R. v. Scott, 2023 ONCJ 372

ONTARIO COURT OF JUSTICE CITATION: R. v. Scott , 2023 ONCJ 372 DATE: 2023 08 25 COURT FILE No.: Windsor 21-1379 BETWEEN: HIS MAJESTY THE KING Respondent — AND — JOSIAH SHAKEEM SCOTT Applicant Before Justice C. Uwagboe Heard on April 12 and June 14, 2023 Reasons for Judgment released on August 25, 2023 Jennifer S. Rooke.................................................. Counsel for the Federal Crown, PPSC Patricia S. Brown.......................................................................... Counsel for the Applicant Uwagboe J.: RULING ON APPLICATION PURSUANT TO S. 11(

b) and 24(1) OF THE CHARTER OF RIGHTS AND FREEDOMS [ 1 ] The Applicant applies for stay of proceedings pursuant to section 24(1) of the Charter of Rights and Freedoms, [1] asserting that his right to be tried within a reasonable time, as enshrined in s.11(

b) of the Charter , has been infringed. Background [ 2 ] This case commenced with two (2) co-accused, Josiah Shakeem Scott (the Applicant) and Rachan McLean, both charged in relation to a warrant executed on August 17, 2021 on a motor vehicle and motel room. Both applicants were released on August 18, 2021 and provided with a return date of September 27, 2021. [ 3 ] The co-accused were charged in relation to 3 counts under the Controlled Drugs and Substances Act [2] .

(1) Possession of a

Schedule I substance, namely methamphetamine, for the purpose of trafficking contrary to s. 5(2) of the CDSA;

(2) Possession of a

Schedule I substance, namely fentanyl, for the purpose of trafficking contrary to s. 5(2) of the CDSA ; and

(3) Possession of a

Schedule I substance, namely cocaine, contrary to s. 4(1) of the CDSA . [ 4 ] The manner with which the co-accused prosecution was managed, and the availability of, and actions taken by the co-accused parties, is central to the dispute on this Application. [ 5 ] The parties agree that the time from the swearing of the information on August 18, 2021, to the anticipated conclusion of the trial on October 31, 2023, is the time period for this Court to assess.

This time period equates to 804 days or 26 months 13 days. [ 6 ] The parties agree that the Jordan date was February 18, 2023. [ 7 ] The parties also agree that there are no exceptional circumstances or complexity for the Court to assess in determining the delay in this case. [ 8 ] The parties disagree on the issues related to disclosure, date setting, and delay as it relates to co-accused parties. Brief

Summary of Litigation History [ 9 ] Some of the dates that are relevant to this analysis are as follows:

(1) August 17, 2021 – Arrest of the Applicant.

(2) August 18, 2021 – Information is sworn.

(3) September 27, 2021 – First appearance (no counsel retained).

(4) November 01, 2021 – Applicant confirms counsel on the record.

(5) November 29, 2021 – Applicant conducts Crown pre-trial.

(6) November 30, 2021 – Applicant confirms judicial pre-trial for June 5, 2021.

(7) June 5, 2021 – Judicial pre-trial does not proceed, co-accused McLean no counsel.

(8) Feb 2, 2021 – Co-accused McLean confirmed counsel.

(9) Feb 7, 2022 – Applicant request for outstanding disclosure.

(10) April 11, 2022 – Confirmation of counsel for Mr. McLean – to set judicial pre-trial.

(11) April 25, 2022 – Parties agree that a joint judicial pre-trial is required.

(12) May 9, 2022 – Joint judicial pre-trial confirmed on the record for June 13, 2022.

(13) June 9, 2022 – Mr. McLean’s counsel advised not available for judicial pre-trial.

(14) June 27, 2022 – New joint judicial pre-trial confirmed for July 22, 2022.

(15) July 22, 2022 – Judicial pre-trial incomplete – issues surrounding RPC of McLean.

(16) Aug 08, 2022 – Court tasks the Crown to respond to disclosure issue for the Applicant and RPC issue for Mr. McLean stating, “we’re waiting for the Crown on those.” [3] .

(17) August 22, 2022 – Crown stays the charges against the co-accused Mr. McLean and requests more time to resolve the outstanding disclosure issue.

(18) September 12, 2022 – Crown confirms that the disclosure does not exist and the matter is adjourned for a judicial pre-trial, for the Applicant alone, to take place on September 28, 2022.

(19) September 28, 2022 – Judicial pre-trial held for the Applicant.

(20) October 17, 2022 – matter adjourned for the Applicant to submit forms to set date for trial.

(21) October 31, 2022 – The Applicant adjourned again to set date for trial.

(22) November 1, 2022 – Trial dates are set.

(23) November 7, 2022 – Dates for trial are confirmed on the record: - March 31, 2023 – 11(

b) Application; - August 25, 2023 – Trial Day 1; - October 27, 2023 – Trial Day 2; and - October 31, 2023 – Trial Day 3

Position of the Parties [ 10 ] The Applicant claims that the Respondent has failed to bring the Applicant to trial within a reasonable time. In support of this assertion, the Applicant submits that the Respondent failed to manage the prosecution of the co-accused parties effectively through the court process - particularly early on with the failure to assess of the reasonable prospect of conviction of Mr. McLean. That the Respondent bound the Applicant to a co-accused prosecution when the Applicant was prepared to proceed to trial much earlier in the process. That the Respondent was generally complacent with respect to the 11(

b) rights of the Applicant including failing to respond to a significant disclosure request in a timely fashion. The Applicant further submits that this matter is not complex, there were no express waivers made by the Applicant and that there were no exceptional circumstances that impacted the delay in this case. [ 11 ] The Respondent agrees that there were no express waivers, that the matter was not complex and does not allege any exceptional circumstances are applicable to the assessment of time in this case. The Respondent submits that the delay caused should be analyzed communally. That the Applicant and Mr.

McLean did not take meaningful steps to answer to the charges in a timely fashion. Further, the Respondent submits that the Applicant failed to take steps to expedite date setting of this matter and that counsel for the Applicant was perpetually unavailable.

The Applicant’s lack of availability, when the Crown and Court were, and general lack of urgency in setting dates was central to the delay in this case resulting in delay below the presumptive ceiling. [ 12 ] For the reasons that follow, I cannot agree with the Respondent’s submission that it was the actions of the Applicant that led to the delay in this case. That position is not grounded in the factual history of this case, nor is it supported by the law applicable to this matter.

On the evidentiary record before me, it is clear that the Respondent abdicated its responsibility to marshal this matter through the court process efficiently. The Respondent took no steps to move the matter forward for months while the Applicant was the only party present, with retained counsel, having conducted a judicial pre-trial within 6 months of the laying of the charge. The Respondent was not diligent in responding to the Applicant’s request for disclosure and failed to properly assess its case, as a whole, within a reasonable timeframe.

As a result, I find that the Applicant’s right to be tried within a reasonable time has been breached. Legal Framework and Analysis [ 13 ] The Applicant’s right to a trial within a reasonable time is guaranteed by s. 11(

b) of the Charter . The Supreme Court modernized the framework for dealing with unreasonable delay in its seminal decision, R. v. Jordan . [4] There, the Court established ceilings for delay – namely 18 months for provincial court matters, 30 months for federal court matters. Ultimately, if the total delay from the date the Information was sworn to the actual or anticipated end of the trial, minus any defence delay, exceeds the ceiling, then the delay is presumptively unreasonable.

To rebut the presumption, the Crown must establish that exceptional circumstances exist barring which the delay is unreasonable and the matter is stayed. Conversely, if the total delay, minus the defence delay or any period attributable to exceptional circumstances falls below the presumptive ceiling, the onus falls to the Applicant to establish that the delay is nevertheless unreasonable. Such cases, however, will rarely result in a stay of proceedings. [ 14 ] The following analytical steps, summarized by our Court of Appeal in R. v.

Coulter , [5] are to be taken in applying the Jordan framework: (1) calculate the total delay, which is the period from the laying of the charge to the actual or anticipated end of trial – that is, the end of evidence and argument; (2) subtract defence delay, including delay that is waived, from the total delay, which results in the “Net Delay”; (3) compare the Net Delay to the presumptive ceiling; (4) if the Net Delay exceeds the presumptive ceiling, the Crown must establish the presence of exceptional circumstances, otherwise a stay will follow.

Exceptional circumstances fall under two categories: discrete events and particularly complex cases; (5) subtract delay caused by discrete events from the Net Delay (leaving the “Remaining Delay”); (6) if the Remaining Delay exceeds the presumptive ceiling, the Court must consider whether the case was particularly complex, such that the time the case has taken is justified and the delay is reasonable; and (7) if the Remaining Delay falls below the presumptive ceiling, the onus is on the applicant to show that the delay is unreasonable. [6] [ 15 ] Delay that may be subtracted at the outset from the total delay consists of two components:

(1) Periods of clear and unequivocal waiver (implicit or explicit);

(2) Periods of defence caused delay – where the actions of the accused directly caused the delay or where the actions of the accused are shown to be deliberate and calculated tactics to be used to delay the trial. [7] Jordan Timeframe [ 16 ] The parties agree that the time to be assessed in this case commenced on August 18, 2021, when the information was sworn. That time runs from the swearing of the information to the anticipated end of the trial. [8] There are 804 days or 26 months 13 days to be assessed between August 18, 2021 to October 31, 2023. The parties further agree that the date for the Jordan ceiling in this case was February 18, 2023. Disclosure

[ 17 ] The delivery of disclosure in this case is relatively unremarkable save for the disclosure requests made by the Applicant on the record on February 7, 2022 and August 8, 2022. The Applicant submits that the request was not frivolous and was directly related to issues that later arose regarding the reasonable prospect of conviction of the co-accused Mr. McLean. [ 18 ] The Respondent agreed to facilitate the requests for disclosure and in fact adjourned the matter again on August 22, 2022, to “sort out the disclosure issue” [9] as it related to the Applicant.

It is of note that this was the date that the Respondent stayed the charges against the co-accused McLean. [ 19 ] It is unclear from the record whether the request for disclosure on February 7, 2022, is for the same item of disclosure as the request made on the record on August 8, 2022. It is important to note that the Respondent did not object to either request or suggest that the request for disclosure was without merit. Ultimately, the Respondent advised the Court on September 12, 2022, that the disclosure of a video would not be provided because it did not exist.

The parties were tasked with setting an administrative judicial pre-trial now that only the Applicant remained on the information, which was not the case at the judicial pre-trial held, but not completed, on July 22, 2022 for both co-accused. I will discuss that issue more in a moment. [ 20 ] The matter was before the Court for one (1) year, three (3) weeks, four (4) days by September 12 when the disclosure issue was settled. This Court cannot find on the record that the requests for disclosure on February 7, 2022 and August 8, 2022, were for the same items.

However, this Court can find the request for disclosure was not objected to as frivolous at any point. Moreover, following the request for the surveillance arising from the judicial pre-trial on July 22, 2022, the Respondent submits that “follow up” was done with some officers, relating to inconsistencies, that ultimately led to the decision to narrow the scope of the prosecution and stay the charges against Mr. McLean.

This Court was not assisted more by the submission of the Respondent on this point as the Respondent conceded to not having a “fulsome answer” on what led to the decision to narrow the prosecution and why it occurred so late in the prosecution of this matter. [ 21 ] What is clear from the events that transpired following the judicial pre-trial on July 22, 2022, and the accompanying request for disclosure, is that the Respondent was not prepared to proceed to trial at that time. Waiver [ 22 ] The parties agree that there was no explicit waiver on the part of the Applicant, and I agree with their assessment.

Defence Delay – Appearances [ 23 ] The Applicant submits that the Applicant took all available steps possible to move the matter forward early on. The Applicant submits that they were able to secure counsel, have a Crown pre-trial, and conduct a judicial pre-trial all within the first 6 months of this matter. The significant impediment in the Applicant’s ability to proceed is directly related to the conduct of the co-accused Mr. McLean. The Applicant further submits that the Respondent failed to properly manage this case and took no action to mitigate the delay caused by the inaction of Mr. McLean.

Any delay caused by the unavailability of counsel still results in delay above the Jordan ceiling. [ 24 ] The Respondent submits that the Applicant and Mr. McLean share in the delay occasioned in this case equally as co-accused. Moreover, the Respondent submits that this trial could have concluded at a much earlier date, specifically March 2 nd ,2023, if it were not for the perpetual unavailability of counsel. The Respondent further submits that the lack of diligence on the part of the Applicant in advancing their 11(

b) rights and taking meaningful steps to bring this matter to trial led to the delay in this case. [ 25 ] I disagree with the submissions advanced by the Respondent. It fails to take into account the obligation that the Respondent had to advance the prosecution of this case with a view to preserving the 11(

b) rights of the Applicant, prior to breaching the Jordan ceiling. [10] Further, it fails to take into account the significant events in these proceedings that ought to have reminded the Respondent of this obligation. A review of the record in this case demonstrates a complete abdication of responsibility on the part of the Respondent to manage this prosecution. There were several appearances that were marred by the inactivity of the unrepresented co-accused or the unavailability to Mr. McLean’s counsel to participate.

It is noteworthy that the Applicant held his judicial pre-trial by January 5, 2022, prior to the co-accused, Mr. McLean, confirming counsel on the record. The submission that the Applicant was not proactive in moving this matter forward has nothing to do with the reality of this case. That said, the issue of the unavailability of the Applicant’s counsel is relevant and warrants further review. [ 26 ] As stated in R. v.

Florence , “it must be remembered that the onus rests on the Crown to ensure that a matter proceed expeditiously to trial.” [11] Crown counsel should be “ motivated to act proactively throughout the proceedings to preserve its ability to justify a delay that exceeds the ceiling.” [12] Efforts should be undertaken by all parties to remedy delay prior to the ceiling being breached. [ 27 ] It is incumbent on the Crown to continually assess its case at each stage to determine whether “the decision to proceed jointly remains in the best interests of justice.” [13] In making this assessment “there may come a time where the interests of justice are no longer served by proceeding jointly, including where s. 11(

b) rights are in jeopardy.” [14] [ 28 ] The assessment of s. 11(

b) applications where there are multiple co-accused is not about scrutinizing prosecutorial decision making. The Court of Appeal in R. v. Nguyen stated the following: “…decisions about how to proceed, against whom, upon what charges, and on what evidence, for that matter, whether or when to do so or withdraw charges, are contingent upon independent circumstances and factors far removed from the knowledge of presiding judges. Courts should be hesitant to scrutinize the Crown’s decisions absent clear reason to do so…” [15] [ 29 ] When dealing with co-accused parties, severance is not necessarily the solution in each case to avoid 11(

b) concerns. The Court in R. v. Singh relied on the proposition that “to suggest severance as a simple solution ignores the very real cost to the Crown and the public involved in prosecuting separate actions.” [16]

[ 30 ] The Court of Appeal in R. v. Manasseri contemplated delay as it relates to co-accused and set out the importance of being mindful of the individual rights of the co-accused parties citing R. v. Vassell : “Where the proceedings are a joint trial, delay caused by a co-accused cannot be ignored in assessing whether an individual accused’s right to be tried within a reasonable time has been breached: [ Vassell , at para. 4]. Where the Crown, as here, chooses to prosecute both accused jointly, it must remain vigilant that its decision to proceed jointly does not compromise the s. 11(

b) rights of an individual accused: [ Vassell , at para. 5]. The Crown is disentitled to close its eyes to the circumstances of an accused who has done everything possible to move a case along, only to be held hostage by his or her co-accused and the inability of the system to provide earlier dates: [ Vassell , at para. 7] . Sometimes, the Crown may have to sever accused jointly tried to vindicate the s. 11(

b) interests of one burdened down by another for whom trial within a reasonable time seems anathema: [ Vassell , at para. 10] .” [17] [ 31 ] On the record before this Court, the Applicant was diligent in proceeding through his judicial pre-trial on January 5, 2022, which he attended without his co-accused, Mr. McLean, as he did not appear and was not represented by counsel.

A period of one-hundred- forty (140) days or 4 months, 2 weeks, 4 days from the swearing of the information. [ 32 ] The co-accused did not confirm counsel until February 2, 2022, and his counsel was able to conduct a Crown pre-trial on April 8, 2022, just over three (3) months after the Applicant completed his judicial pre-trial and almost eight (8) months after the swearing of the information. It is noteworthy that Mr.

McLean continued to appear on discretionary bench warrant status throughout the life of his entire matter with his counsel never filing a designation with the Court. [ 33 ] Two adjournments took place to set another judicial pre-trial to include Mr. McLean in the process (April 11, 2022 - April 25, 2022 and April 25, 2022 – May 9, 2022). On April 25, 2022, it was disclosed to the Court that Mr. McLean was in custody in Northern Ontario. [18] The Applicant advised the Court that they were ready to proceed but for the actions of the co-accused.

The Respondent, in referencing the notes from Justice Murphy, from the pre-trial held just over three (3) months prior, that a pre-trial with both accused was necessary. The exchange between counsel went as follows: Ms. Brown: “Okay. What is needed, Your Worship, is a joint judicial pre-trial because we’re ready to proceed and set the matter down, but we need to have a judicial pre-trial with all parties.” The Court: “Okay.” Ms. Brown: “I don’t know if my friend raised that when Mr. Gupta was addressing Mr. McLean’s matters.” Ms. Szasz: “I did not. I apologize, Ms. Brown.

I’m just looking at the judicial pre-trial notes from Justice Murphy. Thank you. I agree that this definitely needs a pre-trial with both individuals to be fruitful.” Ms. Brown: “Right and your Worship, just so you know by way of background those were the exact sentiments of Her Honour Justice Murphy when we tried before Her Honour to have the judicial pre-trial to move Josiah Scott’s matters forward. So now I’m met with Mr. McLean’s counsel wanting to speak to the matter on May 9 th , which is a further unnecessary adjournment.

So we will join on that day in hopes that a joint judicial pre-trial can be rescheduled or excuse me, scheduled, before Her Honour Justice Murphy for pre-trial continuation please.” [19] [ 34 ] It is apparent that to this point, the Respondent was prepared to continue to take no action to preserve the 11(

b) rights of the Applicant. The urgency in proceeding for the Applicant was clear and placed on the record. Protocol required that the parties proceed jointly to a judicial pre-trial effectively leaving the Applicant to be held hostage by his co-accused. [ 35 ] The Applicant received no reprieve from these circumstances when the joint judicial pre-trial, scheduled for June 13, 2022, was cancelled at the 11 th hour on June 9, 2022 due to the unavailability of Mr.

McLean’s counsel, and the judicial pre-trial had to be re- scheduled to July 22, 2022 – six (6) months, 2 weeks, 3 days from the date that the Applicant attended for his judicial pre-trial and eleven (11) months, four (4) days from the swearing of the information. Again, no action was taken by the Respondent in managing this co-accused prosecution. [ 36 ] On July 22, 2022, the judicial pre-trial was held. A disclosure request was made on the part of the Applicant related to surveillance and the issue of the reasonable prospect of conviction against the co-accused, Mr. McLean, was raised.

The judicial pre-trial did not conclude in order to allow the Respondent to resolve these two issues which were not frivolous given the actions of the Respondent and the events that transpired next. [ 37 ] At the next court appearance on August 8, 2022, both accused parties left with the impression that the prosecution would cease against Mr. McLean, pending review by the Respondent. The only person that did not appear to understand what was happening with the matter was the agent for the Respondent.

The Court made it clear that it was the Respondent that was holding up the process: The Court: “There’s outstanding disclosure. So can we mark that there’s outstanding disclosure for Scott and Crown’s position for McLean, when can you have an answer regarding those two questions? Just write those two things down, the Crown needs to answer those two questions when we come back to case management court. Can you have that answer by one week or two weeks from now?” Mr. Bazzi: “Two weeks, Your Worship.” [ 38 ] Parenthetically, by the next appearance on August 22, 2022, the charges against the co-accused, Mr.

McLean, were stayed. The Respondent then requested a further 2 weeks to “sort out the disclosure issue” [20] as it related to the Applicant. [ 39 ] By August 22, 2022, when the Respondent altered the scope of its case, this matter was before the Court for one (1) year, four (4) days or three-hundred sixty-nine (369) days . The responsibility for the Respondent to continuously assess its case for RPC is well established. On the record before me, it is clear that the Respondent made no effort to properly assess its case prior to this point in time. The determination to stay Mr.

McLean’s charges was not the result of new disclosure. Ultimately it was determined that the requested

surveillance disclosure did not exist on September 12, 2022. A new judicial pre-trial was sought as a result of the new parameters of this case. [ 40 ] It is the Crown’s prerogative as to how to proceed. That does not preclude this Court from assessing how those determinations impacted the individual 11(

b) rights of the Applicant in this case. [ 41 ] It was clearly the Respondent that was in control of how this matter could proceed in relation to the co-accused. The Respondent’s failure to exercise that control led to the delay in this case. [ 42 ] The Respondent submits that the Applicant is responsible for some one hundred twenty (120) days of delay from April 11, 2022 – August 8, 2022. The Respondent largely submits that the co-accused parties collectively failed to act proactively in protecting their 11(

b) interests. All of the conduct relied on for this submission is directly related to the conduct of Mr. McLean, whom the Respondent stayed the charges against, and now seeks to foist his conduct upon the Applicant as “Defence delay.” [ 43 ] I disagree with this submission. The delay caused by Mr. McLean, on the record before this Court, cannot be attributed to the Applicant. Especially when it was the Respondent that was in the ultimate control of these circumstances and had the power to control the delay caused by Mr. McLean before it became as protracted as it did. The Court of Appeal in R. v.

Gopie addressed this issue facing a similar argument: “I do not agree with the Crown that delay by one accused should be attributed to all. Rather, an individualized approach must be taken to the attribution of defence-caused delay in cases of jointly-charged accused. This conclusion flows from Jordan and the weight of the jurisprudence.” [21] [ 44 ] Justice Munroe, of the Superior Court of Justice, in R. v. Hanan , a similar circumstance of Crown discretion, put it quite succinctly in stating that “the delay beyond the ceiling did not need to happen. It was not unavoidable.

It was not beyond the control of the Crown.” [22] [ 45 ] The matters before this Court are similar to the circumstances before the Court in R. v. Gyamfy [23] , where Justice Pollock wrote: “ Ultimately, the co-accused’s matter went to warrant in December of 2021. Those months were wasted. The Applicant was simply waiting for the co-accused to move things forward and indicated their preparedness to proceed. The Crown could have made a decision to sever the accused. There was also the option of moving the matter along for the Applicant and engaging in pre-trial and date setting discussions.

This is not a case where delay is justified due to complexity of the case in co-accused proceedings. The delay could have been remedied by the Crown. The Crown was obliged to assess whether the decision to proceed jointly remained in the best interests of justice. The Crown was clearly alive to the jeopardy of the Applicant’s

section 11(

b) rights. That should have been a reason for a determination that the interests of justice were no longer met by proceeding jointly against these two (2) accused persons.” [24] [ 46 ] This Court finds, as a fact, that the Respondent was not prepared to proceed to trial, on the case before this Court, at any time prior to the judicial pre-trial that was held for the Applicant alone, on September 28, 2022, before Justice Skowronski. A period of one (1) year, one (1) month, one (1) week, three (3) days or four hundred-six (406) days .

Defence Delay – Date Setting [ 47 ] Following the judicial pre-trial on September 28, 2022, the Applicant failed to submit the forms for date setting to occur in a timely fashion. Two appearances passed to allow for this process to take place. Dates were ultimately selected on November 1, 2022. [ 48 ] The period of time from the judicial pre-trial on September 28, 2022, to the ultimate setting the dates on November 1, 2022 is a period of one (1) month, four (4) days or thirty-four (34) days .

This period of delay is attributable to the Applicant as defence delay. [ 49 ] There were several dates that the defence was not available for trial. The Applicant submits that even if the first of those dates were selected, the Jordan ceiling would still have been breached as trial dates were not available prior to May 2, 2023. [ 50 ] The Respondent essentially submits that the Applicant is responsible tor the balance of the time in this matter form September 12, 2022 – November 7, 2022 and then from March 2, 2023 – October 31, 2023.

A total of two hundred ninety-nine (299) days or nine (9) months, three (3) weeks, five (5) days . [ 51 ] Although the Respondent made a few concessions in submissions, including the entire period of the trial itself, I cannot accept the Respondent’s overall approach to the assessment of defence delay in this matter. The Respondent attempts to paint a bright line where, on the initial unavailability of the Applicant for the first available date, all subsequent delay falls at the feet of the Applicant. This position has no grounding in law and was addressed by the Supreme Court in its decision of R. v.

Hanan : “Like the majority and the dissent below, we reject the Crown’s proposed “bright-line” rule according to which all of the delay until the next available date following defence counsel’s rejection of a date offered by the court must be characterized as defence 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 this Court’s understanding of defence delay. Defence delay comprises “delays caused solely or directly by the defence’s conduct” or “delays waived by the defence” ( Jordan , at para. 66 ).

Furthermore, “periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable” (para. 64). All relevant circumstances should be considered to determine how delay should be apportioned among the participants ( R. v. Boulanger , 2022 SCC 2 , at para. 8 ).

We share the view of the majority and dissenting judges in the Court of Appeal that, in the circumstances of this case, it is unfair and unreasonable to characterize the entire period between June and October 2019 as defence delay (paras. 59 and 136).” [25] [ 52 ] The setting of the motion for 11(

b) did not impact the trial date as the parties agree that the first available date for trial for the Court was not until May 2, 2023.

[ 53 ] In assessing the Applicable defence delay in date setting I find as follows;

(1) As mentioned above, the period of delay in submitting the forms from September 28, 2022 – November 1, 2022 (when the date was set) totals thirty four (34) days of defence delay;

(2) The Applicant was not available for the initial date proposed for trial on May 2, 2023 and was perpetually unavailable for the additional 4 dates proposed throughout the month. The time from May 2 – 31, 2023, a period of thirty (30) days , will be deducted as defence delay;

(3) The Court was only available for two days from June through July 2023. The Applicant was not available for either date. A period of two (2) days will be deducted as defence delay;

(4) The Court was only available for two days in August 2023. Both the Respondent and the Applicant were unavailable for the first date available. The Applicant was not available on the second available day. A period of one (1) day will be deducted as defence delay;

(5) The Court was available for six days throughout the month of September 2023. The Applicant was not available for any of them. A period of thirty (30) days will be deduced as defence delay;

(6) The Court was available from October 2 – 26, 2023. The Applicant was not available. A period of twenty four (24) days will be deducted as defence delay; and

(7) The Court was available for October 27, 2023, however, both the Applicant and the Respondent were not available. The Court was again available on October 30, 2023 and the Applicant was not available. A period of one (1) day will be deducted as defence delay. [ 54 ] I find that a period of one hundred twenty two (122) days or four (4) months , will be deducted as defence delay. Net Delay [ 55 ] The total Jordan delay in this case is eight hundred four (804) days or two (2) years, two (2) months, one (1) week, six (6) days . The defence delay is one hundred twenty two (122) days or four (4) months .

The net delay in this case is six hundred twenty two (622) days or one (1) year, eight (8) months, two (2) weeks . [ 56 ] Given that the net delay still exceeds the presumptive ceiling of 18 months, the Crown now bears the burden of rebutting the presumption of unreasonableness by establishing exceptional circumstances. [26] Exceptional Circumstances [ 57 ] The Respondent does not rely on exceptional circumstances and the parties agree that the matter was not complex. This Court finds no exceptional circumstances are applicable to this case.

Total Remaining Delay [ 58 ] The total remaining delay is above the presumptive ceiling, of 18 months, by two (2) months, two (2) weeks . Therefore, based on the Jordan framework, the remaining delay is presumptively unreasonable and the Applicant’s 11(

b) rights have been breached. Remedy [ 59 ] The remedy for a breach of s.11(

b) rights is a stay. Conclusion [ 60 ] As a result, the Applicant’s charges before the Court will be stayed pursuant to s. 24(1) of the Charter . Released: August 25, 2023 (Original Signed by Justice C. Uwagboe) Signed: Justice C. Uwagboe