Court File and Parties

Court File No.: CR-21-1-664 Date: 2024-06-12

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING - and - WINSTON DURANT

Counsel: Rachel Verboom, for the Crown Mitchell Huberman, for the accused

Heard: April 12, 2024

Subject to any further Order of a court of competent jurisdiction, an Order has been made in this proceeding, pursuant to s. 486.4 of the Criminal Code, directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast or transmitted in any way.

K.L. Campbell J.:

Pre-Trial Ruling

Application to Stay the Proceedings Pursuant to s. 11(b) of the Charter of Rights

I Introduction and Overview

[1] The accused, Winston Durant, is charged with sexual assault, sexual assault with a weapon, sexual assault causing bodily harm, forcible confinement, assault, assault with a weapon, and threatening to cause death or bodily harm. Essentially, the accused is alleged to have forcibly raped the female complainant, both vaginally and anally, while using a large machete-style knife to violently threaten her. These offences are all alleged to have taken place at the accused’s residence in Toronto on or about February 14-15, 1991.

[2] Immediately after the alleged offences, the complainant sought medical attention, and complained of the alleged offences. While the police were not able to immediately identify the perpetrator of these offences, the police were able to obtain a DNA profile from the semen of the offender, that they were able to secure from the complainant.

[3] The crimes remained “unsolved” from the police perspective until October 20, 2020, when the national DNA Databank discovered a genetic match between: (1) the DNA profile from the semen of the offender, from the complainant’s body, on the day of the alleged sexual offences; and (2) the DNA profile from the accused person that was subsequently entered into the national DNA Databank.

[4] The accused was ultimately charged with all these offences on November 19, 2020. Most recently, the jury trial of the accused in this case was scheduled to start, in this court, on May 13, 2024, and it was anticipated to last approximately two weeks, being over by around the end of May.

[5] On April 12, 2024, by way of a pre-trial motion, the accused brought an application, seeking to stay these criminal proceedings against him, alleging that he has not been tried (and cannot now be tried) within a reasonable time, in violation of the constitutional right, protected by s. 11(b) of the Canadian Charter of Rights and Freedoms. However, the Crown argued that, when all the factual circumstances of this case are taken into account, there has been no violation of s. 11(b) of the Charter of Rights, and that the trial of this matter should proceed as scheduled.

[6] Section 11(b) of the Charter of Rights guarantees that any person charged with an offence has the right to be “tried within a reasonable time.” The Supreme Court of Canada has carefully outlined, in R. v. Jordan, 2016 SCC 27, [2016] S.C.R. 625, the nature of the legal analysis that is required in determining whether an accused as been tried within a reasonable time. The culture of complacency towards speedy trials, that was permitted in an earlier era, has been abandoned. Moreover, in cases where there has been a violation of s. 11(b) of the Charter of Rights, the minimum appropriate constitutional remedy is a stay of the criminal proceedings against the accused. A judicial stay of proceedings is, of course, tantamount to an outright acquittal. See: R. v. Jewitt, [1985] 2 S.C.R. 128, 21 C.C.C. (3d) 7.

[7] There is, however, at least one undeniable factual reality that underlies this important constitutional framework. In most criminal cases, the accused does not want a trial within a reasonable time. Indeed, in many cases, an accused person charged with criminal misconduct is not the least bit interested in having a speedy trial, where guilt or innocence can be quickly and fairly determined. Instead, what an accused person wants, in many cases, is to be able to realistically complain that he or she has been denied a trial within a reasonable time, so that he or she can obtain a judicial stay of proceedings (the equivalent of an acquittal) without ever facing a trial on the merits of the criminal charge. It is that fundamental reality that must realistically inform many s. 11(b) Charter applications. See, for example: R. v. Hurlbert (1988), 66 C.R. (3d) 391, at p. 3394; affirmed: R. v. Hurlbert (1989), 74 C.R. (3d) 280. In the result, courts must ensure that an accused does not benefit from his “own delay‑causing conduct” or from defence “tactics aimed at causing delay.” In other words, an accused cannot tactically engage in conduct that helps cause delay, and then turn around and argue that this delay has resulted in a denial of his or her right to be tried within a reasonable time. See: R. v. Ste-Marie, 2022 SCC 3, 412 C.C.C. (3d) 1, at para. 11; R. v. Zahor, 2022 ONCA 449, [2022] O.J. No. 2628, at para. 64; R. v. J.F., 2022 SCC 17, 79 CR (7th) 281, at paras. 58-59.

[8] In my view, this case is a prime example of that unfortunate reality at work. More particularly, I am convinced that the accused in this case has never wanted a trial within a reasonable time. Indeed, I am satisfied that the history of this case shows that the accused has done what he could to avoid having a trial within a reasonable time. He has done his level best to “lock-in” lengthy periods of delay in his case, and has steadfastly resisted all efforts by the Crown to try to move his case forward in a more-timely fashion. It was only when he was eventually successful in creating a record of delay, and after the female complainant died (i.e. the Crown’s main witness – apart from the compelling DNA evidence – finally succumbed to her disease), that the accused complained that he has not been tried within a reasonable time, in violation of s. 11(b) of the Charter of Rights.

[9] At the conclusion of oral argument, and after having already reviewed all of the written materials filed by the parties, I advised counsel that I had concluded that there has been no violation of s. 11(b) of the Charter of Rights in all of the circumstances of this case, and that the trial of this matter should, accordingly, proceed as scheduled, starting on May 13, 2024. I also advised the parties that I would eventually provide them with reasons explaining this decision. These are those reasons.

II The Governing Framework of Analysis

[10] In R. v. Jordan, the Supreme Court of Canada adopted a new analytical framework for the resolution of claims under s. 11(b) of the Charter of Rights, rejecting and overturning the former analysis under R. v. Morin, [1992] 1 S.C.R. 771, 71 C.C.C. (3d) 1. See also: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659; R. v. Kovacs, 2023 ONSC 5616, at paras. 11-15; R. v. Zahor, at paras. 60-81.

[11] Essentially, the “heart of this new analytical framework” is a “ceiling,” of 18 months for cases proceeding in the provincial court and 30 months for cases proceeding in the Superior Court, beyond which the delay is “presumptively unreasonable.” See: R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 451, at para. 32. More particularly, in R. v. Coulter, at paras. 33-59, the Court of Appeal for Ontario, in a judgment by Gillese J.A., helpfully summarized the new governing analytical framework, essentially, as follows:

• Calculate the total delay in the case, which is the period from the date of the information commencing the charge, to the date of the actual or anticipated end of the trial proceedings. See also: R v K.G.K., 2020 SCC 7, [2020] 1 S.C.R. 364; R. v. Allison, 2022 ONCA 329, 414 C.C.C. (3d) 150, at paras. 35-43.

• Subtract any defence delay from the total delay, which results in the net delay. Defence delay has, basically, two components, namely: (1) delay arising from clear and unequivocal defence waiver, explicit or implied; and (2) delay caused solely by the conduct of the defence, such as frivolous applications and defence adjournment requests, but which includes situations where “the court and the Crown are ready to proceed but the defence is not.” See also: R. v. J.F., at paras. 32-36, 43-52.

• Compare the net delay in the case to the governing presumptive ceiling.

• If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of “exceptional circumstances” that are beyond the Crown’s control. If the Crown cannot rebut the presumption, a stay of proceedings will follow.

• The list of exceptional circumstances is not closed but, generally speaking, falls into two categories: (1) discrete events, such as a medical or family emergency; and (2) particularly complex cases, that require an inordinate amount of trial or preparation time. See also: R. v. Morash, 2021 ONCA 335, 405 C.C.C. (3d) 468, at para. 12.

• Subtract any delay caused by any “discrete events” from the net delay, leaving the remaining delay, which is then used to determine whether the presumptive ceiling has been reached. See also: R. v. MacIsaac, 2018 ONCA 650, 141 O.R. (3d) 721, at para. 44.

• If the remaining delay exceeds the presumptive ceiling, the court must next consider whether the case was particularly complex, such that the time the case has taken is justified and the delay is reasonable.

• If the remaining delay falls below the presumptive ceiling, the onus is then on the defence to show that the delay is unreasonable. To do so, the defence must establish two things, namely: (1) that 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 both of these factors, the s. 11(b) Charter application must fail. Accordingly, stays of proceedings in cases falling “beneath the presumptive ceiling” will be granted only in “clear cases.” See also: R. v. J.F., at paras. 68-73.

[12] Importantly, the Supreme Court of Canada has repeatedly called upon all justice participants to move cases forward, bringing each accused promptly to trial. See: R. v. Jordan, at paras. 112-117; R. v. Cody, at paras. 36-37; R. v. J.F., at paras. 1, 30-31, 33-36; R. v. Boulanger, 2022 SCC 2, 411 C.C.C. (3d) 279, at para. 8. More particularly, in R. v. Thanabalasingham, 2020 SCC 18, [2020] 2 S.C.R. 413, at para. 9, the Supreme Court highlighted this important responsibility:

Nothing in the foregoing should be taken as a retreat from the message that Jordan sought to convey, or from the principles and policy considerations underlying it. Jordan sought to put an end to an era where interminable delays were tolerated, and to the complacent, “anything goes” culture that had grown up in the criminal justice system. The clear and distinct message in Jordan was that all participants in the system are to take proactive measures at all stages of the trial process to move cases forward and bring accused persons to trial in a timely fashion. Crown counsel is tasked with “making reasonable and responsible decisions regarding who to prosecute and for what, delivering on their disclosure obligations promptly with the cooperation of police, creating plans for complex prosecutions, and using court time efficiently” (Jordan, at para. 138). Defence counsel must be aware that, aside from time legitimately taken to respond to the charges, they “will have directly caused the delay if the court and the Crown are ready to proceed, but [they are] not” (Jordan, at para. 64; see also para. 65). As we did in both Jordan and Cody, we again emphasize the special role that trial judges – who are charged with curtailing unnecessary delay and changing courtroom culture – must play in this shift (Cody, at para. 37, citing Jordan, at para. 114). For example, where the defence seeks an adjournment, a court may deny it “on the basis that it would result in unacceptably long delay, even where it would be deductible as defence delay” (Cody, at para. 37). In sum, practices that were formerly commonplace or merely tolerated are no longer compatible with the right guaranteed by s. 11(b) of the Charter — a right that inures not just to the benefit of accused persons, but to the benefit of victims and society as a whole as well.

[emphasis added]

III Analysis

A. The Total Period of Delay

[13] The parties agree that the total period of delay that must be considered in this case is approximately 42½ months. That is the period of time from the commencement of the charges in this case (i.e., November 19, 2020) to the anticipated end of the trial proceedings (i.e., May 31, 2024). This total period of delay is obviously significantly longer than the 30-month presumptive ceiling established by the Supreme Court of Canada in R. v. Jordan, for cases proceeding in the Superior Court. See also: R. v. Shaikh, 2019 ONCA 895, 148 O.R. (3d) 369; R. v. Allison, at paras. 35-43. Incidentally, the accused was released from custody, on his own recognizance, on November 27, 2020.

B. Defence Delay

1. Introduction

[14] There are a number of periods of delay in this case that, in my view, must ultimately be attributed to the accused. They are delays that do not amount to an express or implied waiver of any period of delay by the accused, but they are delays that must still be attributed to the accused, for the reasons outlined below. See: R. v. J.F., at paras. 32-36.

2. Defence Refusal to Schedule Judicial Pre-Trial Hearing

[15] First, there was an early delay in these proceedings, of over a month (April 23-May 31, 2021), when defence counsel for the accused (not Mr. Huberman) refused to set a judicial pre-trial meeting, contending that further disclosure from the Crown was required first. This was an unjustifiable position, and effectively caused the ensuing needless delay. As the Court of Appeal for Ontario has indicated, it is neither proper nor reasonable to delay the setting of a judicial pre-trial hearing because disclosure by the Crown is not complete. There was nothing about the allegedly missing disclosure in the present case that would have made the judicial pre-trial hearing meaningless. Indeed, the topic of the nature and timeliness of the Crown’s disclosure could have been a useful topic of discussion at the judicial pre-trial hearing. See: R. v. Carbone, 2020 ONCA 394, 150 O.R. (3d) 758, at paras. 51-53; R. v. Hanan, 2022 ONCA 229, 161 O.R. (3d) 161, at paras. 43-46, reversed on other grounds: 2023 SCC 12, 426 C.C.C. (3d) 1; R. v. Allison, at paras. 44-52; R. v. Vannoordennen, 2023 ONSC 6848, at para. 16; R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, at paras. 32-38.

3. The Defence Request to Adjourn the Preliminary Inquiry

[16] The preliminary inquiry in this case was originally scheduled to take place on October 4-5, 2021. Any legitimate disclosure issues were resolved by the parties before that date. Nevertheless, defence counsel for the accused (again, not Mr. Huberman) brought an application to adjourn the proceedings, suggesting that the defence was still missing certain disclosure. In fact, they were not. However, just prior to the scheduled commencement of the preliminary inquiry, the complainant was hospitalized, and the preliminary inquiry was ultimately adjourned, on consent, for approximately one month (to November 4-5, 2021), to permit the complainant to be treated for her illness, and to eventually appear in court and be cross-examined by defence counsel.

[17] This period of delay cannot be attributed to the defence. While the Crown has suggested otherwise, this period of delay was, in fact, caused by the unforeseen illness of the complainant and her understandable unavailability as a witness. While defence counsel may have intended to bring an unnecessary adjournment application, that application was not the effective cause of the necessary adjournment of the preliminary inquiry to accommodate the health issues surrounding the complainant.

[18] While this period of delay would appear to be properly characterized as a “discreet event” that was unforeseen, unforeseeable and clearly beyond the ability of anyone to recognize and remedy (a topic I will return to), it is not a time period that can properly be attributed to the accused.

4. Defence Refusal to Re-Schedule Any Earlier Trial Dates

Defence Counsel Says that s. 11(b) of the Charter is No Longer in Issue

[19] There was a lengthy delay in the Superior Court in the trial proceedings in this case. More particularly, on January 17, 2022, the parties agreed to schedule the pre-trial motions in this case to start on June 26, 2023 (and last approximately one week), and they also agreed to schedule the anticipated three-week jury trial in this case to start on September 25, 2023.

[20] The Crown realized that this was a lengthy period of delay and quickly began to make efforts with the trial co-ordinator’s office to try to find earlier dates for the trial of this matter. See: R. v. Bulhosen, 2019 ONCA 600, 377 C.C.C. (3d) 309, at paras. 88-91. Further, the Crown had already openly expressed concern about the continued availability of the complainant as a witness in this case, given her grave illness and its likely progression. In any event, as a result of these diligent efforts by the Crown, defence counsel for the accused was offered a number of significantly earlier trial dates in this case by the Crown. Indeed, this happened eight different times. On each occasion, however, defence counsel (again, not Mr. Huberman) refused the option of an earlier trial for the accused (even though defence counsel would still have ample preparation time for the earlier proposed trial dates). Eventually, defence counsel expressly confirmed, in July of 2022, that s. 11(b) of the Charter of Rights was not in issue in this case, and that she was simply not available for an earlier trial date in this case anytime between June of 2022 through March of 2023. Based upon this clear and unequivocal acknowledgement, the Crown stopped trying to find earlier trial dates in this matter.

[21] Ultimately, in April of 2023, the complainant died of her illness.

[22] The pre-trial motions in this case nevertheless proceeded in the summer of 2023, concluding in mid-August of 2023.

[23] I fully appreciate that defence counsel cannot realistically be expected, or obliged, to keep their professional calendars open endlessly, in the event that any earlier trial dates might be offered to them by the Crown for any particular client charged with a criminal offence. See, for example: R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, at para. 23; R. v. Cowell, 2019 ONCA 972, 151 O.R. (3d) 216, at para. 32, leave to S.C.C. denied: . However, at the same time, an accused cannot realistically conduct himself, or instruct his or her lawyer to conduct themselves, so as to effectively lock-in a lengthy period of delay, and then steadfastly refuse all efforts to move the case forward more expeditiously, only to later complain that this very delay has ultimately resulted in a violation of s. 11(b) of the Charter.

[24] More particularly, in my view an accused person (such as the accused in the present case) cannot both: (1) expressly agree to a trial date a long time in the future, make no suggestion of any potential constitutional issue arising under s. 11(b) of the Charter from that long delay, subsequently expressly refuse any and all reasonable attempts to move the case forward in a more-timely fashion, and expressly state that there is “no issue” under s. 11(b) of the Charter, so as to effectively avoid having to respond to any further attempts in this regard; and (2) then ultimately complain that, by virtue of that delay, there has been a violation of his right to be tried within a reasonable time under s. 11(b) of the Charter of Rights.

[25] To do otherwise would allow, if not encourage, an accused person to try to take strategic advantage from helping to cause delays in their own criminal proceedings, only to later complain about those same delays in seeking a stay of proceedings under s 11(b) of the Charter. These delays, it must be recalled, are not caused by the busy professional schedule of defence counsel, but rather are effectively caused by an accused who is willing to try their best to lock-in a period of delay that they can later rely upon in seeking the coveted stay of proceedings, without a trial on the merits, because of an alleged violation of s. 11(b) of the Charter. See: R. v. J.F., at paras. 32-36, 43-52. Further, to do otherwise would hardly encourage the participants in the criminal justice system to work together to try to ensure that all criminal charges against an accused person are dealt with in a reasonable time. Indeed, quite the opposite. It would instead encourage an approach that permits one party to “lie in wait” and “ambush” the other. See: R. v. Thanabalasingham, at para. 9; R. v. Wright, 2024 ONSC 1893, at paras. 25-33.

[26] It may be that such conduct should properly be viewed as an implied waiver of s. 11(b) of the Charter of Rights. Afterall, the accused has consciously elected to agree to, and then accept the longer delay in order to avoid having to inconvenience the professional schedule of their busy lawyer. However, in all of the circumstances of this case, the accused must be responsible, at a minimum, for at least half of the total time period, of approximately 20½ months, between January 17, 2022 and September 25, 2023. That amounts to at least 10 months of this period of delay.

5. Conclusion

[27] In conclusion, subtracting the total “defence delay” in this case (11 months) from the total overall delay in the case (42½ months), results in a “net delay” of 31½ months, which is just over the presumptive “ceiling” of 30 months for cases proceeding in the Superior Court.

[28] Accordingly, the “net delay” in this case is presumptively unreasonable. To avoid the proceedings being stayed, the Crown must establish the presence of “exceptional circumstances” that are beyond the Crown’s control.

C. Exceptional Circumstances

1. Two Discrete Events

[29] There are, in my view, two discrete events that must be viewed as exceptional circumstances in the present case, and which contributed to the overall delay in this case.

[30] First, as I have already mentioned, the preliminary inquiry in this case was adjourned for approximately one month (from October 4-5 to November 4-5, 2021) because the complainant was hospitalized and was understandably unavailable to be a witness in this case. I have no hesitation concluding that this short period of delay is a discreet event. This illness was not something that was foreseen by anyone, or which could have been foreseen by anyone. Indeed, it was clearly beyond the ability of anyone to recognize and remedy. Accordingly, this one-month-long period of time is a discrete, exceptional event. See: R. v. Morash, at para. 12.

[31] Secondly, and more significantly, the Covid-19 world-wide pandemic took place between approximately March 17, 2020 and May 5, 2023. For many months during this lengthy time period, virtually all jury trials were cancelled, by order of the Chief Justice. This not only effectively cancelled trials for all of those accused persons who remained insistent on a jury trial (as was their right), and created a backlog of all those cases, but this “jury trial blackout” also created a well-recognized, cascading “ripple effect” or “domino effect” of truly “unprecedented proportions, never seen before in our lifetime.” See, for example: R. v. Simmonds, 2020 ONSC 7209, [2020] O.J. No. 5183, at paras. 59-77; R. v. Codrington and Brown, 2023 ONSC 4002, at paras. 28-38. Thankfully, in R. v. Agpoon, 2023 ONCA 449, 167 O.R. (3d) 721, at paras. 1-5, 19-35, the Court of Appeal for Ontario helpfully outlined the correct analytical approach to be taken when considering the issue of delay during the time of the pandemic.

[32] Ultimately, I am satisfied that the Crown did all that could realistically be done to try to get this case to trial promptly and within a reasonable time. But, the difficult circumstances of the pandemic were not something that could be easily avoided by the Crown, in a case where the accused was insistent on having a jury trial. The accused was, of course, fully entitled to insist on having a jury trial in this case. At the same time, however, the accused had to also know that the “jury trial blackout,” due to the pandemic, was likely to delay that jury trial for a significant period of time. In all of the circumstances, in my view, at least six months (if not more) of the net delay in this case must fairly be attributed to the discrete, but devastating effect, of the Covid-19 pandemic.

[33] Subtracting the total of seven months of delay, due to these two discrete, exceptional events, reduces the remaining delay to a total of 24½ months, a period of time well beneath the 30-month presumptive Jordan “ceiling.” See also: R. v. MacIsaac, at para. 44.

[34] Accordingly, as the remaining delay has fallen beneath the presumptive Jordan date, the accused must now bear the onus of demonstrating, if he can, that there has been a violation of s. 11(b) of the Charter.

2. The Particular Complexity of the Case

[35] Apart from two issues, this case does not appear to be an especially complicated one. Sadly, violent sexual assault allegations are often the kind of cases tried in this court. However, it is only fair to observe that the complexity of this particular case is clearly increased by two factors, namely: (1) the death of the complainant; and (2) the DNA evidence that will be used by the Crown to try to prove that the accused is the individual who committed these violent sexual offences against the complainant.

[36] First, the Crown will likely seek to tender earlier statements by the complainant, and/or her preliminary inquiry evidence, for its substantive admissibility, to try to prove the commission of the alleged offences. Second, the Crown will likely have to try to establish, through expert DNA testimony, the scientific significance of the apparent genetic connection between the accused and the offender, to try to prove that it was the accused who sexually assaulted the complainant. Nevertheless, it is difficult to say how, with greater specificity, these two factors are apt to increase the complexity of this case and increase its preparation time and/or the court time that is needed to litigate the alleged liability of the accused for the alleged offences.

[37] Nevertheless, while the remaining delay, of 24½ months, does not exceed the presumptive Jordan ceiling, of 30 months for cases tried in the Superior Court of Justice, I am satisfied that, in any event, this case, with this increased complexity, justifies the expenditure of some additional delay, such that this remaining period of delay is justified, and that the remaining delay seems reasonable within the meaning of s. 11(b) of the Charter.

D. Has There Been a Violation of s. 11(b) of the Charter or Rights?

[38] Even in cases where the analysis suggests that the presumptive Jordan ceiling has not been breached, the defence may still attempt to demonstrate that there has been a violation of s. 11(b) of the Charter of Rights. However, in order to do so, the defence must establish two things: (1) that 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. Unless the defence can establish both of these two factors, the s. 11(b) Charter application must fail. In the result, stays of proceedings in cases falling “beneath the presumptive ceiling” will be granted only in “clear cases.” See also: R. v. J.F., at paras. 68-73.

[39] I am entirely satisfied that the defence cannot meet the first of these two factors. The accused has not taken any meaningful steps that might demonstrate a “sustained effort” to expedite the criminal proceedings against him. Quite the opposite. Indeed, as I have already tried to illustrate, the accused has, throughout these proceedings, sought to delay a trial on the merits in this case, and has consistently resisted any and all efforts to hurry it along. By this conduct, the accused has demonstrated that he is completely disinterested in having a trial within a reasonable time.

[40] That said, there is simply no need to consider, in any detail, whether these proceedings took “markedly longer” than they reasonably should have. On this topic I will say only that, in my view, the accused has not shown that these proceedings have met this threshold – they have not taken “markedly longer” that they reasonably should have taken.

[41] I note, in passing, that the jury trial could not actually start on September 25, 2023, as scheduled, as there was no judge available to conduct the trial. Coincidentally, defence counsel for the accused was released from the record shortly thereafter, on October 16, 2023. Mr. Huberman then became counsel of record for the accused on October 30, 2023, and he then raised s. 11(b) of the Charter of Rights for the first time on November 20, 2023. Subsequently, the jury trial was scheduled to commence, as I have already said, on May 13, 2024, anticipating that it would last a couple of weeks. The Crown inquired as to whether the accused wished to re-elect to have a judge-alone trial, and sought to obtain earlier trial dates, but to no avail.

[42] Accordingly, this last period of delay, of over seven months, is due to a combination of two factors: (1) the judicial limitations on the court; and (2) this change of defence counsel by the accused. These things happen, and there is little, or nothing, that can realistically be done about them. In any event, in my view, they clearly did not cause, or even contribute to, a violation of s. 11(b) of the Charter in all of the circumstances of this case.

IV Conclusion

[43] In the result, as the parties have already been advised, the application by the accused, to stay the criminal proceedings against him, is dismissed.

[44] As there has been no violation of s. 11(b) of the Charter of Rights in all of the circumstances of this case, the trial in this matter should proceed as scheduled.

Kenneth L. Campbell J. Released: June 12, 2024