R. v. A.R.A., 2023 ONCJ 419

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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. ONTARIO COURT OF JUSTICE CITATION: R. v. A.R.A., 2023 ONCJ 419 DATE: 2023 09 13 COURT FILE No.: Toronto 4810-998-21-45001923-00 BETWEEN: HIS MAJESTY THE KING — AND — A.R.A. Before Justice Christine Mainville Heard on August 17, 2023

Reasons for Judgment on ss. 11(

b) and 24(1) of the Charter, released on September 13, 2023 Paul M. Alexander.............................................................................. counsel for the Crown Sourena Sarbazevatan................................................................ counsel for the accused Mainville J.: [ 1 ] Mr. A. is charged with sexual interference, sexual exploitation, sexual assault and invitation to sexual touching in respect of his two nieces, who are also sisters.

Given that the sisters have the same initials, I will refer to them respectively as the elder and younger sister. [ 2 ] The three-day trial in this matter was first scheduled to begin on December 19, 2022. As a result of the younger sister being ill, the trial was adjourned almost four months to April 18, 2023, and began before me on that date. [ 3 ] The eldest sister was avoiding the court process and was deemed unavailable to testify by the Crown, who brought an application to have her police statement admitted under the principled exception to the hearsay rule.

I heard evidence and submissions on this application within the time initially set for trial. However, on the eve of the third and final day of trial, the eldest sister conveyed that she was prepared to testify. She was, however, unavailable on this final day of trial, and the Crown brought a motion to adjourn the trial to allow its previously-unavailable witness to testify. I granted that motion. [ 4 ] Trial continuation dates were set for May 10 and 11, 2023.

An additional day was scheduled due to the time lost addressing the hearsay application and to allow for closing submissions. [ 5 ] This trial estimate proved insufficient. Following the eldest sister’s testimony, the accused and another witness called by the defence took the stand. The trial continued on June 14, 2023. At that time, the court may have had time to hear closing submissions and the trial could have concluded on this date. [ 6 ] However, following the adjournment of the trial in May, the defence filed an application for a stay of proceedings due to unreasonable delay.

The Crown did not have time to respond prior to the June date. As a result, the parties agreed to adjourn both the delay application and closing submissions to a later date. These were heard on August 17, 2023. Total Delay [ 7 ] In R. v. Jordan , 2016 SCC 27 , the Supreme Court of Canada set a ceiling of 18 months for trials in the Ontario Court of Justice beyond which delay will be presumptively unreasonable. [ 8 ] The first step in the Jordan analysis is to calculate the total delay from the time of charge to the end of trial. Mr. A. has been charged since June 14, 2021.

His trial concluded on August 17, 2023, over two years later. [ 9 ] However, the final day of evidence was on June 14, 2023. In its factum, the defence rightly calculated the total delay as ending on that day.

Given the agreement of both parties to defer closing submissions to a later date, only because of the need to set a further date for the hearing of the delay application, this final period of delay should not count towards the total delay given that the trial could have ended on June 14, but for the parties’ agreement. [ 10 ] The defence did submit that in the absence of a delay application, it would have nevertheless requested additional time to prepare final submissions. In my view, had that occurred, the resulting delay would still not have counted towards the Jordan delay in this case.

Understandably, the defence might wish to have more time to improve their submissions. Such requests should generally be granted. But it should not generally result in a complaint about the resulting delay. Further, if the parties don’t anticipate being in a position to make closing submissions immediately following the close of the evidence, that ought to be identified at the earliest opportunity to avoid unnecessary delay. In this case, when the matter was adjourned to June 14, 2023, both parties anticipated concluding the accused’s evidence and making submissions that same day.

At no time did defence counsel request a further date for submissions. [ 11 ] If I am wrong and there would have been insufficient time to complete closing submissions on June 14, 2023, then that would be the result of an inaccurate estimate of the time required to complete the trial. I address below how the Jordan framework contends with the tribulations of trial, which included, in this case, the defence deciding very late in the day to call a second witness, its tardiness on the first day of trial, as well as technical issues.

Ultimately, and in the circumstances of how this case unfolded, I do not consider them to count towards the 11(

b) delay. [ 12 ] I therefore calculate the total delay as ending on June 14, 2023. Net Delay [ 13 ] The next step is to deduct defence-caused delay. The resulting net delay must then be compared to the presumptive ceiling of 18 months. If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. [ 14 ] The Crown urges me to find that over two months of delay was defence-caused delay, due to the defence’s failure to express any

concerns regarding the initial December trial dates at the time of the “second event Judicial Pretrial” in October of 2022. It argues that, had it done so, the Crown would have been put on notice to see what earlier dates might become available. At that time, the total delay to the initially-scheduled trial dates was set to be just seven days over the 18-month Jordan ceiling. [ 15 ] While all participants have a duty to avoid complacency and move matters forward, I cannot conclude that the defence’s failure to raise 11(

b) concerns prior to the first set of trial dates amounts to illegitimate conduct or delay caused solely by the defence. The Supreme Court in R. v. J.F. , 2022 SCC 17 , at paragraph 44 , made clear that waiver of delay cannot be inferred solely from an accused’s silence or failure to act. An accused must take some direct action from which a consent to delay can be properly inferred. That is not the case here. [ 16 ] The Crown at all times has as much if not more of a duty to expedite trial matters. As set out below, up until the time when trial dates were set, this matter proceeded in a timely way.

It is clear that in this instance, institutional delay was to blame for exceeding the Jordan ceiling, albeit only by one week. [ 17 ] Indeed, following the laying of the charge and the accused’s release from custody, the Crown promptly made disclosure and the defence scheduled Crown and judicial pretrials in short order. As the Crown concedes, at each court appearance, a new milestone had been reached. After the judicial pretrial that followed the third appearance, the matter was adjourned to set trial dates. By the fifth appearance of December 7, 2021, trial dates were put on the record.

These dates were over a year later, beginning on December 19, 2021. [ 18 ] In all the circumstances, I cannot find the defence responsible for any of the delay that occurred in this case. [ 19 ] The matter rather turns on discrete events and exceptional circumstances, which the Crown submits bring the total delay down to 17 months and 23 days. I agree. Exceptional Circumstances [ 20 ] To rebut the presumption of unreasonable delay, the Crown must establish the presence of exceptional circumstances. Exceptional circumstances generally fall under two categories: discrete events and particularly complex cases.

If it cannot rebut the presumption, a stay will follow: Jordan , at paras. 47 and 71 . [ 21 ] The exceptional circumstances in this case can be divided into three main periods of delay.

(1) Adjournment of first trial: Witness illness (4 months) [ 22 ] The first adjournment was caused by the illness of one of the two main complainants. Indeed, the younger sister was ill with COVID-19. The trial was adjourned for a day to see whether she might feel better as she had been under the weather for several days and the nature of the illness was not known at that time.

She was still ill the next day. [ 23 ] It appears that the trial did not begin with the testimony of the eldest sister because she had not been in communication with the prosecution over the preceding days as it tried to arrange a pre-trial preparation meeting. The Crown indicated on the record that should the younger sister be feeling better the following day, and the Crown had to proceed with just the one witness, it would do so.

In other words, it contemplated at this time only calling the younger sister to testify, given the possible loss of communication with the eldest sister. [ 24 ] Given that the younger sister was not well enough to testify on the return date, new dates were obtained for April 18, 19 and 21, 2023, approximately four months later. [ 25 ] The defence concedes this period of delay amounts to a discrete event. [ 26 ] The Supreme Court of Canada has explicitly cited the illness of a trial participant as an example of a discrete event outside the control of either the Crown or court: Jordan , at paras. 72 and 195 . [ 27 ] I find that the matter was appropriately prioritized and that the four-month delay to find three new trial dates was not inordinate or unreasonable in the circumstances.

As the Crown indicated on the record when the trial was adjourned, four months was “significantly shorter than we would have had scheduling a new trial of a similar duration. And certainly, I think all parties did their best to give it priority in the circumstances”.

The defence did not take issue with these statements. [ 28 ] As conceded by the defence, I am therefore satisfied that this four-month period ought to be deducted as resulting from a discrete event. [ 29 ] Given how the rescheduling of the matter was prioritized, I assess that the entire period from December 19, 2022 to April 18, 2023 ought to be deducted as being reasonable for that purpose, following the complainant’s illness and resulting unavailability.

(2) Adjournment of second trial date: Unavailability of main witness (3 weeks) [ 30 ] While the trial began as scheduled on the second set of trial dates, the eldest sister continued to be unresponsive and was deemed unavailable to testify. The trial proceeded regardless, with only the younger sister being called to testify.

Prior to trial, the Crown filed an application to admit the eldest sister’s statement in lieu of viva voce testimony, on the basis that it was both necessary and reliable. [ 31 ] However, on April 20, 2023, the eve of the third and final day of trial, the second complainant unexpectedly reached out to Victim Services and indicated that she was prepared to testify. This sudden change did not result from the Crown or police’s renewed efforts to secure her testimony.

Rather, they resulted from her younger sister reaching out to her to convey that her failure to appear in order to testify seemed to be a serious matter. In other words, it was not a situation that resulted from state action or that the Crown had

any control over. [32] Indeed, in granting the Crown’s adjournment application at that time, I found that the police had previously made reasonableattempts to secure the witness’ attendance and came to understand that she did not wish to be located for this purpose. While I indicatedthat more could have been done, I found that there was no neglect or lack of diligence on the part of the police.

Importantly, the Crownat that point had been prepared to proceed without this witness, whether its hearsay application succeeded or not. [33] Given that the witness was now available to testify, the Crown naturally had to abandon its hearsay application – it no longerbeing necessary to admit her prior statement – and requested an adjournment to allow its witness the opportunity to testify. [34] At that point in time, the complainant had not been served with a subpoena despite earlier efforts by the police to secure herattendance.

She had a final university exam on the third day set for trial and could not attend on that same date. The Crown alsoindicated that it needed time to meet with the complainant to enable her to review her police statement, as is commonly done. A new datewas obtained. [35] In Jordan, at paragraph 73, the Court pointed to unexpected developments over the course of trials and gave the example of arecanting witness as an occurrence that may be considered a discrete event: Discrete, exceptional events that arise at trial may also qualify and require some elaboration.

Trials are not well-oiled machines.Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. For example, a complainant mightunexpectedly recant while testifying, requiring the Crown to change its case.

In addition, if the trial goes longer than reasonably expected— even where the parties have made a good faith effort to establish realistic time estimates — then it is likely the delay was unavoidableand may therefore amount to an exceptional circumstance. [Emphasis added.] [36] The defence concedes that this “inter-trial” delay owing to the change of mind of the second complainant, and which caused thetrial to take longer than anticipated, could constitute a discrete event.

While it argues that that should not be the case here as thecomplainant was only not available because of a university exam, the focus of its written submissions is on the fact that even the initialtrial was scheduled outside the Jordan timeframe, and that this is an appropriate case for a stay of proceedings even if the delay is foundto fall below the ceiling. [37] I agree with the Crown’s submission that the sudden change in a key witness’ availability to testify is akin to the case of arecanting witness, and that it constituted a discrete event in the circumstances of this case.

The Crown had to suddenly adapt, abandon itshearsay motion which had already been argued, and request that the court hear from the suddenly-available witness. Of course, theCrown no longer had any chance of succeeding in adducing the complainant’s hearsay statement given that she was now available totestify.

Given that this change of position was conveyed on the eve of when her testimony could have been accommodated by the court,it was not unreasonable in all the circumstances that further time be afforded to secure her testimony, in particular given that she had notbeen served with a subpoena prior to these trial dates. [38] In R. v.

Caruso, 2017 ONCJ 888, for example, some delay was treated as a discrete event where a witness unexpectedly notifiedthe court that her testimony on the previous date had been seriously compromised due to the extreme effects she was feeling as a result ofmedication she had taken: at paras. 65 and 68. This led to delay resulting in part from the need to obtain a medical report. Someallowance needs to be made for such events that neither the Crown nor the court could have foreseen. [39] This adjournment of the third day set for trial led to a further delay of less than three weeks.

I must assess whether this wasreasonable in the circumstances, and whether that entire period ought to be deducted from the net delay. [40] In R. v. Agpoon, 2023 ONCA 449, at paragraphs 22-23, the Court of Appeal recently reiterated the Supreme Court’s call inJordan to simplify the 11(

b) analysis: We join with the Jordan court in discouraging “complicated micro-counting” in determining delay, particularly in the context of thepandemic: at para. 111. Indeed, “trial judges should not parse each day or month… [but] should step back from the minutiae and adopt abird’s-eye view of the case”: Jordan, at para. 91. We take seriously the observation by McLachlin J., as she then was, at p. 810 of R. v.

Morin, (SCC), [1992] 1 S.C.R.771, which the Jordan court approved at para. 111: “…we must remind ourselves that the best test will be relatively easy to apply;otherwise, stay applications themselves will contribute to the already heavy load on trial judges and compound the problem of delay”.Accordingly, the court said in Jordan that “[a] framework that is simpler to apply is itself of value.” This informs the framework weestablish below. [41] Avoiding micro-counting or the “parsing approach” does not mean that entire periods of delay occasioned by a discrete event orother exceptional circumstance will necessarily be deducted for the purpose of the Jordan analysis.

Without engaging in micro-counting,there will be many instances where a judge might assess some other reasonable amount of delay to be deducted, considering the varyingcircumstances of the case. Ultimately, the resulting delay must be reasonable in all the circumstances. [42] Here, I deem the less-than-one-month delay that resulted from the complainant’s sudden change of heart and newfoundwillingness to participate in the proceedings to be reasonable. The entire period from April 21 to May 10, 2023 ought to be deducted asbeing reasonable for rescheduling the continuation of the trial.

(3) Trial continuation (1 month) [43] The final period of delay results from an inaccurate estimate of the time required to complete the trial. Instead of concluding onMay 11, 2023, the defence evidence concluded just over a month later, on June 14, 2023. [44] Exceptional circumstances may be found where the parties, in good faith, devised trial estimates that turn out to be inaccurate. I

reiterate the Jordan framework on this point: Discrete, exceptional events that arise at trial may also qualify and require some elaboration. Trials are not well-oiled machines. Unforeseeable or unavoidable developments can cause cases to quickly go awry, leading to delay. … In addition, if the trial goes longer than reasonably expected — even where the parties have made a good faith effort to establish realistic time estimates — then it is likely the delay was unavoidable and may therefore amount to an exceptional circumstance .

Trial judges should be alive to the practical realities of trials, especially when the trial was scheduled to conclude below the ceiling but, in the end, exceeded it. In such cases, the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling. [At paras. 73-74; emphasis added.] [ 45 ] While inaccurate time estimates are not “exceptional” in the sense of being unusual or rare, they may be treated in this way given that not completing the trial was not what was planned.

Here, the parties believed that three days would be sufficient to complete the trial, even when two complainants were expected to testify. Each time the matter was adjourned, the parties believed that the time being allotted would be sufficient. [ 46 ] In this case, it is apparent that the defence did not properly plan for calling its second witness. It was not immediately ready to do so following the completion of the accused’s evidence. Indeed, when the matter was adjourned on May 11, 2023, during the accused’s cross-examination, counsel informed the court of his expectation that this was the final witness.

Accordingly, everyone agreed that one day would be sufficient to complete the accused’s cross-examination and to make closing submissions. There was no mention of any intention or possibility of bringing an application to stay the proceedings due to unreasonable delay. [ 47 ] While sudden changes in the defence strategy and an ongoing assessment of what further evidence may be called will occur over the course of a trial, these are the “practical realities of trials” that the Jordan Court spoke of. If the defence needs time to account for these legitimate changes of course, they may of course request that time.

But again, it would then be hard-pressed to complain of the resulting delay. [ 48 ] Here, the defence ultimately decided to call its second witness without requesting additional time to prepare. This resulted in evidence that was unfocused, and the evidence took the remainder of the day. [ 49 ] I point this out as one example of how the trial ended up taking longer than anticipated. Technical issues also arose, and counsel was late for court.

While such delays will inevitably occur and no one is necessarily to be blamed for them, they demonstrate how trials are indeed not “well-oiled machines” and can take longer despite everyone’s best efforts. [ 50 ] In the present circumstances, I assess the just-over one-month delay to allow for the completion of the defence evidence to have been exceptional. That delay will be deducted from the overall delay.

(4) COVID-19 [ 51 ] This leaves the delay to the first set of trial dates, which was a delay of 18 months and 7 days. The Crown argues that up to two weeks should be deducted for the scheduling of this trial based on the impacts of the COVID-19 pandemic. [ 52 ] In Agpoon , at paragraphs 4 and 33 , the Court of Appeal confirmed that the global pandemic is a “quintessential” exceptional circumstance, and that the disruptions to the operations of the courts, including the Ontario Court of Justice, should be treated as discrete exceptional circumstances in assessing delay for Jordan purposes.

Of course, that is to the extent that the disruptions in fact impacted the case before the court. [ 53 ] This case was making its way through the system in 2021, with trial dates being set at the end of 2021. This was still fairly early in the court’s efforts to negotiate the re-scheduling of trials following the pandemic’s significant impacts on the administration of justice. [ 54 ] Trial scheduling began again in earnest in the summer of 2020, with priority appropriately being afforded to in-custody accused and to continuing trials and preliminary inquiries.

Scheduling proceeded in phases, and Ontario declared a second state of emergency in January of 2021. In April of 2021, the Ontario Court of Justice suspended all trials and preliminary inquiries involving out-of-custody accused from April 26 to May 7, 2021. These proceedings had to be rescheduled and given some priority. In December of 2021, when Mr. A.’s trial was scheduled, the Omicron variant wave was further disrupting matters before the court.

There can be little doubt that as cases were being scheduled through 2021, the court was facing a significant backlog of cases from 2020 and beyond. [ 55 ] In Agpoon , at paragraph 34 , the Court of Appeal recently cautioned against second-guessing the policy decisions made that limited access to courts. [ 56 ] I agree with the Crown’s submission that “but for the COVID-19 pandemic, the Applicant’s first trial would have been scheduled within the Jordan ceiling”. [ 57 ] I should not be taken as stating that the pandemic will necessarily have occasioned delay – including trial scheduling delays – in every case that was set down for trial in 2021 or thereabout.

The application judge should indeed consider whether the pandemic had an impact on the scheduling of the particular case : R. v. L.L. , 2023 ONCA 52 , at para. 21 . Each case should be assessed based on what in fact transpired, when, and what were the resulting delays. [ 58 ] In the present circumstances, it is apparent that the pandemic-related backlog was responsible for some of the delay to the first set of trial dates. Up until that point in time, the case was progressing well.

When it came time to set trial dates, it appears that the first available dates were over one year later. [ 59 ] This is not a case where the Crown seeks to rely on the pandemic as justifying delay that clearly does not stem from it, such as delay in making important disclosure. This is a case where, by all indications, and still in 2021, institutional delay existed and had been

occasioned by the pandemic. [ 60 ] The impact of the disruption caused by the pandemic on a particular case will not always be easy to quantify: R. v. Brown , 2023 ONSC 84 , at paras. 14 and 21 . [ 61 ] I do not find it necessary to determine the exact number of days that ought to be deducted as resulting from the pandemic.

As stated above, the Court of Appeal in Agpoon reminded application judges of the need to take a bird’s-eye view of cases and avoid the “complicated micro-counting” that Jordan sought to depart from, in particular when accounting for pandemic-related delays: Agpoon , at paras. 21-23 and 38-40 . [ 62 ] I am satisfied that in this case, the one-week of delay that exceeds the Jordan ceiling can at minimum be deducted as having exceptionally resulted from the COVID-19 pandemic.

Steps Taken by the Crown to Mitigate Delay [ 63 ] Jordan , at paragraph 70 , adds that where the Crown establishes that exceptional circumstances were responsible for the delay, it still needs to show that it made reasonable efforts to remedy that delay: 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. [ 64 ] There was no wasted time by the Crown in this case. Before the delay exceeded the ceiling, it did not take a casual approach to the case.

There was focused work by both sides as the matter progressed through pretrials and court appearances. At no time was the defence waiting for the Crown to move the matter forward. [ 65 ] Here, the bulk of the delay arose after the start of trial. They were largely due to unforeseen events arising during the course of trial. [ 66 ] Jordan directed judges to bear in mind that delays may be harder to curb the later they arise in the proceedings: Trial judges should be alive to the practical realities of trials, especially when the trial was scheduled to conclude below the ceiling but, in the end, exceeded it.

In such cases, the focus should be on whether the Crown made reasonable efforts to respond and to conclude the trial under the ceiling. Trial judges should also bear in mind that when an issue arises at trial close to the ceiling, it will be more difficult for the Crown and the court to respond with a timely solution.

For this reason, it is likely that unforeseeable or unavoidable delays occurring during trials that are scheduled to wrap up close to the ceiling will qualify as presenting exceptional circumstances . [At para. 74; emphasis added.] [ 67 ] Once the matter got to trial, in December of 2022, the Crown would have been prepared to proceed without its second witness. The illness of its first witness was outside its control.

It made efforts to see if she could attend on the second day set for trial and then prioritized the rescheduling of the trial. [ 68 ] Scheduling was in many respects outside of the Crown’s control, and I do not see what more it could have done at that point in time. It is interesting to note that four months were needed to reschedule three days of trial; one month was needed to

schedule two days, and a further month was needed to

schedule another full day of trial – the latter two before the same seized judge. These delays are proportionate to the time being sought and give me some comfort that they were reasonable in all the circumstances. [ 69 ] When continuation dates were sought, the Crown and court rightly prioritized them. There was not much more the Crown could do at that point in time. Indeed, the defence does not point to anything else the Crown could have done to expedite the matter. [ 70 ] Further, this was not a case where the Crown could have tried to streamline its evidence or sought to streamline the defence evidence.

The bulk of the trial consisted of the evidence of the two main complainants and the accused’s own testimony. [ 71 ] Given the minimum one-week delay that I am deducting due to pandemic-related institutional backlog, the net delay falls just below 18 months, and is not in excess of the Jordan ceiling for trials in the provincial court. [ 72 ] The defence may nevertheless show that, despite not being presumptively unreasonable, the delay is unreasonable such that a stay must be entered: Jordan , at para. 82 .

Below the Ceiling Analysis [ 73 ] If the delay falls below the Jordan ceiling, the defence bears the onus of demonstrating that: (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have: Jordan , at para. 82 . In such circumstances, stays are to be granted in clear cases: Jordan , at para. 83 . [ 74 ] That is not the case here. [ 75 ] While I did not attribute any delay to the defence, I also do not find that it took meaningful steps to accelerate the pace of the proceedings.

I have no evidence of letters sent requesting disclosure or earlier dates, or flagging delay concerns even once the first trial was set over a year later. Nor did it notify the court that a delay application would be forthcoming when court adjourned in May of 2023, or that it would be seeking additional time to prepare for closing submissions. [ 76 ] While the defence objected to the Crown’s adjournment application when its second witness suddenly became available, I have

no indication on this record that it took steps to mitigate the delay, much less that it made “a sustained effort to expedite the proceedings”. [ 77 ] Due to a series of unforeseen and unavoidable circumstances, this case took markedly longer than it should have. But no one is to blame and all did their best to accommodate it. [ 78 ] In conclusion, I am not satisfied that the accused has established a breach of his right to have his trial proceed without unreasonable delay. His application for a stay of proceedings is dismissed. Released: September 13, 2023 Signed: Justice C. Mainville