Court File and Parties

COURT FILE NO.: CR-20-24 DATE: 2024/04/05 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Respondent – and – T.D. Applicant

Counsel: Andrea Camilletti, for the Respondent James Gilbert, for the Applicant

HEARD: March 28, 2024

REASONS – 11(b) Charter application

[These reasons are subject to a publication ban under s. 486.4 of the Criminal Code prohibiting the publication, broadcast or transmission, in any way, of any evidence that could identify the Complainant or a witness.]

Sproat, J.

Introduction

[1] The Applicant was arrested on September 27, 2019 and on October 15, 2019 was charged with one count of sexual assault. It is anticipated that the trial will be heard at the May, 2024 sittings and be completed by May 31, 2024.

The Evidence

[2] The total delay is 55.6 months. I will first address the net delay based on the deductions not related to the pandemic. I will then review the law as to how pandemic delay should be accounted for and provide my analysis and conclusion.

[3] The Applicant filed the affidavit of Ms. Shackman which addressed the chronology of events. The Applicant’s position is that the only deduction should be 1 month and 18 days.

[4] I will now address deductions submitted by the Crown for exceptional circumstances and Defence delay. I will then address the caselaw concerning COVID-19 and the effect of the pandemic on this case.

(a) January 25, 2020 to May 29, 2020 – a technological issue corrupted the video of the complainant’s statement. While this caused some delay this period was also impacted by the pandemic as a disk at the Crown’s office could not be delivered to the defence as everyone was working remotely. I think any deduction is better included within pandemic delay.

126 days

(b) August 17, 2020 – November 23, 2020 – the alleged Crown delay is premised on the Crown position that all meaningful disclosure was complete by August 17 while election to the SCJ only occurred November 23, 2020. There was, however, some disclosure outstanding in August and a further disclosure request for relevant documents on October 15, 2020. I do not agree that there is defence delay.

99 days

(c) December 16, 2020 to January 20, 2021 –Counsel was not fully retained and I agree this is defence delay.

36 days

(d) June 3, 2021 to September 19, 2021 – there were back and forth communications regarding a s. 276 application. I do not regard this as defence delay.

109 days

(e) September 20, 2021 to January 4, 2022 – the Crown Attorney for Grey County, who was also the assigned Crown on this case, went on an unexpected medical leave which continued until his death. He was, however, replaced by an Acting Crown Attorney on November 29, 2021 who needed to get up to speed. I agree that this period is a discrete exceptional circumstance.

107 days

(f) January 27, 2022 – March 3, 2022 – I do not agree that a request the Crown obtain input from the Complainant makes this defence delay. Obtaining such input is a regular feature of many cases.

36 days

(g) April 29, 2022 – November 15, 2022 – the defence filed a s. 278 application on April 29, 2022. It was to be heard on June 22, 2022. The Crown submits that it was adjourned because the defence failed to subpoena the proper record holders. It was, however, also the position of the Crown that this application could not proceed because counsel for the Complainant had not been appointed. In addition, there is always a gap between filing and hearing dates so clearly all of this time would not be defence delay. I, therefore, make no deduction.

201 days

(h) December 6, 2022 – January 8, 2023 – Justice Chown directed that certain steps be taken, and they were. I see this as a normal part of moving a case forward and not defence delay.

34 days

(i) August 3, 2023 – December 27, 2023 – there were resolution discussions and in fact it was clearly stated to the Court that this matter would be resolving. There is, however, no evidence that would suggest this case could have been heard prior to the December sittings. As such these discussions did not delay the case getting to trial.

147 days

(j) December 18, 2023 – May 31, 2024 – the long standing practice in Grey-Bruce has been that a trial date is not set at the JPT. Instead, counsel are advised whether their case has priority in the sense that it is targeted for trial at a particular sittings. At a court hearing on July 27, 2023 counsel advised that the Applicant intended to file an 11(b) application. This application and a possible resolution were addressed at a JPT held September 25. Defence counsel were, or should have been, aware that there were three week criminal sittings scheduled to commence in Owen Sound on December 5, 2023 and February 12, 2024. Counsel made the decision, which was probably prudent in the circumstances, to explore possible resolution before the Applicant incurred the substantial expense of ordering transcripts and preparing an 11(b) application. By email dated October 31 the Crown offered the week of December 18, 2023 for trial. The defence declined this offer and also declined to proceed at the February sittings due to the fact that the 11(b) materials had not been prepared and counsel had other court commitments. While I do not fault counsel in my view the time from December 18, 2023 when the Court and Crown were ready to proceed to the anticipated end of the trial on May 31, 2024 must be considered defence delay.

165 days

[5] I, therefore, deduct a total of 308 days which, from total delay of 1619 days, which results in net delay of 1383 days (45.46 months) prior to consideration of COVID-19 delay.

The Law

[6] In R v. Agpoon, 2023 ONCA 449 addressed the question of how to address COVID-19 related delay. The Court reviewed the Jordan principles as follows:

(1) The Jordan Governing Principles

[19] The pandemic falls within a category of “discrete exceptional circumstances” laid out in Jordan, which the court defined, at para. 69: “[e]xceptional circumstances lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise” (emphasis in original). This is the “only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling”: Jordan, at para. 81. The court acknowledged, at para. 72, that medical emergencies could qualify as a discrete exceptional circumstance. Although this comment was made in the context of individual medical emergencies, in our view it can be, and should be, generalized for the pandemic.

[20] Jordan imposed certain conditions on the Crown. For example, the burden is put on the Crown to show that “it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling”: at para. 70 (emphasis in original). But this was clearly impossible in the case of the pandemic. Further, the court referred to the Crown’s obligation to make efforts to mitigate the delay resulting from a discrete exceptional circumstance, noting, at para. 75, that “within reason, the Crown and the justice system should be capable of prioritizing cases that have faltered due to unforeseen events”. This principle applies to dealing with the backlog of cases in the emergence of the justice system from the pandemic.

[21] In our view, there is a systemic perspective within which the pandemic must be seen. The Jordan court said, at para. 103, “[t]he reasonableness of a period of time to prosecute a case takes its colour from the surrounding circumstances.” The surrounding circumstances here are systemic.

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

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

[24] There are several ancillary principles. If the period of calculated delay is below the applicable presumptive ceiling – 18 months for cases tried in the Ontario Court of Justice and 30 months for cases tried in the Superior Court of Justice – then the onus switches to the defence, which “may still demonstrate in clear cases that the delay is unreasonable”: Jordan, at para. 76. The court added, at para. 82:

[If the total delay is below the presumptive ceiling] then the defence bears the onus to show that the delay is unreasonable. To do so, the defence must establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. Absent these two factors, the s. 11(b) application must fail. [Emphasis in original.]

[25] The Jordan court added, at para. 85: “it is incumbent on the defence, in order to justify a stay below the ceiling, to demonstrate having taken meaningful and sustained steps to be tried quickly.”

[26] Finally, there is the local perspective. The Jordan court noted the need for trial judges to “employ the knowledge they have of their own jurisdiction, including how long a case of that nature typically takes to get to trial in light of the relevant local and systemic circumstances”: at para. 89; see also paras. 87 and 101. This instruction applies with necessary modifications to the assessment of pandemic-related delay for Jordan purposes.

[7] The Court then reviewed the impact of COVID-19 on the court system:

(2) The Jordan Governing Principles Applied

[27] We have reviewed the public record of disruptions to the operation of criminal courts in Ontario that the pandemic caused. [1] These disruptions, moving from the broadest to the more particular, can be broadly grouped as follows:

(a) Province-wide court closures

[28] There were times where all courts in the province limited their operations to only the most urgent matters. The main province-wide closure occurred in the first months of the pandemic, beginning on March 17, 2020, and was lifted in phases over the course of the summer.

(b) Jury blackout periods

[29] There were several periods during the pandemic in which new jury selections and jury trials were temporarily halted. Some such blackouts were regional, reflecting local COVID risks, while others were province-wide. For example, there was a jury blackout period in the Toronto and Brampton Superior Courts beginning in November 2020, and a province-wide jury blackout period beginning on January 13, 2021, which was lifted in phases and on a regional basis at the discretion of Regional Senior Justices from July to September, 2021.

(c) Local court closures and restrictions

[30] In addition to the provincial court closures and restrictions, local courts imposed restrictions based on their circumstances. For example, as a result of provincial re-opening regulations, Toronto and Peel had a 10-person capacity limit in courtrooms for new, non-jury matters beginning December 14, 2020.

(d) Local availability of court facilities

[31] When courts began re-opening in the summer of 2020, they attempted to adhere to public health measures including physical distancing and droplet barriers. As a result of the necessary physical changes to courtrooms, not all courtrooms were open even when courts resumed operations, resulting in a more limited capacity for in-person hearings. For instance, when courts first opened on July 6, 2020, the Superior Court had only 56 courtrooms open across the province.

(e) Priorities in addressing the backlog

[32] As a result of the backlog of cases created by closures and the continuing restrictions limiting the number of cases that could be heard, courts were forced to triage and prioritize the order in which cases would be heard. Regional Senior Justices were given significant discretion over how best to address the backlogs in their courts, but most regions – including Toronto, where the present case was prosecuted – prioritized in-custody criminal matters over out-of-custody matters, and continuing trials over new trials.

(3) The Application of Jordan Principles to Pandemic Delays Going Forward

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

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

[8] In Agpoon the position of the Crown was that the entire period from the closing of the courts on March 17, 2020 to May 19, 2021 when the Crown referred an indictment, should have been counted as a discrete exceptional circumstance. It appears that the focus on the date that the indictment was prepared because the application judge had faulted the Crown for taking too long to prefer the indictment given that there had been multiple adjournments of the preliminary hearing as a result of the pandemic.

[9] In R v. J.D. CR-20-020, on November 10, 2022, I dismissed an 11(b) application reasoning as follows:

[6] Central to the defence position is that COVID-19 did not cause any delay from October 4, 2020 to October 11, 2022 when the court and Crown were available for the trial. As I explain below that is simply not correct.

[7] Judicial resources are allocated on a regional basis. Grey-Bruce has one full time, and one supernumerary, resident judge. As the Local Administrative Judge of Grey-Bruce. In the case of pressing matter, I will request that judges from other centres in the Central West Region be assigned to criminal and other trials in Grey-Bruce. Similarly, judges from Grey-Brice on occasion are assigned to preside elsewhere in the Region. To address cases of urgency, criminal cases in Grey-Bruce are sometimes slotted into civil-family sittings. On occasion a Walkerton case could be slotted into an Owen Sound criminal sittings. The point is that delay in any centre in the Central West Region, whether in a criminal, civil or family case, has a ripple effect throughout the Region.

[8] While it would be impossible to quantify with any precision it is crystal clear that COVID-19 caused very significant delay in the Central West Region from October 14, 2020 to October 11, 2022. Examples of such delay include the following:

1. COVID-19 infected many people, and many others had to isolate as a result. Trial participants were among those affected. So, it was not uncommon for court proceedings to be delayed or adjourned due to the unexpected unavailability of trial participants.

2. the justifiably rigorous courthouse protocol meant that individuals with various common symptoms that could be COVID-19 related could not enter the courthouse, resulting in delays and adjournments.

3. judges, counsel and court staff had to adapt to new technology and procedures. There were unavoidable stumbles along the learning curve. Sometimes materials did not get to a judge on time or at all. Cases were delayed or did not take place.

4. time was spent in submissions as to whether particular witnesses should be heard remotely and as to COVID-19 related procedures in the courtroom.

5. Grey-Bruce has spotty internet coverage with the result that delays were encountered when parties or witnesses could not connect properly.

6. in Brampton the government secured space in a convention centre to allow for socially distanced jury selection. Jurors selected then had to travel from the convention centre to the courthouse. This was inefficient and so contributed to delay.

7. the court was required to recess briefly after every witness in court so that the witness stand could be sanitized. This usually only took a few minutes but on occasion 10 minutes. That adds up over the course of many witnesses and many trials.

8. on December 17, 2021 the Chief Justice issued a notice that due to COVID-19 jury trial were suspended from December 20, 2021 to February 7, 2022. On January 19, 2022 the suspension was extended to February 28, 2022. As such, approximately 2.5 months of jury trials had to be rescheduled. When a case comes up for trial and has to be rescheduled it is almost always given an early date in priority to other cases. Some trials that were in process continued and some did not. There was no ability to backfill much of this time with non-jury cases. There was obviously significant disruption or delay as a result.

9. the main courtroom in Walkerton, constructed in the 1800s, is too small to allow social distancing so that it was impossible to conduct jury trials there from March 20, 2020 until March 1, 2022 when social distancing requirements were lifted.

[9] While the legal requirement for social distancing ended March 1, 2022 the pandemic did not. I still routinely receive requests for adjournment as a result of counsel or parties having COVID-19, COVID-19 symptoms or health concerns. These requests in relation to motions, conferences and trial are necessarily on short notice. No one plans ahead to have COVID-19 or symptoms. On short notice it is almost impossible for the time slot to be utilized for other matters. The inefficiency, and consequent delay, has abated somewhat but still exists.

[10] In summary, I know that judges and court services personnel have been working harder than ever to keep cases moving. And despite their best efforts, for the reasons noted, cases were being delayed and disrupted by COVID-19. I expect that Crown and defence counsel were similarly working harder than ever.

[11] While I cannot begin to quantify it, the government spent massive amounts of money to keep the court system moving during the pandemic. In Owen Sound contractors were engaged to remove half of the bench seating to allow social distancing. Plexiglass was installed throughout the courtrooms to isolate trial participants and staff. Audio visual systems and additional monitors were acquired so that jurors could be socially distanced along one side of the courtroom and be able to view witnesses on a nearby monitor. In some centres off site premises were leased and reconfigured for jury selection. New document filing and management systems were introduced. Extensive training was provided on the new systems.

[14] I am attracted to the reasoning of Harris J. in Hyacinthe because it accords with the reality of what we have all been through. The impact of COVID-19 on the court system has been significant and pervasive.

[15] As the Local Administrative Justice, I have presided over almost all of the Grey-Bruce Assignment Courts over the past four years at which trials are scheduled. It is common for the Crown to refer to the fact that certain cases are being prioritized because they are one of the oldest in the system or the accused is in custody or the trial had to be adjourned previously. While it has never happened in my experience, it would certainly have been open to defence counsel to query why their client’s case was not a priority. In that event, I have at hand all of the Jordan dates and the Crown would have access to additional information as to the net delay. I am confident that defence counsel would have received a cogent explanation.

[16] I am, therefore, satisfied that the Crown has been acting reasonably in prioritizing the cases that deserve priority. Further, there is nothing in the material filed to suggest that the Applicant’s case was not appropriately prioritized.

[17] I reject the proposition that in the face of a global pandemic, with the consequent causes of delay I have identified, merely pointing to the aggregate delay obliges the Crown to justify its prioritization of this case in relation to other cases given higher priority. That could easily turn a two-hour 11(b) hearing into a two-day hearing with the Crown having to devote days and days of time to, in effect, putting forward an 11(b) analysis for other cases given priority over the Applicant. As Harris J. stated, it would be ironic if a section 11(b) application of this detail and complexity exacerbated the problem of delay.

[18] This does not mean that COVID-19 absolves the Crown and court from their obligations to take all reasonable steps to bring a case to trial. If there is case specific evidence of delay, such as by failing to make timely disclosure that affects trial scheduling, that can support an 11(b) application.

[10] In R v. Wiseman, 2023 ONSC 4484 Justice Dunphy addressed the pervasive effects of the pandemic. His observations are fully applicable to the situation we experienced in Grey-Bruce. Justice Dunphy explained:

[34] This case was born virtually on the eve of the Covid pandemic bringing our criminal justice system to a near complete halt for an extended period of time. There is nothing “discrete” about that event – it was a general, systemic disruption. However, for all of its generality and systemic nature, the Covid pandemic also fits quite squarely within the Jordan framework which was intentionally open-ended and adaptable to unforeseen and unforeseeable circumstances. The pandemic was unforeseeable and the justice system did not have the capacity to absorb its impact without affecting trial times.

[35] The impacts of Covid upon the progress of this case were many, significant and on-going. I cannot disagree too strongly with the suggestions made during argument of this application that Covid had only a minor impact on this case because of where matters stood on particular dates when particular steps in the reaction to Covid were taken in the court system. This and every case in the justice system has been profoundly impacted by Covid because its impact was systemic.

[36] The Court of Appeal has provided a helpful summary of the various lock-down and court closure orders in R. v. Agpoon, 2023 ONCA 449, a case to which I shall return shortly. I will not repeat that useful summary here. However, it seems clear to me that the systemic nature of the disruptions caused by Covid needs underlining here.

[37] Any such analysis must start with the premise that the justice system is not built like an accordion that can expand and contract at will. The “supply” of justice is subject to tangible limitations that can only be expanded gradually and over time. Court houses are finite and expansion takes years of planning and time. Court staff require recruiting and training, court infrastructure and systems require time to be developed and refined. Judges and lawyers all take years of training. The “demand” for justice waxes and wanes based upon the interaction of numerous other factors that scholars will debate until the final bugle is sounded.

[38] A sudden choking off of “supply” of justice cannot be responded to with an equally sudden expansion of that supply. The constitutional right to a jury trial cannot simply be suspended while the system rights itself. The right to challenge the validity of warrants cannot be suspended to speed up the pre-trial process. There are systematic limitations on how such a crisis can be adapted to and how long it takes to adapt to it.

[39] This case was still in its initial intake phase when the initial lockdown occurred. The history of this case illustrates well both the ripple effects of lockdowns that are felt long after the lockdowns are ended and the impact of the various mitigation strategies that were very quickly put into place.

[40] In addition to dealing with bail issues, for the first few months, the Crown was organizing disclosure. Such a simple statement does not do justice to the task actually undertaken. For long periods of time, Crown counsel had no access to their offices at all. All work had to be undertaken from home subject to the pressures, distractions and vagaries of available resources, internet connections etc. that this implies. Police too were subject to similar restrictions. The difficulties inherent in the task of compiling what would have been time consuming and complex disclosure in those circumstances cannot easily be overstated.

[41] While some judicial pretrials eventually got scheduled and tentative progress was made during the initial lock-down period, none of this was taking place at anything like normal speed and capacity. Judges and counsel were working from home and operating under similar constraints. As the first tentative court re-opening was phased in, the ripple effects began to manifest themselves almost immediately. Crime did not magically vanish during the lockdown. Arrests continued to be made and more “inventory” in the criminal justice system was continually being added. Missed hearing dates had to be rescheduled. Court calendars and lawyer’s calendars were all quickly filling with re-booked hearings and with new matters both. The trial coordinators, also working from home for much of the time period, had to juggle multiple sets of conflicting demands. The pandemic continued to wreak havoc in unpredictable waves. Additional demands on the system were continually being made as hearings would go down on short or no notice when one or more of the necessary participants took ill had had to quarantine. This added still more cases that needed to be rescheduled to an already stressed and backlogged system.

[42] The court system adapted and adapted quickly. From telephone hearings being a rare and occasional adjunct to the system, we evolved to their routine use for large categories of hearings. Digital filing of documents went from being a multi-year almost futuristic project to being an accomplished reality almost overnight. Virtual hearings and a little-known piece of software called “Zoom” became standard practice within only a few weeks. The software itself evolved to attempt to accommodate things like multiple language tracks and recordings. Co-ordinated efforts to favour early resolution of cases were put in place and proved quite successful as were efforts to streamline and facilitate the process of re-electing to judge-alone trials as the jury backlog began to grow. Judges continued to be appointed and to retire but the capacity to integrate new judges into a functioning system but in a purely virtual environment needed further adaptation. Detention centres had to learn how to have multiple hearings being conducted at once from facilities never designed for the purpose of conducting such hearings. Courtrooms were adapted with partitions, some courtrooms served double-duty as socially distanced jury rooms. In Toronto, the Convention Centre was put to use in selecting juries during the first tentative re-start of jury trials to facilitate social distancing with large jury panels.

[43] All of these developments took time and encountered difficulties and teething pains as they were experimented with and ultimately rolled out. Some of the building backlog was able to be dealt with but not all and of course new cases continued to be added to the system.

[44] While there is every likelihood that the system is emerging stronger, more efficient and more resilient from the experience, I have tried to illustrate how futile it is to attempt to micro-calculate the precise impact of Covid on a particular case. As backlogs grew, the ripple effects of those backlogs magnified the impact still further. The capacity of the entire system was and remains under the strain caused. It is not constitutionally reasonable to expect to respond to that strain instantaneously as long as the reactions have themselves been measured and reasonable. Any objective observer informed of the facts would have to agree that our system has performed feats of adaptation that few would have thought possible. The reaction has been more than reasonable such that the degree of delay still being experienced cannot be characterized as constitutionally unreasonable.

[45] While there are clearly a number of distinctions that might be made between this case and Agpoon, the approach to the exceptional circumstance of Covid applied in that case and its reasoning also requires the dismissal of these applications.

[46] Agpoon was a case involving three co-accused charged with human trafficking and firearms offences. Two of the accused were charged in 2018 and a third was charged in 2019. The case was about to begin the preliminary inquiry when the pandemic began. The preliminary inquiry was re-scheduled to begin on May 31, 2021. On the eve of the commencement of that re-scheduled hearing, the Crown elected to prefer a direct indictment. This enabled the case to proceed directly to obtain the earliest possible date for a jury trial in Superior Court. The trial judge stayed the trial after conducting a detailed assessment of the impact of each phase of the lock-down and re-opening process on this case and reasoned that if a preferred indictment had been made earlier in the process then a lesser delay would have resulted.

[47] The Court of Appeal disagreed with what it described as the “complicated micro-counting” approach taken and with the second-guessing of the Crown’s exercise of its discretion to proceed by way of direct indictment and the timing of that decision. Rather, the Court found that the entire 14 month period between the closing of the courts on March 17, 2021 and the day the Crown preferred the indictment on May 26, 2022 should be counted as the discrete exceptional circumstance of Covid.

[48] Agpoon was not required to assess Covid-related delay after May 26, 2021 and the first stay decision appealed from occurred in May 2022. In the present case, the case will have been in the Superior Court for a little more than sixteen months through to the anticipated end of trial. This compares to the roughly twelve months typically allowed to the Superior Court in the “standard” Jordan timeline of 30 months for Superior Court matters and eighteen months for provincial court matters. I have already found even this time in the Superior Court system to be exceptional in the sense of exceptionally fast. Applying Agpoon to the facts of this case, the exceptional circumstance of Covid clearly accounts for sixteen months or more of the delay to the end of trial in this case. A more precise calculation is not required given the arrest dates here. The time to the end of trial has not violated the rights of any applicant to trial within a reasonable time for this reason as well.

Analysis and Conclusion

[11] While the cases cited by the Crown differ somewhat on the facts, they endorse the approach of recognizing the systemic and pervasive impact of the pandemic and so have attributed blocks of time to discrete exceptional circumstances. For example, in Agpoon the Court rejected the reasoning of the application judge that the Crown should be faulted for not preferring an indictment earlier. The Court held that the approximately 14 months that elapsed until the indictment was preferred should all be taken as a discrete exceptional circumstance.

[12] In R. v. Jordan, 2016 SCC 27 the majority decision expressed concern that there was a culture of complacency with respect to delay. Having been in court regularly during the pandemic there was certainly no culture of complacency. In this regard I refer to all of the challenges that I referred to in J.D. and which Dunphy J. referred to in Wiseman. Judges, Crown and Defence counsel worked harder than ever under very difficult conditions. Additional funds were provided to upgrade technology and adapt courtrooms to allow social distancing.

[13] Having canvassed my predecessor as LAJ, who was in Owen Sound from 2011 until 2018, we are aware of only one 11(b) application in Grey-Bruce prior to the pandemic. That application was dismissed. We now have four pending 11(b) applications. The only thing that changed was the pandemic. Simple tasks necessary to move a case along became much more difficult and time consuming. A backlog was created.

[14] The courts were severely impacted by the pandemic, in terms of day to day operations, from March 15, 2020 to March 1, 2022 when social distancing requirements were lifted. There continued to be an impact as some trial participants continued to be ill and not able to attend court. Finally, the two years of severe impact resulted in an unavoidable backlog of cases.

[15] In the period March 15, 2020 to March 1, 2022 I have already deducted 143 days for exceptional circumstances and defence delay. I take that into account in addressing pandemic delay in order to avoid double counting.

[16] The Crown, having submitted that 1104 days should be deducted for defence delay, waiver and exceptional circumstances, submitted there need only be a “modest” pandemic deduction of 6 months. As discussed, I would only deduct 308 days for delay, waiver and exceptional circumstances.

[17] In all of the circumstances of this case I would deduct 14 months for pandemic delay. This recognizes the delay which occurred during the first two years of the pandemic as well as knock on delay.

[18] As set out above the net delay apart from the pandemic is 1383 days which is 45.46 months. Deducting 14 months for pandemic delay still results in net delay in excess of 30 months.

[19] As such I grant the application for a stay of proceedings. The remand of the Applicant to the next assignment court is, therefore, vacated.

Sproat, J.

Released: April 5, 2024