COURT FILE NO.: SCA(P) 1326/18 DATE: 20200814 ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL

B E T W E E N:

HER MAJESTY THE QUEEN Patrick Quilty, for the Crown, Respondent Respondent

• and -

DAVINDER BRAR Alan D. Gold and Laura J. Metcalfe, for the Applicant Applicant

HEARD: May 20, 2020

REASONS FOR JUDGMENT [On Appeal from the Judgment of Madam Justice N.S. Kastner, dated November 2018 respecting the appellant’s guilt from the Judgement dated February 7, 2019 on the s. 11(b) Charter motion]

J.M. Woollcombe J.

A. Overview

[1] This case began as a routine “over 80” investigation on May 31, 2015, which led to the appellant, Davinder Brar, being charged. In January 2018, the matter proceeded before the trial judge in a two-day blended s. 9 Charter voir dire / trial. Following the evidence, counsel made both oral and written submissions, and the trial judge reserved her decision. She delivered her decision respecting the Charter application about nine months later, finding a s. 9 violation, but declining to grant a s. 24(1) or s. 24(2) remedy. The appellant was found guilty and brought an unsuccessful s. 11(b) Charter application. Almost five years after it had started, the case ended on February 25, 2019 with the imposition of sentence.

[2] The appellant appeals against his conviction. He alleges that the trial judge should have excluded his breath samples on the basis of the s. 9 Charter violation. He submits, as well, that the trial judge erred in not staying the proceedings as a result of a s. 11(b) Charter violation.

[3] For the reasons that follow, I would not accede to the appellant’s argument that the trial judge erred in declining to exclude his breath samples as a s. 24(2) remedy. But, I have determined that a stay of proceedings should be granted for unreasonable delay.

B. The Relevant Factual Background

[4] The appellant was seen by the police driving a motor vehicle without headlights at 2:15 a.m. on May 31, 2015. An officer followed him and observed him weaving in and out of his marked lane. The officer conducted a traffic stop, during which he formed a reasonable suspicion that the appellant’s ability to drive was impaired by alcohol. He made a demand that the appellant provide a breath sample in an approved screening device. The appellant did so. He registered a fail and was arrested at 2:20 a.m. He was advised of his rights to counsel and a breath demand was made. He was then transported to the police detachment.

[5] The appellant was turned over to a qualified breath technician, and he provided two breath samples. His blood alcohol readings at 3:08 a.m. and 3:31 a.m. were, respectively, 177 and 170 mg alcohol in 100 mL of blood. He was served with the relevant documents at 3:41 a.m.

[6] Immediately after serving the appellant with the documents, the arresting officer called the appellant’s brother at a number the appellant had provided. No one answered. At 4:20 a.m., the arresting officer attended at the home of the owner of the vehicle, the appellant’s father, and told the father that the vehicle had been seized and that he was trying to reach the appellant’s brother. The father was not willing to pick up the appellant, but said that he would try to reach the brother to do so. That officer believed that a family member would pick the appellant up and that he would be released as soon as there was someone there to pick him up, although the decision to release the appellant was for the staff sergeant to make. This officer was off shift at 6:00 a.m.

[7] The decision to release an individual from the police station is made by the staff sergeant. In this case, Sgt. Ramore was the staff sergeant on duty from the time the appellant arrived at the police station at 3:03 a.m., and she remained on duty until 4:40 a.m.

[8] Sgt. Ramore testified that after she was told of the appellant’s breath results, she made the decision to detain him. Generally, she says that she takes a number of factors into consideration in deciding whether to keep an accused detained. These included the readings, whether there was someone responsible available to pick him up, whether he had a criminal record, whether he had any outstanding charges, whether he had been charged with impaired driving, if his vehicle was impounded, his attitude and demeanour and the fact that he had made a poor judgment call in recently drinking and driving. She testified that she does not release a person unless she feels it is safe to do so.

[9] In this case, she considered the appellant’s blood alcohol concentration (“BAC”) readings of 170 and 177 mg in 100 mL of blood, and used her knowledge that a person’s blood alcohol level decreases by 10-15 mg an hour. She also knew that an officer had tried unsuccessfully to contact the appellant’s brother. She knew that, at the time she was relieved, the appellant’s BAC was about 155 and said that without someone being there to pick him up, she was not comfortable releasing him on his own.

[10] Sgt. Rowe took over as staff sergeant from Sgt. Ramone. He did not testify.

[11] Sgt. Lang began work as staff sergeant at around 7:00 a.m. He was asked about whether he made any assessment as to whether the appellant could be released when he first came on shift. He said that he had not done so right away and had attended to other duties before going to the cells to speak with the people in custody.

[12] He was asked how he came to the decision as to when the appellant could be released. He explained that his practice is to use the general rule of thumb that people eliminate alcohol at a rate of 15 mg an hour. He knew that the appellant’s BAC had been 177 mg at 3:00 a.m., and testified that he would have given him about five to six hours to be below 100 mg. But, in addition to that, he said he always talks to the person to see if they are coherent and understand they are being released, and he ensures that, if they are being released without a driver, they are safe. He also considers other factors such as criminal records or outstanding charges, neither of which applied to the appellant.

[13] Sgt. Lang did not see or speak to the appellant until he went down to the cells just after 9:00 a.m. The appellant was released at 9:45 a.m.

[14] A number of Peel Regional Police Directives relating to the release of those detained for breath tests were put before the trial judge. The Directive that was effective on February 10, 2015 provides factors to be considered in determining whether or not to release an accused in a case of alleged drinking and driving was filed as an exhibit at trial. It sets out those factors referred to by Durno J. in his decision in R. v. Price, 2010 ONSC 1898; leave denied, 2010 ONCA 541. Sgt. Lang testified that he had read it before the offence date and that these factors were in his mind as he was deciding whether to release the appellant.

[15] A blended s. 9 Charter voir dire / trial proceeded before Kastner J. beginning on January 3, 2018. The appellant sought to exclude his breath samples under s. 24(2) on the basis of a s. 9 Charter violation from the police “overholding” him. In the alternative, he sought the remedy of a s. 24(1) stay.

[16] Evidence and submissions took place on January 3 and 4, 2018, with submissions continuing on January 29, 2018, and further written submissions being filed afterward. The trial judge indicated that after receiving the submissions, she would need a couple of weeks to decide the case, and she suggested that judgment be put over for a month. March 20, 2018 was the date initially set for judgment. But the ruling was not completed by then. Over the months that followed, the case was repeatedly adjourned for the trial judge to complete her ruling, with it ultimately being released on November 19, 2018. The trial judge found a s. 9 breach, but declined to provide any remedy under s. 24(1) or (2) of the Charter, allowing that she would re-visit the issue of remedy if and when the appellant was convicted.

[17] After receiving the Charter ruling, Crown counsel indicated that the Crown was not calling any further evidence. Defence counsel advised the court that the defence would not be calling evidence. The trial judge found the appellant guilty. Defence counsel then indicated that the appellant would be bringing a motion for a stay pursuant to s. 11(b) of the Charter.

[18] The s. 11(b) application proceeded on January 14, 2019. The real issue on the stay application was the correct characterization of the nine-month delay on the part of the trial judge releasing her decision on the Charter application.

[19] On February 7, 2019, the trial judge dismissed the s. 11(b) stay application.

C. The Issues

[20] The appellant advances two grounds of appeal.

[21] First, he submits that having found a s. 9 Charter breach from police detaining him in custody longer than they should have, the trial judge erred, first, in finding that a s. 24(2) Charter remedy was not available and, second, in concluding that if a s. 24(2) remedy was available, the breath samples should not be excluded.

[22] The Crown responds that the trial judge fell into error in finding a s. 9 breach at all. Further, the Crown submits that if there was a s. 9 breach, the trial judge made no error in not granting a remedy.

[23] Second, the appellant submits that the trial judge erred in dismissing his s. 11(b) Charter application. Counsel submits that the trial judge erred in finding that the time during which her judgment was under reserve did not count in the overall delay calculation and, in the alternative, erred in finding that the defence had waived all of the time under which her judgment was under reserve. He submits that a correct s. 11(b) analysis would lead to a finding that the delay exceeded the 18-month presumptive ceiling in Jordan, and that a stay ought to have been granted.

[24] The Crown took the position in its factum that, because of the manner in which it was brought, the s. 11(b) application was an abuse of process. In the alternative, the Crown’s position is that the trial judge was correct that the defence waived all of the delay while the trial judge reserved her decision. In the further alternative, the Crown’s position is that the trial judge was correct that the time during which she had her Charter decision under reserve should not be included in the Jordan ceiling. Accordingly, the Crown submits that the trial judge was correct to dismiss the s. 11(b) application.

i) Did the trial judge err in not excluding the breath samples?

[25] In assessing this ground of appeal, I will first address the issue of whether there was a violation of s. 9 at all, an issue raised by the Crown. I will then address the availability of s. 24(2).

Was there a s. 9 violation?

The trial proceedings

[26] The appellant’s position at trial was that his s. 9 right not to be arbitrarily detained had been violated. He submitted that the police were required to assess the factors set out by Durno J. at para. 93 of Price to decide whether to release him. He argued that there was no credible or reliable evidence that either Sgt. Raymore or Sgt. Lang assessed his continued detention in compliance with s. 498 of the Criminal Code until some point after 9:00 a.m. and that, as a result, his detention was arbitrary.

[27] Before the trial judge, the Crown acknowledged that “consideration of an accused’s BAC alone is insufficient, and that the case law has determined it to be too narrow of a focus to the sole determining factor”. The Crown’s position was that this was not the only factor relied upon by the police and that the officers considered all of the relevant circumstances set out in Price. In the alternative, if the trial judge found that the appellant was detained solely because of his BAC, the Crown submitted that the detention was not arbitrary and that he was held for his own safety.

[28] In her Charter ruling, after summarizing the evidence, the trial judge reproduced paras. 77 to 94 of Durno J.’s judgment in Price. In that decision, Durno J. summarized many of the older “overholding” cases and concluded that police should not make decisions to release or hold an accused solely based on breath readings, but should also consider other factors, a non-exhaustive list of which he set out. The trial judge observed that these factors informed the Peel Regional Police Directives that were in force at the time of the appellant’s arrest and that the officers testified they were aware of.

[29] The trial judge acknowledged the subsequent summary conviction appeal court decision in R. v. Kavanagh, 2017 ONSC 637. In that case, Heeney R.S.J. concluded, relying on R. v. Sapusak, [1998] O.J. 4148 (C.A.) firstly that high blood alcohol concentration levels alone could constitute a sufficient basis for an accused’s detention and, secondly, that the trial judge’s reliance on Price – in light of what he characterized as “the clear and binding authority for the proposition that detaining an individual for 6 to 7 hours, based solely on readings of 130 mg/100 mL, does not constitute arbitrary detention” – was in error: Kavanagh at paras. 37 and 40.

[30] The trial judge commented that it did not appear that anyone made the argument in Kavanagh that Sapusak was a short Court of Appeal endorsement and not a full, considered decision of the Court of Appeal – an argument advanced by the appellant before her: R. v. Singh, 2014 ONCA 293 at para. 12.

[31] The trial judge held that she was bound by Price and so would consider all of the circumstances to determine whether the appellant had established a s. 9 breach.

[32] The trial judge found that the delay in releasing the appellant up to 5:00 a.m. was reasonable as the police were awaiting a family member to pick him up. She noted that there was no evidence as to what occurred between 5:00 and 7:00 a.m.

[33] In assessing Sgt. Lang’s evidence, the trial judge found that “at best”, he showed a “benign neglect” for his duty to the prisoners in that he let a period of two hours lapse “before he even got around to his duties regarding the prisoners being detained”. While she recognized that blood alcohol concentration alone, after considering all of the factors, could be given primary weight, she stated, “I cannot find in these circumstances that such an objective consideration was necessarily made in this case.” She went on to hold that if she considered the whole period of detention, the last three to five hours of continued detention was “without any articulated basis for doing so in the face of factors favouring release”.

The positions of the parties

[34] The appellant says that the Peel Regional Police are mandated by their Directive to consider factors other than breath samples when they determine whether to release. He submits that the trial judge made no error in concluding that his detention was arbitrary in the period after 5:00 a.m.

[35] The Crown submits that it was reasonable for the police to hold the appellant until his BAC was 50 mg, and that the appellant bears the onus of establishing that he was held for too long. The Crown submits that the trial judge should not have found the detention arbitrary in these circumstances.

Analysis

[36] Section 498(1) of the Criminal Code mandates the release of a person arrested without a warrant “as soon as practicable”. At the same time, s. 498(1.1)(a) provides that the police shall not release the person if the officer in charge or peace officer believes that the person’s detention is necessary in the public interest, which includes preventing repetition of the offence or another offence and ensuring safety.

[37] An accused who asserts a s. 9 violation bears the onus of establishing the alleged breach on a balance of probabilities. However, when the Crown seeks to justify a detention on the basis of s. 498(1.1), an evidential burden arises requiring the Crown to explain the reasons for the detention.

[38] There is a large body of other jurisprudence that accepts the analysis of Durno J. in Price. He held that permitting BAC to be the “sole determinant” results in too narrow a focus. I think the law was fairly summarized by Kurke J. in the summary conviction appeal decision in R. v. Larocque, 2018 ONSC 6475 at para. 45:

In the context of impaired driving cases, high blood alcohol concentrations alone can constitute a sufficient reason for continued detention, so as to render detention lawful and not arbitrary, so long as an assessment is made of the particular accused and other available options are considered: R. v. Sapusak, [1998] O.J. No. 4148 (C.A.); R. v. Kavanagh, [2017] O.J. No. 430 (Sup.Ct.), at paras. 36-43; R. v. Waisanen, 2015 ONSC 5823, at paras. 12, 23; Isler, at para. 18; R. v. Price, 2010 ONSC 1898, [2010] O.J. No 1587 (Sup.Ct.), at para. 93

[39] There are, as might be expected, cases in which courts have held that, on the basis of high blood alcohol concentrations, it was reasonable for the police to detain a person in custody. The decision of Heeney R.S.J. in Kavanagh is one such case. Similarly, in R. v. Ruscica, 2019 ONSC 2442 at para. 52, McKelvey J. affirmed the trial judge’s determination that there was no prima facie case of arbitrary detention that required an explanation. In that case, the trial judge had found that when the appellant, whose blood alcohol content was twice the legal limit, was held for three hours and ten minutes, it “is a reasonable inference that some period of detention was required prior to his release for his own safety and that of the public.”. See also: R. v. Burns, [2000] O.J. No. 1743.

[40] While there may be some disagreement in the approaches in Kavanagh and Price and their progeny, that debate does not require any resolution in this case. That is because the police who testified all accepted that they would not base detention decisions on blood alcohol concentration levels alone. They understood, on the basis of the Police Directive, that their duty was to consider all of the circumstances. Both Sgt. Ramore and Sgt. Lang said that they did so and made their decision on this basis.

[41] No issue is taken with Sgt. Ramore’s decision not to release the appellant before the conclusion of her shift at 4:40 a.m.

[42] It is the time after 5:00 a.m. that properly concerned the trial judge. She found as a fact that Sgt. Lang did not engage in any assessment of the appellant’s circumstances, including whether he should be released, until some point after 9:00 a.m. As a result, for a period of more than four hours, the appellant remained in custody without the required thought and attention being given to whether he should be released. In my view, the trial judge correctly found that Sgt Lang’s failure to attend to his responsibilities respecting the prisoners led to the appellant’s arbitrary detention in the period after 5:00 a.m.

[43] I accept that had Sgt. Lang considered the appellant’s blood alcohol concentration in light of the standard rate of elimination, along with the other factors that he knew he was mandated to consider in accordance with the Peel Regional Police Directives, he might well have reasonably determined that continued detention until some time approaching 9:00 a.m. was necessary in the public interest. Indeed, he might well have concluded that on the basis of the appellant’s BAC alone, continued detention was warranted for some period. The problem here is the complete lack of evidence that either he, or anyone else, gave any thought whatsoever to the appellant’s continued detention over this period. These facts made it impossible to conclude that the decision to hold the appellant was a reasonable one based on relevant factors. There seems to have been, in effect, no decision made.

[44] I do not accept the Crown’s position that there should be a “bright line” finding made in this case that the police are entitled to detain those accused of drinking and driving offences until the person’s BAC is 50 mg, on the basis of a standard elimination rate of 15 mg an hour. First, I see no evidentiary basis to conclude that all detainees should be held until their BAC is at any particular level, let alone to conclude that the threshold should be set to 50 mg. Second, I prefer the individualized approach suggested in all of the jurisprudence before me and adopted in the Peel Police Directive. In my view, requiring the police to assess individuals in their particular circumstances is the best way to ensure an accused is not held any longer than is necessary for their safety and the safety of the public. Often, a high BAC alone will justify continued detention – but not always.

[45] In my opinion, in the circumstances of this case, the trial judge was correct to find a s. 9 breach.

Did the trial judge err in her conclusion that s. 24(2) was not available?

[46] Having found a s. 9 Charter breach, the trial judge then considered whether the breath samples should be excluded under s. 24(2) of the Charter on the basis that they were “obtained in a manner” that violated the Charter.

[47] The trial judge reviewed the Court of Appeal decision in R. v. Pino, 2016 ONCA 389, upon which the appellant relied in support of its position that a generous approach must to taken to s. 24(2). She then summarized the summary conviction appeal court decision in R. v. Cheema, 2018 ONSC 229, in which Barnes J. affirmed the trial judge’s decision that s. 24(2) was not engaged. She concluded that all of the appellate decisions at the summary conviction level that had been put before her were consistent with it, and that it was binding on her. Finally, she considered the decision of R. v. Larocque, 2018 ONSC 6475, which was released after oral submissions before her had been completed, but before her decision had been released. In that case, the summary conviction appeal court also concluded that s. 24(2) was not available.

[48] The appellant submits that the trial judge erred in finding that s. 24(2) of the Charter was not an available remedy in this case. The Crown submits that the trial judge’s analysis was correct.

[49] The Supreme Court of Canada has always taken a generous and broad approach to the threshold “obtained in a manner” requirement of s. 24(2): R. v. Strachan, [1988] 2 S.C.R.; R. v. Brydges, [1990] 1 S.C.R. 190; R. v. Wittwer, 2008 SCC 33 at para. 21; R. v. Mian, 2014 SCC 54.

[50] In R. v. Pino, 2016 ONCA 389, Laskin J.A. summarized at para. 72 the evolution of that approach and set out considerations that should guide the approach taken by trial judges to the “obtained in a manner” requirement of s. 24(2):

-the approach should be generous, consistent with the purpose of s. 24(2); -the court should consider the entire “chain of events” between the accused and the police; -the requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct; -the connection between the evidence and the breach may be causal, temporal or contextual or any combination of these three connections; -the connection cannot be either too tenuous or too remote.

[51] Several summary conviction appeal courts have considered whether, in light of the Court of Appeal decision in Pino, breath sample evidence was “obtained in a manner” that infringed the Charter when an accused has been arbitrarily detained as a result of overholding.

[52] In some cases, including Kavanagh and Larocque, summary conviction appeal court judges clearly and unequivocally rejected the suggestion that there was any connection – temporal, causal or contextual – between the obtaining of the breath results and the subsequent arbitrary detention. In these decisions, the summary conviction appeal court judges highlighted that the chain of events before them involved multiple different transactions including the driving, arrest, taking of the samples, and decisions to detain. In each case, different police officers were involved in the transactions that led to the arrest, breath sampling and analysis and the impugned detention decision.

[53] Similarly, in R. v Cheema, 2018 ONSC 229, Barnes J. considered the appellant’s argument that the trial judge had erred in finding that, based on the Court of Appeal’s decision in R. v. Iseler, he was precluded from engaging in a s. 24(2) analysis because the evidence did not meet the “obtained in a manner” requirement.

[54] In Iseler, the accused had been arrested for impaired care and control of a vehicle, provided breath samples, and been held in a police cell for 11 hours with virtually no police contact. Writing for the Court of Appeal, Armstrong J.A. found that there had been a s. 9 violation, but also observed that the breach of s. 9 “occurred post-offence”, had nothing to do with the investigation and the gathering of evidence against him and did not impact trial fairness. Armstrong J.A. referred to R. v. Sapusak, [1998] O.J. No. 4148 (C.A.), in which Morden A.C.J.A., while rejecting that there had been a s. 9 violation, said, “in the event that there was an arbitrary detention, it could not, in our view, be a basis for excluding the breathalyzer evidence since there was no temporal or causal connection between the breach and the obtaining of the evidence”. The Court of Appeal in Iseler similarly declined to grant a stay of proceedings, the only remedy sought.

[55] While the trial judge in Cheema did not have the benefit of the Court of Appeal’s analysis in Pino, Barnes J., sitting as the summary conviction appeal court judge, did. It was his view that the facts in Pino were “vastly different” from those in Iseler and that while the Court of Appeal in Pino did not refer to Iseler, it did not overrule it. On that basis, he concluded that the trial judge was correct to find that there was no temporal or causal connection between the breach and the obtaining of the evidence and so s. 24(2) was not engaged.

[56] In a different context, Goldstein J. also considered this issue R. v. Garrido-Hernandez, 2017 ONSC 2552. In that case, appeal counsel argued that trial counsel had been ineffective for not having alleged at trial a s. 9 violation on the basis of overholding. While Goldstein J. did not accept that argument, he went on to observe that even if the s. 9 issue had been raised, it was “highly unlikely”, even in light of Pino, that the appellant would have succeeded in obtaining either a stay or the exclusion of evidence.

[57] After the trial judge in this case released her decision, Dennison J. considered the meaning of “obtained in a manner” in R. v. King, 2019 ONSC 5748, a summary conviction appeal from a conviction for driving with over 80 mg of alcohol in 100 mL of blood.

[58] In King, the appellant’s blood alcohol readings were 150 mg at 2:15 am and 2:36 am. He was asked if there was anyone to pick him up and said there was not. The officer would have released him had someone been available, but was otherwise not comfortable doing so as it was not safe knowing the readings, his poor judgment that evening and the fact that he had shown signs of impairment. The staff sergeant who was responsible for the decision whether to release the appellant had no recollection or notes of dealings with the appellant or if or why he decided to detain the appellant. He released the appellant at 7:30 a.m., five hours after the breath samples were taken.

[59] The trial judge in King found a s. 9 violation on the basis of overholding, a finding that was not challenged on appeal. The issue on appeal was one of remedy. Dennison J. affirmed the trial judge’s decision not to grant a s. 24(1) stay, but disagreed with his conclusion that s. 24(2) was not available. It was her view that the overholding was part of the same transaction, or course of conduct, as the failed breath test. She expressly disagreed with the analysis in Kavanagh and found, at paras. 67-68, that narrowly interpreting the “obtained in a manner language” of s. 24(2) creates a test that provides no remedy for Charter breaches that occur after the breath test and unduly limits the “gateway” to s. 24(2), an approach she found was contrary to Pino. Ultimately, Dennison J. concluded, after conducting her own s. 24(2) analysis, that the breath samples should not be excluded under s. 24(2).

[60] There can be no issue that Laskin J.A.’s analysis in Pino requires the court to look at the entire chain of events between the accused and police to determine whether the evidence and Charter breach are part of the same transaction or course of conduct. This requires a case-by-case assessment of the particular facts. The assessment is to be generous, in keeping with the purpose of s. 24(2), and must recognize that the connection, be it causal, temporal, contextual, or some combination of these, must not be too remote or tenuous.

[61] In my view, the connection between the obtaining of the breath samples and the appellant’s arbitrary detention between 5:00 and 9:45 a.m. is too remote. I reach this view for the following reasons.

[62] First, I observe that in Iseler, while Armstrong J.A. found it important that the overholding breach had occurred post-offence, he also concluded that the overholding breach had “nothing to do with the investigation and gathering of evidence”. I see this as a significant observation. It is, of course, consistent with Morden A.C.J.O.’s comment in Sapusak that there was “no temporal or causal connection” between the overholding breach and the obtaining of evidence.

[63] I agree with Barnes J. in Cheema that the Court of Appeal in Pino did not expressly overrule what had been said in either Iseler or Sapusak. That is hardly surprising as the case arose in a fundamentally different context. As a result of Pino, evidence “obtained in a manner” must now be more broadly understood than it was in Iseler or Sapusak. It must incorporate the entire transaction and chain of events, and may include both evidence obtained prior to a Charter breach, and that which is “contextually” connected. But, I do not think the conclusions in those cases that there is an absence of any temporal or causal connection and that the evidence was obtained “independent of the breach” is now irrelevant as a result of Pino. Rather, I see the observations in these earlier cases as persuasive, and as a valid recognition of a factual disconnect that may, depending on the facts, exist between the breath samples and the breach, recognizing that these decisions must now be read in light of Pino.

[64] Second, in this case, I do not see a contextual connection between the breath readings and the arbitrary detention. The appellant was detained, transported to the police detachment, provided his breath samples, and given the appropriate paper work. There was a proper basis to continue to detain him and steps were taken by police to try to obtain a ride for him. Given his high readings and the absence of anyone being available to pick him up, no issue was or could be taken with the decision to detain him until 5:00 a.m. The context of the driving, arrest, breath sampling and analysis and detention up to 5:00 a.m. was, effectively, one transaction or course of conduct. It ended when Sgt. Ramore was no longer accountable for the ongoing detention. Up to 5:00 a.m., the appellant’s detention was properly explained and justified by the on duty staff sergeant and was reasonable.

[65] It is after 5:00 a.m. that I think the context of the interaction between the police and appellant changed. It changed with new staff sergeants responsible for the ongoing assessment of the appellant’s detention, officers who had nothing to do with the earlier course of events. It was these officers who did not fulfil their independent and ongoing responsibilities and properly determine whether he could be released. This is what resulted in the arbitrary detention. I see this as quite far removed from the obtaining of the breath samples. It was temporarily well after the breath sampling and justified detention were completed. It involved different police officers. I see it as truly independent of the taking of the breath samples.

[66] In this respect, the case appears to me somewhat different from King. In King, immediately after the paperwork was provided to the accused, his detention was continued, absent any evidence or explanation as to why. There was no evidence that the staff sergeant responsible for determining whether to release him made a decision or what the reasons were for such a decision. In this context, Dennison J.’s conclusion at paragraphs 71-72 of King that the arbitrary detention was temporally and contextually connected to the breath samples, makes sense. The arbitrary detention in King began immediately after the breath samples because there was a complete absence of any grounds for any further detention. This distinguishes it from this case, where there was a gap in time created by the legitimate detention of the appellant by Sgt Ramore until 5:00 a.m.

[67] Third, I do not accept that the mere fact that the appellant was under police detention from the time he was arrested at the roadside at 2:20 a.m. until his release at 9:45 a.m. means that all of the time during that detention must be considered one transaction or as the same context. When the reason for the detention changed, in my view, the context did too. Initially, the detention was because of the arrest and in order to conduct the breath tests. Subsequently, it became justified under s. 498(1.1) when Sgt. Ramore made a valid decision to detain the appellant unless someone was available to pick him up or his blood alcohol had gone down. The absence of a valid decision being taken to continue this detention after 5:00 a.m. is, in my view, a fundamentally different context for the detention.

[68] Fourth, I do not accept that a finding s. 24(2) did not apply to the circumstances of this case created a situation in which the appellant, whose Charter right has been violated, was left with no remedy. To the contrary, a remedy lies in s. 24(1) of the Charter, which gives the court a broad remedial power to craft and grant whatever remedy is just and appropriate.

[69] In my view, the trial judge in this case came to the correct conclusion respecting the availability of s. 24(2). I would not interfere with her decision.

If s. 24(2) did provide an available remedy, did the trial judge err in not excluding the breath samples?

[70] While she was not required to conduct a s. 24(2) analysis, in view of her conclusion that it was not available, the trial judge did so anyway. Given my view that s. 24(2) was not available, it is not necessary for me to consider her s. 24(2) analysis either. However, as this issue was argued before me, and in the event that I am wrong as to the availability of s. 24(2) as a remedy, I will set out my conclusions as to s. 24(2).

[71] I begin by acknowledging that the trial judge’s decision to admit the evidence under s. 24(2) is entitled to considerable deference on appeal, absent an error in principle, palpable or overriding factual error, or an unreasonable determination: R. v. Grant, 2009 SCC 32 at paras. 86, 127; R. v. McGuffie, 2016 ONCA 365.

[72] The appellant submits that the trial judge erred in her analysis and that, considered afresh and properly, the breath samples ought to have been excluded.

[73] The first prong of the Grant analysis requires consideration of the seriousness of the breach. The trial judge found that the deprivation of the appellant’s liberty was serious and that there was an absence of evidence from the second staff sergeant as to whether the continued detention was reasonable, and a failure of the third staff sergeant to apply the Police Directives reasonably for over two hours. She concluded that the efforts of the arresting officer to contact the appellant’s brother attenuated the seriousness of the breach. However, she held that the seriousness of the breach favoured exclusion of the evidence.

[74] The trial judge recognized, in my view correctly, that the seriousness of the breach was attenuated by the fact that the police made proactive efforts to identify a person who could pick the appellant up. The evidence before the trial judge suggests that the police were concerned enough about securing him a ride home that an officer attended at his father’s home. While the appellant testified that nothing would have prevented him calling a taxi to pick him up, he agreed that he had never asked for anyone to be called. There was no evidence that anyone was available and willing to pick him up at the police station.

[75] Accordingly, while I accept that the trial judge found the breach serious on the basis that the police did not consider the ongoing justification for detaining the appellant, I do not see the breach as deliberate or flagrant. Sgt. Lang’s conduct was described as a “benign neglect” and not as a wilful disregard for the appellant’s rights. That seems to me a fair factual finding on the basis of his evidence. He prioritized other work over immediately assessing whether the appellant could be released. I agree with the trial judge the breach was serious, but I would not place it at the most serious end of the spectrum.

[76] The second branch of the Grant inquiry examines the impact of the breach on the Charter protected interests of the accused. The trial judge found the impact to be minimal and found that this factor favoured inclusion of the breath samples.

[77] The appellant submits that in reaching her conclusion, the trial judge considered the impact of the breach on trial fairness and not on the Charter protected interests of the appellant. The submission is made that the trial judge did so because she improperly relied on the Court of Appeal decision in R. v. Jennings, 2018 ONCA 260, a decision released after argument on the motion, and that she did so without seeking input from counsel as to the applicability of that decision.

[78] Grant explains that the focus of the inquiry is the extent to which the breach actually undermined the interests protected by the right infringed. As was explained by the Supreme Court of Canada in R. v. Le, 2019 SCC 34, this requires answering a question about the degree of seriousness. The purpose of s.9 is to protect individual liberty from unjustified state interference. Accordingly, the focus of the inquiry must be on the impact on the appellant of the unlawful detention, rather than the impact of admitting the breath samples.

[79] With respect, the trial judge appears to have considered the effect that admission of the breath samples would have on the appellant’s fair trial interests, and concluded that because taking of breath samples is minimally intrusive, the impact of the Charter breach was minimal. I agree that her approach was not correct and consider this issue afresh.

[80] I find the impact of the breach on the appellant was not particularly serious. Any arbitrary detention necessarily impacts the liberty interests of the person detained. But, in this case, the appellant was initially in lawful police custody. Indeed, there is no issue that he was lawfully detained from 2:20 a.m. until 5:00 a.m..

[81] I acknowledge that the appellant indicated in his evidence that it was cold in the holding cell and that he did not receive breakfast. However, he agreed that he never asked for a blanket and that he was told that breakfast was for those going to court and that he was to be released. I do not see these facts as really aggravating the breach.

[82] Furthermore, I think the effect of the arbitrary detention on the appellant after 5:00 a.m. is significantly diminished because of the fact that, had the staff sergeants responsible for the decision to release the appellant properly turned their minds to this issue, it seems to me virtually inevitable that a decision would have been made to continue the detention well beyond 5:00 a.m.. By 5:00 a.m., the appellant’s BAC would still have been in excess of 140 mg. Indeed, allowing for that concentration to drop at a rate of 15 mg an hour, and bearing in mind that his reading was 170 mg at 3:30 a.m., it seems very likely that in the absence of a person picking him up, the police would have been entitled to legitimately detain him, for his own safety, until at least 8:00 a.m. As a result of my conclusion that the appellant could properly have been detained for much of the time he was found to have been arbitrarily detained, I find that the impact of the detention on him was not particularly significant.

[83] The third prong of the Grant test considers society’s interest in adjudication on the merits. The trial judge correctly found that societal interest favours the inclusion of the breath samples as they are both reliable and necessary to the Crown’s case. I agree.

[84] Section 24(2) is about maintaining the long-term integrity of and public confidence in the administration of justice. It looks at the overall repute of the justice system. The inquiry is about whether a reasonable person, informed of all relevant circumstances, would conclude that the administration of justice would be brought into disrepute by the admission of the evidence.

[85] In my view, a balance of the relevant factors must consider that the first prong of the Grant test reveals state conduct which, while resulting in an unlawful detention, was neither deliberate nor flagrant and so not at the serious end of the spectrum. The second line of inquiry reveals that the impact of the unlawful detention on the appellant was not particularly significant. The third line of inquiry strongly favours admission of the breath samples. I think in all of the circumstances, the public’s confidence in the administration of justice would be undermined if the breath samples in this case were excluded. As a result, if I am incorrect about the availability of a s. 24(2) remedy, and a remedy is available under s. 24(2), it is my view that the breath samples should not be excluded.

ii) Did the trial judge err in not finding a s. 11(b) breach?

The chronology

[86] While I have set out the general chronology above, there are some specific events that need highlighting. The parties are agreed generally about the facts relating to the unreasonable delay argument.

[87] The appellant was arrested on May 31, 2015. The information was sworn on June 8, 2015. The appellant was found guilty on November 19, 2018. The total delay is, therefore is 41 months and 11 days. The parties agree that the time taken after conviction until the disposition of the s.11(b) application (November 19, 2018 to February 7, 2019) is not relevant.

[88] Over the period from arrest until the second day of trial, the defence expressly waived significant periods of time. The parties agreed that by January 4, 2018, the second day of the trial, there was a net delay of 12 months. The trial judge accepted this.

[89] While counsel made submissions on January 4, 2018, after the completion of the evidence, two further hours were needed to complete the case. The matter was adjourned to January 29, 2018. That day, counsel for the appellant brought to the attention of the court a relevant recent summary conviction appeal court decision, and requested that the court accept written submissions and a casebook, which he was prepared to file that day. The trial judge indicated that written submissions would be helpful. The Crown asked for two weeks to respond. The Crown response was filed on February 12, 2018 and the defence reply submissions were filed on February 13, 2018.

[90] During the discussions about timing on January 29, 2018, the trial judge indicated that after receiving the written submissions from counsel, she would need “a couple of weeks for sure” and that February 26, 2018 was probably too early for judgment, if the parties were filing further submissions in mid-February. Counsel for the appellant indicated that the week after that he was out of the province until the week of March 22, 2018. The trial judge asked, “I take it delay is not an issue?”. Counsel responded, “Not at this point, Your Honour, no”. The trial judge said, “I would hope it wouldn’t be at any point.” She set the matter to come back on March 20, 2018 for judgment.

[91] On March 8, 2018, the trial judge’s secretary emailed counsel that the trial judge would not be delivering judgment March 20, 2018 and set out five new dates for judgment between May 30 and June 15, 2018. The parties agreed to May 30, 2018. On March 14, 2018, the matter was before the trial judge and she adjourned it to May 30, 2018, instructing the registrar to “mark for judgment on that date”.

[92] On May 23, 2018, the trial judge’s secretary again emailed counsel, this time to advise that she would not be delivering judgment on May 30, and to provide ten possible dates for judgment between June 19 and July 13, 2018. The parties agreed on July 11, 2018. On May 30, 2018, the case was before the trial judge and she adjourned it to July 11, 2018, stating that the next court date was “for judgment”.

[93] On July 9, 2018, the trial judge’s secretary emailed counsel for a third time to tell them that judgment would not be delivered as scheduled on July 11, 2018 and suggested that counsel arrange a mutually agreeable date in late August or September for judgment. The parties agreed on September 14, 2018.

[94] The matter was before the trial judge on July 11, 2018 for the formal adjournment. A student appeared for defence counsel and the assigned Crown was not present in court. The Crown indicated to the trial judge that the matter had been in court for judgment but that he understood she needed a bit more time to deliver her decision. The trial judge confirmed this. The Crown indicated that dates were available as early as August 8, 2018, but that September 14, 2018 had been chosen. The student appearing for Mr. Gold agreed. The Crown indicated that “it’s my understanding that 11(b) is not an issue at this point, so I’m content with that – that date”.

[95] On September 13, 2018, the trial judge’s secretary emailed counsel to advise, for a fourth time, that the judgment in this case would not be ready as scheduled on September 14, 2018. Counsel’s availability was canvassed for the weeks of October 9 and 15, 2018 or possibly November 2018.

[96] The Crown was available only October 11, 15 and 19, 2018. The defence was available any October and November date, except the October 11, 2018. In emails between the Crown and defence, counsel for the appellant indicated that the defence was available on October 19, 2018. When the parties were in court, the trial judge indicated that she was not available on October 19. As it appears that there was no date agreeable to everyone in October, the trial judge asked for the first date the parties could attend in November, after November 13. November 19, 2018 was the first date available and the trial judge adjourned to case to November 19, 2018 for judgment.

[97] On November 19, 2018, the trial judge delivered her written judgment. As I have indicated, she found a s. 9 Charter breach, but concluded that neither a stay nor the exclusion of the breath samples was a proper remedy.

[98] The trial judge then inquired whether the Crown was calling any further evidence, and counsel advised that it was not. The trial judge asked if the defence was calling any evidence and was advised it was not. After a short break, defence counsel indicated that a stay application under s. 11(b) would be brought. A finding of guilt was made, and a schedule set for the s. 11(b) application.

The positions of counsel before the trial judge

[99] Before the trial judge, the parties were in agreement about much of the delay in issue.

[100] The total period of delay was 41 months and nine days. The defence waived 18 months and four days. This left 23 months and one week.

[101] Initially, there was dispute about the proper characterization of the delay from January 4 until November 19, 2018. But counsel then agreed that the delay from January 4 to February 13, 2018, which resulted from the unexpected need for a further trial day for submissions, and then from a request by the defence to file written submissions, should also be deducted from the overall delay as a “discrete event”. This left about 21 months and six days of total delay.

[102] The real issue on the s. 11(b) application was the time from February 13 to November 19, 2018, the time during which the trial judge had her decision under reserve.

[103] The appellant’s position was that all this time should be included in the Jordan calculation and that doing so meant that the net delay exceeded the presumptive 18-month ceiling.

[104] It was the Crown position that the delay caused by the discrete event of the parties filing written submissions meant that the entire delay, up until March 20, 2018, when judgment was initially scheduled, should be deducted from the overall delay.

[105] The Crown’s position was that none of the judicial deliberation time was included in the total delay. If it were properly included, the Crown submitted that the defence unavailability to return for judgment at various points, and implicit waivers of periods of delay, brought the total delay under the presumptive ceiling.

The decision of the trial judge

[106] In keeping with the positions of the parties, the trial judge found that the delay from January 4 to 29, 2018 was caused by an under-estimate of the time required for the trial and that it should be deducted from the overall delay as a discrete event.

[107] However, for the period that followed, which was from January 29 to March 20, 2018 (the date on which judgment was initially scheduled to be delivered), she held that the defence expressly waived the delay (of 50 days).

[108] She further found an implicit waiver by the defence of the remaining time until the reasons for judgment were delivered. It appears that her view was that waiver flowed from defence counsel having remained silent about the delay and having raised no concern about the time being taken for judgment until after judgment was released.

[109] In the alternative, the trial judge said that if she was wrong about the implicit waiver, the failure of the defence to file a Charter application or raise any issue about delay was an action by the defence that caused that delay to be deducted from the overall delay.

[110] In assessing the further delay resulting from deliberation time, the trial judge recognized that this was not specifically addressed in any of the Ontario appellate cases decided since Jordan. After reviewing the jurisprudence before her, she found that deliberation time should not be included in the net delay and that the deliberation time was reasonable.

[111] As a result, the trial judge concluded that the net delay fell within 18 months and that the appellant’s s. 11(b) right was not violated.

Legal principles

[112] Since July 8, 2016, the legal framework to be applied to determining whether there has been a violation of an accused’s s. 11(b) right to a trial without an unreasonable delay is that set out in R. v. Jordan, 2016 SCC 27. The approach was summarized by the Supreme Court of Canada in R. v. Cody, 2017 SCC 31, at paras. 20-22.

[113] The framework centres on two presumptive ceilings with an 18-month ceiling for cases tried in the provincial courts. The first step is to calculate total delay from the charge to the anticipated end of the trial. The second step is to deduct the delay attributable to the defence, with the resulting amount of delay being the net delay. The net delay is compared to the presumptive ceiling and the analysis that follows depends on whether the delay is above or below the presumptive ceiling.

[114] The Court in Jordan did not address, specifically, whether the time taken for judge to prepare and deliver pre-trial or mid-trial rulings is part of the total time for the case. However, the Court did explain, at paras. 69-81 of Jordan that when delay exceeds the ceiling, the Crown may rebut the presumption that it is unreasonable if there are exceptional circumstances. Exceptional circumstances are those that lie outside the control of the Crown and may cover cases that are particularly complex. One example provided as what could make a case particularly complex is a large number of pre-trial applications. This suggests, in my view, that time taken to litigate and decide pre-trial applications, while included in the total time for the case, could be an exceptional circumstance rebutting the presumption that the delay is unreasonable.

[115] Several courts have considered whether delay to render interlocutory rulings falls under the total time for the case and counts towards the ceilings. A helpful summary of this jurisprudence was set out by Chozik J. in R. v. Atkinson, 2019 ONSC 7132 at paras. 49-54 in the context of her assessment of whether delay to render a decision on committal for trial was included in the ceiling. As she set out, the cases are divided, with some courts including deliberation time is part of the total time for the trial process, some deducting parts of the deliberation time if it is an exceptional circumstance and some deducting all deliberation time from the ceiling.

[116] Chozik J. concluded that committal decisions are made prior to the end of the trial and are always an interlocutory step that is included in the Jordan ceiling. Accordingly, she held that the onus was on the Crown to show that the delay caused by such rulings should be deducted as a discrete event or as an exceptional circumstance due to the complexity of the case.

[117] In R. v. K.G.K., 2020 SCC 7, released after the trial judge’s decision on the s. 11(b) motion, the Supreme Court of Canada held that the time taken by a trial judge to render a decision after the evidence and closing arguments in a trial have been completed is not included in the presumptive ceilings established in Jordan.

[118] Writing for the Court in K.G.K., Moldaver J. explained that Jordan ceilings apply “from the date of the charges until the actual or anticipated end of the evidence and argument.”. He reasoned that the end of the trial was best interpreted as meaning the end of the evidence and argument, explaining that this approach furthers the goal of addressing what was described as a culture of complacency in bringing those accused to trial. Jordan was never directed at delay attributable to verdict deliberation time, he explained. Further, including this time in the ceilings would make the adjudication of s. 11(b) motions speculative given the uncertainty about how long deliberation time would be at the end of a trial: at paras. 31-33, 38-40.

Positions on appeal

[119] The crux of the appellant’s position it that the trial judge erred in her characterization of the nine months and six day delay from February 13, 2018, when she had the Charter motion under reserve, until the release of her Charter ruling on November 19, 2018. The appellant submits that K.G.K. does not apply to deliberation time on interlocutory motions like the one that took place here, and that deliberation time on interlocutory motions presumptively falls within the Jordan ceiling.

[120] The Crown responds that the K.G.K. decision applies to this case because the Charter decision effectively determined the case. In support of this position, the Crown points out that there was no time set aside for further evidence after the trial judge delivered her ruling on November 19, 2018, suggesting, he submits, that there was no realistic possibility of further evidence. He suggests that characterizing the trial judge’s ruling as interlocutory is putting “form over substance”.

[121] If the deliberation time is included, the appellant says that the trial judge erred in finding that the defence waived all of the deliberation delay. The appellant also submits that the trial judge erred in finding that the defence was responsible for parts of the delay. Finally, the appellant says that the trial judge erred in finding that the transitional exception and particularly complex exception could justify the delay, particularly when the parties did not advance this position and were not afforded an opportunity to make submissions.

[122] The Crown’s position is that the defence waived the entire time period during which the trial judge had the motion under reserve. Even if the deliberation time is included, the Crown submits that it would have been reasonable for the trial judge to reserve for some reasonable period of time to properly adjudicate the case and that this must be deducted from the delay.

Analysis

What time is properly included in the total delay?

[123] The first issue to resolve is whether the trial judge’s deliberation time in this case counts as time that is within the 18-month presumptive ceiling.

[124] The trial judge’s decision on the Charter motion was an interlocutory ruling. I do not accept the Crown’s position that in substance it was a final ruling. No one took that position before the trial judge. More importantly, it cannot be fairly seen as a judgment at the end of the trial. While no further evidence was called by either side after the Charter decision, it was not known, when the trial judge reserved her decision, that this would be the case. In her ruling, she made this clear, saying expressly that she was not yet finding the appellant guilty and that there could be further evidence and submissions on the trial proper. Nor is the Crown’s position consistent with what happened in court after the ruling was released and the parties were each asked if they were calling any further evidence on the trial. While no evidence was called, each side had an opportunity to do so.

[125] Interlocutory ruling are a normal part of many trials. Often, pre-trial applications are heard before the trial commences. They are scheduled after a pre-trial and may be conducted days, weeks or months before a trial, ensuring that the judge has time to render a decision before the trial commences. Other times, counsel agree to have such matters as Charter applications heard during the trial in a “blended” fashion, as was done here. Often, issues arise unexpectedly during a trial and there is a need for them to be litigated and adjudicated before the trial can continue. In all of these situations, the rulings that a trial judge must make are an integral part of the trial process, even if they may, ultimately, be dispositive of the trial. In my view, the time taken for these sorts of applications to be argued and adjudicated should presumptively fall within the Jordan ceilings: R. v. Mamouni, 2017 ABCA 347 at paras. 55-56; R. v. King, 2018 NLCA 66 at paras. 132-142; and R. v. Atkinson.

[126] In reaching this view, I place some weight on the fact that Jordan and K.G.K. both say clearly that the time included in the ceiling is from charge until the end of evidence and argument. This suggests, on a plain reading, that the time for all interlocutory applications and motions to be heard and decided is included.

[127] I have also considered the practical impossibility of determining, on a case-by-case basis, how one would ever be able to know how much deliberation time should be deducted from the ceilings for a judge to rule on an interlocutory motion. To decide a half day Charter motion may mean that the trial judge needs an hour in chambers to reflect and prepare an oral ruling. Or it may require days of work outside court that cannot be fit into that judge’s schedule immediately. Or a judge may be able, after a brief period of deliberation, to deliver a “bottom line” result to the parties, and to provide more fulsome reasons later. The point is that it is impossible for parties to know what deliberation time is, or will be, reasonable. I think the effect of excluding this time from the ceiling is to inject unnecessary uncertainty into the s. 11(b) calculation.

[128] Moreover, I think including the time for these applications and motions is consistent with the overall goal in Jordan of facilitating a more efficient criminal justice system. It encourages parties to be active in streamlining and simplifying such applications, litigating only those issues that require litigation and limiting evidentiary hearing and submissions to that which is necessary. It also gives the parties every incentive to provide the judge with the best possible tools to rule on the issue. In short, it fosters a culture in which everyone takes greater responsibility to ensure that the process moves along.

[129] I think the most practical approach, consistent with the Supreme Court of Canada post-Jordan, is to include all of the time up to the conclusion of the evidence and submissions as time that counts towards the presumptive ceiling. Determining whether that delay is unreasonable will then require consideration of whether, in a given case, there is a reason to deduct deliberation time (for instance, as an exceptional circumstance).

[130] In reaching this view, I want to be clear that I understand and appreciate that judges need time to think about interlocutory decisions and to craft reasons that are responsive to the issues raised before them. Pre-trial or mid-trial applications can be complex and time consuming. They are often unexpected. Deciding them immediately before a trial, or during a trial, can be a significant challenge for judges, particularly when the pressure of starting or continuing a trial is present. In busy jurisdictions such as Brampton, where this case took place, rendering interlocutory decisions is a constant pressure facing judges who have taxing schedules. But, I do not see this as a proper basis for excluding the deliberation time from the presumptive ceiling. Rather, I think that delay from interlocutory decision-making time, in the appropriate case, can constitute an exceptional circumstance that results in it being deducted.

[131] Accordingly, it is my view that the trial judge was in error to conclude, as she did, that the time needed to render her ruling was not included in the Jordan ceiling. The result is that the delay from February 13 to November 19, 2018 is presumptively included.

[132] This means that the delay to be included is the 12 months up to January 4, 2018 and the nine months and six days from February 13 to November 19, 2018. The total delay to be considered, therefore, is 21 months and six days.

What time is properly considered defence delay?

[133] Defence delay can result from the defence waiving periods of delay or from the actions and conduct of the defence.

[134] I will address, next, the trial judge’s conclusion that the defence had expressly waived some of the delay and implicitly waived the rest of that delay and, in the alternative, that its conduct caused delay.

[135] With respect, I do not accept the trial judge’s conclusion that defence counsel expressly waived the entire period of delay from January 29 to March 20, 2018, the date when judgment on the motion was scheduled to be released. To be valid, an accused’s waiver must be clear and unequivocal. The accused must intend to exclude the specific period of delay from the overall assessment of reasonableness: Jordan at para. 61.

[136] It is necessary to understand the context of what happened on January 29, 2018 to determine whether it amounted to an express waiver of the time until the decision was scheduled to be released. On that date, when it was agreed that written submissions would be filed, the trial judge said she would require a couple of weeks after receiving the written submissions to prepare her ruling. There was then discussion about scheduling the delivery of her decision in the third week of March. In that context, the trial judge said to counsel that she understood that delay was not an issue. His response was “Not at this point, Your Honour, no”. In other words, counsel was acknowledging that there was no issue with delaying the delivery of her reasons, which was obviously going to be necessary, for at least a couple of weeks, until the later date of March 20, 2018. I do not think this can be fairly interpreted as an express or implicit agreement by counsel that this delay should be excluded from consideration in the overall assessment of reasonableness. Rather, I view it as a concession that if reasons were delivered as anticipated on March 20, there would be no issue respecting s.11(b).

[137] While the trial judge indicated in her s. 11(b) ruling that the time her decision was on reserve “was informed in part” by what she viewed as this “concession”, I do not think that the exchange that took place can reasonably be viewed as the sort of concession she found it to have been.

[138] In my view, the trial judge ought to have accepted the agreement of counsel that the delay from January 29 to February 13, 2018, when all submissions were to be filed, was delay resulting from a discrete event and that this delay should be deducted from the Jordan ceiling.

[139] But, I think the period of time from February 13, 2018, when all of the material was filed for the trial judge’s consideration, until March 20, 2018, when judgment was to be delivered, should properly be included in the Jordan calculation. None of it was expressly or implicitly waived by the defence as found by the trial judge.

[140] Next, I will address the delay from March 20 until November 19, 2018, which the trial judge found was implicitly waived by the defence. Three things grounded her view that this time was implicitly waived: first, her conclusion that experienced defence counsel had done nothing over the period to raise any concerns about the delay; second, the fact that when the Crown expressly indicated on July 11, 2018 that he understood s. 11(b) was not an issue, the student appearing for defence counsel said nothing to correct this view; and, third, the fact that the issue of delay was not raised until after the verdict and so was not raised in a reasonable time.

[141] I do not agree with the trial judge that the defence implicitly waived this entire period of delay. While not determinative, it is noteworthy that the Crown did not take the position before the trial judge that the entire period had been implicitly waived by the defence.

[142] More significantly, however, I do not accept that the words or actions of defence counsel amounted to an intention that all of this delay would not be included in the overall delay.

[143] First, while counsel was clear on January 29, 2018 that a delay in the delivery of the reasons until March 20, 2018 would not, at that point, give rise to a s. 11(b) concern, he certainly never signalled that delay would never be an issue.

[144] Second, it is important to recognize that waiver “must be expressed in some terms” and that silence or lack of objection does not necessarily create a waiver. If the Crown seeks to argue that the defence waived a period of delay, the Crown has the onus of demonstrating that the waiver can be inferred. That said, an agreement of counsel to a later date may give rise to an inference that an accused is waiving the right to later allege unreasonable delay: R. v. Askov, [1990] 2 S.C.R. 1199 at para. 65.

[145] In my view, however, defence counsel’s general failure to object to the repeated delays caused by the trial judge’s decision not to release her decision on the date she had scheduled, and to delay the delivery of her decision four times, cannot be understood as an implicit waiver of the right to later complain that any of the delay caused by the trial judge was unreasonable. I say that for two reasons.

[146] First, I do not accept that in these circumstances, it was incumbent on defence counsel to articulate, each time the trial judge advised counsel that she needed more time to prepare her ruling, that delay was an issue. As part of their duty to uphold the Charter, judges are under an obligation to minimize delay at all stages of the trial process. As Moldaver J. stated in K.G.K. at para. 55, “Post-Jordan, judges – like all participants in the justice system – should be acutely aware of the issues that promote delay and which can, in turn, give rise to a s. 11(b) violation.” I think the record in this case, setting aside the July 11, 2018 appearance before the trial judge, could not reasonably have led to the trial judge to conclude that delaying her decision on the motion would never give rise to s. 11(b) issue. Particularly in a case that had been going on for so long, the trial judge had to have understood that delay was not off the table.

[147] Second, in considering whether counsel’s failure to raise the issue of delay means that the delay was implicitly waived, it is important to observe that, in K.G.K., while acknowledging that counsel may be reluctant to ask about the status of a judge’s decision when it is under reserve, Moldaver J. made it clear that justice system participants must work together to minimize delays. He explained that counsel ought, in appropriate circumstances, to communicate with the trial judge: K.G.K. at paras. 74-75.

[148] I accept that there is some expectation that if a decision has been under reserve for a lengthy period, and counsel do not know when it might be delivered, they are obligated to make inquiries. However, I do not see this as a case where defence counsel was under an obligation to raise concerns about delay with the trial judge. Counsel were not left in limbo for months on end as to when the trial judge would release her ruling. They were told, repeatedly, that she needed anywhere from three more weeks to two more months to deliver her ruling, and that it would be released the next time they went to court. I do not know what counsel could have reasonably said in response when the trial judge’s assistant advised that the trial judge was not releasing her decision and provided new date – generally less than two months later – on which she planned to do so. Delay was inevitable on each occasion that the trial judge had not completed her ruling. And each time, counsel expected only a short further delay before the decision would be forthcoming.

[149] That said, I am somewhat troubled by what occurred on July 11, 2018 before the trial judge. By that point in the timeline, in addition to the 12-month net delay to January 4, 2018, there had been a further delay from February 13, 2018 to the scheduled release date for the ruling of July 11, 2018, resulting in close to 17 months of net delay. For five of those months, the trial judge’s decision had been under reserve. Her assistant had advised counsel, in advance of the appearance, that she was not delivering her decision that day, but that an agreeable date should be scheduled for late August or September.

[150] The Crown offered eleven possible return dates between August 8 (well before the late August suggestion of the trial judge) and September 14, 2018 (August 8, 13, 16, 20, 21, 27 and 29, as well as September 6, 7, 13, 14). It appears that before the court appearance, counsel had agreed to September 14, 2018 for the return date. Neither the assigned Crown nor defence counsel attended before the trial judge that day.

[151] The question is this: what is to be made of the fact that the Crown told the trial judge that he had spoken to his friend before court and understood that s. 11(b) was “not an issue at this point”? Mr. Gold’s articling student said nothing, perhaps leaving the trial judge with the impression that s. 11(b) was not an issue at that point.

[152] The Crown’s position before the trial judge was that this was an implicit waiver of the delay. Mr. Gold’s position was that counsel had pre-arranged the date to which the case was being adjourned, and that his summer student’s silence could not be taken as an implicit waiver. The trial judge found that the silence on the part of the student, when it could reasonably be expected that she would be fully informed of the issues by her office and, if in doubt, would seek instructions, “could reasonably be considered an acquiescence or agreement to the delay”.

[153] In my view, it cannot be correct to find that the student’s silence amounted to an implicit waiver of all of the delay caused by the fact that the trial judge’s ruling was still not ready. It is important to recognize that before the appearance, the trial judge’s assistant had said that the reasons were not ready and had asked counsel to agree on a date in late August or September. The trial judge was signalling that her reasons could not be ready before late August. I do not see how anything said on July 11, 2018 could mean that the time up to the end of August was being implicitly waived. The parties really had no option because, before they agreed to the new date, they knew that delay until at least the end of August was inevitable, as this was the first date the trial judge was prepared to rule.

[154] Accordingly, I think it was reasonable for the trial judge to have taken from the exchange in court before her that the defence was not concerned about the further delay in her delivering the ruling from late August, the earliest date when her reasons could have been available, until the new date selected of September 14, 2020. On this basis, I am prepared to find an implicit waiver of 3 weeks. This period of time should be deducted from the 21 months and six days delay, leaving a delay 20.5 months. Even this, I think, is a generous deduction given the fact that the trial judge’s reasons were not ready by either late August or September 14, 2018.

[155] While I would allow for this implicit waiver of three weeks, I do not take from the exchange in court, that there had been, or was, an implicit waiver of any of the delay up to that time, or an implicit waiver of the delay beyond September 14, 2018. Nor, in my view, could the trial judge fairly do so.

[156] In her s. 11(b) ruling, the trial judge was critical of defence counsel for not raising s. 11(b) issues with her earlier. She concluded that when nothing was said, it was reasonable for her to infer that delay was not an issue. Indeed, she said that, had the Jordan application been filed earlier or had she been made aware sooner that there was an s. 11(b) issue, “there would have been different discussions as to scheduling”. She concluded that the decision by the defence to do nothing indicated an absence of concern about delay and an implicit waiver.

[157] With respect, I do not agree. The trial judge knew that her decision was preventing the trial in this matter from being completed. She was told in February that the delay until March 20, 2018 was not a delay that caused concern for the defence. The only other time she was told that the delay was not an issue was when she postponed delivery of her reasons from July 11 to September 20, 2018. She had to have appreciated, in my view, the delay she was creating. I do not think that she could reasonably conclude from counsel’s conduct that it had been implicitly waived.

[158] While the trial judge found that all of the delay in the releasing of her decision on the Charter application had been implicitly waived, she also held, at para. 21 of her decision, that her judgment could have been delivered on October 11, 2018, “but for the unavailability of the applicant”. She concluded that this delay (of 5.5 weeks) should be deducted from the overall delay because it was caused by the defence.

[159] I have carefully reviewed the record respecting how the date of November 19, 2018 (as opposed to October 11, 2018) was set for delivery of the trial judge’s ruling. I do not think it supports the trial judge’s conclusion that this delay was caused by the defence. The record reflects that of the nine dates offered by the court in October, the defence initially indicated it was available for all but one: October 11. The Crown was available for October 11, 15 or 19. The defence was available for October 19 as well. When the matter was in court to set the date, the defence indicated it was not available on October 15 either. The result was that for the nine days offered initially October, the defence was available for seven and the Crown was only available for the three, two of which happened to be the two that the defence could not do. Both were available for October 19, but the trial judge, who had initially suggested that week, was not then available that day.

[160] The trial judge then asked for dates after November 13, 2018 and the first date the Crown could do was November 19, the date ultimately set.

[161] I do not see how this state of affairs leads to a conclusion that the defence caused the delay from October 11 to November 19, 2018. Jordan requires that all parties be flexible and cooperative. It does not mandate that either side be in a state of perpetually availability. It is only when the defence is offered several dates over a reasonable period and is unavailable for any of them – i.e. when the Crown and court could have proceeded, but the defence could not – that the delay caused in setting a date should be understood as properly attributable to the defence: R. v. Albinowski, 2018 ONCA 1084 at paras. 28-35. In my opinion, given counsel’s availability in October, and the lack of Crown availability, the defence cannot be said to have caused the delay from October 11 to November 19, 2018. This period of time cannot be deducted from the overall delay.

[162] Finally, although it appears to me to have been an alternative position to her conclusion that all of the delay up to November 19, 2018 was waived, the trial judge also found that because the s. 11(b) application should have been brought 60 days before she was scheduled to release her decision on November 19, 2018, a period of 60 days from September 20 to November 19, 2018 should be deducted from the overall delay as a discrete event.

[163] Discrete events are a category of exceptional circumstance that are unforeseen and cause delay that was unavoidable: Jordan at para. 73.

[164] While I appreciate the trial judge’s frustration at never having been put officially on notice that delay was an issue until she released her Charter decision, I do not accept her legal reasoning for deducting this 60 days. She offered no authority for her analysis. She did not explain how knowing, on September 20, 2018, that there was a Charter motion pending would have affected the release of her Charter ruling. The parties agree that the s. 11(b) clock stopped on November 19, 2018 when the Charter ruling was released and the defence gave notice of the s. 11(b) application. The defence delay in filing its motion did not, in my respectful view, cause any further delay, and is thus irrelevant to the overall delay in the case.

[165] As a result of my findings, the net delay in this case was 20.5 months, well over the presumptive 18-month ceiling. The question then becomes whether the Crown can rebut the presumptively unreasonable delay by showing that it was reasonable because of the presence of an exceptional circumstance.

Was the delay in the release of the Charter ruling caused by any other exceptional circumstance?

[166] At paras. 69-75, Jordan sets out that exceptional circumstances are outside the Crown’s control and are reasonably unforeseen or unavoidable. Exceptional circumstances generally fall into two categories: discrete events and particularly complex cases.

[167] The trial judge found that the time for judicial deliberation is not a discrete event. But at para. 105, she found that if the time counted in the Jordan ceiling, it could be attributed to exceptional circumstances.

[168] With respect, I do not think the delay caused by the trial judge not releasing her decision was the result of exceptional circumstances as that term is explained in Jordan at paras. 76-81. Exceptional circumstances covers a category of cases that are particularly complex. They are cases that, because of the evidence or issues, require an “inordinate amount of trial or preparation time such that the delay is justified”. This can include a large number of pre-trial applications, or novel or complicated legal issues. Such a determination falls within the trial judge’s expertise.

[169] On the one hand, I accept that the overholding and s. 24(1) and 24(2) issues raised in the pre-trial application had a level of complexity. But, there was only one Charter application. The hearing was relatively brief, covering less than three days with evidence and submissions. The evidence was straight-forward. Counsel provided both oral and written submissions that gave the trial judge a thorough review of the legal principles and their arguments. Significantly, at the end of the application, the trial judge was not of the view that the issues were so complex that she would require a longer than usual amount of time to reflect on them and to release a decision. Indeed, she said she needed a couple of weeks before she could release her decision.

[170] On this basis, I do not think that the case falls into the category of being so exceptional as to justify deducting a period of deliberation time on an interlocutory motion from the total delay. The trial judge was of the view that a few weeks’ deliberation time was all that was required. She was well positioned to make that assessment. The Crown has not met its onus of establishing the presence of an exceptional circumstance.

Was the delay reasonable given that this was a transitional case?

[171] This case is, strictly speaking, one to which transitional exceptional circumstances could apply, given that the appellant was charged on May 31, 2015, before the July 8, 2016 release of Jordan. Before the trial judge, both counsel took the position that the case should be determined on the basis of Jordan timelines.

[172] Nevertheless, the trial judge found that this was a transitional case and in all the circumstances, the delay was “entirely reasonable”.

[173] In Jordan, the Court explained that a transitional exceptional circumstance will apply if the Crown satisfies the court that the time taken was justified based on the parties’ reasonable reliance on the law it previously existed. It is premised on the principle that the parties conduct cannot be governed against a standard of which they had no notice. But, the Court made clear that if the parties have time to correct their behaviour and the system has time to adapt, the trial judge must take this into account. The Court also allowed that delay may exceed the ceiling if it is of moderate complexity, in a jurisdiction with significant institutional delay problems.

[174] I see two main hurdles to a finding that the delay here is justified because this is a transitional case. First, the Crown did not seek to justify the delay on this basis. Second, there is nothing about this case that suggests that the delay was a result of anyone relying on pre-Jordan principles. The delay that was at issue in this case is the nine months between February 13 and November 19, 2018 – more than a year and a half after Jordan was released. I do not think the any transitional exception can apply on these facts.

Conclusion

[175] I find that the total net delay was 20.5 months, a period of time that exceeds the 18-month presumptive ceiling.

[176] In its factum, the Crown suggested that if I were to conclude that there was a violation of s. 11(b) of the Charter, I should decline to stay the proceedings. This argument was not pressed during the Crown’s oral submissions. While I appreciate the Crown’s position that in its recent decision in R. v. Charley, 2019 ONCA 726, the Court of Appeal accepted that the possibility of staying a valid conviction based on sentencing delay was an “unjustified windfall” for the accused, it is important to note that the Court of Appeal did not revisit what it characterized as the “settled law” that a stay of proceedings is the only available remedy for a s. 11(b) breach prior to verdict. As compelling as the reasons might be for not granting such a drastic remedy, I am bound to follow the long-standing authorities of the Supreme Court of Canada and Court of Appeal and to grant the only permitted remedy, a stay of proceedings.

G. Conclusion

[177] For the reasons I have set out, a stay of proceedings is granted.

________ Woollcombe J.

Woollcombe J.

Released: August 14, 2020

COURT FILE NO.: SCA(P) 1326/18 DATE: 20200814 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent - and – DAVINDER BRAR Applicant REASONS FOR JUDGMENT [On Appeal from the Judgment of Madam Justice N.S. Kastner, dated November 2018 respecting the appellant’s guilt from the Judgement dated February 7, 2019 on the s. 11(b) Charter motion] Justice Woollcombe Released: August 14, 2020