R. v. Martino, 2024 ONCJ 53

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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, 162.1, 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. Martino , 2024 ONCJ 53 DATE: 2024 01 26 COURT FILE No.: Central East Newmarket 4911-998-22-91101572-00 BETWEEN: HIS MAJESTY THE KING — AND — ANTONIO MARTINO & ALEXANDER PASQUALINO Before Justice J. Sickinger Heard on December 19, 2023 Ruling on 11(

b) Released January 26, 2024 A. Khan................................................................................................. counsel for the Crown M. Sciarra.......................................................... counsel for the accused Antonio Martino M. Muia................................................... counsel for the accused Alexander Pasqualino SICKINGER J.: OVERVIEW: [ 1 ] The accused stand charged with a number of counts of sexual assault each. They are not charged on the same Information, but the matters proceeded as if they were co-accused.

I was advised by counsel the intention of the Crown was to join the matters, yet this never happened. [ 2 ] There are two separate 11(

b) applications before this court, one for each accused. I will deliver one judgment as the issues are the same, with the exception of one discrete delay calculation. [ 3 ] There are two issues before this court. One, whether or not the 18-month or 30-month ceiling applies, given the scheduled preliminary inquiry was not held; and two, what, if any, time should be deducted from the net delay as due to the COVID-19 pandemic. [ 4 ] The total delay is 735 days or 24.2 months. The applicants were arrested in early February of 2022. Both Informations were sworn on February 18th, 2022.

Both applicants retained counsel prior to the first appearance. Both Counsel made requests for disclosure prior to those first appearances. [ 5 ] On March 9th, 2022, Counsel attended court for Mr. Pasqaulino's first appearance, she indicated that no disclosure had been received. The matter was adjourned to April 6th, 2022 for disclosure. On March 16th, 2022, no one appeared in court for Mr. Martino on his first appearance. A designation was on file for Counsel, it was not an enhanced designation.

The matter was adjourned to March 30th, 2022, on that date Counsel attended, and indicated that substantial disclosure had been received. The matter was adjourned to April 6th to marry up with the Co-accused. [ 6 ] On April 6th, one Counsel appeared for both accused. She indicated that there was outstanding disclosure, which Counsel would request from the Crown. The matter was adjourned to May 30th in order to have a judicial pre-trial. [ 7 ] On May 30th, 2022, a judicial pre-trial was held. The two Accused were charged on separate Informations.

The Crown, in court, indicated that a new joint Information should have been laid prior to the May 30th date. The clerk confirmed that no replacement Information existed in the system. The Crown indicated that the new Information would be laid joining the two Accused. [ 8 ] The Defence indicated that it was their intention to have a preliminary inquiry. The Crown further advised that they were seeking a direct indictment from the Attorney General's office and that it would take a few months to get a response.

The Crown further indicated that if the request for a direct indictment was not granted, then the Crown would seek to file the statements of the complainants without cross-examination at the preliminary inquiry. The JPT judge suggested that the applications under s.540 of the Criminal Code should be heard eight weeks prior to the preliminary inquiry. The matter was adjourned to June 28th, 2022 for a response on the request for a direct indictment. [ 9 ] The matter appeared in the Blitz Trial Scheduling Court on June 15th, 2022.

At that time, the Accused were still on two separate Informations, and the Crown had not received an answer on the request for a direct indictment. The preliminary inquiry was set for July 24th and 25th, 2023, and the s.540 applications were set for April 6th, 2023. The matter was adjourned to August 17th, 2022 for an update on the direct indictment request. I note that at the time these dates were set, 4 of the 13 spots on the Newmarket bench were vacant, and had been for a lengthy period of time.

It would be almost another year before the court had a full complement. [ 10 ] On August 17th, 2022, Counsel attended and spoke to the matter. The Crown was no longer seeking to prefer an indictment. Counsel indicated that the application date was no longer required, as the complainants would not be called as witnesses at the preliminary inquiry by either party. [ 11 ] On June 26th, 2023, the matter appeared in trial readiness court. The Accused again had not yet been joined on a single Information. Counsel indicated that both parties were ready to proceed and that committal was not in issue.

The matter was adjourned to the first day of the preliminary inquiry. [ 12 ] On June 24th, 2023, the matter was spoken to prior to the start of the preliminary inquiry. There were issues with scheduling. The assigned judge would not have been able to accommodate the two days set aside, but there may have been other courts available to hear the matter. The Crown indicated that the defence would be seeking a one-week adjournment with Crown consent.

The Crown further indicated that there were ongoing discussions with respect to re-election and committal based on recent developments which had taken place in the previous few days. A joint Information was still not before the court. When the court queried this, the Crown indicated that further discussions with respect to joinder needed to take place. I note that the joining of Informations is solely at the discretion of the Crown. [ 13 ] A trial had been held two weeks prior to this date on a related matter, involving a number of young persons. The outcome of that

trial significantly impacted the way in which the matter would move forward, both from the Crown and defence perspective. [ 14 ] The Crown indicated that the two days which had been set aside for the preliminary inquiry would not have been sufficient to complete the matter, in light of those changes. The Crown further advised that they were contemplating withdrawing the preliminary inquiry eligible counts for each Accused, but were not yet in a position to make that determination.

The Crown was offered the opportunity to start calling evidence on the preliminary inquiry in order to preserve some of the two days which had been set aside.

The Crown indicated that the matter would not be complete in the time available and declined to start the preliminary inquiry. [ 15 ] A date in the Superior Court of Justice for a judicial pre-trial had been tentatively scheduled for August 28th, 2023, should that be necessary, and the matter was adjourned to July 31st, 2023, in order for Counsel to receive further instructions from their clients. [ 16 ] On July 31st, 2023, the Crown withdrew the preliminary inquiry eligible counts for both accused.

The Crown consented to a re- election for both parties for the matters to proceed to trial in the Ontario Court of Justice. The Crown did not seek a waiver of 11(

b) to the trial dates, prior to consenting to re-election. At the time the re-election was made, the matter was just shy of the 18-month mark. All Counsel had sought a date for a further judicial pre-trial in order to discuss trial time estimates and the matter was adjourned to August 15th, 2023. [ 17 ] On August 15th, 2023, the matter was adjourned to August 28th, 2023, for the judicial pre-trial.

On that date, the judicial pre- trial was held and the matter was then adjourned to September 25th, 2023 to allow for the matter to be brought into the Blitz Trial Scheduling Court. [ 18 ] On September 25th, 2023, Counsel attended and spoke to the matter. Counsel indicated that the trial scheduling forms were filed on August 28th, 2023, and the matter was adjourned to the blitz trial scheduling court on September 27th. [ 19 ] On September 27th, 2023, the matter appeared in the Blitz Trial Scheduling Court. The Crown indicated that a joint Information was going to be laid following the judicial pre-trial.

A six-day trial was sought. The Crown asked to prioritize the matter. The Court was able to offer December 11th, 2023, and following. One of each of the two Counsel was not available on a number of subsequent dates which were offered. The matter was ultimately set for trial on February 12th, 14th, 15th, 16th, 20th and 22nd of 2024. The defence argues that the 18-month ceiling should apply and that the Court of Appeal's decision in Shaikh binds this court. [ 20 ] The Defence conceded that 92 days should be deducted from the net delay as due to the COVID-19 pandemic.

That includes the time for the matter to be brought into the Blitz Trial Scheduling Court both times, as well as the time required to

schedule a judicial pre- trial in March of 2022. The Blitz Trial Scheduling Court was implemented in this jurisdiction to address the backlog caused by the COVID-19 court shutdowns. The Defence further concedes that the 44 days necessary to

schedule the judicial pre-trial in March of 2022 was longer than it would otherwise have been as a result of the COVID-19 backlog. The Defence, therefore, argues that the net delay is 21 months. [ 21 ] The Crown argues that the 30-month ceiling should apply and that the circumstances here are unique. The Crown further argues that the decision to withdraw the preliminary inquiry eligible charge was made to avoid further delay. The Crown argued that they could not force counsel to waive 11(b), even though an 11(

b) waiver was not sought by the Crown prior to consenting to re-election for either accused. The Crown's claim was that an 11(

b) waiver was not sought as the Crown believed this case was distinguishable from Shaikh . There is no further evidence or explanation provided for that claim. The Crown argues that there is significant delay attributable to the Defence and the COVID-19 pandemic. [ 22 ] Specifically, the Crown argues the following periods should be deducted as either defence or COVID delay; the Crown argues that 20 days should be deducted as defence delay for Mr. Martino from the date the Information was sworn on February 18th, 2022 until March 9th, 2022 when counsel requested initial disclosure.

The Crown argues that a disclosure request is required to trigger the duty to provide disclosure. This argument is legally incorrect. It is trite law that the duty is on the Crown to provide primary disclosure in all cases. [ 23 ] The Defence must certainly be diligent in seeking further disclosure or advising the Crown of missing disclosure. In this case, Mr. Martino retained counsel who sought disclosure prior to the first appearance. The Crown also states that co-counsel had already received disclosure by March 9th, 2022 as a result of their disclosure request. I note that this is factually inaccurate.

Counsel for Mr. Pasqualino attended court on March 9th, 2022, and indicated that although disclosure had been requested twice, none had been received. [ 24 ] I find that there is no defence delay during this period. [ 25 ] The Crown further argues that the period between March 16th and March 30th, 2022, should be deducted as defence delay for Mr. Martino as no one attended court on the March 16th date. The Crown argued that they were ready to proceed on that day. Although I note that I believe disclosure had not yet been provided to counsel.

It is less than optimal that counsel did not appear on the 16th, but there is no evidence before this court that this caused any delay. At the next appearance, counsel indicated they had received disclosure and the matter was adjourned to marry it up with the co-accused on April 6th, 2022. [ 26 ] The Crown argues that the time between July 24th, 2023, and July 31st, 2023 should be deducted as defence delay as the Crown and the Court were ready to proceed with the preliminary inquiry that day but the Defence was not. This is clearly contrary to the evidentiary record before the court.

The Crown was given the opportunity to proceed on July 24th and declined. Further, the Crown indicated that they were contemplating withdrawing the preliminary inquiry eligible charge on that date but had not yet decided. [ 27 ] The Crown argues that the period of time between January 8th, 2024, and February 22nd, 2024 should be deducted as defence delay for Mr. Martino, as his counsel was not available for the earlier trial dates offered. The Crown sets out this period as 57 days. I note that it is actually 56 days.

The Crown further argues that the time between December 11th, 2023, and February 5th, 2024 should be deducted as defence delay for Mr. Pasqualino, a period of 46 days, as counsel was not available for the earlier trial dates offered. [ 28 ] I note that the trial is scheduled to begin on February 12th, 2024, not February 22nd, 2024. These time periods should be adjusted

accordingly to 46 days and 36 days respectively. [ 29 ] The Crown agrees that the period of time needed for the matter to be brought into the Blitz Trial Scheduling Court on each occasion should be deducted as delay attributable to the COVID-19 pandemic. The Crown further argues that an additional 90 days should be deducted as delay due to the COVID-19 pandemic. Law and Analysis [ 30 ] The Supreme Court of Canada in Jordan set an 18-month ceiling for Provincial Court matters, and a 30-month ceiling for cases going to trial in the Superior Court of Justice after a preliminary inquiry.

Any delay above the ceiling is presumed to be unreasonable. [ 31 ] The first step in the Jordan analysis is to calculate the net delay, which is the total delay, minus any defence delay from the charge to the anticipated end of the trial. If the delay is above the ceiling, it is presumptively unreasonable. (See R v Jordan , 2016 SCC 27 at para. 47 ). [ 32 ] Defence delay has two components: That arising from defence waiver and delay caused solely by the conduct of the Defence. Waiver can be explicit or implicit, but in either case, it must be clear and unequivocal.

The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights. (See R v Jordan , at paras. 61 and 63 ; and R v Colter , 2016 ONCA 704 at para. 43 ). [ 33 ] Defence-caused delay is comprised of situations where the acts of the Defence either directly caused the delay, or are shown to be a deliberate and calculated tactic employed to delay the trial. [ 34 ] Frivolous applications and requests are the most straightforward examples of defence delay.

Where the Court and the Crown are ready to proceed but the Defence is not, the Defence will have directly caused the delay. Periods of delay where the Court and Crown are not available will not constitute Defence delay, even if the Defence is not available. (See R v Jordan , at paras. 63-64 ; and R v Coulter , at para. 44 ). [ 35 ] Defence actions legitimately taken to respond to the charges are not defence delay. The Defence must be allowed preparation time even when the Court and Crown are ready to proceed. Defence requests which are not frivolous will not amount to defence delay. (See R v Jordan at para. 65 ).

The period of time remaining once defence delay is deducted is the net delay. If the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut that presumption, the Crown must establish the presence of exceptional circumstances. If it cannot rebut the presumption, a stay will follow.

In general, exceptional circumstances fall under two categories: Discreet events, and particularly complex cases. (See R v Jordan , at paras. 47 and 71 ; and R v Coulter, at para. 34 ). [ 36 ] Exceptional circumstances lie outside of the Crown's control in the sense that they are reasonably unforeseen and reasonably unavoidable, and Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition they will be considered exceptional.

They need not meet a further hurdle of being rare or entirely uncommon. (See R v Jordan , at para. 69 ). [ 37 ] A period of delay caused by a discrete exceptional event should be subtracted from the period of delay for the purpose of determining whether or not the ceiling has been exceeded. Any portion of the delay that could reasonably have been mitigated by the court or Crown should not be subtracted.

If the remaining delay is above the ceiling, then a stay must be entered. (See R v Jordan , at paras. 75-76 ). [ 38 ] The presence of exceptional circumstances is the only basis upon which the Crown can justify a delay above the presumptive ceiling. The seriousness or gravity of the offence cannot be relied on to establish that the case is particularly complex. Chronic institutional delay or the absence of prejudice to the Accused must also not be relied upon.

Once so much time has elapsed, only circumstances that are genuinely outside of the Crown's control and ability to remedy may furnish a sufficient excuse for the prolonged delay. (See R v Jordan , at para. 81 ; and R v Coulter at para. 47 ). [ 39 ] There is no doubt that the COVID-19 pandemic is an exceptional circumstance. It has affected every facet of the court system in a significant manner at some point in time. The particular effect in each instance is something that must be looked at on a case-by-case basis.

While the initial court closures are long behind us, some backlog remains, but that does not mean that a blanket deduction can be made in every case to address that ongoing backlog. [ 40 ] In s.11(

b) applications that dealt with the earlier period of the pandemic, it was quite clear from the record, particularly with regard to court closures, what delay was attributable to COVID-19. As we move further afield from the earlier court closures, it becomes less clear what ongoing delay is still available to be deducted as due to the COVID-19 pandemic. [ 41 ] The Crown bears the burden of demonstrating on the evidentiary record what delay was due to the discrete event that is the COVID-19 pandemic or any other discrete event for that matter.

The Crown must further demonstrate that the delay could not have been mitigated. In order for this court to grant a deduction, the Crown must establish a causal link between the pandemic and the delay the Crown is asking to deduct. (See R v Hinterberger , 2022 ONSC 4860 at para. 44 ; and R v Bui , 2021 ONCJ 379 at paras. 26-27 ). [ 42 ] As Justice Goodman stated in Hinterberger at para. 52 : “COVID-19 does not give the Crown a free pass from 11(

b) challenges. Instead, a review of the record is critical to determine whether the pandemic caused the delay or whether it just ran concurrent to it.” [ 43 ] There is little appellate guidance on this issue, but that which does exist clearly sets out that the Crown is required to provide an evidentiary record to quantify the effect of the COVID-19 pandemic on delay. Mr. Justice Di Luca, sitting as a

summary conviction

appeal court in Gonsalves, held that a causal link between the delay and the COVID-19 pandemic cannot simply be inferred without an evidentiary record to demonstrate the link. The court went on to state that in this case, the trial court could not simply take judicial notice that the process was delayed as a result of the COVID-19 pandemic. (See Rex v Gonsalves , 2022 OJ NO. 4689 ). [ 44 ] The Ontario Court of Appeal has released only two decisions to date on COVID-19 delays and 11(b). In L.L ., the court dealt with the appeal on an 11(

b) application granted by the Ontario Court of Justice. The Crown in that case did not provide any evidence or statistics as to the effect of the COVID-19 pandemic on trial scheduling. The Crown sought leave to bring fresh evidence of a statistical report prepared by the Ministry of the Attorney General's Analytics and Evidence Branch on appeal.

The court denied the application. (See Rex v L.L ., 2023 ONCA 52 ). [ 45 ] In dismissing the Crown's appeal, the court held: “At the hearing of the application, the Crown chose to convey his own state of knowledge about the impact of the pandemic on the scheduling of trials at that location. He made the vague submission about the 'trickle-down' effect of the pandemic on trial scheduling. The application judge drew upon her own knowledge of the culture at the court location where she sits. We see no error in her conclusion that the pandemic had no impact on the scheduling of this case.

The application judge gave careful consideration to this issue. She noted: Nobody doubts the pandemic has wreaked havoc on the criminal justice system. At College Park, many trials had to be adjourned only to the re-scheduled. However, this is not one of those cases. The case entered the justice system when courts had re-opened. The realities of the pandemic were very clear. Trial coordination was evolving and coping. In all of the circumstances, I am of the view the pandemic played no role in the delay of setting this case down for trial.

In the absence of evidence suggesting otherwise, there is no basis...to disturb this finding. The application judge did not err in refusing to find that the impact of the pandemic was an exceptional circumstance as understood in Jordan . We dismiss this count of appeal.” (See Rex v L.L . at paras. 21-23). [ 46 ] In Agpoon , the Court of Appeal dealt with a trial in the Superior Court, which was delayed as the result of the initial court shutdowns.

The court stated that the pandemic and the delay which arose from it must be viewed from a systemic perspective. (See Rex v Agpoon , 2023 OJ NO 2816 ). [ 47 ] We are now almost four years out from the initial court shutdowns. The backlog attributable to the COVID-19 pandemic, if it remains, has become far more of a systemic issue than a discrete event. [ 48 ] The Jordan framework was not meant to address systemic delay. The presumptive ceiling was not calculated with the COVID-19 pandemic in mind.

That being said, we must use the framework we have to try to assess any delay due to the pandemic. [ 49 ] The main legal issue to be decided in this case is whether or not the 18-month presumptive ceiling, or the 30-month presumptive ceiling applies. [ 50 ] The Ontario Court of Appeal dealt with this issue in Shaikh. Mr. Shaikh had a four-day preliminary inquiry scheduled. The matter was not able to be reached until the fourth day of the scheduled preliminary inquiry.

The matter was not able to proceed on the first three days for a number of reasons, including the Crown withdrawing the charges against a Co-accused. (See R v Shaikh , 2019 ONCA 895 ). On the fourth day of the scheduled preliminary inquiry, Counsel for Mr. Shaikh and the Co-accused were removed from the record after a request to withdraw for ethical reasons. Shortly after, new counsel for Mr. Shaikh re-elected a trial in the Ontario Court of Justice with the consent of the Crown. No 11(

b) waiver was sought. The Crown in Shaikh urged the appeal court to find that as Mr. Shaikh' s re-election to the Ontario Court of Justice occurred only after the preliminary inquiry dates has come and gone, that the 30- month ceiling from Jordan should apply. [ 51 ] The Court of Appeal in Shaikh held that the 18-month ceiling applied, relying on paragraph 46 of Jordan , which states: “At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable.

The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry).” (See R v. Jordan , at paras. 46 and 49 ; and R v. Shaikh , paras 49 and 50 ). [ 52 ] The court in Shaikh also relies on footnote 3 of the majority decision in Jordan , which states: “While most proceedings with a preliminary inquiry are eventually tried in the superior court, this is not always the case.

For example, a case may go to trial in the provincial court after a preliminary inquiry if the province in which the trial takes place offers this as an option (such as Quebec), or if the accused re-elects a trial in the provincial court following a preliminary inquiry. In either case, the 30-month ceiling would apply.” [ 53 ] The court in Shaikh speaks of a bright-line approach set out in Jordan and the need for certainty. The Court finds that they are compelled to follow that bright line test and apply the 18-month standard as s.551(1) of the Criminal Code does not permit the Defence to manufacture an 11(

b) by re-electing a mode of trial with a shorter presumptive period of delay. A re-election requires Crown consent and where 11(

b) is a live issue, the Crown should seek an 11(

b) waiver from the defence before consenting to re-election. (See R v Shaikh , at para. 57 ). [ 54 ] The analysis in Shaikh comes down to whether or not the preliminary inquiry is "completed". The court states that it is

imperative to maintain certainty for accused persons and avoid applying the 18-month, 30-month ceiling on a case by case after the fact basis. [ 55 ] I must first decide whether or not it is the 18-month or 30-month ceiling which applies. It is clear here that the preliminary inquiry was not completed. I disagree that this case is distinguishable from Shaikh .

The Court of Appeal is clear, as set out above, that the 18-month ceiling applies, and the policy reasons therefor. [ 56 ] I appreciate that there were some unusual circumstances here which changed the landscape of the prosecution just prior to the dates scheduled for the preliminary inquiry. That being said, the matter would not have been completed in any event due to the unavailability of the Court. The Crown cannot make a decision to deny the Accused access to a preliminary inquiry by withdrawing charges late in the game, and then seek to have the benefit of the higher presumptive ceiling.

In the same way that an Accused person cannot manufacture an 11(

b) by re-electing late in the game. Both of these offend a sense of fairness and are not in keeping with the spirit of the law in Jordan . [ 57 ] As the court states in Shaikh , the Crown did not have to consent to a re-election and could have sought an 11(

b) waiver before doing so. In fact, this is what the court in Shaikh suggests be done. [ 58 ] The Crown in this case chose not to, stating that they believed Shaikh did not apply. The Crown made this tactical decision and must bear the consequences of it. It is clear at the point of re-election that this matter was already within days of the 18-month ceiling. [ 59 ] I agree with the Crown that the periods of time Counsel are not available after the first trial dates offered should be deducted as defence delay. [ 60 ] Those periods are 46 days for Mr. Martino and 36 days for Mr. Pasqualino.

The other periods of defence delay suggested by the Crown do not amount to defence delay for the reasons set out above. [ 61 ] The net delay is, therefore, 689 days for Mr. Martino and 699 days for Mr. Pasqualino. [ 62 ] With respect to COVID delay, I agree with Defence counsel that the 92 days suggested should properly be deducted as delay attributable to the COVID-19 pandemic. The Trial Scheduling Court was implemented to address the COVID-19 backlog in this jurisdiction, and the time taken to bring the matters into that court on two separate occasions should be deducted.

I also agree with the Defence that the time taken to

schedule the first judicial pre-trial was longer than it would otherwise have been due to the COVID-19 backlog and that that period should also be deducted. [ 63 ] The Crown argues for a further 90 days to be deducted from the time it took for the trial or preliminary inquiry dates to be set. I disagree with this. The record before this court does not bear this out. There is no other period of delay that is attributable to the COVID- 19 backlog on the evidence before me.

The first preliminary inquiry dates were set two years after the courts re-opened following the court closures, and were set within a reasonable period of time, keeping in mind the Jordan ceiling. They were also set at a time when the court was significantly under-resourced with multiple judicial vacancies that went unfilled for a lengthy period of time. The trial dates were set more than three years after the Court re-opened following the COVID-19 pandemic closures. The matter was prioritized, and the first dates offered were just two-and-a-half months into the future.

This is an incredibly quick turnaround in this jurisdiction. [ 64 ] I find that there is no delay attributable to the COVID-19 pandemic demonstrated on the record before the court during these two periods of time. [ 65 ] The total delay to be deducted as due to the COVID-19 pandemic will be 92 days in each case. [ 66 ] After subtracting the further 92 days, the delay for Mr. Martino is 597 days or approximately 19 3/4 months. The delay for Mr. Pasqualino is 607 days or just over 20 months. Both of these matters fall above the presumptive ceiling and a stay is ordered in both cases.

Released: January 26, 2024 Signed: Justice Jessica Sickinger