R. v. Wilson, 2022 ONCJ 660

CITATION: R. v. Wilson , 2022 ONCJ 660 DATE: 2022-12-08 Toronto ONTARIO COURT OF JUSTICE BETWEEN: HIS MAJESTY THE KING — AND — JORDETTE WILSON Before Justice Mara Greene Reasons for Judgment released December 8, 2022 A. Kiran.….………………………………..………………………….… for the Crown D. Gravesande…………………………………………....……….. for Jordette Wilson M. Greene, J: [ 1 ] Ms. Wilson was arrested on Dec 21, 2019 and charged with operating a conveyance while her ability to do so was impaired by alcohol and operating a conveyance while having a blood alcohol concentration of over 80mg of alcohol in 100ml of blood.

Her trial is set to proceed on December 13, 2022, just one month shy of three years after the information as sworn in this case. Three years is double the time identified in R. v. Jordan for a trial to complete in the Ontario Court of Justice. Counsel for Ms. Wilson has argued Ms. Wilson’s rights as guaranteed by

section 11(

b) of the Charter have been violated given the excessive delay in this case. He argued that none of the delay in this case falls at the feet of Ms. Wilson nor can it be justified by any discrete event. Crown counsel, on the other hand, argued that while the time to trial in this case is long, the vast majority of the delay was solely caused by Ms. Wilson.

Summary of the delay [ 2 ] Ms. Wilson’s first appearance in court was on February 7, 2020 just six weeks before the entire country shut down due to the COVID 19 pandemic. At that time, Ms. Wilson did not yet have a lawyer. She returned to court on March 6, 2020 and still did not have a lawyer. On April 3, 2020, Ms. Wilson attended court but was not permitted entry as the court was closed to in person appearances due to the pandemic. No one told her when she should return to court, nor did they advise her of how to reach anyone at the courthouse about future court dates.

Instead, she was told that someone would notify her about her next court date. This did not happen until February 26, 2021. [ 3 ] Ms. Wilson’s matter was adjourned multiple times between April 3, 2020 and December, 2020. Ms. Wilson did not attend on any of these appearances. In many cases very little was said other than the matter was being adjourned to the next “covid date”. At times the actual date was not even put on the record. [ 4 ] Ms.

Wilson filed an affidavit stating that she did not attend court as she did not know about the court dates and was waiting to receive an update from the court about her next appearance. [ 5 ] In December, the presiding justice issued a bench summons to Ms. Wilson requiring her to attend court on February 26, 2021. This was the first time anyone at the court attempted to advise Ms. Wilson about her matter. [ 6 ] On February 26, 2021, Ms. Wilson attended court. She still did not have counsel and the matter was adjourned until March 16. The matter was adjourned again until April 30 as Ms.

Wilson did not have counsel. [ 7 ] By April 30, 2021, Ms. Wilson had retained counsel, Mr. Jim. The matter could not move forward, however, because key disclosure was still missing. This matter continued to be adjourned for a number of months because of missing disclosure and because the assigned Crown had not yet properly reviewed the file to make any meaningful decisions about the case.

For example, on June 11, 2021 the Crown advised the court that she was not even in a position yet to make an election. [ 8 ] By July 16, 2021, a judicial pre-trial was conducted but the JPT notes were not available so a trial date could not be set. On August 12, 2021, the trial dates of March 3 and 4 were set with the trial coordinator. According to the trial verification form, the Crown and the court were in a position to hear this trial as early as September 29 but defence counsel indicated that he was not available until March 2022. [ 9 ] The March trial ended up being adjourned.

In the weeks leading up to the trial Crown counsel provided new disclosure that altered the entire defence of Ms. Wilson. This late disclosure led Ms. Wilson to want to seek a second legal opinion about her case. On the trial date, Ms. Wilson’s counsel sought to be removed as counsel of record and the matter was adjourned for Ms. Wilson to retain new

counsel. [ 10 ] After the trial was adjourned, Ms. Wilson retained new counsel. The matter went over a few times for counsel to review the disclosure. New counsel then attempted to contact the Crown a number of times, but she failed to return his emails. A judicial pre-trial was conducted in July 2021 and new trial dates were obtained in August 2021. Dates were offered in October but counsel for Ms. Wilson was not available to conduct this trial until December. This case is now set to proceed on December 13, 2022. Analysis [ 11 ] Pursuant to

section 11(

b) of the Charter, e very person charged with an offence has a right to be tried within a reasonable time. In R. v. Jordan, 2016 SCC 27 the Supreme court of Canada set out the framework for analyzing whether a person’s

section 11(

b) rights have been violated. In Jordan , the court created presumptive ceilings. Where the delay, less delay waived or exclusively caused by the defence, exceeds the presumptive ceiling, the onus shifts to the Crown to demonstrate that the delay was nonetheless reasonable. Delay beyond the presumptive ceiling will be reasonable if it is caused by a discrete event or if the case is particularly complex. [ 12 ] In the case at bar, the total delay is almost three years. Everyone agrees that three years of state caused delay would violate Ms. Wilson’s rights.

Crown counsel argued, however, that the actual state caused delay is only ten and a half month the remainder of the delay, some twenty-five months, is all defence delay. I will only review the contentious areas of delay in this decision. The Crown has conceded that ten months of the 35 months is not defence delay nor is it delay caused by a discrete event. Delay from March 25, 2020 until February 26, 2021 [ 13 ] In the case at bar, Crown counsel argued that the delay from March 25, 2020 until April 3 was defence delay.

She further argued that the delay from April 3, 2020 until February 26, 2021 was delay caused solely by the defence and/or COVID 19. Defence counsel argued that this entire time should be included in the 11b analysis. In my view, this time frame should be apportioned partially to a discrete event, the pandemic and as such deducted from the overall delay for purposes of assessing whether or not Ms. Wilson’s 11b rights have been violated. [ 14 ] In relation to the time from between March 25, 2020 and April 3, 2020, on March 25, 2020 Ms. Wilson was notified that further disclosure was available for pick up.

Crown counsel takes the position that this is delay caused solely by the defence. I disagree. I fail to see how or why this notification triggers defence delay from March 25, 2020 until April 3 which was Ms. Wilson’s next court date. This is normal intake time that is properly considered and accounted for in the 18-month time to trial period outlined in R. v. Jordan . [ 15 ] On April 3, 2020, Ms. Wilson attended court but was not permitted entry to the courthouse due to Covid 19 protocols that prohibited all in person appearances. Ms. Wilson was advised that she would be notified about her next court date.

Sadly, this did not happen. Instead, the matter was adjourned multiple times with discretionary bench warrants with no discussion about contacting Ms. Wilson to update her on her matter and no discussion about how to move this matter forward. For example, on June 12, 2020 the following was all that was said in court the next matter then is Jordette Wilson, lines 91 to 93. There is no counsel noted on SCOPE, but I have been in touch with my colleague who is assigned, also asking for August 21, 111, 9 o’clock by way of discretionary warrant, please.

On August 21, 2020, the following is all that was said in court, It is my understanding she is self represented….I am going to ask that this go, with a discretionary bench warrant, to the “COVID date”. The actual next court date was not even mentioned. [ 16 ] On October 30, 2020, even though it ought to have been clear that Ms. Wilson was still self represented, the Crown in adjourning the matter stated that no lawyer has called in so the matter should be adjourned with a discretionary bench warrant. Again, there was no discussion about reaching out to Ms.

Wilson and advising her of her next court date. [ 17 ] Finally, on December 4, 2020 Crown counsel for the first time suggested taking steps to have Ms. Wilson brought to court by way of a bench summons. The justice agreed and a bench summons was issued returnable on February 26, 2021. [ 18 ] Ms. Wilson received the bench summons and attended court on February 26, 2021 as required by the bench summons. [ 19 ] Ms. Kiran, for the Crown, argued that the entire delay from April 3 until February 26, 2021 was defence delay since Ms. Wilson did not attend court. I disagree. Ms.

Wilson failed to attend court because she was told not to come and was advised that she would be notified of her next court date. She was not so informed until months later. According to Ms. Wilson’s uncontradicted evidence, Ms. Wilson attended court on April 3, 2020 as required. She was denied entry and advised that she would be notified of her next court date. No one bothered to notify her of her next court date until the bench summons was issued in December. It is unreasonable to expect Ms.

Wilson to have miraculously known to attend virtual court and to ignore the information received at the courthouse that someone would contact her with her next appearance. [ 20 ] What is difficult to understand is why it took eight months for anyone to turn their mind to contacting Ms. Wilson about next court dates. No explanation has been provided for why the Crown did not at some point just reach out to Ms. Wilson and tell her about the next court date. The Crown clearly had contact information for Ms. Wilson, as Ms.

Kiran pointed out, they were able to notify her on March 25, a date where she was not in court, that disclosure was available. Moreover, Ms. Wilson’s address was on the information. A simple letter to her address would take mere minutes to complete and would have been a simple way to advise Ms. Wilson about next court dates. Even on December 20, 2020 when someone finally turned their mind to getting Ms. Wilson back before the court, the Crown moved straight to ask for a bench summons which led to a further two month delay instead of trying to contact her directly through the email address or a letter.

In my view, it was incumbent on someone in the system to contact Ms. Wilson and advise her of her next date. Ms. Wilson did not intentionally miss court, she did not know she had court because NO ONE told her. I accept her

evidence that she was advised by court staff that she would be notified of her next court date and yet no one contacted her until the bench summons sent in December. I therefore find that the delay from April 3 until February 26 is NOT delay caused solely by the defence. [ 21 ] I am prepared to find that some of the delay post April 3, 2020 is delay caused by a discrete event, namely the pandemic, which should be deducted from the overall delay.

The pandemic was unexpected, and it took time for members of the justice system to figure out how to move matters forward when the province was in lockdown and our courts were closed to in person appearances. In my view the delay from April 3 until August 21, 2020 is delay caused by the pandemic and should be deducted from the over all delay. By August 21, 2020, however, someone in the system ought to have turned their mind to advising Ms. Wilson of her next court date. This would have been a relatively easy and simple task.

As noted above, the crown’s office clearly knew how to get a hold of her as they had previously notified her about disclosure. Moreover, her address is listed on the information. A bench summons was not necessary, the Crown’s office could have used the same means used to advise her about disclosure to let Ms. Wilson know about her next court date. Delay from March 18-April 16 [ 22 ] The next contentious time frame is March 18 to April 16, 2021. This is the time when this matter was back before the court, but Ms. Wilson had not yet retained counsel.

I agree with Crown counsel that this time frame is properly considered delay caused solely by the defence. The court and the Crown were in a position to move this matter forward but Ms. Wilson was not. By March 18, 2021 Ms. Wilson had ample time to retain counsel. The only reason why this matter could not move forward was because of her failure to retain counsel in a timely fashion. October 1, 2021 – March 4, 2022 [ 23 ] In August of 2021 everyone was in a position to set a trial date. The first dates that both the court and the Crown were available were September 29 to October 1.

Defence counsel, however, advised that he was not available until March 2022. In my view this is delay caused solely by the defence. This is not a scenario where only a few dates were offered and counsel was not available on just the few dates. Instead, counsel explicitly indicated that he could not accommodate ANY dates before March 2022. In my view this time is properly characterized as delay caused solely by the defence and as such should be deducted. March 4, 2022 until December 18, 2022 [ 24 ] The original trial dates of March 3 and 4 were adjourned.

According to the transcript the trial was adjourned because trial counsel was removed from the record and Ms. Wilson needed time to retain new counsel. Counsel for Ms. Wilson argued that this delay was caused by the Crown because the need for new counsel was directly linked to disclosure being provided the week before the trial was to heard. Moreover, even if counsel had remained on the record, this case could never have proceeded on March 3 because key disclosure was only provided the week before. Crown counsel argued that the trial was adjourned, not because of late disclosure, but because Ms.

Wilson wanted to retain a new lawyer. Crown counsel also argued that the disclosure provided on February 4 and February 24 was not material disclosure and as such could not be the source of delay in this case. In my view the Crown’s position that the material provided in February was not material runs completely contrary the entire record put before me. Having said that, the issue about the cause of the adjournment in my view is complex and bears deeper consideration. I will first, however, address Ms.

Kiran’s argument that there was no late disclosure of substance in this case. [ 25 ] In April 2021, counsel for Ms. Wilson wrote to the Crown seeking disclosure of the in-car camera and other items. On April 16, 2021, counsel for Ms. Wilson sent a further email to Crown counsel asking for the name of the arresting officer who was an off-duty officer. It was unclear to him from the file who this was. Someone from the Crown’s office responded on the same date that “ as per the disclosure officer Lembke was the off duty officer” and that his notes have been fully disclosed [emphasis added].

In a responding email, counsel for Ms. Wilson, Mr. Jim, wrote that he was confused about who the arresting officer was because of the way officer Lembke’s notes were written. From the correspondence filed on this motion, it appears that Mr. Jim did not leave this issue alone after receiving the above information. Instead, he again sought clarity on the identity of the arresting officer at the Crown pre-trial. Again the Crown responded that Mr. Jim had all the notes and appears to have maintained that Officer Lembke was the arresting officer. This is despite the fact that as counsel for Ms.

Wilson pointed out in one of his emails, Officer Lembke refers to the “complainant” which everyone seems to know was the arresting officer – an off duty police officer. Given the Crown’s position, counsel concluded that the Officer was talking about himself in the third person, Mr. Jim wrote on April 16, 2021, Thank you for this confirmation. I do have Lembke’s notes.

It wasn’t clear he was the arresting officer, as he writes in the third person. “Complainant saw bad driving… [ 26 ] We now know that Officer Lembke was not talking about himself in the third person, but instead when he wrote “the complainant” he must have been referencing Officer Matthews, the off-duty officer who actually arrested Ms. Wilson. [ 27 ] Given the Crown’s repeated assertions that Officer Lembke was the off duty officer, even though we now know he was not, and that all the notes had been disclosed, counsel for Ms. Wilson filed a Charter application and lengthy factum arguing that Ms.

Wilson had been unlawfully detained, unlawfully searched and that the police failed to advise her reasons for arrest when she was first detained. The essence of his argument was that there were no notes from any officer indicating why Ms. Wilson was detained, why she was arrested at the moment of the arrest or what she was told of her rights to counsel when arrested. This material was filed on January 31, 2022. [ 28 ] Four days after counsel filed a lengthy factum outlining all these issues and just one month before the trial was to begin, Crown counsel disclosed the 911 call.

The 911 call details exactly what took place with Ms. Wilson’s arrest. An off-duty officer, PC Matthews, called 911 and advised the dispatcher that he was following someone he believed to be impaired. Officer Matthews can be heard on the 911 tape advising the dispatcher of his observations. For six minutes, Officer Matthews is recorded detailing his observations of Ms. Wilson. Officer Matthews is then heard telling the dispatcher that the driver, later identified as Ms. Wilson, stopped in a gas station. Officer Matthews then went to her vehicle, advised her exit her vehicle and arrested her for impaired driving.

The arrest and part of the rights to counsel was captured on the 911 call before the call disconnected. [ 29 ] In other words, four weeks before the trial, four days after all the motion material was filed in this case and only two weeks before

the deadline for Charter motions to be filed, the defence was told that all earlier communication about the identity of the arresting officer was incorrect, that the arresting officer is captured on audio detailing his observations and what those observations were. [ 30 ] It appears that no one listened to this 911 call immediately as the next communication is an email from Mr. Jim to the Crown on February 22, 2022. I do not fault counsel for not dropping all his other work to listen to the 911 tape. He had no reason to believe it would be case altering.

There is a reason why disclosure must be provided more than a month before trial, this is because counsel have other files and it takes time to properly review all the material and have one’s client come in to listen to the new disclosure. [ 31 ] I infer from the contents of the email sent on February 22, 2022 that Mr. Jim by then had listened to the 911 call because he wrote to the Crown, Ms. McCallum, asking for Officer Matthew’s notes. According to the material filed only one page of Officer Matthew’s notes had previously been disclosed.

Unfortunately, the Crown clearly had not listened to the 911 call or bothered to check the file before responding to defence counsel’s query as she wrote back stating that there were no notes for Officer Matthews besides the single page disclosed. Had she listened to the 911 call, she would have known this could not possibly be true or at least realized that if it was true, she needed to obtain some further documentation from Officer Matthews. In my view, had the Crown looked at the file before responding to counsel on February 22, or read the factum filed by Mr.

Jim, she also would have realized that the Crown’s office had given Mr. Jim incorrect information about the file in the earlier correspondence and taken immediate steps to correct this misinformation. [ 32 ] Two days later, on February 24, 2022 Crown counsel emailed defence counsel advising that she had just met with Officer Matthews and discovered that they were missing all but one page of his notes. Six pages of notes were then provided to counsel. The notes which were filed on this motion, are largely consistent with what is heard on the 911 call.

The notes have additional important information about his observations, including that he smelled alcohol from Ms. Wilson as she spoke. The 911 call only makes reference to smelling the odor of alcohol, but not where the odor came from. Since others were in the vehicle with her, this was relevant to the officer’s grounds for arrest and information that could not be determined from the 911 call. The 911 call also cuts off before the full rights to counsel were read and long before any other officer arrives on scene.

In other words, in my view, the notes contained additional relevant information directly linked to the Charter issues originally raised in the factum filed on January 31, 2022 and served to further alter the landscape of this case. [ 33 ] According to an email counsel sent to the Crown a day or so later, upon receiving the notes of Officer Matthews, counsel met with Ms. Wilson to discuss the new disclosure. As a result of the new and very late disclosure, Ms. Wilson decided that she wanted a second opinion. Counsel wrote in his email that since the second opinion could not be obtained prior the trial date, Ms.

Wilson would be seeking an adjournment of the trial date. Counsel wrote in the email that Ms. Wilson’s interest in obtaining a second opinion was directly linked to the disclosure just provided. [ 34 ] Ms. Kiran argued that the 911 tape and Officer Matthew’s notes were not material disclosure and that receiving them at the late date did not materially alter the case. In support of this argument, counsel pointed to the fact that the in-car camera was provided back in July 2021 as well as the ICAD report.

I have watched the in-car camera and in my view, it does not reveal anything about officer Matthew’s observations. The in-car camera starts when the on-duty officer arrived. Ms. Wilson can be heard saying that she was not previously advised of why she was being arrested or of her right to counsel. The off-duty officer states otherwise. In other words, the in-car camera does not reveal why Ms. Wilson was arrested, what grounds the off-duty officer had nor does it reveal what she was told upon her arrest.

It only reveals what the on-duty officer did upon his arrival, some time after the arrest. [ 35 ] The ICAD report is equally unhelpful. It provides some information about what the caller, Officer Matthews, was saying, but no details about the reasons for the arrest and what was said. Moreover, the ICAD report is confusing if one takes into account that the Crown already told counsel that the off duty officer involved was Officer Lembke.

Reading the ICAD report through the lens of the incorrect information that Officer Lembke was the off-duty officer I am not able to draw any meaningful information about the arrest of Ms. Wilson from it. Given the misinformation from the Crown, the ICAD could not possibly have helped counsel understand what observations the off-duty officer made, what his grounds for arrest were and what he told Ms.

Wilson when he did arrest her. [ 36 ] When I look at the misinformation provided by the Crown and the very late production of key disclosure that was absolutely necessary to assess the merits of any Charter applications, it is my view that the Crown failed in her duty to provide timely disclosure in this case. [ 37 ] I am troubled by the events that unfolded in this case. This is because the only inference I can make given the facts outlined above, is that the Crown did not read the file for this case in any meaningful way prior to February 24, 2022.

Had the Crown read the file, she would have known that Officer Lembke was not the off-duty officer who initially arrested Ms. Wilson. I do not know what his notes say as they were not provided on this motion, but I do know that they reference a complainant – that is the person who witnessed the driving. I also know that the witness was the off-duty officer who made the arrest. This seems to have been known by the Crown’s office early on. I also know that defence counsel when reading the file clearly doubted that Officer Lembke was the off-duty officer that arrested Ms.

Wilson because it would be quite unusual for an officer to refer to himself as the complainant. Given these facts, and counsel’s repeated requests for the identity of the off-duty officer, I would have expected the Crown prosecuting this case to have at least investigated this issue prior to one week before the trial. [ 38 ] This leads me to my other concern about how this case was handled – the way the Crown responded to counsel’s queries about disclosure. In my view, the Crown in this case treated the disclosure requests from counsel as a nuisance as opposed to legitimate disclosure requests.

Had the Crown taken the requests more seriously perhaps she would have reviewed the file back in April 2021 and noticed that she had the wrong arresting officer and that she was missing the key officer’s notes. I note, however that it was not Ms. McCallum who provided the misinformation. It was someone else in the Crown’s office. [ 39 ] The Crown’s response on February 22 to counsel’s query about officer Matthew’s notes is even more troubling.

The only inference to be drawn is that Crown had not yet listened to the 911 tape and instead of investigating the disclosure request, she basically shrugged counsel off and denied that any disclosure was missing. It is difficult to understand why the Crown would be so dismissive of what anyone familiar with the file would know was a legitimate disclosure request.

[ 40 ] Had the matter ended here, and counsel attended court on March 4, 2022 and sought an adjournment, I would have no difficulty concluding that this was delay occasioned solely due to late disclosure. Had counsel argued that the trial had to be delayed because he needed additional time to absorb the new material and assess other potential defences, I would have had no difficulty accepting counsel’s argument and would have granted the adjournment. Ms.

Wilson’s lawyer wrote an extensive factum outlining a series of Charter violations based on the disclosure he had received which did not include the 911 tape nor did it include Officer Matthew’s notes. Moreover, based on the Crown’s mistaken understanding of the file, he also had the wrong person identified as the arresting officer. The landscape of this case fundamentally changed upon receipt of the 911 tape on February 4 and the notes on February 24. [ 41 ] This, however, is not what happened. Instead, Ms.

Wilson sought a second opinion which then led to a sufficient break down in their relationship that counsel sought to be removed from the record. This is why the case was adjourned. As such, Crown counsel takes the position that Ms. Wilson’s loss of counsel occasioned the delay and this is delay caused solely by the defence. [ 42 ] I appreciate that Ms. Wilson’s actions had some role to play in the adjournment.

Having said that, I am satisfied on the evidence before me that but for the late breaking disclosure that completely changed the merits of the Charter applications filed as well as the strength of the Crown’s case, Ms. Wilson’s relationship would not have broken down with her counsel. I appreciate that Ms. McCallum asserted to the judge on March 3 that she personally disagrees with this, but I do not know what her reason was for disagreeing with this.

It is my view, that the record before me clearly supports the conclusion that the breakdown in the solicitor client relationship was completely caused by the late disclosure. Firstly, Mr. Jim clearly expressed this in his email to Ms. McCallum outlining why he would be seeking an adjournment. Secondly, according to comments by the judge on March 3, 2022 this was referenced in the application materials. Thirdly, Ms.

Wilson, in the few moments when she was allowed to speak, makes it clear that prior to the late disclosure she got along well with her lawyer and that the issues did not arise until after the new disclosure came in and counsel did an about face on her defence. Ms. Wilson stated at page 10 of the transcript, During the course of my representation, you know, there was a consistent understanding that there was merit – was defence that indicates it had several triable issues, and surprisingly that view was reversed, not by me, but after February 24, 2022.

In the context of the proceedings, that is an important date as up to February 23, 2022, just eight days ago, umm, there was an understanding that critical – that, that – that there was an outstanding critical disclosure in the form of incomplete notes of the arresting officer, and this understanding was brought to my attention – was brought to the attention of the Crown five times prior to February 24 th , that they were not provided. [ 43 ] Fourthly, the breakdown in the relationship clearly occurred just after receipt of Officer Matthew’s notes.

Finally, it is easy to understand how late disclosure of key evidence could alter the relationship between client and counsel. This case went from having a strong Charter motion given the absence of notes and grounds for arrest, to a case where all of a sudden there are expressed grounds for arrest and there are notes. It is difficult for me as judge to understand how this could happen, it must be even harder for a lay person. [ 44 ] When I look at the entire record before me, while the break down in the solicitor client relationship contributed to the delay in this case, it was not the sole cause of the delay.

The fact that critical disclosure was only provided in the weeks leading up to this trial coupled with the misinformation provided by the Crown’s office also contributed to the delay. As such, the delay in this case is not “solely” caused by the defence. In R. v. Crant, 2018 ONSC 1479 , Nakatsuru J. explored the application of Jordan where both the Crown and the defence contributed to the delay. Nakatsuru J. found that in such cases the delay is not captured as defence delay as defined by Jordan .

Nakatsuru J. stated at paragraph 30, To the date of the stay by Cavion J., the defence did not waive any delay (except perhaps a day or two in getting the bail hearing on) nor did it solely cause any delay. The delay was mainly a function of the police investigation into a number of electronic devices seized from the appellant and making appropriate disclosure of this to the defence. I appreciate that Goldstein J. also found a portion of that delay was caused by defence counsel’s refusal to set a date until he received a forensic report resulting from the seizure.

However, in my view this delay was not solely caused by the defence. The lack of timely disclosure also contributed to the delay. Thus, this period of time does not fall within defence delay as defined by Jordan. This example just highlights how the allocation of time can be different between the Jordan test and the Morin test.

Looking at the time period from the laying of the information until the stay ordered by Cavion J., I cannot say that there was any defence waiver or defence caused delay aside from perhaps a couple of days. [ 45 ] This does not mean, however, that all the delay flowing from the adjournment should be considered in the overall delay calculation. There were some discrete time frames post the adjournment date, that in my view were caused solely by the defence. When Mr. Gravesande was first retained, he was not available right away to attend court and required additional time to review the disclosure.

This caused a delay from April 29, 2022 until June17, 2022. I also find that the delay from October 11 until December 13 to be delay caused solely by the defence as both the Crown and the Court were ready to hear this matter as of October 11, 2022. Conclusion [ 46 ] The overall delay in this case is just under three years. Of this 35-month delay, roughly five months can be attributed to the pandemic and deducted from the overall time reducing the delay to 30 months. Approximately nine months is attributable to delay caused solely by the defence. This further reduces the relevant delay for the 11(

b) analysis to over twenty months of delay. This is still two months over the presumptive ceiling of 18 months. In my view the Crown has not established a basis to find that the excess delay was reasonable. As such, I find that Ms. Wilson’s s.11(

b) Charter rights were violated. The remedy of a stay of proceedings is granted. Released December 8, 2022 _____________________ Justice Mara Greene