Court File and Parties

Date: October 12, 2016

Court File No.: Brampton 15-4218

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Ashiel Reynolds

Before: Justice Paul F. Monahan

Counsel:

• W. Dorsey, counsel for the Crown
• P. Dotsikas, counsel for the defendant Ashiel Reynolds

Heard: September 23, 2016

Reasons for Judgment on the s. 11(b) Application released: October 12, 2016

Introduction

[1] Mr. Reynolds is charged with having operated a motor vehicle while his ability to do so was impaired by alcohol, contrary to s. 253(1)(a) of the Criminal Code of Canada (the "Code"). In addition, he is charged with over 80, contrary to s. 253(1)(b) of the Code.

[2] Mr. Reynolds brings this application to have this proceeding stayed on the basis that his right under s. 11(b) of the Canadian Charter of Rights and Freedoms (the "Charter") to be tried within a reasonable time has been violated.

[3] The decision in this case will require a consideration of the new framework for s. 11(b) applications laid down by the Supreme Court of Canada in R. v. Jordan, 2016 SCC 27 and R. v. Williamson, 2016 SCC 28, both of which were handed down by the Supreme Court on July 8, 2016.

Facts

[4] It is necessary to set out a detailed chronology of this case in order to consider the application of the new Jordan framework. The chronology is as follows:

1. March 22, 2015 - The applicant was arrested, charged and released on a Promise to Appear.

2. April 8, 2015 - This is the first court appearance. An agent appears for defence counsel and files a designation for Mr. Dotsikas. No disclosure is available. The matter is put over to May 6, 2015. A crown pre-trial is to be held.

3. May 6, 2015 - An agent attends for the defence. Some disclosure is provided. The agent requests June 10, 2015 for the next attendance.

4. June 10, 2015 - Mr. Dotsikas attends and asks to put the matter over for five days until June 15, 2015.

5. June 15, 2015 – The Crown and the defence set a two-day trial which was scheduled for January 28 and 29, 2016. I note that the trial date setting sheet attached to the information shows that the Court offered an earlier date namely January 13 and 14, 2016 and the defence was available to start the case but the Crown was not available.

6. January 28, 2016 – The parties attend on this day for trial. As is common in Brampton, there is no specific trial judge assigned. The case is "on the board" waiting for a judge to be free to start the case. At 2:45 to 3:00 p.m., the Crown and defence are directed to attend for trial before Justice Borenstein, a visiting judge from Old City Hall who was assisting in Brampton. The defence counsel raises a conflict of interest with Justice Borenstein as they had been partners together in practice at an earlier time. No other judge is available. The Crown and the defence attend before the local administrative judge, Justice Currie, and indicate that they both agree that the trial of the matter can be heard in one day. Both the Crown and the defence jointly request permission to re-attend the next day, January 29, to see if a judge may be available to hear the trial that day. This is contrary to the usual practice in Brampton that if a matter is not reached on the first day of a two-day trial, an entirely new date is set. Justice Currie permits the parties to re-attend on January 29, 2016 to see if a trial judge is available to hear the case that day.

7. January 29, 2016 – The parties attend on January 29 and wait until 12:30 p.m. No judge is available to hear the matter. A new trial date needed to be set. The Crown and defence agree that the case can be heard in one day but they require a judge to sign off on this reduction in trial time (the case would otherwise be treated as a two day case) and they appear before a judge for this purpose. The defence indicates that they are hopeful they can get an earlier trial date if it is only a one day trial. The presiding judge agrees and approves of the one day trial estimate. The parties then attend at the trial coordinator's office to obtain a one day trial date. They return before the presiding judge with a new one day trial date set for April 25, 2016. Defence counsel has other dates in advance April 25, 2016 but none are available to the Court/Crown. In particular, the defence has available February 5, 16, 17; March 24, 25, 28, 29; April 6, 8, 11, 15, 18, 19 and 22, 2016.

8. April 25, 2016 – The Crown and defence attend for trial. Again, the case is on a list with other cases and the judge to whom the matter is initially assigned is busy with a continuing matter. Another Court becomes available to hear the matter at approximately 11 a.m. The defence counsel is busy dealing with an unrelated matter in another courtroom and Crown counsel (who is different Crown counsel than had carriage of the case in January 2016) is familiarizing himself with the file. As a result, the trial does not start before me until approximately 11:50 AM on April 25, 2016.

The Crown finishes its case by 4 p.m., having called two police witnesses. The defence agrees that it is not necessary for the Crown to call the breath technician (a third witness) and admissions are made by the defendant to expedite the matter in this regard. However, as the parties have only one day set aside for trial and the trial has started late, the matter does not complete that day.

It is estimated that only two hours are needed to complete the trial. The Court and the Crown are available to continue the trial on April 27, 2016 and July 8, 2016 but the defence is unavailable. The defence has dates between April 25, 2016 and June 16, 2016, but they are not offered by the Court. The Court also offers August 5 and August 12, 2016 and the defence is available both days but the Crown is unavailable. The next available date on which the Crown and defence and the Court are all available is September 23, 2016.

9. On August 25, 2016, the defendant in this matter files an s. 11(b) application returnable at the next trial date which is September 23, 2016.

10. On September 23, 2016 the parties attend for the trial and the s. 11(b) application. The Court proposes to defer the argument and decision on the s. 11(b) application in order to hear the balance of the trial evidence and argue both the trial proper and s. 11(b) application at one time on September 23, 2016. While the defendant is in attendance at the trial with counsel and wishes to testify on the trial proper, another witness for the defence is unavailable until the afternoon of September 23, 2016 when the Court is otherwise occupied. The Court had set aside the entire morning to hear the trial of the matter. As a result, the defence is unable to proceed with the trial proper but does argue the s. 11(b) application on September 23, 2016. It is agreed between the Crown and the defence that the trial proper could have been completed on September 23 and that that should be the end date for the s. 11(b) analysis.

The New Jordan Framework

[5] In Jordan, the Supreme Court of Canada observed that the legal framework from R. v. Morin, [1992] 1 S.C.R. 771 involved doctrinal and practical difficulties which plagued the framework for s. 11(b) and "fostered a culture of complacency within the system towards delay" (see Jordan at para. 4). The Supreme Court noted that the culture of delay "causes great harm to public confidence in the justice system" (quoting from LeSage and Code, Report of the Review of Large and Complex Criminal Case Procedures (2008)).

[6] The Supreme Court of Canada in Jordan laid down a new framework involving a presumptive ceiling beyond which delay is presumed to be unreasonable. For trials in the provincial court, the presumptive ceiling is 18 months from the charge to the actual or anticipated end of the trial. In the Superior Court, the presumptive ceiling is 30 months.

[7] The particulars of the Jordan framework may be summarized as follows:

1. A trial court hearing an s. 11(b) application should calculate the total delay from the charge to the anticipated end of the trial (Jordan at para. 47).

2. From the total delay the court should deduct defence delay (Jordan para. 66) and the delay associated with discrete exceptional circumstances (Jordan at paras. 75 and 82).

3. Defence delay has two components. The first is delay waived by the defence. The other is delay caused solely by defence conduct including circumstances where the defence uses a deliberate tactic to delay the trial. A further example of defence delay will occur where the Court and the Crown are ready to proceed and the defence is not (Jordan paras. 60-64).

4. If the delay is above the presumptive ceiling then it is presumptively unreasonable. The Crown can rebut this presumption by showing that the delay is reasonable on the basis of exceptional circumstances (Jordan para. 68). This is the only basis upon which the Crown can justify a delay above the ceiling and avoid a stay. The absence of prejudice in cases above the ceiling is irrelevant (Jordan para. 81).

5. As indicated above, delay caused by discrete exceptional circumstances is to be deducted from the total delay to determine if the ceiling has been reached. The Crown and the justice system should attempt to mitigate if possible any delay resulting from a discrete exceptional circumstance. The Crown and the justice system need to prioritize cases delayed by unforeseen events. If that does not occur when it reasonably could have, then the entire period of delay occasioned by the discrete exceptional event may not be deducted from the total delay (Jordan para. 75).

6. Discrete exceptional circumstances may be an illness, an extradition proceeding or an unexpected event in the trial. The categories are not closed. Trial judges are to use their good sense and experience in determining what will constitute a discrete exceptional circumstance (Jordan paras. 69, 71 and 81).

7. Exceptional circumstances covers a second category other than discrete events: namely cases that are particularly complex. These are cases that due to the nature of the evidence or the issues require an inordinate amount of trial or preparation time such that the delay is justified (Jordan para. 77).

8. Below the presumptive ceiling a stay may still issue if the defence can establish two things: (1) that it took meaningful steps to demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. In the absence of these two factors, the stay application will fail (Jordan para. 82).

9. As concerns defence initiative constituting meaningful and sustained steps, the Court should consider what the defence could have done and what it did. It is a matter of substance rather than form. It is not enough to put on the record that the defence wanted an early trial date. Having said that, the defence must act reasonably and not perfectly (Jordan paras. 84-85).

10. As to whether the time took markedly longer than it should have, this will require a consideration of the reasonable time requirements of a case which derive from a variety of factors, including the complexity of the case, local considerations, whether the Crown took steps to expedite the proceedings and other factors (Jordan para. 87).

11. Stays below the ceiling should be granted only in clear cases. In setting the ceiling, the Supreme Court factored in tolerance for reasonable institutional delay (Jordan para. 83).

Transitional Provisions and Considerations

[8] The new framework applies to cases already in the system. For cases that are above the ceiling, a transitional exceptional circumstance will apply when the Crown satisfies the court that the time taken is justified, based on a reasonable reliance on the law as it previously existed. For example, prejudice and the seriousness of the offence factored in under the previous framework and these considerations may inform reliance on the previous state of the law (Jordan at para. 96).

[9] Delay may exceed the ceiling because the case is of moderate complexity in a jurisdiction with significant institutional delay problems. The Supreme Court has indicated that it does not wish to have a recurrence of what occurred after its decision in R. v. Askov, [1990] 2 S.C.R. 1199 where numerous stays were granted en masse (Jordan para. 97).

[10] However, the Supreme Court points out that stays may still be granted in transitional cases. If there is a delay in a simple case which vastly exceeds the ceiling because of repeated mistakes or missteps by the Crown, the delay might be unreasonable (Jordan para. 98).

[11] For cases that fall below the ceiling and are currently in the system, the criteria of defence initiative and whether the time has taken markedly longer than reasonably required must be applied contextually and sensitive to the party's reliance on the previous date of the law. The defence does not need to demonstrate having taken the initiative to expedite matters for the period of delay before the decision in Jordan. It was not required under Morin. However, the Supreme Court observed that "in close cases, any defence initiative during that time would assist the defence in showing that the delay markedly exceeds what was reasonably required." The trial judge must also consider action or inaction by the accused that may be inconsistent with the desire for a timely trial (Jordan para. 99).

[12] Further, if the delay was reasonably acceptable in the relevant jurisdiction under the Morin framework before the decision in Jordan, that institutional delay will be a factor in the reasonable time requirements for cases currently in the system (Jordan para. 100).

[13] The Supreme Court noted that given the level of institutional delay tolerated under the previous approach, a stay of proceedings for cases below the ceiling will be even more difficult to obtain for cases currently in the system. The court noted that for cases that are currently in the system, the release of the decision should not automatically transform what would have been a reasonable delay into an unreasonable one (Jordan para. 102).

[14] The Supreme Court observed that in applying the framework to cases already in the system, courts should do so "contextually and flexibly." (Jordan at para. 105). As the Supreme Court observed in Jordan, "we rely on the good sense of trial judges to determine the reasonableness of delay in the circumstances of each case" (Jordan at para. 98). Further, as a general comment not specifically directed at transitional cases, the Court urged trial judges not to parse each day or month as was done under the previous legal regime but rather they should "step back from the minutiae and adopt a bird's-eye view of the case" (Jordan para. 91).

Law and Analysis

(i) Context

[15] The Jordan framework must be applied by this Court. As concerns cases already in the system such as this one, the transitional provisions of Jordan apply. The Supreme Court in Jordan also makes it clear that in transitional cases at least one consideration should be what would have been acceptable or not under the previous Morin framework. This follows from the Supreme Court's reference in Jordan at para. 100 to the requirement that tolerance for institutional delay in the relevant jurisdiction under the Morin framework must be considered at least as concerns the transitional cases.

[16] Prior to applying the Jordan framework to the case at bar, I will make a number of contextual points regarding how delay has been treated in the Region of Peel post-Askov. The applicable test was the Morin framework and it was well known to this Court. I will not set it out in any detail here other than to refer to my own decision in R. v. Ancheril, 2015 ONCJ 501. I note that under the Morin test, the guideline for institutional delay in provincial courts was 8 to 10 months with deviations of several months in either direction being justified, depending upon the presence or absence of prejudice. I note further that the Ontario Court of Appeal has accepted that for a straightforward case in the Region of Peel, 8 to 9 months ought to be seen as a reasonable guideline (see R. v. Rego, [2005] O.J. No. 4768 at para. 4). See also R. v. Purewal, [2014] O.J. No. 2824 (per Durno J.) at para. 138 where the 8 to 9 months timeframe for institutional delay was recently affirmed as the guideline in Peel.

[17] Accordingly, in Peel there has been little tolerance for delay post-Askov. The practical implication of the 8 to 9 month guideline for institutional delay has been that under the Morin framework in Peel, a stay could potentially be obtained for unreasonable delay where the case was routine, the institutional delay was approximately 10 to 13 months or more and, in many cases, the overall time from the charge to the end of trial was well under 18 months. By way of example only, I refer to R. v. Barnes, [2003] O.J. 3217 where a stay was granted where the institutional delay was 13 months and the overall delay from the laying of the charge to the anticipated completion of the trial was 16 months. In R. v. Kielo, 2015 ONCJ 72, a stay was granted where the institutional delay was 10.5 months and the overall delay from the laying of the charge to the anticipated completion of the trial was 14 months. In R. v. Trocki, 2014 ONCJ 693, a stay was granted where the institutional delay was 10 months and the overall delay was 13 months. That is not to say that a stay was always granted in where the above parameters were extant, as much would turn on the question prejudice and a balancing of the Morin factors, society's interests and the specifics of individual cases. Having said that, the tolerance for delay in Peel was low.

(ii) The Supreme Court's Application of Jordan and the Consideration of Jordan by Other Courts

[18] In Jordan, the Supreme Court applied the new framework. Jordan was a Superior Court matter; involved drug charges and multiple accused; the overall delay was 44 months which "vastly" exceeded the presumptive ceiling of 30 months and a stay was ordered. The companion case of Williamson was a Superior Court matter; involved a charge of historical sexual assault against a minor; the overall delay was 34 months which exceeded the presumptive ceiling of 30 months; the case was said to be a close case and a stay was granted.

[19] I have had also the benefit of a number of higher court decisions as well as colleagues in the Ontario Court of Justice who have considered and applied the new Jordan framework. The only Provincial Court of Appeal to date to give substantive attention to the new Jordan framework is the Ontario Court of Appeal. It has done so in two cases: R. v. Coulter, 2016 ONCA 704 (OCJ matter; child pornography charges; 17 months overall delay which was below the presumptive ceiling of 18 months; no stay ordered) and R. v. Manasseri and Kenny, 2016 ONCA 703 (Superior Court matter; the 68 months delay was over the presumptive ceiling of 30 months; a stay was granted). The Ontario Superior Court has also considered Jordan including in R. v. Gandi, [2016] O.J. No. 4636 (Superior Court matter; serious fraud charge; 27 months of overall delay; below presumptive ceiling of 30 months; no stay granted) and in R. v. Swaminathan, 2016 ONSC 4913, [2016] O.J. No. 4150 (OCJ matter; impaired and over 80 charges; 11 months of institutional delay under the Morin framework; no prejudice proven or inferred; appeal allowed; no stay granted). Judges of the Ontario Court of Justice (and other provincial courts) are being called upon to consider and apply Jordan on almost a regular basis including in R. v. Edan, [2016] O.J. No. 4279 (over 80 case; almost 20 months of overall delay; above the presumptive ceiling; stay granted); R. v. Hill (O.C.J.) (unreported decision of Blacklock J.) (13 to 14 months overall delay; below the presumptive ceiling; stay granted); R. v. Ashraff, 2016 ONCJ 584 (over 80 charge; 17 months and 21 days overall delay; below the presumptive ceiling; stay ordered); R. v. Ly, [2016] O.J. No. 4603 (12.5 months of overall delay; below the presumptive ceiling; no stay ordered); R. v. Desouza, 2016 ONCJ 588 (15 months overall delay; below the presumptive ceiling; stay ordered); and R. v. Sachro, [2016] O.J. No. 4869 (assault and unlawful confinement; 20 months overall delay; above the presumptive ceiling; stay ordered).

(iii) In the Case at Bar, Does the Jordan Framework Require Deductions of Time from the Overall Period of Delay?

[20] In the case at bar, the defence submits that applying the Jordan framework in this case results in 18 months and 1 day delay from the time the charges were laid (March 22, 2015 through to September 23, 2016). It is agreed by the defence and the Crown that the end date for the Jordan analysis is September 23, 2016, the date by which the trial and s. 11(b) application should have been completed.

[21] The defence submits that this case is just above the ceiling and is therefore presumptively unreasonable and ought to be stayed. The Crown's response is that the matter is well under the 18 month Jordan ceiling because one must deduct the delay between January 28/29, 2016 and April 25, 2016 which was due to a conflict of interest with the proposed trial judge and ought to be seen as a discrete exceptional circumstance.

[22] In addition, as between the April 25, 2016 date and the September 23, 2016 date, the Crown submits that a significant portion of that period should be seen as defence delay as earlier dates were offered to the defence for the trial to commence. The Crown and the Court were both available on the earlier dates and the defence was not.

[23] I will examine both of these time periods and arguments below.

(iv) January 28/29, 2016 to April 25, 2016

[24] As indicated above, this case did not proceed on January 28, 2016 because the judge offered to the parties at 2:45 to 3:00 p.m. on January 28 had a conflict of interest with defence counsel. At that time, the Crown and defence revised the trial time estimate and agreed that the case could be tried in one day and immediately obtained special permission from the local administrative judge in Brampton to re-attend on January 29, 2016 with a view to getting another trial judge. The parties did re-attend on January 29, 2016 but no judge was available to hear the trial even though the parties waited until 12:30 PM that day.

[25] R. v. Meisner, [2002] O.J. No. 5414 affirmed affirmed, 190 O.A.C. 24 (Ont. C.A.) was a s. 11(b) case in which the trial judge had a conflict of interest. The case also originated in Brampton. The Meisner case involved a routine 1-day (4-hour) trial (see para. 13 of R. v. Meisner, [2002] O.J. No. 5414). The matter was before one judge who had a list with a number of matters on it and he was not ready to proceed to hear the case. At some point during the day, the parties were directed to attend before another judge and it was that judge who had the conflict. It is unclear at what point in the day the parties were sent to the judge who had the conflict but it would appear to have arisen some time during the morning as there is a reference to the fact that "in the afternoon" they were back before the original judge who still did not have time to hear the case. In Meisner, there was a delay after the scheduled trial date for several months so that a new trial could be obtained. The delay arising from the conflict was treated by each level of Court as neutral intake time with the Court of Appeal stating (at para. 3 of the Court's decision) that the adjournment was "an example of one of those things that happens from time to time in the criminal process for which no one can be faulted and which almost inevitably requires an adjournment and rescheduling". The Court of Appeal said that the adjournment was required for "reasonable and unforeseeable reasons". The Court noted that the system was "ready to accommodate" the defendant three months after the first scheduled trial date and that it was a "reasonable accommodation" in the Court of Appeal's view.

[26] Accordingly, in the case at bar, the Crown argues that under Jordan the delay that resulted in this case from January 28/29 through to April 25, 2016 (approximately 3 months) is an exceptional circumstance relating to a discrete event such that there should be a deduction of 3 months from the overall delay.

[27] In my view, the circumstances that arose on January 28 did give rise to an exceptional circumstance as that term is used in Jordan. Meisner makes it clear that a conflict on the part of the judge is an "unforeseeable" circumstance". This must surely amount to an exceptional circumstance under Jordan. Having said that, Meisner is distinguishable in many respects from the case at bar and I do not consider that all of the delay between January 28/29, 2016 and April 25, 2016 should be deducted from the overall delay. As the Supreme Court noted in Jordan, any portion of the delay that the Crown in the system could reasonably have mitigated may not be subtracted from delay associated with discrete exceptional circumstances.

[28] In Meisner, only one day was set for trial and the conflict arose some time during the morning of the trial date. In the case at bar, it was not until 2:45 to 3:00 PM in the afternoon on the first day that the parties were directed to a trial judge who ultimately turned out to have a conflict. Perhaps if the parties learned about the conflict in the morning, they could have obtained a different judge. Further, being assigned the trial judge at 2:45 to 3:00 PM on the day set for trial when the Court shuts down at 4:30 PM is hardly satisfactory. Defence counsel could have reasonably taken the position by 1:00 PM that it was a two day case; half a day had been lost and the entire two day matter should be rescheduled to another two day trial date in which case the ensuing delay would very likely be institutional. That did not happen. Instead, the parties waited and were sent to Justice Borenstein at 2:45 to 3:00 PM when he had just completed another matter. When the problem arose at this time, the parties immediately attended before the local administrative judge and agreed that a one day trial should be sufficient and sought and obtained permission to try to find a new trial judge the next day. The parties then attended on January 29, 2016 and waited another half day (until 12:30 PM) for a judge to become available but to no avail. I note that in Meisner the question of whether the parties had attempted to mitigate the problem by searching for a new judge was considered by the trial court and the Superior Court when it stated that there was "no evidence … as to whether other attempts were made to try and get into another courtroom" (see Meisner [2002] O.J. No. 5414 (C.J.) at para. 23 and at para. 34 (4)). Both the Crown and the defence are to be commended in this case for attempting to get this case heard on January 29 and the efforts that they made to do that. In the s. 11(b) analysis, it gives strong support for the defence's argument that it was very keen to have this matter tried soon as possible. It also gives some support for the proposition that the Crown attempted to mitigate, at least to some extent, the conflict that arose the previous day.

[29] I note as well that in Meisner there was no evidence that defence counsel had earlier dates after the adjourned trial date of September 24, 2001 until the December 18, 2001 continuation date offered by the court in that case and used as the end date for the neutral time. In this case, the defence offered a host of dates to hold a one day trial namely February 5, 16, 17; March 24, 25, 28, 29; April 6, 8, 11, 15, 18, 19 and 22, 2016. None of these dates were apparently available to both the Court and the Crown.

[30] In summary, what happened in Meisner was different than in the case at bar. Meisner had a one day trial set and when the conflict arose in the morning, it could not be mitigated. Here, for 7.5 months the parties held two full days for trial in a major provincial court jurisdiction with multiple criminal courts operating on a daily basis, and all the institution could do was offer the parties, when the first trial day has almost ended, a visiting trial judge (at 2:45 to 3:00 PM) who had a conflict with defence counsel and then the Crown takes the position that the ensuing 3 month delay must come off the delay in the s. 11(b) analysis. Obviously, no fault lies with the visiting judge. It seems to me that in the circumstances of this case where there were two days set aside for trial for the first trial date and counsel show up and spend the better part of both days in Court waiting for a judge, and the defence had offered 14 days prior to the rescheduled trial date to try the matter, it would be unfair to say that all of the time through to April 25 is delay associated with a discrete exceptional circumstance. I appreciate that the Crown did make efforts to mitigate by re-attending on January 29 but my overall perspective as to what occurred on January 28/29 and the resulting delay is that the Crown/institution did not do enough and that of the 3 months delay, only 1.5 months should be treated as a discrete exceptional event and deducted from the overall delay under the Jordan framework.

(v) April 25, 2016 through to September 23, 2016

[31] As indicated in my review of the framework above, there is no doubt that defence delay is required to be deducted from the calculation of overall delay. An example of defence delay will occur where the Court and the Crown are ready to proceed, but the defence is not. This is said by the Supreme Court to be an example of delay "caused solely" by the defence (Jordan paras. 60-64).

[32] As indicated in the chronology above, the case started late on April 25 (around noon) and when the trial was not completed that day, a new trial date had to be set to complete the trial. The loss of the two hours in the morning on April 25 was partly attributable to the institution which did not have a judge ready at 10:00 AM to start the matter, partly attributable to the defence counsel who became busy briefly at about 11:00 AM with another judge in Brampton on an unrelated matter (this may not have occurred if the case had started at 10 AM) and partly attributable to the Crown who had just picked up this matter and was having to speak to witnesses. The point here is that two hours were lost from 10 a.m. to 12 p.m. on April 25. If the court had been ready to start the trial at 10 AM, I am of the view that the entire case would have been completed that day. In my view, it was primarily the institution's fault that the case was not completed on April 25, 2016 and this point was conceded by the Crown at the time of the s. 11(b) application. That day, the parties were attending on their third day ready to start their trial (January 28, 29 and April 25, 2016). This case should have been treated as a priority at the outset of the day on April 25, 2016 and it was not.

[33] When the matter was not completed on April 25, 2016, two hours needed to be found to complete the case. The defence was offered April 27 and July 8, 2016 for trial but they were unavailable. The Court offered August 5 and August 12 and the defence was available but Crown counsel was not so the matter could not proceed on those days. Ultimately, September 23 was the first date when all of the Crown, the defence and the Court were available.

[34] I recognize that the defence was offered April 27 as a continuation date but this was only two days after April 25. Defence counsel could not reasonably be expected to be available two days later and the Crown agreed with this point at the time of the s. 11(b) application.

[35] The Court was available June 17, 2016 but the Crown and the defence were not. The defence was unavailable from June 18 to 30 and September 2 to 21, although no dates were offered in those periods. However, the defence was offered July 8, 2016 and both the Court and the Crown were available but the defence was not. In my view, defence delay begins to run on July 8. However, I note that the defence and the Court were available on August 5 and 12 and that the Court offered these dates but Crown counsel was unavailable. As the Supreme Court pointed out in Jordan, defence delay will not include "periods of time during which the court and the Crown are unavailable" (Jordan at para. 64). There is an argument that there should be no deduction for defence delay here at all because the root cause of the delay post-April 25 was not caused solely by the defence. The necessity for an adjournment arose because the institution did not provide a full trial day to the parties on April 25. Having said that, I have concluded that in this case the fair way of approaching this lengthy 6 month period is to examine when the parties were and were not available notwithstanding that the original adjournment was not caused solely by the defence. Some part of that 6 month delay was caused solely by the defence's unavailability.

[36] In my view, applying the Jordan framework flexibly, contextually and fairly, the period of time from April 25 to July 8 should be included in the overall delay. The period from July 8 to August 5 (this is approximately one month) should be treated as defence delay and the balance of the time from August 5 to September 23 should be included in the overall delay.

(vi) Application of Findings

[37] The overall delay in this case is 18 months and 1 day. From that figure, 1.5 months should be deducted for the discrete exceptional circumstance that arose due to the conflict of interest on January 28, 2016 and another month should be seen as defence delay arising in the period from July 8 through to August 5, 2016. This means that the net overall delay under the Jordan framework is 15.5 months.

[38] This case is below the presumptive ceiling. Below the presumptive ceiling, a stay may still issue if the defence can establish two things: (1) that it took meaningful steps to demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have. In the absence of these two factors, the application will fail. Stays below the presumptive ceiling are to be rare and limited to clear cases. However, for transitional cases that fall below the ceiling, the criteria of defence initiative and whether the time has taken markedly longer than reasonably required must be applied contextually, flexibly and sensitive to the party's reliance on the previous state of the law.

[39] In this case, the defence took a number of steps to expedite the proceedings. First, counsel was retained virtually immediately with a designation being filed on the first appearance. Second, the trial date was set only two months and seven days after the first appearance. Further, the Court offered an earlier trial date of January 13/14, 2016 and the defence was available but the Crown was not. Crown counsel fairly acknowledged in submissions on the s. 11(b) application that the setting of the date in this timeframe (on only the fourth appearance) was earlier than in many cases. Third, when the conflict of interest arose late in the day on the first trial date, defence counsel joined with the Crown and attended before the local administrative judge to get permission to re-attend the next day (contrary to the usual practice when a matter is not reached on the first day of a two day matter) which permission was obtained. The parties then re-attended on January 29 to try to have the trial start on that date and waited until 12:30 PM before setting a new date. Fourth, the defence offered 14 days in a three month timeframe for a new trial date prior to the April 25 date that was ultimately settled upon. Fifth, defence concessions were made at the trial date on April 25 that the breath technician did not need to be called and there was an admission regarding the service of the certificate. It would have been better to have these concessions made earlier but nonetheless the defence worked to narrow the issues. Sixth, with the agreement of the Crown and the approval of a Judge, when the conflict problem arose on January 28, 2016, the defence (and the Crown) revised the trial estimate downward to one day with a view to getting an earlier date. While my own view is that it would have been better to leave the trial estimate at two days, I accept that the defence took this step, at least in part, to try to get the trial on sooner and it was approved of by a judge.

[40] In summary, the defence did take meaningful steps to expedite this case. As the Supreme Court observed in Jordan, "in close cases, any defence initiative during that time would assist the defence in showing that the delay markedly exceeds what was reasonably required." The steps taken by the defence in this case work in the defendant's favour in the context of this application.

[41] I turn to the second aspect of the new Jordan framework for cases under the presumptive ceiling namely whether the case has taken markedly longer than it should have. In my view, this question is informed in a transitional case by a consideration, among other things, of what would have or should have occurred under the Morin framework. I note that this was the approach of Justice Code in Gandi, supra where he said at para. 55 that "the transitional approach in Jordan … draws on the old Morin framework" and he considered the application of Morin to that case including the question of prejudice. He ultimately concluded that a stay would not have issued under Morin and should not issue under Jordan. As concerns prejudice and the old Morin framework, he found that while there was some actual prejudice, there were only short periods of unreasonable delay, it was a serious fraud case and there was a strong societal interest in proceeding (see Gandi at para. 54).

[42] Had this Court been applying the Morin analysis I would have stayed the case under that framework. Under the Morin framework there would be 7.5 months of institutional delay from the time the trial date was set (June 15, 2016) through to the first trial date of January 28/29. I would not deduct any time for preparation. The Crown did not seek any such deduction on this 7.5 month period at the time of the s. 11(b) application when I inquired as to what the position of the Crown would have been under the Morin framework. I consider that this is a fair concession in this case because, among other things, the Court offered to start the case on January 13/14, 2016 and the defence was available but the Crown was not. Further, a deduction for preparation time was not always required under Morin particularly for straightforward case like this one. In addition, in my view, there would be a further 1.5 months of institutional delay during the period of January 28/29 through to April 25, 2016 and a further 2.5 months institutional delay during the period April 25 through to July 8, 2016. One month of defence delay (from July 8 to August 5, 2016) would also be a consideration.

[43] Accordingly, under the Morin framework, the total institutional delay would have been 11.5 months. The Morin institutional delay guideline for a case like this in Peel is 8 to 9 months. Under Morin, the case would fall to be decided on the question of whether the delay was unreasonable, the interests of the accused, including any actual or inferred prejudice suffered, and society's interest in having the matter tried on the merits. Before staying the charges, the Court would have to be satisfied that the interests of the accused and society in a prompt trial outweighed the interests of society in bringing the accused to trial.

[44] I recognize that prejudice is not a factor in the Jordan framework per se as prejudice is factored into the presumptive ceiling. Nonetheless, as Gandi demonstrates, it is an appropriate consideration in transitional cases where the Court is called upon to consider local considerations and the tolerance for delay under the previous regime and reliance on the previous state of the law (Gandi supra at paras. 51-55 and Jordan para. 96). In this case, the evidence is that there is material prejudice associated with the delay. Mr. Reynolds put in an affidavit on the application and while the Crown was offered the opportunity to cross-examine, they did not wish to do so.

[45] Mr. Reynolds is 24 years of age and is a landscaper with limited means. Mr. Reynolds' unchallenged evidence is that he has suffered significant prejudice associated with the delay in the trial of his case. In particular, Mr. Reynolds' desire to study in a film program in British Columbia has been put on hold due to the financial burden associated with this case. His savings have been depleted by unanticipated legal fees caused by the delay and he can no longer afford to move to British Columbia. His affidavit testifies to stress associated with the delay in the Court case, sleepless nights and the case having "consumed my every waking thought" which has affected his mental health as well. He is also understandably concerned about the prospect of a criminal conviction on his future job prospects and educational prospects.

[46] As indicated above, in my view, under the Morin analysis, considering that this is a straightforward case with 11.5 months of institutional delay and material prejudice associated with the delay and balancing all of the Morin factors, Mr. Reynolds would be entitled to a stay of proceedings. One of the questions for this Court is whether under Jordan, the case has taken markedly longer than it should have? The overall tone and direction of the Supreme Court's decision in Jordan is that the current criminal justice system contains a culture of complacency and has tolerated unreasonable delays. The Supreme Court has been very clear that in applying Jordan in a transitional situation, trial judges must consider local conditions, apply common sense and interpret the Jordan provisions contextually and fairly. The Supreme Court points out at para. 102 of Jordan that "the release of this decision should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one". The Court does not answer the opposite question which arises in the case at bar, namely whether the Jordan framework should transform what would previously been seen as an unreasonable delay into a reasonable one. In my view, it should not, at least in transitional cases like this one. In this regard, at least as concerns transitional cases, I concur with my colleague Justice Kenkel when he said in Desouza, supra at para. 17 that:

"The 18 month presumptive ceiling for this court recognizes the complexity of many of the cases now tried at this level, but it is not an "aspirational target" [quoting Jordan at para. 56]. I disagree that Jordan necessarily sanctions delay even in the simple cases beyond what would have been acceptable under the prior guidelines." (emphasis added)

[47] The Supreme Court in Jordan has urged trial judges to get away from the minutiae and to adopt "a bird's eye view of the case". Stepping back and looking at this case in that manner, one sees a straightforward case that should have taken one day to try. A 24-year-old defendant of limited means is called upon to attend for trial on three separate days (January 28, 29 and April 25, 2016) and the case is either not reached or left uncompleted on each of those days. For reasons which are outlined above, the case does not get started until halfway through the third day and is then unable to complete that day. Six months are needed to find mere two hours to finish the case (some of this delay being the fault of the defence). The defendant took meaningful steps to try to get the case tried expeditiously but to no avail.

[48] I have concluded that this case has taken markedly longer than it should have. I based that on my reasons set out above and briefly summarized as follows: (i) this is a straightforward transitional case and local considerations are relevant; (ii) post-Askov and certainly throughout the entire time this case has been in existence, there has been no tolerance for delay in Brampton; (iii) cases such as this one were commonly stayed in Brampton under the Morin framework prior to Jordan where the institutional delay was 10 to 13 months or more, there was prejudice and the total overall delay was often well under 18 months; (iv) I would have stayed this case under the Morin framework for the reasons outlined above; (v) it is reasonable to infer that the parties relied on the prior state of the law throughout this proceeding. That law was extant throughout the vast majority of this proceeding (from the laying of the charge on March 22, 2015 to July 8, 2016 when Jordan was handed down). While the defence did not launch the s. 11(b) application until post-Jordan, defence counsel was still clearly preserving his client's s. 11(b) position on the record on January 29, 2016 and April 25, 2016; and (vi) I note as well the point mentioned above that the defence took numerous steps to attempt to expedite this matter and the Supreme Court has indicated that in transitional cases below the ceiling, this is an important factor weighing in favour of the defence when determining if the case has taken markedly longer than it should have.

[49] I recognize that there is an important public interest in proceeding with serious criminal cases and that drinking and driving cases are indeed serious. Having said that, it would be ironic in my view if the Supreme Court's concern about complacency in our justice system would permit transitional cases that otherwise would have been stayed under the old framework to continue on with the Court's approval under the new system.

Conclusion

[50] For all the foregoing reasons, I have concluded that this matter should be stayed for unreasonable delay under s. 11(b).

Released: October 12, 2016

Justice Paul F. Monahan