R. v. M.W., 2023 ONCJ 581

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 159, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct 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 complainant of the right to make an application for the order; and (

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

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

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. M.W., 2023 ONCJ 581 DATE: 2023 12 21 COURT FILE No.: Brampton 20-6373 BETWEEN: HIS MAJESTY THE KING — AND — M.W. Before Justice Paul F. Monahan

Section 11(

b) application heard on December 1, 2023

Reasons for Judgment released on December 21, 2023 C. Coughlin.......................................................................................... counsel for the Crown R. Yasskin............................................................................... counsel for the accused M.W. MONAHAN J.: Introduction [ 1 ] Mr. M.W. is charged with sexual assault and sexual interference. The alleged offence date is July 1, 2020. The information was sworn July 11, 2020. The trial is scheduled for March 4, 5 and 6, 2024. [ 2 ] The defence has brought an application for a stay of proceedings pursuant to s. 11(

b) of the Charter . The anticipated end of the trial is 43 months and 25 days (or 1334 days) after the information was sworn. [ 3 ] As will be further discussed below, the defence acknowledges 16 months and 5 days in defence delay associated with a change of counsel and related delays but argues that the case is well above the 18 month ceiling laid down in R. v. Jordan 2016 SCC 27 . The Crown submits that there is exceptional circumstance delay associated with the pandemic and further defence delay including with the failure of the defence to put the Crown on notice that delay was an issue.

The Crown submits that taking these factors into account the overall delay is 17 months and that the application should be dismissed. [ 4 ] Based on the materials filed, my consideration of the record and the submissions of counsel I have identified the following time periods for consideration as to whether there is any defence delay or delay due to exceptional circumstances: (

a) July 11, 2020 to June 10, 2021 (10 months and 30 days or 334 days); (

b) June 11, 2021 to October 14, 2022, (16 months and 5 days or 490 days); (

c) October 15, 2022 to December 23, 2022 (2 months and 8 days or 69 days); and (

d) December 24, 2022 to March 6, 2024 (14 months and 12 days or 434 days); [ 5 ] As a separate point, the Crown also submits that the Court can, if necessary, deduct some time for the so-called "ripple effect" of the Covid-19 backlog. The defence submits otherwise. The Jordan framework [ 6 ] The Jordan framework is well known and may be summarized as follows: 1. A trial court hearing an s.11 (

b) application should calculate the total delay from the charge to the anticipated end of the trial ( Jordan at para. 47 ); 2. From the total delay the Court should deduct defence delay ( Jordan para. 66 ) and the delay associated with discrete exceptional circumstances ( Jordan at paras. 75 and 82 ); 3. Defence delay has two components. The first is delay waived by the defence. The other is delay caused "solely or directly" by defence conduct including circumstances where the defence uses a deliberate tactic to delay the trial.

A further example of defence delay will occur where the Court and the Crown are ready to proceed and the defence is not ( Jordan paras. 60 -64 ; see also R. v. Cody , 2017 SCC 17 at paras. 28 to 35 ). However, there is no "bright line rule" requiring that where dates are offered when the Court and the Crown are available but the defence is not, then all delay until the next date is defence delay. Rather, all of the relevant circumstances must be considered to determine how delay should be apportioned among the participants: R. v. Hanan 2023 SCC 12 at para 9 and R. v. Boulanger 2022 SCC 2 at para 8 ; 4.

If the delay is above the presumptive ceiling then it is presumptively unreasonable. The Crown can rebut this presumption by showing that the delay is reasonable on the basis of exceptional circumstances ( Jordan para. 68 ). This is the only basis upon which the Crown can justify a delay above the ceiling and avoid a stay. The absence of prejudice in cases above the ceiling is irrelevant ( Jordan para. 81 ); 5.

Below the presumptive ceiling a stay may still issue if the defence can establish two things: (1) that 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. In the absence of these two factors, the stay application will fail ( Jordan para. 82 ); and 6. The Supreme Court observed that they expected stays below the ceiling would be "rare" and should be limited to only in clear cases.

In setting the ceiling, the Supreme Court factored in tolerance for reasonable institutional delay ( Jordan para. 48 and 83 ). [ 7 ] I will turn now to examine the relevant time periods to determine whether any defence delay or delay due to exceptional circumstances has been established.

a) July 11, 2020 to June 10, 2021 (10 months and 30 days or 334 days) [ 8 ] As indicated above, the information in this case was sworn July 11, 2020. This was almost immediately after the reopening of the courts which had been closed from March 16, 2020 until July 6, 2020 due to the covid 19 pandemic. There can be no dispute that the pandemic is an exceptional circumstance: see R. v. Truong 2020 ONCJ 613 at para 71 . The question is whether the pandemic can be shown to have caused delay: see R. v. Greenidge 2021 ONCJ 57 . [ 9 ] Relying in part on my own decision in R. v.

Toor 2022 ONCJ 8 , which relied on the OCJ website statements and other publicly available information, the covid-19 pandemic closures and related issues in the Brampton OCJ included the following: (

a) As indicated above, all OCJ trial courts involving out of custody defendants were closed from March 16, 2020 to July 6, 2020. All in custody cases were cancelled about one week after March 16, 2020. (

b) The Brampton OCJ is one of the busiest courts in the country. As is apparent from the published court lists, on a daily basis, the Court generally operates a minimum of 25 courts for criminal and family cases, including Justice of the Peace Courts. Approximately 16 of these courts are criminal trial and plea courts in which judges sit; (

c) On July 6, 2020, the Brampton OCJ re-opened 7 courts for criminal trials and preliminary inquiries and family trials. In September 2020, another 9 courts were re-opened for these purposes with the balance being re-opened in November 2020 and thereafter; (

d) As is clear from the OCJ website, when the courts partially re-opened on July 6, 2020 the Chief Justice directed that the trials and preliminary inquiries cancelled between March 16 and July 3, 2020 had to be rescheduled with a priority being given to in custody cases that were cancelled during this time. Otherwise, the cancelled trials and preliminary hearings were directed to be rescheduled on the basis of the date of the original trial or preliminary inquiry; (

e) As is apparent from the OCJ website, “new cases” [1] such as this case could not even request a trial date until the end of September 2020; (

f) As is clear from the OCJ website, Justice of the Peace case management courts were also closed to the pubic from March 16, 2020 and did not re-open until at least August 24, 2020 when they re-opened remotely; and (

g) As is apparent from the OCJ website, the OCJ was closed again by direction of the Chief Justice, but this time only partially, when all virtual trials for a 2 week period from April 26, 2021 to May 7, 2021 had to be adjourned to try to reduce the number of people entering the courthouse during a critical phase of the pandemic.

As a result, more trials and preliminary hearings had to be rescheduled. [ 10 ] On May 5, 2023 the World Health Organization declared that covid-19 as a public emergency had ended but expressed the view that it would remain a global health threat. [ 11 ] The defendant was released on bail on July 13, 2020. Then there were five court attendances namely September 21, 2020, October 26, 2020, November 30, 2020, January 22, 2021 and March 19, 2021.

Neither the defendant nor any representative on his behalf attended at any of these court attendances. “Presumptive adjournments” of 5 to 8 weeks were given on each of the court dates from September 21, 2020 to January 22, 2021. A bench summons was issued for Mr. M.W. on January 22, 2021 and a bench warrant was issued for him on March 19, 2021. [ 12 ] Finally, a student appeared on March 29, 2021 as agent on behalf of counsel and Mr. M.W. This was almost 9 months after the information was first sworn.

The student indicated that a JPT would be obtained and ultimately one was obtained for June 10, 2021 and was conducted on that day. [ 13 ] The Crown submits that 3.5 months of delay for the period from July 11, 2022 to June 10, 2021 plus a further 10 days defence delay between March 19-29, 2021 when there was a bench warrant for the defendant should be treated as defence delay or exceptional circumstances delay connected to the pandemic. In oral argument on the s. 11(

b) application Crown counsel indicated that the delay of 3.5 months could well be more. [ 14 ] The defendant submits that the pandemic did not have a legitimate quantifiable or qualitative impact on this case and that the necessity of the presumptive adjournments in this case is unclear and that the Crown didn’t do anything to mitigate the delay. [ 15 ] In my view, this is not one of those cases where there is some question as to the connection between the time that is passing and the pandemic. This case started just days after the courts began a gradual reopening [2] . Mr.

M.W. did not even appear for nine months. The case was subject to presumptive adjournments which were quite appropriate in the circumstances as they kept members of the public out of the courthouse and allowed the court to attempt to address the backlog.

To restart a large courthouse like the Brampton OCJ which was shut down for 3 ½ months was a major undertaking which included addressing a large number of in custody and out of custody trials which needed to be rescheduled and new cases which needed to be brought into the system. [ 16 ] It took 11 months from the time the information was sworn on July 11, 2020 until the JPT was conducted on June 10, 2021. In my view, the transcripts in this case make it very clear that the delay here was due to the Covid-19 pandemic and defence delay in failing to attend court for nine months. This is a straightforward case.

I understand from the trial time estimate form that it is a two witness case for the Crown and 0 to 2 witnesses on the defence side. The videotaped statement of the complainant is only 25 minutes long and is expected to be adopted under

section 715.1. There are no pretrial motions contemplated. [ 17 ] This case took 11 months to complete a JPT. As there were no issues raised about disclosure during this 11 months I infer that disclosure was made and a CPT likely conducted. In my view, having regard to local practice, a case such as this one, absent any defence delay or pandemic delay, should have taken no more than 5.5 months to get to the point where a JPT could be completed. That is to say, the usual Crown and Court delay for a case like this to reach the point where a JPT could be expected to be completed would be no more than 5.5 months.

This case took 11 months to reach that point and I conclude that 5.5 months (168 days) of that time was defence

and pandemic delay (my emphasis). I base this primarily on the transcripts which show the defendant not showing up for 9 months and having to be bench warranted and the numerous adjournments which occurred in the defendant’s absence which adjournments were clearly connected to Covid-19 as the court was reopening courts and dealing with the rescheduling of cases. Of that 5.5 months, I attribute 3.5 months to Covid-19 delay and 2 months to defence delay. This also means that as of June 10, 2021, 5.5 months of the Jordan clock had occurred.

b) June 11, 2021 to October 14, 2022, (16 months and 5 days or 490 days) [ 18 ] This period of time runs from the completion of the first JPT on June 10, 2021 with the first defence counsel to when new counsel had come on board and conducted a second JPT on October 14, 2022. This period of time is acknowledged by the defence as being defence delay. This is a reasonable concession in my view and I accept it. There was clearly duplication with new counsel having to come on board and reach the same JPT milestone that had been achieved by his predecessor. The defence delay here is 16 months and five days or 490 days (my emphasis) .

c) October 15, 2022 to December 23, 2022 (2 months and 8 days or 69 days) [ 19 ] A JPT was held with new counsel on October 14, 2022. According to the factum of the applicant, on October 17, 2022 counsel submitted the required documentation to obtain a trial scheduling meeting with the trial coordinator. [ 20 ] It is apparent from the transcripts that the first trial scheduling meeting was scheduled for November 22, 2022 (see the October 21, 2022 transcript). However, the trial scheduling form filed by the applicant on the s.11(

b) application indicates that the meeting with the trial coordinator did not take place until December 23, 2022 and no explanation is given in the applicant’s factum or when counsel was asked in oral argument on the s. 11(

b) application as to why the scheduling did not proceed on November 22, 2022 as scheduled. It does not take two months after a JPT to

schedule a trial. I infer that defence counsel was unable to attend on November 22, 2022. I deduct one month (or 32 days) from November 22, 2022 to December 23, 2022 as defence delay. [ 21 ] Prior to the pandemic a JPT could been conducted on one day and trial dates obtained by attending in person at the trial coordinator’s office on the same day or very shortly thereafter but involved defence counsel or their agents having to line up at the trial coordinator’s office. During Covid, for public health reasons, in order to avoid defence counsel from having to attend in person to set a trial date, a local practice was developed that the trial coordinator began to

schedule trial scheduling conferences with defence counsel to take place by zoom to set trial dates. The trial coordinator develops a

schedule and has to contact defence counsel to set up dedicated Zoom meetings with them and a representative of Peel Regional Police who has the officers’ availability dates. This can take 2 or more weeks. Some judges including myself have allowed 2 weeks as a pandemic exceptional circumstance deduction (see Justice Duncan's decision in the R. v. Ambrose [2022] O.J. 4793 at para 20-21 ). I consider that it is appropriate in this case to deduct two weeks for the scheduling of the trial dates via this process as pandemic related delay as the pandemic was ongoing at the time of the trial scheduling in this matter. [ 22 ] Accordingly and by way of

summary, from this period of two months and eight days I would deduct one month or 32 days (November 22 to December 23, 2022) as defence delay and two weeks (14 days) as pandemic related delay associated with the trial coordinator’s scheduling practice related to the pandemic. The total delay under this time period is 1.5 months or 46 days . I note that that still allows 23 days for the scheduling of the trial date which goes towards the Jordan clock and favours the defence even though pre-pandemic this would have taken one or two days. (

b) December 24, 2022 to March 6, 2024 (14 months and 12 days or 434 days) [ 23 ] As indicated above, the trial scheduling conference took place on December 23, 2022. The first trial dates offered were March 4, 5 and 6, 2024 and they were accepted by the Crown and the defence. [ 24 ] It is clear from the record that nothing was said to the trial coordinator about delay at the time of the trial scheduling conference on December 23, 2022.

I say that because the defence has not submitted otherwise and the trial scheduling forms indicate that there were to be no pretrial motions/applications [ 25 ] Further, when the March 4-6, 2024 dates were put on the record on January 13, 2023, agent for defence counsel said nothing about delay concerns. [ 26 ] It was not until September 16, 2023, almost 9 months after the trial dates were set, that defence counsel wrote to the trial coordinator, with a copy to the Crown, indicating that the defence would be bringing in s. 11(

b) application and requesting a date for that application before the trial date. On September 18, 2023, the s. 11(

b) application date was set by the trial coordinator for December 1, 2023. [ 27 ] Acting Regional Senior Justice Leitch issued a letter to Justice System Participants on August 11, 2023 indicating that the Court would be convening starting on August 21, 2023 in certain cases in order to offer earlier earlier trial dates due to the fact that three new judges had been appointed to the Court in Brampton. The letter indicated that cases which could benefit from earlier trial dates would be identified by the Crown and brought forward to the Court for this purpose.

The letter further indicated that counsel may receive a communication from the Crown identifying their matter to be brought forward to try to achieve earlier dates. The letter also invited counsel to contact the Crown’s office to have their case added for consideration for earlier dates. [ 28 ] To be clear, it is my understanding that Acting RSJ Leitch’s letter was not directed specifically to defence counsel or Crown counsel in this case.

It was a general letter to Justice System Participants. [ 29 ] Although there is no affidavit filed by the defence on this application, defence counsel indicates in their factum at para 17 that “at some point during October 2023, the Crown identified the applicant’s matter as one that could benefit from earlier trial dates”. This case was brought before the Court on October 23, 2023 to address the possibility of earlier trial dates being set. On that day, counsel for the

defendant sent an agent who did not have counsel’s available dates. Initially, the case was adjourned to a further backlog reduction court because counsel had not attended with available dates. However, defence counsel then attended on October 23, 2023 and earlier trial dates of February 7, 8 and 9, 2024 were offered as dates that the Court and the Crown were available.

Defence counsel said they were not available and the trial dates remain set as March 4-6, 2024 [3] . [ 30 ] I will address the broader question of what to do with the time between December 23, 2022 and March 6, 2024 below and whether some part of it should be treated as defence delay by reason of the failure of defence to raise delay concerns in a timely way.

However, as concerns the period from February 9, 2024 to March 6, 2024 I would not treat that as defence delay solely as on the basis that the defence turned down the earlier trial dates of February 7, 8 and 9, 2024 at the attendance on October 23, 2023. [ 31 ] The Supreme Court of Canada in R. v. Hanan 2023 SCC 12 dealt with a case involving the rescheduling of trial dates. The Supreme Court made it clear that there is no “bright line rule” that when the Court and the Crown are 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 of the circumstances including whether the Crown and the Court were available during the subsequent period of the time that they seek to have characterized as defence delay. I note that Hanan was a case in which only one block of dates was offered and the defence was not available for that single block of dates. [ 32 ] In this case, by the time new dates were offered on October 23, 2023, the trial was just over four months away. More importantly, the key point for me is that only one set of realistic dates were offered.

If more dates had been offered, my view would likely be different provided those dates gave a reasonable time for the defence to prepare. Accordingly, I would not deduct the period from February 9, 2024 to March 6, 2024 as defence delay simply because the defence turned down one set of earlier trial dates. [ 33 ] There remains the question of whether the failure by the defence to raise s. 11(

b) issues in a timely way should lead to the attribution of a period of defence delay. The Crown submits that 50% of the time from the date the trial dates were put on the record namely January 13, 2023 to the end of the anticipated end of trial on March 6, 2024 (approximately 14 months in total) should be treated as defence delay. The Crown submits that 50% of this time or seven months should be treated as defence delay and that the other seven months should be treated as Crown delay and go towards the Jordan ceiling. [ 34 ] In support of this submission, the Crown relies on the Supreme Court’s decision in R. v.

J.F . 2022 SCC 17 . The Supreme Court in J. F. noted that the Court in R. v. Cody , 2017 SCC 31 said that “the defence may not benefit from its own inaction or lateness in taking action, it must act proactively”. The Court in J.F. at para 33 citing Cody said “defence counsel are therefore expected to actively advance their clients’ right to a trial within a reasonable time, collaborate with Crown counsel where appropriate and… use court time efficiently”.

Further, in J.F . at para 34 , the Supreme Court of Canada made it clear that an accused person “who sees delay lengthening must therefore respond in a proactive manner. Being proactive may mean filing a

section 11 (

b) motion”. The Court noted that “the predictability provided by the new framework requires that [the accused] be an active part of the solution to the problem of delay in criminal cases”( J.F. para 31 ). [ 35 ] The Court in J.F. said further at para 36 that “by the time the trial dates are set, the parties are generally in a position to know whether the trial delay will exceed the applicable presumptive ceiling, and the defence can raise any concerns it may have”. [ 36 ] Relying variously on J.F. , Cody , Jordan and R. v.

Boulanger 2022 SCC 2 , a number of OCJ judges have found defence delay to be 50% of the time from when the dates are set without any complaint about delay until the trial date or, in some cases, until the Crown is put on notice that the defence intends to bring a s. 11(

b) application. In this regard, I note the following cases: (

a) In R. v. Nigro 2023 ONCJ 541 , Justice West found that by failing to raise s. 11(

b) concerns in a timely way, the defence had demonstrated “a marked indifference towards delay”. He said the defence can not “hide in the weeds and not alert the Crown or the Court to their concerns about delay until a point where no one could remedy or mitigate that delay in any meaningful way” ( Nigro at para 35). He attributed 50% of the time from the setting of the trial date until the contemplated end of trial being defence delay. This was 382 days divided by two which amounted to 191 days of defence delay on this issue; (

b) In R. v. Ahmed (unreported), Justice Caponecchia, based on similar reasoning to that of Justice West in Nigro , held that where trial dates were set outside the Jordan ceiling and the defence failed to raise

section 11(

b) concerns until nine months later, 50% of this time should be treated as defence delay after allowing for two weeks to order transcripts; (

c) In R. v. A.D. (unreported) Justice Lai addressed the same type of conduct by the defence namely a failure to raise any s. 11(

b) concerns for 10 months after trial dates were set outside the Jordan ceiling. Justice Lai attributed 50% of the time from when the dates were set until the Crown was put on notice of the defence’s intention to bring a s. 11(

b) application as defence delay for reasons similar to the Nigro case. The defence delay on this issue was 155 days; (

d) In R v. MacDonald (unreported), Justice Daviau dealt with a case where there was 190 days of delay from the time the dates were set for trial to the time the defence notified the Crown that s. 11 (

b) was an issue. Justice Daviau attributed 50% of the delay to the defence as defence delay for reasons similar to the Nigro case; and (

e) In my own decision in R. v. Kullab 2023 ONCJ 458 , I held that 50% of the time from when the dates were set until the anticipated end of trial should be treated as defence delay. I note that in the Kullab case, the defence only told the Crown of their intention to bring a s.11 (

b) application about 7 weeks before the trial. [ 37 ] The defendant submits that none of this time should be treated as defence delay. In the alternative, the defendant submits that the defence should have one month after the trial dates were set to order the transcripts and determine their position on possibly defence delay and exceptional circumstance delay. The defence submits that defence delay should be limited to 50% of the time from this date [4] until the Acting Regional Senior Justice’s letter of August 11, 2023 or, alternatively, until the defence put the Crown on notice on September 16, 2023 of their intention to bring a s. 11(

b) application. [ 38 ] In my view, the defence had an obligation to act proactively to advance their clients’ right to a trial within a reasonable time, and

to collaborate with Crown in this regard. As the Supreme Court of Canada said in Cody , the attribution of defence delay is “highly discretionary”. In my view, following the decisions in Nigro , Ahmed , A.D. , Macdonald and Kullab, and consistent, in my view, with the direction of the Supreme Court in Jordan , Cody and Boulanger , I consider that 50% of the time from January 23, 2023 (which allows 30 days after December 23, 2023 to obtain transcripts and formulate a final s. 11(

b) position) until September 16, 2023 when the defence put the Crown on notice of their intention to bring a s. 11(

b) application, should be treated as defence delay. The other 50% is Crown delay. I have no doubt that had the defence raised the delay in a timely manner in January 2023, the Crown would have prioritized this serious case and offered multiple dates just as they have done in many other serious cases: see Kullab at para 37 . [ 39 ] I recognize, of course, that the Crown has the obligation to bring a case to trial within the time limits set out in Jordan . The Crown was also to blame for not determining and mitigating the problem earlier.

In this regard, I note that the Crown has to be taken to have known that the case was more than 29 months old when the trial date was set. However, this does not necessarily mean that the Crown would know that there was a s. 11(

b) problem. There had been a change in counsel and the case started right after the courts began to reopen from the Covid-19 closure. Further, the defence made no complaint about the delay until 9 months after the trial date was set. The defence was uniquely in the position to say if delay was a problem and they said nothing. Simply because dates were set outside the Jordan ceiling would not necessarily signal to the Crown that there was a s.11(

b) problem. [ 40 ] In this case, I agree that the defence should be allowed 30 days after the trial dates were set to order the transcripts and determine their position on defence delay and exceptional circumstance delay before being obliged to put the Crown on notice of their s. 11(

b) intentions. I note that in R. v. Ahmed, Justice Caponecchia allowed two weeks for this process but the case at bar has a more complicated history from the perspective of trying to figure out what had happened up until trial dates were assigned on December 23, 2022. [ 41 ] I reject the defence’s argument that the Acting RSJ’s letter of August 11, 2023 should play some role in the calculation of defence delay. This letter did not alter the defence’s obligation to raise s. 11(

b) issues in a timely way. [ 42 ] I also reject the Crown’s argument in this case that the defence delay should be 50% of the time from the setting of the trial date until the anticipated end of trial on March 6, 2024. I did allow for such a deduction in Kullab as did Justice West in Nigro . However, in this case, the defence put the Crown on notice about 5.5 months before the anticipated trial was to start. In Kullab , the defence waited until seven weeks before the trial was to start to put the Crown on notice of their

section s. 11(

b) intentions. I note that in the case at bar, when the Crown was put on notice on September 16, 2023, they did attempt to mitigate and offered new trial dates about a month earlier. The difficulty here is that they only offered one set of dates and in my view, a better effort at mitigation on the Crown’s part should have been undertaken once they were on notice of the delay issue. I recognize that there are not endless earlier dates to offer, but the Crown can always stack a case on another case and decide to call the stacked case first. It is simply a question of priorities. [ 43 ] While the defence was very late in putting the Crown on notice of their s.11(

b) intentions in this case, they did give notice at a time when the Crown still had some time mitigate the delay but they failed to do so successfully. As mentioned above, I am of the view that had the defence raised delay as an issue in January 2023, the Crown would have been able to successfully mitigate the delay in this case. [ 44 ] For the reasons set out above, there will be a deduction of defence delay of 50% of the time from January 23, 2023 until September 16, 2023. This is 50% of 236 days which is 118 days.

Summary and Conclusion [ 45 ] The overall delay in this case is 1334 days. I deduct from that 168 days (defence and pandemic delay during the July 11, 2020 to June 10, 2021 period) less 490 days (defence delay from June 11, 2021 to October 14, 2022) less 46 days (defence and pandemic delay during the October 15, 2022 to December 23, 2022 period) less 118 days (defence delay during the December 24, 2022 to March 6, 2024 period).

The net delay is 514 days or approximately 16.9 months which is under the Jordan ceiling. [ 46 ] I did not understand the defence's submission to be that if the delay was under 18 months that a stay should nevertheless issue. It is my conclusion that the defence cannot establish the requirements for a stay where the delay is under the 18 months.

In particular, the defence has not established that they took meaningful steps to demonstrate a sustained effort to expedite the proceedings. [ 47 ] I have not decided the point raised by the Crown's submission that there was a further "ripple effect" delay due to Covid-19 as it is not necessary that I do so. [ 48 ] Accordingly, for the reasons given, the s.11(

b) application is dismissed. Released: December 21, 2023 Signed: Justice Paul F. Monahan