CITATION : R. v. Byron Jones, 2023 ONSC 6683 COURT FILE NO. : CR-21-112 DATE: 2023/11/24

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Byron Jones

BEFORE: Wilcox, J.

COUNSEL: G. Cark, Counsel for the Applicant S. Dickson, for the Respondent

HEARD: September 27, 2023

DECISION ON CHARTER s. 11(b)

INTRODUCTION

[1] The accused sought a stay of proceedings pursuant to s. 24(1) of the Charter on the grounds that his s. 11(b) right to be tried within a reasonable time has been infringed. On October 31, 2023, I signed an endorsement granting the application and staying the charges for reasons to follow. These are those reasons.

[2] The accused was charged on an Information sworn on October 10, 2020. The matter was set for a seven-day jury trial to occur during the November, 2023 sittings. These dates could be any time between November 13 and November 24, 2023.

[3] The delay from the charging date to the anticipated completion of trial was 1,139 days or 37.4 months. (The Crown’s calculation differs by an insignificant amount. I have used the defence’s numbers here.)

[4] The Applicant concedes that there are 129 days of defence delay. The net delay would therefore be 1,010 days or 33.2 months. That exceeds the presumptive Jordan ceiling of 30 months by 3.2 months.

[5] The Crown contends that defence delay totals 300 days, resulting in a net delay of 838 days or about 28 months, under the Jordan ceiling.

The Jordan Framework

[6] The Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, set out a new framework for applying s. 11(b), having identified problems with the previous “Morin” framework. In the Jordan framework, there is a ceiling beyond which delay is presumed to be unreasonable. The ceiling is 30 months for cases that go to trial in the Superior Court of Justice. If the total time from the charge to the actual or anticipated end of the trial, less any delay attributed to the defence, exceeds the ceiling, the delay is presumed to be unreasonable. The onus is then on the Crown to rebut the presumption. To do so, it must show that there are exceptional circumstances, failing which the delay is unreasonable and there will be stay. On the other hand, where the delay falls below the ceiling, the burden is on the defence to show that the delay is nevertheless unreasonable.

[7] Defence delay was said to have two components, delay waived by the defence, and delay caused solely by the conduct of the defence. The latter includes acts of the defence which are shown to be deliberate and calculated tactics used to delay the trial, and periods resulting from the defence not being available to proceed when the courts and the crown are. It was left open to the courts to find that other defence actions have caused delay. However, the court recognised that legitimate time and actions taken by the defence to respond to the charges would not constitute defence delay.

[8] Exceptional circumstances were defined as ones being outside of the Crown’s control in that:

1. They are reasonably unforeseen or reasonably unforeseeable, and
2. Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise.

[9] There are two categories of exceptional circumstances: discreet events and particularly complex cases. The determination of whether circumstances are “exceptional” was left to the trial judges. A further consideration is whether the Crown made reasonable efforts to have the trial concluded under the ceiling. In Jordan, the SCC stated that “the Crown bears the onus of justifying delays that exceed the ceiling” (para. 56) and that “(it) must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling” (para. 70).

[10] The period of delay attributed to discreet exceptional events is to be subtracted from the total period of delay to ascertain whether the ceiling has been exceeded. On the other hand, if the time taken is justified by the complexity of the case, the delay will have been reasonable and there will be no need for a stay of proceedings.

[11] The absence of prejudice to the accused cannot be used to justify delays beyond the ceiling. The concept of prejudice was said to underline the framework and to have been accounted for in creating a ceiling.

[12] A useful summary of the Jordan Framework was provided by the Ontario Court of Appeal in R. v. Coulter [1], which I will set out at length:

A. The New Framework Summarized

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).

B. Key Elements in the New Framework

(1) Defence Delay

42 Defence delay has two components: (1) that arising from defence waiver, and (2) delay caused solely by the conduct of the defence (“defence-caused delay”) (Jordan, paras. 61 and 63).

43 Waiver can be explicit or implicit but, in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights (Jordan, para. 61).

44 Defence-caused delay is comprised of situations where the acts of the defence either directly caused the delay or are shown to be a deliberate and calculated tactic employed to delay the trial. Frivolous applications and requests are the most straightforward examples of defence delay (Jordan, para. 63). Where the court and the Crown are ready to proceed but the defence is not, the defence will have directly caused the delay (Jordan, para. 64).

(2) Exceptional Circumstances

45 If the Net Delay exceeds the presumptive ceiling, the onus is on the Crown to rebut the presumption of unreasonableness based on the presence of exceptional circumstances.

46 Exceptional circumstances lie outside the Crown’s control in that: (1) they are reasonably unforeseen or reasonably unavoidable; and (2) Crown counsel cannot reasonably remedy the delays emanating from the circumstances once they arise. Such circumstances need not be rare or entirely uncommon (Jordan, para. 69).

47 An exceptional circumstance is the only basis upon which the Crown can discharge its burden to justify a Net Delay that exceeds the ceiling. The seriousness or gravity of the offence cannot be relied on. Nor can chronic institutional delay or the absence of prejudice to the accused (Jordan, para. 81).

48 The list of exceptional circumstances is not closed but, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).

(a) Discrete Events

49 An illustration of a discrete event that will generally qualify is a medical or family emergency on the part of the accused, important witnesses, counsel or the trial judge (Jordan, at para. 72).

50 The period of delay caused by any discrete event must be subtracted from the Net Delay for the purpose of determining whether the presumptive ceiling has been reached. However, any portion of the delay caused by a discrete event that the Crown or system could reasonably have mitigated may not be subtracted (Jordan, para. 75).

(b) Particularly Complex Cases

51 Particularly complex cases are cases that, because of the nature of the evidence or issues (or both), require an inordinate amount of trial preparation time such that the delay is justified (Jordan, para. 77). The seriousness or gravity of the offence cannot be relied on to establish that the case is particularly complex (Jordan, para. 81).

52 Where the trial judge finds that the case was particularly complex such that the time the case has taken is justified, the delay is reasonable, and no stay will issue. No further analysis is required (Jordan, para. 80).

(3) Remaining Delay is Below the Presumptive Ceiling

53 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). To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings (“defence initiative”); and (2) the case took markedly longer than it reasonably should have. Absent both of these two factors, the s. 11(b) application must fail (Jordan, para. 82).

54 Stays beneath the presumptive ceiling should be granted only in clear cases (Jordan, para. 83).

[13] The courts have elaborated on defence delay. In Jordan, the Supreme Court said:

60 Application of this framework, as under the Morin framework, begins with calculating the total delay from the charge to the actual or anticipated end of trial. Once that is determined, delay attributable to the defence must be subtracted. The defence should not be allowed to benefit from its own delay-causing conduct. As Sopinka J. wrote in Morin: “The purpose of s. 11(b) is to expedite trials and minimize prejudice and not to avoid trials on the merits” (p. 802).

61 Defence delay has two components. The first is delay waived by the defence (Askov, at pp. 1228-29; Morin, at pp. 790-91). Waiver can be explicit or implicit, but in either case, it must be clear and [page 662] unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights. However, as in the past, “[i]n considering the issue of ‘waiver’ in the context of s. 11(b), it must be remembered that it is not the right itself which is being waived, but merely the inclusion of specific periods in the overall assessment of reasonableness” (R. v. Conway, [1989] 1 S.C.R. 1659, per L’Heureux-Dubé J., at p. 1686).

63 The second component of defence delay is delay caused solely by the conduct of the defence. This kind of defence delay comprises “those situations where the accused’s acts either directly caused the delay … or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial” (Askov, at pp. 1227-28). Deliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests, are the most straightforward examples of defence delay. Trial judges should generally dismiss such applications and requests the moment it becomes apparent they are frivolous.

64 As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. This should discourage unnecessary inquiries into defence counsel availability at each appearance. Beyond defence [page 663] unavailability, it will of course be open to trial judges to find that other defence actions or conduct have caused delay (see, e.g., R. v. Elliott (2003), 114 C.R.R. (2d) 1 (Ont. C.A.), at paras. 175-82).

65 To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused’s right to make full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions.

[14] The Supreme Court acknowledged, as it had said in R. v. Godin [2], s. 11(b) does not require defence counsel to hold themselves in a state of perpetual availability [3].

[15] The Supreme Court in R. v. Cody expanded on its comments in Jordan about the second component of defence delay and, in particular, the concept of legitimacy in defence actions:

28 In broad terms, the second component is concerned with defence conduct and is intended to prevent the defence from benefitting from “its own delay-causing action or inaction” (Jordan, at para. 113). …

30 The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. …

31 The determination of whether defence conduct is legitimate is “by no means an exact science” and is something that “first instance judges are uniquely positioned to gauge” (Jordan, at para. 65). It is highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. While trial judges should take care to not second-guess steps taken by defence for the purposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate to do so.

32 Defence conduct encompasses both substance and procedure – the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. …

33 As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extend to omissions as well as acts (see, for example in another context, R. v. Dixon, [1998] 1 S.C.R. 244, at para. 37).

The Application

1. General

[16] The defence filed a “Jordan Table” listing the events in the case from the arrest date of October 9, 2020, and the Information swearing date of October 10, 2020, to the anticipated last day of trial, November 22, 2023. The source of delay from various periods was labelled as inherent, institutional, or defence.

[17] The Crown’s documents included a chart showing its calculations of total delay, defence delay, and net delay, which the Crown replaced at the outset of the hearing with one which increased the amount of defence delay and therefore reduced further the remaining delay. The Crown’s submissions were that there were five periods of defence delay. These included all the periods of defence delay admitted by the defence.

[18] The Crown accepted the facts stated by the defence’s factum, with three exceptions which will be taken into account in the relevant places.

2. The Crown’s First Period of Alleged Defence Delay

The first period of defence delay alleged by the Crown fell between February 8 and April 8, 2021, in which, it alleges, the defence delayed requesting a preliminary hearing. This is in a span of time that the defence has labelled as inherent or institutional. The matter remained in the Ontario Court of Justice (OCJ) over this period. It was common ground that, at the OCJ, a judicial pre-trial (JPT) was required in order to set a preliminary inquiry. A JPT was held in the OCJ on February 8, 2021. A one-day preliminary inquiry was approved.

[19] The defence had submitted disclosure requests as early as November 26, 2020. Initial disclosure had been provided in November 2020 and more in December 2020. Copies of videotaped statements were not available from the Crown until February, 2021. The defence could have held off having the JPT until it had that disclosure, delaying matters, but did not. A JPT was held on February 8, 2021, as noted above, clearing a hurdle to setting a preliminary inquiry date. It appears that, at the JPT, defence counsel hoped to be able to conduct the preliminary inquiry by Zoom, but needed the videos in order to advise the accused, get instructions and reach agreement with the Crown about how, in fact, the preliminary inquiry would proceed. As such, the matter was not ready to proceed with scheduling a preliminary inquiry. The matter was adjourned to March 30, 2021, for the purpose of receiving disclosure as required to finalize informed instructions for a preliminary inquiry. In this time, the defence and the Crown were conducting discussions about logistics of committal and testimony of witnesses in southern Ontario and the United States of America. These had implications for the witnesses that the Crown was willing to call.

[20] The transcripts show that, at the court appearance of February 23, defence counsel submitted that they would be setting a date for a preliminary inquiry, but the DVD statements were outstanding and, so, proposed adjourning to March 30 to confirm the preliminary inquiry date. The Crown at that court appeared to agree, and certainly did not object. This is consistent with the email communication between defence and the Crown up to March 30, 2021.

[21] The DVDs of witness statements were ready to be picked up by the Applicant on February 23 and were picked up on February 26, 2021.

[22] On March 30, 2021, the Applicant appeared with instructions to schedule a preliminary inquiry. The matter was adjourned to April 27, 2021, due to the local trial coordinator’s pre-setting requirements. On April 8, 2021, the defence requested the preliminary inquiry and filed the requisite forms. The matter was pre-set for a preliminary inquiry on July 9, 2021, the first available date. On April 27, 2021, the Applicant confirmed the preliminary inquiry date of July 9, 2021. In advance of this, the defence had obtained instructions to conduct the preliminary inquiry in a fashion that accorded with what the Crown was prepared to do so, and, so shortened matters. This involved a consent to committal and certain witnesses appearing by Zoom, rather than in person, at the preliminary inquiry.

[23] Whether the question of whether or not there would be a need for a Zoom-capable courtroom affected scheduling and, therefore, had to be resolved before the preliminary inquiry could be scheduled could not be answered. The Crown suggested that it did not, as the event could have been scheduled for such a courtroom, of which there was only one available, but then conducted in person if that was the ultimate choice. The defence questioned this. The information needed to answer the question was not available. I would only say that the approach suggested by the Crown might have delayed the matter rather than expediting it as an in-person date, if that way of proceeding had been chosen, might have been available sooner.

[24] The Crown now contends that the defence did not need complete disclosure to set the date for the preliminary hearing. Therefore, it attributes the time from February 8 to April 8, 2021, to defence delay. The defence countered that this time was legitimately taken to respond to the charges.

[25] I note that at court on March 30, when the matter was adjourned to April 27 for defence to obtain from the trial coordinator and confirm a pre-set date for the preliminary hearing, the Crown did not express concerns about the delay, nor did the court. The Crown could have sought to schedule the preliminary inquiry, but did not. The trial coordinator responded that day with a list of dates, starting July 20, 2021. Defence indicated its availability by reply email that day. On April 9, the Crown said that none of the dates were good for the police witnesses and the trial coordinator apparently offered other dates, both of which were agreeable to the Crown and defence. The earlier one, July 9, was set, to be confirmed on April 27.

[26] I would not call the period from February 8 to March 30, 2021, defence delay. I accept that the defence had agreed to hold the JPT prematurely, before it had full disclosure, potentially expediting the matter, and that time was needed to process that disclosure once received. There is no indication that the Crown was ready to set a preliminary inquiry date any sooner than the defence was. The Crown and defence were having continuing discussions up until March 30 about the preliminary inquiry, including whether committal was an issue, what witnesses would be needed therefor and whether they could appear remotely, given the prevailing COVID-19 situation. Therefore, it was not unreasonable that the request to the trial coordinator for a preliminary inquiry date not go in until April 8.

3. The Crown’s Second and Third Periods of Alleged Defence Delay

[27] The second period of defence delay alleged by the Crown was from the July 9 preliminary inquiry to August 12, 2021. The Crown alleges that the defence delayed requesting a JPT in the Superior Court (SCJ) following the preliminary inquiry and committal for trial on July 9.

[28] The third period of defence delay alleged by the Crown was from September 20 to November 2, 2021. The Crown alleges that the defence was not available in that time for the initial SCJ JPT.

[29] I have grouped the two periods together, consistent with the defence’s treatment of them. The defence treats this as a period of inherent delay.

[30] With respect to the second period, the Crown submitted that, following the preliminary inquiry, no efforts were made by the defence to secure a date for a JPT. Rather, on August 12, 2021, the trial coordinator emailed with dates on her own initiative, and a JPT was set. The defence, the Crown submits, ought to have attended on August 6, 2021, with a JPT date in hand. This period of delay ended on August 12, 2021, when the trial coordinator emailed counsel to canvas dates.

[31] Having identified the July 9 to August 12 time period, the Crown allowed that it would be inappropriate to hold the defence to a standard of immediacy in requesting a JPT date. That is, it did not expect the defence to act on that as soon as July 9. Therefore, the Crown was unsure how to express the period of defence delay but set it at 28 days from July 9 to August 6, as a proxy for an indeterminate date after July 9 by when the defence should have begun canvassing dates, to August 12.

[32] With respect to the third period, in the August 12, 2021, email from the trial coordinator, four dates were offered for a JPT: September 20, 21 and 22, and November 2. The defence was only available for the November 2 date. The Crown, while not indicating it at the time, was available for all dates offered. Therefore, the Crown submitted, the delay from September 20 to November 2, 43 days, as a result of the defence’s availability should be attributed as defence delay.

[33] The defence denied any defence delay prior to November 2, 2021. The defence submitted firstly that, with respect to the second period, the Crown’s argument was premised on a suggestion that the defence had to trigger a JPT in the SCJ, as is the practice in the OCJ, but that that was not so. Secondly, defence’s experience was that, if he contacted the SCJ trial coordinator soon after the preliminary inquiry for a JPT date, the trial coordinator would say that the matter is not before the court. It will not be until the Crown files the Indictment. The defence will not know that that has happened unless served with the Indictment, which did not happen here, or it attends at the SCJ assignment court, which it did on August 6, when it requested a JPT, causing the trial coordinator to email the parties on August 12 and the November 2 date to be set.

[34] Regarding the third period, defence counsel was already scheduled for substantive matters in another court on September 20 and 21 and was scheduled to appear in court in a different jurisdiction on September 22 as a witness on a previously scheduled matter.

[35] The defence also submitted that the Crown had not said at the time that the JPT dates were being set that it was available for the September dates and could not trigger defence delay retroactively by saying so now. I agree.

[36] The Crown responded that, although she did not take particular issue with the defence’s submission about his experience, hers was that she had been able to start the JPT date setting process with the trial coordinator before the case was formally moved to the SCJ and had obtained dates before the first appearance in the SCJ in other cases. The defence replied that he had no doubt that the Crown could have done so, even if defence could not, which was all the more reason that the Crown could have served the Indictment on him or, even easier, emailed the trial coordinator for a JPT date, knowing one was needed.

[37] The transcripts show that the case was addressed in assignment court by defence on August 26, 2021, briefly and cryptically, apparently with reference to the circumstances of another case which are not in the transcript, but which was similar, adjourning it to September 10 to pre-set a JPT date. Nothing appears to have been said by the Crown.

[38] The consequent email of August 12 from the trial coordinator simply offered September 20, 21, and 22, and November 2. Defence replied by email within minutes, with a copy to the Crown, simply indicating availability for November 2. The Crown followed within minutes, by email, stating only that November 2 worked for it as well. Back in assignment court on September 10, the November 2 date was confirmed by the Crown and defence. There were no comments about the availability of other dates, or delay. Only at this application did the Crown indicate that it had been available for the September dates. That is too late to be of assistance in avoiding delay.

[39] Dealing with the second period, the defence cannot be faulted for relying on his considerable experience, which the Crown did not take issue with, even though her experience had been different. There is no explanation of why the Crown’s office did not initiate the process, especially knowing that it had done so before.

[40] Turning to the third period, the trial coordinator presumably offered on August 12 the court’s available dates up to November 2. On the three dates in September, the defence was already booked into court matters. The case law is that defence is not expected to be perpetually available. Also, the period of time after the September dates would be time in which the court was apparently not available and, therefore, cannot be attributed to defence delay.

[41] In summary, I do not find any defence delay as alleged in the Crown’s second and third periods.

4. The Crown’s Fourth Period of Alleged Defence Delay

[42] The fourth period of defence delay alleged by the Crown was from November 2, 2021, to January 19, 2022.

[43] The Crown submitted that, during the JPT held on November 2 with Tremblay J., it was indicated that an additional JPT would be needed as the applicant did not have instructions about the pre-trial applications that he would be bringing. At the time, defence was considering bringing third party records applications for which it had a prima facie foundation following the preliminary inquiry held on July 9, nearly four months prior to the JPT. The Crown took the position that the entire 68-day time period from the first JPT at the SCJ until the additional JPT was held on January 19, 2022, should be deducted as defence delay, as the defence ought to have been prepared to address pre-trial applications at the initial JPT.

[44] The defence submitted that, at the time of the November 2 JPT, the defence was attempting to give advice and secure informed instructions about whether and how to proceed with third party records applications. The preliminary inquiry had divulged prima facie foundations for such applications with record holders including:

(a) North Bay Regional Health Centre – psychiatric department. (b) Dr. Cochrane – psychiatrist – North Bay, Ontario. (c) St-Catherines General Hospital. (d) Dr. Aaron Chan – Family Medicine – St-Catherines, Ontario. (e) Good Shepherd Centre – 90 Stinson Street, Hamilton, Ontario. (f) Stella Bird Niagara Sexual Assault Centre – St. Catherines, Ontario. (g) Outpatient Mental Health Clinic – Therapy Services – North Bay, Ontario.

[45] These were all record holders who had dealt with the complainant as she was in the process of making her disclosure about this case, such that their records might contain something really pertinent. Defence fairly described the third-party records regime as extraordinarily cumbersome. Here, it would involve up to seven record holders, four from southern Ontario, all having to gather records and appear in court in North Bay with their lawyers. It is a very challenging cost benefit analysis for the accused and a serious diligence obligation for defence counsel who had an enormous volume of material to assess. It was, the submission continued, something that should be discussed with the JPT judge. That was done on November 2, when the judge endorsed that the decision on whether or not to bring third party records applications would have “a significant impact on how the matter proceeds and on the time estimates for pre-trial and trial.

[46] The JPT judge noted that the JPT had been started, but defence counsel needed instructions. He adjourned the matter to December 10 assignment court to set a date for next step, whether or not the JPT had been completed by them.

[47] The court transcript shows that, on December 10, 2021, at defence’s request, the matter was adjourned to January 14, 2022, to set a continuation date for the JPT, because defence had more work to do ahead of that. The trial coordinator offered dates on December 21, and January 19 was agreed to. The JPT was completed on that date. The defence therefore submitted that defence delay should be restricted to two periods which it had already included in its calculation of defence delay:

• November 2, 2021, to December 10, 2021, a period of 38 days when it did not request a further JPT date as instructed.
• December 10 to December 21, 2021, a period of 11 days when it required further time to consider pre-trial applications, until scheduling of the JPT resumed.

[48] I accept that the defence had a lot of work to do regarding the multiple potential third party records applications. However, it had nearly four months from the July 9, 2021, preliminary inquiry, when it had found its prima facie foundation for these applications, to the November 2, 2021, JPT. Of course, the details of the JPT discussion are not known to me. I also accept that, in the prevailing complicated situation, defence would have had to report back to the accused and get further instructions. That was to be done by December 10, 2021. The defence was not ready by then and got a further adjournment to January 14, 2022, to set a date for the JPT continuation. In the interim, the trial coordinator offered dates by email of December 21 leading to the completion of the JPT on January 19, 2022. In these circumstances, instead of the date being set by December 10, a date offered by the trial coordinator on December 21 was agreed to by defence by December 22. I agree that defence delay is as the defence acknowledged, a total of 49 days from November 2 to December 21, 2021.

5. The Crown’s Fifth Period of Alleged Defence Delay

[49] The fifth period of defence delay alleged by the Crown was from the JPT on January 19, 2022, to the defence’s request for court dates on April 21, 2022, 92 days. The Crown submitted that, after the completion of the JPT process on January 19, 2022, the defence did not seek trial dates until April 21, 2022. The defence attributes this delay to contemplation of bringing extensive third-party records applications. While defence may be entitled to take some time to consider those applications, it had had the necessary foundation for said applications since at least July 9, 2021, the Crown said.

[50] The endorsements on the Indictment show the matter being adjourned from the JPT on January 19, 2022, to the February 11, 2022, assignment court to set a date for pre-trial applications and a jury trial. It was then adjourned repeatedly to later assignment courts on March 11, April 8, and finally May 13, 2022, all at the request of the defence. On May 13, a date was set for a pre-trial motion.

[51] The defence emailed the trial coordinator on April 21 and May 6, 2022, seeking pre-trial motion and trial dates. The trial coordinator responded on May 11, 2022, with dates. The earliest available date was accepted that day, to be confirmed at the May 13, 2022, assignment court.

[52] The defence acknowledges that there was defence delay in three timeframes within the period the Crown alleges: February 11 to March 11, 2022: 28 days March 11 to April 8, 2022: 28 days April 8 to April 21, 2022: 13 days for a total of 69 days. The explanation was that the defence was still deciding whether to bring onerous and extensive pre-trial motions.

[53] The difference in the two positions relates to the period from the January 19 JPT to the February 11 assignment court, a period of 23 days.

[54] The Crown submitted that defence delay started on January 19 because the Crown was ready to schedule dates. The defence submitted that the Crown is incorrect in suggesting that the clock is ticking on defence delay as soon as the JPT is over as there is no authority for that.

[55] I note that there is no indication that the Crown sought dates from the trial coordinator after the JPT. Only the defence did.

[56] I also note that, in submissions regarding delay following the July, 2021 preliminary inquiry, the Crown said it could not hold the defence to a standard of immediacy in contacting the trial coordinator. Here, however, the Crown appears to do so.

[57] Further, I note that both sides agree that this fifth period of alleged defence delay ended April 21, when the defence sought dates from the trial coordinator.

[58] Taking these points in account, I would pick a date seven days after the JPT by which the defence could have been expected to contact the trial coordinator for dates and start the defence delay calculation from then. Therefore, in addition to the 69 days of defence delay acknowledged by the defence, I would add 16 days from January 26 to February 11, for a total defence delay in the period from the JPT of January 19 to April 21, 2022, of 85 days.

6. Summary of Defence Delay

[59] The defence acknowledges in its Jordan Table and in the calculation in its factum defence delay of 118 days. However, in its Notice of Application and in the narrative in the factum it refers to 129 days of defence delay. I do not see where the 129-day figure comes from. It appears to be an error. I will use the 118-day figure.

[60] The total delay is 1,139 days. The defence has acknowledged defence delay of 118 days. I have found an additional 16 days. The total defence delay is 134 days. The net delay is, therefore, 1005 days or 33 months. That is presumptively unreasonable.

7. Exceptional Circumstances

[61] The onus therefore shifts to the Crown to rebut the presumption of unreasonableness by showing that the delay is reasonable because of the presence of exceptional circumstances, as defined in Jordan. The Crown submitted that any delay above the ceiling is attributable to the COVID-19 backlog. This was on the basis that the pandemic had a holistic or systemic effect on the court system. No particular amount of delay was suggested, except that the amount of delay identified by the defense in this case could be excused by the court.

8. The defense submitted that the Crown could not just point to the pandemic as a discrete event to justify the delay.

9. The pandemic has been recognized by the courts as a “discrete exceptional circumstance” [4].

10. As an aside, I question whether the present case would fall within the Jordan definition of exceptional circumstance. The charges were laid in October, 2020, at which time we were well into the pandemic, the courts had begun to adapt, virtual proceedings for various types of matters were common, and even in-person proceedings, including jury trials, were resuming to some extent [5]. This issue was not argued fully before me, but defense counsel did submit that the pandemic was no longer an unforeseen event when this case arose. Even if it was unforeseeable, the Crown must prove that the delay was caused discretely by the pandemic [6]. Then, the Crown would have to show that it met its obligations to mitigate the delay. The defense pointed to the decision of Cornell J. in R. v. C.P. [7] for its discussion of systemic failures which have contributed to delay in the northeast region to show that the pandemic is not the discrete cause of all delay.

11. The Crown proffered no evidence of a specific link between any delay in this case and the pandemic, and I see none.

12. I see no evidence that the Crown took steps to avoid and address the delay before it exceeded the ceiling. A review of the transcripts of various court dates in this matter revealed no mention of a concern for delay. The trial was set for the November 14, 2023 list on November 25, 2022, when the s. 11(b) issue would have been obvious.

13. In the circumstances, I find that the Crown has not rebutted the presumption of unreasonable delay. Therefore, the proceedings are stayed.

Wilcox, J. Date: November 24, 2023

Footnotes

[1] 2016 ONCA 704 [2] 2009 SCC 26, para. 23 [3] Jordan, para. 179 [4] See, for example, R. v. Agpoon, para. 19. [5] See, for example, R. v. Agpoon regarding the situation across Ontario and R. v. Valiquette, 2022 ONSC 1271, paras. 35-38 and R. v. C.P., 2022 ONSC 4821, paras. 42-48 regarding the situation in the northeast region where the case at bar is. [6] See, for example, R. v. Greenridge, 2021 ONCJ 57 at paras. 26 and 30. [7] 2022 ONSC 4821