R. v. G.J., 2017 ONCJ 90

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. G.J., 2017 ONCJ 90 DATE: February 3, 2017 NEWMARKET COURT FILE No.:15-1562 BETWEEN: HER MAJESTY THE QUEEN — AND — G. J. RULING ON THE RENEWED s.11(

b) APPLICATION

Heard January 30, 2017. Released February 3, 2017. Mr. Jina Lee ............................................................................................ counsel for the Crown Ms. Francisca Sotelo Mendoza........................................................... counsel for the accused KENKEL J.: Introduction [ 1 ] G.J. is charged with: Sexual Assault s.271, Sexual Interference s.151, and Sexual Exploitation of a person with a mental disability s.153.1(1). He was charged in September of 2013 and the trial evidence was completed in January of 2017. The defence applies for a stay of proceedings to remedy a breach of the accused’s s.11(

b) Charter right to a trial within a reasonable time. [ 2 ] This matter was originally estimated to take two days. By the time final submissions were completed, 21 days of trial time had been scheduled. Only eight of the days scheduled were spent hearing evidence. Six trial dates were adjourned at the request of the defence. Four days were lost due to a late defence s.11(

b) application and a second change of counsel mid-trial. [ 3 ] The broad view of the case recommended in R v Jordan 2016 SCC 27 starts with the observation that much of the delay is attributable to the defence. Despite best efforts at case management it’s also now plain that the original trial time estimate was low. The evidence of the complainant alone took three days. There was also an unusual circumstance that resulted in an expansion of the case after the trial started. The original trial should have been scheduled for four or five days. After the first s.11(

b) application, the Crown narrowed the case by withdrawing one charge, focusing on one complainant. Unfortunately that focus was offset by further investigation which revealed new relevant digital photographic evidence. The proof of that evidence added four days including the testimony of the defence expert. Where trials exceed expected times, the difficulty in scheduling continuation dates is also a factor as judges, defence counsel and Assistant Crown Attorneys are all scheduled many months in advance. [ 4 ] The reasonable time requirements changed several times over the history of this case.

There was ongoing case management where further time was reserved whenever the pace of the trial suggested that the remaining evidence might not be completed as scheduled. The matter was given priority in rescheduling. For the reasons that follow I find that the defence has failed to prove the breach alleged on the balance of probabilities. The trial time was not optimum but overall was necessary and reasonably explained by the unusual circumstances of the case.

The Case History [ 5 ] The court dates may be summarized as follows: Sept 23, 2013 1 st Appearance Adj Def request Sept 24, 2013 2 nd Appearance Adj Def request Sept 27, 2013 3 rd Appearance Adj Def request Oct 2, 2013 4 th Appearance Adj Def request Oct 7 2013 5 th Appearance Adj Def request Oct 9, 2013 6 th Appearance Adj Def request Oct 15, 2013 7 th Appearance Adj Def request Oct 18, 2013 8 th Appearance Adj Def request Oct 23, 2013 9 TH – S/C hearing Adj TSD Nov 6, 2013 10 th Disclosure provided Adj Def request Nov 19, 2013 11 th Further disclosure Adj Def request Dec 3, 2013 12 th Def needs time Adj Def request Dec 17, 2013 13 th TSD Adj Def request Jan 14, 2014 14 th More disclosure Adj Def request

Feb 11, 2014 15th JPT requested Adj for JPT Feb 27, 2014 16th JPT Def ill Adj Def request Mar 17, 2014 17th JPT 2 No Crown brief Adj Crown request Apr 17, 2014 18th JPT 3 Held, Trial set Adj to Trial dates Oct 2, 2014 19th Appn to adj FIRST TRIAL Adj Def request Oct 28 – Jan 6 2015 s.517 appearances Adj Def request (all) Jan 23, 2015 Brought Fwd Adj Def request Jan 29, 2015 Def appn to adjourn trial Adj to trial date Feb 2, 2015 2nd TRIAL DATE Adj new disclosure Feb 9, 2015 24th TSD Adj Def request Feb 10, 2015 25th TSD Adj Def request Feb 12, 2015 26th TSD Adj Def request Feb 17, 2015 27th TSD Adj Def request Feb 19, 2015 Trial dates set Adj to Trial Mar 2 – Mar 13 S/C appearances Adj Def request (all) Mar 20, 2015 S/C Release Adj Def TBST April 8, 2015 Bail met Adj to Trial July 13, 2015 3RD TRIAL DATE Trial starts with 11b July 14, 2015 Def 11B continued Adj to further dates Nov 16, 2015 Case management Adj to trial date Dec 16, 2015 Def Appn to Adjourn Trial Dismissed Jan 5, 2016 Trial resumes Adj Def request Jan 6,7,8 Trial continued Adj to continue Jan 8, 2016 Further dates set May 2,3,4,9,10 Jan 11, 2016 TBST Case management May 2-3 2016 Trial continued Adj to continue May 4 2016 Trial def late, witness ill Adj to continue May 9 2016 Trial – def counsel ill Adj to continue May 10 2016 Trial continued Adj to July 7, July 7, 2016 Trial continued Adj to Aug 30 Aug 30, 2016 Trial continued Adj to Nov 21st Nov 21, 2016 Trial – Def Adj Appn Adj Def request Dec 21, 2016 Trial – Def 11(

b) Appn Adj Def request Jan 9, 2017 Trial – Def evidence Evidence completed Jan 30, 2017 Trial – 11(b)2/Submissions [6] On the third trial date the defence applied for a stay of proceedings to remedy what they submitted was a breach of theaccused’s right to be tried within a reasonable time. The delay to that point was considered under the Morin test (SCC),[1992] SCJ No 25 and the defence application was dismissed. The case history to that point is set out in detail in the written reasons forthat application.

Section 11(b) – The Jordan Framework [7] A year after this trial started, the Supreme Court of Canada revised the s.11(

b) legal framework. In R v Jordan 2016 SCC 27at para 105 the court summarized the new approach: • There is a ceiling beyond which delay becomes presumptively unreasonable. The presumptive ceiling is 18 months for casestried in the provincial court. Defence delay does not count towards the presumptive ceiling. • Once the presumptive ceiling is exceeded, the burden shifts to the Crown to rebut the presumption of unreasonableness onthe basis of exceptional circumstances.

Exceptional circumstances lie outside the Crown's control in that (1) they are reasonablyunforeseen or reasonably unavoidable, and (2) they cannot reasonably be remedied. If the exceptional circumstance relates to a discreteevent, the delay reasonably attributable to that event is subtracted. If the exceptional circumstance arises from the case's complexity, thedelay is reasonable. • Below the presumptive ceiling, in clear cases, the defence may show that the delay is unreasonable.

To do so, the defencemust establish two things: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the casetook markedly longer than it reasonably should have. • For cases currently in the system, the framework must be applied flexibly and contextually, with due sensitivity to theparties' reliance on the previous state of the law. [8] The procedural steps to be followed under the Jordan framework were summarized in R v Coulter 2016 ONCA 704 atparagraphs 34 – 40: • Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial. • Subtract defence delay from the total delay, which results in the "Net Delay". • Compare the Net Delay to the presumptive ceiling. • If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable.

To rebut the presumption, the Crownmust establish the presence of exceptional circumstances. If it cannot rebut the presumption, a stay will follow.

In general, exceptionalcircumstances fall under two categories: discrete events and particularly complex cases. • Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determiningwhether the presumptive ceiling has been reached. • If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complexsuch 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 on the defence to show that the delay isunreasonable.

Total Delay [9] Mr. G.J. was charged September 23, 2013. Trial evidence was completed January 9th, 2017 and submissions concluded January 30th, 2017. The total delay is 1226 days or 3 years, 4 months and 8 days. Defence Delay [10] Defence delay must be subtracted from the total delay, resulting in a “net delay” – R v Coulter 2016 ONCA 704 at paras 34-36.

Defence delay has two components: 1) delay arising from defence waiver; and 2) delay caused solely by the conduct of the defence.Coulter at para 42. [11] While there were discrete adjournments during the intake period that were at the request of the defence after what they called“substantial disclosure” had been provided, in the first s.11(

b) application this court held that neither party was ready to set a trial date until after the judicial pre-trial case management meeting on April 17, 2014. After that meeting the parties selected October 20 and 21, 2014 for trial. On October 2, 2014 the defence applied to adjourn those trial dates. They were not ready to proceed and there was anexpress s.11(

b) waiver to the next trial date. The second trial date was scheduled to commence February 2, 2015. Despite the waiver thematter was given priority and early trial dates were provided. [12] The second trial date was adjourned as an interview in another investigation gave rise to information that might have beenrelevant to this case. New trial dates could not be set however as the defence was not ready. The accused was in custody at that time andthe defence requested several adjournments until his overall bail status was determined.

The adjournments from February 9, 2015 toFebruary 19, 2015 were all at the request of the defence. That period is properly characterized as defence delay. On February 19, 2015the matter was again given priority and trial dates were offered beginning May 6, 2015. This three month delay stands in contrast to thetypical delay for two day trials which was closer to 10 months at the time in this jurisdiction. The defence was not available for any of the earlier trial dates offered in May, June or July.

The delay from May 6th, 2015 to July 13th, 2015 was to accommodate the defence andis properly characterized as defence delay. [13] The trial commenced on July 13th, 2015. The defence brought a s.11(

b) application on the day of trial, contrary to the Rulesof this court and established practice. A s.11(

b) application should be heard prior to trial – R v Pioneer Construction Inc. (ON CA), [2006] OJ No 1874 (CA). Rule 2.4(2) of the Criminal Rules of the Ontario Court of Justice requires listed pre-trial

applications including, “(

e) applications for a stay of proceedings for unreasonable delay under paragraph 11(

b) of the Charter” to be brought at least 60 days prior to trial. [ 14 ] The court had read all of the materials and transcripts in advance but unfortunately the application took more than a day and half. Evidence was called by the applicant and the witnesses were examined at length. Submissions by prior defence counsel were lengthy and repetitive. The Crown was not able to start their first witness until after 3 p.m. on the second day. Given the late s.11(

b) application the two days lost had to be rescheduled. It was also apparent even at this juncture that the original time estimate was low. The parties agreed that four days should be booked, doubling the original estimate. [ 15 ] The matter was given priority and the trial co-ordinator offered early dates in September of 2015. The defence declined those dates and the trial was adjourned to January 5, 2016 to continue to January 8, 2015. [ 16 ] I find the delay between July 14 th , 2015 and January 8 th , 2016 is attributable to the defence for two reasons: The late filing of the s.11(

b) application and the conduct of that application used almost all of the two days that had been scheduled for trial. When time was scheduled to replace the days lost the defence was not available for the earlier September dates offered. [ 17 ] On December 8, 2015 the defence again applied for an adjournment of the trial on short notice. The application was heard and dismissed on December 16 th . Days before the trial was to begin, then counsel for GJ filed an application to be removed as counsel of record. That application was heard on January 5, 2016.

The court was advised that prior defence counsel was on holiday but new defence counsel were retained and ready to proceed. The application was granted on that basis. [ 18 ] The trial resumed but new defence counsel were not in fact ready to proceed. The defence asked for the day to discuss matters with the Crown and with their client. The trial resumed January 6, 2016 but evidence was delayed by a mistrial application by the defence, brought without notice. The application was dismissed and some evidence was heard starting at 3:00 p.m.

On January 7 th the defence asked for time to review digital evidence with the Crown. Only a half hour of evidence was heard that day and the child witness was again adjourned. Evidence was heard on January 8 th , 2016. [ 19 ] The new lawyers for GJ no doubt did a lot of work to try and be ready to continue the trial as scheduled, but given the very late change of counsel it turned out that they were not ready to proceed. The last day January 8 th was the only one spent hearing evidence as scheduled.

There was no merit to the mistrial application brought January 6 th that took much of that day, but the circumstances are at best an exceptional discrete event – an application without notice in response to the Crown narrowing the case. I find that the delay caused by the loss of all but one of the scheduled January days must be attributed to the defence change of counsel. That’s no reflection on new defence counsel who did their best in a difficult situation. The parties agreed that five further days were required for trial to replace the lost time and May 2,3,4 and 9 2016 were set.

The matter was adjourned to January 11, 2016 for ongoing case management. [ 20 ] When the trial resumed May 2 nd the Crown’s questions in examination-in-chief were completed within half an hour. Defence counsel spent the day in cross-examination and wasn’t finished so both parties were told by the court to speak to the trial co-ordinator about scheduling more trial time beyond May 10 th . On May 3 rd the cross-examination of the complainant was completed by lunch time. The defence had an ongoing s.11(

b) application but they advised that they were not ready to proceed with that application. The trial continued. On May 4 th court time was lost as one of the defence counsel arrived an hour and a half late without explanation. The court sat until 3pm when the case was adjourned early to accommodate a witness. The loss of time on May 4 th was due to the exceptional circumstance of the ill witness and to a lesser degree the late start. The early finish allowed for further case management discussions which resulted in two further days being added – July 7 th and 22 nd (later changed to August 30 th ). Both parties agreed that the renewed s.11(

b) would not be argued until the trial evidence was complete. [ 21 ] The trial was adjourned on May 9, 2017 as defence counsel was ill. The defendant did not want to proceed with the two scheduled police continuity witnesses even though the second defence counsel who was to cross-examine those witnesses was present. The adjournment of May 9, 2017 was to accommodate the defence. [ 22 ] Evidence was heard May 10 th and the matter was adjourned to July 7 th . Even by that date, the defence was unable to say whether they would be calling evidence so no further time was scheduled beyond August 30 th .

The Crown’s case was completed on August 30, 2016. [ 23 ] The Crown’s last witness testified in the morning of August 30 th , was cross-examined by Ms. Sotelo, then after an early lunch break requested by the defence the same witness was cross-examined by second defence counsel Mr. White with the consent of the Crown. In the afternoon the defence advised that they would be calling evidence and that a further day of trial time would be required. The defence had not complied with the notice provisions of s.657.3(3) (

a) of the Criminal Code and they were not in a position to call their evidence that day. The trial was adjourned to November 21 st , 2016 for the defence expert evidence. [ 24 ] On November 21 st the defence applied without notice for an adjournment of the trial. They did not have their expert present. The witness was not under subpoena. The defence still had not complied with the s.657.3 notice requirement. In response to questions by the court the defence revealed that their witness had not been retained to attend the trial. The court suggested the ongoing s.11(

b) application could be heard but the defence was not ready to proceed with that application either as transcripts were missing. Despite court direction on August 30, 2016 the defence had not provided written 11(

b) submissions. Despite the failure of the defence to file submissions, the Crown had provided a written response to what they anticipated might be the defence argument. [ 25 ] The Crown opposed the trial adjournment given the history of the case to that point and submitted that the s.11(

b) should be dismissed. The expert witness was identified as the only witness the defence would be calling and central to their case. With assurances that the expert would be retained if an adjournment were granted, the trial was adjourned to December 21, 2016 for submissions on the renewed s.11(

b) application with January 9, 2017 scheduled for the remaining witness if the matter were to survive the 11(

b) application.

[ 26 ] On December 21, 2016 the defence again applied without notice to adjourn the trial. They submitted that their expert’s evidence was relevant to the s.11(

b) application but the expert was not available that day. They requested the application be adjourned to the remaining trial date January 9, 2017. The Crown opposed yet another adjournment but conceded that a dismissal of the s.11(

b) would likely result in another renewed application in January as the trial was ongoing. The application was adjourned at the request of the defence to January 9, 2017. The time set aside for hearing the s.11(

b) as a discrete matter was lost and that application eventually took up most of the time on January 30 th which had been scheduled for final submissions. [ 27 ] The defence expert testified on January 9, 2017. The defence advised the court that his testimony was expected to be an hour. That was a correct estimate for the relevant portion, but the qualification of the witness from 9:30 a.m. to 3:15 a.m. was unfocused and unnecessarily long.

As retainer had been an issue and it wasn’t certain the witness could return, the court intervened on consent at that point and with a few further questions found the witness qualified to give opinion evidence. His testimony was completed by 4:48 p.m. The conduct of the evidence on January 9 th was not focused resulting in the loss of the time that had been scheduled for submissions. The time lost on December 21, 2016 and January 9, 2017 meant that the January 30 th date scheduled for final submissions now had to be used for submissions on evidentiary matters and the s.11(

b) application. Given the numerous delays to that point both parties agreed that the court would rule on the s.11(

b) application by February 3, 2017 and if the matter survived that ruling the parties would provide final submissions in writing only according to an agreed

schedule with final judgment to follow on March 22, 2017. [ 28 ] I find that the delay from August 30 th , 2016 to January 30 th , 2017 must be attributed to the defence. The failure to complete the case on August 30 th resulted from the fact that even as late as the previous court date July 7 th , 2016 the defence hadn’t decided whether they were going to call evidence. When scheduling was discussed and the defence was asked by the court whether time should be set aside for possible defence evidence, defence counsel responded, “We haven’t decided yet your Honour”.

When August 30 th arrived the defence had not complied with the notice provisions under the Criminal Code for the witness they intended to call. Two further trial dates were lost in November and December when the defence was not ready to proceed. The January 9 th date was not used effectively so the submissions scheduled for that date had to be adjourned to January 30 th . [ 29 ] In

summary, the following periods of delay were either waived by the defence or are attributable to the defence: • October 2, 2014 to February 2, 2015 – 124 days • February 9, 2015 to February 19, 2015 – 10 days • May 6, 2015 to July 13, 2015 – 69 days • July 14, 2015 to January 5, 2016 – 179 days • January 5, 2016 and January 7, 2016 – 2 days • January 8, 2016 to May 2, 2016 – 116 days • August 30, 2016 to January 30, 2017 – 214 days [ 30 ] The total defence delay is 714 days. The Net Delay [ 31 ] From the day the accused was charged to the last day of submissions totals 1226 days.

Subtracting 714 days from 1226 leaves 512 days of net delay. That’s 16 months, three weeks and three days. That falls below the presumptive ceiling of 18 months for a trial in this court. Exceptional Discrete Events [ 32 ] There were four exceptional discrete events that contributed to delay: • July 14, 2015 – SA’s surprise testimony resulted in further police investigation and ultimately a significant increase in case complexity. • January 6, 2016 – The defence mistrial application brought in response to the Crown withdrawal of one charge.

The application had little merit given the brief evidence heard and the judge alone context. While the application was not frivolous such that it should be cited as defence delay, the application cost most of a trial day and extended the time for trial. • May 4, 2016 – The late arrival of one defence counsel and the illness of another witness resulted in the loss of most of that day. • May 9, 2016 – Defence counsel was ill. [ 33 ] The expansion of the investigation will be discussed below. The three other discrete events cited cost three trial days and resulted in a longer overall trial time.

Case Complexity [ 34 ] In the alternative, if the characterization of the delay were such that the total fell beyond the presumptive ceiling, the Crown has shown that an exceptional event led to a significant increase in the complexity of the case.

[ 35 ] In the brief testimony of a witness on July 14 th , 2015, she referred to having seen sexualized photographs of the complainant that she understood were taken by the accused. That evidence took both parties by surprise. The police investigation that followed revealed sexualized images involving the complainant on a USB drive and a laptop computer both attributed to the accused. That discrete event substantially changed the complexity of the case. The trial that had originally been estimated to take two days ended up taking eight days of trial time.

Much of the extra time was spent on the new photographic evidence as the Crown proved the continuity and retrieval of that evidence. The defence evidence was also directed at the digital evidence. For the remaining evidence, the original time estimate also proved inadequate despite case management before the initial dates were set. [ 36 ] The Crown and defence disagree as to whether the police and the Crown reasonably should have been aware of the digital photographs prior to July 14, 2015. [ 37 ] Detective Cullen tried to contact the witness SA numerous times during the investigation.

When first contacted in the Fall of 2013, SA told the officer she was willing to speak but she didn’t think she had much information to offer. SA did not arrange for an interview and did not respond to further police requests. It wasn’t until June of 2014 that SA spoke to DC Gallant. SA was 15 when first contacted by the police and she’d just turned 16 when she spoke with them in June of 2014. She did not mention the photographs until trial. The complainant is a year younger than SA and it’s conceded she’s a person with a disability.

Nothing in the complainant’s statements to the police alerted them to the fact that there could be sexualized digital photographs of her in the possession of the accused. [ 38 ] This matter started with a domestic argument after the complainant’s mother found inappropriate text messages from the accused to the complainant. The police were called and both parents were arrested. Prior to police arrival the accused took the two youngest children to the basement and had them help him in breaking up computer hard drives with hammers. There’s evidence that the accused also put a removable hard drive into a toilet.

Several items retrieved were too damaged for police analysis, but the laptop and USB drive provided on a later date to police did contain relevant images. [ 39 ] Detective Cullen was told that the phones initially seized were too damaged to recover data for analysis. Detective Gallant from York Region’s ICE (International Child Exploitation) unit became involved in a different investigation related to GJ on February 4, 2014. He received the Gateway laptop and the orange USB drive from the accused’s wife on May 12, 2014. She’d also brought in several heavily damaged hard drives.

The police did not examine the laptop and USB drive until much later after SA’s evidence. The delay in analysis resulted from the high demand for computer analysis and a large international ICE project that took up the resources of the unit for much of that year. [ 40 ] The defence submits that if the police in the second investigation had analyzed the laptop and USB and if they had been apprised of the circumstances of this investigation they would have discovered the relevant images well before the testimony of SA.

The delay that resulted from the increased case complexity could have been avoided. [ 41 ] The Crown acted quickly on the witness SA’s testimony. The seized devices were analyzed and full disclosure of the contents was made to the defence by mid-October 2015. Defence counsel were given access by court order to the contents of the hard drive which included images that would not be legal to possess. Defence counsel contacted the Crown and a password to access the drive was disclosed.

As discussed on December 16 th , 2015, the Crown alerted the defence that there were relevant images to be found on the hard drive disclosed. The defence did not review the disclosure provided but decided to wait for the police expert’s report. [ 42 ] The defence submits that it was up to the Crown to sort through that evidence and disclose a full expert’s report prior to the start of the trial.

The Crown submits that they provided disclosure as required and they were simply required to provide an expert report in a timely way. [ 43 ] The defence brought an adjournment application on December 16 th , 2015 citing the need for an expert report prior to trial. There was reference made to needing Legal Aid authorization for technical assistance but there was no indication that the defence had sought such authorization or that assistance had been refused. The defence had other options to access the hard drive as was shown later when new counsel reviewed the relevant images with an officer.

The defence application to adjourn the trial was refused. The court pointed out that the defence had access to the hard drive since October and had been advised there was relevant material on that hard drive. The defence still had time to review the disclosure prior to trial. [ 44 ] The testimony of SA came as a surprise to both parties. In hindsight, the defence is right that if the investigation of the laptop and USB had been conducted earlier by a person also familiar with this investigation the police would have found the images prior to the third trial date.

The time to discovery was reasonably explained though by the fact that those items were secured by the police later with respect to another investigation. The police had no indication at the time that there was information relevant to this trial on those devices. The ICE unit was distracted by a major ongoing international investigation and their investigation of the unrelated matter was delayed. [ 45 ] The testimony of the defence expert showed he was never asked to review the images.

While the defence complains about the delay in receiving the final police report regarding the forensic analysis of the devices, their expert’s evidence on January 9, 2017 showed that he was never asked to review that report. The timing of that report played no role in the delay in this case. [ 46 ] The expansion of the case after the evidence of SA extended the time required for trial. That discrete exceptional circumstance was not reasonably foreseeable by the Crown and explains much of the delay in this case. Once the issue arose the Crown moved quickly to investigate and disclose the results.

Further trial time was scheduled as needed as the case evolved. Transition [ 47 ] This court must apply the new framework contextually and flexibly where most of the case was completed before the Jordan decision. A transitional exceptional circumstance applies where the Crown satisfies the court that the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed. Prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework.

For cases currently in the system, these considerations can therefore inform whether the parties' reliance on the previous state of the law was reasonable – Jordan at para 96 .

Conclusion [ 48 ] The net delay of 512 days or 16 months, three weeks and three days falls below the presumptive ceiling of 18 months for trials in this court. Subtracting the three days lost due to discrete events results in a remaining delay of 509 days or 16 months, three weeks. The defence was responsible for much of the delay in this case.

Considering the complex history and circumstances of the case the defence has not shown that the delay was unreasonable. [ 49 ] In the alternative, if the remaining delay were to fall above the presumptive ceiling, the Crown bears the onus to show that the delay is not unreasonable. The Crown may rebut that presumption by showing that there were exceptional circumstances that reasonably explain the delay. Exceptional circumstances lie outside the Crown’s control in that 1) they are reasonably unforeseen or unavoidable, and 2) they cannot be reasonably remedied.

If the exceptional circumstance arises from the complexity of the case, the delay is reasonable. See: Jordan at paras 69-81 . [ 50 ] The Crown has proved that there were exceptional circumstances in this case which required an extended time for trial. The surprise testimony of a witness led to further police investigation, an increase in case complexity and ultimately an expansion of the time required for trial. Much of the delay flows from that one circumstance. [ 51 ] Despite ongoing case management the original time estimate and several later estimates proved inadequate.

Even on the original evidence insufficient trial time had been scheduled. The change from a two day trial to a four or five day trial even on the original case was not reasonably anticipated by either party despite best efforts. The increased case complexity resulted in delay. Scheduling continuing cases is difficult in this busy court where judges often are seized with 10 to 20 ongoing trials and Crown and defence counsel are typically scheduled up to a year in advance.

Finding continuation dates agreeable to all three schedules is a challenge that can contribute to delay. [ 52 ] The complex procedural history of this matter is reasonably explained by several unique circumstances that developed during the course of the proceedings. While neither party was happy with time it took to try the case, there were exceptional circumstances which reasonably explain the delay. [ 53 ] The case was actively case managed from the outset, with ongoing case management throughout the trial.

Further trial time was obtained whenever it appeared that it was possible the scheduled time might prove inadequate. Issues were focused where possible. Each time further trial dates were obtained, this matter was given priority in scheduling. Applying the Jordan framework to the s.11(

b) analysis in this case, in a context where the parties relied upon the Morin guidelines for most of the case, I find that the defence has failed to prove the s.11(

b) breach alleged. The application is dismissed. Released: February 3, 2017 ___________________________ Justice Joseph F. Kenkel