R. v. Vannoordennen, 2023 ONSC 6848

Court File and Parties

Court File No.: CR-22-5333 Date: 2023-12-04 Ontario Superior Court of Justice

Between:

His Majesty the King

– and –

John Vannoordennen, Defendant

Counsel:

S. Dundon, for the Crown

A. Jervis, for the Defendant

Heard: October 17, 2023

Ruling on s. 11(b) Charter application Justice H.A. Rady

Introduction

1The applicant alleges that his right to be tried within a reasonable time pursuant to s. 11(b) of the Charter of Rights and Freedoms has been violated. He seeks a stay of the proceeding pursuant to s. 24(1) of the Charter. He has been convicted following trial of a number of sexual offences involving two complainants, including sexual interference, sexual assault, invitation to sexual touching and sexual exploitation. In addition, he was convicted of making child pornography.

2The applicant was initially arrested and charged on May 23, 2018, which is also the date the original information was sworn.

3The applicant was subsequently charged with further offences involving a second complainant. A separate information in respect of those charges was sworn on July 4, 2018. On August 2, 2018, a replacement information was sworn, replacing the two earlier informations. The applicant had retained Ms. Joy to act on his behalf by that time.

4The trial commenced on April 17, 2023 and the evidence was completed on April 25, 2023.

5The Crown made oral submissions in closing. The defence asked permission to submit written closing submissions rather than oral submissions, and a timetable for their delivery was set. The Crown was given the opportunity to deliver written reply submissions but found it unnecessary to do so. The applicant takes no issue with any delay from the conclusion of evidence until the delivery of judgment on June 22, 2023.

The Parties’ Positions

6The Crown and defence agree that the time from the applicant’s arrest to the conclusion of evidence is four years, eleven months and two days (1798 days ÷ 30.417 = 59.11 months as per R. v. Shaikh, 2019 ONCA 895) which is well beyond the presumptive 30 month ceiling set in R. v. Jordan, 2016 SCC 27.

7The Crown opposes the application. It submits that after deducting defence delay and additional delay caused by discrete or exceptional circumstances, the case was completed in a timely way and below the presumptive ceiling.

8The defence is prepared to acknowledge that 88 days are attributable to defence delay and a further 140 days to the COVID-19 pandemic, for a total of 7.5 months (228 days) which leaves a net delay still in excess of the presumptive Jordan ceiling.

9The Crown submits that defence delay is 16.3 months, and exceptional or discrete delay is 19.5 months for a total of 35.8 months. When deducted from the total delay, the net delay is 23.31 months and comfortably under the presumptive ceiling.

Analytical Framework

10Rex v. Zahor, 2022 ONCA 449 at paras. 60-76 sets out the following analytical steps to be taken in evaluating an application such as this:

• Step 1: Calculate the total delay from the laying of the charge to the actual or anticipated end of the trial.
• Step 2: Calculate the net delay by subtracting defence delay from total delay. There are two types of defence delay:
  • Step 2(a): Subtract delay that is waived by the defence.
  • Step 2(b): Subtract delay that lies at the feet of the defence, that is delay that is caused solely or directly by the defence’s conduct.
• Step 3: Compare the net delay to the applicable presumptive ceiling. If the net delay is above the ceiling, the delay is presumptively unreasonable, and the Crown bears the burden of rebutting this presumption by demonstrating exceptional circumstances.
• Step 4: Consider exceptional circumstances. These are circumstances beyond the Crown’s control that are reasonably unforeseen or reasonably unavoidable.
  • Step 4(a): Consider discrete exceptional circumstances, which are unexpected and uncontrollable happenings which lead to delay.
  • Step 4(b): Consider complexity.
• Step 5: Consider transitional exceptional circumstances for cases that were in the system prior to the decision in Jordan.

11If the total delay from the charge to the anticipated end of the trial, minus defence delay exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances, whether it be discrete exceptional circumstances or complexity. If they are unable to do so, the delay will be considered unreasonable, and a stay will follow (Jordan at para. 47).

General Principles

12The participants in the criminal justice system have a collective responsibility to prevent unnecessary delay. Defence counsel are expected “to actively advance their clients’ right to a trial within a reasonable time, collaborate with Crown counsel when appropriate and use court time efficiently”: R. v. Mallozzi, 2017 ONCA 633.

13As Zahor instructs, periods of defence delay must be deducted. It has two components, delay that is waived and delay caused by defence conduct. Waiver of delay can be explicit or implicit, but 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: R. v. Jordan, supra at para. 61; R. v. Cody, 2017 SCC 31 at para. 27; and R. v. Coulter, 2016 ONCA 704 at para. 43.

14The Court in Jordan discusses defence delay at paras. 64-65:

…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…Beyond defence unavailability, it will of course be open to trial judges to find that other defence actions or conduct have caused delay…

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…

15R. v. Cody, supra states at paras. 32-33:

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. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.

As well, inaction may amount to defence conduct that is not legitimate…Illegitimacy may extend to omissions as well as acts… Accused persons must bear in mind that a corollary of the s. 11(b) right “to be tried within a reasonable time” is the responsibility to avoid causing unreasonable delay…

16Complete disclosure is not a prerequisite to scheduling a judicial pre-trial or preliminary hearing. See R. v. Gandhi, 2016 ONSC 5612 at paras. 35-36; R. v. Shaikh, supra, and R. v. Elliot, [2019] O.J. No. 2868 at para. 58, affirmed 2021 ONCA 909.

17An accused has a duty to raise an infringement of their right to be tried within a reasonable time in a timely manner. The Supreme Court has noted that “lateness in bringing a s. 11(b) motion for a stay of proceedings nonetheless remains an important factor in determining whether an accused has waived delay. See R. v. J.F., 2022 SCC 17 at paras. 49 and 52.

18The Court of Appeal’s decision in R. v. Agpoon, 2023 ONCA 449 has laid to rest any question of how to characterize the system-wide impact of the COVID-19 pandemic. It is a discrete exceptional circumstance, which caused significant “disruptions to the operation of criminal courts in Ontario…” (para 27).

19The Court in Agpoon grouped the disruptions as follows:

1. Province-wide court closures.
2. Jury Blackout periods.
3. Local Court closures and restrictions.
4. Local availability of court facilities.
5. Priorities in addressing the backlog.

20The Court made it clear that it was “not open to the defence to second-guess the policy decisions made that limited access to courts under the foregoing categories” (at para. 34).

21Finally, the Court emphasized the admonition in Jordan that application judges ought not engage in “complicated micro-counting” or “parse each day or month… [but] should step back from the minutiae and adopt a bird’s-eye view of the case”: Agpoon at para. 22 and Jordan at para. 91. This is particularly important when evaluating the impact of the pandemic on court scheduling. It is difficult, if not impossible, to determine precisely how much delay is attributable to it. In other words, it is not readily quantifiable.

22What is clear is that the closure of the Courts, the suspension of preliminary hearings and trials and the limited and gradual re-opening of the Courts created a backlog of cases moving through the system.

23Justice Dunphy characterized the backlog in this way in R. v. Titus, 2022 ONSC 3484 at paras. 17-18:

The current backlog in cases awaiting a hearing cannot in any way be attributed to a re-emerging culture of complacency that Jordan directed all justice system participants to work diligently to eliminate. The backlog is the mathematical result of the cascading systemic impact of cancelled scheduled hearing dates and deferred scheduling of future hearing dates occurring during the periods of total physical closures of court operations plus other periods of only partial re-opening where fewer hearings than normal were able to be processed. The resulting backlog is in the process of being worked through but, like the proverbial pig in the python, it will take some time before it can be considered to be fully digested.

The simple fact of the matter is that the justice system cannot expand and contract at will and without limit to accommodate every contingency. There has never been an emergency in the history of the administration of justice in this country that has resulted in this degree of court closures lasting for anything close to this amount of time. Ever.

24A similar comment was made in R. v. Simmons, 2020 ONSC 7209. The Court made this observation:

[70] …the impact of the COVID-19 pandemic on the criminal justice system is not limited to those periods of time when the court had to adjourn scheduled cases or when jury trials were suspended. It has had numerous and far-reaching impacts upon how we do things, and, on the people, who do them. Not the least has been the necessity to take measures to protect the health and safety of justice participants and the public. The way trials are conducted needed to be transformed. Physical courtrooms had to be changed. Some trials are now conducted virtually. This in turn, has had a significant impact on scheduling. Scheduling new trials and rescheduling existing trials have become more complex and difficult. A backlog of cases has ensured. A lack of resources was not the cause. Rather, COVID-19 was. It has had a system-wide impact of unprecedented proportions, never seen before in our lifetime.

[72] Similarly, the discrete exceptional event caused by the COVID-19 public health crisis does not end the moment the courts are again hearing jury trials. The trial takes place in the reality of the courthouse the case is being heard in. That reality must be recognized when calculating the appropriate time period and in assessing what the Crown and the court can reasonably do in mitigating the delay.

Analysis

25With that background, I turn to the specific timeline in this case.

Step 1: Calculate the total delay

26As already noted, the Crown and defence agree that the total delay is 1798 days or 59.11 months.

Step 2: Calculate the net delay

Scheduling the Judicial Pre-Trial in the Ontario Court of Justice

27As I understand it, the Crown argues that there are three periods of time that warrant a deduction for defence delay: the time to schedule a judicial pre-trial in the Ontario Court of Justice; the period of time to the scheduling of a Preliminary Hearing; and the time to the scheduling and conduct of the trial in the Superior Court of Justice.

28The parties are agreed that the time between May 23, 2018 and September 13, 2018 is properly characterized as general delay. During that time, the Crown provided disclosure and on June 14, 2018, defence counsel acknowledged receipt and requested a three week adjournment to review it.

29In the meantime, the accused was charged with additional offences involving a second complainant. A replacement information was sworn on August 1, 2018. The case was spoken to on August 2, 2018 when a fresh information was filed replacing one information, which was withdrawn. The case returned on August 23, 2018 when the other information was withdrawn. On both attendances, the agent for Ms. Joy requested a three week adjournment to review disclosure and obtain instructions. The same request was made on September 13, 2018.

30On October 4, 2018, Ms. Joy’s agent requested a further three week adjournment to obtain instructions. The Court confirmed that there was now only one information. The matter was back up on October 25, 2018 and November 1, 2018 when counsel again asked whether there were two informations before the Court. A judicial pre-trial was scheduled for December 19, 2018.

31In my view, the period between September 13, 2018 to November 1, 2018 is attributable to defence delay. Disclosure sufficient to permit date setting had been made by June 14, 2018. Essentially, the three attendances on October 4, October 25 and November 1, 2018 were made necessary, first because of the defence’s persistent confusion about whether there were two informations before the court, which should have been clear by October 4, 2018. Second, on those occasions, the defence asked for more time to review disclosure and obtain instructions. By then, the defence had been afforded twelve weeks to review disclosure and obtain instructions, which it seems to me was more than ample. Accordingly, 49 days of defence delay resulted.

Scheduling The Preliminary Hearing

32The pre-trial proceeded as scheduled on December 19, 2018. The Crown says it was ready to set a preliminary hearing date immediately thereafter. However, the Crown acknowledges that defence counsel required a reasonable time to discuss the results of the pre-trial with her client. Further, Courts were not operational on December 25, 26, 2018 and January 1, 2019.

33Nevertheless, there were two more unfruitful attendances on January 11, 2019 and January 18, 2019 to set a date for a preliminary hearing. A date was not set on January 11, 2019 because the date had been mis-diarized by defence counsel. On the second date, defence counsel’s confusion respecting the number of informations before the Court persisted. The case was adjourned to January 25, 2019. A further 14 days of defence delay resulted.

34Finally, on January 25, 2019, a preliminary hearing date was set for December 10, 2019 for four hours. The Court offered earlier dates (15 dates between October 1, 2019 and December 6, 2019) which acceptable to the Crown but were declined by the defence due to Ms. Joy’s schedule.

35Ms. Joy’s unavailability becomes a recurrent theme as the case moved through the system. How does the Court apportion delay in cases where defence counsel’s busy court schedule impedes the ability to set early dates?

36In R. v. Robert, 2018 ONSC 545, Justice Thomas made this observation at para. 84:

A debate has arisen as to whether there is a distinction between the defence not being ready to proceed, which relates to preparedness, and scheduled unavailability due to conflicts: see R. v. Albinowski, 2017 ONSC 2260, at para. 15. The concern is whether an adjournment due to already booked counsel is really defence delay. In my view, that decision must be fact driven in the context of each individual case. However, surely an accused would be unable to obtain a stay by choosing to retain the busiest counsel in any given location. Counsel of choice cannot immediately trump other constitutional considerations.

37On the other hand, he acknowledged that the Court cannot require defence counsel to hold themselves “in a state of perpetual availability”, citing R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3 at para. 23.

38In R. v. Albinowski, 2018 ONCA 1084, the Court wrote at paras. 33 and 113:

Defence counsel rejected multiple dates offered for the scheduling of the judicial pre-trials and the preliminary inquiry. The reason for their unavailability was clear: they were engaged with previously scheduled professional commitments. [Defence counsel’s] unavailability was not related to “defence actions legitimately taken to respond to the charges”, such as “preparation time” and “defence applications and requests that are not frivolous”…

… In Godin, the court held that it was an error attribute delay to the defence as soon as a single available date is offered to defence counsel and not accepted. The court noted that s. 11(b) requires reasonable availability and cooperation, but does not require defence counsel to “hold themselves in a state of perpetual availability.” In the present case, the delay in question did not arise from Crown unavailability on a single date, but from Crown unavailability on any of the dates offered in a five-month period.

39In R. v. Ameerullah, 2019 ONSC 4537, Justice Woollcombe helpfully summarized the Court’s approach to similar situations at paras. 28-29:

To summarize, the appellate authorities, including Mallozzi, Albinowski and R. v. Picard, 2017 ONCA 692; leave to appeal refused, [2018] S.C.C.A. No. 135 (S.C.C.) make clear that s. 11(b) requires reasonable availability, flexibility and some level of cooperation. Clearly, when a single date or block of time is offered to the defence, and counsel is unavailable on that date, not all of the delay to the next available date is necessarily defence delay. Rather than taking this sort of “categorical” approach, there needs to be consideration of the particular circumstances of a case, bearing in mind the Jordan call for a change in direction and break in the culture of complacency.

However, when the Crown is available on numerous dates that are offered by the court, and the defence counsel is repeatedly unavailable for any dates over a reasonable period, the delay that results is defence delay. The justification for this approach is that it is defence counsel’s lack of availability that results in the matter being set further in the future than would otherwise be necessary.

40Applying these principles to this case, it is significant that Ms. Joy’s agent did not offer alternate dates for hearing. The Court offered 15 dates acceptable to the Crown but all rejected by the defence. Accordingly, the period from October 1, 2019 to December 10, 2019 is attributable to defence delay, totalling 70 days.

41Between October 4, 2019 and December 10, 2019, there were five further court appearances and the time estimate for the preliminary hearing was adjusted upward to one and possibly two days. There was also discussion of a forensic report that the Crown was awaiting related to the child pornography offences.

42On November 21, 2019, Ms. Joy’s agent confirmed receipt of the forensic report and said that they wished to have it reviewed by their expert before confirming the preliminary hearing. On November 26, 2019, the parties returned to Court and confirmed that they were ready to proceed with the preliminary hearing on December 10, 2019. No additional delay accumulated during that time, the preliminary hearing date having been scheduled.

43Unfortunately, the preliminary hearing did not proceed as anticipated. The defence submits that the case was not reached that day and the adjournment was therefore necessary. In contrast, the Crown submits that Ms. Joy raised for the first time that morning a number of disclosure issues and she requested an adjournment. The Crown opposed the request and was ready to proceed that day.

44The transcript of the attendance reveals the following:

• there were three trials and three preliminary hearings on the docket;
• the Crown indicated that he intended to proceed with the applicant’s case first because it was the most dated and both complainants were present and ready to testify;
• Ms. Joy was not prepared to proceed as the Crown proposed, and she raised two concerns: the investigating officer’s notes received that day were heavily redacted from her perspective and she and her client had not been able to view the images the Crown alleged constituted child pornography;
• in response to the Court’s inquiry, Ms. Joy acknowledged that she had not taken steps to arrange a time to view the images.

45The presiding justice admonished her that disclosure issues should not be raised on the day of hearing. The Crown was prepared and still wished to proceed. However, the Court concluded that an adjournment was necessary in order to ensure adequate time was available to complete the hearing in one day, rather than spread over two or more days. The presiding judge also expressed concern that if the preliminary hearing commenced, she would become seized, potentially creating further scheduling difficulties.

46Ultimately, a new date of May 29, 2020 was scheduled. The defence initially declined the date but the Crown expressed concern about the next date being offered - July 14, 2020 - was too late. Clearly, the Crown was cognizant of the potential for a Jordan issue and was attempting to mitigate delay.

47The Crown submits that the delay from December 10, 2019 to May 29, 2020 (171 days) is defence delay. The defence disagrees.

48I agree with the Crown. The adjournment of the preliminary hearing was clearly caused by the defence raising disclosure issues at the eleventh hour when they should have been dealt with much earlier. Further, counsel had not made arrangements to obtain the disclosure thought necessary to conduct the preliminary hearing. Consequently, defence counsel bears responsibility for the delay.

49It is also very significant that defence counsel confirmed their readiness for hearing on November 26, 2019. The clear implication is that any outstanding issues had been resolved, the client’s instructions were in hand and there was no impediment to proceeding.

50In early 2020, the pandemic intervened. The May 29, 2020 preliminary hearing was adjourned to October 16, 2020 and then again to April 23, 2021. I will discuss the impact of the pandemic and the delay it caused below at Step Four.

51Returning then to Step Two, the preliminary hearing began on April 23, 2021 as scheduled but it was not completed. One or two additional days were estimated to be necessary.

52At the beginning of the hearing, the Crown advised the Court that Counts 4, 5, 8 12 and 13 were being withdrawn in order to simplify the proceeding. At the end of the day, the Crown asked the Court to have the case returned at an early date since it was a continuation. The Court declined because of COVID restrictions limiting the number of persons in the courthouse.

53On May 6, 2021, the Court offered seven dates for a continuation, the earliest being June 24, 2021, which was acceptable to the Crown. The defence was said to be only available on August 24, 2021, at the earliest.

54On May 13, 2021, the continuation date was confirmed for August 24, 2021 notwithstanding that police witnesses would not be available. However, the case was adjourned to June 18, 2021 in order to determine if an earlier date could be secured. The Crown applied to have the matter brought forward to May 19, 2021 in order to confirm a continuation date of August 3, 2021. Ms. Joy’s schedule must have opened since she had previously been unavailable prior to August 24, 2021. Clearly, the Crown was again attempting to minimize the delay. In my view, the period between June 24, 2021 (the earliest hearing date available) and August 3, 2021 (40 days) must be attributed to the defence.

55Unfortunately, on August 3, 2021 the assigned Crown was ill and the preliminary hearing could not continue. However, it did resume on August 24, 2021. It was then adjourned to December 15, 2021 for completion.

56On December 15, 2021, the Crown sought to stay Count #3, the possession of child pornography charge in order to avoid the necessity of another day of hearing when the Crown’s forensic expert would be required to give evidence related to that Count. After some discussion, the Count was withdrawn and the accused was committed on Counts 1, 2, 7, 9, 10, 11 and 14. Clearly, the Crown was mindful of the Jordan clock and wished to ensure the case was committed without further delay. The impact of the Crown’s illness will be addressed later.

Scheduling the Trial

57The case was remitted to Assignment Court in the Superior Court of Justice on January 14, 2022. A pre-trial was set for February 9, 2022, which proceeded as scheduled with Justice Heeney. A discussion of trial issues and pre-trial applications ensued. The defence indicated that a number of applications were contemplated including a voluntariness voir dire; s. 10(a) and (b) Charter challenges; a s. 486.1(2) application; a s. 276 application; and a voir dire respecting the forensic expert’s qualification. It is very significant that the issue of delay or s. 11(b) was not raised by defence counsel.

58I have reviewed Justice Heeney’s Report to Trial Judge. The Jordan date is calculated to be November 21, 2020. On the issue of s. 11(b) status, Justice Heeney explicitly noted that the defence did not intend to bring a stay application.

59The case was spoken to in Assignment Court on February 11, 2022. Ms. Joy’s agent advised that she was not available for trial before April 6, 2023. Ms. Joy’s agent stated:

Any day after the 6th day of April, Your Honour, for Ms. Joy would be available and with that comment knowing that the record will reflect Ms. Joy’s unavailability, her dates were as the Court may have been available up to that point.

60When Justice Pomerance asked the Crown whether setting a trial date no earlier than April 6, 2023, was acceptable, the Crown expressed concern: “these are two young men, complainants and we would hope to have it done earlier obviously for a lot of reasons.” The Crown, who had also conducted the judicial pre-trial on February 9, 2023, went on to confirm that Jordan and the issue of delay was not discussed at the judicial pre-trial “because Ms. Joy wasn’t taking issue with it.”

61Prior to scheduling a trial date, Justice Pomerance asked if there was any merit to canvassing the precise dates that would have been available, noting that “[i]t’s not an 11(b) issue.” It was determined to be unnecessary given what Ms. Joy’s agent represented and the Crown’s recollection of the precise issues raised at the judicial pre-trial:

Ms. Joy, I remember at the judicial pre-trial said that there isn’t an 11(b) issue unless something drastically changes and the drastic change is her not being available for April of 2023. I think that’s all clear on this record so the delay, it really is hers.

62Based on the understanding that there were no s. 11(b) concerns and anything prior to April 6, 2023 was defence delay, a seven day trial was scheduled to begin on April 17, 2023.

63The Crown filed an Affidavit in its responding record. The deponent addresses the issue of the earliest possible date that the trial could have been scheduled had delay been flagged. Another case, a jury trial, was offered trial time in January 2023 with pre-trial motion slots available as early as October 17, 2022 to as late as November 18, 2022.

64The Crown fairly acknowledges that it is not a certainty that the applicant’s trial would have certainly proceeded on October 17, 2022. It suggests that it is a logical premise, however. I agree. In the circumstances, it is the best estimate available, bearing in mind that the Court did not canvas available dates because of defence counsel’s representation that delay was not an issue.

65In my view, the period from February 11, 2022 to October 17, 2022 is general delay. The period between October 17, 2022 to April 6, 2023 is defence delay totalling 171 days.

66On October 26, 2022, Ms. Joy was removed from the record at the applicant’s request. He signalled his intention to bring a s. 11(b) application. Ultimately, Ms. Jervis was appointed s. 486(3) counsel and she assumed the applicant’s defence in that capacity. The trial proceeded as scheduled. The delay from the conclusion of the evidence to the delivery of judgment was expressly waived.

Step Three: Compare the Net Delay to the Presumptive Ceiling

67To summarize, the delay attributable to the defence totals 515 days or 16.9 months. When subtracted from the total delay, 1283 days or 42.18 months remain, well above the Jordan presumptive ceiling. Of course, the analysis does not conclude there. The impact of the pandemic and any other discrete exceptional circumstances is necessary.

Step Four: Consider Exceptional Circumstances

68On May 29, 2020, the preliminary hearing was adjourned to August 7, 2020 indisputably because of the pandemic. The Crown submits that a further adjournment to October 16, 2020 was required, again due to COVID-19 - cumulatively 140 days of COVID-19 delay. On October 16, 2020, a new preliminary hearing date was set for April 23, 2021, 189 days which the Crown also attributes to COVID-19 delay. The defence does not.

69As already noted, there can be no question that the suspension of court operations and the gradual reopening of the Courts created a significant backlog of cases in the system.

70In order to recognize the ripple or domino effect of the pandemic and the closure of the Courts, it is helpful to consider:

• the courthouse where the trial is being conducted;
• whether the case is tried with a jury or judge alone;
• the length of the trial;
• the timing of setting the trial; and
• the length of time before the Court can accommodate the trial.

See R. v. Malhi, 2023 ONSC 7 at paras. 23-28.

71I would add to this list a consideration of whether the accused was in custody because priority was given to those cases, which then had an impact on scheduling out of custody matters.

72The recent decision of Carroccia J. provides a comprehensive summary of the impact of COVID-19 on the Ontario Court of Justice and the Superior Court, both generally and in Windsor. She made the following observations:

• In early March 2020, the COVID-19 pandemic was impacting cases that were already in the system. The Ontario Court of Justice announced on March 28, 2020, in the Notice entitled “COVID-19 Pandemic Scheduling of Criminal Matters in the Ontario Court of Justice (Revised March 28, 2020)” that all criminal trials and Preliminary Inquiries scheduled between March 20, 2020 and May 29, 2020 were suspended (para. 46).
• On May 4, 2020, the Ontario Court of Justice announced that no trials or Preliminary Inquiries would be conducted until at least July 6, 2020, at the earliest, but Judicial Pre-trials would continue to be conducted. On July 6, 2020, the Ontario Court of Justice announced that they would begin to schedule trials and Preliminary Inquiries with priority being given to continuations and matters previously scheduled for hearing when the courts shut down.
• The Notice issued on July 6, 2020, by the Ontario Court of Justice indicated that while trials/Preliminary Inquiries could be set as of that date, priority would be given to matters being set for continuation and those that were previously scheduled for hearing but could not proceed due to the shutdown of the courts. Those dates began to be scheduled commencing July 21, 2020. As Carroccia J. noted, “[w]hile this case was not ready to schedule a Preliminary Inquiry as of that date, there is no doubt that there was a “cascading” effect in that other cases had to be scheduled which were already in the system resulting in availability of dates for this matter being pushed back”. Justice Carroccia found “[w]hile not specifically noted in the record, some delay was likely caused by the need to reschedule matters that had previously been scheduled for trial or Preliminary Inquiry and had been cancelled” when considering the delay in scheduling the preliminary inquiry (paras. 71-72).

73I agree with the Crown’s submission. The defence’s estimate of the delay caused by the pandemic does not adequately account for the scheduling challenges caused by the backlog. The applicant was not in custody so his case would not be given the same priority as in custody matters. Moreover, the defence did not flag delay as a concern at any time during the multiple attendances when the case was spoken to.

74I pause here to acknowledge that the waiver of delay must be clear and unequivocal, with knowledge of one’s rights, and the impact of waiver on those rights. There is no evidence that the applicant took any issue with delay throughout the history of the case, at least until after Ms. Joy was removed from the record. Ms. Joy is an experienced counsel and the Court is entitled to assume that she was acting in accordance with her instructions. The Court was also entitled to rely upon her representation during the judicial pre-trial that no s. 11(b) application would be brought.

75I also note that the Court file contains a copy of a letter dated August 29, 2022 written by the applicant to Ms. Joy in which he terminated her retainer. He wrote in part:

I am writing you today on August 29, 2022, to inform you that I would like to Discharge you of your responsibilities to me for my current criminal case before the courts in which I was charge by Windsor Police Services back in May 2018. I would thank you for the work that has been done on my case as outlined in the transcript copies, that I received showing all the dates attended by yourself and your staff who attended courts and video/phone meetings, I thank you for that.

76He raises no complaint about the time it was taking to bring the case to trial but rather expresses appreciation for her work.

77The period between August 24, 2021 and December 15, 2021 is properly characterized as exceptional delay of 113 days due to the Crown’s illness. The unexpected illness of counsel or another participant in the case is an accepted discrete, exceptional circumstance. See R. v. Jordan, supra at para. 72; R. v. Coulter, 2016 ONCA 704 at paras. 82 and 84; R. v. St. Amand, 2017 ONCA 913 at para. 82.

78The illness also had a domino effect, because the August 24, 2021 date would otherwise have been the third and final day of the hearing. Instead, a continuation was required on December 15, 2021. Presumably had the preliminary hearing been concluded on August 24, 2021, it would have moved to the Superior Court when it would have been spoken to at an Assignment Court in the fall of 2021. An earlier trial date would almost certainly have been made available if s. 11(b) had been flagged as an issue.

79In summary, discrete, exceptional circumstances account for a delay of 442 days or 14.5 months.

Step Five: Consider Transitional Exceptional Circumstances for Cases in the System Prior to Jordan

80Step 5 is not applicable to this case.

The Final Calculation

81To summarize, defence delay totals 515 days or 16.9 months. Exceptional circumstances amount to 442 days or 14.5 months. The total delay therefore is 957 days or 31.4 months. Clearly, this exceeds the presumptive Jordan ceiling.

82I would not stay the proceeding, however, for two reasons. First, delay was explicitly waived, albeit not on the record at the judicial pre-trial before Justice Heeney and again in Assignment Court before Justice Pomerance when the trial date was scheduled.

83Second, I remind myself that the Court is not to parse each day or month but rather should take a bird’s eye view. This is particularly important when dealing with the impact of the pandemic on court operations because it is not always readily quantifiable.

84When seen from that elevated perspective, a delay of 1.4 months is not offensive, bearing in mind the marked indifference to delay shown by the defence throughout the life of these proceedings.

85The application is dismissed.

Justice H.A. Rady Released: December 4, 2023