Toronto (City) v., 2023 ONCJ 158

CITATION: Toronto (City) v. 961557 Ontario Ltd., 2023 ONCJ 158 DATE: April 13, 2023 ONTARIO COURT OF JUSTICE Toronto Region B E T W E E N: HIS MAJESTY THE KING v. 961557 ONTARIO LTD., OPERATING AS “THE CROOKED CUE” REASONS:

SECTION 11(

B) MOTION FOR DELAY Motion hearing date: December 19, 2022 Decision: April 13, 2023 Counsel: Ms. S. Kym, Prosecutor, City of Toronto Mr. A. Suboch, Defence counsel INTRODUCTION: [ 1 ] The moving party, 961557 Ontario Ltd., operating as "The Crooked Cue” (“The Crooked Cue”) was charged under

Part III of the Provincial Offences Act , R.S.O. 1990, c. P.33 , (" POA ") on June 27, 2020 with failing to comply with an order made during a declared emergency, under s.7.0.11(1) (

c) of the Emergency Management and Civil Protection Act , Order Under Subsection 7.0.2(4) of the Act - Stage 2 Closures , O.Reg. 263(20 ), which was Exhibit 3 in this trial. It has plead not guilty to this charge. [ 2 ] This is a motion brought by The Crooked Cue for a stay of proceedings by virtue of a breach of s.11(

b) and pursuant to s.24(1) of the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act , 1982 , being

Schedule B to the Canada Act, 1982 (U.K.) , 1982, c.11 (" Charter "). [ 3 ] The Crooked Cue argues that its constitutional rights have been infringed due to the inordinate delay in proceeding with this trial. HISTORY OF THE PROCEEDINGS: [ 4 ] I have reviewed the Affidavit filed by the Law Clerk at the Prosecutor's Office, the Affidavit filed by Sam Pappas, the Timeline filed by defence counsel, and hundreds of pages of transcripts in this matter in order to outline the History of the Proceedings. [ 5 ] The first appearance date was March 2, 2021. Mr.

Pappas appeared in person and advised His Worship Buchanan that he was the owner of the company.

The matter was adjourned to May 7, 2021. [ 6 ] According to the Affidavit of Carmela Dela Cerna, Law Clerk at the City of Toronto, on April 8, 2021, the Prosecutor's Office provided initial disclosure to Sam Pappas which included the Charging Officer's duty book notes, photographs taken by the officer, certified Corporate Profile Reports and inspection reports from the offence date and a subsequent re-inspection date. [ 7 ] However, I have read the transcripts, and when the matter appeared again on May 7, 2021 before Her Worship Kirke, Mr. Pappas appeared.

No disclosure was available yet, and the Prosecutor stated on the record that it would be ready by the end of next week. The matter was adjourned to July 9, 2021. [ 8 ] The matter appeared on July 9, 2021 before His Worship Conacher. Initial disclosure had been provided and the Prosecutor was

seeking to make further disclosure. The matter was adjourned to August 10, 2021 for a Judicial Pre-Trial to determine witnesses. Mr. Pappas advised that he might retain counsel, which he subsequently did. The matter was adjourned to the Judicial Pre-Trial date of August 10, 2021 with a subsequent date for the matter to be spoken to on September 17, 2021 in court. [ 9 ] At some point, Mr. Pappas indicated to the Prosecutor that he believed he had permission to re-open from the City, raising the issue of officially induced error. As a result, Ms. Kym sent Mr.

Pappas an email dated August 9, 2021, which outlined their response. It included two email chains, one from Mike Major to Mr. Pappas regarding a site visit, and the second from Mr. Pappas to Toronto Public Health, which confirmed its position on reopening. [ 10 ] The Judicial Pre-Trial commenced on August 10, 2021. It did not complete that day and was adjourned to be continued on November 18, 2021. A subsequent date of November 19, 2021 was also scheduled for the matter to be spoken to in court. [ 11 ] On August 11, 2021, Mr. Suboch emailed Ms.

Kym, requesting further disclosure as follows: I want any and all documents - internal memo's, discussion papers, spreadsheets, handwritten notes - created by any internal discussions within the City of Toronto including its legal department, the Toronto Board of Health, its By-law enforcement department that relate to how the City of Toronto decided that the Crooked Cue, as of the date it was charged, did not comply with the above-cited definition.

I want the complete file of the By-law enforcement officer and/or employee of the City of Toronto who attended the Crooked Cue's premises to investigate and charge the Crooked Cue with non-compliance [I believe his name may be Sylvanus Thompson] as it relates to this matter. I also want the complete files of: Mike Major Fiona Chapman Elizabeth Glibbery Carleton Grant Scott Sullivan Melissa Simone As they relate to the investigation of whether the Crooked Cue's patio met the definition of an outdoor dining space and as they relate to the

interpretation of what constitutes an outdoor dining space. These individuals all are listed in the emails you provided previously to Mr. Sam Pappas as part of the disclosure process. I want to know their positions and responsibilities with the City of Toronto at the time that the Crooked Cue was charged. Also, I want the contact info for subpoena purposes of the Chief Medical Officer of the City of Toronto, the Mayor of Toronto and the above-mentioned individuals.

If you can accept service of subpoena's for these individuals, let me know, otherwise, I will have them served personally... [emphasis added] [ 12 ] The matter returned before Her Worship Napier on September 17, 2021 and was adjourned to November 18, 2021 to continue the Judicial Pre-Trial. [ 13 ] On November 2, 2021, 106 pages of further disclosure, much of which was redacted, was sent to defence counsel. [ 14 ] The Judicial Pre-Trial continued on November 18, 2021.

His Worship Bubrin ordered the issue of further disclosure be adjourned to the following date in order to obtain a date for the motion. [ 15 ] On November 19, 2021, the matter appeared before His Worship Quamina to set a date for the disclosure motion. The court and Prosecutor were available on January 10, 2022, however defence counsel was unavailable, so the motion was scheduled for February 3, 2022.

The motion was scheduled for half a day. [ 16 ] On February 3 and 8, 2022, Her Worship Finn heard the disclosure motion brought by defence counsel for documents which were heavily redacted and over which claims of privilege had been brought. Defence counsel was late for court and apologized on the record. [ 17 ] Her Worship Finn rendered her decision orally on March 10, 2022. I have read this transcript carefully. As she stated at p.2 of her ruling, the defendant brought a motion seeking better and/or further disclosure from the City of Toronto.

In particular, it sought "any and all objective tests, test results, data, or other items relied on by the Crown to support its contention that The Crooked Cue outdoor dining area did not satisfy the public health requirements for outdoor dining during the COVID pandemic." She noted further, that it also sought "to have any information and/or documents relied by the Crown to support its definition of an outdoor dining area." Finally, it sought, "unredacted documents produced to date, or a description of what has been redacted, and/or an explanation as to why it should be redacted." The Prosecutor opposed this motion, and argued that it had complied with all of its disclosure obligations.

Her Worship Finn identified two issues to decide at p.3 of this transcript, being: (1) whether the City has fulfilled its disclosure obligations; and (2) whether the redactions the City has made to the documents are proper. [ 18 ] Her Worship Finn directed, at pp.11-12 of the transcript, that any handwritten notes, records, memorandum, agendas and files of the individuals whose emails had been produced related to The Crooked Cue and the charge against it be produced, if they were in the control of the City, subject to any privilege. [ 19 ] Her Worship Finn further directed, at p.12, that if there are any relevant records, handwritten notes, minutes, emails, photos or other documents related to a site visit and walk through by the City at The Crooked Cue during the month of June, 2020, in the control of the

City, and subject to privilege, should be produced. [20] Her Worship Finn also directed, at pp.12-13, that any documents, etc. relating to a hospitality and reopening and recovery teammeeting held in June, 2020, and a similar interdivisional committee meeting held on June 17, 2020 (unclear to Her Worship Finn if thesame meeting or two separate events), as they related to The Crooked Cue, should be produced, subject to privilege. [21] Her Worship Finn compared numerous redacted documents with the unreacted portions of same, and upheld all the redactions madeby the Prosecutor. [22] Finally, at p.24 of the transcript, Her Worship Finn rejected the argument made by defence counsel that there had been a waiver ofprivilege when Mr.

Thompson, who was then an associate director at Toronto Public Health, shared an email from Melissa Simone withDave Mowat, on June 28, 2020. Since Dr. Mowat was a City employee at the time, no waiver occurred. She further rejected theargument that there was a waiver of privilege or communication when communications were shared with Mike Major, since he was alsolisted on the city's staff names and roles. It was clear on the record that all of the arguments made by the defence about privilege hadfailed.

The matter was adjourned to May 5, 2022. [23] On April 4, 2022, the Prosecutor forwarded copies of two loose leaf notes and doodles taken by Carlton Grant at a meeting on June29, 2020, to fulfill the above-noted disclosure orders made by Her Worship Finn. [24] On May 5, 2022, the parties appeared before His Worship Madigan to set trial dates. The parties had previously agreed that theyrequired six days for trial. Although there was some discussion of earlier trial dates being offered in June and July, 2022, those dateswere not specified on the record and thus I cannot rely upon them in determining defence delay.

The dates of August 8 to 12 inclusivewere offered, and defence counsel indicated that he was available August 9 to 12. His Worship Madigan set the trial to commence onAugust 9, 2022. Mr. Suboch indicated that he would begin with his s.11(

b) motion on August 9, 2022. [25] The trial commenced on August 9, 2022, before me. This s.11(

b) motion was to have been heard on this initial date, but Mr. Subochdid not have any of his materials filed nor did he have his transcripts ready. All I had received at this point was the Response from theCity. He asked me to adjourn it, which I granted. [26] The trial dates took place on August 9, 10, September 8, October 4, 28, November 17, December 12 and 19, 2022. The s.11(b)motion was ultimately heard on the final trial date, December 19, 2022, after several adjournments. The half-day on September 8 wasadded to provide a return date for Judgment on the Motion for Non-Suit. The full-day on December 19, 2022 was added to accommodatethe s.11(

b) motion, which had been adjourned from the first day of trial. POSITIONS OF THE PARTIES: [27] The total delay from the charge date to the date of completion of trial is 29 months and 22 days. The moving party submits thatwhen eliminating the agreed upon time attributable to COVID-19 delay as an exceptional circumstance, being 8 months and 5 days, thereis 21 months and 17 days of delay, which is above the presumptive ceiling of 18 months. [28] The Prosecutor disagrees with the moving party's calculations of net delay in this case.

She submits that the defence delayed mattersby 3 months and 22 days which she attributes to the defendant's mostly unsuccessful disclosure motion and to the unavailability ofdefence counsel to set earlier trial dates. [29] With respect to the disclosure motion, the Prosecutor submits the motion was originally scheduled for a half-day and it took 2 daysof argument plus a return date for a decision. Her Worship Finn had to consider and compare the redacted documents and the originaldocuments, since defence counsel challenged the redactions.

Ultimately, Her Worship Finn found that all the redactions had beenappropriate, but did direct that the Prosecution make a few additional requests for all handwritten notes from all named individuals andtwo documents related to specific events. The Prosecution fulfilled these directions on April 4, 2022, by sending those notes to defencecounsel. The Prosecutor submits that the moving party has not demonstrated that these documents advanced their ability to make answerand defence.

The Prosecutor submits that the right to disclosure is not absolute, and that this delay must be deducted as it is attributableto the defence. [30] With respect to the setting of dates for trial, defence counsel was not available on earlier dates. Moreover, the defence's position thatit needed to call 16 witnesses, including the Premier of Ontario and City of Toronto staff, none of whom testified, caused further delay. ANALYSIS: Legal Principles: [31]

Section 11(

b) of the Charter sets out the right to be tried within a reasonable time. [32] In Jordan, the Supreme Court of Canada held at para. 1, it held that, "[t]imely justice is one of the hallmarks of a free anddemocratic society." Also see: R. v. Gharibzada, [2022] O.J. No. 3682, at para. 29-31. [33] Moreover, in Jordan, the Supreme Court of Canada created a new framework for the analysis of the issue of delay under s.11(b),thus overturning the prior benchmarks set by it in R. v. Morin, (SCC), [1992] 1 S.C.R. 771.

The Jordan frameworkestablished the concept of net delay and included a determination to be made of whether the net delay breached a presumptive ceiling.The presumptive ceiling for Superior Court matters is 30 months and for matters in the provincial courts it is 18 months. [34] However, as His Worship Bourgon pointed out in Oshawa v. Amodeo, [2022] O.J. No.91, at para. 14, for matters in the OntarioCourt of Justice that proceed under

Part I or

Part III of the POA, the presumptive ceiling is 18 months, as established by R. v. Nyugen,2020 ONCA 609. Also see: Toronto (City) v. Yaqoobi, 2021 ONCJ 532 , at para. 7; and R. v. Guiste, 2022 ONCJ 575

at para. 2. [35] A stay of proceedings for a breach of s.11(

b) of the Charter is an extraordinary remedy, not only for the parties but for the justicesystem as a whole, and is only used as a last resort, as per R. v. O'Connor, (SCC), [1995] 4 S.C.R. 411, at p.466, as citedin R. v. Hinterberger, 2022 ONSC 4860 , [2022] O.J. No. 3816, at para. 20. [36] In Hinterberger, at paras. 14-19, Mr. Justice Goodman outlines these new principles as follows: 14. In the post-Jordan era, courts are directed to undertake the following steps when considering a s.11(

b) Charter application. The firststep is a calculation of the total length of time between the charge and the actual or anticipated end of trial. The next stage is to determinewhether any of the delay was waived by the defence or caused solely by defence conduct, and to subtract those portions from the totaldelay: R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d) 433, at para.35; and R. v. Gopie, 2017 ONCA 728, 140 O.R. (3d) 171, at para. 113.There are two types of defence delay: delay waived by the defence and delay caused solely by the conduct of the defence.

Delay causedsolely by the defence includes deliberate and calculated defence tactics aimed at causing delay and circumstances where the court andthe Crown are ready to proceed, but the defence is not. 15. If the net delay then exceeds the ceilings outlined in Jordan (18 months for the provincial court and 30 months for superior courtcases), it is presumptively unreasonable. 16. Where the delay is presumptively unreasonable, the onus shifts to the Crown to demonstrate that the delay is nevertheless reasonable,taking into account any exceptional circumstances.

In general, there are two categories of exceptional circumstances -- discrete eventsand particularly complex cases. Exceptional circumstances have two components: "(1) they are reasonably unforeseen or reasonablyunavoidable, and

(2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise": Jordan,at para. 69. 17. Delay caused by discrete, exceptional circumstances may then be subtracted from the total delay to determine the remaining netdelay. However, if they Crown could have reasonably mitigated the delay arising from a discrete event, it may result only in a partialamount of time being subtracted from the net delay. 18.

If the net delay remains above the 30-month ceiling, the court must determine if the case was particularly complex such that itjustifies the length and renders the remaining delay reasonable. If the Crown is not able to rebut the presumption, the charges against theaccused will be stayed: Jordan, at paras. 37-39. 19. On the other hand, if the remaining delay falls below the presumptive ceiling, the onus is on the defendant to prove that the delay isnevertheless unreasonable. Stays for cases below the ceiling are rare: Jordan, at paras. 48, 82-83.

Steps to Consider in the Post-Jordan Era: [37] The Ontario Court of Appeal established the following steps required for s.11(

b) motions in Coulter, at paras. 34-40, as reproducedin Hinterberger, at para. 21: (

a) Calculate the total delay, which is the period from the laying of the charge to the actual or anticipated end of trial; (

b) Subtract defence delay, including delay that is waived, from the total delay, which results in the "Net Delay"; (c)Compare the Net Delay to the presumptive ceiling; (

d) If the Net Delay exceeds the presumptive ceiling, the Crown must establish the presence of exceptional circumstances, otherwise astay will follow. Exceptional circumstances fall under two categories: discrete events and particularly complex cases; (

e) Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay"); (

f) If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex suchthat the time the case has taken is justified and the delay is reasonable; (

g) If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable. Calculating the Total Period: [38] In order to calculate the Total Delay, I must consider the time between when the charge was laid on June 27, 2020 and the end of thetrial, which was December 19, 2022. The total delay is 29 months and 22 days. Defence Conduct Amounting to Delay: [39] The next step is to deduct defence delay. Every justice participant has a responsibility to ensure that criminal and regulatoryproceedings are conducted within a reasonable time.

Where the defence benefits from their own delay, such a result "operates to thedetriment of the public and the system of justice as a whole", as per para. 23 of Hinterberger, citing para. 21 of Jordan. [40] When assessing the conduct of the defence, any delay attributable to defence conduct or inaction is subtracted from the total delay.Since the Charter pertains to the conduct of the State, the conduct of the defence that delays the trial does not fall within thepresumptive ceilings. See: Hinterberger, at para. 24, citing both Jordan, at paras. 21, 49, 60; and R. v.

Cody, 2017 SCC 31. [41] In Hinterberger, at para. 26, Mr. Justice Goodman described examples of such defence delay, as follows:

Examples of defence-caused delay include frivolous applications and requests, and periods during which the court and Crown are readyto proceed but the defence is not. However, these examples do not amount to an exhaustive list and it "will of course be open to the trialjudges to find that other defence actions or conduct have caused delay." Such determinations are "highly discretionary": Jordan, at paras.60-66; Cody, at paras. 28-31. [42] In R. v.

Manasseri, 2016 ONCA 703 , at para. 304, the Ontario Court of Appeal examined delay caused solely by theconduct of defence, as follows: Delay caused solely by the conduct of the defence takes in a variety of conduct that either directly causes the delay or reveals a deliberateand calculated tactic to delay the trial, such as frivolous applications and requests: Jordan, at para.63. Where the court and Crown areready to proceed, but the defence is not, the defence will have directly caused the delay.

Not so, however, where the court and theCrown are unavailable, even if the defence is not: Jordan, at para.64. [emphasis added] [43] As per Cody, defendants may pursue all available substantive and procedural means to defend themselves, but they may not engagein what His Worship Bourgon described in Oshawa v. Amodeo, at para. 39, as "illegitimate conduct and then have it count towards theJordan ceiling." DEFENCE DELAY: [44] Defence counsel argued that the motions he brought were all necessary to provide his client with a proper defence.

As such, hesubmits that they are not attributable to defence delay. [45] The Prosecutor submits that the motions were frivolous and unnecessary, and resulted in substantial delay. [46] I find that several periods of time are properly attributed to defence delay, described in detail below. A. The Disclosure Motion: [47] The disclosure motion brought by defence counsel resulted in significant delay, from the time the motion was set in November2021, through the two hearing dates of February 3 and 8, 2022, culminating in the decision of March 10, 2022.

As previously indicated,an earlier date of January 10, 2022, was offered and declined by the defence. [48] Clearly, the Prosecutor has a duty to make disclosure to defence counsel, as per R. v. Stinchcombe, (SCC), [1991] 3SCR 326. and this case is complex and involved a number of different branches of the City of Toronto, including Toronto Public Healthas well as the enforcement officers involved. [49] This motion was originally scheduled for a half-day, but defence counsel prolonged it into a two-day hearing heard on February 3and 8, 2022.

Although there was a deadline to submit materials, defence counsel filed an additional affidavit on February 7, 2022. Asnoted in Cody, at para. 32, “Defence conduct encompasses both substance and procedure…” The late filing of an additional affidavitcontributed to the time it took to hear the motion and to prepare a decision and requires scrutiny.

This decision was rendered orally onMarch 10, 2022 by Her Worship Finn, and I have reviewed this transcript. [50] The Prosecutor submits that the time from the Judicial Pre-Trial on November 18, 2021 when the disclosure motion was canvassed,to the date of the decision, March 10, 2022, being 3 months and 22 days should be subtracted. [51] I accept that the Prosecutor was making ongoing disclosure in the background. There were numerous redacted documents sought inthe disclosure motion over which the Prosecutor claimed privilege and which were entirely upheld by Her Worship Finn.

The additionaldisclosure ordered by Her Worship Finn was de minimus in nature and added nothing to the evidence presented at this trial. I thereforefind that the disclosure motion was frivolous and a deliberate tactic designed to create delay. [52] I do not agree with the Prosecutor's calculation. Instead, I find that the defence delay pertaining to the disclosure motion is fromNovember 19, 2021 to May 5, 2022, being 4 months and 17 days. B. Setting Trial Dates: [53] While I appreciate that defence counsel is a sole practitioner, nevertheless, it was very difficult to

schedule and maintain agreedupon trial dates for this matter, despite two Judicial Pre-Trials having taken place. In particular, defence counsel at the outset stated thathe required 16 witnesses, and his witness list evolved throughout the proceeding. The Prosecutor stayed on

schedule throughout. [54] As previously indicated, I have read the transcripts from the prior court proceedings. Unfortunately, many of them are not as clearon timing as they could be. For example, when trial dates were being set, I am told that dates were offered in June and July 2022, yet Icould not find mention of any of those earlier dates in the transcripts.

As a result, I can only find the defence was not able to commencethe trial on August 8, 2022, thereby delaying the commencement of trial by one day. [55] Again, numerous trial dates appear to have been discussed between the parties, consisting of dates in October and early November,2022 but defence counsel was unavailable. However, it is unclear whether those dates were dates where there was court availability or ifthe Prosecutor was available on those dates. I acknowledge that the defence was available on October 4 and 28, 2022 and November 17,2022, however, and trial dates were held.

In light of this, I cannot make any findings regarding further defence delay with respect to thesetting of dates for trial. C. Failure to Perfect s.11(

b) Motion for August 9, 2022: [56] Defence counsel was not in a position to commence his s.11(

b) motion as scheduled. The Prosecutor submitted that the motionshould be dismissed as it was not properly before this court since it had not been perfected. I permitted the defendant to file his factum

and the transcripts later during the trial. As a result of the actions of the defence, this court lost a half-day of scheduled time on August 9,2022 and an additional day was added to hear this motion at the end of the trial. [57] In light of this delay, I attribute the defence delay pertaining to the failure to perfect the s.11(

b) motion as scheduled, below: i. 0.5 days to the half-day of trial that was lost on August 9, 2022, and ii. 7.0 days as the trial did not end on December 12, 2022 as originally scheduled but instead ended with the hearing of the s.11(

b) motionon December 19, 2022, for a total of 7.5 days. D. The Directed Verdict Motion: [58] On the first day of trial, defence counsel also advised me that he planned on bringing a motion for a directed verdict, prior to mehearing from the Prosecution's witnesses. This motion for non-suit was heard on August 10, 2022 and the written decision was renderedon September 8, 2022, which was an additional day added solely to give reasons for this motion. It was dismissed, see: Toronto (CIty) v.961557 Ontario Ltd., 2022 ONCJ 478 . [59] This motion was a delay tactic and caused a further delay of 1 day. E.

The Motion to Take a View: [60] Defence counsel brought an additional motion during the trial proper, asking me to take a view of the premises, in light of its uniqueconfiguration, and the statutory

interpretation issue of what constitutes an “outdoor dining area that is, in or adjacent to the place ofbusiness" as contained within the Regulation (Exhibit 3). [61] This motion was granted, and I took a view on the morning of October 28, 2022 in the company of all parties, and resumed the trialon its merits that afternoon. October 28, 2022 was scheduled to be a full day of trial. [62] This motion was clearly a defence request. The view was consistent with that set out in the photographic evidence tendered by theprosecution's witnesses.

As such, I find this motion was not necessary and it resulted in another half-day of trial being lost. EXCEPTIONAL CIRCUMSTANCES: [63] The charge was laid on June 27, 2020. The trial ended with the hearing of this s.11(

b) motion on December 19, 2022. The totaldelay is 29 months and 22 days. The defendant submits the amount of time is over the 18-month ceiling established in Jordan, and ispresumptively unreasonable. The prosecution submits that the net delay falls under the 18-month Jordan ceiling when subtractingdefence delay and exceptional circumstances being the discrete event of COVID-19. The Impact of COVID-19: [64] On March 17, 2020, the Province of Ontario declared a state of emergency pursuant to the Emergency Management and CivilProtection Act, R.S.O. 1990, c.E.9.

The Chief Justice of the Ontario Court of Justice ordered all POA trials adjourned. [65] Trials for such matters could not be scheduled or rescheduled until judicial approval was received from the Regional Senior Justiceof the Peace. The Court Master Plan, dated December 16, 2020 allowed for the scheduling of remote new first appearance matters,commencing on March 1, 2021. Approval to

schedule or reschedule trials was granted commencing June 1, 2021. See: Toronto (City) v.Soudine, 2021 ONCJ 497 , at paras. 11-21, for details of the impact of COVID-19 on POA trials; and COVID-19: Notice toCounsel/Paralegals and the Public Re: Provincial Offences Act Matters in the Ontario Court of Justice (Revised May 10, 2022), OntarioCourt of Justice (ontariocourts.ca). [66] Defence counsel conceded that the time period attributable to COVID-19 by the Prosecutor of 8 months and 5 days was an"exceptional circumstance". Thus, I am deducting 8 months and 5 days, on consent.

REMAINING DELAY: [67] When I subtract the delay attributed to the discrete event of COVID-19 from the net delay, the remaining delay is 16 months and 20days. [68] As the delay is below the 18-month threshold, the onus shifts to the defendant to show: i. the delay was nonetheless unreasonable; and ii. the defendant took meaningful steps to expedite the case. [69] I have previously found the defence brought numerous motions which were frivolous and did nothing to advance the case. I alsoheard no evidence regarding the defendant taking meaningful steps to expedite the case; in fact, the evidence was to the contrary.

ORDER: [70] The defendant's right pursuant to s.11(

b) of the Charter to be tried without unreasonable delay has not been breached. This motion isdismissed.

Dated at Toronto, this 13th of April, 2023. __________________________ Mary A. Ross Hendriks, J.P.