WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Grant Zilney
Before: Justice Alan D. Cooper
Heard on: February 15, 16, May 1, & June 15, 2017
Reasons for Judgment released on: September 7, 2017
Counsel:
- Lindsay K. Bandini & David A. King for the Crown
- Victor Giourgas for the accused Grant Zilney
Case History
1The defendant was charged that on or about August 7, 2014, in the Town of Acton, he committed an indecent act by exposing his genitals and masturbating in a public place, a highway, in the presence of M.S., contrary to Section 173(1)(b) of the Criminal Code. The second charge is that on or about the above date at the same location, he criminally harassed M.S. by repeatedly following her and causing her to fear for her safety, contrary to Section 264(2)(a) and 264(3)(b) of the Criminal Code. These charges will hereinafter be referred to as the "Dublin Line" charges.
2On 3 separate dates between July 31 and August 7, 2017, a man on a black motorcycle, wearing a helmet with a visor, and sunglasses, rode by 16 year old M.S. as she was running on Dublin Line, south of Acton. The first time he slowed down and kept looking at her. The second time he whistled at her and mentioned her shorts and told her to keep running for him. He passed by her twice. On the third occasion on August 7, 2014, he passed by her several times. On the last pass he exposed his erect penis and he moaned as he masturbated for 30 to 40 seconds, as his bike was moving. He was about 15 to 20 feet away.
3Because the rider wore a helmet, visor, and sunglasses, M.S. was not able to make a facial identification. She did not get the licence plate number of the motorcycle.
4On August 7, 2014, M.S. reported these incidents to Cameron Bokstein, a member of the Halton Regional Police Service. On August 21, 2014, officer Bokstein was driving on Dublin Line and at 3pm stopped a black motorcycle being driven by Mr. Zilney. It was a black Victory bike and the licence plate number was 850Z8. It was registered to the defendant. He had a helmet and glasses on. The licence plate had been bent upward so that the numbers and letter could not be seen. No charges were laid at this time.
The Trial and the Similar Fact Application
5The first day of trial on the Dublin Line charges was February 15, 2017, at which time the Crown and defence made submissions at the outset on a Crown application to introduce similar fact evidence. After the "Dublin Line" incidents took place in 2014, no charges were laid until August 4, 2015. On June 5, 2015, the defendant, on a black motorcycle, followed V.R. and T.R., and their 15 year old daughter C. in their car as they were travelling on Highway 401 west of Toronto, in Halton Region.
6Mr. Zilney's penis was exposed and he was seen to masturbate as he drove his motorcycle. Mr. V.R. recognized the motorcycle as one manufactured by a company known as Victory. The licence plate number was also obtained, and this was 850Z8. The driver had a helmet and sunglasses on. The defendant was seen to exit Highway 401 and go north on Highway 25. He was stopped by the police on Highway 25 north of Milton, and south of Acton. He resided at 5336 Erin First Line, just north of Acton. He was charged with committing an indecent act. This will be referred to as the "Highway 401" charge.
7The police matched up the Highway 401 details with the earlier Dublin Line ones, and now had information to charge the defendant with the Dublin Line charges.
8After the similar fact application was heard on February 15, 2017, I heard all of the trial evidence. On February 16 I gave my ruling and admitted the similar fact evidence. Submissions were made and the matter was put over to May 1, 2017, for judgment.
9On May 1, the defendant was convicted of the two charges he was tried on. His counsel requested an adjournment to June 13, 2017, to allow him to bring an application for unreasonable delay under section 11(b) of the Charter. Sentencing was not to be addressed until after my ruling. On June 13, the defence was not available and the delay application was heard on June 15, 2017. My judgment was reserved until September 7, 2017.
The Unreasonable Delay Application
10The defence argues that the overall period of delay should be from the date the information was sworn on August 4, 2015, to May 1, 2017, the date on which I convicted the defendant on the Dublin Line charges. This would amount to 20 months and 28 days.
11The Crown submits that the end date ought to be February 16, 2017, the last day of trial before the case was put over for my judgment on May 1, 2017. This would be 18 months and 13 days.
12The main issue on this application is whether or not the delay in rendering my judgment should be categorized as unnecessary delay, and credited in favour of the defence.
Chronology of Dates and Events
13For ease of reference, the court has prepared a chronology of dates and events:
2015
August
- 4 — Information sworn
- 31 — Disclosure and screening form provided – Agent for Mr. Giourgas requested September 28, 2015, to review disclosure
September
- 28 — Crown was not in a position to set a date for a judicial pretrial, and the matter had to go over to October 5
October
- 5 — A judicial pretrial was set for October 16
- 16 — The first judicial pretrial was held before me
- Defence counsel asked the case to be put over to November 23, to allow him to consult with his client
- S. 11(b) was waived
November
- 23 — Consent adjournment to January 16, 2016 – Mr. Giourgas requested this length of time due to the present case dependent on outcome of a trial before Justice Baldwin in Halton on similar charges which arose before those in the present case – Mr. Giourgas said the Crown may bring a similar fact application in the present case if the case before Justice Baldwin results in a conviction
2016
January
- 16 — A trial was set in the present case for September 13 and 14, 2016 – A second judicial pretrial was set for June 20, 2016
May
- 18-19 — The trial of the first set of charges took place before Justice Baldwin, and her decision was reserved until December 19, 2016
June
- 20 — A second judicial pretrial was held before me
- Because Justice Baldwin's decision would not be released before the trial set for September 13 and 14, 2016, on the present charges, the trial was put over to February 15 and 16, 2017
- Mr. Giourgas agreed to those dates but indicated on the record that he was not waiving section 11(b) of the Charter
July
- 8 — The Supreme Court decision in R. v. Jordan is released
December
- 19 — Justice Baldwin's judgment on the first set of charges is released
2017
February
- 15 — The first day of trial on the present charges took place and the Crown's similar fact application was argued and judgment was reserved until February 16
- 16 — The similar fact application was allowed, and the similar fact evidence and all trial evidence was heard
- Judgment was reserved until May 1, 2017
May
- 1 — The defendant was convicted of both charges.
- Mr. Giourgas said he would bring a section 11(b) application and the case went over to June 13, 2017, for that application and for sentencing. On June 13, the defence asked the matter to be adjourned to June 15, 2017.
June
- 15 — The section 11(b) application was argued and the period of delay was agreed to be from the swearing of the information on August 4, 2015, and May 1, 2017, the date of conviction on the present offences
- Judgment was reserved until September 7, 2017, and sentencing will not be proceeded with on that date if the section 11(b) application is allowed
The Supreme Court of Canada Jordan Decision
14As noted above, the decision in R. v. Jordan was delivered on July 8, 2016. The basis upon which a trial court is to calculate unreasonable delay was reformulated, and the previous formula in R. v. Morin, [1992] 1 S.C.R. 771, and in R. v. Askov, [1990] 2 S.C.R. 1199, was replaced.
15The court felt that a "culture of complacency" had arisen concerning courtroom delay. In order to eradicate this, the court devised a new framework which is set out below:
A New Framework for Section 11(b) Applications
A. Summary
46 At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable. The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry).
47 If the total delay from the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.
48 If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. We expect stays beneath the ceiling to be rare, and limited to clear cases.
B. The Presumptive Ceiling
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. As we will discuss, defence-waived or -caused delay does not count in calculating whether the presumptive ceiling has been reached -- that is, such delay is to be discounted.
50 A presumptive ceiling is required in order to give meaningful direction to the state on its constitutional obligations and to those who play an important role in ensuring that the trial concludes within a reasonable time: court administration, the police, Crown prosecutors, accused persons and their counsel, and judges. It is also intended to provide some assurance to accused persons, to victims and their families, to witnesses, and to the public that s. 11(b) is not a hollow promise.
51 While the presumptive ceiling will enhance analytical simplicity and foster constructive incentives, it is not the end of the exercise: as we will explain in greater detail, compelling case-specific factors remain relevant to assessing the reasonableness of a period of delay both above and below the ceiling. Obviously, reasonableness cannot be captured by a number alone, which is why the new framework is not solely a function of time. Contrary to what our colleague Cromwell J. asserts, we do not depart from the concept of reasonableness; we simply adopt a different view of how reasonableness should be assessed.
52 In setting the presumptive ceiling, we were guided by a number of considerations. First, it takes as a starting point the Morin guidelines. In Morin, this Court set eight to ten months as a guide for institutional delay in the provincial court, and an additional six to eight months as a guide for institutional delay in the superior court following an accused's committal for trial. Thus, under Morin, a total of 14 to 18 months was the measure for proceedings involving both the provincial court and the superior court.
53 Second, the presumptive ceiling also reflects additional time to account for the other factors that can reasonably contribute to the time it takes to prosecute a case. These factors include the inherent time requirements of the case and the increased complexity of criminal cases since Morin. In this way, the ceiling takes into account the significant role that process now plays in our criminal justice system.
54 Third, although prejudice will no longer play an explicit role in the s. 11(b) analysis, it informs the setting of the presumptive ceiling. Once the ceiling is breached, we presume that accused persons will have suffered prejudice to their Charter-protected liberty, security of the person, and fair trial interests. As this Court wrote in Morin"prejudice to the accused can be inferred from prolonged delay" (p. 801; see also Godin, at para. 37). This is not, we stress, a rebuttable presumption: once the ceiling is breached, an absence of actual prejudice cannot convert an unreasonable delay into a reasonable one.
55 Fourth, the presumptive ceiling has an important public interest component. The clarity and assurance it provides will build public confidence in the administration of justice.
56 We also make this observation about the presumptive ceiling. It is not an aspirational target. Rather, it is the point at which delay becomes presumptively unreasonable. The public should expect that most cases can and should be resolved before reaching the ceiling. For this reason, as we will explain, the Crown bears the onus of justifying delays that exceed the ceiling. It is also for this reason that an accused may in clear cases still demonstrate that his or her right to be tried within a reasonable time has been infringed, even before the ceiling has been breached.
57 There is little reason to be satisfied with a presumptive ceiling on trial delay set at 18 months for cases going to trial in the provincial court, and 30 months for cases going to trial in the superior court. This is a long time to wait for justice. But the ceiling reflects the realities we currently face. We may have to revisit these numbers and the considerations that inform them in the future.
58 Our colleague Cromwell J. misapprehends the effect of the presumptive ceiling, asserting that this framework "reduces reasonableness to two numerical ceilings" (para. 254). As we will explain in greater detail, this is clearly not so. The presumptive ceiling marks the point at which the burden shifts from the defence to prove that the delay was unreasonable, to the Crown to justify the length of time the case has taken. As our colleague acknowledges, pursuant to our framework"the judge must look at the circumstances of the particular case at hand" in assessing the reasonableness of a delay (para. 301).
59 We now turn to discussing the various case-specific factors that must be accounted for both above and below the presumptive ceiling.
C. Accounting for Defence Delay
60 Application of this framework, as under the Morin framework, begins with calculating the total delay from the charge to the actual or anticipated end of trial. Once that is determined, delay attributable to the defence must be subtracted. The defence should not be allowed to benefit from its own delay-causing conduct. As Sopinka J. wrote in Morin: "The purpose of s. 11(b) is to expedite trials and minimize prejudice and not to avoid trials on the merits" (p. 802).
61 Defence delay has two components. The first is delay waived by the defence (Askov, at pp. 1228-29; Morin, at pp. 790-91). Waiver can be explicit or implicit, but in either case, it must be clear and unequivocal. The accused must have full knowledge of his or her rights, as well as the effect waiver will have on those rights. However, as in the past"[i]n considering the issue of 'waiver' in the context of s. 11(b), it must be remembered that it is not the right itself which is being waived, but merely the inclusion of specific periods in the overall assessment of reasonableness" (R. v. Conway, [1989] 1 S.C.R. 1659, per L'Heureux-Dubé J., at p. 1686).
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.
63 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, 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.
64 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. Beyond defence unavailability, it will of course be open to trial judges to find that other defence actions or conduct have caused delay (see, e.g., R. v. Elliott (2003), 114 C.R.R. (2d) 1 (Ont. C.A.), at paras. 175-82).
65 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.
66 To summarize, as a first step, total delay must be calculated, and defence delay must be deducted. Defence delay comprises delays waived by the defence, and delays caused solely or directly by the defence's conduct. Defence actions legitimately taken to respond to the charges do not constitute defence delay.
Defence Delay
16The only defence delay which, in my view, ought to be deducted from the overall time period is from the first pretrial date of October 5, 2015, when the defence waived section 11(b) and asked the case to go over to November 23, 2015, to allow counsel to consult with his client. This amounts to one month and 8 days.
Judicial Delay in Rendering a Judgment
17In R. v. Kehler, 2017 MBQB 96, G.D. Joyal C.J.Q.B. stated the following:
Judicial Delay
29 In its extensive analysis in respect of the new framework for s. 11(b), the Supreme Court of Canada in R. v. Jordan did not consider the issue of reserve judgments and how such related judicial delay can or should be assessed.
18Chief Justice Joyal decided that unless the period of time in rendering a judgment is "shocking, inordinate, and unconscionable" the time reserved for judgment should be deducted from the period of delay:
56 Two recent decisions since Jordan have examined the issue of delay caused by judges reserving their decisions. Although using different rationale, both cases refused to count reserve time toward unreasonable delay. Both cases underscored the practical problems in counting reserve time in the context of considering whether the delay is unreasonable.
57 In R. v. Lavoie, 2017 ABQB 66, Belzil J. of the Alberta Court of Queen's Bench determined that reserve time (which in that case was seven months) should be subtracted from the total delay as a discrete exceptional circumstance. The court reasoned as follows:
38 ... The decision by presiding judges to reserve decisions are both unforeseen and unavoidable.
39 ... the Crown has no ability to control whether a case is adjourned and, if so, for how long. That decision, which is a function of judicial independence, rests solely with the presiding judge.
58 In R. v. Ashraf, 2016 ONCJ 584, 367 C.R.R. (2d) 30, Band J. of the Ontario Court of Justice subtracted his own deliberation time from the total delay. In that case, had that period been included, the presumptive ceiling would have been violated. Including the reserve time as part of the total delay time would have also raised a number of fundamental problems which he addressed:
74 ... First, when a s. 11(b) application is brought prior to trial, as required by the Rules, one wonders how the judge will be able to determine the period he or she will require to deliberate without knowing (a) how the trial will unfold and (b) what other demands will be placed on his or her time surrounding the "anticipated end of trial". Second, in a case like this one, where counsel brought the application on a date that was initially set for trial continuation, some concerns may arise as to the optics and incentives at play. Should a judge inquire as to whether the defence is willing to waive the judge's deliberation time? In a case where the 18 month mark might be reached during the judge's period of deliberation, thereby shifting the onus, will the judge's "turnaround time" cause one party or the other to feel aggrieved or, worse, to question the judge's impartiality?
59 In its submissions, the Crown supplements the practical concerns raised in Ashraf by noting that the use of the Jordan framework could lead to an increasingly consistent view that it might be inappropriate for judges to assess the constitutional implications of their own delay. This would create two additional practical difficulties. First, if judicial delay is to be considered as part of the s. 11(b) presumptive ceiling, it is likely that an increasing number of delay motions in the trial courts will involve a recusal motion which may lead in turn to the potential requirement that a different judge be assigned for the adjudication of that motion. It is not conjecture to suggest that this will add complexity and potential additional delays. That is precisely what Jordan sought to remedy. The second practical difficulty relates to the unavailability of relevant information that will prevent the Crown from being able to adequately and meaningfully respond as to the reasonableness of that part of the delay which is over the presumptive ceiling but is judicial. This in turn affects the fairness of the required Crown accountability which is an inherent and important part of the Jordan analysis. In other words, where there is an explanation for judicial delay that implicates s. 11(b), the constraints of the judicial role will prevent judges in question from being able to provide that explanation and the Crown, upon whom the burden to explain the delay would fall, will rarely have access to that information. In this context, it should go without saying that judges do not become witnesses nor do they file affidavits.
60 To summarize, judicial delay should not be assessed and accounted for by including it under the new Jordan framework and measuring it against the stark and associated presumptive ceilings. Not only does the Jordan framework not provide a mechanism for adequately balancing and reconciling the relevant constitutional principles at play, the framework -- if applied to judicial delay -- would give rise to practical problems that would have the paradoxical effect of compromising much of the predictable and certain efficiency and accountability that Jordan was attempting to bring.
61 Needless to say, the discussion of the implications and practicalities of including judicial delay in the presumptive ceilings set out in Jordan must be kept separate from any discussion of the ethical issues that are triggered when there is undue delay in judicial decision-making. Later in this judgment, I will briefly touch upon the distinction between the professional/ethical issue of judicial delay and judicial delay which is constitutionally violative.
62 So if it is inappropriate to include judicial delay or judicial deliberation time in a presumptive ceiling analysis, is there an appropriate place anywhere in a s. 11(b) analysis to consider and assess potentially violative judicial delay? If so, how is such a consideration and assessment to be done? On what test can it be determined that judicial delay in the preparation of reasons infringes an accused's right to be tried within a reasonable time?
63 I attempt to address those questions in my discussion of the next issue.
Issue 2: If in the context of an alleged s. 11(b) violation, judicial delay relating to judicial reserve time cannot be addressed using the framework and/or presumptive ceilings set out in R. v. Jordan, how is such judicial delay to be assessed and when might such delay be seen as violative of an accused's s. 11(b) Charter rights?
64 For the reasons that follow, I have determined that judicial delay in decision-making may be in some circumstances -- however exceptional -- violative of an accused's constitutional right to be tried within a reasonable time.
65 I have already explained why this court ought not to consider judicial delay in the context of a presumptive ceiling. Such a reference point was not conceived so as to adequately balance and reconcile the applicable constitutional principles and interests at play. As I set out below, it is my view that the appropriate applicable test is that which is set out in Rahey, supra. The determinative question is whether, in the overall context of the case, the delay in preparing a decision was "shocking, inordinate and unconscionable". If it was, then "in the words of s. 11(b), the delay was unreasonable". See Rahey, para. 43.
66 As a starting point, I accept that there must be an appropriate place in a s. 11(b) analysis so as to enable a consideration of judicial delay which may be constitutionally violative. Notwithstanding everything I have already acknowledged and discussed in relation to the constitutional principle of judicial independence and its practical exercise in the realm of judicial decision-making and judicial reserves, in this post-Jordan era, it would be incongruous to suggest that there is not some point at which judicial delay becomes unreasonable for the purposes of s. 11(b).
67 Using the identified test in Rahey ensures an adequate appreciation for the need to reconcile the tension between the constitutional principles of judicial independence and the right to a trial within a reasonable time. The nature of that Rahey test and its application does not involve either of these principles superseding or abrogating the other. The "shocking, inordinate and unconscionable" test enables a reconciliation of the colliding constitutional principles in a way that does indeed preserve the core of each principle.
68 Where it can properly be said on the facts of a given case that the judicial delay in question is "shocking, inordinate and unconscionable", such a characterization would suggest that the delay was not within the "substantial variations on how different judges approach their duties" as permitted under the ambit of judicial independence. See Creve, supra, at para. 110. Accordingly, delay that is "shocking, inordinate and unconscionable" violates the accused's right to a trial within a reasonable time.
69 In attempting to find an appropriate mechanism for assessing constitutionally violative judicial delay in post-Jordan cases, it is possible to assert (as the Crown has) that the application of the Rahey test contains relevant reference points which capture the spirit of the issue as it was determined in Rahey, and, at the same time, it permits an analysis unencumbered by the now-discarded Morin factors which were not in play in Rahey. In this connection, one sees in the adjectives "shocking, inordinate and unconscionable" a sufficiently clear meaning so as to enable one to understand why any such described judicial delay is one which has exceeded the proper bounds of judicial independence and entered the realm of what is unreasonable.
70 Judicial delay which would exceed the proper bounds of judicial independence would first have to be "shocking". "Shocking" in this context connotes that a reasonable person with full knowledge of the justice system would be alarmed at the delay and find it significantly in excess of acceptable standards.
71 A judicial delay which exceeds the proper bounds of judicial independence would also be "inordinate". "Inordinate" in this sense would be that delay which significantly exceeds the time reasonably required in reference to, amongst other things, the complexity of the particular case and any identifiably available personal or workload factors that may be present and knowable.
72 Finally, unreasonable judicial delay that exceeds the proper bounds of judicial independence need be "unconscionable". In this respect, an unconscionable delay would be that which is excessive to the extent that it cannot be explained or justified on any reasonable basis, a priori or otherwise.
73 The application and associated analysis of the Rahey test will involve a consideration of any relevant factor arising in the particular context of a given case. Those contextually relevant factors may vary because of their case-specific nature.
74 In conducting an analysis as to potentially violative delay using the test set out in Rahey, the court should take into account contextual factors like the complexity of the matter and the amount of evidence that requires review. In Jordan, the Supreme Court confirmed that a case-specific factor such as complexity remains a relevant consideration, as it relates to situations falling both above and below the presumptive ceiling. See Jordan, supra, at paras. 77 and 88.
75 Despite my emphatic earlier determination of the first issue on this application, in some cases, as part of the broader context, one of the factors to be considered in determining if a judicial delay is "shocking, inordinate and unconscionable" may be whether or not (from the time of the charge to the end of the evidence) the judicial delay in question is taking place in a case where a presumptive ceiling has already been breached. Limited to a contextual factor, it should still be recognized that even in cases where the time from the charge to the end of the trial exceeds a presumptive ceiling, a judge will require time to deliberate, come to a decision and craft appropriate reasons for judgment.
76 The reasonableness of the time required for a judge to fulfill this adjudicative function must be considered in light of the reality that a judge's full efforts and time cannot be dedicated to or dictated by a single case. Even in cases which do not appear legally complex, the case in question may still require a thorough recitation of evidence which in turn may require a reference to transcripts. In other instances, the decisions may require extensive legal analysis and jurisprudential review. Whatever the unique requirements in a given case, it must always be remembered that in every case, judges should aim to provide considered reasons which "enhance the qualities of justice in the criminal process in many ways." See Lamacchia, supra, at para. 7, citing R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3. It is for that reason that although any excessive time taken between the charge and the completion of the evidence may be taken into account as a contextual factor to the application of the Rahey test (i.e. a breach of a presumptive ceiling prior to the judicial delay), the relative importance of such a factor will usually be minimal and never determinative.
77 In adopting the test in Rahey for identifying judicial delay that is constitutionally violative, I appreciate that the threshold may be perceived as being high. But it is only with that high threshold that the colliding constitutional principles and interests at play can be reconciled and balanced, while at the same time ensuring a necessary recognition that there is a point beyond which judicial delay becomes unreasonable. Despite the stipulated high threshold required for showing judicial delay that is violative of s. 11(b), it ought to be understood that confirming such a high threshold is not tantamount to an indifference about the judiciary's need to deliver decisions as promptly as possible. Indeed, in an era where the ideals of access to justice and systemic efficiency have been properly emphasized, the judiciary's concern for prompt but thoughtful decision-making has never been more important.
78 The Canadian Judicial Council ("CJC") in its "Ethical Principles for Judges" notes that as an aspect of the principle of "diligence", judges should deliver reserve judgments within six months, barring special circumstances. Those special circumstances include "illness, the length or complexity of the case, an unusually heavy workload, or other factors making it impossible to give judgments sooner". See CJC Ethical Principles for Judges, p. 21. It need be emphasized that while an important yardstick, the CJC recommendation is aspirational and identified on the order of a "best practice". Yet even if the six-month mark is identified and sometimes de-emphasized as a mere "best practice", that six-month marker has in fact congealed so as to become a well-known demarcation line for signalling what may be, in the context of a judge's professional obligations, an undue judicial delay.
79 It need be recognized that judicial delay which may be "undue", is nonetheless not necessarily delay which is constitutionally unreasonable. In most cases, judicial delay in the rendering of a decision will remain an ethical not a juridical matter. In that majority of cases, any undue judicial delay is properly overseen and regulated by the court's Chief Justice, Associate Chief Justice or Senior Regional Judge, who would be best placed to appreciate, balance and regulate the professional and personal factors that surround any given judicial delay.
Analysis
19I find the principles set out in R. v. Kehler [supra] very compelling and accept them as authoritative, and I follow them and apply them to the present case. Therefore, the period from February 16, 2017, when the trial evidence and submissions in the present matter were concluded, until May 1, 2017, when my judgment was delivered, will not be considered in the unreasonable delay calculation. In my view, this should not be categorized as "shocking, inordinate, and unconscionable."
20This means that the total period of delay is that submitted by the Crown, from August 4, 2015 to February 16, 2017, which is 18 months and 13 days.
21The defence delay from October 16, 2015 to November 23, 2015, is one month and eight days.
22After deducting the defence delay, the total is 17 months and 5 days, which is below the 18 month presumptive period for summary conviction matters.
Conclusion
23The defence application is therefore dismissed.
Released: September 7, 2017
Signed: "Justice Alan D. Cooper"
