Court File and Parties

COURT FILE NO: CR 22-30000360-0000 DATE: 20240506

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – EMRON CONSTANTINE

Applicant: Emron Constantine

Counsel: P. Kelly for the Crown M. Anevich and K. Scott for Emron Constantine

HEARD at Toronto: March 28, 2024 and April 16, 2024

Publication Restriction Notice

By order made under subsection 486.4 of the Criminal Code of Canada, information that may identify the complainant may not be published, broadcasted, or transmitted in any manner.

By order made under subsection 517(1) of the Criminal Code of Canada, information that may identify the complainant may not be published, broadcasted, or transmitted in any manner.

RHINELANDER, J.

Reasons for Decision

Overview

[1] Emron Constantine was arrested and charged on October 3, 2019, with four counts of assault, two counts of sexual assault, and one count of uttering threats. The Information was sworn on October 3, 2019, and the Indictment was signed on June 28, 2022. The matter is scheduled for a five-day judge and jury trial on May 13, 2024, and anticipated to conclude May 17, 2024.

[2] The total amount of time elapsed from the date the information was sworn to the anticipated conclusion of the trial is 1689 days (4 years, 7 months, 15 days; or 55 months and 15 days, including the end date). This period exceeds the 30-month presumptive ceiling for trials in the Superior Court of Justice as set out in R. v. Jordan, 2016 SCC 27. Mr. Constantine has applied for a stay of proceedings based on an alleged violation of his s.11(b) Charter right to a trial within a reasonable time. In the alternative, it was argued that the time this matter had been in the Superior Court of Justice, from June 28, 2022 to May 17, 2024, was excessive.

[3] Both parties agree that portions of the delay that occurred in the Ontario Court of Justice due to the Covid-19 pandemic, are “exceptional circumstances” and must be deducted under the Jordan framework. This timeframe totaled 210 days from March 18, 2020, to October 14, 2020.

[4] The Applicant’s position after deductions for the exceptional circumstances (210 days) and defence delay (386 days) is a net delay of 1093 days (36 months) which exceeds the presumptive ceiling by 180 days (6 months).

[5] The Crown opposes the application and submits additional periods of time should be allotted as defence delay and further exceptional circumstances, thereby reducing the net delay to 602 days (20 months), well below the presumptive ceiling.

Background

[6] The charges against Mr. Constantine are all alleged to have been committed against his former common-law partner.

[7] On October 2, 2019, the Complainant reported to the police several historical assaults dating back to the summer of 2010 where it was alleged, she was kicked in the leg by Mr. Constantine during an argument. In 2011, 2014, and 2015, it was alleged that Mr. Constantine slapped her in the face during arguments about his infidelity.

[8] The Complainant also reported between February and March of 2019, Mr. Constantine had sexually assaulted her. On the first occasion, the parties were in the living room when Mr. Constantine touched her body, including her breasts, and attempted to kiss her. The Complainant told him to stop, that she didn’t want to be touched, and pushed him away. The second incident occurred while the Complainant was asleep in her room. Mr. Constantine entered the room naked and touched her on the buttocks and leg area. Mr. Constantine got into the bed and attempted to remove her underwear. The Complainant told him to stop and tried pushing him off, however he was able to insert his penis into her vagina, thereby penetrating her.

[9] The Complainant reported the above incidents to police and further advised the relationship had been strained since 2016 when she discovered Mr. Constantine had become engaged to another woman. This resulted in several arguments where Mr. Constantine threatened to kill her. The threats were alleged to have occurred between January 1, 2016, and October 2, 2019.

[10] The timeframes of the allegations are relevant to the Crown’s election and impacted the s.11(b) Application.

Analysis

[11] With the release of R. v. Jordan in 2016, the Supreme Court of Canada established a new framework for assessing applications pursuant to s.11(b) of the Charter based on a presumptive ceiling. The purpose was to emphasize the responsibilities of all participants within the criminal justice system to ensure timely trials. If the net delay, after deducting any defence delay, exceeds the presumptive ceiling, the onus is on the Crown to demonstrate exceptional circumstances existed, such as discrete or unforeseen events; or the case was particularly complex. This case was not complex.

[12] There are six discrete periods from the time the information was sworn until the anticipated last day of trial that require scrutiny. Four of these periods are contested, however, the Respondent asserts the success of the Application hinges on two specific periods of delay.

i) Covid-19 Lock Downs - March 18 – October 14, 2020 (210 days)

[13] A judicial pretrial was scheduled for March 18, 2020. By that date, 168 days had passed since the Information was sworn.

[14] Between March 18, 2020, and October 14, 2020, courts throughout Ontario closed due to the pandemic. No trials were scheduled because it was unclear when the courts, in this case, the Ontario Court of Justice would reopen. This delay was 210 days.

[15] The parties agreed this period should be considered a discrete exceptional circumstance. When deducted from the total delay, 1689 days – 210 days = 1479 days net delay.

ii) Courts Rescheduling - October 14 – November 10, 2020 (27 days)

[16] When the Ontario Court of Justice reopened, many cases needed to be rescheduled. All justice participants worked fervently to triage and prioritize the scheduling and rescheduling of matters adjourned during the Covid-19 pandemic. This resulted in additional requirements and further judicial pretrials at the five different provincial court houses in Toronto. The process at each courthouse was not uniform.

[17] The Applicant attended on October 14, 2020, and his matter was adjourned to November 10, 2020. The courts prioritized scheduling of in-custody matters, and continuing trials. The Applicant was ready to set a trial date but was required to submit a form to request a second judicial pretrial. Trial coordinators were booking appointments with counsel to canvas and schedule trial dates. Due to the backlog, pretrials were not available until November. The matter was adjourned to November 10, 2020, in anticipation of obtaining an early pretrial.

[18] The second judicial pretrial was held and the matter was adjourned to December 15, 2020 to set a date for trial as the appointment with the trial coordinator was December 14, 2020.

[19] The Crown argued this period should be attributable to the defence for not booking a further judicial pretrial in advance of the October 14, 2020 court date. It was submitted that the Crown and the court were prepared to schedule a trial, but the Applicant’s counsel had failed to file the necessary form.

[20] I disagree with this submission. It is clear from the record that neither the Crown nor the Court were prepared to set a trial date without a further judicial pretrial. Further it became apparent on a subsequent court appearance that the parties were also required to participate in a scheduling meeting with the trial coordinators office after the pretrial had been held.

[21] On the August 5, 2020, court appearance, neither the Applicant or his counsel were in attendance. The Crown noted on the record that he anticipated there may be a need for a second judicial pretrial and requested the matter be adjourned to the October court date. He surmised that hopefully counsel and his colleague would work something out in the interim.

[22] After the courts reopened, information about the process and the status of matters scheduled and/or rescheduled varied due to the volume of matters at each of the different courthouses in Toronto. Trial coordinators and court offices were bombarded with requests to reschedule trial continuations, in-custody matters, adjourned trials, and pleas. The trial coordinators throughout the city worked tirelessly to get through the backlog. As noted, Jordan encouraged all parties to be more proactive to eliminate or avoid inefficiency. There is no evidence before me to demonstrate what, if any, efforts were made by the Crown to schedule a second pretrial, nor if the counsel for the Applicant was made aware of its necessity prior to the court appearance that day.

[23] Therefore, the twenty-seven days is not attributable to defence delay nor have I found it to be an exceptional circumstance.

iii) Trial Adjournment - June 17, 2021 – June 16, 2022 (365 days)

[24] On December 15, 2020, counsel for the Applicant appeared virtually and confirmed June 17 and 18, 2021, for trial. It was noted on the record by counsel for the Applicant that the Crown had elected to proceed summarily.

[25] The matter was required to come back on May 31, 2021, to confirm all parties were ready to proceed to trial. On that date, counsel for the Applicant advised the court, his client had recently fractured his ankle and required surgery. The surgery was delayed due to medical complications suffered by the Applicant and was rescheduled for June 1, 2021. His client was on pain medication and was anticipated to be limited in his mobility for the weeks following the surgery.

[26] The adjournment application was granted, the trial dates vacated, and the Applicant was remanded to a date later in June. New trial dates were selected and confirmed on the record for June 16 and 17, 2022.

[27] At the outset, counsel for Mr. Constantine readily acknowledged this period should be attributable solely to the defence. I agree.

iv) Election Issue - June 16, 2022 – September 25, 2023 (466 days)

[28] The Applicant was arrested on October 3, 2019, and held for a bail hearing. He was released the following day on a recognizance with conditions and remanded to November 20, 2019, for a first appearance. Additional court appearances occurred, while the Applicant awaited disclosure. During that time, counsel obtained preliminary disclosure, a crown screening form, and participated in a crown pretrial.

[29] On December 11, 2019, counsel for the Applicant (not counsel on this proceeding) advised the court a crown pretrial had been held and was fruitful insofar as the number of charges the Crown had elected to proceed on had been reduced. Counsel stated, “I was advised by my friend that they’re not going to be proceeding on whatever is outside of six months limitation period.” The Court asked the Crown Attorney, who addressed the matter, and was directly responsible for supervising all the assistant crown attorneys in that office, if he had any further comments. The Crown confirmed he did not. Counsel advised a further crown pretrial should be held and a further remand date was agreed upon.

[30] On December 15, 2020, just over a year later, the Applicant’s counsel confirmed again on the record when setting the first trial in the Ontario Court of Justice, that the Crown was proceeding summarily. This was the second occasion that the Crown did not dispute its intention to proceed summarily regarding the charges proceeding to trial.

[31] On May 30, 2022, both parties confirmed their readiness to proceed to trial on June 16, 2022. It was unclear whether the proceedings were in person, hybrid, or fully virtual. An agent appeared for counsel for the Applicant and did not have instructions regarding the manner with which the proceedings were to be conducted.

[32] On June 13, 2022, counsel advised the court that the Crown filed an application for the complainant to testify via Zoom. The defence was opposed and expected the complainant to testify in person. The Crown’s application was served electronically to the Applicant’s counsel on Sunday, June 12, 2022, and was scheduled before the trial judge on the first day of trial.

[33] On June 16, 2022, Applicant attended for trial. The Crown advised there had been some miscommunications or issues regarding the Crown election which resulted in her decision to now proceed by Indictment. The assistant crown attorney had recently been assigned the file. Counsel for the Applicant, as was his right, refused to waive the limitation periods for any charges outside the limitation period. Despite the Crown having acknowledged its intention to proceed summarily on two earlier occasions, no formal election had been noted on the information.

[34] The Crown advised the Court she had no choice but to proceed by indictment because all the charges were outside the limitation period. This statement was incorrect. The offence dates for six of the seven charges were outside the limitation period. The count of uttering threats fell within the six-month limitation period and was alleged to have occurred between January 1, 2016, and October 2, 2019.

[35] The defence disputed the Crown’s characterization of there being a miscommunication. His position was the summary election was very clear from the charge screening form through to the trial scheduling forms beginning December 2020. He advised the court one form stated the accused had no election as the Crown was proceeding summarily. The defence was prepared and came ready to proceed to trial based on the charge(s) within the limitation period. Counsel further advised he was considering an abuse of process application and whether a s.11(b) application was available at that time.

[36] Per Jordan, the presumptive ceiling for matters proceeding in the Ontario Court of Justice is eighteen months. The trial was scheduled for two days and set to complete on June 17, 2022. The presumptive ceiling of eighteen months is equivalent to 547.5 days. Had the matter completed as scheduled, after deductions for defence delay (365 days) and exceptional circumstances (210 days), the net delay was 413 days (13.6 months), well within the presumptive ceiling for provincial court trials.

[37] With the Crown’s election to proceed by indictment, the defence elected a trial before a judge and jury. The matter was remanded to the Superior Court of Justice where a trial date was scheduled for September 25, 2023. The Crown submitted the first time they became aware the Applicant wished to elect trial before a judge sitting with a jury was on June 16, 2022. In fairness to the Applicant, this was the first time he was advised he had an election as to his mode of trial. Prior to this, the Crown had maintained its intention to proceed summarily.

[38] The Crown argued the period from June 16, 2022 to the first trial date in Superior Court, less 35 days attributable solely as defence delay, should be apportioned equally between the Crown and Defence. This calculates to 466 days less 35 days equals 431 days. Therefore, the Crown argued 215 days should be attributed to the Defence.

[39] The Crown’s position was premised on the fact that neither the Crown or Defence, recognized or were aware the limitation period implemented by Bill C-75 did not apply in this case. The Crown argued because both parties failed to notice the issue, that both parties should bear part of the blame for the delay caused by the late election to proceed by indictment, and the Applicant electing a trial by judge and jury.

[40] For the following reasons, I disagree and dismiss this argument.

[41] Bill C-75, an Act to amend the Criminal Code, the Youth Criminal Justice Act, and other Acts and to make consequential amendments to other Acts received Royal Assent on June 21, 2019. The Act, amongst other things, extended the limitation period for all summary conviction offences from six months to twelve months. The limitation period is the timeframe from the date of an offence to the date the charge(s) is (are) laid, and the information sworn. This amendment came into effect September 2019, after the alleged offence date. The amendment was not retrospective and therefore was not applicable to the two counts of sexual assault.

[42] In Canada, summary conviction matters are tried before provincial court judges. Where the crown elects to proceed by indictment on a hybrid offence or the offence is strictly indictable, the accused person has the right to elect their mode of trial and may elect a trial in either the provincial or superior courts. The Act sought to extend limitation periods for all summary conviction offences to permit crowns the flexibility of electing to proceed summarily on more offenses. Summary conviction matters usually proceed through the courts quicker and therefore have a lower presumptive ceiling.

[43] The Crown argued its election to proceed summarily was based on the erroneous conclusion that the limitation for the two sexual assault counts was twelve months. The Crown relied on the crown screening form and defence counsel’s comments on two court appearances for his argument that all parties were of the same understanding.

[44] It is clear the charge screening form referred to proceeding with charges within a twelve-month limitation period. However, the court record reflects a different understanding by counsel for the Applicant. On December 12, 2019, counsel clearly advised the court, the Crown would not be proceeding on any charges beyond the six-month limitation period. The Crown Attorney was asked if he had any comments and/or submission, and he did not. Nothing was said to correct the record regarding the limitation period.

[45] The Crown, on this application, argued both parties had always contemplated the trial proceeding on the two counts of sexual assault and one count of uttering threats. The defence argued, the Crown became aware of the issue with the limitation period the morning of the trial and indicated her intention to proceed by indictment on all seven counts. Prior to this date, it was clear the Crown had no intention to proceed on the four counts of assault, as to do so required the Crown to proceed by indictment. The Crown argued if the defence had waived the limitation period, the trial could have proceeded on June 16, 2022 (assuming its application to have the complainant testify via Zoom was granted). Neither counsel on this application were at the trial.

[46] There was no evidence before me regarding what information was conveyed to counsel the morning of trial or what offences the crown sought waivers for the limitation periods. Nor was there any evidence to establish the crown advised counsel that she intended to proceed on all charges. The Crown could have chosen to proceed on the single eligible count of Uttering Threats as it was within the six-month limitation period. Clearly the Crown had not considered nor had any intention to proceed solely on that count based on her comments to the court, which confirmed her erroneous belief and understanding that none of the charges fell within the limitation periods.

[47] Questions were put to the Crown, if the true intent of the parties was to proceed only on the two sexual assault counts and the Utter Threats on the trial date of June 16, 2022, why all seven counts were included on the Indictment. He was unable to provide an answer. There was no evidence before the Court to support either party’s submissions regarding what charges the Crown sought a waiver of the limitation period on the trial date. In the absence of any evidence, I am unable to make any findings on this point.

[48] Counsel for the Applicant may well have been aware there was only one count that fell within the six-month limitation period and anticipated the Crown electing to proceed summarily on the two sexual assault counts after which he could seek to have the proceedings declared a nullity. The Crown’s position was the defence either deliberately or by mistake failed to raise the issue at any point and therefore was equally at fault for the delay.

[49] I am unaware of any onus or obligation on defence to waive limitation periods. The Crown conceded it made an error about the limitation periods for the sexual assault charges, however, it has not been established that the defence made the same mistake. The Crown argued it was clear counsel for the Applicant failed to recognize the charges exceeded the limitation period based on his comments that it was “all brand new to him” and he “came here to run the summary election trial”. Those comments may also be interpreted as counsel being surprised by the Crown’s change in tactics to proceed by Indictment.

[50] Despite this issue, the matter was on track to be completed within the Jordan timelines.

v) Superior Court of Justice - August 9, 2022 – September 13, 2022 (35 days)

[51] The Applicant first appeared in the Superior Court of Justice on June 28, 2022. A judicial pretrial was scheduled with or without counsel. Between August 9, 2022, to September 13, 2022, the matter was adjourned several times to permit the Applicant an opportunity to retain counsel prior to setting a trial date. Ultimately, the trial was set for five days on a with or without counsel basis to commence September 25, 2023.

[52] The Applicant conceded twenty-one days of this time should be attributed as defence delay.

[53] The Crown argued the entire thirty-five days was defence delay.

[54] I accept the Crown’s submissions and find that the entire thirty-five days is attributable as defence delay.

vi) Second Trial - September 25, 2023 – May 17, 2024 (236 days)

[55] On September 25, 2023, the Applicant attended for his trial and appeared before Justice Forestell, in the “Trials in Holding” court. The parties were ready to proceed, however, there was no judge available to hear the trial. The parties were directed to reattend the following morning at 9:30 a.m.

[56] I can do no better to describe this process than Justice Code in R v. Liu, 2024 ONSC 2022:

[26] … The role of this Court is to assemble all the cases scheduled for trial in that week and determine which cases are ready for trial, which cases are discussing resolution, and which cases are not ready to proceed for any number of reasons (for example, due to unavailable witnesses, sickness of counsel, or the Crown simply reassessing its case). This phenomenon is known as the “collapse rate” and it has always existed in the criminal courts, at least in my experience over the last 45 to 50 years. After assessing the “collapse rate”, the usually experienced judge who is presiding in this Court (which starts at 9:00 a.m.) assigns those cases that are ready to proceed and that have not already been assigned to available judges, sends the cases that are discussing resolution to a further JPT, and orders the remaining cases to return the next day (when they may resolve or be unable to proceed, or when a further judge or judges may become available). This process repeats itself, usually over the first three days of every week.

[27] The corollary of the "collapse rate" on the day of trial, is that trial lists have historically been overbooked. There are almost always excess cases scheduled for trial in a given week because the reality is that a certain number of cases invariably "collapse", either on the trial date, shortly before the trial date, or shortly after the trial date. As a result, trial scheduling involves some art and some science. Trial Coordinators and scheduling judges try to predict the likely "collapse rate". In some weeks these predictions are accurate and in other weeks they are inaccurate. A properly functioning Court will have enough flexibility, in terms of available judges, so that a judge can be called upon to take up a case that has not collapsed and that has not been assigned. When the Court has no such flexibility, because of a shortage of judges, a case that is ready to proceed and that has not been assigned, will not be reached. In other words, the Court must have enough judges to try the cases that do not "collapse".

[57] The parties reattended the following morning before Justice Forestell, and were told again, “we have no judge for you”. Justice Forestell advised the parties that she did not expect they would have anyone available the following day and didn’t anticipate the matter going ahead that week. It was determined, with no judge available to start the trial, and the following week having only four court days available, the matter would not be completed. This was not the only matter unable to proceed that day due to limited judicial resources. The matter was remanded to practice court the following week to set a new trial date.

[58] In the interim, Ms. Scott, counsel for the Applicant was in communication with Ms. Garrity to reschedule the trial. On October 3, 2023, the parties advised the court of the status of the matter and efforts being made to set a new trial date. Counsel for the Applicant advised the court that the Jordan presumptive ceiling was October 20, 2023. Dates in December that had initially been offered were no longer available due to crown unavailability. Ms. Scott sought clarification from the Crown regarding what dates the Court had available versus what dates the Crown was available. A response had not been received from the trial coordinator’s office and the matter was further adjourned.

[59] Correspondence between the trial coordinator’s office and counsel indicated the court had availability to schedule this matter for November 27, 2023, or January 29, 2024. Both dates exceeded the Jordan ceiling of October 20, 2023. Ms. Scott was available for the November date; the Crown was not. The Crown was available for the January date; Ms. Scott was not. Ms. Scott had offered additional prior to January 29, 2024; however, the court and the Crown were unavailable. Ultimately, a new trial date was scheduled for five days commencing May 13, 2024.

[60] The Crown argued the period between September 25, 2023, to May 17, 2024, should be apportioned as an exceptional circumstance directly linked to the pandemic backlog. Alternatively, he argued the crown and court were available January 29, 2024, more than 3 months earlier than the agreed upon date.

[61] The Crown relied on R. v. Martins, 2024 ONSC 146, where a similar application was argued, and the first trial had ironically been scheduled for September 25, 2023. The facts of the two cases are distinguishable. In Martins, the accused person was entitled and had a 3-day preliminary inquiry. Justice Dunphy attributed 90 days delay as exceptional circumstances in the provincial court due to Covid-19 backlogs. He also found 84 days of defence delay between the first trial and the newly scheduled date. This latter decision was based on the court and crown offering earlier availability for a second trial that was below the Jordan ceiling. Neither factor was present in this case.

[62] This matter would have been completed within the Jordan timelines, had a judge been available. It is this additional 236 days of delay caused directly by a lack of judicial resources that resulted in this matter exceeding 30-months.

[63] In R. v. Alli, 2023 ONSC 5829, the situation in this jurisdiction was described by Forestell, J. during the same period of delay in issue here:

This jurisdiction has a very high volume of serious and complex cases. The volume of cases in this jurisdiction has increased appreciably in recent years. As noted by Molloy J. in R. v. R.D., Toronto has a higher percentage of complex trials and long trials than other jurisdictions.

There are more homicide trials in Toronto than in any other jurisdiction in Canada. There are also more large 'project' cases in Toronto than in other jurisdictions. The 'project' cases can involve hundreds of accused and multiple, complex applications. The length and complexity of trials has increased with no increase in the number of judges and no increase in the number of courtrooms.

In addition, this jurisdiction continues to deal with a backlog of cases created by the suspension of jury trials for a total of approximately 11 months during periods of the COVID-19 pandemic. While the last jury suspension ended about twenty months ago, the completion of backlogged trials in addition to the normal caseload has created ongoing systemic delay.

In spite of the high volume of cases and the effects of the COVID-19 backlog however, simple trials were generally being set in 2022 within 12 months of indictments being filed. The trials were set with the expectation that the court would have a full complement of judges at the time of the trials.

In April of 2023 when this trial was not reached because there was no judge available to hear it, this jurisdiction had seven judicial vacancies. There are still seven vacancies in this jurisdiction. The number of vacancies has remained essentially unchanged for at least a year.

On May 3, 2023, 20 days after this trial was not reached because of a lack of judicial resources, Chief Justice Wagner expressed his concern about the chronic shortage of federally appointed judges. He pointed out that courts were operating with 10 to 15 per cent of their judicial positions vacant. These comments are applicable to this jurisdiction.

Had the judicial positions in Toronto been filled, this case and others would not have been delayed.

Judges of this Court are working at capacity. It is common for judges on the criminal team in Toronto to work through scheduled non-sitting weeks and even through vacation weeks to attempt to ensure that trials are heard in a timely fashion. All participants in the process have done everything possible to avoid delay. This case has taken longer than it should have because this court lacked the judicial resources to hear the case in a timely manner.

[64] The issue of judicial unavailability in this jurisdiction has also been discussed in R. v. Bowen-Wright, 2024 ONSC 293, R. v. Constantino 2024 ONSC 491, R. v. Liu 2024 ONSC 2022, and R. v. Downey, 2024 ONSC 2157. I agree with the comments above and set out in these decisions.

[65] The position of the Supreme Court of Canada made clear in Jordan, “the new framework implicates the sufficiency of resources by reminding legislators and ministers that unreasonable delay in bringing accused persons to trial is not merely contrary to the public interest: it is constitutionally impermissible, and will treated as such”. (para.117)

[66] In Liu at para 52, Justice Code’s opined on the statement above:

In my view it was unacceptable for the federal government to have ignored the May 2023 written warning from the Chief Justice of Canada. This kind of stubborn institutional refusal to respond to a crisis in the justice system is inexcusable and it is “constitutionally impermissible” as the Supreme Court put it in Jordan, supra at para 117.

[67] The framework set a hard cap for matters proceeding in the provincial and superior courts. With the elimination of preliminary inquiries for many serious offences, an increase in crime, the backlog created by Covid, and other factors, governments have a duty to ensure a full complement of judicial resources at all levels of court.

[68] I do not accept the Crown’s submission that “the court’s unavailability to accommodate a trial of this seriousness is exceptional and directly linked to the pandemic backlog”. This argument is undermined regarding the seriousness of the case given the intention to proceed summarily.

Disposition

[69] The total delay in this matter is 1689 days. Defence delay is 400 days. It was agreed 210 days were attributable to exceptional circumstances. Therefore, the net delay is 1079 days which exceeds the 30-month presumptive ceiling (913 days).

The 11(b) Application is granted, and the charges are stayed pursuant to section 24(1) of the Charter. Given my decision, it is not necessary to consider the alternate argument whether this matter was in the Superior Court of Justice for an excessive period.

Rhinelander, J. Released: May 6, 2024

COURT FILE NO: CR 22-30000360-0000 DATE: 20240506 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – EMRON CONSTANTINE REASONS FOR DECISION Rhinelander J. Released: May 6, 2024