COURT FILE NO.: CR-21-50000240 DATE: 20230818 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Gilson Eliano Lima-Rodrigues Applicant – and – HIS MAJESTY THE KING Respondent

Counsel: Jag Virk, for the Applicant Cheryl Blondell, for the Crown

HEARD: May 19 and July 25, 2023

PINTO J.

Reasons for Decision s.11(b) Charter Application

Overview

[1] The applicant was arrested on January 15, 2020, for sexual assault contrary to section 271 of the Criminal Code.

[2] The applicant is alleged to have had sexual intercourse without consent with the complainant, a friend, after offering to give her a ride home, but instead driving her to a parking lot where the assault occurred.

[3] The applicant applies for a stay of the proceedings pursuant to sections 11(b) and 24(1) of the Charter on the grounds that there has been unreasonable delay in bringing this matter to trial.

[4] The information against the applicant was sworn on January 15, 2020. The anticipated end of trial is November 22, 2023. The anticipated total delay is 1,407 days, or 46 months and 7 days, which is considerably greater than the presumptive 30-month Jordan ceiling for criminal matters in the Superior Court: R. v. Jordan, 2016 SCC 27.

[5] The Crown acknowledges the total delay but relies on four different periods of purported Defence delay totalling 680 days to arrive at a net delay of 727 days or approximately 23.9 months, which is below the presumptive ceiling. The Crown also argues that a reduction of 70 days is warranted due to the exceptional circumstances associated with the Covid-19 pandemic and its impact on the court system. The Crown submits that the applicant has failed to rebut the presumption of unreasonable delay.

[6] The Defence argues that it is not responsible for any delay and that the state delay is primarily as a result of the late return of the applicant’s phone by the police who were seeking extraction information. The Defence argues that, even if the court finds that Defence delay drops the net delay below the presumptive threshold, the proceeding should still be dismissed due to unreasonable delay contrary to s. 11(b) of the Charter.

[7] For the reasons that follow, I find that the applicant’s s.11(b) Charter rights have been violated and the application is granted. Pursuant to s.24(1) of the Charter, there will be a stay of proceedings.

The Jordan framework

[8] In R. v. Coulter, 2016 ONCA 704, at paras. 34 to 41, the Court of Appeal summarized the steps to be taken in applying the Jordan framework:

• [34] Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial (Jordan, at para. 47).

• [35] Subtract defence delay from the total delay, which results in the “Net Delay” (Jordan, at para. 66).

• [36] Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).

• [37] If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

• [38] Subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”) for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).

• [39] If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan, at para. 80).

• [40] If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).

• [41] The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the “Transitional Cases”) (Jordan, para. 96).

[9] Where the total net delay falls below the 30-month presumptive ceiling, the onus is on the defence to demonstrate the delay is unreasonable. The defence must establish that: (i) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (ii) the case took markedly longer than it reasonably should have. In Jordan, the Supreme Court of Canada held that stays under the ceiling should only be granted in clear cases: at paras. 48 and 83.

[10] In determining if the applicant took meaningful, sustained steps to expedite the proceedings, the trial judge considers what the defence did, and what the defence could have done, to have the case heard more quickly. It is not enough that counsel place token comments on the record. The applicant is not entitled to remain passive in the face of delay, in the hopes of avoiding prosecution: Jordan, at paras. 84-86; R. v. Cody, 2017 SCC 31, 411 D.L.R. (4th) 619, at paras. 1 and 32-33; R. v. K.J.M., 2019 SCC 55, 381 C.C.C. (3d) 293, at paras. 83-84.

[11] The trial judge must also consider “[a]ction or non-action by the accused which is inconsistent with a desire for a timely trial”: Jordan, at para. 84, referring to R. v. Morin, [1992] 1 S.C.R. 771, at p. 802. As explained in Jordan, “[I]t falls on the defence to show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and the court”: Jordan, at para. 85.

[12] In determining if the time to trial markedly exceeds what is reasonable, the court considers a variety of factors, including the complexity of the case, local considerations, and whether the Crown took reasonable steps to expedite the proceedings: Jordan, at para. 87-90. The court is to take a bird’s-eye view and not get into the minutiae of the case: Jordan, at para. 91.

Brief Outline of Proceedings

[13] Some key developments in the proceeding are as follows:

• January 15, 2020 – the information against the applicant is sworn
• May 26, 2020 – the Defence received initial disclosure from the Crown
• June 8, 2020 – the first Crown Pre-Trial (CPT) takes place
• October 27, 2020 – the second CPT takes place
• December 24, 2020 – the third CPT takes place
• March 4, 2021 – the first Judicial Pre-Trial (JPT) takes place. The Defence receives further disclosure from the Crown, albeit the applicant’s phone remains in the possession of the police. The Crown confirms that it is proceeding by way of indictment
• March 25, 2021 – the Defence advises that the applicant elects to be tried via Judge and Jury in the Superior Court.
• May 10, 2021 – another JPT takes place, this time in the SCJ
• May 28, 2021 – following correspondence between counsel and the court, the date of September 19, 2022 is secured for the start of a 7-day jury trial
• June 2021 to September 2022 – sporadic correspondence between the parties including about disclosure
• September 16, 2022 – On the Defence’s request, Justice Goldstein adjourns the trial that was to start on September 19, 2022. He rules that an adjournment is appropriate as there is a possibility that the applicant’s phone, which is still with the police, could assist the Defence, and that it would be unfair to proceed to trial in the circumstances. The Crown did not take a position on the Defence’s adjournment request
• November 4, 2022 – a new Trial date is set for November 14, 2023 to run 7 days
• November 21, 2022 – The applicant’s phone is returned to him and the police did not obtain extraction records
• February 7, 2023 – A JPT takes place before Justice Himel
• May 19, 2023 – First day of hearing of s.11(b) application before me; the matter had to be adjourned as Defence counsel was unwell
• July 25, 2023 – Second day and completion of Charter s.11(b) application, decision reserved
• November 14, 2023 – anticipated first day of 7-day trial

Total Delay

[14] The total delay is 1,407 days or 46 months and 7 days, based on the elapse of time between January 15, 2020 and November 22, 2023.

Net Delay

[15] The Crown argues that the Defence is responsible for 680 days arising from four separate periods of delay as follows:

• June 9, 2020 – October 21, 2020 (134 days)
• November 19, 2020 – December 24, 2020 (35 days)
• May 3, 2022 to September 27, 2022 (147 days)
• November 23, 2022 to November 22, 2023 (364 days)

[16] The Crown calculates that the net delay is 727 days (1,407 minus 680), or approximately 23.9 months, which is below the presumptive Jordan ceiling.

[17] Further, the Crown argues that an additional 70 days should be deducted due to an exceptional event (Covid-19). This would bring the net delay to 657 days, or approximately 21.6 months, well below the presumptive ceiling.

[18] The Defence responds that it is not responsible for any delay and that, even if the net delay is below the 30-month Jordan ceiling, the application should be allowed as the applicant’s s.11(b) rights have been violated. The Defence notes that there have been at least 24 appearances in this proceeding, and that the Crown taking two years and 10 months to return the applicant’s phone constitutes egregious and unconstitutional delay. The Defence asserts that the Crown has never offered any cogent explanation for the delay other than that the police had technical difficulties “cracking” the applicant’s phone.

[19] The Defence also submits that the Crown has not met its evidentiary burden in respect of demonstrating a nexus between the COVID-19 pandemic and the delay in this case: R. v. L.L. 2023 ONCA 52, at paras. 21-23.

[20] Jordan holds that defence delay has two components: the first is delay waived, either explicitly or implicitly by the defence; the second component is delay caused solely or directly by the conduct of the defence. This includes tactics employed to delay the trial but does not include actions “legitimately taken to respond to the charges.” Defence delay also include situations where “the Court and the Crown are ready to proceed, but the defence is not.” The Supreme Court clarified that “Periods of time during which the Court and the Crown are unavailable, will not constitute defence delay, even if defence counsel is not available: Jordan, at paragraph 63 to 65 and R. v. Mallozzi, 2018 ONCA 312 at paragraph 3. Also see R. v. Hanan, 2023 SCC 12.

[21] Here, the parties agree that there is no delay caused by defence waiver. The dispute is whether there is any delay caused solely or directly by defence conduct.

First Period: June 9, 2020 – October 21, 2020 (134 days)

[22] The evidence indicates that the Defence reached out to Ms. Blondell, Crown counsel on June 1, 2020 to schedule a CPT to follow up on outstanding disclosure. There was a CPT on June 8, 2020.

[23] The Crown claims that, during the CPT on June 8, 2020, the Applicant stated that he was not willing to set a JPT until disclosure was complete. The Crown relies on its “Crown internal Scope notes” which were referred to in a footnote in the Crown’s factum, albeit the contents of the Scope notes were not disclosed in the factum. I directed Crown counsel to provide a copy of the Scope notes which were Crown counsel’s notes of her telephone call with Defence counsel on June 8, 2020. In the Scope notes, there is a notation stating, “[h]e is not willing to set a JPT until disclosure is complete.” Defence counsel disputes the accuracy of the Scope notes and maintains that, in fact, the Defence did not refuse to set a JPT, and it was always up to the Crown to suggest dates for the JPT. Rather, the Defence argues that the issue is not the purported delay arising from setting the JPT, but rather the delay associated with the Crown’s failure to disclose the phone extraction information and other disclosure.

[24] I see from the correspondence provided in the application record that, on October 21, 2020, Crown counsel wrote an email to Defence counsel stating, “[c]ontacting you for us to schedule a pre-trial on the above matter. Would you please provide dates that you are available in the next two weeks?” About 3 hours later, Defence counsel responded indicating his availability on three dates (October 27, 28 and 29, 2020).

[25] I find that the Crown has failed to demonstrate that the delay between June 9 and October 21 is delay that is attributable to the Defence. Crown counsel was unable to provide me with any explanation as to why, on October 21, 2020, she chose to write to Defence counsel to schedule a pre-trial. It was not as if Crown counsel was responding to correspondence from the Defence stating that the applicant had now relented and was prepared to schedule a JPT without receiving the sought-after disclosure. I find that, after the CPT on June 8, 2020, the parties were in a holding pattern primarily caused by the lack of further disclosure from the Crown. For reasons that are not clear, but which are probably related to the hope that disclosure would be forthcoming, the Crown decided to revisit the setting of dates for a JPT on October 21, 2020 and the Defence promptly responded with a set of dates. In circumstances, where there is a dispute between the parties as to whether the Defence was prepared to set a JPT without further disclosure, and where the Defence has promptly responded to a Crown email suggesting the scheduling of a JPT, I am not prepared to characterize the elapse of time as Defence delay.

Second Period: November 19, 2020 – December 24, 2020 (35 days)

[26] The Crown submits that, on November 19, 2020, the applicant had a scheduled court appearance in case management court. Neither the applicant nor his counsel showed up. Since the matter could not be spoken to, the matter was adjourned to December 24, 2020. The Crown argues that the delay of 35 days is wholly attributable to the Defence.

[27] The best evidence of what happened on November 19, 2020 is discernible from the transcript of the parties’ court appearance on December 24, 2020. On the latter occasion, Mr. Virk, counsel for the Defence, advised the court that he did not appear on November 19 because earlier on October 15, 2020 the Defence had filed an enhanced designation. Accordingly, there was no expectation for counsel to attend on November 19. Additionally, the Defence advised that it was still waiting for outstanding disclosure from the Crown. The Crown disagreed and submitted that the Defence had filed a regular, not enhanced, designation.

[28] In any event, on December 24, 2020, the Defence advised that it would refile an enhanced designation and the court adjourned the matter to January 28, 2021.

[29] While the parties are in dispute as to whether the Defence filed an enhanced designation, clearly the court proceeded as if no enhanced designation was filed. The Defence did not provide me with evidence that it did, in fact, file an enhanced designation. What should have happened on November 19 ended up happening on December 24, 2020. I fail to see how the Crown should be held responsible for this delay.

[30] On the December 24, 2020 attendance, Defence counsel described the outstanding disclosure as “surveillance videos” but, at the time, the Defence was also waiting for the extraction information from the applicant’s phone that was still in the possession of the police. My understanding is that, had the enhanced designation been filed on October 15, 2020, it would have provided the parties with a standard 12-week adjournment during which Crown and defence counsel were expected to take all the necessary steps toward completion of the intake phase of the case. I base this on reviewing the Practice Direction – Enhanced Counsel in the OCJ issued under Rule 4.5 and Rule 5 of the Criminal Rules of the OCJ, see https://www.ontariocourts.ca/ocj/notices/alternate-form-appearance/. The 12 weeks from October 15, 2020 would have ended on January 7, 2021. Instead, because the court considered that a regular, not enhanced counsel designation was filed, it resulted in the next court appearance on November 19, 2020 and when neither Defence counsel nor the applicant attended, a subsequent appearance on December 24, 2020.

[31] The Defence argues that it cannot be Defence delay since the attendance on December 24, 2020 happened earlier than January 7, 2021. However, I find that the fact that less delay occurred does not mean that the Crown remains responsible for the delay. On balance, the evidence points to the Defence being responsible for this 35-day delay.

Third Period: May 3, 2022 to September 27, 2022 (147 days)

[32] In seeking to characterize this third period of 147 days as Defence delay, the Crown notes that, on May 27, 2021, the Administrative Crown emailed Defence counsel to set a trial date. The Administrative Crown indicated that the earliest date the court was available for a 7-day jury trial was April 25, 2022, which would end on May 2, 2022. The Crown and court were available on those dates but the applicant instead selected trial dates beginning September 19, 2022 and ending on September 27, 2022. The Crown argues that the delay between May 3, 2022 and September 27, 2022 should be properly attributable to the Defence.

[33] The Crown relies on a passage from R. v. Venditello, 2017 ONSC 2358 at para. 17 where Justice Dunphy stated:

[17] There is no record before me of when the first available preliminary inquiry date actually was. It might be salutary to place on the record at each appearance in the post-Jordan world the first available date offered to the defence for a step in the proceedings even if defence counsel is unable to accept it due to conflicting commitments. If Jordan requires the Crown and the administration of justice generally to be made accountable for delay based on a mechanical formula, this cannot logically extend to that portion of delay that is solely attributable to accommodating the calendar of defence counsel. (emphasis added)

[34] In responding to the Crown’s argument, the Defence made an important clarification about what transpired with trial scheduling. The Defence noted that, on the “Trial Confirmation Form” dated May 28, 2021, the Trial Coordinator had correctly noted that, while the earliest date that the Crown and the court were available for trial was April 25, 2022, the earliest date that the Defence was available was even earlier, namely July 15, 2021. However, as the Defence was forced to choose a date when it was available after April 25, 2022, the next available date was September 19, 2022. The Defence submits that, in these circumstances and given the Crown’s overarching failure to disclose the phone extraction records in a timely manner, it should not be held responsible for this third period of delay.

[35] In oral argument, the Crown acknowledged that if I find that the trial could not, in any event, have proceeded due to the Crown’s failure to disclose the extraction records from the applicant’s phone or to return the applicant’s phone, then its argument regarding Defence delay for the 147 days cannot succeed.

[36] I find that the answer to the question of who is responsible for this delay lies in recognizing that the issue is not whether there was a failure or delay to disclose, but rather whether there is a causal connection between the delay in disclosure and the delay in proceeding.

[37] In R. v. Allison, 2022 ONCA 329, the Court of Appeal was dealing with an appeal from a conviction where the accused argued that the application judge should not have found any defence delay before November 24, 2016, because there was extensive disclosure missing until that point. The appeal court disagreed with this argument, holding that:

[46] In R. v. Kovacs-Tatar (2004), 73 O.R. (3d) 161, at para. 47, this court stated that “the Crown is not obliged to disclose every last bit of evidence before a trial date is set”. The application judge relied on this proposition to infer that incomplete disclosure on its own does not preclude the parties and the court from moving forward with the proceedings and scheduling the trial. Instead, there must be some causal connection between the incomplete disclosure and the delay.

[38] Here, I find that Justice Goldstein’s decision on September 16, 2022 to adjourn the first set of trial dates due to the Crown’s failure, as of that point, to provide the phone extraction records, or to return the applicant’s phone, represents a judicial finding that there was a causal connection between the incomplete disclosure and the delay. Accordingly, even though I am dealing with the earlier timeframe of May 3 to September 27, 2022, I cannot find the Defence responsible for this delay. In this circumstance, even though the Crown and the court were available to start a trial as early as April 25, 2022 and the Defence was only available later, the trial could not have commenced due to the Crown’s failure at that point to produce the phone extraction records or to return the applicant’s phone in a timely manner.

[39] I decline to characterize the third period of 147 days as Defence delay.

Fourth Period: November 23, 2022 to November 22, 2023 (364 days)

[40] The Crown argues that, after Justice Goldstein adjourned the first set of trial dates ending on November 22, 2022, it continued to provide numerous alternative trial dates to the Defence, but the Defence rejected a number of dates resulting in the status quo where the trial is set to commence on November 14, 2023 and end on November 22, 2023. The Crown argues that the Defence is responsible for the almost one-year delay.

[41] The Defence responds that, notwithstanding Justice Goldstein’s decision on September 16, 2022 to adjourn the trial, the police did not return the applicant’s cellphone until November 21, 2022. If, as a result of the Crown’s delay, the parties and the court are only available to proceed to trial in November 2023, the delay is the responsibility of the Crown, not the defence.

[42] In reply to the Defence’s argument, the Crown argues, in the alternative, that if the court is not inclined to hold the Defence responsible for the entire 364 period of delay, the Court should at least find the Defence responsible for the delay between February 7, 2023 and November 22, 2023, a period of 296 days.

[43] The Crown points to an Amended Trial Confirmation Form dated November 3, 2022 which indicates that whereas the Crown and court are available to commence a trial starting January 30, 2023, the Defence’s first available date is February 27, 2023. The Crown indicates that, subsequently, in an email from Defence counsel dated January 17, 2023, the Defence withdrew its availability from February to June 2023 resulting in the currently scheduled trial date of November 14, 2023.

[44] I note that the police returned the applicant’s phone on November 21, 2022. I find that the Defence was entitled to some reasonable period of preparation time after the return of the phone but that the delay between February 7 and November 22, 2023 is arguably attributable to the Defence.

[45] I say “arguably” because the issue of delay caused by trial scheduling is not as simple as it might first appear: R. v. Holt, 2023 ONSC 412 at para. 16, per Woollcombe J.

[46] In R. v. Bhagat, an unpublished decision of the OCJ dated May 17, 2023, Kastner J. cited Justice Woollcombe’s comments in Holt and explained that:

There is differing jurisprudence relating to the issue of whether all of the delay must be characterized as defence delay between a first date offered for a hearing, which the defence is unavailable, and the date in which the hearing is ultimately scheduled for. A categorical approach has been rejected by our Court of Appeal.

See R. v. Albinowski, 2018 ONCA 1084 at paragraph 46 and R. v. Hanan at paragraph, 2022 ONCA 229 at paragraph 56.

Instead Justice Van Rensburg held in Hanan, at paragraph 56, that:

The Court must take a contextual approach that considers the circumstances relevant to whether, in respect of a particular period of time, the defence refusal of a date is the "sole or direct" cause of the resulting delay.

Therefore, as Justice Kasirer stated in R. v. Boulanger, 2022 SCC 2 at paragraphs 8 and 10:

In some cases, the circumstances may justify apportioning responsibility for the delay among these participants, rather than attributing the entire delay to the defence.

[47] I take from the above jurisprudence that I am not bound to find that, just because the Defence was not available for trial when the Crown and court were, any subsequent delay is solely or directly the responsibility of the Defence. However, as explained below, for the sake of argument, I will proceed by characterizing the entire 296 day period as Defence delay and see how this impacts the calculation of net delay.

Calculation of Net Delay

[48] I have rejected the Crown’s assertion that the delay associated with the first and third periods should be attributable to the Defence. However, I have accepted that the Defence is responsible for 35 days of delay associated with the second period, and 296 days of delay arising from the fourth period, namely February 7 to November 22, 2023.

[49] The resulting net delay is 1,076 days (i.e. 1407 – 35 - 296) or roughly 35.4 months, well above the Jordan 30-month presumptive ceiling in the Superior Court.

[50] Since the net delay exceeds the presumptive ceiling, it is presumptively unreasonable.

[51] To rebut the presumption, the Crown must establish the presence of exceptional circumstances.

Exceptional Circumstances

[52] In the present case, the Crown submits that the 70-day period from March 19, 2020 to May 28, 2020 should be deducted because of exceptional circumstances associated with the impact on the court system due to the global Covid-19 pandemic. The Crown claims that, due to the COVID-19 court closure, this matter was not able to be spoken to and it was remanded to May 28, 2020.

[53] The Crown argues that, though further case management court appearances of May 28, August 6 and October 15, 2020 were also remanded, and the matter was not able to be spoken to, the Crown is not asking for these further time periods to be deducted. The Crown submits that, as of June 1, 2020, the parties were able to move the matter forward in some small way regardless of the court closure. A CPT was held on June 8, 2020.

[54] The Defence submits that while it is uncontested that the Covid-19 pandemic is properly characterized as an “exceptional circumstance”, the analysis does not stop there. Once “exceptional circumstances” have been identified, and if the “exceptional circumstance” is to justify a delay otherwise above the presumptive ceiling, then two further inquiries are required. First, the Crown must establish a causal connection between the “exceptional circumstance” and the delay. This is a case-specific inquiry. Second, the Crown must establish that it, and the justice system, more generally, has met its duty to mitigate the delay caused by the “exceptional circumstance.” The Defence relies on a number of cases: R. v. Greenridge, 2021 ONCJ 57, where Monahan J. emphasized the need for a clear and causal connection between delays and the Covid-19 pandemic; R. v. Schardt, 2021 ONSC 3143, where Nieckarz J. adopted Monahan J.’s analysis; and R. v. Khattra, 2020 ONSC 7894, where Woollcombe J. described a delay that lacked the necessary causal connection to the Covid-19 pandemic.

[55] Here, although I find that the Crown has not provided an extensive explanation linking the impact of the COVID-19 pandemic to the 70-day delay, I am satisfied that, due to the case being remanded to the later May 28, 2020 date, this delay should be deducted from the net delay. I find this for two reasons. First, the 70 days here falls within the initial period of the pandemic where the Ontario Court of Justice adjourned all out-of-custody matters until May 29, 2020, among other initiatives pursuant to the OCJ’s COVID-19: Notice to Counsel and the Public dated March 11, 2020. And second, the 70-day delay is not falling in a time period when the courts had, in fact, resumed full operations. I also note the recent decision of the Court of Appeal in R. v. Agpoon, 2023 ONCA 449, which encourages the trial court to look more holistically at the systemic disruption to the operations of courts caused by the pandemic as discrete exceptional circumstances for Jordan purposes.

[56] The effect of my accepting the Crown’s submission regarding exceptional circumstances associated with the impact on the court due to COVID-19, is a remaining delay of 1,006 days (i.e. 1,076 - 70 days) equivalent to 33 months.

[57] Since this remaining delay is still above the 30-month presumptive ceiling, the proceeding must be stayed. The Crown does not suggest that further delay was justified due to the complexity of the case.

Alternative Scenarios

[58] In the alternative, if I am wrong to deny the Crown’s argument about the first period of delay, but I still hold that the second period of delay was the Defence’s responsibility and that Covid-19 presented exceptional circumstances to the Crown, it would result in a remaining delay of 872 days (i.e. 1,006 – 134 days), equivalent to 28.6 months, which is one month and 12 days below the 30-month presumptive ceiling.

[59] Looking at another in the alternative scenario, if I attribute the first period of delay to the Defence but find that the Crown failed to make the evidentiary connection between the impact of the pandemic and the delay in this case per L.L., it would result in a remaining delay of 942 days (872 + 70 days), equivalent to roughly 31 months, which is still above the presumptive ceiling.

[60] Of course, if I am looking at alternative scenarios, I am also obliged to look at scenarios that favour the Defence, so I must return to the question of whether the entire 296-day delay between February 7 and September 22, 2023 is entirely attributable to the Defence. If, for the sake of argument, I apportion a 50/50 responsibility to the Crown and Defence for the delay after February 7, 2023, this would result in a revised Defence delay of 148 days in the fourth period. Then, if I return to my main finding – that the Defence is only responsible for the second period of delay (35 days) and grant a further 70 day reduction in respect of the pandemic, the total reduction would be 105 days (i.e. 35 + 70 days). The remaining delay, under this alternative scenario, would be 1,154 days (i.e. 1407 (total delay) – 35 (second period of delay) -148 (revised fourth period) – 70 (exceptional circumstance)), equivalent to 37.9 months.

[61] Of course, I can envisage other “in the alternative scenarios,” but the point is that the state delay was very significant here. I note that when the police finally returned the applicant’s phone on November 21, 2022, it was 34 months after the information was laid, already 4 months after the 30-month Jordan presumptive ceiling.

[62] My main finding is that the remaining delay in this case is above the 30-month presumptive ceiling, however, if I am wrong and, by some characterization of Defence delay, the remaining delay is below the presumptive ceiling, taking a bird’s eye view of the proceedings, I would have found that: (i) The defence took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (ii) the case took markedly longer than it reasonably should have.

Decision

[63] I find that the main cause of delay in this case is that the Crown / Police did not provide the cellphone extraction report in a timely manner which resulted in the initial trial dates in September 2022 being adjourned. Then, the applicant’s cell phone was returned to him on November 21, 2022, which is 34 months after the information was laid. For disclosure purposes, the Crown and the investigating police department are deemed one and the same: R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at para. 14. The Crown provided no explanation for the extraordinary delay other than technical difficulty in “cracking” the applicant’s phone.

[64] The cell phone extraction report or the return of the cell phone was important in order for the applicant to make full answer and defence. I agree with the Defence position that this was not a complex case and, while there were some periods of Defence unavailability, those largely coincided with court and Crown unavailability. I find that the Defence has moved this case along in a reasonable manner.

[65] For all the above reasons, I find that the applicant’s s.11(b) Charter rights have been violated and the application is granted. Pursuant to s.24(1) of the Charter, there will be a stay of proceedings.

Pinto J.

Released: August 18, 2023