ONTARIO COURT OF JUSTICE

Date: December 6, 2017

Court File No.: Halton – Burlington Information nos. 1260-999-13-7246; 1260-999-13-7247; 1260-999-14-7592

BETWEEN:

Halton Region Conservation Authority - Prosecutor

— AND —

Houshyar Ahmad, Lavinder Aulakh, Harkamaljit Singh Bahia, Benji Transport Inc., Brock Aggregates Inc., Lewis Burchell, Dancar Haulage Corporation, Dilligaf Logistics Ltd., EarthCo Soil Mixtures Inc., G & L Group Ltd., Nana Gambrah, Gambrah Trucking Co., Courtney Gayle, Heavy Weight Trucking Inc., Hours Trucking Company, Zakir Housein, Coleen Ann Hunter, Jas Deol Trucking Inc., Jeorge Campoverde Haulage Ltd., Pasquale Lamanna, Carol McLean, Anthony Mensa, Earl Patrick, Nickolai Romantchenko, Noel Roper, Jaspal Singh, Tylors Trucking Services Inc., Surjit Uppal, Carlo Waite, O'Niel Young, Erica Young, 1167877 Ontario Inc., 1191669 Ontario Inc., 1688543 Ontario Inc., 1770195 Ontario Inc., 2163832 Ontario Inc. and 6282121 Canada Inc. under information number 13-7247; Daryn Bagg and Salman Cevlik under information number 13-7246; EarthCo Soil Mixtures Inc. under information number 14-7592 – Defendants

Ruling on Application under Subsections 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms

Before: Justice of the Peace Kenneth W. Dechert

Heard on: August 1, 2017, August 14, 2017 and August 21, 2017

Reasons for Judgment released on: December 6, 2017

Provincial Offences Court – Burlington, Ontario

Counsel:

J. Wigley – counsel for Halton Region Conservation Authority
M. Klaiman – counsel for the Defendants

Statutes, Regulations and Rules Cited

Cases Cited

K.W. DECHERT, J.P.

INTRODUCTION

[1] In information no. 13-7247, sworn on the 19th day of April, 2013, all 37 defendants named above, stand charged with a total of 770 charges contrary to subsection 28(16) of the Conservation Authorities Act, R.S.O. 1990, c. C.27, as amended, either as principal and party offenders or as party offenders only. These offences were alleged to have taken place between the 28th day of August, 2012 and the 26th day of September, 2012, at the Town of Milton in the Region of Halton, relative to a parcel of land municipally known as 7459 Auburn Road, Milton, Ontario.

[2] In information no. 13-7246, sworn on the 2nd day of May, 2013, the defendant Daryn Bagg, stands charged with 30 charges contrary to subsection 28(16) of the Conservation Authorities Act, supra, as both a principal and party offender. In that same information, the defendant Salman Cevlik stands charged with 10 charges contrary to subsection 28(16) of the Conservation Authorities Act, as both a principal and party offender. These offences were alleged to have taken place between the 28th day of August, 2012 and the 26th day of September, 2012, at the Town of Milton in the Region of Halton, relative to a parcel of land municipally known as 7459 Auburn Road, Milton, Ontario.

[3] In information no. 14-7592, sworn on the 3rd day of October, 2014, the defendant EarthCo Soil Mixtures Inc. stands charged with 2 charges contrary to subsection 28(16) of the Conservation Authorities Act, supra, as a principal offender. These offences were alleged to have taken place between the 28th day of August, 2012 and the 26th day of September, 2012, at the Town of Milton in the Region of Halton, relative to a parcel of land adjacent to the property municipally known as 7459 Auburn Road, Milton, Ontario.

[4] The consolidated trial of these 3 informations began before me on September 1st, 2015. It continued on September 4th, 2015, December 7th, 2015, January 4th, 2016, January 25th, 2016, January 26th, 2016, May 9th, 2016, May 16th, 2016, June 6th, 2016, August 22nd, 2016, October 18th, 2016 (½ day), December 5th, 2016 (½ hour), December 12th, 2016, April 3rd, 2017, August 1st, 2017, August 14th, 2017, August 21st, 2017, August 28th, 2017, October 3rd, 2017 and November 1st, 2017 (½ day). It is scheduled to continue on December 12th, 2017 (½ day), December 13th, 2017, January 23rd, 2018 (½ day), February 26th, 2018, February 27th, 2018 (½ day), March 2nd, 2018, March 5th, 2018 and March 6th, 2018. I am seized of the trial of these proceedings.

[5] The prosecutor, the Halton Region Conservation Authority, also known as Conservation Halton, was represented by its counsel Mr. K. Jull, from the time of the institution of the respective proceedings until the 22nd day of August, 2016. The prosecutor is currently represented by its counsel Mr. J. Wigley.

[6] The defendants are represented by their counsel Mr. M. Klaiman. At the time of the first appearance relative to the charges set out in informations nos. 13-7246 and 13-7247, on June 18th, 2013, Mr. Klaiman was retained as counsel for 24 of the subject 39 defendants. By the time of the fifth court appearance of these informations, on February 18th, 2014, Mr. Klaiman was retained as counsel for 33 of the 39 defendants. On October 2nd, 2014, at the time of the second judicial pre-trial conference for the charges described in informations nos. 13-7246 and 13-7247, Mr. Klaiman advised that he was retained as counsel for all 39 defendants. Mr. Klaiman was retained as counsel for the defendant, EarthCo Soil Mixtures Inc., on the charges described in information no. 14-7592, as of the date of the institution of those charges on October 3rd, 2014.

[7] On June 6th, 2017, the defendants commenced an Application under subsections 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms, being Part 1 of the Constitution Act, 1982, hereinafter referred to as the "Charter", submitting that their right to be tried within a reasonable time in respect of these proceedings had been infringed and seeking a dismissal or stay of the subject charges. This Application together with the affidavit of one of the subject defendants, Pasquale Lamanna, sworn on the 4th day of May, 2017, was served on the Halton Region Conservation Authority, the Attorney General of Ontario and the Attorney General of Canada on the 12th day of June, 2017.

[8] The hearing of this Application commenced before me on August 1, 2017. It continued on August 14th and August 21st, 2017. I then reserved judgment.

[9] In adjudicating the subject Application, I have considered the contents of the following documents:

The subject Application under s. 11(b) of the Charter, dated June 6th, 2017 and the accompanying affidavit of Pasquale Lamanna, sworn on May 4th, 2017, entered collectively on August 1, 2017, as exhibit #1;
The affidavit of Barbara Veale, the Director of Planning and Regulations for the Halton Region Conservation Authority, sworn on the 4th day of July, 2017, entered on August 1, 2017, as exhibit #3;
The transcripts of relevant portions of the court appearances in these proceedings on June 18th, 2013, September 3rd, 2013, November 18th, 2013, January 20th, 2014, February 18th, 2014, October 2nd, 2014, January 13th, 2015, February 2nd, 2015, February 3rd, 2015, February 9th, 2015, February 17th, 2015, March 2nd, 2015, March 30th, 2015, September 1st, 2015, September 4th, 2015, December 7th, 2015, January 4th, 2016, January 25th, 2016, January 26th, 2016, May 9th, 2016, May 16th, 2016, June 6th, 2016, August 22nd, 2016, October 18th, 2016 and April 3rd, 2017, entered into evidence as exhibits in this Application hearing on August 14th, 2017, as exhibits nos. 5(a) through 5(y) respectively.

[10] Furthermore, in adjudicating this Application, I have considered the defendants' factum, dated July 24th, 2017, the prosecutor's memorandum of argument, dated July 21st, 2017, the briefs of authorities filed by both the defendants and the prosecution and the oral arguments of both counsel of August 1st, August 14th, and August 21st, 2017.

THE LAW

(i) Relevant Statutory Provisions

[11] In the subject Application, the defendants submit that their right under subsection 11(b) of the Charter has been denied "by reason of unreasonable delay" and therefore seek a stay of the charges under all three of the subject informations as a remedy for the denial of that right, pursuant to subsection 24(1) of the Charter.

[12] Subsection 11(b) of the Charter reads as follows:

Any person charged with an offence has the right

(b) to be tried within a reasonable time; …

[13] Subsection 24(1) of the Charter reads as follows:

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(ii) Relevant Common Law

[14] In their seminal judgment in Regina v. Jordan, 2016 SCC 27, released on the 8th day of July, 2016, Moldaver, Karakatsanis and Brown JJ., writing on behalf of a majority of the Supreme Court of Canada, established a new analytical framework for determining applications under subsection 11(b) of the Charter. In doing so the Court overruled the analytical framework created by Sopinka J. in his decision in Regina v. Morin, [1992] 1 S.C.R. 771.

[15] In the course of their judgment in Regina v. Jordan, supra, Justices Moldaver, Karakatsanis and Brown recognized that the right to be tried within a reasonable time is important to both individuals and society as a whole. They emphasized the principle that "an unreasonable delay [of a trial] denies justice to the accused, victims and their families, and the public as a whole".

[16] At paragraph 20 of their decision, the Justices reiterated the primary purpose of s. 11(b) of the Charter, related to the protection of the individual rights of an accused, as enunciated by the majority in Regina v. Morin, supra, as follows:

Trials within a reasonable time are an essential part of our criminal justice system's commitment to treating presumptively innocent persons in a manner that protects their interests in liberty, security of the person, and a fair trial. Liberty is engaged because a timely trial means an accused person will spend as little time as possible held in pre-trial custody or living in the community under release conditions. Security of the person is impacted because a long-delayed trial means prolonging the stress, anxiety, and stigma an accused may suffer. Fair trial interests are affected because the longer a trial is delayed, the more likely it is that some accused will be prejudiced in mounting a defence, owing to faded memories, unavailability of witnesses, or lost or degraded evidence.

[17] In commenting on the "problems" with the Morin s.11(b) analytical framework, Justices Moldaver, Karakatsanis and Brown remarked, at paragraph 29, as follows:

While this Court has always recognized the importance of the right to a trial within a reasonable time, in our view, developments since Morin demonstrate that the system has lost its way. The framework set out in Morin has given rise to both doctrinal and practical problems, contributing to a culture of delay and complacency towards it.

[18] As stated above, the majority in Jordan developed a "new" analytical framework for section 11(b) applications. They summarized this framework in paragraphs 46, 47 and 48, as follows:

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).

If the total delay from the charge to the actual or anticipated end of the 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.

If the total delay from the charge to the actual or anticipated end of the 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.

[19] In her decision in Regina v. Coulter, 2016 ONCA 704, at paragraphs 34 through 41, Gillese J.A. summarized the "new" framework elaborated on in Jordan, as follows:

The New Framework Summarized

Calculate the total delay, which is the period from the charge to the actual or anticipated end of the trial (Jordan at para. 47).
Subtract defence delay from the total delay, which results in the "Net Delay" (Jordan at para. 66).
Compare the Net Delay to the presumptive ceiling (Jordan, para. 66).
If the Net Delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances (Jordan, para. 47). If it cannot rebut the presumption, a stay will follow (Jordan, para. 47). In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases (Jordan, para. 71).
Subtract delay caused by discrete events from the Net Delay (leaving the "Remaining Delay") for the purpose of determining whether the presumptive ceiling has been reached (Jordan, para. 75).
If the Remaining Delay exceeds the presumptive ceiling, the court must consider whether the case was particularly complex such that the time the case has taken is justified and the delay is unreasonable (Jordan, at para. 80).
If the Remaining Delay falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable (Jordan, para. 48).
The new framework, including the presumptive ceiling, applies to cases already in the system when Jordan was released (the "Transitional Cases") (Jordan, para. 96).

[20] In its unanimous judgment in Regina v. Cody, 2017 SCC 31, the Supreme Court of Canada confirmed and clarified the majority decision in Jordan, relative to the s. 11(b) analytical framework. In particular, at paragraph 25 of the decision, the Court acknowledged that where a charge pre-dates Jordan "and the delay remains presumptively unreasonable after deducting defence delay and accounting for and considering exceptional circumstances, the Crown may nevertheless demonstrate that the transitional exceptional circumstance justifies the delay (Jordan, at paras. 95-96)".

[21] In discussing the issue of "defence delay" in the context of the Jordan analytical framework, the Court noted that defence delay is divided into two components: (1) "delay waived by the defence"; and (2) "delay that is caused solely by the conduct of the defence" (Jordan, at paras. 61 and 63).

[22] The Court went on to define these components in paragraphs 27 through 32 and in paragraph 34 of Regina v. Cody, supra, as follows:

(1) Waiver

A waiver of delay by the defence may be explicit or implicit, but it must be informed, clear and unequivocal (Jordan, at para. 61). …

(2) Delay Caused by Defence Conduct

Deducting Delay

In broad terms, the second component is concerned with defence conduct and is intended to prevent the defence from benefitting from its own delay-causing action or inaction (Jordan, at para.113). It applies to any situation where the defence conduct has "solely or directly" caused the delay (Jordan, at para. 66).

However, not all delay caused by defence conduct should be deducted under this component. In setting the presumptive ceilings, this Court recognized that an accused person's right to make full answer and defence requires that the defence be permitted time to prepare and present its case. To this end, the presumptive ceiling of 30 months and 18 months have "already accounted for [the] procedural requirements" of an accused person's case (Jordan, at para. 65; see also paras. 53 and 83). For this reason, "defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay" and should not be deducted (Jordan, at para. 65).

The only deductible defence delay under this component is, therefore, that which: (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. As we said in Jordan, the most straightforward example is "deliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests" (Jordan, at para. 63). Similarly, where the court and Crown are ready to proceed, but the defence is not, the resulting delay should also be deducted (Jordan, at para. 64). These examples were, however, just that – examples. They were not stated in Jordan, nor should they be taken now, as exhaustively defining deductible defence delay. Again as was made clear in Jordan, it remains "open to trial judges to find that other defence actions or conduct have caused delay" warranting a deduction (para. 64).

The determination of whether defence conduct is legitimate is "by no means an exact science" and is something that "first instance judges are uniquely positioned to gauge" (Jordan, at para. 65). It is highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. While trial judges should take care not to second-guess steps taken by defence for the purposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate to do so.

Defence conduct encompasses both substance and procedure – the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application, if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay.

This understanding of illegitimate defence conduct should not be taken as diminishing an accused person's right to make full answer and defence. Defence counsel may still pursue all available substantive and procedural means to defend their clients. What defence counsel are not permitted to do is engage in illegitimate conduct and then have it count towards the Jordan ceiling. In this regard, while we recognize the potential tension between the right to make full answer and defence and the right to be tried within a reasonable time – and the need to balance both – in our view, neither right is diminished by the deduction of delay caused by illegitimate defence conduct.

[23] In paragraph 61 of Jordan, Justices Moldaver, Karakatsanis and Brown made the following comments pertaining to the concept of "waiver":

… 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, "in 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).

[24] In discussing the concept of exceptional circumstances in Cody, the Court made the following comments at paragraphs 45 and 46:

Exceptional circumstances were described in Jordan as follows:

Exceptional circumstances lie outside the Crown's control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise.

Exceptional circumstances generally fall into two categories: discrete events and particularly complex cases (Jordan, at para. 71). In addition, transitional considerations may be taken into account as a third form of exceptional circumstances where, as here, the case was already in the system when Jordan was decided (Jordan, at paras. 94-98).

[25] In defining the notion of "discrete events", the Court in Cody stated that "like defence delay, discrete events result in quantitative deductions of particular periods of time. The delay caused by discrete exceptional events or circumstances that are reasonably unforeseen or unavoidable is deducted to the extent it could not be reasonably mitigated by the Crown and the justice system (Jordan, at paras. 73 and 75)".

[26] In Regina v. Coulter, supra, at paragraphs 49 and 50, Gillese J.A. made the following comments pertaining to the definition of "discrete events" as an exceptional circumstance relative to the Jordan analytical framework:

An illustration of a discrete event that will generally qualify is a medical or family emergency on the part of the accused, important witnesses, counsel or the trial judge (Jordan, para. 72).

The period of delay caused by the any discrete event must be subtracted from the Net Delay for the purpose of determining whether the presumptive ceiling has been reached. However, any portion of the delay caused by a discrete event that the Crown or system could reasonably have mitigated may not be subtracted (Jordan, para. 75).

[27] The notion of "a particularly complex case" as an exceptional circumstance to justify presumptively unreasonable delay, was defined by the majority in Jordan at paragraph 77, as follows:

…Particularly 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. 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 interests of justice to do so, may also impact the complexity of the case.

[28] In Cody, at paragraphs 63 and 64, the Court made the following comments respecting "particularly complex cases" as a category of "exceptional circumstances":

The second category of exceptional circumstances is concerned with particularly complex cases. The presumptive ceilings set in Jordan already reflect the "increased complexity of criminal cases since Morin", including the emergence of "new offences, procedures, obligations on the Crown and police, and legal tests" (Jordan, at paras. 42 and 53). However, particularly complex cases may still justifiably exceed the presumptive ceilings.

Unlike defence delay and discrete events, case complexity requires a qualitative, not quantitative assessment. Complexity is an exceptional circumstance only where the case as a whole is particularly complex. Complexity cannot be used to deduct specific periods of delay. Instead, once any applicable quantitative deductions are made, and where the net delay still exceeds the presumptive ceiling, the case's complexity as a whole may be relied upon to justify the time that the case has taken to rebut the presumption that the delay was unreasonable (Jordan, at para. 77)… . When determining whether a case's complexity is sufficient to justify its length, trial judges should consider whether the net delay is reasonable in view of the case's overall complexity. This is a determination that falls well within the expertise of a trial judge (Jordan, para. 79).

[29] Finally, in Jordan, the majority of the panel recognized a third exceptional circumstance, being a transitional exceptional circumstance for those cases which were already in the system at the time that it was released.

[30] The Court in Cody summarized the applicability of this factor in the context of the Jordan framework, at paragraphs 67 to 69 and in paragraph 71 of the decision, as follows:

The new framework in Jordan applies to cases already in the system (Jordan, at para. 95). However, in some cases, the transitional exceptional circumstance may justify a presumptively unreasonable delay where the charges were brought prior to the release of Jordan (Jordan, at para.96). This should be the final step in the analysis, taken only where, as here, the deduction of discrete events does not reduce the delay below the presumptive ceiling and excess delay cannot be justified based on case complexity.

Like case complexity, the transitional exceptional circumstance assessment involves a qualitative exercise. It recognizes "the fact that the parties' behaviour cannot be judged strictly against a standard of which they had not notice" and that "change takes time" (Jordan, at paras. 96-97). The Crown may rely on the transitional exceptional circumstance if it can show 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). Put another way, the Crown may show that it cannot be faulted for failing to take further steps, because it would have understood the delay to be reasonable given its expectations prior to Jordan and the way delay and the other factors such as the seriousness of the offence and prejudice would have been assessed under Morin.

To be clear, it is presumed that the Crown and defence relied on the previous law until Jordan was released. In this regard, the exceptionality of the "transitional exceptional circumstance" does not lie in the rarity of its application, but rather in its temporary justification of delay that exceeds the ceiling based on the parties' reasonable reliance on the law as it previously existed (Jordan, at para.96). The transitional exceptional circumstance should be considered in cases that were in the system before Jordan. The determination of whether the delay in excess of the presumptive ceiling is justified on the basis of reliance on the law as it previously existed must be undertaken contextually and with due "sensitivity to the manner in which the previous framework was applied" (Jordan, at paras. 96 and 98). Under the Morin framework, prejudice and seriousness of the offence "often played a decisive role in whether delay was unreasonable" (Jordan, at para. 96). Additionally, some jurisdictions are plagued with significant and notorious delays, which was considered under Morin as well (Jordan, at para. 97; Morin, at pp. 799-800). For cases currently in the system, these considerations can inform whether any excess delay may be justified as reasonable (Jordan, at para. 96).

When considering the transitional exceptional circumstance, trial judges should be mindful of what portion of the proceedings took place before or after Jordan was released. For aspects of the case that pre-dated Jordan, the focus should be on reliance on factors that were relevant under the Morin framework, including the seriousness of the offence and prejudice. For delay that accrues after Jordan was released, the focus should instead be on the extent to which the parties and the courts had sufficient time to adapt (Jordan, at para. 96).

ANALYSIS

(i) Total Delay

[31] The total delay is the period which runs from the institution of the charges; i.e. the date when the informations were sworn, to the actual or anticipated end of the trial.

[32] The charges in information no. 13-7247 were sworn on April 19th, 2013. The charges in information no. 13-7246 were sworn on May 2nd, 2013. Lastly, the charges in information no. 14-7592 were sworn on October 3rd, 2014. The trial of these proceedings commenced on September 1st, 2015 and has continued from time to time to and including November 1st, 2017.

[33] The trial is not finished. The prosecution has not yet completed its case. As of the time of the close of the proceedings on November 1st, 2017, two of the four prosecution witnesses (Watershed Conservation Officer Nathan Murray and Ms. Lesley Matich, an expert witness in terrestrial planning ecology) had completed their testimony. Mr. Cory Harris, an expert witness in water resources engineering, commenced his testimony on November 1st, 2017. It will be continued on December 12th, 2017. The prosecutor has advised that following the completion of Mr. Harris' testimony, he will close his case with the testimony of a further expert witness; Ms. Sarah Mainguy.

[34] During the course of his submissions in this Application, on August 14th and 21st, 2017, the prosecutor advised that in light of the additional 7 trial dates which had been reserved for these proceedings, he was confident that the trial proceedings, including a possible sentencing hearing, could be concluded by March 31st, 2018. He indicated that in making this prediction he was cognizant of the fact that the defence would likely be calling 7 witnesses, including 3 experts.

[35] The subject trial reconvened on both August 28th and October 3rd, 2017 (both full days) and on November 1st, 2017 (½ day). It is scheduled to continue on December 12th, 2017 for ½ day, December 13th, 2017 for a full day, January 23rd, 2018 for ½ day, February 26th, 2018 for a full day, February 27th, 2018 for ½ day, March 2nd, 2018 for a full day, March 5th, 2018 for a full day and March 6th, 2018 for a full day.

[36] During the course of his submissions of August 1st, 14th and 21st, 2017, the counsel for the defendants argued that it was unlikely that the trial of these proceedings, including a possible sentencing hearing, would realistically be completed prior to the end of July, 2018. Mr. Klaiman made that prediction based on his understanding that in addition to Officer Murray's unfinished testimony, the Crown intended to call 4 witnesses (including three proposed experts), based on the fact that he would be calling 7 defence witnesses and based upon the pace of the trial to date; indicative of significant institutional resource limitations for provincial offence prosecutions in the Regional Municipality of Halton.

[37] After carefully considering this issue, including the expressed position of the parties and the reservation of 6 ½ days for this trial between December 2017 and March 2018, I anticipate that the trial of these proceedings, including a possible sentencing hearing, will be completed by May 18th, 2018.

[38] The total delay in the prosecution of the charges contained in the subject three informations, is calculated as follows:

Information no.13-7247 - April 19, 2013 to May 18, 2018 is 61 months;
Information no.13-7246 – May 2, 2013 to May 18, 2018 is 60 months and 16 days;
Information no. 14-7592 – October 3, 2014 to May 18, 2018 is 43 months and 15 days.

(ii) Defence Delay

[39] As stated by the majority of the Court in Jordan, supra, "[d]efence delay has two components. The first is delay waived by the defence…." The second component "is delay caused solely by the conduct of the defendant".

[40] In its judgment in Cody, the Supreme Court re-stated the definition of defence delay in this context, by noting that "the only deductible defence delay under this component" is that "which (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges". The Court went on to expand on the scope of the "legitimacy" of a defence action by positing as follows:

…Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay. …

[41] Furthermore, the majority in Jordan endorsed the concept that deductible defence delay includes the scenario where "the court and the Crown are ready to proceed, but the defence is not". The Supreme Court noted that in that scenario "the period of delay resulting from that unavailability will be attributed to the defence". The Court went on to acknowledge, however, that "periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable".

[42] The majority in Jordan acknowledged the concept that delay waived by the defence "can be explicit or implicit, but [that] in either case, [the waiver] must be clear and unequivocal". In his judgment in Morin, Sopinka J. defined the "stringent" test for "waiver or time periods" as follows:

Waiver requires advertence to the act of release rather than mere inadvertence. If the mind of the accused or his or her counsel is not turned to the issue of waiver and is not aware of what his or her conduct signifies, then this conduct does not constitute waiver. …

(A) Waiver

[43] In my view there are only two periods of time in these proceedings, which have been either expressly or implicitly waived by the defendants.

[44] Based upon the contents of the transcripts of the pre-trial court appearances of February 3rd, 2015, February 9th, 2015, February 17th, 2015 and March 2nd, 2015, I am of the view that the defendants implicitly waived their rights under subsection 11(b) of the Charter for the 27 day period of time between February 3rd, 2015 and March 2nd, 2015.

[45] In reaching this conclusion, I note that all of the defendants had retained Mr. Klaiman, as counsel, by October 2nd, 2014. On that date trial dates for the proceedings were set for February 2nd, February 3rd, February 6th, February 9th, March 2nd, March 9th and March 31st, 2015. These trial dates were confirmed on January 13th, 2015.

[46] On February 2nd, 2015, the 7-day trial was set to commence before Justice of the Peace M. Curtis, however, it was adjourned to February 3rd, 2015 due to a severe snowstorm.

[47] The trial did not begin on February 3rd, 2015, as anticipated. On that date, the parties entered into intense settlement negotiations and asked that the trial be adjourned. In doing so defence counsel, Mr. Klaiman, stated that "we're within inches of settlement". At the same time, the prosecutor Mr. Jull advised that he and Mr. Klaiman had achieved a resolution and that they needed time to work out the details of the settlement. The parties were so confident that they had achieved a resolution that they agreed to vacate the February 6th, March 9th and March 31st, 2015 trial dates. The proceedings were then adjourned to February 9th, 2015 for a guilty plea hearing.

[48] The guilty plea hearing did not take place on February 9th, 2015, as anticipated. Both parties were, however, hopeful that a resolution could be achieved and Mr. Klaiman consented to an adjournment of the matter for purposes of resolving the charges by means of a guilty plea to be entered on February 17th, 2015.

[49] On February 17th, 2015, the articling student for the prosecutor attended on behalf of the prosecution and as agent for the defendants' counsel, to advise that a settlement of the proceedings had not been effected, as originally anticipated. Acting on instructions from both counsel, the articling student requested that the three informations be adjourned to March 2nd, 2015 for trial. In doing so, on agreement, the parties were able to reserve March 30th, 2015 as a second trial date.

[50] In reviewing the representations made, by Mr. Klaiman or by an agent on his behalf, on February 3rd, February 9th and February 17th, 2015, and in light of Mr. Klaiman's agreement to vacate a number of trial dates for these proceedings, I am able to infer that the defendants had implicitly waived their rights under section 11(b) for a short period of time, in order to explore a possible resolution of the charges.

[51] In light of the parties' advice that they had entered into intensive resolution discussions in an effort to avoid a trial of the proceedings on the merits, coupled with their joint decision to vacate four of the six original trial dates in this matter in an effort to work out the terms of a potential settlement, it is apparent that Mr. Klaiman had implicitly waived his clients' section 11(b) rights for the period between February 3rd, 2015 and March 2nd, 2015 (a period of 27 days). The actions of the defence counsel in delaying the start of the trial while active settlement discussions were taking place may fairly be interpreted as a clear and unequivocal waiver of the defendants' s. 11(b) rights for the aforesaid period of time.

[52] The second period of time which has been waived by the defendants is the period of time between April 4th, 2017 and August 1st, 2017 (a period of 3 months and 27 days). This period of time was expressly waived by the defendants' counsel on April 3rd, 2017. This waiver was confirmed by Mr. Klaiman during the course of his submissions of August 1st, 2017.

(B) Delay Caused by Defence Conduct

[53] There have been a number of occasions during the course of these trial proceedings when court resources were available on certain dates for trial continuation, which were available to the prosecutor and to me, but which were not available to Mr. Klaiman. The period of delay occasioned by the unavailability of defence counsel in these scenarios is properly deductible from the total delay as part of the Jordan calculus of net delay.

[54] Mr. Klaiman was not available on the following trial dates offered by the court, which were available to both myself and the prosecutor:

July 11th, 2016 and August 15th, 2016 – delay until August 22nd, 2016 is 42 days;
September 26th, 2016 – delay until October 18th, 2016 is 22 days;
August 22nd, 2017 – delay until August 28th, 2017 is 6 days;
October 2nd, 2017 – delay until October 3rd, 2017 is 1 day;
October 25th, 2017 – delay until October 31st, 2017 is 6 days;
November 29th, 2017 – delay until December 1st, 2017 is 2 days;
December 6th, 2017 – delay until December 12th, 2017 is 6 days;
December 20th, 2017, December 21st, 2017, January 5th, 2018 and January 8th, 2018 – delay until January 23rd, 2018 is 33 days.

[55] The total delay caused by defence counsel unavailability over the course of the period between July 11th, 2016 and the anticipated completion of the trial on May 18th, 2018, is 118 days or 3 months and 28 days.

[56] Furthermore, the other aspect of defence conduct which caused some delay in the trial of these proceedings, is the decision of defence counsel to oppose the request of the prosecutor to waive reading of the charges during the arraignment of the defendants at the outset of the trial on September 1st, 2015. This decision, in my view, constituted an illegitimate defence action in the context of this subsection 11(b) application, as it exhibited both marked trial inefficiency and an attitude of marked indifference toward delay.

[57] In these consolidated proceedings, the 39 defendants are charged with a total of 812 charges under the Conservation Authorities Act. Mr. Klaiman received full disclosure of the relevant information and evidence pertaining to the charges well before trial, and would have been well aware of the description of the charges as contained in all three informations. He attended as the counsel and agent for all of the defendants on the first day of the trial on September 1st, 2015. None of the individual defendants were present in court on that day and he was, therefore, unable to obtain instructions pertaining to the prosecution request that formal arraignment be waived.

[58] Accordingly, a significant portion of the afternoon of the first day of the trial was used for purposes of reading the subject charges to each of the absent defendants. The clerk was only able to complete the arraignment of the first 7 defendants on information no. 13-7247, on each of the 20 counts against them, prior to the completion of the first day of trial. The arraignment of the balance of the defendants was adjourned to the next scheduled trial date of September 4th, 2015.

[59] On September 4th, 2015, Mr. Klaiman attended as counsel for all of the subject defendants and advised that he had received instructions to waive the reading of the charges upon formal arraignment. I then conducted a truncated form of arraignment whereby I simply identified the defendant and asked defence counsel how that defendant wished to plead to each charge by making reference to the count number on the information. By proceeding in that fashion, with the consent of the defendants, I was able to dispense with the formal aspects of the arraignment procedure, and move promptly and efficiently into the substance of the trial.

[60] In my view, the progress of the trial was unnecessarily delayed by the failure of the defence counsel to obtain instructions from his clients relative to the issue of the waiver of arraignment, prior to the September 1, 2015. Mr. Klaiman was obviously aware of the number of defendants and the vast number of charges involved with this prosecution. He would, therefore, have been aware of the enormous amount of trial time required to undertake a full arraignment of each defendant on the charges.

[61] Accordingly, for the reasons stated above, I am of the view that the trial time in these proceedings of September 1st, 2015, was not used efficiently. The decision of defence counsel to refuse to waive the formal arraignment of the defendants on the subject charges is an action which, in the context of the subject s. 11(b) Application, exhibited both marked inefficiency and an attitude of marked indifference to the issue of trial delay. The delay occasioned by this action must therefore be deducted from the total period of delay, as a form of defence delay.

[62] The period of delay from the said first scheduled trial date of September 1st, 2015 to the second scheduled trial date of September 4th, 2015 (a period of 3 days) is, therefore, deducted from the total period of delay.

(C) Total Defence Delay

[63] The total period of delay attributable to the category of waiver is 4 months and 24 days.

[64] The total period of delay attributable to the category of delay caused by defence conduct is 4 months and 1 day.

[65] The total defence delay is, therefore, a period of 8 months and 25 days.

(iii) Net Delay

[66] The next step in the Jordan framework is to subtract the defence delay from the total delay to determine the net delay. If the net delay exceeds the presumptive ceiling for cases going to trial in the provincial court; that of 18 months, then the delay is presumptively unreasonable. As stated in Jordan, "[t]o rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow.". On the other hand, if the net delay or "a period of delay attributable to exceptional circumstances falls below the presumptive ceiling, the onus is on the defence to show that the delay is unreasonable".

(A) Information no. 13-7247

The total delay in the prosecution of the charges in this information is 61 months. When one deducts the defence delay of 8 months and 25 days from the total delay, the net delay in the prosecution of these charges is 52 months and 5 days.

(B) Information no. 13-7246

The total delay in the prosecution of the charges in this information is 60 months and 16 days. When one deducts the defence delay from the total delay, the net delay in the prosecution of these charges is 51 months and 11 days.

(C) Information no. 14-7592

The total delay in the prosecution of the charges in this information is 43 months and 15 days. When one deducts the defence delay from the total delay, the net delay in the prosecution of these charges is 34 months and 10 days.

[67] The period of net delay for each of these 3 informations exceeds the presumptive ceiling. Accordingly, the delay in the prosecution of all of the consolidated charges before me in the subject trial proceedings is presumptively unreasonable. This presumption may be rebutted if the prosecution is able to establish the existence of exceptional circumstances to justify the extent of the unreasonable delay.

(iv) The Discrete Events Exceptional Circumstance

[68] According to Jordan, at para. 75, "the period of delay caused by any discrete exceptional event must be subtracted from the total period of delay for the purpose of determining whether the ceiling has been exceeded". In this regard, in Coulter, supra, Madam Justice Gillese noted that after the net delay has been determined, a court must then subtract delay caused by discrete events from the net delay to determine the "remaining delay".

[69] The majority in Jordan defined discrete events as those "unforeseeable or unavoidable developments", which "can cause cases to quickly go awry, leading to delay". There are two events in the history of these consolidated proceedings, which in my view, fall into the category of discrete events.

[70] Firstly, at the start of the original trial in these proceedings on February 2nd, 2015 there apparently was a significant snow storm in the Burlington, Ontario area. The presiding judicial officer, His Worship M. Curtis suggested that the commencement of the trial be postponed to the second scheduled day of trial on February 3rd, 2015, in light of the inclement weather. The parties agreed to this proposition and the trial was delayed due to this exceptional event for a period of one day.

[71] Secondly, approximately four days prior to the scheduled continuation of the trial in these proceedings on December 5th, 2016, the prosecution's primary witness, Watershed Enforcement Officer Nathan Murray, became ill and his illness persisted to the said date. The prosecution was therefore of the view that it could not proceed with the scheduled trial continuation on December 5th, and the said trial date was adjourned. The proceedings were then set over to December 12th, 2016, the next scheduled date, for trial continuation.

[72] The adjournment of the December 5th, 2016 trial date as a result of Officer Murray's illness, was an unforeseeable event outside of the control of the prosecutor, thereby qualifying as a discrete, exceptional event. The period of delay caused by this event from December 5th, 2016 to December 12th, 2016, totals 7 days.

(v) Remaining Delay

[73] The remaining delay is calculated by subtracting the total amount of delay caused by discrete events from the net delay.

(A) Information no. 13-7247

[74] The net delay in the prosecution of the charges under this information is 52 months and 5 days. The total delay caused by the 2 discrete events identified above is 8 days. Therefore, the remaining delay in the prosecution of the charges under this information is 51 months and 27 days.

(B) Information no. 13-7246

[75] The net delay in the prosecution of the charges under this information is 51 months and 11 days. The total delay caused by the 2 discrete events identified above is 8 days. Therefore, the remaining delay in the prosecution of the charges under this information is 51 months and 3 days.

(C) Information 14-7592

[76] The net delay in the prosecution of the charges in this information is 34 months and 10 days. The total delay caused by the 2 discrete events identified above is 8 days. Therefore, the remaining delay in the prosecution of the charges under this information is 34 months and 2 days.

[77] The remaining delay relative to all 3 informations exceeds the 18 month ceiling. Accordingly the delay is presumptively unreasonable.

[78] The final two steps in the Jordan analytical framework seek to determine, from a qualitative perspective, whether or not the remaining delay in excess of the presumptive 18-month ceiling may be justified on the basis of the "particularly complex case" exceptional circumstance or through the applicability of the "transitional exceptional circumstance". Once again, the prosecution bears the onus of establishing the justification of the excess delay, based on one of these exceptional circumstances, on a balance of probabilities.

(vi) The Particularly Complex Case Exceptional Circumstance

[79] In my view, the prosecutor has failed to establish, on a balance of probabilities, that the case against the defendants in these proceedings; considered as a whole, is particularly complex. In this regard during legal argument, the prosecutor described this prosecution as being one of "moderate" complexity, noting that "it is not an overly complex matter".

[80] In considering the issue of the complexity of the case, I take into consideration the advice of the parties that they will be calling a total of 11 or 12 witnesses, including 6 expert witnesses (3 for the prosecution and 3 for the defence). The prosecutor argues that such expert evidence is necessary given the nature of the regulatory issues under consideration, involving "wetlands" and "watercourses" and the technical definitions of those terms under the Conservation Authorities Act, supra. In particular, he submits that the lengthy voir dire which the Court undertook in this proceeding in order to determine the admissibility of the "Approximate Regulation Limit" (A.R.L.) map, defining the extent of the regulatory authority of the Halton Region Conservation Authority over the relevant parcels of land, is testimony to the fact that this prosecution is one which is "more complex than normal".

[81] There is no question that these proceedings involve 39 separate defendants and an enormous number of charges. However, the evidence relative to the actus reus of the subject offences and the nature of the issues relative to those offences appears to be the same for all of the defendants, thereby alleviating the obvious concern that the prosecution would "require an inordinate amount of trial or preparation time" (Jordan, at para. 77).

[82] In her decision in Mississauga (City) v. Uber Canada Inc., [2016] O.J. No. 4088, (Ont. C.J.) at para 15, Nicklas, R.S.J. noted that the mere fact that a prosecution involves a "considerable number of counts" does not render that case "factually complex". Furthermore support for the proposition that similar probative evidence against multiple accused persons in a joint proceeding reduces the impact of that factor on the complexity of the case, is found in the following comments of Leroy J. in Regina v. Albinowski, et.al., 2017 ONSC 2260, (Ont. S.C.J.) at para. 55:

In recognition of the realities of practice, the fact of a joint proceeding can be a complexity component. This proposition involves three accused. All parties acknowledge there is no basis for severance to reduce individual time to get to trial. The Jordan presumptive ceiling accounts for some delay relative to the joint trial complexity. Crown evidence will be virtually the same for the three accused.

[83] While I acknowledge that the nature of the evidence in these regulatory proceedings involves a "large number of witnesses" and "significant requirements for expert evidence"; two of the "hallmarks" of a particularly complex case identified in Jordan, at para. 77, I must remind myself that in setting the presumptive ceiling for delay at 18 months in the provincial courts, the said majority took into consideration the "increased complexity of criminal cases" since the time of the Court's decision in Morin, supra, as evidenced by the "emergence of new offences, procedures, obligations on the Crown and police, and legal tests" (Jordan, at paras. 42 and 53, quoted in Cody, at para. 63). In fact, the majority in Jordan, at para. 78, remarked that "a typical murder trial will not usually be sufficiently complex to comprise an exceptional circumstance".

[84] Based upon the evidence that I have received in these proceedings, it is clear that the subject strict-liability, regulatory offences involve technical and scientific evidence with respect to the identification and management of environmental resources. These factors alone elevate the complexity of these proceedings to a level significantly higher than most offences in the regulatory sphere as well as a number of simple offences in the criminal sphere. There is, however, a paucity of evidence of any unique aspects of the subject environmental proceedings, to justify a characterization of the proceedings as being "particularly complex" as that phrase is defined in both Jordan and Cody.

[85] I agree with the prosecutor's assessment that the subject case may fairly be described as a moderately complex one. When I consider the overall complexity of the subject consolidated proceedings in the context of the jurisprudence relative to the issue of the particularly complex case – exceptional circumstance, I am of the view that the subject case is not sufficiently complex to justify the remaining delay - in excess of 18 months.

[86] I reach this conclusion based on the fact that in Jordan, in setting the presumptive ceilings, the Court took into consideration the fact that offences have, in general, become more complex since the time of Morin.

[87] In light of that factor I am of the view that the trial of any strict-liability, provincial offence should be able to be completed within the 18-month ceiling, barring extraordinary circumstances relating to case complexity. There is no evidence of any such extraordinary circumstances in these proceedings. Accordingly, there is no justification for the remaining delay; being greater than twice the presumptive ceiling, based on the "particularly complex case" exceptional circumstance.

(vii) The Transitional Exceptional Circumstance

[88] As stated in Jordan (para. 95) and reiterated in Cody (para. 67), the new subsection 11(b) framework applies to "cases already in the system" at the time that Jordan was released on July 8th, 2016. In order to justify the remaining delay in the subject proceedings under the ambit of this exceptional circumstance, the prosecutor must show, on the preponderance of evidence, "that the time the case has taken is justified based on the parties' reasonable reliance on the law as it previously existed" (Jordan, para. 96 and Cody, para. 68).

[89] The majority in Jordan recognized the principle that the framework which governs the determination of whether an accused's right to be tried within a reasonable time had been violated prior to Jordan, was that enunciated by the majority in Morin, supra. The unanimous Court in Cody summarized this recognition in paragraph 68 therein, as follows:

…The Crown may show that it cannot be faulted for failing to take further steps, because it would have understood the delay to be reasonable given its expectations prior to Jordan and the way delay and the other factors such as the seriousness of the offence and prejudice would have been assessed under Morin.

[90] The subject proceedings were in the system at the time of the release of Jordan, having been instituted on April 19th, 2013, May 2nd, 2013 and October 3rd, 2014, respectively. In determining whether the prosecution is able to justify the "remaining delay" in these proceedings, based on the transitional exceptional circumstance, I must consider the circumstances of the delay from the date of the charges until July 8, 2016, in the context of the Morin analytical framework. This exceptional circumstance as a means of justifying presumptively unreasonable delay, is only available in those transitional cases where the parties have reasonably relied upon the state of the law prior to the advent of Jordan.

[91] While I acknowledge that there is no specific evidence before me which shows that the parties were reasonably relying on the Morin analytical framework during the period of time prior to July 8th, 2016, I am able to presume that the parties were managing these proceedings based upon that reliance. This presumption was enunciated in Cody, in para.69, as follows:

To be clear, it is presumed that the Crown and defence relied on the previous law until Jordan was released. In this regard, the exceptionality of the "transitional exceptional circumstance" does not lie in the rarity of its application, but rather in its temporary justification of delay that exceeds the ceiling based on the parties' reasonable reliance on the law as it previously existed (Jordan, at para. 96). The transitional exceptional circumstance should be considered in cases that were in the system before Jordan. …

[92] I will now analyze the total delay in the subject proceedings prior to July 8th, 2016 based upon the Morin framework. In his decision in Morin, Sopinka J. stated that in analyzing whether an accused's right to be tried within a reasonable time has been denied, a court should consider the following factors:

the length of the delay;
waiver of time periods;
the reasons for the delay, including

(a) inherent time requirements of the case,

(b) actions of the accused,

(c) actions of the Crown,

(d) limits on institutional resources, and

(e) other reasons for delay; and
prejudice to the accused.

[93] Mr. Justice Sopinka went on state that if, through the application of the said factors, it is determined that an accused person's trial had been inordinately delayed on account of actions of the Crown or by reason of institutional or systemic factors, resulting in prejudice to the accused, then the court must embark on an exercise of balancing of the interests of the accused in seeking a stay of the proceedings against the societal interest in seeing that those who transgress the law are brought to trial to be dealt with according to law. In this regard, at paragraph 30 of his decision, the said jurist noted that "as the seriousness of the offence increases so does the societal demand that the accused be brought to trial".

(A) Chronology of Events from the Institution of the Proceedings to July 8th, 2016

[94] The charges in information no. 13-7247, were instituted on April 19th, 2013. The charges in information no. 13-7246, were instituted on May 2nd, 2013. The defendants named in these two informations were summoned to appear in the Burlington Provincial Offences Court on June 18th, 2013 for their first appearance. This initial period of time of 1 month and 28 days, relative to information no. 13-7247 and of 1 month and 17 days, relative to information no. 13-7246 constitutes a neutral "intake period", being a subset of the category of "inherent time requirements of the case".

1. June 18th, 2013

[95] On the first appearance of the charges on June 18th, 2013, Mr. Klaiman's agent appeared and advised that Mr. Klaiman had been retained by 8 of the named defendants. The agent advised that she expected that Mr. Klaiman would, eventually, be retained by all of the defendants. The prosecutor and all of the defendants attending at that time agreed to adjourn the proceedings to September 3rd, 2013, to allow the prosecutor to attempt to re-serve summonses on those defendants who had not been served, to allow certain defendants further time to either retain Mr. Klaiman or a representative of their choice and to allow the prosecution to assemble the significant amount of disclosure associated with the charges.

[96] In light of these circumstances, I have characterized the period between June 19th, 2013 and September 3rd, 2013; a period of time of 2 months and 15 days, as a further, neutral "intake period". This categorization of the delay is, in my view, reasonable given the vast number of defendants and charges involved in these proceedings.

2. September 3rd, 2013

[97] On this date, Mr. Klaiman attended personally and advised that he had been retained by 24 of the 50 defendants named in the 2 informations at that time. Based on the transcript of this court proceeding, it would appear that the other 26 defendants had either not yet been served with a summons or if they had been so served, had either not yet secured representation or did not attend.

[98] At the time of this court appearance, the prosecutor, Mr. Jull, advised that the disclosure package to be provided to all of the defendants was "90% complete". The proceedings were then adjourned with the consent of all parties to November 18th, 2013, to complete further administrative and "intake" tasks, including completion of the delivery of disclosure to all parties, the re-service of summons on certain defendants and the finalization of retention of counsel by other self-represented defendants.

[99] This period of time, between September 4th, 2013 and November 18th, 2013; a period of 2 months and 13 days, constituted a further, neutral "intake period" to complete necessary administrative requirements prior to the establishment of trial dates.

3. November 18th, 2013

[100] On this date, the third pre-trial appearance on the said informations, Mr. Klaiman did not appear; however, most of the individual and corporate defendants did appear. The prosecutor, Mr. Jull, advised that the delivery of disclosure had not been completed. He stated that disclosure was not available to the defendants because of "some technical problems". In that regard he advised that he needed time to "set up a site where the defendants [would] be able to access" the disclosure electronically.

[101] At the time of this court appearance, there were a few defendants who had not yet been served with a summons, and, once again there were a few parties who either did not appear as required or who did appear, but had not settled the issue of retention of counsel. The proceedings were adjourned to January 21st, 2014 at the request of the prosecution, to allow it further time to fulfill its disclosure obligations, and to attempt to effect service of summonses on those defendants who had not been served.

[102] In my view, this period of delay from November 19th, 2013 to January 21st, 2014; a period of 2 months, is properly attributable to the actions of the prosecution as the primary reason for the delay related to the prosecutor's inability to fulfill his disclosure obligations in a timely manner.

4. January 20th, 2014

[103] On this date, Mr. Klaiman appeared as retained counsel for 33 of the 39 named defendants in these proceedings. At that time, disclosure was provided to Mr. Klaiman and to those self-represented defendants who were in attendance. It would appear that 2 of the 39 defendants had not yet been served with a summons.

[104] The subject proceedings were then adjourned, on consent of the parties in attendance, to February 18th, 2014; a period of 27 days, to allow Mr. Klaiman an opportunity to finalize his anticipated retainer by the remaining 6 defendants and to permit the parties to engage in preliminary settlement discussions. In my view, this short period of time falls within the scope of the "inherent time requirements of the case", as both the defence and the prosecution sought an opportunity to attempt to resolve the issues related to the charges. In attributing this time neutrally, I have applied the principle enunciated by the majority in Morin, at para. 47, that institutional delay "is the period that starts to run when the parties are ready for trial but the system cannot accommodate them".

5. February 18th, 2014

[105] On this date, Mr. Klaiman appeared and advised that while he had not yet been retained by all of the defendants, he anticipated that he would be so retained. The charges in the subject 2 informations were then adjourned by the Court for purposes of a lengthy, three-hour judicial pre-trial hearing to June 5th, 2014.

[106] In my view, this period of delay of 3 months and 17 days for purposes of scheduling a judicial pre-trial conference, may properly be attributed to the "inherent time requirements of the case", and thereby be treated neutrally in the subsection 11(b) calculus. The authority for the proposition that in the context of the Morin framework, the time required to schedule, prepare for and conduct a pre-hearing conference (like a judicial pre-trial conference), falls into the category of the "inherent time requirements of the case" is found in the decision of Watt J.A. in Regina v. Nguyen, 2013 ONCA 169, [2013] O.J. No. 1243.

6. June 5th, 2014

[107] The judicial pre-trial conference in respect of the subject two informations began before Justice of the Peace M. Barnes on June 5th, 2014 at 1:30 p.m. The proceedings were not resolved at that time, however, the conference was adjourned to October 2nd, 2014 at 1:30 p.m. for continuation.

[108] It would appear that during the course of this judicial pre-trial conference, the parties estimated that seven days of trial time would be necessary to complete the proceedings. Accordingly, the following dates were targeted for trial: February 2nd, February 3rd, February 6th, February 9th, March 2nd, March 9th and March 31st, 2015.

[109] As the judicial pre-trial hearing conference began on June 5th, 2014, I am of the view that the time required for the conference and the subsequent adjournment of the conference to October 2nd, 2014; a period of delay of 3 months and 27 days, is attributable to the "inherent time requirements of the case" and constitutes neutral time in the subsection 11(b) calculus. Once again, the decision in Regina v. Nguyen, supra, is authority for this proposition of law.

7. October 2nd, 2014

[110] The continuation of the judicial pre-trial conference took place on October 2nd, 2014, as scheduled. At that time, Mr. Klaiman advised that he had been fully retained by all 39 defendants named in these consolidated proceedings.

[111] The parties were unable to achieve a resolution of the charges as a result of the judicial pre-trial conference. The trial dates which were initially targeted, being February 2nd, 3rd, 6th, 9th, March 2nd, 9th and 31st, 2015, were then formally set. As both parties advised that in the interim they would be engaging in further settlement discussions, the subject informations (13-7247 and 13-7246) were then adjourned to January 13th, 2015 for purposes of confirming the said trial dates.

[112] In my view the adjournment period from October 3rd, 2014 to January 13th, 2015; a period of delay of 3 months and 10 days, constitutes institutional delay, as the parties were ready to proceed to trial as of October 3rd, 2014, but the system was unable to accommodate the trial at that time.

[113] It should be noted that the third information in the subject consolidated proceedings containing two counts against EarthCo Soil Mixtures Inc., being information no. 14-7592, was instituted on the 3rd day of October, 2014. The defendant's first appearance on that information was set for January 13th, 2015.

[114] The delay between the time of the laying of this information and the first appearance date of January 13th, 2015; a period of 3 months and 10 days, constitutes a neutral, intake period for purposes of permitting the completion of administrative matters, including the provision of disclosure. It is important to note that Mr. Klaiman was retained by EarthCo Soil Mixtures Inc. at the time of the institution of these new charges.

8. January 13th, 2015

[115] The articling student for the prosecutor appeared for purposes of this brief court appearance, on behalf of the prosecutor and as agent for Mr. Klaiman, to confirm the trial dates, which had been previously set.

[116] The original 2 informations were then adjourned, on consent, to February 2nd, 2015, for the commencement of the scheduled 7-day trial. In addition, the trial of the charges stated in information no. 14-7592, was set for the same 7-day period in February and March, 2015, commencing on February 2nd, 2015.

[117] In my view, this period of delay, totalling 19 days is properly characterized as institutional delay.

9. February 2nd, 2015

[118] The parties appeared before Justice of the Peace M. Curtis for the commencement of the trial in this proceeding. In light of the circumstance of a significant snow-storm of that date, the His Worship Curtis adjourned the commencement of the trial to February 3rd, 2015.

[119] This one-day period of delay has already been accounted for and deducted from the net period of delay in these proceedings, as a discrete exceptional circumstance. It should not, therefore be considered as part of the transitional exceptional circumstance - Morin analysis.

10. February 3rd, 2015

[120] The parties attended for purposes of the first date of the trial in this proceeding, as scheduled. They advised that they had engaged in resolution discussions and were very close to achieving a settlement. In that regard, Mr. Klaiman advised that he and Mr. Jull were "within inches of settlement". Following an extensive period of settlement negotiations at that time, the parties advised that they required further time to work out the details of the purported resolution.

[121] A number of the trial dates in these proceedings matter were vacated. The matters were adjourned, on consent, initially to February 9th, 2015 and thereafter to February 17th, 2015 and March 2nd, 2015 to facilitate settlement discussions. On March 2nd, 2015, the parties announced that they were unable to achieve a resolution of the proceedings.

[122] As discussed above under the subtitles of Defence Delay and Waiver, I have characterized the actions of the defendants in adjourning the trial in this proceeding, from time to time, from February 3rd, 2015 to and including March 2nd, 2015 (a period of 27 days) as an implicit waiver of the delay over this period. This implicitly waived period of time has already been accounted for in the calculation of the net delay in these proceeding and will not, therefore, be included in the Morin analysis.

11. March 2nd, 2015

[123] On March 2nd, 2015, Mr. Jull and Mr. Klaiman, appeared before Justice of the Peace Curtis for further pre-trial discussions. The parties reported that even though the positive settlement negotiations which had been undertaken in February 2015 appeared to have broken down, they had renewed such negotiations and wished to adjourn the proceedings to the next scheduled trial date of March 30th, 2015, to permit further settlement discussions in the interim.

[124] Justice of the Peace Curtis acceded to this joint request of the parties and the proceedings were adjourned to March 30th, 2015 for trial. In my view, this period of delay, between March 3rd, 2015 and March 30th, 2015 (a period of 27 days), constitutes a neutral period of time in the subsection 11(b) calculus, as being part of the category of the "inherent time requirements of the case". Settlement negotiations on the eve of trial are both foreseeable and expected. A reasonable period of time to explore the possibility of a last-minute settlement, falls within the scope of the said category.

12. March 30th, 2015

[125] On March 30th, 2015, the parties attended before Justice of the Peace Curtis for the commencement of the subject trial proceedings. The parties advised that the settlement negotiations had broken down for a second time. They obtained some new dates for the re-scheduled trial in these proceedings. All 3 informations in these proceedings were then adjourned for trial to September 1st, 2015 and thereafter on September 4th and December 7th, 2015 and January 4th, January 11th, January 25th and January 26th, 2016.

[126] In my view, one-half of the period of delay between March 31st, 2015 and September 1st, 2015 should be allocated to institutional delay and the other one-half of that period should be allocated to inherent time requirements. In support of this allocation, I note that the parties had, initially, vacated the scheduled trial dates on consent, in the hope of settling the proceedings. As stated by Doherty J.A. in his decision in Regina v. Allen, 110 C.C.C. (3d) 331, at para. 27:

When addressing s. 11(b), one must consider the inherent time requirements needed to get a case into the system and to complete that case: R. v. Morin, supra, at p. 16. Those time requirements can include adjournments necessitated by the need to find additional court time when initial estimates prove inaccurate. … The inherent time requirements needed to complete a case are considered to be neutral in the s. 11(b) calculus. The recognition and treatment of such inherent time requirements in the s. 11(b) jurisprudence is simply a reflection of the reality of the world in which the criminal justice system operates. No case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around any one case, but must try to accommodate the needs of all cases. When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources.

Accordingly, it is not unreasonable to expect that the court administration would not be able to instantaneously find time to schedule an estimated seven-day trial immediately after a series of scheduled trial dates were vacated at the joint request of the parties, in an attempt to effect a resolution. As stated in Allen, supra, in these circumstances, the court administration must attempt to manage limited court resources in such a way as to accommodate other cases in the system.

[127] The trial could not be accommodated until September 2015, due, in part, to limited court resources. In my view, one half of the period of delay between March 31st, 2015 and September 1st, 2015; equivalent to 2 months and 16 days, is properly allocated as neutral time, being part of the "inherent time requirements of the case". The other one-half of that period (2 months and 15 days) constitutes institutional delay.

13. September 1st, 2015

[128] The trial of these consolidated proceedings began before me on September 1st, 2015. The defendants' counsel refused a request of the prosecutor that the formal reading of each charge be waived during the arraignment of each defendant.

[129] I was able to deal with some preliminary matters dealing with trial management in the morning of the subject date, however, in light of the position of the defendants' counsel pertaining to the issue of arraignment, I instructed the clerk to arraign each named defendant separately, by reading every charge against him, her or it.

[130] In light of the fact that, for the most part, each defendant was charged with 20 counts under the Conservation Authorities Act, the Court was only able to arraign 7 of the 39 defendants before the end of the day on September 1st, 2015. The trial was then adjourned to September 4th, 2015, for continuation including the arraignment of the remaining 32 defendants.

[131] In my view, this initial three-day period of delay, should be treated as neutral time, being part of the inherent time requirements of these proceedings, involving 39 defendants and 812 charges.

[132] It is noted, however, that this period of time has already been taken into account in calculating the net delay in these proceedings under the category of "delay caused by the defence". Accordingly, this period of delay will not be reckoned in the determination of total amount of delay attributable to the actions of the prosecution or to institutional or systemic factors, in the context of the Morin analytical framework.

14. September 4th, 2015

[133] The trial of these proceedings continued before me, on September 4th, 2015. At that time, counsel, Mr. Klaiman agreed to waive the formal reading of the charges against the remaining 32 defendants. A substantial amount of valuable trial time was therefore, preserved, by this agreement. Mr. Klaiman advised that he was able to consent to the waiver of the arraignment of the remaining defendants on September 4th, as he had, by that time, received the necessary instructions from his clients.

[134] The trial continued throughout the day of September 4th, 2015. The proceedings were then adjourned to the next scheduled trial date of December 7th, 2015. The period of delay occasioned by this adjournment is 3 months and 1 day. That period is properly attributed to the general category of institutional delay.

15. December 7th, 2015

[135] The trial of these proceedings continued before me on December 7th, 2015, as scheduled. On this date, the Court commenced a voir dire pertaining to the admissibility of a lay opinion made by the prosecution's primary witness, Conservation Enforcement Officer Nathan Murray. The voir dire was not completed by the end of the trial day and the proceedings were adjourned to the next scheduled trial date of January 4th, 2016, for trial continuation, including the continuation of the lay opinion evidence voir dire.

[136] The period of delay occasioned by this adjournment; that of 27 days, is attributable to the category of institutional delay.

16. January 4th, 2016

[137] The subject trial continued before me on this date. In particular, I continued to receive evidence and submissions pertaining to the lay-opinion evidence voir dire. The voir dire was completed on this date and the proceedings were then adjourned to January 25th, 2016, for my ruling on the said voir dire.

[138] At the outset of the proceeding on January 4th, Mr. Jull requested that the next scheduled trial date of January 11th, 2016 be vacated, as he had planned a family vacation. This request was granted on consent and, as indicated, the proceedings were adjourned to the next scheduled trial date of January 25th, 2016.

[139] I have, accordingly, allocated the delay of 6 days for the period between January 5th, 2016 and January 11th, 2016 to institutional delay and the remaining period of delay caused by Mr. Jull's request to adjourn the scheduled trial date of January 11th, 2016; from January 12th, 2016 to January 24th, 2016 (a period of 13 days), to the actions of the prosecution.

17. January 25th, 2016

[140] The trial of the subject proceedings continued before me on January 25th, 2016, as scheduled. I rendered my ruling pertaining to the lay-opinion voir dire at that time. The trial continued with the testimony-in-chief of Officer Murray on the trial proper.

[141] During the course of the trial proceedings of that date, legal arguments were presented pertaining to the proper admissibility of a lawyer's letter and a response letter from Conservation Halton. That issue was not resolved by the end of the trial-day and the proceedings were then adjourned to the next scheduled trial date, January 26th, 2016.

[142] This short period of delay of 1 day is attributed to institutional delay.

18. January 26th, 2016

[143] The trial continued on this date as scheduled. The issue of the admissibility of the lawyer's letter and the response letter was resolved by the parties.

[144] During the course of the trial continuation, a further issue arose as to the admissibility of a deed of land, containing a land transfer tax affidavit. After the parties had engaged in considerable discussion pertaining to this evidentiary issue, they sought a ruling from the Court relative to the appropriate categorization of the party-liability offences against most of the defendants.

[145] Both Mr. Jull and Mr. Klaiman proffered extensive legal submissions pertaining to this issue of statutory and jurisprudential interpretation. I reserved my decision on this novel legal issue. The parties suggested that the next scheduled trial date for these proceedings of February 1st, 2016, be vacated. The proceedings were then adjourned to a new trial continuation date of May 9th, 2016, for my ruling pertaining to the said legal issue.

[146] In my view, in light of the fact that I needed to rule on the novel legal issue raised by both counsel, the period of delay between January 27th, 2016 and the vacated trial date of February 1st, 2016; being 5 days, is treated as neutral time-delay -part of the inherent time requirements.

[147] The subsequent period of delay between February 2nd, 2016 and May 9th, 2016 (a period of 97 days) should, in my view, be allocated equally between neutral time under the category of the inherent time requirements of the case and institutional delay, which weighs against the prosecution. I reach that conclusion because the lengthy period of time required to find further trial dates in May 2016, was caused by the significant underestimation of the time required to complete this trial.

[148] In her decision in Regina v. Tran, 2012 ONCA 18, [2012] O.J. No. 83, Simmons J.A. adopted the comments of Code J, in Regina v. Lahiry, et.al., 2011 ONSC 6780, acknowledging the principle that when a trial needs to be re-scheduled because it was not completed within the originally scheduled time frame, "any delays resulting from re-scheduling the trial date will be treated either as institutional or as part of the inherent time requirements or as a combination of both, depending on the circumstances".

[149] In light of that general principle, one-half of the period of delay between February 2nd, 2016 and May 9th, 2016; a period of 1 month and 19 days, is allocated as neutral time, being part of the inherent time requirements. The remaining one-half period, being 1 month and 18 days, is allocated as institutional delay.

19. May 9th, 2016

[150] The subject trial continued before me on May 9th, 2016. At that time, I rendered my preliminary ruling pertaining to the categorization of the party-liability offences. The evidentiary phase of the proceedings then continued before me.

[151] The trial was not completed at the end of the day and the matter was adjourned to the next scheduled trial date of May 16th, 2016, for continuation. The period of delay occasioned by this adjournment; a period of 6 days, is attributable to institutional delay.

20. May 16th, 2016

[152] The subject trial continued before me on May 16th, 2016 as scheduled. On that date, I received further testimony from Officer Murray proffered on behalf of the prosecution.

[153] During the course of his testimony, Officer Murray identified a key document, being the A.R.L. map for the subject parcel of land municipally known as 7459 Auburn Road, Milton, Ontario. The defendants through Mr. Klaiman objected to the admissibility of this document for the truth of its contents. In light of this objection, at the request of the prosecution, the Court embarked on a voir dire pertaining to the admissibility of this document as an exception to the hearsay evidence rule.

[154] The voir dire continued for the balance of the day. The trial proceedings including the A.R.L. map voir dire, were then adjourned to the next scheduled trial date of June 6th, 2016, for continuation. The period of delay relative to this adjournment; that of 20 days, is attributable to institutional delay.

21. June 6th, 2016

[155] The trial proceedings, including the A.R.L. map voir dire, continued before me, as scheduled on June 6th, 2016. The voir dire was not completed on that date and the consolidated proceedings were adjourned to the next trial date available to all parties; being August 22nd, 2016, for trial and voir dire continuation. In my view, the period of time from June 7th, 2016 to the date of the release of the decision in Jordan on July 8th, 2016, a period of 1 month and 1 day, is attributable to the category of institutional delay.

(B) Delay Attributable to the Prosecution or Institutional Factors

1. Informations nos. 13-7247 and 13-7246

[156] As indicated above, information no. 13-7247, charging the 37 individual and corporate defendants named above, with 770 charges pursuant to subsection 28(16) of the Conservation Authorities Act, was instituted on the 19th day of April, 2013. Furthermore, in information no. 13-7246, instituted on the 2nd day of May, 2013, defendants Daryn Bagg and Salman Cevlik were charged with a total of 40 charges pursuant to subsection 28(16) of the Conservation Authorities Act.

[157] The time-delay attributable to both prosecutorial and institutional delay relative to these two informations, as set out in detail above, is summarized as follows:

November 19th, 2013 to January 20th, 2014 - 2 months;
October 3rd, 2014 to January 13th, 2015 - 3 months – 10 days;
January 13th, 2015 to February 2nd, 2015 - 19 days;
March 31st, 2015 to September 1st, 2015 (1/2 period) - 2 months – 15 days;
September 5th, 2015 to December 7th, 2015 - 3 months – 1 day;
December 8th, 2015 to January 4th, 2016 - 27 days;
January 5th, 2016 to January 11th, 2016 - 6 days;
January 12th, 2016 to January 24th, 2016 - 13 days;
January 25th, 2016 to January 26th, 2016 - 1 day;
February 2nd, 2016 to May 9th, 2016 (1/2 period) - 1 month – 18 days;
May 10th. 2016 to May 16th, 2016 - 6 days
May 17th, 2016 to June 6th, 2016 - 20 days;
June 7th, 2016 to July 8th, 2016 - 1 month - 1 day;

Total: 16 months and 17 days.

2. Information no. 14-7592

[158] As indicated above information no. 14-7592, charging EarthCo Soil Mixtures Inc. with two charges under subsection 28(16) of the Conservation Authorities Act, was instituted on October 3rd, 2014.

[159] The time delay attributable to both prosecutorial and institutional delay relative to this information as set out in detail above, is summarized as follows:

October 3rd, 2014 to January 13th, 2015 - 3 months - 10 days;
January 14th, 2015 to February 2nd, 2015 - 19 days;
March 31st, 2015 to September 1st, 2015 (1/2 period) - 2 months -15 days;
September 5th, 2015 to December 7th, 2015 - 3 months - 1 day;
December 8th, 2015 to January 4th, 2016 - 27 days;
January 5th, 2016 to January 11th, 2016 - 6 days;
January 12th, 2016 to January 24th, 2016 - 13 days;
January 25th, 2016 to January 26th, 2016 - 1 day ;
February 2nd, 2016 to May 9th, 2016 (1/2 period) - 1 month -18 days;
May 10th, 2016 to May 16th, 2016 - 6 days;
May 17th, 2016 to June 6th, 2016 - 20 days;
June 7th, 2016 to July 8th, 2016 - 1 month – 1 day;

Total: 14 months and 17 days.

[160] The period of time-delay attributable to both prosecutorial and institutional factors, relative to informations nos. 13-7247 and 13-7246, for the period between April 19th, 2013 / May 2nd, 2013 and July 8th, 2016, is 16 months and 17 days. This period of delay exceeds the Morin guidelines for constitutionally-tolerable institutional delay; of "between 8 to 10 months" in the provincial courts, by 6 months and 17 days at the minimum and by 8 months and 17 days at the maximum.

[161] Furthermore, the period of time-delay attributable to both prosecutorial and institutional factors relative to information no. 14-7592, for the period between October 3rd, 2014 and July 8th, 2016, is 14 months and 17 days. This period of time exceeds the Morin guidelines for constitutionally tolerable institutional delay in the provincial courts, by 4 months and 17 days at the minimum and by 6 months and 17 days at the maximum.

[162] I must now determine whether the defendants have suffered prejudice to any of the following rights which subsection 11(b) seeks to protect, as enunciated by the majority in Morin: (1) the right to security of the person, (2) the right to liberty, and (3) the right to a fair trial, during the pre-Jordan period. As stated in Morin, at paragraph 28:

The right to security of the person is protected in s. 11(b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh.

(C) Prejudice

[163] In the course of his submissions in this Charter Application, Mr. Klaiman advised that he was not proffering any evidence to prove that the defendants, had suffered any actual prejudice to their individual subsection 11(b) rights, occasioned by the prosecutorial or institutional delay in the trial, over the period between April 19th, 2013 and July 8th, 2016.

[164] He argued that the defendants had suffered inferred prejudice as a result of the trial delay attributable to prosecutorial and institutional factors over the said period. He based his argument on the dicta enunciated by the majority of the Court in Morin, at paragraph 61, where Sopinka J. stated that "prejudice to the accused can be inferred from prolonged delay". In that paragraph, the said jurist went on to state, in part, as follows:

…Accordingly, in an individual case, prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn. In circumstances in which prejudice is not inferred and is not otherwise proved, the basis for the enforcement of the individual right is seriously undermined.

[165] Mr. Klaiman acknowledged that there is no basis for the Court to infer that the individual defendants herein have suffered prejudice to their right to liberty. He maintained, however, that the length of the said trial delay during the pre-Jordan period, well in excess of the Morin guidelines for constitutionally tolerable institutional delay, establishes the fact that the non-corporate defendants have suffered inferential prejudice to their rights to security of the person and to a fair trial, and that the corporate defendants have suffered prejudice to their right to a fair trial.

[166] I agree with Mr. Klaiman's submissions in this regard, relative to the non-corporate defendants. The length of the trial delay herein, due to prosecutorial and institutional factors; approximately double the Morin guidelines for acceptable periods of delay in the provincial courts, permits me to draw a reasonable inference that the individual defendants have suffered prejudice to their aforesaid rights, which subsection 11(b) seeks to protect, during the period between April 19th, 2013 / May 2nd, 2013 and July 8th, 2016.

[167] On the other hand, I find that the corporate defendants have not established, on a balance of probabilities, that their right to make full answer and defence in these proceedings have been prejudiced on account of the inordinate trial delay over the pre-Jordan period. In reaching that conclusion, I am bound by the substance of the decision of the Supreme Court of Canada in Regina v. CIP Inc., [1992] S.C.J. No. 34, which stands for the proposition that the inference of prejudice to an accused occasioned by a lengthy period of trial delay, does not apply to corporations.

[168] In this post-Morin decision, at paras. 47 to 51, Stevenson J. made the following comments pertaining to the notion of prejudice to a corporate accused occasioned by trial delay:

In Askov, this Court held that there is a "general, and in the case of very long delays an often irrebuttable presumption of prejudice to the accused resulting from the passage of time" (p. 1232). In my opinion, this is the key requisite to a successful s. 11(b) application. A court may infer or presume prejudice, or it may not be proven. The appellant relies upon that presumption in this case. The respondent contends that it cannot. It submits that the inference of prejudice is linked to the liberty and security interests of an accused, not the fair trial interest. Because a corporate entity does not have a right to liberty and security of the person within the meaning of the Charter, the argument goes that it cannot invoke the presumption referred to in Askov. The respondent submits that in order to succeed on its s. 11(b) claim, the appellant must persuade the court that its ability to make full answer and defence has been impaired.

I find the respondent's argument on this particular issue persuasive. As was recently noted by MacDonnell Prov. Div. J. in R. v. 741290 Ontario Inc., supra, at p. 353:

The most compelling argument which has been mounted for a presumption of prejudice has been with respect to the effects of delay on security of the person. Once concern about that factor is nullified, as it is when dealing with a corporation, the greatest part of the basis for a presumption of prejudice collapses.

In Askov, Cory J. appears to have placed much emphasis on the "exquisite agony" experienced by accused persons and their families while awaiting trial (at p. 1249). Lamer C.J. echoed that concern in his reasons. He observed that the purpose of s. 11(b) is to put an end to the process giving rise to the "anxieties" of the accused (at p. 1249). In so holding, Lamer C.J. essentially reiterated his position in Mills v. The Queen, supra, where he stated (at pp. 919-20) that:

…under s. 11(b), the security of the person is to be safeguarded as jealously as the liberty of the individual. In this context, the concept of the security of the person is not restricted to physical integrity; rather it encompasses protection against "overlong subjection to the vexations and vicissitudes of a pending criminal accusation"… . These include stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the outcome and sanction. These forms of prejudice cannot be disregarded nor minimized when assessing the reasonableness of delay.

In my view, none of these concerns – with the exception of legal costs – logically applies to corporate entities. In order to properly assess the reasonableness of delay, a court has to balance the various interests at stake. The interests of the accused must be weighed against the interest of the community in ensuring that those who have transgressed the law are brought to justice. The balancing process must be fair. There is no room for artificiality. It seems to me that allowing a corporation to rely upon a presumption of prejudice would offend that principle. It is therefore my opinion that with respect to this fourth factor, a corporate accused must be able to establish that its fair trial interest has been irremediably prejudiced. I use the phrase "irremediably prejudiced" because there are some forms of prejudice that a court can remove, notably by making specific orders regarding the conduct of the trial.

In this case, the appellant has not argued an actual impairment of its ability to make full answer and defence. That fact was expressly noted by Lang Dist. Ct. J.: "the Corporation does not argue that it was actually prejudiced by the delay". I am of the view that in the absence of some evidence of prejudice, the courts below were not in error in removing the initial trial stay.

[169] In his decision in Mississauga (City) v. Uber Canada Inc., [2016] O.J. No 6229 (Ont. C.J.), Quon J.P. determined that the principle that prejudice to the fair trial rights of corporate accused could not be inferred by a court considering a subsection 11(b) application, was a principle which survived the advent of Jordan, and could be applied to justify presumptively unreasonable trial delay based upon the transitional exceptional circumstance – Morin analysis. In making this determination, His Worship relied upon the dicta of Stevenson J. in Regina v. CIP Inc., supra, noting that a corporate accused "under the Morin framework had to prove that their fair trial interest had been irremediably prejudiced in order to prove that their s.11(b) right to trial within a reasonable time had been infringed". He went on to refer to CIP Inc. as authority for the proposition that "a corporate accused could not rely on 'inferred prejudice'" in order to establish the unreasonableness of trial delay in the context of a pre-Jordan subsection 11(b) application.

[170] Justice of the Peace Quon made the following further comments at paragraphs 236, 239, 240 and part of 241 of his decision, pertaining to the application of the principles enunciated in CIP Inc., in the context of the application of the Morin framework in pre-Jordan transitional cases:

Therefore, in transition cases involving corporate accused where the delay in completing the trial would only affect the fair trial interests of the corporation; contrary to a natural person where such delay would also affect their security and liberty interests, there may have been less of an urgency to move a case along when an accused corporation's security and liberty interest would not be affected by any delay. Although the delay had been 19 months for the corporate accused in R v. CIP Inc., the Supreme Court had held that delay had not been unreasonable, since there had been no evidence of "irremediable prejudice" to the corporate accused's fair trial interest and that prejudice from the delay could not be inferred for a corporation.

Under the Morin framework and the Supreme Court's decision in R. v. CIP Inc., prejudice to a corporate accused could only be established if the corporation could prove on a balance of probabilities that their "fair trial interests" were irremediably prejudiced, which for the most part was not [an] easy task, and would explain why prosecutions of regulatory charges against corporations would for the most part proceed slowly through the courts. Even in the circumstances of R. v. CIP Inc., it had taken 18 months to get to trial.

Therefore, it would not have been unusual for corporations facing bylaw charges to proceed at a glacial speed and where it would take years for the charges to even be set down for trial, [a] corporate accused may not necessarily have an incentive to have a trial in the face of large fines.

Ergo, this could have been one situation in which reasonable reliance on the Morin framework could have been inferred to justify the inordinate delay for UBER Canada's charges. …

[171] As indicated above, during the course of his submissions in this Application, the defendants' counsel, Mr. Klaiman acknowledged that there was no evidence before the court to prove that the ability of any of the corporate defendants to make full answer and defence in these proceedings, had been actually prejudiced. In his submissions, Mr. Wigley argued that in accordance with the principles stated in CIP Inc., the absence of evidence establishing actual impairment to the fair trial interests of the corporate defendants constitutes a failure by those defendants to prove, on a balance of probabilities, that prior to July 8th, 2016, their right to be tried within a reasonable time had been infringed.

[172] I agree with Mr. Wigley's submissions in this regard. In the absence of evidence which establishes actual prejudice to the fair trial interests of the corporate defendants during the pre-Jordan transitional period, I am of the view find that the subsection 11(b) rights of each of the corporate defendants had not been infringed as of July 8th, 2016.

[173] Accordingly, in applying the CIP Inc. principles in the context of the Morin transitional framework, I find that the presumptively unreasonable delay in the anticipated completion of the trial of the charges against the corporations named in informations nos. 13-7247 and 14-7592, has been justified by operation of the transitional exceptional circumstance.

[174] In light of the fact that the rights of the corporate defendants under subsection 11(b) of the Charter had not been denied as of the release of Jordan on July 8th, 2016, I must now examine the remaining period of delay, from that date to the anticipated completion of the trial on May 18th, 2018. The period of time between July 8th, 2016 and May 18th, 2018, totals 22 months and 10 days. When I apply the Jordan analytical framework to the circumstances of these proceedings over the course of that period of time, the "remaining delay" is that of 14 months and 9 days. It is a period of delay which falls below the presumptive ceiling of 18 months.

[175] In my view, the corporate defendants have failed to proffer sufficient evidence in this Charter application to show, on a balance of probabilities, that the period of remaining delay is unreasonable. The preponderance of the evidence before me in these proceedings fails to establish that the corporate defendants "took meaningful steps that demonstrate a sustained effort to expedite the proceedings". Moreover, the corporate defendants have failed to persuade me that the prosecution of the various cases against them "took markedly longer" than it reasonably should have.

[176] The corporate defendants' have therefore, failed to meet their onus to show that these proceedings fall into that "rare" category of cases which clearly support a finding of "unreasonable" trial delay sufficient to support a stay of the proceedings, where the "remaining delay" is below the presumptive ceiling. Accordingly, I find that the rights of the corporate defendants herein, under subsection 11(b) of the Charter, have not been either infringed or denied.

(D) Seriousness of the Offences

[177] As stated above, upon assessing the Morin analytical factors relative to the proceedings against the non-corporate defendants, I have determined that the rights of those defendants to security of the person and to a fair trial have been violated, due to the degree of delay in the completion of the trial during the transitional period, attributable to both the actions of the prosecution and the limits on institutional resources.

[178] At this stage of the Morin analysis, I must engage in a balancing of the interests of the non-corporate defendants in seeking a stay of the subject proceedings against them as a remedy for the purported infringement of their subsection 11(b) rights, and the interests of society in seeing that criminal or quasi-criminal charges are tried on their merits. It is only in those circumstances where I determine, on balance, that the prejudice to the rights of the non-corporate defendants outweigh the societal interest in a trial of the subject charges on their merits, that I am able to find that the subsection 11(b) rights of the non-corporate defendants have been denied or infringed. In engaging in this balancing exercise, I am obliged to assess the seriousness of the subject offences.

[179] In discussing this step in the Morin analysis in paragraph 9 of his decision in Regina v. Lahiry, et.al. supra, Code J. stated as follows:

At the end of assessing these four factors [the Morin factors], the court should arrive at some period of unjustified or unreasonable delay that weighs against the Crown. The court should also arrive at some assessment as to the strength or weakness of the claim to prejudice. It is only unreasonable periods of delay, causing prejudice, which s. 11(b) protects against. As noted above, these factors must then be balanced against the societal interest in a trial on the merits.

Furthermore, in paragraph 30 of Morin, Sopinka J. emphasized the importance of the aspect of the seriousness of the offence in undertaking this balancing exercise, by commenting as follows:

…As the seriousness of the offence increases so does the societal demand that the accused be brought to trial. The role of this interest is most evident and its influence most apparent when it is sought to absolve persons accused of serious crimes simply to clean up the docket.

[180] In these proceedings, the individual defendants are accused that they, either as principal or party offenders, contravened the provisions of five regulations under Ontario Regulation 162/06, made pursuant to the Conservation Authorities Act, supra, relative to lands contained within the watershed of the Regional Municipality of Halton; within the regulatory jurisdiction of the Halton Region Conservation Authority. The charges relate to allegations that the defendants undertook development within and interfered with environmentally sensitive lands, described as either a "wetland" or "a river or stream valley that has a depressional feature associated with a river or stream", without the permission of the Halton Region Conservation Authority.

[181] Under subsection 28(16) of the Conservation Authorities Act, every person who contravenes any regulation made pursuant to subsection 28(1) of the said Act, is guilty of an offence and "on conviction is liable to a fine of not more than $10,000.00 or to a term of imprisonment of not more than three months". Subsection 20(1) of the Conservation Authorities Act states the objects of a conservation authority established under the said Act, as being to "establish and undertake, in the area over which it has jurisdiction, a program designed to further the conservation, restoration, development and management of natural resources other than gas, oil, coal and minerals".

[182] The Conservation Authorities Act (the "Act"), and the regulations made thereunder, constitute public welfare legislation. The purpose of the legislation is to enhance the preservation and management of the ecology of the lands adjacent to or forming part of the watershed within the jurisdiction of any conservation authority.

[183] The subject offences fall under the general criteria of regulatory offences. The offences created by subsection 28(16) of the Act may be classified as "serious" offences given both the importance of enforcing regulations designed to protect the natural environment and the significant penalties upon conviction, including substantial fines and the possibility of imprisonment.

[184] On the other hand, the subject offences are quasi-criminal in nature, designed to regulate human behaviour relative to the management of the environment. They are not criminal offences enacted to protect society from intentional actions involving moral turpitude, which, upon conviction, generally result in more severe penalties.

[185] In this case, during the pre-Jordan period, the non-corporate defendants have suffered prejudice to their right to security of the person and to a fair trial, as the trial-delay exceeds the Morin guidelines for acceptable prosecutorial and institutional delay, by a period of time of 6 months and 17 days at the minimum. While the subject charges are regulatory in nature and as such would not likely result in an accused suffering the same degree of anxiety and stigma arising out a delay in the completion of such charges, compared to criminal charges, the extent of the trial-delay is, nevertheless, significant.

[186] The claim of the non-corporate defendants, that their right to make full answer and defence in these proceedings has been prejudiced by the delay; well in excess of the guidelines for acceptable trial-delay, is also a strong one. The seriousness of the offence does not impact the weight to be afforded to this individual right. It affects all offences, no matter the degree of seriousness, equally. As stated by the majority in Jordan, "[f]air trial interests are affected because the longer a trial is delayed, the more likely it is that some accused will be prejudiced in mounting a defence, owing to faded memories, unavailability of witnesses, or lost or degraded evidence".

[187] The extent of the pre-Jordan prosecutorial and institutional delay in these proceedings, has, in my view, caused substantial prejudice to the individual rights of the non-corporate defendants, to security of the person and to a fair trial. The degree of the prejudice to these rights, approximately double the Morin guidelines for acceptable institutional delay in the provincial courts, justifies a determination that the rights of these non-corporate defendants, under subsection 11(b), have been denied or infringed.

[188] While the subject regulatory offences which relates to environmental protection, may be considered "serious" relative to many other offences in the regulatory realm, they fail to rank with the degree of "seriousness" associated with the vast majority of offences codified by the Criminal Code. Furthermore, the degree of prejudice suffered by the non-corporate defendants to their constitutionally protected interests concerning security of the person and a fair trial is significant.

[189] Upon balancing these factors, I am of the view that the rights of the non-corporate defendants to a stay of the subject proceedings as a remedy for the subsection 11(b) violation in the pre-Jordan period, outweighs the societal interest in seeing that all persons "who transgress the law are brought to trial and dealt with according to law" (Morin, at para. 30).

(E) Summary of the Applicability of the Transitional Exceptional Circumstance – Morin Framework

[190] The remaining delay, calculated in accordance with the Jordan/Cody framework, with respect to the charges contained in information no. 13-7247 is 51 months and 27 days; with respect to the charges contained in information no. 13-7246 is 51 months and 3 days and with respect to the charges contained in information no. 14-7592 is 34 months and 2 days.

[191] As stated above, the presumptively unreasonable delay in the trial of the proceedings against the corporations named in information no. 13-7247 and against the corporation named in information no. 14-7592, has been justified by the operation of the transitional exceptional circumstance. The corporate defendants did not suffer any prejudice to their fair-trial rights as of July 8th, 2016. Accordingly, the subsection 11(b) clock for the corporate defendants began to run as of the date of the release of Jordan.

[192] The period of remaining delay between July 8th, 2016 and the anticipated completion of the trial on March 18th, 2018 of 14 months and 9 days, falls below the presumptive ceiling. The corporate defendants have failed to prove, on a balance of probabilities, that the remaining delay in the post-Jordan period, below the presumptive ceiling, represents an unreasonable period of delay. Accordingly, the application of all of the corporate defendants for a stay of proceedings, under subsection 24(1) of the Charter, is dismissed.

[193] I find that the corporate defendants in these proceedings to be tried within a reasonable time under subsection 11(b) of the Charter, have not been either denied or infringed.

[194] On the other hand, I am of the view that the rights of the non-corporate defendants under subsection 11(b) of the Charter, in respect of the relevant charges, have been denied or infringed. The presumptively unreasonable "remaining delay" in the completion of the trial against the non-corporate defendants, has not been rebutted by operation of ether the particularly complex case exceptional circumstance or the transitional exceptional circumstance.

[195] Upon analyzing the inordinate delay in the pre-Jordan period in accordance with the four Morin factors and engaging in a balancing of the interests of the non-corporate defendants relative to subsection 11(b) with the societal interest in a trial of the charges on their merits, I have determined that the trial-delay attributable to both prosecutorial and institutional factors, in excess of the Morin guidelines, is unreasonable. Accordingly, the subsection 11(b) rights of the non-corporate defendants herein, prior to the advent of Jordan, have been violated.

[196] The presumptively unreasonable remaining delay with respect to the completion of the trial of the subject charges against the non-corporate defendants has not been justified by the operation of the transitional exceptional circumstance, because the delay was unreasonable as of the date that Jordan was released on July 8th, 2016. In his decision in Regina v. Albinowski, et.al. supra, Leroy J. found that an unreasonable period of trial delay in the pre-Jordan transitional period could not serve to justify the reasonableness of the remaining delay in excess of the presumptive ceiling under the Jordan analytical framework. In that regard, at paragraph 55 of his decision, the said jurist made the following comments:

The Crown was operating without notice of the new framework within a jurisdiction with systemic delays. The Crown argues that it reasonably relied on the previous state of law. The previous state of the law allowed for institutional delay in the range of eighteen months. At twenty-five months, the accused's rights to trial within a reasonable time had been compromised on any analysis. The Morin guidelines reflect the fact that resources are finite and there must accordingly be some tolerance for institutional delay. Institutional delay within or close to the guidelines has generally been considered to be reasonable. Twenty-five months institutional delay is unreasonable.

THE DECISION

[197] For the reasons stated above, I make the following findings pertaining to the subject Application under subsections 11(b) and 24(1) of the Charter, relative to each of the three informations.

(i) Information no. 13-7247

[198] The charges contained in this information were instituted on the 19th day of April, 2013. It is anticipated that the trial of the charges will be completed by the 18th day of May, 2018.

[199] The net delay in the completion of the trial of these charges, over the period between April 19th, 2013 and May 18th, 2018, is 52 months and 5 days. Upon deducting 8 days from this period to account for delay related to discrete, exceptional events, the remaining delay in the prosecution of these charges is 51 months and 27 days.

[200] The period of remaining delay is presumptively unreasonable. It exceeds the presumptive ceiling of 18 months, relative to delay in the provincial courts. The excessive delay relative to the prosecution of these charges is not justified through the application of the "particularly complex case exceptional circumstance". However, the presumption of unreasonableness has been partially rebutted with respect to the charges against the corporate defendants only, through the application of the "transitional exceptional circumstance".

[201] As stated above, I am of the view that the period of delay between April 19th, 2013 and the date of the release of the decision in Jordan on July 8th, 2016, analyzed on the basis of the Morin principles, is constitutionally reasonable relative to the corporate defendants, but not constitutionally reasonable relative to the non-corporate defendants. The distinction rests on the issue of prejudice to the defendants, occasioned by the delay in the completion of the charges.

[202] The length of the delay in the pre-Jordan period, attributable to prosecutorial and institutional factors, substantially exceeds the Morin guidelines for acceptable delay. I am able to infer that the non-corporate defendants suffered prejudice to their rights to security of the person and a fair trial, which subsection 11(b) seeks to protect, based upon the extent of the delay beyond the said guidelines.

[203] The non-corporate defendants have, therefore, shown that their rights under subsection 11(b) of the Charter, were denied or infringed during the course of the pre-Jordan period. The circumstances of the transitional period do not serve to justify the presumptively unreasonable period of remaining trial delay in the charges against the non-corporate defendants.

[204] On the other hand, the corporate defendants have failed to establish, on a balance of probabilities, that their rights under subsection 11(b) of the Charter had been denied or infringed over the course of the pre-Jordan period, ending on July 8th, 2016. In this regard, in applying the principles in both CIP Inc. and Morin, during the transitional period, I find that the corporate defendants did not suffer any actual prejudice to their fair trial interests, occasioned by the unacceptable periods of prosecutorial and institutional trial-delay.

[205] There is no evidence before me that the trial-delay during the period between April 19th, 2013 and July 8th, 2016, caused actual prejudice to or impairment of the right of the corporate defendants to make full and answer and defence. The rights of the corporate defendants to be tried of the subject offences within a reasonable time, had not, as of July 8th, 2016, been denied or infringed.

[206] Accordingly, the transitional exceptional circumstance applies to justify the excessive period of trial-delay prior to July 8th, 2016, relative to the corporate defendants named in information no. 13-7247. The remaining delay for the period between July 8th, 2016 and May 18th, 2018; a period of 14 months and 9 days, falls below the ceiling for presumptively unreasonable delay. The corporate defendants have failed to establish that this period of remaining delay was unreasonable in accordance with the test for delay below the presumptive ceiling as enunciated in Jordan.

[207] In summary, in respect of the charges against the non-corporate defendants, I find that the net trial-delay exceeds the presumptive ceiling for reasonable delay, of 18 months. This presumptively unreasonable period of trial-delay has not been justified by the prosecution through the application of the "discrete events exceptional circumstance", the "particularly complex case exceptional circumstance" or the "transitional exceptional circumstance". The trial-delay relative to the proceedings against the non-corporate defendants is, therefore, unreasonable.

[208] I find that the rights of the non-corporate defendants named in information no. 13-7247 under subsection 11(b) of the Charter, have been denied or infringed. Accordingly, the charges against Houshyar Ahmad, Lavinder Aulakh, Harkamaljit Singh Bahia, Lewis Burchell, Nana Gambrah, Courtney Gayle, Zakir Housein, Coleen Anne Hunter, Pasquale Lamanna, Carol McLean, Anthony Mensa, Earl Patrick, Nickolai Romantchenko, Noel Roper, Jaspal Singh, Surjit Uppal, Carlo Waite, O'Niel Young and Erica Young in this information, are stayed pursuant to subsection 24(1) of the Charter.

[209] Furthermore, in respect of the charges against the corporate defendants named in the subject information, I conclude that the net trial-delay exceeds the presumptive ceiling for reasonable delay of 18 months. This presumptively unreasonable period of trial-delay has not been justified by the prosecution under either the "discrete events exceptional circumstance" or the "particularly complex case exceptional circumstance".

[210] I am persuaded, however, that based upon the totality of the evidence before me in these consolidated trial proceedings and this Charter Application, the prosecution has justified the trial-delay in excess of the presumptive ceiling, with respect to the corporate defendants, based upon the "transitional exceptional circumstance".

[211] As analyzed above, the subsection 11(b) rights of the corporate defendants had not been infringed as of July 8th, 2016. The remaining delay calculated in accordance with the Jordan framework, totals 14 months and 9 days. The corporate defendants have not shown this period of remaining trial delay, below the presumptive ceiling, to be unreasonable.

[212] Accordingly, I find that the corporate defendants named in information number 13-7247, have not proven, on a balance of probabilities, that their rights under subsection 11(b) of the Charter, have been either denied or infringed. Accordingly, the Application of Benji Transport Inc., Brock Aggregates Inc., Dancar Haulage Corporation, Dilligaf Logistics Ltd., EarthCo Soil Mixtures Inc., G. & L. Group Ltd., Gambrah Trucking Co., Heavy Weight Trucking Inc., Hours Trucking Company, Jas Deol Trucking Inc., Jeorge Campoverde Haulage Ltd., Tylors Trucking Services Inc., 1167877 Ontario Inc., 1191669 Ontario Inc., 1688543 Ontario Inc., 1770195 Ontario Inc., 2163832 Ontario Inc. and 6282121 Canada Inc. to stay the subject charges pursuant to subsection 24(1) of the Charter, is denied. The trial of these corporate defendants in respect of the charges against them contained in information number 13-7247, will continue, as scheduled, on December 12th, 2017 at 9:00 a.m.

(ii) Information no. 13-7246

[213] The charges contained in this information against the defendants Daryn Bagg and Salman Cevlik, were instituted on the 2nd day of May, 2013. It is anticipated that the trial in this matter will be completed by the 18th day of May, 2018.

[214] The net delay in the completion of the trial of these charges, over the period between May 2nd, 2013 and May 18th, 2018 is 51 months and 11 days. Upon deducting 8 days from this period to account for delay related to discrete, exceptional events, the remaining delay in the prosecution of these charges is 51 months and 3 days.

[215] The remaining delay is presumptively unreasonable. It exceeds the presumptive ceiling of 18 months, relative to delay in the provincial courts. Based upon the reasons articulated above, the presumption of unreasonableness relative to the trial-delay is not justified through the application of the "particularly complex case exceptional circumstance" or the "transitional exceptional circumstance".

[216] In conclusion, the said defendants have established, on a balance of probabilities, that their rights in respect of the subject charges, under subsection 11(b) of the Charter, have been denied or infringed. The presumption of the unreasonableness of the remaining delay has not been rebutted by the prosecution. Accordingly, the charges in the said information against Daryn Bagg and Salman Cevlik are stayed, pursuant to subsection 24(1) of the Charter.

(iii) Information no. 14-7592

[217] The charges against EarthCo Soil Mixtures Inc., contained in this information were instituted on the 3rd day of October, 2014. It is anticipated that the trial of the charges will be completed by the 18th day of May, 2018.

[218] The net delay in the completion of the trial of the said charges, over the period between October 3rd, 2014 and May 18th, 2018, is 34 months and 10 days. Upon deducting 8 days from this period to account for delay related to discrete, exceptional events, the remaining delay in the prosecution of these charges is 34 months and 2 days.

[219] The period of remaining delay is presumptively unreasonable. It exceeds the presumptive ceiling of 18 months, relative to delay in the provincial courts. This presumptively unreasonable period of delay is not justified through the application of the "particularly complex case exceptional circumstance". However, the presumption of unreasonableness in respect of this information has been rebutted through the application of the "transitional exceptional circumstance".

[220] As stated above, the period of delay between October 3rd, 2014 and the date of the release of the decision in Jordan on July 8th, 2016, analyzed on the basis of the Morin principles, is considered to be constitutionally reasonable. This determination is premised on the notion that a court may not presume that a corporate defendant has suffered prejudice to its fair trial interests, based only on the fact that any prosecutorial or institutional trial-delay exceeds the Morin guidelines for acceptable delay.

[221] The said corporate defendant did not suffer any actual prejudice to its fair trial rights. According to the dicta of the Supreme Court of Canada in CIP Inc., a court may not infer that a corporate defendant has suffered prejudice, based upon the length of the institutional delay. It has not, therefore, been established that EarthCo Soil Mixtures Inc. suffered any prejudice to its fair trial rights under subsection 11(b), during the period between October 3rd, 2014 and July 8th, 2016; attributable to any prosecutorial and/or institutional delay, in excess of the Morin guidelines.

[222] Applying the Morin framework during the transitional period, I find that EarthCo Soil Mixtures Inc. has failed to prove that its subsection 11(b) rights had been denied or infringed during that period. The subsection 11(b) clock in these proceedings began to weigh against the prosecution at the time of the release of the Jordan on July 8th, 2016. Prior to that time, the said corporation had not suffered any prejudice occasioned by the inordinate delay.

[223] The remaining delay during the period between July 8th, 2016 and May 18th, 2018, analyzed in accordance with the Jordan framework is that of 14 months and 9 days. This period falls below the presumptive ceiling of 18 months. As indicated above, the defendant EarthCo Soil Mixtures Inc. has failed to establish that this period of remaining delay is unreasonable, under the Jordan test for delay below the presumptive ceiling.

[224] In this information the "transitional exceptional circumstance" operates to rebut the presumption of unreasonableness occasioned by the remaining delay. EarthCo Soil Mixtures Inc. has, therefore, failed to prove that as of July 8th, 2016 its subsection 11(b) rights had been infringed, as it had not actually suffered any prejudice to its ability to make full answer and defence prior to that date.

[225] The presumptively unreasonable period of delay in respect of the charges contained in this information is justified through the application of the transitional exceptional circumstance. The remaining delay for the period of delay between July 8th, 2016 and May 18th, 2018, of 14 months and 9 days, falls below the presumptive ceiling. EarthCo Soil Mixtures Inc. has not established that this period of remaining delay is unreasonable.

[226] In conclusion, the said corporate defendant has failed to prove that its subsection 11(b) rights in respect of the charges contained in information no. 14-7592, have been denied or infringed. The subject Application for a stay of the proceedings pursuant to subsection 24(1) of the Charter is, therefore, denied. The trial of the charges against the EarthCo Soil Mixtures Inc., under this information will continue, as scheduled, on December 12th, 2017, at 9:00 a.m.

Released: December 6th, 2017

Signed: "Justice of the Peace Kenneth W. Dechert"

ONTARIO COURT OF JUSTICE

BETWEEN:

Ruling on Application under Subsections 11(b) and 24(1) of the Canadian Charter of Rights and Freedoms

Statutes, Regulations and Rules Cited

Cases Cited

K.W. DECHERT, J.P.

INTRODUCTION

THE LAW

(i) Relevant Statutory Provisions

(ii) Relevant Common Law

The New Framework Summarized

(1) Waiver

(2) Delay Caused by Defence Conduct

Deducting Delay

ANALYSIS

(i) Total Delay

(ii) Defence Delay

(A) Waiver

(B) Delay Caused by Defence Conduct

(C) Total Defence Delay

(iii) Net Delay

(A) Information no. 13-7247

(B) Information no. 13-7246

(C) Information no. 14-7592

(iv) The Discrete Events Exceptional Circumstance

(v) Remaining Delay

(A) Information no. 13-7247

(B) Information no. 13-7246

(C) Information 14-7592

(vi) The Particularly Complex Case Exceptional Circumstance

(vii) The Transitional Exceptional Circumstance

(A) Chronology of Events from the Institution of the Proceedings to July 8th, 2016

1. June 18th, 2013

2. September 3rd, 2013

3. November 18th, 2013

4. January 20th, 2014

5. February 18th, 2014

6. June 5th, 2014

7. October 2nd, 2014

8. January 13th, 2015

9. February 2nd, 2015

10. February 3rd, 2015

11. March 2nd, 2015

12. March 30th, 2015

13. September 1st, 2015

14. September 4th, 2015

15. December 7th, 2015

16. January 4th, 2016

17. January 25th, 2016

18. January 26th, 2016

19. May 9th, 2016

20. May 16th, 2016

21. June 6th, 2016

(B) Delay Attributable to the Prosecution or Institutional Factors

1. Informations nos. 13-7247 and 13-7246

2. Information no. 14-7592

(C) Prejudice

(D) Seriousness of the Offences

(E) Summary of the Applicability of the Transitional Exceptional Circumstance – Morin Framework

THE DECISION

(i) Information no. 13-7247

(ii) Information no. 13-7246

(iii) Information no. 14-7592

This Proceeding

Judge

Counsel

Parties

Areas of Law