WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486(1), (1.1), (2), or (3) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486(1) Any proceedings against an accused shall be held in open court, but the presiding judge or justice may, on application of the prosecutor or a witness or on his or her own motion, order the exclusion of all or any members of the public from the court room for all or part of the proceedings, or order that the witness testify behind a screen or other device that would allow the witness not to be seen by members of the public, if the judge or justice is of the opinion that such an order is in the interest of public morals, the maintenance of order or the proper administration of justice or is necessary to prevent injury to international relations or national defence or national security.

(1.1) The application may be made, during the proceedings, to the presiding judge or justice or, before the proceedings begin, to the judge or the justice who will preside at the proceedings or, if that judge or justice has not yet been determined, to any judge or justice having jurisdiction in the judicial district where the proceedings will take place.

(2) In determining whether the order is in the interest of the proper administration of justice, the judge or justice shall consider

(a) society's interest in encouraging the reporting of offences and the participation of victims and witnesses in the criminal justice process;

(b) the safeguarding of the interests of witnesses under the age of 18 years in all proceedings;

(c) the ability of the witness to give a full and candid account of the acts complained of if the order were not made;

(d) whether the witness needs the order for their security or to protect them from intimidation or retaliation;

(e) the protection of justice system participants who are involved in the proceedings;

(f) whether effective alternatives to the making of the proposed order are available in the circumstances;

(g) the salutary and deleterious effects of the proposed order; and

(h) any other factor that the judge or justice considers relevant.

(3) If an accused is charged with an offence under section 151, 152, 153, 153.1, 155 or 159, subsection 160(2) or (3) or section 163.1, 171, 171.1, 172, 172.1, 172.2, 173, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 286.1, 286.2 or 286.3 and the prosecutor or the accused applies for an order under subsection (1), the judge or justice shall, if no such order is made, state, by reference to the circumstances of the case, the reason for not making an order.

(4) No adverse inference may be drawn from the fact that an order is, or is not, made under this section.

R.S., 1985, c. C-46, s. 486; R.S., 1985, c. 27(1st Supp.), s. 203, c. 19 (3rd Supp.), s. 14, c. 23 (4th Supp.) s. 1; 1992, c. 1, s. 60(F), c. 21, s. 9; 1993, c. 45, s.7; 1997, c. 16, s. 6; 1999, c. 25, s. 2(Preamble); 2001, c. 32, s. 29, c. 41, ss. 16, 34, 133; 2002, c. 13, s. 20; 2005, c. 32, c.43, ss. 4,8,; 2010, c.3, s. 4; 2012, c. 1, s. 28; 2014, c. 25, s. 21; 2015, c. 13, s. 13, c. 20, s. 21.

Court Information

Court of Appeal for Ontario

Date: May 28, 2018

Docket: C63479

Judges: Sharpe, Pepall and Fairburn JJ.A.

Parties

Between

Her Majesty the Queen Appellant

and

Stephen Jurkus Respondent

and

Leslie Lonsbary Respondent

Counsel

Michael Fawcett, for the appellant

Patrick Ducharme, for the respondent, Stephen Jurkus

Jill Presser and Jeff Marshman, for the respondent, Leslie Lonsbary

Heard: February 21, 2018

On appeal from: the decision of Justice A.K. Mitchell of the Superior Court of Justice, dated February 13, 2017.

Decision

Fairburn J.A.:

A. OVERVIEW

[1] In October 2013, Mr. Lonsbary was a correctional officer at the Elgin-Middlesex Detention Centre. Mr. Jurkus was an operational manager. They were on duty when Adam Kargus' cellmate beat him to death. The beating is said to have gone on for about an hour and was so loud that an inmate a floor below could hear the "excessive banging". Mr. Kargus is said to have repeatedly screamed for help. His body was discovered the following morning.

[2] On March 5, 2014, the respondents and another correctional officer were charged with failing to provide the necessaries of life to the deceased. The charges against the third officer were withdrawn at the outset of the preliminary inquiry. The respondents were to be tried together. Their trial was set to commence on May 8, 2017, but the proceedings were stayed for unreasonable delay.

[3] The appellant claims that the application judge erred in her s. 11(b) Charter analysis. I agree. When these errors are properly accounted for, there was no unreasonable delay. The trial must proceed.

B. THE APPLICABLE LEGAL FRAMEWORK

[4] To provide context for the reasons that follow, I start with a general review of the relevant legal framework within which s. 11(b) Charter applications are considered today. This is the approach ushered in under R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, a decision released after this case had already been in the system for 28 months.

[5] A presumptive ceiling of 30 months is set for cases proceeding in superior courts. In determining whether the 30-month ceiling is exceeded, defence delay must first be subtracted from the total delay, resulting in the "net delay": R. v. Coulter, 2016 ONCA 704, 133 O.R. (3d), at para. 35; R. v. Gopie, 2017 ONCA 728, 356 C.C.C. (3d) 36, at para. 113.

[6] There are two types of defence delay: delay waived by the defence and "delay caused solely by the conduct of the defence": Jordan, at paras. 61, 63; R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, at para. 26. There is no suggestion of waiver in this case. As for delay caused solely by the defence, among other things, this type of delay can arise where the "court and the Crown are ready to proceed, but the defence is not": Jordan, at para. 64.

[7] Where the net delay rests above the presumptive ceiling, the Crown bears the onus of establishing reasonableness. This onus can be met where exceptional circumstances are shown to exist. Exceptional circumstances have two components: "(1) they are reasonably unforeseen or reasonably unavoidable, and (2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise" (emphasis in original): Jordan, at para. 69. See also: Gopie, at para. 115; Cody, at para. 58.

[8] In general, there are two categories of exceptional circumstances – discrete events and particularly complex cases: Jordan, at para. 71. Where discrete events cause delay, that period of time must be subtracted from the net delay. If the Crown or system could have reasonably mitigated the delay arising from a discrete event, it may result in only a partial amount of the time being subtracted from the net delay. This produces what is referred to as the "resulting delay": Gopie, at para. 117. Where the resulting delay exceeds the 30-month ceiling, the court will look to the complexities of the case to determine whether the passage of time is nonetheless reasonable: Jordan, at paras. 75-80; Gopie, at para. 117.

[9] Finally, for cases where delay exceeding the ceiling is not explained by the complexity of the matter, a transitional exceptional circumstance may apply if the charges were laid prior to Jordan having been released: Jordan, at para. 96.

C. THE APPLICATION JUDGE'S DECISION

[10] The application judge concluded that the total delay was 39.3 months. Two periods of defence delay were then subtracted from the total delay, leaving the net delay for Jurkus at 35.8 months and for Lonsbary at 36.6 months.

[11] The application judge went on to consider exceptional circumstances. She concluded that there were no discrete events that would further decrease the net delay. In particular, she rejected the suggestion that the need to add a fifth day to complete the preliminary inquiry was a discrete event, such that the ensuing delay was an exceptional circumstance. Moreover, the application judge found that there was no complexity inherent in the proceedings, such that any delay above the ceiling could be justified. Accordingly, the Crown was found to have failed in its attempt to rebut the presumption of unreasonable delay.

[12] The application judge went on to consider the transitional exceptional circumstance. She conducted a cursory analysis under R. v. Morin, [1992] 1 S.C.R. 771, and concluded that the time that the case would "take to the conclusion of the trial" was not reasonable under the "pre-Jordan regime". A stay of proceedings was entered.

D. ANALYSIS

(1) Overview

[13] As will be explained in these reasons, I conclude that the application judge erred by: (a) miscalculating the total delay; (b) failing to recognize two periods of defence delay that, properly approached, decrease the net delay; (c) failing to take into account a discrete event that, properly approached, decreases the resulting delay; and (d) failing to take into account the complexity of the case.

[14] I conclude that the resulting delay for Lonsbary is actually just below 30 months. I further conclude that, although the resulting delay for Jurkus rests three weeks above the ceiling, the complexity of the proceeding accounts for those three weeks. Moreover, the transitional exceptional circumstance applies in this case and there was no unreasonable delay under the pre-Jordan framework.

(2) The Total Delay

[15] The parties agree that there is a small error in the calculation of the total delay at 39.3 months. The charges were laid on March 5, 2014. The anticipated end of trial was May 26, 2017. Properly calculated, the parties agree that the total delay is 38 months and three weeks. This is the starting point for calculating the net delay.

(3) The Net Delay: Taking into Account the Defence Delay

• The respondents ask for a one-month adjournment

[16] After their committal to trial, the respondents appeared by agent in the Superior Court of Justice for the first time on February 9, 2016. The agent asked for an adjournment to the next assignment court on March 8, 2016, in order to "set a judicial pre-trial date". No reasons were given for this request.

[17] The application judge correctly determined that this adjournment request resulted in 28 days of defence delay. I will call this one month, just as I will later refer to an over three-month delay as three months. Properly calculated, this brings the net delay to 37 months and three weeks.

• The "breakdown in communication" - delay in obtaining a judicial pre-trial date

[18] On March 8, 2016, Lonsbary's counsel appeared in court on behalf of both respondents. He advised the court that the parties would "like to set a date for a judicial pre-trial". Although Lonsbary's counsel said that he had provided "many dates" to Jurkus' counsel, the court was informed that "the only dates" (emphasis added) on which Jurkus' counsel was available were "July 29, August 19, and August 22". The court accommodated the earliest date of July 29.

[19] Relying upon affidavit evidence filed, the application judge found that there had been a "breakdown in communication" between the administrative staff in the lawyers' offices that resulted in Lonsbary's counsel misinforming the court that Jurkus' counsel's earliest availability was July 29, 2016. The application judge found that Jurkus' counsel was actually available for a pre-trial on four days in March and on May 13. She also found that Jurkus' counsel was available to appear at a judicial pre-trial by way of teleconference on April 4 and 7, 2016, but that "the court refused to accommodate this request relying on the Region's historical practice". As for Lonsbary, the application judge determined that, although he was not available for a judicial pre-trial during the months of March and April, he was available starting in May.

[20] Based upon these factual findings as to when counsel were actually available, the application judge found that Jurkus was responsible for the delay after May 13, 2016 (his last available date for a pre-trial) up to July 29 (the date requested): a total of 75 days. The application judge found Lonsbary's delay was from March 11 (the date that Jurkus was actually first available to appear at a pre-trial, but Lonsbary was not) and the end of April (when Lonsbary actually became available for a pre-trial): a total of 50 days.

[21] The appellant maintains that the application judge erred in her approach to calculating the defence delay, arguing that the delay should have been calculated based upon what actually happened, not what might have happened had the court been accurately informed. Hence, the appellant maintains that the delay between March 8 and July 29, 2016 was defence delay. As the defence may have needed three weeks to prepare for the judicial pre-trial, the appellant accepts that the defence delay should be calculated at four months.

[22] The respondents first argue that the attribution of defence delay is a finding of fact entitled to deference. This court should not interfere with the application judge's approach to what she perceived as counsel's miscommunication.

[23] Jurkus also emphasizes that he should not be penalized for a simple miscommunication on the part of Lonsbary's counsel who acted as his agent that day. Lonsbary agrees, but also argues that if the court is inclined to interfere with what he characterizes as the application judge's factual determination, then any error in the calculation of defence delay inures to his benefit. He maintains that the affidavit evidence establishes that he was also available to participate in a judicial pre-trial on April 4 and 7, 2016, when Jurkus would have made himself available by teleconference. The only reason that the pre-trial did not go ahead was the court's refusal to hold judicial pre-trials by teleconference. Accordingly, he argues that, if deference is to be set aside, then his delay should be decreased to reflect his and Jurkus' availability for a pre-trial on April 4 and 7, 2016.

[24] I conclude that four months of this period of time was defence delay for the following reasons.

[25] First, I do not agree that the designation of a period of time as defence delay is a finding of fact that is owed deference. Although underlying findings of fact are reviewed on a standard of palpable and overriding error, the characterization of those periods of delay and the ultimate decision as to whether there has been unreasonable delay are subject to review on a standard of correctness: R. v. M.(N.N.) (2006), 209 C.C.C. (3d) 436 (Ont. C.A.), at para. 6; R. v. Schertzer, 2009 ONCA 742, 248 C.C.C. (3d) 270, at paras. 71-72, leave to appeal refused [2010] S.C.C.A. No. 3; R. v. Tran, 2012 ONCA 18, 288 C.C.C. (3d) 177, at para. 19.

[26] Consequently, while I agree that the application judge's determination of the facts is to be accorded deference, her decision to assign each of the respondents only a part of the delay from March 8 to July 29, 2016 is a decision reviewable on a standard of correctness. Applying that standard, I find that the application judge erred in how she characterized this period of delay.

[27] When Lonsbary's counsel appeared in court on March 8, 2016, he was appearing for both Lonsbary and Jurkus. Although mistaken about dates and undoubtedly acting in good faith, the fact is that the earliest judicial pre-trial date given was July 29, 2016. He said that Jurkus' counsel could not accommodate an earlier date. Although Lonsbary said that he had earlier available dates, he did not mention what they were. Lonsbary's counsel seemed content that the matter go to July 29.

[28] The court and Crown could only operate on the information provided. There is no evidence to suggest that the Crown or court could not have accommodated an earlier pre-trial. Indeed, the application judge found as a fact that earlier judicial pre-trial dates were readily available.

[29] Although the misunderstanding operates unfortunately for the respondents, arising as it did from a good faith error, it does not operate unfairly. Indeed, it would be unfair to the public's right to a trial in a reasonable time to fail to hold the defence to account for this period of delay which was caused solely by what counsel put on the record on March 8. Counsel's request for the July 29 pre-trial date is determinative of the characterization of this period of delay.

[30] Even if this were not the case, I do not accept the submission that the apparent refusal to hold a judicial pre-trial by teleconference, something said to have been conveyed by the court office to Jurkus' office, neutralizes what would otherwise be defence delay. There was nothing to prevent counsel on March 8, 2016 from raising a concern with the judge about the need for a judicial pre-trial by teleconference. Indeed, it would seem that counsel who appeared in court on March 8, 2016, had previously succeeded in having a judicial pre-trial by teleconference in another case. As he mentioned during his s. 11(b) submissions:

I think it is an error in their policy to disallow attendance by way of pre-trial conference, and it will only serve to increase delay… And for the life of me – and perhaps somebody can enlighten me – I know not why that is their rule… it's trite that other jurisdictions do in fact do this. I don't mean to testify, but I think it's also trite that this jurisdiction has done it on occasion. In fact, [another judge] and this court met with myself and [another counsel] by phone once, when I was in Costa Rica, resolved the trial. [Emphasis added]

[31] Creative solutions can sometimes be found to accelerate matters, but such solutions will remain elusive unless the court is notified of the concern. Not only was the judge presiding on March 8, 2016 not apprised of any concern, he was simply asked to set the judicial pre-trial for July 29, 2016. This resulted in delay caused solely by the defence.

[32] I would add that nothing in these reasons should be construed as suggesting that counsel making themselves available for a judicial pre-trial by teleconference will avoid a finding of defence delay. Personal appearance accords with the purpose pre-trials are designed to achieve. They are not simply part of a check-list on the road to trial. They are designed to promote general efficiency in the criminal justice system by, among other things, facilitating resolutions, resolving issues, simplifying motions, arriving upon agreed facts, identifying triable issues and setting meaningful schedules: R. v. Konstantakos, 2014 ONCA 21, 315 O.A.C. 123, at para. 8; Judicial Pre-Trial Conferences Scheduled for Tuesday October 11 Re, 2016, 2016 ONSC 6398, at para. 8. Criminal Code, s. 625.1; Criminal Proceedings Rules for the Superior Court of Justice (Ontario), SI/2012-7, Rule 28.05(9). In this age of concern about delay in our criminal justice system, there is an added premium on ensuring the success of judicial pre-trials. Undoubtedly, personal attendance enhances the opportunity for meaningful discussions and successful outcomes.

[33] Although teleconferences may be appropriate in some situations, particularly where a long delay may be generated to accommodate personal attendance, at a minimum, counsel must inform the court of their availability to proceed this way. That did not happen in this case.

[34] I conclude that there was four months of defence delay between when the pre-trial date was requested and when it occurred. This decreases the net delay for both accused to 33 months and three weeks.

• Lonsbary's delay in scheduling the trial

[35] The parties agree that the application judge failed to consider a 28-day delay caused by Lonsbary when his counsel was not available for trial in April 2017. This error arose from an erroneous trial Crown submission. Even so, the parties agree that the record clearly establishes that Lonsbary's counsel caused a month of delay when he was not available for trial. This constitutes another month of defence delay attributable to Lonsbary.

• Conclusion on net delay

[36] Correctly approached, Jurkus' net delay was 33 months and three weeks. Lonsbary's net delay was 32 months and three weeks. I will now consider whether there were exceptional circumstances that warranted the subtraction of time from the net delay.

(4) The Resulting Delay: Discrete Event

• Overview

[37] As the net delay falls above the 30-month ceiling, it is presumptively unreasonable and it was for the Crown to rebut that presumption. As I will explain below, I find that the application judge erred in rejecting the submission that a three-month delay generated by the need for an additional day to complete the preliminary inquiry was a discrete event. Properly accounted for, this discrete event places Lonsbary's resulting delay just below the 30-month ceiling and Jurkus' resulting delay just above the ceiling.

• The need for an additional day to complete the preliminary inquiry

[38] This matter was pre-tried before the preliminary inquiry was scheduled to proceed. Counsel agreed that it would take four days to complete the preliminary inquiry. A trial readiness form was prepared. Although it contains reference to numerous Crown witnesses, none were listed for the defence. The preliminary inquiry was scheduled for three days in May, with a fourth day set for July 13, 2015.

[39] One week before the start of the preliminary inquiry, the third co-accused, Langford, provided a statement to the police. The statement was disclosed two days later. The trial Crown then withdrew the charges against Langford on the first day of the preliminary inquiry. Langford was then called to testify. His examination-in-chief started after the afternoon recess and concluded before the end of the court day. His cross-examination was completed before lunchtime the following day.

[40] During the afternoon of the third day of the preliminary inquiry, Crown counsel announced that her final witness was not available to testify that day. She proposed that the witness be called on the next scheduled day, July 13, 2015. Lonsbary's counsel then announced, for the first time, that he had subpoenaed a witness to testify on July 13, 2015. Accordingly, he did not think that they would finish the preliminary inquiry that day. With the judge's encouragement, counsel agreed to attend at the trial co-ordinators office to secure a fifth day, just in case they needed more time to complete the matter.

[41] On July 13, the Crown's case was completed before the lunch break. Lonsbary then called his witness, Timothy McFadden, whose evidence continued until close to the end of the court day. The matter had to be put over to a new date for closing submissions. Although the record is unclear as to how the date was chosen, October 16, 2015 was settled upon as the fifth and final day for the preliminary inquiry. Lengthy closing submissions were made on that final day.

[42] The application judge rejected the trial Crown's primary position that the three-month delay resulting from the need for an additional day to complete the preliminary inquiry was defence delay. The appellant does not dispute this finding. Instead, the appellant takes issue with the application judge's rejection of the trial Crown's alternative position, that the need for the additional day arose from a discrete event, resulting in an unavoidable three-month delay.

[43] The application judge appears to have found that the need for the additional day, causing the three-month delay, was directly related to the Crown's decision to call Langford to testify and that this was avoidable. To the extent that Lonsbary's counsel's decision to call a witness extended the length of the preliminary inquiry, the application judge appears to have concluded that this turn of events should have been anticipated by the Crown:

The Crown has suggested that Mr. Lonsbary's decision to call evidence at the preliminary hearing was unanticipated based on the contents of the trial readiness certificate filed in advance of scheduling the preliminary hearing dates and should be considered a 'discrete event' which added in excess of 3 months to the period of delay. I am unpersuaded the decision to call Mr. McFadden as a witness at the preliminary hearing is a 'discrete event' of the kind envisioned in Jordan. The Crown could have foreseen this event occurring and planned for it particularly given its knowledge of the resolution of the charge against Mr. Langford. The defendant was entitled to call evidence. Albeit unexpected, this development was not exceptional.

[44] The respondents maintain that the delay was a direct result of the Crown's actions and could have been avoided. At a minimum, as the Crown did not lead any evidence showing when they reached the "resolution agreement" with Langford, or when they decided to call him as a witness, there was no basis upon which to conclude that the delay was unforeseeable, unavoidable or irremediable.

[45] The respondents also argue that Langford's evidence was not necessary at the preliminary inquiry and that the Crown has to live with its choice to call him as a witness. Additionally, the respondents maintain that the Crown failed to make efficient use of the court time it had available. In particular, the Crown did not have its final witness ready to testify on the third day and, accordingly, part of the fourth day had to be consumed by that witness' evidence.

[46] Finally, the respondents submit that the length of time it took to obtain a fifth day to complete the preliminary inquiry was unreasonable. This constitutes the court's failure to mitigate the delay.

[47] I do not agree that the delay generated by the need for a fifth day can be laid so easily at the feet of the Crown or the court.

[48] As I see it, two critical things happened that changed the landscape as it appeared at the time that the four days were originally set for the preliminary inquiry: (1) Langford became a Crown witness; and (2) counsel for Lonsbary decided to call McFadden as a witness.

[49] I will first address the Langford matter. The application judge accurately described this as a "dramatic change in the landscape". The respondent's former co-accused opted to assist the prosecution. Langford only provided his statement one week before the preliminary inquiry started. It was almost immediately disclosed to the respondents.

[50] Until Langford gave his statement and showed up to testify, nothing would have been for sure. In the uncertain and complex world of Crown-defence negotiations in multiple accused cases, it would be unfair to suggest that the Crown did not proactively account for something that may never happen. Moreover, even though the Crown added Langford to their witness list, the Crown still called fewer witnesses to testify than had been identified on the trial readiness form.

[51] I disagree with the suggestion that the Crown has to live with its decision to call Langford to bolster its case, as it is detached from the context in which this occurred. This was a preliminary inquiry and not a trial. It was to everyone's benefit that Langford testify at the preliminary inquiry. Undoubtedly, the respondents would rather hear what their former co-accused had to say at the preliminary inquiry, before they heard from him at trial. The sheer length of the cross-examination demonstrates the respondents' interest in Langford's evidence.

[52] Although in a slightly different factual context, R. v. Gordon, 2017 ONCA 436, 348 C.C.C. (3d) 426, is of assistance on this point. After the second day of trial, a co-accused decided to change his plea, cooperate with the police, provide a statement and testify. The resulting delay was held to be "reasonably unforeseen and reasonably unavoidable", qualifying as an exceptional circumstance: para. 13. Even if Langford's evidence stood alone in extending the time needed for the preliminary inquiry, consistent with the reasoning in Gordon, it would constitute an exceptional circumstance. It did not stand alone.

[53] The second event was Lonsbary's counsel's decision to call McFadden. While I agree that calling a defence witness at a preliminary inquiry is not an entirely exceptional event, it is far from common. Indeed, Lonsbary's own counsel referred to it as a "very unusual move". I do not agree that the Crown should have anticipated this event. Again, this was a preliminary inquiry, not a trial. The only way that the Crown could have anticipated the defence calling a witness is if the defence had announced that they intended to do so. Had they done so, the time needed for this witness could have been built into the estimated length of the preliminary inquiry.

[54] Moreover, although Lonsbary is right to note that the Crown's final witness was unavailable to testify during the afternoon of the third day of the preliminary inquiry, neither was his own witness. Even if the Crown had closed its case on the third day, McFadden would not have been able to testify until the fourth day. Bearing in mind the length of McFadden's evidence and closing submissions, they simply could not have been completed in a single day. The need for a fifth day was inevitable.

[55] In the end, the reality is that the testimony of both Langford and McFadden added to the need for a fifth day. These are precisely the types of discrete events that Jordan contemplated. Trials are not "well-oiled machines" and things can quickly go awry in a way that leads to delay: Jordan, at para. 73. An example given in Jordan, is where a trial goes longer than "reasonably expected", even where the parties have in good faith attempted to establish realistic timelines. In these circumstances, it is "likely the delay was unavoidable" and will constitute an exceptional circumstance: Jordan, at para. 73. These comments have equal application when it comes to a preliminary inquiry.

[56] Finally, I wish to address the suggestion that the court is responsible for the delay because it could not provide a continuation date until almost three months following the originally scheduled end for the preliminary inquiry. I agree with the respondents that both the court system and the Crown must take reasonable steps to mitigate delay caused by discrete exceptional events. The message from Jordan is clear: courts must be prepared to respond promptly and effectively to unexpected or unavoidable delays in criminal trials. However, I am not satisfied that the court was responsible for the three-month delay in this case.

[57] First, the record is unclear as to why the October date was chosen. In particular, at the end of court on July 13, Crown counsel mentioned that they had been hoping that something might come up earlier than the October 16 return date. Lonsbary's counsel said that they had been looking at the possibility of a "summer date", but that it "didn't work for the schedules" (emphasis added). Crown counsel said that they "weren't able to get anything".

[58] It is unclear what "schedules" made an earlier date impossible. In these circumstances, it would be wrong to simply assume that the court did not have a day available between July 13 and October 16, 2015 to complete the preliminary inquiry. Accordingly, while I accept that the court and Crown must take reasonable steps to mitigate delays arising from discrete events, there is nothing in the record to suggest that this did not happen. To the contrary, it appears that, at the court's encouragement, everyone worked toward getting the earliest available continuation date that worked for all.

[59] Second, it is important to remember the inquiry into reasonable steps remains a contextual one. In light of Jordan, reasonable efforts must be made to obtain continuation dates as quickly as possible. However, the reality of extremely busy provincial courts, handling the vast majority of criminal matters, must also be kept in mind: R. v. Allen (1996), 110 C.C.C. (3d) 331 (Ont. C.A.), at para. 27.

[60] I conclude that the need for a fifth day arose from a discrete event and that the ensuing delay was both reasonably unavoidable and could not reasonably have been remedied. The application judge erred in finding to the contrary.

• Conclusion on resulting delay

[61] Properly approached, the three months from July 13 to October 16, 2015 should be subtracted from the net delay. I will call this three months. Accordingly, the resulting delay for Lonsbary is 29 months and three weeks and for Jurkus, 30 months and three weeks. This leaves Lonsbary below the 30-month ceiling. There is no suggestion that if the delay falls below the ceiling, it is nonetheless unreasonable. Accordingly, my Jordan analysis respecting Lonsbary is complete.

[62] As the resulting delay for Jurkus falls three weeks above the ceiling, I will go on to consider how this three-week period should be approached under Jordan.

(5) Complexity: The Residual Three Weeks

[63] The trial Crown took the position that the time exceeding the 30 months was justified by the complexity of the proceedings. He referred to the voluminous disclosure, large number of witnesses, and novel legal issues. The trial Crown maintained that the 87 days it took to receive a committal decision also reflected the complexity of the case.

[64] The application judge rejected this position, finding, among other things, that the offence – failing to provide the necessaries of life – is "not a novel or rarely used section of the Code". Even so, she observed that there was a certain novelty arising from the use of the provision "to support an offence arising from the alleged criminal conduct of correctional officers during the course of their employment duties".

[65] She also noted that the Crown had elected to proceed against the accused jointly and was obligated to ensure that this did not compromise their right to trial in a reasonable time. She acknowledged that additional time had been required because of the joint prosecution:

… the additional time incurred to conduct judicial pre-trials and resolution meetings with Mr. Langford in an effort to resolve the issues with Mr. Langford in exchange for his evidence to bolster the case against the applicants added to the delay.

[66] The appellant appears to suggest in this court that the case does not qualify as an exceptionally complex one. Even so, the jurisprudence is clear that complexity can arise from cases involving more than one accused: "Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case", Jordan, at para. 77; Gopie, at para. 169; R. v. Manasseri, 2016 ONCA 703, 132 O.R. (3d) 401, at para. 311.

[67] I conclude that this was a complex case, at least complex enough to justify an additional three weeks above the ceiling. Among other things, the complexity of the matter is revealed by the length of the closing submissions and the fact that committal was so hotly contested. Moreover, the simple coordination of dates among the calendars of three defence counsel, the Crown and court added a layer of complexity to the proceedings. This is borne out by the record, including the counsel correspondence going back and forth. This is the type of inherent delay, arising in multiple accused trials, that was described as "a fact of life" in R. v. Vassell, 2016 SCC 26, [2016] 1 S.C.R. 625, at para. 6, a judgment released on the eve of Jordan.

[68] Jurkus suggests that the complexity of the proceeding was within the Crown's control, and that the accused should have been severed, allowing for a more streamlined proceeding against each. I disagree. There are a host of reasons why accused charged in relation to the same incident should be tried together, such as: conserving judicial and trial resources; avoiding inconsistent verdicts; and avoiding witnesses having to testify more than once: Gopie, at para. 138; R. v. Whylie (2006), 207 C.C.C. (3d) 97 (Ont. C.A.), at para. 24; R. v. L.G., 2007 ONCA 654, 228 C.C.C. (3d) 194, at para. 63. In this case, it was clearly in the interests of justice to proceed against the three accused together, even though, as acknowledged by the application judge, this added to the complexity of the matter.

[69] Instead of advancing complexity, the appellant now suggests that the time it took to release the decision on committal – 87 days – is a discrete event that should be subtracted from the net delay. In essence, the appellant takes the position that judicial reserve time should never be counted in the calculation of delay.

[70] The respondents urge this court to refuse to entertain this submission, having regard to the fact that it was not raised before the application judge. In particular, relying upon R. v. Varga (1994), 18 O.R. (3d) 784 (C.A.), at para. 27, Lonsbary maintains that the Crown is precluded from advancing a different case on appeal than that advanced at trial. In other words, the Crown is stuck with its characterization of the issue below, one of complexity.

[71] Although I disagree that the Crown is stuck on appeal with an erroneous position taken on a s. 11(b) application at trial (R. v. Steele, 2012 ONCA 383, 288 C.C.C. (3d) 255, at para. 19; Tran, at para. 31), it is unnecessary to consider this issue in order to resolve the appeal. The fact is that this was a complex matter, a finding that is consistent with the Crown position below.

[72] In any event, only Jurkus' delay rested above the ceiling, and only by a total of three weeks. In the context of this multi-accused case, with many moving parts, and complex issues that required resolution, the three weeks above the ceiling was reasonable.

(6) Transitional Exceptional Circumstances

[73] Jordan provides that in cases in which the delay exceeds the 30-month ceiling"a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision" (at para. 96). It recognizes that the new 11(b) framework "should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one": (at para. 102).

[74] Accordingly, if a Jordan analysis leads to a finding of unreasonable delay, the court is to consider whether a transitional exceptional circumstance applies. Although the Jordan analysis does not result in a finding of unreasonable delay in this case, given that the matter hovers closely to the 30-month ceiling, I will briefly address why this case also passes scrutiny as a transitional exceptional circumstance.

[75] In Gopie, at para. 178, this court emphasized the relevant factors informing a transitional exceptional circumstances analysis: (i) the complexity of the case; (ii) the period of delay in excess of the Morin guidelines (a total period of between 14 to 18 months for institutional delay for matters proceeding in superior courts); (iii) the Crown's response, if any, to any institutional delay; (iv) the defence efforts, if any, to move the case along; and (v) prejudice to the accused.

[76] Although the application judge was alive to the need to consider the transitional exceptional circumstance, she erred in her assessment of the matter. I will focus on the calculation of delay under the Morin guidelines.

[77] The application judge referred to certain institutional and Crown delay. However, it is difficult to ascertain the basis upon which she came to the conclusion that the Morin guidelines had been exceeded. A proper Morin analysis demonstrates a delay well under the guidelines.

[78] From the date of the charge (March 5, 2014) to the date when the preliminary inquiry was set (September 30, 2014), resolution discussions were being held, judicial pre-trials were being conducted, and disclosure was being made and reviewed. There were numerous court appearances over this period of time. The appellant maintains that 59 of these days were institutional or Crown delay. The respondents say that 111 days fall into this category.

[79] The respondents submit that the disclosure process in this case took over 20 months and that the Crown is "entirely responsible" for this delay. Although I agree that disclosure took a considerable amount of time, I disagree that the Crown's ongoing disclosure obligations delayed the matter. At no time did the defence request that things move faster. Indeed, the record demonstrates that the respondents were not unhappy with the pace of the proceedings.

[80] As the application judge correctly noted, a number of adjournment requests were made "on the consent of all parties" over a number of months leading up to scheduling the preliminary inquiry. I find that under a correct Morin approach, a reasonable intake period for a three accused case, involving what the application judge observed was significant disclosure, is five months: Steele, at para. 17. This leaves roughly two months as institutional delay.

[81] On September 30, 2014, the parties appeared to schedule the preliminary inquiry. However, the Crown had not prepared a trial readiness form. The matter had to be adjourned for one week. The appellant agrees that this caused a week of Crown delay.

[82] When the matter returned on October 7, 2014, the preliminary inquiry was set for May 11, 12, 15 and July 13, 2015. The respondents submit that half of the time between scheduling the preliminary inquiry on October 7, 2014 and its start on May 11, 2015, should count as institutional delay (108 days). The appellant submits that the entire time period is neutral.

[83] I agree with the appellant. The start date of the preliminary inquiry corresponded with Jurkus' counsel's first available date to conduct the preliminary inquiry. Lonsbary's trial counsel did not put his available dates on the record. As noted by this court in Konstantakos, at para. 10"[i]nstitutional delay does not start to run until the parties are ready for trial and the system cannot accommodate them". Consequently, under the law as it existed then, this entire period of time is neutral, as the date selected for the start of the preliminary inquiry was the earliest date counsel for Jurkus was available to proceed and Lonsbary's availability is unknown.

[84] The preliminary inquiry took place over five days: May 11, 12, 15, July 13 and October 16, 2015. The appellant concedes that the period of time between May 15 and July 13 (59 days) is institutional delay. This is a generous concession as it is unclear as to why the fourth day was scheduled for July 13, 2015. For the sake of argument, I am prepared to accept the concession of two months of institutional delay.

[85] When it became apparent that an additional date was required to complete the preliminary inquiry, the matter had to be put over to October 16, 2015 (95 days away). The appellant submits that this should be characterized as neutral time; the respondents say it is institutional delay. The parties rely upon their earlier positions respecting the reasons for why an additional day was required. Based on my earlier reasoning, this period of time counts as neutral.

[86] The preliminary inquiry was completed on October 16, 2015. The committal decision was rendered on January 11, 2016.

[87] The parties agree that the time period between October 16, 2015 (the last day of the preliminary inquiry) and October 20, 2015 (when the parties appeared in court to set a date on which to receive the decision on committal) is neutral time. They also agree that 30 of the remaining 83 days it took to receive the committal decision is inherent time.

[88] I start by noting that the record is unclear as to why it took that long to deliver the decision on committal. What is clear, though, is that following the closing submissions on October 16, 2015, the preliminary inquiry judge said that she would likely be prepared to give her decision about six weeks later. She permitted counsel to pick the date that they would like to return for the decision. When the parties returned before a different judge a few days later, the defence asked for a return date of January 11, 2016. Accordingly, it is not clear that the preliminary inquiry judge needed the full 83 days, following October 20, 2015, to deliver her reasons; she may well have been prepared to give her reasons earlier but for counsel's request to return January 11, 2016.

[89] In any event, it is unnecessary to decide whether anything in excess of 30 days for judicial reserve time is institutional delay, as it does not affect the conclusion under the transitional exceptional circumstance analysis. Even if two months was to be considered institutional delay, this matter still would not exceed the Morin guidelines.

[90] The respondents were committed to stand trial on January 11, 2016. The first judicial pre-trial was scheduled for July 29, 2016. The parties agree that one month between January 11, 2016 and their first appearance in Superior Court on February 9, 2016 is neutral.

[91] On their first appearance in Superior Court on February 9, 2016, the respondents asked for a month adjournment. All parties agree this was defence delay.

[92] As before, when the parties returned to court on March 8, 2016, Lonsbary's counsel asked that the judicial pre-trial be set for July 29, 2016. He said that Jurkus' counsel did not have earlier dates. Nor did Lonsbary's counsel offer earlier dates. For the reasons given previously, this entire period was a combination of inherent and defence delay.

[93] On July 29, 2016, the parties attended a judicial pre-trial. This was now in the wake of Jordan having been released. The matter was then spoken to on August 9, 2016. The parties agree that the time between July 29 and August 9 is neutral.

[94] On August 9, 2016, Lonsbary's counsel raised the topic of delay for the first time, suggesting that he would bring a s. 11(b) application seeking a stay of proceedings. At that point, Jurkus was silent on whether he would join that application. The parties were prepared to set dates for trial. Crown counsel put his dates on the record, suggesting he could proceed immediately, save the month of November. Lonsbary's counsel did not put his availability on the record, although it appears that he was generally available. Jurkus' counsel was not available for trial until April 2017. The court indicated that it could accommodate a three-week jury trial starting on April 10, 2017, but Lonsbary's counsel was not available. Ultimately, the trial was scheduled to commence on May 8, 2017.

[95] There is no need to assess this time in any detail. Even if the entire nine months from August 9, 2016 to May 8, 2017 was treated as institutional delay, the total institutional and Crown delay would be approximately 15 months, within the Morin guidelines. Given that Jurkus' counsel's earliest available trial date was in April 2017, and Lonsbary could not appear, at least in the month of April, the actual institutional delay is even less.

[96] Aside from the Morin calculation of institutional delay, my earlier reasons address why this matter had some complexity. I see nothing on the record to suggest that the Crown delayed the matter. Although the disclosure took some time to complete, aside from the intake period, there is nothing on the record to suggest that the rate of disclosure slowed down the actual proceedings. I have previously addressed why the presumption of proceeding jointly against the accused was in the interests of justice. I also note that, until Jordan was released, the defence expressed no concern about delay.

[97] Two further aspects of the application judge's decision warrant consideration.

[98] First, I disagree that this matter is one of "moderate seriousness". The state placed the deceased into custody. He was murdered while under its care. State actors are alleged to have failed in their obligations to the deceased. I do not share the view that this is a matter of only moderate seriousness. There is a strong public interest in having the matter determined on its merits.

[99] Second, in her analysis of prejudice, the application judge found that "as a result of the delay, the applicants have suffered reduced earning capacity and have endured negative publicity and the continuing stigma" (at para. 71). First, I do not agree that the respondents suffered reduced earning capacity because of delay. The evidence demonstrates that they lost their jobs because of their employer's view of their job performance. This had nothing to do with delay. Second, I do not agree that the negative publicity resulted from delay. This happened because the respondents were charged.

[100] Even if there had been unreasonable delay under Jordan, having regard to the length of time that this matter proceeded under the previous s. 11(b) framework, the complexity of the matter, the reasons for the delay, all counsels' efforts to move the matter along, and prejudice, I would have allowed the appeal under the transitional exceptional circumstance.

E. CONCLUSION

[101] I would grant the appeals, lift the stays of proceedings and remit the matter to the Superior Court of Justice for trial.

Released: May 28, 2018

"Fairburn J.A."

"I agree Robert J. Sharpe J.A."

"I agree S.E. Pepall J.A."