2023 ONCJ 369, 2023 ONCJ 369

WARNING The court hearing this matter directs that the following notice be attached to the file: This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and

section 129 of the Act. These provisions read as follows: 110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act. . . . 111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED —

(1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person. . . . 129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows: 138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or

section 129 (no subsequent disclosure) . . . (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction. 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and (

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

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

summary conviction.

ONTARIO COURT OF JUSTICE CITATION: R. v. J.C., 2023 ONCJ 369 DATE: August 23, 2023 COURT FILE No.: 210083157 BETWEEN: HIS MAJESTY THE KING — AND — J. C., a young person Before Justice R. S. Gee Heard on June 26, 2023 Reasons for Judgment on 11(

b) Application released on August 23, 2023 Cameron Rogers................................................................................ counsel for the Crown Justin Marchand............................................................................ counsel for the accused Gee J.: INTRODUCTION [1] This is a mid-trial 11(

b) Application brought by the accused, J.C. [2] The complainant in this matter, S.B., has alleged that between September 1, 2010, to March 30, 2012, the accused sexuallyassaulted her numerous times while they were high school students and in a relationship. [3] At the time of the alleged events, both the accused and complainant were young persons. They are now both adults in their late20’s. The Information in this matter was sworn on October 4, 2021, charging the accused with one count of sexual assault covering theabove noted time period. [4] The trial commenced on April 6, 2023 and continued on April 20, 2023.

It did not finish that day and June 8, 2023, was set tocontinue the matter. On June 1, 2023, the accused filed this 11(

b) Application. This did not provide the Crown with enough time torespond, so the matter was adjourned from June 8, 2023, to June 26, 2023, for argument. [5] This is not a complicated matter. The Crown called one witness, the complainant, whose evidence was completed on April 20,2023, after which their case was closed. I am unaware how many witnesses, if any, the accused intended to call. [6] The parties have agreed the time period to be considered is from October 4, 2021, to June 8, 2023, which was the dateanticipated to complete the evidence in the matter had the accused not late-filed this Application.

That is a period of 20 months and 4days, which exceeds the presumptive ceiling of 18 months as set out by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. [7] The balance of these reasons will explain that notwithstanding the accused’s late-filing, I am granting the Application andentering a stay of the charge.

ISSUES [ 8 ] As noted above this was not a complicated case. The Crown is not seeking to justify any part of the delay in excess of the 18 month presumptive ceiling due to the complexity of the case. The Application turns on whether any of the delay in the matter was waived by the defence or is attributable to the defence. The Crown is also suggesting I can attribute some of the delay to exceptional circumstances caused by the COVID-19 pandemic.

FACTS/POSITION OF PARTIES [ 9 ] The important events in the chronology of the matter are as follows: • October 1, 2021 – accused charged • October 4, 2021 – Information sworn • October 13, 2021 – defence writes Crown seeking disclosure • November 3, 2021 – accused’s first appearance, disclosure not available • December 15, 2021 – second appearance, disclosure still not available • January 18, 2022 – initial disclosure made to defence • January 19, 2022 – third appearance, complainant’s video statement not disclosed yet • February 16, 2022 – video statement of complainant disclosed to defence • February 17, 2022 – crown pre-trial held • March 2, 2022 – fourth appearance, defence indicates matter will be a trial, adjourned to set judicial pre-trial (“JPT”) • March 3, 2022 – defence obtains date of March 18, 2022, for JPT • March 18, 2022 – JPT did not proceed as trial time estimate was one day (locally, only matters that require more than one day required to have JPT) • April 6, 2022 – fifth appearance, defence counsel requests adjournment to May 4, 2022, in order to conduct some “due diligence” • April 26, 2022 – further disclosure provided to defence by Crown • May 3, 2022 – defence contacts trial coordinator to obtain trial date • May 4, 2022 – sixth appearance, adjourned to obtain trial date • May 24, 2022 – defence counsel sends email to trial coordinator following up on trial date request • May 31, 2022 – exchange of emails between defence counsel and trial coordinator advising of new trial setting procedure • June 1, 2022 – seventh appearance, neither accused nor defence counsel attend for court appearance, warrant to hold issued to June 15, 2022 • June 13, 2022 – defence counsel files necessary forms and date of June 23, 2022, is selected as date for trial scheduling conference • June 15, 2022 – eighth appearance, accused and defence counsel again do not attend for court appearance, warrant to hold extended to July 6, 2023 • June 23, 2022 – trial scheduling conference call held, parties select first available trial date offered of November 9, 2022, for one day trial • July 6, 2022 – ninth appearance, trial date of November 9, 2022, set on the record, matter adjourned to that date • November 9, 2022 – trial date, matter did not proceed, another trial on court list that Crown chose to deal with first, new trial dates of April 6 and 20, 2023 selected • April 6, 2023 – trial commences at approximately 2:30 pm as Crown chose to proceed first with another trial matter also on the list • April 20, 2023 – matter called at approximately 12:00 pm, other plea matters on court list called first, some technical issues with remote testimony equipment and matter had to move courtrooms, evidence commenced at approximately 12:30 pm, and did not finish, June 8, 2023, selected to complete matter • June 1, 2023 – defence files 11(

b) Application • June 8, 2023 – matter adjourned to June 26, 2023, so Crown can respond to 11(b) • June 26, 2023 – 11(

b) argued

[ 10 ] The defence takes the position that there was no 11(

b) waiver for any of the delay. It is also their position that none of the delay can be attributed to the defence. From the start, they were diligent in requesting disclosure, reviewing it, and moving the matter forward. [ 11 ] The defence made it clear from early in the proceedings that this matter was on track to be a trial. With one exception that will be mentioned below, they agreed to the first trial dates offered. [ 12 ] The one exception was when the trial was not reached on November 9, 2022.

The trial judge suggested since the other trial that had resolved was scheduled for two days, being November 9 and 10, 2022, that she was available to start this trial on November 10, 2022. The Crown agreed but defence counsel indicated he was unavailable. [ 13 ] The Crown position is that several periods should be characterized as delay attributable to the defence. [ 14 ] The first most significant period is between March 24, 2022, and June 23, 2022, when the first trial date was selected.

The Crown position is that the defence was not diligent enough in arranging for the trial date to be selected. [ 15 ] At that time, they had decided the matter was going to be a trial and once it was determined a JPT was not required, defence should have arranged for a trial scheduling conference by no later than March 24, 2022. As such, the delay between then and June 23, 2022, when the trial date was selected, is delay attributable to the defence.

As well, the Crown position is the defence request of April 6, 2022, for time to do some “due diligence” was unnecessary as they already had determined the matter would be a trial. [ 16 ] The Crown also suggests some of the time between April 6 and 20, 2023 be attributed to the defence as it was at the suggestion of the defence that the trial time be increased from one day to two after the trial was not reached on November 9, 2022. [ 17 ] Last, the Crown suggests I attribute some delay to a discrete exceptional circumstance caused by the COVID-19 pandemic.

It is the position of the Crown that the just over 4.5 months period between June 23, 2022, and November 9, 2022, was an inordinate amount of time caused to some extent by the backlog created by the pandemic. [ 18 ] The Crown has the same argument when considering the slightly less than 5 month time between November 9, 2022, and April 6, 2023, when the trial was rescheduled. [ 19 ] Deducting these periods would reduce the net delay to approximately 17 months and 2 days, below the presumptive ceiling of 18 months necessitating a dismissal of the accused’s Application.

ANALYSIS [ 20 ] I disagree with the Crown position that any of the delay should be attributed to the defence or that any of it was as a result of a discrete exceptional event caused by the pandemic. [ 21 ] The defence handling of this case was not perfect, but perfection is not the standard to be applied in an assessment such as this. [ 22 ] It is the three month period from March 24, 2022, to June 23, 2022, when the first trial date was secured, that the Crown argues should be classified as delay attributable to the defence.

The Crown position is the defence had decided by then that the matter would be a trial so the defence ought to have taken steps to secure a trial date from the trial coordinator earlier than when it was secured on June 23, 2022. [ 23 ] Also, within this period, is the adjournment from April 6, 2022, to May 4, 2022, the defence sought to undertake some “due diligence”.

The Crown suggests this time be delay attributed to the defence as an adjournment to undertake due diligence at this point was unnecessary as it was already clear the matter was headed for trial. [ 24 ] In reviewing the transcripts in this matter, at the appearance on March 2, 2022, the last appearance before the Crown suggests the delay attributable to the defence begins, it was the Crown at that time who suggested an adjournment so that a JPT could be held. At the time, counsel had already agreed that the time estimate for the trial was one day.

When the JPT arrived, it was the JPT Judge who pointed out that the local practice direction stated a JPT was only required for matters that required more than one day so the JPT was not held. [ 25 ] Defence counsel is from out of jurisdiction so could perhaps be forgiven for not being aware of the local practice direction, but the Crown’s office cannot be.

To attribute any of the delay between March 2, 2022, and April 6, 2022, to the defence when the Crown suggested the JPT in these circumstances, would be inappropriate. [ 26 ] The April 6, 2022, to May 4, 2022, adjournment request by the defence to conduct “due diligence” is more problematic. When asked during oral argument what he meant by “due diligence”, counsel was vague and never gave a complete answer. [ 27 ] Notwithstanding counsel’s vagueness about this, I am not prepared to attribute this period of delay to the defence.

The Supreme Court in Jordan was clear, not all defence adjournment requests result in delay that will be held against them. Only when the Crown and court are prepared to proceed but defence is not, will the delay caused by defence unreadiness be counted against them (Jordan paragraph 64 ). [ 28 ] However, as the court stated in paragraph 65 of Jordan, “defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay”. I am unable here to find this request by the defence was not legitimately taken to respond to the charges.

My reasons for this are that up until this point is clear from the record, the defence had been diligently moving the matter forward. At this point, the matter was only two days beyond six months old and it had taken the Crown 3.5 months to make initial disclosure and it was 4.5 months before the complainant’s videotaped statement was disclosed. [ 29 ] Why it took 4.5 months for such basic disclosure to be provided was never explained. It is something that likely defies

explanation. One would have thought the videotaped statement of the complainant was taken prior to the accused being charged. If itwas, I would have expected it to be available to be disclosed within days of arrest. [30] As an aside, I would note that problems obtaining disclosure from the police services that direct matters to the court in Brantford,is systemic. Delays in obtaining disclosure from the police services are far too often the norm in Brantford and is tolerated too readily bythe Crown’s office.

In my approximately 13.5 years on the bench in Brantford, there have been many discussions at case managementappearances or JPTs, about missing disclosure or the lack of response by the police services to disclosure requests. Notwithstandingprobing questions from the bench to the Crown why this is tolerated or why no solutions to the problem ever seem to be forthcoming, thesituation has not improved. [31] How disclosure was provided in this case is enough of a rationale for not making a finding this period of delay should be seen asbeing caused by the defence.

However, to make the point even clearer, I would note the Crown provided further disclosure on April 26,2022. It was never explained to me what this item of disclosure was. Not all outstanding disclosure should prevent the parties fromsetting a trial date. However, unless I am made aware of what it was, and its importance to the case, I would be unable to find the Crownwas in a position to proceed to trial setting which is a necessary precondition to finding the delay attributable to the defence. [32] After the May 4, 2022, appearance, there were also appearances on June 1, 2022, and June 15, 2022.

Both defence counsel andthe accused failed to attend for these appearances. These absences were never adequately explained by counsel during oral argument.

Tosay the least, not attending for required court appearances is problematic and fraught with risks for both the accused, who could throughno fault of his own have a warrant issued for his arrest, and for counsel who may leave themselves open to allegations of not upholdingtheir obligations to their client and the court. [33] In this case though, luckily for both the accused and counsel, none of those dangers came to fruition as warrants to hold weregranted by the presiding judicial officer on each occasion. [34] One might also be forgiven for thinking these two missed appearances would necessarily lead to a finding the delay occasionedby them would be attributable to the defence.

However, that does not seem to be the case here. Even though the court appearances weremissed, defence counsel was in somewhat regular contact with the trial coordinator over this period, conversing through email in order tosecure a trial date. [35] The trial scheduling procedures in Brantford at the time were somewhat in flux, and changed on May 31, 2022, so I am unable tofind fault in out of town defence counsel having some difficulties navigating them. The Crown in oral argument also suggested defencecounsel was not diligent enough in obtaining the date.

I would note though, that even though the cases of Jordan and R. v. Cody 2017SCC 31 , [2017] 1 SCR 659, make clear all court participants are expected to take all reasonable steps to move matters forwardto trial, the ultimate responsibility for bringing a person to trial still rests with the Crown. [36] In this case the Crown complains the defence did not act diligently enough to obtain a date, so the Crown could put him on trialfor serious offences. I would note though, throughout this entire time period the Crown is now pointing to as defence delay, the Crownsat by passively.

There is no evidence before me that the Crown took any proactive step to quicken the search for the trial date. In thesecircumstances, I'm not prepared to find defence counsel is deemed to have caused delay in setting the trial date when the Crown sat bypassively without offering any assistance or taking any step of their own to secure a date. As such, I am not prepared to attribute any ofthis delay to the defence. [37] The first trial date secured was on November 9, 2022, the first day offered. This was 11 months and 5 days after the Informationwas sworn, well within the presumptive ceiling.

The reason the trial did not proceed on that day, was as a result of decisions madeexclusively by the Crown. [38] As will be recalled, another trial was on the court list that day as were other matters set for guilty plea. The Crown chose toprioritize the other trial matter over this trial.

When lists are overbooked like this, I acknowledge Crowns will often have difficultdecisions to make. [39] Dealing with the issue of overbooking court lists, in this jurisdiction at least, notwithstanding our more rigorous efforts at JPTsand judicial case management, significantly more matters collapse on the date set for trial than proceed to trial. Given that reality, historyhas shown us the best way to make use of our limited court time is to overbook the lists.

Were we not to do this, and give every matterset for trial an otherwise clear court list, we would far too often be left with empty courtrooms as trials collapse and, trial dates wouldnecessarily get stretched out further and further, making it practically impossible to comply with constitutionally mandated timerequirements. [40] This approach long pre-dates any backlog remaining from the pandemic.

It has been like this in this jurisdiction at least as long asthe 13.5 years I have been sitting here and, I don’t expect it to change any time soon. [41] One might also wonder why this trial did not commence on November 9, 2022, at around 12:00 pm when the other matterresolved. The transcript reveals the Crown on that day (not Mr. Rogers) indicated to the court that this matter could not commence then,even though the other matter resolved, given the volume of other matters on the list that still had to be dealt with.

I interpret thisstatement as an intention on behalf of the Crown to prioritize the other non-trial matters on the list that day before commencing thismatter. [42] Another factor that impacted the Crown’s ability to start this matter that day, was the fact the complainant was not in attendanceat the time. The Crown indicated he had spoke to the complainant and advised her of the situation of the other trial proceeding first soasked her to be on “stand-by”. My

interpretation of “stand-by” would be that the person has an ability to attend on short notice. It seemsthe

interpretation of the Crown on that day though was different as the court was advised that the complainant was 1.5 hours away. [43] As such, it seems it was a combination of the number of matters still on the list and the absence of the complainant, thatprompted the Crown to advise this trial would not be in a position to commence on November 9, 2022, notwithstanding the resolution of

the other trial. [ 44 ] The new trial dates of April 6, and 20, 2023, were provided on November 9, 2022. These were the first dates offered and were accepted. The Crown has raised the issue of the trial time estimate being increased from one day to 1.5 days at the suggestion of the defence and points to this as a reason for some delay. [ 45 ] Before the court on November 9, 2022, was an application by the Crown to permit the complainant to testify remotely from a secure location outside the courtroom. This application was granted on that day.

Defence counsel suggested in light of that, it might be preferable to increase the trial estimate as it often takes longer to examine witnesses when it is done remotely instead of in person. Also, there can be issues with the technology utilized by to facilitate remote testimony. [ 46 ] In this case, counsel’s concerns proved prescient.

Although the examination of the complainant in this matter could have perhaps been conducted more efficiently, there was also an issue with the technological equipment used for remote testimony that delayed the start of the trial on April 20, 2023, and forced the matter to move to a new courtroom.

As such, the increase in the trial time estimate, was justified and not delay that was the responsibility of the defence. [ 47 ] Turning to the trial dates of April 6 and 20, 2023, on both days, there were again other matters on the court list and again on both dates the Crown chose to start with other matters before starting this trial. [ 48 ] On April 6, 2022, a number of matters were dealt with before this matter, the most significant and time consuming of which was pre-trial motions on a different sexual assault case.

Dealing with these matters first resulted in this matter not being commenced until approximately 2:30 pm. The Crown was able to complete its examination of the complainant and cross examination by defence started but did not complete. [ 49 ] On April 20, 2022, again other matters were dealt with first and this matter did not commence until approximately 12:00 pm. When it did, there were issues with the remote testimony equipment and there was a delay while courtrooms were switched. Luckily, another courtroom was available, had it not been, this matter would not have been able to proceed at all that day.

In any event, the cross examination of the complainant continued and although it was not a model of efficiency, it was completed at approximately 5:00 pm. This meant though, there was not time to commence the defence case and the matter was adjourned and ultimately set for June 8, 2023, to be completed. [ 50 ] On June 1, 2023, the defence filed this 11(

b) Application and it was argued June 26, 2023. It was agreed by the parties that the date of June 8, 2023, would be used to analyze the merits of the 11(

b) Application even though it did not proceed that day as the Crown needed further time to respond. That would have been the date on which the trial was anticipated to have completed, absent this Application. [ 51 ] In assessing the time it took for the matter to reach the anticipated end of trial, I find there was no waiver of any time by the defence and no delay that is attributable to the defence. The defence was diligent throughout.

It sought disclosure immediately, took the steps necessary to move the matter forward, liaised with the trial coordinator to arrange trial dates and always accept the first available trial dates offered, except when offered the next day when the trial did not commence on November 9, 2022, which in the circumstances, was reasonable.

The time it took out of town counsel to navigate local trial setting procedures ought not be classified as delay attributable to the defence when the Crown took no steps to obtain a date itself or assist defence counsel in obtaining one, and simply sat by passively. [ 52 ] Also, the increase in trial time required, is not attributable to the defence as it was in direct response to an application brought by the Crown. [ 53 ] The primary causes of delay in this matter flowed from the delay it took for the Crown to make disclosure and the Crown decision on every day the matter was set for trial, to prioritize other matters on the list before this matter.

Had this matter proceeded first on November 9, 2022, or April 6, 2023, we would not be here. Had the complainant been present in person on November 9, 2022, so this matter could have commenced upon the other matter resolving, again, it is likely we would not be here. [ 54 ] As noted above, I recognize the difficult spot Crown’s are put in when prioritizing matters. However, Crown’s or their representatives are present at trial scheduling conferences and can always decline dates when accepting what is offered will mean a conflict between high priority case.

Alternatively, when they find themselves in such a position, it should be addressed before the trial date. [ 55 ] The Crown has also sought to classify some of the delay in this matter as a discrete exceptional event due to the backlog of cases caused by the pandemic. For support it points to the Court of Appeal decision of R. v. Agpoon, 2023 ONCA 449 .

In this case, the Court of Appeal reaffirmed the admonition in paragraph 111 of Jordan, that courts need to take a more holistic approach to assessments of delay and “complicated micro-counting” periods of delay is not the correct approach. [ 56 ] In paragraphs 28 to 33 of Agpoon, the court recognized several broad categories of disruptions which were caused by the pandemic and that in assessing matters going forward, where any of these pandemic created delays are present, they should be treated as discrete exceptional circumstances. [ 57 ] By the time this case entered the system, and especially by the time the first trial date was being sought, all the direct causes of disruption created by the pandemic, such as province wide court closures, limited local court closures and physical distancing measures that limited use of court facilities, had abated. [ 58 ] The Crown argument is that a less direct impact of the pandemic led to a delay here, that being the backlog of cases created by the pandemic meant it took longer than reasonable to obtain trial dates. [ 59 ] Again, I disagree.

This case came into the system in October of 2021. The other case that was on the list on November 9, 2022,

took priority over this case because it was near the 18 month mark at that time. That would mean it came into the system in about May 2021. Both of these cases came into the system well after the onset of the pandemic and both at a time when the most direct and impactful aspects of the pandemic to the system had ended. [ 60 ] I do not know when the trial date of November 9, 2022, was set on the other case, but I do know that date was provided for trial in this case on June 23, 2022. That is only about 4.5 months later.

Again, when the trial did not proceed on November 9, 2022, and the dates of April 6 and 20, 2023, were offered, I would note that is again just under 5 months later. [ 61 ] The Crown argument is this is an inordinate length of time to obtain a trial date and some of this delay should be attributed to the backlog of cases being

schedule for trial created by the pandemic. [ 62 ] Two points need to be made. First, the overbooking of the court lists, as noted earlier, was for the most part at least, unrelated to the pandemic. They are overbooked due to the persistent problem of matters collapsing on the date set for trial. This is a problem that pre-dated the pandemic and, persists after without any solution on the horizon.

The response to this even before the pandemic was to overbook court lists, this was not done as a response to any pandemic created backlog. [ 63 ] Second, obtaining a trial date on a matter such as this about 4.5 to 5 months from the when the trial date is sought, is not an inordinate amount of time. If anything, that is a very reasonable response to such a request.

That is less than one third the overall period matters are required to be tried in and would give parties more than a year, to get it to the point where it is ready to set it for trial. [ 64 ] As such, I am unable to find that the pandemic has had any effect on the delay it took this matter to get to trial. There were no exceptional circumstances to account for in this matter that led to a delay. CONCLUSION [ 65 ] Before concluding I should comment on the timing of this Application.

Whenever an accused feels their right to be tried within a reasonable time has been infringed, the issue should be raised in a timely manner. This generally means an accused must raise the issue prior to the commencement of trial. However, failure to do so is not necessarily fatal when the unreasonableness of the delay is not made apparent until after trial has commenced. See: R. v. J.F. 2022 SCC 17 at paragraphs 30 to 36 . [ 66 ] In oral argument I expressed concern with counsel of the timing of this Application.

It came part way through trial, after the Crown had closed its case and was not served and filed until shortly before the trial was set to resume. [ 67 ] On further reflection, I have found that the timing of the Application does not impact the determination of it. When the trial was rescheduled, it was for April 6, 2023, 18 months and 2 days since the laying of the Information and was at that time expected to conclude on April 20, 2023, 18 months and 16 days from the commencement of proceedings. These dates already exceeded the 18 month presumptive ceiling, but just barely.

I cannot fault defence for not bring this Application then when it was so close to the line. It was likely thought too risky to expend the resources, given it how close it was. It is not an unreasonable conclusion when assessing the risk that a court may find 16 days of delay attributable to the defence, and therefore decide the risk was not worth it. [ 68 ] However, when the trial did not conclude on April 20, 2023, things changed. The new dates were now squarely well beyond the 18 month presumptive ceiling making the chances of success on the Application, more worth the risk.

Perhaps the defence could have made their concerns more known after the matter did not complete April 20, 2023, and perhaps they could have filed their materials sooner, but even if they did, it would not have moved the needle on the outcome. It is unlikely anything would have been different in how the matter progressed, or for the outcome of the Application. [ 69 ] The overall delay in this matter is from October 4, 2021, to June 8, 2023, a period of 20 months and 4 days.

There were no periods waived by the defence, none of the delay can be attributed to the defence, and there are no exceptional circumstances that would justify any delay. This case should not have taken this long. It has exceeded the presumptive ceiling by 2 months and 4 days, and as such the charge is stayed. Released: August 23, 2023 Justice R. S. Gee