R. v. Luoma, [2016] O.J. No.

5891
Ontario Judgments

Ontario Court of Justice

P.A. Schreck J.
Heard: September 19-20, 2016.
Judgment: November 4, 2016.
Brampton Court File No.: 15-2371
[2016] O.J. No. 5891 | 2016 ONCJ 670
Between Her Majesty the Queen, and Matthew Luoma

(62 paras.)

Case Summary

Criminal law — Constitutional issues — Canadian Charter of Rights and Freedoms — Legal rights —
Procedural rights — Delay — Trial within a reasonable time — Remedies for denial of rights — Specific
remedies — Stay of proceeding — Application by accused for stay of proceedings for delay allowed —
Accused was charged with drinking and driving offences in November 2014, but information was not sworn
until over two months later — Trial began almost 22 months after arrest — Delay should be counted from
time of arrest — Delay was 21 months and three weeks, three months of which was attributable to defence
— Net delay of 18 months and three weeks exceeded ceiling and there were no exceptional circumstances.

Application by the accused for a stay of proceedings for delay. The accused was arrested on drinking and driving
charges on November 28, 2014, but the information was not sworn until over two months later. A judicial pre-trial
had to be re-scheduled because of the unavailability of the accused's counsel. A new judicial pre-trial was
scheduled for approximately two months later. The accused's trial began almost 22 months after his arrest. The
accused alleged that his right to a trial within a reasonable time was breached as the total delay exceeded the
18-month ceiling established in Jordan. The Crown argued that the time should be calculated from when the
information was sworn, not the date of the arrest, with the result that, once defence delay was subtracted, the
total delay was under 18 months.

HELD: Application allowed.

The delay should be counted from the time of arrest. While the accused may not have been charged, between
the date of the offence and the swearing of the information, he was subject to the very real prospect of being
charged, he believed that he was subject to the requirements of the promise to appear that he had been issued,
he travelled to attend court, attended a police station for photographs and fingerprinting and was subject to a 90-
day suspension of his licence. As a result, the total delay was 21 months and three weeks. Two months and
three weeks of the delay was attributable to the defence in relation to the rescheduling of the judicial pre-trial,
and an additional four days was attributable to the defence as earlier trial dates were available. As a result, the
net delay was 18 months and three weeks. The net delay exceeded the ceiling of 18 months and there were no
exceptional circumstances.

Statutes, Regulations and Rules Cited

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Canadian Charter of Rights and Freedoms, 1982, s. 8, s. 10 R s. 11, s. 11(b)

Criminal Code, s. 505

Highway Traffic Act, s. 48.3

Identification of Criminals Act,

Counsel

P. Quilty, counsel for the Crown.

P.B. Keaney, counsel for the defendant.

REASONS FOR JUDGMENT

P.A. SCHRECK J.

1 The central issue in this case is whether the point in time from which delay is calculated for the purposes of s.
11(b) of the Charter must always be when the Information is sworn. Matthew Luoma was arrested on drinking and
driving charges on November 28, 2014, but for some reason no Information was sworn until over two months later.
Mr. Luoma's trial began almost 22 months after his arrest. He alleges that his right to a trial within a reasonable time
has been breached as the total delay exceeds the 18-month ceiling established in R. v. Jordan, 2016 SCC 27.

2 The Crown submits that the time should be calculated from when the Information was sworn, not the date of
arrest. As a result, once defence delay is subtracted, the total delay is under 18 months. Even if it is not, the Crown
submits that there are transitional exceptional circumstances justifying the delay.

3 For the reasons that follow, I conclude that the delay should be counted from the time of at Test. The application
is granted and the charges are stayed.1

I. EVIDENCE

A. The Arrest and Swearing of the Information

4 Matthew Luoma, a resident of Sudbury, Ontario, was arrested in Brampton on November 28, 2014 on charges of
operating a motor vehicle while his ability to do so was impaired and while the concentration of alcohol in his blood
exceeded the legal limit. He was released on a Promise to Appear which required him to attend a Peel Regional
Police division on December 8, 2014 to be fingerprinted and photographed in accordance with the Identification of
Criminals Act, which he presumably did.

5 The Promise to Appear also required Mr. Luoma to attend court in Brampton on December 17, 2014. On that
date, he travelled from Sudbury to attend court but found that his name was not on the docket. Mr. Luoma obtained
documentation from the Peel Police attesting to his attendance in court. He also attended the Crown Attorney's
Office and completed a disclosure request form.

6 As it turns out, for reasons which were not fully explained, the police did not swear an Information following Mr.
Luoma's release on a Promise to Appear, as required by s. 505 of the Criminal Code. An Information was finally
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sworn on February 4, 2015, over two months later and Mr. Luoma was served with a summons requiring him to
attend court on March 4, 2015.

B. Disclosure Requests and the Crown Pre-Trial Conference

7 On February 23, 2015, counsel retained by Mr. Luoma wrote to the Crown requesting disclosure. An initial
disclosure package was provided to counsel's agent on the first court appearance on March 4, 2015. The matter
was adjourned to April 1, 2015 and then to April 23, 2015. On that date, the Court was advised that a Crown pre-
trial was scheduled for May 26, 2015, so the matter was adjourned to May 28, 2015.

8 Following the Crown pre-trial, Crown counsel wrote a letter to the applicant's counsel indicating that she had
requested a typed version of one of the officer's notes that were illegible, video of the booking and cells areas of the
police division, and records relating to the maintenance of the Intoxylizer.2 The booking and cells videos had been
mentioned in the initial disclosure request.

9 On the May 28, 2015 court appearance, the disclosure relating to the Intoxylizer was provided. Crown counsel
who appeared in court seemed to be under the impression that this was the only outstanding disclosure. The matter
was adjourned to June 25, 2015 to allow counsel to review the disclosure that had been provided. On that date, the
agent for the applicant's counsel advised the Court that some disclosure was still outstanding. The matter was then
adjourned to July 16, 2015.

10 On June 29, 2015, Crown counsel wrote to the applicant's counsel indicating that the booking video and other
items were available to be picked up. The new disclosure was picked up on July 9, 2015, but apparently did not
include the booking video. On July 16, 2015, the Court was advised that some disclosure remained outstanding and
the matter was adjourned to July 30, 2015. On that date, the agent for the applicant's counsel advised the Court
that a Crown pre-trial conference was scheduled for August 5, 2013. The matter was accordingly adjourned to
August 13, 2015. On that date, the agent for the applicant's counsel requested that the matter be adjourned to
September 3, 2015 so that counsel could have discussions with his client.

11 On September 2, 2015, counsel for the applicant wrote a letter to the Crown listing the disclosure items said to
be outstanding, including the booking video. At the court appearance the following day, the Court was advised that
a judicial pre-trial was scheduled for October 19, 2015, so the matter was adjourned to October 22, 2015.

12 On September 4, 2015, Crown counsel wrote to the applicant's counsel noting that some of the items listed in
his September 2 letter had not been previously requested. She also advised that she had made another request of
the police to provide the booking video, which appears not to have been included in the package that was picked up
on July 9.

C. The Re-Scheduled Judicial Pre-Trial and Setting of the Trial Dates

13 About a week before the October 19, 2015 judicial pre-trial, the applicant's counsel wrote to the trial co-ordinator
asking that it be rescheduled as he was unavailable at the appointed time, although he was available earlier in the
day. The trial co-ordinator was unable to accommodate the request. As a result, the judicial pre-trial did not take
place. A new judicial pre-trial was scheduled for December 21, 2015. At the next appearance on October 22, 2015,
the matter was adjourned to January 14, 2016 at the request of the Applicant's counsel, who was away until the
second week of January.

14 On January 14, 2016, trial dates of September 19 and 20, 2016 were scheduled.

II. ANALYSIS

A. Overview: The New Framework

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15 On July 8, 2016, the Supreme Court of Canada released its judgment in R. v. Jordan, in which it established a
new framework to be applied in s. 11(b) Charter applications. At the heart of the new framework is a "ceiling"
beyond which delay is presumptively unreasonable unless the Crown can establish that the circumstances are
exceptional. In this case, that ceiling is 18 months.

16 The approach required by the new framework was recently summarized in R. v. Coulter, [2016] O.J. No. 5005
(C.A.) at paras. 34-40:

Calculate the total delay, which is the period from the charge to the actual or anticipated end of trial
(Jordan, at para. 47).
Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan, at para. 66).
Compare the Net Delay to the presumptive ceiling (Jordan, at para. 66).
If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the
presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it
cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances
fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).
Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the
purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).
If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was
particularly complex such that the time the case has taken is justified and the delay is reasonable (Jordan,
at para. 80).
If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the
delay is unreasonable (Jordan, para. 48).

17 The new framework applies to cases currently in the system: Jordan at para. 95. However, for those cases, the
determination of whether exceptional circumstances exist will take into account the parties' reasonable reliance on
the law as it previously existed: Jordan at para. 96.

B. The Total Delay

(i) The Proper Starting Point

18 The total delay, as that term is used in Coulter, is usually easy to determine. However, in this case the
Information was not sworn until over two months after Mr. Luoma's arrest. If the total delay is calculated from the
time of arrest, it is 21 months and three weeks. If it is calculated from the time the Information was laid, it is 19
months and two weeks. Given my conclusions respecting defence delay as outlined later in these reasons, the
calculation of the total delay will determine whether the net delay is over or under the ceiling.

(ii) R v. Kalanj

19 In R. v. Kalanj, [1989] 1 S.C.R. 1594, the Supreme Court of Canada held that the meaning of the term "charged
with an offence" in s. 11 of the Charter refers to the time at which an Information is sworn. While there was some
suggestion during submissions that the language in Jordan has altered the analysis such that the time now begins
to run at the time of arrest, I see nothing in Jordan that supports that conclusion. Kalanj is not mentioned in Jordan,
and it is difficult to accept that the Court overruled its own earlier decision without saying so: R. v. Gandhi, [2016]
O.J. No. 4638 (S.C.J.) at para. 4.3

20 In this case, given my conclusions respecting defence delay, calculating the delay from the swearing of the
Information would mean that the failure of the police to proceed in a timely fashion had the effect of relieving the
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Crown of the burden of justifying presumptively unreasonable delay. The Crown acknowledges the apparent
unfairness of this, but submits that I am bound by Kalanj and that any apparent unfairness must be taken into
account at some other point in the analysis, such as whether the defence can establish that the case took markedly
longer than it reasonably should have.

21 The approach advocated by the Crown has been followed in some pre-Jordan cases where there was a delay
between the time of arrest and the time the Information was sworn. For example, in R. v. Duszak, [2013] O.J. No.
5015 (C.J.), Green J. found that the delay in the swearing of the Information in that case caused patent unfairness.
To remedy the situation, Green J. determined that the "intake period" should begin at the time of arrest, which
would have the effect of shortening the period of time that would otherwise be treated as neutral (at para. 51):

Restated: irrespective of the date on which an Information is finally sworn, I see no reason why, in a routine
case of this nature, the period neutrally attributed to the need to assemble, review and distribute the
disclosure materials ought not to commence upon a defendant's release from the station. Whether an
Information is sworn the same day or three weeks after an accused's arrest and release, as here, on a
Promise to Appear, the essential disclosure package in such cases should be available no later than four
weeks after the accused walks out of the police station.

See also R. v. Hashmi, [2016] O.J. No. 1116 (C.J.) at para. 32 and R. v. Kopalasingam, [2016] O.J. No. 4200 (C.J.)
at paras. 21-26.

22 The difficulty with applying the Duszak approach to the post-Jordan framework is that the "intake period" is no
longer separated from the overall net delay. The focus is now on the ceiling. The burden on the applicant of
establishing that delay is unreasonable for cases under the ceiling is significant and stays will only be granted in
"clear cases": Jordan at para. 83. The burden on the Crown of establishing that the delay is reasonable for cases
over the ceiling is also significant. In many if not most cases, whether the net delay is over or under the ceiling will
effectively determine the outcome of the application. As a result, even if the delay in swearing the information is
taken into account in some way, the inaction of the police can nonetheless result in the Applicant carrying a far
heavier burden than he or she otherwise would. In that case, the rhetorical question asked by Green J. in Duszak at
para. 47 still arises: "Can it truly be the law that the scope of an accused's constitutional rights can be defined by
the whim, arbitrary practice or convenience of the police?" I do not think that it can.

23 There is no doubt that I am bound by Kalanj, in which the Court clearly concluded that the calculation of delay
for s. 11(b) purposes starts with the swearing of the Information. However, in my view the doctrine of stare decisis
does not require that I apply that conclusion in a contextual vacuum. Rather, I must consider the principles that led
the Court to conclude as it did and apply those same principles to the case before me.

(iii) The Rationale Behind the Conclusion in Kalanj

24 In Kalanj, the accused were arrested and the released on the same day without any charges being laid. Over
eight months later, an Information was sworn. During the time between the initial arrest and the swearing of the
Information, the police had reviewed numerous intercepted communications and had interviewed witnesses who
had been identified through the interceptions. The central issue before the Supreme Court of Canada was whether
the pre-charge delay should be considered in the s. 11(b) calculus.

25 After reviewing a number of earlier decisions, a majority of the Court, per McIntyre J., concluded that the term
"charge" ins. 11 of the Charter refers to the swearing of the Information. In coming to that conclusion, the majority
noted that different sections of the Charter were designed to apply to different parts of the judicial process. Section
10 affords certain protections to individuals subject to arrest while s. 11 applies to the later stage when judicial
proceedings have been instituted. The majority explained the reason for the distinction (at para. 19):

The length of the pre-information or investigatory period is wholly unpredictable. No reasonable

assessment of what is, or is not, a reasonable time can be readily made. Circumstances will differ from
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case to case and much information gathered in an investigation must, by its very nature, be confidential. A
court will rarely, if ever, be able to fix in any realistic manner a time limit for the investigation of a given
offence. It is notable that the law -- save for some limited statutory exceptions -- has never recognized a
time limitation for the institution of criminal proceedings. Where, however, the investigation reveals
evidence which would justify the swearing of an information, then for the first time the assessment of a
reasonable period for the conclusion of the matter by trial becomes possible. It is for that reason that s. 11
limits its operation to the post-information period. Prior to the charge, the rights of the accused are
protected by general law and guaranteed by ss. 7, 8, 9 and 10 of the Charter. [Emphasis added].

26 The majority's primary consideration was that the reasonableness of the investigatory process could not and
should not be assessed by the courts. Such an assessment only becomes possible when "the investigation reveals
evidence which would justify the swearing of an information." Implicit in this reasoning is the presumption that once
the police have sufficient evidence to justify swearing an information, they should do so.

27 As the majority in Kalanj noted (at para. 21), the timing of the swearing of the Information is statutorily controlled
by s. 505 of the Criminal Code, which provides as follows:

505.Where
(a) an appearance notice has been issued to an accused under section 496, or
(b) an accused has been released from custody under section 497 or 498,
an information relating to the offence alleged to have been committed by the accused or relating to an
included or other offence alleged to have been committed by him shall be laid before a justice as soon as
practicable thereafter and in any event before the time stated in the appearance notice, promise to appear
or recognizance issued to or given or entered into by the accused for his attendance in court.

28 In this case, the police failed to comply with s. 505. I cannot accept that the scope of constitutional protection
can be potentially diminished because the police fail to do what the Criminal Code requires of them.

(iv) A Principled Application of Kalanj

29 In my view, the conclusion in Kalanj was never intended to apply to a situation such as in the case at bar where
the investigation has been completed and the accused has been arrested and is subject to the court's process but
where the police, in contravention of s. 505, have simply failed to have an Information sworn due to some
administrative oversight. In my view, the principles in Kalanj lead to the conclusion that the s. 11(b) clock starts to
tick at the point when an Information is sworn or ought to have been sworn. Under this approach, the concerns
driving the result in Kalanj about the inability of the courts to assess the investigatory progress of the case simply do
not arise and the police are not able to artificially manipulate the s. 11(b) calculus, either intentionally or
inadvertently.

30 I find support for my conclusion in R. v. Milani (2014), 120 O.R. (3d) 641 (C.A.), lv. to appeal ref'd [2014]
S.C.C.A. No. 426 (at paras. 47-49), where the Court considered a situation where a charge was withdrawn and then
re-laid:

Section 11(b) serves to protect the charged person's right to freedom and to be dealt with fairly and without
delay within the court system. The objective is to have an efficient system for dealing with accused persons.
The ambit of s. 11(b) does not extend on a societal level to the speedy investigation of crime. Extending the
protection of s. 11(b) to persons who are not actively charged with an offence would not advance the
objectives of this protection.
There is a caveat however. There are circumstances in which unilateral state action may control whether or
not charges are withdrawn or relaid. In such circumstances, where the formal charge has been withdrawn
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with the intention of laying a new charge, or an information has been quashed with a new information laid, it
makes sense to consider the entire period from when the first charges were laid as part of the s. 11(b)
analysis. In such circumstances, the person, although not formally charged during the "gap" period,
remains subject to the judicial process, and his s. 11(b) interests will continue to be affected by the
knowledge or expectation that further charges are imminent. It is reasonable to conclude that he remains
subject to the process of the court. That is precisely what occurred in R. v. Antoine [(1983), 41 O.R. (2d)
607 (C.A.)].
For all of these reasons, I would interpret s. 11(b) as being engaged during any period that an accused
person is in fact subject to charges, or when a person no longer actively charged remains subject to the
very real prospect of new charges. [Emphasis added].

31 There is no principled distinction between the situation described in Milani and that in the case at bar. While the
applicant may not have been "formally charged" between November 28, 2014 and February 4, 2015, he was
certainly "subject to the very real prospect" of being charged. Not only was the Applicant "subject to the very real
prospect" of being charged, he believed that he was and was subject to the requirements of the Promise to Appear.
He travelled from Sudbury to attend court. He attended at the police station to have his photographs and
fingerprints taken and was subject to a 90-day suspension of his driver's licence pursuant to s. 48.3 of the Highway
Traffic Act.

32 Several cases have held that notwithstanding the conclusion in Kalanj, a person is "charged" once they are
subject to the processes of the court. In R. v. Egerov, [2005] O.J. No. 6171 (C.J.), Duncan J. stated (at note 2):

The Crown's Factum contends that the time runs from the swearing of the information, March 25. This
position is supported by Kalanj, a case where the accused was arrested and released without charge or
process. An information was sworn eight months later. But in the case of release on an appearance notice,
promise to appear, undertaking or recognizance before officer in charge and the charge being laid
thereafter (i.e. the procedure in section 505 of the Code), it is difficult to see that the accused is not
"charged" upon his being subject to the obligations imposed by the release. Indeed the release document
itself refers to him as being an "accused" who is alleged to have committed an offence: see forms 9, 10 11
and 11.1 CC

See also R. v. Swaminathan (2015), 21 C.R. (7th) 372 (Ont. C.J.) at paras. 18-23, rev'd without reference to this
point [2016] O.J. No. 4150 (S.C.J.) and R. v. Nash, [2014] O.J. No. 4878 (S.C.J.) at para. 7.

33 More recently, in R. v. Millar, [2016] B.C.J. No. 2144 (S.C.) it was also held that the critical point in time for the
purposed of a s. 11(b) analysis is when the accused becomes subject to the process of the court. That case
involved a fact situation opposite to that in the case at bar in that the Information was sworn but the accused did not
become aware of its existence until he was arrested several months later. Notwithstanding Kalanj, the Court
concluded (at paras.111-136) that the time should be calculated from when the accused was arrested.

34 For the foregoing reasons, I conclude that the starting point for assessing the delay in this case is November 28,
2014. The total delay is therefore 21 months and three weeks.

C. Defence Delay
(i) Overview

35 The next step in the Jordan analysis is to subtract from the total delay any period which is properly
characterized as defence delay. As the Court explained in Jordan, there are two components of defence delay. The
first, waiver, has no application in this case as there is no suggestion that the applicant has waived any of the delay.
The second was explained in Jordan as follows (at paras. 63-65):
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The second component of defence delay is delay caused solely by the conduct of the defence. This kind of
defence delay comprises "those situations where the accused's acts either directly caused the delay ... or
the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial"
(Askov, [ [1990] 2 S.C.R. 1199] at pp. 1227-28). Deliberate and calculated defence tactics aimed at causing
delay, which include frivolous applications and requests, are the most straightforward examples of defence
delay. Trial judges should generally dismiss such applications and requests the moment it becomes
apparent they are frivolous.
As another example, the defence will have directly caused the delay if the court and the Crown are ready to
proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the
defence. However, periods of time during which the court and the Crown are unavailable will not constitute
defence delay, even if defence counsel is also unavailable. This should discourage unnecessary inquiries
into defence counsel availability at each appearance.
To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence
delay. For example, the defence must be allowed preparation time, even where the court and the Crown
are ready to proceed. In addition, defence applications and requests that are not frivolous will also generally
not count against the defence. We have already accounted for procedural requirements in setting the
ceiling. And such a deduction would run contrary to the accused's right to make full answer and defence.
While this is by no means an exact science, first instance judges are uniquely positioned to gauge the
legitimacy of defence actions.

36 It is important to note that they type of conduct that is considered "defence delay" under the Jordan framework
is significantly different than what would have constituted delay caused by the "actions of the accused" under the
Morin framework. In R. v. Morin, [1992] 1 S.C.R. 771, the majority explained delay caused by the actions of the
accused in the following terms (at para. 44):

This aspect of the reasons for the delay should not be read as putting the "blame" on the accused for
certain portions of delay. There is no necessity to impute improper motives to the accused in considering
this factor. Included under this heading are all actions taken by the accused which may have caused delay.
In this section I am concerned with actions of the accused which are voluntarily undertaken. Actions which
could be included in this category include change of venue motions, attacks on wiretap packets,
adjournments which do not amount to waiver, attacks on search warrants, etc. I do not wish to be
interpreted as advocating that the accused sacrifice all preliminary procedures and strategy, but simply
point out that if the accused chooses to take such action, this will be taken into account in determining what
length of delay is reasonable.

37 It is clear that the Jordan definition of defence-caused delay is much narrower than it was under Morin. Under
Morin, legitimate tactical decisions that had the effect of lengthening the overall period of delay counted against the
defence. Under Jordan, they do not. Only "frivolous" conduct has that effect.

38 In this case, the Crown submits that there were two periods of defence delay: delay caused by the defence's
insistence on having full disclosure before setting a trial date and delay caused by the defence's requested
rescheduling of the judicial pre-trial. I will consider each in turn.

(ii) Insistence on Disclosure

39 Disclosure, including the booking video, was initially requested on February 23, 2015. Some disclosure was
provided at the first court appearance and there was a telephone pre-trial conference between Crown and defence
counsel on May 26, 2015. A few days later, on May 29, 2015, Crown counsel wrote a letter to the Applicant's
counsel in which she stated:

I am writing to advise, that further to our phone pretrial conducted on May 26, 2015, I requested the
following items: typed notes of PC Searchill, booking and cells video, and 8000C disclosure package.
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...

After my review of your disclosure letter and the file, I have determined that disclosure is complete from the
Crown's perspective with the exception of the DVD synopsis that remains outstanding. The Crown's office
has put in a request for this item, although it is not essential to setting a trial date.

40 The Crown submits that in light of this letter, it was incumbent on the defence to schedule a judicial pre-trial at
the next court appearance on June 25, 2015. The defence did not schedule a judicial pre-trial until the September 3,
2015 court appearance. As a result, the period between June 25 and September 3, about two months and one
week, is defence delay.

41 In support of this submission, the Crown relies on Code J.'s decision in Gandhi and submits that the situation in
the case at bar is similar to what occurred in that case, as described in paras. 31-32:

The first of these two periods occurred over the course of three appearances, on June 13, June 27, and
August 1, 2014. On all three occasions, Mr. Canton was Crown counsel. The case was over six months old
by the time of the first of these appearances and it was almost eight months old by the time of the third of
these appearances. As summarized above, Mr. Canton responsibly and forcefully took the position on all
three occasions that delay was becoming a concern, that "substantial disclosure" had been made, that it
was "certainly ... enough for a JPT," and that judicial management would "benefit" the case by having "the
officer in charge attend" in order to resolve ongoing disclosure issues. Mr. Kayfetz resisted this approach
and insisted on receiving one "final piece of disclosure" before even setting a date for a JPT. It appears he
finally relented on August 1, 2014, under pressure from the Crown, and agreed to set a date for a JPT.
In my view, this is classically an example of what the majority in Jordan described as defence actions that
were not "legitimately taken to respond to the charges" and that "directly caused the delay." There
appeared to be disclosure problems in this case, partly because many of the relevant documents were in
the possession of third parties (the MacPhees and their company, the alleged victim of the fraud, and Mr.
Merali and his company, where the cheques were cashed), and partly because the officer in charge was
the only officer in the police division assigned to frauds and he needed help. The Justices of the Peace
sitting in busy remand courts could not solve this problem but an experienced judge conducting a JPT, with
the officer in charge and both counsel present, could solve it. The Crown repeatedly suggested this solution
to the problem and the defence repeatedly resisted it.

42 I do not agree that the situation in this case is similar. In Gandhi, the Crown expressed concern about the delay
and repeatedly and "forcefully" suggested scheduling a judicial pre-trial in order to resolve outstanding disclosure
issues. In this case, other than expressing the opinion that disclosure was "complete from the Crown's perspective",
Crown counsel made no comment about the delay. She did not suggest scheduling a judicial pre-trial in her May 29
letter. Furthermore, unlike in Gandhi, where the disclosure issues arose because some of the requested material
was in the hands of third parties, in this case the outstanding disclosure related to items in the possession of the
police. There was no need for a judge to "solve" the disclosure problem. The Crown simply needed to disclose what
had been requested.

43 I accept that the defence is not entitled to "every last bit of disclosure" before setting a trial date: Gandhi at
paras. 34-35; R. v. Lahiry (2011), 283 C.C.C. (3d) 525 (Ont. S.C.J.) at paras. 106-115. However, an examination of
the record in this case reveals that the defence did not insist on every last bit of disclosure before scheduling a
judicial pre-trial. In the May 29, 2015 letter, Crown counsel indicated that the items sought by the defence had been
requested from the police. At the next court appearance on June 25, 2015, Crown counsel appearing in court (who
was not Crown counsel who had written the letter) indicated that a three-week adjournment would be sufficient to
obtain the outstanding disclosure. At the next appearance on July 16, 2015, the agent indicated that he had been
told that the disclosure would be provided "this week, either today or tomorrow". The matter was accordingly
adjourned until July 30, 2015. At each stage, the defence was led to believe that disclosure was imminent.
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44 By the July 30, 2015 date, a Crown pre-trial conference had been scheduled for August 5, 2015. At the next
appearance on August 13, 2015, the matter was adjourned to September 3, 2015 so that counsel could obtain
instructions. On September 3, the judicial pre-trial was scheduled for October 19, 2015. Importantly, it appears that
the booking video had still not been provided by then, as Crown counsel wrote a letter on September 4, 2015
indicating that she had made another request for the police to provide it. Thus, it is clear that the defence was
willing to schedule a judicial pre-trial without the booking video and in fact did so.

45 It is unclear when the booking video was finally provided. It was clearly no earlier than September 4, 2015, over
six months after it was first requested. The booking video is created by and in the possession of the police and is
routinely requested and provided in drinking and driving cases. While the Crown may have thought that disclosure
was complete "from its perspective", the booking video was not "clearly irrelevant" and the defence was entitled to
it. There is no reason why it should have taken so long to disclose it in this case. While it would have been open to
the defence to schedule a judicial pre-trial earlier, in my view this was not "delay caused solely by the conduct of
the defence": R. v. Korzh, [2016] O.J. No. 3910 (S.C.J.) at para. 21; R. v. Hill, [2016] O.J. No. 5482 (unreported,
September 22,2016, Ont. C.J.) at para. 33. The Crown bears responsibility for it as well. I am far from satisfied that
there was "a deliberate and calculated tactic employed to delay the trial." In my view, none of this period can
properly be characterized as defence delay.

(iii) The Re-Scheduled Judicial Pre-Trial

46 A judicial pre-trial had been scheduled for October 19, 2015, to be conducted by teleconference. About a week
before it was to take place, counsel for the Applicant attempted to re-schedule the judicial pre-trial to sometime
earlier or later on October 19 as he was no longer available at the appointed time. No other times slots were
available. As a result, the judicial pre-trial did not take place. At the next court appearance on October 22, 2015, a
new judicial pre-trial was scheduled for December 21, 2015. At the request of the defence, the matter was
adjourned to January 14, 2016.

47 The Crown submits that but for the conduct of the defence, the trial date would have been set on October 22,
2015. Instead, it was set on January 15, 2016. As a result, this period should be characterized as defence delay.

48 Counsel for the Applicant submits that because he tried to re-schedule the judicial pre-trial but the trial co-
ordinator was unable to accommodate him, the delay is the result of an institutional lack of resources and is not
defence delay. I disagree. In this jurisdiction, judicial pre-trials are booked several weeks in advance and take place
one after the other, with little or no time in between. The system cannot be expected to keep time free in case
counsel need to re-schedule on short notice.

49 In my view, this was a situation where "the court and Crown are ready to proceed, but the defence is not":
Jordan at para. 64. Furthermore, the matter could have returned on December 21, 2015 or the following day to set
a trial date, but was not because the defence requested that the matter return in the second week of January.

50 For these reasons, I conclude that the period between October 22,2015 and January 15,2016, a total of just
over two months and three weeks, is properly characterized as defence delay.

(iv) Total Defence Delay

51 Trial dates of September 15 and 16, 2016 were offered on which the defence was unavailable but the Crown
was. The defence accepts that the four days between then and the beginning of the trial is defence delay. This
rounds the total defence delay to three months.

D. The Net Delay

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52 Based on the foregoing, I conclude that the net delay in this case is approximately 18 months and three weeks.
As this exceeds the ceiling established in Jordan, the delay is presumptively unreasonable unless the Crown can
establish that there are exceptional circumstances.

E. Transitional Exceptional Circumstances

(i) Overview

53 The Crown submits that in this case there were "transitional exceptional circumstances." This concept was
explained in Jordan (at para. 96):

First, for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise
where the charges were brought prior to the release of this decision. This transitional exceptional
circumstance will apply when the Crown satisfies the court that the time the case has taken is justified
based on the parties' reasonable reliance on the law as it previously existed. This requires a contextual
assessment, sensitive to the manner in which the previous framework was applied, and the fact that the
parties' behaviour cannot be judged strictly, against a standard of which they had no notice. For example,
prejudice and the seriousness of the offence often played a decisive role in whether delay was
unreasonable under the previous framework. For cases currently in the system, these considerations can
therefore inform whether the parties' reliance on the previous state of the law was reasonable. Of course, if
the parties have had time following the release of this decision to correct their behaviour, and the system
has had some time to adapt, the trial judge should take this into account.

The Crown submits that such circumstances exist in this case for two reasons. First, due to the way trials were
scheduled under the old framework, there may have been dates when the Crown and the court were available and
the defence was not, but this was never noted as it was not relevant at the time. Second, the applicant did not file
materials in support of a s. 11(b) application until after the release of Jordan. I will deal with each in turn.

(ii) The Possibility That There May Have Been Earlier Available Dates

54 The Crown's argument, as I understand it, is as follows. When the parties attended the trial co-ordinator's office
on January 15, 2016, trial dates of January 18 and 19, 2016 were offered. Not surprisingly, neither party was
available. In keeping with the procedure in place at the time, the defence indicated that it had no availability before
June 13, 2016 and, as a result, neither the trial co-ordinator nor the Crown indicated whether they had any
availability during this period. Trial dates of July 7 and 8, 2016 were also offered, but neither party was available.
Once again, the defence indicated that it had no availability between those dates and September 12, 2016, so there
was no inquiry with respect to the court's or Crown's availability. The Crown submits that there may have been
dates between January 19 and June 13, 2016 and between July 9 and September 12, 2016 on which the court and
the Crown was available but, relying on the law as it existed at the time, the parties did not inquire whether this was
the case. This, the Crown submits, somehow constitutes an exceptional transitional circumstance.

55 I do not accept this argument. While the Crown is correct that the availability of the court and Crown were not
ascertained because of the defence's unavailability, it is unknown what that availability would have been. The time
between the setting of the trial date and the date that was chosen was approximately seven months, which is by no
means unusual in this jurisdiction. As this is a case where the net delay exceeds the ceiling, the burden is on the
Crown to show that the delay was not unreasonable. It cannot discharge that burden by speculating that there may
have been dates where the Crown and the court were available and the defence was not. I note that the Crown has
adduced no evidence as to its availability during the periods when the defence was unavailable.

(iii) The Fact That No Application Was Brought Prior to the Release of Jordan

56 The second argument advanced by the Crown seems to be based on the fact that the trial date was set before
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Jordan was decided but no s. 11(b) application was brought until after the decision was released. The Crown relies
on the following passage from Jordan (at para. 102):

Ultimately, for most cases that are already in the system, the release of this decision should not
automatically transform what would previously have been considered a reasonable delay into an
unreasonable one.

As I understand the argument, the lack of an earlier s. 11(b) application shows that the delay in this case would
previously have been considered as reasonable, so the release of Jordan should not result in it being considered
unreasonable.

57 There are several problems with this argument. First, counsel for the applicant advised the Court that the failure
to bring an earlier application was an error on his part for which he takes responsibility. I have no reason to doubt
his word. In any event, there may be many valid reasons why counsel may have chosen not to bring an application
before Jordan but would choose to do so now. For example, as observed in Jordan, with the former framework the
presence or absence of prejudice was often determinative, yet prejudice was often difficult to establish: Jordan at
paras. 33-34. In my view, it would be inappropriate for me to speculate as to why no application was brought earlier.

58 Second, I am far from persuaded that the delay in this case would not have been found to be unreasonable
under the former framework. Courts in this jurisdiction did not have a high level of tolerance for institutional delay,
and cases with far less delay were routinely stayed: R. v. Reynolds, [2016] O.J. No. 5300 (C.J.) at paras. 16-17; R.
v. Ashraf [2016] O.J. No. 5079 (C.J.) at paras. 47-48

59 Third, even if the delay would not have been deemed unreasonable under the old framework, this does not
mean that it is reasonable under the new one. The Court said that the release of its decision would not
"automatically transform" reasonable delay into unreasonable delay. It did not say that the new framework would
always result in the same disposition as the old one.

60 Finally, the only inference that can potentially be drawn from the failure to bring a s. 11(b) application before the
release of Jordan is that the delay did not prejudice the applicant. However, the presence or absence of prejudice is
no longer part of the s. 11(b) analysis once the presumptive ceiling is reached: Jordan at para. 54.

61 I therefore conclude that the Crown has failed to establish that there are exceptional circumstances in this case,
transitional or otherwise.

III. DISPOSITION

62 For the foregoing reasons, the application is granted. The proceedings are stayed.

P.A. SCHRECK J.

1 Mr. Luoma has also applied to exclude evidence on the basis of an alleged violation of his s. 8 Charter rights. Given
my conclusion on the s. 11(b) application, I need not decide this issue.

2 Crown counsel's letter indicates that the initial disclosure request, dated February 23, 2015, was not received by the
Crown's office until May 28, 2015. However, the fax confirmation sheet in the Application Record indicates that the
initial request was successfully faxed to the Crown's office on February 23, 2015. It appears to have been faxed a
second time on May 28, 2015.

3 Cf R. v. Wong, 2016 ONSC 5374 at paras. 55-59.

End of Document