R. v. H., 2023 ONSC 5442

Court File and Parties

Court File No.: CR-23-30000038-0000 Date: 2023-09-27 Ontario Superior Court of Justice

Between: His Majesty The King – and – L. H. and D. P. Applicants

Counsel: Joshua Chan and Laura Petryshen, for the respondent Crown Megan Savard, for the applicant L.H. Doug Gosbee, for the applicant D. P.

Heard: September 22, 2023

Publication Ban: There is a publication ban under s.468.5 of the Criminal Code in relation to any information that could identify the applicants’ children.

Before: G. Roberts, J.

1L.H. and D.P. stand charged with manslaughter, criminal negligence causing death, and failing to provide the necessaries of life, in relation to the death of their 14-month old son K. Tragically, K. died on May 13, 2020, not long after ingesting a mixture of fentanyl, morphine, and cocaine while in the care of his parents L.H. and D.P.

2The essential chronology is set out by both applicants and the respondent Crown. It is not the subject of dispute. I will not repeat it beyond noting some essential milestones:

• L.H. and D.P. were charged on February 4, 2021.
• Disclosure came in 11 waves, and was “voluminous”, but was largely complete by the end of June 2021, and a JPT was held on July 22, 2021. The applicants note that they were ready to schedule preliminary inquiry dates by July 26, 2021.
• A trial scheduling conference was held on August 17, 2021, and dates were set for the preliminary inquiry for three weeks beginning September 21, 2022. While one week was available in January 2022, it is common ground that this would not have changed the end date for a three-week preliminary inquiry.
• The evidence phase of the preliminary inquiry ended on October 5, 2021, within the allotted court time. Counsel made oral submissions on committal on November 2, 2021. The preliminary inquiry judge released written reasons for committal on November 30, 2022.
• An exit JPT was held, and the Crown took some time to consider its position before the applicants were formally committed for trial. The applicants were remanded to Superior Court on December 23, 2022.
• First appearance in Superior Court on January 10, 2023.
• A JPT was set in Superior Court for February 21, 2023. This date was cancelled due to the unavailability of counsel for L.H., with an explicit 11(b) waiver to the next date. Counsel for D.P. took “no issue” with adjourning the JPT to a date in March or April, 2023.
• The JPT was re-scheduled for April 28, 2023. This date was cancelled by the Court, due to the unavailability of the assigned judge, and was re-scheduled for, and held on, May 8, 2023.
• Several court appearances were required in order to schedule the trial. The Court expressed concern about the approaching Jordan deadline, and defence counsel indicated that they would be bringing an application for a stay for unreasonable delay. On July 19, 2023, over the objection of counsel for D.P., who was not available for all the dates, a six-week trial was scheduled to begin on November 6, 2023, which was the earliest date available to the Court. Defence counsel for D.P. indicated he planned to bring an adjournment application, but he was able to resolve his scheduling conflicts and now indicates he is content with the scheduled start date. Counsel for L.H. always indicated that she would make this early date work. The Crown was the first to confirm the early trial dates offered, and indicated it was giving the case priority and would make itself available on whatever dates the Court offered.

3If the trial ends when expected, on December 15, 2023, it is common ground that 1045 days or 34 months and 12 days will have elapsed. Counsel for L.H. acknowledges that 67 days must be subtracted for defence delay (due to the unavailability of counsel for the first JPT in Superior Court, requiring it to be re-scheduled as noted), leaving 978 days, or 32 months and 6 days, 2 months and 6 days over the 30-month time allowed in Jordan. Counsel for D.P. argues that this 67 days should not be subtracted in relation to D.P., leaving his matter 4 months and 12 days over the Jordan limit.

4The defence complaint is simple. This case took too long in Provincial Court. Defence counsel acknowledge that the case moved with admirable speed in Superior Court, thanks to significant effort by all parties, prompted by the intervention of experienced judges. In contrast, no steps were taken in Provincial Court to try to address the speed of the litigation. The defence assert that the Crown has fallen short of what is required to consider Covid-19 as an exceptional circumstance in this case because it has failed to show a causal link between the Covid-19 pandemic and the delay, or that it took reasonable steps to mitigate the delay.

5Defence counsel rely on R. v. LL, 2023 ONCA 52, where the Court refused to admit fresh evidence from the Crown about the impact of the pandemic on trial scheduling, and concluded that there was no basis to interfere with the trial judge’s conclusion that “the pandemic had no impact on the scheduling of this case.” [emphasis in original]. Defence counsel also rely on R. v. Cohen, unreported, November 28, 2022, where the trial judge faulted the Crown and the courts for failing to mitigate delay. A Crown appeal to this Court was dismissed in an endorsement on June 6, 2023.

6The Crown takes the position that the pandemic caused significant delay in Provincial Court, which must be deducted as an exceptional circumstance, as must two periods of delay in Superior Court:

• the 22-day wait between the time the applicants indicated that they were ready to schedule a preliminary inquiry, and the necessary scheduling appointment with the trial coordinator;
• the longer than usual systemic delay in getting dates for the preliminary inquiry, which the Crown puts at 90 days at least, due to the backlog caused by the pandemic;
• a joint prosecution is manifestly in the interests of justice, thus the adjournment request by one defence counsel must count against the defence generally;
• the further delay due to the cancellation of the rescheduled JPT because of the unavailability of the assigned judge could not be anticipated or mitigated by the Crown.

Can part of the systemic delay in scheduling the preliminary inquiry be attributed to the pandemic?

7The applicants urge me to take a strict approach to the test for exceptional circumstances set out in R. v. Jordan, 2016 SCC 17, arguing that the direction in R. v. Agpoon, 2023 ONCA 449 for how to consider pandemic delay does not apply to the circumstances of this case. Specifically, the causal link between the pandemic and delay presumed in Agpoon cannot be presumed in this case, because this case came into the system months after the pandemic began. The applicants urge me to follow LL instead of Agpoon, because LL relates to Scarborough provincial court. I disagree. The Court of Appeal in LL explicitly limit their conclusion to the facts of the case. In contrast, Agpoon seeks to provide direction to courts regarding how to treat pandemic delay. In addition, in R. v. Donnelly, 2023 ONCA 243 at para.23 the Court of Appeal found that the “backlogs caused by the Covid-19 closures were notorious, and represent…exactly the kind of exceptional circumstance envisaged in R. v. Jordan.” Finally, the applicants’ approach ignores the essential message of Jordan that courts must take a simplified, holistic and prospective approach to s.11(b) that considers the entire period of delay in favour of a retrospective, microscopic analysis of elapsed time, and portions of delay, such as the provincial court delay in this case.

8In Agpoon the trial judge accepted that the pandemic was an exceptional circumstance causing delay, but found that the Crown had failed to discharge its onus of showing that it took reasonable steps to mitigate the delay. Agpoon and his co-accused Flemmings were scheduled to have a preliminary inquiry between May 25 to June 12, 2020. The province-wide suspension of in-person hearings, beginning March 17, 2020, and continuing until July 6, 2020, when courts began to re-open with significantly limited capacity, prevented the preliminary inquiry from going ahead. It was eventually re-scheduled for May 25 to June 14, 2021, but shortly before it began the Crown preferred a direct indictment. The case moved to Superior Court on May 26, 2021. The trial judge deducted only 3 months for pandemic delay because this was the length of time the same Crown office took to prefer a direct indictment in a different, unrelated case. The trial judge concluded:

[56] [T]here may well have been valid, legitimate reasons for the differences in the two cases. The pandemic may have played a role. However, there is a gap in the Crown’s evidence that ought to have responded to this question….

[58] There are several available inferences from the 12-month delay in the Crown preferring the indictment. This delay might be due to the pandemic, but it might also be due to carelessness, lack of resources, or the setting of priorities. It is unclear which inference should be drawn. On this record, I cannot rule out that mitigation was not carried out when it may have been reasonably available. Jordan provides that the onus is on the Crown to justify cases which exceed the ceiling. The Crown must show why it did not reasonably mitigate the impact of the event that led to the delay, even though the initiating event was not foreseeable.

9A unanimous Court of Appeal allowed the Crown appeal and set aside the stay of proceedings on the basis that the trial judge did not adequately account for pandemic delay, specifically noting that she should have deducted the entirety of the jury black-out periods in Superior Court, which would have brought the case under the Jordan threshold.

10The Court went on to provide guidance on how the pandemic should be treated in the Jordan analysis. While the Crown and the justice system must prioritize cases when dealing with the backlog caused by the pandemic, trial judges should not “micro-count” or “parse” but instead take a bird’s eye view of the case. In addition, trial judges must adapt the direction from Jordan to “employ the knowledge they have of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances” when assessing pandemic related delay.

11The Court recognized that the pandemic caused five distinct “disruptions to the operation of the criminal courts in Ontario”, which they listed from the “broadest to the more particular” as follows:

(a) Province-wide court closures (The Court of Appeal listed these in an Appendix to the reasons.)

(b) Jury blackout periods (These periods, and whether they were regional or specific, were listed in the Appendix.)

(c) Local court closures and restrictions (Additional restrictions imposed by local courts, such as a 10-person capacity limit in courtrooms for non-jury matters in Toronto beginning December 14, 2020.)

(d) Local availability of court facilities (Limited capacity for in-person hearings resulting from attempts to adhere to public health measures including physical distancing and droplet barriers. The Court of Appeal noted as an example “when courts first opened on July 6, 2020, the Superior Court had only 56 courtrooms open across the province.”)

(e) Priorities in addressing the backlog (The backlog of cases created by closures and “continuing restrictions limiting the number of cases that could be heard” forced courts to triage and prioritize cases, with most regions prioritizing “in-custody criminal matters over out-of-custody matters, and continuing trials over new trials.”)

12The Court directed that delay “attributable” to any of these pandemic related disruptions to the operation of the criminal courts are to be treated as discrete exceptional circumstances:

[33] Going forward, where access to courts has been limited in these ways, the attributable delays are to be treated by the reviewing court as discrete exceptional circumstances in assessing delay for Jordan purposes. Although the focus of this decision has been on jury trials, similar principles apply to the availability of judge-alone trials in the Superior Court of Justice, and, with necessary modifications, to the Ontario Court of Justice.

[34] This approach is subject to the right of the defence to argue that the delay is unacceptable nonetheless as set out in Jordan. That said, it is not open to the defence to second-guess the policy decisions made that limited access to courts in the ways set out above on a case-by-case basis.

13The issue in this case is whether a portion of the systemic delay is properly “attributable” to the pandemic, specifically the back-log caused by rescheduling cases that could not proceed during closures, among other challenges. Defence counsel assert that in order for the delay to fall within the Jordan category of exceptional circumstances, the Crown must lead case-specific evidence showing the delay was caused by the pandemic, and could not be reasonably avoided or mitigated. I do not agree that case-specific evidence is required in the context of pandemic related delay that falls within any of the categories identified by the Court of Appeal in Agpoon.

14First, in Agpoon the Court found that the trial judge erred in holding the Crown to a strict burden of proving it could not have done more to mitigate the delay. Specifically, the trial judge erred by failing to consider “the public record of disruptions to the operation of criminal courts in Ontario that the pandemic caused” (para.27; the court took judicial notice of the relevant public notices and attached an appendix listing “the most significant restrictions”). While the relevant periods in Agpoon related to “jury blackout periods”, the Court of Appeal applies the same approach of relying on general information, as opposed to insisting on the Crown proving case-specific mitigation, to all the categories of delay the Court lists as being caused by the pandemic, which include “local court closures and restrictions”, and “priorities in addressing the backlog”. In addition, as noted above, in Donnelly, the Court of Appeal explicitly found backlogs caused by pandemic court closures to be an exceptional circumstance.

15Second, the Court of Appeal’s approach of relying on general information about disruptions caused by the pandemic makes sense in the context of pandemic-related s.11(b) applications. It is consistent with the direction of the Supreme Court of Canada to keep s.11(b) applications focused and as simple as possible, and rely on the expertise of local judges, who know their jurisdiction (emphasized by the Court in Agpoon at paras.21-26). It also makes sense given the nature of pandemic delay, particularly backlog delay, which is obvious at a general level but complicated and difficult to establish at the level of a specific case (see R. v. GS, 2022 ONCJ 427 at para.52, and Palma Paciocco, Trial Delay Caused by Discrete Systemwide Events: The Post-Jordan Era Meets the Age of COVID-19, Osgoode Hall Law Journal 57.3 (2021) 853, at 839). Requiring the Crown to prove the precise effect of the pandemic in every case sets an impossible burden, and complicates delay applications, exacerbating the load on judges and the backlog problem.

16Third, I believe it is open to me to accept the comments of experienced Scarborough judges, including the local administrative judge (LAJ), about disruptions and changes caused by the pandemic, and their effect on systemic delay in the jurisdiction. Indeed, I believe I must do so in order to take the recommended “birds-eye” approach to delay, and properly consider the effect of the pandemic on the time required to get trial or preliminary inquiry dates in Scarborough.

17In R. v. Ajgirevitch, 2022 ONCJ 237 (Scarborough), Justice Wright accepted evidence from the trial coordinator’s office that trials in the Scarborough courthouse were typically set within 9 months, but the pandemic caused that number to grow to 12 months, for an out of custody trial, due to rescheduling all the hearings adjourned from the 2020 lockdown; rescheduling the hearings adjourned from a second lockdown in April and May of 2021; the accrual of new matters; priority in re-scheduling given to in custody and on-going matters; and the complications and limitations imposed by social distancing requirements.

18In R. v. Balasubramaniam, 2023 ONCJ 218 (Ont.C.J.), Justice Downes, the LAJ in Scarborough, explained his ability to comment on systemic delay caused by the pandemic backlog as follows:

As the local administrative judge for this courthouse, one of my primary obligations is to be aware of and involved in the scheduling of cases. I am in constant communication with the trial coordinators and work closely with representatives of the Crown, the defence bar, the court services division and many others to monitor and try to adapt and improve the processes by which cases are managed in this courthouse. The observations I have made about how cases are handled arrives in part from that role. While my role may vest me with local knowledge that exceeds that of other judges in this courthouse, in my respectful view it nevertheless falls squarely into the type of “knowledge of their jurisdiction” referred to in Jordan, which helps to inform my assessment of the reasonable time requirements of this case.

19The Scarborough LAJ, and other experienced judges in Scarborough, have commented on the changes wrought by the pandemic, and the steps taken by the Crown and the Court to try and mitigate the delay caused by the pandemic. Some of the changes caused by the pandemic include:

• Serious and endemic staff shortages (see Balasubramaniam, at para.10; R. v. S.M., (August 9, 2023) unreported (Ont.Ct.J., Scarborough) at para. 28).
• Changes in how trial and preliminary inquiry dates are scheduled. Counsel can no longer walk down the hall from the JPT to the trial coordinators office and schedule a date. Instead, they must schedule a meeting with the trial coordinator. This may not be immediate as the trial coordinators are under significant pressure, due to pandemic-related staff shortages, and pandemic-related scheduling demands, such as the need to re-schedule cases adjourned due to court closures, limited availability of courts, increased demand for JPTs (R. v. Hamidi, 2022 unreported January 7, 2022 (Scarborough Ont.Ct.J.), per Chapman J.; Ajgirevitch, per Wright J.; Balasubramaniam, per Scarborough LAJ at para.9);
• An increase in the systemic delay in setting dates for trial or preliminary inquiry due to the back log of cases caused by pandemic court closures and restrictions (see cases set out below regarding the amount of additional systemic delay).

20Some of the steps taken in Scarborough to mitigate the delay caused by the pandemic include:

• Hiring an additional trial coordinator, and stream-lining the process for booking scheduling meetings to reduce delay between the request for the meeting and the meeting (R. v. Ajgirevitch, para.49; R. v. Balasubramaniam, para.11; R. v. SM, para.28);
• Hiring more Crown prosecutors (R. v. Balasubramaniam, para.13; R. v. SM, para.28);
• Creating teams of senior Assistant Crown Attorney’s to conduct a “wholesale review” of its cases, and resolving as many as possible, often for extraordinarily generous dispositions (R. v. Balasubramaniam, para.12; R. v. SM, para.28; this is also my experience in Superior Court in Toronto);
• Increasing the amount of double and triple bookings to maximize the use of available trial time in the event cases collapse (R. v. Ajgirevitch, para.15; R. v. SM, para.28).

21The LAJ and other experienced judges in Scarborough have attempted to quantify the increase in systemic delay in setting dates as a result of the pandemic backlog as follows (these numbers are in addition to the increased time to obtain a scheduling conference with the trial coordinator’s office):

• Justice Chapman, writing about a case where charges were laid on January 29, 2020, put the additional delay caused by the backlog at about 60 days (Hamidi, pp8-9);
• Justice Wright, writing about a case where charges were laid on November 9, 2020, relying on evidence including an affidavit from the trial coordinator’s office, put the number at 3 months (R. v. Ajgirevitch, paras.13-14, 58);
• Justice Wright, writing about a case where charges were laid on January 21, 2021, put the number at 90 days (R. v. G.S.);
• Justice Downes, the LAJ, writing about a case where charges were laid on June 2021, put the additional systemic delay caused by the backlog at “at least 60 days…it should likely be more” (Balasubramaniam, para.18);
• Justice Nathanson, writing about a case where charges were laid on November 21, 2021, put the additional delay caused by the backlog at two months, agreeing with Wright J.’s finding that prior to the pandemic the usual delay in obtaining a trial date in Scarborough was 9 months but in SM it was 11 months (SM, para.29).

22Counsel for L.H. cautions me against placing weight on the anecdotal experiences of trial judges, pointing in particular to statistics that show the “average number of days to disposition” for homicides to be essentially unchanged by the pandemic. I disagree. First, Jordan requires trial judges to rely on their experience in the jurisdiction when assessing delay. Agpoon reiterates this, explicitly noting this direction should be applied to the effect of the pandemic. I am not in a position to do this myself in the context of the Scarborough court house, but I can pay careful attention to the experience of thoughtful judges in the jurisdiction, especially when it relates to a very similar time frame as the case before me. Second, I do not know what to make of the statistics provided by the defence. It is not clear whether disposition refers to final judicial determination, or also includes committal for trial in Superior Court, and remands to Superior Court for guilty pleas. Even if it refers to final determinations only, it includes very dissimilar cases, such as early guilty please. Further, these statistics also show that the “trial rate” (defined as “the number of cases disposed at trial with a trial as a percent of all cases disposed either before and at trial”) fell markedly in the pandemic: it was 76.9 % in 2019, 60.0 % in 2020, 56.0% in 2021, and 73.3 % in 2022.

23There is no question that the pandemic cannot become a blanket excuse, shielding unacceptable complacency about delay, but that is not what happened here. The proactive steps that the Crown has taken to try and address and manage its cases, noted above, is the antithesis of complacency. I am satisfied that this case took a long time getting through Scarborough Provincial Court in significant part because at the relevant time that Court was struggling with its backlog. As the Scarborough LAJ noted about the very time period at issue in this case:

[A]nyone familiar with and involved in the operation of the justice system, and in particular the day-to-day functioning of the provincial trial courts, knows that the ripple effects of the pandemic very much remain. The cancellation and rescheduling of thousands of trials during the peak of the pandemic and its impact on staffing and resources continues to place an unprecedented strain on the ability of provincial trial courts in particular to “keep up with” the scheduling of cases already in the system and the new ones that continue to enter it.

24In sum, not only do I believe it is open to me to accept the experience of Scarborough judges about the effect of the pandemic back-log on date-setting in their court, but I believe I must do so in order to follow the direction of Agpoon about how to properly apply the Jordan framework when considering pandemic delay. I find the 22 day period of time between when counsel were ready to schedule preliminary inquiry dates, and the scheduling meeting, to be pandemic-related delay. It reflects pandemic backlog, but it is different from the backlog in getting trial time, thus I treat is separately. It is not double-counting. I expect it to disappear as the courts work though the backlog, and improve on scheduling in the era of zoom. I also find that the pandemic backlog added at least 60 days to the systemic delay in scheduling a date for the preliminary inquiry. This is likely an underestimate, but I am mindful that the burden is on the Crown, and this is the number the LAJ notes in Balasubramaniam, which tracks the time period of this case fairly closely. Again, I expect this to disappear as the Scarborough court works through the backlog.

Can the defence delay caused by the adjournment of the first date scheduled for a JPT in Superior Court be deducted with respect to both accused?

25I agree with counsel for D.P. that, unlike counsel for L.H., he did not waive the delay caused by the unavailability of counsel for L.H. at the first JPT scheduled in Superior Court. Nonetheless, in the circumstances of the case, I find the delay to be a discrete exceptional circumstance, occasioned by the joint trial. The joint trial in this case is being undertaken in the interests of justice. The accused were the parents of the deceased. They were both present when he was alleged to ingest a fatal dose of illegal street drugs, and both were under a duty of care in relation to his well-being. The Crown theory of liability is the same against both, and they have been conducting a cooperative defence, spelling each other off at the preliminary inquiry, and plan to do the same at the trial. Severance would pose a serious risk of inconsistent verdicts and miscarriage of justice. The delay resulting from the unavailability of one defence counsel flows from the joint trial, it was unforeseen, and could not have been reasonably avoided by the Crown. It follows that it must be deducted with respect to both accused: R. v. Tran, 2023 ONCA 532 at paras.33, 39-40.

Is the further delay caused by the unavailability of the judge to conduct the re-scheduled JPT a discrete exceptional circumstance?

26The record indicates only that the rescheduled JPT had to be cancelled and rescheduled again because the JPT judge (Justice Forestell) was unavailable. While I do not know the specific reason Justice Forestell was unavailable, I do know, in general, that our court is struggling to work through the backlog of cases caused by the pandemic, and no one is working harder to that end that Justice Forestell, who is invariably juggling an enormous workload. Given the circumstances faced by our court, the resulting delay cannot be dismissed as “chronic institutional delay” flowing from inadequate resources (see para.81 of Jordan). At the same time, however, I do not believe I have enough information about the reason for the delay to consider it as a discrete exceptional circumstance. Fortunately, the Court and counsel were able to re-schedule a JPT very quickly before a different experienced judge.

27With the deductions noted (22 days to get a scheduling meeting in provincial court, 60 days of additional systemic delay due to the backlog, 67 days due to the defence adjournment of the first JPT scheduled in Superior Court), the elapsed time to the estimated end of trial falls to 896 days, or approximately 29 months, beneath the Jordan ceiling.

Is the delay nonetheless unreasonable?

28Both counsel argue in the alternative that even if the delay is brought below the Jordan threshold it is nonetheless unreasonable. I disagree.

29In order for the defence to obtain a stay where the elapsed time is under the presumptive ceiling, the defence must establish: (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 SCC stated that it expected stays beneath the ceiling to be rare and limited to clear cases: Jordan at paras. 48, 83; R. v. Campbell, 2022 ONCA 223 at 20.

30Defence counsel in this case can establish neither requirement. While defence counsel are very critical of the Crown for failing to take proactive steps to limit delay, the same is true of defence counsel. After the JPT in provincial court, where it was agreed that three weeks would be required for the preliminary inquiry, both sides accepted the dates offered. To the extent both sides were acquiescing to the inevitable in provincial court, this illustrates the difficulty getting out of custody matters heard in a timely fashion as the court works through its backlog. By the time the case got to Superior Court, the Crown confirmed the earliest dates offered by the Court right away. Defence counsel did not, and numerous appearances were required to set a date. At one point counsel for L.H. asked for a four-week adjournment to discuss resolution. Counsel for D.P. refused to take the earliest date and simultaneously refused to waive s.11(b). Eventually the Court ordered the trial to be scheduled on the earliest date available to the Court, over the explicit objection of defence counsel for D.P. He repeatedly threatened to bring an adjournment application, but ultimately resolved his scheduling difficulties, and did not follow through on his planned adjournment application. The circumstances of this case do not support a conclusion that the defence took meaningful steps to expedite proceedings.

31Nor do I accept that this case took markedly longer than it reasonably should have. While I agree with defence counsel that the circumstances of this case do not fall easily within the category of complex case as it has been defined in the 11(b) jurisprudence, I do not agree that this case has taken longer than it should have. Defence counsel argue that the Crown should have sought to mitigate the delay in provincial court by abbreviating the preliminary inquiry and limiting it to the one week available in January of 2022. I am not prepared to trench on Crown discretion by second guessing how they conducted the preliminary inquiry. What I do know is that this is an unusual and tragic case where committal was contested, and the preliminary inquiry judge reserved for almost three months, including almost a full month after receiving oral submissions, and released detailed reasons for his decision. The Crown also needed to carefully consider whether to formally seek committal. The circumstances of this case do not establish that it has taken longer than it reasonably should have.

32In conclusion, with the deductions noted (22 days to get a scheduling meeting in provincial court, 60 days of additional systemic delay due to the backlog, 67 days due to the defence adjournment of the first JPT scheduled in Superior Court), the elapsed time falls to 896 days, or approximately 29 months, beneath the Jordan ceiling. Defence counsel have not met the burden set out in Jordan for a below the ceiling stay. Both applications for a stay of proceedings are dismissed.

G. Roberts, J.