R. v. Wookey, 2021 ONCA 68

Her Majesty the Queen v. Wookey

Ontario Reports Court of Appeal for Ontario

Watt, Trotter and Zarnett JJ.A.

February 3, 2021

154 O.R. (3d) 145 | 2021 ONCA 68

APPEAL from convictions and sentence imposed by Bigelow J. on September 7, 2017, and December 21, 2017, respectively, for possession and trafficking.

Counsel: Joseph Wilkinson and Michael Lacy, for appellant. Kevin Wilson and Sandy Thomas, for respondent.

The judgment of the court was delivered by

TROTTER J.A.: —

A. Overview

1Adam Wookey was convicted of two counts of trafficking a controlled substance, contrary to s. 5(1) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19 ("CDSA"), and two counts of possession of a controlled substance for the purposes of trafficking (CDSA, s. 5(2)). He received a global sentence of 46 months' imprisonment and a $165,000 fine.

2The appellant advances numerous grounds of appeal against his convictions and sentence. In my view, it is only necessary to address one of the grounds against conviction -- unreasonable delay. The following reasons explain why I would allow the appeal from conviction on this basis.

3In short, the trial judge erred in his s. 11(b) [of the Canadian Charter of Rights and Freedoms] analysis by applying the 30-month presumptive ceiling set out in R. v. Jordan, [2016] 1 S.C.R. 631, [2016] S.C.J. No. 27, 2016 SCC 27. Because the appellant was tried in the Ontario Court of Justice, without a preliminary inquiry, the case was governed by the 18-month ceiling: R. v. Shaikh (2019), 148 O.R. (3d) 369, [2019] O.J. No. 5778, 2019 ONCA 895. The net delay far exceeded 18 months.

4The Crown did not discharge its burden of justifying the delay in excess of the presumptive ceiling. First, the moderate complexity of this case could not justify the delay that transpired. The Crown did not develop a reasonable plan to move the proceedings forward in a timely manner. Second, the parties' reliance on the law under R. v. Morin, [1992] 1 S.C.R. 771, [1992] S.C.J. No. 25 could not transform complacency into reasonable conduct. Although the trial judge found the delay to be reasonable under Morin, in my respectful view, the combined institutional and Crown delay exceeded the Morin guidelines for a case in the Ontario Court of Justice. The net delay cannot be justified under the exceptions outlined in Jordan. I would enter a stay of proceedings under s. 24(1) of the Canadian Charter of Rights and Freedoms.

5In light of my conclusion on the s. 11(b) issue, there is no need to address the sentence appeal.

B. Overview of the Facts

6The appellant was the owner of a business that claimed to sell legal alternatives to various narcotics through online stores and retail outlets. He marketed a product containing the chemical compound known as methylone as a legal alternative to ecstasy (MDMA). He also marketed products containing JWH-018 and JWH-073 ("JWH") as legal alternatives to cannabis.

7At the time of the offences, these chemical substances were not listed in the Schedules of the CDSA. However, Sch. I of the CDSA lists "[a]mphetamines, their salts, derivatives, isomers and analogues and salts of derivatives, isomers and analogues", which includes "N-methyl-3,4-methylenedioxy-amphetamine" (commonly known as ecstasy ("MDMA")). Section 2(1) of the CDSA further defines "analogue" as "a substance that, in relation to a controlled substance, has a substantially similar chemical structure". The Crown alleged that methylone was an "analogue" of ecstasy (MDMA), as defined in s. 2(1) of the CDSA, and therefore the appellant's products were captured under Sch. I, Item 19, of the CDSA. Additionally, at the time of the offences, Sch. II listed "[c]annabis, its preparations, derivatives and similar synthetic preparations". 1 The Crown argued that the JWH compounds were "similar synthetic preparations" to cannabis and were therefore captured under Sch. II, s. 1 of the CDSA.

8The appellant conceded that he possessed and sold these substances; however, he disputed that they were controlled drugs within the meaning of the CDSA. In other words, he argued that methylone was not an "analogue" of ecstasy and the JWH compounds were not "similar synthetic preparations" to cannabis. The trial judge accepted that the appellant honestly believed that these substances were legal.

9The appellant was charged with the methylone offences 2 in October 2013, along with another individual. The Crown eventually withdrew the charges against the appellant's co-accused. The appellant and three others were charged with the JWH offences 3 in March 2014. The methylone and JWH charges proceeded separately, at least in the initial stages of the prosecution.

10From the outset, the case against the appellant was marred by disclosure delays, missed deadlines and general indecision about how to prosecute the two sets of charges, and against whom.

11As the case slowly crept towards a preliminary inquiry, the Crown discontinued charges against the appellant's co-accused on the methylone offences. In September 2014, the Crown joined the methylone and JWH charges against the appellant in a single information.

12It was not until December 17, 2014 that the parties were in a position to set preliminary inquiry dates. The preliminary inquiry was to start on November 9, 2015 and last for two weeks. It later became apparent that two weeks would likely be insufficient. In July 2015, the parties reserved further dates in May and June 2016 as a precautionary measure.

13In October 2015, counsel for the appellant and the Crown discussed the prospect of the appellant re-electing to be tried in the Ontario Court of Justice.

14On November 9, 2015, with the consent of the Crown, the appellant re-elected to have his trial in the Ontario Court of Justice. The appellant was not asked, nor did he offer, to waive his rights under s. 11(b) of the Charter in exchange for the Crown's consent to re-election. This was the case even though counsel for the appellant had flagged unreasonable delay as an issue months earlier. As the parties were not prepared to commence the trial at that point in time, the case was adjourned until May 18, 2016 (the date previously set aside for the purpose of the preliminary inquiry in the event that two weeks proved insufficient).

15Before the outset of his trial, the appellant applied under ss. 11(b) and 24(1) of the Charter to stay the proceedings due to unreasonable delay. The trial judge applied the framework in Morin and dismissed the application. Nine days later, the Supreme Court of Canada released the Jordan decision, which changed the legal landscape for assessing s. 11(b) claims. The appellant re-applied to have his proceedings stayed. The trial judge held that the 30-month presumptive ceiling applied and dismissed the application.

16Thereafter, the appellant brought pre-trial applications to exclude evidence pursuant to ss. 8, 10(b) and 24(2) of the Charter. The trial judge dismissed the applications on December 20, 2016 and April 25, 2017.

17Finally, the appellant sought a declaration that the definitions of "similar synthetic preparation" and "analogue" in the CDSA violated s. 7 of the Charter because they were impermissibly vague and overbroad. Counsel agreed to deal with this matter and the trial on its merits in a blended fashion.

18At trial, two Agreed Statements of Fact addressed the bulk of the factual issues that would have otherwise required the testimony of many witnesses. To supplement these Statements, counsel adduced expert evidence in pharmaceutical chemistry and pharmacology, concerning the properties of methylone and JWH and whether they are captured by Sch. I and II of the CDSA. This was the main factual issue at trial.

19Counsel completed their final submissions on August 17, 2017. The trial judge addressed the s. 7 issue and the trial on its merits in a comprehensive judgment, delivered on September 7, 2017. The trial judge dismissed the Charter application. He found the appellant guilty on the four CDSA counts listed above, but not guilty on a single count of possession of the proceeds of crime, contrary to s. 354(1) of the Criminal Code, R.S.C. 1985, c. C-46. The trial judge sentenced the appellant on December 21, 2017.

C. Trial Within a Reasonable Time

(1) Introduction

20This ground of appeal turns on the correctness of the trial judge's second s. 11(b) ruling (under Jordan), although his findings on the first ruling remain relevant.

21The trial judge released his second s. 11(b) ruling on August 26, 2016. At that time, it was anticipated that the trial would conclude on November 18, 2016. Based on this projected date, the trial judge accepted the parties' joint position that the total delay on the October 2013 charges (methylone) would be approximately 36 1/2 months and the total delay on the March 2014 charges (JWH) would be 32 months and 18 days. From this, the trial judge subtracted defence delay of 4 1/2 months because the appellant's counsel was not available to continue the trial until the fall of 2016. The trial judge concluded that the net delays for the October 2013 charges (methylone) and March 2014 charges (JWH) were 31.5 months and 27 months 4 respectively.

22The trial concluded almost nine months after its anticipated end date, on August 17, 2017, when the trial judge reserved his decision. 5 This was nearly 46 months after the appellant's arrest for the October 2013 charges (methylone), and almost 42 months after his arrest for the March 2014 charges (JWH).

23Before turning to the analysis, I first summarize both of the trial judge's s. 11(b) rulings in greater detail.

(2) The first s. 11(b) ruling under Morin

24The trial judge heard the first s. 11(b) application on May 18-19, 2016 and released his ruling on June 29, 2016. At that time, Morin was the leading authority, but it would not remain so for long.

(a) The commencement of the s. 11(b) clock

25The parties disputed the appropriate commencement date for the purposes of the s. 11(b) timeline. This was complicated by the fact that the Hamilton Police had previously laid similar charges concerning the trafficking of synthetic cannabinoids against the appellant on March 8, 2013 (the "Hamilton Charges"). On April 24, 2013, with no explanation, the Crown stayed those charges. Nevertheless, the Hamilton police continued to investigate the sale of these products. In November 2013, the Hamilton police executed a number of search warrants at stores that sold the appellant's products, which were owned and operated by a Mr. Wang. The Hamilton police charged Mr. Wang with similar offences in March 2014. Those charges were transferred to Toronto in June 2014 and joined with the appellant's other charges. Ultimately, the Crown did not proceed against Mr. Wang on these charges.

26At trial, relying on R. v. Milani (2014), 120 O.R. (3d) 641, [2014] O.J. No. 3247, 2014 ONCA 536, the appellant submitted that the s. 11(b) timeline should commence on the earlier arrest date for the Hamilton charges, in March 2013. The trial judge rejected this submission and found that Milani only applied to scenarios where the police re-laid previous charges; it did not apply where police laid similar charges in relation to conduct allegedly committed at a later date, at a different location. The trial judge held that the time periods relevant to s. 11(b) commenced with the charges laid in October 2013 (methylone), and March 2014 (JWH).

(b) The neutral intake period

27Having determined these commencement dates, the trial judge turned to the reasons for delay in this case. He first sought to identify the appropriate neutral intake period, being the time in which parties retain counsel, prepare and review disclosure, meet with and obtain instructions from clients and conduct pre-trial resolution meetings: see R. v. Tran, [2012] O.J. No. 83, 2012 ONCA 18, 288 CCC (3d) 177, at para. 32, and R. v. Lahiry (2011), 109 O.R. (3d) 187, [2011] O.J. No. 5071, 2011 ONSC 6780 (S.C.J.), at para. 19. The neutral intake period ends when both parties say on the record that they are ready to set a trial date: R. v. Khan, [2011] O.J. No. 937, 2011 ONCA 173, 270 C.C.C. (3d) 1, at para. 32; Lahiry, at para. 19. In this case, the parties were not in a position to set preliminary inquiry dates until December 17, 2014 (almost 14 months after the October 2013 charges (methylone) were laid and roughly nine months after the March 2014 charges (JWH) were laid).

(i) October 2013 charges (methylone)

28With respect to the October 2013 charges (methylone), the trial judge found that "it was not an overly complex case" and the appropriate intake period would typically be in the range of three to four months. However, he found that the intake period ought to be longer for the following reasons: there were numerous issues with disclosure; there was a change in defence counsel in the spring of 2014; and the Crown was indecisive about how to proceed with multiple informations and co-accused at the time.

29Due to the change in counsel, the trial judge concluded that the neutral intake period included the nine months between October 2013 and July 2014. He attributed the remaining period of time, from July 22, 2014 to December 17, 2014 (when the parties set the preliminary inquiry dates), to Crown delay. This totalled four months and 25 days.

(ii) March 2014 charges (JWH)

30As for the March 2014 charges (JWH), the trial judge noted that a period of nine months and five days passed between the date of charges and December 17, 2014 (again, when the parties were ready to set preliminary inquiry dates). He refused to accede to the Crown's request to allocate the entire nine months and five days to neutral intake period. The trial judge pointed to the four-month period between July 10, 2014 and November 10, 2014 during which the Crown made no disclosure and failed to provide any explanation.

31Ultimately, he found that a reasonable intake period for this set of charges was approximately four and a half months, spanning from the March 2014 charge date to July 22, 2014, the date that was set for the first judicial pre-trial. He attributed the remaining four months and 25 days that passed before the parties would be ready to set preliminary inquiry dates as Crown delay. This is the same delay allocated to the October 2013 charges (methylone).

(c) Delay caused by the appellant's re-election

32There was a delay of ten months and 24 days between December 2014 (when the parties set the preliminary inquiry dates) and November 2015 (when the preliminary inquiry was to start). Normally, this almost 11-month period would have been considered institutional delay. However, the trial judge only attributed two months of this period to institutional delay. He determined that roughly 8 1/2 months of this period should be attributed to the appellant because he re-elected to be tried in the Ontario Court of Justice shortly before the preliminary inquiry.

33The parties were not in a position to proceed to trial on the scheduled preliminary inquiry dates. The case was adjourned until May 18, 2016 for the commencement of trial, roughly six months later. The trial judge attributed four months to preparation time and two months and eight days to institutional delay.

34In combination, from December 2014 to May 2016, the trial judge found only four months and eight days of institutional delay.

(d) Prejudice

35The trial judge reviewed the evidence relating to prejudice. The appellant was released on bail throughout the proceedings, the terms of which were varied in his favour from time to time, to accommodate relief from his house arrest condition. He was subject to bail conditions and then a conditional sentence arising from other proceedings. The trial judge accepted that the appellant was subject to the outstanding matters for an extended period of time. On that basis, he found that the appellant experienced "some prejudice".

(e) Conclusion

36Overall, the trial judge found that the total institutional and Crown delay was approximately nine months, which was within the Morin guidelines of eight to ten months in the provincial court: Morin, at p. 773 S.C.R. Although the appellant experienced some prejudice as a result of the delay, it was not enough to justify a stay of proceedings. The trial judge dismissed the application.

(3) The second s. 11(b) ruling under Jordan

37Nine days after the trial judge decided the first s. 11(b) application, the Supreme Court released its decision in Jordan. Jordan sought to address "a culture of complacency within the system towards delay" by setting out a new framework for deciding s. 11(b) applications: Jordan, at para. 4.

38The appellant sought to re-open his s. 11(b) application to have the trial judge apply the Jordan framework. The Crown opposed the re-opening. Nevertheless, the trial judge considered the application on its merits.

39The appellant submitted that, because the case was being tried in the Ontario Court of Justice without first having a preliminary inquiry, the 18-month presumptive ceiling created by Jordan applied in the circumstances. The Crown urged the trial judge to apply the 30-month ceiling. The trial judge agreed with the Crown. At para. 26 of his reasons, the trial judge found that, "applying the new framework flexibly and contextually", the 30-month presumptive ceiling applied.

40Applying Jordan, the trial judge found that the total delay less defence delay for the October 2013 charges (methylone) was 31.5 months, whereas the total delay less defence delay for the March 2014 charges (JWH) was 28 months.

41In finding that the delay for the October 2013 charges (methylone) exceeded the 30-month ceiling, the trial judge considered the parties' reliance on Morin. As he said, at para. 32:

I am satisfied that with respect to the October 2013 charges the Crown has met its onus to establish that the delay in this matter is "justified based on the party's reasonable reliance on the law as it previously existed". In coming to this conclusion I take into account in particular the fact that the delay is only 1.5 months above the ceiling, the institutional delay in existence at this court at the time that the preliminary inquiry was first scheduled and the comment of the court in Jordan that:

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.

42Finally, noting that the March 2014 charges (JWH) fell below the presumptive ceiling of 30 months, the trial judge found that the appellant failed to establish that the delay of 28 months markedly exceeded what was reasonably required. He dismissed the application.

D. The Positions of the Parties

43The appellant submits that the trial judge erred by failing to anchor the commencement of the s. 11(b) timeline to March 2013, when the Hamilton charges were laid. He also submits that the trial judge erred in applying the 30-month presumptive ceiling. Finally, the appellant contends that, because the net delay substantially exceeds the 18-month presumptive ceiling, neither the complexity of the case nor the transitional exceptional circumstance can justify the delay.

44The Crown submits that the trial judge made no error in determining that the time began to run when the October 2013 charges (methylone) were laid. The Crown acknowledges that the trial judge erroneously applied the 30-month ceiling, citing this court's decision in Shaikh. It further contends that, although the net delay clearly exceeded the 18-month ceiling, it was justified because this was a complex and transitional case within the meaning of paras. 69-81 of Jordan.

E. Analysis

(1) Introduction

45The first step in determining whether the appellant's s. 11(b) right was infringed is to determine the total delay between the charges and the end of trial: Jordan, at para. 66. As I explain below, I agree with the trial judge that the appellant's s. 11(b) right was engaged when the police arrested him on the methylone charges in October 2013. The Hamilton charges were separate and distinct for the purpose of the s. 11(b) clock.

46As noted above, the trial judge applied the incorrect presumptive ceiling of 30 months. The governing presumptive ceiling under Jordan was 18 months because the accused re-elected to be tried in the Ontario Court of Justice without a preliminary inquiry.

47The total delay in this case far exceeded the 18-month ceiling. 6 Therefore, the issue is whether the trial judge erred in finding that the Crown discharged its burden of rebutting the presumption of unreasonable delay. As discussed below, the trial judge erred in finding that the delay was reasonable.

48The moderate complexity of this case did not justify the excessive delay. The delay is also not justified by the parties' reliance on Morin. In my view, the delay was not justified under Morin and the Crown failed in its duty to develop a plan to bring the case to trial in a timely manner.

(2) The commencement of the Jordan clock

49The appellant maintains the position he advanced before the trial judge: the s. 11(b) clock started to run when the Hamilton police laid synthetic cannabinoids charges on March 8, 2013, well before police laid the October 2013 charges (methylone) and the March 2014 charges (JWH).

50The Hamilton information contained two counts, alleging that the appellant was trafficking in JWH and methanone 7 on March 5, 2013, in Hamilton. The Crown stayed the Hamilton charges on April 23, 2013. The Hamilton police continued their investigation of the sale of both substances. They subsequently charged Mr. Wang with further drug offences in March 2014, in relation to search warrants that were executed in November 2013. These charges against Mr. Wang were unrelated to the March 5, 2013 transactions that were the subject of the stayed information. Eventually, they were transferred to Toronto, but the Crown ultimately chose not to proceed on them.

51The Crown submits that the clock did not start running when the Hamilton charges were laid. Rather, it argues that there is no evidence that the Hamilton charges were "re-laid against the appellant, or that the Crown ever considered re-laying them, or that Hamilton police continued to investigate the appellant".

52As a matter of clarification, the Crown did not withdraw the Hamilton charges; it entered a stay of proceedings, presumably under s. 579(1) of the Criminal Code. Section 579(2) allows for the recommencement of proceedings "without laying a new information or preferring a new indictment . . . [by] giving notice of the recommencement to the clerk of the court in which the stay of the proceedings was entered . . .". That did not occur in this case. Thus, the proceedings are deemed never to have been commenced.

53This court's decision in Milani addressed the appropriate commencement date for s. 11(b) purposes. Mr. Milani was charged in 1987 with a series of home invasions and sexual assaults. In 1989, at the end of his preliminary inquiry, he was discharged on four counts, and committed to trial on a single count. He was later acquitted on the single count.

54Due to improved DNA technology, in 2010, the Crown revived the prosecution by preferring an indictment against Mr. Milani in relation to four of the home invasion sexual assaults of which he had previously been discharged. During the period of time between his discharge and the preferred indictment, Mr. Milani was unaware that he was being investigated. At trial, he brought a successful s. 11(b) application. The trial judge held that the commencement date for s. 11(b) purposes extended back to when the original set of charges was laid, in 1987. The Crown appealed.

55In allowing the Crown's appeal, this court confirmed, at para. 22, that for s. 11(b) purposes, "[t]he period to be scrutinized is the time elapsed from the date of the charge to the end of the trial. In this context, 'charge' means the date on which an information is sworn or an indictment is preferred". Writing for the court, van Rensburg J.A. confirmed that "delays occurring in the pre-charge period, including in the investigatory or pre-charge stage, are not subject to analysis under s. 11(b)": Milani, at para. 26, citing R. v. Carter, [1986] 1 S.C.R. 981, [1986] S.C.J. No. 36, at paras. 11, 13; R. v. Kalanj, [1989] 1 S.C.R. 1594, [1989] S.C.J. No. 71, at para. 17; Morin, at para. 35.

56The narrower question for the court was whether the "gap" between the accused's discharge in 1989 and the new indictment in 2010 was delay that could be counted under s. 11(b). Generally, van Rensburg J.A. held that s. 11(b) does not apply to persons who are "not actively charged with an offence": Milani, at para. 47. However, at paras. 48-49, she carved out an important caveat that the appellant asks us to apply:

There are circumstances in which unilateral state action may control whether or not charges are withdrawn or re-laid. In such circumstances, where the formal charge has been withdrawn 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 . . .

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)

57I agree with the trial judge that the appellant is unable to bring himself within the exception in Milani, which would permit the counting of pre-charge delay back to March 8, 2013. The Crown did not recommence proceedings against the appellant under s. 579(2) of the Criminal Code, nor was there any evidence that the Crown ever contemplated doing so.

58Moreover, the police did not re-lay a new information to resurrect the March 8, 2013 allegations. The criminal activities alleged by the October 2013 charges (methylone) and March 2014 charges (JWH) were temporally and geographically distinct from the Hamilton charges. The October 2013 charges related to conduct occurring on October 29, 2013, whereas the March 2014 charges related to transactions occurring between October 25, 2013 and March 3, 2014. Meanwhile, the Hamilton charges related to conduct that pre-dated these allegations, occurring on March 5, 2013. Moreover, both sets of charges related to incidents in Toronto, not Hamilton. The charges were also substantively distinct in that the Hamilton charges alleged that the appellant trafficked in a synthetic cannabinoid called methanone (not to be confused with methylone). The October 2013 and March 2014 charges did not include any allegations related to methanone.

59Consequently, the time calculation must commence with the laying of the October 2013 charges (methylone).

60In concluding this part, I observe that the question of whether an individual whose charges have been stayed under s. 579(1) "remains subject to the process of the court" was not addressed in the factums of either party. Consequently, it is not addressed in these reasons.

(3) The applicable presumptive ceiling is 18 months

61The majority in Jordan described the creation of presumptive ceilings as being "[a]t the heart of the new framework": Jordan, at para. 46. As explained, at para. 49:

The most important feature of the new framework is that it sets a ceiling beyond which delay is presumptively unreasonable. For cases going to trial in the provincial court, the presumptive ceiling is 18 months from the charge to the actual or anticipated end of trial. For cases going to trial in the superior court, the presumptive ceiling is 30 months from the charge to the actual or anticipated end of trial. We note the 30-month ceiling would also apply to cases going to trial in the provincial court after a preliminary inquiry.

(Footnotes omitted; emphasis added)

See also R. v. K. (K.G.), [2020] S.C.J. No. 7, 2020 SCC 7, 61 C.R. (7th) 233, at para. 32 and R. v. M. (K.J.), [2019] S.C.J. No. 55, 2019 SCC 55, 381 C.C.C. (3d) 293, at para. 44.

62As noted above, at para. 39, the trial judge concluded that the determination of the applicable ceiling involved "applying the new framework flexibly and contextually". Given the circumstances of the appellant's re-election, he concluded that the 30-month ceiling applied. The respondent concedes that the trial judge erred in so finding: the applicable ceiling is 18 months. I agree.

63In a footnote to the passage from Jordan reproduced above, the majority expanded on which presumptive ceiling applies where the accused re-elects to be tried in provincial court after a preliminary inquiry. The majority wrote [at footnote 3]:

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.

(Emphasis added)

64The majority also alluded to situations like the one that arose in this case in the following passage, at para. 62:

Accused persons sometimes, either before or during their preliminary hearing, wish to re-elect from a superior court trial to a provincial court trial for legitimate reasons. To do so, the Crown's consent must be obtained (Criminal Code, R.S.C. 1985, c C-46, s. 561). Of course, it would generally be open to the Crown to ask the accused to waive the delay stemming from the re-election as a condition of its consent.

(Emphasis added)

I return to the issue of waiver upon re-election below.

65These passages from Jordan lead to the conclusion that the 18-month presumptive ceiling is applicable in the circumstances of this case. This is confirmed by this court's holding in Shaikh; a decision that was not available to the trial judge when he confronted this nuanced issue.

66Mr. Shaikh was charged with robbery and other offences. He originally elected to be tried in the Superior Court following a preliminary inquiry. The parties attended court on dates that had been scheduled for a preliminary inquiry, but for various reasons the proceeding never got off the ground. When the court reconvened more than a month later, Mr. Shaikh re-elected to be tried in the Ontario Court of Justice. No s. 11(b) waiver was secured from, or offered by, Mr. Shaikh. He subsequently brought two s. 11(b) applications -- one in advance of the trial, and the second before the trial judge. Both applications were dismissed. His appeal to this court was allowed and his proceedings were stayed.

67Writing for the court, Paciocco J.A. relied upon the passages from Jordan cited above to conclude that the 18-month presumptive ceiling applied in that case. Justice Paciocco rejected a "case-by-case approach" to determine "whether a re-election occurs late enough to warrant imposing the 30-month period of presumptive delay": Shaikh, at para. 54. He held that such an approach is at odds with the "bright line structure for s. 11(b) cases" meant to displace the Morin approach that engendered uncertainty, complexity, and unpredictability: Shaikh, at para. 54, citing Jordan, at paras. 31-37.

68In Shaikh, as in this case, the Crown at trial submitted that it was prejudiced by the late re-election. In that case, the re-election was made after the preliminary inquiry was originally scheduled to proceed; in this case, the accused re-elected on the scheduled commencement date for the preliminary inquiry, but it was agreed upon earlier. The complaint is that a late re-election unfairly shifted the Crown into a much shorter presumptive ceiling, automatically imperilling the case for s. 11(b) purposes.

69The Crown need not be exposed to vulnerability in these circumstances. The solution lies in the Crown requiring a waiver by the accused person in exchange for consent to re-elect. As Paciocco J.A. said, at para. 57 of Shaikh:

The bright line approach that I consider myself compelled to follow does not enable the defence to manufacture a s. 11(b) delay by re-electing into a shorter presumptive period of delay. Section 561(1) of the Criminal Code requires Crown consent before the accused can re-elect to a trial by a provincial court judge. Where re-election would create the risk of s. 11(b) problems, the Crown has the authority to, and should, refuse consent, absent a s. 11(b) waiver.

(Emphasis added)

See also Jordan, at para. 62 (reproduced in para. 64, above).

70In this case, the appellant did not offer to waive any delay, nor did the Crown request it. By November 9, 2015, the time of the formal re-election, more than two years had already elapsed from the date on which the Toronto police laid the methylone charges. Defence counsel had put the Crown on notice that delay was an issue. Moreover, Jordan (also a drug prosecution conducted by the Public Prosecution Service of Canada) was argued in the Supreme Court of Canada on October 7, 2015 and the court had reserved judgment. Still, the Crown required no waiver.

71Neither on appeal, nor at trial, did the Crown argue that the appellant's re-election was a "discrete event" capable of justifying the excess in delay within the meaning of Jordan (discussed below). This makes sense: given that the Crown's consent was required to facilitate the re-election in this case, as a litigation event, it could not be said to be either "reasonably unforeseen or reasonably unavoidable": Jordan, at para. 69 [emphasis in original]. It was the opposite, on both measures.

72Nevertheless, a theme that runs through the Crown's submissions on the impact of the appellant's re-election is that he was the beneficiary of a fortuitous windfall. In its Factum, the Crown asserts:

Shaikh now tells us (at para. 57) that, absent a s. 11(b) waiver, the Crown should not consent to such a request in a case where, as here, it can have an adverse effect on the characterization of the delay down the road by allowing the accused to elect into a more restricted presumptive ceiling. In this case, of course, the Crown did not have the benefit of either Shaikh or Jordan when it consented.

73The Crown's argument proceeds on the faulty premise that Jordan and Shaikh introduced the concept of waiver into the s. 11(b) jurisprudence. Waiver has been an integral part of our s. 11(b) jurisprudence for over three decades. At the Supreme Court level, it was first discussed in the dissenting reasons of Lamer J. (as he then was) in R. v. Mills, [1986] 1 S.C.R. 863, [1986] S.C.J. No. 39, at p. 925 S.C.R. It was subsequently revisited in R. v. Smith, [1989] 2 S.C.R. 1120, [1989] S.C.J. No. 119, and thereafter in R. v. Askov (1990), 75 O.R. (2d) 673, [1990] 2 S.C.R. 1199, [1990] S.C.J. No. 106 and Morin. Waivers of periods of delay have long been commonplace in circumstances where the defence seeks the Crown's consent to agree to delays in moving a case forward.

74The Crown's assertion that Jordan and Shaikh permit an appellant to re-elect into "a more restricted presumptive ceiling" is true. But it was also true under Morin. Although only guidelines, and vulnerable to the shortcomings identified by the Jordan majority, Morin held that eight to ten months applied for trials in the provincial courts, whereas 14-18 months applied for cases tried in the superior courts.

75Before Jordan changed the landscape, this case was already in potential trouble under the Morin guidelines, even if the Crown did not think so at the time of re-election. Moreover, delay was an issue from early on, especially when disclosure slowed down and then dried up for months.

76Therefore, as in Shaikh, the re-election in this case did not prejudice the Crown because it could have withheld its consent to re-elect under s. 561(1) of the Criminal Code. Nonetheless, the respondent sensibly concedes that the presumptive ceiling in this case was 18 months. On the trial judge's calculations, the total delay less defence delay significantly exceeded this ceiling. The question becomes whether the Crown is able to justify this additional time.

(4) Delay above the presumptive ceiling was not justified

77If the total delay less defence delay exceeds the applicable ceiling, the delay is presumptively unreasonable, and the Crown bears the burden of rebutting the presumption of unreasonableness. The Crown may do so by establishing "exceptional circumstances": see Jordan, at paras. 69-81.

78As referenced above, exceptional circumstances may arise from delay attributable to discrete events that are reasonably unforeseen or reasonably unavoidable: Jordan, at para. 69. Such events do not qualify as exceptional circumstances if they can be reasonably remedied by the Crown: Jordan, at para. 69. The Crown may also justify excessive delay by showing that the case is particularly complex, and that it attempted to develop and execute a plan that minimized delay occasioned by such complexity: Jordan, at paras. 77, 79. If the Crown cannot establish exceptional circumstances, the court will grant a stay of proceedings: Jordan, at para. 47.

79For cases where the charges were laid before Jordan was decided on July 8, 2016, but the trial concluded after that date, a "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": Jordan, at para. 96. This is a contextual determination that recognizes that the "parties' behaviour cannot be judged strictly, against a standard of which they had no notice": Jordan, at para. 96. See also R. v. Williamson, [2016] 1 S.C.R. 741, [2016] S.C.J. No. 28, 2016 SCC 28, at para. 24; R. v. Cody, [2017] 1 S.C.R. 659, [2017] S.C.J. No. 31, 2017 SCC 31, at para. 74; R. v. Picard (2017), 137 O.R. (3d) 401, [2017] O.J. No. 4608, 2017 ONCA 692, at para. 71, leave to appeal to S.C.C. refused [2018] S.C.C.A. No. 135; R. v. Powell, [2020] O.J. No. 5104, 2020 ONCA 743, at paras. 9-10.

80Here, the Crown relies upon the complexity of the case and the transitional exceptional circumstance as justifications for the delay. The appellant contends that neither justification, alone nor in combination, can justify the delay between the charges and the anticipated end of trial date.

81In his application of the Jordan framework, the trial judge found that the transitional exceptional circumstance justified the delay that exceeded the presumptive ceiling. However, with respect, deference is not warranted in the circumstances. Although the trial judge approached the application of Jordan "flexibly and contextually", his frame of reference was distorted by his decision to apply the presumptive ceiling of 30 months. He referred to the 30-month ceiling when he held that the parties' reasonable reliance on Morin justified the delay for the October 2013 charges (methylone), observing that the delay was "only 1.5 months above the ceiling". He also found that the delay on the March 2014 charges (JWH) was three months below the ceiling, placing the onus on the accused to show that the delay was unreasonable. The trial judge's analysis may well have been different when measured against the much shorter presumptive ceiling that applied in this case.

82In assessing the delay from the vantage point of the 18-month presumptive ceiling, I come to a different conclusion. As the following paragraphs will show, this case was not unduly complex such that it justified excessive delay, nor did the parties' reliance on Morin place this case within the transitional exceptional circumstance. In particular, as explained below, the trial judge erred in the manner in which he allocated certain periods of time under Morin. Once adjusted, the combination of Crown and institutional delay significantly exceeded the eight-to-ten-month guideline for a trial in the Ontario Court of Justice.

(f) The complexity of the case

83Under Jordan, a case that is sufficiently complex may justify a period of net delay that surpasses the applicable presumptive ceiling. It is not sufficient for the Crown to simply assert that the case was complex; it must link complexity to the delay that ensued and also demonstrate that, despite developing a plan to address the complexity and minimize the delay, it was unable to do so. In this case, although there was some measure of complexity, the Crown did not demonstrate that there was a plan to minimize the delay caused by it.

84The majority in Jordan held that complex cases require "an inordinate amount of trial or preparation time" due to the nature of the evidence or the issues: Jordan, at para. 77. It elaborated on case complexity in the following passage, at para. 77:

As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time. Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications, novel or complicated legal issues, and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case.

85In the recent decision of Powell, Nordheimer J.A. provided a helpful review of the common features of complex cases and of the Crown's obligations when complexity is present, at para. 7:

[I]n determining whether a case is particularly complex, the following factors are of importance:

-- case complexity requires a qualitative, not quantitative, assessment: R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659 (S.C.C.), at para. 64.

-- complexity is an exceptional circumstance only where the case as a whole is particularly complex: Cody, at para. 64.

-- complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time such that the delay is justified: Jordan, at para. 77.

-- if the case is complex, then the court must look at whether the Crown developed and followed a concrete plan to minimize the delay occasioned by the complexity: Ontario (Ministry of Labour) v. Nugent, 2019 ONCA 999, 384 C.C.C. (3d) 189, at para. 31.

[Emphasis in original]

86Picking up on the last point, courts have stressed the importance of a plan to minimize delay caused by complexity. The Jordan majority made this point, at para. 79: "Where it has failed to do so, the Crown will not be able to show exceptional circumstances, because it will not be able to show that the circumstances were outside its control."

87In R. v. Manasseri (2016), 132 O.R. (3d) 401, [2016] O.J. No. 5004, 2016 ONCA 703, at para. 314, Watt J.A. said: "[A] trial judge should also consider whether the architect of what could reasonably be expected to be a complex prosecution -- the Crown -- has developed and followed a concrete plan to minimize the delay caused by the complexity that is of the Crown's doing" [citations omitted]. See also, R. v. Saikaley (2017), 135 O.R. (3d) 641, [2017] O.J. No. 2377, 2017 ONCA 374, at para. 36; R. v. C. (J.), [2018] O.J. No. 6918, 2018 ONCA 986, at para. 29.

88Although the principles are clear, whether a particular case is complex will often be in the eye of the beholder. These determinations "fall well within the trial judge's expertise": Jordan, at para. 79. In this case, the trial judge did not address the complexity of the case in his second s. 11(b) ruling; however, he did make factual findings in his first ruling that are helpful to the determination of this issue.

89In assessing the neutral intake period, which I return to below, the trial judge said at para. 54 that, although the October 2013 charges (methylone) involved search warrants and the seizure of a significant quantity of the alleged controlled substance, "it was not an overly complex case and in my view [an] appropriate intake period in normal circumstances would have been in the range of 3 to 4 months".

90The trial judge considered the March 2014 charges (JWH) to be somewhat more complex. However, he refused to accede to the Crown's request to allocate nine months and five days as neutral intake time because of delays in disclosure. As he said, at para. 59:

In terms of the complexity of the Crown's case this is an investigation involving initially 5 individuals and a number of search warrants as well as expert evidence with respect to the nature of the substances allegedly being possessed and trafficked. Given that complexity, there is no doubt that a reasonable intake period would be somewhat above that for a simple straightforward summary conviction offense. However, over 9 months is clearly not a reasonable period without further evidence as to the reasons for the delay.

(Emphasis added)

91There may be room for debate about the complexity of the case, at least with respect to the March 2014 charges (JWH). The Crown relies on the factors mentioned in Jordan, above at para. 84. It stresses the voluminous nature of the disclosure, especially in relation to the latter charges. The Crown points to the numerous and detailed disclosure requests made by defence counsel.

92In para. 65 of Cody, the Supreme Court held that: "While voluminous disclosure is a hallmark of particularly complex cases, its presence is not automatically demonstrative of complexity. The question is whether the case is sufficiently complex 'such that the delay is justified' (Jordan, at para. 77)." [Emphasis in original] It is the manner in which the Crown discharges its disclosure obligations that is key. In this case, there were problems from the outset, with no real explanations forthcoming. I return to the issue of disclosure below.

93The Crown also relies on the complexity of the trial itself. It points to the two s. 11(b) motions, each of which were heard over the course of two days. I am not persuaded that it is appropriate to include s. 11(b) applications in this metric. Barring cases in which a s. 11(b) application completely lacks merit and has no hope of success, an applicant should not be dissuaded from asserting this constitutional guarantee for fear of having it count against them in the overall delay calculus. Moreover, neither motion caused any delay for s. 11(b) purposes. No adjournment was required. These applications had no impact on the parties' joint estimate of the anticipated end of the trial.

94The pre-trial motions to exclude evidence brought by the appellant were not out of the ordinary for a drug case. Indeed, the Crown observed that this aspect of this case was "fairly straightforward" in a focus hearing in October 2015. The motions to exclude evidence took five court days.

95The same could be said about the trial proper. The Crown fails to draw a compelling connection between the length of the trial and why it took so long to get there. Two Agreed Statements of Fact dealt with most of the evidence, obviating the need to call many witnesses. The trial itself occupied 15 days.

96There was a significant expert evidence component in this case, dealing with the properties of methylone and JWH. This came down to the testimony of two witnesses called by the Crown and two witnesses called by the defence. However, the admission of expert evidence alone does not necessarily make for a complex case: Manasseri, at paras. 344-358.

97Here, the parties were aware of the need for expert evidence very early on. The Crown was put on notice that the case would be disputed on this basis at the appellant's bail hearing on March 28, 2014. Moreover, the centrality of expert evidence would have been obvious from the nature of the allegations in the first place, even before the appellant was charged. If anything, the record suggests that delay related to expert evidence was caused by the Crown. Without explanation, the Crown did not disclose one of its expert's resume or will-say until November 10, 2014. The appellant was not in a position to make an informed decision with respect to election and plea prior to the receipt of this material because it was essential to a central issue at trial -- i.e., whether the appellant's products were prohibited under the CDSA. Beyond that, there was no indication that the expert evidence meaningfully contributed to the delay or significantly elevated the complexity of the case.

98In sum, while this case had some markings of complexity, it did not rise to a level that would justify the excessive delay that unfolded. The Crown did not implement a strategy to mitigate foreseeable delay as the proceedings progressed. Quite simply, there was no plan. Any steps taken by the Crown were reactive. It took almost 20 months to decide not to proceed against two of the appellant's co-accused. And this only occurred as a result of the appellant's expressed intention to re-elect to be tried in the Ontario Court of Justice and the refusal of his co-accused to follow suit. This was not planning on the Crown's part; it was improvisation.

(b) Transitional exceptional circumstance

99At trial, as on appeal, the Crown relies on the transitional exceptional circumstance -- the unfairness of being confronted with a new framework of analysis in the middle of the case. In this case, the rules literally changed days after the first s. 11(b) motion was decided. Nonetheless, I would decline to apply the transitional exceptional circumstance.

100As already noted above, in para. 41, the trial judge relied on the following passage from para. 102 of Jordan, where the majority said: "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." On appeal, the Crown relies heavily on this passage. However, in my view, this is faulty foundation because, in conducting his analysis under Morin, the trial judge underestimated Crown/institutional delay in this case. Properly adjusted, it clearly exceeded the acceptable guidelines of eight to ten months for a proceeding in the Ontario Court of Justice. Moreover, the Crown failed to demonstrate its reasonable reliance on the prior regime.

101The calculation of the time periods in this case was complicated by the fact that there were two sets of charges. They were initiated roughly six months apart (October 2013 to March 2014). They were not formally joined together until September 3, 2014. From that point on, the two sets of charges moved in tandem. It was not until December 17, 2014 that the parties were in a position to set preliminary inquiry dates on all charges for November 9, 2015.

102The trial judge helpfully set out the rather complicated chronology of events related to both sets of charges. The parties take no issue with the accuracy of his rendition. However, they disagree on the extent to which certain periods of time should be classified as Crown delay, as opposed to neutral intake time. I agree with the appellant that the trial judge underestimated Crown delay.

103To repeat, the parties were not ready to set preliminary inquiry dates until December 17, 2014 -- almost 14 months after the October 2013 charges (methylone) were laid and roughly nine months after the March 2014 charges (JWH) were laid. He characterized the period of time from July 22, 2014 until December 17, 2014 as Crown delay because of a complete lack of disclosure, without explanation. This was for good reason: from July 2014 to December 2014, the judicial pre-trial was scheduled and then adjourned on multiple occasions due to issues properly attributed to the Crown:

• on July 7, 2014, the parties attended a judicial pre-trial that was unproductive "largely as a result of the Crown needing to make decisions on how to proceed";
• on July 14, 2014, the judicial pre-trial was unproductive because the Crown was still considering "how to proceed on these charges in relation to other charges before these courts";
• on July 22, 2014, proceedings were adjourned as the Crown had still not decided whether to blend the October 2013 and March 2014 charges, and significant disclosure issues were identified;
• on September 4, 2014, the Crown advised the court that the pre-trial had been cancelled and rescheduled. Two days earlier, the Crown notified defence counsel that it had failed to produce the disclosure discussed at the previous pre-trial in July. The Crown indicated that the scheduled proceeding on September 4 would not be fruitful. In reply, defence counsel expressed concerns about the continuous adjournments since "delay is a serious issue for my client";
• on October 27, 2014, the matter was adjourned as the Crown advised the court that no additional disclosure was made and that there was still outstanding disclosure requested by defence;
• on November 10, 2014, the Crown provided disclosure that would be "more than enough for them to understand exactly the gist of the investigation" but there was still more outstanding, leading to another month-long adjournment; and
• on December 11, 2014, the Crown was still finalizing a couple of issues "in terms of proceeding in terms of one or multiple parties" so the matter was put over for another week.

Throughout this time period, the Crown continuously conceded that a productive judicial pre-trial could not occur either because of its own indecision or due to a lack of disclosure.

104I agree with the trial judge's allocation of neutral intake time as it relates to the March 2014 charges (JWH). However, the trial judge ought to have concluded that a shorter intake period was warranted for the October 2013 charges (methylone). The trial judge placed great reliance on the appellant's change of counsel in April 2014. He noted, at para. 54 of his first s. 11(b) ruling, that as late as May 8, 2014, new counsel needed time to review disclosure. Ultimately, he attributed the entire period from October 2013 to March 2014 as "neutral due to change in counsel".

105A change in counsel is sometimes considered defence delay (Cody, at para. 40), but not always: see Christopher Sherrin, "Understanding and Applying the New Approach to Charter Claims of Unreasonable Delay" (2017), 22 Can. Crim. L.R. 1, at p. 12. That characterization is not apt in this case. Even though new counsel needed time to get "up to speed", the change of counsel did not contribute to the delay. The case was at a standstill because of the way that the Crown was conducting its case, as set out in para. 103, above. By July 2014, the Crown had still failed to make highly relevant disclosure related to the October 2013 charges (methylone), including two Informations to Obtain search warrants. Regardless of whether the appellant had retained his original counsel, the case could not move forward until proper disclosure was made.

106In short, by attributing the same amount of Crown delay to each set of charges due to the change in counsel, the trial judge's approach obscured the need to consider the different trajectories of each set of charges. Put another way, it was necessary to compensate for the lesser intake time required for the much more straightforward October 2013 charges (methylone). The appellant's change in counsel in spring 2014 could not account for the delay that had already elapsed. The Crown's dilatory approach to disclosure on those charges was evidenced months earlier. In all of the circumstances, I would attribute two further months for Crown delay during this period to the October 2013 charges (methylone).

107I am also of the view that the trial judge erred in the manner in which he calculated institutional delay as a result of the appellant's re-election to be tried in Ontario Court of Justice. It bears repeating that, for the reasons set out in paras. 68-76 above, there was no unfairness to the Crown arising from the re-election.

108The institutional delay leading up to the preliminary inquiry dates was 10 1/2 months (December 17, 2014 to November 9, 2015). There was roughly 6 1/2 months of delay between the aborted preliminary inquiry and the commencement of the trial on May 18, 2015. The trial judge determined that the appellant's late re-election should erase 8 1/2 months of institutional delay leading up to the preliminary inquiry, leaving only two months outstanding. Accordingly, he classified only two months as institutional delay. In total, the trial judge attributed just under 4 1/2 months as institutional delay.

109In my view, the trial judge erred in discounting institutional delay in the manner that he did. It took 10 1/2 months from the point that the parties were ready to schedule two weeks for a preliminary inquiry. After these weeks were secured, the parties believed that more time was required. When the parties set the dates in December 2014, counsel for the appellant indicated that he had a "myriad" of dates available for a two-week preliminary inquiry, as early as January 2015. Counsel for Mr. Wang, who was still a co-accused at the time, also reminded the court that delay was an issue. Further dates could not be obtained until May and June of 2016. These dates ended up being used for the trial.

110It is clear from the record that neither a preliminary inquiry nor a trial could have been conducted within a reasonable period of time. The appellant's late re-election did not change this reality. Accordingly, I would allocate the full 10 1/2 month period to institutional delay.

111In terms of the delay between the aborted preliminary inquiry and the trial dates, I would maintain the trial judge's allocations. On appeal, neither party suggested otherwise.

112In total, I would find that the Crown delay in this case was 6 1/2 months and the institutional delay was 12 months and eight days. Combined, this delay of 18 3/4 months was well beyond the Morin guidelines of eight to ten months delay for a trial in the Ontario Court of Justice. Moreover, the trial judge found that the appellant did suffer some prejudice as a result of the delay. This leads to the conclusion that the delay cannot be justified under the transitional exceptional circumstance. As the Supreme Court observed in Cody, at para. 74:

Where a balancing of the factors under the Morin analysis, such as seriousness of the offence and prejudice, would have weighed in favour of a stay, we expect that the Crown will rarely, if ever, be successful in justifying the delay as a transitional exceptional circumstance under the Jordan framework.

113In any event, the circumstances of this case do not permit the Crown to rely on the exceptional transitional circumstance. By definition, all transitional cases involve some degree of reliance upon the Morin framework. Delay that exceeds the presumptive ceilings under Jordan is not automatically justified by this historical fact. As noted above, Jordan emphasizes that reliance must be reasonable, and assessed contextually, "sensitive to the manner in which the previous framework was applied": Jordan, at para. 96. See also Williamson, at para. 24; Cody, at para. 74.

114The transitional exceptional circumstance demands reasonable reliance on Morin, not a habitual dependence on the culture of complacency that Jordan sought to eradicate. It is not meant to reward a casual or lackluster approach to compliance with the Morin guidelines in place at the time.

115In Williamson, the majority refused to apply the transitional exceptional circumstance, and agreed with this court's assessment that the Crown did not take "seriously the obligation to bring this relatively straightforward case to trial in a reasonable time": Williamson, at para. 28; see also R. v. Williamson, [2014] O.J. No. 3828, 2014 ONCA 598, 324 O.A.C. 231, at para. 67. 8 Similarly, in Manasseri, Watt J.A. rejected the Crown's claim that the case was one of exceptional complexity; instead, the problem lay in the Crown's "leisurely approach to disclosure", a lack of diligence in scheduling preliminary inquiry dates, and a failure to pay any real heed to the appellants' s. 11(b) interests: Manasseri, at para. 359.

116This case exemplifies these same features. The Crown failed to take its disclosure obligations seriously, shrugging off multiple delays, sheltered by the expectation that, under Morin, there would be no meaningful consequences. The case bounced around in the Ontario Court of Justice, untethered by any concrete plan as to who would be prosecuted along with the appellant. There was little regard to the time wasted, not to mention the drain on resources caused, by multiple, pointless appearances. This is contrasted by the appellant's "reasonably proactive" efforts to move the case forward: see Williamson, at para. 30. These efforts were evidenced by the appellant's notice to the Crown that delay was in issue, his re-election, and his consent to the admission of comprehensive Agreed Statements of Fact.

(c) Conclusion

117The delay in this case may have been salvageable with a presumptive ceiling of 30 months; it is not when measured against the presumptive ceiling of 18 months. Neither case complexity, nor the transitional exceptional circumstance, justify the excessive delay in this case. I would allow this ground of appeal.

F. Disposition

118I would allow the appeal from conviction on the basis of s. 11(b) and stay the proceedings under s. 24(1) of the Charter. As such, there is no need to address the other grounds of appeal, both in relation to the appellant's convictions and his sentence.

Appeal allowed.

Notes

1 This provision of Sch. II of the CDSA was subsequently amended by regulation and then repealed: see Order Amending Schedule II to the Controlled Drugs and Substances Act (Synthetic Cannabinoids), SOR/2015-192, and An Act respecting cannabis and to amend the Controlled Drugs and Substances Act, the Criminal Code and other Acts, S.C. 2018, c. 16, s. 204(1), respectively.

2 The appellant was also charged with various other drug offences and a proceeds of crime count. The Crown eventually withdrew those other counts against the appellant.

3 The appellant was charged with multiple counts of trafficking, possession for the purpose of trafficking, production, importing, possession of proceeds of crime and conspiracy related to synthetic cannabinoids and methylone. The offences all occurred between October 25, 2013 and March 3, 2014.

4 The parties agree that this calculation was slightly off and the actual net delay for the March 2014 charges (JWH) was 28 months. This recalculated net delay will be referred to throughout.

5 There is no suggestion that the trial judge was dilatory in preparing his reasons. Nor could there be - his detailed reasons for judgment were released within three weeks following final submissions.

6 As noted above, at footnote 4 in para. 22, counsel agreed that the net delay for the purpose of Jordan was 31.5 months for the October 2013 charges (methylone), and 28 months for the March 2014 charges (JWH).

7 The Crown alleged that methanone, like the JWH compounds, was a similar synthetic preparation of cannabis contrary to s. 5(1) of the CDSA.

8 In that case, this court's decision was governed by Morin.