Court Information

COURT FILE NO.: 19-18050 DATE: 2024/10/10

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING Respondent – and – DAVID BUKOSKI Applicant

COUNSEL: James Cavanagh, for the Respondent Mellington Godoy, for the Applicant

HEARD: September 16, 17 and 19, 2024

SUBJECT TO ANY FURTHER ORDER BY A COURT OF COMPETENT JURISDICTION, AN ORDER HAS BEEN MADE IN THIS PROCEEDING DIRECTING THAT THE IDENTITY OF THE COMPLAINANT AND ANY INFORMATION THAT COULD DISCLOSE SUCH IDENTITY, SHALL NOT BE PUBLISHED IN ANY DOCUMENT OR BROADCAST IN ANY WAY PURSUANT TO S. 486.4 OF THE CRIMINAL CODE.

RULING

(APPLICATION PURSUANT TO SS. 11(B) AND 24(1) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS)

JUSTICE A. DOYLE

OVERVIEW

[1] This is an application to stay a six-year-old prosecution for unreasonable delay pursuant to s. 11(b) of the Canadian Charter of Rights and Freedoms.

[2] The applicant, David Bukoski, faces 13 criminal charges, including criminal harassment of S.M., her mother M.F. and her friend J.L.; distributing intimate images of S.M.; sexual assault of S.M.; arson; attempted murder and conspiracy to commit murder.

[3] The applicant resides in Pennsylvania and S.M. resides in Ottawa. The applicant was arrested on July 2018 when he attempted to cross into Canada at the Sarnia border.

[4] Based on the estimate from counsel, the trial was originally scheduled for three weeks commencing January 2021 at which time the applicant was granted an adjournment until June 14, 2021.

[5] The trial was scheduled for three weeks in June 2021 but instead, this matter has had approximately 70 appearances.

[6] Once the evidence was completed on June 12, 2024, the applicant advised the court of his intention to bring this application to stay the proceedings pursuant to s. 11(b) of the Charter.

[7] This trial took almost six years to complete. This is well beyond the presumptive 30-month ceiling set in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. In fact, on the first day of trial on June 14, 2021, this case was already over the presumptive ceiling.

Parties’ Positions

[8] The Crown and defence agree that the time from the date that the information was sworn (July 18, 2018) to the conclusion of the evidence on June 12, 2024, was 71 months. The defence waives the three months from June 2024 to the date of this application in September 2024 and the three weeks to the date of this decision.

[9] The defence is prepared to acknowledge that:

• approximately 5.5 months are attributable to defence delay for the adjournment from January 2021 to June 2021;
• four to five months for applicant’s illness and his participation in the inaccurate estimate of the time needed for trial; and
• He is prepared to concede that three months should be subtracted for the discrete event of the pandemic which leaves a net delay of over 57 months which is still in excess of the presumptive Jordan ceiling. Hence, a stay should be entered.

[10] The defence argues that this is not a complex case as it does not meet the criteria set out in Jordan. For example, only one Crown expert was called dealing with the arson and he was not cross-examined. The defence further submits that even if the court were to find that this case is complex, the Crown failed to develop and follow a concrete plan to minimize the delay occasioned by the complexity. In this instance, the Crown’s office did not prioritize this case nor provide the necessary resources to ensure that the applicant’s 11(b) rights were not infringed.

[11] The Crown opposes the application and submits that the defence delay is:

• 12 months due to the lack of progress in 2021 due to the applicant’s illness;
• 6 months for the shorter days due to the applicant’s requirement to leave court early for dialysis;
• 12 months for the defence’s participation in the inaccurate estimate of the trial; and
• 6 months for the pandemic for the total time of 36 months.

[12] The Crown submits that despite the complexity of this case, this matter was completed in a timely way. The Crown had implemented a plan to minimize the delay. The application should be dismissed.

History of the Prosecution

Ontario Court of Justice

[13] The applicant was arrested on July 17, 2018, and the initial information was sworn on July 18, 2018. The matter proceeded in the Ontario Court of Justice (“OCJ”).

[14] On July 26, 2018, the applicant was released from custody on a Recognizance of Bail.

[15] On November 22, 2018, the defence was ready to set trial dates which were scheduled for two weeks in the OCJ from October 19, 2019, to November 1, 2019.

[16] On July 5, 2019, before Justice Wadden, the defence advised that there were issues with his retainer and that he may bring a motion to remove himself from the record and asked to put it over two weeks.

[17] On July 19, 2019, the matter was again before Justice Wadden to deal with the defence’s motion to be removed from the record. Defence stated that he was working on the retainer and requested an adjournment. On July 26, 2019, before Justice Brunet, defence asked to put the matter over another week to determine if his retainer would be reinstated.

[18] On August 2, 2019, defence counsel confirmed he was representing the applicant.

[19] On that day, the defence filed a notice of re-election to convert the trial to a preliminary hearing and the Crown advised a new charge would be laid. The Crown re-laid a new information on September 6, 2019, to include a charge of conspiracy to commit murder and the Crown advised it would provide disclosure to the defence.

[20] The preliminary hearing took place from October 21, 2019 to October 24, 2019 in the absence of the applicant as he was too ill to travel to Canada.

[21] On October 28, 2019, the Crown re-laid a new information to include sexual assault as a result of the evidence of the complainant, S.M., at the preliminary hearing.

Superior Court of Justice

[22] The Judicial Pre-trial (“JPT”) in the Superior Court of Justice (“SCJ”) did not proceed on December 12, 2019, as defence counsel was in another court. The JPT was heard by an experienced SCJ Justice the next day on December 13, 2019. On that day, trial dates were scheduled for three weeks (based on the estimate of counsel) commencing January 11, 2021.

[23] On January 6, 2021, the defence’s application for an adjournment (filed on December 29, 2020) was granted. This was due to the issues that the applicant was having in reviewing the recent disclosure received in December 2020. The disclosure included statements that took place in July/August 2020 by a Crown witness, Gavin Casdorph, which included Federal Bureau of Investigation (FBI) tapes and multiple Royal Canadian Mounted Police (RCMP) investigations.

[24] Due to his medical issues, including loss of vision, the applicant could not read the disclosure online. This was during the pandemic, and he could not see the disclosure through zoom and there was no audio when he played the videos. Also, there were no transcripts available.

[25] The defence requested several months for him to review the disclosure. There was a discussion of what sensitive materials in disclosure could be provided to the applicant by his counsel. The defence waived delay for any period of the adjournment.

[26] The matter was adjourned to a JPT to be held on January 11, 2021. On that date, trial dates were set for three weeks commencing June 14, 2021.

[27] There were several appearances in the SCJ to confirm disclosure and the requirement by the Crown to send some of the disclosure in paper form to the applicant through his counsel in the United States.

[28] On June 14, 2021, the applicant requested an adjournment of the trial in its entirety. After hearing the evidence of the applicant with respect to his medical issues and discussion of the order that the Crown could call witnesses to streamline the cross-examination, the court granted an adjournment to June 21, 2021.

[29] On the record, the defence waived s. 11 (b) of 5.5 months pursuant to s. 11 (b) from January 6, 2021 to June 21, 2021.

[30] The court indicated that the pandemic had an impact on the court schedule, but the court would find a further three days for the testimony of a Crown witness, Mr. Casdorph, who admitted to planting the firebomb at the home of S.M.’s boyfriend at the time.

[31] The trial proceeded on June 21, 22, 23 and 24, 2021. The court heard the witnesses: Sgt Christie, an arson expert, and J.L.

[32] On Friday, June 25, 2021, the trial was adjourned to Monday, June 28, 2021, due to recent disclosure that had been provided to defence (over 800 pages of texts between the applicant and S.M.).

[33] On June 28, 2021, the court heard from S.M.’s mother. On June 29, 2021, the mother’s evidence was completed and the evidence of the complainant’s father commenced.

[34] The trial did not proceed on June 30, 2021, as the Crown witness, Constable S. Smith, was unavailable. Trial dates were set for November 22 to 26, 2021 and January 4 to 6, 2022, with the possibility of additional dates.

[35] On November 22, 2021, defence counsel requested an adjournment as the applicant was in the hospital. Stephen Albers, appeared on behalf of Mr. Cavanagh (Crown counsel on record), and advised the court he was ready to proceed with the examination-in-chief of the complainant, S.M. He informed the court that Mr. Cavanagh was in a homicide trial.

[36] Mr. Albers did not object to the applicant’s request that it be adjourned to Wednesday, November 24, 2021. Mr. Albers advised that he would have asked to be excused on November 23, 2021, as Mr. Cavanagh was making his closing submission in the homicide jury and he wanted to be present.

[37] On November 24, 2021, the applicant was discharged from the hospital and was not feeling well. As a result, the trial did not proceed further in November 2021.

[38] A further seven days of trial were scheduled during the months of March and June 2022 and the court indicated that three further days would be required in addition to the already seven days scheduled.

[39] On January 4, 2022, defence counsel advised that his client was ill and would require dialysis every day except Wednesday. He would only be able to participate in the trial until 11:30 a.m. each day. Defence requested an adjournment to the next day to speak to his client to determine the extent of his medical issues. It was put over until January 5, 2022 at 2:30 p.m. as the Crown had a conflict and was not available until the afternoon.

[40] On that day, when discussing scheduling, the court indicated that the pandemic had created a backlog of cases that needed to be heard.

[41] On January 5, 2022, the matter proceeded in the afternoon and the matter was adjourned for a hearing of the application for an adjournment to January 7, 2022.

[42] On January 7, 2022, the applicant gave evidence regarding his medical issues and requested an adjournment to March 2022. S.M. gave evidence on the impact of this trial on her health, her career and her personal life in general.

[43] On that day, the defence was granted an adjournment to January 18, 2022. It proceeded on that day from 9 a.m. to 11:30 a.m. and all day on January 19, 2022. S.M. was affirmed on January 18, 2022.

[44] The trial did not proceed on January 19, 2022, as the applicant was not present due to medical surgery. Submissions were made in regard to changing the applicant’s dialysis appointment at the clinic. This would ensure that the trial did not end at 11:30 a.m. on the days the applicant sought treatment. The court directed the applicant to advise the clinic of this trial and to request the change of the dialysis treatment.

[45] The trial proceeded on January 20 to 21, 2022 with the evidence of S.M.

[46] The trial was adjourned to March 1, 2022 at 9:30 a.m., at which time the trial dates of March 15 to 17, 2022 and June 13 to 17, 2022 were confirmed.

[47] On March 1, 2022, it was confirmed that the dialysis was moved to 4:45 p.m. due to the intervention of the Crown and police forces in Canada and the United States. The applicant had not informed the clinic that he was facing criminal charges in Canada, nor that he had an ongoing criminal trial.

[48] The applicant could now attend court until 3:00 p.m. or 3:15 p.m. three days per week on the days of his dialysis treatment.

[49] The court directed that the trial commence at 9:30 a.m. each day to make up for the lost time due to the dialysis. However, given that the trial was not regularly starting at 9:30 a.m. as there were challenges experienced by various stakeholders, including court staff, the court moved the start time to 10 a.m.

[50] The trial dates were confirmed for March 15, 16 and 17 and June 13, 14, 16 and 17, 2022.

[51] The trial proceeded from March 15 to 17, 2022 with the evidence of S.M.

[52] On March 15, 2022, counsel advised that it would take ten days to complete the case. The court advised counsel to reach out to the trial coordinator’s office to seek more dates and that the court offered non-sitting weeks to complete this trial. The court told counsel that “we need to get this trial on track”.

[53] On June 13, 2022, S.M. gave evidence but the matter was adjourned early due to her personal circumstances. It was adjourned to 10 a.m. on June 14, 2022.

[54] On June 14, 2022, an Agreed Statement of Facts was read into the record by the Crown. The trial did not proceed on June 15, 2022 as defence was not available as he was committed to another court.

[55] On June 16 and 17, 2022, there was the continuation of S.M.’s examination-in- chief.

[56] A further three weeks of trial dates were confirmed:

• January 9-13 2023
• March 27-31, 2023
• April 24-28, 2023

[57] The trial proceeded on January 9, 10, 11, 12 and 13, 2023. S.M. gave evidence on January 9 and 10. On January 10, a motion was made by the defence to request an order that S.M. testify in person.

[58] On January 11, 2023, the court ordered that S.M. to attend court in person for cross- examination. Cross-examination continued on January 12 and 13, 2023.

[59] The court offered to sit on a week that she was not scheduled to sit — February 27, 2023 to March 3, 2023 — but counsel were only available on February 27, 2023. On that day, the trial did not proceed as the Crown witness, S.M., had a COVID-19 infection but could testify by zoom. Defence objected and required her to attend in person.

[60] Dates were canvassed, and the complainant stated she was not available until May 2023 due to personal commitments. The court stated that this was unacceptable as this would result in the loss of two weeks of scheduled trial time.

[61] Dates were canvassed and the defence stated he was unavailable March 6 and 7, 2023.

[62] The matter was adjourned to March 27-31, 2023 and to April 24-28, 2023.

[63] On March 27, 2023, the cross-examination of S.M. was completed.

[64] On March 28, 29 and 30, 2023 the court heard the examination-in-chief of Gavin Casdorph and his cross-examination commenced on March 30, 2023.

[65] Cross-examination was completed on March 31, 2023 and re-examination commenced.

[66] On April 24, 2023, the re-examination of Mr. Casdorph was completed.

[67] On April 25, 2023, the testimony of Crown witness, J. A. was completed and the Crown closed its case.

[68] On April 28, 2023, the previously scheduled trial date of June 30, 2023 was vacated as one day was insufficient to complete the trial. More trial dates were required.

[69] Counsel were directed to obtain a further eight days of trial by attending Assignment Court.

[70] At the SCJ assignment court on May 12, 2023, the matter was adjourned twice: to June 9, 2023 and August 11, 2023.

[71] No record of the proceedings of the assignment court were filed to this court. Counsel verbally advised the court that the matter was put over because the court office had to obtain dates that were convenient to counsel.

[72] The emails between the trial coordinator’s office and counsel reveal that the Crown counsel was available in July 2023 but not from August 2023 to December 2023 as he was involved in preliminary hearings on homicide trials in Sudbury and Kenora as the pandemic had caused a shortage of Crown Attorneys in the northern communities. The defence was available on some of the dates offered by the trial coordinator’s office.

[73] The following trial dates were set:

• January 22-26, 2024; and
• March 4-8, 2024

[74] On January 23, 2024, the court confirmed trial dates of March 4-8, 2024 and March 18- 22, 2024. Only ten days were scheduled but as will be seen below, six further days were needed.

[75] The trial continued on March 18 and 19, 2024 but not on March 20-22 as the Crown was ill.

[76] The applicant’s examination-in-chief commenced on April 25, 2023 and continued on January 22, 23, 24, 25 and 26, 2024 and March 18 and 19, 2024.

[77] The trial continued on May 13-17, 2024, with cross examination of the applicant completed on May 17, 2024. The matter was then adjourned to June 12, 2024, for re-examination of the applicant. The evidence of the trial was completed on June 12, 2024. On this day, the defence raised the 11(b) issue in this trial for the first time.

[78] On that day, the trial was adjourned to September 16-18, 2024, for s. 11 (b) arguments and closing submissions on the trial proper.

[79] On September 16, 2024, defence was granted an adjournment to September 19, 2024, as the Crown was late in filing their response to the 11(b) application.

Discussion

Introduction

[80] The Supreme Court of Canada’s 2016 decision in Jordan guides this Court for determining issues of delay and the effect on an accused person’s s.11(b) Charter protected rights. Jordan sets a temporal ceiling of 30 months for the prosecution of criminal cases in the Superior Court.

[81] In that seminal case, the Supreme Court directed all participants in the justice system to ensure criminal trials proceed within the presumptive ceilings. It is important for all involved including the accused, the complainants, their families and the public as a whole, that there not be unreasonable delay.

[82] As stated by the Supreme Court of Canada in R. v. Boulanger, 2022 SCC 2, 411 C.C.C. (3d) 279, at para. 8, all relevant circumstances should be considered to determine how delay should be apportioned amongst the participants.

[83] The time for calculating delay for s. 11(b) purposes begins on the day of the charge, not the day of the arrest: R. v. Allison, 2022 ONCA 329, 414 C.C.C. (3d) 150, at paras. 35-43.

[84] In this case, on the first day of trial, the matter was over the presumptive ceiling.

[85] As will be further elaborated below, in the initial stages of this trial, much court time (which was limited due to the backlog on trial time created by the pandemic) was spent dealing with adjournment requests from the defence due to the illness and medical treatment of the applicant.

[86] Secondly, both counsel — although well intentioned — seriously underestimated the length of this trial. The main complainant, S.M., was in examination-in-chief for approximately 13 days, although not full days.

[87] The applicant chose to testify. His examination-in-chief was 11 days, and his cross- examination was five days. This was grossly over the estimate provided by counsel.

[88] Finally, in the last step of the analysis below, the court will outline the complexity of this trial which involved multiple complainants over a period of several years. This case also involved the applicant who has a very sophisticated knowledge of the internet. Much trial time was spent on the explanations of certain applications, platforms and illegal internet activity. The unusual and unique nature of the evidence caused the experienced counsel involved to not fully appreciate that the marshaling of the evidence of this case would require significant trial time.

Decision

[89] Pursuant to Jordan, in deciding an application under section 11(b) of the Charter, the trial judge must:

• Step 1: Calculate the total delay from when the charge is laid to the anticipated end of the trial.
• Step 2: Subtract defence delay, which results in the "net delay".
• Step 3: If the "net delay" exceeds the 30-month ceiling, then the Crown must establish the presence of exceptional circumstances which justify the delay, or a stay will follow.
• Subtract the delay from the exceptional circumstance from the "net delay", resulting in the "remaining delay". If the "remaining delay" is above the presumptive ceiling, a stay will be entered.
• Consider complexity and the steps by Crown to mitigate delay.

Step 1: Calculate the total delay.

[90] Counsel agree that the total delay to the end of the evidence was 71 months.

Step 2: Calculate the net delay requires 2 steps.

Step 2(a): Subtract delay that is waived by the defence.

[91] The court subtracts 5.5 months from January 6, 2021, to June 21, 2021 as defence waived 11(b) for this time period. It had requested, and was granted, an adjournment of the trial.

Step 2(b): Subtract delay that lies at the feet of the defence.

[92] Defence delay does not include legitimate actions taken by the defence to respond to the charges, such as taking time to prepare, as well as non-frivolous applications and requests: Jordan, at paras. 64-65. The Supreme Court has also suggested that defence delay does not include defence actions taken in response to negligent Crown conduct, such as late disclosure, even where such conduct is not deliberate: see e.g., R. v. Pyrek, 2017 ONCA 476, 349 C.C.C. (3d) 554, at paras. 19- 22; R. v. D.A., 2018 ONCA 96, 402 C.R.R. (2d) 303. at paras. 20-22.

[93] In R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 28, the Supreme Court of Canada explained in greater detail the concept of “defence delay”. It applies to any situation where the defence conduct has “solely or directly” caused the delay. See also Jordan, at para. 66.

[94] Defence delay also occurs where the court and Crown counsel are ready to proceed, but the defence is not (Jordan, at para. 63; Cody, at para. 30).

Defence preparation

[95] From the laying of the information on July 18, 2018, to setting of the trial dates set on November 22, 2018 was a lapse of four months. It constitutes preparation time and obtaining a Legal Aid Ontario certificate.

[96] On August 2, 2018, defenced confirmed that he was retained.

[97] Defence-caused delay under the Jordan framework does not include actions legitimately taken to respond to the charges, such as time for preparation and non-frivolous applications or requests.

[98] This period of time is not considered defence delay.

Defence re- election

[99] Should defence delay be assigned due to the defence re-electing to have a preliminary hearing in October 2019 when it was originally scheduled as a trial?

[100] Originally the trial date was set as the charges before the court had no accused election. The applicant’s jeopardy changed when the Crown re-laid more charges, including conspiracy to murder. At that point, the defence had a right to re-elect. It was not improper for the Crown to add it to the same information even when the ceiling was being approached.

[101] In R. v. Ny and Phan, 2016 ONSC 8031, 343 C.C.C. (3d) 512, (para. 45) the court found it quite proper for the Crown to join accused and avoid two proceedings. Here, it was the right decision rather than having the applicant face two sets of charges and the victims to testify twice.

[102] At this point in time in June 2019, the defence advised the Crown that he was formally giving notice of an alternate suspect defence. Mr. Casdorph was the individual who actually planted the firebomb on the home of S.M.’s ex-boyfriend.

[103] This court does not find there is any defence delay by this step of the applicant to exercise his right to have a preliminary hearing nor suggesting Mr. Casdorph as an alternate suspect at the time. The alternate suspect position was later withdrawn.

[104] As stated in Cody, at para. 31, the determination of whether defence conduct is legitimate is “by no means an exact science”.

[105] The preliminary hearing was shortened to one week and the Crown filed materials under s. 540(7) to streamline the hearing.

[106] The court attributes no defence delay due to its re- election.

Step 3: Compare the net delay to the applicable presumptive ceiling.

[107] Since the net delay is 65.5 months, the delay is presumptively unreasonable, and the Crown bears the burden of rebutting this presumption by demonstrating exceptional circumstances.

Step 4: Consider exceptional circumstances.

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

[109] The Crown must do more than simply identify difficulties in conducting a timely prosecution. The Crown must demonstrate that it took reasonable steps – even if ultimately unsuccessful – to circumvent and adapt to problems before the delay exceeded the presumptive ceiling: Jordan, at para. 70; R. v. Morash, 2021 ONCA 335, 405 C.C.C. (3d) 468, at para. 12.

[110] In general, the Crown may satisfy its onus by relying on two categories of exceptional circumstances: discrete events and particularly complex cases: Jordan, at para. 71. The Crown cannot rely on anything beyond exceptional circumstances to discharge its burden such as the seriousness of the offence, the absence of prejudice, or institutional delay: Jordan, at para. 81.

[111] Absent exceptional circumstances, the Crown will not be able to satisfy its burden, and a stay will be entered: Jordan, at para. 47.

Step 4(a): Consider discrete exceptional circumstances.

[112] Discrete exceptional circumstances are unexpected and uncontrollable happenings which lead to delay: Jordan, at para. 73. They engage a quantitative analysis, in that the delay caused by discrete events is subtracted from the net delay for the purpose of determining whether the remaining delay continues to exceed the presumptive ceiling: Jordan, at para. 75.

[113] Jordan did not restrict the scope of discrete exceptional events. However, the Crown must always be prepared to mitigate the delay resulting from the discrete exceptional circumstances.

[114] Discrete events include, medical emergency or illness of criminal justice system participants, recanting witnesses, and elongated trials despite good faith timeline estimates: Jordan, at paras. 72-73; R. v. MacIsaac, 2018 ONCA 650, 141 O.R. (3d) 721, at para. 44.

[115] Where the remaining delay continues to exceed the presumptive ceiling, even after accounting for discrete events that could not be reasonably mitigated by the Crown and the justice system, a stay will be entered unless the Crown can demonstrate that the remaining delay is justified in light of the particular complexity of the case: Jordan, at paras. 75-77.

[116] The Crown has the burden to establish exceptional circumstances that justify the delay and is outside the Crown’s control and must also establish that it took reasonable steps to prevent foreseeable delay before that delay occurred.

[117] In this case, there are a number of discrete exceptional circumstances, which include the Crown’s illness, the personal circumstances of the main complainant, S.M., the applicant’s illness, the pandemic and counsel’s significant under-estimation of trial.

Illness of the Crown and personal circumstances of S.M.

[118] The Crown counsel was ill for three days in March 2024 and the matter was put over until June 2024.

[119] The court had to accommodate S.M’s schedule in part for childcare responsibilities and her nursing studies which had already been impacted by previously scheduled dates that were cancelled.

[120] S.M. suffers from post-traumatic stress disorder (PTSD) and anxiety. As a result, her ability to deal with the evidence was impacted. Some time was taken by the court to speak to her about the importance of her testimony. This was done when she testified that she found it very difficult to relive the texts of over 800 pages of chat between the applicant and her. At one point, she stated she did not want to go through the texts as it was too difficult for her.

[121] In addition, on January 13, 2023, the defence brought an application to require S.M. to testify in person rather than virtually. The court had a hearing to consider her personal circumstances, including childcare, her PTSD, her schooling and her travel time. The court ruled in favour of the defence. The court took time to set out the ruling and reasons for it to her. She was upset that she had to attend in person while the applicant could attend court in the comfort of his own home.

[122] S.M. was not available to testify due to a COVID-19 infection on February 27, 2023. She was able to testify remotely but defence insisted on her attendance for cross-examination in accordance with the court’s ruling. The matter did not proceed that day.

[123] The court estimates that the following trial time was lost due to these discrete exceptional circumstances:

[124] In March 2024 the Crown was ill (three days) which required the trial to adjourned to June 2024. This was not in control of the Crown. Two months is deducted for this discrete circumstance.

[125] The court deducts one month for the personal circumstances of S.M. as they were not in the Crown’s control. She had childcare responsibilities that required an adjustment of the court schedule. She was in the middle of her nursing education and the court permitted some accommodation so that she would not lose her courses.

[126] One could argue that the Crown must have known that S.M. was a vulnerable witness as she had been exposed to so many harassing emails from the applicant (who has admitted to the criminal harassment). The Crown did plan for her testimony to be completed remotely and strongly argued against an in-person testimony. It did what it could to assist a vulnerable witness in the court system.

[127] When the court ordered her to testify in person, Crown requested that she be entitled to have her support dog with her and was acutely aware when to ask the court for an adjournment for her to compose herself. The court accommodated her schedule when she had childcare obligations or her nursing courses required her attendance.

[128] The court deducts three months for these discrete events.

Applicant’s illness

[129] The applicant is very ill.

[130] His serious illnesses have prevented him from attending court in person. He was permitted to attend this trial via teleconference. He did not attend the preliminary hearing.

[131] His medical conditions are as follows:

• In July 2016, he had a stroke;
• He had heart and kidney failure;
• He has high blood pressure;
• He has issues with his left eye vision and optic nerves on both eyes;
• He has been hospitalized on several occasions including in July 2018 and June 2019;
• He is on medication for his illnesses;
• He underwent surgery during this trial;
• His kidneys are in the end stages of renal failure; and
• He is on the list for a kidney transplant (and he advised that the transplant is to take place in September 2024).

[132] His vision is impaired as he is unable to see through his right eye and sees minimally through his left eye. As a result, he cannot read newspapers, and computer screens are difficult to read.

[133] This impaired vision was one of the reasons for adjournment requests in January and June 2021. He could not see the documents on the screen, and he needed the physical copies to review disclosure. The physical copies were sent to him through the Crown’s office.

[134] When he received copies of disclosure, his mother and brother assisted him.

[135] The court finds that there was little progress in 2021 on this trial.

[136] The original January 2021 dates were adjourned to June 2021 for three weeks and there were only four days of evidence heard.

[137] The November 2021 trial dates did not proceed as the applicant was too ill to participate.

[138] In January 2022, again some days were lost due to his illness and some days were shortened.

[139] The January 2022 dates involved a hearing to determine if the trial would have to adjourn every day at 11:30 a.m. to allow him to attend his dialysis.

[140] Defence argues that the Crown knew about his client’s illness and that it should have taken steps to mitigate the delay. The defence points to the first day of the preliminary hearing on October 21, 2019 when the defence opened with a statement that his client was ill and wished to have the preliminary hearing in absentia. The Crown consented to this request.

[141] It is an unreasonable burden on the Crown to expect the Crown to predict in advance the nature and severity of an accused’s medical condition and the effect on the trial. The Crown cannot anticipate the therapeutic and medical needs of the applicant even if they are aware that he has some medical needs.

[142] The Crown did what was necessary to move this trial along due to the applicant’s illness.

[143] First, the Crown was made aware that the applicant’s poor vision was affecting his ability to review disclosure on a computer. The Crown cooperated and sent the disclosure in paper form to the States for the applicant to be able to review a paper copy.

[144] There is no evidence before the court that his illness was discussed at the JPT’s or other dates leading up to the trial to advise what accommodations were necessary.

[145] The January 2021 date was adjourned to June 2021 and again the defence indicated that he wanted to adjourn the trial completely due to his client’s poor health and needing more time to review the documents.

[146] Then, the defence advised the court that the trial time would have to end at 11:30 am. to permit the applicant to attend dialysis three times per week.

[147] The court directed the applicant and defence counsel to advise the clinic that he had a trial and request a change of dialysis to later in the day.

[148] The defence reported on the next day that the clinic refused to change the dialysis.

[149] Again, the Crown did what was necessary to mitigate delay due to the shortened day the applicant required due to his dialysis.

[150] The Crown, through the Ottawa Police Services, the RCMP and the FBI contacted the clinic.

[151] The FBI advised the clinic about the trial and requested that the clinic change the appointments. In fact, the dialysis was moved from 12:30 p.m. to 4:45 p.m. The Crown counsel is to be credited for the serious efforts made by his office to change the applicant’s appointment times at the clinic.

[152] The applicant had not told the clinic that he had a criminal trial. This shows a lack of candour.

[153] However, the court assigns more delay to the defence for the lost days in November 2021 and January 2022 when the issue of the dialysis treatment and the extent of the applicant’s illness was disclosed. The Crown could not have anticipated that this would mean more lost trial time.

[154] In summary, due to the applicant’s illness, the following hearings were for the sole purpose of dealing with his illness and accommodation of trial adjournment or trial time:

• November 22, 2021
• November 24, 2021
• January 4, 2022
• January 5, 2022
• January 7, 2022
• January 19, 2022.

[155] The trial did not really begin to unfold until March 2022. I assign eight months delay of the nine-month period from June 2021 to March 2022 as defence delay.

[156] Next, the applicant’s illness had a serious impact on the pace of this trial.

[157] Commencing in March 2022, the court had shortened days for trial three out of five days, requiring the court to end at 3:00 p.m. to 3:15 p.m. to allow the applicant to attend his dialysis.

[158] Trial days normally end between 4:30 p.m. to 5:00 p.m.

[159] Due to the applicant’s attendance at dialysis requiring shorter days, the court lost 1 to 1.5 hours per day of trial time This is not insignificant especially as counsel had grossly underestimated the time estimate for this trial. This underestimation will be discussed in further detail below.

[160] Court delay is not measured only in days. A shorter day by 1 to 1.5 hours has a profound impact on the flow of a criminal trial and flow of the evidence. An abrupt end of the day at a specified time does not always blend with the dynamic unfolding of a criminal trial; for example, an area of a witness’ testimony having to be cut short at an inopportune time.

[161] It means that the court only has approximately one hour of sitting time after lunch break.

[162] The shorter days certainly added to the number of days required to complete this trial. The flow of evidence is disjointed when trials are conducted in piecemeal fashion as occurred in this case. Counsel have to regain their stride when the trial is resumed especially in this case after an absence of several months. Counsel has to pick up where they left off and may have to revisit old ground to form the basis of their next question. There is a “catch up” feature when trial dates are scattered over periods of time. This adds to delay.

[163] Abbreviated days also made it more challenging for counsel to estimate the time required to complete the file.

[164] Therefore, there were discrete exceptional circumstances resulting from the applicant’s illness that could not have been foreseen by the Crown who took concrete steps to mitigate the delay. I assign six months for defence delay due to these shortened days.

[165] In conclusion, I find that in addition to the 5.5 months that the defence waives delay from January 2021 to June 2021, there was further defence delay to March 2022 as there were constant interruptions due to the applicant’s illness.

[166] The court attributes eight months to defence delay for this period from June 2021 to March 2022.

[167] In addition, I assign to the defence a period of six months delay, attributable to discrete exceptional circumstances of shortened days due to applicant’s attendance at dialysis.

[168] Therefore, the court attributes a total of 14 months of delay due to the applicant’s illness.

[169] This leaves a net delay of 48.5 months which is still above the presumptive ceiling.

Pandemic

[170] Another discrete step that was not in the Crown’s control is the COVID-19 pandemic. References are made to the pandemic in the January 4, 5 and 6, 2021 transcripts when the applicant was requesting an adjournment of the trial before Justice Aitken as the pandemic affected the available trial dates. It was also mentioned on June 14, 2021, before this court when the applicant requested another adjournment and other dates had to be set.

[171] Due to the pandemic, another homicide trial in which the Crown was involved in resulted in a mistrial. The second trial was set for ten weeks during the same time period as this matter.

[172] In addition, Crown counsel, a senior member of the Crown’s office, was assigned to two homicide trials in northern Ontario as there was a mass exodus of Crown counsel leaving that jurisdiction due to the pandemic.

[173] Another effect of the pandemic included a backlog of cases that put pressure on the court system.

[174] In R. v. Agpoon, 2023 ONCA 449, 167 O.R. (3d) 721, the court was dealing with three separate cases and the Court of Appeal for Ontario took the opportunity to provide courts with guidance on the effect of pandemic on the Jordan ceilings.

[175] The court reviewed the public record of the disruptions to the operation of the criminal courts in Ontario at paras. 28-32, including:

• Province wide closure beginning on March 17, 2020 which was lifted in phases over the summer;
• Jury blackouts: some were regional and some were province wide;
• There were restrictions to numbers of individuals in the courtroom;
• There were physical changes to the courtrooms;
• Changes were implemented to address the backlog and Regional Senior Judges were given discretion with the general policy of dealing with in custody criminal matters before out of custody matters.

[176] At para. 34 of Agpoon, the Court of Appeal for Ontario commented that: “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”.

[177] In R. v. Coates, 2023 ONCA 856, 169 O.R. (3d) 401, at para. 46, Justice Coroza stated that the Crown does not need to tender evidence to prove that it took all available efforts to expedite steps delayed due to the pandemic but rather that it took reasonable steps even if it was not successful. The Court of Appeal held that the trial judge’s sense of local conditions, based on the court’s common sense and experience, can assist in the finding of reasonableness. At para. 59, the Court of Appeal confirmed attributable delays in addressing the pandemic backlog is a discrete exceptional circumstance.

[178] In R. v. Simmons, 2020 ONSC 7209, Justice Nakatsuru writes of the impact of the COVID-19 pandemic on the criminal justice system, stating that it has “numerous and far-reaching impacts upon how we do things” (para. 70). He added that the pandemic had a significant impact on scheduling new trials and rescheduling existing trials, and that a backlog had been created, resulting in, “a system-wide impact of unprecedented proportions, never seen before in our lifetime”.

[179] Numerous cases have referred to this passage, all of which agree that once net delay has been determined then some reasonable period of delay should also be deducted for the additional pressures and backlog arising out of the pandemic.

[180] The defence submits that three months delay for the pandemic is appropriate and the Crown submits it should be six months.

[181] This case is not an island. The scheduling of this case was affected as the court tried to schedule several related matters and the accumulated backlog. In 2021 when the trial dates in January and June 2021 were cancelled, the trial dates had been seriously impacted by the pandemic. The courts were not functioning at full capacity for months during the pandemic and it had a dramatic effect on the judicial system.

[182] The setting of the trial dates was done in the throes of the pandemic and in April 2022 the final notice for the Eastern Region was issued on the SCJ website with respect to modes of trial and updates regarding hearings.

[183] There were multiple adjournments in 2021 into 2022 when the pandemic was in full swing.

[184] On January 12, 2021, Ontario declared its second state of emergency. The next day, the suspension of jury trials was extended to May 3, 2021, meaning that no new jury selection could commence during this period. It was only in judge-alone cases that matters in progress could continue at the discretion of the trial judge.

[185] Defence has not filed a chart with this application setting all the dates provided to counsel through the multitude of steps in this case. The court has most of the transcripts of the appearances but not all communications regarding what dates were offered and whether counsel were available.

[186] The evidence filed here shows that counsel scheduled further dates by email with the trial coordinator’s office. Emails show various dates being offered and dates are set that coordinated the Crown’s schedule, defence schedule and the trial judge’s availability.

[187] There are no records that defence asked for earlier dates or was concerned with the dates offered by the trial coordinator’s office.

[188] The court offered trial time on weeks that it was not scheduled to sit including, the weeks of November 7 to 10, 2022 and February 27 to March 3, 2023, but counsel were unavailable (except February 27, 2023 and as stated earlier, it did not proceed that day)

[189] The court made time on other days that it was not scheduled to sit including argument for this 11 (b) application and decision.

[190] This ripple effect of the pandemic had a serious impact on the constant rescheduling in this case.

[191] The court assigns four months due to the effect of the pandemic.

[192] This leaves a net delay of 44.5 months which is above the presumptive ceiling.

Underestimation of trial time

[193] The court cannot emphasize enough how this factor alone caused delay in this case of over two years.

[194] The lack of reality to counsel’s estimate is demonstrated by the fact that S.M.’s and the applicant’s evidence took almost six weeks. Recall, that counsel estimated that the complete trial would take three weeks.

[195] First, defence states that the court should have conducted trial management.

[196] The court has a role in ensuring timely completion of a trial. The court is reminded of the principles set out by the Supreme Court of Canada in R. v. Samaniego, 2022 SCC 9

[20] The trial management power allows trial judges to control the process of their court and ensure that trials proceed in an effective and orderly fashion. While this Court has not provided explicit guidance on the nature and scope of the power, it has implicitly endorsed the concept (R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 58; Ontario v. Criminal Lawyers’ Association of Ontario, 2013 SCC 43, [2013] 3 S.C.R. 3, at para. 26).

[21] The power has three interrelated purposes: ensuring that trials proceed fairly, effectively, and efficiently (R. v. John, 2017 ONCA 622, 350 C.C.C. (3d) 397, at para. 47; R. v. Polanco, 2018 ONCA 444, at para. 22).

[22] Judges may intervene to manage the conduct of trials in many ways, including restricting cross-examination that is unduly repetitive, rambling, argumentative, misleading, or irrelevant (R. v. Ivall, 2018 ONCA 1026, 370 C.C.C. (3d) 179, at paras. 167-68; R. v. Snow (2004), 73 O.R. (3d) 40 (C.A.), at para. 25). The trial management power is an essential and versatile tool; it must, however, be exercised carefully (R. v. Felderhof (2003), 68 O.R. (3d) 481 (C.A.), at para. 38). Parties should generally be allowed to present their cases as they see fit (Polanco, at para. 29).

[23] Managing the conduct of trials to ensure timely justice is particularly important, considering this Court’s decision in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, at para. 139. Excessive trial delay can be mitigated by proper trial management.

[197] First, no case management was requested by counsel involved in this case.

[198] Although there was no formal case management, the court would check in with counsel and probe them as to an accurate estimate needed for this trial.

[199] Senior counsel constantly assured the court that the trial time set was sufficient. At times, the court stated that more dates were required than were scheduled. The court worked with counsel to find dates including dates, including dates where the court was not sitting.

[200] Second, the court did not interfere with the presentation of the case that was very technical and detailed.

[201] The Crown has the lead role as it leads the prosecution and calls the witnesses.

[202] The Crown has a duty to present its case. The responsibility to provide proper estimates for trial lies on the Crown in consultation with the defence. The defence does not need to say if it will call evidence although in this matter defence did state early on that the applicant would testify.

[203] Therefore, both counsel should have addressed their minds to the time required for defence evidence as well.

[204] Certainly, the defence can estimate on its own how much time he may need in cross, but it lies on the prosecution to present its case and estimate how long its witnesses will be.

[205] As stated earlier, by the time the trial was seriously unfolding in March 2022, 44 months had elapsed from the date of the information, which was well above the presumptive ceiling.

[206] Next, the court continued to struggle to find dates, in part, due to the negative impact of the pandemic on the court system. Moreover, the dates set were woefully inadequate for the time required for trial. Both counsel had a responsibility to scrutinize the case and be realistic about how much time was needed.

[207] Most significantly, both counsel exhibited a measured pace when working through the countless text communications filed in these proceedings.

[208] In a criminal trial where a person’s liberty is at stake, the court must take a cautionary approach in interfering with counsel’s right to cross-examine.

[209] Both counsel were lengthy in their examinations in chief and cross-examination and all texts and communications were probed extensively. This added to trial time.

[210] Counsel were entitled to full explore the numerous communications and given that many of the charges facing the applicant is based on circumstantial evidence, the full canvassing of these communications is important.

[211] Now turning to the responsibility of the defence.

[212] The defence as a stakeholder, along with the Crown and the court, has a responsibility to ensure the trial proceeds in a timely fashion.

[213] Since the actual trial estimate was inaccurate, both parties share the responsibility for moving matters forward in a timely manner.

[214] Nowhere in the record did the defence mention a concern with his client’s 11(b) rights or, at least, request earlier trial days. I am aware it is a constitutional right that cannot be waived by silence. R. v. J.F., 2022 SCC 17, 413 C.C.C. (3d) 293

[215] However, the defence’s role in trial delays has been considered in a number of cases.

[216] In R. v. Kowal, 2023 ONCJ 545, the defence did not raise any concerns about the time the matter was taking to get to trial and waited one year before expressing an interest of proceeding with an 11(b) claim. There the court found that this “deprived the prosecution of an opportunity to ameliorate the unanticipated predicament” (para. 43). The court attributed 50% of the delay to the defence.

[217] In R. v. Kullab, 2023 ONCJ 458, at paras. 32 and 38, Monaghan J. stated:

[32] I accept as correct the decisions of my colleagues in Nigro, Ahmed, A.D. and MacDonald that defence delay maybe found where there has been a lack of timely notice to the Crown and to the Court that the defence is taking the position that section 11 (b) has been breached and particularly where by the time the defence raises the issue there is no time for the Crown to mitigate.

[38] There are 486 days between the time the trial was set on June 28, 2022 to the anticipated end of trial. I understand, of course, that not all of this delay was caused by the defence. The Crown is equally to blame for not noting and mitigating the problem earlier. On the other hand, the defence was uniquely in the position to say if delay was a problem. Simply because dates were set outside the Jordan ceiling would not necessarily signal to the Crown that there was a section 11 (b) problem. For example, the defence may have been content with the delay for whatever reason. Accordingly, both the defence and the Crown were to blame. Like the Supreme Court in Boulanger, and like my colleagues have done in Nigro, Ahmed, A.D. and Macdonald, I attribute 50% of the elapsed time to the defence as defence delay. In other words, 50% of the delay was caused solely by the defence and the other 50% was caused by the Crown. The time to be attributed as defence delay on this issue is 243 days.

[218] Justice Schrek in R. v. Europe, 2024 ONSC 4867, at paras. 19-20, comments on the responsibility of defence: Effecting the culture shift required by Jordan has not always been easy and did not happen overnight. Like weeds in a garden, complacency will quickly return if efforts to remove it are not sustained. Preventing this imposes a duty on all who play a role in the administration of justice. As recently affirmed in R. v. J.F., 2022 SCC 17, 468 D.L.R. (4th) 216, at para. 1, “everyone must take proactive measures to prevent delay and to uphold the right to be tried within a reasonable time guaranteed to an accused by s. 11(b) of the Canadian Charter of Rights and Freedoms.” This includes the defence. The duty of proactivity requires all parties, including the defence, to actively avoid creating delay and make efforts to rectify it when it occurs. But as it is the defendant’s constitutionally-protected rights that are ultimately at issue, there is an additional duty on the defence, as explained in J.F., at para. 3: Given that the Jordan framework offers greater predictability and clarity and encourages all parties to act proactively, it follows, in my view, that an accused must raise the unreasonableness of trial delay in a timely manner. As a general rule, in the context of a single trial, an accused who believes that their right to be tried within a reasonable time has been infringed must act diligently and apply for a remedy before their trial is held.

[219] Later in the judgment, at paras. 34-35, the court stated: An accused who sees delay lengthening must therefore respond in a proactive manner. Being proactive may mean filing a s. 11 (b) motion where the accused believes that their right to be tried within a reasonable time is not being or will not be respected (Jordan, at para. 85). Like any other application made by an accused, a motion of this kind must be brought “reasonably and expeditiously” (para. 85). Lateness in raising delay is contrary to the proper administration of justice, because such a practice serves to waste judicial resources. Indeed, the Jordan framework is specifically designed to eliminate inefficient practices that impact on the justice system (paras. 41 and 116). Bringing a s. 11(b) motion before the end of the trial allows the accused to alert the Crown and the court to their concerns about delay. As a result, all parties can take proactive measures and cooperate to expedite the proceedings.

[220] The court is not inferring that the defence waived its 11(b) right; rather it emphasizes that the defence plays a role in keeping a trial on track. This includes working vigilantly to estimate proper trial time and managing matters within their control, such as scheduling the applicant’s dialysis.

[221] I have considered the history of the proceedings. This is one of those cases when once the evidence began, despite good faith, the time frame for the trial completion was underestimated. This also was complicated by the unexpected and unavoidable delays as discussed above.

[222] Even with a deduction for the lost time for the above events that Crown could not reasonably have mitigated, the remaining delay continues to exceed the presumptive ceiling.

[223] There was a delay from March 2022 to June 2024 of 27 months. The Crown should bear more of the delay as their case took longer than the defence and the burden is on the Crown to prove its case. However, the defence is responsible as well as discussed above.

[224] Counsel’s underestimation of the trial also demonstrates that counsel did not fully appreciate and understand that this trial’s unique features would require more time in court.

[225] The unfolding of the evidence in this case brought to the courtroom a case filled with deception, manipulation, terror and attempted murder. The details of the planning of the firebomb by Mr. Casdorph at the residence of S.M.’s ex-boyfriend are extraordinary.

[226] Undoubtedly, counsel did not fully appreciate the complexities of the evidence that required a full flushing out of the evidence including: the gaming platforms, the various gaming nomenclature, the use of the internet for nefarious motives, the complexity of the internet communications and various social media sites. The court was introduced to significant technical terminology.

[227] This issue ties in with the complexity of the case as will be elaborated below.

[228] I deduct ten months (approximately 1/3 of the time) for defence’s counsel’s underestimation of trial time.

[229] This leaves 34.5 months which is still above the presumptive ceiling.

[230] A stay can still be entered unless the Crown can demonstrate that the remaining delay is justified in light of the particular complexity of the case.

Step 4(b): Consider complexity.

Legal Framework

[231] Under Jordan, a case that is sufficiently complex may justify a period of delay. The court must take a “bird’s-eye view of the case”. (Jordan, para. 91)

[232] It is not enough for the Crown to assert that the case was complex, but rather it must link complexity to the delay that ensued and that it was unable to minimize the need delay despite a plan to address complexity and delay.

[233] Jordan elaborated on case complexity in the following passage, at para. 77:

As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications, novel or complicated legal issues, and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case.

[234] Trotter J.A. in R. v. Wookey, 2021 ONCA 68, 154 O.R. (3d) 145, stated:

[85] In the recent decision of Powell, Nordheimer J.A. provided a helpful review of the common features of complex cases and of the Crown's obligations when complexity is present, at para. 7:

[I]n determining whether a case is particularly complex, the following factors are of importance:

• case complexity requires a qualitative, not quantitative, assessment: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659 (S.C.C.), at para. 64.
• complexity is an exceptional circumstance only where the case as a whole is particularly complex: Cody, at para. 64.
• complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified: Jordan, at para. 77.
• if the case is complex, then the court must look at whether the Crown developed and followed a concrete plan to minimize the delay occasioned by the complexity: Ontario (Ministry of Labour) v. Nugent, 2019 ONCA 999, 384 C.C.C. (3d) 189, at para. 31.

[Emphasis in original]

[86] Picking up on the last point, courts have stressed the importance of a plan to minimize delay caused by complexity. The Jordan majority made this point, at para. 79: "Where it has failed to do so, the Crown will not be able to show exceptional circumstances, because it will not be able to show that the circumstances were outside its control."

[87] In R. v. Manasseri (2016), 132 O.R. (3d) 401, [2016] O.J. No. 5004, 2016 ONCA 703, at para. 314, Watt J.A. said: "[A] trial judge should also consider whether the architect of what could reasonably be expected to be a complex prosecution -- the Crown -- has developed and followed a concrete plan to minimize the delay caused by the complexity that is of the Crown's doing" [citations omitted]. See also, R. v. Saikaley (2017), 135 O.R. (3d) 641, [2017] O.J. No. 2377, 2017 ONCA 374, at para. 36; R. v. C. (J.), 2018 ONCA 986, at para. 29.

[88] Although the principles are clear, whether a particular case is complex will often be in the eye of the beholder. These determinations "fall well within the trial judge's expertise"

[235] The complexity and uniqueness of the events and events of this trial led counsel to seriously underestimate this trial.

[236] A breach of s. 11(b) provides for an extraordinary remedy as a result of a person’s constitutional rights. Because of the significance of a stay of proceedings in criminal matters, appellate courts remind trial judges to ensure that such a remedy is used only as a last resort: R. v. O’Connor, [1995] 4 S.C.R. 411, at p. 466. It is a right that is not to be taken lightly. A stay of proceedings has substantial ramifications not only for the applicants, but to the justice system as a whole when the state is found to have breached an accused’s fundamental Charter rights.

[237] In R. v. Picard, 2017 ONCA 692, 137 O.R. (3d) 212, the Court of Appeal for Ontario also provided direction when dealing with exceptional circumstances, particularly the issue of complexity, which is relevant to this Application. The Court of Appeal confirmed that complexity must be considered as part of a broader analysis of the case as a whole. Some cases may be particularly complex in the earlier stages and require extensive disclosure, expert evidence and witness statements only to be made simpler and more straightforward when it comes time for trial: see Picard, at para. 62.

[238] That is, it demands an inquiry into whether the amount of remaining delay in excess of the presumptive ceiling is justified in light of the particular complexity of the case.

[239] It is worth noting that the presumptive ceiling already accounts for the fact that generally speaking, criminal proceedings have become more complex over time.

[240] An example of a complex case is R. v. Bulhosen, 2019 ONCA 600, 377 C.C.C. (3d) 309, at para. 79, leave to appeal refused, [2019] S.C.C.A. No. 423 (Bulhosen), and [2019] S.C.C.A. No. 370 (Kompon). This was a complex case due to:

• the number of co-accused (initially 14 and ultimately reduced to 7), some of whom spent long periods of time without counsel and many of whom, as the application judge noted, were not involved in, or apparently not interested in, negotiating a shorter process;
• the complex nature of the charges;
• the time span of the charges (3.5 years);
• the volume and complexity of the evidence;
• the number of witnesses (anticipated at 220);
• the need for complex expert evidence (22 experts);
• the international aspects of the case; and
• the projected length of trial (6 months).

[241] Moreover, as the application judge noted, presenting the evidence against each accused would involve piecing together a massive jigsaw puzzle of evidence and would raise complex evidentiary issues.

[242] The delay caused by a single isolated step that has features of complexity should not be deducted. Instead, a case’s complexity as a whole may be relied upon to justify the time that the case has taken and rebut the presumption that the delay was unreasonable, in view of the case’s overall complexity: R. v. Huang, 2021 ONSC 8372, 500 C.R.R. (2d) 323, at para. 196.

Allegations in this case

[243] This case originates with the meeting online of the applicant and S.M. starting in 2013 when S.M. was 13 years old (in Ottawa) and the applicant was 18 years old (in Pennsylvania). They frequented some of the same gaming platforms such as Discord.

[244] They dated for a period of time, but it ended when S.M. met J.L.

[245] The evidence revealed the applicant’s knowledge of the internet and his expertise. He began building websites at an early age. He owned a company called Quantum Booter that specialized in selling software that could illegally disrupt another person’s internet service. This is called ‘ddosing’ and the person may be unaware that someone has cut off their service remotely.

[246] S.M. became aware that the applicant was quick to temper when dealing with others and observed how he exacted revenge on others who he was upset with because of something that had happened in a game online.

[247] The harassment against S.M. became intense when the applicant suspected she had met someone else. S.M. testified she was afraid to tell the applicant about her new relationship with J.L. for fear of his reaction.

[248] When the applicant discovered S.M.’s relationship, the harassment of S.M. intensified by repeated harassment of phone calls, texts, emails and communications through gaming platforms and social networks. The applicant would constantly contact her demanding where she was, what she was doing, who she was with. This would occur at all times of day. He would demand to know why she did not respond to his communications. The applicant admits that the charge of criminal harassment has been made out.

[249] The applicant does admit to staging and faking his suicide as a means to manipulate S.M. The court heard details of his suicide note, his disappearance and the numerous texts from S.M. to him trying to find out if he had indeed committed suicide. S.M., who was 16 years old at the time, was in anguish thinking that she had caused the death of the applicant. The applicant faked his suicide on a second occasion.

[250] The applicant denies the balance of the charges.

[251] It is alleged that the abuse escalated to sending unwanted gifts and deliveries to the S.M.’s parents; the distribution of S.M.’s intimate images to her work, her school and on social media; posting personal information of S.M. on the internet; refusing to return her email account and website; breaking into her sister’s Facebook account, emailing institutions with threats to bomb establishments; threatening to bomb the Ottawa Airport and Carleton University (using pseudonyms); and arranging for another individual Gavin Casdorph (who the applicant met online but not in person) to set up an explosion of a firebomb at S.M.’s then-boyfriend’s home. It is also alleged that the applicant sent a threat to an institution using the name of J.L. (S.M.’s ex- boyfriend). J.L. was arrested at gunpoint by the police. He was eventually released when the background information was provided to the police.

[252] Trial time involved an introduction of gaming terminology on the internet and the various social media and gaming platforms. The allegations included the capabilities of the internet and its infinite possibilities to inflict personal terror and fear on individuals.

[253] The court heard days of evidence on how individuals’ internet service can be interrupted (ddosing), how one can obtain personal information; how to publish personal information without the individual’s consent (doxing) and the intrusion of a person’s personal privacy by being able to determine someone’s location. One allegation included a phone call made to S.M. that she thought was her father calling as his number came up on her phone and it was the applicant.

[254] Another very unique aspect to this case is the use of pseudonyms.

[255] The Crown alleges that the applicant used pseudonyms to implement his campaign of harassment against S.M. when she decided not to continue to be his girlfriend. This was a manner of hiding his conduct.

[256] Another significant feature of this case is the existence of these fictitious unknown entities on the internet who purport to possess influence and say they are capable of inflicting harm.

[257] The credibility of these unknown entities was enhanced as they would communicate with Crown witnesses and appeared to know personal details of these witnesses. They would develop a relationship with them. The fictitious names that were used in this case that the Crown says was the applicant was Neuroscientist, Gatekeeper of the Internet, Genius and Jack Dictate. These unknown entities communicated with S.M. and instilled fear in her.

[258] One Crown witness, Mr. Casdorph, testified by videoconference over a number of days. Mr. Casdorph admitted to sending some of the threatening emails to S.M. and her family and ex- boyfriend under a pseudonym, distributing intimate images of S.M. (which he says he was given by the applicant and encouraged by him) and setting up the firebomb at the home of S.M.’s ex- boyfriend (J.L.). He said he did this with the encouragement of the applicant who was his friend and who was deeply hurt and angry by the ending of the relationship by S.M.

[259] Mr. Casdorph testified that this was the applicant’s means of exerting control and revenge against J.L. and S.M.

[260] It is alleged that both the applicant and Mr. Casdorph communicated on platforms such as xmpp where communications can be encrypted so that they are not discoverable. There is no documentary or digital evidence of any communications that reveal the direct planning of these crimes.

[261] Mr. Casdorph never met the applicant, S.M., or J.L. The court heard in details how he flew from California to Toronto, rented a car to drive to Ottawa and stayed in a hotel near J.L.’s home. The applicant told him the make of J.L.’s vehicle and he followed J.L. home from work one day to find out where he lived. He researched on the internet how to build a firebomb. He had constant communications with the applicant about the details of this plan. He bought firebomb materials and planted them in a place near to J.L.’s residence. He then placed them outside J.L.'s home and it exploded in the middle of the night when S.M. and J.L. were in the home along with his parents. It destroyed the car and some of the house but fortunately did not result in any injuries.

[262] At times, Mr. Casdorph indicated he had communications from these unknown entities who agreed that the applicant was entitled to revenge because S.M. had broken off her relationship with the applicant. Mr. Casdorph testified he was sympathetic to the applicant.

[263] He said he was unsettled as one of the unknown entities knew that he had just gone to Taco Bell (a fast-food restaurant) to buy some food. He spoke of the fact that this unknown entity knew he was on the military base. These revelations caused him concern and he was disturbed by how much these unknown entities knew about him and his whereabouts. He was very worried that they could cause havoc or create problems for his family. These unknown entities were sympathetic to the applicant and encouraged him in exacting revenge.

[264] He cooperated with the RCMP and the FBI and ultimately pled guilty to charges for his involvement in the firebomb.

[265] Mr. Casdorph had been diagnosed with a number of mental illnesses (which he denies). Mr. Casdorph has a troubled past due to some criminal acts that were inflicted on him when he was 13 years old. In addition, he describes another traumatic event in his life as a teenager when he found out that his mother was really his grandmother and his sister was his mother. This has significantly impacted him and he has been diagnosed with mental health issues.

[266] He did admit that at times he was confused and at some point, he thought he himself was one of these unknown entities (i.e., ‘Neuroscientist’) because ‘Neuroscientist’ knew so much about him. Later, he testified that he was not ‘Neuroscientist’.

[267] The complexities of the internet and its diverse use added to the complexity of this trial.

[268] In addition, the court was dealing with an ill applicant; a Crown witness, S.M., who had PTSD and anxiety issues and other personal demands; and Mr. Casdorph who had been diagnosed with mental health issues living in Alaska. All of them required accommodation at this trial.

[269] There were 21 discrete incidents from the fall of 2017 to the summer of 2018.

[270] Both S.M. and the applicant testified at length as to the meaning of their text communications.

[271] There were two sets of chat logs between the applicant and S.M; the applicant and Mr. Casdorph; the applicant and Megan and the applicant and Jackie.

[272] In summary, the allegations consisted of:

• Threating and controlling behaviour, manipulation, withholding of S.M.’s website and Gmail as blackmail;
• Distribution of S.M.’s intimate images;
• Spamming (continuous texting) of S.M. at work and school;
• Threatening to commit suicide and faking his own death twice;
• Using pseudonyms such as Gatekeeper of the internet, Genius, Peter Devine and Jack Dictate by the applicant to intimidate and frighten S.M.;
• Emails to other family members;
• Email threats to schools, airports and S.M.’s workplace;
• Accessing SM’s sister’s Facebook account to spy on S.M.;
• Arranging for Mr. Casdorph to fly to Canada from California to firebomb S.M.’s boyfriend’s home at the time; and
• Faking bomb threats of Carleton University and Ottawa Airport which were posted on twitter.

[273] This case also had an international dimension to it. There was some time required to coordinate with the American authorities and medical personnel with respect to the applicant’s clinic appointments. The Crown took the responsibility of connecting with the clinic and the FBI to change the times for the dialysis.

[274] The defence argues that the case law concerning delay involves numerous (and sometimes competing) experts, which complicates such matters.

[275] This case does not have that feature. Only one expert was called on the first day of trial. Sgt Christie is an expert in arson who spoke of the firebomb explosion that took place at the home of J.L., the boyfriend of S.M. at the time. The applicant admitted that this took place but denied responsibility. His questions of the expert were limited.

[276] The defence says that there should be an expert on the technical issues involving the internet. In addition, the defence takes exception that laypersons were permitted to describe certain internet features.

[277] Explanations from the applicant, S.M. and Mr. Casdorph were necessary to understand the context of their evidence. The court will ultimately determine whether the court accepts some, none or all of the evidence when a lay person testified regarding a feature on the internet. Certainly, the court is in the best position to consider the evidence of a witness when they described what they experienced when their internet service was interrupted or when their website was taken from them.

[278] The court cannot interfere with prosecutorial discretion. It is their case to call. However, the court will not speculate as to whether an expert would have shortened court time, or another competing expert might have been called.

[279] This case is based largely on circumstantial evidence before the court and court will need determine if the only reasonable inference is that the applicant was the culprit of many of the counts on the indictment.

[280] In addition, a sexual assault count was added to the information after the preliminary hearing.

[281] This added some time to this trial but was not significant and the applicant denied the charge and indicated that S.M. consented to the sexual acts.

[282] In summary, although the allegations of criminal harassment were the first criminal behaviour alleged, the allegations included far-reaching criminal offences including arson, conspiracy to murder, attempted murder, and sexual assault.

[283] In considering whether a case is particularly complex in this respect, the court must look at the entirety of the case, from start to finish. Just because a case may be relatively easy to present at trial does not mean that, in the early stages, it was not complex (Cody, at para. 64; Picard, at para. 62). As the Supreme Court said in Jordan, at para. 77: Particularly complex cases are cases that require more time in trial or preparation because of the nature of the evidence and/or the nature of the issues such that the delay is justified.

[284] The court finds that this case was particularly complex due to the uniqueness of the evidence and the extraordinary circumstances that required an unravelling of the facts.

Crown’s plan to mitigate delay

[285] I will first discuss the Crown’s plan for mitigating delay in this particularly complex case.

[286] I will then deal with each of the defence’s submissions regarding the Crown’s conduct in this case and how it did not do all that was necessary to mitigate delay.

[287] After, I will consider the court’s role in this case.

[288] The Crown made the following steps that mitigated delay:

• at the preliminary hearing introduced significant materials through an application under s. 540(7) including email threats, firebomb, email and twitter threats, charts, evidence of key crown witnesses;
• at the outset of the commencement of the trial on June 21, 2021, the Crown submitted an agreed statement of acts with 21 attached exhibits to defence who accepted it. This saved a lot of court time;
• reached out to the American authorities to change the times of the applicant’s dialysis;
• the Crown arranged for the FBI to attend the Fresenius Kidney Care Freedom Center of Wyoming Valley and were advised that the applicant had not told the clinic the reason for his request to change the time for his dialysis despite him telling the court he did;
• This accomplishment cannot be underestimated as this trial would have taken over twice as long if the court had to finish its day at 11:30 a.m. to accommodate the applicant;
• Sent another Crown counsel to commence the examination-in-chief of S.M. in June 2021 when Mr. Cavanagh was unavailable (but it could not proceed as the applicant was ill);
• Sent the disclosure in writing to the applicant in the States so he could read it; and
• In addition, the Crown added the conspiracy to commit murder before the preliminary hearing and the sexual assault after the preliminary (when S.M. testified about it) on the same information to avoid another trial for the applicant and having the complainants testify twice.

[289] First, the defence submits that there was late disclosure.

[290] The Crown provided the 800-page text (that formed Exhibit #10 to the trial) on Friday, June 25, 2021 once S.M. began testifying. This caused the adjournment to Monday, June 28, 2021 for the defence to review this.

[291] The defence indicated that it received the evidence under s. 540(7) a few days before the commencement of the preliminary hearing.

[292] The defence submitted that it “pivoted” to this new disclosure to ensure that there was no delay in this trial.

[293] This is not a case of repeated late disclosure or withholding of disclosure. This is a case that spans six years with late disclosure occurring on a few occasions. This does not factor significantly in my analysis as to whether the Crown implemented a plan to mitigate the delay due to the complexity of this case.

[294] With respect to reducing the charges as suggested by the defence, the court does not find that the Crown was required to reduce the charges given the nature of the evidence, albeit most of it circumstantial.

[295] Next, the defence argues that the Crown could have done more. The Crown should have assigned another Crown to assist in the prosecution this case; it could have reduced the charges; it could have prioritized this case; and it could have put more resources into this case.

[296] I will now deal with the scheduling of dates and whether Crown did enough to mitigate delay in providing resources to this case.

[297] It became clear after the trial unfolded and the court heard many days of trial that this case was going to require substantially more trial time to complete.

[298] The court was not provided a chart with all the court appearances, but the court did have attachments with email correspondence and some of the transcripts to put together the chronology of events for setting the dates.

[299] The court assigned the scheduling to the trial coordinator’s office.

[300] It appears that dates were offered and counsel would advise if they were available. Counsel were responsive to emails, though not always promptly.

[301] Defence did not voice concern about the dates offered. As mentioned earlier, by the time this trial started in June 2021, the case was already beyond the presumptive ceiling. All dates set were beyond the presumptive ceiling. All involved knew that.

[302] In June 2022 there were dates that were canvassed with the trial coordinator’s office and the next court date was set for January 2023. There is no evidence of how those dates were arrived at on the record. There is no evidence that earlier dates were requested.

[303] Counsel both indicate that these were the dates that were given by the court. There is no evidence of whether earlier dates were asked for and whether any other dates could have been made available.

[304] At the hearing, counsel submitted that the delay for the trial dates set in June 2022 for January 2023 was neither counsel’s fault.

[305] It is noted that trial dates in 2023 meant that the trial would be completed five years after the charges were laid.

[306] The court does have some email correspondence which included the trial coordinator’s office reaching out to counsel (as the court had directed it) to find other dates for trial early in the trial process.

[307] There was a failure by the Crown’s office to prioritize this case in the fall of 2023. It caused a delay of 4 months.

[308] On April 28 2023, the trial coordinator’s office emailed counsel saying that the court indicated that two further weeks was needed.

[309] On May 11 2023, the defence wrote the trial coordinator’s office and gave his availability during the fall 2023.

[310] On June 9, 2023 the Crown counsel wrote that he was available in July 2023 but not between August and December 2023 as he had murder preliminary hearings in Sudbury and Kenora. As mentioned above, senior Crown was required due to the loss of Crown counsel in the north because of the pandemic.

[311] As a result, January 2024 dates were set.

[312] Certainly, the unavailability of the Crown during this period between July 2023 and January 2024 affected the dates and caused a delay of four months when the court and defence were available. The Crown failed to prioritize this case in those four months. At this stage, it would not have been feasible to assign another Crown counsel so late in the evidence (the trial had been ongoing since June 2021).

[313] Given the number of trial days that were needed in 2024, this case would not have been completed in the fall 2023 if had proceeded then in the fall.

[314] The court must assess the Crown’s steps on “a standard of reasonableness - not perfection. The court should not parse various steps and, in effect micromanage the Crown’s management” (see R. v. Edwards, 2024 MBCA 27, at para. 43). Further, the Manitoba Court of Appeal refers to R. v. Saikaley, 2017 ONCA 374, 135 O.R. (3d) 641, where, at para. 47, the court stated that Jordan does not require “the Crown to take any and all steps proposed by the defence to expedite matters”.

[315] There were dates that defence was unavailable as well. The emails attached from the trial coordinator's office dated November 3, 2021 offered the dates of January 17, 18 and 19. Defence was unavailable on January 17, 2022. The trial coordinator’s office only booked 2 days January 18 and 19, 2022 despite the court’s direction.

[316] An email dated March 11, 2022 from the defence advised the trial coordinator’s office that defence was unavailable on March 14, 2022.

[317] An email from Crown to the trial coordinator’s office dated May 17, 2022 set out that they needed more dates for the trial due to slow pace and various interruptions. The trial coordinator’s office email to counsel dated May 17, 2022 offered dates from January to June 2023.

[318] The reality of this case is that it went beyond the expected estimate by counsel that caused issues for all involved to set new dates. All stakeholders had prior commitments but did what was necessary to find available dates.

[319] The reality is a senior Crown counsel was assigned this complex case. This was in the throes of the pandemic when there was an impact of trial scheduling. The ongoing length of this case had a ripple effect on the justice players including the Crown’s office.

[320] An articling student did assist the Crown for part of the case.

[321] The court finds:

• Neither counsel asked for earlier dates;
• Generally, counsel responded to the trial coordinator’s office in a timely manner;
• Counsel provided their availability and at times their unavailability; and
• The Crown was not available for four months in the fall 2023 for the dates offered by the trial coordinator’s office but the trial would not have been completed even it had proceeded then.

[322] Given the length of time that this matter proceeded, everyone did what they could to finish the trial.

[323] Defence submitted that the applicant and himself were always punctual and ready to proceed.

[324] Crown counsel was tardy on a few occasions at the commencement of this trial. Once the pace of the trial had been established, the court finds, for the most part, Crown was prompt in attending on time.

[325] In accordance with para. 79 of Jordan, the court finds that the Crown having initiated what could reasonably be expected to be a complex prosecution, developed and followed a concrete plan to minimize the delay occasioned by such complexity. In this case, the complexity of the trial became clearer as the evidence began to unfold and except for a few missteps, the Crown fulfilled its duty.

[326] Since I find that the case was particularly complex and the time the case has taken is justified, the delay is reasonable and no further analysis is required.

[327] Ultimately, the Crown did what it could and had a plan to deal with the complexity. Hindsight has shown that the parties should have booked ten weeks for this trial instead of three weeks.

[328] The court has already discussed its role in case management above.

[329] The Crown did not do a perfect job, but it did what it could in a trial that proceeded approximately 70 days of appearances. This coupled with the backdrop of a court system reeling from the unforeseen and extraordinary pandemic that affected numerous lives, had a serious impact on the court system. The Crown’s plan was reasonable in the circumstances of this case.

[330] In conclusion, this court finds:

• Total delay: 71 months (July 18, 2018 to June 12, 2024);
• Waived defence delay: 5.5 months (January 2021 to June 2021);
• Applicant's illness: 8 months (June 2021 to March 2022);
• Shortened court days: 6 months (March 2022 to June 2024);
• Crown counsel's illness and S.M.'s personal circumstances: 3 months;
• Impact of COVID-19 on the court system: 4 months; and
• Defence's underestimation of trial time: 10 months.

[331] The net delay of 34.5 months is justified due to this case being “particularly complex”.

[332] The application is dismissed.

Released: October 10, 2024

COURT FILE NO.: 19-18050 DATE: 2024/10/10

ONTARIO SUPERIOR COURT OF JUSTICE

RE: His Majesty the King – and – David Bukoski

BEFORE: Justice A. Doyle

COUNSEL: James Cavanagh, Counsel for the Respondent Mellington Godoy, Counsel for the Applicant

SECTION 11(B) APPLICATION DECISION

Doyle J. Released: October 10, 2024