R v MS, 2023 MBCA 90

Citation: R v MS, 2023 MBCA 90 Date: 20231016 Docket: AY22-30-09809 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Jennifer A. Pfuetzner Madam Justice Karen I. Simonsen Madam Justice Lori T. Spivak BETWEEN : ) C. P. R. Murray and HIS MAJESTY THE KING ) P. G. Benham ) for the Appellant Appellant ) ) M. J. Dyck - and - ) for the Respondent ) M.

S. ) Appeal heard: ) May 31, 2023 (Young Person) Respondent ) ) Judgment delivered: ) October 16, 2023 NOTICE OF RESTRICTION ON PUBLICATION: No one may publish any information that could identify a person as having been dealt with under the Youth Criminal Justice Act (see section 110(1)). NOTICE OF RESTRICTION ON PUBLICATION: No one may publish any information that could identify any child complainant or child witness that is connected with an offence committed by a young person that is being dealt with under the Youth Criminal Justice Act (see section 111(1)).

NOTICE OF RESTRICTION ON PUBLICATION: No one may publish, broadcast or transmit any information that could disclose the identity of the complainant(

s) or witness(es) (see

section 486.4 of the Criminal Code ). spivak JA [ 1 ] This is a Crown appeal of the trial judge’s decision staying the charges against the respondent on the basis of a breach of his right to be tried within a reasonable time pursuant to

section 11(

b) of the Canadian Charter of Rights and Freedoms [the Charter ]. [ 2 ] The respondent, a youth, was charged with sexual assault and incest against the complainant who is his sister. His motion for a stay of proceedings occurred after the complainant failed to attend at the trial (the non-attendance) and the matter was reset for a date over the presumptive ceiling for matters to be tried in the provincial court as established in R v Jordan , 2016 SCC 27 [ Jordan ].

The Crown appeals on the basis that the trial judge erred in finding that the non-attendance did not qualify as a discrete exceptional circumstance that warranted deduction from the total delay because it was neither unforeseeable nor unavoidable and that the Crown did not reasonably mitigate the delay. [ 3 ] For the following reasons, I would grant the Crown’s appeal and remit the matter for trial. Background [ 4 ] The respondent was charged with sexual assault and incest on September 12, 2020. A trial date of November 23, 2021 was set in St.

Pierre-Jolys but did not proceed as the complainant did not attend on that date. At the scheduled commencement of the trial, Crown counsel informed the Court that she had met with the complainant one or two weeks prior to trial and the complainant was cooperative. As well, the complainant’s child and family services worker (the worker) had been subpoenaed to produce the complainant for trial. Crown counsel further advised that the complainant had contacted the Crown’s office to indicate that she no longer wanted to attend the trial and had left her placement the night before the trial date.

As such, the worker was unable to bring her to Court. The Crown had a meeting with the complainant set for November 26, 2021 to gauge what had happened and whether another trial date should be set. Accordingly, the matter was remanded to December 21, 2021.

[ 5 ] On December 21, 2021 (the December appearance), Crown counsel relayed that she had met with the complainant and that the earliest available trial date was in June 2022. Since Crown counsel expressed that she was concerned about delay and wanted to take further steps before rescheduling the trial, the matter was adjourned to January 25, 2022. Defence counsel noted for the record that the adjournment was at the Crown’s request and his position was that a trial date should be reset immediately.

Right after the December appearance, Crown counsel emailed defence counsel, offering a trial date of June 21, 2022, and defence counsel replied that he was free but that the matter would then “be at 20 months of total delay.” [ 6 ] Just before the next court appearance, on January 24, 2022, the Crown offered a trial date of March 22, 2022 but defence counsel was unavailable. Consequently, the Crown once again offered a trial date of June 21, 2022. However, at the January 25, 2022 court appearance, the Court advised that it was not sitting in St.

Pierre-Jolys on June 21, 2022 and, therefore, the trial was reset for June 28, 2022. On February 18, 2022, the respondent applied for a stay of proceedings, alleging a breach of his

section 11(

b) Charter right to a timely trial because the time from the charge to the anticipated trial exceeded the presumptive ceiling. The Trial Judge’s Decision [ 7 ] The trial judge noted that Jordan sets out a presumptive ceiling of 18 months for cases to be tried in the provincial court and that this applied to young persons charged under the Criminal Code and tried under the Youth Criminal Justice Act (see R v KJM , 2019 SCC 55 at para 4 ; and Jordan at para 46 ). He acknowledged that the time between the laying of the information and the date of trial was 21 months and 16 days.

He considered that defence delay includes circumstances where the Crown and the Court are ready to proceed but the defence is not. He therefore found that the period from March 22, 2022 to June 28, 2022 (99 days) counted as defence delay. [ 8 ] The trial judge recognized that, as this left a net delay of 18 months and 9 days, which was over the presumptive ceiling, the Crown bore the onus to rebut the presumption of unreasonableness based on exceptional circumstances.

The Crown argued that the period from November 23, 2021 to the earliest offered trial date of March 22, 2022 should be deducted as the non-attendance constituted a discrete exceptional circumstance that the Crown reasonably mitigated.

In rejecting the Crown’s position, the trial judge determined that, as the complainant was a “vulnerable” young person, it was “neither unexpected nor unavoidable that she would not have attended . . . trial.” In so concluding, he considered a constellation of factors, which he found put the complainant “in the vulnerable youth category”, requiring further follow-up by the Crown to ensure her attendance. [ 9 ] The trial judge alternatively held that, if he was incorrect in finding that the non-attendance did not qualify as a discrete exceptional circumstance, the Crown did not reasonably mitigate the delay.

In his view, the Crown’s initial offer of an invalid date by email on December 21, 2021, and its further offer of a date one month later, “[were] not actions which [could] be viewed as having reasonably [mitigated the] delay.” Since he found that the delay was not caused by any discrete exceptional circumstances and that no time should therefore be subtracted from the total delay, he entered a stay of proceedings. The Jordan Framework [ 10 ] Jordan established a ceiling beyond which delay is presumptively unreasonable. For cases tried in the provincial court, the presumptive ceiling is 18 months.

Calculation of the period of delay involves first “calculating the total delay from the charge to the ac​tual or anticipated end of trial” ( R v Cody , 2017 SCC 31 at para 21 [ Cody ]) and then deducting any delay attributable to the defence. Where the resulting delay exceeds the presumptive ceiling, the burden falls on the Crown to justify the delay on the basis of exceptional circumstances (see paras 21-25; and Jordan at para 46 ).

If the Crown fails to establish an exceptional circumstance that rebuts the presumptive ceiling, a stay of proceedings will follow ( ibid at paras 69-81). [ 11 ] As stated in Jordan , exceptional circumstances are those that “lie outside the Crown’s control in the sense that (1) they are rea​sonably unforeseen or reasonably unavoidable, and

(2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise” (at para 69) (emphasis in original). These circumstances generally fall into two categories: (1) discrete events, and (2) particularly complex cases (see para 71). They need not be rare or entirely uncommon (see R v KGK , 2019 MBCA 9 at para 10 [ KGK ]; and Jordan at para 69 ). [ 12 ] Delay caused by any discrete exceptional circumstances must be subtracted from the total period of delay in determining whether the presumptive ceiling has been exceeded.

However, “any portion of the delay that the Crown and the system could reason​ably have mitigated may not be subtracted” ( Jordan at para 75 ). [ 13 ] In Jordan , the Supreme Court of Canada recognized that “[t]rials are not well-oiled machines” and that “[u]nforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay” (at para 73). The requirement that must be met in redressing the delay is reasonableness: the Crown is not required to exhaust every option to satisfy the reasonable diligence requirement (see Cody at para 54 ).

Standard of Review [ 14 ] In R v Hanan , 2022 ONCA 229 , rev’d on other grounds 2023 SCC 12 [collectively, Hanan ], the Ontario Court of Appeal described the standard of review for

section 11 (

b) decisions as follows (at para 41): The standard of review of a decision on a s. 11(

b) application is well-established. Deference is owed to a trial judge’s underlying findings of fact. The correctness standard applies to the trial judge’s characterization of periods of delay, and to the determination of whether the delay was unreasonable: R. v. Jurkus , 2018 ONCA 489 . . .. Trial judges are generally in the best position to determine whether exceptional circumstances exist (including in the assessment of the transitional exceptional circumstance): Jordan , at para. 98 .

While typically deference is owed to such a determination, a clear legal error would justify interference . . .. [ 15 ] Other appellate courts have further explained the standard of review in this way: categorization or attribution of the delay — that is, who caused the delay and why — is reviewable for palpable and overriding error. In contrast, characterization or allocation — that is, assigning delay to a particular category under the Jordan framework — is reviewable for correctness (see R v

Pastuch , 2022 SKCA 109 at para 146 ; and R v Pearce; R v Howe , 2021 NSCA 37 at para 59 ). [ 16 ] In KGK , Hamilton JA, dissenting on other grounds, noted that a judge deciding a delay motion must apply the correct legal principles to the facts (see para 51).

Further, whether or not the judge has stated and applied the applicable legal principles raises a question of law for which the standard of review is correctness (see para 53). [ 17 ] As well, recent case law has recognized that a trial judge’s assessment of the legitimacy of procedural steps and the reasonableness of the parties’ litigation conduct (including whether the Crown has reasonably mitigated the delay from an exceptional circumstance) is subject to deference (see R v Loiacono , 2023 ABCA 157 at para 20 [ Loiacono ]; R v Spencer , 2022 SKCA 135 at para 62 ; and R v KC , 2022 ONCA 738 at para 40 [ KC ]).

Analysis and Decision Defence Delay — the Crown’s Position on This Appeal in Light of Hanan [ 18 ] As I previously noted, the trial judge subtracted the time between March 22, 2022 and June 28, 2022 (a period of about three months) for defence delay on the basis that the respondent was offered the date of March 22, 2022 for the rescheduling of the trial but defence counsel was unavailable. [ 19 ] At the time of his decision, the trial judge did not have the benefit of the recent decisions in Hanan , which addressed the characterization of defence delay when a trial is adjourned and rescheduled.

In Hanan , a six-week jury trial set for November 2018 was adjourned due to the unexpected refusal of a witness to testify and the Crown’s late disclosure. The Court and the Crown were available to reschedule the trial to June 2019 but, as defence counsel was unavailable, the matter was set for October 2019. The trial judge rejected the Crown’s position that all of the delay from June to October was attributable to the defence. Instead, he held that only the six weeks required for the trial from June to mid-July should have been characterized in that way.

The Ontario Court of Appeal upheld the trial judge’s decision, holding that there was no “bright-line rule” (at para 56) indicating that, once defence counsel is unavailable, all of the delay until the next available date should be allocated to the defence; rather, a contextual approach was needed ( ibid ).

The Supreme Court agreed, noting that “[d]efence delay comprises ‘delays caused solely or directly by the defence’s conduct”’ and that “[a]ll relevant circumstances should be considered to determine how delay should be apportioned among the participants” (at para 9). [ 20 ] For the purpose of this appeal, the Crown has indicated that, given the Hanan decisions, it does not rely on the trial judge’s finding of defence delay such that no time should be deducted on this account.

The Crown’s position is that, after “correcting the trial judge’s error” in relation to exceptional circumstances (which it contends warrants a deduction of about four months from the total delay), the remaining delay is below the presumptive ceiling.

As such, the Crown asserts it is neither necessary nor prudent to interpret or engage in a discussion of the principles outlined in Hanan in this case . [ 21 ] I agree with the Crown that this Court’s analysis of defence delay, in light of the recent decisions in Hanan , should await a case where the Court has the benefit of full submissions at trial and the considered view of a lower court. [ 22 ] Accordingly, the sole issue on this appeal is whether the trial judge erred in failing to find that the non-attendance was a discrete exceptional circumstance that warranted a deduction for the period from November 23, 2021, when the complainant did not appear, until March 22, 2022, the earliest trial date offered by the Crown.

Did the Trial Judge Err in Failing to Conclude That the Non-Attendance Was a Discrete Exceptional Circumstance That Warranted Deduction From the Total Delay? [ 23 ] To recap, accepting that no time should be deducted for defence delay in accordance with the Crown’s position on this appeal, the total delay from the charge to the trial is a period of 21 months and 16 days.

The Crown submits that the trial judge erred in failing to deduct the period from November 23, 2021 until March 22, 2022 as flowing from a discrete exceptional circumstance that the Crown reasonably mitigated, which would result in a remaining delay that is just below the presumptive ceiling (17 months and 17 days). Discrete Exceptional Circumstances [ 24 ] The Crown argues that the trial judge erred in law by applying a novel sub-test to assess the vulnerability of a non- attending witness in determining whether this event was a discrete exceptional circumstance, which was reasonably unforeseen or unavoidable.

The Crown contends that the trial judge’s approach places excessive and unreasonable requirements on its management of witnesses. According to the Crown, the trial judge incorrectly assessed whether the non-attendance was beyond its control and the reasonableness of the Crown’s actions. [ 25 ] I am not convinced that the trial judge invented a new legal sub-test, as opposed to outlining the factors he took into account in concluding that the non-attendance did not qualify as a discrete event, as it was neither reasonably unforeseen nor unavoidable.

That said, in my view, the trial judge erred in law in holding the Crown to too high a standard in this determination when the law only requires reasonableness. [ 26 ] In Cody , the Supreme Court made clear that the requirement that an exceptional circumstance must be reasonably unforeseen or reasonably unavoidable does not impose a standard of perfection on the Crown (see para 58). A trial judge must use a test of reasonableness to determine whether unexpected events are outside the Crown’s control.

The Court stated (at para 58): . . . [T]he test for exceptional circumstances requires only that the event at issue be reasonably unfore​seeable or reasonably unavoidable. It does not impose a standard of perfection upon the Crown. As this Court observed in Jordan , “[t]rials are not well-oiled machines” (para. 73). Mistakes happen. Indeed, they are an inevitable reality of a human criminal justice system and can lead to exceptional and reasonably unavoidable delay that should be deducted for the purpose of s. 11 ( b ).

[emphasis in original] [ 27 ] While Jordan does not explicitly cite the example of a witness’s non-attendance, what may be considered exceptional is not a closed list (see para 71). [ 28 ] A case of particular relevance is R v Mavros , 2020 ABCA 436 [ Mavros ], where the Court reviewed the trial judge’s determination that the complainant’s non-attendance was a discrete exceptional circumstance on similar facts to this one. In Mavros , the complainant, a victim of sexual assault, had no fixed address, a criminal record and a history of failing to comply with court orders.

The Crown had issued a subpoena, met with her and then attempted to locate her through different means, but her cell phone was broken. On appeal, the accused argued the Crown should have done more to ensure the complainant’s attendance.

In agreeing that the non- attendance was reasonably unforeseen and reasonably unavoidable, the Court noted that the “Crown is not held to a standard of perfection, and although it may have been more proactive earlier . . ., this does not negate the finding of exceptional circumstance” (at para 30; see also R v RS , 2023 BCCA 148 [ RS ]; and R v Vega Ramirez , 2019 BCCA 446 [ Vega Ramirez ], for other examples of courts recognizing that the unavailability of a witness may qualify as a discrete exceptional circumstance). [ 29 ] As Jordan provides, judges must “be alive to the practi​cal realities of trials, especially when [as here] the trial was scheduled to conclude below the ceiling but, in the end, exceeded it” (at para 74). [ 30 ] In the present case, when considering whether the non-attendance qualified as a discrete exceptional circumstance, the trial judge first noted that the non-attendance of a witness is not an uncommon occurrence in the criminal courts in this province.

However, Jordan instructs that an exceptional circumstance need not meet the additional hurdle of being rare or entirely uncommon (see para 69). [ 31 ] S ignificantly though, in concluding that “it would have been neither unexpected nor unavoidable that [the complainant] would not have attended . . . trial”, the trial judge concluded that the Crown was responsible for determining where a particular witness falls on a spectrum of vulnerability to decide what monitoring, follow-up or supports are required.

He then enumerated numerous factors that the Crown should take into account in this assessment, including the witness’s age, personal circumstances and background, legal status, existing supports, relationship with the respondent, and nature and severity of the charges. Applying those factors, he found the complainant fell into the vulnerable youth category. It was on this basis he concluded that it would have been neither unexpected nor unavoidable that the complainant would not attend the trial and the Crown should have done more.

In my view, he imposed upon the Crown an unreasonably onerous obligation to forecast the complainant’s risk of non-attendance by undertaking an extensive analysis of her personal characteristics. The trial judge erred in failing to apply the correct legal principle and measure the Crown’s conduct by the standard of reasonableness. [ 32 ] Indeed, here, the Crown met with the complainant to assess her cooperativeness shortly before the trial, at which time there was no indication she did not plan to attend. It took the additional precaution of subpoenaing the worker to produce her for trial.

While more contact and follow-up with the complainant could have occurred, the requirement is that the event be reasonably unforeseeable or reasonably unavoidable. The Crown took reasonable measures to avoid the non-attendance and the delay that ensued (see Jordan at para 70 ). [ 33 ] Furthermore, and importantly, the trial judge did not address the fact that the complainant left her placement the night before without warning in analyzing whether the Crown met the onus of showing that the event was genuinely beyond its control (see Jordan at para 112 ).

The Crown could not predict that the complainant would make a last-minute choice to leave her placement. Close to trial, it had already been satisfied of her willingness to testify and added the safeguard of subpoenaing the worker. Additionally, it is speculative whether any additional steps by the Crown would have avoided what occurred on the eve of the trial (see Vega Ramirez at para 55 ). The trial judge made a reviewable error by applying too strict of a standard on the Crown.

In effect, he held the Crown accountable because it should have anticipated and prevented the non-attendance. [ 34 ] Applying the proper standard of reasonableness to the facts, the non-attendance was reasonably unforeseen and reasonably unavoidable. Additionally, the fact that the complainant left her placement the night before the trial underscores the limited options available to remedy the delay. Arising as it did on the morning of the trial, once the complainant failed to attend, the situation could not be reasonably remedied (see Jordan at para 69 ). There was no solution but to

schedule a new trial as the complainant was a material and essential witness (see RS at para 57). [ 35 ] I conclude that the non-attendance was a discrete exceptional circumstance that was reasonably unforeseen or reasonably unavoidable and the trial judge erred in law in finding to the contrary. [ 36 ] This leads to whether the delay following the discrete exceptional circumstance was reasonably mitigated. Reasonable Mitigation [ 37 ] As I previously outlined, the Crown and the courts have an obligation to mitigate the delay arising from discrete exceptional circumstances.

Accordingly, delay caused by discrete exceptional circumstances is deducted from the presumptive ceiling only to the extent that it could not be reasonably mitigated by the Crown and the justice system (see Cody at para 48 ; and Jordan at para 75 ). [ 38 ] The Crown’s duty to mitigate delay caused by a discrete event is also one of reasonableness—not perfection (see RS at para 38; KC at para 65; and Kelly v R , 2022 NBCA 46 at para 62 ).

As stated in Cody , in acknowledging that the Crown may have been able to take additional steps following a discrete event, “the Crown need not exhaust every conceivable option for redressing the event in question to satisfy the reasonable diligence requirement” (at para 54). [ 39 ] That the test for mitigation is reasonableness and not perfection was emphasized in Loiacono , where the Court

explained the Crown’s burden when it invokes exceptional circumstances as follows (at para 24): That practical evidential burden is not . . . a duty on the Crown to prove that the Crown did everything that hindsight now suggests mighthave been ventured to speed things up.

The Crown already faces the presumptive limitation, so the effect of the diligence expectation isto indicate an evidential burden on the Crown to show it acted reasonably under the circumstances. . . . [40] Turning to this case, while the trial judge acknowledged that reasonable mitigation does not require perfection on thepart of the Crown, unfortunately, he erred in law by failing to apply a standard of reasonableness. I appreciate that Jordan emphasizesthe need to “adopt a bird’s-eye view of the case” and not parse days and months (at para 91).

However, an examination of the eventsthat followed the non-attendance illustrates that the Crown acted reasonably to mitigate the delay and that the trial judge erred in findingotherwise. [41] As stated in R v Manasseri, 2016 ONCA 703, “[w]hat is required of the Crown is a demonstration that it tookreasonable steps to avoid and address the problem before the delay exceeded the ceiling. . . . What counts is effort and initiative, notsuccess” (at para 308) (emphasis in original). [42] Here, the Crown was mindful of delay and the timelines outlined in Jordan during the course of the proceeding.

Wheninitially scheduling the trial, the Crown raised the possibility of a special sitting and explored available dates in St. Pierre-Jolys todetermine which would result in an earlier trial. Further, the original trial date set for November 23, 2021 was below the presumptiveceiling—some 14 months from the laying of the charge.

The Crown expressed concern about delay at the December appearance and,when it later offered the March date to defence counsel, indicated that this would put the matter “around the 18-month mark” afterattributing time to several COVID-19 remands. [43] The trial judge found Crown counsel failed to reasonably mitigate the delay because there was “little to show” for whatshe did between meeting the complainant on November 26, 2021 and January 24, 2022, when the date of March 22, 2022 was offeredfor trial.

He was also concerned that Crown counsel’s claim at the December appearance—that she needed to take further steps beforescheduling the trial—was not supported by the fact that, shortly thereafter, she offered a trial date in June 2022. [44] However, following the non-attendance, it was reasonable for the Crown to refrain from immediately rebooking thetrial to explore the complainant’s reason for not attending. There was no delay in meeting with the complainant; the Crown arranged aquick meeting within a week.

At the subsequent December appearance, Crown counsel provided a reasonable explanation as to why shewas reluctant to set the matter down at that time and wanted to take further steps. She was concerned about the delay and the earliestdate she could offer at that time was in June 2022. While the trial judge questioned this claim, as a June date was offered right after theDecember appearance, he did not take into account that this offer followed the defence position that trial dates should be setimmediately.

Furthermore, in concluding that there was “little to show” for what the Crown did after meeting the complainant tomitigate the delay, the trial judge did not consider that, following the December appearance, as a result of the Crown’s efforts, an earliertrial date of March 22, 2022 was secured, which was offered to the respondent on January 24, 2022.

Consequently, the fact that a datewas not set at the December appearance did not add to the delay as only a June date was available at that time. [45] As for the justice system, the Court, as well as the Crown, must take reasonable steps to mitigate delays arising fromdiscrete events. As stated in Jordan, “[w]ithin reason, the Crown and the justice system should be capable of prioritizing cases that havefaltered due to unforeseen events” (at para 75).

For example, in Cody, the Supreme Court deducted only a portion of the delay due to adiscrete event as the other portion of the delay was a product of systemic limitations. [46] The Crown asserts that four months (the time from the adjourned trial on November 23, 2021 to the earliest offered trialdate of March 22, 2022) is a reasonable period of time to reschedule a trial—especially in a smaller provincial court circuit location suchas St. Pierre-Jolys.

In my view, there is nothing in the record to suggest that the four months it took to reschedule the trial wasunreasonable. [47] The trial judge’s decision regarding mitigation hinged on a finding that the Crown did not reasonably mitigate theresulting delay. He did not find the Court responsible for the delay because it could not provide an earlier continuation date.

Nor doesthe respondent argue that this was an unreasonable time for rescheduling the trial; rather, his focus is on a claim that the Crown tookinsufficient steps to reschedule the matter. [48] I have also taken note that, in undertaking the reasonable mitigation analysis pursuant to

section 11(b), the OntarioCourt of Appeal, in R v Jurkus, 2018 ONCA 489 [Jurkus], recognized the importance of considering “the reality of extremely busyprovincial courts, handling the vast majority of criminal matters” (at para 59, citing R v Allen, (ONCA) [Allen]). Italso recognized that, while “reasonable efforts must be made to obtain continuation dates as quickly as possible”, “the inquiry intoreasonable steps remains a contextual one” (Jurkus at para 59).

The Court held that the ensuing three-month delay from the discreteevent (due to the unavailability of Crown and defence witnesses to testify) “was both reasonably unavoidable and could not reasonablyhave been remedied” (at para 60). [49] In a similar vein, while not specifically discussing the reasonableness of resetting trial dates, in R v KGK, 2020 SCC 7,the Supreme Court cited Allen, holding that “[r]easonableness under s. 11(

b) has always accounted for the reality that ‘[n]o case is anisland to be treated as if it were the only case with a legitimate demand on court resources’” (at para 61). [50] Finally, I add that, in keeping with the contextual reasonable mitigation analysis and the notion that the reasonablenessof time to “prosecute a case takes its colour from the surrounding circumstances” (Jordan at para 103), it is relevant that the reschedulingof this trial took place during the COVID-19 pandemic.

As did the Ontario Court of Appeal in R v Agpoon, 2023 ONCA 449 (whichreviewed the public record of disruption to the operation of courts caused by the pandemic for Jordan purposes), I take judicial notice ofthe relevant public notices dealing with provincial court closures. By notice dated December 29, 2021, the Provincial Court cancelledhearings for the month of January 2022, including all out-of-custody trials (with some exceptions) and all in-custody trials at fly-incircuit locations.[1] This notice was extended until February 25, 2022.[2]

[ 51 ] All this to say, applying a standard of reasonableness, the period of delay caused by the non-attendance should not be discounted because of a failure of the Crown or the justice system to reasonably mitigate the delay. The delay of four months is properly attributable to a discrete exceptional circumstance and should be subtracted from the overall timeframe. This results in a remaining delay of 17 months and 17 days, which is just below the presumptive ceiling. The respondent did not argue that, even if the remaining delay was found to fall below the presumptive ceiling, there was nonetheless unreasonable delay (see Jordan at paras 82-91 ). The respondent’s

section 11(

b) rights were not breached. Conclusion [ 52 ] For these reasons, I would allow the appeal and remit the matter for trial. JA I agree: JA I agree: JA