To a large extent, the case depended on the forensic analysis of cell phones, tablets, and computers.
• There were 17 pre-trial motions to be dealt with.
• The trial was scheduled for four months. He said, “a murder trial of more than six weeks is generally regarded as a lengthy trial”.

[78] This case has these same hallmarks.

[79] In R. v. Muhammed, 2018 ONSC 4463, Trimble J. considered 11(b) applications from two accused. The charges were kidnapping, forcible confinement, and assault with a handgun, a taser, and fists. The net delay for the accused was 34.5 months. In finding the case to be complex within the Jordan framework, Trimble J. noted that: there were three accused; the evidence, if accepted, showed that the kidnapping was carefully planned and executed; there were multiple investigations from three different jurisdictions with disclosure comprising approximately 15,000 pages; the evidence included wiretap transcripts, DNA, fingerprint, video surveillance, and evidence from witnesses; there were to be a number of pre-trial applications in five weeks set aside for motions; there were issues of privilege to be determined; and the trial was scheduled to take three to four months.

[80] Here we have two accused; multiple investigations from at least three jurisdictions; the evidence includes cell phone data, video surveillance, and evidence from witnesses; there were many pre-trial applications with 13 weeks set aside to hear them; and the trial is scheduled to take 14 weeks. Many of the factors in Muhammed are present in this case.

[81] I am also required to consider whether the Crown developed and followed a plan to help minimize the delay caused by the complexity of the case. The Crown in this case was proactive in requesting numerous case management and judicial pre-trials. It engaged defence counsel in scheduling dates. It provided timely disclosure. As an example, Mr. Moon requested the hard drive disclosure and received it in three days. It prepared organizational summaries for the cell phone, cell tower and expert evidence as well as the cellebrite extractions. It prepared numerous charts and aides for the defence. It filed position papers throughout the preparation for the pre-trial motions so that the defence knew the Crown’s position at every stage. The Crown prepared PowerPoints and synopses to assist defence counsel and the court in understanding the case. It co-operated with defence counsel throughout the pre-trial applications including arranging for all the witnesses requested by defence.

[82] Defence counsel, Mr. Moon, suggested that the Crown's decision not to prefer a direct indictment is the single decision that caused the delay. Mr. Johnson-Phillips had his preliminary hearing and was committed for trial in July of 2021. Ms. Wynter did not have her preliminary hearing, and was not committed for trial, until December of 2021. At the time the first judicial pre-trial was heard, September 8, 2021, the only accused on the indictment was Mr. Johnson-Phillips. The suggestion is that the Crown could have taken steps to obtain a direct indictment for Ms. Wynter so that the dates could be set earlier.

[83] The difficulty with this argument is that trial dates were set in Assignment Court on September 17, 2021. They were set taking into account the availability of Mr. Moon as he informed the court and the Crown in his email of August 2021. There was no delay in waiting for Ms. Wynter because the trial dates were set the month after Mr. Johnson-Phillips was committed, before Ms. Wynter was added to the indictment.

[84] In Agpoon, the Court of Appeal cautioned trial judges against criticizing decisions made by the Crown. At para. 42, the Court of Appeal said:

The Crown’s decision to prefer a direct indictment in this matter, even at a late stage, did not affect this pandemic-related delay. It is easy to be critical of decisions made by the crown, with the benefit of hindsight. At the height of the pandemic, it would have been very difficult to predict the impact on the court’s capacities from week to week and to make plans for the continuation of matters.

[85] I am not prepared to second-guess the Crown's decision not to prefer a direct indictment for Ms. Wynter. As Mr. Lesperance indicated, Ms. Wynter had a right to a preliminary hearing, a right that ought not be lightly taken away. In any event, as I explained, the decision not to prefer a direct indictment had no impact on the timelines in this case.

[86] Defence counsel challenge the Crown’s assertion of complexity. They say that the Crown is conflating a complicated prosecution with a complicated investigation. I do not agree with this argument. In Muhammed, one of the factors of complexity was the investigation involving three different jurisdictions and voluminous disclosure. Moreover, in one of the case management meetings before me, Mr. Moon described the s. 8 applications, which were alone scheduled to take five weeks, as “very complex”. They were complex, requiring significant evidence and argument and resulting in a 48-page, 232 paragraph decision. Complex and lengthy pre-trial applications are a strong indicator of a complex case.

[87] I find this case to be a particularly complex case. In the event I am mistaken in my calculation of the delay, such that the time to trial exceeds 30 months, I would find this case to be a complex case that would justify a time above the presumptive ceiling.

Step 5: Consider Transitional Exceptional Circumstances

[88] This factor does not apply to this case, and I need not take it into account.

Conclusion

[89] For these reasons, the defence 11(b) applications are dismissed.

Original Signed by Justice P.L. Hebner

Pamela L. Hebner Justice

Released: August 2, 2023

COURT FILE NO.: CR-21-5249 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – Shanice Wynter and Kahli Johnson-Phillips RULING UNDER S. 11(b) OF THE CHARTER Hebner J. Released: August 2, 2023