COURT FILE NO.: CR-21-50000353-0000

DATE: 20230131

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Respondent

– and –

ISMAIL ADEN Applicant

A. Bradstreet, for the Respondent

A. Dresser, for the Applicant

HEARD: January 6, 2023

RULING

(Application Pursuant to ss. 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms)

SCHRECK J.:

[1] Ismail Aden is charged with attempted murder, aggravated assault, discharging a firearm and several firearm possession offences, it being alleged that he and his co-accused ambushed a man and shot him several times, causing serious injuries. Mr. Aden’s trial is scheduled to begin on June 19, 2023 and end on July 7, 2023, 39 months and 23 days after he was first charged. He has applied pursuant to ss. 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms for a stay of proceedings on the basis that his right to a trial within a reasonable time has been infringed.

[2] The parties agree that the overall delay in this matter has exceeded the 30-month ceiling established in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. They agree that there have been no exceptional circumstances and that much of the delay is attributable to the Crown because of unjustified delays in disclosure. They disagree about whether any of the delay can be attributed to the defence and, if so, how much.

[3] Three trial dates have been set in this matter. The first, which was scheduled to begin on December 6, 2021, was adjourned because of late disclosure of an extraction of the contents of a phone seized from the applicant. Although the police were in possession of the extraction as early as May 2021, for reasons that have not been explained they did not disclose it to Crown counsel until the end of November, just before the trial was to begin.

[4] The second trial date was scheduled to begin on August 2, 2022 and end on August 13, 2022. Although defence counsel had repeatedly requested disclosure of all of the Informations to Obtain (“ITO”) in relation to any search warrants, for reasons that are again unexplained, the ITO for the phone was not disclosed. Defence counsel did not realize this until the end of January 2022, at which point she made a specific request for it. It was not disclosed until three months later. Once it was, defence counsel decided to bring an application to challenge the warrant. This, and the applicant’s decision to re-elect his mode of trial, led to an adjournment of the second trial date.

[5] The outcome of this application turns on the reasons for the second adjournment. The Crown accepts responsibility for the delay up to that point, and does not suggest that the re-election or the challenge to the warrant were not legitimate defence tactics. However, the respondent takes the position that the defence could have and should have been able to prepare, schedule and argue the new application during the three-month period between the disclosure of the ITO and the commencement of the trial and its failure to do so means that the delay between the second and third trials, a period of 10 months and 24 days, is entirely the responsibility of the defence.[^1] Deducting this period would bring the net delay to 28 months and 28 days, which is below the ceiling by one month and two days. The applicant submits that there was no defence delay in this case.

[6] For the reasons that follow, I have concluded that the delay in this case was unreasonable. The ITO was disclosed over 24 months after the applicant was charged. By then, the trial was scheduled to end approximately a month before the ceiling because the first trial dates had been adjourned due to the Crown’s failure to disclose the phone extraction until six months after it was available. In these circumstances, it was unreasonable to expect the defence to adapt to the late disclosure in less than three months and the subsequent delay is not attributable to the defence. There has been a clear violation of s. 11(b) of the Charter. The proceedings must be stayed.

I. EVIDENCE

A. The Allegations and the Charges

[7] On March 13, 2020, a man coming home from work was ambushed by two masked men who emerged from a parked car near his home. They shot at him numerous times, causing serious and life-threatening injuries. The police located several shell casings at the scene and seized security video showing one of the shooters exiting the vehicle.

[8] Two days later, on March 15, 2020, the applicant was arrested for a bail violation. He was found to be in possession of a loaded handgun that was later determined to be the one used in the shooting. He was also in possession of a cell phone which the police seized. He was initially charged with several firearms offences and then charged with attempted murder a short while later. A second person, Kaynadid Abshir, is co-accused with the applicant.[^2]

B. Chronology

(i) Bail Hearing

[9] The applicant first appeared in bail court on the day of his arrest. He made several subsequent appearances over the following days and eventually scheduled a bail hearing for April 3, 2020. The hearing took place and judgment was reserved until April 8, 2020, at which time the applicant was detained. On April 7, 2020, he was charged with additional counts related to the shooting on March 13, 2020.

[10] The applicant next appeared in court on April 9, 2020, at which time his matter was adjourned for 10 weeks so that disclosure could be provided.

(ii) Initial Disclosure Requests and Responses to Them

[11] On May 29, 2020, the applicant retained counsel who wrote to the Crown on that date inquiring whether any disclosure was available. On June 2, 2020, she wrote to the Crown again requesting “initial and any further disclosure” and expressed the hope that priority be given to her request because the applicant was in custody. Some disclosure, including police notes, was provided on June 5, 2020.

[12] On June 7, 2020, defence counsel wrote to the Crown requesting “all outstanding disclosure.” The request enumerated a number of specific items, including “All search warrants and production orders, granted or denied, in this investigation; and … All ITOs for any search warrants or production orders sought.” Some disclosure was provided on June 9, 2020, but it did not include any warrant-related material. The applicant’s matter was adjourned for a further 10 weeks on June 12, 2020.

[13] The applicant’s counsel wrote to the Crown on June 17, 2020 requesting certain specific disclosure items and repeating her request for all search warrants and related ITOs. Further disclosure was provided on July 13 and 15, 2020, but did not include any search warrant material.

[14] On August 6, 2020, counsel for the applicant sent an e-mail to Crown counsel which stated:

I am hoping we can have a chat to talk about the important disclosure that is missing in this case so some follow-up can be done. Mr. Aden is in custody on these charges so trying to move it along.

Crown counsel responded on the same day:

Yes, [counsel for the co-accused] has also been quite anxious to get disclosure in this matter, as am I. Our OIC recently returned from vacation and I understand that she is acting diligently to get disclosure out to us asap and upon receipt we will set up a JPT. My apologies for the delay.

[15] At the applicant’s next court appearance on August 21, 2020, the court was advised that disclosure, including video surveillance of the shooting, remained outstanding and that the Crown was following up with the police with respect to outstanding disclosure. The matter was adjourned for four weeks.

[16] Further disclosure, including an audio statement from the victim of the shooting, was provided on September 2, 2020. Another disclosure package containing the notes of a police officer was provided on September 23, 2020. On that date, counsel for the applicant sent an e-mail to the Crown’s office asking when the surveillance video would be provided. She received a response from a disclosure clerk stating: “I have put in another request for it but I can’t say for sure how long it will take. Sorry.” At the next court appearance on September 25, 2020, the matter was adjourned to October 22, 2020.

(iii) The Judicial Pre-Trial in the Ontario Court of Justice

[17] The video surveillance and other items were disclosed on October 5, 2020. Further disclosure was received on October 10 and 20, 2020. At the next court appearance on October 22, 2020, the matter was adjourned to November 26, 2020 to allow counsel to review the new disclosure and arrange a judicial pre-trial (“JPT”). The JPT was scheduled for November 12, 2020.

[18] On October 23, 2020, Crown counsel sent an e-mail to the applicant’s counsel stating that he was “going to get the ITO unsealed on this case.” On October 25, 2020, counsel for the applicant sent another disclosure request to the Crown seeking a number of items, including any search warrants and ITOs.

[19] Further disclosure, including the notes of the officer-in-charge (“OIC”), Det. Chalmers, was provided on November 10, 2020. The following day, counsel for the co-accused advised the Crown that the notes appeared to contain information that might identify a confidential source. Crown counsel asked defence counsel to immediately delete the notes and indicated that a new and redacted version would be provided. A redacted version of the notes would ultimately not be provided until March 2021.

[20] A JPT took place on November 24, 2020. The same day, counsel for the applicant sent an e-mail to the Crown requesting outstanding disclosure, including search warrant materials. She also sent an e-mail to the trial co-ordinator seeking to schedule a date for the preliminary inquiry.

[21] On the same day, counsel for the applicant e-mailed Crown counsel and advised him that she had not had a reply from the trial co-ordinator and had since been advised that preliminary inquiries are to be set during conference calls between counsel and the trial co-ordinator. Such a conference call was then arranged to take place on December 2, 2020. The matter was accordingly adjourned to December 3, 2020 at the next court appearance on November 26, 2020.

[22] During the December 2, 2020 conference call with the trial co-ordinator, the court first offered January 27 to 29, 2021. The Crown was available but counsel for the applicant was not. For March 8 to 12, 2021, the applicant’s counsel was available, but the Crown and co-accused’s counsel were not. For March 15 to 19, 2021, the applicant’s counsel and the Crown were available, but the co-accused’s counsel was not. For March 29 to April 1, 2021, the applicant’s counsel was available, but the Crown and co-accused’s counsel were not. For April 6 to 9, 2021, both defence counsel were available, but the Crown was not. All parties were available for April 21 to 23, 2021 and the preliminary inquiry was accordingly set for those dates.[^3]

(iv) Disclosure Requests and Responses Leading Up to the Preliminary Inquiry

[23] The matter was adjourned a number of times between December 3, 2020 and January 21, 2021, at which time the matter was adjourned to the preliminary inquiry confirmation date of February 25, 2021.

[24] On the confirmation date, the applicant’s counsel sent an e-mail to the Crown indicating that she was prepared to confirm the preliminary inquiry dates but requesting that certain specific outstanding disclosure items be provided, including search warrant materials. Crown counsel responded and said, “I will request (or re-request) all of the below right now.” The preliminary inquiry dates were confirmed in court. The applicant’s counsel advised the court that some disclosure remained outstanding, but she did not think “that’s going to hold up the preliminary inquiry.”

[25] On March 16, 2021, new Crown counsel was assigned to the case. She wrote to the applicant’s counsel stating:

I know that there still remains some outstanding disclosure, and wanted to assure you that I have followed up with the OIC today (as had [former Crown counsel on the file] on numerous occasions prior to our handoff).

[26] On March 18, 2021, the applicant’s counsel was provided with the ITO for a search warrant of the co-accused’s residence, automobile and phone. Further items were also disclosed at around this time.

[27] On April 16, 2021, the applicant’s counsel wrote to Crown counsel again seeking outstanding disclosure, including the notes of the OIC that had been deleted on November 11, 2020. The request also included the following:

10. All search warrants and production orders granted or denied

11. All ITOs for any search warrants or production orders sought

• I see we have been provided with some of these. However there was a search warrant that was denied for Aden’s phone – I don’t believe I have the denied search warrant, nor the ITO that led to that denial.[^4]

Counsel also asked for confirmation that there had been no results of any search of the applicant’s phone to date. Crown counsel’s response the same day said, “I will follow up re: denied warrant/ITO, otherwise everything else has been provided.” She confirmed that the applicant’s phone “has yet to be cracked.”

(v) The Preliminary Inquiry

[28] On April 19, 2021, Crown counsel sent an e-mail to the applicant’s counsel asking whether there was “anything else outstanding from your perspective?” The applicant’s counsel responded, “Just the rejected warrant/ITO from my perspective but not critical for the preliminary inquiry.”

[29] The preliminary inquiry took place on April 21 to 23, 2021. The presiding judge reserved his decision until May 7, 2021, at which time the applicant was committed for trial.

(vi) Initial Appearances in the Superior Court and the Setting of the First Trial Date

[30] On June 1, 2021, the applicant’s counsel requested disclosure in relation to cell tower location evidence. On June 8, 2021, Crown counsel responded that this disclosure “was on the to do list for the OIC to get done.”

[31] The applicant’s first appearance in the Superior Court of Justice was on June 4, 2021. A JPT was scheduled for June 8, 2021 and the matter was adjourned to June 11, 2021.

[32] The JPT was held on June 8, 2021 before Corrick J., who completed a Form 18A. In the section of the form respecting outstanding disclosure, the only thing indicated was “cell phone tower usage map” which was “currently being prepared.” The form also indicated that the applicant intended to change his election as to the mode of trial to judge alone. The only defence pre-trial application noted is a s. 9 Charter application which could be heard together with the trial in “blended” proceedings. It was estimated that the trial would take seven days.

[33] On June 11, 2021, the matter was adjourned to June 18, 2021 while counsel discussed trial dates. The applicant’s counsel’s first available seven-day block of time was July 19, 2021. The co-accused’s counsel’s was July 26, 2021. Crown counsel’s was December 6, 2021 and the trial was set to begin on that date. A confirmation date of November 5, 2021 was set. On June 18, 2021, the applicant and the co-accused formally elected to have a judge-alone trial.

[34] On November 5, 2021, all counsel confirmed the trial date. The applicant’s counsel advised the court that the s. 9 application would be abandoned.

(vii) The Discreditable Conduct Application

[35] On November 17, 2021, two and a half weeks before the trial was scheduled to begin, Crown counsel advised the applicant’s counsel for the first time that she intended to bring an application to introduce evidence of discreditable conduct on the part of the applicant. The Crown wished to adduce evidence that the applicant had robbed a convenience store in March 2019, apparently to show that he held a firearm with his left hand, as did the person who shot the victim in this case. Counsel explained that she had only just realized the need for the application and that disclosure relating to it would be provided shortly. She indicated that the application would be served and filed by November 22, 2021, two weeks before the beginning of the trial.

[36] The applicant’s counsel responded on the same day and indicated that she would be unable to prepare a response to the Crown’s application the following week because she was involved in a trial. Counsel for all parties agreed that a second JPT was appropriate and scheduled one for November 29, 2021.

[37] The Crown served the applicant’s counsel with a factum on November 21, 2021 and indicated that further material in the form of the video from the convenience store would be sent “over the hub.” The video was provided through the “digital disclosure hub” on November 25, 2021. However, the applicant’s counsel was unable to open it and requested that it be sent by courier.

(viii) Disclosure of the Phone Extraction and Adjournment of the Second Trial Date

[38] On November 26, 2021, the Crown disclosed a portion of data that had been extracted from the applicant’s phone. The entire extraction occupied 1.56 GB. The extraction had been completed and in the possession of the police since May 17, 2021. At the time it was disclosed, Crown counsel sent an e-mail in which she stated: “I appreciate that the timing of this disclosure is unfortunate to say the very least. Certainly the crown would have liked to have this well before now.”

[39] A second JPT before Corrick J. took place on November 29, 2021. All parties agreed that the trial could not proceed. Crown counsel advised that the OIC had been replaced. On December 2, 2021, the trial dates were vacated and the matter was adjourned to December 10, 2021. The matter was further adjourned to January 14, 2022 and then to February 4, 2022 so that counsel could secure new trial dates.

(ix) Scheduling of the Second Trial Date

[40] On December 8, 2021, the applicant’s counsel sent an e-mail to the Crown indicating that in light of the new disclosure, she no longer believed that a seven-day day trial estimate was appropriate and that two weeks were required. She provided dates on which she was available in June, August, October and December 2022. Crown counsel responded that the time estimate should remain the same in order to get an earlier date and that she was available on dates as early as February. She indicated that she would likely abandon her application to adduce evidence of prior discreditable conduct. Counsel agreed on new trial dates in August 2022. On February 4, 2022, the new trial was scheduled to commence on August 2, 2022 and last nine days, ending on August 13, 2022.[^5]

(x) The Request for the ITO in Relation to the Applicant’s Phone

[41] On January 28, 2022, the applicant’s counsel sent an e-mail to Crown counsel stating:

I have been thinking about this case and the new disclosure and went back to review the disclosure I have.

I do not have a warrant to search Aden’s phone. Just the production order for the phone records from the providers, and the ITO for that production order.

I did ask back in October 25, 2020 by letter for any warrants/POs and ITOs in support of those.

1. Can you please provide the warrant and ITO for the phone? I need to make a decision regarding any s. 8 challenge and whether we need a date for that.

On February 3, 2022, she sent an additional request for further disclosure items and also stated, “I had also first requested on April 15, 2021 the denied warrant and accompanying ITO referenced in Chalmer’s notes. I don’t believe I ever received that.” Crown counsel responded the following day, stating, “I have added your requests to our list.”

[42] Further disclosure, but not any search warrant material, was provided on March 15 and 16, 2022.

(xi) The Crown’s Further Pre-Trial Applications

[43] On March 17, 2022, Crown counsel sent an e-mail to the applicant’s counsel advising her that the Crown now wished to adduce expert evidence respecting “coded language” and “gang rivalry,” as well as an expanded application to adduce evidence of prior discreditable conduct. She suggested a further JPT and indicated that she was available to conduct one in the next two weeks. The applicant’s counsel responded that she was involved in a trial until April 8, 2022 and would not have an opportunity to review the new disclosure until it was over. She then wished to have an opportunity to discuss it with her client. She had another trial after that until the end of April, so she suggested a JPT during the week of May 9, 2022. Crown counsel responded, suggesting that “a JPT earlier rather than later is a good idea in case we need to secure any dates for PT motions.” The applicant’s counsel responded that she could not do a JPT earlier “for the reasons stated in my earlier e-mail.”

(xii) Disclosure of the Phone ITO

[44] On March 30, 2022, Crown counsel sent an e-mail to the applicant’s counsel indicating that the ITO for the search of the applicant’s phone was still sealed and that she would be applying to unseal it. On April 11, 2022, the applicant’s counsel wrote inquiring whether the ITO had been unsealed. Crown counsel responded that she would follow up with the OIC. The applicant’s counsel added a request for the Return to Justice in relation to the phone.

[45] When the matter was spoken to in court on April 19, 2022, the court was advised that the ITO and Return to Justice remained outstanding.

[46] On April 22, 2022, the ITO for the phone was disclosed. Further disclosure was received on the days that followed. On April 26, 2022, the applicant’s counsel advised Crown counsel that she had still not received the Return to Justice for the phone. Crown counsel responded that she did not believe disclosure was yet complete. On May 2, 2022, the applicant’s counsel sent an e-mail again asking for the Return to Justice to be provided before the JPT on May 9, 2022. The Crown responded that no Return to Justice for the phone had ever been done and the police were in the process of doing one.

[47] On May 5, 2022, the applicant’s counsel wrote to the Crown seeking additional disclosure related to the phone extraction. She indicated that she would likely bring ss. 7 and 8 Charter applications. She further advised that the applicant may wish to re-elect his mode of trial and inquired whether the Crown would consent to this “given the disclosure issues and the timing of it.” Crown counsel responded the same day to indicate that she would request the disclosure from the police and that she consented to a re-election.

[48] On May 6, 2022, the Return to Justice for the phone was disclosed.

(xiii) The Garofoli Application, the Re-Election and the Decision to Adjourn the Second Trial Date

[49] A further JPT was held with Corrick J. on May 9, 2022. Counsel for the applicant advised that she intended to bring a Garofoli application,[^6] including a request for leave to cross-examine the affiant, as well as an alternate suspect application. The co-accused had recently changed counsel and his new counsel indicated that he was unavailable for the August trial dates. Corrick J. indicated that a new JPT should be held with new JPT forms being completed.

[50] At the next appearance on May 13, 2022, the applicant’s counsel advised the court that he wished to re-elect his mode of trial to a court composed of a judge and jury and that the Crown consented to this. New counsel for the co-accused indicated that he was unavailable for the August trial. The Crown advised the court that she was willing to sever the co-accused. The matter was adjourned to May 16, 2022.

(xiv) Discussions About Preserving the Second Trial Date

[51] On May 16, 2022, Crown counsel sent an e-mail to the applicant’s counsel advising that she had learned that a jury trial was in fact possible in August and repeating her offer to sever the co-accused. The applicant’s counsel responded as follows:

… [W]hat will become apparent at the JPT is that the defence is bringing a s. 7, s. 8 (facial and sub-facial challenge to the warrant) based on the November 26 disclosure and items that have rolled in as recently as April 22, 2022. There is also a potential defence application (depending on the ruling on the admissibility of the phone evidence). I also understand the crown is bringing an expanded discreditable conduct application based on the phone evidence. …. The landscape of this trial has changed considerably.

I do not see how these issues can be dealt with and ruled on, let alone filed and responded to, within enough time to conduct a jury trial beginning on August 2nd. I appreciate that another Crown can be assigned to your other matters, and that MAG can make decisions regarding prioritizing Mr. Aden’s prosecution over others, but unfortunately I am one person against the state resources and it is not feasible to pivot so quickly at this juncture with the motions I need to pursue to be an effective counsel.

[52] Crown counsel responded:

We are still 2.5 months out from the trial dates. I am able and prepared to respond to any materials that you intend to file within the ascribed filing deadlines. I’m also agreeable to late filing provided there is some time for the Crown to respond. … If your concern is that we won’t have enough time to actually complete the trial, we can look into finding some time in advance of the trial to argue the various motions. We can also look into finding time following the trial, if need be. Although I have a busy trial schedule myself, as well as some limited vacation, I will work around it in order to accommodate this matter.

Although the landscape of this trial has changed, the new disclosure has been in your possession since November 24, 2021. I note as well that you asked for my assistance in accessing the Cellebrite report in late April 2022. The landscape of this trial changed almost six months ago and I would have hoped that these issues would have been raised prior to April/May 2022.

[53] The applicant’s counsel’s response included the following:

I appreciate the phone extraction was provided on November 26/27, 2021. In my email to you on April 12, 2022, I specifically asked for assistance in accessing the video and photos (as you referenced there were many you intended to rely on in the PDC application) and they were not loading in the software. Additionally, I wanted to confirm the source of chat you highlighted. I say this in case you are suggesting laches on the part of the defence. The request did not mean that the defence was not reviewing the phone contents before that time. As you know it is voluminous.

More importantly however, the issues in this case have now expanded. I won’t highlight the timing of all of the various requests here, but suffice to say, that as I was exploring the validity of the search of the phone given the crown’s new intention to rely on its contents, more problems arose and more disclosure was required.

It is also worth noting that the ITO for the phone used to support the authorized warrant (which was first requested on October 25, 2020 and several times thereafter) was not disclosed until April 22, 2022. The authorized warrant was not disclosed until February 3, 2022. In May 2022 new disclosure was received in relation to the returns to justice (which disclosed a further s. 8 breach). These are recently discovered issues that are complex and involve a s. 7 application, in concert with a s. 8. There is also an application to cross-examine the affiant. Respectfully, the landscape of this trial has changed again since late November 2021.

I think we definitely won’t have enough time to complete the trial and deal with the pre-trial motions in those two weeks in August ….

I am happy to discuss this at a judicial pre-trial but my position will not change that this is not feasible to accomplish before August 2nd.

[54] Another JPT was held on May 24, 2022 with Corrick J. during which there was a discussion about the possibility of obtaining additional time in the summer for pre-trial motions and then extending the August trial dates. Counsel for the applicant took the position that because of the complexity of the issues and commitments she had to other clients, this was not feasible.

[55] On May 26, 2022, the applicant’s counsel requested disclosure of police notes relating to the reasons for the delay in providing the phone extraction (which was available in May 2021 but not disclosed until November 2021). Some of this was provided in May and early June.

(xv) Scheduling of the Third Trial Dates

[56] A JPT was held on June 7, 2022 with Himel J. At that time, the disclosure of the Crown’s coded language and gang rivalry expert remained outstanding. Himel J. approved a three-week trial estimate with nine days of pre-trial motions to be heard at various times prior to the trial.

[57] At the next court appearance on June 17, 2022, the matter was adjourned to June 30, 2022 before Forestell J. as she was responsible for scheduling long trials. The applicant’s counsel did not appear on that date because she had mis-diarized it and the matter was adjourned to July 6, 2022. At that time, two weeks beginning on October 24, 2022 were offered for pre-trial motions, but the applicant’s counsel indicated that she was not available until February 2023. Two weeks of pre-trial motions beginning on February 21, 2023 were scheduled. The court was available to commence the trial on May 22, 2023, but counsel for the co-accused was not, although other counsel were. A three-week trial was scheduled to begin on the next date offered, June 19, 2023.

[58] Efforts were made over the following months to obtain earlier trial dates. They were unsuccessful.

II. ANALYSIS

A. Overview of Applicable Legal Principles

(i) The New Approach in R. v. Jordan

[59] R. v. Jordan represented a dramatic shift in the approach courts take to the constitutional guarantee of a trial within a reasonable time. The Court was of the view that the previous analytical framework from R. v. Askov, 1990 CanLII 45 (SCC), [1990] 2 S.C.R. 1199, R. v. Morin, 1992 CanLII 89 (SCC), [1992] 1 S.C.R. 771 and their progeny was unpredictable, overly complex and unduly focussed on the retrospective examination of delay rather than on addressing the “culture of complacency” that had come to plague the Canadian criminal justice system and which often resulted in courts “failing to see the forest for the trees”: Jordan, at paras. 32-41.

[60] Jordan created a new framework, at the heart of which was the concept of a “ceiling” over which delay was presumed to be unreasonable unless the Crown could justify it. Whether or not delay was over the ceiling was to be determined by deducting delay caused by the defence from the overall period of delay, that is, the time between the laying of the charge and the anticipated end of the trial. In some circumstances, delay below the ceiling could be held to be unreasonable if the defence could establish that it took meaningful steps to expedite the proceedings and the case took markedly longer than it reasonably should have.

[61] The proper application of the new framework was recently helpfully summarized by Coroza J.A. in R. v. Zahor, 2022 ONCA 449, at paras. 60-67:

In evaluating an application made under s. 11(b) of the Charter, a court must identify and characterize the periods of delay occasioned throughout the trial. This requires an application of the Jordan framework, consisting of the following steps.

Step 1: Calculate the total delay. The court must calculate the total delay, which extends from the laying of the charge to the actual or anticipated end of the trial: Jordan, at para. 47.

Step 2: Calculate the net delay. Net delay is calculated by subtracting defence delay from the total delay: Jordan, at para. 60. Defence delay is subtracted because “[t]he defence should not be allowed to benefit from its own delay-causing conduct”: Jordan, at para. 60. There are two types of defence delay, each of which must be considered and, if present, subtracted.

Step 2(a): Subtract delay that is waived by the defence. Delay that is clearly and unequivocally waived by the defence, either explicitly or implicitly, must be subtracted from the total delay: Jordan, at para. 61.

Step 2(b): Subtract delay that lies at the feet of the defence. Delay that is “caused solely or directly by the defence’s conduct” must also be subtracted from the total delay: Jordan, at para. 66. This includes tactical choices that delayed the trial, such as frivolous applications and requests, and also includes periods of time during which the court and the Crown are prepared to proceed but the defence is not: Jordan, at paras. 63-64.

Step 3: Compare the net delay to the applicable presumptive ceiling. The applicable presumptive ceiling is 18 months for cases tried in the provincial court and 30 months for cases tried in the superior court: Jordan, at para. 46. 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: Jordan, at para. 105.

Step 4: Consider exceptional circumstances. These circumstances do not need to be rare or uncommon; rather, they must lie beyond the Crown’s control, in that they are reasonably unforeseen or reasonably unavoidable and, in either case, result in delay that cannot be reasonably remedied by the Crown: Jordan, at para. 69.

(ii) Defence Delay

[62] As will become clear, the concept of defence delay is central to the determination of this application. As explained in Jordan, at paras. 61-63, defence delay has two components: (1) delay waived by the defence, and (2) delay caused solely by the defence. There is no suggestion of waiver in this case, so I will focus only on the second component.

[63] “Delay caused solely by the defence” was explained in Jordan, at paras. 63-65:

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.

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 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), 2003 CanLII 24447 (ON CA), 114 C.R.R. (2d) 1 (Ont. C.A.), at paras. 175-82).

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.

[64] As the Court later explained in R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 28, “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). It applies to any situation where the defence conduct has ‘solely or directly’ caused the delay (Jordan, at para. 66).”

[65] There are two elements common to the various types of defence delay: (1) it only applies in circumstances where the defence is the sole or direct cause of the delay; and (2) it does not include actions taken to legitimately respond to the charges. As a result, legitimate actions by the defence in response to late disclosure are not properly characterized as defence delay: R. v. Pyrek, 2017 ONCA 476, 349 C.C.C. (3d) 554, at paras. 19-22; R. v. D.A., 2018 ONCA 96, 402 C.R.R. (2d) 303, at paras. 20-22; Zahor, at para. 65.

[66] Because only delay caused “solely or directly” by the defence may properly be characterized as defence delay, in some cases, it may be appropriate to apportion responsibility for a period of delay between the Crown and the defence. For example, in Zahor, at paras. 97-103, delay was apportioned equally between the parties where the Crown had failed to make timely disclosure of a piece of evidence but the defence had failed to be diligent in pursuing it. See also R. v. Boulanger, 2022 SCC 2, 469 D.L.R. (4th) 63, at para. 2; R. v. K.J.M., 2019 SCC 55, [2019] 4 S.C.R. 39, at para. 96; R. v. Hanan, 2022 ONCA 229 (on appeal to the S.C.C. as of right), at paras. 56-59.

B. Overview of the Issues in the Case at Bar

(i) Extent of Defence Delay

[67] In this case, the parties agree that the total delay, that is, the period between the laying of the charge and the anticipated end of the trial, is 39 months and 23 days. They also agree that there are no exceptional circumstances in this case. The case is not particularly complex and there were no discrete unforeseen events. As a result, the outcome of this application turns on whether there was any defence delay in this case and, if so, the extent of it.

[68] The parties have helpfully focussed their submissions on the delay arising from the adjournment of the second trial and scheduling of the third trial. The respondent does not suggest that there was any defence delay prior to this period.

[69] The second trial was scheduled to begin on August 2, 2022 and last nine days, ending on August 13, 2022, one month and two days before the 30-day ceiling, which counsel agree was on September 15, 2022. Counsel for the applicant took the position that the trial could not proceed in August because nine days was no longer sufficient for several reasons: (1) the re-election to a jury trial would lengthen the trial such that the nine days that had been scheduled were no longer adequate; (2) based on new disclosure, the applicant had decided to bring Charter applications in relation to the search of his phone and late disclosure; (3) the Crown was now seeking to adduce expert evidence and had expanded its application to admit evidence of discreditable conduct.

[70] The Crown’s position, in essence, is that the adjournment of this trial date was unnecessary and that the subsequent delay to the anticipated end of the third trial date, 10 months and 24 days, must therefore be attributed to the defence.

[71] If the applicant is correct, the total delay significantly exceeds the ceiling and a s. 11(b) violation has been established. If the respondent is correct, the net delay is 28 months and two days, which is below the ceiling. If neither party is correct and there is some defence delay but not as much as the Crown asserts, then the result will depend on the extent of the defence delay. If it is less than nine months and 23 days, the application must succeed. If it is nine months and 23 days or more, the application fails.

(ii) Delays in Disclosure

[72] In considering these issues, I am required to take a “bird’s eye view of the case” and avoid “failing to see the forest for the trees”: Jordan, at paras. 37, 91; Zahor, at paras. 92-93. In this case, a bird’s eye view reveals that a lack of timely disclosure permeates the forest, although not each individual tree within it.

[73] The failures to make timely disclosure in this case are largely unexplained and unjustified and appear to be the fault of one or more police officers involved in the investigation. While delay caused by the police must be attributed to the Crown for s. 11(b) purposes, it should be pointed out that Crown counsel assigned to this matter did everything she could to protect the applicant’s s. 11(b) rights. She made every effort to expedite matters and to ensure that any prejudice to the applicant resulting from the late disclosure was minimized to the extent possible. As in R. v. MacMillan, 2022 ONCJ 594, at para. 90, Crown counsel is “a particularly diligent prosecutor who found [her]self in an unenviable position, unable, despite [her] consistent best efforts, to get the police to meet their disclosure responsibilities in this case.”

C. The Re-Election

(i) The Re-Election as a Reason for Adjourning the August Trial Dates

[74] On May 5, the applicant’s counsel requested the Crown’s consent to re-elect his mode of trial “given the disclosure issues and the timing of it.” The Crown agreed.[^7]

[75] The respondent has attempted to characterize the re-election as the sole reason for the adjournment of the August trial dates based on comments made by counsel during the May 16, 2022 court appearance. Respectfully, this is not an accurate characterization. At the time of the May 16, 2022 appearance, all parties were under the mistaken impression that jury trials could not take place in August, so it is not surprising that counsel focussed on this in addressing the court about why the matter could not proceed in August. However, counsel also stated that “[t]he landscape of the case has changed considerably given the late disclosure and there are a number of applications and Charter issues that have arisen ….”

[76] More importantly, the record on this application consists of more than the transcripts of the court appearances. It is clear from the correspondence between counsel that the additional pre-trial applications being contemplated by both sides were such that the nine-day trial estimate was no longer sufficient. Counsel differed on how this should be addressed. The applicant’s counsel was of the view that the trial had to be adjourned, while Crown counsel was of the view that the pre-trial motions could be heard on additional dates that could be scheduled prior to August. This disagreement will be addressed later in these reasons.

(ii) The Timing of the Re-Election

[77] Although the respondent accepts that the re-election was a legitimate defence action, it takes the position that the decision to re-elect was “late in the game” and had it been made earlier, the trial would not have had to be adjourned to a time beyond the Jordan ceiling.

[78] The respondent’s submission is premised on the re-election decision being based solely on the timing of the disclosure of the contents of the applicant’s phone. The respondent submits that since that disclosure was made on November 26, 2021, the applicant should have not waited until April to decide to change his election. As a result, the subsequent delay must therefore be attributed to the defence.

[79] It is not clear why the respondent believes that the re-election decision was based solely on the disclosure of the phone extraction. As noted earlier, when the applicant’s counsel asked for the Crown’s consent to the re-election on May 5, 2022, the reason given was “the disclosure issues and in particular the timing of it.” Counsel did not specify which “disclosure issues” she was referring to.

[80] As the respondent points out, the phone extraction was disclosed on November 26, 2021, although the applicant was not advised of the Crown’s intention to rely on it on an application to adduce evidence of discreditable conduct or tender expert evidence about “coded language” and “gang rivalry” until March 17, 2022. However, the ITO for the search of the applicant’s phone was not disclosed until April 22, 2022, and the Return to Justice was still outstanding at the time of the May 5, 2022 e-mail. It is clear from a review of the record as a whole that all of these events factored into the re-election decision.

(iii) The Attribution of Delay Resulting From a Re-Election

[81] Delay caused by an accused’s re-election was considered in R. v. Lai, 2021 SCC 52, 466 D.L.R. (4th) 419. In that case, the accused had the right to re-elect his mode of trial but waited 15 months to do so. Writing for a majority of the Court, Moldaver J. concluded that in the circumstances of that case, this period ought to have been deducted as defence delay (at paras. 1-3):

R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 32, states as follows:

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. [Emphasis in original.]

In this case, the appellant, Mr. Lai, had the statutory right to re-elect when he did -- but he waited 15 months to re-elect after his trial dates were set in Provincial Court. This was despite being informed by Crown counsel that he could preserve his trial dates by re-electing earlier. Nonetheless, he waited 7 months after that warning to exercise his right to re-elect. This conduct had the direct result of losing the trial dates that were set in Provincial Court and causing an additional delay of 13 months.

The trial judge rejected Mr. Lai’s explanation regarding the re-election. Based on the trial judge’s own findings and conclusions, the re-election was not done legitimately to respond to the charges. To that extent, the trial judge erred in not characterizing the delay as defence delay and deducting it as such.

[82] The findings and conclusions of the trial judge in Lai can be found in the judgment being appealed: R. v. Lai, 2021 BCCA 105, 466 D.L.R. (4th) 421, at para. 12. The trial judge found that while the accused was generally eager to get to trial, “this particular strategic move was at least, in the short term, inconsistent with that desire.” He concluded as follows:

The evidence put forward on behalf of Mr. Lai does not satisfy me that the re-election in this case was compelled by the state of disclosure. There is an absence of contemporaneous communication suggesting that was the situation, and the more logical responses if that had been the pressing problem - an application for disclosure or to adjourn the Provincial Court trial - were not attempted. If there was a relationship between the choice of a Supreme Court trial and the state of disclosure, it was not spelled out by the material or the inferences available from counsel’s submissions, to the extent that I can make any findings concerning it. It is also illusory to add the time that would have been required to conduct a limited preliminary inquiry that Mr. Lai’s counsel envisioned when the defence was on notice since February that a direct indictment would be sought in the event of re-election, as indeed it was.

Because the timing of the disclosure did not result from the state of disclosure and was otherwise unexplained, it was “not done legitimately to respond to the charges” and therefore properly deductible as defence delay: Lai (S.C.C.), at para. 3.[^8]

[83] It follows that where the timing of a re-election (or initial election) is the result of late disclosure, it is properly characterized as a legitimate response to the charges and not deducted as defence delay: R. v. L.L., 2023 ONCA 52, at paras. 15-16. This is because delay in such a case is not caused “solely by the conduct of the defence”: Jordan, at para. 63. Rather, it is caused, at least in part, by the Crown’s failure to make timely disclosure.

[84] This was the situation in R. v. Lee, 2017 ONSC 4862, where the accused changed his election from a provincial court trial to trial in superior court upon learning of the existence of a previously undisclosed search warrant. The court declined to characterize the ensuing period as defence delay (at para. 21):

I find that, in these circumstances, the delay caused by the timing of the re-election was not directly or solely caused by the accused. I further find that the action taken by the defence to re-elect at a late date in order to explore the Charter issues through a discovery preliminary inquiry process was legitimate conduct and that the timing was reasonable. To be clear, this would not always be the case. If counsel have no reason for the timing of the re-election that occasions delay and the actions of the Crown play no role in the timing, some portion of the resulting delay may well be deducted. That is not the situation before me. I would not deduct any portion of the 8.5 months as defence delay.

I draw the same conclusion in this case.

[85] At the time the applicant’s counsel raised the issue of re-election, the defence had recently received the ITO and had decided to bring a Garofoli application that could result in the trial judge hearing otherwise inadmissible information about the applicant from confidential sources. The applicant had also been advised of an application to adduce evidence of discreditable conduct, which the trial judge would be privy to even if the evidence was ultimately excluded. In these circumstances, the decision to have a jury trial and the timing of that decision were, in my view, legitimate defence tactics. More importantly, the election decision would have been made far earlier had the ITO been disclosed in a timely fashion.

[86] As noted earlier, the respondent accepts that the applicant’s decision to re-elect was reasonable, given the late disclosure. The concession is well-founded. An accused’s decision with respect to the election of the mode of trial must be informed, so a significant change in circumstances can justify a re-election outside the statutory time periods: R. v. M.F. (2007), 2007 CanLII 37017 (ON SC), 223 C.C.C. (3d) 209 (Ont. S.C.J.), at para. 7; R. v. Vella, 2020 ONCJ 388, at para. 17. It follows that the re-election in this case was a legitimate action to respond to the charges and the delay resulting from it cannot be deducted as defence delay.

D. The Request for the ITO

(i) The Timing of the Request

[87] While a lack of timely disclosure was an ongoing problem in this case, as the respondent acknowledges, the timing of the disclosure of the ITO with respect to the search of the applicant’s phone was of particular importance with respect to the adjournment of the August trial dates. The respondent submits that the applicant must bear the responsibility for the timing of this disclosure because of a failure to be diligent in pursuing it.

[88] The defence made numerous requests for “all search warrants and production orders, granted or denied” and “all ITOs for any search warrants,” beginning on June 7, 2020 and again on June 17, 2020, October 25, 2020, November 12, 2020, February 25, 2021, and April 16, 2021. The respondent does not dispute this, but points out that on April 21, 2021, prior to the preliminary inquiry, Crown counsel sent an e-mail to the applicant’s counsel asking, “anything else outstanding from your perspective?” to which the applicant’s counsel responded, “Just the rejected warrant/ITO from my perspective but not critical for the preliminary inquiry.” It was not until January 28, 2022 that the applicant’s counsel made a specific request for the ITO in relation to the applicant’s phone. The respondent submits that the request should have been made sooner and the failure to do so amounted to a lack of diligence.

[89] In requesting the ITO on January 28, 2022, the applicant’s counsel wrote:

I have been thinking about this case and the new disclosure and went back to review the disclosure I have.

I do not have a warrant to search Aden’s phone. Just the production order for the phone records form the providers, and the ITO for that production order.

I am prepared to infer from this that the applicant’s counsel did not realize that she did not have the ITO until January 2022. Thus, the issue that has to be determined is whether this amounts to a lack of diligence such that some or all of the delay resulting from the late disclosure of the ITO should be attributed to the defence.

(ii) The Defence Obligation to be Diligent

[90] In Cody, at para. 33, the Court stated:

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 CanLII 805 (SCC), [1998] 1 S.C.R. 244, at para. 37). 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. Defence counsel are therefore expected to “actively advanc[e] their clients’ right to a trial within a reasonable time, collaborat[e] with Crown counsel when appropriate and ... us[e] court time efficiently” (Jordan, at para. 138).

Paragraph 37 of Dixon, which the court refers to, includes the following:

The fair and efficient functioning of the criminal justice system requires that defence counsel exercise due diligence in actively seeking and pursuing Crown disclosure. The very nature of the disclosure process makes it prone to human error and vulnerable to attack. As officers of the court, defence counsel have an obligation to pursue disclosure diligently. When counsel becomes or ought to become aware, from other relevant material produced by the Crown, of a failure to disclose further material, counsel must not remain passive. Rather, they must diligently pursue disclosure.

[91] Dixon recognizes that the disclosure process is “prone to human error” and ensures that the defence cannot gain an unfair advantage when the Crown unintentionally fails to provide disclosure. This is important in the s. 11(b) context, as all participants in the justice system share the responsibility of ensuring that trials occur within a reasonable time.

[92] That said, it cannot be forgotten that the reference to Dixon in Cody was in the context of a discussion about “illegitimate defence conduct.” In this case, I have no doubt that the Crown’s failure to disclose the ITO earlier was not intentional and the result of human error. I am equally sure that the applicant’s counsel’s failure to specifically request the ITO earlier was also the result of human error. The context in which both errors occurred is important. This was a case where there was an ongoing failure on the part of the Crown to make timely disclosure and where the defence had repeatedly requested disclosure, including “all ITOs.” In these circumstances, I do not think that the defence’s failure to specifically request the ITO until January 2022 can be properly described as “illegitimate defence conduct.” In any event, after counsel did make a specific request for the ITO, it was still not disclosed for another three months. This delay, like most others in this case, is unexplained.

[93] I do not view defence counsel’s response to the Crown’s April 21, 2021 e-mail asking “anything else outstanding from your perspective?” to be of any significance. This exchange was before the preliminary inquiry and months prior to the disclosure of the phone extraction. Defence counsel’s failure to specifically request the ITO in relation to a search that was of no significance at the time can hardly be described as a lack of diligence: R. v. Belle, 2018 ONSC 7728, 424 C.R.R. (2d) 233, at para. 26.

[94] The ITO was important disclosure that informed the applicant’s strategic decisions about the conduct of the trial: L.L, at para. 16; R. v. C.M., (7 September 2022), (Ont. C.J.), at para. 24. The applicant’s counsel had repeatedly requested all of the ITOs and, as counsel for the respondent acknowledged in oral argument, the Crown had a duty to disclose the ITO much earlier than it did. The Crown cannot rely on a defence lapse in diligence where the need for diligence only arose because of the Crown’s failure to fulfill its disclosure obligations: R. v. Ahmad, 2022 ONSC 2321, at paras. 69-72; Belle, at para. 42.

[95] By the end of January 2022, over 24 months after the applicant was charged, the Crown had still not fulfilled its obligation to disclose the phone ITO. Once defence counsel pointed this out, as she was required to do, disclosure was still not made for another three months. Given that the trial was already scheduled to end just one month before the ceiling, one would have expected a quicker response. As a result, the defence only received the ITO three months before the Jordan ceiling in this case. In these circumstances, it is difficult to understand how any delay resulting from the late disclosure can properly be characterized as being caused “solely by the conduct of the defence.”

E. The Defence’s Unavailability to Conduct the Pre-Trial Motions Prior to the August Trial

(i) The Relevant Context

[96] In January 2022, the parties scheduled a nine-day judge-alone trial set to begin on August 2, 2022. It was obvious by the beginning of May 2022 that nine days would be insufficient for several reasons: this was now a jury trial, there was going to be a Garofoli application, the Crown had expanded its application to admit evidence of discreditable conduct, and the Crown wished to adduce expert evidence. The Crown suggested that these applications could be heard at some time before August. Counsel for the applicant took the position that this was not feasible because of the complexity of the issues and her commitments to other clients.

(ii) R. v. Albinowski

[97] The respondent submits that the situation in this case is akin to that in R. v. Albinowski, 2018 ONCA 1084, 371 C.C.C. (3d) 190, where defence counsel was unavailable because of commitments to other clients. In that case, after the preliminary inquiry was scheduled, earlier dates unexpectedly became available. Defence counsel did not accept the earlier dates because they were only three months away and counsel did not have adequate time to prepare and because of other previous commitments. In my view, Albinowski can be distinguished for several reasons.

[98] First, in this case, commitments to other clients were not the sole reason why the applicant’s counsel was unwilling to schedule and argue the Garofoli application during the three-month period between the end of April and the beginning of August. She was also of the view that there was insufficient time to properly prepare.

[99] Second, the change in dates in Albinowski was in no way the fault of the Crown. It was for this reason that the Court in Albinowski held that the principle set out in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 23, that s. 11(b) does not require defence counsel to “hold themselves in a state of perpetual availability” did not apply (at para. 32):

It is important to recall the circumstances under which Cromwell J. for the Supreme Court made these statements. The determination in Godin, that defence counsel was not responsible for one month and a half of delay because he was not available on the earliest date offered for the rescheduled preliminary inquiry, was grounded firmly in the circumstances of that case – specifically, the Crown’s responsibility for the need to reschedule and the attempts by the defence to expedite the proceedings.

In this case, the unanticipated need to schedule and argue a Garofoli application within three months was very much the Crown’s responsibility, as was the inadequacy of the original time estimate which was part of the cause of the delay. In these circumstances, the defence cannot be held to be responsible for the delay because of the applicant’s counsel unwillingness to compromise one client’s interests for another’s: R. v. Safdar, 2021 ONCA 207, 469 D.L.R. (4th) 447, at para. 50.

[100] Third, Albinowski was a transitional case, and part of the reason defence counsel were unavailable was because they had scheduled matters based on pre-Jordan conditions: Albinowski, at para. 51.

[101] The respondent’s position, in essence, is as follows: even though the August trial was scheduled to end only one month before the Jordan ceiling because of the Crown’s ongoing failure to make timely disclosure, and even though the ITO was only disclosed three months earlier, the defence must bear the entire responsibility for the adjournment of the trial because of its failure to prepare, schedule and argue the ss. 7 and 8 applications within a limited time period. Respectfully, I cannot agree. The efforts to find court dates in June and July only began after the phone ITO was disclosed at the end of April at a time when the scheduled end of the trial was only a month away from the Jordan ceiling. As the Supreme Court of Canada observed in K.J.M., at para. 81, “Prosecutors cannot be content to wait until the [Jordan ceiling] is within eyesight before kicking into gear.”

(iii) Apportioning the Delay

[102] Even if the Crown does not bear all of the responsibility for the adjournment of the trial because the specific request for the ITO was not made until the end of January 2022, and/or because the defence was unable to prepare the Charter applications in accordance with an accelerated timeline, it cannot be said that it bears no responsibility whatsoever.

[103] As discussed earlier, it may be appropriate in some cases to apportion responsibility for a period of delay between the Crown and the defence. For the reasons I have explained, I am not persuaded that this is such as case. However, even if it is, as noted earlier, if the period of delay apportioned to the Crown is more than one month and two days of the nine months and 23 days by which this matter exceeds the Jordan ceiling, the application must succeed. If apportioning is appropriate in this case, the period attributable to the Crown would be more than one month and two days, which constitutes approximately 11% of the 10 months and 23 days of delay caused by the adjournment of the second trial dates.[^9] At least half of the delay would have to be apportioned to the Crown. But whether the Crown bears responsibility for all or only half of the delay does not affect the outcome of this application. Either way, the delay in this case is unreasonable and s. 11(b) of the Charter has been infringed.

F. Conclusion

[104] For the foregoing reasons, the net delay in this case, even if the defence is responsible for some of it, exceeds the 30-month ceiling.

[105] It is clear in Jordan, at para. 81, that “the presence of exceptional circumstances is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling.” The respondent concedes that there are no exceptional circumstances in this case. I am aware that the applicant faces very serious charges. However, it is clear from Jordan that “the seriousness or gravity of the offence cannot be relied on” to justify delay that exceeds the ceiling.

[106] That said, because of the seriousness of the charges, some people may find the result in this case difficult to understand or accept. I have no doubt that this will be very difficult for the victim of the shooting, who no doubt expected that those who caused him such serious harm would face justice. I would like to make four comments in this regard.

[107] First, the result in this case follows from the framework set out by the Supreme Court of Canada in Jordan, by which I am bound.

[108] Second, it is not only accused persons who benefit from trials taking place within a reasonable time. The public is also entitled to justice that is delivered with expediency: Jordan, at para. 2.

[109] Third, the principles in Jordan were well established by the time the applicant was first charged in March 2020 and it was known to all involved in the criminal justice system that the culture of complacency that had plagued the system for years would no longer be tolerated. Despite this, the police took the same “leisurely approach to disclosure” that was often a large part of that culture of complacency: R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 359; MacMillan, at para. 82. For example, although the phone extraction was complete by May 2021, the police did not provide it to Crown counsel so that it could be disclosed for another six months. Similarly, no steps were taken to unseal the ITO for the phone until February 2022, and it was not disclosed until three months later. These are but two instances of the unjustified disclosure delays in this case.

[110] Finally, the fact that the charges faced by the applicant were serious made it all the more important that the police have proper regard for the Crown’s disclosure obligations. As the Supreme Court of Canada stated in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 84, “while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.” In the s. 11(b) context, this means that “the public interest is best served, by trying serious charges on their merits in a timely fashion. These are precisely the cases that should be heard promptly, on the strongest possible evidence”: R. v. Williamson, 2016 SCC 28, [2016] 1 S.C.R. 741, at para. 36.

III. DISPOSITION

[111] The application is granted. There will be an order pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms staying the proceedings.

[112] I would be remiss if I did not thank both counsel for the high quality of their very helpful and focussed written and oral submissions.

Justice P.A. Schreck

Released: January 31, 2023

COURT FILE NO.: CR-21-50000353-0000

DATE: 20230131

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

ISMAIL ADEN

RULING

P.A. Schreck J.

Released: January 31, 2023

[^1]: The respondent calculates the delay caused by the adjournment of the second trial as being 11 months and six days. This is the period of time between August 2, 2022, the beginning of the second trial, and July 7, 2023, the end of the third trial. The relevant period should be between the end of the first trial and the end of the second trial, a period of 10 months and 24 days (assuming that there is 30 days in each month). [^2]: Mr. Abshir has not brought a s. 11(b) application. [^3]: The respondent does not rely on any defence delay arising from the scheduling of the preliminary inquiry. [^4]: As will be seen, counsel later made a specific request for the ITO in relation to the warrant for the applicant’s phone that was granted. [^5]: August 2, 2022 was a Tuesday. [^6]: So called after the decision in R. v. Garofoli, 1990 CanLII 52 (SCC), [1990] 2 S.C.R. 1421. [^7]: The Crown inquired whether the applicant was willing to waive his s. 11(b) rights with respect to any delay arising from the re-election. The applicant did not agree to do so. [^8]: The trial judge in Lai had characterized the delay resulting from the re-election as a “discrete exceptional event” that should be deducted from the overall delay: Lai (B.C.C.A.), at para. 14. The British Columbia Court of Appeal disagreed and viewed this period as part of the inherent time requirements of the case which were “built in” to the 30-month ceiling and therefore should not be deducted at all, although a majority of the Court dismissed the appeal for other reasons: Lai (B.C.C.A.), at paras. 100-106. The Supreme Court of Canada affirmed the result on the basis that the re-election delay was deductible as defence delay rather than a discrete exceptional event. [^9]: This figure is based on there being 30 days in each month.