R. v. Islam, 2017 ONCJ 335

CITATION: R. v. Islam , 2017 ONCJ 335 DATE: May 18, 2017 Toronto, Ontario Ontario Court of Justice TANVIR ISLAM, APPLICANT v HER MAJESTY THE QUEEN, RESPONDENT Ontario Court of Justice Toronto, Ontario Applicant on his own behalf R. Raczkowski for the Respondent Before: J. Opalinski J.P. Heard: January 26, 2017 Delivered: May 18, 2017 RULING ON APPLICATION FOR STAY OF PROCEEDINGS PURSUANT TO SECTIONS 11(

B) AND 24(1) OF THE CHARTER OF RIGHTS AND FREEDOMS THE CHARGES 1 . The Applicant is charged pursuant to

Part 1 of the Provincial Offences Act, R.S.O 1990, c. P.33 (the “POA”) with the offence of Disobey Stop Sign Wrong Place contrary to section 136(1) (

a) of the Highway Traffic Act R.S.O. 1990, c. H.8 . MOTION 2 . Prior to entering a plea, the applicant has brought an application to stay the proceedings under section 24(1) of the Charter of Rights and Freedoms, the Canada Act, 1982, c. 11 (U.K.) (“the Charter ”) on the grounds that the Applicant’s right to be brought to trial within a reasonable time pursuant to

section 11(

b) of the Charter has been infringed.

ISSUE 3 . The issue before the court is: whether or not the applicant’s right to be brought to trial in a timely manner has been infringed upon and the court as a result of this infringement should grant a stay of proceedings invoking section 24(1) of the Charter . ARGUMENTS MADE BY THE APPLICANT 4 . The applicant’s argument in favour of a stay of proceedings may be summarized as follows: (

a) The applicant relied on the test and reasoning contained in R. v. Askov, R. v. Morin and R. v. Finta this test includes examining the length of the delay; any waivers by the defendant; which delays are attributable to the defendant; the explanation for the delay; and whether or not there has been any prejudice to the accused caused by the delay. (

b) The applicant proceeded to acknowledge that R. v. Morin used an eight month ‘intake timeline, whereas Jordan sets ‘an 18 month sort of a bracket’. (

c) The applicant contends that it does not matter if he had brought the application on February 4 th , in May or on October 17, 2016, the outcome would have been the same as it fits the 8 month intake timeline set out in Morin. (

d) The clock starts ticking on November 12, 2014 and, in spite of any delay attributable to the applicant, too much time has elapsed and the proceeding should be stayed, for to not do so would bring the administration of justice into disrepute. (

e) The applicant became aware of the April 30, 2015 conviction when he went to renew his licence and immediately filed a notice of reopening, which was granted on May 11, 2015. (

f) The applicant states that prejudice to him has been enormous in that there are cost factors, time factors, mental aggravation, physical endurance, time required to prepare materials to make submissions to court etc. A person has to deal with their ticket, which takes time off their family obligations, academic pursuits, their professional duties and could impede their health. (

g) He also indicated that the media has been following this matter quite extensively as it is unheard of that such a minor matter has taken so long to reach trial. He has made attempts to resolve this matter. (

h) The applicant is asking the court to send out a message that higher court rulings need to be adhered to, that constitutional remedies are there for a reason ‘and they are not technicalities for accused individuals to evade prosecution or to contravene around convictions or to have blanket immunity to commit provincial offences’. (

i) The applicant further submitted on March 8, 2017 written submissions which were not requested by the court, whereby he recants his reliance on Askov and Morin and the position that his case was certified ‘pre- Jordan ’, a position taken by him when he originally argued the motion.

He further added that he sought legal advice from ‘various senior experienced counsel’ who were all of the opinion that this court was ‘right on all counts and Jordan was the relevant case law moving forward in terms of trial delay applications.’ The applicant acknowledges not ‘carrying out proper due diligence’ by not having read Jordan in its entirety, and that, as a self-represented defendant, he is unfamiliar with the substantive law, the rules of procedure, case law and other aspects of litigation. ‘His interests lie in corporate transactions and not in litigation, as he has never litigated any matter before the courts.’ (

j) The applicant further asserted that he has for 3 years attempted, by sending a barrage of e-mails and faxes to the respondent requesting certain documents and was told by the respondent that he must obtain them himself. (

k) The applicant requests that the court stay the proceedings as the delay is of such a nature that in not doing so would ‘amount to judicial condemnation of egregious systematic flaws and would erode the public’s confidence in the administration of justice.’ ARGUMENTS MADE BY THE RESPONDENT 5 . The respondent’s argument against a stay of proceedings may be summarized as follows: (

a) The respondent alleges that the overwhelming majority of the delay in this matter has been caused by the applicant himself, who

was unable to perfect the various motions he brought. (

b) The respondent pointed out that the applicant made reference to not being able to obtain transcripts as one reason for the delay;however, the applicant still has not produced any transcripts, nor paid for them. Transcripts were always available to be obtained andproduced by him. (

c) The respondent further contends that the cases referred to by the applicant are pre-Jordan decisions which are no longerapplicable. (

d) According to the respondent, the applicant failed to appear for his original trial date on April 3, 2015, had the matter reopened andthen appeared on the second trial date, being February 5, 2016. Jordan asserts that there is a ‘prima facie period of 18 months and thatif you take 18 months from around February 2016, this is well within that time.’ (

e) The delay does not rest at the feet of the respondent, but rests mostly at the feet of the applicant, whose submissions wereinaccurate, imprecise and have no basis in reality. He has not backed up anything he has said with any documentation or evidence andhis application should be dismissed. THE LAW

Section 11(

b) of the Charter provides that: “Any person charged with an offence has the right to be tried within a reasonable time” 7. Section 24(1) of the Charter states as follows: “Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competentjurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.” 8. On July 8, 2016, the Supreme Court of Canada (“the Supreme Court”) delivered its judgement in R. v. Jordan, 2016 SCC 27, [2016] S.C.J. No 27, which has had the effect of changing by updating the manner and way in which the courts should beapproaching

section 11(

b) applications. The court took the position that our system has come to tolerate excessive delays which in turnhas fostered a culture of complacency. As a result, a change in direction is required. Responsibility should now rest upon all participantsin the criminal justice system to focus on achieving ‘reasonably prompt justice’. The new framework should foster and set out amethodology for all sides to follow that is ‘more conducive to the spirit and intent of the Charter and give practical effect to this’. Itshould enhance accountability by fostering proactive and preventative problem solving (at para 112). The idea is that this newframework simplifies the approach to 11(

b) applications so as to give it a more practical effect. This new approach represents a shift inthe mindset that has prevailed since R. v. Askov, (SCC), 75 O.R. (2d) 673 S.C.C. It addresses the critical point thataccused persons should be tried within a reasonable time and that ‘timely justice is one of the hallmarks of a free and democraticsociety’. (at para 1) 9. The framework in R. v.

Jordan, supra, attempts to do three things: first, be more prospective and as such should encourage pro-active measures to remedy delays; second, resolve the difficulties surrounding the concept of prejudice as it had been applied in the past. The concept of prejudice is the underpinning of the new framework as ‘prolonged delays in and of themselves are prejudicial to theAccused, victims, witnesses and the system of justice as a whole’; third, reduce the complicated system of ‘micro-counting’ that hasevolved. 10.

Both sides must demonstrate what steps they took to remedy the delay, whether they are claiming that the case took longerthan the ceiling period mandates and that this period was reasonable or that it should have taken less time. This complicated system ofmicro-counting as it developed by the application of the framework established in R. v. Morin, (SCC), [1992] 1 S.C.R.771, led to what R. v.

Jordan, supra has referred to as an inefficient methodology of ‘micro-counting’ which ‘relies on judicialguesstimations and has been applied in a way that allows for tolerance of ever-increasing delay’. (at para 37) It has quite frankly ‘lost itsway and has given rise to both doctrinal and practical problems, contributing to a culture of delay and complacency towards it’. (at para29) Its application is highly unpredictable, too confusing, requires a retrospective inquiry and is unduly complex. (at para32,33,35,37,38)

11 . The Supreme Court did not want to create another situation that existed after R. v. Askov , supra, was rendered which led to an ‘on mass stay of proceedings’. It was believed that such action brought the administration of justice into disrepute. The Supreme Court in R. v. Jordan , supra , wished to avoid such a situation and was cognizant of the need to recognize a ‘transitional period’ where there should be some consideration given to both sides during this time so that an appropriate ceiling can be reached.

With regard to cases already in the system, the new framework should be applied flexibly and contextually with ‘sensitivity to both parties’ reliance on the previous state of the law’. (at para 94) Consequently, each case needs to be looked at individually on a ‘case by case basis’. As change takes time, the framework set out in Jordan should be applied with some qualification to cases already in the system that predate July 8, 2016. It is hoped that this new framework will give some predictability to the application of

section 11(

b) of the Charter so that all parties will know what are the bounds of reasonableness so pro-active measures can be taken to remedy delay. 12 . The new framework as set out in R. v. Jordan , supra , is as follows: First, the court created a PRESUMPTIVE CEILING of 18 months for matters in the Provincial Courts and 30 months for matters in Superior Courts to be completed. This is the time period the court has indicated is to be reasonable or acceptable. Time begins to run from the date when the information was sworn to.

Second, once the presumptive ceiling has been exceeded, the burden shifts to the crown to rebut the presumption of unreasonableness ‘on the basis of exceptional circumstances ’. Exceptional circumstances constitute what is reasonably unforeseen or reasonably unavoidable and cannot be remedied.

If the exceptional circumstances relates to a discrete event, then the delay can be reasonably attributable to this event and is subtracted from the total time; if it arises due to the case’s complexity , then the delay is reasonable and should also be subtracted from the time. (at paras 69-73) Third, if the total time which falls below the presumptive ceiling , the onus is upon the accused to establish that two things occurred:

a) the accused took meaningful steps that demonstrates a sustained effort to expedite proceedings; and

b) the case took markedly longer than it reasonable should have. Fourth, cases currently in the system require that the framework be applied with some flexibility and contextually, with the court being sensitive to the party’s reliance on the previous state of the law. 13 . The test as set out in the new framework of R. v. Jordan , supra may be summarized as follows:

a) Calculate the total time that has elapsed from the charge date until the anticipated date when the trial will end (not the sentencing date). ( TOTAL DELAY )

b) What portion of the delay can be attributed to the defendant? ( EXPLICIT WAIVER BY DEFENDANT AND/OR CONDUCT OF DEFENDANT )

c) Subtract that portion from the total time. ( NET DELAY )

d) Compare NET DELAY WITH PRESUMPTIVE CEILING .

e) Establish if the presumptive ceiling has been exceeded. ( YES/NO)

f) If YES it is presumed, that the delay is unreasonable.

g) Then establish if there is any evidence of exceptional circumstances or complexity of the case that would justify the presumptive ceiling being exceeded. ( CROWN ONUS TO PROVE)

h) The delay resulting from exceptional circumstances or complexity of the case is subtracted from the NET DELAY . ( REMAINING DELAY )

i) If NO and the REMAINING DELAY has not exceeded the presumptive ceiling , the onus shifts to the defence to show why the delay is unreasonable by establishing that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings and (2) the case took markedly longer than it reasonably should have. ( DEFENCE ONUS TO PROVE) . 14 . What is crucial in understanding R. v.

Jordan , supra , is that now all players in the criminal justice system, including the courts have an obligation to ensure that matters do not languish in the system beyond the presumptive ceiling and if they do then the onus shifts to the party responsible for the delay or wishing to benefit from the delay to show who is responsible for this delay.

15. The application of R. v. Jordan, supra, has been considered by the courts in R. v. Ramsay [2016] O.J. No. 4841, R. v.Gandhi 2016 ONSC 5612 , [2016] O.J. No. 4638, R. v. Coulter 2016 ONCA 704 , [2016] O.J. No. 5005, Mississauga(City) v. Uber Canada Inc. [2016] O.J. No. 6229, R. v. J.M 2017 ONCJ 4 , [2017] O.J. No. 256 and R. v. Warford [2017] N.J.No. 132. Each of these decisions analyses and applies the framework set out in R. v. Jordan, supra, to their given fact situation andtimeline of events. R. v. Ramsay, supra, and Mississauga (City) v.

Uber Canada Inc., supra, both deal with informations laid underPart III of the Provincial Offences Act, while R. v. Gandhi, supra, R. v. Coulter, supra, R. v. J.M, supra and R. v. Warford, supra, dealwith criminal matters. However, the spirit echoed in all these decisions remains similar in that: change takes time; prejudice no longerplays an explicit role for delay in a

section 11(

b) analysis; the defence who is bringing a

section 11(

b) application must demonstrate tothe court if and how the presumptive ceiling has been exceeded, and, if it has not been exceeded why the delay is still unreasonable; andR. v. Jordan, supra, applies to transitional cases that were already in the system when Jordan was released and supersedes the complexand flawed analysis as it had developed in the application of R. v. Morin, supra to

section 11(

b) applications, but the defence ‘need notdemonstrate having taken initiative to expedite matters for the period of delay’ preceding Jordan. (at para 99) With regard to casesalready in the system prior to Jordan, both sides and the court cannot be expected to be bound by action that is now mandated byJordan. 16. ‘The presumptive ceiling marks the point at which the burden shifts from the defence to prove that the delay wasunreasonable to the Crown to justify the length of time the case has taken.’ (at para 58) This concept of a presumptive ceiling wasderived by the court which took into account different factors when arriving at the actual ceiling (18 months and 30 months) and ‘reflectsthe realities we currently face’. (at para 57) This is key to understanding how the court in Jordan came to adopt the concept of thepresumptive ceiling. 17.

When examining what constitutes exceptional circumstances, the court in Jordan stated that these circumstances lie outsideof the Crown’s control and are reasonably unforeseen or reasonably unavoidable. These exceptional circumstances are either: discreteexceptional events or particularly complex cases. They need not be rare or uncommon.

Some examples provided by the court of thediscrete exceptional events are: medical or family emergencies on part of all those involved, including the trial judge, cases with aninternational dimension requiring extradition of an accused from a foreign jurisdiction and exceptional events arising at trial. (at para 72-73) Cases that are particularly complex are of such a nature that the evidence or issues ‘require an inordinate amount of trial orpreparation time such that the delay is justified’.

Examples of this include voluminous disclosure, a large number of witnesses, expertevidence, a large number of charges and pre-trial applications, a large number of charges in dispute and novel or complicated legalissues. (at para 77) 18. The court in R. v. J.M., supra, recognized that

section 11(

b) applications are complex and time-consuming and will continueto be.

The time required to bring such applications should be included in the remaining delay component of calculating the time,provided that such applications are not frivolous. (at para 105, 108) The court in Jordan further recognized that even if the delay fallsbelow the presumptive ceiling, it may be considered unreasonable if the defence can establish that it: (1) took meaningful steps thatdemonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonable should have. (at para82) If the defence cannot prove these two points, then the application must fail.

The courts will look at the action and inaction of thedefendant (if the crown and court are ready for trial and the defence is not), if they have brought frivolous applications and useddeliberate tactics calculated to delay the proceeding. However, legitimate defence applications or motions and delay caused by requestsfor legitimate preparation time do not constitute defence delay. 19.

The court in Jordan concluded that ‘the analysis must always be contextual and we are relying on the good sense of trialjudges to determine the reasonableness of the delay in the circumstances of each case’. (at para 98) It is incumbent upon trial judges to‘step back from the minutiae and adopt a bird’s-eye view of the case’. (at para 91) This holds particularly true in cases decided duringthe transitional period as the courts should not be judging either side by a standard that did not previously exist and ‘the parameters ofwhich were unknown to all’. (at para 102) THE CHRONOLOGY OF EVENTS – THE TIMELINE 20.

The applicant is charged on November 12, 2014 at 0:47 am with the offence of disobey stop sign, stop wrong place pursuantto section 136(1)(

a) of the Highway Traffic Act, supra. 21. The applicant applies for a trial by filing a Notice of Intention to Appear on November 24, 2014.

22 . A Notice of Trial was issued by the Ontario Court of Justice, Toronto West POA Court on January 29, 2015 for a trial date of April 30, 2015. 23 . The applicant was convicted on April 30, 2015 in abstentia and filed an Application for Reopening on May 11, 2015. His application was granted on May 11, 2015. 24 . A new Notice of Trial was issued by the Ontario Court of Justice, Toronto West POA Court on September 3, 2015 for a trial date of February 4, 2016. 25 . On February 4, 2016 the applicant appeared in court and the matter could not proceed as the applicant was requesting disclosure and realized that a

section 11(

b) application was necessary due to the length of the delay that had already occurred. The matter was adjourned to May 20, 2016 for the applicant to bring his application. 26 . On May 20, 2016 the matter was put over as the applicant had filed an 11(

b) application and an application for a stay of proceedings for abuse of process. The applications were adjourned to July 28, 2016 so that he could perfect both applications as proper service on neither the Attorney General for Canada nor the Attorney General for Ontario had been affected. 27 .

On July 28, 2016, the court was prepared to hear the applicant’s application for a stay of proceedings on the grounds that he had not received his trial in a timely manner and further to rule on a finding of abuse of process; however, the defendant had still not properly perfected service on either the Attorney General for Canada or the Attorney General for Ontario. The court granted the applicant an adjournment to October 17, 2016, marking the proceeding preemptory on the him to perfect his 11(

b) application. 28 . The court heard the applicant’s application on October 17, 2016. On that date the respondent took issue with the method of service of the Notice of Application on the Attorney General for Canada and the Attorney General for Ontario. The court was asked to rule on the issue and put the decision over to January 26, 2017. The court ruled on that day that service was proper and heard only the 11(

b) application. 29 . Judgement with respect to the application was put over to May 18, 2017. ANALYSIS IN THE CONTEXT OF THE JORDAN FRAMEWORK 30 . The applicant is charged pursuant to the Highway Traffic Act , supra, with an offence that was commenced by way of Certificate of Offence, which is governed by

Part 1 of the POA . This court holds that the Charter does apply to

Part 1 matters and that the framework as set out in R. v. Jordan , supra, also applies to the case at bar. 31 . When does the time commence with regard to

Part 1 matters? Should it be the date of the offence or the date when the defendant does something proactive? An argument can be made that in keeping with the spirit of Jordan and for clarity’s sake, the time clock should start to run on the date of the offence with regard to matters commenced under

Part 1 of the POA . In the case at bar, this date would be November 12, 2014. The time should run from November 12, 2014 to May 18, 2017 which is the anticipated date of the trial. The total delay is 30 months and 6 days. 32 . What portion of the delay can be attributed to the applicant either by his explicit waiver or by his conduct? A trial is set for April 30, 2015. The applicant does not attend as he never received notice of the trial and is convicted in absencia . He becomes aware of the conviction when renewing his driver’s licence and reopens the matter on May 11, 2015.

A new notice of trial is issued for a trial date of February 4, 2016. Neither has the applicant given any explicit waiver nor has any of his conduct contributed to this delay. Consequently, this time period cannot be deducted from the total trial time. The matter is put over from February 4, 2016 to May 20, 2016 so that the applicant can bring an 11(

b) application. On February 4, 2016, the applicant canvasses with the court certain issues he has with regard to disclosure. At the same time he notifies the court that as a second year law student he is ‘fairly cognizant of the Ontario Courts of Justice Act , particularly how P.O.A matters are handled’ and asserts that there is both a dash cam video and a lapel pin video as the officer is part of a pilot project called ‘lapel pin cameras’ and alleges that the officer was wearing a lapel pin when he was stopped. The prosecution canvasses with the officer that there may be a dash cam video but the officer was not wearing a lapel pin when

he stopped the applicant. The respondent asserts that there does not exist a lapel pin video. The applicant has made a request for disclosure but that request was made on January 29, 2016, some 6 days prior to the trial date. The matter is put over to May 20, 2016 so that the applicant can receive the DVD evidence and bring the 11(

b) application. This time period of 3 months and 16 days is attributable to the applicant. 33 . On May 20, 2016 the matter is put over to July 28, 2016 so the applicant can perfect his 11(

b) application, which was not done on that date, so again the matter is put over to October 17, 2016 for the applicant to once again perfect his application by properly serving the appropriate parties. The matter is marked preemptory on him to do so. Also on July 28, 2016, the court entertains impromptu discussions by the applicant with regard to pieces of disclosure that the applicant claims he is entitled to and has not been provided to him. This time, being 4 months and 27 days, is attributable to the applicant. 34 . Arguments with regard to the 11(

b) application were commenced; however, the respondent objected to the manner of service on the Attorney General for Canada and the Attorney General for Ontario. The matter was put over from October 17, 2016 to January 26, 2017 so that the court could render its judgement with regard to the issue of what constitutes proper service, and this time is not attributable to the applicant according to the framework in Jordan . On January 26, 2017, the court rendered its decision, ruling that service was deemed to be proper and the 11(

b) application was heard. The matter was put over to May 18, 2017 for judgement with regard to the motion. This time is also not attributable to the applicant. 35 . Indeed, no legitimate applications and time required to prepare for trial should be counted against any defendant. Any applications that are frivolous in their nature or are being brought by the defendant to provoke delay should be counted against a defendant who should not be allowed to benefit from this delay. The court needs to ask the question: Have the applications that have been brought by the applicant been frivolous in their nature? The applicant began to canvas the potential issue of making an 11(

b) application as early as his first trial date on February 4, 2016. He has every right to do so. It took him the sum total of 8 months and 18 days to perfect his application and whether or not some of his action was frivolous is not relevant in this instance, as this time has been deducted in any event from the total time in calculating the net time. Consequently, the net delay is 21 months and 18 days. 36 . The presumptive ceiling established in Jordan is 18 months. The net delay exceeds the presumptive ceiling and is prima facie unreasonable. The onus rests upon the respondent to rebut this presumption.

Is there any evidence of exceptional circumstance in this case that would justify subtracting time from this net delay ? 37 . The respondent has not offered any evidence with regard to the existence of any exceptional circumstances that could be subtracted from the net delay . Charges were commenced by way of a Certificate of Offence having been served on the day of the offence.

Typically, when a defendant attends at a court to file their Notice of Intention to Appear and the ticket is in an electronic format, which is the case today, the officer’s notes should be available at that time to be given to the defendant. This disclosure was provided to the applicant on February 4, 2016. If there is any DVD evidence, a separate request in writing has to be made of the prosecution. The respondent need only provide material that is in their possession and any material or information that is in the hands of a third party must be requested in an alternate manner of that third party. 38 .

The charge with which the applicant has been charged with may be characterized as rather simple in its nature. It should not have necessitated the bringing of any complex motions or applications. There are only two potential witnesses, no expert evidence, no voluminous disclosure and only one charge laid which did result in a novel issue being raised, namely the validity of ‘icloud’ fax service. However, this does not meet the criteria required to establish a particularly complex case which would allow the court to subtract time from the net delay . 39 . The net delay remains at 21 months and 18 days. 40 .

The case at bar was commenced prior to July 8, 2016 when the decision of Jordan was delivered. Cases commenced prior to Jordan , the pre- Jordan cases, fall in the transitional period. Jordan tells the court that in this transitional period some flexibility should be applied by the courts in rendering decisions and neither party nor the court’s hands should be tied to the standard of action required of all parties that is now being applied to these parties in the post- Jordan era.

The trial justice is in the best position to analyze the situation and should apply the new framework both flexibly and contextually and adopt a ‘bird’s-eye’ view approach. 41 . However, if this court briefly considers the approach in R. v. Moran, supra , what result do we achieve? This court acknowledges that the time may start to run not from the date of the offence, but rather from the time when the defendant reopened the matter.

This approach in itself is problematic and indicative of the confusing and complex counting of time that has transpired in the years after Morin was rendered and which led the Supreme Court to create a new framework that is Jordan . While much of the delay

after February 4, 2016 is attributable to the applicant, it still took 8 months and 24 days for the applicant’s matter to be before the courtfor trial and there were some issues raised with regard to disclosure by the applicant which were not his fault. Moreover, the court inCity of Toronto. v. Andrade, 2011 ONCJ 470 held that matters which are simple in their nature should take no more than 8 to10 months to be heard.

Using the test set out in Jordan, it has taken 21 months and 18 days for this matter to reach its anticipated trialdate, which is over the presumptive ceiling of 18 months; while a pre-Jordan analysis places the time at approximately 8 months and 24days, if one accepts that the time required for the court to render its decision with regard to the motion brought by the applicant is to beconsidered as neutral time. If this time is not to be considered neutral time, then this time should be added to the 8 months and 24 days,which would bring the total delay to 12 months and 16 days in the pre-Jordan world.

In any event, the court finds that by applyingeither a pre or post Jordan analysis, the length of that it has taken for this case to get to trial is unreasonable. 42. The court may add, as an aside, that while it has ruled that the 21 months and 18 days it has taken for this case to reach theanticipated trial date, and this time is above the presumptive ceiling and the respondent has failed to rebut the presumption of delay, thecourt has not had to make a ruling as to whether or not the presumptive ceiling of 18 months should apply to

Part 1 matters, as they areintuitively supposed to be simple in nature and do not have the same complexity as

Part 3 matters have attributable to them. It may bethat given all the circumstances and awareness of how the trial courts operate, a ceiling in the range of 12 months may be moreappropriate for the courts to consider with regard to

Part 1 matters. However, it is not necessary for this court to rule on this point,having found that the delay is in excess of 21 months. 43. The court also ventures to state that part of the issue with regard to delay in this case rests with the conduct of this case by therespondent and the often irreverent response and caustic and adversarial behavior of the applicant, who would like to avail himself of hisstatus as a law student and his knowledge of the law, while at the same time relying on the fact that he is a self-represented defendantwho is not familiar with trial procedure.

This case should never have taken the time it has taken to get to today’s date. While thedefendant’s status has not fared in the court’s analysis of the facts, neither side has applied a systematic analysis of Jordan nor followedthe test set out in Jordan. Rather both sides have demonstrated a lack of knowledge of this case and have not pro-offered relevant caselaw or any case law for that matter, as was the situation with regard to the respondent. It is not enough for the applicant to submit casesto the court without showing the court how these cases apply to our given fact situation.

It is incumbent upon anyone making anapplication before any court, to make the argument as to why the court should grant the application or relief that is being sought andmake it in a relevant and succinct manner. DISPOSITION 44. For the reasons set out above, the court finds that the applicant’s

section 11(

b) rights were infringed and that the time fromthe date of the offence to the anticipated trial date was unreasonable. The court grants the applicant’s

section 11(

b) application andorders a stay of proceedings as the appropriate remedy pursuant to section 24(1) of the Charter of Rights and Freedoms, supra. Dated the 18th day of May, 2017, at the City of Toronto “J. Opalinski” Joanna Opalinski J.P.