Court File and Parties

COURT FILE NO.: CRIM J (P) 23-0027 DATE: 2023 10 11

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HIS MAJESTY THE KING -and-

MATHEW COHEN

BEFORE: D.E. HARRIS J.

COUNSEL: Enoch Guimond for the Crown respondent Julie Kushnir and Adam Boni for the applicant

HEARD: August 24, September 12, 2023

Section 11B Charter Ruling

[1] Mathew Cohen, charged with child pornography offences, applies for a stay of proceedings under Section 24(1) of the Charter as a remedy for his trial being unreasonably delayed within the meaning of Section 11(b) of the Charter. The total delay is 63 months.

[2] I would carve out the following periods of delay (some of which have been rounded for convenience):

• July 10, 2018 (date information sworn) to May 6, 2019 (preliminary hearing date of May 11, 2020 set) 10 months
• May 6, 2019 to May 11-15, 2020 (preliminary hearing adjourned for pandemic) 12 months and one week
• May 11, 2020 to April 5, 2022 (preliminary hearing (now a discovery) commences) 23 months
• April 5, 2022 to January 17, 2023 (discovery ends, committal for trial) 9 months and two weeks
• January 17, 2023 (first appearance in Superior Court) to September 18, 2023 (trial date) 8 months

[3] The key issues are: 1. Were there disclosure issues and, if so, how much delay should be attributed to them?; 2. What amount of delay was caused by the pandemic, well established in the jurisprudence to be a discrete exceptional circumstance?

[4] Following the R. v. Jordan, 2016 SCC 27 and R. v. Cody, 2017 SCC 31 methodology, the first step is to subtract delay attributable to the defence from the total delay. If the net delay remains above the ceiling after the subtraction, the Crown must show that discrete circumstances caused exceptional delay. If so, it too must be subtracted. In circumstances in which the delay remains over the 30-month ceiling, a stay for unreasonable delay must be imposed.

[5] As a practical matter, the total delay for a period can be stated and then it can be determined whether there should be a subtraction from it based on defence delay and/or discrete circumstance delay.

[6] If the final number is under the 30 months, the burden moves to the defence to show that the delay is unreasonable: Jordan, at paras. 48, 47; Cody, at paras. 23.

[7] A detached, aerial view when arguing a section 11(b) application is necessary. Excessive attention to the minute details bogs down the process: Jordan, at paras. 91, 111; R. v. Agpoon, 2023 ONCA 449 at paras. 22-23. The Court said in Agpoon:

22 We join with the Jordan court in discouraging “complicated micro-counting” in determining delay, particularly in the context of the pandemic: at para. 111. Indeed, “trial judges should not parse each day or month... [but] should step back from the minutiae and adopt a bird’s-eye view of the case”: Jordan, at para. 91.

23 We take seriously the observation by McLachlin J., as she then was, at p. 810 of R. v. Morin, [1992] 1 S.C.R. 771, which the Jordan court approved at para. 111: “...we must remind ourselves that the best test will be relatively easy to apply; otherwise, stay applications themselves will contribute to the already heavy load on trial judges and compound the problem of delay”. Accordingly, the court said in Jordan that “[a] framework that is simpler to apply is itself of value.” This informs the framework we establish below.

Also see my previous reasons in R. v. Hyacinthe, 2022 ONSC 1444 at paras. 2-5.

[8] Care must be taken to ensure that the argument of unreasonable delay applications does not itself add unnecessarily to delay. In this application, more distillation would have been helpful. The applicant’s factum was 56 pages long and a reply factum of 17 pages was filed to respond to the Crown’s factum. After the initial hearing the applicant requested a second hearing to reply to the Crown’s arguments. In addition, there was little or no cooperation to narrow the issues.

Computation

i. July 10, 2018 (date information sworn) to May 6, 2019 (dates set for preliminary hearing)

[9] The applicant was stopped and searched at Pearson Airport on July 10, 2018 and child pornography was found. An information was laid charging him with possession and importing. The date the information was sworn is controlling for Section 11(b) analysis: R v. Kalanj, [1989] 1 S.C.R. 1594; R v Wookey, 2021 ONCA 68 at para. 55.

[10] From this point to May, 2019 was an intake period. On October 5, 2018, a replacement information was laid adding 5 accessing child pornography counts to the original July 10, 2018 child pornography charges. These new charges were distinct but related to the possession and importing charges on the first information. Because of the close relationship between the two sets of charges, in my opinion the delay analysis should start with the first information. This is the charging document that began the child pornography prosecution of the applicant.

[11] The original investigation and information was under the auspices of the Peel Regional Police while the added accessing charges and the underlying investigation dubbed “Project Mercury” was under the control of the Toronto Police Services.

[12] Much of the time from October 5, 2018 to the time of the first JPT on March 4, 2019 was taken up with disclosure in reference to the Toronto investigation of Project Mercury. This was a somewhat complicated investigation as there was an international aspect to it. The offences are alleged to have taken place in Paris, France. Attorney General consent was required.

[13] There were some alleged disclosure delays with respect to Project Mercury. On October 31, 2018, the defence first asked for Cst. Blackadar’s notes. She was a key investigator on Project Mercury. At the pretrial of March 4, 2019, the Crown conveyed that Cst. Blackadar made no notes with reference to the case against the applicant. They have staunchly repeated this position for four and a half years.

[14] Justice Freeman declined to set a preliminary hearing date on December 11, 2018 because of what she viewed as inadequate disclosure in reference to Project Mercury. Basic disclosure, leaving aside for the moment the contentious issue of Cst. Blackadare’s notes or lack thereof, was largely complete January 17, 2019. But the matter was remanded from December 11, 2018 to March 4, 2019 for a JPT. If it had been kept on a tighter schedule, than the date could have been set in January.

[15] The matter was up for a JPT on March 4, 2019. The defence on this date and on a second JPT on April 18, 2019 continued to complain about disclosure and would not set a date. The Crown would attribute 2 months of this period to the defence for not setting the preliminary hearing date at the earliest opportunity, that is in March. I agree. In my view, the situation with respect to Cst. Blackadare’s notes should not have held up this matter for any appreciable amount of time.

The Disclosure Issue

[16] This is an opportune juncture in which to deal with the disclosure issues which have been raised. The defence position with disclosure is that it slowed the proceedings throughout. The first question is whether there was a real problem with disclosure, the second is if there was a problem, how much delay is attributable to it?

[17] For over 4 years, from March 4, 2019 through to the time of this hearing in August of 2023, the Crown was saying that Cst. Blackadare had no notes. The defence was incredulous and would not accept no for an answer. In my view, the defence was chasing a chimera and either knew or ought to have known that it was a futile endeavour.

[18] The defence went to extraordinary lengths on this quest, even having before the court at this hearing an application for a subpoena duces tecum to the chief of police to search Cst. Blackadare’s desk for the illusive notes. Before this, there were numerous requests on the record for the notes and an extensive cross-examination of Cst. Blackadare on the subject of her notes at the discovery.

[19] The defence pointed to a passage from the cross-examination of Cst. Blackadare at the discovery where she supposedly admitted that she did in fact have notes of this investigation. That is plainly inaccurate. She admitted that she had notes in her desk but the context makes it abundantly clear that she was not referring to notes with respect to Project Mercury or this prosecution.

[20] It is certainly unusual that a police officer, particularly a key one in an investigation, would have no notes. The importance of police notes has been stressed over and over again in the authorities: R. v. Beaver, 2022 SCC 54 at paras. 171-175; Schaeffer v. Woods, 2013 SCC 71 at paras. 62-67; Turning the Tide Together: Final Report of the Mass Casualty Commission, v. 5: Policing, at 606;; R. v. Eagle [1996] O.J. No. 2867 (Gen. Div.) at paras. 15-16. It is reasonable to expect that police officers will take notes of what they see, hear and do.

[21] But simply because it is unusual does not mean it could not happen and happen in perfectly good faith. In this case, Cst. Blackadare’s sole task was to attend private Zoom child pornography conferences in an undercover capacity, to take screen snags and grabs and to document communications from the applicant. The Crown likened it to an officer wearing a body cam which takes down all the evidence in a much more reliable and complete fashion than could the officer if left to make notes physically.

[22] I do not intend to get mired in the minutiae. I am prepared to conclude, in the absence of further evidence, that after over four years of disclosure demands, Cst. Blackadare simply does not have notes of her investigative work and never has had. To find otherwise would be to engage in outright speculation. There is no indication that there are notes aside from the unhelpful, very general observation that one would expect there to be notes.

[23] Nor, I conclude, were there adequate grounds in this proceeding to continue the pursuit of the notes. The applicant has failed to meet his onus to show that disclosure was a fundamental problem in this case and was a cause of delay: R. v. M. (N.N.) at para. 37.

[24] The defence, in their reply factum, has included a list of disclosure material turned up in the discovery. None of it is fundamental. It was also argued that there was a lack of disclosure with respect to Charter issues as opposed to substantive issues. Again, this is not made out. The one circumstance cited in oral argument is that there was no disclosure that Cst. Blackadare’s work was not supported by a judicial authorization. This supposedly came out only at the discovery. But this circumstance, absolutely basic as it was, must have been obvious from early on.

[25] The disclosure delays seem to be relied on both for this delay and for the delay of the discovery past the time originally allocated. I will consider this issue later in this ruling. As I will explain below, it took several extra days besides the five originally set aside to complete the discovery. I do not agree that either delay can be attributed to the disclosure issues. In the end, delays with respect to waiting for Cst. Blackadare’s notes cannot be justified and must be left at the door of the defence.

[26] For this reason, in relation to this time period, I would subtract the 2 months the defence refused to set a date from total delay. Therefore, I would allocate the 10 months of this delay as follows:

10 months - 2 months defence delay = 8 months net delay

ii. May 6, 2019 (set date for preliminary hearing) to May 11, 2020 (preliminary hearing)

[27] On May 6, 2019, a date one year away, May 11-15, 2020 was set for the preliminary hearing. The defence was offered dates in August, 2019 but it seems was unavailable. Counsel’s words on the transcript are somewhat ambiguous but the fact is he did not accept the August dates. Defence counsel was available for other dates prior to May 11, 2020 but the court had no earlier dates available.

[28] The pandemic hit March 16, 2020, before the time the preliminary was due to commence. It is inarguably a discrete exceptional circumstance within the Jordan framework: Agpoon, at para. 19. However, the total delay should be counted all the way through to the May 11, 2020 date. This delay was already accepted and scheduled. It was a result of the stubborn chronic institutional delay plaguing Central West for the past 30 years or more. A one year wait for a preliminary hearing, even of five days duration, is common. But it is too long.

[29] The Crown is incorrect in arguing that the pandemic delay should start as far back as May 11, 2019, the set date for the preliminary hearing. The delay from May 11, 2019 to March 2020 had nothing to do with the pandemic and cannot be justified as such. It was a normal, regular delay which was contemplated well before anyone had any idea that the pandemic was approaching. Based on the same reasoning, the time from the pandemic emerging in March and the preliminary hearing in May, 2020, would also have occurred without the pandemic. That it was ultimately inevitable as a result of the pandemic is not to the point. It does not constitute a discrete exceptional circumstance.

[30] In respect of the defence unavailability for the August 2019 dates, the law has fluctuated somewhat. The Supreme Court in Jordan said at para. 64, “… the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not.” That was the situation in this case. The court presumably entertained but ultimately rejected the contrary position established under the unreasonable delay regime pre-dating Jordan. The most prominent case in this regard was R. v. Godin, 2009 SCC 26 at para. 23, where Justice Cromwell had said, “Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11(b) purposes, require defence counsel to hold themselves in a state of perpetual availability.”

[31] However, since Jordan, the Supreme Court in R. c. Boulanger, 2022 SCC 2, reversed the course set in Jordan and returned to a position closer to Godin, saying,

8 This Court did of course explain in Jordan that where the court and the Crown are ready to proceed but the defence is not, the resulting delay is attributable to the defence (para. 64). All participants in the criminal justice system, including the defence, must take a proactive approach in order to prevent unnecessary delay by targeting its root causes (Cody, at para. 36). That being said, in some cases, the circumstances may justify apportioning responsibility for delay among these participants rather than attributing the entire delay to the defence. (Emphasis added)

[32] This position was recently re affirmed in R. v. Hanan, 2023 SCC 12 at para. 9.

[33] In a region as plagued historically by chronic intractable institutional delay, if the defence is not available for one week in a year period in which the court and Crown are available, it would be unfair to attribute all of the ensuing delay to the defence. The Crown agrees that there should be some apportionment. He says that because the date offered and not accepted was nine months before the date ultimately set, the Crown and defence should split this nine-month difference. Each party should bear 4.5 months delay. I do not agree. Splitting the difference is arbitrary. In this instance, the Crown should bear more of the delay responsibility. Otherwise, in my view, not being available for a mere one-week period within the span of one year would be given a disproportionate and unfair weight, out of step with the purpose of the Section 11(b) right and the practical realities of criminal law practice in Central West.

12 month total delay comprising of 9 month delay (of which 6 months is Crown responsibility) plus 3 month FURTHER CROWN delay 9 months net delay

iii. May 11, 2020 (preliminary hearing adjourned for the pandemic) to April 5, 2022 (preliminary hearing commences)

The Delay Attributable to the Pandemic

i. The Issue in this Case

[34] Once the first preliminary hearing of May 11, 2020 was lost in the seismic disruption to the court system wrought by COVID, it took until April 5, 2022—or one month short of two years—for the preliminary to be rescheduled and to actually be heard. This 23-month period and the question of its attribution is crucial to the outcome of this application.

[35] The defence concedes that from the cancelled May 11, 2020 first preliminary hearing date to November 23, 2020, the pandemic was a discrete exceptional circumstance for which the state should not bear the burden. The date of November 23, 2020 was chosen by the defence as the end date as it is argued that this was the date efforts commenced to get the matter back on track for a JPT. This is a six-and-a-half-month concession.

[36] The Crown position with respect to the pandemic covers a much longer time frame and mixes the pandemic factor in with defence delay as well. The total delay caused by the pandemic was 32 months, in their view. It would have been better if the Crown position had mirrored the way the defence has shaped their argument. In any case, it is the Crown’s position that the defence is being overly sanguine about the repercussions of the pandemic.

[37] I should state at the outset that I do not agree that the effect of the pandemic was short lived and can be confined to a six-month period as argued by the defence. Other judges who have confronted the discrete exceptional circumstance caused by the pandemic have virtually unanimously given it a much longer impact. The true shadow cast by the pandemic on the administration of justice could not reasonably be construed as a mere six months, at least in Central West.

[38] To analogize, the Court of Appeal has said that the “ripple effect” of a defence adjournment extends from the time the hearing was adjourned to the time the rescheduled hearing commences: R v Grant, 2022 ONCA 337 at paras. 31-42; R v Picard, 2017 ONCA 692 at para. 117; M. (N.N.), at para. 23. Taking a measure of the full extent of defence delay must include the ripple effect. The same logic ought to prevail in a situation where the pandemic led to the preliminary hearing being aborted and then rescheduled. It triggered the initial delay which then led to further delays. Unless there was some unreasonable delay in the process of getting the new preliminary hearing set down and heard, the entire time ought to be relegated to the exceptional discrete circumstances caused by the pandemic.

[39] Stepping back and looking at in full context, it needs to be emphasized again that the pandemic was nothing less than transformative. I would follow the lead in Jordan and Agpoon and rely on judicial knowledge of local circumstances: Jordan, at para. 89; Agpoon, para. 26. Contrary to defence submissions, jury trials in Central West were greatly curtailed and during some of the numerous pandemic waves, were not proceeding at all. When jury trials were going ahead, they were greatly reduced in number. Juries were chosen at the Pearson Centre in our jurisdiction to allow for social distancing. When the trials returned to Brampton after selection, jury members were spread out through the courtroom audience seating for the same purpose. Jurors and other participants regularly got sick with COVID. Cases were either substantially slowed down or had to be mistried. To take a random example, one judge presided over a serious jury case which had earlier been mistried because of COVID illnesses. During the retrial, a juror’s wife contracted COVID, two or three jurors got COVID, the judge got COVID and both prosecutors came down with COVID as well. Very substantial disruptions were caused on each occasion. There are many, many other examples of cases derailed or stalled by illness of criminal justice participants, staff and witnesses during the pandemic.

[40] Furthermore, after decades of only marginally successful efforts to institute electronic court filing, the pandemic forced the issue and electronic filing became commonplace within months. This is a manifestation of the magnitude of the changes required to be made in response to the pandemic. Most importantly for present purposes, virtual hearings became the norm, in person hearings the exception. That was a sea change in the administration of criminal justice. The system slowed to a crawl but was saved from total collapse by the advent of virtual hearings. Cases continued to flow into the system but many fewer cases were processed and exited through the back end. A good examination of some of the many deleterious effects of the pandemic can be found in Downes J.’s decision in R. v. Balasubramaniam, 2023 O.J. No. 218 at paras. 6-14.

[41] There was an important but less tangible effect brought about by the pandemic. The justice system is vitally important to our society. Its participants—Crowns, defence counsel and judges—are dedicated to working dutifully and effectively within it and accomplishing its objectives. Yet, as in all other walks of life, the pandemic eclipsed everything else in our daily lives. Many people were hospitalized. Many people, friends and family, succumbed to the illness. Every family of every justice participant suffered at least some significant sickness. Some suffered catastrophic loss.

[42] COVID became a matter of universal first priority. The justice system struggled gamely and acquitted itself admirably by all accounts. But paying the usual full attention to the administration of justice, amidst the plague that had befallen all of us, was simply not possible. Amongst the innumerable stops and starts and the ceaseless disruption there was an enormous human cost. That is one reason, besides the more tangible ones, why the usual speed of cases through the system was slowed. It could only reasonably have been expected. It was not complacency; it was a question of altering priorities out of practical necessity. Despite being a less palpable effect, this is properly classified as part of the pandemic effect.

[43] The full impact of the pandemic must be kept in mind when examining delay. In this case, there are two time periods directly effected by the pandemic: First, after the preliminary hearing was aborted, the time required to get to a position in which a new preliminary hearing could be set; and second, the delay from the “set date” to the commencement of the second preliminary hearing. Each was a year, roughly.

iv. The Delay from the Aborted Preliminary Inquiry of May 11, 2020 to May 19, 2021 When the New Preliminary Inquiry was Set

[44] It took one year from the aborted preliminary hearing of May 11, 2020 to get into position to set a new date. In a perfect world, the new preliminary hearing would have been set immediately after the original one was cancelled by the pandemic. But the world was very far from perfect; it was labouring under the scourge of the pandemic.

[45] There must be some ripple effect allowance for starting up the juridicial machinery to get a case in a position to set a new date. In normal circumstances, it would be reasonable to permit some limited administrative delay. Once knocked out of the flow of cases it would naturally take some time to get it back in the queue.

[46] The pandemic significantly retarded this process of getting to a new set date. In the event of such a mass derailment of the entire complement of cases in the system, this case could not simply cut in line ahead of other cases in front of it. There was a crush of cases crowded together vying to get back into the queue to be rescheduled. Each case had to await its turn.

[47] As I have written previously in R. v. Sharma, 2022 ONSC 5192 (unreported),

14…The clogging of the system affected all cases. As Justice Doherty said in a pre-Jordan case,

The recognition and treatment of … inherent time requirements in the s. 11(b) jurisprudence is simply a reflection of the reality of the world in which the criminal justice system operates. 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.

R. v. Allen at para. 27, also see Hyacinthe, para. 17 in reference to the “domino effect” caused by COVID.

15 It is arguable that the not all of the time from the first aborted preliminary hearing date to the second date on which the preliminary hearing was actually heard should count as exceptional delay. The time to get the matter back on the list to the actual hearing, it could be said, was part of the normal court process. It should count towards the Jordan ceiling.

16 However, this approach ignores the true effect of the pandemic. The judicial environment was rent by the pandemic, having profound effects throughout the criminal justice system. Getting matters back on after the interruption caused by COVID was itself an ordeal. If the preliminary hearing had been lost because of a witness not appearing, for example, the situation would be quite different.

17 The pandemic not only precipitated the loss of the original hearing but it also greatly hindered efforts to reschedule it …

[48] The movement of this case to the point at which a new preliminary hearing date was set illustrates the difficulty of getting cases back on. After the court was shut down in March 2020, on July 20, 2020, there was a COVID group adjournment including Mr. Cohen’s case, to September 28, 2020. It then went to November 2, 2020 and then another group automatic adjournment sent it to February 1, 2021.

[49] Within this time period, a JPT was set for December 21, 2020. On the December 21, 2020 date set for the JPT, defence counsel had an immediate family health issue requiring his attention. He did not write to reschedule until two months later, January 29, 2021. Soon after, a date of March 11, 2021 was set for the JPT. After this, at a scheduling conference on May 19, 2021, the April, 2022 preliminary hearing date was set for 5, 6, 7,8, and 11.

[50] I would characterize this entire period as a mix of defence delay and COVID exceptional circumstance delay. Neither contribute to Jordan net delay. The only real question is the period from January 29, 2021 to May 19, 2021. In the normal course, this four-month period would be too long for a JPT to be held and a date set. But in the heart of the COVID pandemic, it was a natural part of the ripple effect.

v. The Delay from the Set Date of May 19, 2021 to the Preliminary Inquiry Commencement of April 5, 2022

[51] Dealing with the delay from the set date to the commencement of the preliminary hearing (converted into a discovery), in my view, the almost one-year delay is completely subsumed as discrete exceptional delay of the pandemic. If the pandemic had been a one-week event, it too would have pre-empted the preliminary inquiry, just as the much longer duration of the invasion of the virus did. It would have been expected, in the absence of administrative prioritization, that the new date would be about the same distance in the future that the originally scheduled preliminary hearing was from the set date, or about one year in this instance. To fit this case back into the flow of cases, given the last-minute derailment, would have it start again at square one. In my view, this ought not to be controversial.

[52] This is a conservative projection because it does not account for the effect of all the other cases that were stopped dead in their tracks too and had to be rescheduled. The result is the subtraction as discrete exceptional pandemic delay from the May 11, 2021 to the April 5, 2022 commencement of the preliminary inquiry.

vi. April 5, 2022 to January 17, 2023

[53] On April 5, 2022, the defence conceded committal and the preliminary inquiry originally scheduled commenced as a discovery. Set for five days, 5, 6, 7, 8, and 11, defence counsel asked for an adjournment because of a family emergency on April 11. Two witnesses remained, Cst. Blackadar and DC Imber. The Crown suggested and defence agreed that committal be conceded and the discovery continue, thus getting the matter quickly into Superior Court and a trial date selected. But that did not happen. A date of May 10, 2022 was selected to complete the discovery.

[54] The discovery of Cst. Blackadare did not complete that day. July 25 and 26th were chosen to continue but defence counsel came down with COVID the week of July 12 and was still struggling with long symptoms leading up to those dates. Eventually, the dates of November 3 and 14 were chosen. The discovery did not complete those dates and so the matter was adjourned to December 13, 2022. The cross-examination of Cst. Blackadare was commenced. There was a good deal of attention, as previously mentioned, to her lack of notes. On December 14, 2022, the Crown expressed concern about the delays, saying “What the Crown was seeking was an assurance as to actually completing this witness in the time that’s set out, because you’ve heard one day, a number of times.”

[55] On January 17, 2023 the cross-examination of Cst. Blackadare ended, the applicant was committed to trial and a first appearance date of February 2, 2023 was set in Superior Court.

[56] The period between when the discovery was scheduled to be completed and when it actually was completed was long, 9 months and one week (April 11, 2022 to January 17, 2023). The cross-examination was far longer than it should have been. I do not accept the defence position that this delay was as a result of disclosure inadequacies. In addition, a discovery going longer than expected constitutes an exceptional circumstance: Jordan, para. 74. For these reasons, the delay resulting from the preliminary hearing going longer than scheduled does not accrue to the net delay.

vii. January 17, 2023 (committed to trial in Superior Court) to February 22, 2023 (trial date of September 18, 2023 set)

[57] The first appearance in Superior Court was February 2, 2023. A JPT was scheduled for February 16, 2023. The Crown’s form was filed just the day before, necessitating an adjournment to February 22, 2023. The JPT was held that date and a date was set for trial. Neither defence delay nor exceptional discrete circumstances can account for this delay.

net delay of 1 month 1 week

viii. February 22, 2023 to September 18, 2023 trial date

[58] This seven-month period is not reduced by defence delay or exceptional circumstances.

NET DELAY OF SEVEN MONTHS

Conclusion

[59] The total delay is 63 months but the net delay is just over 25 months, well under the Jordan 30-month ceiling. The defence has failed to show that this delay is itself unreasonable. Nor can it be persuasively argued that the defence took meaningful steps to expedite the proceedings.

[60] The defence relies on several actions in this latter respect, such as re-electing for a trial by judge alone, doing pre-trials without full disclosure, and “[a]dvising the Court that the Applicant was very eager to deal with the matter.” I do not accept that any of these steps were specifically directed to facilitate the applicant’s right to trial without reasonable delay as opposed to building a record for this application. While there were some time savings due to steps taken by the defence, that was not the main intention. Nor ultimately were the steps taken of great significance.

[61] This issue must be viewed in the context of the entire record, some of which clearly demonstrates a complacency towards delay. One example is the obsessive fixation with the notes of Cst. Blackadare. At no time did the defence get up in court or write correspondence demanding that the matter be immediately expedited. Nor did the conduct of the defence implicitly convey this intention.

[62] Neither the main defence position nor alternative position can succeed. It was for these reasons that this application was dismissed.

D.E. HARRIS J. Released: October 18, 2023