R. v. K.D., 2023 ONCJ 252

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (

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

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

summary conviction. CITATION: R. v. K.D., 2023 ONCJ 252 DATE: June 13, 2023 COURT FILE No: 20-1328 DATE: June 13, 2023 O N T A R I O C O U R T OF J U S T I C E B E T W E E N : HIS MAJESTY THE KING Respondent -AND- K.D. Applicant Before Justice Michael G. March

Heard on April 19, 20, 21, May 2, 3, 5, June 30, August 5, 9, 10, 2022; January 5, 2023 Reasons for Decision on s. 11(

b) Charter Application released on June 13, 2023 TERESA JAMES….…………..…………….………………………….Counsel for the Crown JON DOODY…………….….………………...………………………Counsel for the Accused March, M.G., J. : Introduction: 1 . On September 23, 2020, K.D. was arrested and charged with six counts under the Criminal Code (the “ Code ”) for the historical sexual abuse allegedly perpetrated by him upon his niece, J.D., and his nephew, H.D. Both J.D. and H.D. gave evidence to suggest the crimes occurred between the late 1970s and the early 1980s. 2 .

The Information setting out the specific offences with which K.D. had been charged was sworn on October 20, 2020. 3 . K.D.’s trial commenced on April 19, 2022. The last day, upon which evidence was heard and closing submissions were made by counsel, was August 10, 2022. The span of time from the date the Information was sworn until completion of the trial amounted to 659 days, or 21 months and 21 days. Only 2 days of delay were explicitly waived by the defence. 1 4 .

As a result, the time required to conduct K.D.’s trial exceeded the presumptive ceiling of 18 months established by the Supreme Court of Canada (“SCC”) in the benchmark decision of R. v. Jordan 2 for trial in a provincial court. Position of the Applicant 5 . The defence submitted that one of the greatest factors causing K.D.’s trial to be delayed was the late disclosure of a video statement made to police by J.D., one of the chief complainants. It was not turned over by the Crown to the defence until February 23, 2021, exactly 5 months after K.D. had been arrested. 6 .

The Crown then delayed the matter further by not offering a counsel pretrial for a further month. Subsequently, the Crown was not available for a judicial pretrial until five weeks after the counsel pretrial. 7 . The defence argued additionally that the Court organized its

schedule by double-booking other matters on trial dates reserved for K.D. Accordingly, on many of his fixed trial days, much of the available time to hear evidence was lost through dealing with other matters on a busy court docket. 8 . The originally scheduled trial dates had K.D.’s trial completing one day shy of the presumptive ceiling as established in Jordan . It could have concluded, the defence submitted, if all available court time set aside for the trial had been dedicated to K.D.’s matter. 9 . Defence counsel therefore seeks a stay of proceedings on all charges for K.D. The defence contends that there has been a violation of his

section 11(

b) right to a trial within a reasonable time under the Canadian Charter of Rights and Freedoms (“the Charter ”). Position of the Respondent 10 . Crown counsel countered that in addition to the 2 days specifically waived by the defence, there were other periods of delay caused by defence inaction. Crown counsel set those out as:

a) February 14, 2022 to April 4, 2022,

b) March 7, 2022 to May 2, 2022, and

c) May 19, 2022 to June 14, 2022. 11 . Regarding

a) above, earlier trial dates of February 14 and 15, 2022 were offered by the Court, and although K.D.’s matter would have been double-booked with other matters, they were declined by the defence. Defence counsel opted instead for later dates commencing April 4, 2022. In so doing, he indicated that there would not be an 11(

b) Charter application in relation to the period of February 14 to April 4, 2022. 12 . Regarding

b) above, the Crown argued that when the Court, on June 14, 2021, offered earlier dates, namely March 7, 30 and 31,

2022 as available days for conducting the trial, because the earlier set dates of April 4-7 inclusive for trial were no longer available, the March dates were declined by both Crown and defence counsel. This resulted in a neutral delay of 56 days. 13 . Regarding

c) above, the Crown contended that on May 12, 2022, when the Court offered May 19, June 8, June 14 and June 22, 2022, as possible trial continuation dates, the first two dates defence counsel declined because they were only half days, a further period of 26 days delay was engendered. 14 . Without counting any overlap between February 14, 2022, and May 2, 2022, the total period of delay acceded to by the defence is 87 days. A further segment of delay, to which the defence consented, arose between May 19 and June 14, 2022, constituting 26 days. 15 .

Subtracting the 2 days of expressly waived delay, and the periods for which the Court offered earlier dates to try K.D., which were declined by defence counsel solely, or by Crown and defence counsel jointly, totalling 113 days (i.e. 87 + 26), would result in the trial, taking into account the actions of counsel, as having been completed under the 18 month presumptive ceiling. 16 . Further, the Crown posited three “discrete events” which can properly be described as exceptional circumstances in applying Jordan principles, namely:

a) the sudden illness of one Crown witness, J.D., necessitating extra time for her to complete her testimony,

b) the Covid 19 pandemic, and

c) Crown counsel’s involvement in a Coroner’s Inquest. 17 . The Crown alternatively submits that the defence failed to assert in a timely manner what it contended was an unreasonable delay before the presumptive ceiling was reached on April 20, 2022. Had the issue been raised by the defence more promptly, the Crown and the Court could have taken steps to find earlier trial dates to bring the matter to its anticipated conclusion well before June 17, 2022, and indeed, before April 20, 2022. History of the Proceeding 18 .

With few exceptions, the Crown essentially accepts the defence account of how K.D.’s charges made their way to the end of his trial on August 10, 2022. 19 . Defence counsel in his factum set out a very helpful table, which he labelled, “Appendix A: Chart of All Dates”. I have reproduced it in its entirety below.

APPENDIX A: CHART OF ALL DATES DATES Action Taken Amount of Delay / Cumulative Delay September 23, 2020 K.D. is arrested and released on his own recognizance with conditions. - - October 14, 2020 Disclosure: Request sent for the disclosure in this matter, which was acknowledged the same day by the Crown’s office. - - October 20, 2020 Information 20-1328 Sworn 0 days October 22, 2020 Remand Court: Defence advised the Court that disclosure has still not been received, and asked for a 1-month adjournment to receive the disclosure and have a CPT.

Matter adjourned to November 24 th , 2020. 2 days / 2 days November 19, 2020 Disclosure: Defence has still not received the disclosure and follows-up with the Crown’s office by email. 28 days / 30 days November 20, 2020 Disclosure: Crown’s office responds indicating that the disclosure request has been uploaded to the file and the assigned Case Management Crown (“CMC”) has been notified. 1 day / 31 days

November 24, 2020 Remand Court: Defence advised that they have still not received the disclosure. The Crown indicated that they have received the requests, but that she did not have an update on when it can be expected, but suggests adjourning the matter to a January date.

Matter adjourned to January 5 th , 2021. 4 days / 35 days November 24, 2020 Disclosure : After Court, the initial Crown Screening Form and the Initial Crown Brief is uploaded to the Digital Disclosure Hub and disclosed to the Defence. 0 days / 35 days November 25, 2020 Disclosure: Defence sent an email to the Crown requesting additional disclosure.

Crown responded indicating that she has forwarded the email to the appropriate CMC. 1 day / 36 days January 5, 2021 Remand Court: Defence advised the Court that there continues to be outstanding disclosure, including the complainant’s video statement, and that a Counsel Pre-Trial (“CPT”) will be held once that is received.

The Crown requests that the matter be adjourned to February 16, 2021, and the matter was adjourned to that date. 41 days / 77 days January 6, 2021 Disclosure: The video statements H.D. and K.D. are uploaded to the Digital Disclosure Hub and made available to the Defence. 1 day / 78 days February 8, 2021 Disclosure: Defence sent an email to the Crown and the CMC indicating that the disclosure of the video statement of J.D., Jo.D. and L.D. were all still outstanding.

On the same day, the Crown emails the CMC asking if she can respond to Defence’s request. 33 days / 111 days February 12, 2021 Disclosure: The CMC responds to the Crown’s email, and to Defence, advising that the video statement of J.D. has been received by the Crown’s office and that it will be disclosed the following week, and 4 days / 115 days that the Crown was still waiting on some items of disclosure including the statements of Jo.D. and L.D.

February 16, 2021 Remand Court: Defence advised the Court that there continues to be outstanding disclosure and requests a month adjournment to receive that disclosure, review it with the client and have a CPT. Crown agrees with an adjournment to March 16 th , 2021. 4 days / 119 days February 23, 2021 Disclosure: The video statement of J.D. is uploaded to the Digital Disclosure Hub and made available to the Defence. 7 days / 126 days March 15, 2021 Defence contacted the Crown’s office to arrange a CPT.

First available date for a CPT offered was April 6 th , 2021, which was accepted. 20 days / 146 days March 16, 2021 Remand Court: Defence advised the Court that a CPT had been scheduled for April 6 th , and asked to return on April 13 th . The Court suggested returning on April 20 th instead, which the Crown agreed to. The matter was adjourned to April 20 th. 1 day / 147 days

March 31, 2021 Disclosure: The audio statements of Jo.D. and W.D. are uploaded to the Digital Disclosure Hub and made available to the Defence. 15 days / 162 days April 6, 2021 CPT held between counsel for the Defence, Mr. Doody, and the Crown, Ms. James. 6 days / 168 days April 6, 2021 Request from defence to Trial Coordination to set up a JPT in this matter. 0 days / 168 days April 7, 2021 Trial Coordination responds providing available dates for a Judicial Pre-Trial (“JPT”) on April 20 th , May 11 th , May 18 th , and May 25 th .

Defence responds indicating availability on all offered dates except April 20 th. .

Crown responds indicating availability only on May 18 th or 25 th . 1 day / 168 days April 8, 2021 Trial Coordination responds confirming May 18 th , 2021, for a JPT. 1 day / 169 days April 14, 2021 Disclosure: Additional disclosure is uploaded by the Crown to the Digital Disclosure Hub and made available to the defence. 7 days / 176 days April 20, 2021 Remand: Defence advised the Court that a JPT had been scheduled for May 18 th and the matter was adjourned to that date. 6 days / 182 days May 18, 2021 JPT held, where judicial approval was given for a 7- day trial.

Following the JPT the matter was adjourned to June 15 th , 2021, to confirm that trial dates have been set. 28 days / 210 days May 18, 2021 Defence contacts Trial Coordination in order to

schedule a trial scheduling meeting. The trial scheduling meeting was set for May 21 st , 2021. 0 days / 210 days May 21, 2021 Trial Scheduling Meeting. Trial dates were offered in February 14 and 15, 2022, with the remainder of the trial dates being set in April, 2022. These dates were agreed to by both Defence and Crown.

No record exists of what dates were secured at this time. 3 days / 213 days May 21, 2021 Following the Trial Scheduling Meeting, Amanda Jessup, the Assistant Trial Coordinator, emailed Defence and the Crown advising that on the trial dates of February 14 th and 15 th were set on dates when the 0 days / 213 days Court already had trial matters set and advised that 7 days could be offered in April 2022. Defence agrees to use the April dates in order to avoid having the trial double-booked on the February dates. Defence advises that there will not be an 11(

b) application brought in relation to the move from the February dates to the April dates. The completed Trial Scheduling Form is provided, which notes the first dates offered as being April 4, 5, 6 and 7, 2022. There is no record of any dates being offered in February 2022. June 14, 2021 The Trial Coordinator emails Defence and the Crown advising that April 4, 5, 6 and 7, 2022, were no longer available to the Court, but that the April 19, 20, and 21 st remained available. 24 days / 237 days

June 15, 2021 As a response to the Trial Coordinator’s email, a new Trial Scheduling Meeting is scheduled for June 18th, 2021. 1 day / 238 days June 15, 2021 Remand Court : Defence advised the Court that we were able to confirm 3 of the 7 days for trial, being April 19, 20, and 21, 2022. Those dates were reserved, and the matter was adjourned to March 7 th , 2022, in the trial confirmation court. The Crown refers to Mr. Doody’s email of May 21 st , 2021, and the reference to the 11(

b) waiver contained therein. 0 days / 238 days June 18, 2021 Trial Scheduling Meeting. Trial dates of March 7 th , 30 and 31 st were offered, and the dates were available to both the Defence and the Crown, but both parties agreed to look for dates after the currently scheduled April dates in order to have the matter heard closer together. Dates of May 2, 3, 4 and 5 th , 2022, offered and accepted by both Crown and Defence.

Matter brought forward administratively to June 22 nd to set the new trial dates on record. 3 days / 241 days June 22, 2021 Remand Court: Confirmed on record the trial dates of May 2, 3, 4 and 5, 2022. Matter adjourned to the Trial Confirmation Court on March 7 th , 2022. 4 days / 245 days March 7, 2022 Trial Confirmation Court . Both parties indicated that they are ready to proceed. 258 days / 503 days April 5, 2022 Trial Coordination advises the Crown that the Court is not available on the May 4 th date, who in turn advised the Defence. It is not clear when Trial Coordination made this decision.

Crown asks Defence whether they want to find a 7 th day now or see how the 6 dates set proceed. Defence agrees to wait and see how the set dates proceed. 29 days / 532 days April 13, 2022 Crown emails Trial Coordinator listing all of the matters scheduled in this matters’ trial Court on April 19 th , 20 th , and 21 st , and asking if the information is correct. Crown follows up this email with a second email adding a matter that was missed.

Trial Coordination responds indicating that the list is correct, apart that a Federal JPT on the 21 st was missed and has been added to the email’s list. 8 days / 540 days April 19, 2022 Trial Day 1. Matter adjourned to continue on April 20 6 days / 546 days April 20, 2022 The Jordan presumptive ceiling of 18 months is reached. 1 day / 547 days (18 months delay) April 20, 2022 Trial Day 2. Matter adjourned to continue on April 21 0 day / 547 days April 21, 2022 Trial Day 3 . Matter adjourned to continue on May 2 1 day / 548 days 1 day over the Jordan ceiling

April 21, 2022 Trial Coordinator emailed Defence and the Crown looking to set a date to replace the lost May 4 th date, offering June 13, 16 or July 19. Defence advises that they are available all of the dates. Crown advises that they are available June 13 th and 16 th . June 13 th was set on record. 0 day / 548 days 1 day over the Jordan ceiling April 29, 2022 Crown emails Trial Coordination about scheduling two remote witnesses’ testimony (W.D.and L.D.) and suggests May 5 th as their anticipated date of testimony.

The Crown suggests starting at 1:30 in light of the other matters scheduled in the Court that day and to accommodate the time difference for the witnesses. 8 days / 556 days 9 day over the Jordan ceiling May 2. 2022 Trial Day 4 . Matter adjourned to continue on May 3 3 days / 559 days 12 days over the Jordan ceiling May 2, 2022 Crown emails Trial Coordination seeking two further days in order to complete this matter. 0 days / 559 days 12 days over the Jordan ceiling May 3, 2022 Trial Coordination responds offering May 11, 19, 30, and June 7.

Defence indicates that May 11 is not available, but that the other three days are available. 1 day / 560 days 13 days over the Jordan ceiling May 3, 2022 Trial Day 5. Matter adjourned to continue on May 5 0 days / 560 days 13 days over the Jordan ceiling May 4, 2022 Crown responds to Trial Coordinator with her availability. 1 day / 561 days 14 days over the Jordan ceiling May 5, 2022 Trial Coordination responds indicating that May 19 and 30 were dates available to both counsel, as long as the Crown was able to move her two trials scheduled for those days.

These dates were canvassed on the record in Court. 1 day / 562 days 15 days over the Jordan ceiling May 5, 2022 Trial Day 6. The Court raised the dates of May 19 and 30 th . Crown advises that she is only available in the morning of the 19 th . Defence indicates available the whole day. The Crown made comments regarding the May 30 th date. Further dates are canvassed by the Court, the Crown and Defence on record.

Matter was adjourned to May 9 th , 2022, to see if new dates can be set. 0 days / 562 days 15 days over the Jordan ceiling May 9, 2022 Email from Crown to the Trial Coordinator seeking to set two further dates, suggesting June 10 and 13. 4 days / 566 days 19 days over the Jordan ceiling May 9, 2022 June 10 th and 13 th are confirmed on record. 0 days / 566 days 19 days over the Jordan ceiling

May 10, 2022 Crown emails Defence advising what had occurred in Court the previous day, and asked whether Defence thought 2 days was sufficient. Defence advised that he believed 3 days was necessary. Crown responded indicating she agreed and would work on getting a third date. 1 day / 567 days 20 days over the Jordan ceiling May 11, 2022 Crown emails Trial Coordination indicating that one, or two, additional dates are needed, in addition to the June 10 th and 13 th dates. 1 day / 568 days 21 days over the Jordan ceiling May 12, 2022 Trial Coordination responds offering May 19, June 8, June 14 and June 22.

Defence responds indicating that he was available all days except June 22 nd . 1 day / 569 days 22 days over the Jordan ceiling May 17, 2022 Crown responds indicating that the Crown is not available on May 19, June 9 or 14 th , but is available on the 22 nd . The Crown provides their availability from June 23 rd to July 8 th . Defence responds indicating his availability for the dates the Crown provided 5 days / 574 days 27 days over the Jordan ceiling May 18, 2022 Trial Coordination responds indicating that June 30 th could be secured, but that an additional date would need to be sought.

Defence responded with his availability for the months of July and August. Crown responded with her availability for those months. Trial Coordination responds indicating that August 4 th could be available if the Crown was prepared to bump the two trials already scheduled in the Court, and asks the Crown to confirm.

The Crown does not respond. 1 day / 575 days 28 days over the Jordan ceiling June 1, 2022 The Crown emails Trial Coordination indicating that the June 10 and 13 th dates are no longer available as she is required to attend a Coroner’s Inquest on those dates, and that new dates will need to be secured. 14 days / 589 days 42 days over the Jordan ceiling June 2, 2022 Defence responds providing his availability for June, July, August and September of 2022. 1 day / 590 days 43 days over the Jordan ceiling June 3, 2022 Crown responds with their availability in response to the dates that the Defence was available. 1 day / 591 days 44 days over the Jordan ceiling June 3, 2022 The Crown emails Trial Coordination indicating that she will be needed at the Inquest on the 10 th and 13th, and indicating that she will file an application for an adjournment. 0 days / 591 days 44 days over the Jordan ceiling June 5, 2022 Crown serves and files, by email, her Form 1 with respect to the adjournment application with respect to June 10 th and 13 th.

Defence indicates that he would be available the following day to address the matter before His Honour if it could be accommodated. 2 days / 593 days 46 days over the Jordan ceiling June 6, 2022 Crown’s adjournment application heard and granted. The June 10 and 13 dates are vacated. June 30 th is confirmed on the record as a continuation date, and the matter was adjourned to then. 1 day / 594 days 47 days over the Jordan ceiling

June 7, 2022 Trial Coordination responds indicating that forthe all the dates in June to September that wereavailable to the Defence and the Crown werenot available to the Court, unless the Crown waswilling to bump another matter to give this matter priority. 1 day / 595 days 48 days over the Jordanceiling June 7, 2022 The Crown emails Trial Coordination on thisfile, and two others, all of which requireadditional dates to be set asking TrialCoordination for a list of available dates for theCourt so that these matters can be scheduled.

The Crown proposes a Trial Scheduling Meeting on June 17th. 0 days / 595 days 48 days over the Jordanceiling June 8, 2022 Trial Coordination responds indicating that aTrial Scheduling Meeting could be accommodated on June 17th. Defence indicatesthat they are available and the matter is set for aTrial Scheduling Meeting. 1 day / 596 days 49 days over the Jordanceiling June 17, 2022 Trial Scheduling Meeting.

No trial schedulingform was completed for this meeting. 9 days / 605 days 58 days over the Jordanceiling June 21, 2022 Trial Coordinator emailed the Crown andDefence advising of the trial dates obtained on the 17th, being August 5th, 9th, and 10th. 2022. 4 days / 609 days 62 days over the JordanceilingJune 30, 2022 Trial Day 7. Matter adjourned to continue onAugust 5th. 9 days / 618 days 71 days over the JordanceilingAugust 5, 2022 Trial Day 8. Crown closes their case. Matter adjourned to continue on August 9th. 36 days / 654 days 107 days over theJordan ceilingAugust 9, 2022 Trial Day 9.

Defence evidence finished. Matter adjourned to continue on August 10th. 4 days / 658 days 111 days over theJordan ceilingAugust 10, 2022 Trial Day 10. Submissions made and trialconcluded. Defence waives 11(

b) from this dateto the date of His Honour’s decision. 1 day / 659 days 112 days over theJordan ceiling ISSUES 20. The history of the proceedings and counsel submissions raise the following issues for resolution:

a) What is the total delay in this case, and does it exceed the presumptive Jordan ceiling?

b) What is the net delay (i.e. how much delay can be attributed to waivers of periods of delay or other actions of the defence whichcaused delay)?

c) If the net delay exceeds the presumptive ceiling, can the Crown rebut the presumption by showing exceptional circumstancesexisted?

d) In considering exceptional circumstances, which fall into two main categories – discrete events and case complexity – am Isatisfied that the Crown has demonstrated these factors existed and caused delays?

e) Does the resulting delay, after all deductions are made, fall below the presumptive ceiling (ie. 18 months)?

f) If so, the onus shifts to the defence, and I must be mindful that the remedy of a stay of charges is rare and only to be granted inclear cases where the ceiling has not been exceeded. Is this such a case? The Law 21. The calculus for determining whether the Jordan presumptive ceiling has been exceeded was recently well articulated by theCourt of Appeal for Ontario in R. v. Zahor

(2022) ONCA 449 . As Coroza J.A. explained: V. ANALYSIS

A. THE s. 11(

b) FRAMEWORK [60] In evaluating an application made under s. 11(

b) of the Charter , a court must identify and characterize the periods of delay occasioned throughout the trial. This requires an application of the Jordan framework, consisting of the following steps. [61] Step 1: Calculate the total delay. The court must calculate the total delay, which extends from the laying of the charge to the actual or anticipated end of the trial: Jordan , at para. 47 . [62] Step 2: Calculate the net delay. Net delay is calculated by subtracting defence delay from the total delay: Jordan , at para. 60 .

Defence delay is subtracted because “[t]he defence should not be allowed to benefit from its own delay-causing conduct”: Jordan , at para. 60 . There are two types of defence delay, each of which must be considered and, if present, subtracted. [63] Step 2(a): Subtract delay that is waived by the defence. Delay that is clearly and unequivocally waived by the defence, either explicitly or implicitly, must be subtracted from the total delay: Jordan , at para. 61 . [64] Step 2(b): Subtract delay that lies at the feet of the defence.

Delay that is “caused solely or directly by the defence’s conduct” must also be subtracted from the total delay: Jordan , at para. 66 . This includes tactical choices that delayed the trial, such as frivolous applications and requests, and also includes periods of time during which the court and the Crown are prepared to proceed but the defence is not: Jordan , at paras. 63-64 . [65] Defence delay does not include legitimate actions taken by the defence to respond to the charges, such as taking time to prepare, as well as non-frivolous applications and requests: Jordan , at paras. 64-65 .

This court has also suggested that defence delay does not include defence actions taken in response to negligent Crown conduct, such as late disclosure, even where such conduct is not deliberate: see e.g., R. v. Pyrek , 2017 ONCA 476 , 349 C.C.C. (3d) 554, at paras. 19-22 ; R. v. D.A. , 2018 ONCA 96 , 402 C.R.R. (2d) 303. at paras. 20-22. [66] Step 3: Compare the net delay to the applicable presumptive ceiling. The applicable presumptive ceiling is 18 months for cases tried in the provincial court and 30 months for cases tried in the superior court: Jordan , at para. 46 .

If the net delay is above the ceiling, the delay is presumptively unreasonable, and the Crown bears the burden of rebutting this presumption by demonstrating exceptional circumstances: Jordan , at para. 105 . [5] [67] Step 4: Consider exceptional circumstances.

These circumstances do not need to be rare or uncommon; rather, they must lie beyond the Crown’s control, in that they are reasonably unforeseen or reasonably unavoidable and, in either case, result in delay that cannot be reasonably remedied by the Crown: Jordan , at para. 69 . [68] The Crown must do more than simply identify difficulties in conducting a timely prosecution. The Crown must demonstrate that it took reasonable steps – even if ultimately unsuccessful – to circumvent and adapt to problems before the delay exceeded the presumptive ceiling: Jordan , at para. 70 ; R. v.

Morash , 2021 ONCA 335 , 405 C.C.C. (3d) 468, at para. 12 . [69] In general, the Crown may satisfy its onus by relying on two categories of exceptional circumstances, being discrete events and particularly complex cases: Jordan , at para. 71 . The Crown cannot rely on anything beyond exceptional circumstances to discharge its burden; not the seriousness of the offence, nor the absence of prejudice, nor institutional delay: Jordan , at para. 81 .

Absent exceptional circumstances, the Crown will not be able to satisfy its burden, and a stay will be entered: Jordan , at para. 47 . [70] Step 4(a): Consider discrete exceptional circumstances. Discrete exceptional circumstances are unexpected and uncontrollable happenings which lead to delay: Jordan , at para. 73 .

They engage a quantitative analysis, in that the delay caused by discrete events is subtracted from the net delay for the purpose of determining whether the remaining delay continues to exceed the presumptive ceiling: Jordan , at para. 75 . [71] Discrete events include, for example, medical emergency or illness of criminal justice system participants, recanting witnesses, and elongated trials despite good faith timeline estimates: Jordan , at paras. 72-73 ; R. v.

MacIsaac, 2018 ONCA 650 , 141 O.R. (3d) 721, at para. 44 . [72] Where the remaining delay continues to exceed the presumptive ceiling, even after accounting for discrete events that could not be reasonably mitigated by the Crown and the justice system, a stay will be entered unless the Crown can demonstrate that the remaining delay is justified in light of the particular complexity of the case: Jordan , at paras. 75-77 . [73] Step 4(b): Consider complexity. The remaining delay may be justified by the Crown where the case is “particularly complex”: Jordan , at para. 77 .

It is worth stressing that the presumptive ceiling already accounts for the fact that criminal proceedings have become more complex over time. Therefore, in order to discharge its burden under this exceptional circumstance, the Crown must demonstrate that the case is particularly complex: R. v. Cody , 2017 SCC 31 , [2017] 1 S.C.R. 659, at para. 63 , referring to Jordan , at paras. 42, 53 . [74] Unlike the consideration of discrete events, an assessment of particular complexity engages a qualitative analysis: Cody , at para. 64 .

That is, it demands an inquiry into whether the amount of remaining delay in excess of the presumptive ceiling is justified in light of the particular complexity of the case: Cody , at para. 64 . [75] For cases where the charges were laid after the release of the decision in Jordan , the analysis ends here. If the remaining delay cannot be justified based on the particular complexity of the case, a stay will be entered: Jordan , at para. 47 .

However, for charges that were laid before the release of Jordan , the court must go on to determine whether the delay has been justified by the Crown as a result of transitional considerations, which is a third type of exceptional circumstance: Jordan , at para. 96 ; Cody , at paras. 46, 67 . [76] Step 5: The transitional exceptional circumstance. For cases that were already in the system prior to Jordan – and which

unjustifiably exceed the presumptive ceiling after accounting for defence delay, discrete exceptional circumstances, and the particularcomplexity of the case – the delay may nonetheless be justified based on “the parties’ reasonable reliance on the law as it previouslyexisted”: Jordan, at para. 96; Pyrek, at para. 24. [77] The court must engage in a contextual balancing of countervailing considerations. On the one hand, “the parties’ behaviourcannot be judged strictly, against a standard of which they had no notice. … On the other hand, the s. 11(

b) rights of all accused personscannot be held in abeyance while the system works to respond to this new framework”: Jordan, at paras. 96, 98. [78] The weight of the jurisprudence is clear that “[d]eciding whether the transitional exception is warranted is a highly contextualdetermination”: R. v. Pavao, 2021 ONCA 527, at para. 137, referring to Jordan, at para. 96; see also R. v. Williamson, 2016 SCC 28,[2016] 1 S.C.R. 741, at para. 24; Cody, at para. 74; R. v. Picard, 2017 ONCA 692, 137 O.R. (3d) 401, at para. 71, leave to appealrefused, [2018] S.C.C.A. No. 135; R. v.

Powell, 2020 ONCA 743, 153 O.R. (3d) 455, at paras. 9-10; and R. v. Wookey, 2021 ONCA 68,154 O.R. (3d) 145, at para. 79. 22. The SCC addressed the issue of whether the failure on the part of defence counsel to accept the earliest dates offered by the Courtought to be considered as defence delay in R. v. Hanan

(2023) SCC 12 . The SCC stated: [9] Like the majority and the dissent below, we reject the Crown’s proposed “bright-line” rule according to which all ofthe delay until the next available date following defence counsel’s rejection of a date offered by the court must be characterized asdefence delay. We agree with van Rensburg J.A. and Tulloch J.A., as he then was, at para. 56, that this approach is inconsistent with thisCourt’s understanding of defence delay. Defence delay comprises “delays caused solely or directly by the defence’s conduct” or “delayswaived by the defence” (Jordan, at para. 66).

Furthermore, “periods of time during which the court and the Crown are unavailable willnot constitute defence delay, even if defence counsel is also unavailable” (para. 64). All relevant circumstances should be considered todetermine how delay should be apportioned among the participants (R. v. Boulanger, 2022 SCC 2, at para. 8). We share the view of themajority and dissenting judges in the Court of Appeal that, in the circumstances of this case, it is unfair and unreasonable to characterizethe entire period between June and October 2019 as defence delay (paras. 59 and 136). 23.

At paragraph 56 of the earlier decision of the Court of Appeal for Ontario in R. v. Hanan 2022 ONCA 229, van Rensburgspeaking for the majority elaborated on the task of the Court in analyzing defence delay as follows: Like Roberts J.A. in R. v. Albinowski, 2018 ONCA 1084, 371 C.C.C. (3d) 190, I would reject the “categorical approach” proposed by theCrown that all of the delay following the rejection of a date offered by the court must be characterized as defence delay, and I agree withher statement that “it is necessary to consider the circumstances of [the] case”: at para. 46.

The court must take a contextual approachthat considers the circumstances relevant to whether, in respect of a particular period of time, the defence refusal of a date is the “sole ordirect” cause of the resulting delay. 24. Very recently, my colleague Monahan J. in R. v. B.D., 2023 ONCJ 224, had this to say in interpreting Hanan: [40] Let me summarize what I take to be the significance of Hanan. There is no bright line rule that when the Court and the Crownare available but the defence is not, that all of the time to the next date is on the defence as defence delay.

The Court must consider all ofthe circumstances including what led to the delay in the first place and whether the Crown and the Court were available during thesubsequent period of time that they seek to have characterized as defence delay. 25. The question of whether K.D.’s s. 11(

b) Charter right was violated or not will be driven by a careful assessment of the actions ofthe defence and discrete events. Analysis Total Delay: 26. Clearly, the total delay in this case from date the Information was sworn (i.e. October 20, 2020) to the actual end of K.D.’s trial(i.e. August 10, 2022) was 659 days or 21 months and 21 days. 27. The presumptive ceiling of 18 months as established by Jordan has been exceeded in this case. Waiver: 28. Net delay, of course, is calculated by subtracting waivers of periods of time, and defence caused delay from the total delay. 29.

The defence only expressly waived two days. The Crown agrees. Accordingly, the Court must look next to actions of thedefence, if any, which contributed to the delay in bringing K.D.’s trial to its completion. Defence Caused Delay: 30. The Crown argued in its factum that there were three examples to which it could point to demonstrate occasions when defencecounsel’s conduct contributed to delays in completing the trial, or resulted in neutral delay. February 14 to April 4, 2022: 31. The first such period of 49 days between February 14 and April 4, 2022, in my view, did engender some defence caused delay.

Following an ‘issues’ JPT held May 18, 2021, seven days were approved based on the good faith estimates of counsel of the amount oftime required to conduct K.D.’s trial. The initial allocation of those days resulted in February 14 and 15 being set for commencement of

the trial. 32 . However, defence counsel advised later on May 21, 2021, when the Assistant Trial Co-ordinator told counsel that February 14 and 15, 2022 were dates where the trial was double-booked with other matters, and seven full days could be offered in April 2022, that he wished to decline the February dates. As a result, one or perhaps two full trial days of trial were lost. 33 . Justice system participants do not have a crystal ball to accurately predict the future.

The other matters scheduled on February 14 and 15, 2022 could have collapsed. ‘Out of town’ defence counsel’s preference for full days, however unlikely they may be available when busy provincial courts are struggling to deal with the backlog of cases caused by the Covid 19 pandemic, resulted in time being wasted. 34 . The Crown’s right to determine which matter it wished to call first that day, namely February 14,2022, was taken away. The first and second days of K.D.’s trial, in an ideal world, could have been completed. Furthermore, defence counsel indicated on the record that there would not be an 11(

b) Charter application brought in relation to the move from the February dates to the April dates. If this is not an express defence waiver of time when a trial could have started, but did not, it must certainly amount to defence cause delayed. 35 . Contextually attempting to quantify how much delay was caused by the defence as a result, and taking in account, of course, the guidance offered in Hanan , I would not attribute the full 49 days from February 14 to April 4 urged upon me by the Crown.

The trial would certainly not have completed by February 15, the second day set aside for the matter, but it could have advanced earlier than it did. 36 . If, for some reason, the trial could not complete in the seven days set aside for it in April, it would take a longer period to find further trial time in the future for finishing it. 37 . Accordingly, I will attribute one month of delay, or 30 days, to the defence for its decision not to attempt to start the trial earlier. 38 . Net delay thus stands at 627 days [659 – 2 (waiver) – 30 (defence caused delay) = 627)] March 7 to May 2, 2022: 39 .

Regarding the March 7, 30 and 31 dates offered by the Court to Crown and defence counsel as available trial dates, which were declined by both, I cannot agree with the Crown’s argument that this engendered 56 days of neutral delay. The concept of “neutral delay” is no longer a valid consideration under Jordan principles. It is nowhere mentioned in the decision of the Supreme Court of Canada. It is a thing of the past. 40 . If the Crown is unavailable, it matters not that the defence is also unavailable. It does not cancel out Crown unavailability. Simply put, the trial could not have proceeded in any event. 41 .

At paragraph 64 of Jordan , Moldaver J. explained: [64] As another example, the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence. However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable . . . (my emphasis). 42 . In my view, the “and” I have emboldened above can be read as an “or”. 43 .

There can be no deduction in calculating ‘net delay’, if the Crown is unavailable. 44 . I hasten to add that there may be many good reasons for Crown unavailability. I am sure there was in this case. However, if the Crown is unavailable, the delay must fall at the feet of the Crown, barring exceptional circumstances. May 19 to June 14, 2022: 45 . Turning to the Crown’s third argument regarding defence caused delay, I agree that the period of 26 days ought to be attributed under this rubric.

The defence declined on May 12, 2022, the two first offered dates by the Court of May 19 and June 8, 2022, because they were half-days only. 46 . Again, I make the point that the other matters scheduled for May 19 and June 8 could have collapsed, or not proceeded, for whatever reason. The defence opted not to take that chance. The defence therefore bears the responsibility for this. 47 . Accordingly, net delay now stands at 601 days [659 – 2 (waiver) – 30 (defence caused delay) – 26 (further defence caused delay) = 601)]. 48 .

By my calculation, net delay still exceeds the 18 month Jordan ceiling. 18 months translates to 548 days. Total delay equates to 659 days. Subtracting waiver (2 days) and cumulative defence caused delay (56 days), net delay stands at 601 days. It surpasses the Jordan ceiling by 53 days. Exceptional Circumstances: 49 . I must now turn my mind to whether exceptional circumstances exist by examining the two categories under which they may arise – discrete events and case complexity. J.D.’s Sudden Illness

50. Firstly, as a discrete event, the Crown argued that the illness of J.D. while she was giving evidence - indeed fighting the urge tovomit while in the witness box and thereby necessitating the early end of one of K.D.’s trial days was a discrete event. I agree, but thedelay caused by it was nearly negligible. She was ready to testify the next day. 51. The early end to the court day when J.D. was sick meant, of course, that other witnesses waiting to testify in the queue at K.D.’strial were pushed back, but only a couple of hours were lost. 52.

Accordingly, I conclude only one day of delay was engendered as a result of this incident. The Impact of Covid 19 53. Secondly, as an exceptional circumstance, the Court can take judicial notice of the backlog caused by the Covid 19 pandemic. TheCourt, and the world, was put on hold in terms of its regular course of business. Crime did not stop. Police continued to lay charges, asthey should in appropriate cases. 54. The closure of courthouses across the country, however, prevented the justice system from hearing matters over the course ofmany, many months.

Technology assisted with allowing for court proceedings to take place virtually. However, the system had to adapt.All the while, more and more trials were adding up in the queue. 55. Although K.D.’s trial was not directly affected by courthouse closures, it was indirectly. The system was grappling with theburdensome number of trials requiring dates for them to be conducted. K.D.’s trial was thus indirectly affected by the sheer volume ofcases waiting to be heard. 56. In a pre-Jordan case, R. v.

Allen (ON CA), Doherty J.A. observed: No case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolvearound any one case, but must try to accommodate the needs of all cases. When a case requires additional court resources the systemcannot be expected to push other cases to the side and instantaneously provide those additional resources. 57. While I agree, of course, with the wisdom in the statement of Doherty J.

A. in the oft quoted passage above, if ever there was atime when the Crown, as a minister of justice, had to attempt to prioritize one case over another, it was when the justice system began toemerge from the pandemic. 58. I point this out as no criticism to Crown counsel assigned to this case. She did what she could. 59. The reality is . . . the pandemic created a huge backlog. Our court system was overrun with demands for trials to be heard. 60.

I note as well that the Ontario Court of Justice (“OCJ”), the provincial court for all of Ontario, has two judges assigned toRenfrew County to preside over all matters within that jurisdiction. Statistically, it must cope with one of the busiest areas for crime in Ontario per capita.3 61. Locally, police lay charges as they should in many instances. Crown counsel must prosecute them within their discretion. Twolocal judges must contend with them all. 62.

When I was appointed a judge of the OCJ in August 2016, there were five full time Crown counsel responsible for prosecuting thecriminal cases coming into the system. At present, there are seven. There remains only two OCJ judges to hear all the cases in RenfrewCounty. 63. As the local administrative judge, and taking a “bird’s-eye view”4, I have little hope of ever attempting to meet the demandsplaced on scarce judicial resources unless I direct my Trial Co-ordinator to double-book, triple-book and quadruple-book trial upon trial,each and every available, Court sitting day.

I venture I give up more Chambers days than the vast majority of trial judges in the OCJ simply in an attempt to meet the ever-increasing demands for trial time5. 64. Defence counsel, in his factum with the assistance of an articling student, microscopically examined each minute of each day ofK.D.’s trial to ascertain how much of the Court’s time was dedicated to it.

Needless to say, it is testament to how the backlog in RenfrewCounty, and its constant, crowded dockets with sentencings, pre-trial applications, JPT’s and every other conceivable sort of proceedingrequiring time to be heard and disposed of, eat into the minutes and hours supposedly dedicated to trials. There are simply not enoughhours in the court day to do justice to everything which has to be accomplished. That has been the direct consequence of Covid on therunning of the criminal courts of the OCJ in Renfrew County. 65.

Just a month or so ago, our newly appointed Chief Justice Sharon Nicklas reminded all of the judges of her Court that, at present,98.7% of all criminal matters arising in Ontario are dealt with in the OCJ. That is a staggering statistic. 66. Roughly fifty thousand souls inhabit the Greater Pembroke Area (the “GPA”). Another fifty thousand or more live elsewhere inRenfrew County. Within the GPA is Garrison Petawawa, one of the largest military bases in Canada. Sadly, Renfrew County also hasone the lowest median, per capita incomes of anywhere else in Ontario. 67.

A disproportionate number of younger people, who make bad choices from time to time due to drug and alcohol fueled conduct,along with the sense of hopelessness for some grappling with abject poverty, leads to trouble. These two factors alone combine to makea powerful cocktail for the commission of crime in Renfrew County. 68. Resources are scant. The court system must cope and do what it can to respond to the ever-increasing demands placed upon it.

69 . Defence counsel asserted as well at paragraph 80 of the factum “At no point was the applicant [K.D.] alerted that Covid 19 was impacting this case.” To that I retort respectfully, so what? I find that the Court and the Crown were under no obligation to provide him with notice. It ought to have been readily apparent to the defence. Indeed, I can safely infer that Covid has impacted virtually every pending criminal case in this country since March 11, 2020. 6 70 . In R. v.

Simmons , 2020 ONSC 7209 at paragraph 70 , Nakatsuru J. commented astutely: [T]he impact of the COVID-19 pandemic on the criminal justice system is not limited to those periods of time when the court had to adjourn scheduled cases or when jury trials were suspended. It has had numerous and far-reaching impacts upon how we do things, and, on the people, who do them. Not the least has been the necessity to take measures to protect the health and safety of justice participants and the public. The way trials are conducted needed to be transformed. Physical courtrooms had to be changed.

Some trials are now conducted virtually. This in turn, has had a significant impact on scheduling. Scheduling new trials and rescheduling existing trials have become more complex and difficult. A backlog of cases has ensued. A lack of resources was not the cause. Rather, COVID-19 was. It has had a system-wide impact of unprecedented proportions, never seen before in our lifetime. 71 . Defence counsel also drew to my attention to the recent decision of Goodman J. in R. v. Hinterberger , 2022 ONSC 4860 .

His Honour stated: Exceptional Circumstances – COVID-19 Pandemic [48] Generally, the COVID-19 pandemic is the quintessential discrete exceptional circumstance as defined in Jordan .

It could not be foreseen or avoided, and nothing could be done to reasonably remedy, or mitigate the ongoing court delays arising out of this crisis. [49] I take judicial notice of the pandemic and its ongoing effects on the justice system, as well as the Government’s ongoing response, pursuant to ss. 17 and 22(1) of the CEA , ss. 17, 22(1). [50] Accordingly, it is beyond question that the pandemic creates an unfortunate situation whereby trials are delayed . . . 72 . His Honour went on to add: [52] . . . The case law is clear that COVID-19 does not give the Crown a free pass from s.11(

b) challenges. Instead, a review of the record is critical to determine whether the pandemic caused the delay or whether it just ran concurrent to it. 73 . Goodman J. was relying in part on the dicta of his colleague, Nieckarz J., in an earlier case, R. v. Schardt , 2021 ONSC 3143 , where Her Honour held: [68] As stated in R. v. Greenridge , 2021 ONCJ 57 , at paras. 26 and 30 , it is not sufficient for the Crown to point to the pandemic as a discrete event to justify delay. The focus of the inquiry as required by Jordan is whether the discrete event caused the delay.

The Crown must prove that but for the pandemic, earlier dates would have been obtained for this case to have been tried and completed within the 30-month ceiling (after deducting for defence delay). 74 . Goodman J. in Hinterberger concluded: [64] . . . The impact of the pandemic will not always be readily quantifiable. Consideration ought to be given to the obvious fact that, in spite of all efforts, a backlog in scheduling and rescheduling cases will be inevitable and returning to normal will take longer than the actual course of the pandemic itself.

In instances where there is some portion of delay that exceeds the ceiling, it may be reasonably deducted as attributable to the backlog depending on the circumstances. 75 . Defence counsel argues that there is no evidentiary basis to conclude that Covid 19 delayed K.D.’s trial. I wholeheartedly disagree. The affidavit of the articling student sworn in support of this application makes the point resoundingly clear. K.D.’s case, like so many others, was mired in the backlog. The backlog was caused by the Covid 19 pandemic. Every accused in Renfrew County and elsewhere has suffered as a result. 76 .

K.D.’s entire trial took place during the Covid 19 pandemic. It occurred during an era when the Court was struggling to find time for all the cases needed to be scheduled and rescheduled. May 4, 2022 was lost as a trial day because the Court was required to use that date for another case, which had significant delay issues. 77 . Defence counsel opted not to seek to reschedule that date immediately. Rather he chose to wait and see if K.D.’s trial was going to require more time. 78 .

On April 21, 2022, the Court offered June 13, 16, and 19, 2022 to replace the May 4, 2022 date and to provide additional time for completion of the trial. 79 . The Crown seeks thus a 40 day deduction (May 4 to June 13) to account for this pandemic related delay. I agree and I will deduct that amount. 80 . If the Crown had asked for more time to be allowed on account of the pandemic, I would have considered it. Very recently, my colleague, Richardson J. stated in R. v. Desjardins 2023 ONCJ 244 at paras. 211 , 213 -214 and 216 – 233:

[211] I can and do take notice of the following facts with respect to the impact that COVID-19 has had on the operation of criminal courts:

a) Between March 16, 2020, and July 6, 2020, in accordance with the Chief Justice’s directive, all out-of-custody matters were presumptively adjourned. Neither out-of-custody nor in-custody trials could proceed.

b) On July 6, 2020, in accordance with a subsequent directive, we resumed hearing a limited number of trials and preliminary inquiries that were already scheduled.

c) On July 2, 2020, the Chief Justice published a plan to begin setting unscheduled trials and preliminary hearings. Priority was given to in-custody matters. In-custody continuations could begin to be scheduled as of July 6, 2020. Other in-custody matters were eligible to have new dates set between July 7 and July 21, 2020. Out of custody continuations could begin to be scheduled as of August 5, 2020.

d) On August 12, 2020, the Chief Justice released an updated notice that advised the court could begin to

schedule out-of-custody trials and preliminary inquiries that had previously been adjourned due to the Covid-19 pandemic between August 17, 2020, and September 21, 2020. Priority was to be given based on the date of the previously scheduled trial or continuation date. New out-of- custody hearings could begin to be scheduled on September 28, 2020.

e) Between April 26, 2021, to May 7, 2021, due to a resurgence in the pandemic, Ontario Court of Justice trials were adjourned at the direction of the Chief Justice to seek to reduce the number of people attending in courthouses including court staff.

f) Between May 7 and May 21, 2021, due to the same resurgence, all in person trials in the Ontario Court were adjourned at the direction of the Chief Justice. Only virtual trials could continue.

g) Along the way, directly as a result of COVID-19, the Court also imposed mandatory pretrials in some cases, Trial Confirmation Appearances in all cases, and Judge-Led Intensive Case Management Courts.

h) The Crown has not sat on its hands a result of COVID-19. Some cases, particularly drinking and driving offences with low readings and low-level assaults are now routinely offered resolutions involving pleas to provincial offences or peace bonds. These changes were unheard of before COVID. In Pembroke, and in other centres, the Crown has also identified teams of lawyers to review backlogged cases and make generous resolution offers in order to weed them out of the system. [213] There is one line of cases, led by Justice Monahan’s decision in R. v.

Greenidge , that in order to rely on COVID-19 as a discrete event, there must be a direct, identifiable link between the pandemic and the delay.

In Greenidge , Justice Monahan set it out this way: It is my view that in this case, for the Crown to rely on the pandemic as an exceptional circumstance, the Crown must prove on a balance of probabilities that but for the pandemic, earlier dates would have been obtained for this case to have been tried and completed within the 18 month ceiling… [214] A second line of cases, arbitrarily sets a period of time (the consensus seems to be 90 days) as attributable to delay caused by the pandemic. Justice Wright noted the problem with the “specific evidence” requirement in R. v. GS

(2022) ONCJ 427 : Courts are understandably struggling with an evidentiary absence tied to the difficulty in assessing the specific differences in delay caused by the rescheduling of so many matters. But having found that the pandemic is an exceptional circumstance which had an impact on this specific case, in my view it would be an absurd result to then fail to deduct any periods of time on the basis that the Crown has not proven the impact to some level of statistical accuracy. [216] While many of the reported 11(

b) cases come from larger centres, such as Peel, Toronto, or York, delay as a result of COVID- 19 can also have a disproportionate effect on small centres such as Renfrew County.

While larger centres have more volume, the presence of more judges and more court staff (and sometimes more courtrooms) allow them greater flexibility to deal with a problem like that of the backlog imposed by COVID-19. [217] In Renfrew County, where there are only two full-time judges and where retention of court staff has been particularly challenging during the pandemic, we do not have the same flexibility. [218] For example, as I have pointed out, there was a period of delay due to a “closed court”. Prior to COVID, “closed” courts in Renfrew County were much rarer than they are post COVID.

These are the sorts of periods of delay that can arise that do not readily lend themselves to “statistical accuracy” as Justice Wright put it in GS, or be “readily quantifiable” as Justice Goodman stated in Hinterberger . [219] Thus, in some cases, the Court should consider whether COVID-19 explains the otherwise inexplicable. This may be particularly appropriate where the period of delay is just past the 18 months mandated by Jordan. [220] In R. v. LL, Justice Rutherford of this Court dealt with a case where the net delay was 21 months and 13 days.

The Crown argued that four and half months of that delay should be attributable to the defence because the defence failed to elect and dates could not be set. Defence argued that they could not elect without receiving some additional disclosure in the form of occurrence reports. [221] Defence had, earlier in 2021, brought an Application before Justice Akhtar in the Superior Court to obtain the disclosure. The Crown took the position that the records were third party records. [222] In the Superior Court, Justice Akhtar granted the defence application for disclosure.

In the course of doing so, he found that the defence should not have delayed its election in order to obtain the disclosure.

[223] Once the disclosure was obtained, defence elected trial in the Ontario Court and brought a

section 11(

b) application. [224] In the course of hearing that application, Justice Rutherford disagreed with Justice Aktar’s characterization and found that the missing disclosure was “essential disclosure” and the defence were not required to elect until they received it. [225] The Crown then sought to attribute delay to the pandemic. Justice Rutherford ruled: Nobody doubts the pandemic has wreaked havoc on the criminal justice system. At College Park many trials had to be adjourned only to be re-scheduled. However, this is not one of those cases. This case entered the justice system when courts had re-opened.

The realities of the pandemic were very clear. Trial coordination was evolving and coping. Although the trial was set for June 20-24, 2022, I note the Court was in a position to offer earlier dates, namely April and May 2022. Due to the unavailability of the Applicant in April and the unavailability of the Crown in May, these dates were turned down. The fact that a 5-day trial with 3 pre-trial motion dates was offered within 10 months of the set date appearance demonstrates the court was coping with the realities of the pandemic.

As a judge who sits regularly at College Park this timeframe is in line with timeframes pre- pandemic. It also demonstrates that had trial dates been requested much earlier in the pre-trial process, they would have been offered well within the 18-month period set by Jordan , supra. I commend Mr. Linds for trying to secure earlier trial dates to try to mitigate delay. However, these attempts were made in September 2021.

Knowing the Crown was unavailable in May and the defence was unavailable in April it is not reasonable to expect that 5 earlier trial dates could be secured, especially when pre-trial motions had been set for December 2021, January 2022, and February 2022.

In all of the circumstances I am of the view the pandemic played no role in the delay of setting this case down for trial. [226] Because the delay rested at the feet of the Crown and not the Pandemic, Justice Rutherford allowed the application and stayed the charges. [227] The Crown appealed. [228] The Court of Appeal found that Justice Rutherford was, notwithstanding Justice Aktar’s view of the matter, correct in characterizing the missing disclosure as “essential disclosure” and defence was entitled to delay making their election until they received it. [229] The Crown sought to introduce “fresh evidence” with respect to the issue of pre-trial delay.

The Court of Appeal refused the Crown’s application, noting that the statistical information that the Crown sought to introduce was available to the Crown at trial had the Crown chosen to exercise “reasonable diligence” in filing it.

Thus, the Court of Appeal found that it was not in the interests of justice to permit the fresh evidence to be introduced because “[t]his manner of proceeding perpetuates the very problems that Jordan sought to address.” [230] With respect to the issue of pre-trial delay, which the Crown also appealed, the Court of Appeal stated: At the hearing of the application, the Crown chose to convey his own state of knowledge about the impact of the pandemic on the scheduling of trials at that location. He made the vague submission about the “trickle down” effect of the pandemic on trial scheduling.

The application judge drew upon her own knowledge of the culture at the court location where she sits. We see no error in her conclusion that the pandemic had no impact on the scheduling of this case .

The application judge gave careful consideration to this issue. [Bold face emphasis mine; underlining emphasis the Court of Appeal.] [231] To summarize, the current state of the law seems to be that there are two available routes to establishing delay due to the pandemic. [232] First, the Crown may lead statistical evidence to establish delay. [233] Second, in the absence of statistical evidence, the parties may make submissions about the effect of the pandemic on delay and leave it up to the application judge to draw upon her knowledge of the culture at the Court location where she sits.

In essence, the Court of Appeal seems to have recognized that applications’ judges have a “bird’s-eye-view” of how the pandemic has affected delay in their home Courts and that the “bird’s-eye-view” can be sufficient to properly dispose of a

section 11(

b) application one way or another. 81 . If the Crown had asked for a general, 90 day allowance for Covid backlog in this case, I likely would have granted it based on the GS, supra, line of cases. In GS , Wright J. squarely addressed the effect of the Covid 19 pandemic. He explained its impact on the court system as follows: [28] The Respondent submits the impact of COVID-19 on the Courts is an exceptional circumstance that impacted this case.

It does not fit neatly into the general category from Jordan of a “discrete exceptional event” such as an illness, but it is exceptional and is the cause of delay in securing G.S.'s trial date. The Respondent points to the impact of the backlog of cases adjourned due to the cancelling of trials and subsequent limited availability of the Courts. [29] The Applicant argues that COVID-19, while a discrete exceptional event for some cases (such as those whose trial dates were lost due to one of the periods of trial cancellation), is not clearly the cause of delay for G.S.

The Applicant argues there is no evidence that, but for the pandemic, the Applicant would have received an earlier trial date. The Applicant submits COVID-19 as an exceptional circumstance should be limited to those cases where there is a clear connection from a specific COVID-19 impact to the delay in a case. Without evidence that the specific delay the Crown seeks to deduct was caused by the COVID-19 pandemic in this case, that time

cannot be deducted ( R. v. Greenidge , 2021 ONCJ 57 ). [30] In my view, this argument is too narrow a reading of Jordan. It is not “discrete events” that the Crown must establish, but exceptional circumstances. Discrete and exceptional events are but one of the two general categories of exceptional circumstances identified in Jordan. However, the Court was clear that the list of exceptional circumstances is not closed: [69] Exceptional circumstances lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and

(2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon. [70] It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty. It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling.

This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means. The Crown, we emphasize, is not required to show that the steps it took were ultimately successful - rather, just that it took reasonable steps in an attempt to avoid the delay. [71] It is obviously impossible to identify in advance all circumstances that may qualify as “exceptional” for the purposes of adjudicating a s. 11(

b) application. Ultimately, the determination of whether circumstances are “exceptional” will depend on the trial judge's good sense and experience . (my emphasis) The list is not closed. However, in general, exceptional circumstances fall under two categories: discrete events and particularly complex cases. [ 31 ] Numerous Courts have held that the effects of the COVID-19 pandemic constitute exceptional circumstances: R. v. Drummond , 2020 ONSC 5495 , at para. 76 ; R. v. Simmons , 2020 ONSC 7209 , at paras 59-60 ; R. v. Obregon-Castro , 2021 ONSC 1096 , at paras. 38-39 ; R. v.

Robinson , 2021 ONSC 2445 , at para. 101 ; R. v. Khan , 2021 ONCJ 195 , at paras. 3-15 ; R. v. Venne , 2021 ONCJ 80 , at paras. 22-34 ; R. v. Korovchenko , 2022 ONCJ 388 , at para. 103 . [32] In assessing whether G.S.’s case was impacted by the COVID-19 pandemic, this Court is able to take notice of the procedures and processes of the OCJ . . . 82 . His Honour went on to state: [33] The Applicant submits that the pandemic did not affect this case – that the setting of the trial dates occurred after both Court closures, and the scheduled trial dates come after almost full reopening.

The Applicant submits that, in the absence of proof that this case was directly delayed by the pandemic, it is not appropriate to deduct time for COVID-19 as an exceptional circumstance. [34] I disagree. The Applicant’s submission would have COVID-19 treated like a single event impacting a single discrete case or day of Court. It is not a single closure of a Court or a specific lost day. It is an exceptional circumstance that continues to ripple through the Courts. No case is an island — the Applicant would have his case assessed as though no other cases existed. 83 .

I fully endorse this approach taken by Wright J. in GS . Cases cannot be looked at in isolation from all others in the system. To do so denies the reality of the backlog caused by Covid 19. The Coroner’s Inquest 84 . Thirdly, Crown counsel sought to characterize her involvement in a Coroner’s Inquest into a ‘high profile’ case involving the deaths of 3 women murdered in Renfrew County by Basil Borutski on September 22, 2015 7 . 85 . The inquest was scheduled to begin the week of June 6, 2022. It was to last for an estimated three weeks. 86 .

Crown counsel on the K.D. matter was also involved in the prosecution of Basil Borutski for offences involving two of the three deceased women in the years preceding 2015. 87 . One of the objectives of the Inquest was to examine the circumstances leading up to the murders, and whether there were any lessons to be learned. A significant focus of the inquest was to probe Basil Borutski’s prior involvement with the justice system - especially as it related to the murder victims. Crown counsel had direct involvement in, and knowledge of that history. 88 .

Accordingly, Crown counsel was asked by the lawyer representing the interests of the Ministry of the Attorney General at the Inquest to be “available” for consultation during the first and second weeks of the proceeding. 89 . Crown counsel brought an application to adjourn the scheduled trial dates for K.D. of June 10 and 13, 2022. Although defence counsel did not waive any delay that would be caused by Crown counsel’s unavailability on June 10 and June 13, 2022, he did not oppose it. He simply took no position. I granted the application. 90 . The accrued delay from June 10 to June 30, 2022 was 20 days.

Crown counsel’s desire to participate in the Inquest was in the public interest. It was important to every reasonable minded person in Renfrew County, and perhaps all of Canada. 91 . The circumstances under which Crown counsel may become unavailable in order to participate in, for example, an inquest is not a “rare or uncommon event” 8 . Lawyers, for various good reasons, commit to trial dates, and then seek adjournments to deal with more

pressing, urgent or serious matters in either their professional or personal lives. This was such a case. 92 . Indeed, defence counsel indicated that he was “not vehemently opposed” to the Crown’s application for an adjournment. While he did not consent to the adjournment request, he added that “I have every expectation that your Honour will grant the adjournment”. 9 93 . Crown counsel’s unavailability spanned June 10 to June 30, 2022. I find that these 20 days can properly be characterized as a discrete event under the application of Jordan principles. 94 .

Be this as it may, I must, of course, fully respect K.D.’s right to trial within a reasonable time as enshrined by the Charter . Still, it must be tempered in light of the demands the Covid 19 pandemic has brought to bear upon our local justice system 95 . On a considered assessment of what the Crown argues are discrete events, I agree that they did materialize. They amounted to 61 days (i.e. 1 for J.D.’s illness, plus 40, at least, for the pandemic caused delay, plus 20 for Crown counsel’s participation in a Coroner’s inquest). Case Complexity: 96 .

The Crown did not attempt to seek any deduction for the time required to bring K.D.’s trial to its conclusion based on the complexity of the case. Nor should it have. 97 . This was a classic, historic, sexual abuse case involving two complainants. The Court, like in so many other instances, is being called upon to make findings of fact, credibility and reliability based on the totality of the admissible evidence heard at the trial. This is commonplace for a criminal trial court. Resulting Delay: 98 . Total delay in this case stands at 659 days. The defence expressly waived 2 days.

I have calculated defence delay to be 56 days. Discrete events accounted for 61 days. 99 . When I now do the arithmetic, 659 days (total delay) – 2 (waiver) - 56 (defence caused delay) – 61(discrete events) = 540 days. 100 . 18 months translates to 548 days. The presumptive ceiling has therefore not been reached in this case. It is shy of it by 8 days. Onus Shift to the Defence: 101 . Defence counsel did not argue, nor should he have, that this was a case where the rare remedy of a stay should be granted where the presumptive ceiling has not been reached. 102 .

No meaningful steps were taken by the defence to demonstrate a sustained effort to expedite the proceedings. Nor did the case take markedly longer than it should have. 103 . In paragraph 100 of defence counsel’s factum, he pointed out that the trial was estimated and set for seven days. Ultimately, it took 10 days. A microscopic analysis of every second devoted to K.D.’s trial, according to the defence calculation, demonstrated that there was only 22 hours and 45 minutes of evidence heard. 104 .

Assuming a 4.5 hour ‘preside day’ for a judge to deal with all matters on his or her docket, seven days reserved for K.D.’s trial amounts to 31.5 hours. In a perfect world, unaffected by the Covid 19 pandemic, this Court would have dedicated that time to K.D.’s matter. But Covid happened. It was real. It created a backlog of gargantuan proportion in the OCJ in Renfrew County. 105 . Slowly but surely, through the concerted efforts of most justice system participants locally, the backlog is abating. 10 106 . K.D.’s case was not an island. It was one of the many demanding the Court’s attention.

The Court did what it could. 107 . Had defence counsel drawn to the Court’s attention that K.D. was insisting on having his trial completed by April 20, 2022, the date upon which the presumptive ceiling was attained, I have no doubt whatsoever that the Court and the Crown would have made greater efforts to attempt to meet his wish. 108 . To the contrary, it is clear to me that counsel for K.D. had his eye on the ball for when his charges would reach their supposed, ‘drop dead’ date. He was looking to use his

section 11(

b) Charter right as a positive defence. To do so was never the spirit or intent of the accused’s

section 11(

b) right. As explained by Moldaver J in Jordan : [21] At the same time, we recognize that some accused persons who are in fact guilty of their charges are content to see their trials delayed for as long as possible. Indeed, there are incentives for them to remain passive in the face of delay. Accused persons may seek to avoid responsibility for their crimes by embracing delay, in the hope that the case against them will fall apart or they will obtain a stay of proceedings. This operates to the detriment of the public and of the system of justice as a whole.

Section 11(

b) was not intended to be a sword to frustrate the ends of justice ( Morin , at pp. 801-2). 109 . While I accept that there were reasons why defence counsel could not have brought the

section 11(

b) application earlier than he did, given the nature of K.D.’s retainer and the need to seek the approval of Legal Aid Ontario to order transcripts of the proceedings, I

find that he could have and should have said more about the intention to bring an 11(

b) application before he agreed to seven days of trial in April 2022. On May 21, 2021, he accepted those dates. Further, on June 15, 2021, he was specifically informed that April 19, 20, 21 would be the first three dates reserved for K.D.’s trial. If he was so incensed with those dates being set that far into the future, he ought to have said so unequivocally, forcefully and loudly. That is the type of rancor I expect defence counsel to raise when asserting the s. 11(

b) Charter right of a client. They are not to sit on their hands or lay in the weeds. 110 . Instead, in this case on June 15, 2021, defence counsel stood mute regarding the proximity of the conclusion date for the trial to the presumptive ceiling. In my view, he ought to have spoken up. He did not. 111 . This Court definitely would have done more to bring the trial to its conclusion, if properly placed on notice, that K.D. was insisting on strict adherence to the 18 month presumptive ceiling. Unfortunately, the Court received no clear warning the time allotted for completing the trial was taking too long. 112 .

In B.D ., Monahan J. spoke of the obligation on the defence to make known “in a timely way” the intention to bring a s. 11(

b) Charter application when he wrote: [45] . . . in the case at bar, the defence waited just over four months to clearly tell the Crown that they were going to bring a s.11(

b) application. In the recent Supreme Court of Canada case of R. v. J.F. 2022 SCC 17 , the Supreme Court held that an accused person who considers that their s.11(

b) rights are n

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